India Ltd. & Ors Vs. Vishal Capoor & Ors  Insc 514 (28 September 2005)
Pal, Dr. Ar.Lakshmanan & C.K. Thakker
J U D G
M E N T (Arising out of SLP (C) No. 8258 of 2005) WITH
C.A. Nos .5936 & 5920 of 2005 @SLP (C ) Nos. 20387 & 20309 of 2005 (CC
7543 & 7621/2005), C.A. No. 5921 & 5922 of 2005@SLP (C ) No.9306/2005
& SLP (C ) No.10505/2005) RUMA PAL, J.
appeals arise out of a dispute over the seniority of co- pilots employed by the
first appellant, Air India Ltd. The contending parties are two groups of
co-pilots, namely, the respondents 1 to 6 (referred to hereafter as the 'writ
petitioners") and the respondents 7 to 12. The bone of contention is
whether seniority as a co-pilot is to be calculated from the day a pilot gets
an Air Lines Transport Pilot Licence (ALTP) or from the day the pilot enters
the service of the first appellant with only a commercial pilot's licence
(CPL). The differences between an ALTP and CPL as provided in Schedule II of
the Aircraft Rules 1937 are inter alia that an ALTP licence holder has at least
1500 hours of flying of which 500 hours is as a pilot-in- command. A CPL holder
has to have 250 flying hours with 150 hours as a pilot-in-command. However
apart from noting this, we do not propose to decide this dispute as the issue
which actually arises for decision before us is much narrower. The question is
whether the High Court by the order impugned in this appeal should have decided
the contention itself or left it to the Industrial Tribunal to decide.
first appellant is owned by the Government of India and provides international
air transport services. Its aircrafts are operated by pilots in command (PIC)
and co-pilots or first officers apart from other cock-pit crew. Co pilots fly
under the supervision of commanders with 500 or more hours as PIC. It is common
ground that unless a pilot has an ALTP licence, he cannot qualify as a PIC.
to the appellants, the respondents 7 to 12 were entitled to seniority over the
writ petitioners because they had obtained an ALTP prior to the writ
petitioners. It is the appellants' case that up till 1986 only ALTP holders
were eligible for appointment as co-pilots with the first appellant. CPL
holders were recruited for the first time as probationary co-pilots by the
first appellant only from 1986. Their probation was to continue till they
obtained the ALTP licence. If they failed to get an ALTP it resulted in
termination of their employment.
Indian Pilots Guild (referred to as the Guild) was a recognized union of pilots
of the first appellant. On 21st July 1989,
a settlement was arrived at between the Guild and the first appellant for the
period 1.10.85 to 31.8.90 (referred to hereafter as the 1989 Settlement).
Clause 3(d) of the settlement related to seniority and read as under:
The pilots joining the Corporation with ALTP will always have higher line
seniority over the co-pilots who is already in the employment of the
Corporation without ALTP Licence".
On 1st September 1990, the Guild gave a notice of
termination of the 1989 settlement and raised a fresh charter of demands. In
1992 the CPL holders raised a demand before the appellants asking for seniority
from the date of their joining the first appellant. The demand was rejected.
They then filed a writ petition being W.P. No. 2365 of 1992 in which they
challenged clause 3(d) of the 1989 settlement contending that the obtaining of
an ALTP licence was wholly irrelevant for confirmation as a co-pilot. The writ
petition was opposed by the first appellant as well as by the Guild. It was
ultimately dismissed on 11th
February 1993 on the
ground that the letters of appointment of the CPL holders specifically provided
for their confirmation as a co-pilot subject to obtaining ALTP licence.
Court was also of the view that it was a matter "falling in the realm of a
policy decision" of the first appellant and that there was "nothing
arbitrary about this clause".
On 20th January, 1995, however at a meeting of the senior
officers of the first appellant, it was decided that CPL holders would be on a
training period for two years. On completion of a training period, they would
be placed in the grade of co-pilot on probation for a period of one year. On
satisfactory completion of the probation period, they would be confirmed in the
service of the first appellant with a rider that the services would be
determined if they did not complete their ALTP within five years from the date
of their first solo flight. CPL holders who had already obtained their ALTP and
had been confirmed in service, would be confirmed retrospectively i.e. one year
from their solo flight. CPL holders who had completed their first solo flight
and had been released to fly as a co-pilot, would also stand confirmed only if
they obtained the ALTP within five years of their solo flight. CPL holders who
were on training and who had not yet done their first solo, would be confirmed
only in terms of the decision taken. The seniority of all CPL holders would be
batch wise and would be reckoned from the date of obtaining their ALTP.
