Anulal O. v. AL Airport Services Limited and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943 WP(C) NO. 21624 OF 2020** ## **PETITIONER/S:** ANULAL O. AGED 27 YEARS S/O. OMANAKUTTAN, WAS WORKING AS JUNIOR CUSTOMER AGENT IN AIATSL COMPANY, RESIDING AT VALAVIKIZHAKKATHIL, PUTHENTHURA P.O, NEENDAKARA, KOLLAM PIN 691 582 BY ADVS. C.S.AJITH PRAKASH SRI.T.K.DEVARAJAN SMT.T.N.SREEKALA SRI.PAUL C THOMAS SHRI.BABU M. SMT.ANCY THANKACHAN SHRI.NIDHIN RAJ VETTIKKADAN SRI.HAARIS MOOSA ## **RESPONDENT/S:** 1 AL AIRPORT SERVICES LIMITED (FORMERLY KNOWN AS AIATSL) REGISTERED OFFICE 2ND FLOOR, GSD BUILDING, AIR INDIA COMPLEX TERMINAL-2, IGI AIRPORT, NEW DELHI SOUTH WEST DELHI 110 037 REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR 2 THE CHAIRMAN AND MANAGING DIRECTOR, AIR INDIA LTD, AIRLINES HOUSE, 113 GURUDWARA RAKABGANJ ROAD, NEW DELHI 110 001 3 THE TERMINAL MANAGER, AL AIRPORT SERVICES LIMITED (FORMERLY KONW AS AIATSL) GSD MAINTENANCE HANGAR, COCHIN INTERNATIONAL AIRPORT POST, NEDUMBASSERY, KOCHI 683111 4 P. THAMILARASU, TERMINAL MANAGER-AIR INDIA/AIASL, NODAL OFFICER, IN CHARGE, AL AIRPORT SERVICES LIMITED (FORMERLY KNOWN AS AIATSL) AIR LINE OFFICES BUILDING, COCHIN INTERNATIONAL AIRPORT POST, NEDUMBASSERY, KOCHI 683111 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN D.PREM KAMATH TOM THOMAS (KAKKUZHIYIL) ABEL TOM BENNY JYOTHISH KRISHNA KURIAN OOMMEN THERAKATH JAIKRISHNAN.M.PISHARODI SRUTHY J. MAMPILLY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 21624 OF 2020** **2** ## **JUDGMENT** Petitioner through the instant writ petition seeks the following reliefs: i. _To call for the records leading to the non-renewal of Ext.P3 and to extend the period of service of the petitioner as a 'Junior Customer Agent' under the 1st respondent company, in the interest of justice._ _ii. To declare that Ext.P3 agreement is liable to be renewed and the non-renewal is in violation of the principals of natural justice and the non-renewal amounts to denial of employment, which is an arbitrary decision._ _iii. To issue a writ Mandamus or any such other appropriate writ, order or direction directing the respondents to renew Ext. P3 and deploy the petitioner for work as 'junior customer agent', in International Airport, Kochi, and to pay wages in accordance with the law._ _(iv) To issue a writ Mandamus or any such other appropriate writ, order or direction commanding the respondents to take appropriate steps for carrying out the necessary correction in the ESI registration form as requested by the petitioner within a time frame fixed by this Hon'ble Court._ 2. On the perusal of the reliefs aforementioned, it is basically, the reliefs as couched under the provisions of Section 39 of the Specific Relief Act, 1963. Now the question which arises is in view of the provisions of the contract as well as the Specific Relief Act whether the petitioner in the circumstances, **WP(C) NO. 21624 OF 2020** **3** which are enumerated herein below, can seek the indulgence of this Court under Article 226 of the Constitution of India. 3. The facts in brief are that vide Ext.P3 dated 17.4.2017, a contract was arrived at between the petitioner and the respondent on receipt of the application for appointment to the post of Junior Customer Agent in Al Airport Services Limited for a fixed period of three years from 17.4.2017 to 16.4.2020 in Air India Air Transport Services Ltd. on payment of gross emoluments of Rs.14,010/- per month which owing to the pandemic, concededly was extended up to 30.6.2022. The terms and conditions of the aforementioned agreement Ext.P3, required both the parties to perform the part of the agreement and clause 28 provided that it will automatically expire on 16.4.2020 or an attaining the age of superannuation, ie., 58 years, whichever is earlier. During the subsistence of the aforementioned contract, respondent vide order dated 1.2.2019 de-rostered the petitioner which was assailed in this court vide W.P.(C) No.9421 of 2019. Noticing the contentions of both the parties, vide judgment dated 27.5.2019 this Court directed the 4[th] respondent therein to take decision on payment of wages to the petitioner from the date of **WP(C) NO. 21624 OF 2020** **4** passing of the order dated 1.2.2019 and in case the 4[th] respondent concludes the proceedings initiated pursuant to 1.2.2019 and takes a final decision at the earliest the idle bench sitting would be avoided. The aforementioned directions was not complied with, necessitating the petitioner to file the contempt petition. An order Ext.P14 during the interregnum dated 12.6.2019 was passed whereby he was suspended from the duty and was entitled to subsistence allowance of 50% of wages/salary for the first 90 days of suspension and 75% of the wages/salary for the remaining period ie., 1.2.2019 to 1.5.2019. It is also a matter of record that the entire salary was thereafter paid and the question which now revolves around is a consideration of the request of the petitioner as envisaged in Ext.P6 whereby the renewal of the contract on various grounds which was also requested again vide Ext.P17 dated 15.7.2020, has been sought. 