COMMON CAUSE vs UNION OF INDIA

THIS complaint petition has been filed by the well -known Consumer Organisation ''Common Cause'' seeking redressal of the grievance of air passengers who were put to great amount of inconvenience and hardship on account of disruption of a large number of flights of Air India caused by reason of a sudden strike resorted to by members of the Indian Flight Engineers Association (respondent No. 3) in February, 1993. It is averred in the petition that for a period of about six weeks from February 27,1993, nearly 200 flights normally operated by Air India (respondent No. 2) had to be cancelled due to the strike by its Flight Engineers who are members of the Indian Flight Engineers Association (respondent No. 3) and as a result thereof many persons who had booked their journeys by Air India flights were put to great hardship and loss and the image of the Airline which is the National Flag Carrier of this country had severely suffered within the country as well as abroad. In addition, huge loss had been caused by reason of strike to Air India which is a public sector enterprise and such loss is ultimately a loss to the general public.

THE case of the complainant is that the second respondent viz., Air India as well as the members of the Indian Flight Engineers Association (respondent No. 3) which is a Trade Union owe a duty to the passengers who. had booked their flight in Air India and hence who are consumers to see that the service which had been hired by them on payment of very high charges by way of air fare was duly performed without any deficiency and both Air India as well as the third respondent Union are answerable to the consumers for the inconvenience and loss caused to them by reason of the strike which necessitated cancellation of inumerable flights. The complainant has estimated the loss as suffered by roughly about 30,000 passengers whose flights were cancelled on account of the strike at the minimum figure of Rs. 30 crores. Since the purpose of the instant petition is to establish the accountability of both Air India and the members of Indian Flight Engineers Association to the consumer travelling public in the matter of due performance of tine contract of carriage without any disruption by reason of sudden strikes etc. the petitioner has prayed for the award of only nominal compensation of Rs. 10 lakhs to be paid by Air India -respondent No. 2 and Rs. 5 lakhs by respondent No. 3 (Indian Flight Engineers Association) with a request that both the aforesaid payments may be directed to be made to the Consumer Welfare Fund established by the Union of India. There is a further prayer in the petition that the respondents should be directed to take appropriate steps to ensure that in future strikes of this nature do not come about so as to cause serious problems and losses to the passengers who have booked their flights by Airlines. The second respondent -Air India in its written statement has pleaded inter alia that its flight schedules were disrupted from February 27,1993 for about six weeks solely on account of the fact that the members of respondent No. 3, Association resorted to an illegal strike and they did not assume work inspire of the fact that the Government of India, Ministry of Labour had by its order dated April 6,1993 declared the strike to be illegal and prohibited it continuance in public interest with immediate effect. It is, therefore, contended by respondent No. 2 that the inconvenience caused to the passengers by reason of the disruption of flights was not on account of any negligence or deficiency on the part of the Airline and hence no claim for compensation can be made against it. Elaborating on the circumstances under which the strike was suddenly launched by the Indian Flight Engineers Association -respondent No. 2 has stated that no notice as contemplated by Section 22 of the Industrial Disputes Act, 1947 had been given by respondent No. 3 Association before its members went on strike. It is further stated that the strike which was ostensibly launched on the ground that certain demands made by the Association had not been satisfactorily responded to by the Management of the Air India was launched at a time when a reference concerning those very demands was pending before the National Industrial Tribunal for adjudication and conciliation proceedings were also pending before the Regional Labour Commissioner (Bombay Central) on some of the demands.

REFERENCE has been made in the written statement of Air India to the decision of this Commission in Consumer Unity and Trust Society, Calcutta v. Chairman and Managing Director, Bank of Baroda, I (1992) CPJ 18 (NC)=1991(1) C.P.R. 263. Reliance has been placed on the observations contained therein to the effect that any disruption of service caused by an illegal strike resorted to by the employees of the opposite party -Bank will fall within the well -known exception of ''force majeure'' and it cannot therefore form the basis for the award of any compensation under the Consumer Protection Act since the failure to perform the service is not attributable to any negligence on the part of Bank.