writ petitioners were appointed as trainee pilots after 1994 and were confirmed
as co-pilots in September, 1996 with effect from October 1996. Their letters of
confirmation required them to obtain ALTP within a period of five years from
that date failing which their contract of employment would automatically end.
meanwhile on 14th
February, 1995 an
advertisement was issued by the first appellant for appointment as a Co-pilot
(First Officer) and Trainee pilot. The technical qualification required for
Co-Pilots inter alia was possession of an Indian ALTP with 1500 hours minimum
flying experience which should include 500 hours as Pilot in command experience
either on multi engine aircraft or on Turbo-jet aircraft. The Trainee Pilots
were required to be in possession of inter alia an Indian CPL with an
endorsement on a twin engine type aircraft.
to the appellants during this period several Ex- Vayudoot Pilots were absorbed
in the first appellant's service. ALTP holders with 500 hours as pilots in
command were given seniority above co-pilots with CPL who were confirmed as
co-pilots. However they were placed below the officers holding ALTP who were
already serving in the first appellant. The rest which included pilots with
ALTP but without adequate command experience were placed below the first
appellant's trainee pilots holding only CPLs. There is some dispute as to what
actually transpired with regard to the absorption of the Vayudoot pilots in
1995 in the service of the first appellant which is unnecessary to be decided
in view of what we have finally directed.
it is admitted that the dispute of fixation of line seniority of Co-pilots
based on the holding of ALTP or CPL persisted.
matter was referred to a Committee by the second appellant.
Committee gave its opinion in writing on 16th January, 1996 that the policy which was
prevailing was "adequate and correct" in respect of Pilots joining
the first appellant with ALTP. The policy for fixing of seniority of pilots
joining with CPL was also found to be "adequate." The Committee finalised
the seniority list which was then forwarded to the Director of Operations and
it was said that the basis for the seniority list which set out the reasoning of
the Committee should be explained to the new entrants before they joined so
that no representation could be made later.
to the advertisement for co-pilots issued by the first appellant, respondents
Nos. 7 to 12 and eight others who are all ex-Indian Air Force or Navy Pilots
and holders of ALTP licences with 500 flying hours as pilots in command as
advertised, applied for appointments as co-pilots. The 14 pilots (who will be
hereafter referred to as 'Adhikari group') entered service as co-pilots in the
first appellant in November, 1996. Their letters of appointment contained a
clause that they would be subsequently informed as to their seniority.
group filed a writ petition being W.P.(L) No. 1615 of 1997 seeking to enforce
Clause 3(d) of the 1989 settlement. The writ petition was dismissed on 16th October, 1997. The Court held that the 1989
settlement had already been terminated and was "non- existing". It
was noted that negotiations were in progress between the Guild and the first appellant
and that if the petitioner pilots would be aggrieved by any settlement which
may be arrived they could raise a dispute before the Conciliation Officer. The
High Court also said that in case of failure of conciliation, the dispute could
be referred to the National Industrial Tribunal. It was recorded that there was
a pending reference before the Tribunal and that it was "always open to
the petitioners to join in the said reference and raise their demands".
The writ petition was therefore dismissed on the ground that there was an
efficacious alternate remedy. The Adhikari group sought to impugn the order of
the High Court dated 16th
October, 1997 before
this Court by way of a special leave petition.
the special leave petition was pending, on 3rd January, 1998, a settlement was arrived at
between the Guild and the first appellant (referred to as the "1998
settlement"). Several demands relating to the conditions of service of
pilots were decided by the settlement. As far as seniority of the pilots were
concerned, the settlement noted earlier discussions held in 1995 and the
following terms were recorded:
Seniority of Pilots.
xxx xxx xxx
xxx xxx xxx
Based on these discussions, the seniority of trainee Pilots/Co-Pilots has been
determined as an one time exercise as indicated in the Seniority List contained
in Annexure-D and this will not be cited as a precedent in future.
Clause 3(d) of Schedule 2 of Memorandum of Settlement dated July 21st 1989 stands deleted. Henceforth Line
Seniority of Co- pilots joining the company will be based on the date of entry
of the pilot in the grade of a first officer.
D referred to in Clause 7(C)was a seniority list which placed the writ
petitioners at serial Nos. 173 to 178 and the Adhikari group against serial
Nos. 205 to 218.
group withdrew their special leave petitions challenging the order dated 16th October, 1997, stating that "since the
petition before the High Court was premature, they wish to withdraw the present
special leave petition so that they may take appropriate steps later".
