Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7872 OF 2011
[Arising out of SLP(C)No. 369 of 2010)
M/s. Delhi International Airport Pvt. Ltd. …Appellant
Versus
Union of India & Others …Respondents
WITH
CIVIL APPEAL NO. 7873 OF 2011
[Arising out of SLP(C)No. 377 of 2010)
M/s. Delhi International Airport Limited versus Indira Gandhi Airport
TDI Karamchari Union & Ors.
WITH
CIVIL APPEAL NO. 7874 OF 2011
[Arising out of SLP(C)No. 1713 of 2010)
Airport Authority of India versus Indira Gandhi Airport TDI Karamchari
Union & Ors.
WITH
CIVIL APPEAL NO. 7875 OF 2011
[Arising out of SLP(C)No. 1814 of 2010)
Airport Authority of India versus Union of India & Ors.
WITH
CIVIL APPEAL NO. 7876 OF 2011
[Arising out of SLP(C)No. 10647 of 2010)
Indira Gandhi Airport TDI Karamchari Union versus Union of India &
Ors.
WITH
CIVIL APPEAL NOS. 7878-7879 OF 2011
[Arising out of SLP(C)Nos. 9757-9758 of 2010)
Airport Authority of India versus Union of India & Ors.
J U D G M E N T
Dalveer Bhandari, J.
1. Leave granted in all the Special Leave Petitions.
2. These appeals emanate from the judgment of the High
Court of Delhi delivered in LPA No.38 of 2007, LPA No.1065 of
2007, Writ Petition (C) No.139 of 2008 and Writ Petition (C)
No.6763 of 2008 on December 18, 2009.
3. The short question which arises for consideration in
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these appeals is whether the Notification dated 26 July,
2004 issued by the Central Government under Section 10 (1)
of the Contract Labour (Regulation and Abolition) Act, 1970
(for short, ‘CLRAA’) prohibiting employment of contract labour
of trolley retrievals in the establishment of the Airport
Authority of India (for short, ‘AAI’) at the Indira Gandhi
International Airport and Domestic Airport at Delhi would be
applicable to the Delhi International Airport Private Limited
(for short, ‘DIAL’) or not?
4. This judgment would decide these appeals preferred
before this Court against the following Letters Patent Appeals
and Writ Petitions decided by the High Court:
a) Indira Gandhi International Airport TDI Karamchari
Union Union of India and others - LPA No.38 of v.
2007
This Letters Patent Appeal was filed against the judgment
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of the learned Single Judge dated 28 November, 2006 in Writ
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Petition (C) No.15156 of 2006. The workers’ Union had
preferred the writ petition for seeking implementation of the
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Notification of prohibition dated 26 July, 2004 and for
absorption in service amongst other things. The learned
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Single Judge took notice of the fact that from 4 April, 2006 a
new private entity, DIAL had taken over the Airports (Domestic
and International). Hence at the airport, there was no longer
any establishment of AAI existing but a new establishment of
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DIAL was operating due to which the notification dated 26
July, 2004, prohibiting the engagement of contract labour in
trolley retrieval activity in the establishment of AAI at the
Delhi Airports could not automatically apply to the new entity,
DIAL and a new notification by the appropriate government
would have to be issued.
b)
Union of India Indira Gandhi International Airport v.
TDI Karamchari Union - LPA No.1065 of 2007
This Letters Patent Appeal was preferred by the Union of
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India against the learned Single Judge’s judgment dated 28
November, 2006 passed in Writ Petition (C) No.15156 of 2008
on a very limited point of certain observation in the judgment.
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c) Airports Authority of India v. Union of India Writ
Petition (C) No.6763 of 2008
AAI after getting permission of the High Powered
Committee to go ahead with the litigation challenged the
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notification dated 26 July, 2004 by filing the said writ
petition.
d) Delhi International Airports P.Ltd. v. Union of India
Writ Petition (C) No.139 of 2008
DIAL had preferred this writ petition challenging the
order of the Chief Labour Commissioner, Government of India
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dated 24 September, 2007 by which the Central Government
was held to be the ‘appropriate government’ for DIAL for the
purposes of Industrial Disputes Act, 1947 (hereinafter referred
nd
to as “ID Act”) and CLRAA. The order dated 22 November,
2007 of Chief Secretary, Government of NCT of Delhi by which
all documents concerning DIAL were directed to be shifted to
the Central Government machinery was also impugned.
5. Both the writ petitions of AAI and DIAL were heard and
disposed of by the Division Bench of the High Court along with
these LPAs by the impugned judgment.
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BRIEF FACTS:
6. 136 workers were employed by the contractor M/s. TDI
International Pvt. Ltd. to do the work of trolley retrieving at the
Domestic and at the International Airport at Delhi in the year
1992. In view of the perennial nature of the work, the
workmen approached the Contract Labour Court for abolition
of contract labour system and for their absorption as regular
employees. AAI came into force merging the International
Airport Authority Act, 1971 and the National Airport Authority
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Act, 1985. On 26 July, 2004 the Central Government
accepted the recommendations of the Contract Labour Court
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and issued notification dated 26 July, 2004 abolishing the
contract labour system.
7. This notification was challenged by AAI before the High
Court of Delhi. Taking note of the ONGC judgment reported in
Oil and Natural Gas Commission and Another Vs.
Collector of Central Excise 1992 Suppl. (2) SCC 432 the
rd
High Court vide judgment dated 3 February, 2005 held that
the present proceedings cannot be proceeded with till the
matter is resolved by the High Powered Committee (HPC).
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Accordingly, the matter went to the HPC and the notification
was not given effect to.
8. Meanwhile, 136 workers who were engaged as Trolley
retrievers by the contractor M/s. TDI International Private
Limited working at the airport since 1992 were removed from
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service on 5 December, 2003 as the contract of M/s. TDI
International Private Limited had come to an end and a new
contractor Sindhu Holdings came in its place. These 136
members filed Writ Petition No.15156 of 2006 before the
learned Single Judge of the High Court of Delhi praying for
their absorption in service as regular employees and for
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implementation of the notification dated 26 July, 2004.
