Case: Air India Ltd.  Vs. Vishal Capoor

writ petitioners are senior in the list and seniority over and above respondents 4 to 9" was in the circumstances narrated, factually wrong. But assuming the conclusion was correct, nevertheless, having regard to the decisions of this Court earlier noted, it is still open for the Adhikari group to challenge the the 1998 Settlement on the ground of lack of bonafides, arbitrariness, fraud etc. Such a challenge to the 1998 Settlement cannot of course be decided in a writ proceeding as has been already held by the High Court. W.P.2930 of 1999. 40. According to the appellants and the Adhikari group, the 1998 Settlement cannot in any event be termed to be a final settlement under Section 18(3) of the Industrial Disputes Act, 1947 because of Clause (16) to the 1998 Settlement which provided:- "16. Both the parties agree that this settlement will be filed before the Honble National Indistrial Tribunal, in the pending reference No.NTB-1 of 1990 and Consent Award will be obtained accordingly." 41. Admittedly, the 1998 Settlement was not filed as envisaged nor was a consent award obtained although this point was not raised in WP 2930 of 1999. But the issue has been concluded against the respondents 7 to 12 by the order dated 14th November 2000 in W.P. No.2930 of 1999 which said that the 1998 settlement was a settlement under Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least between the CPL Holders and the Adhikari group as to whether the 1998 Settlement despite being under Section 18(3), was invalidated because of the alleged circumstances under which it was arrived at. Additionally, the Adhikari group may at least contend that the subsequent modifications to Clause 7(C) of the 1998 settlement modifying and ultimately doing away with the requirement of an ALTP was not valid and did not form part of the settlement under Section 18(3). All these disputes are appropriately adjudicatable by an Industrial Tribunal under the 1947 Act. 42. The High Courts decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent No.3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum as had been rightly held by the earlier decision of the High Court in W.P.No.2930 of 1999. 43. At present, we have two alternatives open to us. We may set aside the impugned decision of the High Court and allow the appeal by dismissing the writ petition leaving the parties to have their disputes thrashed out before the Industrial Forum. This would entail raising a dispute and an order for reference being passed under Section 10(1) of the 1947 Act by the appropriate Government. We may on the other hand formulate the dispute ourselves directing the parties to move the appropriate Government for an order reference. It is the letter course which has been urged by the appellants and the respondents 7 to 12 relying on a decision of this Court in Hindustan Steel Works Construction Ltd. & Anr. vs. Hindustan Steel Works Construction Ltd. Employees Union JT 2005 (7) SC 273 . 44. We see no reason to take a different view from the opinion expressed in that case particularly having regard to the need to avoid industrial unrest in connection with the national Airlines. Apart from the fact that the Adhikari group have been agitating their grievance since 1997, the issue of inter-se seniority among the pilots needs to be resolved expeditiously since that would in turn involve issues of command of passenger flights and of course, possible demands of shortfall. But before so directing there is yet another question that needs to be addressed viz. what would be the interim arrangement pending adjudication of the disputes by the Industrial Tribunal. 45. When the special leave petitions were filed by the appellants and the respondents 7 to 12 before this Court we had recorded on 25th April, 2004 that "pilots, as well as co-pilots have been sent in the command training" (sic). The intention was to record that pilots of the Adhikari group and the writ petitioners had been sent for command training. In fact the High Court while quashing the letters of cancellation noted that six pilots of the Adhikari group (respondents 7 to 12) had already been sent for command training and that they need not be recalled. However it was clarified that the direction did not alter their position in the line seniority list. During the pendency of these proceedings six more pilots of the Adhikari group as well as the writ petitioners have been sent for command training and have presumably completed it by the date of this judgment. The remaining two pilots of the Adhikari group, according to the Adhikari Group, have also been cleared for command training in the meanwhile and have started preliminary training earlier this month. We are of the view that the Adhikari group should be permitted to complete their command training. 46. We have already noted that the appellants and the Adhikari group are agreeable that in the meanwhile clause 7(C) and Annexure D to the 1998 settlement would continue to operate but that the writ petitioners should not claim the shortfall under the 1998 Settlement. It seems an eminently fair suggestion except that any amount due on account of shortfall arising out of this arrangement must be deposited by the appellants in the Industrial Court which will keep the same in fixed deposit with any nationalized bank subject to any award, interim or final, that may be passed by the Tribunal. 47.