TMI Blog2003 (7) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned by agreements and settlements entered into between them with the employer under the Industrial Law, are also aggrieved by the judgment. They are 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 layi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue 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. 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred 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 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 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o this Ministry. 3. A compliance report of the action taken may please be submitted to this Ministry within a week. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, 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. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 terme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uties 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociation 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 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old 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 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, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents, 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 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions 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 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, refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding 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. It is open to the Central Government to enla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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