# AIR INDIA CABIN CREW ASSOCIATION v. YES HA WINEE MERCHANT AND ORS

- **Citation:** [2003] Supp. 1 S.C.R. 455
- **Court:** Supreme Court of India
- **Decided:** 2003-07-11
- **Bench:** Doraiswamy Raju, D.M. Dharmadhikari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/air-india-cabin-crew-association-v-yes-ha-winee-merchant-and-ors-19200
- **Pages:** 45

## Headnote

B
Constitution of India, 1950-Articles 14, 15 and 16:
Age of retirement-Of airhostesses of Air India and Indian AirlinesTwo separate cadres of male and female cabin crew members for pre-I 997 C
recruits-Fixation of early retirement age of airhostesses compared to male
cabin crew members from flying duties with option to go for ground duties
~ between 50 to 58 years of age-Fixation was through negotiations,
agreements, settlements and awards made in industrial .at{iudication-After
Air India and Indian Airlines becoming companies male and female cadres D
merged for post-I 997 recruits-Industrial dispute on re-f1Xation of terms and
conditions of services of employees of newly formed companies pending with
the National Industrial Tribunal-Challenge to the early retirement age by
small number of airhostesses in executive cadre-High Court held the
retirement age to be violative of Articles I 4, I 5 and I 6 of the Constitution
and provisions of the Acts and accepting the proposals of the employer, E
varied the terms and conditions of pre-1997 recruits-On appeal, held: Terms
and conditions of service fixing age of retirement cannot be said to be
discriminatory-Constitutional prohibition under Articles I 5 and I 6 not to
discriminate citizens only on sex, does not prohibit a special treatment to the
women in employment on their own demand-Where terms and conditions F
are f1Xed through collective bargaining as a comprehensive package deal in
the course of industrial adjudication and terms of service and retirement age
f1Xed under agreements, settlements or awards the same cannot be. termed as
unfavourable treatment only on basis of sex-The terms and conditions of
pre-1997 recruits could not be varied-Early age retirement policy of ·
airhostesses does not contravene Section 5 of Equal Remuneration Act, G
rather ii is saved by siction I 5(a) and I 5(b)(ii) thereof-The directives
issued by Central Govemment under Section 34 of Air Corporation Act are
not in violation of Articles I 4, I 5 and I 6 of the Constitution or provisions
of Equal Remuneration Act-It was not appropriate for High Court to
adjudicate upon the issue pending for industrial adjudication-National H
455
456
SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A Industrial Tribunal directed to decide the issues in accordance with law--
Equal Remuneration Act, 1976--Sections 5 and 15--Air Corporations Act,
1953--Section 34--lndustrial Disputes Act, 1947--Section 10--Air
Corporation Transfer of (Undertaking and Repeal) Act, 1994--lndustrial
Employment (Standing Orders) Act, 1946.
B
c
D
Article 141--Precedent--lssues settled in previous case by Supreme
Court-In subsequent litigation the settled issues held to be arbitrary and
unreasonable by High Court relying on subsequent events-Held: Recourse
to the subsequent events could not be made to water down the binding effect
of judgment a/Supreme Court-High Court acted against judicial discipline.
Article 226--Judicial Review-Of pending issues for industrial
adjudication-Held: In such case proceeding u/A 226 are neither appropriate
nor a substitute for industrial adjudication in the Industrial Courts and
Tribunals.
Article 77--Applicability-Scope of-Held: Even if an executive action
of the Central Government is not formally expressed to have been taken in
the name of President, such action would not be rendered void or invalid by
virtue of the Article.
Air India and Indian Airlines were established under Air Corporation
E Act, 1953. Two National Industrial Tribunals fixed the age of retirement of
airhostesses of Air India as 30 years which could be extended upto 35 years
in medically fit cases. When the dispute regarding retirement age oflndian
Airlines airhostesses arose, a settlement was reached between employer and
employees under which General Manager's power to extend retirement age
of unmarried and medically fit airhostesses was increased from 35 to 40 years.
F In 1972 Central Government referred a dispute concerning the service
cond

## Text

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AIR INDIA CABIN CREW ASSOCIATION
A
V.
YES HA WINEE MERCHANT AND ORS.
JULY 11, 2003
[DORAISWAMY RAJU AND D.M. DHARMADHIKARI, JJ.]
