Case: Air India Cabin Crew Association Vs. Yeshawinee Merchant

of the parties to undertake the exercise of merging of two cadres. 74. It is true that the pending dispute before the National Industrial Tribunal is between employees of India 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 the National Industrial Tribunal. When the matter of fixing the terms and conditions of employees of Indian Airlines, in which Air India and its employees had also been noticed, was pending before the National Industrial Tribunal, it was wholly uncalled for the High Court to have allowed the employer to come forward with proposals for creating parity in age of superannuation between air hostesses and flight pursers only on the condition of merging of the two cadres with withdrawal of all earlier benefits conferred on air hostesses like accelerated promotions, higher salaries, higher allowances and pension packages. Proceedings under Article 226 of the Constitution, are neither appropriate nor a substitute of industrial adjudication in the industrial courts and tribunals constituted in industrial law. In our opinion, the High Court was clearly in error in exceeding its jurisdiction by trenching upon an industrial field and adjudicating disputes inter se employer and employees and employees. Before the High Court not all the parties likely to be affected were the parties to the writ petitions. The appellant/All India Cabin Crew Association was only allowed intervention and it could not have foreseen that conditions of service of both male and female members working in cabin would be adversely affected by High Court by recording a so called consensual order directing merger of cadres. The consensual order seriously prejudices the air hostesses of the workman category represented by appellant/AICCA. The order freezes their salaries and allowances for two years, forces them to opt within a month as to whether they would fly after 50 year of age or not, makes their duties interchangeable and forces them to continue with the arduous jobs with males on board with flight duties up to the age of 58 years. 75. It is also to be noted that Air India Officers Association as one of the appellants on leave before us was not even a party before the High Court. The impugned judgment rendered in favour of the respondent/association comprising air hostesses of executive category has also adversely affected the service conditions of its male and female members of officers category. The High Court, therefore, adopted a hazardous course of fixing the terms and conditions of employees of Air India of various categories of males and females which was an exercise to be undertaken in pending industrial dispute before the National Industrial Tribunal. 76. 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. 77. 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. 78. 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.79. It is open to the Central Government to enlarge the terms of the reference under section 10 of the Industrial Disputes Act to specifically include for adjudication the dispute of Air India and its employees and/or the employees inter se. It would also be open to the air hostesses represented by appellant/AICCA and the respondent/AHSA to make their demands in the pending reference before the Tribunal by seeking a fresh reference from the Central Government. It would be than 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. 80. Lastly in desperate attempt, to support a part of the judgment of the High Court which declares denial of flight duties to the air hostesses up to the age of 58 years at par with males as invalid, on behalf of the respondents/associations, an alternative submission is advanced that the other part of the impugned judgment whereby conditional proposal of Air India or merger of the two cadres [males and females] was accepted, may alone be quashed and the remaining part be left undisturbed and intact as valid. 81. In view of the detailed discussion of the various grounds urged before us, we have held that both impugned parts of the judgment of the High Court are unsustainable. It is, therefore, not possible for us to accept the alternative submission made on behalf of the respondents/associations that since two parts of the impugned judgment are severable, one of the parts fixing age of retirement for air hostesses on flight duties up to the age of 58 years be upheld.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]50. 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 negations and settlements with association of air hostesses represented by AICCA with appropriately matching numerous advantages and betterment to match the. We have also found that early retirement age for women from flying duties has been found favourable by majority of air hostesses represented through the appellant/AICCA before us who support the age of retirement and option for ground duties given to them. Air India is a travel industry. Pleasing appearance, manners and physical fitness are required for members of the crew of both sexes. The air hostesses have agreed to the early retirement age, as they need an option to go for ground duties after the age of 50 years. The arguments advanced on behalf of respondent/association, therefore, cannot be accepted that the air hostesses are made to retire at an age earlier than males because of their failing physical appearance and it is a practice derogatory to the dignity of women. For services on board of an Air Craft both male and female members of the crew are expected to be smart, alert and agile.51. The early retirement age of 50 years from flying duties for female members of the crew with an option to them to accept ground duties beyond 50 years up to the age of 58 years being a service condition agreed to and incorporated in a binding agreement or settlement and award reached with the employer, the same cannot be held to be either arbitrary or discriminatory under Articles 15 and 16 of the Constitution. It is not a discrimination against females only on ground of sex. As a result of the impugned judgment of the High Court, there would be merger of two cadres of air hostesses and flight pursers and the air hostesses would have to compulsorily continue on flying duties up to the age of 58 years even though for health and family reasons they are unable to fly after the age of 50 years. On the order of the High Court and after the merger of cadres of male and female employees, the females have to resign from their jobs if they do not want to fly up to the age of 58 years. The order of the High Court requires the air hostesses to give up their more advantageous conditions of service for which they had held negotiations with the employer and