Holding

The early retirement age for air hostesses, being a consensual special treatment fixed through collective bargaining and protected by Section 15 of the Equal Remuneration Act, does not violate Articles 14, 15, 16 of the Constitution nor the Equal Remuneration Act, and the High Court’s alteration of the industrial awards was beyond its jurisdiction.

Summary

The dispute concerned the retirement age and service conditions of air hostesses employed by Air India and Indian Airlines, who under various agreements were required to retire from flying duties at age 50 (later 45/50) with the option of ground duties up to age 58, while male cabin crew could serve until 58. A small group of senior air hostesses challenged this scheme as discriminatory under Articles 14, 15 and 16 of the Constitution and Section 5 of the Equal Remuneration Act, arguing that the Bombay High Court’s order directing parity in retirement age violated earlier Supreme Court precedent in Air India v. Nergesh Meerza. The Supreme Court examined whether the terms, fixed through collective bargaining and statutory awards, amounted to sex‑based discrimination, the effect of the Central Government’s directions under Section 34 of the Air Corporations Act, and the jurisdiction of the High Court to alter industrial settlements pending before the National Industrial Tribunal. The Court held that the early retirement provision was a special, consensual treatment of women, saved by Section 15 of the Equal Remuneration Act, and did not constitute prohibited discrimination; it also affirmed the validity of the Central Government’s directives and found that the High Court had exceeded its jurisdiction. Consequently, the Supreme Court set aside the Bombay High Court’s judgment, dismissed the respondents’ writ petition and allowed the appeals.

Issues considered

Whether the early retirement age for air hostesses amounts to discrimination prohibited by Articles 14, 15 and 16 of the Constitution.
Whether service conditions fixed through collective bargaining and awards can be challenged under Section 5 of the Equal Remuneration Act, 1976.
Whether the Central Government’s directions under Section 34 of the Air Corporations Act, 1953 are binding and can be varied by a High Court.
Whether the High Court had jurisdiction under Article 226 to alter industrial awards pending before the National Industrial Tribunal.
Whether special treatment of women in employment is permissible under Articles 15, 16 and Section 15 of the Equal Remuneration Act.

Legislation cited

Air Corporations Act, 1953s. 34
Companies Act, 1956
Equal Remuneration Act, 1976s. 15(a), s. 15(b)(ii), s. 16, s. 4, s. 5
Industrial Disputes Act, 1947s. 10
Industrial Employment (Standing Orders) Act, 1946

Subjects

retirement agegender discriminationarticles 14 15 16equal remuneration actindustrial disputecollective bargainingair corporation actsection 34national industrial tribunalcadre mergeraffirmative actionspecial treatmentconstitutional lawemployment law

Judgment

AIR INDIA CABIN CREW ASSOCIATION A
V.

YES HAWINEE MERCHANT AND ORS.

JULY 11, 2003

[DORAISWAMY RAJU AND D.M. DHARMADHIKARI, JJ.] B

Constitution of India, 1950-Articles 14, 15 and 16:

Age of retirement-Of airhostesses of Air India and Indian Airlines-
Two separate cadres of male and female cabin crew members for pre-I 997 C
recruits-Fixation of early retirement age of airhostesses compared to male
cabin crew members from flying duties with option to go for ground duties
~ between 50 to 58 years of age-Fixation was through negotiations,
agreements, settlements and awards made in industrial .at{iudication-After
Air India and Indian Airlines becoming companies male and female cadres D
merged for post-I 997 recruits-Industrial dispute on re-f1Xation of terms and
conditions of services of employees of newly formed companies pending with
the National Industrial Tribunal-Challenge to the early retirement age by
small number of airhostesses in executive cadre-High Court held the
retirement age to be violative of Articles I 4, I 5 and I 6 of the Constitution
and provisions of the Acts and accepting the proposals of the employer, E
varied the terms and conditions ofpre-1997 recruits-On appeal, held: Terms
and conditions of service fixing age of retirement cannot be said to be
discriminatory-Constitutional prohibition under Articles I 5 and I 6 not to
discriminate citizens only on sex, does not prohibit a special treatment to the
women in employment on their own demand-Where terms and conditions F
are f1Xed through collective bargaining as a comprehensive package deal in
the course of industrial adjudication and terms of service and retirement age
f1Xed under agreements, settlements or awards the same cannot be. termed as
unfavourable treatment only on basis of sex-The terms and conditions of
pre-1997 recruits could not be varied-Early age retirement policy of ·
airhostesses does not contravene Section 5 of Equal Remuneration Act, G
rather ii is saved by siction I 5(a) and I 5(b)(ii) thereof-The directives
issued by Central Govemment under Section 34 of Air Corporation Act are
not in violation of Articles I 4, I 5 and I 6 of the Constitution or provisions
of Equal Remuneration Act-It was not appropriate for High Court to
adjudicate upon the issue pending for industrial adjudication-National H
455
456 SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A Industrial Tribunal directed to decide the issues in accordance with law--
Equal Remuneration Act, 1976--Sections 5 and 15--Air Corporations Act,
1953--Section 34--lndustrial Disputes Act, 1947--Section 10--Air
Corporation Transfer of (Undertaking and Repeal) Act, 1994--lndustrial
Employment (Standing Orders) Act, 1946.