B
Constitution of India, 1950-Articles 14, 15 and 16:
Age of retirement-Of airhostesses of Air India and Indian AirlinesTwo separate cadres of male and female cabin crew members for pre-I 997 C
recruits-Fixation of early retirement age of airhostesses compared to male
cabin crew members from flying duties with option to go for ground duties
~ between 50 to 58 years of age-Fixation was through negotiations,
agreements, settlements and awards made in industrial .at{iudication-After
Air India and Indian Airlines becoming companies male and female cadres D
merged for post-I 997 recruits-Industrial dispute on re-f1Xation of terms and
conditions of services of employees of newly formed companies pending with
the National Industrial Tribunal-Challenge to the early retirement age by
small number of airhostesses in executive cadre-High Court held the
retirement age to be violative of Articles I 4, I 5 and I 6 of the Constitution
and provisions of the Acts and accepting the proposals of the employer, E
varied the terms and conditions of pre-1997 recruits-On appeal, held: Terms
and conditions of service fixing age of retirement cannot be said to be
discriminatory-Constitutional prohibition under Articles I 5 and I 6 not to
discriminate citizens only on sex, does not prohibit a special treatment to the
women in employment on their own demand-Where terms and conditions F
are f1Xed through collective bargaining as a comprehensive package deal in
the course of industrial adjudication and terms of service and retirement age
f1Xed under agreements, settlements or awards the same cannot be. termed as
unfavourable treatment only on basis of sex-The terms and conditions of
pre-1997 recruits could not be varied-Early age retirement policy of ·
airhostesses does not contravene Section 5 of Equal Remuneration Act, G
rather ii is saved by siction I 5(a) and I 5(b)(ii) thereof-The directives
issued by Central Govemment under Section 34 of Air Corporation Act are
not in violation of Articles I 4, I 5 and I 6 of the Constitution or provisions
of Equal Remuneration Act-It was not appropriate for High Court to
adjudicate upon the issue pending for industrial adjudication-National H
455
456
SUPREME COURT REPORTS [2003) SUPP. I S.C.R.
A Industrial Tribunal directed to decide the issues in accordance with law--
Equal Remuneration Act, 1976--Sections 5 and 15--Air Corporations Act,
1953--Section 34--lndustrial Disputes Act, 1947--Section 10--Air
Corporation Transfer of (Undertaking and Repeal) Act, 1994--lndustrial
Employment (Standing Orders) Act, 1946.
B
c
D
Article 141--Precedent--lssues settled in previous case by Supreme
Court-In subsequent litigation the settled issues held to be arbitrary and
unreasonable by High Court relying on subsequent events-Held: Recourse
to the subsequent events could not be made to water down the binding effect
of judgment a/Supreme Court-High Court acted against judicial discipline.
Article 226--Judicial Review-Of pending issues for industrial
adjudication-Held: In such case proceeding u/A 226 are neither appropriate
nor a substitute for industrial adjudication in the Industrial Courts and
Tribunals.
Article 77--Applicability-Scope of-Held: Even if an executive action
of the Central Government is not formally expressed to have been taken in
the name of President, such action would not be rendered void or invalid by
virtue of the Article.
Air India and Indian Airlines were established under Air Corporation
E Act, 1953. Two National Industrial Tribunals fixed the age of retirement of
airhostesses of Air India as 30 years which could be extended upto 35 years
in medically fit cases. When the dispute regarding retirement age oflndian
Airlines airhostesses arose, a settlement was reached between employer and
employees under which General Manager's power to extend retirement age
of unmarried and medically fit airhostesses was increased from 35 to 40 years.
