TaxTMI 
TaxTMI 
1981 (8) TMI 238
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....rit petitions filed by the Air Hostesses employed by the Indian Airlines Corporation (hereinafter referred to as "I.A.C.") which were pending hearing in this Court involved almost identical reliefs. After hearing the transfer petition this Court by its Order dated January 21, 1981 allowed the petition and directed that the transfer petition arising out of Writ Petition 1186 of 1980 pending before the Bombay High Court be transferred to this Court. By a later Order dated March 23, 1981 this Court directed that the transferred case may be heard along with other writ petitions. Hence, all these matters have been placed before us for hearing. For the purpose of brevity, the various petitions, orders, rules, etc. shall be referred to as follows :- (1) Air India as "A.I." (2) Indian Airlines Corporation as "I.A.C." (3) Statutory regulations made under the Air Corporations Act, 1953 (27 of 1953) by Air India or the Indian Airlines Corporation would be referred to as 'A.I. Regulation' and 'I.A.C. Regulation' respectively. (4) Nergesh Mirza & Others as 'petitioners'. (5) Declaration by the Central Government under Equal Remuner....
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....e Act completely nullify this argument and clearly show that the two Corporations formed one single unit to be controlled by the Central Government under the 1953 Act. It may be that the two Corporations may have different functions to perform - A.I. operating international flights and the other (I.A.C.) operating domestic flights within the country. This fact alone, however, would not make the two Corporations absolutely separate entities. The two Corporations were part of the same organisation set up by the 1953 Act. This fact is fortified by subsequent events such as when disputes arose between the employees of the two Corporations, the dispute with respect to A.I. was referred to Justice Khosla and formed the basis of the Khosla Award. Similarly, dispute between the I.A.C. and its employees was referred to Justice Mahesh Chandra where A.I. filed an application on behalf of the Air Corporation Employees' Union (ACEU). The aforesaid Union represented both the A.I. and I.A.C. A prayer of the ACEU was allowed by the Tribunal by its order dated March 1, 1971 (vide page 1191 of the Gazette of India - Section 3(ii), dated March 25, 1972) for being impleaded as a party to the Refer....
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..... In Para 252 of the Award the dispute regarding the retirement age is mentioned thus : 252. At present, the retirement age of the Air India employees is governed by Service Regulations Nos. 46 and 47. Service Regulation No. 46 is as follows :- 46. Retirement Age * * * (c) An Air Hostess, upon attaining the age of 30 years or on marriage, whichever occurs earlier. * * * 253. Regulation No. 47 provides for a further extension of the employee beyond the age of retirement for an aggregate period not exceeding two years except in the case of Air Hostesses where the services can be extended up to a period of 5 years. The extension is granted on the employee being found medically fit. 6. Thus, according to the Regulations prevalent in A.I. an AH had to retire at the age of 30 or on marriage whichever was earlier subject to an extension being granted for a period of 5 years if the employee was found to be medically fit. While considering this demand, the Tribunal seems to have upheld the view of the Corporation and found no reason to interfere with Regulation Nos. 46 and 47. In this connection, the Tribunal observed as follows :- "In my view, no case has been made out for r....
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....rred to another Tribunal, viz. Mahesh Tribunal, before whom a part of the dispute between several workmen was settled but the dispute which was not settled including the question of the age of retirement of AHs was referred to this Tribunal some time in November 1970 and the Award was given on February 25, 1972. Before this Tribunal also, the stand taken by the ACEU was that the age of retirement of AH should be fixed at 45 instead of 30 or 35 and the bar of marriage should be removed. The A.I., however, stuck to its original stand that having regard to the strenuous work to be put in by an AH, the age of retirement should be kept at 30. In this connection, the Mahesh Tribunal indicated the stand of the parties thus :- "The ACEU contends that age of retirement of air hostesses should be fixed at 45 instead of 30 or 35 as at present; that this demand for increase in the age of retirement is in accordance with Geneva Convention and that the bar of marriage on air hostesses should be removed. The Air India's contention is that the nature and underlying object of the job of an air hostess requires that their age of retirement should be kept at 30 as at present. It has also been....