They then filed a writ petition being W.P. 2930 of 1999 before the Bombay High
Court challenging Clause 7(C)of the 1998 settlement. The writ petition was
dismissed on 14th
November, 2000. Since
the reasons for such dismissal was to a large extent, the basis of the order
impugned in these appeals, the reasoning is noted in some detail.
order dated 14th November, 2000 the High Court noted that the 1998 settlement
was binding upon all workmen in view of the express provisions of Section 18(3)
of the Industrial Disputes Act, 1947. The court also noted the submission of
the Adhikari group that the 1998 settlement could be challenged on the ground
that the same was unjust, unfair, not bona fide, and had been arrived at on
account of fraud, misrepresentation, concealment of facts or as a result of
corruption and other inducements. The court said that such a challenge could be
the subject matter of yet another industrial dispute but could not be the
subject matter of challenge before the High Court in its writ jurisdiction. The
preliminary objection raised by the first appellant and the Guild that the
issue had already been determined in WP(L) No. 1615 of 1997 in respect of which
the special leave petition had been withdrawn, was rejected because it was held
that "the petitioners may be justified in contending that a fresh cause of
action had arisen". The Court then held:
petitioners may challenge Clause 7(C)of the settlement , if so advised, and if
they are entitled to do so, by raising an industrial dispute. The question as
to whether the settlement is just, fair and bonafide or that it is vitiated by
fraud, misrepresentation or concealment of facts in the first instance, must be
examined by the Industrial Tribunal on a reference being made to it by the
State Government. Of course, the award of the Tribunal may be challenged in a
proceeding under Article 227 of the Constitution of India on the grounds
permissible in law".
the court refused to set aside clause 7(C)of the 1998 Settlement in exercise of
its jurisdiction under Article 226 of the Constitution since:- "it is not
as if the settlement is so blatantly arbitrary, unreasonable or irrational that
the same should be quashed by this Court without any thing more".
come to the conclusion that the court would not interfere with the settlement
in exercise of its writ jurisdiction, the Court also recorded that it was not
inclined to examine the other submissions made on behalf of the Adhikari group
because "those question may have to be raised in an industrial dispute
which may be referred for adjudication by the Tribunal".
also observed that since the Adhikari group had been told in their letters of
appointment that the question of their seniority would be decided later, they
had not acquired any vested right of seniority. The Court said that:
regard to the submissions urged before us, we feel that these are matters which
may require deeper consideration, and it cannot be said that the settlement, on
the face of it, is so arbitrary and unreasonable that it should be quashed
forthwith by this Court in exercise of its writ jurisdiction".
doubt was also expressed as to the claim of the Adhikari group in the following
language:- "The settlement is in the nature of a package deal, and it is
doubtful whether the petitioners can claim the benefits under the settlement
including monetary benefits, and at the same time, challenge only a particular
clause of the settlement".
in dismissing the writ petition the Court said that:
petitioners (i.e. the Adhikari group) must seek their remedy under the
provisions of the Industrial Disputes Act instead of invoking the writ
jurisdiction of this Court under Articles 226 and 227 of the Constitution of
group challenged the order of the High Court in a special leave petition which
however was withdrawn on 19th
March, 2001. The order
of this Court records:
counsel for the petitioners states that the petitioner would be advised to
approach the Industrial
Court in accordance
with the judgment of the High Court and seeks to withdraw the petition. We
record the statement of the learned counsel and dismiss the special leave
petition as withdrawn".
group then filed a complaint before the National Industrial Tribunal (referred
to hereafter as "the Tribunal") in the pending reference being
Reference No. NTB -1 of 1990 under Section 33-A of the Industrial Disputes Act,
1947. (referred to as the 1947 Act) The complaint was opposed both by the first
appellant as well as the Guild on the ground that the dispute relating to the
seniority of co-pilots was not connected with the dispute pending before the
Tribunal and therefore the complaint under Section 33-A of the 1947 Act was not
maintainable. The Adhikari group were advised to withdraw their complaint under
Section 33-A from the Tribunal, which they did.
