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2005(8) Supreme 277
Supreme Court of India
(From Bombay High Court)
Mrs. Ruma Pal, Dr. AR. Lakshmanan and C.K. Thakker, JJ.
Air India Ltd. & Ors. —Appellants
versus
Vishal Capoor and Ors. —Respondents
Civil Appeal No. 5919 of 2005
(Arising out of SLP (C) No. 8258 of 2005)
With
C.A. Nos. 5936 and 5920 of 2005
(@ SLP (C) Nos. 20387 & 20309 of 2005) (CC 7543 & 7621/2005)
C.A. No. 5921 and 5922 of 2005
(@ SLP (C) Nos. 9306 & 10505 of 2005)
Decided on 28-9-2005
Counsel for the Parties :
For the Appellants : Gopal Subramanium and Jaideep Gupta, Sr. Advocates, V.B. Joshi, R. Kivi, K. Kumar, P. Dhingra, S.M. Jadhav, H. Gupta and B.K. Sah, Advocates.
For the Respondents : H.N. Salve, Sr. Advocate, Praveen Gautam, V. Krishnan, M. Grover, N. Gore, R.N. Karanjawala, N. Bahl, P. Baghel and Mrs. Manik Karanjawala, Advocates.
Held : When the High Court in the impugned judgment concluded that Annexure D to the 1998 Settlement had been acted upon and implemented, it did not discuss any fact in support of this conclusion. Besides, the High Court’s decision that there was “no dispute that the writ petitioners are senior in the list and seniority over and above respondents 4 to 9” was in the circumstances narrated, factually wrong. But assuming the conclusion was correct, nevertheless, having regard to the decisions of this Court earlier noted, it is still open for the Adhikari group to challenge the 1998 Settlement on the ground of lack of bonafides, arbitrariness, fraud etc. Such a challenge to the 1998 Settlement cannot ofcourse be decided in a writ proceeding as has been already held by the High Court W.P. 2930 of 1999. According to the appellants and the Adhikari group, the 1998 Settlement cannot in any event be termed to be a final settlement under Section 18(3) of the Industrial Disputes Act, 1947 because of Clause (16) to the 1998 Settlement. (Paras 40 & 41)
Admittedly, the 1998 Settlement was not filed as envisaged nor was a consent award obtained although this point was not raised in WP 2930 of 1999. But the issue has been concluded against the respondents 7 to 12 by the order dated 14th November 2000 in W.P. No. 2930 of 1999 which said that the 1998 settlement was a settlement under Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least between the CPL Holders and the Adhikari group as to whether the 1998 Settlement despite being under Section 18(3), was invalidated because of the alleged circumstances under which it was arrived at. Additionally, the Adhikari group may at least contend that the subsequent modifications to Clause 7(C) of the 1998 settlement modifying and ultimately doing away with the requirement of an ALTP was not valid and did not form part of the settlement under Section 18(3). All these disputes are appropriately adjudicatable by an Industrial Tribunal under the 1947 Act. The High Court’s decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent No. 3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum. (Paras 42 & 43)
We have already noted that the appellants and the Adhikari group are agreeable that in the meanwhile clause 7(C) and Annexure D to the 1998 settlement would continue to operate but that the writ petitioners should not claim the shortfall under the 1998 Settlement. It seems an eminently fair suggestion except that any amount due on account of shortfall arising out of this arrangement must be deposited by the appellants in the Industrial Court which will keep the same in fixed deposit with any nationalized bank subject to any award, interim or final, that may be passed by the Tribunal. We, therefore, set aside the decision of the High Court and allow the appeals. It is directed that the appropriate Government shall refer the following questions for adjudication by the appropriate Tribunal :
1. Whether the 1998 settlement or any portion thereof is liable to be set aside on the grounds of fraud, undue influence etc. as alleged by the Adhikari group?
