Chairman
& Managing Director, India Airlines Vs. Binod Kumar Sinha
& Ors [2001] Insc 525 (4 October 2001)
S. Rajendra
Babu & Doraiswamy Raju Rajendra Babu, J. :
[WITH
CIVIL APPEAL NOS. 1459-1459A/94]
J U D
G M E N T
These
appeals arise out of an order made by the High Court of Calcutta in writ
petition Nos. 488/1993 and 489/1993 filed in the High Court challenging the
validity of Regulation 13(b), substituted by notification No. S.O. 134/(E)
dated March 15, 1993, of the Indian Airlines Employees (Aircraft Engineering
Department) Service Regulations, 1959 [for short the Regulations], which
provides that no employee shall resign from employment of the Corporation
without giving six months notice in writing to the Corporation of his/her
intention to resign with provision for Managing Director of the Corporation to
dispense with or reduce the period of notice on medical grounds or other
special circumstances. A further proviso being to the effect that Corporation
may refuse to accept termination if the same is sought to avoid disciplinary
action contemplated or taken and a circular No AIC/3/93 dated February 25, 1993
was issued by the Director General of Civil Aviation (DGCA) by which a
condition was added in relation to Air Taxi operator to the effect that no Air
Taxi operator shall employ anyone already serving any of the national carriers,
namely, Air India, Indian Airlines, Vayudoot and Pawan Hans without obtaining a
No Objection Certificate from the employer with whom they are working.
The
writ petitions were filed by a Commander Pilot working under the Indian
Airlines Corporation. He had been offered the post of Commander Pilot under M/s
Damania Travels but on account of Regulation 13(b) and circular No AIC/3/93
dated February 25, 1993 the respondent could not join the
new post immediately which had placed an embargo on his employment and thus he
sought for an interim order. A learned Single Judge of the High Court held that
the matter cannot be effectively decided without the presence of M/s Damania
Travels, namely, the writ petitioners prospective employer, and M/s Damania
Travels was directed to be added as a party. Even thereafter the learned Single
Judge refused to grant the interim order. The respondents preferred appeals
against the said order of the learned Single Judge but on noticing that it
would be more appropriate to dispose of the main matter itself, the Division
Bench of the High Court disposed of the writ petitions along with the appeals
arising out of the refusal to grant the interim orders thus necessitating these
appeals by special leave.
Original
Regulation 13(b) provided that a Pilot could resign from his service after
giving 30 days notice or offering one months basic pay to the employer in lieu
of the said 30 days notice . However, in view of the substitution of Regulation
13(b) by notification No. S.O. 134/(E) dated March 15, 1993, the respondent offered to quit the post but the
appellant-Airlines did not allow the release of the respondent. The High Court
examined in great detail the scope of the provisions of the Air Corporations
Act, 1953 [hereinafter referred to as the Air Corporations Act] and the Rules
framed thereunder with reference to the Regulation in question. The High Court
discussed various aspects of the matter, however, it did not deal with the
challenge to the validity of Regulation 13(b), as such. Even after very careful
examination of the order of the High Court, we do not find any discussion or
consideration on the question of validity of Regulation 13(b) in the entire order,
except to allow the writ petitions in their entirety. When the contentions put
forth on behalf of the parties or the arguments put forth by the learned
Counsel on this aspect were not considered by the High Court, much less any
reasons given in the order, we do not think, the High Court could have quashed
the said Regulation. We do not wish to express any opinion on the validity or
otherwise of the said Regulation inasmuch as the same has not been considered
by the High Court in the impugned order, except observing that the High Court
has not considered the same or decided the matter. Thus the relief granted by
the High Court in quashing Regulation 13(b) shall stand set aside. The question
whether the Regulation 13(b) is valid or otherwise is kept open to be
considered in a proceeding that may arise hereafter. We are doing so
particularly in view of the fact that the respondents who obtained the relief
at the hands of the High Court have remained ex parte in these proceedings. We
had to request Shri V.R. Reddy, the learned Senior Advocate, to assist the
Court as Amicus Curiae, who has made very valuable contribution to the debate
and we are beholden to him.