On 6th October, 2003 they raised a dispute relating to
the fixation of their seniority under the 1998 settlement under Section 12 of
the 1947 Act before the Conciliation Officer. The Conciliation Officer
recommended to the management of the first appellant that considering the
historical background of the question relating to seniority, and since the Adhikari
group had joined on 25th
November, 1996 prior
to the 1998 settlement coming into operation, they should be granted seniority
as claimed by them.
meanwhile on 8th
December, 2000 the
period of five years for CPL Pilots to obtain their ALTP licence was extended
for a period of a further six months. The period of six months was again
extended on 27th June, 2002 upto seven years. The requirement for an ALTP licence
for Co-Pilots was ultimately totally removed by 1st - 2nd August, 2002 when a
decision was taken by the first appellant that "in order to give a fair
and reasonable chance to all co-pilots" the requirement to obtain an ALTP licence
within five years should be removed altogether for all co-pilots. All that was
required was that a co-pilot should be in possession of an ALTP licence by the
time he/she comes up for command training as per line seniority.
group made a representation to the management of the first appellant on the
basis of the recommendation of the Conciliation Officer. The General Manager
(Human Resource Development) supported the representation by his letter dated 20th April, 2004. The Chairman and Managing Director
of the first appellant (who is the second appellant) appointed a four member
Committee to go into the issue. The Committee submitted a lengthy report on 4th June 2004 in which they submitted that the Adhikari
group who had been appointed in November, 1996 should be placed as far as the
line seniority was concerned only below those ALTP Holders who had already
attained command or those who were undergoing command training.
the recommendation of the Committee, acting on the basis of Annexure 'D' to the
1998 settlement read with the instructions dated 1st-2nd August, 2003, letters
for command training were issued to the writ petitioners on 14th September,
2004 by the third appellant viz the General Manager, Operations.
However the second appellant, namely the Chairman of Air India, acting on the basis of the
Committee's Report, passed an order on 23/28th September, 2004 approving the recommendations of
the Committee. According to him, the seniority of the Adhikari group had been
decided "improperly". In the circumstances, the letters issued to the
writ petitioners for command training on 14th September, 2004 were cancelled by the third
appellant on 30th
September, 2004, who
then issued letters of command training on 1st October, 2004, to the respondents 7 to 12.
circumstances, a writ petition (W.P. No. 3108 of 2004) was filed on 5th October, 2004 by the writ petitioners which was
allowed by the High Court on 10th March, 2005
by the order impugned in these appeals.
allowing the writ petition, the High Court accepted the submissions of the writ
petitioners. It rejected preliminary objections raised by the respondents 7-12
and the appellants that the grievance of the writ petitioners as to the alleged
non- implementation of the 1998 Settlement should be decided appropriately
under the Industrial Disputes Act 1947 and not under Article 226, particularly,
since there were disputed questions of fact.
found that there was no factual controversy which justified the Court in
rejecting the writ petition on the ground of an alternative remedy. In the impugned
order large passages of the earlier decision in W.P. No.2930 of 1999 were
quoted extensively after which the learned judges came to the conclusion that
the judgment finally decided the issues between the parties and had not left
them open for adjudication all over again. The earlier decision had reached
finality and could not be reopened. It was held that the respondents 7 to 12
were also barred from raising their grievances by the withdrawal of the
complaint under Section 33A of the 1947 Act. The High Court also held that the
seniority list appended to the 1998 Settlement had been acted upon and
implemented. It was held that the respondents 7 to 12 had the liberty to avail
all legal remedies and having abandoned them, it was not open to them to urge that
the settlement which was in force and implemented from 1998 was vitiated by
fraud and collusion. It held that the Court would not examine allegations of
fraud at the instance of the respondents 7 to 12 as that would, in the High Courts' opinion, amount to entertaining
"a totally distinct grievance based upon independent cause of
action". Finally, the High Court found that the appellants had not been
able to justify their action of withdrawing the letters issued to the writ
petitioners as to their command training. As such, the letters cancelling the
earlier letters directing the writ petitioners to go for command training were
appellants have contended that the seniority of the Adhikari group was
correctly fixed on the basis of the Conciliation Officer's recommendation and
the Committee's Report. The 1998 settlement expressly stated that it would
operate prospectively. In any event Clause 16 of the 1998 settlement provided
for filing of the settlement before the National Industrial Tribunal in the
pending reference and for obtaining of a consent award. This had not been done.
It was submitted by the appellants that the issue of seniority should be left
to the Industrial Tribunal to decide. Till that was done, it was suggested that
as an interim measure, the Adhikari group should be permitted to continue as
commanders but that line seniority according to Annexure D to the 1998
settlement could continue subject to the condition that the writ petitioners
and others placed higher than the Adhikari group in that list would not claim
any compensation for the shortfall under Clause 4(a)(i) and (f)(iv) of the 1998
group have separately challenged the impugned order. They have adopted the
arguments of the appellants. They also said that the settled practice of the
first appellant was that all co-pilots or First Officers had to have ALTPs. CPL
recruits were recruited as trainee pilots only because of pressure from senior
officers of the first appellant whose children had obtained CPLs.
the ALTP always had higher line seniority over the co- pilots already in the
first appellant's employment who did not have ALTP. Therefore seniority was not
on the date of entry into the category of first officer/co-pilots but on the date
of obtaining ALTP.
