BIAL can sue President

An outrageous clause in the concessionaire agreement gives new airport the power to question country's sovereignty

Bengaluru International Airport can sue the President of India as the government has given up its sovereign immunity status while signing the agreement to set up the airport.
Clause 18.131 of the concessionaire agreement says the Government of India has unconditionally and irrevocably signed the agreement as a private party and not as the government.

The following clause, 18.132, says in the event of any action being taken against the government, the government would not seek sovereign immunity.

The Association of Outsourcing Professionals is fighting a court case questioning these clauses. The high court is expected to hear the case today.

The association, headed by former IT secretary Vivek Kulkarni, has filed a petition in the high court questioning the validity of the concession agreement.

The clauses were included at the behest of BIAL so that it could prosecute anyone, including the President, in case the government breaches the contract. The secretary to the civil aviation ministry has signed the agreement on behalf of the President.

It is dangerous, said Kulkarni. The government has given up its immunity to help BIAL, but it has in the process invalidated the agreement. Kulkarni, who was the Karnataka government's IT secretary earlier, believes the agreement will be considered invalid as the government has not signed it in the capacity of the government.

The case in the high court was listed for Monday, but the court could not take it up as there were other cases to be heard.
B V Shiva Shankar
bv.shivashankar@mid-day.com

It's a monopoly
Apart from the validity of the concessionaire agreement, the petition has also questioned the closure of the HAL airport on the grounds of Monopolistic and Restrictive Trade Practices Act.

The petition argues that the agreement violates Section 32 of the MRTP Act that bars a private firm from having a monopoly.

The MRTP Act exempts the central government, said B C Thiruvengadam, counsel appearing for the association. But the agreement states that both sides are private parties.
The Employees Union of Airport Authority of India has also filed a petition questioning the closure of HAL Airport.

This petition is also expected to come up for hearing today. A two-member bench comprising P D Dinakaran and Mohan Shanthana Gouder will hear the cases.
A BIAL spokesperson declined to comment.
(Related story on Pg 10)

What's AOP?
The Association of Outsourcing Professionals was formed to create IT awareness and promote education and training. Eminent citizens are associated with it.

While Vivek Kulkarni, a former bureaucrat, is the founder-president, luminaries such as Ghanasham Das, director-South Asia, Nasdaq, Kris Goplakrishnan, CEO, Infosys, and Prof Balki from the Indian Institute of Science are among its members.

MRTPC dismisses petition on BIAL's monopoly issue

13 Jul, 2008 - Economic Times

NEW DELHI: Anti-monopoly watchdog MRTPC has dismissed a petition challenging the exclusive agreement between Bangalore International Airport Ltd (BIAL) and the Centre for not sanctioning any new airport within its 150 km radius for next 25 years.

Bangalore-based Association of Outsourcing Professionals (AOP) had alleged that by granting such 'concession agreement' to BIAL by the government created monopoly in the favour of the developers of the newly commissioned Bangalore airport.

MRTPC, however, rejected the petition on the ground that the agreement was entered into by the government and any such agreement in which the Centre is an approver or a party to such agreement, does not comes under the purview of monopolistic trade practices.

MRTPC bench headed by Justice O P Dwivedi declined to pass any order and said the MRTP Act "clearly bars the jurisdiction of this commission from taking congnizance as Government of India is a party to it."

The bench added, "we hold that this complaint is not maintainable and no notices to be issued to respondent (centre). Accordingly, the complaint is dismissed".

The Commission also rejected AOP's contention that the Centre's agreement does not come under 'sovereign immunity' as it was not an act done for public and was a commercial act.

"We are unable to be persuaded by the arguments tendered by the complainant (AOP). The agreement is clearly between the Government of India and BIAL.

"Even though the agreement may be of commercial nature, it needs to be emphasised that Government of India remains a party to it by virtue of signing agreement," said the Commission.

As per the agreement between the Centre and BIAL, no new or existing airport would be allowed to be developed, improved or upgraded within radius of 150 km for next 25 years.

AOP alleging that government's concession agreement created monopoly in the sector and amounted to unfair trade practices. It requested the MRTPC to direct the authorities to reopen the old HAL airport at Bangalore.

BIAL- Centre deal cancellation

Complaint dismissed

By Subhash Chandra N S, DH News Service, Bangalore:

The Monopolies and Restrictive Trade Practices Commission (MRTPC), New Delhi has dismissed a complaint seeking the cancellation of concessional agreement dated July 5, 2004 between Bengaluru International Airport Limited (BIAL) and Union Government, on grounds that it is not maintainable.

