BINOY JACOB v. AIR INDIA SATS AIRPORT SERVICES LTD

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940** **WP(C).No. 10351 of 2018** **-------------------** **PETITIONER -----------** **BINOY JACOB VICE PRESIDENT (GROUND HANDLING), M/S.AIR INDIA SATS AIRPORT SERVICES LTD, OFFICE AT 1ST FLOOR, PANACHUMOOTIL SQUARE, ENCHAKKAL JUNCTION, VALLAKADAVU P.O., THIRUVANANTHAPURAM 695 008.** **BY ADVS.SRI.ELVIN PETER P.J.** **SRI.K.R.GANESH** **RESPONDENTS:** **------------** ## **1. M/S. AIR INDIA SATS AIRPORT SERVICES LTD.** **B-1101 & 1102, LOTUS CORPORATE PARK, OFF. WESTERN EXPRESS HIGHWAY, GOREGAON (EAST), MUMBAI 400 063 REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.** **2. MR. MIKE CHEW, CHIEF EXECUTIVE OFFICER, M/S.AIR INDIA SATS AIRPORT SERVICES LTD, B-1101 & 1102, LOTUS CORPORATE PARK, OFF. WESTERN EXPRESS HIGHWAY, GOREGAON (EAST), MUMBAI 400 063.** ## **3. THE HEAD** **HUMAN RESOURCE AND ADMINISTRATION, M/S.AIR INDIA SATS AIRPORT SERVICES LTD, B-1101 & 1102, LOTUS CORPORATE PARK, OFF. WESTERN EXPRESS HIGHWAY, GOREGAON (EAST), MUMBAI 400 063.** **WP(C).No. 10351 of 2018 (T) ----------------------------** **4. M/S.AIR INDIA SATS AIRPORT SERVICES LTD OFFICE AT 1ST FLOOR, PANACHUMOOTIL SQUARE, ENCHAKKAL JUNCTION, VALLAKADAVU P.O., THIRUVANANTHAPURAM 695 008.** **5. THE CHAIRMAN CUM MANAGING DIRECTOR M/S.AIR INDIA, OFFICE AT AIRLINES HOUSE, 113, GURUDWARA RAKAGUNJ ROAD, NEW DELHI 110 001.** **6. MR.RAJ MAHMIA VICE PRESIDENT, M/S.AIR INDIA SATS AIRPORT SERVICE LTD, GATE NO.2, MAINTENANCE CENTRE, RGIA, SHAMSHABAD, RANGA REDDY DISTRICT - 501 218 HYDERABAD, TELANGANA STATE.** **R1,R3 & R4 BY ADV. SRI.K.JAJU BABU SENIOR ADVOCATE SRI.M.P.SHAMEEM AHAMED SRI.CYRIAC TOM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** **28.04.18** **WP(C).No. 10351 of 2018 (T) ----------------------------** ## **APPENDIX** ## **-----------** ## **PETITIONER(S)' EXHIBITS -----------------------** - **EXHIBIT P1 TRUE COPY OF THE LETTER OF ENGAGEMENT DT. 6/10/2015 ISSUED TO THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF NOTICE DT. 16/11/2017 ISSUED FROM NEDUMBASSERY POLICE STATION EXHIBIT P3 TRUE COPY OF TRANSFER ORDER DT. 22/3/2018 EXHIBIT P4 TRUE COPY OF ORDER DT.16.3.2009 ISSUED BY THE GOVERNMENT OF INDIA.** - **EXHIBIT P5 TRUE COPY OF JV AGREEMENT DT. 16.4.2010 ENTERED INTO BETWEEN AIR INDIA AND SATS** - **EXHIBIT P6 TRUE COPY OF LETTER DT. 9.11.2017 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF RELEVANT PAGES OF ENQUIRY REPORT.** - **EXHIBIT P8 TRUE COPY OF COMPLAINT DATED 27.3.2018 FILED BY THE PETITIONER BEFORE THE DISTRICT POLICE CHIEF. EXHIBIT P9 TRUE COPY OF THE ACKNOWLEDGMENT DT. 29.3.2018 ISSUED FROM THE OFFICE OF DISTRICT POLICE CHIEF.** ## **RESPONDENTS EXHIBITS** **------------------** **EXT.R1 A TRUE PHOTOCOPY OF THE BOARD RESOLUTION DATED 23.02.2017 OF THE 1ST RESPONDENT DATED 23.02.2017 OF THE 1ST RESPONDENT AUTHORISING MR VIRENDRA GUPTA** **EXT.R2 CERTIFICATE OF INCORPORATION DATED 20 APRIL 2010 ISSUED BY THE MINISTRY OF CORPORATE AFFAIRS.** **EXT.R3 A TRUE PHOTOCOPY OF THE POLICE FINAL REPORT DATED 19.11.2017 IN CRIME NO. 422/2017 OF NEDUMBASSERY POLICE STATION** ## **WP(C).No. 10351 of 2018 (T)** ## **----------------------------** - **EXT.R3A ENGLISH TRANSLATION OF THE POLICE FINAL REPORT DATED 19.11.2017 IN CRIME NO. 422/2017 OF NEDUMBASSERY POLICE STATION** - **EXT.R4 TRUE COPY OF EMAILS DATED 17.11.2017 BETWEEN THE PETITIONER AND THE 2ND RESPONDENT** - **EXT.R5 COPY OF PETITIONER'S EMAIL DATED 21.03.2018 ADDRESSED TO 2ND RESPONDENT** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** **28.04.18** ## **P.V.ASHA, J.** ## **W.P.(C) No.10351 of 2018** ## **Dated this the 12[th] day of April, 2018** ## **JUDGMENT** The petitioner, who is the Vice President of the 1[st] respondent company, has filed this writ petition challenging Ext.P3 order by which he is transferred from Thiruvananthapuram and posted at Mumbai and the 6[th] respondent, who is working at Hyderabad, is transferred and posted in his place. 2. Petitioner alleges that the transfer is punitive and is vitiated by malafides and oblique motives. It is stated that there is no ground handling work in Mumbai Airport. The petitioner was appointed as per Ext.P1 letter of engagement for a period of 3 years w.e.f 19.6.2015. As per clause 6 of Ext.P1 letter the initial posting of the petitioner was to be at Thiruvananthapuram; he could be transferred to any other group company/affiliate/sister concern/subsidiary of the company anywhere in India and his base location would be in the absolute discretion of the company; the refusal to carry out such instructions shall constitute misconduct for which his services will be terminated and deployment of services will be at the sole discretion of the Management and subject to the exigencies of the company. The petitioner’s tenure of appointment is due to expire in June, 2018. W.P.