Case: Air India Cabin Crew Association Vs. Yeshawinee Merchant

This batch of appeals has been filed against the Division Bench judgment of the Bombay High Court dated 20-23.8.2002.2. In a batch of petitions filed by respondents Air India Air hostesses 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 in 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 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).3. 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"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 weight check and further subject to the measures suggested by Air India and reproduced earlier in this Order;(ii) 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 markedto 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 Ist 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(1)(c) of the Certified standing orders in the light of the directions given by this Court;(vi) all Awards and settlements entered into between the management 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 needsindicated 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 reached on the following:-(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 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 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 of 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 as the same, the existing relative seniority will remain undisturbed;(f) 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, andh) 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;(viii) All cabin crew (both workmen and executive) shall have to 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;(ix) All air hostesses shall have to exercise a one time irrevocable option with one month from the date of the receipt of intimation given in that behalf by Air India to decidethey 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 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, made or female joined after October 1997 will be allowed to claim bar loss compensation.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 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) which has membership both of the 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.6. 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.7. 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 to Corporation established under the Act to frame regulations laying down terms and conditions of service of its officers and employees. After the Corporation was 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 are 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 Corporations. Those tribunals were presided over by Mr. Justice Khosla and Mr. Justice Mahesh Chandra.8. In the year 1972 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 Generalpower 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 India Airlines. TheUnion of India India were permitted to be impleaded as a party. The employer Air India made a demand before the tribunal of interchangeability of job functions between male and female members of the crew so as to allow them to operate the aircraft with only 14 crewmembers. Justice Mahesh Chandra Tribunal gave its award on 25.2.1972 in which Airclaim 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 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.9. For airhostesses in the India Air lines, Government of India Notification dated 12.4.1980 fixed minimum retirement age as 35 years. It was provided that 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 Air Lines, Air India also carried out similar amendments in their arguments. 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. Nergesh 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. Nergesh 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 Nergeshcase, 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.10. It would be necessary to take note of the decision of Nergeshdecision (supra) rendered by threeBench of this Court as according to the appellants some of the legal premises are already covered and certain legal questions are already settled by the aforesaid judgment, which are binding on the High Court and also on this Bench of two Judges. In the case of Nergesh Meerza (supra) attempt was made to persuade the Court to hold that the air hostesses (females) and flight pursers (males) being members of a team on board air craft should be treated as one single cadre of employees allowing on discrimination in their service conditions. After taking note of different modes of the recruitment, promotional avenues, salaries, allowances of the two cadres, in the case of Nergesh Meerza (supra), this Court recorded the following conclusion in paragraph 57 of the itsfrom the comparison of the mode of recruitment the qualification, the promotional avenues and other matters which we have discussed above we are satisfied that the Air hostesses form an absolutely separate category from that of the Flight pursers in many respects having their different grades, deferent promotional avenues and different services conditions.The conclusion is reiterated in paragraph 60 of the judgment in the followingregard, therefore, to the various circumstances, incidents, service conditions, promotional avenues etc. of the Flight pursers and Air hostesses, the inference is irresistible that Air hostesses though members of the cabin crew entirely separate class governed by different set of rules and regulations and conditions of service.It is after recording the above conclusion that the Court then went on to consider the argument advanced on behalf of Air India by their Senior Counsel Mr. Nariman that most of the job functions performed by flight pursers and air hostesses are entirely different. This argument of the counsel made on behalf of the employer was negatived and the relevant part of the observations in the judgment have to be understood in the context in which they are made. They cannot be read out of context by the High Court to nullify the conclusion of this Court reproduced above in which it is very clearly stated that the male and female members of the crew on board are two different classes of employees governed by different sets of service conditions. On the alleged difference in job functions the Supreme Court observed asare, 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 a 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 conclusionwe 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 pursuers, who are male members of the crew on board and are allowed the age of retirement of 55 or 58 years. The argument claiming parity on retirement