-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition (Ld) No. 590 of 2007 Air India Cabin Crew Association ) Inflight Service Building, ) Medicon Bhavan, NITC, Sahar ) Andheri (E), Mumbai 400 099 ) ..Petitioner vs. 1. Union of India, Ministry of ) Labour, through the Government) Pleader, Aiyakar Bhavan, ) Mumbai 400 020 ) 2. Air India Limited ) Air India Building, Nariman ) Point, Mumbai 400 021 ) 3. Mr.V.A.Ferreira ) Executive Director - HRD & IFS) Air India Limited, NITC,Sahar ) Mumbai 400 099 ) ..Respondents Mr.J.P.Cama with Mr.K.P.Anilkumar for petitioner Ms.L.S.Patil for respondent no.1 Mr.R.A.Dada with Mr.S.K.Talsania and Mr.J.S.Saluja i/b M/s M.V.Kini and Co. for respondent nos. 2 and 3 Closed for orders on 21.4.2007 Judgment pronounced on:21.6.2007 CORAM: SWATANTER KUMAR C.J. CORAM: SWATANTER KUMAR C.J. CORAM: SWATANTER KUMAR C.J. & S.C.DHARMADHIKARI J. & S.C.DHARMADHIKARI J. & S.C.DHARMADHIKARI J. 21st June, 2007 21st June, 2007 21st June, 2007 J U D G M E N T :(PER S.C.DHARMADHIKARI J.) J U D G M E N T :(PER S.C.DHARMADHIKARI J.) J U D G M E N T :(PER S.C.DHARMADHIKARI J.) -2- 1. Rule. Respondents waive service. By consent, Rule made returnable forthwith. 2. By this petition under Article 226 of the Constitution of India, the petitioners challenge the order dated 6th March, 2007 issued by respondent no.3 for and on behalf of respondent no.2 (hereinafter referred to as the impugned order) by which the crew complement is rationalised in the manner stipulated in the same. 3. The crew complement as stipulated was effective from 15th March, 2007. The present petition was filed on 13th March, 2007. An application for urgent ad-interim order was made before the Division Bench of this Court on 14th March, 2007. This Court directed that the impugned order should not be acted upon. This ad-interim order is continuing till date. 4. The factual backdrop is as under: 5. The petitioner is a Trade Union registered under the Trade Unions Act. Respondent No.2, Air India Limited, is a Government Company registered under the Companies Act, 1956. According to the petitioner, it is controlled by the Ministry of Civil Aviation, Government of India and is a State or other Authority as enshrined under Article 12 -3- of the Constitution of India. Respondent No.3 is the Executive Director - HRD and IFS of respondent no.2. The petitioner represents cabin personnel in the workmen category employed by Air India. This Union is recognised and has been negotiating with the management on various charters of demands and arriving at settlements for decades together. The grievance of the members as espoused by the petitioner pertains to the terms and conditions of service, payscales and Flight related allowances, benefits and allied matters. 6. The cabin crew on board the Aircraft is categorised in the following manner:- a) Inflight Supervisor b) Flight Purser c) Assistant Flight Purser d) Air Hostess e) Cabin crew (cabin personnel recruited from 2003 onwards) The post of an Inflight Supervisor is in the managerial cadre and hence the supervisors are not members of the petitioner Association. The categories of Flight Pursers, Asstt.Flight Pursers and Air Hostesses recruited prior to 2003 as compared to the cabin crew recruited from 2003 -4- onwards, are governed by separate and distinct conditions of service, scales of pay, Grades, Flight related allowances etc. They further have been assigned separate and distinct powers, duties, responsibilities and job functions on board the aircraft. Hence, there is no provision for interchangeability of job functions for the categories (a) to (d) mentioned above. The category of cabin crew (e) have uniform conditions of service irrespective of their sex and are presently deployed to perform the functions of an Asstt.Flight Purser or an Air Hostess on board the aircraft, depending upon the vacancy in each of the two separate and distinct categories. 6. Bearing in mind the separate and distinct powers, duties, responsibilities and job functions on board of the categories mentioned above, the term Cabin Crew Complement can broadly be meant to be understood as the number of Cabin personnel required from each of the above categories to perform their separate and distinct job functions on board the aircraft. These would include flight services in all its aspects and handling flight safety functions and emergencies. The strength of the Cabin Crew Complement is determined bilaterally after taking into consideration manifold factors including the capacity/the number of passengers per aircraft, type of inflight/meal services and the corresponding workload, number of Galley -5- Complexes, the zone-wise configuration/seating of passengers, the number of cabin crew required to handle an inflight emergency including evacuation of the aircrafts, etc. The prescribed number of cabin crew for each type of aircraft multiplied by the number of aircrafts of each type along with provisions made for different types of leave, patterns of operations, duration of flights from departure to the arrival at base (which vary from one day to 16 days), stand by duties at base stations (Mumbai and Delhi), annual flight safety and other refresher courses mandated by the DGCA and some other factors helps us to arrive at the standard Force of the number of cabin crew required to efficiently and harmoniously operate the flights on a 24 hours/365 days basis. 