THE Indian Flight Engineers Association (respondent No. 3) has raised a preliminary objection mat the members of the Association or their Association are not under any direct or indirect contractual obligation in law to provide any service to the passengers making use of Air India flights and hence the complaint filed against the Association under the Consumer Protection Act is wholly misconceived. It is further contended in the statement of objections filed by respondent No. 3 that the issue that led to the agitation by Flight Engineers with effect from February 27,1993 pertained to a labour dispute between Air India and the Indian Flight Engineers Association and no consumer complaint can legally arise out of any such agitation launched by a Trade Union. Another plea raised by the Association is that the present proceedings in so far as they are against the third respondent are barred by Section 18 of the Trade Unions Act, 1926. It is further averred that work - men are within their rights to raise demands on the Management and to take such actions as are necessary including strikes as part of the process of collective bargaining. On this basis the respondent No. 3 has contended that no consumer complaint can be entertained or adjudicated upon in such a way as to interfere with the said right of the workmen to agitate peacefully for pressing the demands made by them on the employer. It its counter affidavit respondent No. 3 has elaborately set out its version of the events which led to the agitation by Flight Engineers starting from February 27,1993 and the Association has attempted to place the entire blame on the Management for ''pushing the members of the respondent No. 3'' to resort to the extreme step of going on a sudden strike. It is unnecessary for the purposes of this case to set out those averments in extenso.

MR . H.D. Shourie, Director, Common Cause appeared and argued the case on the side of the complainant, Mr. Lalit Bhasin, Advocate appearing on behalf of Air India and Mr. K.R. Pankajan, General Secretary of the Indian Flight Engineers Association appeared in person and presented the case on behalf of respondent No. 3.

AT the very outset we have to consider the objections raised by respondent No. 3 that the Indian Flight Engineers Association has no contractual obligation in law towards the passengers making use of the Air India flights for their journeys to different destinations. In our opinion, the said plea put forward by the Association is totally misconceived and clearly untenable in la w. The members of the Flight Engineers Association form an integral part of the Air India Organisation and their salaries are paid out of the funds collected and realised by way of air fare charges collected by Air India from the passengers. For the proper performance of the contract of carriage and safe operation of flights in accordance with the announced schedules, every department of the Airline has equal responsibility to discharge its duties and functions efficiently without any negligence or deficiency. It is the collective responsibility of all the departments such as the traffic staff, commercial staff and engineering staff on the ground, the cockpit crew comprising of the pilots and the flights engineers and the cabin crew consisting of the personnel who are incharge of attending to the needs, safety and comfort of the passengers, each having its own definite role to discharge. In case of default and deficiency in the proper performance of the duties by anyone of these functionaries, the person or persons concerned will be clearly answerable in law to the passengers who are put to inconvenience and loss by reason of such default or negligence. The contract of carriage entered into with Air India is a contract with the whole organisation comprising of these different limbs and it is not open to anyone of these constituent units to contend that it has no responsibility of contractual obligation towards the passengers who have booked and paid for their travel by the flights of Airlines. In the event of deficiency in service and consequent loss being suffered by passengers, action under the Consumer Protection Act can be instituted not only against the corporate personality of Air India but also against the erring staff member or group of members or its component department responsible for the deficiency in service. In Indian Medical Association v. V.P. Shantha and Ors., In Civil Appeal No. 688 of 1993 dated November 13,1995, [III (1995) CPJ 1 (SC)], the Supreme Court had to consider inter alia the question whether doctors who are working in (Government or Private Hospitals) and are paid as salary are liable to be proceeded against under the provisions of the Consumer Protection Act in the event of any deficiency in service being made out in the matter of providing proper treatment to a patient. In its judgment, the Supreme Court has stated that Government Hospitals/Nursing Homes and Private Hospitals/ Nursing Homes broadly fall in three categories : (i) where services are rendered free of charge to everybody availing the said services.

(ii) where charges are required to be paid by everybody availing the services, and

(iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.

The hospitals falling in category (i) being outside the purview of the Consumer Protection Act the Court held that the doctors employed in those hospitals will not also come within the scope of the Act. The Court, thereafter, proceeded to discuss the question whether the individual doctors who are employed for salary in hospitals belonging to categories (ii) and (iii) would fall within the purview of the Act. Dealing with the said question, the Supreme Court observed : ''Adverting to the individual doctors employed and serving in the hospitals, we are of the view that such doctors working in the hospitals /nursing homes/dispensaries/whether Government or private - belonging to categories (ii) and (iii) above would be covered by the definition of ''service'' under the Act and as such are amenable to the provisions of the Act alongwith the management of the hospital, etc. jointly and severally.''