9. The learned Single Judge of the High Court after hearing
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the parties including DIAL vide judgment dated 28 November,
2006 held that the establishment of AAI is no longer in
existence and has changed. As such, the notification dated
th
26 July, 2004 cannot be applied to the new entity DIAL. The
appropriate government shall have to issue a fresh
notification. Consequently, the Writ Petition filed by the said
136 workers stood dismissed by the learned Single Judge of
the High Court.
6
10. Indira Gandhi International Airport TDI Karamchari
Union preferred LPA No.38 of 2007 against the judgment of
the learned Single Judge. The Union of India also preferred
LPA No.1065 of 2007 against the judgment of the learned
Single Judge.
th
11. During the pendency of these LPAs, an order dated 24
September, 2007 was passed by the Chief Labour
Commissioner, Government of India holding that the
appropriate government for DIAL is the Central Government.
nd
By order dated 22 November, 2007 the documents and file
relating to DIAL were sent to the Central Government. These
orders were challenged by DIAL in Writ Petition (C) No.139 of
2008. After getting the permission, AAI filed another Writ
Petition (C) No.6763 of 2008 challenging the said notification
on merit. The Division Bench of the High Court heard all
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these matters together and passed the impugned order of 18
December, 2009.
12. The review petition was preferred by the Union of India
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which was decided on 12 March, 2010 by the High Court
modifying para 61 of the impugned judgment. Against the
7
impugned judgment of the Division Bench of the High Court,
two appeals were preferred by DIAL and three by AAI and one
by the Indira Gandhi International Airport TDI Karamchari
Union. In these appeals, two broad issues that arise are:
a) Who is the appropriate government for DIAL
under the CLRAA and ID Act? This is the
subject matter of SLP (C) No.369 of 2010 filed
by DIAL.
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b) Whether the notification dated 26 July, 2004
is applicable to DIAL as it is issued by the
Central Government which is not the
appropriate government for DIAL and secondly
whether the notification that applies to the
‘establishment of AAI’ will be applicable to the
‘establishment of DIAL’ which only came into
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existence on 4 April, 2006? This is the subject
matter of SLP (C) No.377 of 2010 filed by DIAL.
13. We deem it appropriate to deal with the basic objects and
reasons of passing the CLRAA. This Act was enacted with a
view to abolish the contract labour under certain
circumstances and to provide for better conditions of service to
the labour. The business of providing contract labour is
regulated as the contractor is required to obtain a licence and
the principal employer is not entitled to engage a contractor
without obtaining registration. The rules also contain detailed
provisions to carry out the purposes of the Act. It is significant
8
to note that the 1970 Act does not create any machinery or
forum for the adjudication of any dispute arising between the
contract labour and the principal employer of the contractor.
14. The object of the Act was dealt with by this Court in the
judgment of Gammon India Ltd. and Others v. Union of
India (UOI) and Others (1974) 1 SCC 596 which reads as
under:-
“The Act was passed to prevent the exploitation of
contract labour and also to introduce better
conditions of work. The Act provides for regulation
and abolition of contract labour. The underlying
policy of the Act is to abolish contract labour,
wherever possible and practicable, and where it
cannot be abolished altogether, the policy of the Act
is that the working conditions of the contract labour
should be so regulated as to ensure payment of
wages and provision of essential amenities. That is
why the Act provides for regulated conditions of
work and contemplates progressive abolition to be
extent contemplated by Section 10 of the Act.
Section 10 of the Act deals with abolition while the
rest of the Act deals mainly with regulation. The
dominant idea of the Section 10 of the Act is to find
out whether contract labour is necessary for the
industry, trade, business, manufacture or
occupation which is carried on in the
establishment.”
15. The Central Government will be the appropriate government under
CLRRA for any establishment for whom the Central Government is the
appropriate government under the ID Act. The main question arises for
adjudication is whether the Central Government is the appropriate
9
government for DIAL under the ID Act? Section 2 (a) of the ID Act deals
with the appropriate government which reads as under:-
“ 2. In this Act, unless there is anything repugnant in the
subject or context,--
(a) "appropriate government" means--
(i) in relation to any industrial dispute concerning any
industry carried on by or under the authority of the
Central Government, or by a railway company [or
concerning any such controlled industry as may be
specified in this behalf by the Central Government] or
in relation to an industrial dispute concerning [a Dock
Labour Board established under section 5A of the
Dock Workers (Regulation of Employment) Act, 1948
(9 of 1948), or [the Industrial Finance Corporation of
India Limited formed and registered under the
Companies Act, 1956 (1 of 1956)] or the Employees'
State Insurance Corporation established under section
3 of the Employees' State Insurance Act, 1948 (34 of
1948), or the Board of Trustees constituted under
section 3A of the Coal Mines Provident Fund and
Miscellaneous Provisions Act, 1948 (46 of 1948), or the
Central Board of Trustees and the State Boards of
Trustees constituted under section 5A and section 5B,
respectively, of the Employees' Provident Fund and
Miscellaneous Provisions Act, 1952 (19 of 1952), or
the Life Insurance Corporation of India established
under section 3 of the Life Insurance Corporation Act,
1956 (31 of 1956), or [the Oil and Natural Gas
Corporation Limited registered under the Companies
Act, 1956 (1 of 1956)], or the Deposit Insurance and
Credit Guarantee Corporation established under
section 3 of the Deposit Insurance and Credit
Guarantee Corporation Act, 1961 (47 of 1961), or the
Central Warehousing Corporation established under
section 3 of the Warehousing Corporations Act, 1962
(58 of 1962), or the Unit Trust of India established
under section 3 of the Unit Trust of India Act, 1963
(52 of 1963), or the Food Corporation of India
established under section 3, or a Board of
Management established for two or more contiguous
States under section 16, of the Food Corporations Act,
1964 (37 of 1964), or [the Airports Authority of India
constituted under section 3 of the Airports Authority of
India Act, 1994 (55 of 1994)], or a Regional Rural Bank
10
established under section 3 of the Regional Rural
Banks Act, 1976 (21 of 1976), or the Export Credit and
Guarantee Corporation Limited or the Industrial
Reconstruction Bank of India Limited], [the National
Housing Bank established under section 3 of the
National Housing Bank Act, 1987 (53 of 1987)], or [an
air transport service, or a banking or an insurance
company,] a mine, an oil field,] [a Cantonment Board,]
or a [major port, any company in which not less than
fifty-one per cent. of the paid-up share capital is held
by the Central Government, or any corporation, not
being a corporation referred to in this clause,
established by or under any law made by Parliament,
or the Central public sector undertaking, subsidiary
companies set up by the principal undertaking and
autonomous bodies owned or controlled by the Central
Government, the Central Government, and]
(ii) in relation to any other industrial dispute,
including the State public sector undertaking,
subsidiary companies set up by the principal
undertaking and autonomous bodies owned or
controlled by the State Government, the State
Government:
Provided that in case of a dispute between a contractor
and the contract labour employed through the
contractor in any industrial establishment where such
dispute first arose, the appropriate government shall
be the Central Government or the State Government,
as the case may be, which has control over such
industrial establishment.
