M/s. Delhi
International Airport Pvt. Ltd. Vs. Union of India & Others
M/s. Delhi
International Airport Limited Vs. Indira Gandhi Airport TDI Karamchari Union
& Ors.
Airport Authority of
India Vs. Indira Gandhi Airport TDI Karamchari Union & Ors
Airport Authority of
India Vs. Union of India & Ors
Indira Gandhi Airport
TDI Karamchari Union Vs. Union of India & Ors.
Airport Authority of
India Vs. Union of India & Ors.
J U D G M E N T
Dalveer Bhandari, J.
1.
Leave
granted in all the Special Leave Petitions.
2.
These
appeals emanate from the judgment of the High Court of Delhi delivered in LPA
No.38 of 2007, LPA No.1065 of 2007, Writ Petition (C) No.139 of 2008 and Writ Petition
(C) No.6763 of 2008 on December 18, 2009.
3.
The
short question which arises for consideration in these appeals is whether the Notification
dated 26th July, 2004 issued by the Central Government under Section 10 (1) of the
Contract Labour (Regulation and Abolition) Act, 1970 (for short, `CLRAA')
prohibiting employment of contract labour of trolley retrievals in the establishment
of the Airport Authority of India (for short, `AAI') at the Indira Gandhi
International Airport and Domestic Airport at Delhi would be applicable to the Delhi
International Airport Private Limited (for short, `DIAL') or not?
4.
This
judgment would decide these appeals preferred before this Court against the
following Letters Patent Appeals and Writ Petitions decided by the High
Court:a) Indira Gandhi International Airport TDI Karamchari Union v. Union of India
and others - LPA No.38 of 2007 This Letters Patent Appeal was filed against the
judgment of the learned Single Judge dated 28th November, 2006 in Writ 2Petition
(C) No.15156 of 2006. The workers' Union had preferred the writ petition for seeking
implementation of the Notification of prohibition dated 26th July, 2004 and for
absorption in service amongst other things. The learned Single Judge took
notice of the fact that from 4th April, 2006 a new private entity, DIAL had
taken over the Airports (Domestic and International).
Hence at the airport,
there was no longer any establishment of AAI existing but a new establishment
of DIAL was operating due to which the notification dated 26th July, 2004, prohibiting
the engagement of contract labour in trolley retrieval activity in the establishment
of AAI at the Delhi Airports could not automatically apply to the new entity,
DIAL and a new notification by the appropriate government would have to be
issued.b) Union of India v. Indira Gandhi International Airport TDI Karamchari
Union - LPA No.1065 of 2007
This Letters Patent
Appeal was preferred by the Union of India against the learned Single Judge's judgment
dated 28th November, 2006 passed in Writ Petition (C) No.15156 of 2008 on a
very limited point of certain observation in the judgment. 3c) Airports Authority
of India v. Union of India Writ Petition (C) No.6763 of 2008 AAI after getting permission
of the High Powered Committee to go ahead with the litigation challenged the
notification dated 26th July, 2004 by filing the said writ petition.d) Delhi International
Airports P.Ltd. v. Union of India Writ Petition (C) No.139 of 2008 DIAL had preferred
this writ petition challenging the order of the Chief Labour Commissioner,
Government of India dated 24th September, 2007 by which the Central Government
was held to be the `appropriate government' for DIAL for the purposes of
Industrial Disputes Act, 1947 (hereinafter referred to as "ID Act") and
CLRAA. The order dated 22nd November, 2007 of Chief Secretary, Government of
NCT of Delhi by which all documents concerning DIAL were directed to be shifted
to the Central Government machinery was also impugned.
5.
Both
the writ petitions of AAI and DIAL were heard and disposed of by the Division
Bench of the High Court along with these LPAs by the impugned judgment.
BRIEF FACTS:
6.
136
workers were employed by the contractor M/s. TDI International Pvt. Ltd. to do
the work of trolley retrieving at the Domestic and at the International Airport
at Delhi in the year 1992. In view of the perennial nature of the work, the
workmen approached the Contract Labour Court for abolition of contract labour system
and for their absorption as regular employees. AAI came into force merging the International
Airport Authority Act, 1971 and the National Airport Authority Act, 1985. On 26th
July, 2004 the Central Government accepted the recommendations of the Contract Labour
Court and issued notification dated 26th July, 2004 abolishing the contract
labour system.
7.
This
notification was challenged by AAI before the High Court of Delhi. Taking note
of the ONGC judgment reported in Oil and Natural Gas Commission and Another Vs.
Collector of Central Excise 1992 Suppl. (2) SCC 432 the High Court vide
judgment dated 3rd February, 2005 held that the present proceedings cannot be proceeded
with till the matter is resolved by the High Powered Committee (HPC). 5Accordingly,
the matter went to the HPC and the notification was not given effect to.
8.
Meanwhile,
136 workers who were engaged as Trolley retrievers by the contractor M/s. TDI International
Private Limited working at the airport since 1992 were removed from service on 5th
December, 2003 as the contract of M/s. TDI International Private Limited had come
to an end and a new contractor Sindhu Holdings came in its place. These 136
members filed Writ Petition No.15156 of 2006 before the learned Single Judge of
the High Court of Delhi praying for their absorption in service as regular employees
and for implementation of the notification dated 26th July, 2004.
9.
The
learned Single Judge of the High Court after hearing the parties including DIAL
vide judgment dated 28th November, 2006 held that the establishment of AAI is no
longer in existence and has changed. As such, the notification dated 26th July,
2004 cannot be applied to the new entity DIAL. The appropriate government shall
have to issue a fresh notification. Consequently, the Writ Petition filed by
the said 136 workers stood dismissed by the learned Single Judge of the High
Court.
10.
Indira
Gandhi International Airport TDI Karamchari Union preferred LPA No.38 of 2007 against
the judgment of the learned Single Judge. The Union of India also preferred LPA
No.1065 of 2007 against the judgment of the learned Single Judge.
11.
During
the pendency of these LPAs, an order dated 24th September, 2007 was passed by the
Chief Labour Commissioner, Government of India holding that the appropriate government
for DIAL is the Central Government. By order dated 22nd November, 2007 the documents
and file relating to DIAL were sent to the Central Government. These orders
were challenged by DIAL in Writ Petition (C) No.139 of 2008. After getting the permission,
AAI filed another Writ Petition (C) No.6763 of 2008 challenging the said notification
on merit. The Division Bench of the High Court heard all these matters together
and passed the impugned order of 18th December, 2009.
