Air India ceased to be a State after being taken over by private company, cannot be subjected to writ jurisdiction: Apex Court upholds Bombay HC order dismissing petitions of former cabin crew members
Justices B.R. Gavai & Sandeep Mehta [16-05-2024]

Read Order: MR. R.S. MADIREDDY AND ANR. ETC v. UNION OF INDIA & ORS. ETC  [SC- CIVIL APPEAL NO (S). 6473-6476 OF 2024]

Tulip Kanth 

New Delhi, May 20, 2024: The Supreme Court has asserted that no writ petition is maintainable against Air India Limited as the erstwhile Government run airline, having been taken over by a private company, is not performing any public duty anymore. However, the Apex Court has granted liberty to the former cabin crew members to approach the appropriate forum for raising their service-related issues.

The appeals, before the Top Court, were filed challenging the common impugned judgment of the Division Bench of the Bombay High Court dismissing four writ petitions instituted by the appellants being the former employees of respondent No.3 i.e. Air India Limited( AIL) as members of its cabin crew force. Appellants came to be employed in AIL in the late 1980s and all of them retired between 2016 and 2018.

Air India was a statutory body constituted under the Air Corporations Act, 1953. With the repeal of the Act of 1953, Air India merged with Indian Airlines and upon incorporation, respondent No. 3(AIL) became a wholly Government owned company and, thus, came under the category of other authorities within the meaning of Article 12 of the Constitution of India. This status of Air India continued to subsist on the date when the subject batch of writ petitions under Article 226 of the Constitution of India were filed before the High Court invoking writ jurisdiction, against respondent No.3(AIL).

However, in 2021, pursuant to the share purchase agreement signed with Talace India Pvt. Ltd., 100% equity shares of the Government of India in respondent No. 3(AIL) were purchased by the said private company and respondent No. 3(AIL) was privatised and disinvested. Therefore, the writ petitions were maintainable on the date of institution but the question that arose before the High Court was whether they continued to be maintainable as on the date the same were finally heard.

The Division Bench of the High Court concluded that with the privatization of respondent No. 3(AIL), jurisdiction of the High Court under Article 226 of the Constitution of India to issue a writ to respondent No. 3(AIL), particularly in its role as an employer, did not subsist and disposed of the writ petitions vide common impugned judgment which was assailed before the Apex Court in the present appeals by special leave.

It was the case of the appellants that the writ petitions were filed with genuine and bona fide service-related issues of the appellant employees based on substantive allegations of infringement of fundamental rights guaranteed under Article 14 and Article 16 of the Constitution of India.

Reiterating that a writ cannot be issued against non-state entities that are not performing any Public Function, the Counsel for the respondent pointed out that it was the conceded case of the appellants that post privatisation, respondent No. 3(AIL) does not perform any Public Function and in any case running a private airline with purely a commercial motive can never be equated to performing a Public Duty.

The Division Bench of Justice B.R. Gavai and Justice Sandeep Mehta took note of the fact that the Government of India having transferred its 100% share to the company Talace India Pvt Ltd., ceased to have any administrative control or deep pervasive control over the private entity and hence, the company after its disinvestment could not have been treated to be a State anymore after having taken over by the private company. Thus, the respondent No.3(AIL) after its disinvestment ceased to be a State or its instrumentality within the meaning of Article 12 of the Constitution of India.

Reliance was also placed upon the judgements in Federal Bank Ltd. v. Sagar Thomas  [LQ/SC/2003/993]  and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology [LQ/SC/2002/499]. “Once the respondent No.3(AIL) ceased to be covered by the definition of State within the meaning of Article 12 of the Constitution of India, it could not have been subjected to writ jurisdiction under Article 226 of the Constitution of India”, it added.

The Bench further opined that respondent No.3(AIL), the erstwhile Government run airline having been taken over by the private company Talace India Pvt. Ltd., unquestionably, is not performing any public duty inasmuch as it has taken over the Government company Air India Limited for the purpose of commercial operations. Thus, the Bench held that no writ petition is maintainable against respondent No.3(AIL). 

The respondent No.3(AIL)- employer was a government entity on the date of filing of the writ petitions, which came to be decided after a significant delay by which time, the company had been disinvested and taken over by a private player. Since, AIL had been disinvested and had assumed the character of a private entity not performing any public function, the High Court could not have exercised the extra ordinary writ jurisdiction to issue a writ to such private entity. The Division Bench had taken care to protect the rights of the appellants to seek remedy and thus, it couldn’t be said that the appellants had been non-suited in the case. As per the Bench, the appellants would have to approach another forum for seeking their remedy. 

“By no stretch of imagination, the delay in disposal of the writ petitions could have been a ground to continue with and maintain the writ petitions because the forum that is the High Court where the writ petitions were instituted could not have issued a writ to the private respondent which had changed hands in the intervening period”, the Bench held.

The Top Court affirmed the view taken by the Division Bench of the High Court in denying equitable relief to the appellants herein and relegating them to approach the appropriate forum for ventilating their grievances. Noting that the appellants raised grievances by way of filing the captioned writ petitions between 2011 and 2013 regarding various service-related issues which cropped up between the appellants and the erstwhile employer between 2007 and 2010, the Bench opined that the writ petitions came to be instituted with substantial delay from the time when the cause of action had accrued to the appellants.

Thus, dismissing the appeals, the Bench held, “In wake of the discussion made hereinabove, we do not find any reason to take a different view from the one taken by the Division Bench of the Bombay High Court in sustaining the preliminary objection qua maintainability of the writ petitions preferred by the appellants and rejecting the same as being not maintainable.”