The
relevant portion of the Circular AIC/3/93 dated February 25, 1993, as substituted, reads as follows :
No Air
Taxi Operator shall employ anyone already serving any of the national Carriers,
namely, Air India, Indian Airlines, Vayudoot and Pawan Hans without obtaining a
No Objection Certificate from the employers with whom they are working. They
shall further submit to DGCA a monthly return on pilots/engineers employed by
them in a specified proforma.
On
behalf of the respondents it was contended before the High Court that :
(1)
The directions contained in the impugned amendment of AIC No. 24 of 1990 by AIC
No. 3 of 1993 dated February 25, 1993 is ultra vires the powers of the DGCA
inasmuch as neither Section 5 nor Section 5A of the 1994 Act nor sub-rule 3 of
Rule 134 of the Aircraft Rules, 1937 confers any such power to issue any such
directions since the impugned AIC No. 3 of 1993 is a direction upon the Air
Taxi Operator not to employ one serving any of the national carriers including
Indian Airlines without obtaining a No Objection Certificate from the employer
and such direction was not given under any of the statutory provision which
were identified as the source of power by the Government.
(2)
The embargo placed on the employees of the national carriers does not have any
nexus with the safety of the Aircraft operation and safety of Aircraft operation
units normal connotation would relate to the technical/mechanical safeguards
for safe Aircraft operation. The safety of Aircraft operation has no relevance
to Airtransport Services and the DGCA cannot exercise any power under Section
5A to give a direction in relation to Airtransport Services.
(3) At
any rate, the direction contained in AIC No. 3 of 1993 is unconstitutional and
void as it offends Article 14 of the Constitution as no guidelines are provided
for withholding or granting No Objection Certificate;
(4)
The impugned circular interferes with the freedom of a person to engage himself
in any work which he chooses and insistence upon obtaining No Objection
Certificate would amount to compelling a person to work under an employer which
would amount to forced labour or begar which is violative of Article 23 of the
Constitution.
Further,
such imposition would affect Article 21 of the Constitution which includes the
right to livelihood which connotes not merely animal existence but leading a
life with dignity;
(5)
The impugned circular is violative of Article 19(1)(g) of the Constitution
which enables a citizen to carry on any occupation of his choice and that right
can be subjected only to reasonable restrictions and such reasonable
restrictions can be made only by law;
(6)
The impugned circular is also violative of Article 16 of the Constitution which
provides equality in the matter of public appointment and the impugned circular
has arbitrarily selected a class of citizens, that is, those who are serving in
the Indian Airlines, among other national carriers, have to obtain No Objection
Certificate before leaving Indian Airlines to join Air Taxi Operators. However,
there is no such embargo on other persons who are serving in foreign airlines
or in a Government Corporation and who want to join Air Taxi Operators.
The
High Court is impressed with each one of these contentions in allowing the writ
petitions.
The
learned Additional Solicitor General contended that the Air Craft Act provides
for control of operation of aircraft and Section 5(1) thereof imposes a duty on
the Central Government to secure the safety of aircraft operations and this
Section enables the Central Government to make rules for the purpose of
fulfilling the said objects or duty; that Section 5(2) of the said Act sets out
various specific instances for exercise of powers under Section 5(1) in order
to effectively fulfil the duty of care imposed on the Central Government under
the said provision for securing the safety of Aircraft operations; that under
Aircraft Rules, Rule 134 has been framed and sub-rule (3) thereof provides that
air transport service shall be operated only with special permission of the
Central Government and subject to such terms and conditions as it may think fit
to impose in each case; that Section 18 of the Air Corporations Act reserved
scheduled air transport services to the Indian Airlines Corporation and Air
India Corporation and the addition of sub-para XIV in para 9 to the AIC No. 24
of 1990 is an instance of exercise of power under Section 5A of the said Act;
that a duty is cast on the Government to provide safe, efficient, adequate,
economical and properly co-ordinated air transport services so as to secure
that the air transport services are developed to the best advantage and in
particular secure that the services are provided on reasonable charges; that in
obedience to the said duty enshrined in Section 7 of the Air Corporations Act,
Indian Airlines is required to and does provide air transport services all over
the country including far flung and uneconomical sectors as well inasmuch as
Indian Airlines as a public carrier is required by law to provide its services
which are not only safe, efficient and adequate but have also to be economical,
properly co-ordinated and charged with reasonable fares it cannot conduct
itself like a private taxi operator in disregard of its social obligations so
clearly spelt out and mandated in Section 7 of the Air Corporations Act; that
in the very nature of things, therefore, the Indian Airlines must equip itself
with trained and efficient manpower vital for discharge of its obligations in
law and the Air Corporations Act, therefore, provides for certain terms and
conditions in relations to officers and other employees who can be appointed in
the Corporations under Section 8 of the Air Corporations Act; that Regulation
13 has been framed in exercise of powers conferred by clause (b) of sub-section
(2) of Section 45 of the Air Corporations Act as a measure of safeguard. He,
therefore, strongly contended that the view taken by the High Court is
incorrect.
