S.C Pratap, J.:— This petition questions the legality and validity of the action taken by the respondent Air India reducing with effect from Flight Al-115 of 4th Jaunary 1981 the cabin craw complement on its B-747 flights from its pre-existing total of nineteen members to eighteen members, vide circular dated 3rd January 1981 (exhibit D to the petition).
2. Hearing in extense the rival submissions of the respective Counsel and going through the petition, reply and rejoinders as also the reported and unreported judgments cited before me, I am of the view that this is not a case warranting interference under Article 226 of the Constitution. Indeed, grant of any relief herein is beset with many difficulties.
3. At the outset end as rightly urged on behalf of the respondent-Air India, the question of deployment and or reduction of cabin crew complement as also the matter of standard force and or pattern of crew scheduling are matters essentially and basically partaking the character of management functions. It is not a matter of Industrial adjudication. Though effort was made to challenge this position, the same by now stands beyond the pale of controversy not only by virtue of awards and settlements under the Industrial Disputes Act (hereinafter the Act) but also by binding decisions of this Court Mr. Justic Khosla's Award dated 10th February 1966 held that.
“………the final determination of the standard force must rest with the management.”
4. Mr. Justice Mahesh Chandra's subsequent Award dated 25th February 1972 published in the Central Government Gazette on 25th March 1972—extract whereof appears at exhibit A to the petition—specifically reiterates the afore—said position. Way, even the settlement dated 6th October 1972 which took place during the pendency in the Supreme Court of two special leave petitions (one by the Union and the other by the management)—challenging Mr. Justice Mahash Chandra's Award—extract whereof is annexed at exhibit B to the petition—also categorically states:
“………the final decision will be taken by the Chairman and the Managing Director and their decision on Crew Complement or any modification in the equipment shall be final and binding on the Union”.
5. This position stands further reiterated by judgment dated 4th July 1974 by Mr. Justice Rege in Miscellaneous. Petition No. 281 of 1974, in which judgment Rege J. held as follows:—
“…………It cannot be disputed that the operation of flights in different sectors on a particular pattern and the consequential scheduling of the crew is purely a managerial function which the respondents are enjoined to perform in discharge of several duties and functions, imposed upon them under the Air Corporations Act viz. to provide safe, efficient, adequate, economical and property co-ordinated air transport services.”
6. And still further:
“…………As I have pointed out above, operation of flight on a particular pattern is managerial function and the petitioners cannot acquire a right therein by usage or otherwise.”
7. The decision of Rege J. was confirmed by a Division Bench (Malvankar and Sawant JJ.) of this Court which, by its judgment dated 26th, 27th and 30th September and 1st October 1974, dismissed Appeal No. 157 of 1974 against the said decision. The question is thus no longer res integra. It stands concluded. Reopening thereof is not permissible in the instant proceedings.
8. It is, however, contended on behalf of the petitioners that reduction of the cabin crew complement amounts to change in the conditions of service within the meaning of section 24 read with the Fourth Schedule of the Act and, therefore, cannot be effected without notice of change. This contention has no force because under section ??? of the Act, it is open to the appropriate Government to exempt an industrial establishment from the provisions of section 9a and in this case, the Government has in fact, by notification dated 29th August 1960, exempted Air India from the said provisions. Section 9A, therefore, has no application. That apart, and even assuming that section 9A can be invoked, even so, the aforesaid contention must fall because under proviso (b) to that very section, no notice of change is necessary where, the workmen likely to be affected thereby are persons to whom rules/regulations that may be notified in that behalf by the appropriate Government apply. In the present case, the Government has notified Air India employees' service regulations which apply to the workmen herein. In either view of the matter, therefore, there is no necessity of any notice of change under section 9A of the Act. Moreover, contentions similar hereto were raised by this very Association-petitioner No. 1 herein before Rege J. deciding Miscellaneous Petition No. 281 of 1974 as also before Malvankar and Sawant JJ. in appeal, being Appeal No. 157 of 1974 therefrom. Both the Courts rejected the said contentions. In the circumstances, it is too late in the day to seek to re-open and re-agitate the same contentions again.
9. The learned Counsel for the respondent urged that the basic test under section 9A being that the workmen are likely to be affected and that not being the case here, the contention based on section 9A must, on this ground also, fail. In support thereof, reliance was placed on a ruling of the Supreme Court in 1(Hindustan Lever Ltd. v. R.M Ray), (1973) 4 SCC 141 : A.I.R 1973 S.C 1156 at p. 1160 (paragraph 8) inter alia as follows:—
“…………it must be remembered that the 4th Schedule (to the Act) relates to conditions of service for change of which notice is to be given and section 9A requires the employer to give notice under that section to the workman likely to be affected by such change. The word “affected” in the circumstances could only refer to the workers being adversely affected………”
10. It is not, however, necessary to go into and consider this submission because I am satisfied that section 9A has no application to the instant case firstly because of the exemption notification already referred to and secondly because of the Air India employees' service regulations covered by proviso (b) to the said section.
