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CASE NO.:

Appeal (civil) 4570 of 2002

Appeal (civil) 4581 of 2002

Appeal (civil) 4584-92 of 2002

Appeal (civil) 4571-78 of 2002

Appeal (civil) 4579-80 of 2002

Appeal (civil) 4582-83 of 2002

PETITIONER:

Air India Cabin Crew Association

Air India Officers Association & Anrs.

Air India Ltd.

Union of India

Kanwarjeet Singh & Ors.

Rani Anthony & Ors

RESPONDENT:

Vs.

Yeshawinee Merchant & Ors

Air India Ltd. & Ors.

Air India Hostesses Asson. & Ors

Air India Hostesses Assn. & Ors

Air India Hostess Assn.& Ors.

Air India Hostess Assn. & Anrs.

DATE OF JUDGMENT: 11/07/2003

BENCH:

Doraiswamy Raju & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T

Dharmadhikari J.

This batch of appeals has been filed against the Division Bench

judgment of the Bombay High Court dated 20-23.8.2002.

In a batch of petitions filed by respondents Air India Air

hostesses Association and its members (shortly referred hereinafter as

the respondent Association), the High Court of Bombay has held that

the age of retirement from flying duties of Air hostesses at the age of

50 years with option to them to accept post for ground duties after 50

and up to the age of 58 years is discrimination against them based on

sex which is violative of Articles 14,15 & 16 of the Constitution of

India as also Section 5 of the Equal Remuneration Act, 1976 (for short

the ER Act) and contrary to the mandatory directions issued by the

Central Government under Section 34 of the Air Corporations Act,

1953( for short Act of 1953).

On such declaration of retirement age of air hostesses from

flying duties as discriminating compared to their male counterparts

working with them on board of Air craft, the High Court went further

in passing an alleged consensual order based on proposals in writing

given by the employer Air India which was alleged to have been

accepted by other parties before the High Court. The operative part of

the impugned judgment of Bombay High Court by which several reliefs

were granted to the respondent association, needs reproduction:-

(i) "The impugned letter of the 3rd respondent dated 24th

December 1989 and circulars issued by Air India dated 23rd

March 1990, 2nd March 1990 and 5th August 1991 as well as

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office order dated 12th January 1993 are hereby quashed and

set aside ;

(i) Air India is directed to implement the directive dated 16th

October, 1989 issued by the Union of India by permitting the

petitioners to perform flying duties until they attain the

retirement age of 58 years subject to medical fitness and

weight check and further subject to the measures suggested by

Air India and reproduced earlier in this Order;

(ii) Air India is directed to pay to the pettioners the differential

amount of salary from the date of grounding till the date of

resumption of flight duties and 50% of the compensatory

allowances as per column 9 of the proposal marked 'x' to the air

hostesses who were grounded prior to 31st December 1997 and

30% of the allowances for the air hostesses who were grounded

on or after Ist January 1997;

(iii) Air India is directed to comply with the above directions within

a period of 12 weeks.

(iv) Air India is directed to take steps to refix seniority of the

cabin crew in accordance with this order and complete the work

of refixation of seniority within 24 weeks;

(v) Air India is directed to take steps to amend clause 30(1)(c) of

the Certified standing orders in the light of the directions given

by this Court;

(vi) all Awards and settlements entered into between the

management of Air India and the unions of cabin crew to stand

modified to the extent they conflict with this order;

(vii) Air hostesses will be entitled to the benefit under section 192

(2A) read with section 89 of the Income Tax Act with regard to

the amounts paid in arrears".

The consensual order recorded by the High Court in its judgment

on the conditional proposals made by the employer Air India and

alleged to have been accepted by some of the employees and their

Associations which were parties before the High Court also needs

reproduction:-

"As indicated by us at the outset that Air India has agreed to

increase the flying age of air hostesses to 58 years subject to

certain measures propsed by Air India, the proposal to that effect in

writing was put on record by the learned counsel for Air India. The

same was discussed during the course of arguments and finally a

consensus has been reached on the following:-

(i) Order of this Court be confined only to such members of the

cabin crew of both sexes recruited prior to october 1997;

(ii) There shall be total interchangeability of job functions on board

the air craft and flexibility of working positions shall be at the

discretion of the management.

(iii) There shall be total parity between the two cadres of air

hostesses and flight pursers and all vestiges of distinctions be

brought to an end;

(iv) The inter-se seniority between the two cadres shall be worked

out as follows:-

a) The seniority of male and female cabin crew will be in

accordance with their date of joining;

b) If in the same grade the female cabin crew is senior to a

male cabin crew even though her date of entry into Air

India is later than that of the male cabin crew, the grade

and basic salary of the female cabin crew will be frozen

till such time as the male counter part catches up with her

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and is placed senior to her as per his date of joining;

c) If a male cabin crew is in a lower grade than a female

cabin crew despite the male cabin crew having joined Air

India at an earlier date, the grade and basic salary of the

female cabin crew will be frozen till such time as the male

cabin crew is promoted and becomes senior to the female

cabin crew as per his date of joining;

d) In cases covered by clause (b) and (c) above, the basic

salary and grade of the female cabin crew shall remain

frozen till such time as the male cabin crew becomes

senior to the female cabin crew or for a period of two

years whichever is less;

e) In situations where the female cabin crew is senior to the

male cabin crew, where the date of joining is the same,

the existing relative seniority will remain undisturbed;

f) Male/Female cabin crew who have been down graded due

to disciplinary action, will continue with the handicap;

g) Male/Female cabin crew who have been refused

promotions will also continue with the handicap, and

h) Male/Female cabin crew who are on leave without pay, the

number of days will be deducted whilst fixing their

seniority.

(v) The hierarchy on board the air craft will be based on seniority

irrespective of sex;

(vi) Special benefits which are being given to air hostesses at

present, like early retirement and all benefits arising out of

early retirement, shall no longer be continued;

(vii) The bar loss compensation will be paid to only such cabin crew

(both workmen and executive) as are at present in receipt of the

same and to no other cabin crew;

(viii) All cabin crew (both workmen and executive) shall have to

undergo annual medical examination after the age of 35 years

and shall also be subject to weight checks at all times

irrespective of sex. Provided further that in the case of air

hostesses who have been grounded need not have to undergo

medical tests, weight checks, safety and refresher training;

(ix) All air hostesses shall have to exercise a one time irrevocable

option with one month from the date of the receipt of intimation

given in that behalf by Air India to decide whether they wish to

retire at the age of 50 years or to continue to work in Air

India and fly as air hostesses till the retirement age of 58

years. To achieve parity, a similar option will also be offered to

the male cabin crew as a one time exercise. No cabin crew as one

time exercise. No cabin crew will be eligible for ground jobs

except where the cabin crew is grounded by the management due

to lack of medical fitness.

(x) No member of the cabin crew, male or female joined after

October 1997 will be allowed to claim bar loss compensation.

The impugned judgment of the Bombay High Court has been

assailed by the Air India Officers Association who has sought leave to

appeal against the judgments being adversely affected in their

seniority and promotional prospects by the passing of alleged

consensual order recorded in the impugned judgments. Majority of air

hostesses of the workmen category, whose terms and conditions of

service including age of retirement is governed by agreements and

settlements entered into between them with the employer under the

Industrial Law, are also aggrieved by the judgment. They are

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appellants before us through Air India Cabin Crew Association [for

short 'AICCA'] which has membership both of male and female

employees working as cabin crew. Appeals have also been preferred

separately by Employer Air India, Union of India and some of the air

hostesses individually. Learned Senior Counsel appearing for the

appellants addressed separate arguments and highlighted the patent

illegalities on merits and procedure committed by the High Court.

Before dealing with the several contentions advanced on behalf

of the appellants before us, it would be necessary to give the factual

and legal background in which the present dispute by the air

hostesses represented by respondent association on the question of

retirement from flying duties has been raised.

Two Corporations in the name of Air India (engaged in

international flights) and Indian Air lines (engaged in domestic

flights)were established under the Air Corporations Act 1953. Section

45(2)(b) enables the Corporation established under the Act to frame

regulations laying down terms and conditions of service of its officers

and employees. After the Corporation was formed, Air India by

regulation 46(1) fixed the retirement age of Air hostesses as 30

years. By regulation 47, General Manager was empowered to extend

the retirement age to 35 years for the Air hostesses who are found to

be medically fit. This retirement age was fixed by the two National

Industrial Tribunals which were set up to determine conditions of

service of employees of the two Corporations. Those tribunals were

presided over by Mr. Justice Khosla and Mr. Justice Mahesh Chandra.

