Air India Privatisation: Bombay HC Says Writ Petitions Against Airline No Longer Maintainable

"The writ petitions, although maintainable on the dates they were instituted, have ceased to be maintainable by reason of privatization of AIL which takes it beyond our jurisdiction to issue a writ or order or direction to it", the court held.

Chief Justice Dipankar Datta and Justice M. S. Karnik passed the judgment on September 20 in a batch of writ petitions filed by now retired AIL employees against AIL and the Union of India. The dispute in the petitions related to wages or promotion of the employees. All petitions alleged violation of Articles 14, 16, and 21 of the Constitution.

The question of maintainability didn't arise at the time of institution of the suits. However, AIL was privatized during the pendency of the matter raising to objection to its maintainability under Article 226 of the Constitution.

"With its privatization, AIL has ceased to be an Article 12 authority. There is and can be no doubt that no writ or order or direction can be issued on these writ petitions against AIL for an alleged breach of a Fundamental Right," said the court.

The question before the court was –

"Whether it is an invariable rule that a writ petition has to be decided on the basis of the facts as they were on the date of its institution or whether intervening/subsequent event(s), having a fundamental impact on exercise of jurisdiction for granting relief by this Court, may render the writ petition non-maintainable?"

Senior Advocate Sanjay Singhvi for the petitioners urged that the question of maintainability of the writ petitions must be decided with reference to facts as they existed on the date the case was filed. In the interest of justice and equity, the subsequent privatization of AIL should not render the writ petitions non-maintainable, it was contended

"The present writ petitions are maintainable since they pertain to the discharge of "public duties" by the respondents," argued Singhvi.

The petitioners also argued that the nature of their employment always. Singhvi also alleged collusion between AIL and Centre to defeat the rights of the petitioners as they were being kept in the dark about who has taken over the liabilities arising out of the present writ petitions.

Senior Advocate Darius Khambatta for AIL said the question of jurisdiction under Article 226 must be decided considering events subsequent to the filing of a writ petition up to the stage of issuance of a writ. He cited a number of judgments in which courts accepted that a writ petition is no longer maintainable if the government company is privatised during the pendency of the case. 

The court in the ruling said that the that the issue of maintainability of the writ petitions owing to the privatization of AIL during the pendency of the case, is no longer res integra. It relied on various High Court judgments which have been upheld by the Apex Court and said, "with to the privatization of AIL our jurisdiction to issue a writ to AIL, particularly in its role as an employer, does not subsist".

The change in the status of the 'authority' against whom the writ was initially claimed plays a significant role in determining the issue of maintainability," said the court. 

The court also noted that howsoever wide and expansive the jurisdiction might be "to reach injustice wherever found", such jurisdiction has to be exercised within well-defined self-imposed restrictions and limitations of jurisdiction as carved out by judicial pronouncements.

"We say that whether or not AIL was discharging public functions or the petitioners were in public employment need not be examined in these proceedings because, as the matter presently stands, no writ can be issued by us to AIL," said the court further.

The bench also noted that the long years of pendency of the case was bound to have shattered the hopes and aspirations of the retired employees. "However, at the same time, such inability to decide these writ petitions prior to privatization of AIL was due to reasons absolutely beyond the control of this Court, as admitted by Mr. Singhvi even. Notwithstanding the same, this Court, through its Chief Justice, regrets its inability to so decide prior to privatization of AIL," it said.

However, while disposing of the petitions, the court said time of the pendency of the case be not counted for calculating limitation period in case the petitioners wish to pursue any other remedy in accordance with the law.

Case no. – WRIT PETITION NO. 1770 OF 2011 and connected matters

Case title – R. S. Madireddy and Anr. v. Union of India and Ors. with connected cases

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