(aa) "arbitrator" includes an umpire;
(aaa) "average pay" means the average of the wages payable
to a workman--
(i) in the case of monthly paid workman, in the three
complete calendar months,
(ii) in the case of weekly paid workman, in the four
complete weeks,
(iii) in the case of daily paid workman, in the twelve
full working days,
preceding the date on which the average pay becomes
payable if the workman had worked for three complete
calendar months or four complete weeks or twelve full
working days, as the case may be, and where such
11
calculation cannot be made, the average pay shall be
calculated as the average of the wages payable to a
workman during the period he actually worked; .”
he Central Government is the “appropriate government”
16. Firstly, t
in relation to any industrial dispute concerning any industry carried on
by or under the authority of the Central Government. Secondly, the
Central Government is the “appropriate government” in relation to
industrial disputes concerning AAI. Thirdly, the Central Government is
the “appropriate government” in relation to industrial disputes
concerning an air traffic service. Thus, if DIAL’s industry is carried on
“under the authority” of the Central Government, if the dispute in
question can be said to concern AAI, or the dispute in question can be
said to concern an “air transport service”, then the Central Government
is the “appropriate government” both under ID Act and CLRAA.
th
17. In these appeals, the validity of the Notification dated 26
July, 2004 issued by the Central Government under Section
10(1) CLRAA was assailed by AAI and DIAL. It was also urged
th
that the Notification dated 26 July, 2004 cannot bind DIAL.
18. It was further contended that DIAL is not an agent of AAI
and DIAL cannot be considered as a 'delegate' of such an
entity. It was also contended that an “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 (1) notification issued by the Government of the NCT Delhi
12
prohibiting the employment of contract labour in trolley
retrieval work in the establishment of DIAL. According to
DIAL, NCT Delhi is an “appropriate government” to issue the
notification. DIAL also disputed that it did not carry on the
'air transport service'. It was 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. It is submitted that DIAL
is performing its functions independently in its own
establishment which is not that of AAI's.
19. The workers' union submitted that the notification dated
th
26 July, 2004 clarified the position of DIAL. According to
them, the definition of the term under CLRAA does not
envisage multiple principal employers or establishments. It
was submitted that the definition of an 'establishment' under
CLRAA is materially different from the definition of that term
under the ID Act which envisages separation of
establishments. For the purposes of CLRAA, it was submitted
that the prohibition on employment of the 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.
13
Alternatively, it was submitted that even if DIAL is taken to be
the principal employer which has stepped into the shoes of AAI
by virtue of Operation, Management, Development and
Agreement (for short “OMDA”), the notification under Section
10 (1) CLRAA would bind it and for DIAL too the appropriate
government would be the Central Government.
20. It was also submitted that DIAL is providing an “air
transport service”, therefore, the appropriate government is
the Central Government. The Central Government defended
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the notification of 26 July, 2004. It was submitted that
adopting a contrary interpretation would defeat the objective
and purpose of CLRAA. The Central Government submitted
that DIAL is operating under the authority of the Central
Government. The industry that is carried on by DIAL by virtue
of OMDA is relatable to the authority granted by Section 12A
of the Airport Authority of India Act 1994 (55 of 1994) (for
short, the ‘AAI Act’). It was submitted that DIAL is rendering
“air transport service” including emplaning and deplaning of
passengers, handling of passengers' luggage, booking of cargo,
and, therefore, the Central Government is the appropriate
government.
14
th
21. The Division Bench held that the notification dated 26
July, 2004 issued by the Central Government under Section
10(1) CLRAA is valid and binding on it. The Division Bench in
the impugned judgment held that the recourse to the ID Act
for the purposes of understanding what is an “establishment”
is misconceived since the definition of 'establishment' under
CLRAA is unambiguous. It is futile to seek recourse to ID Act
to understand what is an 'establishment' for the purposes of
CLRAA. The Division Bench further held that the
establishment is one and it cannot be divided into several
small establishments where for one part the appropriate
government would be the Central Government and for the
other part it would the State Government. Such an
interpretation would run counter to the scheme of CLRAA and
would defeat its object and purpose.
22. The Division Bench also held that it is inconceivable by
virtue of Section 12A of the AAI Act, that only the functions
and powers of AAI stand transferred and not the
corresponding obligations. In fact, in terms of Clause 5.1 of
OMDA, the statutory obligations under CLRAA which are that
of AAI and its contractors also get transferred to CLRAA. This
15
transfers all powers and functions and correspondingly the
obligations under CLRAA by virtue of Section 12A of the AAI
Act.
23. The Division Bench held that:
“....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 DIAL of the functions and powers of
DIAL in relation to the Delhi airports is traceable to
Section 12A 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 AAI. The authority of the
Central Government is conferred by the statute
itself. Therefore, it is not correct to contend that
consequent upon OMDA, the establishment of AAI
i.e. the Delhi airports ceased to be under the control
of the Central Government.
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 12 A 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 12 A in the AAI Act, there could not have
been an OMDA between AAI and DIAL.”
16
24. After examining the settled legal principles, the Division
Bench held that irrespective of whether the amendment to
Section 2(a) I.D. Act was later, the appropriate government for
the purposes of Section 10 CLRAA in the instant case
continues to be the Central Government.
25. 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.”
26. The Division Bench further observed that 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) of the AAI Act are “air traffic services or watch and
17
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 AAI, notwithstanding that it has
entered into an agreement of OMDA with DIAL.