The new bench comprising of Justice O P Dwivedi, Chairman, MRTPC and M M K Sardana, member, (formed after one of the member O P Gupta said the matter should be heard by a different bench) of the Commission, hearing the petition by Association of Outsourcing Professionals (AOP), headed by former IT Secretary Vivek Kulkarni said that though the agreement is of commercial nature, the Government of India remains a party to it by virtue of signing the agreement.

The Commission, also said that the contention of the complainant, that the concession agreement between the Ministry of Civil Aviation and BIAL would mean that the Government of India unconditionally and irrevocably states that the signing and performance of the agreement is private and commercial act and not a governmental act is not tenable.

Void agreement
An application by AOP dated May 17, seeking reopening of HAL airport saying that closure of HAL airport and prevention of any international airport as well as domestic airport within 150 km radius is a void agreement according to Section 32 of MRTP

Act was also dismissed saying the notification dated may 16, 2008 by Government of India is sufficient to meet the requirements of the act.

The matter was adjourned after the first hearing on May 21 saying that the Commission is awaiting the orders from the Karnataka High Court as well as the Supreme Court.

During the hearing at Karnataka High Court Chief Justice Cyriac Joseph on June 9, MRTPC was directed to dispose the matter before July 10.

When the matter came up before Justice O P Dwivedi and member D P Gupta, the member opted out of the bench on July 3 saying it should be heard by a different bench and the matter was dismissed by the new bench.

Deccan Herald, Bangalore
Tuesday June 10, 2008
High Court’s direction to MRTP Commission

DH N EWS SERVICE

BANGALORE :The KarnatakaHigh Court on Monday directed the Monopolistic Restriction of Trade Practice Commission to dispose off at the earliest the matterpertaining to the concessional agreement with the Bengaluru International Airport Limited (BIAL), which the petitioners had contended was a violation of the MRTP Act.

The petitioners,the Association of Outsourcing Professionals (AOP) with former IT Secretary VivekKulkari as one of the member trustees,had challenged the Commission’s delay in delivering a judgment. The Commission, they said, had been waiting for an order from the Karnataka High Court on the HAL Airport retention issue.

However, the High Court hearing the matter ordered the Commission to deliver the judgement within July10 and dispose off the matter.

The petition filed by AOPhad stated that the concessional agreement inked by the Civil Aviation Secretaryhad surrendered the sovereign immunity status of the country.

The petition said that the Government had signed the contract unconditionally, which was irrevocable.

Besides the clauses related to the closure of HAL airport and prevention of any international airport as well as domestic airportwithin 150 kms radius except Mysore and Hassan,were a monopolistic practice.

This makes the agreement void according to the section 32 of MRTP Act.

According to the petition, the agreement also being a violation of Section 23 of the Indian Contractual Act,cannot be enforced.

The Times of India, Bangalore
Tuesday June 10, 2008
Dispose of plaint against BIA deal, MRTPC told

TIMES NEWS NETWORK

Another plea against
HAL airport closure

Bangalore: The Association of Outsourcing Professionals, or AOP, headed by a former bureaucrat, has filed a petition in the Karnataka high court saying the closure of the old airport after the new airport is opened violates an Indian law on monopoly.

AOP claimed the contract, called the concession agreement, signed in 2004 violates the Monopolistic and Restrictive Trade Practices (MRTP) Act. The vacation bench of the high court admitted the petition and adjourned the case for Friday.

Earlier, the Indian government counsel said the Bangalore International Airport Ltd, or Bial, which will operate the new airport, would submit a traffic study in two weeks.
It would include the possibility of operating short haul flights from the older airport, owned by state-run aircraft maker Hindustan Aeronautics Ltd, or HAL, he said.

The counsel added that the government was in talks with Bial to accept the suggestion of operating small planes from the older airport. Any commercial traffic from the HAL airport, if continued, would affect Bial’s financial viability, he said. Staff Writer - livemint

Vivek Kulkarni Former IT secretary on whether Bangalore's image has taken a beating.

'The best talent of the world is in Bangalore'

The recent rains have shown how inadequate our infrastructure is, and the government continues to mix politics with IT. Does all this take away from Bangalore's title of Silicon Valley of India?

