TMI Blog1981 (8) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... the Air Hostesses employed by the Indian Airlines Corporation (hereinafter referred to as I.A.C. ) which were pending hearing in this Court involved almost identical reliefs. After hearing the transfer petition this Court by its Order dated January 21, 1981 allowed the petition and directed that the transfer petition arising out of Writ Petition 1186 of 1980 pending before the Bombay High Court be transferred to this Court. By a later Order dated March 23, 1981 this Court directed that the transferred case may be heard along with other writ petitions. Hence, all these matters have been placed before us for hearing. For the purpose of brevity, the various petitions, orders, rules, etc. shall be referred to as follows :- (1) Air India as A.I. (2) Indian Airlines Corporation as I.A.C. (3) Statutory regulations made under the Air Corporations Act, 1953 (27 of 1953) by Air India or the Indian Airlines Corporation would be referred to as 'A.I. Regulation' and 'I.A.C. Regulation' respectively. (4) Nergesh Mirza Others as 'petitioners'. (5) Declaration by the Central Government under Equal Remuneration Act as Declaration and Equal Remunerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the two Corporations formed one single unit to be controlled by the Central Government under the 1953 Act. It may be that the two Corporations may have different functions to perform - A.I. operating international flights and the other (I.A.C.) operating domestic flights within the country. This fact alone, however, would not make the two Corporations absolutely separate entities. The two Corporations were part of the same organisation set up by the 1953 Act. This fact is fortified by subsequent events such as when disputes arose between the employees of the two Corporations, the dispute with respect to A.I. was referred to Justice Khosla and formed the basis of the Khosla Award. Similarly, dispute between the I.A.C. and its employees was referred to Justice Mahesh Chandra where A.I. filed an application on behalf of the Air Corporation Employees' Union (ACEU). The aforesaid Union represented both the A.I. and I.A.C. A prayer of the ACEU was allowed by the Tribunal by its order dated March 1, 1971 (vide page 1191 of the Gazette of India - Section 3(ii), dated March 25, 1972) for being impleaded as a party to the Reference. As a result of the allowing of the application of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retirement age is mentioned thus : 252. At present, the retirement age of the Air India employees is governed by Service Regulations Nos. 46 and 47. Service Regulation No. 46 is as follows :- 46. Retirement Age * * * (c) An Air Hostess, upon attaining the age of 30 years or on marriage, whichever occurs earlier. * * * 253. Regulation No. 47 provides for a further extension of the employee beyond the age of retirement for an aggregate period not exceeding two years except in the case of Air Hostesses where the services can be extended up to a period of 5 years. The extension is granted on the employee being found medically fit. 6. Thus, according to the Regulations prevalent in A.I. an AH had to retire at the age of 30 or on marriage whichever was earlier subject to an extension being granted for a period of 5 years if the employee was found to be medically fit. While considering this demand, the Tribunal seems to have upheld the view of the Corporation and found no reason to interfere with Regulation Nos. 46 and 47. In this connection, the Tribunal observed as follows :- In my view, no case has been made out for raising the age of retirement and in cases w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hesh Tribunal, before whom a part of the dispute between several workmen was settled but the dispute which was not settled including the question of the age of retirement of AHs was referred to this Tribunal some time in November 1970 and the Award was given on February 25, 1972. Before this Tribunal also, the stand taken by the ACEU was that the age of retirement of AH should be fixed at 45 instead of 30 or 35 and the bar of marriage should be removed. The A.I., however, stuck to its original stand that having regard to the strenuous work to be put in by an AH, the age of retirement should be kept at 30. In this connection, the Mahesh Tribunal indicated the stand of the parties thus :- The ACEU contends that age of retirement of air hostesses should be fixed at 45 instead of 30 or 35 as at present; that this demand for increase in the age of retirement is in accordance with Geneva Convention and that the bar of marriage on air hostesses should be removed. The Air India's contention is that the nature and underlying object of the job of an air hostess requires that their age of retirement should be kept at 30 as at present. It has also been pointed out that after 30, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a further change and by virtue of a notification published in the Gazette of India on April 12, 1980 in Part III, Section 4, Para 3 of the amended Regulation 12 was further amended thus :- An Air Hostess shall retire from the service of the Corporation upon attaining the age of 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever occurs earlier. 