27. The Division Bench further observed that 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 OMDA. Only 'air
traffic services and provision of watch and ward' are, in terms
of Section 12A of the AAI Act to be retained by AAI as part of
its functions. The Division Bench viewed that the trolley
retrieval along with toilets and handling of baggage or car
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 other kinds
of air transport services, it is certainly meant to provide
trolley retrieval services at the Delhi airports.
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28. The Division Bench also came to the categorical finding
that for the purpose of establishment of Delhi airport, it is the
Central Government that continues to be the “appropriate
government”. The Division Bench also came to the conclusion
that in view of Section 12A of AAI Act, the obligation flowing
from the said notification under Section 10(1) of CLRAA will
continue to bind every private player that steps into the shoes
of 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-a-vis such private player has to be re-stated.
That was never the intention of the legislature in enacting
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.
29. The Division Bench of the High Court came to the
following conclusions:
(i) That in relation to airport, it is the Central
Government which is the appropriate
government for the purpose of CLRAA;
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(ii) DIAL is equally bound by the Notification
th
dated 26 July, 2004 issued by the Central
Government;
30. The most useful starting point of analysis is Section 10 of
CLRAA. Sub-Section (1) reads as follows:
“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.”
31. Two critical issues are raised by DIAL to suggest that the
th
Central Government's 26 July, 2004 notification directed at
“AAI establishment” under the authority of Section 10(1) of
CLRAA is inapplicable to DIAL. First, DIAL claims that the
Central Government is not the appropriate government to
issue such notices to it. Second, DIAL claims that even if the
th
Central Government was the appropriate government, its 26
July, 2004 notification was directed at “AAI establishment”
and AAI and DIAL are separate establishments. For the terms
of the notice to be made applicable to DIAL establishment, a
separate notification would have to be issued. These two
issues will be addressed in its own turn.
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32. WHETHER THE CENTRAL GOVERNMENT IS THE
“APPROPRIATE GOVERNMENT”
CLRAA Section 2(1) reads as follows:
(1) In this Act, unless the context otherwise
requires,-
(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;
(ii) in relation to any other establishment, the
Government of the State in which that other
establishment is situated.
33. In the definition itself given in Section 2(a), specific
reference has been made to the Airport Authority of India
constituted under the AAI Act and the air transport service.
This provision makes it clear that the Central Government will
be the “appropriate government” under CLRAA for any
establishment for whom the Central Government is the
“appropriate government” under the ID Act. The question
which now arises for adjudication is whether the Central
Government is the “appropriate government” under the ID Act.
According to DIAL, it is not an “appropriate government”,
therefore, it is imperative to analyse this provision. Section
21
2(a) of the ID Act indicates that the Central Government is the
“appropriate authority” in three relevant situations:
(i) The Central Government is the “appropriate
authority” in relation to any industrial dispute
concerning any industry carried on by or
under the authority of the Central
Government.
(ii) The Central Government is the “appropriate
government” in relation to the industrial
disputes concerning AAI.
(iii) The Central Government is the “appropriate
government” in relation to industrial dispute
concerning air transport service.
34. Both AAI and the air transport service have been
specifically incorporated in the Section itself. Thus, if DIAL
industry is carried on under the authority of the Central
Government, the dispute in question can be said to concern
AAI or if the dispute in question can be said to concern air
transport service, then the Central Government is the
appropriate authority both for ID Act and CLRAA. It may be
pertinent to properly comprehend the relevant statute.
35. The AAI Act was constituted for the better administration
and cohesive management of airports and civil enclaves
whereat air transport services are operated or are intended to
22
be operated and of all aeronautical communication stations for
the purpose of establishing or assisting in the establishment of
airports and for matters connected therewith or incidental
thereto.
36. In Section 2 of the AAI Act, air transport service has been
defined in Section 2(e) of the Act which is set out as under:
“air transport service” means any service, or any
kind of remuneration, whatsoever, for the transport
by air of persons, mail or any other things, animate
or inanimate, whether such service relates to a
single flight or series of flights;
37. Section 12A of the AAI Act, which was inserted with effect
from 1.7.2004, 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 or 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.
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(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 lessees, 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.”
38. It is clear from Section 12A that AAI may in public
interest or in the interest of a better management of the
airport, make a lease of the premises of the airport to carry out
some of its functions under Section 12 as the Authority may
deem fit. Detailed functions of the Authority have been
enumerated in Section 12. Out of those functions under
Section 12A, some functions can be delegated on lease in the
public interest or in the interest of better control and
management of the airports. Consequently, in pursuance of
the agreement with DIAL, some functions of AAI were leased
out to DIAL. DIAL argued that not only its own industry is
not carried on under the authority of the Central Government
but further that not even AAI's authority is carried on under
the authority of the Central Government.
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39. It is relevant to mention that DIAL derives its authority
from AAI and AAI derives its authority from the powers given
by the Central Government. The question, of course, is
whether DIAL works “under the authority” of the Central
Government and therefore, whether the Central Government is
the “appropriate authority” for DIAL?
40. In the impugned judgment, the Division Bench has clearly
held that AAI works “under the authority” of the Central
Government.
41. It would be relevant to recapitulate the Statement of
Objects and Reasons for passing the AAI Act. The Statement
of Objects and Reasons reads as under:
“STATEMENT OF OBJECTS AND REASONS
Until 1971, the Director General of Civil Aviation
was entrusted with the responsibility not only of
regulatory functions relating to civil aviation but
also of construction and management of airports,
air traffic control and air space management in the
country.
2. Considering the need for heavy investments and
operational flexibility required for construction and
management of large airports, the International
Airports Authority of India (IAAI) was constituted as
an autonomous body under the International
Airports Authority Act, 1971. Four international
airports, namely, Delhi, Bombay, Madras and
25
Calcutta were transferred to IAAI with effect from
1.4.1972; later, Trivandrum airport was also
transferred to IAAI. In 1985, it was felt that similar
treatment was required for domestic airports and
air traffic control and related services.
Consequently, the National Airports Authority (NAA)
was constituted under the National Airports
Authority Act, 1985.