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.... underwent a further change and by virtue of a notification published in the Gazette of India on April 12, 1980 in Part III, Section 4, Para 3 of the amended Regulation 12 was further amended thus :- "An Air Hostess shall retire from the service of the Corporation upon attaining the age of 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever occurs earlier." 13. The amendment seems to have made a slight improvement in the conditions of service of AHs inasmuch as the age of retirement was fixed at 35 years and the bar of marriage was restricted only to a period of four years, that is to say, if an AH did not marry within a period of 4 years of her entry into service, she could retire at the age of 35. This amendment was not in supersession of but supplemental to the ACEU Settlement dated January 10, 1972. In other words, the position was that an AH if she did not marry within 4 years, could go up to 35 years extendable to 40 years, if found medically fit. This was the historical position so far as the retirement age of AHs working with I.A.C. is concerned. As regards AHs employed by A.I. the latest position is to be found in Regu....
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.... some important and interesting points of law which may be summarised as follows :- (1) The AHs employed by one Corporation or the other form the same class of service as the AFPs and other members of the cabin crew. Both the male pursers and the AHs are members of the same cabin crew, performing identical or similar duties and hence any discrimination made between these two members who are similarly circumstanced is clearly violative of Article 14 of the Constitution of India. (2) Even if the AHs are a separate category or class, there is an inter se discrimination between the AHs posted in the United Kingdom and those serving in the other Air India flights. (3) That the AHs have been particularly selected for hostile discrimination by the Corporation mainly on the ground of sex or disabilities arising from sex and therefore, the regulations amount to a clear infraction of the provisions of Article 15(1) and Article 16 of the Constitution of India. (4) The termination of the services of AHs on the ground of pregnancy or marriage within four years is manifestly unreasonable and wholly arbitrary and violative of Article 14 of the Constitution and should, therefore, be struck....
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....itrary or discriminatory, the court ought nor to interfere with them particularly when those two Awards are binding on the parties even though their period may have expired. (4) Having regard to the circumstances prevailing in India and the effects of marriage, the bar of pregnancy and marriage is undoubtedly a reasonable restriction placed in public interest. (5) If the bar of marriage or pregnancy is removed, it will lead to huge practical difficulties as a result of which very heavy expenditure would have to be incurred by the Corporations to make arrangements for substitutes of the working AHs during their absence for a long period necessitated by pregnancy or domestic needs resulting from marriage. (6) The court should take into consideration the practical aspects of the matter which demonstrate the fact that a large number of AHs do not stick to the service but leave the same well before the age of retirement fixed under the Regulation. 22. Finally, as a very fair and conscientious counsel Mr. Nariman placed a few proposals which might mitigate the inconvenience caused to the AHs and remove a large bulk of their grievances. It was submitted by Mr. Nariman that he would....
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....ame class, discriminatory treatment is meted out to one against the other, Article 14 is doubtless attracted. 28. In Kathi Raning Rawat v. State of Saurashtra [1952 SCR 435 AIR 1952 SC 123 1952 SCJ 168] Sastri, C.J. observed thus (SCR pp. 442-43) Though the differing procedures might involve disparity in the treatment of the persons tried under them, such disparity is not by itself sufficient, in my opinion, to outweigh the presumption and establish discrimination unless the degree of disparity goes beyond what the reason for its existence demands us, for instance, whet it amounts to a denial of a fair and impartial trial. Fazal Ali, J., as he then was, pithily observed as follows (SCR p. 488) I think that a distinction should be drawn between 'discrimination without reason' and 'discrimination with reason'. The whole doctrine of classification is based on this distinction and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise as between persons governed by different conditio....
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.... scales of salary for the same or similar posts, different terms of leave or superannuation for the same or similar post ? On the narrow construction of Article 16(1) even if such a discriminatory course is adopted by the State in respect of its employees that would not be violative of the equality of opportunity guaranteed by Article 16(1). Such a result could not obviously have been intended by the Constitution.... The three provisions form part of the same constitutional code of guarantees and supplement each other. If that be so, there would be no difficulty in holding that the matters relating to employment must include all matters in relation to employment both prior, and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment. * * * It is common ground that Article 16(4) does not cover the entire field covered by Article 16(1) and (2). Some of the matters relating to employment in respect of which equality of opportunity has been guaranteed by Article 16(1) and (2) do not fall within the mischief of non-obstantive clause in Article 16(4). 31. In State of Punjab v. Joginder Singh [1963 Supp 2 SCR 1....
