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CASE NO.: Appeal (civil)  4570 of 2002 Appeal (civil)  4581 of 2002 Appeal (civil)  4584-92 of 2002 Appeal (civil)  4571-78 of 2002 Appeal (civil)  4579-80 of 2002 Appeal (civil)  4582-83 of 2002

PETITIONER: Air  India Cabin Crew Association                                    Air  India Officers Association & Anrs.  Air  India Ltd.  Union of India Kanwarjeet Singh & Ors.  Rani Anthony & Ors

RESPONDENT: Vs. Yeshawinee Merchant & Ors                                        Air  India Ltd. & Ors.                                           Air  India  Hostesses Asson. & Ors                               Air  India Hostesses Assn. & Ors  Air  India Hostess Assn.& Ors.                           Air  India Hostess Assn. & Anrs.

DATE OF JUDGMENT: 11/07/2003

BENCH: Doraiswamy Raju & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T  

Dharmadhikari J.

       This batch of appeals has been filed against the Division Bench  judgment of the Bombay High Court dated 20-23.8.2002.

       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 is discrimination against them based on  sex which is violative of Articles 14,15 & 16 of the Constitution of  India as also Section 5 of the Equal Remuneration 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).

       On such declaration of retirement age of air  hostesses from  flying duties as discriminating compared to their male counterparts  working with them on board of  Air craft, the High Court went further  in passing an alleged consensual order based on proposals in writing  given by the employer Air  India which was alleged to have been  accepted by other parties before the High Court.  The operative part of  the impugned judgment of Bombay High Court by which several reliefs  were granted to the respondent association, needs reproduction:-

(i)     "The impugned letter of the 3rd respondent dated 24th  December 1989 and circulars issued by Air  India dated 23rd  March 1990, 2nd March 1990 and 5th August 1991 as well as

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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 pettioners the differential  amount of salary from the date of grounding till the date of  resumption of flight duties and 50% of the compensatory  allowances as per column 9 of the proposal marked ’x’ to the air  hostesses who were grounded prior to 31st  December 1997 and  30% of the allowances for the air hostesses who were grounded  on or after 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 needs  reproduction:-

"As indicated by us at the outset that Air  India has agreed to  increase the flying age of air hostesses to 58 years subject to  certain measures propsed 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

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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 the male cabin crew having joined Air   India at an earlier date, the grade and basic salary of the  female cabin crew will be frozen till such time as the male  cabin crew is promoted and becomes senior to the female  cabin crew as per his date of joining;  d)      In cases covered by clause (b) and (c) above, the basic  salary and grade of the female cabin crew shall remain  frozen till such time as the male cabin crew becomes  senior to the female cabin crew or for a period of two  years whichever is less;  e)      In situations where the female cabin crew is senior to the  male cabin crew, where the date of joining is the same,  the existing relative seniority will remain undisturbed;  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, and  h)      Male/Female cabin crew who are on leave without pay, the  number of days will be deducted whilst fixing their  seniority.  

(v)     The hierarchy on board the air craft will be based on seniority  irrespective of sex;  

(vi)    Special benefits which are being given to air  hostesses at  present, like early retirement and all benefits arising out of  early retirement, shall no longer be continued;  

(vii)   The bar loss compensation  will be paid to only such cabin crew  (both workmen and executive) as are at present in receipt of the  same and to no other cabin crew;  

(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 decide whether they wish to  retire at the age of 50 years  or to continue to work in Air   India and fly as air  hostesses  till the retirement age of 58  years. To achieve parity, a similar option will also be offered to  the male cabin crew as a one time exercise. No cabin crew as one  time exercise. No cabin crew will be eligible for ground jobs  except where the cabin crew is grounded by the management due  to lack of medical fitness.  

(x)     No member of the cabin crew, male or female joined after  October 1997 will be allowed to claim bar loss compensation.  

       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

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appellants before us through Air  India Cabin Crew Association [for  short ’AICCA’] which has membership both of 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.

       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.   

       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 the 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.