3(d) of the 1989 settlement provided this and although the settlement was
terminated in 1990 by the Guild, it continued to remain in force till the new
settlement came into effect. This was the law and in fact was given effect to
by the first appellant in their record note of 1995, in the appointment letters
issued to the writ petitioners, when the Vayudoot pilots were absorbed, in the
1995 advertisement, and in various directions and letters of the first
appellant. The High Court also upheld this by its order dated 11.2.1993
dismissing the CPL holders' writ petition in which affidavits had been filed by
the first appellant and the Guild justifying the higher line seniority of the
ALTP holders. Therefore at the time when the Adhikari group were appointed as
co-pilots, the prevailing principle was Clause 3(d) of the 1989 settlement and
the 1998 settlement could not affect their seniority retrospectively. They say
that Annexure D, which was significantly a one time settlement, was the outcome
of nepotism by senior officers of the first appellant and the guild whose
children or close relatives in the employment of the first appellant and
holding CPL licences would benefit thereunder.
the 1998 settlement was not abided by in that the condition for obtaining the
ALTP in five years was done away with. The action of the appellants was
arbitrary, malafide and unjust and violative of Article 14. It was further
contended that the 1998 settlement should not therefore be given effect to. In
any event the Adhikari group had the right to raise an industrial dispute. The
High Court had granted the Adhikari group such right. Their complaint under
Section 33-A of the 1947 Act was an interim application and its withdrawal did
not prejudice their right to raise a dispute before the Conciliation Officer
under Section 12 of that Act. Furthermore, it was argued that the pending
reference related to a dispute between Indian Airlines and its employees and
did not relate to any dispute between Air India and its workmen as held by the Tribunal in its final award. It is
submitted that this Court should hold that the 1998 settlement cannot take away
the Adhikari group's rights of seniority but if the disputes were to be decided
under the 1947 Act, this Court should itself refer the dispute to the Tribunal.
In the meantime they were willing to abide by the interim arrangement suggested
by the appellants.
writ petitioners have said that the issue relating to seniority of ALTP holders
was barred by res judicata since the 1989 settlement had been found to be
"non-existing" in WP (L) No 1615 of 1997. The High Court in its
subsequent decision dated 14.11.2000 had also decided the challenges raised
against the 1998 settlement on merits. Additionally, the Adhikari group had
abandoned their claim before the Tribunal. As far as the first appellant was
concerned, it had supported the 1998 settlement in all the proceedings and
could not be permitted to take a different stand. The fact that the 1998
settlement provided for filing of the award before the Tribunal and the
obtaining of a consent award, was irrelevant since Clause 16 did not make the
operation of the settlement conditional upon the obtaining of a consent award.
the result would be the re-opening of all the terms and conditions taken as
settled and acted upon by the appellants and the Adhikari group which had
additionally received benefits thereunder. It was stated that the 1998
settlement was a valid statutory settlement under Section 18(3) of the 1947
Act. According to the writ petitioners existing Air India pilots as on November 1996 had
already been validly confirmed as co-pilots even though they were CPL holders
before the Adhikari Group were recruited. It was submitted that there were no malafides
attached to the 1998 settlement and that the Adhikari group did not get any
assurance that they would supersede those already in service. They claim that
it is accepted service jurisprudence that generally seniority of batch recruits
is based on the date of entry into service. According to them the 1989
settlement had not been applied to the Vayudoot recruits and was not in force
when the Adhikari group was recruited.
contended that the reference to a one time settlement in Annexure D dealt with
the place of Vayudoot pilots and not to the seniority of the writ petitioners.
They say that the ALTP licence was irrelevant to the fixation of seniority
although it was relevant for the purposes of promotion. It was also contended
that the Adhikari group could not challenge the seniority list in Annexure 'D'
thereto co-laterally in proceedings filed by the writ petitioners. It was
finally submitted that this Court should not refer the dispute between the
parties to the Industrial Tribunal for adjudication especially at the instance
of the respondents 7 to 12 on a writ petition filed by the writ petitioners.