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....quality as between members of the same class of employees and not equality between members of separate, independent classes. 33. The same principle was reiterated by this Court in Western U.P. Electric Power & Supply Co. Ltd. v. State of U.P. [(1969) 3 SCR 865 (1969) 1 SCC 817 AIR 1970 SC 21] where Shah, J. observed thus (SCC p. 821, para 7) Article 14 of the Constitution ensures equality among equals its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similarly circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law. 34. In a recent decision of this Court in Ramesh Prasad Singh v. State of Bihar [(1978) 1 SCC 37 1978 SCC (L&S) 23 (1978) 1 LLJ 197 (1978) 1 SCR] to which one of us (Fazal Ali, J.) was a party, the same principle was reiterated thus :- Equality is for equals, that is to say, those who are similarly circumstanced are entitled to an equal treatment by the guarantee enshrined....
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.... 38. Similar observations were made in Vol. 16 (pp. 236-37) of Corpus Juris Secundum which are extracted below A person ordinarily is precluded from challenging the constitutionality of governmental actions by invoking the rights of others and it is not sufficient that the statute or administrative regulation is unconstitutional as to other persons or classes of persons; it must affirmatively appear that the person attacking the statute comes within the class of persons affected by it. 39. Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge :- (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted. (2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in v....
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....by the parties on this aspect of the matter. We shall first deal with the case of AHs employed by A.I. 44. To begin with, it is not disputed that at the initial recruitment a classification for appointment of AH and AFP is essentially different. For instance, while in the case of AFP the necessary qualifications are as follows :- (1) SCC or its equivalent. (2) Minimum three years' training experience in any Airline or three years' Diploma in Catering from a recognised Institute or a Graduate. (3) There is no requirement that AFP should be unmarried. (4) The AFP has to appear for a written I.C. test. 45. As against these basic requirements for entry into service for the class known as 'AFP' the requirements for AHs are as follows :- (1) SCC or its equivalent. (2) AH must be unmarried. (3) No other requirement is needed for entry into service so far as AH is concerned. 46. Mr. Setalvad, however, argued that both AHs and AFPs being members of the same cabin crew must be taken to belong to the same class. This argument fails to take into consideration the fact that if at the threshold the basic requirements of the two classes, viz, AFP and AH, for entry....
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....he demand for phasing out a post belonging to the category of AHs and that too without taking the consent of AHs. A serious protest on this account was lodged by the AHs which is to be found at page 166 of Volume II of the Paperbook, the relevant portion of which may be extracted thus :- We do not see how any Flight Purser or Assistant Flight Purser could suggest a viable proposal regarding our promotion considering this matter is in direct relation to Air Hostesses and their future. In the past the Flight Pursers and the Assistant Flight Pursers took away our promotional avenue to Deputy Chief Air Hostess without even consulting us. 53. At page 148 of Volume II of the Paperbook, the affidavit details the circumstances under which the post of Dy. Chief AH was agreed to be phased out. In this connection, the following extracts are relevant :- The Association also went into the grades of different categories of cabin crew and found that while the Deputy Chief Air Hostesses functioned on board the flight only as Check Air Hostesses and/or Air Hostess her grade was much higher than that of a Flight Purser who was in a higher status or cadre and had supervisory responsibilities. ....
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....the AHs form an absolutely separate category from that of AFPs in many respects having different grades, different promotional avenues and different service conditions. Finally, it may also be noted that even though the AHs retire at the age of 35 (extendable to 45) they get retiral benefits quite different from those available to the AFPs. For instance, at pages 68-69 of Vol. II of the Paperbook the following averments may be specially noticed :- The benefits particularly the retirement benefits for male cabin crew and female cabin crew in service have been and are materially different and the expectations raised on the basis of these benefits are also viewed differently. Thus, for instance, an Air Hostess, who is recruited between the ages of 19 and 25 on a higher pay scale than that of an Assistant Flight Purser and who retires after service of 10 years, is entitled to the same quantum of free air passages, which she was entitled to in the 10th years of her service, for a continuous period of five years thereafter. Similarly, and Air Hostess who has completed 15 years of service and retires thereafter is entitled to free air passages for a continuous period of 10 years thereaf....