12.
The
review petition was preferred by the Union of India which was decided on 12th March,
2010 by the High Court modifying para 61 of the impugned judgment. Against the 7impugned
judgment of the Division Bench of the High Court, two appeals were preferred by
DIAL and three by AAI and one by the Indira Gandhi International Airport TDI Karamchari
Union. In these appeals, two broad issues that arise are: a) Who is the appropriate
government for DIAL under the CLRAA and ID Act? This is the subject matter of SLP
(C) No.369 of 2010 filed by DIAL. b) Whether the notification dated 26th July, 2004
is applicable to DIAL as it is issued by the Central Government which is not the
appropriate government for DIAL and secondly whether the notification that applies
to the `establishment of AAI' will be applicable to the `establishment of DIAL'
which only came into existence on 4th April, 2006? This is the subject matter
of SLP (C) No.377 of 2010 filed by DIAL.
13.
We
deem it appropriate to deal with the basic objects and reasons of passing the CLRAA.
This Act was enacted with a view to abolish the contract labour under certain
circumstances and to provide for better conditions of service to the labour. The
business of providing contract labour is regulated as the contractor is
required to obtain a licence and the principal employer is not entitled to engage
a contractor without obtaining registration. The rules also contain detailed
provisions to carry out the purposes of the Act. It is significant 8to note that
the 1970 Act does not create any machinery or forum for the adjudication of any
dispute arising between the contract labour and the principal employer of the
contractor.
14.
The
object of the Act was dealt with by this Court in the judgment of Gammon India Ltd.
and Others v. Union of India (UOI) and Others (1974) 1 SCC 596 which reads as
under:- "The Act was passed to prevent the exploitation of contract labour
and also to introduce better conditions of work. The Act provides for regulation
and abolition of contract labour. The underlying policy of the Act is to abolish
contract labour, wherever possible and practicable, and where it cannot be
abolished altogether, the policy of the Act is that the working conditions of
the contract labour should be so regulated as to ensure payment of wages and provision
of essential amenities. That is why the Act provides for regulated conditions of
work and contemplates progressive abolition to be extent contemplated by Section
10 of the Act. Section 10 of the Act deals with abolition while the rest of the
Act deals mainly with regulation. The dominant idea of the Section 10 of the
Act is to find out whether contract labour is necessary for the industry, trade,
business, manufacture or occupation which is carried on in the establishment."
15.
The
Central Government will be the appropriate government under CLRRA for any
establishment for whom the Central Government is the appropriate government
under the ID Act. The main question arises for adjudication is whether 9the Central
Government is the appropriate government for DIAL under the ID Act? Section 2
(a) of the ID Act deals with the appropriate government which reads as under:- "2.
In this Act, unless there is anything repugnant in the subject or context,-- (a)
"appropriate government" means-- (i) in relation to any industrial dispute
concerning any industry carried on by or under the authority of the Central Government,
or by a railway company [or concerning any such controlled industry as may be specified
in this behalf by the Central Government] or in relation to an industrial dispute
concerning [a Dock Labour Board established under section 5A of the Dock Workers
(Regulation of
Employment) Act, 1948 (9 of 1948), or [the Industrial Finance Corporation of India
Limited formed and registered under the Companies Act, 1956 (1 of 1956)] or the
Employees' State Insurance Corporation established under section 3 of the Employees'
State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted under
section 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948
(46 of 1948), or the Central Board of Trustees and the State Boards of Trustees
constituted under section 5A and section 5B, respectively, of the Employees' Provident
Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance
Corporation of India established under section 3 of the Life Insurance
Corporation Act, 1956 (31 of 1956), or [the Oil and Natural Gas Corporation Limited
registered under the Companies Act, 1956 (1 of 1956)], or the Deposit Insurance
and Credit Guarantee Corporation established 10 under section 3 of the Deposit Insurance
and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing
Corporation established
under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit
Trust of India established under section 3 of the Unit Trust of India Act, 1963
(52 of 1963), or the Food Corporation of India established under section 3, or a
Board of Management established for two or more contiguous States under section
16, of the Food Corporations Act, 1964 (37 of 1964), or [the Airports Authority
of India constituted under section 3 of the Airports Authority of India Act, 1994
(55 of 1994)], or a Regional Rural Bank established under section 3 of the Regional
Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation
Limited or the Industrial Reconstruction Bank of India Limited], [the National Housing
Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987)],
or [an air transport service, or a banking or an insurance company,] a mine, an
oil field,] [a Cantonment Board,] or a [major port, any company in which not less
than fifty-one per cent. of the paid-up share capital is held by the Central Government,
or any corporation, not being a corporation referred to in this clause, established
by or under any law made by
Parliament, or the Central
public sector undertaking, subsidiary companies set up by the principal undertaking
and autonomous bodies owned or controlled by the Central Government, the
Central Government, and] (ii) in relation to any other industrial dispute, including
the State public sector undertaking, subsidiary companies set up by the principal
undertaking and autonomous bodies owned or controlled by the State Government, the
State 11 Government: Provided that in case of a dispute between a contractor and
the contract labour employed through the contractor in any industrial establishment
where such dispute first arose, the appropriate government shall be the Central
Government or the State Government, as the case may be, which has control over such
industrial establishment. (aa) "arbitrator" includes an umpire; (aaa)
"average pay" means the average of the wages payable to a workman-- (i)
in the case of monthly paid workman, in the three complete calendar months, (ii)
in the case of weekly paid workman, in the four complete weeks, (iii) in the
case of daily paid workman, in the twelve full working days, preceding the date
on which the average pay becomes payable if the workman had worked for three complete
calendar months or four complete weeks or twelve full working days, as the case
may be, and where such calculation cannot be made, the average pay shall be calculated
as the average of the wages payable to a workman during the period he actually worked;."
16.
Firstly,
the Central Government is the "appropriate government" in relation to
any industrial dispute concerning any industry carried on by or under the authority
of the Central Government. Secondly, the Central Government is the
"appropriate government" in relation to industrial disputes 12concerning
AAI. Thirdly, the Central Government is the "appropriate government" in
relation to industrial disputes concerning an air traffic service. Thus, if DIAL's
industry is carried on "under the authority" of the Central
Government, if the dispute in question can be said to concern AAI, or the
dispute in question can be said to concern an "air transport
service", then the Central Government is the "appropriate
government" both under ID Act and CLRAA.
17.
