IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WA.No. 773 of 2008 -------------------- AGAINST THE JUDGEMENT IN WPC.16155/2005 Dated 20/02/2008 .................... APPELLANT(S): PETITIONERS IN THE WPC ----------------------------------- 1. THE INDIAN AIRLINES PLANT ENGINEERS FORUM, REPRESENTED BY ITS CONVENOR, MATHUKUTTY NINAN, S/O.E.C.NINAN, AGED 48 YEARS, MANAGER (PE), AIR INDIA NACIL (I) TRIVANDRUM, RESIDING PERMANENTLY AT PALAKKUNNEL HOUSE, MAMOOD P.O., CHANGANASSERY, KOTTAYAM. 2. MATHUKUTTY NINAN, S/O.E.C.NINAN, AGED 48 YEARS, MANAGER (PE), AIR INDIA NACIL (I), TRIVANDRUM ,RESIDING PERMANENTLY AT PALAKKUNNEL HOUSE, MAMOOD P.O., CHANGANASSERY, KOTTAYAM. 3. M.LOGANATHAN, S/O.MARICHETTIAR, AGED 58 YEARS, RETIRED MANAGER (PE), INDIAN AIRLINES, RESIDING AT 53/6, MARIAMMAN KOVIL STREET, PALAVARAM, CHENNAI - 43. 4. P.N.ANIL RAJ, S/O.K.NARAYANAN, AGED 46 YEARS, MANAGER (PE), AIR INDIA NACIL (I), TRIVANDRUM, RESIDING PERMANENTLY AT PRASHANTHY, TC 14/1674 (17), MATHOPPU LANE, KANNAMMOOLA, MEDICAL COLLEGE P.O., TRIVANDRUM. 5. VASANTHY NAMBIATH, W/O.MADHAVANKUTTY, AGED 46 YEARS, MANAGER (PE), AIR INDIA NACIL(I) MUMBAI, RESIDING AT INDIAN AIRLINES STAFF COLONY II, KALINA, SANTACRUZ EAST, MUMBAI - 29. 6. ABDU SAMAD BABU, S/O.MOHAMMED, AGED 45 YEARS, MANAGER (PE), AIR INDIA NACIL (I), MUMBAI, RESIDING PERMANENTLY AT PUNNAKKAL PARAMBIL HOUSE, PONEKKARA P.O., ELAMAKKARA, KOCHI - 682 026. WA No.773/2008 7. T.A.PIOUS, S/O.T.V.ABRAHAM, AGED 46 YEARS, MANAGER (PE), AIR INDIA NACIL (I), MUMBAI, PERMENANTLY RESIDING AT THALIANEZHATH HOUSE, AYYAPPANKAVU P.O., KOCHI 682 018. BY ADV. SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE SRI.M.R.HARIRAJ SRI.SURAJ.S SRI.P.A.KUMARAN SMT.VINEETHA B. SMT.NEELIMA V.NAIR RESPONDENT(S): RESPONDENTS IN THE WPC ------------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY CIVIL AVIATION, NEW DELHI. 2. INDIAN AIRLINES LTD., REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, AIRLINES HOUSE, GURDWARA RAKAB GANJ ROAD, NEW DELHI 110001. ADV. SRI.E.K.NANDAKUMAR FOR R2 SRI.A.K.JAYASANKAR NAMBIAR FOR R2 SRI.ANIL D. NAIR FOR R2 SRI.T.P.M.IBRAHIM KHAN,ASST.S.G FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.773/2008 ------------------------------ Dated this, the 14th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The writ petitioners are the appellants. The respondents herein were the respondents in the Writ Petition. 2. The brief facts of the case are the following: The dispute that arose for resolution in this appeal was concerning certain aspects of the Productivity Linked Incentive Scheme applicable to the appellants. Normally, the performance of a worker or a group of workers similarly placed is taken into account for disbursing Productivity Linked Incentive (for short “PLI”) to them. In this case, the grievance of the appellants is that the productivity or its improvement brought about by them is never reckoned as a criterion for payment of PLI to them. 3. The appellants are Plant Engineers. They are governed by Indian Airlines Employees' (Aircraft Engineering Department) Service Regulations. The PLI Scheme was WA No.773/2008 - 2 - introduced by the Indian Airlines in 1996 for various groups of officers and employees. Annexure-A1 is the bipartite settlement concluded between the management of the Indian Airlines and All India Aircraft Engineers' Association concerning payment of PLI. That settlement covers Aircraft Engineers, Senior Aircraft Engineers and Deputy Chief Aircraft Engineers. By Annexure-A2 dated 28.6.1996, the management issued an order extending the benefit of Annexure-A1 to the technical category of employees represented by Air Corporation Employees Union. Still later, the management concluded Annexure-A3 settlement, which is also a bipartite settlement with the Indian Aircraft Technicians' Association, representing Senior Inspector/Senior Foreman, Inspector A/Foreman A, Inspector/Foreman, Senior Master Technician/Master Technician, Senior Technician and Technician. The appellants were members of Indian Airlines Officers' Association. After mutual negotiation, a scheme for payment of PLI was evolved for the members of that Association, including Plant Engineers, like the appellants. Since the members of the said Association WA No.773/2008 - 3 - were not workmen in terms of the Industrial Disputes Act, no formal bipartite settlement was signed. Based on mutual negotiation, the management issued Ext.P1 communication, which contained the incentive scheme for them. The appellants were dissatisfied with the benefits flowing from Ext.P1. Page 7 of Ext.P1 would show that the office bearers of the Indian Airlines Officers' Association have accepted the terms of that settlement. They have signed Ext.P1 after making the endorsement “We agree to the above terms and conditions”. 