       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 General Manager’s power to extend the retirement age of  unmarried and medically fit air  hostesses was increased from 35 to  40.  In 1972 Justice Mahesh Chandra Award was given on the basis of  dispute referred by the Central Government concerning the service  conditions of workmen of Indian Airlines.  The employees’ Union of Air  India were permitted to be impleaded as a party.  The employer Air  India made a demand before the tribunal of interchangeability of job  functions 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 Air   India’s claim for interchangeability of the job  functions of male and  female members of the crew was rejected on the ground that the Air   India Manual has laid down separate and distinct job functions of male  and female cabin crew.  According to the employer Air  India the  Mahesh Chandra Award is binding as a Contract reached between the  employer and employees in the course of industrial adjudication.   

       For airhostesses in the Indian 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 regulations.  The male cabin crew members, known as Assistant  Flight Pursers, Flight Pursers and Flight Supervisors were to continue  on flight duties until the age of 58 years.  Ms. Nergeshh 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. Nergeshh 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.  

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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 Nergesh Meerza’s case,  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.

       It would be necessary to take note of the decision of Nergeshh  Meerza’s decision (supra) rendered by  three Judges’ Bench 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 no 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 its judgement:

"Thus , from 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, different promotional  avenues and different service conditions."

        The conclusion is reiterated in paragraph 60 of the judgment in  the following words:-

"Having regard, 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 are 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 as under:-       "We are, 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 as a team helping and  assisting each other particularly in case of emergency."

       Having thus rejected the contention advanced on behalf of

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employers on the alleged difference of job functions, the Court in para  62 further reiterated its conclusion thus :-  

"Once we 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 pursers, 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  Articles 15 &  16 of the Constituion 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.

       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 similar nature.’   Section 5 of the said Act prohibits  discrimination by the employer while recruiting men and women  workers for ’same work or work of similar nature.’   By 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 similar nature.’  Section 5 after its  amendment by Act No.49 of 1987 reads as under:-

"5.  No 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 similar nature’ has  been defined in Section 2(h) of E.R. Act as under: "2(h) - 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  difference in regard to remuneration of men and women workers  under an employer is found to be based on ’a factor other than sex’  and there is no contravention of the provisions of the Act by the  employer.  Section 16 reads as under:-

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"16.  power 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 a factor other than sex, it  may, by notification, make a declaration to 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 as under:

"New Delhi, 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 Nargesh Meerza’s case (supra)  - the Court recorded following conclusion in paragraph 67:- "Thus, declaration 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, observed thus:-

"The Articles of the Constitution do not prohibit the State from  making discrimination on the ground of sex coupled with other  considerations."

       In Para 70, the conclusion recorded is thus:-  

"For these 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 Nergesh Meerza’s case  (supra) the different retirement ages of male and female members  on board was upheld after examining the stand and justification  shown by the employer. The discussion and the conclusion reached for  upholding different ages of retirement of male and female employees

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on the Aircraft are contained in paragraphs 105 to 113 of the  judgment.  The Court made a survey of retirement ages of male and  female members of the crew on board in different air lines all over the  world and on consideration of the stand of the employer with regard  to the fitness and efficiency of the members of crew of both sexes  observed thus :- ’there cannot be any cut and dry formula for fixing  the age of retirement which ’would always depend on a proper  assessment of the relevant factors and may conceivably vary from  case to case.’

       The 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  paragraph 114:-

"We might 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 never 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 another 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 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.

       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 she then was) upheld the  legal validity of the agreement 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.

       In the year 1987, Ms. Aquilia 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  ’constructive res judicata’ in view of Nergesh Meerza’s case  (supra).  Appeal preferred was also dismissed.   

       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 two Judges’ Bench of this Court

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dismissed the petition on the ground that the three Judges’ Bench  decision in Nergesh Meerza’s case (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.

       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.

       In the year 1989  Air  hostesses of India Air lines and Air  India  filed a petition before the Petition Commiittee 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 crew members 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:

’To         The Managing Director, Air  India,          Air  India Bldg., Bombay

       The managing Director, Indian Air lines,          Air lines House, New Delhi.