Shri
V.R. Reddy, learned Senior Advocate appearing as Amicus Curiae, supported the
view taken by the High Court and elaborated the various facets of the matter
which are not very clear from the judgment of the High Court by reference to
the provisions of the Air Craft Act, the Air Corporations Act and the pleadings
and relevant enunciation of law made by this Court.
Rules
can be framed under Section 5 of the Air Craft Act and the Aircraft Rules [for
short the Rules] have been framed. Rule 134 thereof provides as under :-
134.
Air Transport Services-
(1)
Except as provided in the Air Corporations Act, 1953 (27 of 1953) it shall not
be lawful for any person other than the Corporation or their associates to
operate any scheduled air transport service from, to, in, or across India:
Provided
that the Central Government may, in accordance with and subject to the
provisions contained in Scheduled XI, permit any person to operate any
scheduled air transport service, not for the time being operated by the
Corporations or their associates.
(2)
The Central Government may permit any air transport undertaking of which the
principal place of business is in any country outside India to operate an air
transport service from to, or across India in accordance with the terms of any
agreement for the time being in force between the Government of India and the
Government of that Country, or, where there is no such agreement, of a
temporary authorization by the Government of India.
(3) No
air transport service, other than a scheduled air transport service or an air
transport service, to which the provisions of sub-rule (1) or (2) apply, shall
be operated except with the special permission of the Central Government and
subject to such terms and conditions as it may think fit to impose in each
case.
Under
Rule 133A of the Rules the DGCA is empowered to issue notices to the Aircraft
Owners and Maintenance Engineers and special directions not inconsistent with
the Air Craft Act or the Rules relating to the operation, use, possession,
maintenance or navigation of aircraft flying in or over India or of aircraft
registered in India.
In the
present case, permits have been granted to operate scheduled air transport
services within India in terms of Rule 134 referred to above and such permits
provide as under:
The
validity of this Permit is subject to compliance with all the relevant rules,
regulations and also the conditions appended hereto and any additional
conditions which may be imposed by the Government or the Director General from
time to time. Breach of any of the rules, regulations or conditions shall
render this Permit liable to suspension/cancellation.
[emphasis
supplied] Permits have been issued under Rule 134 of the Rules subject to the
conditions imposed therein and one of the conditions is that such additional
conditions which may be imposed by the Government or DGCA from time to time, as
is clear from the permit itself. The condition now imposed by the impugned
circular can be traced to this empowerment available under the said permit. If
the permit itself enables the Government or DGCA to impose the conditions, it
is very difficult to envisage that such power will have to be traced to any
other provision of the Air Craft Act or the Rules.
However,
the arguments advanced on the other side is that the condition imposed in the
impugned circular does not subserve the purposes of the enactment nor falls
within its scope. We may state that the power has been exercised by the
Government in framing Rule 134 which enables the operation of an air transport
service by an undertaking other than the scheduled air transport service or a
foreign air transport service and that special permission of the Central
Government is subject to such terms and conditions as it may think fit to
impose in each case. And one of those conditions is as is referred to earlier
enabling the DGCA to impose appropriate conditions. Therefore, it is difficult
to accept the arguments that the impugned circular has been issued without any
power or authority under the Air Craft Act or the Rules. All arguments
addressed in this behalf ignore this factual aspect and hence the findings
recorded by the High Court to the contrary are not well founded.