4. The appellants and others filed a representation, a copy of which is produced as Ext.P3 in the Writ Petition, seeking modification of Ext.P1 scheme. Their Association also filed Ext.P4 representation. When there was no response from the side of the management, some of the appellants and others approached this Court and this Court directed the management to consider their claim. In the meantime, by Ext.P5 communication, the terms of Ext.P1 were improved in so far as they were applicable to various technical staff other than Plant Engineers. This aggravated the grievance of the appellants and WA No.773/2008 - 4 - therefore, they pursued the matter further before the authorities and this Court. Pursuant to the judgment of this Court Ext.P10, the management of the 2nd respondent considered the grievance of the appellants and rejected it, by Ext.P11 order dated 9.12.2003. After some time in 2005, by Ext.P14 communication dated 15.4.2005, the PLI was revised for Plant Engineers. But, the grievance they raised against Ext.P1 was not redressed even while issuing Ext.P14. 5. According to the appellants, the parameters for grant of PLI should be the work of the concerned group of Engineers or Technicians. In the case of the flying crew, their performance which results in more flying hours, is taken as the main parameter for grant of incentive. For the Aircraft Engineers and Engineers (SS) also incentive is paid to them based on their performance. But, in the case of Plant Engineers, the general performance of the industrial establishment alone is taken into account for paying PLI to them. Their performance is not taken as the basis to arrive at the quantum of incentive to be paid to them. Therefore, they say, the incentive payable to them is WA No.773/2008 - 5 - based on somebody's performance, over whom they have no control. The same is highly arbitrary and discriminatory. For other groups, based on their performance, incentive is granted, whereas in the case of Plant Engineers, they have to look for better performance from the side of others, irrespective of their best performance in the Plant. This was the grievance they were highlighting against Ext.P1. The said grievance continues even after the issuance of Ext.P14. Their grievance was not addressed properly or redressed while Ext.P11 order was passed pursuant to the direction of this Court. So, the appellants filed the present Writ Petition, challenging Ext.P11 and also seeking consequential reliefs. They also challenged Ext.P14 to the extent it was adverse to them. The discrimination meted out to them was highly arbitrary and therefore, violative of their fundamental rights under Articles 14 and 16 of the Constitution of India, it was submitted. 6. The 2nd respondent filed a detailed counter affidavit in the Writ Petition, resisting the prayers therein. According to the said respondent, no discrimination is practised by it. All the WA No.773/2008 - 6 - Plant Engineers are treated alike. The flying crew and the Aircraft Engineers are discharging functions directly connected with the operation of the aircrafts. The functions of the flying crew are more crucial and therefore, they were granted highest rate of incentive. Then comes the Aircraft Engineers and Engineers (SS). They are also intimately connected with the operation of the aircrafts in the Airports. The Plant Engineers work in the Plants or factories. They are mainly engaged in the production of materials required for the operation and maintenance of the aircrafts. Therefore, they are not entitled to get incentive at the rate applicable to the other groups mentioned above. Further, the appellants and their Association are the beneficiaries of Exts.P1 and P14. After taking advantage of them, they cannot turn round and criticise them. Discrimination can be alleged only if persons alike are treated differently. In this case, all the Plant Engineers are treated alike. The parameters applicable for computing incentive to them are the same and therefore, there is no discrimination among them. The Plant Engineers have no right to claim that WA No.773/2008 - 7 - the parameters applicable to them should be those applicable to the flying crew or Engineers/Technicians connected with the operation of the aircraft. So, the 2nd respondent prayed for dismissal of the Writ Petition. 