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....nd assisting each other particularly in case of emergency. This aspect of the matter was highlighted by the Mahesh Award which observed thus :- The Management claims that there cannot be and should not be, any inflexibility or rigidity regarding the functions and duties of the different categories of cabin crew and the Management should have full authority and discretion as regards the interchangeability of job allocations and functions and duties of the different categories of cabin crew and for effecting from time to time such interchanges of job allocations and of functions and duties as it might think fit. * * * There is not the slightest doubt that the Cabin Crew have to work as a team as pointed out by Shri S.S. Hemmadi (AMW-5). Although there are different duties fixed for different categories, it is necessary for each category to give help and do the work of other categories for the smooth flight. (vide pp. 1259-60 of the Mahesh Award) 61. We entirely agree with the observations made in the Mahesh Award and, therefore, do not attach much importance to this circumstance relied upon by the Corporation. 62. In the same token, an additional argument advanced by Mr. Seta....
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....there is due, not to a difference of sex, but to that material difference. It is important to note there that the woman, if she remains sufficiently long in the company's employ, will of course one day herself qualify to receive a long-service increment. It is common ground in this case that the variation - that is to say, the difference in the hours worked in London and those worked in Nottingham - is not due to a difference of sex. 63. On a parity of reasoning in the instant case, therefore, the violation of Article 14 is not due to any fault of the Corporation which only seeks to abide by the local laws of United Kingdom nor could it be said that the higher retirement age was fixed for AHs posted in U.K. only on the ground of sex. 64. Coming now to the next limb of the argument of Mr. Setalvad that even if there is no discrimination inter se between AHs, the conditions referred to above are so unreasonable and arbitrary that they violate Article 14 must, therefore be struck down, we feel that the argument merits serious consideration. Before, however, we deal with the various aspects of this argument, we might mention an important argument put forward by the Corporation ....
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.... deemed to be a contravention of any provision of this Act. 66. In the instant case, the Central Government had made a declaration by virtue of a Notification dated June 15, 1979 published in the Gazette of India, Part II - Section 3, sub-section (ii) dated June 30, 1979, which runs thus :- New Delhi, the June 15, 1979. S.O. 2258 - In exercise of the powers conferred by the Section 16 of the Equal Remuneration Act, 1976 (25 of 1976) the Central Government having considered all the circumstances relating to, and terms and conditions of employment of Air Hostesses and Flight Stewards, are satisfied that the difference in regard to pay, etc., of these categories of employees are based on different conditions, of service and not on the difference of sex. The Central Government, therefore, declares that any act of the employer attributable to such difference shall not be declared to be in contravention of any of the provisions of the Act. 67. Thus, the declaration is presumptive proof of the act that in the matter of allowances, conditions of services and other types of remuneration, no discrimination has been made on the ground of sex only. The declaration by the Central Government....
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.... if it is proved to our satisfaction that the conditions laid down are entirely unreasonable and absolutely arbitrary, then the provisions will have to be struck down. 72. This argument was sought to be rebutted by Mr. Nariman on the ground that the conditions mentioned above formed the subject-matter of the two Awards which have upheld the conditions to be valid. It was also contended that even though the period of the Awards has expired, they continue to be binding on the parties and as these matters pertain to industrial dispute, this Court should not disturb the settlement arrived at or the Awards given by the National Tribunals and allow the disputes to be settled in the proper forum, viz., industrial courts. To buttress this argument, reliance was placed on certain observations in the two Awards as also some authorities. 73. In this connection, while dealing with this particular demand of the AHs, the Khosla Award observed thus :- 256. With regard to air hostesses, the contention of the Management is that they are in a special class. They have to deal with passengers of various temperaments, and a young and attractive air hostess is able to cope with difficult or awkward ....
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....hen we deal with the validity of the impugned Regulations. 76. It is true that even though the period of the Awards may have expired yet it continues to be binding on the parties as an agreement. In the South Indian Bank Ltd. v. A.R. Chacko [(1964) 5 SCR 625 (1964) 1 LLJ 19 AIR 1964 SC 1522] it was held that even if the Award had ceased to be operative, it would continue to be binding on the parties as a contract. In this connection, Das Gupta, J. made the following observations :- Quite apart from this, however, it appears to us that even if an award has ceased to be in operation or in force and has ceased to be binding on the parties under the provisions of Section 19(6) it will continue to have its effect as a contract between the parties that has been made by industrial adjudication in place of the old contract. 77. The same view was taken in Md. Qasim Larry, Factory Manager, Sasamusa Sugar Works v. Muhammad Samsuddin [(1964) 7 SCR 419 (1964) 2 LLJ 430 26 FJR 209 AIR 1964 SC 1699] and reiterated in Life Insurance Corporation of India v. D.J. Bahadur [(1981) 1 SCC 315 1981 SCC (L&S) 111] where the following observations were made (SCC p. 335, para 23; p. 345, para 40 and p. ....