B Article 141--Precedent--lssues settled in previous case by Supreme
Court-In subsequent litigation the settled issues held to be arbitrary and
unreasonable by High Court relying on subsequent events-Held: Recourse
to the subsequent events could not be made to water down the binding effect
ofjudgment a/Supreme Court-High Court acted against judicial discipline.
c Article 226--Judicial Review-Of pending issues for industrial
adjudication-Held: In such case proceeding u/A 226 are neither appropriate
nor a substitute for industrial adjudication in the Industrial Courts and
Tribunals.

Article 77--Applicability-Scope of-Held: Even if an executive action
D
of the Central Government is not formally expressed to have been taken in
the name of President, such action would not be rendered void or invalid by
virtue of the Article.

Air India and Indian Airlines were established under Air Corporation
E Act, 1953. Two National Industrial Tribunals fixed the age of retirement of
airhostesses of Air India as 30 years which could be extended upto 35 years
in medically fit cases. When the dispute regarding retirement age oflndian
Airlines airhostesses arose, a settlement was reached between employer and
employees under which General Manager's power to extend retirement age
of unmarried and medically fit airhostesses was increased from 35 to 40 years.
F In 1972 Central Government referred a dispute concerning the service
conditions of workmen of Indian Airlines to an Industrial Tribunal, wherein
·Employees' Union of Air India were party. Air India had made a demand before
the Tribunal for interchangeability of job functions between male and female
members of crew and the Tribunal by its award refused the same on the ground
G that Air India Manual had laid down separate and distinct functions of male
and female cabin crew. In exercise of power under Section 16 of Equal
R'.!muneration Act a Notification was issued in 1979 whereby the Central
Government declared that the difference in regard to pay etc. of airhostesses
and flight stewards are based on different conditions of service and not on the
difference of sex and, therefore, any act of the employer attributable lo such
H differences shall not be declared to be in contravention of any of the provisions
AIR INDIA CABIN CREW ASSON. "· YESHAWINEE MERCHANT 457
of the Act. Central Government by its Notification in 1980 provided that A
airhostesses of Indian Airlines would retire on attaining age of 35 years or
on marriage if it took place within 4 years of joining service or on first
pregnancy whichever occurred earlier, while the male cabin crew members
were to continue on flight duties until the age of 58 years. Accordingly Air
India also carried out similar amendments in their Regulations. A writ petition B
was filed in High Court challenging the retirement age and other conditions
of service applicable to airhostesses on the ground that they were
discriminatory under Articles 14, 15 and 16 of the Conshtuban. The petition
was transferred to Supreme Court and the Court in the decision in Air India
v. Nergesh Meerza, 11981) 4 SCC 335 held the conditions providing lower
age of retirement to airhostesses was not unfavourable compared to male cabin C
crew members; that the airhostesses never demanded before the Tribunal that
their age of retirement should be at par with the male employees and thus
award of the Tribunal was binding on them; that there was no discrimination
against airhostesses based only on sex; that the service conditions were
neither unconstitutional under Articles 15 and 16 nor violative of Section 4
of Equal Remuneration Act; that declaration of Central Government under D
Section 16 of Equal Remuneration Act was presumptive proofof the fact that
no discrimination has been made on the ground of sex only; and that different
ages of retirement and salary structure for male and female employees in
Air India were based on their different conditions of service and not on sex
alone. However, the Court struck down two service conditions which provided E
for termination of service of airhostesses on first pregnancy and extension
of service beyond the age of 35 upto 45 at the discretion of Managing Director.

In 1983 Air India and All India Cabin Crew Association representing
male and female members entered into an agreement whereunder promotional
avenues of air hostesses were determined. The legal validity of the agreement F
was upheld by High Court.

Writ petition challenging Cabin Crew Manual, which provided for
separate and distinct job functions and promotional avenues to male and female
cabin crew members was dismissed by High Court.
G
In 1987 writ petition, challenging lower retirement age of airhostesses
fixed under the agreement, was dismissed as being barred by principle of
constructive res judicata in view of judgment in Nergesh Meerza~case.
Another writ petition in Supreme Court challenging lower retirement age of
airhostesses was dismissed on the ground that the decision in Nergesh H
458 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A Meerza 's case was binding on the parties.
In 1988 again a fresh agreement was entered into between Air India
and AICCA regarding Service conditions of airhostesses.

In 1989 airhostesses filed a petition before Lok Sabha complaining
B discrimination in retirement age and other service conditions. Central
Government by its letter dated 16.10.1989, in exercise of its powers u/s 34 of
Air Corporations Act issued a direction to Air India to allow male and female
cabin crew members to serve till the age of 58 years. On a request from Air
India for reconsideration ofthe directive, Joint Secretary of Ministry of Civil
C Aviation and Tourism, by letter dated 29.12.1989 clarified that the age of
retirement of airhostesses would be 58 years, but they might be given
alternate jobs on ground at the age of 35 years till they attained the retirement
age. After receipt of the clarificatory letter, Air India issued two Circulars
regarding assignment of duties to the airhostesses on ground, who had
attained age of 45 years.
D
In 1992 writ petition by respondent-Air India Air Hostesses' Association
was admitted by High Court.

