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PETITIONER: MISS LENA KHAN

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT30/03/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1515            1987 SCR  (2) 727  1987 SCC  (2) 402        JT 1987 (2)    19  1987 SCALE  (1)642  CITATOR INFO :  R          1987 SC1527  (30)

ACT:     Constitution of India, 1950--Articles 14 and 15--Retire- ment-Different age fixed for employees of Indian origin  and foreign origin- Whether permissible.     Constitution  of India--Article  12--Air  India--Whether falls  within the definition of "State"--An  instrumentality or  agency  of State having  operations  outside  India--For complying  with  the  Municipal  Law  abroad--Whether  could disregard Article 14 of the Indian Constitution.     Constitution  of  India--Article 14  Air  Hostesses  and Deputy  Chief  Air Hostess--Having regard to the  nature  of duties performed by them--Whether belong to the same class.     U.K. Sex Discrimination Act, 1975, s. 6(4)---To have the same  age of retirement for the Air Hostesses  recruited  in U.K.  as is provided for an Air Hostess recruited of  Indian origin--Whether violative of the Act.

HEADNOTE:     The  petitioner,  who was employed as Deputy  Chief  Air Hostess  in Air India, flied this petition under Article  32 of  the Constitution, alleging that while the  employees  of Indian origin have to retire at 35 years with extension till 45, those of foreign origin can go beyond 45 years, which is discriminatory  and violative of Articles 14 and 15  of  the Constitution.  Accordingly,  prayer was made  to  quash  the letter  sent  to her retiring her on 28.2.1987,  to  declare Regulation 46(1)(c) of the Service Regulations ultra  vires, to  direct reconsideration of the decision in Air  India  v. Nargesh  Meerza,  [1982] 1 SCR 438 and to declare  that  the petitioner  will retire only on her attaining the age of  58 years.     In the. counter-affidavit it was alleged that  Air-India has  not fixed any higher retirement age  for  Air-Hostesses who are recruited outside India, that Air India has appoint- ed  a few Air Hostesses abroad who belong to  different  na- tionalities  and speak different European languages  with  a view to deal with passengers conversant only with 728 these  languages,  that Air India has been  encouraging  its

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Indian Air Hostesses to learn European languages and in view of this ’position Air India is in the process of phasing out Air Hostesses of foreign origin, that service conditions and terms  of appointment of the Air Hostesses appointed  abroad are  different than the service conditions of Air  Hostesses appointed in India and that no Air Hostess of foreign origin is  promoted to the post of Deputy Chief Air Hostess,  Addi- tional Chief Air Hostess or Chief Air Hostess. These  promo- tional  avenues  are  available only to  the  Air  Hostesses appointed in India. Dismissing the Petition, HELD: (Per Khalid, J)     1.  Identical  questions were raised and  considered  at length by this Court in Air India v. Nargesh Meerza  (supra) and that decision is binding. [730A-B]     2. Air India’s policy now is to phase out Air  Hostesses recruited  outside  India and restore  uniformity  in  their retirement age. [731B-C]     3. The petitioner is an Air Hostess and does not  belong to  a  separate class. The duties and  functions  of  Deputy Chief  Air Hostess includes operation service as  a  regular line  Air  Hostess and she will be required to  perform  the same functions as that of other Air Hostesses. [731F]     4. Air Hostesses who are recruited outside India are not entitled  to  the benefits of promotion to which  India  Air Hostesses  are entitled. This should satisfy the  petitioner in the instant case. [731E] Per Oza, J.)     1.  Air  India being a Corporation is for  all  purposes State  within the meaning of Article 12 of the  Constitution of  India  and  it cannot follow a  foreign  Corporation  in treating Indians differently and discriminate against  them. [732B-C]     Air  India  etc. etc. v. Nargesh Meerza  &  Others  etc. etc., [1982] 1 SCR 438, referred to.     2.  Air  India in order to avoid committing  an  offence abroad  cannot disregard Article 14 of the Indian  Constitu- tion. An Indian citizen in such a situation should prefer to walk off from a State where he may 729 have  to  flout  Indian Constitution to  save  himself  from committing  of  an offence. Air India should  abide  by  the requirements  of  Article  14  rather  than  anything  else. [732F-G]     3.  It has been conceded that in view of s. 6(4) of  the United Kingdom Sex Discrimination Act, 1975 it will not be a contravention of that law to have the same age of retirement for  an Air Hostess recruited in U.K. as is provided for  an Air Hostess recruited of Indian origin. [733B-C]     4.  In view of the policy of Air India  that  henceforth Air Hostesses recruited anywhere will be treated in the same manner as Air Hostesses recruited from India no interference is called for. [733C-D]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Civil) No. 231 of 1987. (Under Article 32 of the Constitution of India).     Soli  J. Sorabjee, P.H. Parekh, Rajender  Mahapatra  and Ms. Ayesha Misra for the Petitioner.     K.K.  Venugopal,  D.R. Dhanuka, Mr. Kapil  Sibal,  Lalit Bhasin, Vineet Kumar and Ms. Nina Gupta for the Respondents. The following Judgments of the Court were delivered by