In the year 1972 the Air Corporation Employees Union raised

the dispute of retirement age of air hostesses in Indian Air lines. A

settlement was reached between employer and employees under

which General Manager's power to extend the retirement age of

unmarried and medically fit air hostesses was increased from 35 to

40. In 1972 Justice Mahesh Chandra Award was given on the basis of

dispute referred by the Central Government concerning the service

conditions of workmen of Indian Airlines. The employees' Union of Air

India were permitted to be impleaded as a party. The employer Air

India made a demand before the tribunal of interchangeability of job

functions between male and female members of the crew so as to

allow them to operate the aircraft with only 14 crewmembers. Justice

Mahesh Chandra tribunal gave its award on 25.2.1972 in which Air

India's claim for interchangeability of the job functions of male and

female members of the crew was rejected on the ground that the Air

India Manual has laid down separate and distinct job functions of male

and female cabin crew. According to the employer Air India the

Mahesh Chandra Award is binding as a Contract reached between the

employer and employees in the course of industrial adjudication.

For airhostesses in the Indian Air lines, Government of India

Notification dated 12.4.1980 fixed minimum retirement age as 35

years. It was provided that air hostesses will retire on attaining the

age of 35 years or on marriage if it takes place within four years of

joining service or on first pregnancy whichever occurs earlier. In line

with Indian Air lines, Air India also carried out similar amendments in

their regulations. The male cabin crew members, known as Assistant

Flight Pursers, Flight Pursers and Flight Supervisors were to continue

on flight duties until the age of 58 years. Ms. Nergeshh Meerza

together with her fellow Air hostesses filed a Writ Petition in the

Bombay High Court challenging the retirement and other conditions of

service applicable to Air hostesses on the ground that they were

discriminatory under Articles 14,15 & 16 of the Constitution. The

petition was transferred to the Supreme Court and by its decision in

the case of Air India vs. Nergeshh Meerza [1981 (4) SCC 335]

the provision of retirement of Air hostesses on first pregnancy was

struck down as arbitrary and violative of Article 14 of the Constitution.

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The regulation, which provided for extension of service of the air

hostesses beyond 35 years and up to the age of 45 years at the sole

discretion of Managing Director, was also found to be arbitrary being

without any guidelines. This Court in Nergesh Meerza's case,

therefore, came to the conclusion that the service regulations in so far

as they provided for termination of service on first pregnancy and

extension of service beyond 35 years only at the discretion of

Managing Director, were arbitrary hence unconstitutional under Article

14 of the Constitution.

It would be necessary to take note of the decision of Nergeshh

Meerza's decision (supra) rendered by three Judges' Bench of this

Court as according to the appellants some of the legal premises are

already covered and certain legal questions are already settled by the

aforesaid judgment, which are binding on the High Court and also on

this Bench of two Judges. In the case of Nergesh Meerza (supra)

attempt was made to persuade the Court to hold that the air

hostesses (females) and flight pursers (males) being members of a

team on board air craft should be treated as one single cadre of

employees allowing no discrimination in their service conditions. After

taking note of different modes of the recruitment, promotional

avenues, salaries, allowances of the two cadres, in the case of

Nergesh Meerza (supra), this Court recorded the following

conclusion in paragraph 57 of its judgement:

"Thus , from the comparison of the mode of recruitment the

qualification, the promotional avenues and other matters which we

have discussed above we are satisfied that the Air hostesses form

an absolutely separate category from that of the Flight pursers in

many respects having their different grades, different promotional

avenues and different service conditions."

The conclusion is reiterated in paragraph 60 of the judgment in

the following words:-

"Having regard, therefore, to the various circumstances, incidents,

service conditions, promotional avenues etc. of the Flight pursers and

Air hostesses, the inference is irresistible that Air hostesses

though members of the cabin crew are entirely separate class

governed by different set of rules and regulations and conditions of

service."

It is after recording the above conclusion that the Court then

went on to consider the argument advanced on behalf of Air India by

their Senior Counsel Mr. Nariman that most of the job functions

performed by flight pursers and air hostesses are entirely different.

This argument of the counsel made on behalf of the employer was

negatived and the relevant part of the observations in the judgment

have to be understood in the context in which they are made. They

cannot be read out of context by the High Court to nullify the

conclusion of this Court reproduced above in which it is very clearly

stated that the male and female members of the crew on board are

two different classes of employees governed by different sets of

service conditions. On the alleged difference in job functions the

Supreme Court observed as under:-

"We are, however, not impressed with this argument because on

perusal of job functions which have been detailed in affidavit clearly

shows that the functions of the two, though obviously different

overlap on some points but the difference, if any, is one of degree

rather than of kind. Moreover, being members of the crew in the

same flight, two separate classes have to work as a team helping and

assisting each other particularly in case of emergency."

Having thus rejected the contention advanced on behalf of

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employers on the alleged difference of job functions, the Court in para

62 further reiterated its conclusion thus :-

"Once we have held that Air hostesses form separate category with

different and separate incidents, the circumstances pointed out by

the appellant cannot amount to discrimination as to violate Article 14

of the Constitution on this ground."

The Supreme Court thus negatived the grievance that service

conditions providing lower age of retirement to air hostesses is

unfavourable compared to flight pursers, who are male members of

the crew on board and are allowed the age of retirement of 55 or 58

years. The argument claiming parity on retirement age by females

with male members of the crew was negatived. It was held that there

is no discrimination against air hostesses based only on sex. It

further held that the service condition is neither unconstitutional under

Articles 15 & 16 of the Constituion nor violative of Section 4 of the ER

Act. The Court quoted notification issued by the Central Government

under Section 16 of the ER Act. It upheld the stand of the employer

that the different ages of retirement and salary structure for male and

female employees in Air India are based on their different conditions

of service and not on sex alone.

Section 4 of the E.R. Act prohibits the employer from paying

unequal remuneration to male and female workers for 'same work or

work of a similar nature.' Section 5 of the said Act prohibits

discrimination by the employer while recruiting men and women

workers for 'same work or work of similar nature.' By Amendment

introduced to Section 5 by the Amendment Act No.49 of 1987,

employer has been prohibited from discriminating men and women

after their recruitment in the matter of their conditions of service for

the 'same work and work of similar nature.' Section 5 after its

amendment by Act No.49 of 1987 reads as under:-

"5. No discrimination to be made while recruiting men and women

workers. - On and from the commencement of this Act, no employer

shall, while making recruitment for the same work of a similar nature,

[or in any condition of service subsequent to recruitment such as

promotions, training or transfer] make any discrimination against

women except where the employment of women in such work is

prohibited or restricted by or under any law for the time being in

force.

Provided that the provisions of this section shall not affect any

priority or reservation for scheduled castes or scheduled tribes, ex-

servicemen, retrenched employees or any other class or category of

persons in the matter of recruitment to the posts in an establishment

or employment."

The expression - 'same work or work of a similar nature' has

been defined in Section 2(h) of E.R. Act as under:

"2(h) - same work or work of a similar nature" means work in respect

of which the skill, effort and responsibility required are the same,

when performed under similar working conditions, by a man or a

woman and the differences, if any, between the skill, effort and

responsibility required of a man and those required of a woman are

not of practical importance in relation to the terms and conditions of

employment.

Section 16 empowers the appropriate government to make a

declaration by notification that in respect of particular employment

difference in regard to remuneration of men and women workers

under an employer is found to be based on 'a factor other than sex'

and there is no contravention of the provisions of the Act by the

employer. Section 16 reads as under:-

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"16. power to make declaration - Where the appropriate Government

is, on a consideration of all the circumstances of the case, satisfied

that the differences in regard to the remuneration or a particular

species of remuneration, of men and women workers in any

establishment, or employment is based on a factor other than sex, it

may, by notification, make a declaration to that effect, and any act of

the employer attributable to such a difference shall not be deemed

to be a contravention of any provision of this Act."