13. The amendment seems to have made a slight improvement in the conditions of service of AHs inasmuch as the age of retirement was fixed at 35 years and the bar of marriage was restricted only to a period of four years, that is to say, if an AH did not marry within a period of 4 years of her entry into service, she could retire at the age of 35. This amendment was not in supersession of but supplemental to the ACEU Settlement dated January 10, 1972. In other words, the position was that an AH if she did not marry within 4 years, could go up to 35 years extendable to 40 years, if found medically fit. This was the historical position so far as the retirement age of AHs working with I.A.C. is concerned. As regards AHs employed by A.I. the latest position is to be found in Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has submitted some important and interesting points of law which may be summarised as follows :- (1) The AHs employed by one Corporation or the other form the same class of service as the AFPs and other members of the cabin crew. Both the male pursers and the AHs are members of the same cabin crew, performing identical or similar duties and hence any discrimination made between these two members who are similarly circumstanced is clearly violative of Article 14 of the Constitution of India. (2) Even if the AHs are a separate category or class, there is an inter se discrimination between the AHs posted in the United Kingdom and those serving in the other Air India flights. (3) That the AHs have been particularly selected for hostile discrimination by the Corporation mainly on the ground of sex or disabilities arising from sex and therefore, the regulations amount to a clear infraction of the provisions of Article 15(1) and Article 16 of the Constitution of India. (4) The termination of the services of AHs on the ground of pregnancy or marriage within four years is manifestly unreasonable and wholly arbitrary and violative of Article 14 of the Constitution and shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory force and unless they are per se arbitrary or discriminatory, the court ought nor to interfere with them particularly when those two Awards are binding on the parties even though their period may have expired. (4) Having regard to the circumstances prevailing in India and the effects of marriage, the bar of pregnancy and marriage is undoubtedly a reasonable restriction placed in public interest. (5) If the bar of marriage or pregnancy is removed, it will lead to huge practical difficulties as a result of which very heavy expenditure would have to be incurred by the Corporations to make arrangements for substitutes of the working AHs during their absence for a long period necessitated by pregnancy or domestic needs resulting from marriage. (6) The court should take into consideration the practical aspects of the matter which demonstrate the fact that a large number of AHs do not stick to the service but leave the same well before the age of retirement fixed under the Regulation. 22. Finally, as a very fair and conscientious counsel Mr. Nariman placed a few proposals which might mitigate the inconvenience caused to the AHs and remove a large bulk of their grievances. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t arise. On the other hand, if among the members of the same class, discriminatory treatment is meted out to one against the other, Article 14 is doubtless attracted. 28. In Kathi Raning Rawat v. State of Saurashtra [1952 SCR 435 AIR 1952 SC 123 1952 SCJ 168] Sastri, C.J. observed thus (SCR pp. 442-43) Though the differing procedures might involve disparity in the treatment of the persons tried under them, such disparity is not by itself sufficient, in my opinion, to outweigh the presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its existence demands us, for instance, whet it amounts to a denial of a fair and impartial trial. Fazal Ali, J., as he then was, pithily observed as follows (SCR p. 488) I think that a distinction should be drawn between 'discrimination without reason' and 'discrimination with reason'. The whole doctrine of classification is based on this distinction and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus :- Would it, for instance, be open to the State to prescribe different scales of salary for the same or similar posts, different terms of leave or superannuation for the same or similar post ? On the narrow construction of Article 16(1) even if such a discriminatory course is adopted by the State in respect of its employees that would not be violative of the equality of opportunity guaranteed by Article 16(1). Such a result could not obviously have been intended by the Constitution.... The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment. * * * It is common ground that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and (2) do not fall within the mischief of non-obstantive clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion.... Equality of opportunity in matters of employment under Article 16(1) means equality as between members of the same class of employees and not equality between members of separate, independent classes. 33. The same principle was reiterated by this Court in Western U.P. Electric Power Supply Co. Ltd. v. State of U.P. [(1969) 3 SCR 865 (1969) 1 SCC 817 AIR 1970 SC 21] where Shah, J. observed thus (SCC p. 821, para 7) Article 14 of the Constitution ensures equality among equals its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law. 34. In a recent decision of this Court in Ramesh Prasad Singh v. State of Bihar [(1978) 1 SCC 37 1978 SCC (L S) 23 (1978) 1 LLJ 197 (1978) 1 SCR] to which one of us (Fazal Ali, J.) was a party, the same principle was reiterated thus :- Equality is for equals, that is to say, those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh a complete answer to the argument of the petitioners that Article 14 is violated in the instant case. 38. Similar observations were made in Vol. 16 (pp. 236-37) of Corpus Juris Secundum which are extracted below A person ordinarily is precluded from challenging the constitutionality of governmental actions by invoking the rights of others and it is not sufficient that the statute or administrative regulation is unconstitutional as to other persons or classes of persons; it must affirmatively appear that the person attacking the statute comes within the class of persons affected by it. 39. Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge :- (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted. (2) Article 14 forbids ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of AHs constitutes the same class as AFPs or is a separate category by itself, we shall detail the materials placed before us by the parties on this aspect of the matter. We shall first deal with the case of AHs employed by A.I. 44. To begin with, it is not disputed that at the initial recruitment a classification for appointment of AH and AFP is essentially different. For instance, while in the case of AFP the necessary qualifications are as follows :- (1) SCC or its equivalent. (2) Minimum three years' training experience in any Airline or three years' Diploma in Catering from a recognised Institute or a Graduate. (3) There is no requirement that AFP should be unmarried. (4) The AFP has to appear for a written I.C. test. 45. As against these basic requirements for entry into service for the class known as 'AFP' the requirements for AHs are as follows :- (1) SCC or its equivalent. (2) AH must be unmarried. (3) No other requirement is needed for entry into service so far as AH is concerned. 46. Mr. Setalvad, however, argued that both AHs and AFPs being members of the same cabin crew must be taken to belong to the same class. This arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 737 2. Check AH 72 3. Dy. Chief AH 3 1100-50-1600-60-1780-100-1880 4. Addl. Chief AH 3 1400-50-1600-60-1780-100-1980 5. Chief AH 1 1720-60-1780-100-2180 52. It may be mentioned here that so far as the post of Dy. Chief AH is concerned, by virtue of an agreement dated May 30, 1977 between the male members of the cabin crew it was decided to phase them out. A serious exception has been taken against the Corporation for having acceded to the demand for phasing out a post belonging to the category of AHs and that too without taking the consent of AHs. A serious protest on this account was lodged by the AHs which is to be found at page 166 of Volume II of the Paperbook, the relevant portion of which may be extracted thus :- We do not see how any Flight Purser or Assistant Flight Purser could suggest a viable proposal regarding our promotion considering this matter is in direct relation to Air Hostesses and their future. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are unable to give any relief to the AHs on this score. We would, however, like to observe that in view of the limited promotional channels available to the AHs, the A.I. should seriously consider the desirability of restoring the post of Dy. Chief AH and thereby remove the serious injustice which has been done to the AHs in violation of the principles of natural justice. 56. We have touched this aspect of the matter only incidentally as it was mentioned in the Affidavit filed before us and appeared to us to be of some consequence. 57. Thus, from a comparison of the mode of recruitment the classification, the promotional avenues and other matters which we have discussed above, we are satisfied that the AHs form an absolutely separate category from that of AFPs in many respects having different grades, different promotional avenues and different service conditions. Finally, it may also be noted that even though the AHs retire at the age of 35 (extendable to 45) they get retiral benefits quite different from those available to the AFPs. For instance, at pages 68-69 of Vol. II of the Paperbook the following averments may be specially noticed :- The benefits particularly th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the cabin crew are an entirely separate class governed by different set of rules, regulations and conditions of service. Mr. Nariman submitted that job functions performed by the AFPs and AHs being entirely different, is also an important circumstance to prove that AHs is a class completely separate from the class of AFPs. We are, however, not impressed with this argument because a perusal of the job functions which have been detailed in the 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, the two separate classes have to work as a team, helping and assisting each other particularly in case of emergency. This aspect of the matter was highlighted by the Mahesh Award which observed thus :- The Management claims that there cannot be and should not be, any inflexibility or rigidity regarding the functions and duties of the different categories of cabin crew and the Management should have full authority and discretion as regards the interchangeability of job allocations and functions and duties of the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tingham and the hours of work by male employees in London was held to be valid and did not violate the principle of Equality. Phillips, J., made the following observations :- An example which we gave the other day was of a case where all the conditions are satisfied for the operation of an equality clause - because, for instance, there is a variation in that a woman is paid less - but it is found on investigation that the employers can establish (and the burden of proof, which is a heavy burden, is always on them) that the reason the man is paid more than the woman has nothing whatever to do with sex but is due to the fact that the employers have in force a system under which a long-service employee is paid more; so the variation there is due, not to a difference of sex, but to that material difference. It is important to note there that the woman, if she remains sufficiently long in the company's employ, will of course one day herself qualify to receive a long-service increment. It is common ground in this case that the variation - that is to say, the difference in the hours worked in London and those worked in Nottingham - is not due to a difference of sex. 63. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Mr. Setalvad. It would, however appear that the benefits conferred on the females under the 1976 Act is not absolute and unconditional. Section 16 clearly authorises restrictions regarding remuneration to be paid by the employer if a declaration under it is made by the appropriate Government, which may be extracted thus :- 16. Where the appropriate Government is, on a consideration of all the circumstances of the case, satisfied that the difference 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. 66. In the instant case, the Central Government had made a declaration by virtue of a Notification dated June 15, 1979 published in the Gazette of India, Part II - Section 3, sub-section (ii) dated June 30, 1979, which runs thus :- New Delhi, the June 15, 1979. S.O. 2258 - In exercise of the powers conferred by the Section 16 of the Equal Remuneration Act, 1976 (25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But save where the differentiation is demonstrable, the rule of equality must govern. 70. For these reasons, therefore the argument of Mr. Setalvad that the conditions of service with regard to retirement, etc., amount to discrimination on the ground of sex is overruled and it is held that the conditions of services indicated above are not violative of Article 16 on this ground. 71. This brings us now to the next limb of the argument of Mr. Setalvad which pertains to the questions as to whether and not the conditions imposed on the AHs regarding their retirement and termination are manifestly unreasonable or absolutely arbitrary. We might mention here that even though the conditions mentioned above may not be violative of Article 14 on the ground of discrimination but if it is proved to our satisfaction that the conditions laid down are entirely unreasonable and absolutely arbitrary, then the provisions will have to be struck down. 72. This argument was sought to be rebutted by Mr. Nariman on the ground that the conditions mentioned above formed the subject-matter of the two Awards which have upheld the conditions to be valid. It was also contended that even though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll those employed in a pharmaceutical concern. The work of an air hostess is more arduous. It seems, however, reasonable that the present practice of restricting the extension beyond 30 years to one year at a time need not be a part of the rules. The rule regarding extension of service in the Settlement between the ACEU and the Indian Airlines of January 10, 1972 is better worded and it should be adopted by the Air India also in its entirety. It enables the General Manager to give extension for periods longer than one year at a time, if he considers it proper. The bar of retirement on marriage should remain. 75. With due respect to Justice Khosla, we find ourselves unable to agree with most of the observations that he has made and we shall give detailed reasons for the same a little later when we deal with the validity of the impugned Regulations. 76. It is true that even though the period of the Awards may have expired yet it continues to be binding on the parties as an agreement. In the South Indian Bank Ltd. v. A.R. Chacko [(1964) 5 SCR 625 (1964) 1 LLJ 19 AIR 1964 SC 1522] it was held that even if the Award had ceased to be operative, it would continue to be binding on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners that the provisions for terminations and retirement are violative of Article 14 as being unreasonable and arbitrary, the Awards or the Agreements confirmed by the Awards would be of no assistance to the Corporations. 79. We now proceed to determine the constitutional validity of the impugned Regulation. Taking the case of A.I. AHs, it would be appear that their conditions of service are governed by Regulations 46 and 47, the relevant portions of which are extracted below :- 46. Retiring Age. - (i) Subject to the provision of sub-regulation (ii) hereof, an employee shall retire from the service of the Corporation upon attaining the age of 58 years, except in the following cases when he/she shall retire earlier * * * (c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within four years of service or on the first pregnancy, whichever occurs earlier; 47. Extension of Service. - Notwithstanding anything contained in Regulation 46, the services of any employee, may, at the option of the Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age of retirement for an agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all picture of the situation and the difficulties of both the parties, we are unable to find any constitutional infirmity or any element of arbitrariness in the aforesaid provisions. The argument of Mr. Setalvad as also those who followed him on this point is, therefore, overruled. 