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.... marriage if it takes place within four years of service or on the first pregnancy, whichever occurs earlier; 47. Extension of Service. - Notwithstanding anything contained in Regulation 46, the services of any employee, may, at the option of the Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age of retirement for an aggregate period not exceeding two years except in the case of Air Hostesses and Receptionists where the period will be ten years and five years respectively. 80. A perusal of the Regulations shows that the normal age of retirement of an AH is 35 years, or on marriage, if it takes place within four years of service, or on first pregnancy whichever occurs earlier. Leaving the age of retirement for the time being, let us examine the constitutional validity of the other two conditions, viz., termination if marriage takes place within four years or on first pregnancy. So far as the question of marriage within four years is concerned, we do not thick that the provisions suffer from any constitutional infirmity. According to the Regulations an AH starts her career between the age of 19 to 26 years. Most of the....
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....porations represented to us that pregnancy leads to a number of complications and to medical disabilities which may stand in the efficient discharge of the duties by the AHs. It was said that even in the early stage of pregnancy some ladies are prone to get sick due to air pressure, nausea in long flights and such other technical factors. This, however, appears to be purely an artificial argument because once a married woman is allowed to continue in service then under the provisions of the Maternity Benefit Act, 1961 and the Maharashtra Maternity Rules, 1965 (these apply to both the Corporations as their Head Offices are at Bombay), she is entitled to certain benefits including maternity leave. In case, however, the Corporations feel that pregnancy from the very beginning may come in the way of the discharge of the duties by some of the AHs, they could be given maternity leave for a period of 14 to 16 months and in the meanwhile where could be no difficulty in the Management making arrangements on a temporary or ad hoc basis by employing additional AHs. We are also unable to understand the argument of the Corporation that a woman after bearing children becomes weak in physique or ....
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....r prior termination of pregnancy. The said entire period will be treated as leave without pay subject to the air hostess being entitled to maternity leave with pay as in the case of other female employees and privilege leave under the Regulations. (iii) Every such air hostess will submit to an annual medical examination by the Medical Officer of AIR INDIA for certification of continued physical fitness or such other specifications of health and physical condition as may be prescribed by AIR INDIA in this behalf in the interest of maintenance of efficiency. (iv) It will be clarified that the provisions relation to continuance in service on pregnancy will only be available to married woman - an unmarried woman on first pregnancy will have to retire from service. 83. The proposed amendment seems to us to be quite reasonable but the decision of this case cannot await the amendment which may or may not be made. We would, therefore, have to give our decision regarding the constitutional validity of the said provision. Moreover, clause (b)(iv) above, which is the proposed amendment, also suffers from the infirmity that if an unmarried woman conceives then her service would be termina....
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....Hs by allowing them to marry. Moreover, the provision itself is so outrageous that it makes a mockery of doing justice to the AHs on the imaginative plea that pregnancy will result in a number of complications which can easily be avoided as pointed out by us earlier. Mr. Setalvad cited a number of decisions of the U.S. Supreme Court on the question of sex but most of these decisions may not be relevant because they are on the question of denial of equality of opportunity. In view of our finding, however, that AHs form a separate class from the category consisting of AFPs, these authorities would have no application particularly in view of the fact that there is some difference between Articles 14, 15 and 16 our Constitution and the due process clause and the 14th Amendment of the American Constitution. This Court has held that the provisions of the American Constitution cannot always be applied to Indian Conditions or to the provisions of our Constitution. While some of the principles adumbrated by the American decisions may provide a useful guide yet this Court did not favour a close adherence to those principles while applying the same to the provisions of our Constitution, becau....
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....ass muster under the due process clause of the Fourteenth Amendment, because they employ irrebuttable presumptions that unduly penalize a female teacher for deciding to bear a child. 89. The observations made by the U.S. Supreme Court regarding the teachers fully apply to the case of the pregnant AHs. In Sharron A. Frontiero v. Elliot L. Richardson [36 L Ed 2d 583 411 US 677 (1973)] the following observations were made : Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of out system that legal burdens should bear some relationship to individual responsibility. 90. What is said about the fair sex by the Judges fully applies to a pregnant woman because pregnancy also is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life. Any distinction, therefore, made on the ground of pregnancy cannot but be held to be extremely arbitrary. 91. In Mary Ann Turner v. Department of Employment Security [46 L Ed 2d 18....