In our opinion these observations conclusively lay down that persons employed on salary in an organisation which is rendering service for consideration are equally amenable to the provisions of the Act alongwith the Management of the said organisation even though there may not be any direct privity of contract as between the persons hiring or availing of the service and the concerned employees. Hence we have no hesitation to hold that in the event of deficiency in service and consequent loss being suffered by passengers travelling by an Airline, action under the Consumer Protection Act can be instituted not only against the Airline but also against the erring member or group of members of its component staff responsible for the deficiency in service.

COMING to the facts of the present case, it is not in dispute that there was a serious disruption of many of the flights of Air India for a period of about six weeks from 27 February, 1993 on account of a sudden strike resorted to by the members of the Indian Flight Engineers Association. It cannot admit of any doubt that great amount of inconvenience, hardship and loss must have been caused to large number of passengers who had booked their journeys to different destinations by Air India flights scheduled to operate during the aforesaid period of disruption of services. The complainant is, therefore, right in its submission that the affected passengers have a legitimate grievance in respect of the said matter.

IT is true that respondent No. 3 is a Trade Union and under law it is entitled to make demands on the employer and to take all legitimate steps for pressing those demands by the process of collective bargaining. The employees also have under Industrial Law a right to resort to strike by adopting peaceful means after duly conforming to the procedure laid down by the concerned statutes regarding the giving of requisite mandatory notice etc. There is no right in any Trade Union to resort to an illegal strike in contravention of the mandatory prerequisite laid down by the law governing Industrial and Labour relation. The very purpose of making the service of a notice of stipulated duration mandatory is to avoid sudden disruption of the industrial activity which may result in grave and irreparable hardship, inconvenience and loss to the members of the public. In the present case, there are clear and categorical averments in the counter filed by Air India that the strike in question had been resorted to by the Flight Engineers Association without due prior notice and that the strike had been declared by the Government of India, Ministry of Labour to be an illegal and its continuance had been prohibited by an order dated April 6, 1993. These averments have not been specifically controverted in the statement filed by the Flight Engineers Association (respondent No. 3). On the materials now available on record, it will be right to assume that the strike had been suddenly launched by the third respondent Association at a time when adjudication proceedings were pending before the National Industrial Tribunal, Bombay and some conciliation proceedings were also pending before the Regional Labour Commissioner (Bombay Central).

COMING to the claim for compensation made against Air India, we have already found that the disruption of flights during the period of about six weeks from February 27, 1993 was caused solely on account of an illegal strike launched by the Indian Flight Engineers Association. In Consumer Unity and Trust Society, Calcutta v. Chairman and Managing Director, Bank of Baroda, (supra), this Commission had occasion to consider whether the failure of a Bank to conduct banking operations from its branches during the period of an illegal strike resorted to by its employees would constitute deficiency in service so far as to render the Bank liable to pay compensation under the Act to its account holders. It was held that since the suspension of Banking operations was the direct consequence of an illegal strike involving unlawful obstruction by the striking workmen of ingress into and egress from the Banks offices by the officers and willing members of staff, it cannot be said that the inconvenience, loss or injury which was undoubtedly caused to large numbers of constituents of the Bank was a result of negligence on the part of the respondent -Bank and that on the other hand it was a clear case falling within the well known exception of force majeure.

IT the light of the said principle enunciated in the above ruling, we have no hesitation to hold that no negligence has been made out against Air India and hence there are no valid grounds for the award of any compensation as against the Airline. However, we consider it necessary to make it clear that we are not to be understood as laying down any principle of general application that in no case of strike by its employees can an Airline be made liable for payment of compensation. If, in any given case, it is shown that the strike was not illegal and had been occasioned by any negligence on the part of the Airlines in the performance of its administrative function of good governance and maintenance of proper employer -employee relations, different consideration may probable apply. As already noticed, an objection has been taken by the Indian Flight Engineers Association in its counter -statement that the present proceedings instituted against it under the Consumer Protection Act are barred under Section 18 of the Trade Unions Act, 1926. We do not see any merit in this contention, Firstly, Section 18 operates only to a bar to the institution of a suit or other legal proceedings in any Civil Court against any registered Trade Union in respect of any Act done in contemplation or furtherance of a trade dispute etc. The FORA constituted under the Consumer Protection Act are not Civil Courts and proceedings instituted before the FORA are not civil suits or other legal proceedings instituted in Civil Court. That this is the correct legal position -has been laid down by this Commission in N.K. Modi v. M/s. Fair Air Engineers Pvt. Ltd. & Another, I (1993) CPJ 5 (NC). Hence we hold that the provisions of Section 18 of the Trade Unions Act do not operate as a bar to the filing of a complaint against a Trade Union under the provisions of the Consumer Protection Act.