obtained binding settlements and awards in the course of industrial adjudication.52. The decision in Nergesh Meerzas case (supra) was binding on the High Court. The High Court was clearly wrong in holding that it had become inapplicable by passage of time. It is not open to a High Court to indirectly overrule a judgment of this Court or try to sidetrack it on the basis of subsequent events which were not relevant for pre-1997 recruits. The separation of male and female cadres with differences in their conditions of service, seniority, emoluments and allowances remained unchanged for pre-1997 recruits and the merger has taken place only for male and female new recruits after 1997.53. For the aforesaid reasons, we do not find that the conditions of services applicable to the air hostesses both presently working in air or on ground are discriminatory under Articles 14, 15 and 16 of the Constitution.The term and condition of age of retirement settled in course of industrial adjudication by air hostesses through their associations is a term and condition of their employment fixed in accordance with the adjudicatory machinery provided in Industrial Law. It gives them a special treatment as found by them to be favourable to them. We have already noticed that there is nothing objectionable for the air hostesses to agree for a lower retirement age from flight duties with option for grounds duties after the age of 50 years up to the age of 58 years. Duties on flight demand of air hostesses physical fitness, agility and alertness.60. A service condition giving a special treatment to women is saved by clause a) of Section 15 of the E.R. Act of 1976. It is also saved by sub-clause (ii) of clause b) of the said section which allows special treatment to women in terms and conditions of service relating to retirement. We, therefore, hold that the early age retirement policy of airhostesses in Air India does not contravene Section 5 of the E.R. Act of 1976 and otherwise, it is saved by section 15(a) and 15(b)(ii) of the E.R. Act of 1976. The challenge, therefore, to the terms and conditions of early retirement of air 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.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 f 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 our opinion, reference to Article 77 is wholly inappropriate. The exercise of statutory power under section 34 by the Central Government, even though not expressed to have been taken in the name of President, does not render it invalid. Clause 2 of Article 77 insulates an executive action of the government formally taken in the name of President from challenge on the ground that it is not an order or instrument made or executed by the President. Even if an executive action of the Central Government is not formally expressed to have been taken in the name of President, Article 77 does not provide that it would, therefore, be rendered void or invalid. We need not, therefore, deal with the argument advanced on the basis of Article 77 of the Constitution because the respondent/association itself is relying on the directive dated 16.10.1989 of the Central Government which is not formally expressed in the name of President in terms of Article 77 of the Constitution.In view of the detailed discussion of the various grounds urged before us, we have held that both impugned parts of the judgment of the High Court are unsustainable. It is, therefore, not possible for us to accept the alternative submission made on behalf of the respondents/associations that since two parts of the impugned judgment are severable, one of the parts fixing age of retirement for air hostesses on flight duties up to the age of 58 years be upheld.We have already dealt with the challenge made to the retirement of the air hostesses from flight duties at the age of 50 years and grounding them thereafter up to the age of 58 years. We have held that the conditions of retirement hare not a discrimination based only on sex. The dir4ecties issued by the Central Government, therefore, also cannot be held to be in any manner in violation of Articles 14, 15 and 16 of the Constitution or the provisions of Equal Remuneration Act, 1976.We have already held above that the High Court committed a serious error of procedure and law in entertaining proposals from the employer - the Air India Limited and accepting them as consented by all parties, to make it as a part of its judgment. We have already held that Nergesh Meerzas case (supra) was binding on the High Court and could not have been sidetracked by observing that by passage of time the cadres of flight pursers and air hostesses have virtually been merged and the distinction between them has been obliterated. We have also held that such conclusion on the part of the High Court is not borne out fro the facts on record. The two cadres of males and females on cabin came to be merged only after the year 1997 for fresh recruits and the conditions of service and distinction between two cadres continued with regard to the existing cabin staff up to the year 1997. The impugned order of the High Court is self-contradictory. It holds that with passage of time the distinction between two cadres and their conditions of service have been obliterated and at the same time, it allows the employer/Air India to make proposals for merger of cadres and interchangeability on all allied matters. Before the High Court, there was neither any pleadings nor materials placed by any of the parties to undertake the exercise of merging of two cadres.It is also to be noted that Air India Officers Association as one of the appellants on leave before us was not even a party before the High Court. The impugned judgment rendered in favour of the respondent/association comprising air hostesses of executive category has also adversely affected the service conditions of its male and female members of officers category. The High Court, therefore, adopted a hazardous course of fixing the terms and conditions of employees of Air India of various categories of males and females which was an exercise to be undertaken in pending industrial dispute before the National Industrial Tribunal.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.79. It is open to the Central Government to enlarge the terms of the reference under section 10 of the Industrial Disputes Act to specifically include for adjudication the dispute of Air India and its employees and/or the employees inter se. It would also be open to the air hostesses represented by appellant/AICCA and the respondent/AHSA to make their demands in the pending reference before the Tribunal by seeking a fresh reference from the Central Government. It would be than 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