Delhi High Court
Indira Gandhi Airport Tdi ... vs Union Of India & Ors on 18 December, 2009
Author: S. Muralidhar
HIGH COURT OF DELHI AT NEW DELHI
LPA 38/2007
Reserved on: November 12, 2009
Decision on: December 18, 2009
INDIRA GANDHI AIRPORT TDI
KARAMCHARI UNION ..... Appellant
Through Mr. Colin Gonsalves, Sr. Adv. with Mr.
Vipin M. Benjamin, Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through Mr. Sachin Dutta, Adv. for UOI.
Dr. A.M. Singhvi, Sr. Adv. with Mr. Saket Singh,
Mr. Harminder Singh, Mr. Mohit Gupta, Advs. for
DIAL.
Mr. V.P. Singh, Sr. Adv. with Ms. Anjana Gosain,
Adv. for AAI.
Mr. Ajay Kapur with Mr. M.P. Sahay, Advs. for R-
6.
LPA 1065/2007
UNION OF INDIA & ANR ..... Appellants
Through Mr. Sachin Dutta, Adv. for UOI.
versus
INDIRA GANDHI AIRPORT TDI KARAMCHARI
UNION & ORS ..... Respondents
Through Mr. Colin Gonsalves, Sr. Adv. with Mr.
Vipin M. Benjamin, Adv. for R-1.
Dr. A.M. Singhvi, Sr. Adv. with Mr. Saket Singh,
Mr. Harminder Singh, Mr. Mohit Gupta, Advs. for
R-3.
Mr. V.P. Singh, Sr. Adv. with Ms. Anjana Gosain,
Adv. for AAI.
Mr. Ajay Kapur with Mr. M.P. Sahay, Advs. for R-
5.
LPA Nos. 38-07, 1065-07 & WP(C) Nos.139-08 & 6763-08 Page 1 of 46
W.P. (C) 139/2008
DELHI INTERNATIONAL AIRPORT P.LTD ..... Petitioner
Through Dr. A.M. Singhvi, Sr. Adv. with Mr.
Saket Singh, Mr. Harminder Singh, Mr. Mohit
Gupta, Advs.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Sachin Dutta, UOI.
Mr. Colin Gansalves, Sr. Adv. with Mr. Vipin M.
Benjamin, Adv. for R-4.
W.P.(C) 6763/2008
AIRPORTS AUTHORITY OF INDIA ..... Petitioner
Through Mr. V.P. Singh, Sr. Adv. with Ms. Anjana
Gosain, Adv. for AAI.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Sachin Dutta, Adv. for UOI.
Mr. Colin Gansalves, Sr. Adv. with Mr. Vipin M.
Benjamin, Adv.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether reporters of the local newspapers be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
S. MURALIDHAR, J.
Introduction
1. These four cases arise out of the same facts and therefore are being
disposed of by this common judgment. LPA No. 38 of 2007 is directed
against the impugned order dated 28th November, 2006 passed by the learned
single Judge dismissing W.P(C) No. 15156 of 2006 filed by the Appellant
seeking a direction to the Respondent No. 2 Airport Authority of India (AAI)
to forthwith take on duty the workers previously engaged in trolley retrieval
at the Delhi Airports as permanent workers and to pay them wages
accordingly. The further prayer in the said writ petition was that a direction
should be issued to AAI to abolish the contract labour system in trolley
retrieval at the Delhi Airports in terms of the Notification dated 26 th July,
2004 issued by the Union of India, Respondent No.1 under Section 10 (1) of
the Contract Labour (Regulation and Abolition) Act, 1970 (CLRAA). LPA
No. 1065 of 2007 is by the Union of India against the same judgment dated
28th November, 2006 passed by the learned single Judge dismissing W.P.(C)
No. 15156 of 2006.
2. W.P.(C) No. 139 of 2008 is by the Delhi International Airport Private
Limited (DIAL) challenging an order dated 24th September, 2007 passed by
the Chief Labour Commissioner (Central) declaring the Central Government
to be the appropriate Government for the airport establishment of DIAL
under the CLRAA as well as the Industrial Disputes Act, 1947 (ID Act). It
also challenges the consequential order dated 22nd November, 2007 passed
by the Chief Secretary to the Government of the National Capital Territory
of Delhi (GNCTD) transferring the industrial disputes and records/files
pertaining to the registration and licenses granted to DIAL to the office of
the Regional Labour Commissioner (Central), New Delhi.
3. W.P. (C) No. 6763 of 2008 is by the AAI seeking the quashing of the
Notification dated 26th July, 2004 issued by the Union of India under Section
10(1) CLRAA prohibiting the employment of contract labour in the job of
trolley retrieval in the establishment of the AAI at Indira Gandhi
International Airport and domestic airport at Delhi. It also seeks the
quashing of the recommendation dated 6th February, 2004 made by the
Central Advisory Contract Labour Board (CACLB) on the basis of which the
aforementioned Notification dated 26th July, 2004 was issued by the Union
of India.
Background facts
4. In 1992 around 136 workers were employed through a contractor for the
work of trolley retrieval at the domestic and international airports at Delhi.
In view of the perennial nature of the work, where they were employed on
three shifts in a day, the workmen approached the CACLB for abolishing the
contract labour system in trolley retrieval and for their absorption in AAI as
regular employees. On 20th July, 1999 the CACLB made a recommendation
declining to abolish the contract labour system in trolley retrieval in the
Delhi airports. The above decision dated 20th July, 1999 was challenged by
the Indira Gandhi Airport TDI Karamchari Union (the workers union) by
filing W.P. (C) No. 5248 of 2002. By a judgment dated 5th November, 2003
the learned single Judge of this Court quashed the recommendation dated
20th July, 1999 and directed the CACLB to reconsider the matter. In the
course of the judgment it was clarified by the learned single Judge that in
case a recommendation was made for the abolition of trolley retrieval and an
appropriate notification was issued by the Central Government, then in terms
of the judgment of the Constitution Bench of the Supreme Court in Steel
Authority of India Limited v. National Union Waterfront Workers (2001) 7
SCC 1 (hereafter „the SAIL case‟), the workmen would be entitled to
preference/regular employment in accordance therewith and the breaks, if
any, in their employment shall not come in their way.