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   KHALID, J. In this writ petition, filed by an Air  India employee,  who  at the relevant time was  Deputy  Chief  Air Hostess,  notice  was  taken for the  respondents  when  the matter came up for admission. We directed the respondents to file their Counter Affidavit. Accordingly Counter  Affidavit has  been  filed.  The Petitioner has  filed  her  Rejoinder Affidavit  also. Heard the learned counsel on both sides  at some length.     Under the existing rules, namely Regulation 46(1)(c)  of the  Service  Regulation  the petitioner was  to  retire  on 28-2-1987  and in fact she retired on that date. The  prayer in  the  writ petition is to quash the letter  sent  to  her retiring  her on 28-2-1987, to declare  Regulation  46(1)(c) ultra  vires, to direct reconsideration of the  decision  in Air India v. Nargesh Meerza, [1982] 1 SCR 438 and to declare that  the petitioner will retire only on her  attaining  the age of 58 years. Identical  questions were raised before this Court in a  few writ 730 petitions  earlier by some other employees of Air India  and they were considered at length by a bench of three Judges in Air India v. Nargesh Meerza and were considered in favour of Air India. We are bound by this decision. The learned  coun- sel  for  the petitioner submits that  this  decision  needs reconsideration and made a fervent appeal to us to refer the matter for that purpose. We do not feel persuaded to  accept this request.     The  main thrust of the submissions by the  petitioner’s counsel is based on Article 14 and Article 15 of the Consti- tution of India, in that Air India discriminates between the Air Hostesses and the officers like the petitioner of Indian origin and of foreign origin who are employees of Air India. The  contention is that while the employees of India  origin have to retire at 35 years with extension till 45, those  of foreign origin can go beyond 45 years. This contention  also was considered by this Court in the decision referred above.     The case that Air Hostess recruited outside India can be in the employment of Air India beyond 45 years is met in the Counter Affidavit in the following paragraph:               "  .......  Therefore, I submit that so far as               Air  India is concerned, it has not fixed  any               higher  retirement age for Air  Hostesses  who               are recruited outside India. In U.K. there are               only six Air Hostesses and they are also being               phased  out.  The Senior most Air  Hostess  in               U.K.  in terms of age is 41 years old.  It  is               further pertinent to note that there are  only               six  Air Hostesses presently employed in  U.K.               These  Air Hostesses belong to  different  na-               tionalities   and  speak  different   European               languages with a view to dealing with  passen-               gers  conversant only with these languages.  I               say  that Air India has been  encouraging  its               Indian  Air Hostesses to learn  European  lan-               guages. In view of this position Air India  is               in the process of phasing out the European Air               Hostesses  employed in U.K. It is also  perti-               nent  to note that Air India has  appointed  a               few Air Hostesses in Japan. These Air Hostess-               es  were  also appointed for the  same  reason               i.e. their knowledge of the Japanese language.               The Air Hostesses employed in Japan would also               retire upon reaching the normal age of retire-               ment applicable to Indian Air Hostesses. I say