3. International airports are put to more intensive
use and generate substantial revenues which
accrue to the IAAI. Revenues of the NAA are much
less buoyant because a number of its airports do
not have any commercial air service whatsoever
while many others have only infrequent operations.
The NAA has, therefore, not been able to generate
adequate resources to meet the requirements of
development and modernization. To overcome this
handicap and provide for closer integration in the
management of airports and air traffic contract
services in the country, it has been found necessary
to merge the IAAI and the NAA, which the Bill seems
to achieve.
4. The salient features of the Bill are:-
(a) Constitution of a single unified Airports
Authority of India to control and manage both the
national and international airports in the country
and transfer and vesting of the undertakings of the
International Airports Authority of India and
National Airport Authority in the said Airports
Authority of India.
(b) Repeal of the International Airports
Authority of India Act, 1971 and the National
Airports Authority Act, 1985.
(c) All licences, permits, quotas and
exemptions granted to the International Airports
Authority of India or the National Airports Authority
26
be deemed to have been granted to the Airports
Authority of India.
(d) Guarantees given for or in favour of the
International Airports Authority of India or the
National Airports Authority to continue to be
operative in relation to the Airports Authority of
India.
(e) Every officer or other employee of the
International Airports Authority of India and the
National Airports Authority, serving in its
employment immediately before the appointed day,
to become an officer or other employee, as the case
may be, of the Airports Authority of India, with
option to resign.
(f) Power of the Central Government to give
directions to the Airports Authority of India.
5. The Bill seeks to achieve the aforesaid
objectives.”
42. A close reading of the objects and reasons indicates that
the Central Government under Section 12A of the AAI Act has
retained the power to give directions in the public interest or
in the interest of better management to lease the premises of
the airport to carry out some of its functions under Section
12A, as the authority may deem fit. Some of its (AAI's)
functions have been leased out to DIAL. This has been done
under Section 12A(2) with the previous approval of the Central
Government. On proper scrutiny of the provisions of the AAI
27
Act, it is abundantly clear that the Central Government has
control over AAI and AAI has control over DIAL.
43. DIAL claims that if AAI's industry was being carried out
under the authority of the Central Government under Section
2 of the ID Act, there would have been no need for the
legislature to separately include AAI as an “enumerated
industry”. Such reasoning would be seen on a plain reading of
the phrase: “under the authority of the Central Government”,
as DIAL itself has admitted that all these industries, on a
cursory look, seem to be by or under the control of the Central
Government. Further, this line of thinking would imply that
none of the many industries enumerated in ID Act can be held
to act “under the authority of the Central Government”. While
this is conceivably the case, it may be more likely that the
authors of the ID Act, in listing the enumerated industries,
simply wanted to ensure that those industries were covered by
the Act, without meaning to affect the separate issue of
whether those industries were also acting “under the authority
of the Central Government.” Further, while it is fair to assume
that the legislature attempts to avoid tautology, such canons
are not necessarily dispositive. It is well established canon of
28
statutory construction that the legislature is known to avoid
tautology and redundancy.
44. The crucial questions which need our adjudication are:
whether DIAL works under the Central Government and
whether the Central Government is the 'appropriate
government' for DIAL?
45. The AAI Act was passed by the Central Government “to
provide for the constitution of the Airports Authority of India'
which was in turn charged with the “better administration and
cohesive management of airports.” Preamble to Section 12A of
the AAI Act allows AAI to contract with third parties to perform
some of AAI's functions (in the public interest or in the interest
of better management of airports). It was this proviso which
allowed AAI to assign some of its functions to DIAL through
OMDA, responsibility for trolley collection services at the
Indira Gandhi International Airport and the domestic airport.
46. DIAL claims that if AAI's industry was being carried out
under the authority of the Central Government under Section
2 of the ID Act, then there would have been no need for the
legislature to separately include AAI as an “enumerated
29
industry”. On the one hand, this argument of DIAL is correct.
On the other hand, however, such reasoning would seem to
contradict a plain reading of the phrase “under the authority
of the Central Government” as DIAL itself has admitted, “all
these industries, on a cursory look seem to be by or under the
control of the Central Government.” Further, this line of
thinking would imply that none of the many industries
enumerated under Section 2 of the ID Act can be held to act
“under the authority of the Central Government”. While this is
conceivably the case, it may be more likely that the framers of
the ID Act, in listing the enumerated industries simply wanted
to ensure that these industries were also acting “under the
authority of the Central Government.”
47. The Constitution Bench of this Court in Steel Authority
of India Limited & Others etc. etc. v. National Union
Water Front Workers and Others etc. etc. , (2001) 7 SCC 1,
popularly known as 'SAIL' case held:
“Where the authority, to carry on any industry for or
on behalf of the Central Government, is conferred
on the government company/any undertaking by
the statute under which it is created, no further
question arises.”
30
48. AAI, a government undertaking has been created by a
statute, to carry out the air transport industry on behalf of the
Central Government. In the words of the AAI Act itself, the
Act was created :
“….for the transfer and vesting of the undertakings
of the International Airports Authority of India and
the National Airports Authority to and in the
Airports Authority of India so constituted for the
better administration and cohesive management of
airports and civil enclaves...” (Preamble)
49. If the passage from SAIL's case is to be taken at its face
value, it would appear that AAI clearly functions “under the
authority” of the Central Government, and that the Central
Government is, therefore, the “appropriate government” under
the terms of CLRAA and ID Act.
50. In the impugned judgment, the Division Bench correctly
held that “the provisions of the AAI Act show that there is
extensive control of the Central Government over the
functioning of AAI.” Section 12A reveals control of the Central
Government on AAI. AAI has to obtain approval from the
Central Government before delegating any of its functions to
third parties, such as DIAL. This clearly indicates that the
Central Government has complete control over AAI. Sections 2,
31
6 and 10 of the AAI are further examples of governmental
reservations of authority. The Central Government retains its
statutory control over AAI. In the impugned judgment, the
High Court correctly came to the conclusion that “the
authority of the Central Government is conferred by the
statute itself.”