Air India, by an office order, extended the age of airhostesses for flying
duties upto 50 years subject to their medical fitness for flying duties.
E
Air Corporations Act, 1953, having been repealed and thus Air India
and Indian Air Lines having become two separate Companies under the
Companies Act, a fresh agreement was entered into between Air India and
AICCA whereunder interchangeability of job functions of male and female
cabin crew members was agreed only for new entrants viz. post 1997 recruits,
F without in any way affecting the service conditions and promotional chances
of the existing members i.e. pre-1997 recruits. On 5.6.1997 a formal
memorandum of settlement was reached between AICCA and Air India
whereunder all earlier settlements, awards, record notes and understandings
reached when the Air India was a Corporation were agreed to be continued as
G applicable.

Airhostesses, who were near 50 years of age, including those promoted
to executive cadres for ground duties or who were at the verge of retirement
from flying duties formed a separate Association (respondent-Association)
and filed writ petition in High Court challenging settlement dated 5.6.1997
H on the ground that the settlement was not binding on them as they were
AIR INDIA CAfllN CREW ASSON. '" YESHAWINEE MERCHANT 459
working in executive cadre and thus fell outside the definition of workmen A
under Industrial Disputes Act. The writ petition was dismissed.

In a pending dispute before National Industrial Tribunal respondent-
Association had raised issue of merger and interchangeability of job functions
between male and female cabin crew members.
B
Airhostesses who were still on flight duties made a representation to
Air India that they were unwilling to give up their b•nel.i~ granted to them
under settlements and agreements or awards treating them in separate cadre;
they wanted their right to early retirement with option to ~•erve on ground till
the age of superannuation.
c
Another writ petition was also decided by High Court against respondent-
Association holding that the members of crew of Air India and Indian Airlines
could not be treated as one class as the two companies are separate entities
after repeal of Air Corporation Act.

Respondent-Association filed writ petition before High Court wherein
D
Air India and appellant-Association participated as interveners as they were
not permitted to be imp leaded as party by High Court. High Court held that
age of retirement from Oying duties of airhostesses at the age of 50 years
with option to them to accept post for ground duties after 50 and upto the age
of 58 years is discrimination against them based on sex which is violative of E
Articles 14, 15 and 16 of the Constitution of India as also Section 5 of the
Equal Remuneration Act, 1976 and contrary to the mandatory directions
issued by the Central Government under Section 34 of Air Corporations Act,
1953. High Court also passed consensual order based on proposals made by
Air India i.e. if all pre-1997 recruits clr.iming similar conditions of service
and same retirement age of 58 years at par with male members from nying F
duties, the two cadres of air hostesses and flight pursers should be merged
and their service conditions be suitably adjusted to bring them at par for future
prospects; and that their inter-se seniority would be re-fixed nullifying the
effect of accelerated promotion already earned by airhostesses with higher
allowances given to them. Hence the present appeals. G
Allowing the appeals, the Court

HELD: I. I. The conditions of services applicable to the airhostesses both
presently working in air or on ground are not discriminatory under Articles
14,15 and 16 of the Constitution.1489-HI H
460 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 1.2. Articles 15 and 16 of the Constitution, 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
B treatment with males but for their sex. (484-E-F(

1.3. 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,
C 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
D sex and one or the other alone tinkered so as to retain the beneficial terms
dehors other offered as part ofa 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
E where this is done pursuant to a properly or legally chartered affirmative
action plan. In all the demands in several agreements, settlements and awards
made after negotiations from time to time and periodically, between Air India
and the AICCA, it insisted on maintaining two separate cadres for pre-1997
recruits and agreed for early retirement age to airhostesses compared tc
males from Hying duties with option to go for ground duty between 50 to 58
F years of age. In the course of industrial adjudication through conciliation and
negotiation an 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
airhostesses. [485-A-Ef
G 1.4. A small number of airhostesses 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
H which continue to bind them on the age and condition of retirement and allowed
AIR INDIA CABIN CREW ASSON. 1·. YESHAWINEE MERCHANT 461
to seek for unilateral alteration of the same to the detriment of the majority A·
of the members and against their wishes and interest.1486-C-DI
1.5. By impugned judgment, the High Court has indirectly nullified the
effect of decision in case of Nergesh Meerza and in doing so relied on
subsequent event 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. B
The subsequent event would not have changed the pre-1997 condition of
service of male and female members of the cabin crew. The reasoning and
conclusions of the High Court that differential treatment which was justified
earlier when Nergesh Meerza's case was decided, 'has become arbitrary and
unreasonable because of the passage of time and merger of cadres after 1997
is disapproved. High Court acted against judicial discipline in taking a view C
in favour of respondent-association on an erroneous basis. 1486-E-Hl