In
these appeals, the validity of the Notification dated 26th July, 2004 issued by
the Central Government under Section 10(1) CLRAA was assailed by AAI and DIAL. It
was also urged that the Notification dated 26th July, 2004 cannot bind DIAL.
18.
It
was further contended that DIAL is not an agent of AAI and DIAL cannot be considered
as a 'delegate' of such an entity. It was also contended that an "establishment"
in question is that of DIAL, wherever it conducts its business and that in
relation to DIAL there has to be a separate Section 10 (1) notification issued
by the Government of the NCT Delhi prohibiting the employment of contract labour
in trolley retrieval work in the establishment of DIAL. According to DIAL, NCT Delhi
is an "appropriate government" to issue the notification. DIAL also disputed
that it did not carry on the 'air transport service'. It was pointed out that DIAL
is not required to and in fact does not have a licence issued to it under Rule
134 of the Aircraft Rules. It is submitted that DIAL is performing its functions
independently in its own establishment which is not that of AAI's.
19.
The
workers' union submitted that the notification dated 26th July, 2004 clarified the
position of DIAL. According to them, the definition of the term under CLRAA does
not envisage multiple principal employers or establishments. It was submitted
that the definition of an 'establishment' under CLRAA is materially different from
the definition of that term under the ID Act which envisages separation of
establishments. For the purposes of CLRAA, it was submitted that the
prohibition on employment of the contract labour in a job is qua the
establishment and operates irrespective of any change in the principal employer
as long as the process, operation or other work continues in that establishment.
Alternatively, it was submitted that even if DIAL is taken to be the principal
employer which has stepped into the shoes of AAI by virtue of Operation, Management,
Development and 14Agreement (for short "OMDA"), the notification under
Section 10 (1) CLRAA would bind it and for DIAL too the appropriate government
would be the Central Government.
20.
It
was also submitted that DIAL is providing an "air transport service",
therefore, the appropriate government is the Central Government. The Central Government
defended the notification of 26th July, 2004. It was submitted that adopting a contrary
interpretation would defeat the objective and purpose of CLRAA. The Central Government
submitted that DIAL is operating under the authority of the Central Government.
The industry that is carried on by DIAL by virtue of OMDA is relatable to the
authority granted by Section 12A of the Airport Authority of India Act 1994 (55
of 1994) (for short, the `AAI Act'). It was submitted that DIAL is rendering
"air transport service" including emplaning and deplaning of passengers,
handling of passengers' luggage, booking of cargo, and, therefore, the Central Government
is the appropriate government.
21.
The
Division Bench held that the notification dated 26th July, 2004 issued by the Central
Government under Section 10(1) CLRAA is valid and binding on it. The Division
Bench in 15the impugned judgment held that the recourse to the ID Act for the
purposes of understanding what is an "establishment" is misconceived since
the definition of 'establishment' under CLRAA is unambiguous. It is futile to
seek recourse to ID Act to understand what is an 'establishment' for the purposes
of CLRAA. The Division Bench further held that the establishment is one and it cannot
be divided into several small establishments where for one part the appropriate
government would be the Central Government and for the other part it would the State
Government. Such an interpretation would run counter to the scheme of CLRAA and
would defeat its object and purpose.
22.
The
Division Bench also held that it is inconceivable by virtue of Section 12A of the
AAI Act, that only the functions and powers of AAI stand transferred and not the
corresponding obligations. In fact, in terms of Clause 5.1 of OMDA, the
statutory obligations under CLRAA which are that of AAI and its contractors
also get transferred to CLRAA. This transfers all powers and functions and correspondingly
the obligations under CLRAA by virtue of Section 12A of the AAI Act.
23.
The
Division Bench held that: "....In fact OMDA makes an express reference to
the AAI Act. Consequently, consistent with the observations of the Supreme
Court in the SAIL case, the exercise by DIAL of the functions and powers of DIAL
in relation to the Delhi airports is traceable to Section 12A of the AAI Act
and therefore in relation to the Delhi airports the Central Government will continue
to remain the appropriate government. Further, the provisions of the AAI Act show
that there is extensive control of the Central Government over the functioning of
AAI. The authority of the Central Government is conferred by the statute itself.
Therefore, it is not correct to contend that consequent upon OMDA, the establishment
of AAI i.e. the Delhi airports ceased to be under the control of the Central
Government. Therefore, the inescapable conclusion is that consistent with the observations
in the SAIL case, the statute itself contemplates the Central Government to be the
appropriate government notwithstanding that there has been a privatization of
the management of the Delhi airports. By being brought within the ambit of
Section 12 A of the AAI Act, even the private actor i.e. DIAL has been brought within
the ambit of the control and authority of the Central Government. In fact,
there is an express reference to the AAI Act in the body of the OMDA itself. If
there was no provision like Section 12 A in the AAI Act, there could not have been
an OMDA between AAI and DIAL."
24.
After
examining the settled legal principles, the Division Bench held that irrespective
of whether the amendment to Section 2(a) I.D. Act was later, the appropriate
government for 17the purposes of Section 10 CLRAA in the instant case continues
to be the Central Government.
25.
The
definition of "air transport service" is certainly wider than "air
traffic service". This has to be seen also in the context of Section 2(i)
which defines "civil enclave" to mean as under : 2(i) "civil
enclave" means the area, if any, allotted at an airport belonging to any armed
force of the Union, for use by persons availing of any air transport services from
such airport or for the handling of baggage or cargo by such service, and includes
land comprising of any building and structure on such area."
26.
The
Division Bench further observed that when the above definitions are read along
with Section 1(3) of the AAI Act, it is plain that the AAI Act will apply to a
civil enclave. It is clear that the handling of baggage or cargo by an air transport
service would form part of the services provided in a civil enclave. The
functions that have been excluded under Section 12A(1) of the AAI Act are "air
traffic services or watch and ward at airport and civil enclaves". In
other words, air traffic services and provision of watch and ward at the airport
and 18civil enclaves remain with AAI, notwithstanding that it has entered into
an agreement of OMDA with DIAL.
27.
The
Division Bench further observed that the Air Traffic Rules envisage that all the
licences for air and air traffic service would be issued separately. That by
itself may not be determinative of whether trolley retrieval forms part of the
services to be provided by DIAL in terms of OMDA. Only 'air traffic services
and provision of watch and ward' are, in terms of Section 12A of the AAI Act to
be retained by AAI as part of its functions. The Division Bench viewed that the
trolley retrieval along with toilets and handling of baggage or car within the area
of a 'civil enclave' are recognized as essential services by virtue of Schedule
16 to the OMDA. This is what is relevant in determining whether trolley
retrieval is also part of the services provided in the establishment. Therefore,
notwithstanding whether DIAL is actually offering other kinds of air transport services,
it is certainly meant to provide trolley retrieval services at the Delhi
airports.