In exercise of powers under Section 16 of the Act a Notification

was issued on 15th June 1979 and published in Gazette of India dated

17th June, 1979 which reads as under:

"New Delhi, the June 15, 1979. S.O. 2258 - in exercise of the powers

conferred by Section 16 of the Equal Remuneration Act, 1976 (25 of

1976) the Central Government having considered all the

circumstances relating to, and terms and conditions of employment of

Air Hostesses and Flight Stewards, are satisfied that the

difference in regard to pay, etc. of these categories of employees

are based on different conditions of service and not on the

difference of sex. The Central Government, therefore, declares that

any act of the employer attributable to such differences shall not be

declared to be in contravention of any of the provisions of the Act."

It is to be noted that the aforesaid notification was issued in the

year 1979 much before the amendment brought in 1987 to Section 5

of the ER Act. The notification under Section 16 quoted above is

relevant for a different purpose. In Nargesh Meerza's case (supra)

- the Court recorded following conclusion in paragraph 67:-

"Thus, declaration is presumptive proof of the fact that in the

matter of allowances, conditions of service and other types of

remuneration, no discrimination has been made on the ground of sex

only. The declaration by the Central Government, therefore,

completely concludes the matter."

The Supreme Court on considering the challenge to the lower

retirement age of female members of the crew on board on the basis

of gender discrimination prohibited by Articles 15(1) and 16(2) of the

Constitution, observed thus:-

"The Articles of the Constitution do not prohibit the State from

making discrimination on the ground of sex coupled with other

considerations."

In Para 70, the conclusion recorded is thus:-

"For these reasons, therefore, the arguments of Mr. Setalwad that

the conditions of service with regard to retirement etc., amount to

discrimination on the ground of sex only is overruled and it is held

that conditions of service indicated above are not violative of Article

16 on this ground."

Having thus rejected the challenge to the lower retirement age

for female members of crew as the discrimination based only on sex,

Supreme Court struck down two service conditions which provided for

termination of services of Air hostesses on first pregnancy and

extension of service beyond 35 up to 45 only at the sweet will

and discretion of the Managing Director. The aforementioned

two service conditions were held to be unreasonable and arbitrary

hence violative of the Constitution. In Nergesh Meerza's case

(supra) the different retirement ages of male and female members

on board was upheld after examining the stand and justification

shown by the employer. The discussion and the conclusion reached for

upholding different ages of retirement of male and female employees

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on the Aircraft are contained in paragraphs 105 to 113 of the

judgment. The Court made a survey of retirement ages of male and

female members of the crew on board in different air lines all over the

world and on consideration of the stand of the employer with regard

to the fitness and efficiency of the members of crew of both sexes

observed thus :- 'there cannot be any cut and dry formula for fixing

the age of retirement which 'would always depend on a proper

assessment of the relevant factors and may conceivably vary from

case to case.'

The Court then relied on the award of Justice Mahesh Chandra

Tribunal and held that before the Tribunal the Air hostesses never

demanded that their age of retirement should be at par with the male

employees at the age of 58 years. The Award of the Tribunal was held

to be binding on the air hostesses. See the following observations in

paragraph 114:-

"We might further mention that even before the Mahesh Tribunal,

the stand taken by the Air hostesses was merely that their age of

retirement should be extended to 45 years and they never put

forward or suggested any claim to increase the retirement age to 58

which clearly shows that their present claim is not merely belated but

an afterthought particularly because the Mahesh Tribunal was dealing

with this particular grievance and if the Air hostesses were really

serious in getting their retirement age equated with that of the

Flight pursers, i.e. 58, they would not have failed to put forward this

specific claim before the Tribunal. This is yet another ground on

which the claim of the Air hostesses to be retired at the age of 58

cannot be entertained because as we have already shown the Award

binds the parties even though its period may have expired."

On 17.11.1993 Air India as the the employer and the members

of the AICCA representing both its male and female employees

entered into an agreement where under the category of Deputy Chief

Air hostess was reintroduced having its promotional avenues from

within the female cadre. The record note of the proceedings mentions

that existing avenues of promotion of the male cabin crew would

remain unaffected, the separate hierarchy among the various

categories would remain as at present and there would be no change

in the job functions of any category of cabin crew as a result of the

agreement.

It may also be mentioned that the Cabin Crew Manual which

provided for separate and distinct job functions and promotional

avenues to male and female cabin crew was challenged by one of the

Air hostesses, namely, Ms. A. Mulgaonkar in Writ Petition No. 490/84

in the High Court of Bombay. That petition was dismissed on

22.3.1984. Nargesh Meerza and four other Air hostesses challenged

the agreement containing the record note dated 17.11.1983 in the

High Court of Bombay in Writ Petition 116/84. The Court speaking

through the learned Sujata Manohar J.(as she then was) upheld the

legal validity of the agreement by its judgment dated 25.7.1984. The

Division Bench on 31.10.1985 also dismissed Appeal No.1068/84

preferred by the individual Air hostesses.

In the year 1987, Ms. Aquilia Mohan in WP 3091/86 again

challenged the lower retirement age of Air hostesses fixed under the

agreement. The Court held that the issue was barred by principle of

'constructive res judicata' in view of Nergesh Meerza's case

(supra). Appeal preferred was also dismissed.

In 1987 itself identical issues of the lower age of Air hostesses

was brought to this Court for reconsideration by Ms. Lena Khan in Writ

Petition No. 231/87. By judgment in Ms. Lena khan vs. Union of

India [1987 (2) SCC 402], a two Judges' Bench of this Court

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dismissed the petition on the ground that the three Judges' Bench

decision in Nergesh Meerza's case (supra) is binding on the

parties. In fact, in the case of Lena Khan, the principle grievance was

that Indian air hostesses are made to retire comparatively at younger

age than air hostesses on other international flights and Air lines of

other countries.

In the year 1988, fresh agreement was entered into between

employer Air India and AICCA where-under Air hostesses were to be

subjected to medical examination for assessing their fitness between

the age of 37 and 45 years. The bar on marriage was brought down

from four to three years. The number of posts of Senior Airhostesses

and Deputy Chief Airhostesses was increased.

In the year 1989 Air hostesses of India Air lines and Air India

filed a petition before the Petition Commiittee of the Lok Sabha

complaining discrimination in the retirement age and other service

conditions. The Petition Committee recommended that the different

retirement ages for male and female cabin crew members be

abolished and ban on marriage of Air hostesses should be completely

revoked. On 16.10.1989, the Central Government in exercise of

powers under Section 34 of the Air Corporations Act issued a direction

to the Air India that the male and female cabin crew members be

allowed to serve till the age of 58 years. Rival contentions have been

addressed on the import and effect of the Directives of the Central

Government and the efficacy of the subsequent clarification issued to

the same by letter dated 16.10.1989. The relevant parts of the letters

are, therefore, reproduced hereunder with some portions underlined

for the purpose of emphasis:

'To

The Managing Director, Air India,

Air India Bldg., Bombay

The managing Director, Indian Air lines,

Air lines House, New Delhi.

Subject: Discrimination against Air hostesses in Air India and

Indian Air lines - Decisions regarding

Sir,

I am directed to say that the question of removing

discrimination service conditions against Air hostesses in Air India

and Indian Air lines has been engaging the attention of the

Government for quite some time, after careful consideration, it has

been decided as under:

i) That like the male Cabin crew, Air hostesses in Air

hostesses in Air India and Indian Air lines should also be allowed

to serve till the age of 58 uears.

ii) That the air hostesses should be subject to medical

examination once a year after the age of 35 years, but such medical

examination shall not be called superannuation medical examination.

In addition, Air hostesses. Shall be subject to weight restriction

regime which shall be very strictly observed and for which suitable

executive instructions and guidelines may be drawn.

iii) That no marriage by the Air hostesses within the years of

joining service shall be removed.

2. You are requested to implement the above decisions of the

Government with immediate effect under intimation to this Ministry.

3. A compliance report of the action taken may please be

submitted to this Ministry within a week.

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4. Please acknowledge receipt of this letter.

Yours faithfully

Sd/- JR Nagpal

Under Secretary to the Govt. of India

[Underlining by Court]

On receipt of the above letter the employer Air India wrote a

detailed letter making a mention of various agreements and

settlements reached between the employer and employees with

regard to the age of retirement and conditions of service of Air

hostesses and FPs. It made a request for reconsideration of the

Directive which might be understood to allow flying duties to Air

hostesses at par with males' up to the age of 58 years. The relevant

part of the letter of Air India addressed to the Joint Secretary of

Government of India dated 15.12.1989, in response to the Directives

issued in the letter dated 16.12.1989, also needs reproduction for

proper understanding of the Directives of the Central Government and

the subsequent clarification issued by the Central Government.

