Air
India & Ors etc. Vs. B.R. Age & Ors [1995] INSC 546 (10 October 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Agrawal, S.C.
(J) B.P. Jeevan Reddy. J.
CITATION:
1996 AIR 276 1995 SCC (6) 359 JT 1995 (7) 217 1995 SCALE (5)645
ACT:
HEAD NOTE:
Civil
Appeal Nos.325 and 551 of 1981 are preferred against the judgment of a learned
Single Judge of the Bombay High Court allowing the writ petition filed by
respondents, B.R.Age and others, and quashing the directions given by the
Central Government on July 23,1975 to Air India to provide reservation for
Scheduled Castes and Scheduled Tribes in the services under the Corporation.
The directions were issued under Section 34(1) of the Air Corporations Act,
1953. The directions are very elaborate in nature, the sum and substance
whereof is to provide reservations in the matter of appointments or posts under
the Corporation. The respondents-writ petitioners contended before the Bombay
High Court that the directions so given are ultravires the powers of the Central
Government, not being within the ambit of Section 34(1) of the said Act. They
submitted that the said directions cannot also be justified with reference to
clause (4) of Article 16 of the Constitution inasmuch as before giving the said
directions, the Central Government had not formed the requisite satisfaction
that the members of Scheduled Castes and Scheduled Tribes are not adequately
represented in the services under the Corporation. The learned Judge has
quashed the directions only on the first ground. He did not go into the
question whether the said directions are warranted by clause (4) of Article 16
of the Constitution. Civil Appeal No.325 of 1981 is preferred by Air India while Civil Appeal No.551 of 1981
is preferred by the employees of Air India belonging to Scheduled Castes.
The
Union of India is supporting them in these appeals. Writ Petition (C)
Nos.145-148 of 1980 are filed under Article 32 of the Constitution challenging
the constitutional validity of the very same directions issued by the Central
Government.
Section
34(1) of the Air Corporations Act reads thus:
"34(1).
The Central Government may give to either of the Corporations directions as to
the exercise and performance by the Corporation of its functions, and the
Corporation shall be bound to give effect to any such directions." The
High Court was of the view that the power under the said provision is confined
to giving directions only with respect to "the exercise and performance by
the Corporation of its functions" and that the expression
"functions" in the said provision should be understood in the light
of Section 7 of the Act which sets out the functions of the Corporations.
The
High Court opined that since regulating the conditions of service of its
employees is not a matter specified in Section 7, the said directions are
beyond the authority of the Central Government. In short, the High Court
understood the functions of the Corporation as confined to those mentioned in
Section 7 alone. We are unable to agree.
It is
true that Section 7 does set out the "functions of the Corporation"
but it would be erroneous to think that the Corporation has no other functions
except those specified in Section 7. The Air Corporations Act speaks of the
functions, duties and powers of the Corporation but as we shall demonstrate
presently, powers and functions are used as interchangeable expressions.
Section 45 empowers the Corporation to make regulations not inconsistent with
the Act or the rules made under Section 44 for the administration of the
affairs of the Corporation and for carrying out its functions. Sub-section (2)
of Section 45 specifies the matters with respect to which regulations can be
made under the said section. Sub-section (2), insofar as it is relevant, reads
thus:
"45(2).
In particular and without prejudice to the generality of the foregoing power,
any such regulations may provide for all or any of the following matters,
namely:-- (b) the terms and conditions of service of officers and other
employees of the Corporation other than the managing director and officers of
any other categories referred to in section 44." Regulating the service
conditions of its employees is referred to as a power in Section 45, but one
may ask, is it not its function as well. Be that as it may, the very language
employed in Section 7 establishes that both the expressions were used by the
Parliament, in this enactment, as interchangeable concepts. Sub-section (1) and
sub-section (2) of Section 7, insofar as relevant, read thus:
"7.
Functions of the Corporations.--(1) Subject to the rules, if any, made by the
Central Government in this behalf, it shall be the function of each of the
Corporations to provide, safe, efficient, adequate, econominal and properly co-ordinated
air transport services, whether internal or international or both, and the
Corporations shall so exercise their powers as to secure that the air transport
services are developed to the best advantage and, in particular, so exercise
those powers as to secure that the services are provided at reasonable charges.
(2)
Without prejudice to the generality of the powers conferred by sub-section (1),
each of the Corporations shall, in particular, have power--" (Emphasis
added) The first part of sub-section (1) of Section 7 speaks of the functions of
the Corporation while the latter part speaks of the powers of the Corporation
being exercised for a proper performance of its functions. So far so good. But
then sub-section (2) refers to the functions in sub-section (1) as powers
conferred upon the Corporation. It must be remembered that Section 7(1) does
not purport to confer any powers upon the Corporation; it only sets out its
functions and then says that the Corporation shall exercise its powers so as to
perform its functions effectively. Thus, when sub- section (2) speaks of powers
conferred by sub-section (1), it is obviously speaking of the functions of the
Corporation but referring to them as "powers". It indeed seeks to
confer some more powers upon the Corporation, viz., those specified in clauses
(a) to (1). Clauses (a) to (1) are indeed an elaboration and particularisation
of the functions referred to sub-section (1). The language employed in
sub-section (2) of Section 7 thus demolishes the distinction sought to be drawn
between powers and functions of the Corporation. To reiterate, it is erroneous
to think that the Corporation has no other functions except those specified in
Section 7. In the context of the Air Corporations Act, the distinction sought
to be drawn between the powers and functions is unsustainable and unreal. A
reference to certain other provisions of the Act including Sections 15 and 15-A
goes indeed to reinforce this view. Once we arrive at this conclusion, it
follows that the directions in question do pertain to "the exercise and
performance by the Corporation of its functions" within the meaning of
Section 34(1) and, therefore, valid.
Sri Bhat,
learned counsel for the appellant-Corporation submitted further that the Air
India Corporation being a "State" within the meaning of Article 12,
it is bound by the discipline of and the commands of Part-III of the
Constitution which contains Article 16(4). What the Central Government did by
way of the impugned directions, he says, was only to remind the Corporation of
its obligation under Article 16(4) and no more. In view of the opinion
expressed by us on the meaning and content of Section 34(1), we need not
express any opinion of this submission.
For
the above reasons, the appeals are allowed, the judgment under appeal is set
aside and the directions issued by the Central Government which were impugned
in the Writ Petition (C) No.1279 of 1978 on the file of the Bombay High Court
are held to be within the four corners of Section 34(1) of the Air Corporations
Act and, therefore, valid and effective. For the same reasons, Writ Petition
(C) Nos.145- 148 of 1980 are dismissed. No costs.
Back