Even if they were permitted to do so in a separate proceeding, till there was a
fresh adjudication, the 1998 settlement would have to operate.
opinion the High Court erred in rejecting the preliminary objection of the respondents
7 to 12 viz. that the writ petitioners
should have been left to pursue their grievance relating to the breach of
Clause 7 (C) of the 1998 settlement before the appropriate forum under the
Industrial Disputes Act, 1947. There was a serious factual controversy as was
noted by the High Court itself in paragraph 22 of its judgment. It had been
contended by the Adhikari group that the 1998 Settlement was vitiated by fraud
and malafides on the part of the office bearers of the Guild and some Officers
of the first appellant. The claim of the Adhikari group which has been
reiterated before us is that senior officers of the Guild and the first
appellant fraudulently agreed to clause 7(C) of the 1998 settlement so that
their sons and daughters who were CPL holders were given undue benefit in
deviation from the established requirements and practice of the first
appellant. Such allegations if proved would be sufficient to set aside the 1998
Settlement in so far as it affected seniority of the Adhikari group. There is a
long line of authority in support of this proposition (See for example Herbertsons
Ltd. V. The Workmen of Herbertsons Ltd. & Anr. (1976) 4 SCC 736, 742; KCP
Ltd. V. Presiding Officer (1996) 10 Rajasthan (2000) 1 SCC 371,393). This was
also the finding of the High Court in W.P.No.2930 of 1999. Sufficient
particulars in support of these allegations had been given. The Conciliation
Officer, the Committee set up by the Chairman of Air India, and the Chairman himself had
founded that an injustice had been done to the Adhikari group. The opinions
expressed have not been held by the High Court to be without substance. Indeed
the High Court did not consider any of this because it was held, incorrectly as
we have held later in our opinion, that the issues raised had been concluded by
the earlier decision of coordinate Benches in W.P.(L ) No.1615 of 1997 and WP
(c ) No. 2930 of 1999.
disputed question of fact will normally arise when a petitioner puts forward a
case on facts which are controverted by the respondents. This is naturally so,
as it cannot be expected that the petitioner will of his, her or its own say
that the facts forming the basis of the claim are disputed. Although it may
happen that the Court on a scrutiny of the nature of the claim made in the
petition may come to a conclusion that the factual issues raised are ex facie
controversial and decline, in limine, to exercise jurisdiction under Art. 226,
nevertheless the controversy usually surfaces after the respondents have had an
opportunity of giving their version of the matter. That was what happened in
the present case. The writ petitioners rested their case on clause 7(C)read
with Annexure D to the 1998 settlement. The respondents pleaded that the
settlement was vitiated by fraud. Obviously, the burden of proving this would
be on the respondents. No court or tribunal has tested the allegations made by
the Adhikari group on merits till today. The High Court shut out the
allegations altogether for two reasons. The first reason was that it would
amount to entertaining a separate cause of action.
conclusion was erroneous as it was based on a confusion between onus of proof
and cause of action. Corpn. of India & Ors. (2004) 3 SCC 553, the dispute
was limited to an interpretation of the terms of a contract of insurance and an
export contract. Counsel for the respondent contended that for a correct
interpretation of the clauses of the contracts there was need for oral evidence
being led without which a proper interpretation of the clauses was not
possible, and therefore, it was a fit case in which the appellants should be
directed to approach the civil court to establish their claim. This Court
construed the clauses of the contracts and said that there was no room for a
second or other construction. It was noted (and as we would like to emphasise)
that there was no allegation that the contracts in question were obtained
either by fraud or by misrepresentation. In such factual situation, this Court
was of the opinion that the facts of the case did not and should not inhibit
the High Court or this Court from granting the relief sought for by the
petitioner. In other words, merely because the respondents want to dispute a construction
to be placed on a clause of a contract, it would not become a disputed question
of fact. On the other hand, if there are allegations of fraud,
misrepresentation etc. it may be a disputed question of fact and the High Court
should not go into the same but allow the parties to approach the alternative
forum legally available.
second reason given by the High Court (which has also been the writ
petitioners' submission before us) was that all the issues raised by the
respondents 7 to 12 had been finally decided by the earlier decisions dated
16th October, 1997 in WP (C)No.1645 of 1997 and 14th November, 2000 in W.P.
No.2930 of 1999. Doubtless the High Court in its order dated 16th October 1997
had opined that the 1989 settlement was "non-existing". The
observation was manifestly erroneous in view of this Court's expressed in Life
SCC 315 to the following effect:- "Once the earlier contract is
extinguished and fresh conditions of service are created by the award or the
settlement, the inevitable consequence is that even though the period of
operation and the span of binding force expire, on the notice to terminate the
contract being given, the said contract continues to govern the relations
between the parties until a new agreement by way of settlement or statutory
contract by the force of an award takes its place". (pg348) Although the
view expressed in W.P (L)No.1615 of 1997 is erroneous, nevertheless, the
question whether the 1989 settlement can found an enforceable right in the
respondents 7 to 12 is concluded against them. But the decision would not debar
the raising of a dispute that the 1998 settlement was vitiated by fraud,
corruption as the settlement was entered into after those proceedings were
concluded before the High Court. Furthermore, although the decision precludes
the Adhikari group from claiming a right under the 1989 settlement, they can
certainly rely upon it as evidencing a continuation of an established practice
and requirement. It would also be open to the Adhikari group to rely on all
other factors in support of their claim for seniority over the CPL holders.