"HQ/65-6/6719 15.12.1989

The Joint Secretary to the Govt. of India

Ministry of Civil Aviation & Tourism

New Delhi.

Kind attn: Shri Ravindra Gupta

Discrimination against Air hostesses in Air India and Indian

Air lines - Decision Regarding

Please refer to the Ministry's letter No.AV.18022/23/88-

ACCIA dated October 16, 1989:-

.......................................

......................................

......................................

It may be pointed out that, as indicated above, all these issues

relating to service conditions of hostesses are subject matters of

settlement, understanding award and as such the question of

implementing the government decision on the retirement age of

hostesses cannot and should not be considered in isolation. The

matter requires to be examined in all its aspects, particularly

repercussions it may give rise to and also to be discussed with the

union for arriving at a mutual settlement.

In view of the position explained above, the matter requires a

further thorough review by the government. For the reasons stated,

we are also proposing to begin a dialogue with the AICCA with a view

to coming to an understanding with them on the various issues

detailed above. This will also be on the clear understanding that the

government decision relates to increase in age of retirement to 58

years and not on flying duties after the age of 35 years, and the

deployment of the hostesses after 35 years in alternate jobs would

be left to the discretion of the management. As regards the

hostesses who are desirous of availing of the option available to them

under the existing provisions viz., retirement any time between the

age of 35 and 45 years, they may be allowed the option for which a

cut off date would be fixed.

We shall be grateful for immediate confirmation of the

position state above.

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Yours faithfully,

AIR INDIA

SD/-

[J.R. Jagtap]

Secretary & Dy. Director - Admin.

In reply to the above letter of the employer Air India, the Joint

Secretary of Ministry of Civil Aviation and Tourism, Department of Civil

Aviation, Government of India wrote on 29.12.1989 and informed that

the subject was reviewed and it is clarified that the age of retirement

of Air hostesses would be 58 years but at the age of 35 the Air

hostesses may be given suitable alternate jobs on ground till they

attain the age of 58 years. The relevant part of the clarificatory letter

dated 29.12.1989 also deserves full reproduction as the learned

counsel for the respondent Association has seriously questioned the

legal effect of the same.

Joint Secretary

Ministry of Civil Aviation & Tourism

Department of Civil Aviation,

Government of India,

New Delhi.

Ravindra Gupta

Phone : 352300

December 29, 1989.

My dear Rajan,

Please refer to letter No. HC/65/6/6719 dated 15th

December, 1989 from Secretary & Dy. Director, Admn., (Shri J.H.

Jagtap) regarding discrimination against airhostesses in Air India and

Indian Airlines.

2. The matter has been reviewed and it is clarified that the

increase in age of retirement to 58 years does not specify

the job functions after the age of 35. Airhostesses may

be given suitable alternate jobs till they attain 58 years of

age. Further, on being given alternate jobs there is no question

of annual medical check up. The government feels that the

male cabin crew as well as airhostesses should turn out

attractively and the management may explore the possibility

of prescribing suitable medical examination and weight regime

for both types of cabin crew.

3. As regards problems of salary grades, job functions,

promotion, etc., the management must sort them out and

negotiate suitable agreements with the concerned Unions.

With best wishes,

Yours sincerely,

Sd/-

Ravindra Gupta

Shri Rajan jetley

Managing Director

Air India,

Air India Building,

Bombay 400 021.

[Underlining by Court]

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After receipt of the above clarificatory letter on 2.11.1990 Air

India issued a circular that Senior Air hostesses who have attained

the age of 45 years would be offered suitable positions on ground. A

further circular was issued by Air India on 5.11.1991 for modifying a

certain portion of the earlier circular dated 2.11.1990 which provided

for assignment of duties on ground to the Air hostesses at the lowest

level.

On 19.10.1992 Writ Petition filed by the respondent Air India

Air hostesses' Association in the Bombay High Court was admitted by

the Division Bench. On 12.1.1993 Air India issued an office order

extending the age of Air hostesses for flying duties up to 50 years to

meet the requirement of the employer and subject to their medical

fitness for flying duties. Air Corporations Act 1953 was repealed by

Air Corporation transfer of (Undertaking and Repeal) 1984. By the

New Act, Air India and Indian Air lines became two separate and

distinct Companies under the Companies Act 1956. After the

Corporation became the Company a fresh agreement was entered into

between the Air India Company and the appellant AiCCA on

17.3.1995 where under interchangeability of job functions of male and

female members of the crew was agreed only for new entrants without

in any way affecting the service conditions and promotional chances

of the existing members of the cabin crew. It is to be noted that the

agreement of 17.3.1985 makes it clear that pre 1997 recruits would

continue to be governed by their existing service conditions, which did

not provide for interchangeability of job functions.

A formal memorandum of settlement was reached between the

appellant AICCA and Air India on 5.6.1997 where under all earlier

settlements, awards, record notes and understandings reached when

the employer was a Corporation were agreed to be continued as

applicable. A revised promotion policy for cabin crew was brought into

effect from 7.6.1997. It is at this stage that a small number of about

53 air hostesses, who were near about the age of 50, which included

those promoted to executive cadres for ground duties or who were at

the verge of retirement from flying duties, formed an Association in

the name of Air India Air hostesses Association (main contesting

respondent in these appeals). They filed Writ Petition 932/97 in the

Bombay High Court seeking a declaration that the settlement dated

5.6.1997 entered into between Air India as a newly incorporated -

Company and appellant Association of which majority of Air hostesses

of workmen category numbering about 684 are members, is not

binding on the respondent Air hostess working in the executive cadre

who fall outside the definition of 'workmen' under the Industrial

Disputes Act. In order to assert and protect their distinct interest as

Air hostesses in executive cadre they also got themselves impleaded

as a party in a pending reference before the National Industrial

Tribunal and submitted their claims on the question of laying down

revised terms and conditions of the employees of Indian Airlines and

Air India.

In the pending dispute before the National Industrial tribunal the

respondent Association had raised the issues of merger and

interchangeability of job functions between male and female cabin

crewmembers. The majority of the Air hostesses who were still on

flight duties made a joint representation on 20.6.1988 to the Air India

stating that they are unwilling to give up their benefits granted to

them under settlements and agreements or awards treating them in

separate and distinct cadre. They also protested against loss of

seniority to flight pursers. They insisted on their right of early

retirement with option to serve on ground till the age of

superannuation at par with males. They opposed merger of two

cadres of air hostesses and flight pursers. The Writ Petition No.

932/77 filed by the respondent/association seeking declaration that

the settlement dated 5.6.1997 entered into with the appellant is not

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binding on them was dismissed by the Division Bench of Bombay on

08.7.1997. Second Writ Petition No. 1473/99 was also decided on

14.9.99 against the respondent/association holding that the two

companies i.e. Indian Air lines and Air India are separate entitles

after the Air Corporation Act, 1953 was repealed and substituted by

Repealing Act of 1994. It was held that the members of the crew of

two companies cannot be treated as one class.

It is at the above stage, that Writ Petition No. 1163 of 2000,

which has given rise to this appeal, came to be filed in the High Court

of Bombay by the respondent/association with membership of

minority of air hostesses working in executive cadre. The

appellant/AICCA filed a Caveat for being made a party but the High

Court only allowed intervention to them. Both the employer Air India

and the appellant/AICCA as intervenor before the Bombay High Court

took a stand in their affidavits that interchangeability between male

and female members of the crew has been agreed only for post 1997

recruits and not for pre-1997 recruits. In the long course of hearing

before the Bombay High Court, it appears that Air India as employer

was encouraged to make proposals for removing alleged

discrimination in conditions of service between males and females

members of the cabin crew. Two sets of proposals were submitted by

Air India. It was proposed that if all pre-1997 recruits also claim

similar conditions of service and same retirement age of 58 years at

par with males from flying duties, the two cadres of air hostesses and

flight pursers should be merged and their service conditions be

suitably readjusted to bring them at par for future prospects. The

seniority inter se between them was proposed to be re-fixed by

nullifying the effect of accelerated promotion already earned by air

hostesses with the higher allowances given to them. It is on these

proposals that the High Court in the impugned judgment has put its

signature and seal of approval giving a go bye even to certain

conditions subject to which only the proposal was made. Recording of

such consensual order was stiffly opposed by the appellant/AICCI

which claims to be the only recognised employees union having the

largest number of air hostesses as its members. We are told that

there are in all about 1138 air hostesses in Air India of which 684 are

members of the appellant/AICCA being in the workmen category. Only

a small number of remaining 53 air hostesses, who are in the age

group of near about 50 and working in executive posts and since

falling outside the definition of 'workmen' have formed a separate

association in the name of Air India Air hostesses Association

[respondent herein]. They are ventilating their grievances and

agitating for rights of parity in the conditions of service and age of

retirement on flying duties with males. It is submitted by AICCA that

these air hostesses are unmindful of the interest of the larger number

of air hostesses who are of workmen category and have agreed for

an early retirement age from flying duties under various agreements,

settlements and awards of which mention has already been made

above.