7. On 3rd January, 1981, the respondent Air India had unilaterally reduced the cabin crew complement on board the aircraft. This decision of Air India was challenged by the present petitioner by approaching this Court by way of a writ petition, being writ petition no.44 of 1981. The said petition was based on three main grievances viz., that the said change was a change in service condition of the cabin crew and this was done without notice and hence illegal; that there was a Record Note which did not permit such an unilateral change and the reduction was in violation of the Record Note; and that the reduction was -6- not done with the consent or approval of the petitioner. 8. According to the petitioner, the above writ petition was opposed by the Management on various grounds but by a detailed judgment this Court noted that there was no requirement for Air India to give a notice of change under sec.9A of the Industrial Disputes Act, 1947 (for short ID Act). This was because there was an exemption granted by the State Government on 29th August, 1960 in exercise of powers conferred by section 9B of the ID Act. However, the point to be noted is that in 1960, it was the State Government which was the "Appropriate Government" which had a power to grant such exemption. Further, this Court noted that "Record Note" cannot be treated as "settlement" and observation is that the management was permitted to determine the crew complement as per Justice Khosala (1964) and Justice Maheshchandra (1972) Awards. Thus, the judgment of this Court, according to the petitioner, was based on the facts brought to the notice of the Court at the relevant time. 9. It is not disputed that the judgment referred to above was delivered by a learned Single Judge of this Court. The learned Single Judge’s judgment was carried in appeal but the Division Bench did not interfere with the same. -7- The petitioner, therefore, challenged the judgment and order in the Supreme Court of India and proceedings were numbered as Civil Appeal no.699 of 1981. During the pendency of this Special Leave Petition/Civil Appeal, the negotiations were once again held between the petitioner and the Management on various issues including the cabin crew complement. As a consequence of these negotiations, an assurance came to be given by the Management that the Management had no intention of any unilateral reduction of cabin crew complements. This assurance is recorded in clause 4(ii) of the Record Note of Understanding dated 12th May, 1987 (Annexure A to the petition). 10. It is in these circumstances that the petitioner contends that the judgment of this Court delivered in Writ Petition No.44 of 1981 would not have any application. The subsequent negotiations resulting in the Record Note of Understanding and the agreement dated 25th December, 1988 would govern the service conditions and other matters. The petitioner makes a reference to the agreement dated 25th December, 1988 and more particularly clause (IV) thereof. According to the petitioner, the category-wise cabin crew complement for each type of aircraft is agreed between the parties. A copy of the relevant clause in the agreement along with the schedule is annexed as Annexure B to the petition. -8- 11. It is the case of the petitioner that the Record Note of Understanding signed prior to this agreement will also be entitled to the same status as is enjoyed by the agreement arrived at pursuant to the negotiations. A reference is made to section 2(p) of the ID Act, 1947 defining the term "Settlement". It is the case of the petitioner that with the induction of the newer types of aircrafts in the Air India fleet subsequent to the 1988 Agreement, a need was felt to once again determine the Cabin Crew Complement for them. After exhaustive discussions, the Cabin Crew Complement was once again determined and agreed upon by the parties to this petition. A Record Note of Understanding was signed on 17th March, 1995. Clause 1 of the said agreement deals with the Cabin Crew Complement of all the different types of aircrafts on a categorywise basis. A comprehensive wage settlement under Section 2(p) read with section of the Industrial Disputes Act, 1947 with Rule 58 and Industrial Disputes (Central) Rules, 1957 was entered into between the Respondent No.2 Company and the petitioner Association on 5th June, 1997. Clause 1(a) of the said Settlement states as under: - "This settlement