1.6 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 D
female members of the cabin crew. The plea to implead the majority recognized
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. E
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 airhostesses can be granted same retirement age of 58 years from
Hying duties at par with Hight pursers provided they agree for merger of two F
cadres and withdrawal of all earlier benefits available to them such as
accelerated promotions, higher seniority, higher allowances and better
pensionary benefits. At the instance of a very small number of airhostesses
in executive cadre, High Court was accepting conditional proposal of employer
and thus, prejudicially affecting majority of airhostesses of workmen category
who were bound and satisfied with the agreements, settlements as also awards G
made between their association and the employer from time to time.
1487-D-H; 488-AI
I. 7. As the industrial dispute on re-fixation of terms and conditions of
the employees of Indian Airlines as the newly formed company was pending
adjudication before the National Industrial Tribunal, High Court ought to have H
462 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A rescued itself from undertaking a parallel exercise of fixing terms and
conditions of male and female employees of Air India. High Court could not
have accepted the proposals of the employer 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
B and awards and frustrated the adjudication of disputes pending before the
National Industrial Tribunal to which Indian Airlines and its employees are
parties and Air India and its employees through their association have been
summoned to participate. (488-C-E(

1.8. Early retirement age for women from flying duties has been found
C favourable by majority of airhostesses represented through the appellant-
AICCA, 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
airhostesses have agreed to the early retirement age, as they need an option
to go for ground duties after the age of 50 years. It cannot be said that the
D airhostesses are made to retire at an age earlier than males because of their
falling physical appearance and it is a practice derogatory to the dignity of
women. For services on board of an aircraft both male and female members of
the crew are expected to be smart, alert and agile. Air India v. Nergesh Meerza,
(1981] 4 SCC 335, relied on. (488-H; 489-A, B(
E 2.1. For a long period, after Air India Corporation became a company
under the Air Corporation Act,1994, the different terms and conditions of
service of airhostesses 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
F before amendment introduced to Section 5 of the Equal Remuneration Act,
1976 by Amendment Act 49of1987, the said declaration which is taken note
of and relied in the decision in Nergesh Meerza 's case clearly indicates that
the Central Government did record its satisfaction that the difference in
remuneration and conditions of service of male and female members of the
crew were not based only on the ground of sex. Difference in conditions of
G service of the two cadres remained unchanged till year 1997. The factual
foundation of the declaration under Section 16 ofl976 Act, therefore, remains
unshaken and the declaration has not lost its efficacy on amendment
introduced to Section 5 in the year 1997. There has been no change in the
service conditions of pre-1997 recruited airhostesses, after their recruitment.
Section 5 of 1976 Act can only be invoked against discriminatory treatment
H
AIR !NOIA CABIN CREW ASSON. I'. YESHAWINEE MERCHANT 463
to women compared to men where between them the 'nature of work is same A
or of a similar nature' and after recruitment there has been a change in
conditions of service of women only on the ground ofsex.1490-H; 491-A-Dl

2.2. The early age retirement policy of airhostesses in Air India does
not contravene Section 5 of 1976 Act and otherwise, it is saved by Section
15(a) and 15(b)(ii) of 1976 Act. The terms and conditions are now part of B
Statutory Regulations, framed under the Air Corporation Act and Standing
Order framed under the Industrial Employment (Standing Order) Act, 1946.
1492-GI
3.1. Section 34 of the Air Corporation Act, 1953 enables the Central
Government to give directions to the Corporation on "the exercise and C
performance by the Corporation of its functions. The Corporation is bound to
give effect to such directions". The valid exercise of power under Section 34(1)
of the Act of 1953 and its mandatory effect on Air India, therefore, cannot be
questioned. 1493-E-Fl

Air India and Ors. v. B.R. Age and Ors., 119951 6 SCC 359, relied on. D
3.2. 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 by the Central Government with the
specific approval of the then Minister of Civil Aviation.1495-CI
E
3.3. 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 airhostesses have to be continued in service
up to the age of 58 yeaJS and l:JS-!)Cr the terms and settlements reached between p
the parties they can be assigned ground duties at their option after retirement
from flight dutie!HIHhe age of 45 years which is now raised to 50 years.
1495-E, Fl

3.4. The exercise of statutory power under Section 34 by the Central
Government, even though not expressed to have been taken in the name of G
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 H
•
464 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A void or invalid. The argument advanced on the basis of Article 77 of the
Constitution should not be dealt with 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. [495-H; 496-A, B[

B 3.5. As 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 violative of Articles 14, 15 and 16 of the
Constitution or the provisions of the Equal Remuneration Act, 1976.
(496-C, DJ

c 4.1. When the matter offixing the terms and conditions of empioyees
of Indian Airlines, in which Air India and its employees had also been noticed,
was pending before the National Industrial Tribunal, the High Court should
not have allowed the employer to come forward with proposals for creating
parity in age of superannuation between airhostesses al!d night pursers only
D on the condition of merging of the two cadres with withdrawal of all earlier
benefits conferred on airhostesses 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. High Court was clearly in error in exceeding its jurisdiction by trenching
E upon an industrial field and adjudicating disputes inter se employer 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
p be adversely affected by High Court recording a so called consensual order
directing merger of cadres. The consensual order seriously prejudices the
airhostesses of the workmen category represented by appellant-AICCA.
(497-C-FJ

4.2. The impugned judgment rendered in favour of the respondent-
G association comprising airhostesses 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 during
pendency of industrial dispute before the National Industrial Tribunal.