28.
The
Division Bench also came to the categorical finding that for the purpose of
establishment of Delhi airport, it is the 19Central Government that continues to
be the "appropriate government". The Division Bench also came to the
conclusion that in view of Section 12A of AAI Act, the obligation flowing from the
said notification under Section 10(1) of CLRAA will continue to bind every
private player that steps into the shoes of AAI even for some of its functions.
Otherwise, every time a fresh agreement is entered into, the entire process of
getting a notification issued by the appropriate government in relation to the same
work of trolley retrieval and with the same establishment vis-a-vis such
private player has to be re-stated. That was never the intention of the legislature
in enacting CLRAA and in particular Section 10 CLRAA. Such interpretation would
defeat the rights of the workmen which are meant to be protected by the CLRAA.
29.
The
Division Bench of the High Court came to the following conclusions: (i) That in
relation to airport, it is the Central Government which is the appropriate government
for the purpose of CLRAA; (ii) DIAL is equally bound by the Notification dated 26th
July, 2004 issued by the Central Government;
30.
The
most useful starting point of analysis is Section 10 of CLRAA. Sub-Section (1)
reads as follows: "Notwithstanding anything contained in this Act, the
appropriate government may, after consultation with the Central Board or, as the
case may be, a State Board, prohibit, by notification in the official gazette, employment
of contract labour in any process, operation or other work in any establishment."
31.
Two
critical issues are raised by DIAL to suggest that the Central Government's 26th
July, 2004 notification directed at "AAI establishment" under the authority
of Section 10(1) of CLRAA is inapplicable to DIAL. First, DIAL claims that the
Central Government is not the appropriate government to issue such notices to
it. Second, DIAL claims that even if the Central Government was the appropriate
government, its 26th July, 2004 notification was directed at "AAI establishment"
and AAI and DIAL are separate establishments. For the terms of the notice to be
made applicable to DIAL establishment, a separate notification would have to be
issued. These two issues will be addressed in its own turn.
32.
WHETHER
THE CENTRAL GOVERNMENT IS THE "APPROPRIATE GOVERNMENT" CLRAA Section
2(1) reads as follows: 21 (1) In this Act, unless the context otherwise requires,-
(a) "appropriate government" means,-- (i) in relation to an establishment
in respect of which the appropriate government under the Industrial Disputes Act,
1947 (14 of 1947), is the Central Government; (ii) in relation to any other establishment,
the Government of the State in which that other establishment is situated.
33.
In
the definition itself given in Section 2(a), specific reference has been made to
the Airport Authority of India constituted under the AAI Act and the air transport
service. This provision makes it clear that the Central Government will be the "appropriate
government" under CLRAA for any establishment for whom the Central Government
is the "appropriate government" under the ID Act. The question which now
arises for adjudication is whether the Central Government is the
"appropriate government" under the ID Act. According to DIAL, it is not
an "appropriate government", therefore, it is imperative to analyse this
provision. Section 2(a) of the ID Act indicates that the Central Government is
the "appropriate authority" in three relevant situations: (i) The Central
Government is the "appropriate authority" in relation to any
industrial dispute concerning any industry carried on by or under the authority
of the Central Government. (ii) The Central Government is the "appropriate
government" in relation to the industrial disputes concerning AAI. (iii) The
Central Government is the "appropriate government" in relation to industrial
dispute concerning air transport service.
34.
Both
AAI and the air transport service have been specifically incorporated in the Section
itself. Thus, if DIAL industry is carried on under the authority of the Central
Government, the dispute in question can be said to concern AAI or if the dispute
in question can be said to concern air transport service, then the Central Government
is the appropriate authority both for ID Act and CLRAA. It may be pertinent to
properly comprehend the relevant statute.
35.
The
AAI Act was constituted for the better administration and cohesive management of
airports and civil enclaves whereat air transport services are operated or are
intended to be operated and of all aeronautical communication stations for the
purpose of establishing or assisting in the establishment of 23airports and for
matters connected therewith or incidental thereto.
36.
In
Section 2 of the AAI Act, air transport service has been defined in Section
2(e) of the Act which is set out as under: "air transport service" means
any service, or any kind of remuneration, whatsoever, for the transport by air
of persons, mail or any other things, animate or inanimate, whether such service
relates to a single flight or series of flights;
37.
Section
12A of the AAI Act, which was inserted with effect from 1.7.2004, reads as
under: "12A. Lease by the authority.- (1) Notwithstanding anything
contained in this Act, the Authority may, in the public interest or in the interest
of better management or airports, make a lease of the premises of an airport (including
buildings and structures thereon and appertaining thereto) to carry out some of
its functions under section 12 as the Authority may deem fit; Provided that such
lease shall not affect the functions of the Authority under section 12 which relates
to air traffic service or watch and ward at airports and civil enclaves. (2) No
lease under sub-section (1) shall be made without the previous approval of the Central
Government. (3) Any money, payable by the lessee in terms of the lease made
under sub-section (1), shall form part of the fund of the Authority and shall be
24 credited thereto as if such money is the receipt of the Authority for all
purposes of section 24. (4) The lessees, who has been assigned any function of the
Authority under sub-section (1), shall have all the powers of the Authority
necessary for the performance of such function in terms of the lease."
38.
It
is clear from Section 12A that AAI may in public interest or in the interest of
a better management of the airport, make a lease of the premises of the airport
to carry out some of its functions under Section 12 as the Authority may deem fit.
Detailed functions of the Authority have been enumerated in Section 12. Out of those
functions under Section 12A, some functions can be delegated on lease in the
public interest or in the interest of better control and management of the airports.
Consequently, in pursuance of the agreement with DIAL, some functions of AAI
were leased out to DIAL. DIAL argued that not only its own industry is not
carried on under the authority of the Central Government but further that not even
AAI's authority is carried on under the authority of the Central Government.
39.
It
is relevant to mention that DIAL derives its authority from AAI and AAI derives
its authority from the powers given 25by the Central Government. The question, of
course, is whether DIAL works "under the authority" of the Central
Government and therefore, whether the Central Government is the
"appropriate authority" for DIAL?
40.
In
the impugned judgment, the Division Bench has clearly held that AAI works "under
the authority" of the Central Government.
41.