51. In fact, in these cases, we are merely concerned with very
limited controversy whether DIAL works under the authority of
the Central Government or not? DIAL, of course, claims that
it does not. In the SAIL judgment, the Constitution Bench
held as under :
“the phrase “any industry carried on under the
authority of the Central Government” implies an
industry which is carried on by virtue of, pursuant
to, conferment of, grant of, or delegation of power or
permission by the Central Government to a Central
Government company or other government
company/undertaking. To put it differently, if there
is lack of conferment of power or permission by the
Central Government to a government company or
undertaking, it would disable such a
company/undertaking to carry on the industry in
question.”
52. In case the Central Government had never granted
permission, pursuant to Section 12A of the AAI Act, DIAL
would not be able to carry out functions at the Delhi airports.
32
The entire functioning of DIAL is fully dependent on the grant
of permission by the Central Government. The Constitution
Bench, in the SAIL judgment further observed as under :
“may be conferred, either by a statute or by virtue of
the relationship of principal and agent or delegation
of power. Where the authority, to carry on any
industry for or on behalf of the Central Government,
is conferred on the government company/any
undertaking by the statute under which it is
created, no further question arises. But, if it is not
so, the question that arises is whether there is any
conferment of authority on the government/any
undertaking by the Central Government to carry on
the industry in question. This is a question of fact
and has to be ascertained on the fact and in the
circumstances of each case.”
53. The undertakings need not be government undertakings
to have had authority conferred upon them. But the word
“government” clearly modifies “company.” However, it cannot
modify “undertaking,” for the phrase “government/any
undertaking”. Thus, it would seem that any “undertaking”-
even private undertakings, like DIAL – may function “under
the authority” of the Central Government. Whether or not they
do it, as the Constitution Bench noted, “a question of fact
which has to be ascertained on the facts and in the
circumstances of each case.”
33
54. In the facts and circumstances of these cases, it is
abundantly clear that DIAL operates under the authority of
the Central Government.
55. In the impugned judgment, it was noted that “the
functions and powers of DIAL in relation to the Delhi airports
are traceable to Section 12A of the AAI Act.” It is clear that
without Central Government's permission, AAI could not have
delegated any power to DIAL. In other words, the functioning
of DIAL at the Delhi airports itself was fully dependent on the
approval of the Central Government. In other words, DIAL
could not have received its contract with AAI without the
Central Government's approval. That being the case, by a
plain reading of the phrase it seems that “DIAL functions
under the authority of the Central Government”.
56. It was argued on behalf of DIAL that “if the intent of the
Parliament was to make DIAL come under the authority of the
Central Government then it would have militated against the
basic objective of achieving privatization.” DIAL, however, does
not explain how having the State Government as the
appropriate government – the only alternative under CLRAA
34
and ID Act – would be any more conducive to privatization. It
is now clear that the Central Government does not impede
privatization any more than the State Government; after all, it
was the Central Government that sought to encourage
privatization through the AAI Act by incorporating Section
12A in the Act.
57. In case AAI and DIAL act under the authority of different
governments it would bring about absurd results : AAI could
simply circumvent potential Central Government orders by
delegating various functions to third parties, such as DIAL.
Of course, AAI would need to obtain Central Government
approval prior to making such a delegation under Section 12A
of the AAI Act, but it nevertheless seems unlikely that the
Central Government would intend to maintain authority over
AAI's actions, while allowing actions performed by other
entities on behalf of AAI, such as DIAL, to be carried out under
the authority of the State Government. DIAL has made no
suggestions as to why the Central Government might have
intended such a result while drafting the AAI Act and CLRAA,
and there is, therefore, little justification for coming to such a
conclusion.
35
58. DIAL expressly assumed the “rights and obligations
associated with the operation and management of the airport”
through OMDA. While Section 12A of the AAI Act only notes
that the “powers and functions” of AAI will be transferred to its
lessors, it is “inconceivable that by virtue of Section 12A the
powers and functions of AAI will stand transferred and not the
corresponding obligations.” If it was the “obligation” of AAI to
follow valid directions of the Central Government by virtue of
its status as an enumerated industry, and if DIAL has
admittedly assumed those same obligations through OMDA,
then DIAL is presumably also obligated to follow such
directions. Again, a contrary interpretation would allow AAI to
circumvent the Central Government's exercise of authority
over its work merely by contracting it out to third parties. It is
abundantly clear that the Central Government is the
appropriate government qua DIAL and consequently the said
th
Notification of 26 July, 2004 is equally applicable to DIAL.
59. Under the ID Act (and therefore CLRAA), the third
situation in which the Central Government is the “appropriate
36
Government” is “in relation to industrial disputes concerning
air transport services.”
60. The question for the purposes of this case, then, is
whether the trolley retrieval services performed by DIAL are
done “for the transport by air of persons, mail, or any other
thing.” Clearly, trolley retrievers themselves are not physically
transporting anything by air. However, it is entirely possible
that the drafters of the AAI Act did not intend to restrict the
coverage of this provision merely to pilots, stewardesses, and
others engaged in the actual, physical transport of people and
objects, as DIAL would have liked the Court to believe.
Clearly, trolleys at airports relate to air transportation- just as
they relate to “a single flight or a series of flights.”
61. On behalf of DIAL, it was submitted that “air transport
services” as enumerated industry under ID Act replaced an
earlier listing of “Indian Airlines” and “Air India”, two
corporations clearly engaged in the actual, physical
transportation of individuals by air.
62. At the time of amendment when private airline operators
had started functioning and as “air transport service” they
37
included all airline operators, private or public and the said
industry was included as an enumerated industry. This
makes it abundantly clear that “air transport service” concerns
airline operators only.
63. Section 12(2) of the AAI Act reads as under:
“It shall be the duty of the Authority to provide air
traffic service and air transport service at any
airport and civil enclaves.”
64. It may be relevant to mention that DIAL is not engaged in
the business of operating an airline for carrying passengers
and goods by air through flights. In fact, AAI is also not
involved in this activity and Section 12 of the AAI Act which
lists out the functions of AAI does not include the function of
carrying people and goods through air by flights operated by it.
As such, when AAI does not perform such function then there
is no question of transfer of such functions to DIAL.