is in supersession of all other earlier Agreements, Record Notes, Understandings, -9- awards and past practices reached between the Management of Air India Ltd. and the Association, in respect of matters specifically dealt with or amended or modified and covered by it. In so far as matters which are not specifically covered by this Settlement, existing terms and conditions, past practices, duties and responsibilities, benefits and obligations covered by the earlier Settlements/Awards, Record Notes and Understanding will continue to be applicable between the Management and the Association" Clause 2 of the said Settlement partially modified and reduced the Cabin Crew Complement on B747-400 and B747-300 aircrafts by one cabin crew. The revised Cabin Crew Complement of all the aircrafts continues to be applicable till date. 12. As a result of the aforesaid, the petitioner contends that the combined reading of these agreements/settlements of 1987, 1988, 1995 and 1997 would reveal that the management has given up all its stands taken earlier that they had power to unilaterally determine the cabin crew complements for each type of aircrafts on category-wise basis. On the other hand, the Management has accepted and -10- continued the practice from 1987 of entering into the agreements with the petitioner and determining the cabin crew complements on Bilateral basis. For the purpose of industrial peace and harmony, the cabin crew complement for the new type of aircraft shall be determined prior to their induction on category-wise basis. The petitioner then makes a reference to the order passed in Civil Appeal No.699 of 1981 by the Hon’ble Supreme Court. The Civil Appeal was disposed of in the light of subsequent developments and changed situation without deciding the issue raised therein. After placing reliance upon the order passed in the civil appeal, the petitioner contends that barring temporary reduction in cabin crew complement for special occasions, the specific, clear and written understanding was that the cabin crew complement would be determined in terms of the agreement/settlement arrived at between the parties. Thus, no unilateral decision would be taken by the Management. 13. The petitioner’s submission is that after expiry of the settlement of 1997, a charter of demand in respect of the wage dispute and other grievances was submitted. There was discussion in respect of this charter of demand. The counter proposal was given by the Management to the petitioner on 10th April, 2006. In the counter proposal, a suggestion was made that the cabin crew complement may -11- be reduced as stated in the proposal. After receiving the counter proposal the Managing Committee of the petitioner discussed the proposed reduction and decided to object the same on the grounds which are more particularly set out in para 3.17 of the petition. 14. While not disputing the fact that the flights have operated with less than the prescribed and agreed cabin crew complement, the petitioner urges that this is no excuse to permanently reduce the cabin crew complement as prescribed in the agreement/Record Note and settlement. Similarly, the other contention is that merely because the petitioner agreed to fly with less number of crew than the one agreed upon on board does not mean that the settlement has been give a go-by and brushed aside by them. This is no authority for the Management to arbitrarily and unilaterally reduce the cabin crew complement. 15. Yet, the Management in a meeting with the Director Personnel on 16th February, 2007 put forward its demand that the cabin crew complement would be reduced but the petitioner objected to the same by a detailed reply, copy of which is annexed as Annexure F to the petition. 16. Ignoring the objections the impugned order has been passed and now the cabin crew complement is as under: -12- ---------------------------------------------------- Aircraft Crew Complement ---------------------------------------------------- 747-4CO 16 ---------------------------------------------------- A310 8 ---------------------------------------------------- B777-200 11 ---------------------------------------------------- B777-200LR 12 (for Long haul flights) 11 (for normal flights) ---------------------------------------------------- B777-300ER 13 ---------------------------------------------------- B747-300 11 ---------------------------------------------------- B747-400C 12 --------------------------------------------------- 17. Challenging this order that the present petition has been filed. Shri Cama, learned Senior Counsel appearing for the petitioner, submits that the impugned order is contrary to law and wholly arbitrary. It violates the mandate of Articles 14, 19(1)(g) and 21 of the Constitution of India. Shri Cama submits that whilst Management contends that Record Notes and Settlements are not binding, in Writ Petition No.116 of 1984, the same