5. At this stage, it may be mentioned that the Union of India took a policy
decision for privatization of airports in the country sometime in 2003. On 7th
May, 2003 a Bill preceding the amendment to the Airport Authority of India
Act, 1994 (AAI Act) was tabled in Parliament. It was stated that with a view
to improving the standard of services and facilities at the airports and to
bring them at par with international standards there was a need for infusion
of private sector investments as also for restructuring of the airports. Since
the AAI Act was applicable to all airports, significant private sector
investments in the project of restructuring the airports would require an
"effective legal framework within which the investor would feel safe and
secure about their operational and managerial independent". Accordingly,
the AAI Act was sought to be amended by insertion of Clause (aa) in sub-
section (3) of Section 12 as well as new Section 12A to enable the AAI inter
alia to "lease the above premises to private operators with the prior approval
of the Central Government". By the said amendment it proposed that some
of the functions of the AAI can be assigned to lessees subject to the
exception that at airports air traffic service or watch and ward and functions
will continue to be provided by the AAI. The aforementioned amendments
were brought about with effect from 1st July, 2004 by the passage of the AAI
(Amendment) Act, 2003.
6. On 5th December, 2003 the services of the workers engaged in trolley
retrieval in Delhi airports was terminated and fresh contract labourers were
inducted through a new contractor. Meanwhile the CACLB, which included
representatives of both the employers and the employees, reheard the
remanded case and by a report dated 6th February, 2004 unanimously
recommended the abolition of the contract labour system in trolley retrieval
in the Delhi airports. The CACLB concluded that the work of trolley
retrieval was incidental to the main function of the AAI. It had to be
continued on a day to day basis and therefore was of permanent and
perennial nature with sufficient duration. It was held that the respondents
TDI International Private Limited (TDIPL), which had originally been
engaged by AAI to provide the contract labourers and M/s Sindhu Holding
Private Limited (SHPL) which was subsequently engaged by the AAI, were
„contractors‟ within the meaning of Section 2(c) of the CLRAA and their
workers were „contract labour‟ within the meaning of Section 2(b) CLRAA.
The aforementioned recommendation dated 6th February, 2004 of the
CACLB was accepted by the Union of India which issued the following
Notification dated 26th July, 2004 under Section 10(1) of the CLRAA.
"Ministry of Labour and Employment
Notification
New Delhi, the 26th July, 2004
S.O. 848 (E) - In exercise of the powers conferred by
Sub-section (1) of Section 10 of the Contract Labour
(Regulation and Abolition) Act, 1970 (37 of 1970), the
Central Government, after consultation with the Central
Advisory Contract Labour Board, and having regard to
the working conditions and benefits provided to contract
labour and other relevant factors enumerated in Sub-
section (2) of Section 10 of the said Act, hereby prohibits
the employment of contract labour in the job of trolley
retrieval in the establishment of the Airport Authority of
India at Indira Gandhi International Airport and
Domestic Airport at Delhi with effect from the date of
publication of this notification in the Official Gazette.
[E.No.S-16014/60/2002-LW.(Vol.-II)]
Manohar Lal, Jt. Secy."
7. SLP(C) No. 22424 of 2003 filed by the workers union against the
judgment dated 5th November, 2003 was dismissed by the Supreme Court by
its order dated 5th December, 2003. The workers engaged by the TDIPL
were replaced by fresh workers of SHPL on the intervening night of 5th/6th
December, 2003. The workers belonging to the Appellant union were not
allowed to continue.
8. AAI filed W.P. (C) No. 13953 of 2004 in this court challenging the
Notification dated 26th July, 2004. The workers were not made party to the
writ petition. An ex parte stay of the Notification was granted by this court
on 23rd August, 2004. Subsequently, by a judgment dated 3rd February, 2005
the learned single Judge disposed of W.P. (C) No. 13953 of 2004 holding
that the High Powered Committee (HPC), set up by the Central Government
pursuant to the order passed by the Supreme Court in Oil and Natural Gas
Commission v. Collector of Central Excise 1995 Supp. (4) SCC 541, had to
grant permission to the AAI to litigate since the writ petition was against the
Central Government. Accordingly the writ petition was disposed of by
directing the AAI, the Union of India and the other Respondents to appear
before the HPC on 15th February 2005. The HPC was to grant a hearing and
pass orders within three months.
9. On 27th May 2005, the HPC passed an order recommending that the
Ministry of Labour should keep the interest of workmen engaged by TDIPL
in view and ensure to the maximum extent possible that these workers
should be provided work either by SHPL, the new contractor, or by engaging
more than one contractor for the international and domestic airports so that
the workers who were engaged by TDIPL and whose services were not
engaged by the new contractor SHPL could be engaged by the other
contractors. The CACLB was once again asked to look into the terms and
conditions of the employment of the workmen by the contractors in the job
of trolley retrieval.
10. The CACLB met on 30th /31st August, 2005 at Hyderabad to reconsider
the question of abolition of contract labour in the work of trolley retrieval at
the Delhi airports. The CACLB was of the view that it would be worthwhile
for the parties to make a genuine effort to reach an understanding. The Chief
Labour Commissioner (Central) also offered his services to bring about a
settlement. On 27th /28th December, 2005 the CACLB gave one last chance
to the management of AAI to take necessary steps and communicate the
results of the deliberations by the end of the first week of February 2006 to
enable the CACLB to take a decision at the next meeting. At the next
meeting of CACLB held in Kolkata on 16th /17th February 2006, the status of
the workers was again evaluated. The CACLB was asked by the AAI for
more time and the matter was adjourned by two months.
11. In the meanwhile, the privatization of the Delhi airports took place and
an agreement called the Operation, Management and Development
Agreement (OMDA) dated 4th April, 2006 was entered into between AAI
and DIAL which was a joint venture corporation (JVC) in which the AAI
held 26% shares and a group of companies held the balance 74%. This
group, defined in the agreement as the "Prime Member" Group, included
GMR Infrastructure Ltd. (31%), GMR Energy Ltd. (10%), Fraport AG
Frankfurt Airport Services Worldwide (10%), Malaysia Airports (Mauritius)
Pvt. Ltd. (10%). Other shareholders were GVL Investment Pvt. Ltd. (9%)
and India Development Fund (3.9%). In terms of Clause 2.2.3 the JVC (i.e.
DIAL) "shall undertake/provide aeronautical services and essential services
at the Airport Site." The term "Airport Site" was defined to mean "the
underlying land forming part of the demised premises (as defined in the
lease deed." In terms of the Clause 5.1 of the OMDA from the effective date
of the agreement "the rights and obligations associated with the operation
and management of the Airport would stand transferred to the JVC, who
shall be solely responsible and liable for the performance of all Aeronautical
Services, Essential Services and all other activities and services as presently
undertaken at the airport (other than Reserved Activities)". The JVC was to
perform "all existing contracts and agreements between AAI or any Relevant
Authority and any third party as relatable to the Airport from the effective
date, as if JVC was an original party to such contracts and agreements
instead of AAI and towards this end shall perform all responsibilities,
liabilities and obligations of AAI at JVC‟s risk and cost (including payment
obligations to counter parties)". During the Transition Phase, AAI was to
provide assistance to JVC on a best endeavour basis. The term "essential
services" is defined to mean those services listed in Schedule 16 to the
OMDA which in turn specifies trolleys, toilets, passenger baggage handling
and drinking water.