82. Coming now to the second limb of the provisions according to which the services of AHs would stand terminated on first pregnancy, we find ourselves in complete agreement with the argument of Mr. Setalvad that this is a most unreasonable and arbitrary provision which shocks the conscience of the court. The Regulation does not prohibit marriage after four years and if an AH after having fulfilled the first condition becomes pregnant there is no reason why pregnancy should stand in the way of her continuing in service. The Corporations represented to us that pregnancy leads to a number of complications and to medical disabilities which may stand in the efficient discharge of the duties by the AHs. It was said that even in the early stage of pregnancy some ladies are prone to get sick due to air pressure, nausea in long flights and such other technical factors. This, however, appears to be purely an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute for the words or on first pregnancy , the words or on a third pregnancy . (b) There will be a suitably framed Regulation to provide for the above and for the following (i) An air hostess having reason to believe that she is pregnant will intimate this to Air India and will also elect in writing within a reasonable time whether or not to continue in service. (ii) If such air hostess elects to continue in service on pregnancy, she shall take leave from service for a period not later than that commencing from 90 days after conception and will be entitled to resume service only after confinement (or premature termination of pregnancy) and after she is certified by the Medical Officer of AIR INDIA as being fit for resuming her duties as an air hostess after delivery or confinement or prior termination of pregnancy. The said entire period will be treated as leave without pay subject to the air hostess being entitled to maternity leave with pay as in the case of other female employees and privilege leave under the Regulations. (iii) Every such air hostess will submit to an annual medical examination by the Medical Officer of AIR INDIA for certification of continued physi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stemmed from a policy that purposefully downgraded women's role in the labour force, rather than from gender-neutral risk assignment considerations. 85. Stevens, J. while endorsing the view of Brennan, J. observed thus :- The case presented only a question of statutory construction, and the employer's rule placed the risk of absence caused by pregnancy in a class by itself, thus violating the statute as discriminating on the basis of sex, since it was the capacity to become pregnant which primarily differentiated the female from the male. 86. In the instant case, if the Corporation has permitted the AHs to marry after the expiry of four years then the decision to terminate the services on first pregnancy seems to be wholly inconsistent and incongruous with the concession given to the AHs by allowing them to marry. Moreover, the provision itself is so outrageous that it makes a mockery of doing justice to the AHs on the imaginative plea that pregnancy will result in a number of complications which can easily be avoided as pointed out by us earlier. Mr. Setalvad cited a number of decisions of the U.S. Supreme Court on the question of sex but most of these decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the choice of firm dates later in pregnancy would serve the board's objectives just as well, while imposing a far lesser burden on the women's exercise of constitutionally protected freedom. * * * While it might be easier for the school boards to conclusively presume that all pregnant women are unfit to teach past the fourth or fifth month or even the first month, of pregnancy, administrative convenience alone is insufficient to make valid what otherwise is a violation of due process of law. The Fourteenth Amendment requires the school boards to employ alternative administrative means, which do not so broadly infringe upon basic constitutional liberty, in support of their legitimate goals. . . . While the regulations no doubt represent a good-faith attempt to achieve a laudable goal, they cannot pass muster under the due process clause of the Fourteenth Amendment, because they employ irrebuttable presumptions that unduly penalize a female teacher for deciding to bear a child. 89. The observations made by the U.S. Supreme Court regarding the teachers fully apply to the case of the pregnant AHs. In Sharron A. Frontiero v. Elliot L. Richardson [36 L Ed 2d 583 411 U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to continue her employment even after pregnancy which undoubtedly is a most unreasonable approach. 93. Similarly, very pregnant observations were made by the U.S. Supreme Court in City of Los Angeles, Department of Water Power v. Marie Manhart [55 L Ed 2d 657 435 US 702 (1978)] thus :- It is now well recognized that employment decisions cannot be predicated on mere 'stereotyped' impressions about the characteristics of males or females. Myths and purely habitual assumptions about a woman's inability to perform certain kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or for paying them less... The question, therefore, is whether the existence or nonexistence of discrimination is to be determined by comparison of class characteristics or individual characteristics. A 'stereotyped' answer to that question may not be the same as the answer that the language and purpose of the statute command. * * * Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue in service or would find it difficult to look after the children is her personal matter and a problem which affects the AH concerned and the Corporation has nothing to do with the same. These are circumstances which happen the normal course of business and cannot be helped. Suppose an AH dies or becomes incapacitated, it is manifest that the Corporation will have to make alternative arrangements for her substitute. In these circumstances, therefore, we are satisfied that the reasons given for imposing the bar are neither logical nor convincing. 