(C) No.10351 of 2018 **==> picture [14 x 9] intentionally omitted <==** Petitioner submits that there is no exigency for transfering him at this stage and for posting him at Mumbai where there is no ground handling work. According to him, there was a crime registered against one Mr.Jeralad Lim, from Singapore who is an Assistant Vice President in first respondent Company; the Chief Executive Officer of the 1[st] respondent company is also a Singapore National; the order of transfer is issued in order to victimize the petitioner who helped the said Jerald. 3. Petitioner has explained the incidents leading to registration of crime and the subsequent proceedings, in his version, involving Sri.Jerald Lim and a driver, in which petitioner had given a statement. On the other hand the version of the respondents is that the crime case was cooked up by the driver, in collusion with the petitioner. Both parties have explained the incident accusing one another. 4. Be that as it may, before going into those issues, it is necessary to consider the main objection raised by the respondents as to the maintainability of the writ petition on the ground that the 1[st] respondent is a private company. Therefore this court need go into the other contentions, only if it is found that a writ is maintainable against the 1[st] respondent company. 5. In this writ petition the petitioner has stated that the 1[st] respondent company is a joint venture company formed by M/s.Air W.P.(C) No.10351 of 2018 **==> picture [14 x 9] intentionally omitted <==** India a fully owned Government company holding 50% shares with M/s.SATS Ltd., a company holding 50% shares and it is formed for the purpose of rendering service in the field of Airlines, its passenger movement, AIR cargo movement and also other services in connection with the Airports effectively. 6. Along with the reply affidavit, the petitioner has produced Ext.P4 letter issued by the Government of India, Ministry of Civil Aviation, by which the under Secretary to the Government of India informed that proposal for setting up of a joint venture company with SATS for ground and cargo handling activities at Indian Airports was approved by the cabinet in its meeting held on 23.2.2009, subject to the conditions stated therein regarding ensuring of transition of employees, independent evaluation of assets and equipments etc; the company shall be incorporated under the Companies Act, 1956 and the Certificate of Commencement of Business shall be obtained by 15.4.2009. The letter was issued with reference to the setting up of a joint venture company for Air India Ltd. for ground and cargo activities at Indian Airports. 7. According to the counter affidavit of the respondents, the 1[st] respondent company is purely a private company against which a writ petition will not lie under Article 226 of the Constitution of India. W.P.(C) No.10351 of 2018 **==> picture [14 x 9] intentionally omitted <==** Relying on various judgments of the apex court, it is stated that the 1[st] respondent Company is incorporated under the provisions of the Companies Act, 1956 as Private Limited Company under the name and style of Air India SATS Airports Services Private Ltd. The respondents have stated that the 1[st] respondent has been impleaded as Air India SATS Airport Services Limited, concealing the word 'Private' whereas the actual name of the Company is Air India SATS Airports Services Private Ltd. It is therefore stated that writ petition will not lie before this court. Respondents have raised another contention that the letter of engagement itself provides that any dispute arising with respect to the engagement shall be resolved in the Courts at Mumbai. It is stated that the petitioner has filed the writ petition suppressing the factual circumstances arising therein. The contention of the respondents is that the writ petition is not maintainable as the 1[st] respondent does not come within the definition of other authority. 8. The petitioner filed a reply statement stating that the 1[st] respondent company is having 50% shares held by Air India and 50% by SATS and is functioning in accordance with the conditions stipulated in Ext.P4. Therefore 1[st] respondent is an authority coming under Article 12 of the Constitution of India. It is also stated that Central Government has deep and pervasive control over the affairs of the W.P.