Subject:  Discrimination against Air  hostesses in Air  India and  Indian Air lines - Decisions regarding

Sir,

       I am directed to say that the question of removing  discrimination service conditions against Air  hostesses in Air  India  and Indian 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 uears. 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 the 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.

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4.      Please acknowledge receipt of this letter.  

                                                       Yours faithfully                                                         Sd/- JR Nagpal                                     Under Secretary to the Govt. of India

[Underlining by Court]

         On 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 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 with males’ up 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 Central Government.  

"HQ/65-6/6719                                           15.12.1989

The Joint Secretary to the Govt. of India Ministry of Civil Aviation & Tourism New Delhi.

Kind attn:  Shri Ravindra Gupta

       Discrimination against Air hostesses in Air  India and Indian  Air lines - Decision Regarding

       Please refer to the Ministry’s letter 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 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.

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Yours faithfully,  AIR INDIA SD/-

[J.R. Jagtap] Secretary & Dy. Director - Admin.  

       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 Secretary Ministry of Civil Aviation & Tourism Department of Civil Aviation, Government of India, New Delhi.  

Ravindra Gupta Phone : 352300  

December 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 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 after the age of 35. Airhostesses 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 airhostesses 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 Gupta

Shri Rajan jetley Managing Director Air India,  Air India Building, Bombay 400 021. [Underlining by Court]

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       After receipt of the above clarificatory 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.

       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.

       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 understandings 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 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 (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 of ’workmen’ under 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 a 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.

       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

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binding on them was dismissed by the Division Bench of Bombay on  08.7.1997. 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 of the crew of  two companies cannot be treated as one class.  

       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 in 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 of ’workmen’ have 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.  

       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.  

       After hearing the arguments advanced by the learned senior  counsel for appellants at length and after giving due consideration to  the submissions made by the learned senior counsel appearing for the  respondent/association of air  hostesses, we deal with the rival

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contentions of the contesting parties under distinct Heads.  

Constitutional Provisions.          Article 14 of the Constitution mandates that the State shall not  deny to any person equality before the law or the equal protection of  the laws within the territory of India. Clauses (1) and (2) of Article 15  prohibit State from discriminating any citizen on grounds only of  religion, race, caste, sex, place of birth or any of them. Article 16  which contains fundamental right of equality of opportunity in matters  of public employment, by sub-clause (2) thereof guarantees  that "No  citizen shall on grounds only of  religion, race, caste, sex, descent,  place of birth, residence or any of them, be ineligible for, or  discriminated against in respect of, any employment or office under  the State".  

       Article 16(2) prohibits discrimination only on sex but clause 3  of Article 15 enables the State to make ’any special provision for  women and children’. Article 15 and 16 read together prohibit direct  discrimination between members of different sexes if they would have  received the same treatment as comparable to members of the  opposite gender. The two Articles  do not prohibit special treatment of  women. The constitutional mandate is infringed only where the  females would have received same treatment with males but for  their sex.          In English law ’but for sex’ test has been developed  to mean  that no less favourable treatment is to be given to women on gender  based criteria which would favour the opposite sex and women will  not be deliberately selected for less favourable treatment because of  their sex. It is on this ’but for sex’ test, it appears in Nergeshh  Meerza’s case (supra) the three Judges’ Bench of this Court did not  find the lower retirement age from flying duties of air  hostesses as  discrimination only based on sex.  It found that the male and  females members of crew are distinct cadres with different conditions   of service. The service regulation based on the agreements and  settlement fixing lower retirement age of air  hostesses was not struck  down.  