12. It requires to be mentioned that before the CACLB an argument was
advanced that with the advent of privatization there was a change in the
situation concerning the engagement of contract labour in trolley retrieval.
This was considered and it was opined by the CACLB, in its meeting on 6th
February 2004, that there would be nevertheless a demand for more
labourers for trolley retrieval. When the case went before the HPC in terms
of the order dated 3rd February 2005 of this Court, a similar argument was
advanced. In the minutes of its meeting held on 27th May 2005, the HPC
concurred with the CACLB and recommended that while issuing the
notification under Section 10 (1) CLRAA, the central government should
keep in view the interests of the workers engaged by TDIPL.
13. Meanwhile pursuant to the application made by DIAL to the Central
Government for registration of the establishment under the CLRAA, a
certificate dated 27th April, 2006 was issued to it under Section 7(2)
CLRAA. By a letter dated 24th May, 2006 the AAI wrote to the Secretary,
CACLB informing inter alia that DIAL had taken over the day to day
operations, management, control and development of the IGI airport with
effect from the intervening night of 2nd /3rd May, 2006. On 25th September
2006 the workers‟ union filed W.P. (C) No. 15156 of 2006 in this Court
seeking the reliefs as mentioned earlier. Immediately thereafter DIAL
applied for and obtained a certificate of registration dated 8 th November
2006 from the Government of the NCT of Delhi under the CLRAA.
14. By the impugned order dated 28th November, 2006 the learned single
Judge dismissed the writ petition holding that the Appropriate Government
in respect of DIAL would be the GNCTD and not the Central Government
since Respondent No. 5 DIAL "is not a company working under the
directions or control of the Central Government". It was accordingly held
that the notification dated 26th July, 2004 issued under Section 10(1)
CLRAA "was not applicable to the Respondent No. 5 since it has not been
issued in respect to the Respondent No. 5". It is further noted by the learned
Single Judge that the workers‟ union had raised an industrial dispute under
Section 10 of the ID Act contending that "a contract entered into between the
Respondent No. 6 TDI International Pvt. Ltd. and the AAI was sham and
camouflage and they should be regularized as permanent workmen of AAI".
It was observed that the present stand that the workmen were employees of
AAI and that they should be directed to be absorbed by AAI or Respondent
SHPL was contrary to the stand taken before the Industrial Tribunal. It was
held that since AAI had been divested of and DIAL had taken over the
management of the Delhi airports, and the notification dated 24th July 2006
issued by the Union of India had not been extended to DIAL, unless the
GNCTD issued a fresh notification under Section 10 CLRAA, DIAL would
not be bound by the earlier notification. It was further observed that
"although the trolley retrieval work has been shown as an essential function
but the petitioner has failed to show any clause by which the liability has
been foisted on the Respondent No. 5 to take the earlier contractor‟s
employees as its own employees". LPA Nos. 38 and 1065 of 2007 are by
the Workers‟ Union and the Union of India respectively against the
aforementioned judgment of the learned single Judge.
15. On 31st January 2007, the Deputy Chief Labour Commissioner issued an
office memorandum stating that consequent upon AAI leasing out some of
its Delhi airport‟s function to DIAL, "AAI may be treated as Principal
Employer and DIAL its agent so far as the Delhi Airport is concerned.
Under the circumstances, Central Government will continue to be the
Appropriate Government for the functions carried out by DIAL as an agent
of AAI". This was followed up by a letter dated 24th September 2007 written
by the Union of India to DIAL stating that the appropriate Government with
respect to the ID Act as well as the CLRAA was the Central Government. A
communication to the same effect was addressed also to the Delhi
Government on 28th September 2007. These have been challenged by the
DIAL in its writ petition.
16. On 16th October 2007 the CACLB made a renewed recommendation for
abolition of the contract labour system reiterating its earlier recommendation
made on 6th February 2004 on the basis of which the impugned notification
dated 26th July 2004 was issued by the Central Government. It
recommended that "the Contract Labour System in the job of trolley retrieval
in Delhi Airport should be abolished". It is stated that in May 2008 despite
the aforementioned observations, the AAI inducted fresh contract labourers
at the domestic and international terminal in Delhi through a new contractor.
Submissions of counsel
17. We have heard Mr. Colin Gonsalves, learned senior counsel for the
workers‟ union in both appeals and the writ petitions. On behalf of the
DIAL Mr. Sudhir Chandra, Senior Advocate, Mr. P.P. Rao, Senior Advocate
and Dr. A.M. Singhvi, Senior Advocate appeared. Mr. V.P. Singh, learned
Senior Counsel appeared for the AAI. Mr. Sachin Dutta, learned Advocate
appeared for the Union of India.
18. The first issue raised concerns the validity of the Notification dated 26 th
July 2004 issued by the central government under Section 10 (1) CLRAA.
AAI and DIAL have assailed the CACLB‟s recommendations dated 6 th
February 2004, on the basis of which the aforesaid Notification was issued,
on the ground that the CACLB ought to have awaited the completion of the
process of privatization as by the date of its recommendation the AAI
Amendment Act had already been enacted by the Parliament having received
the assent of the President on 7th September 2003. The other criticism is that
a fresh evaluation was required to be undertaken by the CACLB after the
remand to it of the entire case by the learned Single Judge. It is submitted
that with the impending privatization of the airports in Delhi, the parameters
for assessing whether there was justification for prohibiting contract labour
in trolley retrieval work were likely to undergo a change and therefore the
CACLB erred in opining to the contrary. It was generally submitted that
there was non-application of mind to the specific requirements of Section 10
CLRAA by the central government since it was not supposed to
mechanically accept the findings of the CACLB but make an independent
assessment.