The High Court of Bombay passed the impugned judgment

dated 20/23.8.2001 whereby it accepted the conditional proposal of

merger of cadres of male and female members of cabin crew and held

that air hostesses are also entitled to retirement age of 58 years on

flying duties at par with flight pursers and other members of the cabin

crew. The operative part of the judgment of the Bombay High Court

and the contents of the proposals of the Air India, as have been

accepted by the High Court under its seal and signature and recorded

in its judgment, have already been reproduced above.

After hearing the arguments advanced by the learned senior

counsel for appellants at length and after giving due consideration to

the submissions made by the learned senior counsel appearing for the

respondent/association of air hostesses, we deal with the rival

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contentions of the contesting parties under distinct Heads.

Constitutional Provisions.

Article 14 of the Constitution mandates that the State shall not

deny to any person equality before the law or the equal protection of

the laws within the territory of India. Clauses (1) and (2) of Article 15

prohibit State from discriminating any citizen on grounds only of

religion, race, caste, sex, place of birth or any of them. Article 16

which contains fundamental right of equality of opportunity in matters

of public employment, by sub-clause (2) thereof guarantees that "No

citizen shall on grounds only of religion, race, caste, sex, descent,

place of birth, residence or any of them, be ineligible for, or

discriminated against in respect of, any employment or office under

the State".

Article 16(2) prohibits discrimination only on sex but clause 3

of Article 15 enables the State to make 'any special provision for

women and children'. Article 15 and 16 read together prohibit direct

discrimination between members of different sexes if they would have

received the same treatment as comparable to members of the

opposite gender. The two Articles do not prohibit special treatment of

women. The constitutional mandate is infringed only where the

females would have received same treatment with males but for

their sex.

In English law 'but for sex' test has been developed to mean

that no less favourable treatment is to be given to women on gender

based criteria which would favour the opposite sex and women will

not be deliberately selected for less favourable treatment because of

their sex. It is on this 'but for sex' test, it appears in Nergeshh

Meerza's case (supra) the three Judges' Bench of this Court did not

find the lower retirement age from flying duties of air hostesses as

discrimination only based on sex. It found that the male and

females members of crew are distinct cadres with different conditions

of service. The service regulation based on the agreements and

settlement fixing lower retirement age of air hostesses was not struck

down.

The constitutional prohibition to the State not to discriminate

citizens only on sex, however, does not prohibit a special treatment to

the women in employment on their own demand. The terms and

conditions of their service have been fixed through negotiations and

resultant agreements, settlement and awards made from time to time

in the course of industrial adjudication. Where terms and conditions

are fixed through collective bargaining as a comprehensive package

deal in the course of industrial adjudication and terms of service and

retirement age are fixed under agreements, settlements or awards,

the same cannot be termed as unfavourable treatment meted out to

the women workers only on basis of their sex and one or the other

alone tinkered so as to retain the beneficial terms dehors other offered

as part of a package deal. The twin Articles 15 and 16 prohibit a

discriminatory treatment but not preferential or special treatment of

women, which is a positive measure in their favour. The Constitution

does not prohibit the employer to consider sex in making the

employment decisions where this is done pursuant to a properly or

legally chartered affirmative action plan. We have taken a resume of

several agreements, settlements and awards made after negotiations

from time to time and periodically, between Air India and the AICCA

being the recognised association with majority of male and female

cabin crew members. In all the demands, it insisted on maintaining

two separate cadres for pre-1997 recruits and agreed for early

retirement age to air hostesses compared to males from flying duties

with option to go for ground duty between 50 to 58 years of age. In

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the course of industrial adjudication through conciliation and

negotiation the employer could legitimately acknowledge women's

perspective, their life experience and view point. After giving

consideration to the same, the employer could agree for terms and

conditions which suited the air hostesses.

The condition of service agreed by majority of air hostesses is

that they would prefer to retire from flight duties on international

flights at the age of 50 years or opt for ground duties after 50 years of

age up to the age of 58 years at par with males so that at least in

some period of their service they may not remain away for long

periods from their homes and families and would be able to discharge

their marital obligations. This term and condition of service fixing age

of retirement from flying duties with option to go for ground duties

cannot be said to be a discriminatory treatment given by employer to

the air hostesses only on the basis of their sex. Such terms and

conditions are fixed after negotiating with them and on that basis an

agreement and settlement have been reached between them which

are now part of statutory regulation under Air Corporation Act of

1953 and standing orders certified under Industrial Employment

Standard Standing Order Act.

In employment requiring duties on Air craft, gender-neutral

provisions of service may not be found necessarily to be beneficial for

women. The nature of duties and functions on board of an Air craft do

deserve some kind of a different and preferential treatment of women

compared to men. The early retirement age from flying duties at the

age of 50 year with option to go for ground duties has been found to

be an agreeable and favourable condition by majority of air

hostesses. On that basis, written settlements and record notes were

entered into and signed by employer and AICCA representing the

majority of male and female members of cabin crew.

A small number of air hostesses nearing the age of 50 years

and who are now in executive cadre cannot wriggle out of the binding

agreements and settlements to which they were parties through the

association. Only because they have now earned promotions and are

working in executive posts, which fall outside the definition of

'workmen' under Industrial Disputes Act, they cannot be permitted to

question the agreements, settlements and awards which continue to

bind them on the age and condition of retirement and allowed to seek

for unilateral alteration of the same to the detriment of the majority of

the members and against their wishes and interest.

It is surprising that the High Court in the impugned judgment

completely side-stepped the legal issues firmly settled in the decision

of three Judges' Bench of this Court in Nergesh Meerza's case

(supra) which were binding on it. By impugned judgment, the High

Court has indirectly nullified the effect of this Court's decision in case

of Nergesh Meerza (Supra) and in doing so relied on subsequent

event. The subsequent event is that for fresh recruits after 1997 in

the services of Air India, which is now a company formed under the

Air Corporation Act of 1994, the male and female cabin crew

members have been merged into a common cadre with uniform

service conditions. Recourse to this subsequent event could not be

made to water down the binding effect of judgment of this Court in

Nergesh Meerza's case (supra). The subsequent event would not

have changed the pre-1997 condition of service of male and female

members of the cabin crew. How could the High Court in its judgment

observe that 'the differences in qualification, pay, promotional

avenues and other conditions of service between male and female

cadres of the crew have been obliterated' only because for fresh

recruits the cadres have been merged after 05.6.1997. We totally

disapprove the reasoning and conclusions of the High Court in the

impugned judgment that differential treatment which was justified

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earlier when Nergesh Meerza's case (supra) was decided, 'has

become arbitrary and unreasonable because of the passage of time

and merger of cadres' after 1997. How could the High Court lose sight

of the fact that apart from the binding decision of this Court in

Nergesh Meerza's case (supra), air hostesses of executive cadre,

who were all pre-1997 recruits, were bound, with majority of air

hostesses of workmen category, by the agreements and settlements

as also awards reached between them and the employer/Air India.

The High Court, we must say, acted against judicial discipline in

taking a view in favour of respondent/association on an erroneous

basis that with the passage of time differences in service conditions

between male and female cadres have been obliterated and the

decision of the Nergesh Meerza's case (supra) does not bind the

High Court from making a declaration that lower retirement of air

hostesses from flying duties is a discrimination based only on sex

which is violative of Articles 15 and 16 of the Constitution.