       The constitutional prohibition to the State not to discriminate  citizens only on sex, however, does not prohibit a special treatment to  the women in employment on their own demand. The terms and  conditions of their service have been fixed through negotiations and  resultant agreements, settlement and awards made from time to time  in the course of  industrial adjudication. Where terms and conditions  are fixed through collective bargaining as a comprehensive package  deal in the course of industrial adjudication and terms of service and  retirement  age are fixed under agreements, settlements or awards,  the same cannot be termed as unfavourable treatment meted out to  the women workers only on basis of their sex  and one or the other  alone tinkered so as to retain the beneficial terms dehors other offered  as part of a package deal. The twin Articles 15 and 16 prohibit a  discriminatory treatment but not preferential  or special treatment of  women, which is a positive measure in their favour. The Constitution  does not prohibit the employer to consider sex in making the  employment decisions where this is done pursuant to a properly or  legally chartered  affirmative action plan. We have taken a resume of  several agreements, settlements and awards made after negotiations  from time to time and periodically, between Air  India and the AICCA  being the recognised association with majority of male and female  cabin crew members.     In all the demands, it insisted on maintaining  two separate cadres for pre-1997 recruits and agreed for early  retirement age to air  hostesses compared to males from flying duties  with option to go for ground duty between 50 to 58 years of age. In

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the course of industrial adjudication through conciliation and  negotiation the employer could legitimately acknowledge women’s  perspective, their life experience and view point. After giving  consideration to the same, the employer could agree for terms and  conditions which suited the air  hostesses.  

       The condition of service agreed by majority of air  hostesses is  that they would prefer to retire from flight duties  on international  flights at the age of 50 years or opt for ground duties after 50 years of  age up to the age of 58 years at par with males so that at least in  some period of their service they may not remain away for long  periods from their homes and families and would be able to discharge  their marital obligations. This term and condition of service fixing age  of retirement from flying duties with option to go for ground duties  cannot be said to be a discriminatory treatment given by employer to  the air  hostesses only on the basis of their sex. Such terms and  conditions are fixed after negotiating with them and on that basis an  agreement and settlement have been reached between them which  are now part of statutory regulation under Air  Corporation Act of  1953 and standing orders certified under Industrial Employment  Standard Standing Order Act.  

       In employment requiring duties on Air craft, gender-neutral  provisions of service may not be found necessarily to be beneficial for  women. The nature of duties and functions on board of an Air craft do  deserve some kind of a different and preferential treatment of women  compared to men. The early retirement age from flying duties at the  age of 50 year with option to go for ground duties has been found to  be an agreeable and favourable condition by majority of air   hostesses. On that basis, written settlements and record notes  were  entered into and signed by employer and AICCA representing the  majority of male and female members of cabin crew.  

       A small number of air  hostesses nearing the age of 50 years  and who are  now in executive cadre cannot wriggle out of the binding  agreements and settlements to which they were parties through the  association. Only because they have now earned promotions  and are  working in executive posts, which fall outside the definition of  ’workmen’ under Industrial Disputes Act, they cannot be permitted to  question the agreements, settlements and awards which continue to  bind  them on the age and condition of retirement and allowed to seek  for unilateral alteration of the same to the detriment of the majority of  the members and against their wishes and interest.

       It is surprising  that the High Court in the impugned judgment  completely side-stepped the legal issues firmly settled in the decision  of three Judges’ Bench of this Court in Nergesh Meerza’s case  (supra) which were binding on it. By impugned judgment, the High  Court has indirectly nullified the effect of this Court’s decision in case  of Nergesh Meerza (Supra) and in doing so relied on subsequent  event.  The subsequent event is that for fresh recruits after 1997 in  the services of Air India, which is now a company formed under the  Air  Corporation Act of 1994, the male and female cabin crew  members have been merged into a common cadre with uniform  service conditions. Recourse to this subsequent event could not be  made to water down the binding effect of judgment of this Court in  Nergesh Meerza’s case (supra). The subsequent event would not  have changed the pre-1997 condition of service  of male and female  members of the cabin crew. How could the High Court in its judgment  observe that ’the differences in qualification, pay, promotional  avenues and other conditions of service between male and female  cadres of the crew have been obliterated’ only because for fresh  recruits the cadres have been merged after 05.6.1997. We totally  disapprove the reasoning and conclusions of the High Court in the  impugned judgment that differential  treatment which was justified

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earlier  when Nergesh Meerza’s case (supra) was decided, ’has  become arbitrary and unreasonable because of the passage of time  and merger of cadres’ after 1997. How could the High Court lose sight  of the fact that apart from the binding decision of this Court in  Nergesh Meerza’s case (supra), air hostesses of executive cadre,  who were all pre-1997 recruits, were bound, with majority of air   hostesses of workmen category, by the agreements and settlements  as also awards reached between them and the employer/Air  India.  