employer has urged and successfully relied upon Record Notes in dismissing the Writ Petition filed by an Air Hostess. It was contended that such Record Notes are binding. They have thereafter persuaded the Division Bench in Appeal No.1068 of 1984 to once again take a view that Record Notes are binding as an agreement between -13- parties. They have followed this up before another Division Bench in Writ Petition No.932 of 1997. Lastly, in the case of Air Indfia Cabin Crew Assn.Vs. Yeshaswinee Merchant and others and other appeals ( (2003) 6 SCC page 277) , they have pursuaded the Hon’ble Supreme Court to take the view that the employees’ claim therein wrongly nullified binding agreements and settlements. The conduct of the respondents is thus entirely self serving. The respondents change their stand as it suits their convenience irrespective of the fact that their affidavits are on solemn oath. Indeed, it is because of this reason that in the last mentioned the judgment of Hon’ble Apex Court has also referred to "...self serving proposals made by the employer...." The above conduct of the respondents is barred by estoppel and indeed their persistent stand is, with respect, clearly contumacious. The reduction in staff strength on board the aircraft is likely to increase workload to the extent that it affects the health of the crew. Many crew are already suffering the effect of overload. It is also likely to adversely affect the safety of the passengers and the aircraft in case of an emergency. The Management is not bothered with any of these aspects in their endeavour to try and improve their bottom line at any cost. 18. Shri Cama has taken us through section 9A of the ID -14- Act, 1947 and the judgment delivered by this Court in Writ Petition No.44 of 1981 and another judgment of a learned single Judge of this Court in Misc.Petition No.281 of 1074 decided on 4th July, 1974. Shri Cama has submitted that the action of the respondents violates the settlement, agreement and Record of Notes. He submits that the contention that determination of cabin crew complement is a management’s decision/action is contrary to all principles of industrial law. Once the complement could not have been unilaterally altered then it is implicit that it is condition of service. The working hours of the workman is part and parcel of the working conditions and terms of service. If they are sought to be altered then notice of change under sec.9A is mandatory. That having not been done, the impugned order is ex facie bad in law. It adversely affects the service conditions of the petitioner and in any event it is unilateral and, therefore, vitiated by breach of principles of natural justice. 19. On the other hand Shri Dada, the learned Senior Counsel appearing for the Management submits that (i) all the issues raised by the petitioner were finally decided by the learned single Judge of this Court in W.P.No.44 of 1981 by an order and judgment dated 27th January, 1981. The said judgment was confirmed upto the Hon’ble Supreme -15- Court of India and by the said judgment the learned single Judge held (i) that the question of deployment and/or reduction in crew complement as also the matter of Standard Force and/or pattern of crew scheduling are matters essentially and basically partaking the character of management function and it is not a matter of industrial adjudication. The learned Counsel submitted that the learned single Judge rejected the submission of the petitioner that reduction in cabin crew complement amounts to change in condition of service within the meaning of sec.9A read with IVth Schedule of the Act and, therefore,cannot be effected without notice of change and accepted that respondent no.2 was exempted from the provisions of sec.9A vide notification dated 29th August, 1960. The learned Counsel also submits that the learned single Judge rejected the submission that in view of the Record Note dated 10th February, 1978 whereby the crew complement was decided in agreement of the petitioner Union, any change in the decision agreed upon in the Record Note has to be arbitral or with consent of the petitioner and held that as per Justice Khosala award as reaffirmed by Justice Mahesh Chandra Award, the position is that the final decision in the matter of deployment of cabin crew complement would be taken by the Managing Director and whose decision will be final and binding on the Union. Since the Management had agreed to consult, is -16- the actual consultation resulted into Record Note. It was indeed a fortuituous circumstance. 