F In 1972 Central Government referred a dispute concerning the service
conditions of workmen of Indian Airlines to an Industrial Tribunal, wherein
·Employees' Union of Air India were party. Air India had made a demand before
the Tribunal for interchangeability of job functions between male and female
members of crew and the Tribunal by its award refused the same on the ground
G that Air India Manual had laid down separate and distinct functions of male
and female cabin crew. In exercise of power under Section 16 of Equal
R'.!muneration Act a Notification was issued in 1979 whereby the Central
Government declared that the difference in regard to pay etc. of airhostesses
and flight stewards are based on different conditions of service and not on the
difference of sex and, therefore, any act of the employer attributable lo such
H differences shall not be declared to be in contravention of any of the provisions
AIR INDIA CABIN CREW ASSON. "· YESHAWINEE MERCHANT
457
of the Act. Central Government by its Notification in 1980 provided that A
airhostesses of Indian Airlines would retire on attaining age of 35 years or
on marriage if it took place within 4 years of joining service or on first
pregnancy whichever occurred earlier, while the male cabin crew members
were to continue on flight duties until the age of 58 years. Accordingly Air
India also carried out similar amendments in their Regulations. A writ petition B
was filed in High Court challenging the retirement age and other conditions
of service applicable to airhostesses on the ground that they were
discriminatory under Articles 14, 15 and 16 of the Conshtuban. The petition
was transferred to Supreme Court and the Court in the decision in Air India
v. Nergesh Meerza, 11981) 4 SCC 335 held the conditions providing lower
age of retirement to airhostesses was not unfavourable compared to male cabin C
crew members; that the airhostesses never demanded before the Tribunal that
their age of retirement should be at par with the male employees and thus
award of the Tribunal was binding on them; that there was no discrimination
against airhostesses based only on sex; that the service conditions were
neither unconstitutional under Articles 15 and 16 nor violative of Section 4
of Equal Remuneration Act; that declaration of Central Government under D
Section 16 of Equal Remuneration Act was presumptive proofof the fact that
no discrimination has been made on the ground of sex only; and that different
ages of retirement and salary structure for male and female employees in
Air India were based on their different conditions of service and not on sex
alone. However, the Court struck down two service conditions which provided E
for termination of service of airhostesses on first pregnancy and extension
of service beyond the age of 35 upto 45 at the discretion of Managing Director.
In 1983 Air India and All India Cabin Crew Association representing
male and female members entered into an agreement whereunder promotional
avenues of air hostesses were determined. The legal validity of the agreement F
was upheld by High Court.
Writ petition challenging Cabin Crew Manual, which provided for
separate and distinct job functions and promotional avenues to male and female
cabin crew members was dismissed by High Court.
G
In 1987 writ petition, challenging lower retirement age of airhostesses
fixed under the agreement, was dismissed as being barred by principle of
constructive res judicata in view of judgment in Nergesh Meerza~case.
Another writ petition in Supreme Court challenging lower retirement age of
airhostesses was dismissed on the ground that the decision in Nergesh H
458
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A Meerza 's case was binding on the parties.
In 1988 again a fresh agreement was entered into between Air India
and AICCA regarding Service conditions of airhostesses.
In 1989 airhostesses filed a petition before Lok Sabha complaining
B discrimination in retirement age and other service conditions. Central
Government by its letter dated 16.10.1989, in exercise of its powers u/s 34 of
Air Corporations Act issued a direction to Air India to allow male and female
cabin crew members to serve till the age of 58 years. On a request from Air
India for reconsideration ofthe directive, Joint Secretary of Ministry of Civil
C Aviation and Tourism, by letter dated 29.12.1989 clarified that the age of
retirement of airhostesses would be 58 years, but they might be given
alternate jobs on ground at the age of 35 years till they attained the retirement
age. After receipt of the clarificatory letter, Air India issued two Circulars
regarding assignment of duties to the airhostesses on ground, who had
attained age of 45 years.
D
E
In 1992 writ petition by respondent-Air India Air Hostesses' Association
was admitted by High Court.
Air India, by an office order, extended the age of airhostesses for flying
duties upto 50 years subject to their medical fitness for flying duties.
Air Corporations Act, 1953, having been repealed and thus Air India
and Indian Air Lines having become two separate Companies under the
Companies Act, a fresh agreement was entered into between Air India and
AICCA whereunder interchangeability of job functions of male and female
cabin crew members was agreed only for new entrants viz. post 1997 recruits,
F without in any way affecting the service conditions and promotional chances
of the existing members i.e. pre-1997 recruits. On 5.6.1997 a formal
memorandum of settlement was reached between AICCA and Air India
whereunder all earlier settlements, awards, record notes and understandings
reached when the Air India was a Corporation were agreed to be continued as
G applicable.
