The Bombay High Court, in a judgment delivered by a division bench comprising Justices Shree Chandrashekhar and Manjusha A. Deshpande, has ruled that writ petitions filed against Air India Limited (AIL) when it was a government entity are no longer maintainable following its privatization. The court held that as AIL has ceased to be a “State” under Article 12 of the Constitution and does not discharge any public function, it is not amenable to the court’s writ jurisdiction under Article 226.
Background of the Cases
The court was hearing three separate writ petitions filed by employees of Air India between 2001 and 2002, raising distinct service-related grievances.
- Writ Petition No. 1876 of 2001 (M. Yogeshwar Raj vs. Air India Ltd.): The petitioner, who joined AIL in 1976 on a post reserved for a scheduled tribe, challenged his dismissal from service in June 2000. The dismissal followed a charge-sheet alleging that a caste certificate he submitted in 1998 was found to be bogus upon verification. The petitioner contended that the disciplinary proceedings were an act of victimization and that a subsequent certificate from the Collector of Hyderabad confirming his “KOLAM” scheduled tribe status was ignored. An internal Enquiry Committee had found him not guilty, but the disciplinary authority disagreed and imposed the punishment of dismissal.
- Writ Petition No. 1333 of 2002 (V. Pichumani & Ors. vs. Air India Ltd. & Anr.): The petitioners, who retired from AIL before April 1, 1994, challenged the cut-off date for a pension scheme introduced by the company. They argued that making the scheme applicable only to employees who retired after this date created an “artificial discrimination” between two sets of employees belonging to the same group. AIL countered that it was a self-contributory pension scheme funded entirely by employees, with the company contributing a maximum of Rs. 100 per year for all employees combined, and therefore, the company could not be accused of discrimination.
- Writ Petition No. 809 of 2002 (Mrs. Shobha Girish Bagwe vs. Air India Ltd. & Anr.): The petitioner challenged the retrospective promotion granted to another employee, Mr. A.P. Tambe (Respondent No. 2), from 1983. She alleged that this promotion was contrary to the company’s rules on reservation and seniority, illegally superseding seven other officers, including herself. The company defended the decision, stating it was done to rectify a past error where Mr. Tambe was incorrectly placed in the seniority list, which had ousted him from the zone of consideration for promotion in 1983.
During the pendency of these petitions, on January 27, 2022, the Government of India disinvested its 100% equity shares in Air India Limited, transferring ownership to Talace India Private Limited. This fundamental change in the employer’s status became the central issue before the court.
Arguments of the Parties
- Petitioners’ Contentions: Mr. Ashok D. Shetty, counsel for the petitioners, argued that the petitions were maintainable on the date they were filed, and the rights of the petitioners had crystallized at that time. He contended that the subsequent privatization should not defeat their claims. The primary legal argument was based on the five-judge Constitution Bench decision of the Supreme Court in Kaushal Kishor vs. State of Uttar Pradesh, which held that a fundamental right under Articles 19 or 21 can be enforced even against private persons. The petitioners argued that the Supreme Court’s subsequent decision in R.S. Madireddy and another vs. Union of India and others, which affirmed a Bombay High Court ruling that writs against AIL were not maintainable post-privatization, did not fully consider the ratio of Kaushal Kishor and should be treated as a decision passed sub silentio.
- Respondent’s (Air India) Contentions: Mr. Aditya Mehta, representing AIL, argued that following its disinvestment, the company ceased to be a “State” or its instrumentality under Article 12 of the Constitution. He submitted that AIL, as a private entity, does not perform any public function, and therefore, a writ cannot be issued against it. The respondent relied heavily on the Bombay High Court’s judgment in R.S. Kotyswara Rao Madireddy and another vs. Union of India and others, which was subsequently upheld by the Supreme Court. It was argued that this decision squarely covered the issue at hand and was binding on the court.
Court’s Analysis and Decision
The High Court began its analysis by acknowledging the doctrine of binding precedent, or stare decisis, emphasizing that the law declared by the Supreme Court is binding on all courts and that a decision by a larger bench is binding on a smaller bench.
The bench observed that the issue of maintainability of writs against a privatized AIL was no longer a novel question. It referred to its own earlier decision in R.S. Kotyswara Rao Madireddy, where it had held that “the jurisdiction to issue a writ to the respondent company no longer exists due to changed circumstances in the intervening period as a result of the privatization of the Air India Limited.”
The court noted that this very decision was challenged and subsequently affirmed by the Supreme Court in R.S. Madireddy. While acknowledging the petitioners’ argument regarding the Kaushal Kishor judgment, the bench pointed out that the Supreme Court in R.S. Madireddy was aware of the Kaushal Kishor decision but still concluded that AIL, after its disinvestment, “could not have been subjected to writ jurisdiction under Article 226 of the Constitution of India.”
Applying the “functionality test” laid down by the Supreme Court in other cases, the bench concluded that the privatized AIL “is discharging any public function. Its status is that of a private company, established with sole commercial object of making profit.”
Bound by judicial discipline and the direct precedent set by the Supreme Court in a case involving the same respondent, the court held that it could not take a different view.
In its final order, the court stated, “we hold that all the three writ petitions, although maintainable on the dates on which they were instituted, have ceased to be maintainable, due to privatization of AIL, which is not discharging any public duty.”
The court dismissed all three petitions but granted liberty to the petitioners to avail alternative remedies in accordance with the law. It further directed that should the petitioners pursue such remedies, “the time consumed in pursuing the present writ petition, shall be excluded for the purpose of limitation, if any question of limitation arises.”