H (497-H; 498-AI
AIR INDlA CABIN CREW ASSON. ''· YESHAWINEE MERCHANT [DHARMADHIKARl,J.] 465

4.3. It is open to the Central Government to enlarge the terms of the A
reference under Section I 0 of Industrial Disputes Act, 1947 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 airhostesses 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 B
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. 1498-E-Fl

CIVIL APPELLATE JURISDJCTION : Civil Appeal No. 4570 of2002. C
From the Judgment and Order dated 20/23.8.2001 of the Bombay High
C-0urt in W.P. No. 1163 of2000.

WITH

C.A. Nos. 4581, 4584-92, 4571-78, 4579-80, 4582-83 of2002. D

Mukul Rohtagi, Additional Soliciter General (NP), K.K. Venugopal (NP),
Ashok H. Desai (NP), Vinod A. Bobde, CA Sundaram, Ram Jethmalani (NP),
Harish N. Salve, and L. Nageshwara Rao (NP), Mrs. Rekha Rajgopal, Pradeep
Rajgopal, Ms. Bina Madhavan, Prasanth P., Mangesh Kale, Rishiraj Borooah, E
Manali Singhal, Manjeet Dewan, Ms. Ruby Singh Ahuja, Ms. C.K. Sucharita,
Tripurari Ray, Vishwajit Singh, Rakesh K. Sharma, Chander Uday Singh, Ms.
Gitanjali Prabhu, Gopal Jain, Ms. Nandini Gore, Ravi Kini, Pinky Anand, Ram
Verma, Sumit Gupta, Krishan Kumar, Shailendra Tiwary, V.B. Joshi, Rajesh
Ranjan, Y.P. Mahajan, Ajay Sharma and S. Chitale for the appearing parties.
F
The Judgment of the Court was delivered by

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 G
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 H
466 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 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
B 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
c 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 office order
dated 12th January 1993 are hereby quashed and set aside;
D (ii) 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;
E
(iii) Air India is directed to pay to the petitioners the differential
amount of salary from the date of grounding till the date of
resumption of flight duties and 50% of the compensatory
allowances as per column 9 of the proposal marked 'x' to the air
hostesses who were grounded prior to 31st December 1997 and
F 30% of the allowances for the air hostesses who were grounded
on or after 1st January 1997;
(iii) Air India is directed to comply with the above directions within ...
a period of 12 weeks.

G (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(l)(c) of the
Certified standing orders in the light of the directions given by •
H this Court;
AIR INDIA CABIN CREW ASSON. r. YESHAWINEE MERCHANT[DHARMADHIKARI, J.] 467

(vi) All Awards and settlements entered into between the management A
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". B
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
c
the flying age of air hostesses to 58 years subject to certain measures
proposed by Air India, the proposal to that effect in writing was put
on record by the learned counsel for Air India. The same was discussed
during the course of arguments and finally a consensus has been
reached on the following:- D
(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 E
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 F
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 G
cabin crew even though her date of entry into Air India is
later than that of the male cabin crew, the grade and basic
salary of the female cabin crew will be frozen till such time
as the male counter part catches up with her and is placed
senior to her as per his date of joining;
H
468 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A (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;
B
(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;
c
(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;

(I) Male/Female cabin crew who have been down graded due to
D 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
E 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,
F 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;
G (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;
H
AIR INDIA CABIN CREW ASSON. 1·. YESHAWINEE MERCHANT [DHARMADHIKARl,J.] 469
(ix) All air hostesses shall have to exercise a one time irrevocable A
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 B
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." C
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 D
judgments. Majority of air hostesses of the workmen category, whose terms
and conditions of service including age of retirement is governed by
agreements and settlements entered into between them with the employer
under the Industrial Law, are also aggrieved by the judgment. They are
appellants before us through Air India Cabin Crew Association [for short
'AICCA'] which has membership both of male and female employees working E
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 committee by
the High Court.
F
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 retiremei:it from flying duties has
been raised.
G
Two Corporations in the name of Air India (engaged in international
flights) and Indian Airlines (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 wa1> H
470 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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 ar~ 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
B Corporations. Those tribunals were presided over by Mr. Justice Khosla and
Mr. Justice Mahesh Chandra.

In the year I 972 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
C 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
D between male and female members of the crew so as to allow them to operate
the aircraft with only 14 crew members. 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
E 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 air hostesses in the Indian Air lines, Government of India Notification
dated 12.4.1980 fixed minimum retirement age as 35 years. It was provided that
F 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 Airlines, 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. Nergesh Meerza together with
G 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
and 16 of the Constitution. The petition was transferred to the Supreme Court
and by its decision in the case of Air India v. Nergesh Meer=a, (1981) 4 SCC
H 335 the provision of retirement of Air hostesses on first pregnancy was struck
AIR INDIA CABIN CREW ASSON. r. YESHAWINEE MERCHANT [DHARMADHIKARl,J.] 47 J
down as arbitrary and violative of Article l4 of the Constitution. The regulation, A
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 B
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 Nergesh 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 C
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 D
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 ofrecruitment the qualification, E
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 promoti<'nal avenues and
different service conditions."
F
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 i:resistible that Air'hostesses though G
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 H
472 SUPREME COURT REPORTS 120031 SUPP. I S.C.R.