4. Learned counsel for the petitioner submitted that the appointment on contract basis is not appreciated by the Government in view of the information received under the RTI Ext.P23 dated 5.8.2015 whereby it was replied that there was no such direction from the Ministry of Labour and Employment for **WP(C) NO. 21624 OF 2020** **5** indulging into 'Fixed Term Employment'. However the Ministry of labour and Employment decided to re-introduce the term 'Fixed Term Employment' in the industrial employment (Standing Orders) Act, 1946 and the rules framed there under. Ext.P24 reflects the list of the persons whose contract have been renewed and Ext.P25 to P29 are other documents with regard to the information received under RTI and assigning of the duty roster to the other customer agents. Petitioner could not have approached the labour court in view of the order under Section 2(00)(bb)of the Industrial Dispute Act. The father of the petitioner is 100% blind and mother of the petitioner died; he is the only breadwinner in the family. The non renewal of Ext.P3 agreement is without any notice or justification, resulting into termination of the employer. The non renewal has resulted into loss of employment and deprived of the livelihood. Despite the fact that he was having a meritorious service. Business of Air Transport services is a regular job and round the clock so long as the Airline operation is carried out by Airline operator. Clause 20 and 21 of the contract of employment prescribes certain conditions for terminating the employee which the petitioner had **WP(C) NO. 21624 OF 2020** **6** never been confronted off. 5. On the other hand, learned counsel for the respondents 1,3 and 4 opposed the aforementioned prayer on the ground of maintainability of the writ petition as the prayer sought cannot be couched under the provisions of Article 226 of the Constitution of India as the petitioner has only remedy of damages as contemplated under Section 40 of the Specific Relief Act. 6. Petitioner would fall within the definition of the workman and the remedy if any was under the Industrial Dispute Act. The entire tenor and mode of the writ petition would lead to an irresistible conclusion that allegation of victimization have been levelled and for that a detailed evidence is required to be led. In support of the contentions, relied upon the judgment _**Messrs Bharat Iron Works v. Bhagubhai Balubhai Patel &**_ _**Ors, (1976) 1 SCC 518**_ . It was further contended that the termination of the service as per the terms and conditions of the appointment order by efflux of time cannot be pressed into service through the intervention of the writ court under Article 226 of the Constitution of India (Para 4 of the judgment in **WP(C) NO. 21624 OF 2020** **7** _**Vidyavardhaka Sangha and Another v. Y.D Deshpande and**_ _**Others [(2006) 12 SCC 482**_ ]. Non renewal of the contract would not give any approval of right in favour of the contractual employee _**(Yoghesh Mahajan v. Professor RD Deka, Director, AIIMS [2018 (3) SCC 218).**_ 7. I have heard the learned counsel for the parties and appraised the paper book. Relevant clauses of the contract Ext.P3 dated 17.4.2017 reads as under: _With reference your application for the post "Jr. Customer Agent" INDIA AIR TRANSPORT SERVICES LTD, and your further consent by way of appearing for selection process, be considered against existing vacancies. We are pleased to induct you on contract basis as a "Jr. Customer Agent" on the terms and conditions hereinafter mentioned, for a fixed period of years, from 17.04.2017 16.04.2020 gross emoluments 14,010/- per months. The increase in emoluments during the period of contract is subject to your performance and attendance being found satisfactory._ _2. We record having informed you that our Company has secured contracts handling of flights at various airport in India which are generally for three years and in order to fulfill such contractual obligations during this period, we are offering you such fixed term contract appointment at Kochi International Airport. Even if these