Air India Cabin Crew Assn.& Ors vs Union Of India & Ors

2. Special Leave Petitions (Civil) Nos.20668-20672 of 2007, Special Leave Petitions (Civil) Nos.20679- 20682 of 2007 and Special Leave Petitions (Civil) Nos.20773-20778 of 2007, have been taken up together for hearing and final disposal, inasmuch as, the facts in the several matters are the same, and the law involved is also the same. For the sake of convenience, we shall narrate the facts from Special Leave Petitions (Civil) Nos.20668- 20672 of 2007, which have been filed by the Air India Cabin Crew Association and two others.

4. In order to appreciate the case made out by the appellants in these appeals, it is necessary to set out briefly some of the facts leading to the filing of the several writ petitions before the Delhi High Court.

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 12 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 13 Staff up to the year 1997.

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.

The said writ petitions, along with various connected matters, came up for consideration before 17 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 18 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 expression "In-Flight Supervisor" is, in fact, a description of a job function and is not a post exclusively reserved for the male Cabin crew.

15. Mr. Agarwala submitted that the challenge to the directive issued by the Central Government on 21st November, 2003, had been wrongly interpreted by the management of Air India as facilitating the breach of binding Settlements, Agreements and Record Notes. The management of Air India also appears to have taken the position that the directive issued by the Central Government on 21st November, 2003, freed it from the directions contained in the decision of this Court in Yeshaswinee Merchant's case (supra). Mr. Agarwala submitted that the decision in these appeals would depend on the answers to the following questions :

24. Inasmuch as, all members of the appellant Association, which was a Trade Union registered under the Trade Unions Act, 1926, belong to the workmen category of the Cabin Crew, as was then existing, such as Assistant Flight Purser, Flight Purser, Check Flight Purser, Additional Senior Check Flight Purser, Senior Check Flight Purser, Air Hostess, Senior Air Hostess, Check Air Hostess, 32 Additional Senior Check Air Hostess, Senior Check Air Hostess and those recruited from March, 1995 onwards till the date of Settlement, they intimated to the Management of Air India on 1st July, 1990, that the Settlement entered into between the Management for the period 1st October, 1985 to August 31, 1990, stood terminated on the expiry of the period specified in the Settlement. A fresh Charter of Demands for the period commencing from 1st September, 1990, was also submitted. On 26th May, 1993, the Management of Air India and the appellant Association signed a Memorandum of Settlement providing for payment of interim relief during the period of wage settlement for the period commencing from 1st September, 1990. It was indicated that the settlement was in supersession of all previous Agreements, Record Notes, Understandings, Awards and past practices in respect of matters specifically dealt with or 33 amended or modified. It was stipulated that the Settlement would be implemented after the same was approved by the Board of Directors of Air India Limited. The result of the said Settlements and Agreements was that the designation of Air Hostesses and Flight Pursers were discontinued and all were designated as "Cabin Crew".

Mr. Rao submitted that the High Court, while considering the matter, had arrived at a wrong conclusion and the impugned judgment was, therefore, liable to be set aside.

Similarly, in the case of promotee female Cabin Crew recruited prior to March, 1995, to the executive grades, paragraph 7.5.4 provided that there would be no change in their existing terms and conditions of service and the female Cabin Crew would be entitled to be paid for their flights.

They would also be entitled to applicable allowances and benefits attached to their respective grades of Cabin Crew. Mr. Banerji submitted that the aforesaid Settlement and Promotion Policy superseded all the earlier Settlements and hence the claim of the Appellants regarding the right of In-Flight Pursers to pre-

merger benefits was not tenable in law.

43. Mr. Banerji submitted that the decision to increase the flying age of Air Hostesses to 58 years was to remove the discrimination allegedly 59 practised against them and not to prejudice their service conditions.

45. Mr. Singh submitted that the claim of the Air Hostesses for parity of service conditions with their male counter-parts had been continuing for a considerable length of time. The said disputes were referred to the National Industrial Tribunal by the Central Government on 28th February, 1972.

Hence, they were not "workmen" within the meaning of the Industrial Disputes Act, 1947, and their case was beyond the jurisdiction of the Tribunal.

Ultimately, by Office Order dated 18th December, 2003, female Cabin Crew were permitted to undertake flying duties up to the age of 58 years with the object that opportunities for male and female Cabin Crew should be equal in Air India and that female Cabin Crew should be eligible for being considered for the post of In-Flight Supervisor along with the male Cabin Crew.

46. Mr. Singh submitted that ultimately the writ petitions, which were filed, inter alia, for a declaration that Section 9 of the Air Corporation (Transfer of Undertakings and Repeal) Act, 1994, was ultra vires and for other reliefs, was dismissed by the Delhi High Court, resulting in the Special Leave Petitions. Mr. Singh submitted that 63 there was no substance in the appeals filed since the revised promotion rules had been approved and accepted by all concerned. Mr. Singh urged that it was on account of the continued representations made for placing the cadre of Air Hostesses at par with the cadre of In-Flight Pursers, that the settlement was arrived at and there was no reason to interfere with the same. Mr. Singh submitted that the appeals were, therefore, liable to be dismissed.

Flight Pursers and Air Hostesses promoted to the Executive rank and given Grade 29, which was the starting point of the Executive cadre. The other connected question involved is whether those Flight Pursers who had been promoted in terms of the revised promotion policy, would still be governed by the Settlements arrived at between the Management and the Unions, since they were covered by the same prior to their promotion to the Executive cadre.

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. Agarwala's submissions 67 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. Agarwala's submissions with regard to treating the duties discharged by In-

Flight Pursers.

51. We are not, therefore, inclined to interfere with the orders passed in the several writ petitions, out of which the present appeals arise, and the same are, accordingly, dismissed. All 70 connected applications, if any, will also stand disposed of by this order.

52. However, having regard to the facts of the case, the parties will bear their own expenses.