(C) No.10351 of 2018 **==> picture [14 x 9] intentionally omitted <==** joint-venture company and the 1[st] respondent company was constituted and registered on the basis of the conditions imposed by the Central Government and therefore this court is very well within its jurisdiction under Article 226 against the 1[st] respondent company. 9. On the other hand the learned Senior Counsel for the respondents argued that the 1[st] respondent company is a private company over which Government does not have any control. It is pointed out that the Air India Ltd. and SATS Ltd. are holding 50% equity shares of the company. Even assuming that it is a company coming under the purview of State, it was argued that this court will not be justified in interfering with the order of transfer as it is settled law that transfers can be interfered with, only if it is contrary to rules or issued without authority. But it is purely on the basis of contract. The learned Senior Counsel for the respondents argued that the remedy of the petitioner lies elsewhere. 10. Therefore maintainability of the writ petition is the primary question to be decided i.e whether the 1[st] respondent is an authority under the purview of Article 12 and whether this court would be justified in invoking its jurisdiction under Article 226 of the of the Constitution of India. As rightly pointed out by the learned Senior Counsel appearing for the respondents relying on the judgments in W.P.(C) No.10351 of 2018 :6: _**Pradeep Kumar Biswas vs. Indian Institute of Chemical Biology and others : (2002) 5 SCC 111, Federal Bank Ltd. Vs. Sagar Thomas and others : 2003 (10) SCC 733**_ , _**K.K.Saksena vs.**_ ## _**International Commission on Irrigation and Drainage and**_ _**others : 2015 (4) SCC 670**_ , mere regulatory control is not sufficient for an establishment to come within the purview of State under Article 12 of the Constitution of India. 11. In _**Pradeep Kumar Biswas'**_ case (supra) the apex court after analysing almost all the judgments hitherto rendered on the point, held that CSIR is not an authority under Article 12 of the Constitution as it was found that it was not financially, functionally and administratively dominated by, or under the pervasive control of the Government and that mere regulatory control whether statutory or otherwise is not sufficient. 12. In _**Federal Bank's**_ case (supra) the apex court specified 8 categories of institutions against which a writ is maintainable under Article 226 of the Constitution of India as follows: > _“18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under_ W.P.(C) No.10351 of 2018 **==> picture [14 x 9] intentionally omitted <==** _any statute, to compel it to perform such a statutory function.”_ 13. In _**K.K. Saksena's**_ case (supra), the apex court after discussing the judgments including _**Federal Bank's**_ case, held that though Article 226 can be invoked against a private body, which discharges public duty writ can be issued only when some public element is involved or to enforce the public duty. It was held that writ will lie only if the action challenged is in the domain of public law. In paragraph 49 of the judgment read as follows: _49. There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In Praga Tools Corpn. v. C.A. Imanual, as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the action was essentially of a private character. That was a case where the employee concerned was seeking reinstatement to an office._ ## 14. In _**Saksena's**_ case and in _**Praga Tools Corpn's**_ case the termination of service was under challenge and the employees sought re-instatement. The apex court held that there was no public element in it and the action under challenge was essentially of a private character. From the pleadings on record in this case it is seen that the 1[st] respondent is a company incorporated as a Private Ltd company. Mere fact that the Air India is having 50% shares or that the cabinet had W.P.(C) No.10351 of 2018 **==> picture [14 x 9] intentionally omitted <==** approved the proposal for setting up of a joint venture company with SATS fixing certain conditions do not by itself indicate any pervasive control of Governemnt over the 1[st] respondent company. It is not even governed by any statute. Even assuming that it is performing any public duty, what is under challenge in this writ petition is transfer. Order of transfer cannot be said to have any public element. Therefore without going into the merits of other contentions, I find that the writ petition will not lie against the 1[st] respondent under Article 226 of the Constitution of India. Hence I dismiss the writ petition on that ground. Sd/- **P.V.ASHA JUDGE** rkc