A 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 tw6
B 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 j0b functions which have been detailed in affidavit clearly
c 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."
D
Having thus rejected the contention advanced on behalf of employers
on the alleged difference of job functions, the Court in para 62 further
reiterated its conclusion thus :-

"Once we have held that Air hostesses form separate category with
E 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
F 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
G Articles 15 and 16 of the Constitution nor violative of Section 4 of the ER Act.
The Court quoted notification issued by the Central Government under Section
16 of the ER Act. It upheld the stand of the employer that the different ages
of retirement and salary structure for male and female employees in Air India
are based on their different conditions of service and not on sex alone.
Section 4 of the E.R. Act prohibits the employer from paying unequal
H remuneration to male and female workers for 'same work or work of a similar
AIRINDIACAB!N CREW ASSON. "· YESllAWINEE MERCHANTlDHARMADHIKARU.l 473
nature.' Section 5 of the said Act prohibits discrimination by the employer A
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 I 987, 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 B
Act No.49 of 1987 reads as under:-

"5. No discrimination to be made while recruit;ng rnen and women
workers. - On and from the commencement of this Act, no employer
shall, while making recruitment for the same work or a similar nature,
[or in any condition of service subsequent to recruitment such as C
promotions, training or transfer] make any discrimination against women
except where the employment of women in such work is prohibited or
re~tricted 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- D
·servicemen, retrenched employees or any other class or category of
persons in the matcer 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: E
"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 F
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 G
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:-

"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 H
474 SUPREME COURT REPORTS [20031 SUPP. I S.C.R.

A 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."

B In exercise of powers under Section 16 of the Act a Notification was
issued on 15th June, 1979 and published in the 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
c 1976) the Central Government having considered aJI 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 Gentral Government,
D 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.
E The Notification under Section 16 quoted above is relevant for a different
purpose. Jn Nergesh Meer:::a's case (supra) - the Court recorded following
conclusion in paragraph 67:-

"Thus, declaration is presumptive proof of the fact th.it in the matter
of allowances, conditions of service and other types of remuneration,
F 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
G 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."
H
AIR !NOIA CABIN CREW ASSON. 1·. YESHAWJNEE MERCHANT [DHARMADHIKARL J] 475
In Para 70, the conclusion recorded is thus:- A
"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." B
Having thus rejected the challenge t0 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 upto 45 only at the sweet will and discretion of the Managing Director. C
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 D
retirement of male and female employees on the Aircraft are contained in
paragraphs I05 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 airlines
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 E
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 F
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 G
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 H
476 SUPREMF COURT REPORTS j2003] SUPP. I S.C.R.

A 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."

B On 17.11.1983 Air India as the employer and the members of the AICCA
representing both its male and female employees entered into an agreement
whereunder 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
C 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
D 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. Nergesh 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
E 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
F 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 c!ismissed.

In 1987 itself identical issues of the lower retirement age of Air hostesses
was brought to this Court for reconsideration by Ms. Lena Khan in Writ
G Petition No. 231 /87. By judgment in Ms. Lena Khan v. Union of India, [ 1987]
2 SCC 402, a two Judges' Bench of this Court dismissed the petition on the
ground that the three Judges' Bench decision in Nergesh Meerza 's case
(supra) is binding on the parties. Jn 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
H and Airlines of other countries.
AIR INDIA CABIN CREW ASSON. "· YESHAWINEEMERCHANT[DHARMADHIKARl.J.] 477

In the year 1988, fresh agreement was entered into between employer A
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.
B
In the year 1989 Air hostesses of Indian Airlines 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 C
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 feniale 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 D
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,
E
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 F
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 G
some time, after careful consideration, it has been decided as under:

(i) That like the male Cabin crew, Air hostesses in Air India and
Indian Air lines should also be allowed to serve till the age of 58
Years.
H
478 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A (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.
B
(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.
c 3. A compliance report of the action taken may please be submitted
to this Ministry within a week.

4. Please acknowledge receipt of this letter.
Yours faithfully
D Sd/- JR Nagpal
Under Secretary to the Govt. of India
[Underlinin1; 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
E 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
F 15.12.1989, in response to the Directives issued in the letter dated 16.10.1989,
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
G

..
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
H - Decision Regarding
AIR INDIA CABIN CREW ASSON. v. YESHAWINEE MERCHANT [DHARMADHIKARl,.1] 479
Please refer to the Ministry's letter No.A V.18022/23/88-ACCIA dated A
October 16, 1989:-

B

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 C
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 D
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 E
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.
F
We shall be grateful for immediate confirmation of the position stated
above.

Yours faithfully,

AIR INDIA G
SD/-

[J.R. Jagtap]
Secretary & Dy. Director - Adm in.

In reply to the above letter of the employer Air India, the Joint H
480 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A Secretary of Ministry of Civil Aviation and Tourism, Department of
Civil Aviation, Government of India wrote on 29.12.1989 and infonned
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
B 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
c Department of Civil Aviation,
Government of India,
New Delhi.

Ravindra Gupta
Phone:352300
D
December 29, 1989.