age by females with male members of the crew was negatived. It was held that there is no discrimination against air hostesses based only on sex. It further held that the service condition is neither unconstitutional under Article 15 & 16 of the Constitution nor violative of Section 4 of the ER Act. The Court quoted notification issued by the Central Government under Section 16 of the ER Act. It upheld the stand of the employer that the different ages of retirement and salary structure for male and female employees in Air India are based on their different conditions of service and not on sex alone.15. Section 4 of the E.R. Act prohibits the employer from paying unequal remuneration to male and female workers for ‘same work or work of a similarSection 5 of the said Act prohibits discrimination by the employer while recruiting men and women workers for ‘same work or work of similarBy Amendment introduced to Section 5 by the Amendment Act No. 49 of 1987, employer has been prohibited from discriminating men and women after their recruitment in the matter of their conditions of service for the ‘same work and work of similarSection 5 after its amendment by Act No. 49 of 1987 reads asNo discrimination to be made while recruiting men and women workers- On and from the commencement of this Act, no employer shall, while making recruitment for the same work of a similar nature, (or in any condition of service subsequent to recruitment such as promotions, training or transfer) make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force.Provided that the provisions of this section shall not affect any priority or reservation for scheduled castes or scheduled tribes, ex-servicemen, retrenched employees or any other class or category of persons in the matter of recruitment to the posts in an establishment or employment.The expression - ‘same work or work of a similarhas been defined in Section 2(h) of E.R. Act as- same work or work of a similar nature" means work in respect of which the skill, effort and responsibility required are the same, when performed 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 different in regard to remuneration of men and women workers under an employer is found to be based on ‘a factor other thanand there is no contravention of the provisions of the Act by the employer. Section 16 reads aspower 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 factor other than sex, it may, by notification, make a declaration 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 the Act a Notification was issued on 15th June 1979 and published in Gazette of India dated 17th June, 1979 which reads asDelhi, the June 15, 1979. S.O. 2258 - in exercise of the powers conferred by Section 16 of the Equal Remuneration Act, 1976 (25 of 1976) the Central Government having considered all the circumstances relating to, and terms and conditions of employment of Air Hostesses and Flight Stewards, are satisfied that the difference in regard to pay, etc. of these categories of employees are based on different conditions of service and not on the different of sex. The Central Government, therefore, declares that any act of the employer attributable to such differences shall not be deemed to be a contravention of any provision of this Act.n exercise of powers under Section 16 of the Act a Notification was issued on 15th June 1979 and published in Gazette of India dated 17th June, 1979 which reads asDelhi, the June 15, 1979. S.O. 2258 - in exercise of the powers conferred by Section 16 of the Equal Remuneration Act, 1976 (25 of 1976) the Central Government having considered all the circumstances relating to, and terms and conditions of employment of Air Hostesses and Flight Stewards, are satisfied that the difference in regard to pay, etc, of these categories of employees are based on different conditions of service and not on the difference of sex. The Central Government, therefore, declares that any act of the employer attributable to such differences shall not be declared to be in contravention of any of the provisions of the Act.It is to be noted that the aforesaid notification was issued in the year 1979 much before the amendment brought in 1987 to Section 5 of the ER Act. The notification under Section 16 quoted above is relevant for a different purpose. In Nergeshcase (supra) - the Court recorded following conclusion in paragraphdeclaration is presumptive proof of the fact that in the matter of allowances, conditions of service and other types of remuneration, no discrimination has been made on the ground of sex only. The declaration by the Central Government, therefore, completely concludes the matter.The Supreme Court on considering the challenge to the lower retirement age of female members of the crew on board on the basis of gender discrimination prohibited by Articles 15(1) and 16(2) of the Constitution, observedArticles of the Constitution do not prohibit the State from making discrimination on the ground of sex coupled with otherPara 70, the conclusion recorded isthese reasons, therefore, the arguments of Mr. Setalwad that the conditions of service with regard to retirement etc, amount to discrimination on the ground of sex only is overruled and it is held that conditions of service indicated above are not violative of Article 16 on this ground.Having thus rejected the challenge to the lower retirement age for female members of crew as the discrimination based only on sex, Supreme Court struck down two service conditions which provided for termination of services of Air hostesses on first pregnancy and extension 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 NergeshThe Court then relied on the award of Justice Mahesh Chandra Tribunal and held that before the Tribunal the Air hostesses never demanded that their age of retirement should be at par with the male employees at the age of 58 years. The Award of the Tribunal was held to be binding on the air hostesses. See the following observations in paragraphmight further mention that even before the Mahesh Tribunal, the stand taken by the Air hostesses was merely that their age of retirement should be extended to 45 years and they near put forward or suggested any claim to increase the retirement age to 58 which clearly shows that their present claim is not merely belated but an afterthought particularly because the Mahesh Tribunal was dealing with this particular grievance and if the Air hostesses were really serious in getting their retirement age equated with that of the Flight pursers, i.e. 58, they would not have failed to put forward this specific claim before the