65. It is the duty of the authority to provide all air transport
services at the airport, and if it is not the duty of the authority
to carry passengers and goods by air through flights, then by
the appellants own logic, air transport service must mean
more than the mere carriage of passengers and goods by air
38
through flights. If it did not, then there would be no reason
that “air transport service” would be listed as a “duty of the
Authority” under Section 12(2). This Section clearly indicates
that it is the duty of the Authority to provide “air transport
service”, such duty does not mean that the Authority provides
such services itself.
66. AAI is responsible under the AAI Act for providing air
transport service would not necessarily mean that DIAL also
does so.
67. In the instant case under Section 12A of the AAI Act all
functions have been given to DIAL except watch and ward
function, air traffic service and civil enclaves. From the
provisions of OMDA, it is clear that all functions of AAI barring
reserved activities and all land except certain carved out
assets has been given to DIAL.
68. DIAL has admitted that AAI has transferred to it all
functions except those related to watch and ward, air traffic
service and civil enclaves, none of which can be considered as
“air transport service”. That being the case, AAI must have
transferred its duty to provide “air transport service” to DIAL
39
and the Central Government must, therefore, be the
appropriate government for DIAL under the CLRAA and ID Act.
AAI and DIAL are not separate establishments, but even if
th
they were, the 26 July, 2004 notification applies to DIAL
anyway
69. Section 10(1) of the CLRAA permits the “appropriate
government” to “prohibit employment of contract labour in any
process, operation or other work in any establishment. The
th
Central Government’s 26 July, 2004 notification clearly
forbade the “AAI establishment” from employing trolley
retrievers as contract labour. The question, then, is whether
DIAL is part of “AAI establishment” for purposes of the
CLRAA?
70. DIAL contends that the establishment of AAI at the Indira
Gandhi International Airport and Domestic Airport underwent
a change and a new private entity in the form of the appellant
DIAL established its establishment, after being granted a lease
under Section 12A of the AAI Act. In support of this claim,
DIAL contends that it has complete overall control and
supervision over the Airport to the exclusion of AAI, and is not
an agent or delegate of AAI but is, rather, a separate and a
th
new principal entity to whom the Central Government’s 26
40
July, 2004 notification, even if otherwise valid, did not apply.
The Single Bench apparently agreed, holding that
“the notification itself has become irrelevant in view
of the privatization of the airports and a new
notification will have to be issued by the appropriate
government.
71. To address these claims, it is important to analyse the
definition of “establishment”. Section 2(1)(e) of the CLRAA
defines “establishment” as follows:
“ ‘establishment’ means –
c) any office or department of the Government or a
local authority, or
d) any place where any industry, trade, business,
manufacture or occupation is carried on.”
72. As this provision makes it clear, the definition of
“establishment” focuses either on (1) Place; or (2) Offices or
th
departments of the Government or a local authority. The 26
July, 2004 notification must, therefore, have been directed at
one of these types of establishments.
73. On the one hand, AAI clearly cannot be considered a
local authority as it is charged with managing airports
throughout India. On the other hand, AAI also cannot be
considered an “office or department of the Government”. The
41
AAI Act makes clear that AAI must, in certain circumstances,
obtain approval from the Central Government, thereby
implying that AAI is not itself the Central Government.
Therefore, “establishment” in this case cannot refer to “any
office or department of the Government or a local authority”, it
must refer to a “place where any industry, trade, business,
manufacture or occupation is carried on”. The Division
Bench in the impugned judgment held that 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.
74. This Court in SAIL's case held as under:
“It is thus evident that there can be plurality of
establishments in regard to the Government or local
authority and also in regard to any place where any
industry, trade, business, manufacture or
occupation is carried on.”
75. Accordingly, there could be multiple establishments at
the airport. That being the case, the Division Bench’s
assertion that the establishment of AAI is in turn the
establishment of DIAL must be justified.
42
76. It would be pertinent to refer to the definition of
“contractor” in Section 2(1)(c) of CLRAA, which reads as under:
“‘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.”
77. DIAL “undertakes to produce a given result” – trolley
retrieval services, among other things – for AAI establishment
through contract labour. To prove, otherwise, DIAL would
need to be able to assert the following, adopted from the
CLRAA definition of contractor excerpted above.
“DIAL does not undertake to produce any result for
AAI establishment. Instead, DIAL undertakes to
produce result for its own establishment”
78. DIAL while performing work on behalf of AAI, it is not
performing work on behalf of AAI establishment. Instead, it is
merely working on behalf of its own establishment.
79. Further, all the independence DIAL does have, the AAI
Act and OMDA make it clear that AAI maintains ultimate
responsibility for the airport.
43
80. The question that has to be answered is who has control
of the entire establishment? Noticing that air traffic services
and security are the heart of the airport and also noticing the
clauses of OMDA providing for overall supervision of DIAL by
AAI, checking of accounts, step in rights of AAI and so on, it
must be concluded that AAI has overall control of the airport
site.
81. Admittedly, DIAL has been leased out the portion of AAI’s
work, which DIAL only has incomplete control over as well as
the fact that DIAL meets the definition of a contractor under
the CLRAA, further suggests that DIAL is nothing more than a
contractor for AAI establishment. DIAL is not, in other words,
a principal employer of an independent establishment. That
th
being the case, the 26 July, 2004 notification, declared at AAI
establishment, must also apply to DIAL.
82. The fact that DIAL is a private entity is of no assistance
to it. In SAIL’s case , the Constitution Bench explicitly held
that the definition of “establishment” in the CLRAA takes in its
fold purely private undertakings.
44
83. This issue is fully settled by the foregoing analysis. From
the analysis, DIAL falls under AAI establishment. For
example, Clause 5.1 of OMDA, which notes that the “rights
and obligations associated with the operation and
management of the Airport would stand transferred to” DIAL,
would seem to suggest that orders given to AAI establishment
would also apply to DIAL establishment, even if the two were,
as DIAL claims, separate establishments. If AAI establishment
is obligated to abolish contract labour and DIAL establishment
(even if it is somehow separate) has assumed AAI
establishment’s obligations through the OMDA, then DIAL is
presumably required to fulfil those obligations. Critical to this
th
inference is the fact that the Central Government’s 26 July,
2004 notification was issued before OMDA was signed.