       The High Court, we must say, acted against judicial discipline in  taking a view in favour of respondent/association on an erroneous  basis that with the passage of time differences in service conditions  between male and female cadres have been obliterated and the  decision of the Nergesh Meerza’s case (supra) does not bind the  High Court from making a declaration that lower retirement of air   hostesses from flying duties is a discrimination based only on sex  which is violative of Articles 15 and 16 of the  Constitution.   

       The High Court then proceeded to adopt a strange procedure  unknown to law by eliciting from employer - Air  India concrete  proposals for bringing about parity in retirement age and other  conditions of service of male and female members of the cabin crew.   To make it worse the plea to implead the majority recognised union  was not only denied but were merely made to intervene and the High  Court seem to have relegated deliberations relating to the proposals to  be submitted to the responsibility  of the management, unmindful of  the serious and adverse impact which the ultimately altered conditions  of service inevitably are bound to have on the majority who are not  made parties to the proceedings.  The High Court was aware that  there were agreements, settlements and awards laying down different  terms and conditions of female and male cadre. It was also aware  of  the decision of this Court in Nergesh Meerza’s case (supra)  wherein it was held that air  hostesses and flight pursers constitute  two different cadres justifying fixation of different service conditions  and ages of retirement from flying duties. The High Court could not  have, therefore, adopted a wholly impermissible course of accepting  and putting its seal and signature on the conditional proposal of the  employer dehors even the conditions stipulated for the offer that the  air  hostesses can be granted same retirement age of 58 years from  flying duties at par with flight pursers provided they agree for merger  of two cadres and withdrawal of all earlier benefits available to them  such as accelerated promotions, higher seniority, higher allowances  and better pensionary benefits. How could the High Court forget that  at the instance of a very small number of air  hostesses in executive  cadre, it was accepting conditional proposal of employer and thus,  prejudicially affecting majority of air  hostesses of workmen category  who were bound and satisfied with the agreements, settlements as  also awards made between their association and the employer from  time to time.  

       The High Court also gave no importance to the fact that the  industrial dispute  on refixation of terms and conditions of the  employees of Indian Airlines as the newly formed company was  pending adjudication before the National Industrial Tribunal in which  notices have been issued to Air  India and its employees and their  associations. It is not disputed that employees of Air  India through  different associations including the appellants and the  respondent/association have submitted their claims before the  Tribunal. In such a situation the High Court ought to have rescued  itself from undertaking a parallel exercise of fixing terms and  conditions of male and female employees of Air  India. On basis of self  serving proposals made by the employer and despite strong protest  raised against it by the appellant/AICCA, which represents the  majority members of the males and females cabin crew of Air  India,  the High Court could not have accepted the proposals of the employer

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and varied the terms and conditions of pre-1997 recruits  of Air  India  by directing merger of male and female cadres. The High Court thus  has nullified the binding agreements, settlements and awards and  frustrated the adjudication of disputes pending before the National  Industrial Tribunal to which Indian Air lines and its employees are  parties and Air  India and its employees through their association have  been summoned to participate.  

       On behalf of the respondent/association reference has been  made to Article 51-A(e) of the Constitution. It is submitted that air   hostesses are selected for their youth and looks hence, retired earlier  than males which is a practice derogatory to women.  It runs contrary  to the fundamental duties of a citizen laid down in Article 51-A(e) of  the Constitution.  

       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 negotiations  and settlements with association of air  hostesses represented by  AICCA with appropriately matching numerous advantages and  betterment to match them . 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.  

       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.  

       The decision in Nergesh Meerza’s 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.

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       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.  

Equal Remuneration Act, 1976.