Airhostesses, who were near 50 years of age, including those promoted
to executive cadres for ground duties or who were at the verge of retirement
from flying duties formed a separate Association (respondent-Association)
and filed writ petition in High Court challenging settlement dated 5.6.1997
H on the ground that the settlement was not binding on them as they were
AIR INDIA CAfllN CREW ASSON. '" YESHAWINEE MERCHANT
459
working in executive cadre and thus fell outside the definition of workmen A
under Industrial Disputes Act. The writ petition was dismissed.
In a pending dispute before National Industrial Tribunal respondentAssociation had raised issue of merger and interchangeability of job functions
between male and female cabin crew members.
Airhostesses who were still on flight duties made a representation to
Air India that they were unwilling to give up their b•nel.i~ granted to them
under settlements and agreements or awards treating them in separate cadre;
they wanted their right to early retirement with option to ~•erve on ground till
the age of superannuation.
Another writ petition was also decided by High Court against respondentAssociation holding that the members of crew of Air India and Indian Airlines
could not be treated as one class as the two companies are separate entities
after repeal of Air Corporation Act.
Respondent-Association filed writ petition before High Court wherein
Air India and appellant-Association participated as interveners as they were
not permitted to be imp leaded as party by High Court. High Court held that
age of retirement from Oying duties of airhostesses at the age of 50 years
with option to them to accept post for ground duties after 50 and upto the age
B
c
D
of 58 years is discrimination against them based on sex which is violative of E
Articles 14, 15 and 16 of the Constitution of India as also Section 5 of the
Equal Remuneration Act, 1976 and contrary to the mandatory directions
issued by the Central Government under Section 34 of Air Corporations Act,
1953. High Court also passed consensual order based on proposals made by
Air India i.e. if all pre-1997 recruits clr.iming similar conditions of service
and same retirement age of 58 years at par with male members from nying F
duties, the two cadres of air hostesses and flight pursers should be merged
and their service conditions be suitably adjusted to bring them at par for future
prospects; and that their inter-se seniority would be re-fixed nullifying the
effect of accelerated promotion already earned by airhostesses with higher
allowances given to them. Hence the present appeals.
G
Allowing the appeals, the Court
HELD: I. I. The conditions of services applicable to the airhostesses both
presently working in air or on ground are not discriminatory under Articles
14,15 and 16 of the Constitution.1489-HI
H
460
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A
1.2. Articles 15 and 16 of the Constitution, 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
B treatment with males but for their sex. (484-E-F(
1.3. 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,
C 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
D sex and one or the other alone tinkered so as to retain the beneficial terms
dehors other offered as part ofa 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
E where this is done pursuant to a properly or legally chartered affirmative
action plan. In all the demands in several agreements, settlements and awards
made after negotiations from time to time and periodically, between Air India
and the AICCA, it insisted on maintaining two separate cadres for pre-1997
recruits and agreed for early retirement age to airhostesses compared tc
males from Hying duties with option to go for ground duty between 50 to 58
F years of age. In the course of industrial adjudication through conciliation and
negotiation an 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
airhostesses. [485-A-Ef
G
1.4. A small number of airhostesses 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
H which continue to bind them on the age and condition of retirement and allowed
AIR INDIA CABIN CREW ASSON. 1·. YESHAWINEE MERCHANT
461
to seek for unilateral alteration of the same to the detriment of the majority A ·
of the members and against their wishes and interest.1486-C-DI
1.5. By impugned judgment, the High Court has indirectly nullified the
effect of decision in case of Nergesh Meerza and in doing so relied on
subsequent event 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. B
The subsequent event would not have changed the pre-1997 condition of
service of male and female members of the cabin crew. The reasoning and
conclusions of the High Court that differential treatment which was justified
earlier when Nergesh Meerza's case was decided, 'has become arbitrary and
unreasonable because of the passage of time and merger of cadres after 1997
is disapproved. High Court acted against judicial discipline in taking a view C
in favour of respondent-association on an erroneous basis. 1486-E-Hl
1.6 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 D
female members of the cabin crew. The plea to implead the majority recognized
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. E
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 airhostesses can be granted same retirement age of 58 years from
Hying duties at par with Hight pursers provided they agree for merger of two F
cadres and withdrawal of all earlier benefits available to them such as
accelerated promotions, higher seniority, higher allowances and better
pensionary benefits. At the instance of a very small number of airhostesses
in executive cadre, High Court was accepting conditional proposal of employer
and thus, prejudicially affecting majority of airhostesses of workmen category
who were bound and satisfied with the agreements, settlements as also awards G
made between their association and the employer from time to time.