84. The contention that DIAL would not also be bound by the
obligations of AAI establishment would once again lead to
absurd consequences. In the impugned judgment, the Division
Bench correctly observed that “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-a-vis
45
such private player” must be repeated. This interpretation
would defeat the rights of the workers, which are meant to be
protected by CLRAA. The Division Bench has correctly
observed that the obligation flowing from the notification
under Section 10(1) CLRAA shall continue to bind every
private player that steps into the shoes of AAI.
85. We have carefully heard the learned counsel for the
parties and perused the written submissions filed by them. In
our considered view, the Central Government is the
appropriate government for DIAL for the following reasons –
(i) DIAL could not have entered into a contract
with AAI without approval of the Central
Government according to the mandate of
Section 12A of the AAI Act. In this view of the
matter, it is abundantly clear that DIAL
functions “under the authority” of the Central
Government;
(ii) AAI clearly acts under the authority of the
Central Government and DIAL acts under the
authority of AAI because of its contract with
DIAL. Then it can be logically stated that DIAL
works under the authority of the Central
Government;
(iii) The Central Government has given AAI
responsibility for overseeing the airports. To
fulfil its obligations, AAI contracted with DIAL.
However, it is clear that DIAL’s work
“concerns” AAI, if DIAL does not perform its
work properly or adequately, then AAI will be
46
breaching its statutory obligation and would
be responsible for the consequences.
(iv) AAI is under an obligation to follow the
directions of the Central Government and if
DIAL has admittedly assumed those
obligations through the OMDA, then DIAL is
presumably also obligated to follow such
directions. Again, a contrary interpretation
would allow AAI to circumvent the Central
Government’s exercise of authority over its
work merely by contracting it out to third party
(DIAL).
(v) Clause 5.1 of the OMDA specifically notes that
the “rights and obligations associated with the
operation and management of the Airport
would stand transferred” to DIAL. If AAI was
th
admittedly obligated to follow the 26 July,
2004 notification and DIAL has assumed all of
AAI’s obligations, then DIAL must also be
obligated to follow the notification. In other
words, the notification issued by the Central
Government is equally binding on DIAL.
th
(vi) Holding the 26 July, 2004 notification
inapplicable to DIAL would mean that the
Government would have to issue separate
notification every time AAI contracts with a
third party. This would clearly violate the
basic objects and reasons of CLRAA.
(vii) The security of contract labour working for AAI
envisaged, a law cannot be made to depend on
the private sector. If the legislature had found
it fit to specifically include AAI as an
enumerated industry under the ID Act, it is
extremely unlikely that it would have intended
for AAI to be able to circumvent the Central
Government orders by contracting with private
parties.
47
(viii) The privatization of the airports does not mean
that the “appropriate government” cannot be
the Central Government. According to the
Constitution Bench judgment of this Court in
the case of SAIL, the definition of
‘establishment’ in the CLRAA takes in its fold
purely private undertakings…”.Concerns about
privatization are, therefore, unfounded.
(ix) Under Section 12(2) of the AAI Act, AAI is
obliged to provide air traffic service and air
transport service at the airport. DIAL admits
that AAI has transferred all of its
responsibilities at the airports with the
exception of certain reserved functions. Since
industries concerning air transport service
function under the authority of the Central
Government, and since AAI has transferred its
“air transport service” responsibilities to DIAL,
the Central Government must be held to be the
appropriate Government for DIAL.
(x) The OMDA makes it clear that AAI maintains
ultimate responsibility for the airports. The
fact that DIAL was transferred only a portion of
AAI’s work which DIAL only has incomplete
control over as well as the fact that DIAL meets
the definition of a contractor under the CLRA
Act further suggests that DIAL is nothing more
than a contractor for AAI establishment. That
th
being the case, notification dated 26 July,
2004 directed at AAI establishment must also
apply to DIAL.
(xi) The contention of DIAL that it would not be
bound by the obligation of AAI establishment
would lead to absurd consequences. The
Division Bench in the impugned judgment has
rightly pointed out that 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
48
trolley retrieval and with the same
establishment via-a-vis such private player
must be repeated. But this interpretation
would defeat the rights of the workmen which
are meant to be protected by the CLRAA.
(xii) In the impugned judgment, the Division Bench
of the High Court has correctly held that the
obligation flowing from the said notification
under Section 10(1) CLRAA should continue to
bind every private player that steps into the
shoes of AAI.
86. For the foregoing reasons, it is clear that the notification
th
dated 26 July, 2004 was equally binding on DIAL under the
CLRAA and, therefore, DIAL must abolish all contract labour
as per the terms of the notification.
87. We have no hesitation in coming to the conclusion that
th
the Central Government notification dated 26 July, 2004 is
clearly binding and applicable to DIAL. DIAL’s obligation with
regard to the contract labour in general is clear from the said
notification. They are liable to be regularized as regular
employees of DIAL. DIAL has replaced many of the workers
with other trolley retrievers and it would be unrealistic to
expect DIAL to regularize the employment of their current
trolley retrievers and member of the workers’ union alike and
49
inequitable to leave the current workers jobless so as to make
room for erstwhile workers of DIAL.
88. In view of the peculiar facts and circumstances of these
cases directing DIAL to regularize services of trolley retrievers
who worked with DIAL till 2003 would be harsh, unrealistic
and not a pragmatic approach, therefore, in the interest of
justice, we deem it proper to direct DIAL to pay Rupees five
lacs to each of the erstwhile 136 workers of DIAL who were
working for them as trolley retrievers till 2003 and in case any
worker has expired, then his or her legal heirs would be
entitled to the said amount. This compensation is paid to the
workers in lieu of their permanent absorption/reinstatement
with DIAL and their claim of back wages. This is in full and
final settlement of entire claims of erstwhile 136 workers of
DIAL.
89. We direct DIAL to pay the amount to these 136 erstwhile
workers of DIAL within three months after proper verification.
In case the amount, as directed, is not paid within the
prescribed period, then it would carry interest at the rate of
12% per month from that point till the amount is paid.
50
90. These appeals are accordingly disposed of in the
aforementioned terms. In the facts and circumstances of
these cases, we direct the parties to bear their own costs.
.….………………………..J.
(Dalveer Bhandari)
….………………………..J.
(Deepak Verma)
New Delhi;
September 15, 2011
51