11. Contention next urged on behalf of the petitioners is to the effect that the agreement of 10th February 1978 (exhibit C to the petition) precludes the management from reducing the cabin crew complement. How, it cannot be gainsaid that this writing of 10th February 1978 under heading “Record Note” is not a “settlement” as understood by section 2(p) of the Act which defines the same read with Rule 62 of the rules under the Act. Of course, lacunae in that behalf wilt not make the record note an agreement illegal or invalid. The said note must, however, be construed in the proper context and background and given its appropriate signification accordingly.
12. Mr. Justice Khosla's Award, while declaring that the final determination of the aforesaid force must rest with the management, has, thereafter, recorded the management's willingness to “consult”. This position stands re-affirmed by Mr. Justice Mahesh Chandra's Award. The settlement of 6th October 1972 (pending the special leave petitions in the Supreme Court) permitted a “recommendation” in the aforesaid behalf but emphasised and reiterated that the “final decision” would be taken by the Chairman and the Managing Director whose decision on crew complement “shall be final and bindings on the union.” The crux of the matter, therefore, is willingness to consult and consultation. It must, in this context, be held in all fairness that the record note Exhibit C was the record of this willingnese to consult and actual consultation. That the said consultation resulted in the said record note is, indeed, a fortuitous circumstance. Even in the absence of the said note, the management would have been perfectly within its rights to take its final decision in the matter of crew complement which decision would have been binding on the union and the workmen. In these circumstances, the said note cannot be elevated to any higher legal status. It embodies the final result of the process of consultation initiated at that time. At the present time also, the management did consult the Union. In fact and despite urgency, as many as nine meetings were held to discuss this and other points. Ultimately, the union not having effectively responded and having indicated an unfortunate attitude of prolongation and delay resulting in continued (purported on this Item itself to be Rs. 70,00,000/- per annum) losses to the corporation, the management had to take an expeditious decision in the matter.
13. It was next urged that this decision was bad because reduction in the cabin crew complement was agreed to be made effective conditional upon and concurrent with change in the galley equipment, alteration in meal service procedures and meal schedules, introduction of trolley service, abolition of service on short sectors, payment of productivity allowance etc. vide paragraph 5 page 7 of the rejoinder. This contention also is without any merit. It is significant to note that such a contention carrying importance of its own finds no place at all in the petition. It is reflected for the first time in the rejoinder. It is clearly an afterthought. This is further seen from the fact that Exhibit D to the petition itself, and correctness whereof is nowhere challenged in the petition, records as follows:—
“In the late evening of the said day (2-1-1981), they met the Dy. H.D who impressed on them the urgent need to introduce 747 flights with uppear-deck configuration as every day's delay meant a considerable additional expenditure and loss of revenue to the Corporation. After some discussion despite being assured that discussions could be continued after the introduction of the reduced crew complement, the representatives of the Association stated that they would have to first clarify certain points in the draft understanding and then discuss the same with their Committee members, after which, they would positively contact the Director of Personnel & Industrial Relations on Saturday, 3rd instant and finalise the under-standing so that the reduced complement of cabin craw could be introduced with effect from the midnight of January 3, 1981.”
14. Now, there could have been no question of the reduced complement of cabin crew being introduced with effect from the midnight of 3rd January 1981 and if that was to be decided conditionally upon and concurrently with several other changes and alterations because the alleged other changes and alterations were in their very nature not possible to be introduced and effected almost overnight. The petitioners are now obviously trying to overreach this situation by introducing altogether new factors for the first time in the rejoinder and raising, on that basis, a new contention of fact. The same is without substance and is rejected.
15. The contention of increase in workload has also no merit therein. It is pertinent to note that from the cabin crew complement of nineteen members, only one is reduced and that too not of any air hostess who is perhaps the most important from workload point of view but of only a flight purser. Again, this reduction also is presently only qua Zone D which has only eighty-six seats as compared to one hundred and twelve seats in Zone C end one hundred and twenty-three seats in Zone E. This reduction in regard to cabin crew complement can have no worthwhile effect on safety aspects because it is the operating crew end not the cabin crew which has a direct nexus with safety. Still further, as averred in the affidavit in reply on behalf of the respondents:
“The alleged complaint of increase in workload is really not a correct one. As shown in the statement annexed hereto and marked Exhibit No. 2 as against a cabin crow complement of 18 (against which complaint is now made for 747 aircraft), 11 other well-known international airlines have cabin crew of lesser numbers. In fact in British Airways where the 1st class seats ere substantially more than the present 1st class seating of 747 of Air India and with an upper deck seating the cabin crew complement is only 15. In fact, in most airlines other than Air-India there is a reduction of the crew complement when the actual number of passengers is loss than a certain number this does not operate so far in Air-India.
Air-India operates and has been operating all its flights including what are known as high density routes and low density toutes. Even on those sectors and flights where the passenger load factor is less than 50 per cent the Corporation, unlike other international airlines, carries the full complement of cabin crew without any impairment of their other conditions of service or allowances. The average passenger load factor on 747 aircraft of the respondent is 60 per cent.
