Case: Air India Cabin Crew Assn Vs. Union Of India

5. According to the appellants, for several decades two distinct cadres have been existing in Air India Corporation, comprising male Air Flight Pursers and female Air Hostesses, each with their own terms and conditions of service, including promotional avenues. In 1980, one Nergesh Meerza and four other Air Hostesses filed Writ Petition No.1186 of 1980 in the Bombay High Court, questioning the constitutional validity of Regulation 46(i)(c) of the Air India Employees Service Regulations and raising certain other questions of law. Air India, being the Respondent No.1 therein, moved a transfer petition, being Transfer Case No.3 of 1981, for transfer of the writ petitions from the Bombay High Court to this Court on the ground that several writ petitions filed by Air India were pending before this Court and also on account of the fact that other writ petitions had also been filed by the Air Hostesses employed by the Indian Airlines Corporation, hereinafter referred to aswhich were also pending in this Court involving almost identical reliefs. Even in the said case, which was transferred to this Court, it was observed that from a comparison of the method of recruitment and the promotional avenues available, Air Hostesses formed an absolutely separate category from that of Assistant Flight Pursers in many respects, having different grades, different promotional avenues and different service conditions.6. At this stage, it may be necessary to give a little further background regarding Indian Airlines Corporation and Air India Limited established under Section 6 of the Air Corporations Act, 1953. Subsequently, Indian Airlines Limited and Air India Limited were formed and registered under the Companies Act, 1956. In 1994, the Air Corporations (Transfer of Undertakings and Repeal) Act, 1994, hereinafter referred to as, was enacted to provide for the transfer and vesting of the undertakings of Indian Airlines and Air India respectively to and in the companies formed and registered as Indian Airlines Limited and Air India Limited and also to repeal the Air Corporations Act, 1953. Section 3 of the 1994 Act provided for the vesting and transfer of the undertaking of Indian Airlines in Indian Airlines Limited and the undertaking of Air India in Air India Limited.Section 8 of the 1994 Act also specified that every officer or other employee of the Corporations, except the Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of the Corporation serving in its employment immediately before the appointed day (1st April, 1994) would, in so far as such officer or other employee were concerned, become as from the appointed day, an officer or other employee, as the case may be, of the company in which the undertaking had vested and would hold his office or service therein for the same tenure, at the same remuneration and upon the same terms and conditions of service. He would be entitled to the same obligations, rights and privileges as to leave, passage, insurance, superannuation scheme, provident fund, other funds of retirement, pension, gratuity and other benefits as he would have held under the Corporation if its undertaking had not vested in the Company, with the option of not becoming an officer or other employee of the Company.7. The dispute regarding the distinction between Assistant Flight Pursers and Air Hostesses resulted in a Record Note signed on 30th May, 1977, by the Air India Cabin Crew Association and Air India Limited, which noticed differences between the functional designation of In-Flight Crew and actual designation and also permitted female Executive Air Hostesses to fly. After the decision in Nergesh Meerzas case, on 17th November, 1983, a further Record Note was entered into between the aforesaid Association and Air India Limited, which introduced avenues of promotion for Air Hostesses. It was provided that the avenues of promotion for Air Hostesses would be through the categories of Senior Check Air Hostess, Deputy Check Air Hostess and Additional Chief Air Hostess to Chief Air Hostess. It was also indicated that as far as male Assistant Flight Pursers, comprising Flight Pursers and In- Flight Supervisors were concerned, they would continue to be unaffected and the hierarchy on board the aircraft for various categories would remain as was then existing and there would be no change in the job functions of any category of cabin crew on account of the said agreement. What is evident from the said Record Note is that the separate and distinct cadres of male and female Cabin Crew were continued in respect of promotional avenues, hierarchy and job functions on board an aircraft.8. Subsequently, on 5th June, 1997, a settlement was arrived at between the appellants and Air India that all earlier settlements, awards, past practices, record notes and understandings arrived at between the erstwhile Corporation and the appellant Association, would continue. Immediately after the signing of the said Memorandum of Settlement, on the very same day Air India Limited issued a promotion policy for all the Cabin Crew members, but treated the pre-1997 and post-1997 crew separately. By a specific clause, the said promotion policy amended the existing promotional avenues for the male Cabin Crew to that of In- Flight Supervisors and female Cabin Crew to the post of Senior Check Air Hostesses recruited prior to the settlement. The said promotion policy kept the promotional avenues in the two streams of male Cabin Crew and female Cabin Crew, recruited prior to 1997, separate.9. It may be of interest to note that there was a distinct division among the Air Hostesses, the majority of whom belonging tocategory, numbering about 684 at the relevant time, were members of the Air India Cabin Crew Association. When the revised promotion policy for Cabin crew was brought into effect from 7th June, 1997, a small number of about 53 Air Hostesses, who were about 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 an association in the name of Air India Air Hostesses Association. The Association unsuccessfully challenged the binding effects of the Settlement of 5th June, 1997, in the Bombay High Court, but got itself impleaded as a party in a pending Reference before the National Industrial Tribunal and raised the issues of merger and interchangeability of job functions between the male and female Cabin Crew members. Despite opposition from the appellant Association, which represented 684 out of 1138 Air Hostesses of Air India, the High Court accepted the conditional proposal of merger of cadres of male and female members of Cabin Crew and held that Air Hostesses were also entitled to retire at the age of 58 years from flying duties on par with Flight Pursers and other members of the cabin crew. The High Court held that the age of retirement from flying duties of Air Hostesses at and up to the age of 50 years with option to them to accept ground duties after 50 and up to the age of 58 years amounted to discrimination against them based on sex, which was violative of Articles 14, 15 and 16 of the Constitution, as