1487-D-H; 488-AI
I. 7. As the industrial dispute on re-fixation of terms and conditions of
the employees of Indian Airlines as the newly formed company was pending
adjudication before the National Industrial Tribunal, High Court ought to have H
462
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A rescued itself from undertaking a parallel exercise of fixing terms and
conditions of male and female employees of Air India. High Court could not
have accepted the proposals of the employer 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
B and awards and frustrated the adjudication of disputes pending before the
National Industrial Tribunal to which Indian Airlines and its employees are
parties and Air India and its employees through their association have been
summoned to participate. (488-C-E(
1.8. Early retirement age for women from flying duties has been found
C favourable by majority of airhostesses represented through the appellantAICCA, 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
airhostesses have agreed to the early retirement age, as they need an option
to go for ground duties after the age of 50 years. It cannot be said that the
D airhostesses are made to retire at an age earlier than males because of their
falling physical appearance and it is a practice derogatory to the dignity of
women. For services on board of an aircraft both male and female members of
the crew are expected to be smart, alert and agile. Air India v. Nergesh Meerza,
(1981] 4 SCC 335, relied on. (488-H; 489-A, B(
E
2.1. For a long period, after Air India Corporation became a company
under the Air Corporation Act,1994, the different terms and conditions of
service of airhostesses 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
F before amendment introduced to Section 5 of the Equal Remuneration Act,
1976 by Amendment Act 49of1987, the said declaration which is taken note
of and relied in the decision in Nergesh Meerza 's case clearly indicates that
the Central Government did record its satisfaction that the difference in
remuneration and conditions of service of male and female members of the
crew were not based only on the ground of sex. Difference in conditions of
G service of the two cadres remained unchanged till year 1997. The factual
foundation of the declaration under Section 16 ofl976 Act, 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 airhostesses, after their recruitment.
Section 5 of 1976 Act can only be invoked against discriminatory treatment
H
AIR !NOIA CABIN CREW ASSON. I'. YESHAWINEE MERCHANT
463
to women compared to men where between them the 'nature of work is same A
or of a similar nature' and after recruitment there has been a change in
conditions of service of women only on the ground ofsex.1490-H; 491-A-Dl
2.2. The early age retirement policy of airhostesses in Air India does
not contravene Section 5 of 1976 Act and otherwise, it is saved by Section
15(a) and 15(b)(ii) of 1976 Act. The terms and conditions are now part of B
Statutory Regulations, framed under the Air Corporation Act and Standing
Order framed under the Industrial Employment (Standing Order) Act, 1946.
1492-GI
3.1. Section 34 of the Air Corporation Act, 1953 enables the Central
Government to give directions to the Corporation on "the exercise and C
performance by the Corporation of its functions. The Corporation is bound to
give effect to such directions". The valid exercise of power under Section 34(1)
of the Act of 1953 and its mandatory effect on Air India, therefore, cannot be
questioned. 1493-E-Fl
Air India and Ors. v. B.R. Age and Ors., 119951 6 SCC 359, relied on. D
3.2. 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 by the Central Government with the
specific approval of the then Minister of Civil Aviation.1495-CI
3.3. 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 airhostesses have to be continued in service
E
up to the age of 58 yeaJS and l:JS-!)Cr the terms and settlements reached between p
the parties they can be assigned ground duties at their option after retirement
from flight dutie!HIHhe age of 45 years which is now raised to 50 years.
1495-E, Fl
3.4. The exercise of statutory power under Section 34 by the Central
Government, even though not expressed to have been taken in the name of G
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 H
464
SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A void or invalid. The argument advanced on the basis of Article 77 of the
Constitution should not be dealt with 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. [495-H; 496-A, B[
B
3.5. As the conditions of retirement are not a discrimination based only
c
on sex, the directives issued by the Central Government, therefore, also cannot
be held to be in any manner violative of Articles 14, 15 and 16 of the
Constitution or the provisions of the Equal Remuneration Act, 1976.