19. The next point raised is that in any event the Notification dated 26 th July
2004 cannot bind DIAL. It has been contended by DIAL that one must look
into the definition of "industrial establishment or undertaking" under Section
2(ka) of the ID Act under which different units of a larger industrial
establishment may themselves be considered to be separate industrial
establishments. It is submitted that the definition of „appropriate
government‟ in the ID Act as it was originally enacted, was „incorporated‟ in
the definition of „appropriate government‟ with effect from 28 th January
1986 and not merely „referred to‟. Consequently, the subsequent amendment
with effect from 11th October 1995 to the definition of that term in Section 2
(a) of the ID Act to include the AAI as well as air transport service as
specified industries would not affect the definition of „appropriate
government‟ under the CLRAA. It is further urged that under Section 2(j) of
the ID Act "industry" means any business, trade, undertaking, manufacture
or calling of employers and includes any calling, services, employment,
handicraft, or industrial occupation or avocation of workmen. A reference is
also made to Section 2(k) which defines "industrial dispute" to mean any
dispute or difference between employers and workmen. It is submitted that
in view of the definition of "appropriate government" under Section 2(1) (a)
CLRAA, the definition of that term in Section 2 (a) of the ID Act would be
relevant. It is submitted that under Section 2(a)(i) ID Act the "appropriate
Government" in relation to any industrial dispute concerning the AAI
constituted under Section 3 of the AAI Act, or an air transport service, is the
Central Government. If the industry is carried on by or under the authority
of the Central Government then and then alone can it be said that the
appropriate government would be the Central Government and in all other
cases it would be the State Government.
20. DIAL contends that it is not an agent of AAI. Further, since AAI is itself
an eo nomine entity in terms of Section 2 (a) ID Act and an entity constituted
under Section3 of the AAI act, DIAL cannot be considered to be a delegate
of such entity. The contention is that the "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 Notification issued by the Government of the
NCT of Delhi prohibiting the employment of contract labour in trolley wok
in the establishment of DIAL. If the employer is not the AAI in a given case
then there can be no industrial dispute concerning the AAI. The dispute, if
at all, is between DIAL and its workmen and the AAI is not concerned at all.
In other words, the contention is that the focus is not so much on the place to
determine what is an establishment but whether there exists relationship of
employer and employee with reference to the principal employer and the
labour and whether, in the event of a dispute arising between them, the
appropriate Government would be the Central Government or the State
Government. Referring to the observations in the SAIL case, it is submitted
that since DIAL is not an entity that carries on its industry "by or under the
authority of the central government" and no such authority is in any event
conferred by any statute, the appropriate government in relation to DIAL
cannot be the central government. DIAL disputes that it is carrying on an air
transport service. It is 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.
DIAL says that it is performing its functions independently in its own
establishment which is not that of AAI‟s. Reliance is placed on the decision
of the learned single Judge of the Kerala High Court in Cochin
International Airport Limited Vs. Regional Labour Commissioner 2009 (3)
LLN 350. It is submitted that only certain functions have been entrusted to
DIAL by the AAI by virtue of the OMDA and therefore recourse to Section
12 A of the AAI Act to justify the application of the Notification under
Section 10 CLRAA to DIAL was not legally permissible.
21. It was contended by Mr. P.P. Rao, the second learned senior counsel
appearing for the DIAL that in terms of proposition No. 6 in para 125 of the
judgment in the SAIL case, AAI had the options of either continuing with
the job of trolley retrieval by employing regular workmen, or give up the
work of trolley retrieval forever or to sell or transfer the establishment along
with the business including the job of trolley retrieval to another person. He
contended that AAI had availed of the last mentioned option consistent with
the object of the insertion of Section 12A in the AAI Act. He further
contended that the notification dated 26th July 2004 remained suspended in
terms of the judgment of ONGC v. Collector of Central Excise (2004) 6
SCC 437 during the period when HPC was seized of the matter.
22. Dr. A.M Singhvi, the third learned Senior Counsel to appear on behalf of
DIAL submitted, on instructions, that although DIAL had in its pleadings
raised a preliminary objection as to the amenability of DIAL to the writ
jurisdiction of this court under Article 226 of the Constitution of India, for
the purposes of the present dispute DIAL was not pressing this point. He,
however, reserved the right of DIAL to urge this point in any other dispute
that may arise in future and which does not form the subject matter of the
present proceedings.
23. The workers‟ union countered the challenge to the validity of the
Notification dated 26th July 2004, by relying on the minutes of the
deliberations of the CACLB. It is pointed out that all of the contentions of
the AAI were dealt with and cogent reasons given for recommending the
prohibition of contract labour in trolley retrieval work in the Delhi airports.
This was reiterated by the HPC. Consequently the Notification dated 26th
July 2004 was unassailable. It is then submitted that in terms of the CLRAA
it is AAI which continues to be the principal employer while DIAL is the
contractor. It is contended that while individuals or entities may have control
of different departments in an establishment, the definition of the term under
the CLRAA does not envisage multiple principal employers or
establishments. It is submitted that the definition of an „establishment‟ under
the CLRAA is materially different from the definition of that term under the
ID Act which envisages separation of establishments. For the purposes of the
CLRAA, it is submitted, the prohibition on employment of 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 is submitted that even if DIAL is taken
to be the principal employer which has stepped into the shoes of AAI by
virtue of the OMDA, the notification under Section 10 CLRAA would bind
it and for DIAL too the appropriate government would be the central
government. Also, since DIAL is providing an air transport service, the
appropriate government is the central government.
24. The stand of the central government is supportive of the workers‟ union.
The validity of the Notification dated 26th July 2004 is defended on the basis
of the deliberations of the CACLB and the HPC. It is categorical that the
notification under Section 10 (1) CLRAA is qua the establishment and to the
body under whose control and authority the establishment is run. In other
words it is not qua the principal employer or contractor and even if either of
them is replaced the continued application of the prohibitory notification is
not affected. It is submitted that adopting a contrary interpretation would
defeat the object and purpose of the CLRAA. The central government
submits that DIAL is operating under the authority of the central
government. The industry that is carried on by DIAL by virtue of the OMDA
is relatable to the authority granted by Section 12 A of the AAI Act and that
it was only pursuant to the said statutory provision that AAI could lease to a
private entity certain functions of the AAI in terms of the OMDA. It is
submitted that DIAL is rendering "air transport service" including emplaning
and deplaning of passengers, handling of passengers‟ luggage, cargo booked
etc and therefore the central government is the appropriate government.
Issues for determination
25. Among the issues the issues that arise for consideration are whether the
Notification dated 26th July 2004 under Section 10 (1) CLRAA is valid and
if valid, whether it is binding on DIAL; whether AAI, and in terms of the
OMDA, DIAL, could be said to be the principal employer vis-à-vis the
workers employed in trolley retrieval. The corresponding question is
whether the workmen engaged by the contractors of DIAL can be said to be
the contract labourers. The further issue concerns the remedies the workmen
are entitled to be reemployed in the work of trolley retrieval on regular basis
in the Delhi airports.
Validity of the Notification dated 26th July 2004
26. The challenge to the Notification dated 26th July 2004 issued by the
central government under Section 10 (1) CLRAA is essentially on the
ground that it does not account for the factors mentioned in that provision.