In addition, although the agreement with the Association provides for 50 flying hours of work per month the cabin crew actually fly on an average for 35 hours per month.”
16. Contention aforesaid on workload is also, therefore, without substance and is Rejected.
17. Reference was also made to two rulings of the Supreme Court viz. (a) 2(L.I.C of India v. R.J Bahadur), (1981) 1 SCC 315 : A.I.R 1980 S.C 2181 and particularly paragraphs 22, 23 and 30 thereof and (b) 3(Om Prakash v. Union of India,) (1981) 1 SCC 449 : A.I.R 1981 S.C 212. The observations in the said cases do not, however, have much relevance to the question arising in the present petition and do not help the petitioners in resolving the same in their favour. It would not be proper to rely on observations divorced from the context in which they are made and seek to apply them to a set of facts and circumstances altogether different as in the present case.
18. It is also contended that the impugned decision is arbitrary. Reliance in support thereof was placed on 4(Ramana v. International Airport Authority of India), (1979) 3 SCC 489 : A.I.R 1979 S.C 1628, with particular reference to some of the observations extracted below;
“Every section of the executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. (End of paragraph 10).
The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual. (End of Paragraph 11).
How, obviously whore a corporation is an Instrumentality or agency of Government, it would, in the exercise of its power or discretion, be subject to the same constitutional or public law limitations as Government. The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet wilt, but its action must be in conformity with some principle which meets the test of reason and relevance. (Paragraph 20).
This rule also flews directly from the doctrine of equality embodied in Art. 14. It is now well settled as a result of the decisions of this Court in 5(E.P Royappa v. State of Tamil Nadu), (1974) 2 S.C.R 348 : ((1974) 4 SCC 3 : A.I.R 1974 S.C 555) and 6(Maneka Gandhi v. Union of india), (1978) 1 SCC 248 : (A.I.R 1978 S.C 597) that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory; it must not be guided by any extraneous or irrelevant consideration, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must charactariso every State action, whether it be under authority of law or in exercise of executive power without making of law; The Stats cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or more which is rational and non-discriminatory.” (Paragraph 21).
19. The learned Counsel for the respondent did not, as indeed he could not, dispute the aforesaid position. Indeed, the position envisaged by the aforesaid observations can not be disputed either by the respondent or even by this Court. The observations extracted aforesaid are binding on all. Question, in this case, however, still survives as to whether the action of the respondent in the instant case can be termed as arbitrary and unfair or is the action rational and not discriminatory? Is the action guided by any extraneous or irrelevant considerations or is it governed by reasonableness? Facts and-circumstances in the present casa clearly indicate just the reverse of arbitrariness. Action hers is fair and reasonable. It is just, it is also in the proper exorcise of management function. It is taken in the best interest of effecting savings. The estimated expenditure by way of allowances, hotel accommodation etc. over every one member of the cabin crew on overseas flight is approximately Rs. 1,00,000/- per year. Reduction of one member would result in a saving of approximately Rs. 70,00,000/- per year. There is no good reason to reject this judgment of the respondent-Corporation. Consequently, if the respondent can legitimately effect this saving, its action in that behalf can, with no justification, be called arbitrary. On the contrary, it is not only entitled but indeed bound to effect such saving having regard to the provisions of sections 7 and 9 of the Air Corporations Ad-enjoining upon the respondent to carry out its functions and duties on economical lines and business principles implicit wherein would be the concept inter alia of financial viability. In the face of the mounting costs of petroleum products and increasing deficits, every legitimate stop effecting economy and savings would be not arbitrary, not unjust or irrational but reasonable, just end proper.
20. It may not be out of place to note that this very Association-petitioner No. 1 hereto had offered the same spirit of delay and non-co-operation to the respondent when, in the year 1974, the respondent sought to effect a change in the flight pattern, i.e from slip system or slip pattern to temporary base pattern which was yet another aspect relating to cabin crew and management function. Malvankar and Sawant JJ. hearing Appeal No. 157 of 1974 have, in their judgment, detailed the correspondence in that behalf observing:
“………the appellants were not prepared to consider the proposal made by the respondents unless certain other outstanding issues like equipment and galley modification etc. alleged to have been agreed to by the Management were implemented.”
And further:
“It would thus be seen that since the true definite proposals were made by the respondents to the appellants on 21st February 1974 till 31st March 1974 for a period of more than one month, in spite of the repeated requests of the respondents, the appellants did not make any concrete proposals regarding the introduction of the slip system.”
21. History appeals to be repeating itself because same and similar indeed has been the attitude of the petitioners herein in the present case as was their attitude in the year 1974 in the aforesaid case. One only hopes that industrial peace which is an urgent need of the times is not marred by agitations such as are reflected in the present petition.
22. In the result, this petition fails and the same is dismissed.
23. Petition fails.
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