NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.8119-8123 OF 2009 (Arising out of Special Leave Petition (C) Nos.22449-22453 OF 2008)

M/S. SHEELA JOSHI & ORS. ….APPELLANT(S)

VERSUS

INDIAN AIRLINES LTD. …RESPONDENT(S)

O R D E R

SURINDER SINGH NIJJAR, J.

1. Leave granted.

2. The appellants are working as Air  Hostesses with  

respondent/Indian Airlines (hereinafter referred to as the  

Airlines).  They  were  initially  appointed  as  trainee  Air  

Hostesses on certain terms and conditions as contained  

in the appointment letter. Clause 8 of the letter provided  

that they will be governed by the Indian Airlines Service  

Regulations applicable to the Flying Crew and Standing

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Orders  concerning  discipline  and  appeals  as  

framed/amended  by  the  Indian  Airlines  from  time  to  

time.  Clause  9  of  the  letter  provided  that  during  the  

period of training and on appointment as Air Hostesses  

their  services  are  liable  to  be  terminated  under  the  

following circumstances:

“i. in the event of  your getting married  before the specified period;

ii. if you:-

a.  failed  to  maintain  the  vision  without glasses ,

        b. do not maintain weight within the  prescribed limit; and,  

                        c. develop air sickness”

3. During their service the weight requirements were  

prescribed by the respondent-Indian Airlines at various  

times.  A  number  of  circulars  were  issued.  All  these  

circulars indicated the range of weight to be maintained  

by  the  Air  Hostesses.  There  was  no  discretion  and  

relaxation of weight from 1981 to 1987. For the first time  

on 4.11.1987, in the circular issued by the respondent, it

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is  provided that  if  the crew member’s  weight  exceeded  

10% of the outer limit prescribed, he or she should be  

taken  off  flying  duties  and  treated  on  leave  or  leave  

without  pay  till  he/she  attains  the  standard  weight.  

However, relaxations in cases of flying over weight were  

subsequently allowed by various other circulars. At the  

same time, the grace in the quantity of over weight was  

also being gradually  reduced.  The other condition with  

regard to being taken off flying duties was maintained.  

But on 4.5.2006 the respondent withdrew even the 3 kgs.  

grace in weight limit with effect from 15.6.2006. It was  

enforced  from 1.7.2006.   The circular  dated 4.5.2006  

was  challenged by the appellants by filing four separate  

writ petitions. All the writ petitions were dismissed by the  

learned  Single  Judge  by  a  common  judgment  dated  

31.5.2007. The learned Single Judge noticed that the Air  

Hostesses  were  supposed  to  keep  their  body  weight  

within the minimum and the maximum prescribed limits.  

This  was known to  the  appellants,  all  along.  It  was a  

condition of their appointment.  They had knowingly and

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willingly  accepted  the  same.  Therefore,  this  condition  

fructified  to  consensual  contract  between  the  parties.  

Earlier the condition with regard to being over weight was  

not  being  strictly  enforced.  Now  merely  because  

concessions  had  been  withdrawn  the  appellants  could  

hardly make a grievance of the same. According to the  

learned  Single  Judge  by  virtue  of  Clause  9  of  the  

appointment  letter  the services of  the  appellants  could  

have  been  terminated  in  the  event  of  their  not  

maintaining  body  weight  as  per  the  weight  chart.  The  

learned Single Judge also observed that the appellants  

had accepted all the earlier circulars as well as the grace  

of  over  weight  upto  10  kgms.   Therefore  they  had  no  

justification  to  challenge  the  circular  dated  4.5.2006.  

With  these  observations  the  writ  petitions  were  

dismissed.  