       In the impugned judgment, the High Court has also held that the term of  service fixed by Air India to retire air hostesses at the age of 50 years or  grounding them on alternative jobs is also discriminatory treatment to them on  sex which violates section 5 of the Equal Remuneration Act, 1976 [for short,  ’the E.R. Act of 1976’]. The High Court also took note of the fact that there  existed a declaration under section 16 of the E.R. Act of 1976 that differences  with regard to remuneration of air hostesses compared to flight pursers is ’on  factors other than sex’. Yet in the opinion of the High Court such a declaration  was made before amendment introduced to the provisions of section 5 of the  E.R. Act of 1976 and would not save the terms and conditions of  retirement of  air hostesses fixed at lower age compared to males from the vice of section 5  of the E.R. Act of 1976.  

       We have already extracted above the amended section 5 of the  E.R. Act of 1976. Section 5 as amended not only prohibits employer  from making discrimination based on sex in the matter of recruitment  for ’same work or work for a similar nature’ but even discrimination  on that ’basis in conditions of service subsequent to the recruitment’.  

       The challenge to the fixation of lower retirement age of air  hostesses compared to the flight pursers was also a ground of  challenge in the case of Nergesh Meeza (supra) and this Court  came to the conclusion that terms and conditions of service of flight  pursers and air hostesses are not ’same or of similar nature’ as they  constitute two different cadres with different methods of recruitment,  salary structure, promotion avenues and terminal benefits. This Court  also took into consideration the declaration made under section 16 of  the E.R. Act of 1976 and held that such a statutory declaration   reinforces the conclusions that nature of work of air hostesses and  flight pursers is not same or of similar nature as they constitute two  different cadres with different conditions of service. The declaration  made under section 16 was made much before amendment of section  5 of the E.R. Act of 1976. It, however, clearly mentions that "the  differences in regard to pay etc., of these categories of employees  are based on different conditions of service and not on the ground of  sex."  

       We have already made a reference to the various agreements,  settlements and awards entered into between employer and  employees. For a long period, after Air India Corporation became a  company under the Air Corporation Act of 1994 [for short ’the Act of  1994], the different terms and conditions of service of air hostesses  and male members of the crew continued till the year 1997 when the  two cadres were merged for fresh recruitment. In such a situation  even though declaration under section 16 was made and notified on  15.6.1979 i.e. before amendment introduced to Section 5 of the E.R.  Act of 1976 by Amendment Act of 49 of 1987, the said declaration  which is taken note of and relied in the decision in Nergesh Meeza’s  case of this Court clearly indicates that the Central Government did  record its satisfaction that the differences in remuneration and  conditions of service of male and female members of the crew were  not based only on the ground of sex. We have noticed above that  differences in conditions of service of the two cadres remained  unchanged till the year 1997. The factual foundation of the  declaration under section 16 of the E.R. Act of 1976, therefore,  remains unshaken and the declaration has not lost its efficacy on  amendment introduced to section 5 in the year 1997. There has been

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no change in the service conditions of pre-1997 recruited air  hostesses,  after their recruitment.  Section 5 of the Act of 1976 can  only be invoked against discriminatory treatment to  women  compared to men where between them the ’nature of work is same  or of a similar nature’ and after recruitment there has been a  change in conditions of service of women only on the ground of  sex.  

       Neither in the decision in the case of Nergesh Meeza (supra)  nor by us, it has been found that a lower retirement age for air  hostesses has been fixed on the ground only of their sex. We have  already  held,  while discussing the constitutional validity of fixation  of  lower age of retirement of air hostesses with option to them to  accept ground duties after that age,  that this condition of service   was agreed after negotiations in the course of industrial adjudication  by the air hostesses through their association. Such terms and  conditions willingly agreed to by them are binding on them and  cannot be questioned on the basis of provisions of section 5 of the  E.R. Act of 1976. They cannot be described as discriminatory  conditions of service on the basis of sex alone. In this respect, it is  relevant to notice the provisions of section 15 and particularly clause  a) and sub-clause (ii) of clause b) of section 15 of the E.R. Act of  1976 which are also introduced by Amendment No. 49 of 1987.  Section 15 of the E.R. Act of 1976 reads thus :-  