The High Court then proceeded to adopt a strange procedure

unknown to law by eliciting from employer - Air India concrete

proposals for bringing about parity in retirement age and other

conditions of service of male and female members of the cabin crew.

To make it worse the plea to implead the majority recognised union

was not only denied but were merely made to intervene and the High

Court seem to have relegated deliberations relating to the proposals to

be submitted to the responsibility of the management, unmindful of

the serious and adverse impact which the ultimately altered conditions

of service inevitably are bound to have on the majority who are not

made parties to the proceedings. The High Court was aware that

there were agreements, settlements and awards laying down different

terms and conditions of female and male cadre. It was also aware of

the decision of this Court in Nergesh Meerza's case (supra)

wherein it was held that air hostesses and flight pursers constitute

two different cadres justifying fixation of different service conditions

and ages of retirement from flying duties. The High Court could not

have, therefore, adopted a wholly impermissible course of accepting

and putting its seal and signature on the conditional proposal of the

employer dehors even the conditions stipulated for the offer that the

air hostesses can be granted same retirement age of 58 years from

flying duties at par with flight pursers provided they agree for merger

of two cadres and withdrawal of all earlier benefits available to them

such as accelerated promotions, higher seniority, higher allowances

and better pensionary benefits. How could the High Court forget that

at the instance of a very small number of air hostesses in executive

cadre, it was accepting conditional proposal of employer and thus,

prejudicially affecting majority of air hostesses of workmen category

who were bound and satisfied with the agreements, settlements as

also awards made between their association and the employer from

time to time.

The High Court also gave no importance to the fact that the

industrial dispute on refixation of terms and conditions of the

employees of Indian Airlines as the newly formed company was

pending adjudication before the National Industrial Tribunal in which

notices have been issued to Air India and its employees and their

associations. It is not disputed that employees of Air India through

different associations including the appellants and the

respondent/association have submitted their claims before the

Tribunal. In such a situation the High Court ought to have rescued

itself from undertaking a parallel exercise of fixing terms and

conditions of male and female employees of Air India. On basis of self

serving proposals made by the employer and despite strong protest

raised against it by the appellant/AICCA, which represents the

majority members of the males and females cabin crew of Air India,

the High Court could not have accepted the proposals of the employer

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and varied the terms and conditions of pre-1997 recruits of Air India

by directing merger of male and female cadres. The High Court thus

has nullified the binding agreements, settlements and awards and

frustrated the adjudication of disputes pending before the National

Industrial Tribunal to which Indian Air lines and its employees are

parties and Air India and its employees through their association have

been summoned to participate.

On behalf of the respondent/association reference has been

made to Article 51-A(e) of the Constitution. It is submitted that air

hostesses are selected for their youth and looks hence, retired earlier

than males which is a practice derogatory to women. It runs contrary

to the fundamental duties of a citizen laid down in Article 51-A(e) of

the Constitution.

We have already found above that early retirement age fixed for

women for flying duties with option to them to go after 50 years of

age to ground duties is a condition of service fixed after negotiations

and settlements with association of air hostesses represented by

AICCA with appropriately matching numerous advantages and

betterment to match them . We have also found that early retirement

age for women from flying duties has been found favourable by

majority of air hostesses represented through the appellant/AICCA

before us who support the age of retirement and option for ground

duties given to them. Air India is a travel industry. Pleasing

appearance, manners and physical fitness are required for members of

the crew of both sexes. The air hostesses have agreed to the early

retirement age, as they need an option to go for ground duties after

the age of 50 years. The arguments advanced on behalf of

respondent/association, therefore, cannot be accepted that the air

hostesses are made to retire at an age earlier than males because of

their failing physical appearance and it is a practice derogatory to the

dignity of women. For services on board of an Air craft both male and

female members of the crew are expected to be smart, alert and agile.

The early retirement age of 50 years from flying duties for

female members of the crew with an option to them to accept ground

duties beyond 50 years up to the age of 58 years being a service

condition agreed to and incorporated in a binding agreement or

settlement and award reached with the employer, the same cannot

be held to be either arbitrary or discriminatory under Articles 15 and

16 of the Constitution. It is not a discrimination against females only

on ground of sex. As a result of the impugned judgment of the High

Court, there would be merger of two cadres of air hostesses and flight

pursers and the air hostesses would have to compulsorily continue on

flying duties up to the age of 58 years even though for health and

family reasons they are unable to fly after the age of 50 years. On the

order of the High Court and after the merger of cadres of male and

female employees, the females have to resign from their jobs if they

do not want to fly up to the age of 58 years. The order of the High

Court requires the air hostesses to give up their more advantageous

conditions of service for which they had held negotiations with the

employer and obtained binding settlements and awards in the course

of industrial adjudication.

The decision in Nergesh Meerza's case (supra) was binding on

the High Court. The High Court was clearly wrong in holding that it

had become inapplicable by passage of time. It is not open to a High

Court to indirectly overrule a judgment of this Court or try to sidetrack

it on the basis of subsequent events which were not relevant for pre-

1997 recruits. The separation of male and female cadres with

differences in their conditions of service, seniority, emoluments and

allowances remained unchanged for pre-1997 recruits and the merger

has taken place only for male and female new recruits after 1997.

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For the aforesaid reasons, we do not find that the conditions of

services applicable to the air hostesses both presently working in air

or on ground are discriminatory under Articles 14, 15 and 16 of the

Constitution.

Equal Remuneration Act, 1976.

In the impugned judgment, the High Court has also held that the term of

service fixed by Air India to retire air hostesses at the age of 50 years or

grounding them on alternative jobs is also discriminatory treatment to them on

sex which violates section 5 of the Equal Remuneration Act, 1976 [for short,

'the E.R. Act of 1976']. The High Court also took note of the fact that there

existed a declaration under section 16 of the E.R. Act of 1976 that differences

with regard to remuneration of air hostesses compared to flight pursers is 'on

factors other than sex'. Yet in the opinion of the High Court such a declaration

was made before amendment introduced to the provisions of section 5 of the

E.R. Act of 1976 and would not save the terms and conditions of retirement of

air hostesses fixed at lower age compared to males from the vice of section 5

of the E.R. Act of 1976.

We have already extracted above the amended section 5 of the

E.R. Act of 1976. Section 5 as amended not only prohibits employer

from making discrimination based on sex in the matter of recruitment

for 'same work or work for a similar nature' but even discrimination

on that 'basis in conditions of service subsequent to the recruitment'.

The challenge to the fixation of lower retirement age of air

hostesses compared to the flight pursers was also a ground of

challenge in the case of Nergesh Meeza (supra) and this Court

came to the conclusion that terms and conditions of service of flight

pursers and air hostesses are not 'same or of similar nature' as they

constitute two different cadres with different methods of recruitment,

salary structure, promotion avenues and terminal benefits. This Court

also took into consideration the declaration made under section 16 of

the E.R. Act of 1976 and held that such a statutory declaration

reinforces the conclusions that nature of work of air hostesses and

flight pursers is not same or of similar nature as they constitute two

different cadres with different conditions of service. The declaration

made under section 16 was made much before amendment of section

5 of the E.R. Act of 1976. It, however, clearly mentions that "the

differences in regard to pay etc., of these categories of employees

are based on different conditions of service and not on the ground of

sex."

We have already made a reference to the various agreements,

settlements and awards entered into between employer and

employees. For a long period, after Air India Corporation became a

company under the Air Corporation Act of 1994 [for short 'the Act of

1994], the different terms and conditions of service of air hostesses

and male members of the crew continued till the year 1997 when the

two cadres were merged for fresh recruitment. In such a situation

even though declaration under section 16 was made and notified on

15.6.1979 i.e. before amendment introduced to Section 5 of the E.R.

Act of 1976 by Amendment Act of 49 of 1987, the said declaration

which is taken note of and relied in the decision in Nergesh Meeza's

case of this Court clearly indicates that the Central Government did

record its satisfaction that the differences in remuneration and

conditions of service of male and female members of the crew were

not based only on the ground of sex. We have noticed above that

differences in conditions of service of the two cadres remained

unchanged till the year 1997. The factual foundation of the

declaration under section 16 of the E.R. Act of 1976, therefore,

remains unshaken and the declaration has not lost its efficacy on

amendment introduced to section 5 in the year 1997. There has been

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no change in the service conditions of pre-1997 recruited air

hostesses, after their recruitment. Section 5 of the Act of 1976 can

only be invoked against discriminatory treatment to women

compared to men where between them the 'nature of work is same

or of a similar nature' and after recruitment there has been a

change in conditions of service of women only on the ground of

sex.