2. Whether the requirement of the ALTP licence was necessary for co-pilots?
3. Whether the Adhikari group was entitled to seniority over the CPL Holders in the line seniority list?
4. What is the legal effect of the Conciliation Officer’s recommendation of the Adhikari groups case and Air India’s acceptance thereof?
5. To what relief are the parties entitled?
Any of the parties to these appeals viz. the Adhikari group or the writ petitioners and their colleagues or Air India may move the appropriate Government for the order of reference with a copy of our judgment. Till the disputes are adjudicated by the Tribunal, the interim arrangement as decided in an earlier part of this judgment shall operate. (Paras 47, 48 & 49)
JUDGMENT
Ruma Pal, J.—Leave granted.
2. These appeals arise out of a dispute over the seniority of co-pilots employed by the first appellant, Air India Ltd. The contending parties are two groups of co-pilots, namely, the respondents 1 to 6 (referred to hereafter as the ‘writ petitioners’) and the respondents 7 to 12. The bone of contention is whether seniority as a co-pilot is to be calculated from the day a pilot gets an Air Lines Transport Pilot Licence (ALTP) or from the day the pilot enters the service of the first appellant with only a commercial pilot’s licence (CPL). The differences between an ALTP and CPL as provided in Schedule II of the Aircraft Rules 1937 are inter alia that an ALTP licence holder has at least 1500 hours of flying of which 500 hours is as a pilot-in-command. A CPL holder has to have 250 flying hours with 150 hours as a pilot-in-command. However apart from noting this, we do not propose to decide this dispute as the issue which actually arises for decision before us is much narrower. The question is whether the High Court by the order impugned in this appeal should have decided the contention itself or left it to the Industrial Tribunal to decide.
3. The first appellant is owned by the Government of India and provides international air transport services. Its aircrafts are operated by pilots in command (PIC) and co-pilots or first officers apart from other cock-pit crew. Co pilots fly under the supervision of commanders with 500 or more hours as PIC. It is common ground that unless a pilot has an ALTP licence, he cannot qualify as a PIC. According to the appellants, the respondents 7 to 12 were entitled to seniority over the writ petitioners because they had obtained an ALTP prior to the writ petitioners. It is the appellants’ case that up till 1986 only ALTP holders were eligible for appointment as co-pilots with the first appellant. CPL holders were recruited for the first time as probationary co-pilots by the first appellant only from 1986. Their probation was to continue till they obtained the ALTP licence. If they failed to get an ALTP it resulted in termination of their employment.
4. The Indian Pilots Guild (referred to as the Guild) was a recognized union of pilots of the first appellant. On 21st July 1989, a settlement was arrived at between the Guild and the first appellant for the period 1.10.85 to 31.8.90 (referred to hereafter as the 1989 Settlement). Clause 3(d) of the settlement related to seniority and read as under :
“(d) The pilots joining the Corporation with ALTP will always have higher line seniority over the co-pilots who is already in the employment of the Corporation without ALTP Licence.”
5. On 1st September, 1990, the Guild gave a notice of termination of the 1989 settlement and raised a fresh charter of demands. In 1992 the CPL holders raised a demand before the appellants asking for seniority from the date of their joining the first appellant. The demand was rejected. They then filed a writ petition being W.P. No. 2365 of 1992 in which they challenged clause 3(d) of the 1989 settlement contending that the obtaining of an ALTP licence was wholly irrelevant for confirmation as a co-pilot. The writ petition was opposed by the first appellant as well as by the Guild. It was ultimately dismissed on 11th February 1993 on the ground that the letters of appointment of the CPL holders specifically provided for their confirmation as a co-pilot subject to obtaining ALTP licence. The Court was also of the view that it was a matter “falling in the realm of a policy decision” of the first appellant and that there was “nothing arbitrary about this clause”.
6. On 20th January, 1995, however at a meeting of the senior officers of the first appellant, it was decided that CPL holders would be on a training period for two years. On completion of a training period, they would be placed in the grade of co-pilot on probation for a period of one year. On satisfactory completion of the probation period,
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