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....ual characteristics. A 'stereotyped' answer to that question may not be the same as the answer that the language and purpose of the statute command. * * * Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals. 94. These observations also apply to the bar contained in the impugned regulation against continuance of service after pregnancy. In Bombay Labour Union v. International Franchises Pvt. Ltd. [(1966) 2 SCR 493 (1966) 1 LLJ 417 28 FJR 233] this Court while dealing with a rule barring married woman from working in a particular concern expressed views almost similar to the views taken by the U.S. Supreme Court in the decisions referred to above. In that case a particular rule required that unmarried women were to give up service on marriage - a rule which existed in the Regulations of the Corporation also but appears to have been deleted now. In criticising the validity of this rule this Court....
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....his Court made the following observations : Legislation, which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in reasonableness. 98. In Maneka Gandhi v. Union of India [(1978) 2 SCR 621 (1978) 1 SCC 248 AIR 1978 SC 597], Beg, C.J. observed as follows (SCC p. 400, para 217) "The view I have taken above proceeds on the assumption that there are inherent or natural human rights of the individual recognised by and embodied in our Constitution... If either the reason sanctioned by the law is absent, or the procedure followed in arriving at the conclusion that such a reason exits is unreasonable, the order having the effect of deprivation or restruction must be quashed" and Bhagwati, J. observed thus :- "Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits... Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The pri....
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....erest of the health of the AH concerned as also for the good upbringing of the children. Secondly, as indicated above while dealing with the rule regarding prohibition of marriage within four years, same considerations would apply to a bar of third pregnancy where two children are already there because when the entire world is faced with the problem of population explosion it will not only be desirable but absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of over-population which, if not controlled, may lead to serious social and economic problems throughout the world. 102. The next provision which has been the subject matter of serious controversy between the parties, is the one contained in Regulation 46(i)(c). According to this provision, the normal age of retirement of an AH is 35 years which may at the option of the Managing Director be extended to 45 years subject to other conditions being satisfied. A similar regulation is to be found in the Rules made by the I.A.C. to which we shall refer hereafter. The question of fixation of retirement age of an AH is to be ....
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....t quite a large number of them retire even before they reach the age of 35; hence a lower age for retirement is fixed in their case under the Regulation with a provision for extension in suitable cases. These reasons are no doubt understandable and prima facie appear to be somewhat sound. We are, however, not quite sure if the premises on the basis of which these arguments have been put forward are really correct. In the present times with advancing medical technology it may not be very correct to say that a woman loses her normal faculties or that her efficiency is impaired at the age of 35, 40, or 45 years. It is difficult to generalise a proposition like this which will have to vary from individual to individual. On the other hand, there may be cases where an AFP may be of so weak and unhealthy a constitution that he may not be able to function up to the age of 58, which is the age of retirement of AFP according to the Regulation. As however, the distinction regarding the age of retirement may by the Regulation between AHs and AFPs cannot be said to be discriminatory because AHs have been held by us to be a separate class yet we will have to examine the provision from other poin....
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....ng woman can. Even if the Corporation had been swayed or governed by these considerations, it must immediately banish or efface the same from its approach. More particularly such observations coming from a prestigious Corporation like A.I. appear to be in bad taste and is proof positive of denigration of the role of women and a demonstration of male chauvinism and verily involves may discloses an element or unfavourable bias against the fair sex which is palpably unreasonable and smacks of pure official arbitrariness. The observations of Patanjali Sastri, C.J. in Kathi Raning Rawat [1952 SCR 435 AIR 1952 SC 123 1952 SCJ 168] case may be extracted thus :- All legislative differentiation is not necessarily discriminatory. . . . Discrimination thus involves an element of unfavourable bias. . . . If such bias is disclosed. . . .it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition. 109. At any rate, it is not possible for us to entertain such an argument which must be rejected outright. In fact, there is no substantial and weighty reason for upholding the impugned provisions and this part of the line of reasoning ad....
