BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
(Special Original Jurisdiction)
Letter O.P. No. 8025  of 2000
Filed by Advocate Palavilayil Thomas Panicker
COUNTER AFFIDAVIT
Filed by Air India

	I, George Tharakan, aged 56 years, son of Parayil Avira Kochupappu Tharakan, residing at No. 4, Al Gaith Villa, Garhoud, Dubai, U.A.E. do hereby solemnly affirm and state as follows:-

1.	I am the Regional Director (Gulf & Middle East) of Air-India based in Dubai.  I am conversant with the facts of the case and I am able and competent to depose to the same.
2.	All the averments and allegations in the alleged in the Petition dated 02.03.2000 purported to have been sent by one forum alleged to be on behalf of the members of  Forum are hereby denied save to the extent specifically admitted or otherwise dealt with hereunder.
3.	At the outset I am advised to submit that no cause of action whatsoever has arisen warranting filing of the present letter before the Honourable High Court, much less has any right accrued to any person or Association warranting invocation of the extraordinary and discretionary jurisdiction of this Honourable Court under Article 226 of the Constitution of India.
4.	The entire allegation is absolutely false and apparently therefore is motivated.  It is respectfully submitted that this Honourable Court may be pleased to take an extremely serious view of the irresponsible and false manner in which the extraordinary jurisdiction has been invoked.  In the circumstances sit is absolutely unnecessary to deal with any of the allegations made in the Petiton.
5.	The Association as well as the individual concerned also apparently is unaware of the factual situation prevailing not just in Air-India but among all airlines including Emirates, Gulf Air Qatar Airways, Oman Air, Kuwait Airways and Air Lanka which operate to South Indian points.
6.	The basis for international airfares is IATA published fare levels and whenever no fare is published between any two points by IATA, then the fare between such points should be constructed as per the relevant rules of the IATA.  The national carriers of U.A.E viz., Emirates and Gulf Air and the national carrier of India viz., Air India are participating carriers of IATA Passenger Air Traffic Rules and concerned IATA resolution approved by the Governments of U.A.E. and India.  All published fares that are put up in the market are approved by IATA and all participating airlines are well within their rights to apply such published airfares either fixed by IATA or constructed under the rules IATA.  The fact remains, however that due to competitive reasons, market conditions etc., airlines tend to apply fare levels which are lower than the fixed/permissible IATA levels.  In fact to all Indian destinations including South Indian destinations Air-India has been charging at all times including the relevant time involved in this petition fares which are below the fixed permissible IATA fares.  For example, for the Dubai/Thiruvananthapuram/Dubai sector, the permitted/fixed fare is Dhs. 3200 whereas Air-India has been charging only a fare level varying from Drs. 2100 to 2900.  Similarly on the Dubai/Cochin route, the fixed level is Dhs. 3350 whereas the fare charged by Air-India ranges between Dhs. 2100 and 2900.  On the Mumbai/Dubai route, the permitted/published fare is Dhs. 2240 whereas the fare level charges is varying from Dhs. 1300 to 2000.  These fare levels therefore will vary according to the cost involved in operation, the demand and supply situation of the market, season etc.  Such market fare levels are determined by airlines in various markets after consultation among themselves.  The initiative for such an Yield Improvement Programme is always taken by the National Carrier of the country concerned and as far as Dubai is concerned, Emirates Airline is the Chairman of the Yield Improvement Committee and Gulf Air, the other National Carrier of the U.A.E. is the Co-Chairman.  The allegation in the subject petition that Air-India takes the initiative for such a move, is incorrect.  Such meetings have taken place in the offices of the National Carriers or in the office of the other carriers like Air-India and Cathay Pacific, according to the convenience of the member airlines who are attending the meetings and also to share the costs connected with the meetings.  Air-India hosted the meeting held on 9th February 2000, at the office of its Marketing Manager –Dubai & Northern Emirates and it cannot be said that Air-India initiated the meeting.  The 9th February meeting which discussed UAE/South India fare levels was only a sequal to the YIC meeting held on 3rd January 2000, which discussed the market fares from the UAE North Indian destinations including Mumbai.
