Full Judgment Text
2015:BHC-OS:6809-DB
WP. 277, 278 - 03
VPH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION No. 277 OF 2003
WITH
WRIT PETITION No. 278 OF 2003
1. AIR India Ltd. )
a Company incorporated under the )
Company's Act, 1956, having its )
Head Office at Air India Building, )
Nariman Point, Mumbai 400 021 )
2. Shri Deepak Samal, Director (GSD) )
Air India Limited, having his office at)
CSIA, Airport, NIPTC, Sahar, )
Mumbai – 400 099 ... Petitioners
Vs.
1. S. Gunahari, )
Labour Enforcement Officer (Central)
1, Shram Raksha Bhavan, Shiv )
Srushti Road, Eastern Express )
Highway, Sion, Mumbai – 400 022 )
2. Union of India through, )
Regional Labour Commissioner )
(Central) 1, Shram Raksha Bhavan, )
Shiv Srushti Road, Eastern Express )
Highway, Sion, Mumbai – 400 022 … Respondents
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*
Mr. Sudhir Talsania, Sr. Counsel a/w Ms. Kavita Anchan a/w Sagar
Sheth, for the Petitioners.
None for the Respondents.
*
CORAM : V. M. KANADE, &
B. P. COLABAWALLA, JJ.
DATE : JUNE 8, 2015
ORAL JUDGMENT [Per : V. M. KANADE, J.]
1. Heard the learned counsel appearing on behalf of the
Petitioners. None appears on behalf of the Respondents though they
are served. By these petitions, which are filed under Article 226 of the
Constitution of India, Petitioners are seeking an appropriate writ, order
and direction to declare that provisions of Contract Labour Act are not
applicable to the extent of contract of Ground Handling Services
entered into between Petitioner No. 1 and various foreign airlines.
Petitioners are also seeking appropriate writ, order and direction for
quashing of Criminal Case Nos. 42/SLC/02 (in WP No. 277/2003) and
70/SLC/02 (in WP No. 278/2003), filed under Section 23 & 24 of the
Contract Labour (Regulation & Abolition) Act, 1970 and Contract
Labour (Regulation & Abolition) Central Rules, 1971, both pending
nd
before the 22 Metropolitan Magistrate, Andheri.
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2. Brief facts, which are relevant for the purpose of deciding
both the petitions are as under:
(i) Petitioner No. 1 is a Government Company incorporated
under the Indian Companies Act, 1956. It is engaged in airline
industry. It has its operation all over the world and it is a national
carrier. It has about 16,000 permanent employees in various
categories.
(ii) By virtue of powers conferred by Section 42 of the
Airports Authority of India Act, 1994 (55 of 1994) and in supersession
of International Airports Authority of India (General Management,
Ground Handling of Air Transport Services) Regulations, 1984, and
National Airports Authority (General management), entry for Ground
Handling of Air Transport Services Regulations, 1989, the Airports
Authority of India with the previous approval of the Central
Government passed regulations in terms of “Ground Handling”
authorising the Petitioners and other two Airline Companies to
undertake Ground Handling Services on contract basis. By virtue of
Regulation 3 of Airports Authority of India (General Management,
Entry for Ground Handling Services), Regulations, 2000, Petitioner
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No. 2 herein is also authorised to enter into contract for the purpose of
ground handling services at an airport with other foreign airline
companies.
(iii) The Respondents filed two criminal complaints against
the Petitioners, purportedly on the ground that the contract entered
into by Petitioner Nos. 1 and 2 with other foreign airlines in respect of
ground handling activities, was contrary to Section 23 & 24 of the
Contract Labour (Regulation & Abolition) Act, 1970 and Contract
Labour (Regulation & Abolition) Central Rules, 1971.
3. Being aggrieved by the said order of issuance of process
passed in both the criminal cases, Petitioners have approached this
Court by filing the two Petitions. Mr. Talsania, learned senior counsel
appearing for the Petitioners submitted that one of the essential
operations of Airline industries is ground handling of the flights. He
submitted that there are 14 different ground handling activities like
reservation and accommodation, load control, communications and
departure control system, Unit Load Device control, Passenger and
Baggage handling, cargo and post office mail, etc., which is more
particularly mentioned in paragraph 3 of the petition. He submitted
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that by virtue of rules and regulations, which are framed pursuant to
powers conferred by Section 42 of the Airports Authority of India Act,
1994, Petitioners are authorised to enter into contract with foreign
airlines in respect of ground handling of flights. He submitted that the
purpose behind passing the said resolution was to authorise the
operator to enter into such contract since foreign airlines may not have
the necessary infrastructure for the purpose of entering into contract of
ground handling activities. He submitted that the Respondents
without taking into consideration the powers conferred on the
Petitioners by statutory regulations, filed the two criminal complaints
for violations of the provisions of Section 23 & 24 of the Contract
Labour (Regulation & Abolition) Act, 1970 and Contract Labour
(Regulation & Abolition) Central Rules, 1971.