My dear Rajan,

Please refer to letter No. HC/65/6/6719 dated 15th December, 1989
E 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 ii 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 aiternate
F 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

G
3.
examination and weight regime for both types of cabin crew.
As regards problems of salary grades, job functions, promotion,
etc., the management must sort them out and negotiate suitable
•
agreements with the ~oncerned Unions.

H
AIR INDIA CABIN CREW ASSON. v. YESHAWINEE MERCHANT [DHARMADHIKARl,J] 48 J
With best wishes, A
Yours sincerely,

Sd/-
Ravindra Gupta
B
Shri Rajan Jetley
Managing Director
Air India,
~ir India Building,
Bombay 400 021.
[Underlining by Court}
c
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 D
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 E
age of Air hostesses for flying duties up to 50 years to meet the requfrement
of the employer and subject to their medical fitness for flying duties. Air
Corporations Act 1953 was repealed by Air Corporations (Transfer of
(URdertaking and Repeal) Act, 1994.. By the New Act, Air India and Indian
Airlines became two separate and distinct Companies under the Companies F
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 condition·s' and promotional chances of the existing
members of the cabin crew. It is to be noted that the agreement of 17.3.1995 G
makes it clear thaipre 1997 recruits would continue to be governed by their
existing service conditions, which did not provide for interchangeability of
job funcfons. ''

A formal memorandum of settlement was reached between the appellant
AlCCA and Air India on 5.6.1997 where under all earlier settlements, awards, H
482 SUPREME COURT REPORTS (2003) SUPP. I S.C.R.

A 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
B 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
C are members, is not binding on the respondent Air hostess working in the
executive cadre who foll 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
D 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 crew members. The majority
E 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.
F They opposed merger of two cadres of air hostesses and flight pursers. The
Writ Petition No. 932/77 filed by the respondent/association seeking declaration
that the settlement dated 5.6.1997 entered into with the appellant is not
binding on them was dismissed by the Division Bench of Bombay High Court
on 08.7.1997. Second Writ Petition No. 1473/99 was also decided on 14.9.99
G against the respondent/association holding that the two companies i.e. Indian
Air lines and Air India are separate entities 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 of2000, which has
H given rise to this appeal, came to be filed in the High Court of Bombay by
AIR IND!A CABIN CREW ASSON. v. YESHAWINEE MERCHANT [DHARMADHIKARI, J] 483

the respondent/association with membership of minority of air hostesses A
working in executive cadre. The appeHant/ AI CC A filed a Caveat for being
made a party but the High Court only aHowed intervention to them. Both th~
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 B
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 C
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 nuHifying the effect of accelerated promotion
already earned by air hostesses with the higher allowances given to them. It D
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/AI CCI 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 E
India of which 684 are members of the appeHant/AICCA being in the workmen
category. Only a smaH 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 F
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. G
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 p_ursers
and other members of the cabin crew. The operative part of the judgment of H
484 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 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
B made by the learned senior counsel appearing for the respondent/association
of air hostesses, we deal with the rival contentions of the contesting parties
under distinct Heads.

Constitutional Provisions.

C A.tide 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 (I) and (2) of Article I 5 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
D 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".

E Article 16(2) prohibits discrimination only on sex but clause 3 of Article
I 5 enables the State to make 'any special provision for women and children'.
Articles 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 ,I

F
treatment of wow.en. 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
G
for sex' test, it appears in Nergesh 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 female members of crew are distinct cadres with different conditions of
service. The service regulation based on the agreements and settlement fixing
H lower retirement age of air hostesses was not struck down.
AIR INDIACABIN CREW ASSON. 1·. VESHAWINEE MERCHANT [DHARMADHIKARl,J] 485
The constitutional prohibition to the State not to discriminate citizens A
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 B
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 C
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 D
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 the course of industrial adjudication through conciliation and E
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 F
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 G
of service fixing age of retirement from flying duties with option to gu 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 the Air Corporation Act of 1953 and standing H
486 SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A orders certified under the Industrial Employment Standard Standing Order
Act.

In employment requiring duties on Aircraft, 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 Aircraft do deserve some kind
B of a different and preferential treatment of women compared to men. The early
retirement age from flying duties at the age of 50 years 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
C 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
D fall outside the definition of 'workmen' under the 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.

E 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 the case of Nergesh Meerza (Supra) and in doing
F 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).
G 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
H cadres have been· merged after 5.6.1997. We totally disapprove the reasoning
AIR INDIA CABIN CREW ASSON. l·. YESHAWINEE MERCHANT [DHARMADHIKARI. l.] 487
and conclusions of the High Court in the impugned judgment that differential A
treatment which was justified 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 B
recruits, were bound, with majority of air hostesses of workmen category, ~y
the agreements and settlements as also awards reached between them and tlie
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 C
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.
D
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 imp lead 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 E
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 rhere
were agreements, settlements and awards laying down different terms and p
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 G
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 H
488 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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.