Tribunal. This is yet anohter ground on which the claim of the Air hostesses to be retired at the age of 58 cannot be entertained because as we have already shown the Award binds the parties even though its period may have expired".On 17.11.1993 Air India as the employer and the members of the AICCA representing both its male and female employees entered into an agreement where under the category of Deputy Chief Air hostess was reintroduced having its promotional avenues from within the female cadre. The record note of the proceedings mentions that existing avenues of promotion of the male cabin crew would remain unaffected, the separate hierarchy among the various categories would remain as at present and there would be no change in the job functions of any category of cabin crew as a result of the agreement.24. It may also be mentioned that the Cabin Crew Manual which provided for separate and distinct job functions and promotional avenues to male and female cabin crew was challenged by one of the Air hostesses, namely, Ms. A. Mulgaonkar in Writ Petition No. 490/ 84 in the High Court of Bombay. That petition was dismissed on 22.3.1984. Nargesh Meerza and four other Air hostesses challenged the agreement containing the record note dated 17.11.1983 in the High Court of Bombay in Writ Petition 116/84. The Court speaking through the learned Sujata Manohar J. (as the then was) upheld the legal validity of the argument by its judgment dated 25.7.1984. The Division Bench on 31.10.1985 also dismissed Appeal No. 1068/84 preferred by the individual Air hostesses.25. In the year 1987, Ms. Aquilla 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 ‘constructie resin view of Nergeshcase (supra). Appeal preferred was also dismissed.26. 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 twoBench of this Court dismissed the petition on the ground that the threeBench decision in Nergeshcase (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.27. 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 45 years. The bar on marriage was brought down from four to three years. The number of posts of Senior Airhostesses and Deputy Chief Airhostesses was increased.28. In the year 1989 Air hostesses of India Air Lines and Air India filed a petition before the Petition Committee of the Lok Sabha complaining discrimination in the retirement age and other service conditions. The Petition Committee recommended that the different retirement ages for male and female cabin crewmembers be abolished and ban on marriage of Air hostesses should be completely revoked. On 16.10.1989, the Central Government in exercise of powers under Section 34 of the Air Corporations Act issued a direction to the Air India that the male and female cabin crew members be allowed to serve till the age of 58 years. Rival contentions have been addressed on the import and effect of the Directives of the Central Government and the efficacy of the subsequent clarification issued to the same by letter dated 16.10.1989. The relevant parts of the letters are, therefore, reproduced hereunder with some portions underlined for the purpose of emphasis:‘ToThe Managing Director, Air India,Air India Bldg. BombayThe managing Director, Indian Air linesAir lines House,New Delhi.Subject: Discrimination against Air hostesses in Air India and Indian Air lines - Decisionsam directed to say that the question of removing discrimination service conditions against Air hostesses in Air India and India Air lines has been engaging the attention of the Government for quite some time, after careful consideration, it has been decided as under:i) That like the male Cabin crew, Air hostesses in Air hostesses in Air India and Indian Air Lines should also be allowed to serve till the age of 58 years.ii) That the air hostesses should be subject to medical examination once a year after the age of 35 years, but such medical examination shall not be called superannuation medical examination. In addition, Air hostesses. Shall be subject to weight restriction regime which shall be very strictly observed and for which suitable executive instructions and guidelines may be drawn.iii) That no marriage by the Air hostesses within the years of joining service shall be removed.2. You are requested to implement that above decisions of the Government with immediate effect under intimation to 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 faithfullySd/- JR NagpalUnder Secretary to the Govt. of India(Underlining byOn 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 the 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 withup 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 Central15.12.1989The Joint Secretary to the Govt. of IndiaMinistry of Civil Aviation & TourismNew DelhiKind attn: Shri Ravindra GuptaDiscrimination against Air hostesses in Air India and Indian Air lines- Decision Regarding.Please refer to theletter No. AV.18022/23/88-ACCIA dated October 16, 1989:-It may be pointed out that, as indicated above, all these issues relating to service conditions of hostesses of hostesses are subject matters of settlement, understanding award and as such the question of implementing the government decision on the retirement age of hostesses cannot and should not be considered in isolation. The matter requires to be examined in all its aspects, particularly repercussions it may give rise to and also to be discussed with the union for arriving at a mutual settlement.In view of the position explained above, the matter requires a further thorough review by the government. For the reasons stated, we are also proposing to begin a dialogue with the AICCA with a view to coming to an understanding with them on the various issues detailed above. This will also be on the clear understanding that the government decision relates to increase in age of retirement to 58 years and not on flying duties after the age of 35 years, and the deployment of the hostesses after 35 years in alternate jobs would be left to the discretion of the management. As regards the hostesses who are desirous of availing of the option available to them under the existing provisions viz., retirement any time between the age of 35 and 45 years, they may be allowed the option for which a cut off date would be fixed.We shall be grateful for immediate confirmation of the position state above.Yours faithfully,AIR INDIASD/-(J.R. Jagtap)Secretary & Dy. Director - Admin.30. In reply to the above letter of the employer Air India, the Joint Secretary of Ministry of Civil Aviation and Tourism, Department of Civil Aviation, Government of India wrote on 29.12.1989 and