These are indicated in sub-section (2) of Section 10 CLRAA as (a) whether
the process, operation or other work is incidental to, or necessary for the
industry, trade, business, manufacture or occupation that is carried on in the
establishment; (b) whether it is of perennial nature, that is to say, it is of
sufficient duration having regard to the nature of industry, trade, business,
manufacture or occupation carried on in that establishment; (c) whether it is
done ordinarily through regular workmen in that establishment or an
establishment similar thereto and (d) whether it is sufficient to employ
considerable number of whole-time workmen.
27. A perusal of the recommendations of the CACLB in its proceedings of
6th February 2004 shows that every one of the factors listed in Section 10 (1)
CLRAA were deliberated upon. The reasons given by the CACLB, after
considering the divergent submissions of the workmen and the AAI, are
cogent. The CACLB did consider the possible impact of privatization on the
work of trolley retrieval. It was correctly observed by the CACLB that
neither the nature of the work was likely to change from being one of a
perennial nature but even the volume of work would only increase with the
increase in the number of flights and the number of passengers using the
Delhi airports. The proceedings of the CACLB show that AAI contended
before it that "as the use of trolleys varies depending on the traffic variance,
it is not possible to engage a considered number of whole time workmen on
regular basis. In future due to privatization / mechanization manpower may
not be required. The present licensee is doing the work nearly with half of
the number of workers than that of earlier licensee". This was answered by
the CACLB by observing that "even if the process is mechanized, from the
date of its introduction, resort can be had to reduce manpower by way of
retrenchment by adopting due process of law. As regards privatization, even
if the work is transferred along with the operator to a private company, it
does not make any material difference as the Central Government would
continue to be the appropriate Government in respect of that private
establishment".
28. The HPC which subsequently considered the issue pursuant to the orders
of this Court observed in its order dated 27th May 2005 noted the factual
position that "the restructuring of Delhi (and Mumbai) airport is under active
consideration of the Government of India. Already Kochi airport in the
private sector is functional and Govt. has also granted approval for airport in
the private sector at Hyderabad and also recently granted approval for airport
in the private sector at Bangalore. Public-private participation in the
ownership or management of Delhi (and Mumbai) airport is under
consideration. Nevertheless, the Contract Labour (Regulation and
Abolition) Act, 1970 is equally applicable for all kinds of undertakings,
establishment / industries whether in the public, private or public / private
ownership or management. In this context it is again necessary to refer to
Section 10(2) (c) of the Act which does not appear to have been adequately
examined by the Ministry of Labour before the issue of the notification in
question". The HPC further noted that "under Section 10(2) (b) CLRAA the
work concerning retrieval of trolleys was certainly of a perennial nature
although it may not be the core function of the AAI, it is a necessity for the
passengers. With the increase in the number of flights and passengers, there
was bound to be requirement of more trolleys and, therefore, increase in the
work of trolley retrieval." Consequently, the HPC recommended to the
Ministry of Labour to keep the interest of the workmen engaged earlier by
TDIPL in mind and that in the event that the Ministry of Labour was not in a
position to accept the HPC‟s recommendations "the Committee have no
other option but to give clearance to AAI to challenge the notification before
the Hon‟ble Court".
29. Learned Senior Counsel for the AAI was unable to point out if any of the
parameters in Section 10(2) (a) to (d) CLRAA were not attracted in the
present case. The report of the CACLB is exhaustive and has considered all
the factors. The Central Government has accepted the recommendations.
There was no need to Central Government to again examine the reasons why
there should be a prohibition of contract labour in the job of trolley retrieval.
The AAI has been unable to show that any relevant material which ought to
have been considered was not considered by the CACLB and further that if
such material has been considered the CACLB it would have come to a
different conclusion.
30. Judicial notice can be taken of the phenomenal rise in the number of
flights emanating from and terminating at the Delhi airports and the
corresponding increase in the number of passengers using the Delhi airports.
We fail to understand how the policy of privatization could have brought
about a change to these parameters. The factual position obtaining today
vindicates the opinion of the CACLB that the work of trolley retrieval is of a
perennial nature and was likely to increase in volume in the future. The fact
that the amendment to the AAI Act was brought into force only with effect
from 1st July 2004, beyond the date of the CACLB‟s recommendation,
negates the contention that the CACLB ought to have awaited the impending
privatization of the Delhi airports before making a recommendation.
31. Having perused the order of the learned Single Judge by which the case
was remanded to the CACLB, we find that the terms of the remand were
indeed limited. The learned Single Judge in the judgment dated 5 th
November, 2003 reiterated the interim order dated 4th August, 2003 in which
a prima facie opinion had been expressed that "it does not appear that trolley
retrieval is essential for a successful functioning at the airport since arrived
and depart through the day". Furthermore since flights are arrived depart
work appears to be the work that would ordinarily be done through regular
work and thus to employee full time workmen in view of the nature and
extent of the work. It was further noticed that no plea was advanced during
the final hearing it may have prima facie view as recorded above. Therefore
in para 30, the learned single Judge ordered that "the recommendations of
the CACLB dated 20th July, 1999 and the consequent Government order
dated 18th April, 2002 based thereon quashed and set aside only insofar as
they declined to abolish contract labour for Trolley Retrievers". Further it
was directed that "since the limited issue which requires consideration is the
abolishing of contract labour for trolley retrievers in the light of materials
already on record, the CACLB is directed to dispose of this issue not later on
31st December, 2003". In view of the above mandamus of the learned Single
Judge, we fail to understand why CACLB was again required to re-examine
the entire issue afresh as suggested by the DIAL.
32. For the aforementioned reasons, we find absolutely no merit in the writ
petition filed by the AAI challenging either the recommendation dated 6 th
February 2004 of the CACLB or the notification dated 26h July, 2004 issued
by the Central Government under Section 10 (1) CLRAA on that basis.
Is the notification under challenge qua the establishment?
33. To this Court, it appears that the running theme of the CLRAA concerns
the activities in relation to an establishment. The prohibition of contract
labour brought about by a notification under Section 10(1) is with reference
to an establishment. This is obvious on a plain reading of Section 10
CLRAA which is as under:
"10. Prohibition of employment of contract labour -
(1) 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.