B 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
C 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
D 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
and varied the terms and conditions of pre- I 997 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
E of disputes pending before the National Industrial Tribunal to which Indian
Airlines 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
F 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
ofa 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
G 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/
H AICCA before us who support the age of retirement and option for ground
AIR INDIA CABIN CREW ASSON. 1·. YESHAWINEE MERCHANT[DHARMADHIKARl,J.] 489
duties given to them. Air India is a travel industry. Pleasing appearance, A
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 B
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 a:id 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 C
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 I 6 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 D
' pursers and the air hosJesses 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. E
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 F
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 G
and the merger has taken place only for male and female new recruits after
1997.

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 H
490 SUPREME COURT REPORTS f2003] SUPP. I S.C.R.

A 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
B 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
C 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 term's 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.

D 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'.

E 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 Meerza (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.
F 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
G 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
H and awards entered into between employer and employees. For a long period,
AIR INDIA CABIN CREW ASSON. v. YESHAWINEE MERCHANT [DHARMADHIKARI .I., l .] 49 J

after Air India Corporation became a company under the Air Corporation Act A
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 B
1976 by Amendment Act of 49 of 1987, the said declaration which is taken
note of and relied in the decision in Nergesh Meerza 's case of this Court
clearly indicates that the Central Government did reco;·d it~ 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 C
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 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 D
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 Meerza (supra) nor by E
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 F
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. G
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 H
492 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 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

B (ii) the terms and conditions relating to retirement, marriage or
death or to any provision made in connection with the
retirement, marriage or death.

[Emphasis applied]

C 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
D flight duties with option for ground 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
E 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
F 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
G section 15 (a) and 15 (b) (ii) of the E.R. Act of 1976. The challenge, therefore,
to the terms and conditions of early retirement of air hostesses and option
to them to go for ground duties up to the age of 58 years, fails. These terms
and conditions are now part of Statutory Regulations w.e.f. 30.3.2000, framed
under the Air Corporation Act and Standing Order framed under the Industrial
Employment (Standing Order) Act, 1946 w.e.f. 21.10.2000.
H
..
AIR INDIA CABIN CREW ASSON. ,._ YESHAWINEE MERCHANT [DHARMADHIKARl,J.] 493
The Air Corporations Act, 1953. A
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 B
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 C
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 D
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 E
Corporation of its functions. The Corporation is bound to give effect to such
directions". In the case of Air India v. B.R. Age, [1995] 6 SCC 359, this Court
has held that the power to issue directions regarding "exercise and perfonnance
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 of power under Section 34(1) of the Act of F
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 G
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 H
494 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 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
B 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 ifthe retirement age
of both male and female members of the cabin crew are brought at par to be
C 58 years 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.

D 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. I0.1989 and which in very categorical terms
directs superannuation age of air hostesses to be 58 years which means flying
E 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 of2002] have been preferred by the employer/Air India Limited
and by the Union of India [CA Nos. 4571-4578 of 2002] questioning the
F 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 the
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
G 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
H Court, the stand taken by Union of India is that the letter of clarification dated
AIR INDIA CABIN CREW ASSON. 1·. YESHAIVINEE MERCHANT [DHARMADHIKARl,J.] 495
29.12.1989 is also a direction under Section 34 as was the original directive A
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 B
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 C
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 D
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. E
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 F
the parties they can be assigned ground duties at their option after retirement
from flight duties at the age of 45 years which is now raised to 50 years.

In 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 G
expressed to have been taken in the name of President.

In our opinion, reference to Article 77 is wholly inappropriate. The
exerc_ise 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 H
496 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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 fo1mally expressed
to have been taken in the name of President, Article 77 does not provil.e that
it would, therefore, be rendered void or invalid. We need not, therefore, deal
B 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
C air hostesses from flight duties at the age of 50 years and grounding them
thereafter up t9 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
the Equal Remuneration Act, 1976. The Effect of pending reference no. I of
D 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
E (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
p 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/
G 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.

H
AIR INDIA CABIN CREW ASSON. r. YESHAWINEE MERCHANT [DHARMADHIKARl,J.] 497
It is true that the pending dispute before the National Industrial Tribunal A
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 submitted by appellants/All India Cabin Crew Association as also B
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 lnd'ia and
its employees had also been noticed, was pending before the National Industrial C
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 D
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 E
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 workmen category represented by appellant/AICCA. F
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 years 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 G
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 executi\'e 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 H
498 SUPREME COURT REPORTS [2003] SUPP. ! S.C.R.

A 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 some of the
parties that this Court should direct the National Industrial Tribunal to decide
B 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
C 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.
D
We do noi 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.

It is open to the Central Government to enlarge the terms of the reference
E under Section I 0 of the Industrial Disputes Act to specifically include for
adjudication the dispute of Air India and its employees and/or the employees
inter se. It would also be open to the air hostesses represented by appellant/
AICCA and the respondent/AHSA to make their demands in the pending
reference before the Tribunal by seeking a fresh reference from the Central
Government. It would be then open to the National Industrial Tribunal to take
F 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
G 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.
H
AIR INDIA CABIN CREW AS SON. v. YES HAWIN EE MERCHANT [DHARMADHIKARI J., 11 499

In view of the detailed discussion of the various grounds urged before A
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
-~ B
In the result, these appeals are allowed and the impugned judgment of
the Bombay High Court dated 20/23.8.200I 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 C
involved, we leave the parties to bear their own costs in this Court.

K.K.T. Appeals allowed.