Neither in the decision in the case of Nergesh Meeza (supra)

nor by us, it has been found that a lower retirement age for air

hostesses has been fixed on the ground only of their sex. We have

already held, while discussing the constitutional validity of fixation

of lower age of retirement of air hostesses with option to them to

accept ground duties after that age, that this condition of service

was agreed after negotiations in the course of industrial adjudication

by the air hostesses through their association. Such terms and

conditions willingly agreed to by them are binding on them and

cannot be questioned on the basis of provisions of section 5 of the

E.R. Act of 1976. They cannot be described as discriminatory

conditions of service on the basis of sex alone. In this respect, it is

relevant to notice the provisions of section 15 and particularly clause

a) and sub-clause (ii) of clause b) of section 15 of the E.R. Act of

1976 which are also introduced by Amendment No. 49 of 1987.

Section 15 of the E.R. Act of 1976 reads thus :-

"15. Act not to apply in certain special cases.- Nothing in this Act

shall apply -

a) to cases affecting the terms and conditions of a woman's

employment in complying with the requirements of any law giving

special treatment to women, or

b) to any special treatment accorded to women in connection with -

i) the birth or expected birth of a child, or

ii) the terms and conditions relating to retirement,

marriage or death or to any provision made in connection

with the retirement, marriage or death.

[Underlining by us]

The term and condition of age of retirement settled in course of

industrial adjudication by air hostesses through their associations is a

term and condition of their employment fixed in accordance with the

adjudicatory machinery provided in Industrial Law. It gives them a

special treatment as found by them to be favourable to them. We

have already noticed that there is nothing objectionable for the air

hostesses to agree for a lower retirement age from flight duties with

option for grounds duties after the age of 50 years up to the age of

58 years. Duties on flight demand of air hostesses physical fitness,

agility and alertness. Duties in air are full of tension and sometimes

hazardous. They have, therefore, agreed for comparatively early age

of retirement with option to accept duties on the ground. There is

nothing objectionable for air hostesses to wish for a peaceful and

tension-free life at home with their families in the middle age and

avoid remaining away for long durations on international flights. This

view point has been projected before us on their behalf by learned

counsel appearing for AICCA and other appellants.

A service condition giving a special treatment to women is

saved by clause a) of Section 15 of the E.R. Act of 1976. It is also

saved by sub-clause (ii) of clause b) of the said section which allows

special treatment to women in terms and conditions of service

relating to retirement. We, therefore, hold that the early age

retirement policy of airhostesses in Air India does not contravene

Section 5 of the E.R. Act of 1976 and otherwise, it is saved by section

15 (a) and 15 (b) (ii) of the E.R. Act of 1976. The challenge,

therefore, to the terms and conditions of early retirement of air

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hostesses and option to them to go for ground duties up to the age of

58 years, fails. These terms and conditions are now part of Statutory

Regulations w.e.f. 30.3.2000, framed under Air Corporation Act and

Standing Order framed under Industrial Employment (Standing

Order) Act, 1946 w.e.f. 21.10.2000.

The Air Corporations Act, 1953.

The High Court in the impugned judgment has also set aside

the conditions of service providing lower age of retirement for air

hostesses as compared to flight pursers on the ground that such

terms and conditions of service are in clear contravention of the

mandatory direction issued by the Central Government on

16.10.1989 in exercise of powers under section 34 of the Air

Corporations Act, 1953 [for short 'the Act of 1953].

On this aspect, the High Court held that the subsequent

clarificatory letter of Joint Secretary of Central Government dated

29.12.1989, cannot be read as virtually nullifying the effect of the

direction dated 16.10.1989. The clarificatory letter is held to be per

se discriminatory.

We have already reproduced above fully the contents of the

directions dated 16.10.1989 and relevant part of the letter dated

15.12.1989 of Air India addressed to the Ministry of Civil Aviation

seeking clarification on the direction dated 16.10.1989. The full

contents of the alleged clarificatory letter dated 29.12.1989

addressed by Shri Ravindra Gupta, Joint Secretary, Ministry of Civil

Aviation to shri Rajan Jaitly, Managing Director, Air India Limited

have also been reproduced above.

Section 34 of the Act of 1953 enables the Central Government

to give directions to the Corporation on "the exercise and

performance by the Corporation of itss functions. The Corporation is

bound to give effect to such directions". In the case of Air India vs.

B.R. Age [1995 (6) SCC 359], this Court has held that the power

to issue directions regarding "exercise and performance by the

Corporation of its functions" includes power to make directions for

regulating terms and conditions of services of officers and servants of

the Corporation. The valid exercise o power under Section 34(1) of

the Act of 1953 and its mandatory effect on Air India, therefore,

cannot be questioned.

On behalf of the respondents/associations, in these appeals, it

is contended that the said letter dated 29.12.1989 is a personal letter

from Joint Secretary, Ministry of Civil Aviation to Managing Director,

Air India Limited and cannot be treated as a directive under Section

34 of the Act of 1953. It is also argued that the said clarificatory

letter cannot be treated as a letter of the Central Government

clarifying or modifying its original directions dated 16.10.1989 in

which there are clear instructions to Air India and Indian Airlines that

the air hostesses should be allowed to serve with male members of

cabin crew up to the age of 58 years. The High Court held that these

directions have to be construed as meaning that flight duties be

allowed to air hostesses at par with male members of the crew up to

the age of 58 years.

By its letter dated 15.12.1989, Air India brought to the notice

of the Central Government the separate terms and conditions of

service of two distinct cadres of flight pursers and air hostesses which

were fixed under various agreements, settlements and awards. It

then requested Central Government to review its directions in the

light of the settlements, understandings and awards entered by the

employer with the air hostesses. A clarification was sought by Air

India stating that even if the retirement age of both male and female

members of the cabin crew are brought at par to be 58 years

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whether it would be necessary to give the air hostesses flight duties

up to the age of 58 years or under the then existing conditions

agreed to by air hostesses, they can be grounded for alternate job at

the age of 35 years. It was informed that the air hostesses may be

given suitable alternate job till they attain the age of 58 years.

On behalf of the respondent/association, learned senior counsel

contended that the clarificatory letter addressed by Joint Secretary,

Ministry of Civil Aviation in his personal capacity to Managing

Director, Air India Limited is ineffectual in either modifying or

clarifying the main direction of the Central Government issued on

16.10.1989 and which in very categorical terms directs

superannuation age of air hostesses to be 58 years which means

flying duties to air hostesses has to be allowed till 58 years of age at

par with males.

Separate appeals against the impugned judgment of the High

Court [CA Nos. 4584-4592 of 2002] have been preferred by the

employer/Air India Limited and by Union of India [CA Nos. 4571-4578

of 2002] questioning the correctness of the view taken by the

Bombay High Court in its judgment on the meaning and effect of

directions issued under Section 34 of the Act of 1953. Both the

learned senior counsel appearing for the Air India and Union of India

have taken a consistent stand that the letter of clarification dated

29.12.1989 issued by the Joint Secretary was a decision of the

Central Government taken in accordance with rules of business with

due approval of Minister-in-charge of the Civil Aviation Ministry. The

High Court took a view that letter dated 29.12.1989 is not in itself a

direction under section 34 of the Act of 1953 merely on the format of

the same though there is no particular prescribed format for issuing

such direction. It clarifies the meaning and effect of the original

letter issued by the Central Government on 16.10.1989. In this

Court, the stand taken by Union of India is that the letter of

clarification dated 29.12.1989 is also a direction under section 34 as

was the original directive issued on 16.10.1989. Since the directive

issued under Section 34 of the Act of 1953, is of the Central

Government, it is the Central Government which can affirmatively

and with certainty say whether the letter dated 29.12.1989 be read

as a separate directive or a clarification. There is affidavit of Union of

India filed before the High Court in which it is specifically asserted

that alleged clarificatory letter dated 29.12.1989 emanated from the

Central Government and was not a personal letter of the Joint

Secretary. The records produced by Union of India before the High

Court as well as in this court amply demonstrate that both direction

dated 16.10.1989 and letter dated 29.12.1989 were issued for the

Central Government with the specific approval of the then Minister of

Civil Aviation. The relevant contents of the affidavit filed before the

High Court on behalf of the Central Government reads thus :-

"For the sake of abundant caution, I reiterate that the first

directive dated 16.10.1989 was issued under section 34 of the Air

Corporations Act, 1953, and that the second directive dated

29.12.1989 was issued under the provisions of the said section 34 of

the said Act in clarification of the earlier first directive, and in the

premises the second directive had to be mandatorily implemented by

Air India Corporation as it was then known.