It
would be relevant to recapitulate the Statement of Objects and Reasons for
passing the AAI Act. The Statement of Objects and Reasons reads as under: "STATEMENT
OF OBJECTS AND REASONS Until 1971, the Director General of Civil Aviation was entrusted
with the responsibility not only of regulatory functions relating to civil aviation
but also of construction and management of airports, air traffic control and
air space management in the country. 2. Considering the need for heavy investments
and operational flexibility required for construction and management of large airports,
the International Airports Authority of India (IAAI) was constituted as an autonomous
body under the International Airports Authority Act, 1971. Four international airports,
namely, Delhi, Bombay, Madras and Calcutta were transferred to IAAI with effect
from 1.4.1972; later,
Trivandrum airport was
also transferred to IAAI. In 1985, it was felt that similar treatment was required
for domestic airports and 26air traffic control and related services.
Consequently, the National Airports Authority (NAA) was constituted under the National
Airports Authority Act, 1985. 3. International airports are put to more intensive
use and generate substantial revenues which accrue to the IAAI. Revenues of the
NAA are much less buoyant because a number of its airports do not have any commercial
air service whatsoever while many others have only infrequent operations. The NAA
has, therefore, not been able to generate adequate resources to meet the requirements
of development and modernization. To overcome this handicap and provide for closer
integration in the management of airports and air traffic contract services in
the country, it has been found necessary to merge the IAAI and the NAA, which
the Bill seems to achieve.
4. The salient
features of the Bill are:- (a) Constitution of a single unified Airports
Authority of India to control and manage both the national and international airports
in the country and transfer and vesting of the undertakings of the
International Airports Authority of India and National Airport Authority in the
said Airports Authority of India. (b) Repeal of the International Airports
Authority of India Act, 1971 and the National Airports Authority Act, 1985. (c)
All licences, permits, quotas and exemptions granted to the International Airports
Authority of India or the National Airports Authority be deemed to have been granted
to the Airports Authority of India. (d) Guarantees given for or in favour of the
International Airports Authority of India or the 27 National Airports Authority
to continue to be operative in relation to the Airports Authority of India. (e)
Every officer or other employee of the International Airports Authority of India
and the National Airports Authority, serving in its employment immediately before
the appointed day, to become an officer or other employee, as the case may be, of
the Airports Authority of India, with option to resign. (f) Power of the Central
Government to give directions to the Airports Authority of India. 5. The Bill seeks
to achieve the aforesaid objectives."
42.
A
close reading of the objects and reasons indicates that the Central Government
under Section 12A of the AAI Act has retained the power to give directions in
the public interest or in the interest of better management to lease the
premises of the airport to carry out some of its functions under Section 12A, as
the authority may deem fit. Some of its (AAI's) functions have been leased out
to DIAL. This has been done under Section 12A(2) with the previous approval of
the Central Government. On proper scrutiny of the provisions of the AAI Act, it
is abundantly clear that the Central Government has control over AAI and AAI
has control over DIAL.
43.
DIAL
claims that if AAI's industry was being carried out under the authority of the
Central Government under Section 2 of the ID Act, there would have been no need
for the legislature to separately include AAI as an "enumerated
industry". Such reasoning would be seen on a plain reading of the phrase:
"under the authority of the Central Government", as DIAL itself has admitted
that all these industries, on a cursory look, seem to be by or under the
control of the Central Government. Further, this line of thinking would imply that
none of the many industries enumerated in ID Act can be held to act "under
the authority of the Central Government". While this is conceivably the case,
it may be more likely that the authors of the ID Act, in listing the enumerated
industries, simply wanted to ensure that those industries were covered by the Act,
without meaning to affect the separate issue of whether those industries were
also acting "under the authority of the Central Government." Further,
while it is fair to assume that the legislature attempts to avoid tautology, such
canons are not necessarily dispositive. It is well established canon of
statutory construction that the legislature is known to avoid tautology and
redundancy.
44.
The
crucial questions which need our adjudication are: whether DIAL works under the
Central Government and whether the Central Government is the 'appropriate
government' for DIAL?
45.
The
AAI Act was passed by the Central Government "to provide for the
constitution of the Airports Authority of India' which was in turn charged with
the "better administration and cohesive management of airports." Preamble
to Section 12A of the AAI Act allows AAI to contract with third parties to
perform some of AAI's functions (in the public interest or in the interest of better
management of airports). It was this proviso which allowed AAI to assign some of
its functions to DIAL through OMDA, responsibility for trolley collection services
at the Indira Gandhi International Airport and the domestic airport.
46.
DIAL
claims that if AAI's industry was being carried out under the authority of the
Central Government under Section 2 of the ID Act, then there would have been no
need for the legislature to separately include AAI as an "enumerated
industry". On the one hand, this argument of DIAL is correct. On the other
hand, however, such reasoning would seem to 30contradict a plain reading of the
phrase "under the authority of the Central Government" as DIAL itself
has admitted, "all these industries, on a cursory look seem to be by or
under the control of the Central Government." Further, this line of
thinking would imply that none of the many industries enumerated under Section 2
of the ID Act can be held to act "under the authority of the Central
Government". While this is conceivably the case, it may be more likely
that the framers of the ID Act, in listing the enumerated industries simply
wanted to ensure that these industries were also acting "under the
authority of the Central Government."
47.
The
Constitution Bench of this Court in Steel Authority of India Limited & Others
etc. etc. v. National Union Water Front Workers and Others etc. etc., (2001) 7
SCC 1, popularly known as 'SAIL' case held: "Where the authority, to carry
on any industry for or on behalf of the Central Government, is conferred on the
government company/any undertaking by the statute under which it is created, no
further question arises."
48.
AAI,
a government undertaking has been created by a statute, to carry out the air
transport industry on behalf of the 31Central Government. In the words of the AAI
Act itself, the Act was created : "....for the transfer and vesting of the
undertakings of the International Airports Authority of India and the National Airports
Authority to and in the Airports Authority of India so constituted for the better
administration and cohesive management of airports and civil enclaves..."
(Preamble)
49.
If
the aforementioned passage from SAIL's case is to be taken at its face value, it
would appear that AAI clearly functions "under the authority" of the Central
Government, and that the Central Government is, therefore, the
"appropriate government" under the terms of CLRAA and ID Act.
50.