4. The  Division  Bench  in  appeal  took  note  of  the  

submissions of the appellants that Regulation 12 of the  

Airlines  Flying  Crew Service  Regulations  only  provided  

that the cabin crew should be medically fit.  Since, all the

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appellants were medically fit they could not be grounded  

or deprived of their salaries merely on account of being  

overweight. The same submission had been rejected by  

the  learned  Single  Judge.  The  Division  Bench  after  

noticing  the  circulars  observed  that  merely  because  

earlier some concessions were given by not adhering to  

the body weight chart in stricto senso, it would not mean  

that Airlines cannot now be allowed to withdraw those  

indulgences.  No  legal  right  accrues  in  favour  of  the  

appellants  merely  by  the  grant  of  earlier  concessions.  

Since,  there  is  no  legal  right  the  concession  could  be  

withdrawn. The Division Bench notices that the Airlines  

staff  is  required  to  maintain  high  standard  of  fitness.  

They  have  to  work  in  Aircrafts  which  fly  at  very  high  

altitude. In cases of emergency utmost fitness would be  

required.  The  Division  Bench,  therefore,  accepted  the  

findings  recorded  by  the  learned  Single  Judge  and  

dismissed the appeals.   

5. We  have  heard  the  learned  counsel  for  the  

appellants  at  length.  It  is  submitted  by  the  learned

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counsel that the action of the respondent in not paying  

salary  to  the  appellants  during  the  period  they  were  

grounded is wholly unjustified and without sanction of  

law.   

6. At this stage we may notice that these appeals need  

not  be  decided  on  merits,  in  view  of  the  subsequent  

developments.  It  is  not  disputed  that  during  the  

pendency of the proceedings in this Court 11 out of 13  

appellants have reduced weight to satisfy the acceptable  

norms and are already back on duty. Therefore, in our  

opinion, nothing remains to be decided in these appeals,  

at this stage.

7. Learned counsel, however, submitted that in view of  

the  observations  made  by  the  High  Court,  action  has  

been  initiated  against  some  of  the  Air  Hostesses  who  

were overweight.  Their services have been terminated. It  

is submitted by the learned counsel that those employees  

whose services have been terminated on the ground of  

being overweight  have  initiated legal  proceedings.  They  

are apprehending that their  claim would be prejudiced

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due  to  the  observations  made  by  the  learned  Single  

Judge  as  well  as  by  the  Division  Bench  in  the  writ  

petitions and the appeals, respectively.   

8. Learned  Solicitor  General,  however,  submits  that  

observations were  merely  to  illustrate  a  point  that  the  

Airlines  had  shown  indulgence  to  the  Air  Hostesses.  

Therefore, no grievance could be made by the withdrawal  

of the concessions. In any event according to the learned  

Solicitor General termination of the services would give a  

separate  cause  of  action  to  each  individual  employee  

which would take its own course. It is also brought to our  

notice by the learned Solicitor General that pursuant to  

the  orders  passed  by  the  High  Court  payments  were  

sought  to  be  made  to  some of  the  appellants  but  the  

same  were  not  accepted.   Therefore,  the  appellants  

cannot make a grievance at this stage that the payment  

of dues has been illegally withheld.  

9. We  have  considered  the  submissions  made  on  

behalf  of  both the sides.  We are of the opinion that it  

would be wholly inappropriate to express any opinion on

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the merits of the controversy in the appeal in view of the  

fact that 11 of the original writ petitioners have rejoined  

duties.  In case the writ petitioners have any independent  

grievances  with  regard  to  the  non-payment  or  illegal  

withholding of  any of  the amounts due, the employees  

would  be  at  liberty  to  either  approach  the  Airlines  by  

making  a  representation  or  seeking  redress  by  

appropriate  legal  proceedings.  In order  to further  allay  

any  fear  of  the  employees  whose  services  have  been  

terminated on the ground of over weight, it is made clear  

that  the  proceedings  taken  out  by  the  employees  

challenging the order of the termination shall be decided  

on  merits,  without  reference  to  the  opinion  expressed  

either by the learned Single Judge in the writ petitions or  

by the Division Bench in the appeals.  The appeals are  

disposed of accordingly.

..……….……………… ……….J

(TARUN CHATTERJEE)

  ..…………………………………J              (SURINDER SINGH NIJJAR)

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NEW DELHI DECEMBER   07, 2009