97. In view of our recent decision explaining the scope of Article 14, it has been held that any arbitrary or unreasonable action or provision made by the State cannot be upheld. In Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh [1954 SCR 803 AIR 1954 SC 224], this Court made the following observations : Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in reasonablen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we strike don the last portion of Regulation 46(i)(c) and hold that the provision 'or first pregnancy whichever occurs earlier' is unconstitutional, void and is violative of Article 14 of the Constitution and will, therefore, stand deleted. It will, however, be open to the Corporation to make suitable amendments in the light of our observations and on the lines indicated by Mr. Nariman in the form of draft proposals referred to earlier so as to soften the rigours of the provision and make it just and reasonable. For instance, the rule could be suitably amended so as to terminate the services of an AH on third pregnancy provide two children are alive which would be both salutary and reasonable for two reasons. In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the AH concerned as also for the good upbringing of the children. Secondly, as indicated above while dealing with the rule regarding prohibition of marriage within four years, same considerations would apply to a bar of third pregnancy where two children are already there because when the entire world is faced with the problem of po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the factors to be considered must be relevant and bear a close nexus to the nature of the organisation and the duties of the employees. Where the authority concerned takes into account factors or circumstances which are inherently irrational or illogical or tainted, the decision fixing the age or retirement is open to serious scrutiny. 105. The stand taken by A.I. regarding this particular provision is that there are several reasons which prompted the Management to persuade the Government to make this Regulation. In the first place, it was contended that in view of the arduous and strenuous work that the AHs have to put in an early date of retirement is in the best interest of their efficiency and also in the interest of their health. Another reason advanced by A.I. is that several years' experience of the working of AHs shows that quite a large number of them retire even before they reach the age of 35; hence a lower age for retirement is fixed in their case under the Regulation with a provision for extension in suitable cases. These reasons are no doubt understandable and prima facie appear to be somewhat sound. We are, however, not quite sure if the premises on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should by their sweet smiles and pleasant behaviour entertain and look after the passengers which cannot be done by women of older age. This argument seens to us to be based on pure speculation and an artificial understanding of the qualities of the fair sex and, if we may say so, it amounts to an open insult to the institution of our sacred womanhood. Such a morbid approach is totally against our ancient culture and heritage as a woman in our country occupies a very high and respected position in the society as a mother, a wife a companion and a social worker. It is idle to contend that young women with pleasing manners should be employed so as to act as show pieces in order to cater to the varied tastes of the passengers when in fact older women with greater experience and goodwill can look after the comforts of the passengers much better than a young woman can. Even if the Corporation had been swayed or governed by these considerations, it must immediately banish or efface the same from its approach. More particularly such observations coming from a prestigious Corporation like A.I. appear to be in bad taste and is proof positive of denigration of the role of women and a demonst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and in the case of Malayasian Airlines it is 45 years. In the case of Singapore Airlies the retirement age of Check Stewardess is 45 years. Similarly, in other Airlines like Austrian, German Air, Lufthansa and Nageria Airways the retirement age of females AHs is 55 whereas in the case of Air International, U.T.A. (France) and Air France it is 50. In case of Sudan Airways and British Airways the retirement age is 60 whereas in Nordair (Canada) and Transair (Canada) Airlines the age is 65 years. 112. A perusal of the scheme of retirement age given above would clearly show that several considerations weigh with the Governments or Corporations concerned in fixing the retirement age which would naturally differ from country to country having regard to the various factors mentioned above. In fact, a similar grievance seems to have been made before the Mahesh Tribunal which also pointed out that the social conditions in Europe and other countries being different, the same rules could not apply to A.I. In this connection, the Tribunal observed thus :- There is no reason to have a different provision regarding the air hostesses in Air India. The social conditions in Europe and elsew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classicus on the subject, Fazal Ali, J. (as he then was) clearly observed as follows : But the second criticism cannot be so easily met, since an Act which gives uncontrolled authority to discriminate cannot but be hit by Article 14 and it will be no answer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power. * * * Secondly, the