In our opinion, the above affidavit should be held to be decisive

with regard to the effect and efficacy of the clarificatory letter dated

29.12.1989. The direction of the Central Government under Section

34 of the Act of 1953 have to be understood on the basis of both the

communications dated 16.10.1989 and 29.12.1989. Reading them

together the directive can only be construed to mean that the air

hostesses have to be continued in service up to the age of 58 years

and as per the terms and settlements reached between the parties

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they can be assigned ground duties at their option after retirement

from flight duties at the age of 45 years which is now raised to 50

years.

In the course of argument, learned senior counsel appearing for

the appellants/associations also made a reference to Article 77 of the

Constitution of India which requires every executive action of the

government to be expressed to have been taken in the name of

President.

In our opinion, reference to Article 77 is wholly inappropriate.

The exercise of statutory power under section 34 by the Central

Government, even though not expressed to have been taken in the

name of President, does not render it invalid. Clause 2 of Article 77

insulates an executive action of the government formally taken in

the name of President from challenge on the ground that it is not an

order or instrument made or executed by the President. Even if an

executive action of the Central Government is not formally expressed

to have been taken in the name of President, Article 77 does not

provide that it would, therefore, be rendered void or invalid. We

need not, therefore, deal with the argument advanced on the basis of

Article 77 of the Constitution because the respondent/association

itself is relying on the directive dated 16.10.1989 of the Central

Government which is not formally expressed in the name of

President in terms of Article 77 of the Constitution.

We have already dealt with the challenge made to the

retirement of the air hostesses from flight duties at the age of 50

years and grounding them thereafter up to the age of 58 years. We

have held that the conditions of retirement are not a discrimination

based only on sex. The directives issued by the Central Government,

therefore, also cannot be held to be in any manner in violation of

Articles 14, 15 and 16 of the Constitution or the provisions of Equal

Remuneration Act, 1976.

Effect of pending reference no. 1 of 1990 before the National

Industrial Tribunal.

We have already held above that the High Court committed a

serious error of procedure and law in entertaining proposals from the

employer - the Air India Limited and accepting them as consented by

all parties, to make it as a part of its judgment. We have already held

that Nergesh Meerza's case (supra) was binding on the High

Court and could not have been sidetracked by observing that by

passage of time the cadres of flight pursers and air hostesses have

virtually been merged and the distinction between them has been

obliterated. We have also held that such conclusion on the part of the

High Court is not borne out from the facts on record. The two cadres

of males and females on cabin came to be merged only after the year

1997 for fresh recruits and the conditions of service and distinction

between two cadres continued with regard to the existing cabin staff

up to the year 1997. The impugned order of the High Court is self-

contradictory. It holds that with passage of time the distinction

between two cadres and their conditions of service have been

obliterated and at the same time, it allows the employer/Air India to

make proposals for merger of cadres and interchangeability on all

allied matters. Before the High Court, there was neither any

pleadings nor materials placed by any of the parties to undertake the

exercise of merging of two cadres.

It is true that the pending dispute before the National

Industrial Tribunal is between employees of Indian Airlines and its

employer but there is ample material on record to show that Air India

and its important employees' associations have been noticed to

participate in the pending dispute before the National Industrial

Tribunal. It is also on record that statements of claims have been

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submitted by appellants/All India Cabin Crew Association as also by

the respondent/association. The respondent/association, only after it

succeeded in the petition before the High Court and could get a

favourable judgment, which is subject matter of these appeals before

us, withdrew their claims from the National Industrial Tribunal. When

the matter of fixing the terms and conditions of employees of Indian

Airlines, in which Air India and its employees had also been noticed,

was pending before the National Industrial Tribunal, it was wholly

uncalled for the High Court to have allowed the employer to come

forward with proposals for creating parity in age of superannuation

between air hostesses and flight pursers only on the condition of

merging of the two cadres with withdrawal of all earlier benefits

conferred on air hostesses like accelerated promotions, higher

salaries, higher allowances and pension packages. Proceedings under

Article 226 of the Constitution, are neither appropriate nor a

substitute of industrial adjudication in the industrial courts and

tribunals constituted in industrial law. In our opinion, the High Court

was clearly in error in exceeding its jurisdiction by trenching upon an

industrial field and adjudicating disputes inter se employer and

employees and employees. Before the High Court not all the parties

likely to be affected were the parties to the writ petitions. The

appellant/All India Cabin Crew Association was only allowed

intervention and it could not have foreseen that conditions of service

of both male and female members working in cabin would be

adversely affected by High Court by recording a so called consensual

order directing merger of cadres. The consensual order seriously

prejudices the air hostesses of the workman category represented by

appellant/AICCA. The order freezes their salaries and allowances for

two years, forces them to opt within a month as to whether they

would fly after 50 year of age or not, makes their duties

interchangeable and forces them to continue with the arduous jobs

with males on board with flight duties up to the age of 58 years.

It is also to be noted that Air India Officers Association as one

of the appellants on leave before us was not even a party before the

High Court. The impugned judgment rendered in favour of the

respondent/association comprising air hostesses of executive

category has also adversely affected the service conditions of its

male and female members of officers category. The High Court,

therefore, adopted a hazardous course of fixing the terms and

conditions of employees of Air India of various categories of males

and females which was an exercise to be undertaken in pending

industrial dispute before the National Industrial Tribunal.

A request was made in the course of hearing on behalf of the

some of the parties that this Court should direct the National

Industrial Tribunal to decide the disputes inter se Air India and its

employees - 'males and females'.

On behalf of the All India Cabin Crew Association, an alternative

submission has been made that the ideal situation for them would be

that the air hostesses are allowed more than one option. They may

be allowed to retire from flight duties at the age of 50 years, to opt

for ground duties after the age of 50 years up to 58 years of age or

to opt flight duties throughout up to the age of 58 years. Whether

such several options can be given and would be condusive to an

efficient and sound management of the business of the employer is a

matter better left for adjudication to a legally chosen industrial forum

by the parties.

We do not consider it proper or necessary for us to make any

direction in the pending reference to the National Industrial Tribunal

as in doing so, we would be committing a similar mistake as was

done by the High Court.

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It is open to the Central Government to enlarge the terms of

the reference under section 10 of Industrial Disputes Act to

specifically include for adjudication the dispute of Air India and its

employees and/or the employees inter se. It would also be open to

the air hostesses represented by appellant/AICCA and the

respondent/AHSA to make their demands in the pending reference

before the Tribunal by seeking a fresh reference from the Central

Government. It would be then open to the National Industrial

Tribunal to take a fair and just decision in accordance with law after

examining all aspects of the matter, on hearing the employer and

considering its business and administrative exigencies.

Lastly in desperate attempt, to support a part of the judgment

of the High Court which declares denial of flight duties to the air

hostesses up to the age of 58 years at par with males as invalid, on

behalf of the respondents/associations, an alternative submission is

advanced that the other part of the impugned judgment whereby

conditional proposal of Air India of merger of the two cadres [males

and females] was accepted, may alone be quashed and the remaining

part be left undisturbed and intact as valid.

In view of the detailed discussion of the various grounds urged

before us, we have held that both impugned parts of the judgment of

the High Court are unsustainable. It is, therefore, not possible for us

to accept the alternative submission made on behalf of the

respondents/associations that since two parts of the impugned

judgment are severeble, one of the parts fixing age of retirement for

air hostesses on flight duties up to the age of 58 years be upheld.

In the result, these appeals are allowed and the impugned

judgment of the Bombay High Court dated 20/23.8.2001 is hereby

set aside. The Writ Petition of respondent/association is dismissed. All

interim orders including dated 14.12.2001 shall stand vacated.

Looking to the nature of the controversy involved, we leave the

parties to bear their own costs in this Court.