4. He further submitted that so far as ground handling
activities are concerned, the provisions of the Contract Labour
(Regulation & Abolition) Act, 1970 and Contract Labour (Regulation
& Abolition) Central Rules, 1971, are not applicable by virtue of
Regulation 1989, under which the Regulations, 2000 in terms of
“Ground Handling” were framed on 1.2.2002. He submitted that
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therefore, impugned orders of issuance of process and the complaints
filed against the Petitioners, are liable to be quashed and set aside.
5. No reply has been filed by the Respondents though the
petitions were filed in 2003 and the rule was served on them. Firstly,
the averments made in the petition are not controverted by the
Respondents.
6. Even otherwise, perusal of the relevant regulations, more
particularly Regulation 3 of the Airports Authority of India (General
Management, Entry for Ground Handling of Transport Services)
Regulations, 2000 (for short “Regulations, 2000”) clearly indicates
that the operator or carrier may either carry out ground handling
services at an airport by itself or engage the services of any of the
following:
(I) Airports Authority of India;
(II) The two national carriers Air India & Indian Airlines;
(III) Any other handling agency licensed by the Airports
Authority of India.
The term “Ground Handling” has been defined under Rule 2(e) of the
above Regulations, as under:
“2(e) “Ground Handling” means:
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(i) ramp handling and will include activities as specified
in Annexure 'A' to the Regulations;
(ii) traffic handling and will include activities as
specified in Annexure 'B' to the Regulations;
(iii) any other activity designated by the Chairman to any
part either of ramp handling or traffic handling.”
7. The settlement contract, which is annexed to the petition
indicates that foreign airlines have entered into a contract in respect of
ground handling services, with Air India and Indian Airlines; and they
were authorised under the Regulations, 2000 to enter into such a
contract.
8. Apart from that, the said contract is on principal to
principal basis, and therefore, the question of violation of the
provisions of the Contract Labour (Regulation & Abolition) Act, 1970
and the Contract Labour (Regulation & Abolition) Central Rules,
1971, does not arise at all, since the provisions of Regulations, 2000
clearly authorise the Petitioners to enter into contract of ground
handling activities, which are more specifically enumerated in
paragraph 3 of the petition. In our view, therefore, there is clear non
application of mind in issuing the process. The Apex Court in the case
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of - R. P. Kapur, Appellant Vs. State of Punjab, Respondent [AIR
1960 SC 866] has given some of the categories of cases where the
inherent jurisdiction to quash proceedings can and should be
exercised, which are as under:
(i) Where it manifestly appears that there is a legal bar
against the institution or continuance of the criminal
proceeding in respect of the offence alleged. Absence
of the requisite sanction may, for instance, furnish cases
under this category.
(ii) Where the allegations in the First Information Report or
the complaint, even if they are taken at their face value
and accepted in their entirety, do not constitute the
offence alleged; in such cases no question of
appreciating evidence arises; it is a matter merely of
looking at the complaint or the First Information Report
to decide whether the offence alleged is disclosed or
not.
(iii) Where the allegations made against the accused person
do constitute an offence alleged but there is either no
legal evidence adduced in support of the case or the
evidence adduced clearly or manifestly fails to prove
the charge. In dealing with this class of cases it is
important to bear in mind the distinction between a case
where there is no legal evidence or where there is
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evidence which is manifestly and clearly inconsistent
with the accusation made and cases where there is legal
evidence which on its appreciation may or may not
support the accusation in question. In exercising its
jurisdiction under S. 561-A the High Court would not
embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the
trial magistrate, and ordinarily it would not be open to
any party to invoke the High Court's inherent
jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made
against the accused would not be sustained.”
Ratio of this judgment has been followed in the subsequent judgment
by the Apex Court in the case of State of Haryana Vs. Bhajanlal [AIR
1992 Supreme Court 604] .
9. In the present case, therefore, ratio of both the above
judgments squarely apply to the facts of the present case, since there is
a specific legal sanction given to the Petitioners to enter into contract
and therefore, they are clearly excluded, even otherwise, from the
provisions of the Contract Labour (Regulation & Abolition) Act, 1970
the Contract Labour (Regulation & Abolition) Central Rules, 1971.
The Respondents, therefore, could not have prosecuted the Petitioners
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for carrying out the activities of ground handling activities, which are
legally permitted under the Regulations.
10. Impugned complaints filed by the Respondents are,
therefore, quashed and set aside. Both the petitions are allowed and
disposed of in terms of prayer clauses (a) and (c). Rule is made
absolute in the aforesaid terms, in both the petitions.
Sd/- Sd/-
[B. P. COLABAWALLA, J.] [V. M. KANADE, J.]
Vinayak Halemath
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