contract to undertake ground-handling functions are extended, there will be no automatic extension of your contract service with us._ _20. In the event of your involvement in any kind of act which is detrimental to the interest of the Company or in the event of your arrest by the Police / Customs / any other authority, for your involvement in any criminal offence, your services will be terminated immediately_ **WP(C) NO. 21624 OF 2020** **8** _21. In the event of you being found guilty of misconduct within the Service Regulations, the Company shall be entitled to terminate your services forthwith._ _22. Notwithstanding anything contained herein above, the Company reserves the right to terminate your services at any time by giving three month's notice or wages in lieu thereof. Likewise, in case you wish to leave your contractual engagement at any time within the three year period of this Contract, you shall be required to give three month's notice in writing or three month's wages in lieu of such notice. 25000/ will be recovered as training cost towards training imparted and training acquired in course of carrying out the job, if resignation is within 2 years in the contract. The said amount will be recovered by retaining Rs.5000/- per month effective 1 month of the salary for a period of five months. The same will be refunded after completion of two years of the contract._ _23. Since it is clearly understood by and between the parties that this Contract of service that no right much less a legal right shall vest in you to claim employment or otherwise seek absorption in the establishment where you are deputed to provide services by AIATSL nor shall you have any right whatsoever to claim the benefits and / emoluments that may be permissible or paid to the employees of the said establishment. You shall only be entitled to the benefits and emoluments as offered herein above and accepted by you, irrespective of your place of posting during your Contract period._ _28. This fixed Term Employment, if not terminated earlier, will automatically expire on 16.4.2020 OR on attaining the age of superannuation, ie., 58 years, whichever is earlier, without Company having to do any other action in this respect or assigning any reason thereof._ 8. Section 39 and 40 of the Specific Relief Act, 1963 reads thus: **WP(C) NO. 21624 OF 2020** **9** 39. _Mandatory Injuctions When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts._ _40. Damages in lieu of, or in addition to, injunction_ _1. The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages._ _2. No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:_ _PROVIDED that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just including such claim._ _3. The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach._ 9. On juxtaposition of the relief sought for and the provisions of the Specific Relief Act, the petitioner is seeking an indulgence of this Court for issuing directions to the respondent to renew the agreement as there was a breach of obligation. In order to prove the breach of obligation detailed evidence and the circumstances are required to be lead and this Court under Article 226 of the Constitution of India, cannot undertake such exercise. Even otherwise, it is a contractual employment; an employee cannot implore upon the employer through intervention of the court for **WP(C) NO. 21624 OF 2020** **10** renewal of the contract. At the best of having expected to be reemployed on renewal of the contract, can claim damages to be quantified in terms of money as provided under Section 40 of the Act, 1963 extracted above. I would be in agreement with the submission of the counsel representing the respondent that once there is an allegation of of victimization, as per para 10 of the judgment **Messrs Bharat Iron Works** ( supra) is extracted herein below: _A word of caution is necessary. Victimisation is a serious charge by an employee against an employer, and, therefore, it must be properly and adequately pleaded giving all particulars upon which the charge is based to enable the employer to fully meet them. The charge must not be vague or indefinite being as it is an amalgam of facts as well as inferences and attitudes. The fact that there is a union espousing the cause of the employees in legitimate trade union activity and an employee is a member or active office-bearer thereof, is, per se, no crucial instance. Collective bargaining being the order of the day in a democratic social welfare state, legitimate trade union activity which must shun all kinds of physical threats, coercion or violence, must