In
the impugned judgment, the Division Bench correctly held that "the provisions
of the AAI Act show that there is extensive control of the Central Government over
the functioning of AAI." Section 12A reveals control of the Central
Government on AAI. AAI has to obtain approval from the Central Government before
delegating any of its functions to third parties, such as DIAL. This clearly indicates
that the Central Government has complete control over AAI. Sections 2, 6 and 10
of the AAI are further examples of governmental reservations of authority. The Central
Government retains its statutory control over AAI. In the impugned judgment, the
High Court correctly came to the conclusion that "the authority of the Central
Government is conferred by the statute itself."
51.
In
fact, in these cases, we are merely concerned with very limited controversy
whether DIAL works under the authority of the Central Government or not? DIAL,
of course, claims that it does not. In the SAIL judgment, the Constitution Bench
held as under : "the phrase "any industry carried on under the authority
of the Central Government" implies an industry which is carried on by
virtue of, pursuant to, conferment of, grant of, or delegation of power or permission
by the Central Government to a Central Government company or other government company/undertaking.
To put it differently, if there is lack of conferment of power or permission by
the Central Government to a government company or undertaking, it would disable
such a company/undertaking to carry on the industry in question."
52.
In
case the Central Government had never granted permission, pursuant to Section 12A
of the AAI Act, DIAL would not be able to carry out functions at the Delhi
airports. The entire functioning of DIAL is fully dependent on the grant 33of permission
by the Central Government. The Constitution Bench, in the SAIL judgment further
observed as under : "may be conferred, either by a statute or by virtue of
the relationship of principal and agent or delegation of power. Where the authority,
to carry on any industry for or on behalf of the Central Government, is conferred
on the government company/any undertaking by the statute under which it is created,
no further question arises. But, if it is not so, the question that arises is
whether there is any conferment of authority on the government/any undertaking
by the Central Government to carry on the industry in question. This is a question
of fact and has to be ascertained on the fact and in the circumstances of each
case."
53.
The
undertakings need not be government undertakings to have had authority conferred
upon them. But the word "government" clearly modifies "company."
However, it cannot modify "undertaking," for the phrase "government/any
undertaking". Thus, it would seem that any "undertaking"- even private
undertakings, like DIAL - may function "under the authority" of the
Central Government. Whether or not they do it, as the Constitution Bench noted,
"a question of fact which has to be ascertained on the facts and in the
circumstances of each case."
54.
In
the facts and circumstances of these cases, it is abundantly clear that DIAL operates
under the authority of the Central Government.
55.
In
the impugned judgment, it was noted that "the functions and powers of DIAL
in relation to the Delhi airports are traceable to Section 12A of the AAI Act."
It is clear that without Central Government's permission, AAI could not have
delegated any power to DIAL. In other words, the functioning of DIAL at the
Delhi airports itself was fully dependent on the approval of the Central Government.
In other words, DIAL could not have received its contract with AAI without the
Central Government's approval. That being the case, by a plain reading of the phrase
it seems that "DIAL functions under the authority of the Central
Government".
56.
It
was argued on behalf of DIAL that "if the intent of the Parliament was to
make DIAL come under the authority of the Central Government then it would have
militated against the basic objective of achieving privatization." DIAL,
however, does not explain how having the State Government as the appropriate government
- the only alternative under CLRAA 35and ID Act - would be any more conducive
to privatization. It is now clear that the Central Government impedes
privatization any more than the State Government; after all, it was the Central
Government that sought to encourage privatization through the AAI Act by incorporating
Section 12A in the Act.
57.
In
case AAI and DIAL act under the authority of different governments it would
bring about absurd results : AAI could simply circumvent potential Central Government
orders by delegating various functions to third parties, such as DIAL. Of course,
AAI would need to obtain Central Government approval prior to making such a
delegation under Section 12A of the AAI Act, but it nevertheless seems unlikely
that the Central Government would intend to maintain authority over AAI's actions,
while allowing actions performed by other entities on behalf of AAI, such as
DIAL, to be carried out under the authority of the State Government. DIAL has made
no suggestions as to why the Central Government might have intended such a
result while drafting the AAI Act and CLRAA, and there is, therefore, little
justification for coming to such a conclusion.
58.
DIAL
expressly assumed the "rights and obligations associated with the
operation and management of the airport" through OMDA. While Section 12A
of the AAI Act only notes that the "powers and functions" of AAI will
be transferred to its lessors, it is "inconceivable that by virtue of Section
12A the powers and functions of AAI will stand transferred and not the
corresponding obligations." If it was the "obligation" of AAI to
follow valid directions of the Central Government by virtue of its status as an
enumerated industry, and if DIAL has admittedly assumed those same obligations through
OMDA, then DIAL is presumably also obligated to follow such directions. Again,
a contrary interpretation would allow AAI to circumvent the Central Government's
exercise of authority over its work merely by contracting it out to third
parties. It is abundantly clear that the Central Government is the appropriate government
qua DIAL and consequently the said Notification of 26th July, 2004 is equally
applicable to DIAL.
59.
Under
the ID Act (and therefore CLRAA), the third situation in which the Central
Government is the "appropriate 37Government" is "in relation to industrial
disputes concerning air transport services."
60.
The
question for the purposes of this case, then, is whether the trolley retrieval services
performed by DIAL are done "for the transport by air of persons, mail, or any
other thing." Clearly, trolley retrievers themselves are not physically
transporting anything by air. However, it is entirely possible that the drafters
of the AAI Act did not intend to restrict the coverage of this provision merely
to pilots, stewardesses, and others engaged in the actual, physical transport
of people and objects, as DIAL would have liked the Court to believe. Clearly,
trolleys at airports relate to air transportation- just as they relate to
"a single flight or a series of flights."
61.
On
behalf of DIAL, it was submitted that "air transport services" as enumerated
industry under ID Act replaced an earlier listing of "Indian Airlines"
and "Air India", two corporations clearly engaged in the actual, physical
transportation of individuals by air.
62.
At
the time of amendment when private airline operators had started functioning and
as "air transport service" they 38included all airline operators, private
or public and the said industry was included as an enumerated industry. This
makes it abundantly clear that "air transport service" concerns
airline operators only.
63.
Section
12(2) of the AAI Act reads as under: "It shall be the duty of the
Authority to provide air traffic service and air transport service at any airport
and civil enclaves."
64.
It
may be relevant to mention that DIAL is not engaged in the business of operating
an airline for carrying passengers and goods by air through flights. In fact, AAI
is also not involved in this activity and Section 12 of the AAI Act which lists
out the functions of AAI does not include the function of carrying people and
goods through air by flights operated by it. As such, when AAI does not perform
such function then there is no question of transfer of such functions to DIAL.
65.