decision in W.P. No.2930 of 1999, however, the High Court had not held that one
clause in the Settlement cannot be challenged in isolation. A doubt had merely
been expressed but no firm conclusion had been arrived. Nor had the Court
decided the merits of the Adhikari group's grievance at all. What the High
Court had in fact decided was that the issues of fraud etc. raised could not be
decided in exercise of the Court's jurisdiction under Article 226.
expressly left the issues to be decided on a deeper consideration by the
Industrial Tribunal. This is abundantly clear from the passages from the
judgment dated 14th November, 2000 quoted by us.
error in the decision impugned before us was the refusal to allow the
respondents 7 to 12 to raise their claim regarding their seniority because they
had withdrawn their complaint under Section 33A of the Industrial Disputes Act
1947. It is nobody's case that the complaint of the Adhikari group under
Section 33A was legally maintainable in Reference No. NTB 1 of 1990. In fact
both the first appellant and the Guild had opposed the complaint on this
ground. Section 33A allows a complaint to be filed in a pending reference where
an employer contravenes the provisions of Section 33 of the 1947 Act during the
pendency of proceedings pursuant to a reference under Section 10(1) of the 1947
Act. The relevant portion in Section 33(1)(a) prohibits an employer from
altering, to the prejudice of the "workmen concerned in such
dispute", the conditions of service applicable to them immediately before
the commencement of the proceeding.
was no pending proceeding relating to any dispute between Air India and its
workmen in which the Adhikari group could have filed a complaint under Section
33A. The dispute which was pending before the Tribunal in Reference No. NTB-1
of 1990 did not relate to a dispute between the first appellant and its
workmen. It related to a dispute between Indian Airlines and its workmen
basically on the question whether the latter were entitled to the same terms
and conditions of service as the employees of the first appellant. The award
which has since been made on the reference by the Tribunal also records:
reference cannot cover any industrial dispute between Air India and its workmen
as the order of the Central Govt. is confined to dispute between (Indian)
Airlines and its workmen".
these circumstances the withdrawal of the complaint under Section 33A did not
debar the Adhikari group from raising a fresh industrial dispute. That is what
the Adhikari group has sought to do.
approached the Conciliation Officer. The claim is said to have been
investigated by the Conciliation Officer, whose duty is to try and affect a
fair and amicable settlement of disputes, under Section 12(2) of the 1947 Act.
A recommendation was made by the Conciliation Officer to the first appellant.
Since the recommendation for conciliation has been accepted by the management of
the first appellant, there was no question of the Conciliation Officer
reporting a failure of settlement under Section 12(4) to enable the appropriate
Government to make a reference to an Industrial Tribunal under Section 12(5).
Whether by this process, clause 7(C)and Annexure D to the 1998 settlement could
be altered is again a question requiring resolution by the appropriate forum
under the 1947 Act.
the High Court in the impugned judgment concluded that Annexure D to the 1998
Settlement had been acted upon and implemented, it did not discuss any fact in
support of this conclusion. Besides, the High Court's decision that there was
"no dispute that the writ petitioners are senior in the list and seniority
over and above respondents 4 to 9" was in the circumstances narrated,
factually wrong. But assuming the conclusion was correct, nevertheless, having
regard to the decisions of this Court earlier noted, it is still open for the Adhikari
group to challenge the 1998 Settlement on the ground of lack of bonafides,
arbitrariness, fraud etc. Such a challenge to the 1998 Settlement cannot ofcourse
be decided in a writ proceeding as has been already held by the High Court
W.P.2930 of 1999.
to the appellants and the Adhikari group, the 1998 Settlement cannot in any
event be termed to be a final settlement under Section 18(3) of the Industrial
Disputes Act, 1947 because of Clause (16) to the 1998 Settlement which
Both the parties agree that this settlement will be filed before the Hon'ble
National Industrial Tribunal, in the pending reference No.NTB-1 of 1990 and
Consent Award will be obtained accordingly." Admittedly, the 1998
Settlement was not filed as envisaged nor was a consent award obtained although
this point was not raised in WP 2930 of 1999. But the issue has been concluded
against the respondents 7 to 12 by the order dated 14th November 2000 in W.P.