(2) Before issuing any notification under sub-section
(1) in relation to an establishment the appropriate
Government shall have regard to the conditions of
work and benefits provided for the contract labour
in that establishment and other relevant factors,
such as -
(a) whether the process, operation or other work
is incidental to, or necessary for the
industry, trade, business, manufacture or
occupation that is carried on in the
establishment;
(b) whether it is of perennial nature, that is to
say, it is of sufficient duration having regard
to the nature of industry, trade, business,
manufacture or occupation carried on in
that establishment;
(c) whether it is done ordinarily through regular
workmen in that establishment or an
establishment similar thereto;
(d) whether it is sufficient to employ
considerable number of whole-time
workmen." (emphasis supplied)
34. It can be seen, therefore, that both in relation to Section 10(1) and
Section 10(2) CLRAA it is the establishment which is the point of focus.
The recourse to the ID Act for the purposes of understanding what an
"establishment" is for the purposes of CLRAA is, in our view,
misconceived. Since the definition of "establishment" under the CLRAA is
unambiguous, it is futile to seek recourse to the ID Act to understand what
an "establishment" is for the purposes of the CLRAA.
35. It is apparent that for the purposes of the present case it is the Delhi
airports themselves that constitute the establishment of the AAI and later the
DIAL for the purposes of the notification under Section 10 CLRAA. It is the
work of trolley retrieval in such establishment that stands prohibited by
virtue of the notification under Section 10 (1) CLRAA.
36. The key actors in the statutory scheme of the CLRAA are the principal
employer, the contractor and the contract labourer. The key site is the
establishment in which such contract labour is employed. That the three
actors are described with reference to the establishment is plain from the
definitions contained in Sections 2(1)(b), 2(1)(c) and 2(1)(g) CLRAA which
read as under:
"2(1) (b) a workman shall be deemed to be employed as
"contract labour" in or in connection with the work of an
establishment when he is hired in or in connection with
such work by or through a contractor with or without the
knowledge of the principal employer;
2(1)(c) "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;
2(1)(g) "principal employer" means -
(i) In relation to any office or department of the
Government or a local authority, the head of that
office or department or such other officer as the
Government or the local authority, as the case may
be, may specify in this behalf,
(ii) in a factory, the owner or occupier of the factory
and where a person has been named as the
manager of the factory under the Factories Act,
1948 (63 of 1948), the person so named,
(iii) in a mine, the owner or agent of the mine and
where a person has been named as the manager of
the mine, the person so named,
(iv) in any other establishment, any person responsible
for the supervision and control of the
establishment."
Further "establishment" is defined under Section 2(1)(e) CLRAA to mean:
"(i) any office or department of the Government or a
local authority, or
(ii) any place where any industry, trade, business,
manufacture or
occupation is carried on;"
Under 2(1) (i) CLRAA a "workman" has been defined to mean "any person
employed in or in connection with work of any establishment
....................".
37. It is plain, therefore, that the establishment for the purposes of the
CLRAA is a place where any industry, trade, business, manufacture or
occupation is carried on and the contractor is also a person who undertakes
to produce a given result "for the establishment". A workman is also a
person who is employed as "in or in connection with the work of an
establishment". The principal employer also is defined to mean in relation to
an establishment "any person responsible for the supervision and control of
the establishment". If 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.
Appropriate Government
38. Notwithstanding that the definition of "appropriate government" under
Section 2(1)(a) CLRAA makes a reference to the ID Act, it has to be
understood in the context in which those words are used. Where, in relation
to an establishment, there is a dispute that arises between the employer and
the employee such dispute would have to be referred by the Government to
the Labour Court and if such Government happens to be the Central
Government, then for the purposes of the CLRAA also the appropriate
Government would be the Central Government. Thus an "establishment" for
the purposes of Section 2(1)(a) CLRAA cannot possibly be several
establishments as contemplated under the ID Act but one establishment. In
the Delhi airports if there is a dispute between the employees of the AAI and
the AAI, then there would be no manner of doubt that for resolution of such
dispute the reference would have to be made to the Central Government.
39. Section 2(1) (a) CLRAA reads as under:
"2(1) (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, the Central Government;
(ii) in relation to any other establishment, the Government of
the State in which that other establishment is situated;"
Therefore the reference to the ID Act in Section 2(1) (a) of CLRAA is
limited to understanding which is the appropriate government that can make
a reference when there is a dispute between the regular employees of the
establishment of the AAI and the AAI. It is that government which will be
the appropriate government in respect of that establishment for the purposes
of Section 10 CLRAA as well. The establishment remains the same. It
cannot be divided into several small establishments, where for one part the
appropriate Government would be the Central Government and for the other
parts it would be the State Government. Such an interpretation would run
counter to the scheme of the CLRAA and would defeat its object and
purpose.
40. The issue could be approached differently. Under Section 12A of the
AAI Act, the functions and powers of the AAI stand transferred to DIAL by
virtue of the lease of the airport to it by the agreement dated 4 th April 2006.
Section 12A of the AAI Act 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 of
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 credited thereto as if
such money is the receipt of the Authority for all
purposes of section 24.
(4) The lessee, 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."
41. If the powers and functions of the AAI under Section 12A of the AAI
Act stand transferred to the DIAL by virtue of the above section, which in
turn gives the statutory basis for the transfer of powers and functions by
virtue of the agreement dated 4th April 2006, then the corresponding
statutory obligation also gets automatically transferred to the DIAL. It is
inconceivable that by virtue of Section 12A the powers and functions of the
AAI will stand transferred and not the corresponding obligations. In fact, in
terms of Clause 5.1 of the OMDA the statutory obligations under the
CLRAA which are that of the AAI and its contractors also get transferred to
the CLRAA. This transfers all powers and functions and correspondingly
the obligations under the CLRAA by virtue of Section 12A of the AAI Act.
42. A reference was made to the observations of the Supreme Court in para
46 of the decision in the SAIL case which read thus:
"We have held above that in the case of a Central
Government company/undertaking, an instrumentality of
the Government, carrying on an industry, the criteria to
determine whether the Central Government is the
appropriate Government within the meaning of the
CLRAA Act, is that the industry must be carried on by or
under the authority of the Central Government and not
that the company/undertaking is an instrumentality or an
agency of the Central Government for purposes of
Article 12 of the Constitution; such an authority may be
conferred either by a statute or by virtue of the
relationship of principal and agent or delegation of
power and this fact has to be ascertained on the facts
and in the circumstances of each case. In view of this
conclusion, with due respect, we are unable to agree with
the view expressed by the learned Judges on
interpretation of the expression " appropriate
Government" in Air India Statutory Corpn. v. United
Labour Union (1997) 9 SCC 377. Point (i) is answered
accordingly." (emphasis supplied)
43. The above observations underscore the need to look to the AAI Act to
ascertain if the authority on DIAL is conferred not merely by the OMDA but
by statute. Section 12 A of the AAI Act is the source of DIAL‟s power
delegated to it under the OMDA by the AAI. 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 the
DIAL of the functions and powers of the DIAL in relation to the Delhi
airports is traceable to Section 12 A 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
the AAI. The authority of the Central Government is conferred by the statute
itself. Therefore it is not correct to contend that consequent upon the
OMDA, the establishment of the AAI i.e. the Delhi airports ceased to be
under the control of the Central Government.