7.	The argument that Air-India is charging extra rate to Cochin and Kozhikode as a monopoly operator is also totally misleading and untrue.  Air-India has common rate fare levels to these two airports along with other South Indian airports like Thiruvananthapuram, Bangalore and Chennai.  Apart from this, Air India allows 20 Kgs. Of extra baggage to all passengers travelling to all South Indian points without any discrimination which benefits each passenger Dhs. 600 equivalent to approximately Rs. 6600.
8.	From the above it will be seen that on the one hand fare charged by Air-India is well within the IATA limits and therefore clearly unquestionable much less in these proceedings under Article 226 of the Constitution of India.  That apart the fare charged is one arrived at taking into account the market conditions, demand and supply and the corresponding fares charged by other airlines.  IN this regard it may be mentioned that Gulf Air for instance charges Dhs. 2100 in the Abu Dhabi/Thiruvananthapuram sector whereas the same airline has already announced that for peak season from 25th June to 10th July it will be charging the IATA published/fixed fair of Dhs. 3200 which is well within its right to charge.  Curiously, the   Forum has not chosen to target Gulf Air but Air-India.  In fact it would appear that the Association itself is discriminative against Air-India and the whole issue is instigated by elements who are anti-national. 
9.	Since market fares are dictated by market conditions, demand and supply etc., they can be termed as floating levels.  In fact fare levels enclosed by the petitioner along with his petition are misleading.  For eg., their claim that Air-India fare to Delhi is Dhs.1500 is totally incorrect whereas the correct fare level to Delhi is Dhs. 1700 at the time of filing the petition which is 3rd March 2000.  The Petitioners have made an attempt to confuse and mislead the Honourable High Court by quoting incorrect information as far as applicable fare levels are concerned.  Produced herewith is a sheet indicating the correct fares announced in the market with details of the concerned Tariff Bulletins.  Air-India and Indian Airlines are not the only direct operators into Kerala from the U.A.E.  The National Carrier, Gulf Air, operates direct non-stop flights from Abu Dhabi to Thiruvananthapuram. 
10.	Air India which is the National Carrier of India is operating in an internationally competitive environment and it cannot have marketing strategies in isolation of other airlines in the field.  Air-India is accountable for its financial results to the Representatives of the people and has to operate as per the conditions of the market.  It is a well known fact that contracts of employment in the Gulf countries include air fares for the employees from the employers.  Many of the multi-national companies and other major Arab companies pay full IATA published fares to their employees to purchase air tickets and Air-India is not under any obligation to subsidise these large companies by giving them avoidable discounts, thus causing loss to the airlines and the country.  In fact, during the peak season Air-India finds it difficult to confirm seats for people who are willing to pay full fare without discounts and face criticism for same.  For an airline which operates in a commercially competitive field, it will be suicidal to keep aside full fare paying customers and offer heavy discounts in the market.
11.	In spite of our commercial objectives, when the Indian community has been in difficulties, Air-India has always come forward with humanitarian approach, the most recent such episode is the Amnesty Evacuation in the UAE in 1996 when Air-India dropped the oneway fare to any part of India to Dhs. 800.  This low fare level was applied without receiving any subsidy from any quarter.  Such an approach in pricing which was during a crisis situation for the Indian community cannot be applied in the normal course of business.
12.	Any decision that Air-India should apply a lower fare level than the competitor airlines to any particular destination in India will not be fair in law or in business practice and will harm the financial interests of the airline and the country.
13.	It is therefore respectfully submitted that there is absolutely no merit in the  Petition and the same is totally misleading, false, instigated by anti- national elements and seeks the interference of this Honourable Court in exercise of its extraordinary and discretionary jurisdiction under Article 226 of the Constitution of India in matters which are well within the rights of Air India and decisions which are taken in the ordinary course of business and in the best interest of the Airlines and of the country.
It is respectfully submitted that the  Petition may, therefore, be dismissed and an enquiry instituted into the mala fide and irresponsible manner in which it is instituted.
All the facts stated above are true.

	Dated, this the 23rd day of May, 2000

							For AIR-INDIA

							George Tharakan,
					Regional Director (Gulf & Middle East)