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....ibunal which also pointed out that the social conditions in Europe and other countries being different, the same rules could not apply to A.I. In this connection, the Tribunal observed thus :- There is no reason to have a different provision regarding the air hostesses in Air India. The social conditions in Europe and elsewhere are different from the social conditions in India. 113. In this view of the matter the argument on this score must be rejected. This Court has pointed out that there cannot be any cut and dried formula for determining the age of retirement which is to be linked with various circumstances and a variety of factors. 114. We might further mention that even before the Mahesh Tribunal, the stand taken by the AHs was merely that their age of retirement should be extended to 45 years and they never put forward or suggested any claim to increase the retirement age to 58 which clearly shows that their present claim is not merely blasted but an afterthought particularly because the Mahesh Tribunal was dealing with this particular grievance and if the AHs were really serious in getting their retirement age equated with that of the AFPs, i.e. 58, they would not have ....
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.... either of persons or of cases or of offences by which measure these groups could be distinguished from those who are outside the purview of the special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. Mukherjea, J. observed thus :- In the case before us, the language of Section 5(1) is perfectly clear and free from any ambiguity. It vests an unrestricted discretion in the State Government to direct any cases or classes of cases to be tried by the Special Court in accordance with the procedure laid down in the Act.... I am definitely of opinion that the necessity of a speedier trial is too vague, uncertain, and elusive a criterion to form a rational basis for the discriminations made.... But the question is how is this necessity of speedier trial to be determined ? Now by reference to the nature of the offences or the circumstances under which or the area in which they are committed, nor even by even by reference to any peculiarities or antecedents of the offenders themselves, but the selection is left to the absolute and unfettered discretion of the executive government with nothing in the law to guide or control its action.....
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....le. Section 3 of the Regulation is one such provision and is therefore liable to struck down as violative of Article 19(1)(g). 118. To the same effect is another decision of this Court in State of Mysore v. S.R. Jayaram [(1968) 1 SCR 349 AIR 1968 SC 346 1968 Lab IC 357] where the following observation were made : The Rules are silent on the question as to how the Government is to find out the suitability of a candidate for a particular cadre. . . It follows that under latter part of Rule 9(2) it is open to the Government to say at its sweet will that a candidate is more suitable for a particular cadre and to deprive him of his opportunity to join the cadre for which he indicated his preference. * * * We hold that the latter part of Rule 9(2) gives the Government an arbitrary power of ignoring the just claims of successful candidate for recruitment to offices under the State. It is violative of Articles 14 and 16(1) of the Constitution and must be struck down. Here also the Rules were struck down because no principles or guidelines were given by the statute to determine the suitability of a particular candidate. 119. Regulation 46(i)(c) provides that an AH would retire on ....
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.... suitably amended to bring it in conformity with the provisions of Article 14 would continue to retire at the age of 45 years and the Managing Director would be bound to grant yearly extensions as a matter of course for a period of ten years if the AH is found to be medically fit. This will prevent the Managing Director from discriminating between one AH and another. 121. So far as the case of AHs employed by I.A.C. is concerned, the same reasons which we have detailed in the case of AHS employed by A.I. would apply with slight modifications which we shall indicate hereafter. So far as the organisation of AHs employed by I.A.C. is concerned, the cabin crew consisting of males are knows as Flight Stewards (F.S.) and those consisting of females as AHs. There are 105 posts of F.S. and 517 of AHs. it is also not disputed that job functions of F.S. and the AHs are the same and in fact there are some flights in which the cabin crew consists only of AHs. But like the A.I. AHs, the mode of recruitment, conditions of service, etc. are quite different in the case of F.Ss. and AHs. The I.A.C. also contended that F.Ss. and AHs are two different categories with different avenues of promotion. ....
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....r as the age of retirement and termination of service on first pregnancy is concerned a short history of the Rules made by the I.A.C. may be given. Regulation 12, as it stood may be extracted thus :- Flying Crew shall be retained in the service of the Corporation only for so long as they remain medically fit for flying duties.... Further, an Air Hostess shall retire from the service of Corporation on her attaining the age of thirty years or when she gets married whichever is earlier. An unmarried Air Hostess may, however, in the interest of the Corporation be retained in the service of the Corporation up to the age of 35 years with the approval of the General Manager. 127. It is obvious that under this Rule an AH had to retire at the age of 30 years or when she got married and an unmarried AH could continue up to 35 years. The rule was obviously unjust and discriminatory and was therefore amended by a Notification published in the Gazette of India dated July 13, 1968. The amended rule ran thus :- An Air Hostess shall retire from the service of the Corporation on her attaining the age of 30 years or when she gets married, whichever is earlier. The General Manager, may, however,....