Bangalore certainly still deserves to be called the Silicon Valley of India, and I think it will remain so for a long time. The city is what it is today because of Bangaloreans. It doesn't have its image because of one or two events or people.

Do we, however, need to improve our infrastructure fast before the city's image is damaged? In any knowledge-based sector, people have to keep coming to the city to discuss business possibilities.

We therefore need better roads, infrastructure and even hotels, among other things. If you take any indicator, China is better than us. But we are ahead of them in one sector — the knowledge-based industry.

And we can retain our place if we allow people to come to Bangalore and be comfortable here.

But are companies beginning to look at places other than Bangalore, to set up office? Many companies would like to come to India and they would like to be operational from many cities.

But at the same time I'd like to add that if we have any internal issues, they should not be made public to an international audience. We should solve our issues internally and quietly.

After all this, what would you say is Bangalore's USP?

The most important thing about this city is its talent. The best talent of the world is in Bangalore.

AOP expresses shock and anguish over Prathibha rape & murder


Vivek Kulkarni , the President of the Association of Outsourcing Professionals (AOP), expressed deep shock and anguish over the recent rape and murder of Prathibha, an employee of the MNC, Hewlett Packard.

AOP believes that all outsourcing professionals should get together and pressurize the MNC's and the government to strictly adhere to a certain code of conduct and security measures. A few possible solutions to avoid such incidents in the future:

Have a 24/7 transport desk manned by the company staff instead of contract staff:

MNC's are already reaping the financial benefits of locating in India with high quality manpower at a low cost. It is unfortunate that HP's transport desk did not get concerned when their driver reported that one of their lady employees, Prathiba did not get into the assigned vehicle at 2 am in the night. The right reaction should have been to contact her immediately and see where she is, as well as alert her family. The company should provide a help desk with enough telephone lines and senior people manning it.

Keep employees communication with their family open all times

Even when Prathibha's husband called her and found no answer, he decided she must be busy and felt she should not be disturbing her work. Quite often the employees can't use their cell phone and their families can not contact them on phone. The best way is provide a landline to a senior person, preferably the employees' boss who should receive calls from employee family members politely. It is critical that MNCs realize that their employees' communication with their families be kept open at all times and must encourage this communication.

Have the same group in the cab:

Companies treat employees as a resource available in plenty and not as company assets as many claim they do. They have erratic shift timings and provide cabs where different groups ride the cab on different days. When the cab has totally different people, no one misses their colleagues and don't get concerned if they don't turn up. A better idea may be that the cabs transport the same set of persons regularly even if this means an additional cost.

Have fewer and regular shifts and not at odd hours like 3.30 am

Many call centers have elaborate software programs to schedule the shift timings. They call employees at all odd hours mainly to save cost of infrastructure and computers. To call someone for duty at 3.30 am does not seem fair. While the companies save money on infrastructure they seem to be unconcerned about the effects that this may have on employee safety and social life. We need to think and come out with a better alternative. One alternative may be a 4 day week.

Have a four day week for night shift employees

AOP believes that starting the night shift earlier is one good alternative. Night shifts could begin between 7.30 pm to 10 pm only and end after 6.00 am the next morning. This would ensure the safety of the employees by having them in the office premise during the night. AOP also believes that the night shifts could be 11 hours long and employees work for only four days a week and take three days off.

Once in office, ensure their safety

Employees' safety during night shift is also very critical. They must have open office with lot of glass around and no unsafe corners in the office. A few emergency phones and buttons could be located in toilet and other dark areas in large offices.

Security guard may not be the best solution

A few companies have a security guard in the vehicle. This could be counter-productive in some cases. The guards and drivers come from the same socio-economic strata and two of them in the same vehicle can be threatening not only to female employees but also to male employees. A better solution would make sure that female employees are always called by their colleagues and not by the drivers, that female employees are never the first passenger to get in the cab nor the last passenger to disembark.

Background Checks

Companies don't do the background checks. Even when they do, the approach is causal and just means paper work to satisfy audits. It is important to do real background checks, computerize the police records, regulate the companies that offer background checks and streamline the process. It may be a good idea to involve both the revenue and police departments of the state governments in the background check process.

Your feedback please:

AOP invites reactions, suggestions from everyone concerned and would like to take up this matter with companies, the governments and other authorities. Please visit www.aopindia.org and send your comments to info@aopindia.org .