"15. Act not to apply in certain special cases.- Nothing in this Act  shall apply -

a)      to cases affecting the terms and conditions of a woman’s  employment in complying with the requirements of any law giving  special treatment to women, or b)      to any special treatment accorded to women in connection with -  

i)      the birth or expected birth of a child, or  ii)     the terms and conditions relating to retirement,  marriage or death or to any provision made in connection  with the retirement, marriage or death.   [Underlining by us]         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. Duties in air are full of tension and sometimes  hazardous. They have, therefore, agreed for comparatively early age  of retirement with option to accept duties on the ground. There is  nothing objectionable for air hostesses to wish for a peaceful and  tension-free life at home with their families in the middle age and  avoid remaining away for long durations on international  flights. This  view point has been projected before us on their behalf by learned  counsel appearing for AICCA and other appellants.  

       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

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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.  

The Air Corporations Act, 1953.          The High Court in the impugned judgment has also set aside  the conditions of service providing lower age of retirement for air  hostesses as compared to flight pursers on the ground that such  terms and conditions of service are in clear contravention of the  mandatory direction issued by the Central Government on  16.10.1989 in exercise of powers under section 34 of the Air  Corporations Act, 1953 [for short ’the Act of 1953].  

       On this aspect, the High Court held that the subsequent  clarificatory letter of Joint Secretary of Central Government dated  29.12.1989, cannot be read as virtually  nullifying the effect of the  direction dated 16.10.1989. The clarificatory letter is held to be per  se discriminatory.  

       We have already reproduced above fully the contents of the  directions dated 16.10.1989 and relevant part of the letter dated  15.12.1989 of Air India addressed to the Ministry of Civil Aviation  seeking clarification on the direction dated 16.10.1989. The full  contents of the alleged clarificatory  letter dated 29.12.1989  addressed by Shri Ravindra Gupta, Joint Secretary, Ministry of Civil  Aviation to shri Rajan Jaitly, Managing Director, Air India Limited  have also been reproduced above.  

       Section 34 of the Act of 1953 enables the Central Government  to give directions to the Corporation on "the exercise and  performance by the Corporation of itss functions. The Corporation is  bound to give effect to such directions". In the case of Air India vs.  B.R. Age [1995 (6) SCC 359], this Court has held that the power  to issue directions regarding "exercise and performance by the  Corporation of its functions" includes power to make directions for  regulating terms and conditions of services of officers and servants of  the Corporation.        The valid exercise o power under Section 34(1) of  the Act of 1953 and its mandatory effect on Air India, therefore,  cannot be questioned.  

       On behalf of the respondents/associations,  in these appeals, it  is contended that the said letter dated 29.12.1989 is a personal letter  from Joint Secretary, Ministry of Civil Aviation to Managing Director,  Air India Limited and cannot be treated as a directive under Section  34 of the Act of 1953. It is also argued that the said clarificatory  letter cannot be treated as a letter of the Central Government  clarifying or modifying its original directions dated 16.10.1989 in  which there are clear instructions to Air India and Indian Airlines that  the air hostesses should be allowed to serve with male members of  cabin crew up to the age of 58 years. The  High Court held that these  directions have to be construed as meaning that flight duties be  allowed to air hostesses at par with male members of the crew up to  the age of 58 years.  

       By its letter dated 15.12.1989, Air India brought to the notice  of the Central Government  the separate terms and conditions of  service of two distinct cadres of flight pursers and air hostesses which  were fixed under various agreements, settlements and awards. It  then requested Central Government to review its directions in the  light of the settlements, understandings and awards entered by the  employer with the air hostesses. A clarification was sought by Air  India stating that even if the retirement age of both male and female  members of the cabin crew are brought at par to be 58 years

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whether it would be necessary to give the air hostesses flight duties  up to the age of 58 years or under the then existing conditions  agreed to by air hostesses, they can be grounded for alternate job at  the age of 35 years. It was informed that the air hostesses may be  given suitable alternate job till they attain the age of 58 years.  