Act itself does not state that public interest and administrative exigencies will provide the occasion for its application. Lastly, the discrimination involved in the application of the Act is too evident to be explained away. and Mahajan, J. agreeing with the same expressed his views thus :- The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has laid down no yardstick or measure for the grouping either of persons or of cases or of offences by which measure these groups could be distinguished from those who are outside the purview of the special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. Mukherjea, J. observed thus :- In the case before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arda v. Mizo District Council [(1967) 1 SCR 1012 AIR 1967 SC 829] it was highlighted that where a regulation does not contain any principles or standard for the exercise of the executive power, it was a bad regulation as being violative of Article 14. In this connection, the Court observed as follows :- A perusal of the Regulation shows that it nowhere provides any principles or standards on which the Executive Committee has to act in granting or refusing to a grant the licence.... There being no principles or standards load down in the Regulation there are obviously no restraints or limits within which the power of the Executive Committee to refuse to grant or renew a licence is to be exercised..... The power of refusal is thus left entirely unguided and untrammelled. * * * A provision which leaves an unbridled power to an authority cannot in any sense be characterised as reasonable. Section 3 of the Regulation is one such provision and is therefore liable to struck down as violative of Article 19(1)(g). 118. To the same effect is another decision of this Court in State of Mysore v. S.R. Jayaram [(1968) 1 SCR 349 AIR 1968 SC 346 1968 Lab IC 357] where the following obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Managing Director. Similarly, there is also no provision in the Regulation requiring the authorities to give reason for refusing to extend the period of retirement of AHs. The provision does not even give any right of appeal to higher authorities against the order passed by the Managing Director. Under the provision, as it stands, the extension of the retirement of an AH is entirely at the mercy and sweet will of the Managing Director. The conferment of such a wide and uncontrolled power on the Managing Director is clearly violative of Article 14, as the provision suffers from the vice of excessive delegation of powers. 120. For these reasons, therefore, we have no alternative but to strike down as invalid that part of Regulation 47 which gives option to the Managing Director to extend the service of an AH. The effect of striking down this provision would be that an AH, unless the provision is suitably amended to bring it in conformity with the provisions of Article 14 would continue to retire at the age of 45 years and the Managing Director would be bound to grant yearly extensions as a matter of course for a period of ten years if the AH is found to be medically fit. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess at the risk of repetition that in State of Mysore v. M.N. Krishna Murthy [(1973) 2 SCR 575 (1973) 3 SCC 559 1973 SCC (L S) 190 (1973) 1 LLJ 42 1973 Lab IC 791] this Court clearly held that where classes of service are different, inequality of promotional avenues was legally permissible. In this connection, Beg, J. speaking for the Court observed a as follows : If, on the facts of a particular case, the classes to considered are really different, inequality of opportunity in promotional chances may be justifiable. 124. Thus, there can be no doubt that the case of I.A.C. AHs is exactly similar to the case of A.I. AHs and hence the complaint of discrimination made by the petitioners has no substance. 125. The next argument is almost the same as in the case of A.I. AHs, namely, retirement on first pregnancy and on marriage within four years and retirement at 35 years extendable to 40 years. 126. So far as the age of retirement and termination of service on first pregnancy is concerned a short history of the Rules made by the I.A.C. may be given. Regulation 12, as it stood may be extracted thus :- Flying Crew shall be retained in the service of the Corporation only fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etain an AH in service will have to be read as a power to retain an AH up to the age of 40 years. Thus the Notification as also the Rules suffer from two serious constitutional infirmities which are present in the case of Regulation 46 framed by the A.I. The clauses regarding retirement and pregnancy will have to be held as unconstitutional and therefore struck down. Secondly, for the reasons that we have given in the case A.I. AHs. that Regulation 46 contains an unguided and uncontrolled power and therefore suffers from the vice of excessive delegation of powers, on a parity of reasoning the power conferred on the General Manager to retain an AH up to the age of 40 years will have to be struck down as invalid because it does not lay down any guidelines or principles. Furthermore, as the cases of A.I. AHs and I.A.C. AHs are identical, an extension up to the age of 45 in the case of one and 40 in the case of other amounts to discrimination inter se in the same class of AHs and must be struck down on that ground also. 131. The result of our striking down these provisions is that like A.I. AHs, I.A.C. AHs, also would be entitled to their period of retirement being extended up to 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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