44. 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 12A 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 12A in the AAI Act, there could not have been an OMDA between
AAI and DIAL.
45. There has been a considerable argument advanced on the basis of the
judgment in the SAIL case where a reference was made to the definition of
„appropriate Government‟ as it stood before the amendment in 1986. In para
20 of the SAIL judgment it was noticed that prior to that amendment the
function of appropriate Government was not a static one. It reads as follows:
"20. Addressing the definition of "appropriate
Government", it may be pointed out that clause (a)
of Section 2(1) was substituted by the Contract
Labour (Regulation and Abolition) Amendment
Act, 1986 with effect from 28.1.1986. Before the
said amendment, the definition reads as under:
"2(1)(a) "appropriate Government" means, -
(1) in relation to -
(i) any establishment pertaining to any industry
carried on by or under the authority of the
Central Government, or pertaining to any
such controlled industry as may be specified
in this behalf by the Central Government, or
(ii) any establishment of any railway,
cantonment board, major port, mine or
oilfield, or
(iii) any establishment of a banking or insurance
company, the Central Government,
(2) in relation to any other establishment, the
Government of the State in which that other
establishment is situated;"
46. The amendment made in 1996 to Section 2(a) of the ID Act whereby the
AAI was substituted for the International Airport Authority of India, did not
make any difference to the decision that the Central Government continued
to be the appropriate Government for the purposes of the airports.
47. Reference was made by counsel for the parties to the judgment dated 5th
June 2008 of the Bombay High Court in Writ Petition No. 617/2007
(Flamingo Duty-Free Shop Pvt. Ltd. v. Union of India). There the question
was whether Mumbai International Airport Ltd. (MIAL) could have awarded
the contract for a duty free shop to any third party and in that context
whether it was amenable to the writ jurisdiction. The present context is
entirely different. The petitioners here are seeking enforcement of the
Section 10 CLRAA notification even vis-à-vis DIAL which stepped into the
shoes of the AAI. Therefore DIAL is a proper and necessary party to the
writ petition. Given the reliefs sought in the writ petitions by the workers‟
union and consequently in the appeals by them, no order adverse to DIAL
can be passed without giving DIAL an opportunity of being heard. In any
event, we do not think that the decision of the Mumbai High Court, the
correctness of which is stated to be pending consideration of the Supreme
Court, is helpful to DIAL in the present case.
48. The judgment dated 26th August 2009 of the Division Bench of this
Court in Resources of Aviation Redressal Association v. Union of India
(W.P. 8918 of 2008), recognises in the context of a challenge to the charging
of airport/passenger tax by the DIAL, that "the lease under Section 12-A (1)
(of the AAI Act) is thus a statutory lease which enables the lessee to perform
the functions of the AAI enumerated in Section 12. In other words, there is a
statutory assignment of the functions under Section 12 to the lessee."
Having asserted before this Court in the aforementioned case that it has
stepped into the shoes of AAI in terms of the OMDA for the purposes of
collecting a passenger fee/tax, DIAL cannot be heard to say that it cannot be
held to have taken over the statutory obligations of AAI.
Incorporation by reference?
49. Although extensive arguments were addressed by Mr. Sudhir Chandra to
the effect that the ID Act was "incorporated" in the definition of appropriate
Government under Section 2(1)(a) of the CLRAA and not merely "referred",
he later did not press this point. In any event, in the manner in which we
have interpreted Section 2(1)(a) of the Act CLRAA it would make no
difference even if one were to say that the subsequent amendment to the
definition of the term „appropriate Government‟ in the ID Act would not
affect the definition under the CLRAA. In Maharashtra State Road
Transport Corporation v. State of Maharashtra AIR 2003 SC 1909, it was
observed as under:
"11. The distinction between incorporation by reference and adoption
of provisions by mere reference or citation is not too easy to highlight.
The distinction is one of difference in degree and is often blurred. The
fact that no clear-cut guidelines or distinguishing features have been
spelt out to ascertain whether it belongs to one or the other category
makes the task of identification difficult. The seminars associated with
interpretation play their role to a limited extent. Ultimately, it is a
matter of probe into legislative intention and/or taking an insight into
the working of the enactment if one or the other view is adopted. The
doctrinaire approach to ascertain whether the legislation is by
incorporation or reference is, on ultimate analysis, directed towards
that end. The distinction often pales into insignificance with the
exceptions enveloping the main rule."
50. In Principles of Statutory Interpretation, GP Singh, 10th Edn (2008), p
306 it is stated as under:
"It has further been observed that the rule that the repeal or
amendment of an Act which is incorporated in a later Act has no
effect on the later Act or on the provisions incorporated therein is
subject to four exceptions: (a) where the later Act and the earlier Act
are supplemental to each other, (b) where the two Acts are in pari
materia, (c) where the amendment of the earlier Act if not imported in
the later Act would render it wholly unworkable, and (d) where the
amendment of the earlier Act either expressly or by necessary
intendment also applies to the later Act." (See: State of Madhya
Pradesh v. M.V. Narasimhan AIR 1975 SC 1835)
When examined in light of the above settled legal principles, it appears to us
that irrespective of whether the amendment to Section 2(a) ID Act was later,
the appropriate Government for the purposes of Section 10 CLRAA in the
instant case continues to be the Central Government.
Air Transport Service
51. The next contention to be dealt with is that DIAL is not undertaking an
air transport service and therefore the appropriate government as far as
DIAL is concerned cannot be the central government. A reference was made
to the judgment of the Kerala High Court in Cochin International Airport
Limited v. Regional Labour Commissioner 2009 (3) LLN 350 to contend
that the definition of „Air Transport Service‟ in Section 2(e) of the AAI Act
and in Rule 3(a) of the Aircraft Rules 1937 indicates that the services
rendered by the Cochin International Airport Limited was not „Air Transport
Service‟. DIAL‟s submission is that the term „Air Transport Service‟ is used
in a generic sense and has to be distinguished from an establishment
constituted under an Act. It is concerned with the actual transport by air or
by cargo from one airport to another through provisioning of flights. It is
stated that this is carried by a scheduled air transport services provider as
defined under Rule 3(a) of the Aircraft Rules. A reference was made to Rule
134 of the Aircraft Rules where under an air transport service provider
requires to be issued a licence. It is contended that since DIAL has only a
licence under Rule 78 and not Rule 134 it is not providing an air transport
service.