7. The appellants filed a reply affidavit, reiterating their contentions and also meeting the averments in the counter affidavit. The learned Single Judge, after hearing both sides, found that no ground was made out, warranting interference and therefore, dismissed the Writ Petition. Hence this appeal. 8. The learned senior counsel Sri.M.R.Rajendran Nair, who appeared for the appellants, took us through the pleadings and materials on record and pointed out the alleged discrimination in the reckoning of parameters for different groups of employees. The subordinates working under the Plant Engineers are given a better deal. The Plant Engineers alone are discriminated by employing a different norm for disbursing incentive to them, it is submitted. 9. The learned counsel for the 2nd respondent reiterated the aforementioned contentions raised on behalf of the WA No.773/2008 - 8 - respondents in the Writ Petition. He submitted that the allegation of discrimination is unfounded, for the reasons already explained by the said respondent in its counter affidavit and therefore, prayed for dismissing the appeal. 10. Performance Linked Bonus, Performance Linked Incentive etc., are the new schemes evolved by the managements in the industrial sector to extract maximum work and also to correspondingly reward the employees and officers concerned. Certain units or branches of an industry will be vital for the well being of the industrial unit and therefore, workmen or officers engaged in such units/branches are rewarded better for increased productivity. Certain groups of workmen, though they are not essential for the increase in production, like Sweepers, Gardeners etc., are also given incentive along with others but at a lower rate. This is the usual general practice available in all modern industries. Essentially, it is a managerial function to decide as to which of the employees or sections should be encouraged to achieve more production, by providing an incentive scheme. In certain other branches also, owing to WA No.773/2008 - 9 - collective bargaining, even though their services are not essential for the increase in production, the managements are compelled to give incentives. So, in the industrial sector, for granting incentives to workmen and officers, we cannot discern any uniform principle being applied. That will depend upon the circumstances of each industrial unit, including the bargaining power of the employees/workmen concerned, engaged in different units. So, in this case, if the management decides that the Aircraft Engineering Wing and the operating staff should be given the maximum incentive based on their performance and certain others need be given incentive based on the overall performance of the industry, we think, this is not a matter which could be subjected to judicial review. They are managerial decisions taken in exigencies of the running of the industry. Some decisions may not appear to be rational, but everyone connected with the industry knows many decisions concerning workmen are taken based on collective bargaining and “give and take” principle. There is no set norms or standards for granting those benefits. This principle is equally applicable for incentive WA No.773/2008 - 10 - schemes also. Therefore, the different parameters applied for computing the incentive benefits to the Plant Engineers cannot be judicially reviewed by this Court, on the ground that there is some discrimination with reference to the Engineers engaged in certain other units. 11. Normally, this Court can grant relief where there is a right and the right is denied by the management. If the appellants want improvement of some of the benefits enjoyed by them, we think, this Court is normally powerless, unless some gross discrimination is brought to the notice of this Court, which may persuade this Court to extend some benefits to the appellants also, which are enjoyed by persons similarly placed. We think, the ground of attack based on Article 14 in this case, cannot be accepted. The Engineers working in different departments stand on different footing, especially, in the matter of grant of incentives. If the contention of the appellants is accepted, this Court will be, under Article 226 of the Constitution of India, interfering with the managerial decisions of an industrial concern, without knowing its consequences on WA No.773/2008 - 11 - the overall functioning of the industry. In exercise of the power of judicial review, we cannot step into the shoes of the Manager. In the result, we think, the grievance raised by the appellants is one which could not be redressed under Article 226 of the Constitution of India. Accordingly, the Writ Appeal fails and it is dismissed. K. Balakrishnan Nair, Judge. C.T.Ravikumar, Judge. nm.