march with a spirit of tolerance, understanding and grace in dealings on the part of the employer. Such activity can flow in healthy channel only on mutual cooperation between employer and employee and cannot be considered as irksome by the management in the best interest of the concern. Dialogues with representatives of a union help striking a delicate balance in adjustment and settlement of various contentious claims and issues._ 10. From the perusal of the same, there has to be a **WP(C) NO. 21624 OF 2020** **11** ## specific pleadings and that can be proved by way of detailed evidence. In _**Yoghesh Mahajan,**_ Supreme Court held as under: _6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner._ _7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner._ _8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in_ **WP(C) NO. 21624 OF 2020** **12** _circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walk-in interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so._ 11. In the instant case, the relief as sought for is identical to the one sought for in the referred matter. There is a categorical pleading in the counter statement that contract of 28 workers was also not renewed. The renewal of certain contract as reflected in Ext.P24 cannot be a ground of discrimination as it depends upon the exigency services to be pressed at the behest of the employer. No ground for interference is made out. Writ petition is accordingly dismissed. **Sd/-** sab **AMIT RAWAL JUDGE** **WP(C) NO. 21624 OF 2020** **13** ## **APPENDIX OF WP(C) 21624/2020** PETITIONER EXHIBITS - EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE DIRECTOR OF MOUNT AIR SKY ACADEMY PRIVATE LTD DATED 15-12-2015 - EXHIBIT P2 A TRUE COPY OF THE INTERNSHIP AGREEMENT EXECUTED BETWEEN THE PETITIONER AND THE MANAGER HR, DELHI INTERNATIONAL AIRPORT DATED 20-02-2015 - EXHIBIT P3 A TRUE COPY OF THE CONTRACT APPOINTMENT DOCUMENT DATED 17-04-2017 - EXHIBIT P4 A TRUE COPY OF THE AIRPORT ENTRY PERMIT(AEP) ISSUED TO THE PETITIONER - EXHIBIT P5 A TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED BY THE DISTRICT HOSPITAL KOLLAM - EXHIBIT P6 A TRUE COPY OF THE APPLICATIOND ATED 02-04-2020 EXHIBIT P7 A TRUE COPY OF THE COMPLAINT SUBMITTED ON 20-052020 TO THE AISTSL HRD BY THE PETITIONER. - EXHIBIT P8 A TRUE COPY OF THE DUTY ROSTER DATED 21-05-2020 EXHIBIT P9 A TRUE COPY OF THE PAY SLIP FOR JUNE, 2020 EXHIBIT P10 A TRUE COPY OF THE NOTICE NO. AIATSL/COK/1220 DATED 16-06-2016 EXTENDING THE CONTRACT OF OTHER EMPLOYEES. - EXHIBIT P11 A TRUE COPY OF THE RECENTLY RENEWED CONTACT AGREEMENT NO. AIASL/COK/SR.SA/70132 DATED 22-072020 - EXHIBIT P12 A TRUE COPY OF THE E-MAIL COMMUNICATION WITH SUBJECT CORRECTION OF NAME IN ESI SENT TO THE 4TH RESPONDENT **WP(C) NO. 21624 OF 2020** **14** EXHIBIT P13 A TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 9421/2019 DATED 27-05-2019 EXHIBIT P14 A TRUE COPY OF THE LETTER NO. AIATSL/HRDSR/IR/COK/001 DATED 12-06-2019 EXHIBIT P15 A TRUE COPY OF THE DISCHARGE SUMMARY BILL NO. 1920/021029 DATED 10-03-2020 EXHIBIT P16 A TRUE COPY OF THE LETTER ADDRESSED TO THE DISTRICT COLLECTOR, KOLLAM DATED 27-03-2020 EXHIBIT P17 A TRUE COPY OF THE REQUEST LETTER SENT TO THE 4TH RESPONDENT, NODAL OFFICER,D ATED 15-07-2020 EXHIBIT P18 A TRUE COPY OF THE REQUEST LETTER ADDRESSED TO HRDSR AIASL DATED 15-07-2020 EXHIBIT P19 A TRUE COPY OF THE REQUEST/REMINDER LETTER SENT TO THE GM-GH(CO-ORD) SR AND WR DATED 30-08-2020 EXHIBIT P20 A TRUE COPY OF THE REQUEST -REMINDER LETTER WITH COPY TO THE 4TH RESPONDENT DATED 27-09-2020 EXHIBIT P21 A TRUE COPY OF THE PETITIONER'S PAY-SLIP FOR THE MONTH OF MARCH, 2020 EXHIBIT P22 A TRUE COPY OF THE PAY-SLIP FOR THE MONTH OF APRIL, 2020 Exhibit P24 A TRUE COPY OF THE LIST OF NAMES OF THE JUNIOR CUSTOMER AGENT WHO ARE APPOINTED ALONG WITH THE PETITIONER AND WHOSE SERVICES ARE RENEWED. Exhibit P25 A TRUE COPY OF THE DUTY ROSTER WITH EFFECT FROM 11/08/2021. Exhibit P26 A TRUE COPY OF THE DUTY OF THE CUSTOMER AGENT WITH EFFECT FROM 22/09/2021 FOR GROUP A. Exhibit P27 A TRUE COPY OF THE AIA SLFTC AIR INDIA TEAM DUTY ROSTER WITH EFFECT FROM 22/09/2021 FOR GROUP B. **WP(C) NO. 21624 OF 2020** **15** Exhibit P28 A TRUE COPY OF THE ONE SUCH REPLY UNDER THE RTI ACT ISSUED TO ONE MR.P.S.MADHUKUMAR, A FORMER STAFF OF AIATSL DATED 19/07/2013. Exhibit P29 A TRUE COPY OF ANOTHER REPLY FOR THE RTI QUERY ISSUED BY THE AIATSL COMPANY DATED 09/10/2013 TO MR.HARIDAS.J. Exhibit P30 A TRUE COPY OF THE REPLY GIVEN UNDER THE RTI ACT TO ONE MR.NARAYANKUTTY.PG., A GROUND HANDING STAFF, DATED 05/08/2015 BY THE MINISTRY OF LABOUR AND EMPLOYMENT, THE GOVERNMENT OF INDIA.