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]31. In our opinion the High Court erred in rejecting the preliminary objection of the respondents 7 to 12 viz. that the writ petitioners should have been left to pursue their grievance relating to the breach of Clause 7 (C) of the 1998 settlement before the appropriate forum under the Industrial Disputes Act, 1947. There was a serious factual controversy as was noted by the High Court itself in paragraph 22 of its judgment. It had been contended by the Adhikari group that the 1998 Settlement was vitiated by fraud and malafides on the part of the office bearers of the Guild and some Officers of the first appellant. The claim of the Adhikari group which has been reiterated before us is that senior officers of the Guild and the first appellant fraudulently agreed to clause 7(C) of the 1998 settlement so that their sons and daughters who were CPL holders were given undue benefit in deviation from the established requirements and practice of the first appellant. Such allegations if proved would be sufficient to set aside the 1998 Settlement in so far as it affected seniority of the Adhikari group. There is a long line of authority insupport of this proposition (See for example Herbertsons Ltd. vs. The Workmen of Herbertsones Ltd. & Anr. (1976) 4 SCC 736 , 742; KCP Ltd. vs. Presiding Officer (1996) 10 SCC 446  and National Engineering Industries Ltd. vs. State of Rajasthan (2000) 1 SCC 371 , 393). This was also the finding of the High Court in W.P.No.2930 of 1999. Sufficient particulars in support of these allegations had been given. The Conciliation Officer, the Committee set up by the Chairman of Air India, and the Chairman himself had founded that an injustice had been done to the Adhikari group. The opinions expressed have not been held by the High Court to be without substance. Indeed the High Court did not consider any of this because it was held, incorrectly as we have held later in our opinion, that the issues raised had been concluded by the earlier decision of coordinate Benches in W.P.(L) No.1615 of 1997 and WP (c) No. 2930 of 199932. A disputed question of fact will normally arise when a petitioner puts forward a case on facts which are controverted by the respondents. This is naturally so, as it cannot be expected that the petitioner will of his, her or its own say that the facts forming the basis of the claim are disputed. Although it may happen that the Court on a scrutiny of the nature of the claim made in the petition may come to a conclusion that the factual issues raised are ex facie controversial and decline, in limine, to exercise jurisdiction under Art. 226, nevertheless the controversy usually surfaces after the respondents have had an opportunity of giving their version of the matter. That was what happened in the present case. The writ petitioners rested their case on clause 7(C) read with Annexure D to the 1998 settlement. The respondents pleaded that the settlement was vitiated by fraud. Obviously, the burden of proving this would be on the respondents. No court or tribunal has tested the allegations made by the Adhikari group on merits till today. The High Court shut out the allegations altogether for two reasons. The first reason was that it would amount to entertaining a separate cause of action. The conclusion was erroneous as it was based on a confusion between onus of proof and cause of action35. Although the view expressed in W.P.(L) No.1615 of 1997 is erroneous, nevertheless, the question whether the 1989 settlement can found an enforceable right in the respondents 7 to 12 is concluded against them. But the decision would not debar the raising of a dispute that the 1998 settlement was vitiated by fraud, corruption as the settlement was entered into after those proceedings were concluded before the High court. Furthermore, although the decision precludes the Adhikari group from claiming a right under the 1989 settlement, they can certainly rely upon it as evidencing a continuation of an established practice and requirement. It would also be open to the Adhikari group to rely on all other factors in support of their claim for seniority over the CPL holders36. By the decision in W.P. No.2930 of 1999, however, the High Court had not held that one clause in the Settlement cannot be challenged in isolation. A doubt had merely been expressed but no firm conclusion had been arrived. Nor had the Court decided the merits of the Adhikari groups grievance at all. What the High Court had in fact decided was that the issues of fraud etc. raised could not be decided in exercise of the Courts jurisdiction under Article 226.It expressly left the issues to be decided on a deeper consideration by the Industrial Tribunal. This is abundantly clear from the passages from the judgment dated 14th November, 2000 quoted by us37. Another error in the decision impugned before us was the refusal to allow the respondents 7 to 12 to raise their claim regarding their seniority because they had withdrawn their complaint under Section 33A of the Industrial Disputes Act 1947. It is nobodys case that the complaint of the Adhikari group under Section 33A was legally maintainable in Reference No. NTB 1 of 1990. In fact both the first appellant and the Guild had opposed the complaint on this ground. Section 33A allows a complaint to be filed in a pending reference where an employer contravenes the provisions of Section 33 of the 1947 Act during the pendency of proceedings pursuant to a reference under Section 10(1) of the 1947 Act. The relevant portion in Section 33(1)(a) prohibits an employer from altering, to the prejudice of the "workmen concerned in such dispute", the conditions of service applicable to them immediately before the commencement of the proceeding. There was no pending proceeding relating to any dispute between