       On behalf of the respondent/association, learned senior counsel   contended that the clarificatory letter addressed by Joint Secretary,  Ministry of Civil Aviation in his personal capacity to Managing  Director, Air India Limited is ineffectual in either modifying or  clarifying the main direction of the Central Government issued on  16.10.1989 and which in very categorical terms directs  superannuation age of air hostesses  to be 58 years which means  flying duties to air hostesses has to be allowed till 58 years of age at  par with males.  

       Separate appeals against the impugned judgment of the High  Court [CA Nos. 4584-4592 of 2002] have been preferred by the  employer/Air India Limited and by Union of India [CA Nos. 4571-4578  of 2002] questioning the correctness of the view taken by the  Bombay High Court in its judgment on the meaning and effect of  directions issued under Section 34 of the Act of 1953.  Both the  learned senior counsel appearing for the Air India and Union of India  have taken a consistent stand that the letter of clarification dated  29.12.1989 issued by the Joint Secretary was a decision of the  Central Government taken in accordance with rules of business with  due approval of Minister-in-charge  of the Civil Aviation Ministry. The  High Court took a view that letter dated 29.12.1989 is not in itself a  direction under section 34 of the Act of 1953 merely on the format of  the same though there is no particular prescribed format for issuing  such direction.  It clarifies the meaning and effect of the original  letter issued by the Central Government on 16.10.1989. In this  Court, the stand taken by Union of India is that the letter of  clarification dated 29.12.1989 is also a direction under section 34 as  was the original directive issued on 16.10.1989. Since the directive  issued under Section 34 of the Act of 1953, is of the Central  Government, it is the Central Government which can affirmatively  and with certainty say whether the letter dated 29.12.1989 be read  as a separate  directive or a clarification. There is affidavit of Union of  India filed before the High Court in which it is specifically asserted   that alleged clarificatory  letter dated 29.12.1989 emanated from the  Central Government  and was not a personal letter of the Joint  Secretary. The records produced by Union of India before the High  Court as well as in this court amply demonstrate that both direction  dated 16.10.1989 and letter dated 29.12.1989 were issued for the  Central Government with the specific approval of the then Minister of   Civil Aviation. The relevant contents of the affidavit  filed before the  High Court on behalf of the Central Government reads thus :-  

"For the sake of abundant caution, I reiterate that the first  directive dated 16.10.1989 was issued under section 34 of the Air  Corporations Act, 1953, and that the second directive dated  29.12.1989 was issued under the provisions of the said section 34 of  the said Act in clarification of the earlier first directive, and in the  premises the second directive had to be mandatorily implemented by  Air India Corporation as it was then known.  

       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 of 58 years  and as per the terms and settlements reached between the parties

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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 the course of argument, learned senior counsel appearing for  the appellants/associations also made a reference to Article 77 of the  Constitution of India which requires every executive action of the  government to be expressed to have been taken in the name of   President.  

       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.    

       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 are not a discrimination  based only on sex. The directives 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.  Effect of pending reference no. 1 of 1990 before the National  Industrial Tribunal.  

       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 Meerza’s 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 from 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 true that the pending dispute  before the National  Industrial Tribunal is between employees of Indian 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

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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.  

       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.  

       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’.  

       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.  

       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.

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       It is open to the Central Government to enlarge the terms of  the reference under section 10 of 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 then open to the National Industrial  Tribunal to take a fair and just decision in accordance with law after  examining all aspects of the matter, on hearing the employer and  considering its business and administrative exigencies.  

       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 of 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.  

       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 severeble, one of the parts fixing age of retirement for  air hostesses on flight duties up to the age of 58 years be upheld.  

       In the result, these appeals are allowed and the impugned  judgment of the Bombay High Court dated 20/23.8.2001 is hereby  set aside. The Writ Petition of respondent/association is dismissed. All  interim orders including dated 14.12.2001 shall stand vacated.  Looking to the nature of the controversy involved, we leave the  parties to bear their own costs in this Court.