YESHASWINEE MERCHANT Vs. AIR INDIA LTD

JUDGEMENT

(1.) WHETHER the air hostesses working in Air India have a right to perform flying duties after attaining the age of 50 years is the principal question that falls for consideration in these writ petitions under Article 226 of the Constitution of India.

(2.) AIR India has about 1000 air hostesses. The cabin crew of Air India comprises of females and males. Air India had initially fixed the retirement age of air hostesses at 30 years with power to the General Manager to extend the retirement age upto 35 years, upon the air hostesses being found medically fit. In 1980-1981 the age of retirement of air hostesses was increased to 35 years and their services could be extended for one year at a time at the sole discretion of the Managing Director until they attained the age of 45 years. In contrast the male cabin crew known as assistant flight pursers, flight pursers and inflight supervisors, were retained in service and continued on flight duties until the age of 58 years. In view of the decision of the Supreme Court in the case of Air India v. Nergish Meerza and Ors. , AIR 1981 SC 1829 the age of retirement of the air hostesses stood increased to 45 years subject to their being medically fit. Sometime in the year 1989, pursuant to the report made by the Petitions Committee of the Parliament, the Union of India issued two separate directives both dated 16th October, 1989 directing Air India and Indian Airlines that like male cabin crew, Air hostesses should be allowed to serve till the age of 58 years subject to medical examination once a year after the age of 35 years. This directive was implemented by the Indian Airlines. Air India, however, on the basis of a letter of the 3rd respondent i. e. Joint Secretary Ministry of Civil Aviation and Tourism dated 29th December, 1989 issued the circular dated 23rd March, 1990 to the effect that though the age of retirement of the air hostesses would stand increased to 58 years, they would be grounded upon attaining the age of 45 years and would not be entitled to perform flying duties. The said letter dated 29th December, 1989, the circular dated 23rd March, 1990 and further circulars dated 2nd November, 1990 and 5th May, 1991 and the Office Order dated 12th January, 1993 are challenged by the Air hostesses on the ground that the same are ex-fade, mala fide, arbitrary, unreasonable and violative of their fundamental rights guaranteed under Articles 14, 16, and 21 of the Constitution.

(3.) DURING the course of the arguments, Mr. Bharucha, the learned counsel appearing for Air India made a statement before us that Air India does not want to make any discrimination between the air hostesses and male cabin crew and further made a categorical statement that Air India would be willing to assign flying duties to the air hostesses upto the age of retirement i. e. 58 years subject to certain measures which we will discuss at the appropriate stage. Suffice it to say that Air India wants to introduce interchangeability of job functions on board the air craft and flexibility of working positions at the discretion of the management. The learned Additional Solicitor General appearing on behalf of the Union of India endorsed the solution. The reasonable and responsible approach adopted by the Union of India and Air India has resulted in a fair and proper resolution of the disputes between the petitioners on the one hand and Air India/union of India on the other. Understandably their only reservation was that Air India should not suffer monetarily or otherwise by introduction of parity in the age of retirement of male and female cabin crew. Mr. Harish Jagtiyani, Mr. Anand Grover, Mr. C. U. Singh and Mr. Mohan Bir Singh, the learned Counsel appearing on behalf of the petitioners in various writ petitions also agreed to the aforesaid suggestion made by Air India and endorsed by the Union of India. It may be mentioned that as a matter of fact one of the prayers made by the air hostesses is for a direction to Air India to effect complete parity and merger between the air hostesses and male members of the cabin crew and remove all vestiges of discrimination between the male and female members of the cabin-crew. In these circumstances, it would have been sufficient for us to merely record the compromise arrived at between the petitioners, Air India and the Union of India. However, Mr. J. P. Cama, learned Senior Counsel appearing on behalf of the All India Cabin Crew Association (AICCA) while agreeing to the retirement age of air hostesses being brought on par with that of the male cabin crew, opposed the introduction of interchangeability of duties between the two. Air India gave extremely cogent and valid reasons for insisting on interchangeability of duties between the male and female cabin crew. Mr. Cama attempted to demonstrate that the males and females of his Association would suffer, if interchangeability was introduced. 'with the assistance and co-operation of Air India and the Union of India, we ensured that the members of the AICCA would not suffer monetarily or otherwise in a settlement. Ultimately when each of the difficulties faced by Mr. Cama were resolved the real reason for his opposition emerged. Presently, irrespective of seniority, only a male member of the cabin crew is entitled to be a flight superviser. With interchangeability junior male cabin crew members may have to work under a senior female flight superviser. This he said was unacceptable to the male members of the AICCA. This really was the real reason why Mr. Cama opposed the compromise. Having regard to the understanding reached between the petitioners and Air India and Union of India, it would not really have been necessary for us to give reason for our order. The order could have been simply confined to the recording of agreement between the parties. However, in view of the opposition by the Interveners we propose to give brief reasons for our order allowing the petitioner's prayer for permitting air hostesses to fly upto the age of 58 years subject to measures suggested by Air India.