Air India and its workmen in which the Adhikari group could have filed a complaint under Section 33A. The dispute which was pending before the Tribunal in Reference No.NTB-1 of 1990 did not relate to a dispute between the first appellant and its workmen. It related to a dispute between Indian Airlines and its workmen basically on the question whether the latter were entitled to the same terms and conditions of service as the employees of the first appellant. The award which has since been made on the reference by the Tribunal also records:"This reference cannot cover any industrial dispute between Air India and its workmen as the order of the Central Govt. is confined to dispute between (Indian) Airlines and its workmen"41. Admittedly, the 1998 Settlement was not filed as envisaged nor was a consent award obtained although this point was not raised in WP 2930 of 1999. But the issue has been concluded against the respondents 7 to 12 by the order dated 14th November 2000 in W.P. No.2930 of 1999 which said that the 1998 settlement was a settlement under Section 18(3) of the 1947 Act. Nevertheless a fresh industrial dispute within the meaning of the phrase in Section 2(k) of the 1947 Act has arisen at least between the CPL Holders and the Adhikari group as to whether the 1998 Settlement despite being under Section 18(3), was invalidated because of the alleged circumstances under which it was arrived at. Additionally, the Adhikari group may at least contend that the subsequent modifications to Clause 7(C) of the 1998 settlement modifying and ultimately doing away with the requirement of an ALTP was not valid and did not form part of the settlement under Section 18(3). All these disputes are appropriately adjudicatable by an Industrial Tribunal under the 1947 Act42. The High Courts decision allowing the writ petition was based on reasons which we cannot sustain. Consequently its conclusion that the issue of seniority between the respondents 7 to 12 and the writ petitioners was concluded was also erroneous. Therefore, the question whether the letters issued by the respondent No.3 cancelling the letters for command training issued to the writ petitioners could have been validly issued is, along with other issues raised between the parties, still at large and will ultimately have to be decided by a competent Industrial Forum as had been rightly held by the earlier decision of the High Court in W.P.No.2930 of 199943. At present, we have two alternatives open to us. We may set aside the impugned decision of the High Court and allow the appeal by dismissing the writ petition leaving the parties to have their disputes thrashed out before the Industrial Forum. This would entail raising a dispute and an order for reference being passed under Section 10(1) of the 1947 Act by the appropriate Government. We may on the other hand formulate the dispute ourselves directing the parties to move the appropriate Government for an order reference. It is the letter course which has been urged by the appellants and the respondents 7 to 12 relying on a decision of this Court in Hindustan Steel Works Construction Ltd. & Anr. vs. Hindustan Steel Works Construction Ltd. Employees Union JT 2005 (7) SC 273 44. We see no reason to take a different view from the opinion expressed in that case particularly having regard to the need to avoid industrial unrest in connection with the national Airlines. Apart from the fact that the Adhikari group have been agitating their grievance since 1997, the issue of inter-se seniority among the pilots needs to be resolved expeditiously since that would in turn involve issues of command of passenger flights and of course, possible demands of shortfall. But before so directing there is yet another question that needs to be addressed viz. what would be the interim arrangement pending adjudication of the disputes by the Industrial Tribunal45. When the special leave petitions were filed by the appellants and the respondents 7 to 12 before this Court we had recorded on 25th April, 2004 that "pilots, as well as co-pilots have been sent in the command training" (sic). The intention was to record that pilots of the Adhikari group and the writ petitioners had been sent for command training. In fact the High Court while quashing the letters of cancellation noted that six pilots of the Adhikari group (respondents 7 to 12) had already been sent for command training and that they need not be recalled. However it was clarified that the direction did not alter their position in the line seniority list. During the pendency of these proceedings six more pilots of the Adhikari group as well as the writ petitioners have been sent for command training and have presumably completed it by the date of this judgment. The remaining two pilots of the Adhikari group, according to the Adhikari Group, have also been cleared for command training in the meanwhile and have started preliminary training earlier this month. We are of the view that the Adhikari group should be permitted to complete their command training46. We have already noted that the appellants and the Adhikari group are agreeable that in the meanwhile clause 7(C) and Annexure D to the 1998 settlement would continue to operate but that the writ petitioners should not claim the shortfall under the 1998 Settlement. It seems an eminently fair suggestion except that any amount due on account of shortfall arising out of this arrangement must be deposited by the appellants in the Industrial Court which will keep the same in fixed deposit with any nationalized bank subject to any award, interim or final, that may be passed by the Tribunal