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             that  the  service  conditions  and  terms  of               appointment  of  the Air  Hostesses  appointed               abroad  are different than the service  condi-               tions               731               of Air Hostesses appointed in India. It is  of               utmost importance to note that no Air  Hostess               appointed  is promoted to the post  of  Deputy               Chief Air Hostess, Additional Chief Air  Host-               ess  or Chief Air Hostess.  These  promotional               avenues are available only to the Air Hostess-               es appointed in India     From  the above extract we find that Air India’s  policy now  is to phase out Air Hostesses recruited  outside  India and  restore  uniformity in their retirement age.  In  U.K., there are only six Air Hostesses, the senior-most among whom is  only aged 41. The provisions of Sex Discrimination  Act, 1975 applicable to United Kingdom was brought to our notice. Part  II deals with discrimination in the employment  field. Section 6(1)(b) and Section 6(2) make discrimination against a woman in the terms of service, promotion opportunities and termination  unlawful. But Section 6(4) protects  provisions which  relate to death and retirement from the vice  of  the above  sections.  We refer this only to  reassure  ourselves that  it would be possible for Air India to phase  out  U.K. incumbents  when  they attain the age of 45.  Air  Hostesses employed in Japan would also retire upon reaching the normal age of retirement applicable to Indian Air Hostesses. It  is useful to note that Air Hostesses who are recruited  outside India are not entitled to the benefits of promotion to which Indian  Air Hostesses are entitled. We are of the view  that this should satisfy the petitioner.     The case that the petitioner is not an Air Hostess,  but belongs  to a separate class can also not be accepted.  This case did not find favour with this Court in the above  deci- sion  either. The duties and functions of Deputy  Chief  Air Hostess  includes  operation service as a regular  line  Air Hostess  and she will be required to perform the same  func- tions as that of other Air Hostesses. The writ petition thus is devoid of any merit and hence is dismissed.     OZA, J. Having gone through the judgment dictated by  my learned brother Khalid J. although I agree with the  conclu- sions arrived at by him but will like to add my own  reasons for the conclusions.     When  this  petition came up before us the  main  ground which moved us to issue notice was that the Air-India employ Indian as well as girls coming from different  nationalities as  air-hostesses  and in respect of the age  of  retirement there  are different rules for airhostesses  recruited  from different  countries. It was alleged that whereas an  Indian recruited as air-hostess will normally retire at the 732 age  of 35 years which could be extended upto 45, a  British girl recruited as air-hostess retires at the age of 55 years and this, according to the petitioner, was discrimination on the basis of colour.     In return the stand taken by the Air-India is that "As a matter of fact the Air Hostess recruited by British  Airways in  India  retire at the age of 36 years  in  India  whereas their  counterparts in U.K. retire at the age of 55  years." It  is unfortunate that the second respondent a  Corporation which  is for all purposes State within the meaning  of  the term  as  provided in Article 12 of  Constitution  of  India should  follow the British Airways in treating Indians  dif- ferentially and discriminate against them. Reliance was also

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placed in return on the decision of this Court in Air  India etc.  etc. v. Nergesh Meerza & Ors. etc. etc., [1982] 1  SCR 438.  In return a passage has been quoted which  appears  at page  472 of the judgment. It is true that this is what  has been observed in this judgment by a Bench of three Judges of this Court. It is observed:               "   .....  There is no complaint by the  peti-               tioners that between the separate class of AHs               inter  se  there has been  any  discrimination               regarding any matter. In fact, the only  point               raised on this aspect was that AHs employed by               A.I.  in  U.K. have  different  conditions  of               service  from  AHs serving A.I.  in  countries               other than U.K. Doubtless this distinction  is               there but this is really a fortuitous  circum-               stances because A.I. was forced to comply with               the  local laws of U.K. in order  to  increase               the  age of retirement of AHs posted  in  Eng-               land.  Surely we cannot expect A.I. to  commit               an   offence   by  violating   the   laws   of               U.K  ........  " It  appears as it was also contended that they are bound  by the decision of this Court. It is no doubt true that this is the decision which is binding but even in a situation as has been  indicated in this judgment that Air India in order  to avoid  committing an offence in accordance with the  law  of United  Kingdom is choosing to disregard Article 14  of  the Constitution. But I have no hesitation that an Indian  citi- zen  in  such a situation would prefer to walk  off  from  a State  where he may have to flout our Constitution  to  save himself from commission of an offence. All the more the same is expected of respondent No. 2, a corporation controlled by the  Government of India. It is expected that this  corpora- tion  would abide by the requirement of Art. 14 rather  than anything  else. If need be, it has to walk out of a  country where it may become impossible to act in accordance with the ideals of our Constitution or where it may become  necessary to disregard the provisions of our 733 Constitution  and  it is not something new as we  have  been keeping away from countries which follow apartheid policies. But I am happy that Shri Venugopal, senior advocate  appear- ing  for respondent No. 2 frankly stated that his  colleague learned counsel Shri Lalit Bhasin got the United Kingdom Sex Discrimination  Act,  1975 further examined and  now  it  is clear that in view of Section 6 sub-clause 4 of that Act  it will not be a contravention of that law to have the same age of  retirement  for an air-hostess recruited in U.K.  as  is provided  for an airhostess recruited of Indian  origin.  It appears that this was the law (United Kingdom Sex  Discrimi- nation  Act,  1975) which was perhaps in the  minds  of  the Judges in Air-India’s case.     In  view  of this learned counsel  frankly  stated  that henceforth air-hostesses recruited anywhere will be  treated in the same manner as air-hostesses recruited from India and it  is only on this frank admission made by learned  counsel for respondent No. 2 that we see no reason to entertain  the petition.  In this view of the matter I agree with the  con- clusions reached by my learned brother, Khalid, J. A.P.J.                                              Petition dismissed. 734