It
is the duty of the authority to provide all air transport services at the
airport, and if it is not the duty of the authority to carry passengers and
goods by air through flights, then by the appellants own logic, air transport service
must mean more than the mere carriage of passengers and goods by air through flights.
If it did not, then there would be no reason that "air transport service"
would be listed as a "duty of the Authority" under Section 12(2). This
Section clearly indicates that it is the duty of the Authority to provide "air
transport service", such duty does not mean that the Authority provides
such services itself.
66.
AAI
is responsible under the AAI Act for providing air transport service would not necessarily
mean that DIAL also does so.
67.
In
the instant case under Section 12A of the AAI Act all functions have been given
to DIAL except watch and ward function, air traffic service and civil enclaves.
From the provisions of OMDA, it is clear that all functions of AAI barring
reserved activities and all land except certain carved out assets has been
given to DIAL.
68.
DIAL
has admitted that AAI has transferred to it all functions except those related to
watch and ward, air traffic service and civil enclaves, none of which can be
considered as "air transport service". That being the case, AAI must have
transferred its duty to provide "air transport service" to DIAL 40and
the Central Government must, therefore, be the appropriate government for DIAL
under the CLRAA and ID Act.AAI and DIAL are not separate establishments, but
even if they were, the 26th July , 2004 notification applies to DIAL anyway
69.
Section
10(1) of the CLRAA permits the "appropriate government" to
"prohibit employment of contract labour in any process, operation or other
work in any establishment. The Central Government's 26th July, 2004 notification
clearly forbade the "AAI establishment" from employing trolley
retrievers as contract labour. The question, then, is whether DIAL is part of "AAI
establishment" for purposes of the CLRAA?
70.
DIAL
contends that the establishment of AAI at the Indira Gandhi International
Airport and Domestic Airport underwent a change and a new private entity in the
form of the appellant DIAL established its establishment, after being granted a
lease under Section 12A of the AAI Act. In support of this claim, DIAL contends
that it has complete overall control and supervision over the Airport to the
exclusion of AAI, and is not an agent or delegate of AAI but is, rather, a separate
and a new principal entity to whom the Central Government's 26th 41July, 2004
notification, even if otherwise valid, did not apply. The Single Bench
apparently agreed, holding that "the notification itself has become
irrelevant in view of the privatization of the airports and a new notification
will have to be issued by the appropriate government.
71.
To
address these claims, it is important to analyse the definition of "establishment".
Section 2(1)(e) of the CLRAA defines "establishment" as follows: "
`establishment' means - c) any office or department of the Government or a local
authority, or d) any place where any industry, trade, business, manufacture or
occupation is carried on."
72.
As
this provision makes it clear, the definition of "establishment" focuses
either on (1) Place; or (2) Offices or departments of the Government or a local
authority. The 26th July, 2004 notification must, therefore, have been directed
at one of these types of establishments.
73.
On
the one hand, AAI clearly cannot be considered a local authority as it is charged
with managing airports throughout India. On the other hand, AAI also cannot be
considered an "office or department of the Government". The 42AAI Act
makes clear that AAI must, in certain circumstances, obtain approval from the Central
Government, thereby implying that AAI is not itself the Central Government. Therefore,
"establishment" in this case cannot refer to "any office or
department of the Government or a local authority", it must refer to a "place
where any industry, trade, business, manufacture or occupation is carried on".
The Division Bench in the impugned judgment held that the establishment for the
purposes of the CLRAA is a place where the industrial, trade or business activity
is carried on then it necessarily follows in the context of the present case that
it is the Delhi Airports which constitute the establishment of AAI and in turn
the establishment of DIAL.
74.
This
Court in SAIL's case held as under: "It is thus evident that there can be plurality
of establishments in regard to the Government or local authority and also in
regard to any place where any industry, trade, business, manufacture or occupation
is carried on."
75.
Accordingly,
there could be multiple establishments at the airport. That being the case, the
Division Bench's assertion that the establishment of AAI is in turn the
establishment of DIAL must be justified.
76.
It
would be pertinent to refer to the definition of "contractor" in
Section 2(1)(c) of CLRAA, which reads as under: "`contractor', in relation
to an establishment, means a person who undertakes to produce a given result for
the establishment, other than a mere supply of goods or articles of manufacture
to such establishment, through contract labour or who supplies contract labour for
any work of the establishment and includes a sub-contractor."
77.
DIAL
"undertakes to produce a given result" - trolley retrieval services,
among other things - for AAI establishment through contract labour. To prove, otherwise,
DIAL would need to be able to assert the following, adopted from the CLRAA
definition of contractor excerpted above. "DIAL does not undertake to
produce any result for AAI establishment. Instead, DIAL undertakes to produce
result for its own establishment"
78.
DIAL
while performing work on behalf of AAI, it is not performing work on behalf of
AAI establishment. Instead, it is merely working on behalf of its own
establishment.
79.
Further,
all the independence DIAL does have, the AAI Act and OMDA make it clear that AAI
maintains ultimate responsibility for the airport.
80.
The
question that has to be answered is who has control of the entire establishment?
Noticing that air traffic services and security are the heart of the airport
and also noticing the clauses of OMDA providing for overall supervision of DIAL
by AAI, checking of accounts, step in rights of AAI and so on, it must be
concluded that AAI has overall control of the airport site.
81.
Admittedly,
DIAL has been leased out the portion of AAI's work, which DIAL only has
incomplete control over as well as the fact that DIAL meets the definition of a
contractor under the CLRAA, further suggests that DIAL is nothing more than a
contractor for AAI establishment. DIAL is not, in other words, a principal employer
of an independent establishment. That being the case, the 26th July, 2004
notification, declared at AAI establishment, must also apply to DIAL.
82.
The
fact that DIAL is a private entity is of no assistance to it. In SAIL's case, the
Constitution Bench explicitly held that the definition of "establishment"
in the CLRAA takes in its fold purely private undertakings.
83.
This
issue is fully settled by the foregoing analysis. From the analysis, DIAL falls
under AAI establishment. For example, Clause 5.1 of OMDA, which notes that the "rights
and obligations associated with the operation and management of the Airport
would stand transferred to" DIAL, would seem to suggest that orders given
to AAI establishment would also apply to DIAL establishment, even if the two
were, as DIAL claims, separate establishments. If AAI establishment is
obligated to abolish contract labour and DIAL establishment (even if it is somehow
separate) has assumed AAI establishment's obligations through the OMDA, then DIAL
is presumably required to fulfil those obligations. Critical to this inference is
the fact that the Central Government's 26th July, 2004 notification was issued
before OMDA was signed.