informed that the subject was reviewed and it is clarified that the age of retirement of Air hostesses would be 58 years but at the age of 35 the Air hostesses may be given suitable alternate jobs on ground till they attain the age of 58 years. The relevant part of the clarificatory letter dated 29.12.1989 also deserves full reproduction as the learned counsel for the respondent Association has seriously questioned the legal effect of the same.Joint SecretaryMinistry of Civil Aviation & TourismDepartment of Civil Aviation,Government of India,New Delhi.Ravindra GuptaPhone: 352 300December 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 the 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 ofter the age of 35. Air hostesses 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 air hostesses 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 GuptaShri Rajan jetleyManaging DirectorAir India,Air India BuildingBombay 400 021(Underlining byAfter receipt of the above clarification letter on 2.11.1990 Air India issued a circular that Senior Air hostesses who have attained the age of 45 years would be offered suitable positions on ground. A further circular was issued by Air India on 5.11.1991 for modifying a certain portion of the earlier circular dated 2.11.1990 which provided for assignment of duties on ground to the Air hostesses at the lowest level.32. On 19.10.1992 Writ Petition filed by the respondent Air India Air hostesses Association in the Bombay High Court was admitted by the Division Bench. On 12.1.1993 Air India issued an office order extending the age of Air hostesses for flying duties up to 50 years to meet the requirement of the employer and subject to their medical fitness for flying duties. Air Corporations Act 1953 was repealed by Air Corporation transfer of (Undertaking and Repeal) 1984. By the New Act, Air India and Indian Air lines became two separate and distinct Companies under the Companies Act 1956. After the Corporation became the Company a fresh agreement was entered into between the Air India Company and the appellant AICCA on 17.3.1995 where under interchangeability of job functions of male and female members of the crew was agreed only for new entrants without in any way affecting the service conditions and promotional chances of the existing members of the cabin crew. It is to be noted that the agreement of 17.3.1985 makes it clear that pre 1997 recruits would continue to be governed by their existing service conditions, which did not provide for interchangeability of job functions.33. A formal memorandum of settlement was reached between the appellant AICCA and Air India on 5.6.1997 where under all earlier settlements, awards, record notes and understanding reached when the employer was a Corporation were agreed to be continued as applicable. A revised promotion policy for cabin crew was brought into effect from 7.6.1997. It is at this stage that a small number of about 53 air hostesses, who were near about the age of 50, which included those promoted to executive cadres of 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 (main contesting respondent in these appeals). They filed Writ Petition 932/97 in the Bombay High Court seeking a declaration 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 ofunder 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 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.34. 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 distinct cadre. They also protested against loss of seniority to flight pursers. They insisted on their right of early retirement with option to serve on ground till the age of superannuation at par with males. They opposed merger of two cadres of air hostesses and flight pursers. The Writ Petition No. 932/77 filed by the respondent/association seeking declaration that the settlement dated 5.6.1997 entered into with the appellant is not binding on them was dismissed by the Division Bench of Bombay on 8.7.1997. Second Writ Petition No. 1473/99 was also decided on 14.9.99 against the respondent/association holding that the two companies i.e. Indian Air lines and Air India are separate entitles after the Air Corporation Act, 1953 was repealed and substituted by Repealing Act of 1994. It was held that the members and the crew of two companies cannot be treated as one class.35. It is at the above stage, that Writ Petition No. 1163 of 2000, which has given rise to this appeal, came to be filed in the High Court of Bombay by the respondent/association with membership of minority of air hostesses working in executive cadre. The appellant/AICCA filed a Caveat for being made a party but the High Court only allowed intervention to them. Both the employer Air India and the appellant/AICCA as intervenor before the Bombay High Court took a stand a their affidavits that interchangeability between male and female members of the crew has been agreed only for post 1997 recruits and not for pre-1997 recruits. In the long course of hearing before the Bombay High Court, it appears that Air India as employer was encouraged to make proposals for removing alleged discrimination in conditions of service between males and females members of the cabin crew. Two sets of proposals were submitted by Air India. It was proposed that if all pre-1997 recruits also claim similar conditions of service and same retirement age of 58 years at par with males from flying duties, the two cadres of air hostesses and flight pursers should be merged and their service conditions be suitably readjusted to bring them at par for future prospects. The seniority inter se between them was proposed to be re-fixed by nullifying the effect of accelerated promotion already earned by air hostesses with the higher allowances given to them. It is on these proposals that the High Court in the impugned judgment has put 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 ofhave 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 been made above.36. The High Court of Bombay passed the impugned judgment dated 20/23.8.2001 whereby it accepted the conditional proposal of merger of cadres of male and female members of cabin crew and held that air hostesses are also entitled to retirement age of 58 years on flying duties at par with flight pursers and other members of the cabin crew. The operative part of the judgment of the Bombay High Court and the contents of the proposals of the Air India, as have been accepted by the High Court under its seal and signature and recorded in its judgment, have already been reproduced above.

Reasoning:
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