also Section 5 of the Equal Remuneration Act, 1976. It was further held that the two cadres of male and female Cabin Crew members came to be merged only after 1997 and such merger applied to fresh recruits and the conditions of service and distinction between the two cadres would continue with regard to the existing Cabin Staff up to the year 1997.10. The aforesaid promotion policy separated the promotional avenues for male Cabin Crew and female Cabin Crew recruited prior to 1997 as a separate and distinct class, as was also observed in Yeshaswinee Merchants case (supra). According to the appellants, the Union of India, by its directive dated 21st November, 2003, attempted to over-reach the judgment of this Court in Yeshaswinee Merchants case (supra), wherein, the directives dated 16th October, 1989 and 29th December, 1989, were to become inoperative after the Repeal Act of 1994. Thereafter, on 18th December, 2003, in terms of the directive of 21st November, 2003, the Respondent No.2 came out with an Office Order of even date, wherein, it was, inter alia, indicated that with the flying age of female Cabin Crew having been brought at par with the male Cabin Crew, the issue of seniority and promotion would have to be addressed by the Department so that there was no resentment among the categories of employees. Liberty was given to the In-Flight Service Department to assign flight duties to such Air Hostesses, who may have been grounded at the age of 50 years. On 30th December 2003, the Respondent No.2 addressed a letter to the Air Hostesses informing them that in keeping with the directions received from the Respondent No.1, it had been decided by the management to allow them to fly up to the age of 58 years, though, of course, such decision would be without prejudice to the proceedings pending before the National Industrial Tribunal at Mumbai. Thereafter, by subsequent letters, the Respondent No.2 wrote to the appellant Association that on the issue of service conditions, the management was aware of the various Agreements, Awards and Judgments and it was re-emphasized that the two cadres were not being merged and the service conditions of the male and female Cabin crew continued to be separate and distinct in terms of the Agreements and judgments passed in respect thereof.11. However, in contrast to the correspondence on 27th December, 2005, the Respondent No.2, in total disregard of the Record Notes, Memorandum of Settlement and the judgments of this Court in Nergesh Meerzas case and in Yeshaswinee Merchants case (supra), issued an administrative order bringing female Cabin crew and the male Cabin Crew at par in respect of age of retirement. Accordingly, Air Hostesses were also permitted to fly up to the age of 58 years. In the said order it was also indicated that after the promulgation of the order, the Executive Female Cabin Crew would be eligible to be considered for the position of In-Flight Supervisor along with the Executive Male Cabin Crew. It was, however, clarified that the number of Executive Cabin Crew to be designated as In-Flight Supervisors would be based on operational requirements of the company.12. On the promulgation of the said order, the appellant Association made a representation to the Chairman and Managing Director of the Respondent No.2 on 28th December, 2005, pointing out that the same was contrary to the judgments of this Court. Since the appellant Association did not receive any response to its representation, it filed Writ Petition (C) Nos.983-987 of 2006, before the Delhi High Court on 21st January, 2006, complaining that the orders passed were arbitrary, illegal and contrary to the various decisions of this Court. The said writ petitions, along with various connected matters, came up for consideration before the Division Bench of the High Court on 30th January, 2006. After impleading Air India Air Hostesses Association and the Air India Executive Air Hostesses Association as respondents in the writ petition on the ground that they were likely to be affected by any order which may be passed in the pending proceedings, the appellant Association filed its Rejoinder Affidavit to the Counter Affidavits filed by the Respondent Nos.1, 2 and 3 and denied the claim of the respondents that the posts of Flight Supervisors had been abolished by the promotion policy of 1997 and that the male and female cadres of the Cabin Crew recruited prior to 1997, had been merged. Before the Division Bench of the High Court, both the parties appeared to have clarified their stand that the merger of Indian Airlines with Air India did not in any manner affect the existing settlements and agreements. Ultimately, on 8th October, 2007, the Division Bench of the High Court dismissed the writ petitions filed by the appellant Association. By the said judgment, the Division Bench of the High Court rejected the challenge of the appellant Association to the constitutional validity of Section 9 of the Air Corporation (Transfer of Undertakings) Act, 1994, though, on the ground of laches. The other challenge to the impugned directive issued by the management on 21st November, 2003, was also not accepted. More importantly, for our purpose in these cases, the Division Bench of the High Court held that the expressions, in fact, a description of a job function and is not a post exclusively reserved for the male Cabin crew.13. As mentioned hereinabove, these appeals are directed against the said decision of the Division Bench of the High Court of Delhi.

Reasoning:
e the Agreements are not altered or vary to any large extent, what has been done is to iron out the differences on account of the revised promotion policy, which exempted some of the workmen, who had been transformed to the category of Executive from the ambit of the said Settlements. It is apparent from a reading of both the judgments delivered in Nergesh Meerzas case and Yeshaswinee Merchants case that the same were rendered in the context of bringing parity between the cadre of In-Flight Supervisors and the cadre of Air Hostesses. It is, in fact, the prerogative of the Management to place an employee in a position where he would be able to contribute the most to the Company. Hence, notwithstanding the decision in Nergesh Meerzas case and in Yeshaswinee Merchants case, the Air India was at liberty to adopt the revised promotion policy which was intended to benefit all the employees.49. As indicated hereinbefore, Mr. Pramod B. Agarwala, representing the Appellant Association, submitted that the appellants were not concerned with the post-revised promotion policy, but with the separate cadre of In-Flight Pursers, as distinct from the cadre of Air Hostesses, with regard to their channel of promotion. We are inclined to agree with Mr. Agarwalas submissions that prior to 1997, there was a category of Cabin Crew referred to as In-Flight Supervisors, which was confined to In-Flight Pursers alone and did not concern the Air Hostesses. However, we are unable to agree with Mr. Agarwalas submissions with regard to treating the duties discharged by In- Flight Supervisors to indicate that