FURTHER , the bar imposed by Section 18 is in respect of only certain types of claims made against a Trade Union in respect of any act done by it ''in contemplation or furtherance of a trade dispute to which a member of the Trade Union is a party on the ground only that such act induces some other persons to break a contract of employment or that it is in interference with the trade, business or employment of some other person or with the right of some other person to dispose of his capital or of his Labour as he Mills. The complaint filed in the present case does not fall within any of the categories described in Section 18 and hence it is to tally unaffected by the bar imposed by the said section.

INASMUCH as we have found that the strike launched by the Indian Flight Engineers Association was illegal and it could not therefore, be regarded as a legitimate Trade Union activity it has to follow that the third respondent and its members were responsible for causing disruption of flights resulting in great inconvenience, hardship and loss to the passengers who had booked their journeys by Air India flights during the period of disruption caused by the strike. It is to be noted in this connection that none of the affected passengers is before this Commission as a complainant. Further it was stated before us by Mr. H.D. Shourie with his usual fairness that his real purpose in filing the present petition is only to get a categorical pronouncement from this Commission affirming accountability of the employees of the Airlines for the hardship and loss caused to the passengers by reason of disruption of flights by launching an illegal strike. Now that the legal position has been discussed and explained by us and the obligation of the employees of Air India as well as their associations towards the passengers has been well defined by this order, the interests of justice would be adequately met in the present case if we record our disapproval of the attitude of total lack of concern on the part of the third respondent -Association and its members about! the great amount of inconvenience and hardships caused to the passengers and also to the reputation of the National Airline of this country. In addition, we also think it necessary to administer a strong word of caution that in case similar instances of disruption of services by illegal strikes or agitations come to the notice of this Commission, in future, on the part of the employees of any organisation rendering service to the public for consideration or any Association or Union of such employees, we will be dealing with the matter in a very strict manner and will have no hesitation to award proper compensation to the consumers who are thereby affected and aggrieved. If however, the disruption in service is the consequence of a strike or agitation legally launched in conformity with the provisions of the law governing Industrial and Labour relalions the employees or their Unions, no proceedings under the Consumer Protection Act can be instituted against the employees or their Associations/Unions. We do hope and trust that henceforth the rights of consumers will be duly borne in mind by the Management as well as by the Trade Unions representing the workers and that every effort will be made to ensure that as far as possible no avoidable inconvenience is caused to the consumers by causing disruption or cessation of the service expected to be provided to them. Even in the event of a lawful strike being launched after due notice, there is a duty on the part of the Management as well as the Trade Unions to take necessary steps sufficiently in advance to put the consumer public on notice that there is a likelihood of a disruption in the service to be rendered to the public by the particular organisation on account of the impending strike so mat the members of the public may make their alternative arrangements, if they wish so to do. In this context, we consider it necessary to issue a direction to Air India on terms similar to what was issued by this Commission to the Indian Banks Association in the case of Consumer Unity and Trust Society, Calcutta v. Chairman and Managing Director, Bank of Baroda (supra), that henceforth whenever a strike notice is served by any section of employees or their Trade Union on Air India (this would apply equally to all Airlines similarly situated) and the strike appears to be imminent, the Airlines shall insert a publication in all the leading news papers of the country informing the public about the possibility of there being a strike so that the consumers may not be taken by surprise by the strike but may be enabled to make such alternative arrangements as are possible so as to mitigate the hardship that is otherwise bound to be caused to them. This complaint/petition is disposed of with the above observations and directions. The parties will bear their respective costs.