[Air India Privatisation] Bombay HC: Writ petitions no Longer Maintainable Against Air India

Air India Limited Law Insider

Sakina Tashrifwala

Published on: September 22, 2022 at 22:17 IST

The Bombay High Court ruled that even while writ petitions brought by employees against Air India Limited (AIL) were maintainable at the outset of the case, they are no longer maintainable as a result of AIL’s later privatisation.

“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.

On September 20, a bench of judges led by Chief Justice Dipankar Datta and Justice M. S. Karnik issued a ruling in a group of writ petitions brought by now-retired AIL employees against AIL and the Union of India.

The issue at hand in the petitions was either employee advancement or pay. Articles 14, 16, and 21 of the Constitution were allegedly violated, according to each petition.

When the lawsuits were first filed, the maintainability issue was not raised.

However, AIL was privatised while the lawsuit was still pending, creating questions about whether it could still be maintained 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 Attorney Sanjay Singhvi argued on behalf of the petitioners that the issue of the maintainability of the writ petitions should be resolved in light of the facts as they stood at the time the case was filed.

It was argued that the writ petitions should still be maintainable in the interest of justice and equity despite AIL’s subsequent privatisation.

According to Singhvi, “the current writ petitions are maintainable since they relate to the respondents’ performance of “public obligations.”

Additionally, the petitioners claimed that the nature of their employment was constant.

In addition, Singhvi claimed that AIL and the Centre were working together to subvert the petitioners’ rights by keeping them in the dark regarding who had assumed responsibility for the obligations associated with the current writ petitions.

According to AIL’s senior attorney, Darius Khambatta, the issue of jurisdiction under Article 226 must be resolved by taking into account everything that happened after a writ petition was filed and up until the point of issuing a writ.

In a number of decisions, the courts acknowledged that a writ petition is no longer maintainable if the government enterprise is privatised while the case is pending. He cited several decisions in support of his position.

The court determined that the maintainability of the writ petitions since AIL was privatised while the matter was pending is no longer a res integra issue.

It stated that “with regard to the privatisation of AIL, our jurisdiction to issue a writ to AIL, particularly in its function as an employer, does not subsist” and cited a number of High Court decisions that the Apex Court had upheld.

The court stated that resolving the question of maintainability is significantly influenced by the change in the status of the “authority” that the writ was first asserted against.

The court further stated that regardless of how broad and inclusive the jurisdiction may be, it must be exercised within clearly defined self-imposed restrictions and jurisdictional limitations as set forth by judicial pronouncements in order to “reach injustice wherever found.”

Further, the court stated, “We say that whether or not AIL was performing public services or the petitioners were in public employment need not be reviewed in these proceedings because, as the situation currently stands, no writ can be issued by us to AIL.”

The judgement further observed that the lengthy years the case had been pending were certain to have dashed the expectations and aspirations of the retired workers.

“However, as Mr. Singhvi himself acknowledged, this Court was unable to decide these writ petitions prior to the privatisation of AIL for reasons that were completely out of its control. Despite this, the Chief Justice of this Court regrets that it was unable to make such a decision prior to AIL’s privatisation,” it mentioned.

However, the court ordered that the time the case was pending would not be taken into account for determining the limitation period if the petitioners wanted to pursue any additional legal remedies.

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