No. 2930 of 1999 which said that the 1998 settlement was a settlement under
Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within
the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least
between the CPL Holders and the Adhikari group as to whether the 1998
Settlement despite being under Section 18(3), was invalidated because of the
alleged circumstances under which it was arrived at. Additionally, the Adhikari
group may at least contend that the subsequent modifications to Clause 7(C)of
the 1998 settlement modifying and ultimately doing away with the requirement of
an ALTP was not valid and did not form part of the settlement under Section
18(3). All these disputes are appropriately adjudicatable by an Industrial
Tribunal under the 1947 Act.
High Court's decision allowing the writ petition was based on reasons which we
cannot sustain. Consequently its conclusion that the issue of seniority between
the respondents 7 to 12 and the writ petitioners was concluded was also
the question whether the letters issued by the respondent No. 3 cancelling the
letters for command training issued to the writ petitioners could have been
validly issued is, along with other issues raised between the parties, still at
large and will ultimately have to be decided by a competent Industrial Forum as
had been rightly held by the earlier decision of the High Court in W.P. No.2930
present, we have two alternatives open to us. We may set aside the impugned
decision of the High Court and allow the appeal by dismissing the writ petition
leaving the parties to have their disputes thrashed out before the Industrial
Forum. This would entail raising a dispute and an order for reference being
passed under Section 10(1) of the `1947 Act by the appropriate Government. We
may on the other hand formulate the dispute ourselves directing the parties to
move the appropriate Government for an order of reference. It is the latter
course which has been urged by the appellants and the respondents 7 to 12
relying on a decision of this Court in Hindustan Steel Works Construction Ltd.
Union JT 2005 (7) SC 273.
no reason to take a different view from the opinion expressed in that case
particularly having regard to the need to avoid industrial unrest in connection
with the national Airlines. Apart from the fact that the Adhikari group have
been agitating their grievance since 1997, the issue of inter-se seniority
among the pilots needs to be resolved expeditiously since that would in turn
involve issues of command of passenger flights and ofcourse, possible demands
of shortfall. But before so directing there is yet another question that needs
to be addressed viz. what would be the interim arrangement pending adjudication
of the disputes by the Industrial Tribunal.
the special leave petitions were filed by the appellants and the respondents 7
to 12 before this Court we had recorded on 25th April, 2004 that "pilots,
as well as co-pilots have been sent in the command training" (sic). The
intention was to record that pilots of the Adhikari group and the writ
petitioners had been sent for command training. In fact the High Court while
quashing the letters of cancellation noted that six pilots of the Adhikari group(
respondents 7 to 12) had already been sent for command training and that they
need not be recalled. However it was clarified that this direction did not
alter their position in the line seniority list.
the pendency of these proceedings six more pilots of the Adhikari group as well
as the writ petitioners have been sent for command training and have presumably
completed it by the date of this judgment. The remaining two pilots of the Adhikari
group, according to the Adhikari Group, have also been cleared for command
training in the meanwhile and have started preliminary training earlier this
month. We are of the view that the Adhikari group should be permitted to
complete their command training.
have already noted that the appellants and the Adhikari group are agreeable
that in the meanwhile clause 7(C)and Annexure D to the 1998 settlement would
continue to operate but that the writ petitioners should not claim the
shortfall under the 1998 Settlement. It seems an eminently fair suggestion
except that any amount due on account of shortfall arising out of this
arrangement must be deposited by the appellants in the Industrial Court which
will keep the same in fixed deposit with any nationalized bank subject to any
award, interim or final, that may be passed by the Tribunal.
therefore, set aside the decision of the High Court and allow the appeals. It
is directed that the appropriate Government shall refer the following questions
for adjudication by the appropriate Tribunal:
Whether the 1998 settlement or any portion thereof is liable to be set aside on
the grounds of fraud, undue influence etc. as alleged by the Adhikari group?
Whether the requirement of the ALTP licence was necessary for co-pilots?
Whether the Adhikari group was entitled to seniority over the CPL Holders in
the line seniority list?
What is the legal effect of the Conciliation Officer's recommendation of the Adhikari
groups case and Air India's acceptance thereof?
what relief are the parties entitled?
the parties to these appeals viz. the Adhikari group or the writ petitioners
and their colleagues or Air India may move the appropriate Government for the
order of reference with a copy of our judgment. Till the disputes are
adjudicated by the Tribunal, the interim arrangement as decided in an earlier
part of this judgment shall operate. The costs of these appeals will follow the
cause in the reference proceedings.