(496-C, DJ
4.1. When the matter offixing the terms and conditions of empioyees
of Indian Airlines, in which Air India and its employees had also been noticed,
was pending before the National Industrial Tribunal, the High Court should
not have allowed the employer to come forward with proposals for creating
parity in age of superannuation between airhostesses al!d night pursers only
D on the condition of merging of the two cadres with withdrawal of all earlier
benefits conferred on airhostesses 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. High Court was clearly in error in exceeding its jurisdiction by trenching
E upon an industrial field and adjudicating disputes inter se employer 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
p be adversely affected by High Court recording a so called consensual order
directing merger of cadres. The consensual order seriously prejudices the
airhostesses of the workmen category represented by appellant-AICCA.
(497-C-FJ
4.2. The impugned judgment rendered in favour of the respondentG association comprising airhostesses 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 during
pendency of industrial dispute before the National Industrial Tribunal.
H
(497-H; 498-AI
•
AIR INDlA CABIN CREW ASSON. ''· YESHAWINEE MERCHANT [DHARMADHIKARl,J.]
465
4.3. It is open to the Central Government to enlarge the terms of the A
reference under Section I 0 of Industrial Disputes Act, 1947 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 airhostesses 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 B
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. 1498-E-Fl
CIVIL APPELLATE JURISDJCTION : Civil Appeal No. 4570 of2002.
C
From the Judgment and Order dated 20/23.8.2001 of the Bombay High
C-0urt in W.P. No. 1163 of2000.
WITH
C.A. Nos. 4581, 4584-92, 4571-78, 4579-80, 4582-83 of2002.
D
Mukul Rohtagi, Additional Soliciter General (NP), K.K. Venugopal (NP),
Ashok H. Desai (NP), Vinod A. Bobde, CA Sundaram, Ram Jethmalani (NP),
Harish N. Salve, and L. Nageshwara Rao (NP), Mrs. Rekha Rajgopal, Pradeep
Rajgopal, Ms. Bina Madhavan, Prasanth P., Mangesh Kale, Rishiraj Borooah, E
Manali Singhal, Manjeet Dewan, Ms. Ruby Singh Ahuja, Ms. C.K. Sucharita,
Tripurari Ray, Vishwajit Singh, Rakesh K. Sharma, Chander Uday Singh, Ms.
Gitanjali Prabhu, Gopal Jain, Ms. Nandini Gore, Ravi Kini, Pinky Anand, Ram
Verma, Sumit Gupta, Krishan Kumar, Shailendra Tiwary, V.B. Joshi, Rajesh
Ranjan, Y.P. Mahajan, Ajay Sharma and S. Chitale for the appearing parties.
The Judgment of the Court was delivered by
DHARMADHIKARI, J. This batch of appeals has been filed against the
Division Bench judgment of the Bombay High Court dated 20-23.8.2002.
F
In a batch of petitions filed by respondents Air India Air hostesses G
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 H
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SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
A 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').
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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;
(ii) 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;
(iii) Air India is directed to pay to the petitioners 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 1st 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(l)(c) of the
Certified standing orders in the light of the directions given by
this Court;
...
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AIR INDIA CABIN CREW ASSON. r. YESHAWINEE MERCHANT[DHARMADHIKARI, J.]
467
(vi) All Awards and settlements entered into between the management A
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
proposed 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
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reached on the following:-
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(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 E
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 F
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 G
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;
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SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
(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;
(I) 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;
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(viii) All cabin crew (both workmen and executive) shall have to
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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;
AIR INDIA CABIN CREW ASSON. 1·. YESHAWINEE MERCHANT [DHARMADHIKARl,J.] 469
(ix) All air hostesses shall have to exercise a one time irrevocable A
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 B
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."
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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 D
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
appellants before us through Air India Cabin Crew Association [for short
'AICCA'] which has membership both of male and female employees working E
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 committee 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 retiremei:it from flying duties has
been raised.
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Two Corporations in the name of Air India (engaged in international
flights) and Indian Airlines (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 wa1> H
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SUPREME COURT REPORTS (2003] SUPP. I S.C.R.
A 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 ar~ 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
B Corporations. Those tribunals were presided over by Mr. Justice Khosla and
Mr. Justice Mahesh Chandra.
In the year I 972 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
C 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
D between male and female members of the crew so as to allow them to operate
the aircraft with only 14 crew members. 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
E 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 air hostesses in the Indian Air lines, Government of India Notification
dated 12.4.1980 fixed minimum retirement age as 35 years. It was provided that
F 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 Airlines, 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.