20. Even in the absence of said Note, the Management would have been perfectly within its right to take its final decision in the matter of crew complement which decision would have been binding on the Union and workmen. This Court rejected the contention of the petitioner about increase in work load and considered the savings on account of rationalisation of cabin crew and rejected the submission of the petitioner that the impugned decision in the matter of reducing crew complement was arbitrary or unjust. Learned Counsel urged that it is the contention of the petitioner Union that after the decision of this Hon’ble Court, respondent no.2 has not asserted its right to take final decision in the matter of crew complement. Reliance is placed by the petitioner Association on 4 Record Notes/Agreements in the year 1987, 1988, 1995 and 1997. This submission of the petitioner Association is totally misconceived and the said submission has been specifically rejected by the learned single Judge. Shri Dada, learned Senior Counsel submitted that the subsequent Record Note and Settlement are also outcome of consultation where there had been consensus on the crew complement. It is submitted that as observed by the learned single Judge in judgment dated 27th January, 1981 -17- even in absence of such consensus, the Management of respondent no.2 is perfectly within its right to decide the crew complement and such decision will be binding on the Union and the workmen. Learned Counsel submitted that in none of the agreements/Record Notes, the Management has ever conceded or given up its right to take a final decision in the matter of crew complement as granted by various Awards and judgments. The Record Notes/Agreements relied upon by the petitioner Union merely indicate that in a given case there was a consensus between the Management and the Association arising out of consultation which is indeed a fortuituous circumstance as held by the Hon’ble Court. In absence of consensus, the management of respondent no.2 is not precluded from taking final decision on the crew complement. The learned Counsel submitted that respondent no.2 has clarified that the reduction in crew complement merely indicates the reduction of number of crew and this could be done in each category and, therefore, the question of introducing interchangeability of duties does not arise and that the association has not demonstrated in what way the reduction in cabin crew would lead to interchangeability. The learned Counsel also submitted that the revised cabin crew shall not lead to increase in work load and that the deployment of the cabin crew by respondent no.2 is amongst the highest in the world. The learned Counsel submits -18- that respondent no.2 has, therefore, rationalised the crew complement with a view to be more cost effective in the competitive global market. 21. Thus, the respondents’ submissions can be summarised as under:- a) The judgment of this Court in Writ Petition No.44 of 1981 concludes the issue’ b) Determination of crew complement is a management’s function and not the condition of service; c) The issues as raised in this petition and before this Court in earlier Writ Petition No.44 of 1981 ‘ are identical. d) The judgment of this Court in the above Writ Petition has gained finality in as much as the appeal therefrom has already been dismissed. e) The Supreme Court order may have left the question open but from a reading of the earlier Judgment of this Court it is clear that no other view on law and facts is possible. -19- f) In any event, the determination of crew complement is a matter not covered by sec.9A read with Schedule IV (items 10 and 11) of I.D.Act 1947. g) Alternatively and without prejudice, assuming sec.9A is applicable and attracted, it is not as if the management cannot take the impugned decision. h) All that is required is discussion and negotiations with the petitioner Union. As long as that is done the decision cannot be faulted merely because it is not to the liking of the Union or employees. i) If such an approach is not adopted, then, it would be impossible for the petitioner to take any decision while discharging its obligation and performing its functions as a National carrier. 22. With the assistance of the learned Counsel appearing for both sides, we have perused the petition and annexures thereto so also the decisions brought to our notice. 23. For properly appreciating the rival contentions, it would be worthwhile referring to the impugned order and -20- the events preceding the issuance of the same. 24. All that the impugned order does is to rationalise the crew complement. The management has decided to utilise its resources to the optimum. The impugned order itself makes a reference to various meetings on the wages and crew complements. A reference is made to the discussion held on 16th February, 2007 in the Office of the Functional Director. 25. The discussions took place on 16th February, 2007 with the petitioner Association on the charter of Demand submitted by the petitioner Association. It appears that the Management took a stand that it had exclusive right to determine, decide and enforce the cabin crew complement for all aircrafts. However, there was a difference of opinion between the parties