52. While there may be merit in the contention of the DIAL that it is not
providing an air transport service, it still does not help it to wriggle out of the
obligation under Section 12A of the AAI Act. A careful reading of the AAI
would show that air traffic service has been defined under Section 2(d) to
mean as under:
"2(d) "air traffic service" includes flight information
service, alerting service, air traffic advisory service, air
traffic control service, area control service, approach
control service and airport control service".
Section 2(e) „air transport service‟ to mean as under:
"2(e) "air transport service" means any service, for any
kind of remuneration, whatsoever, for the transport by air
of persons, mail or any other thing, animate or inanimate,
whether such service relates to a single flight or series of
flights."
53. 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."
54. 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) 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 civil enclaves remain with the AAI
notwithstanding that it has entered into an OMDA with the DIAL. We find
that the decision of the Kerala High Court does not notice the above
provisions of the AAI Act. While 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 the OMDA. Only „air traffic
services and provision of watch and ward‟ are, in terms of Section 12-A AAI
Act to be retained by AAI as part of its functions. In our view, trolley
retrieval along with toilets and handling of baggage or cargo 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 the other
kinds of air transport services, it is certainly meant to provide the trolley
retrieval services at the Delhi airports.
55. We are, therefore, of the view that for the purposes of establishment of
the Delhi airports it is the Central Government that continues to be the
appropriate Government. The notification under Section 10(1) CLRAA will
continue to govern the "establishment" of Delhi airports notwithstanding the
privatization of the management of the airports by virtue of the agreement
dated 4th April, 2006 between AAI and the DIAL. Consequently, we reject
the contention of the DIAL that it is not bound by the notification under
Section 10 CLRAA.
Does the Section 10 CLRAA Notification bind DIAL?
56. It is finally contended that a reading of the notification dated 26th July
2004 would show that it prohibits employment of contract labour in any
process, operation and other work in the establishment of the AAI and not of
the Delhi airports themselves. It is contended by DIAL that it is not a mere
contractor or agent of AAI, and after the OMDA, it is carrying on "its own
industry in its own establishment at the international and domestic airports at
Delhi." It is submitted that the notification under Section 10 (1) CLRAA
cannot automatically be made applicable to the establishment of DIAL. This
submission, in our view, is wholly misconceived. It is not as if DIAL has its
own establishment and is carrying on its activity in "its own establishment".
The establishment is that of the AAI which has been leased out to the DIAL
subject to Section 12A of the AAI Act.
57. The key to understanding this issue is Section 12A of the AAI Act. It
not only transfers the powers and functions but also the corresponding
statutory obligations of the AAI. In fact, the OMDA also recognizes this
position. Therefore, even if DIAL is at present not carrying on any activity
in the establishment of the AAI i.e. in the Delhi airports, it cannot be
possibly contended that it is not bound by the notification under Section 10
CLRAA. This flows logically from our earlier finding that the notification
under section 10 CLRAA pertains to an establishment. At this cost of
repetition, it is reiterated that the establishment remains unchanged. Section
10 CLRAA notification is relatable to such establishment. There may be any
private players with whom an agreement like the OMDA could be entered
into by the AAI in terms of Section 12A of the CLRAA. The obligation
flowing from the notification under Section 10 CLRAA will continue to bind
every private player that steps into the shoes of the 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-à-vis such private player has to be re-started. That was
never the intention of the legislature in enacting the 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. We,
accordingly, reject the submission as being without merit.
58. As far as the submission that the notification dated 26th July 2004 was
impliedly stayed by this court, we are afraid that it proceeds on a
misconception and an erroneous reading of the judgment of the Supreme
Court in ONGC. The notification there was under the Central Excise Act
and not under the CLRAA. The context in which that interim order was
passed, therefore, was entirely different. In the instant case, there was no
express suspension of the statutory notification dated 26th July 2004. In any
event, there could not have been any automatic stay of the notification as is
sought to be contended. Even in terms of the interim orders passed by this
Court directing status quo to be maintained, Section 12A of the AAI Act, as
interpreted by us, transferred not only the powers and functions but also a
corresponding statutory obligation under the CLRAA to DIAL. That position
remained during the pendency of the present cases.
Conclusion
59. We accordingly set aside the impugned judgment dated 28 th November
2006 passed by the learned Single Judge. We hold that DIAL is equally
bound by the notification dated 26th July 2004 issued by the Central
Government under Section 10 CLRAA prohibiting the employment of
contract labour in the work of trolley retrieval in the Delhi airports.
60. The challenge raised by the DIAL to the clarification issued on 24 th
September 2007 by the Chief Labour Commissioner (Central) that the
Central Government is the appropriate Government for the airport
establishment is entirely without merit. We have already explained the
reasons for our conclusion that in relation to the Delhi airports it is the
Central Government which is the appropriate Government for the purposes
of the CLRAA. Even for the purposes of ID Act it would be the Central
Government which is the appropriate Government. Consequently, the
consequential order dated 22nd November 2007 passed by the Chief
Secretary, GNCTD also does not suffer from any illegality. The writ
petition by DIAL challenging it is also, therefore, entirely without merit.
61. Once it has been held by this Court that the DIAL continues to be bound
by the notification under Section 10 CLRAA, the question that next arises is
the consequential order that requires to be passed. This is governed by the
SAIL case. Clauses 5 and 6 of para 125 of the SAIL judgment require a
determination of the issue whether the contract under which the workers
were employed by the TDIPL is a sham or bogus one. It is apparent that
there is already an industrial dispute raised in this regard. In terms of the
judgment in SAIL v. Union of India (2006) 12 SCC 233, this issue is to be
decided only by the industrial adjudicator. The outcome of that dispute will
determine the ultimate reliefs that can be granted to the workmen in terms of
the SAIL judgment.
62. Before concluding, we place on record the submission made by Dr.
Singhvi that for the purposes of the present litigation, DIAL is not pressing
the ground regarding its amenability to the writ jurisdiction under Article
226 of the Constitution. We clarify that notwithstanding the present
judgment, the DIAL would be free to urge the point regarding its
amenability to the jurisdiction of High Court under Article 226 of the
Constitution in any other proceeding.
63. For the aforementioned reasons we hereby allow LPA Nos. 38 of 2007
and 1065 of 2007 and dismiss Writ Petition (C) Nos. 139 of 2008 and 6763
of 2008. Each of the Respondents in the two LPAs will pay to the
Appellants Rs.10,000 each as costs within a period of four weeks.
S.MURALIDHAR, J
CHIEF JUSTICE
DECEMBER 18, 2009
dk