The
validity of Rule 134 of the Rules is not in challenge. What is in challenge is
only circular No. AIC/3/93 dated February 25, 1993 issued by the DGCA. Rule 134(1) debars any person other
than the Corporation for operating Air Transport Service, while Rule 134(3)
provides that the permits can be granted subject to certain terms and
conditions and those terms and conditions, in turn, include a condition of
further terms and conditions being imposed by the Government or DGCA. The
objective of Rule 134 is not only based on the Air Craft Act but also on
various provisions of the Air Corporations Act. The Air Corporations Act
provides for establishment of Air Corporations to facilitate the proper,
economic and efficient services and the function of the Corporations is to
provide safe, efficient, adequate, economical 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 advantages and that the services are
provided at reasonable charges. Rule 134(1) in carrying at these objectives
clearly debars any person other than a Corporation or its associates to operate
any scheduled air transport service. While Rule 134(3) makes other air
transport services being permitted subject to conditions to be imposed by
Government or DGCA to which we have already adverted to. If the effect of
clause (1) of Rule 134 is borne in mind it cannot be said that these objectives
are out of place in interpreting the effect of sub-rule (3) of Rule 134. Viewed
from that angle, we think, the circular in question falls within the scope of
the enactment and the Rules made therein.
Now,
what needs to be examined is whether the circular issued offends any of the
provisions of the Constitution or such embargo has any nexus with the safety of
the air craft operation and has any relevance to the air transport services.
The
arguments on behalf of the writ petitioners are based on Articles 14, 19(1)(g),
16, 21 and 23 of the Constitution only with reference to the implication
arising out of the embargo imposed upon the employees of the national carriers
that they cannot resign from employment except after a notice of six months as
provided for in Regulation 13(b) framed under the Air Corporations Act. If in
violation of such conditions, employees of the national carriers can leave
their employment and join the employment in any other air service is a matter
affecting the operation of the air carriers and, therefore, to give effect to
that objective underlying Regulation 13(b) if the circular is issued, we cannot
term it to be invalid. If the provision of Regulation 13(b) is valid in law and
in violation of which an employee seeks to join employment with an air taxi
operator, the restriction in the circular cannot be an infringement of his
rights arising under Articles 14, 16, 19(1)(g), 21 and 23 of the Constitution.
The argument to the contrary is far-fetched because an employee when joins
service is subject to certain terms and conditions of service and he cannot
quit the employment without giving requisite notice to the employer. But what
should be the duration of a reasonable notice in such circumstances is a matter
to be decided in each case depending upon the exigencies, needs or necessities
and the essentiality of the service concerned. In the present case, no such
exercise has been done by the High Court to find out whether Regulation 13(b)
is valid or not. When validity or scope of that Regulation has not been
examined, the impact of the Regulation on the circular also could not be
examined. The High Court completely went off the track in examining the broad
questions arising under Articles 14, 16, 19(1)(g), 21 and 23 of the
Constitution. If a person is in employment he is certainly subject to certain
terms and conditions and he can quit his employment under those terms and
conditions only which cannot be stated to be violative of Articles 14, 16, 21
and 23, much less Article 19(1)(g) of the Constitution unless on examination
such conditions are held invalid.
The
argument that the embargo is only upon the Air Taxi Operators and not upon
other employers is misconceived because there is no material to indicate as to
what is the position in relation to each one of these other organisations is
and whether any permit as contemplated under Rule 134 is granted to them or not
and when the direction is issued only to such permit holders as falling within
the scope of Rule 134(3) forming a separate class and that class alone is
subject to the present treatment cannot be violation of Article 14.
We are
also not impressed with the view taken by the High Court that the negative
covenant of not being employed would be attracted in a case of this nature
because during employment certainly an obligation can be placed upon an
employee that he shall not be employed by any other organisation or institution
and it neither offends Article 19(1)(g) nor the provisions of the Contract Act.
Hence,
none of the reasons set forth by the High Court are tenable and, therefore, the
order made by the High Court needs to be set aside.
Further
we must notice that during the pendency of these proceedings Air Corporations
(Transfer of Undertakings and Repeal) Act, 1994 (Act 13 of 1994) has come into
force and we have not examined the scope of the impact of the repeal of the Air
Corporations Act upon the scope of circular in question since at the time of
the issue of the circular and at the time when the High Court considered the
matter, the said enactment had not come into force.
The
appeals are allowed accordingly. No costs.
..J.
[ S.
RAJENDRA BABU ] ..J.
[
DORAISWAMY RAJU ] OCTOBER
04, 2001.
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