84.
The
contention that DIAL would not also be bound by the obligations of AAI establishment
would once again lead to absurd consequences. In the impugned judgment, the
Division Bench correctly observed that "every time a fresh agreement is
entered into, the entire process of getting a notification issued by the
appropriate Government in relation to the same work of trolley retrieval and with
the same establishment vis-a-vis such private player" must be repeated. This
interpretation would defeat the rights of the workers, which are meant to be
protected by CLRAA. The Division Bench has correctly observed that the obligation
flowing from the notification under Section 10(1) CLRAA shall continue to bind every
private player that steps into the shoes of AAI.
85.
We
have carefully heard the learned counsel for the parties and perused the
written submissions filed by them. In our considered view, the Central Government
is the appropriate government for DIAL for the following reasons –
i.
DIAL
could not have entered into a contract with AAI without approval of the Central
Government according to the mandate of Section 12A of the AAI Act. In this view
of the matter, it is abundantly clear that DIAL functions "under the authority"
of the Central Government;
ii.
AAI
clearly acts under the authority of the Central Government and DIAL acts under the
authority of AAI because of its contract with DIAL. Then it can be logically
stated that DIAL works under the authority of the Central Government;
iii.
The
Central Government has given AAI responsibility for overseeing the airports. To
fulfil its obligations, AAI contracted with DIAL. However, it is clear that DIAL's
work "concerns" AAI, if DIAL does not perform its work properly or adequately,
then AAI will be breaching its statutory obligation and would be responsible
for the consequences.
iv.
AAI
is under an obligation to follow the directions of the Central Government and if
DIAL has admittedly assumed those obligations through the OMDA, then DIAL is presumably
also obligated to follow such directions. Again, a contrary interpretation would
allow AAI to circumvent the Central Government's exercise of authority over its
work merely by contracting it out to third party (DIAL).
v.
Clause
5.1 of the OMDA specifically notes that the "rights and obligations
associated with the operation and management of the Airport would stand transferred"
to DIAL. If AAI was admittedly obligated to follow the 26th July, 2004
notification and DIAL has assumed all of AAI's obligations, then DIAL must also
be obligated to follow the notification. In other words, the notification issued
by the Central Government is equally binding on DIAL.
vi.
Holding
the 26th July, 2004 notification inapplicable to DIAL would mean that the Government
would have to issue separate notification every time AAI contracts with a third
party. This would clearly violate the basic objects and reasons of CLRAA.
vii.
The
security of contract labour working for AAI envisaged, a law cannot be made to
depend on the private sector. If the legislature had found it fit to specifically
include AAI as an enumerated industry under the ID Act, it is extremely unlikely
that it would have intended for AAI to be able to circumvent the Central Government
orders by contracting with private parties.
viii.
The
privatization of the airports does not mean that the "appropriate government"
cannot be the Central Government. According to the Constitution Bench judgment of
this Court in the case of SAIL, the definition of `establishment' in the CLRAA takes
in its fold purely private undertakings...".Concerns about privatization
are, therefore, unfounded.
ix.
Under
Section 12(2) of the AAI Act, AAI is obliged to provide air traffic service and
air transport service at the airport. DIAL admits that AAI has transferred all of
its responsibilities at the airports with the exception of certain reserved
functions. Since industries concerning air transport service function under the
authority of the Central Government, and since AAI has transferred its "air
transport service" responsibilities to DIAL, the Central Government must
be held to be the appropriate Government for DIAL.
x.
The
OMDA makes it clear that AAI maintains ultimate responsibility for the airports.
The fact that DIAL was transferred only a portion of AAI's work which DIAL only
has incomplete control over as well as the fact that DIAL meets the definition of
a contractor under the CLRA Act further suggests that DIAL is nothing more than
a contractor for AAI establishment. That being the case, notification dated 26th
July, 2004 directed at AAI establishment must also apply to DIAL.
xi.
The
contention of DIAL that it would not be bound by the obligation of AAI establishment
would lead to absurd consequences. The Division Bench in the impugned judgment
has rightly pointed out that every time a fresh agreement is entered into, the
entire process of getting a notification issued by the appropriate government in
relation to the same work of 49 trolley retrieval and with the same establishment
via-a-vis such private player must be repeated. But this interpretation would
defeat the rights of the workmen which are meant to be protected by the CLRAA.
xii.
In
the impugned judgment, the Division Bench of the High Court has correctly held that
the obligation flowing from the said notification under Section 10(1) CLRAA
should continue to bind every private player that steps into the shoes of AAI.
86.
For
the foregoing reasons, it is clear that the notification dated 26th July, 2004
was equally binding on DIAL under the CLRAA and, therefore, DIAL must abolish all
contract labour as per the terms of the notification.
87.
We
have no hesitation in coming to the conclusion that the Central Government notification
dated 26th July, 2004 is clearly binding and applicable to DIAL. DIAL's
obligation with regard to the contract labour in general is clear from the said
notification. They are liable to be regularized as regular employees of DIAL. DIAL
has replaced many of the workers with other trolley retrievers and it would be unrealistic
to expect DIAL to regularize the employment of their current trolley retrievers
and member of the workers' union alike and 50inequitable to leave the current
workers jobless so as to make room for erstwhile workers of DIAL.
88.
In
view of the peculiar facts and circumstances of this case directing DIAL to regularize
services of trolley retrievers who worked with DIAL till 2003 would be harsh, unrealistic
and not a pragmatic approach, therefore, in the interest of justice, we deem it
proper to direct DIAL to pay Rupees five lacs to each of the erstwhile 136 workers
of DIAL who were working for them as trolley retrievers till 2003 and in case
any worker has expired, then his or her legal heirs would be entitled to the
said amount. This compensation is paid to the workers in lieu of their permanent
absorption/reinstatement with DIAL and their claim of back wages. This is in
full and final settlement of entire claims of erstwhile 136 workers of DIAL.
89.
We
direct DIAL to pay the amount to these 136 erstwhile workers of DIAL within
three months after proper verification. In case the amount, as directed, is not
paid within the prescribed period, then it would carry interest at the rate of
12% per month from that point till the amount is paid.
90.
These
appeals are accordingly disposed of in the aforementioned terms. In the facts and
circumstances of these cases, we direct the parties to bear their own costs.
..................................J.
(Dalveer Bhandari)
.................................J.
(Deepak Verma)
New
Delhi;
September
15, 2011
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