Background of the Case

In the case of Air India vs Nargesh Meerza which lasted around 30 years, the Air Hostess lost in a legal battle fighting for equal requirement age for both male and female employees. While the male employees could work until age 58, the female attendants were to retire at age 35. In the year 1989 after filing a petition in Lok Sabha for the aforesaid discrimination, the Government of India came out with legislation, that allowed female attendants can be given suitable ground staff jobs after the age of 35 and they were to retire at the age of 58 just like the other male attendants. Following the lead Air India in the year 1990 issued a notification stating that female flight attendants who have attained the age of 45 would be given a suitable job in ground staff duties. In 1993, this age limit was extended up to 50 years, subject to the employee’s medical fitness for flying duties. After this Air India was divided into two separate entities through legislation, one of which was Indian Airlines and the other Air India. Air India entered into a contract with the Air India Cabin Crew for the services of flight attendants in the year 1995.

Facts of the Case

Air India in the year 1995 when entered into a contract with Air India Cabin Crew which said that the cadres joining after the year 1997 would be considered equal employees and would be given the new retirement age (of 58 years) but those cadres joining before that would be treated as par with the old policies. A group of Air Hostesses who were nearing the age of 50 formed a named Air India Air Hostess which was later declared not to be an official Union for representing the Air Hostesses (Yeshawinee Merchant and others who would be referred to as respondents as they were the respondents in the case that went to the Supreme Court)went to National Industrial Tribunal and stated that this notification discrimination based on gender for the female employees who joined before the year 1997 and from there they moved to the Bombay High Court. They first pleaded the unsuccessful case, and thereafter the respondent filed a writ petition in the Bombay High Court. The Bombay High Court thereafter took into account the writ petition. It stated that the notification which allowed female employees to give up flying duties after 50 years and take up ground duties, unlike their male counterparts who could fly up to age 58, was discriminatory. And thus, the Bombay High Court gave the decision on the proposal made by Air India Limited to merge the two cadres of flying attendants i.e., the pre and post-1997, and proposed certain conditions. The conditions were:

• The seniority of flight attendants; women and men should be in accordance with their date of accession.
• If a man flight Crew is in a lower rank than a woman Cabin Crew with the male Cabin Crew having joined Air India earlier, the rank and basic pay of the female Cabin Crew would be frozen before the male Cabin Crew is elevated and the female Cabin Crew is senior as per their date of joining.
• The aircraft hierarchy should be based on seniority regardless of the gender of the flight attendant.
• Special privileges presently given to air hostesses, such as early retirement and other early retirement perks, shall no longer continue.
• Both Cabin Crew (workers and executives) must receive an annual physical review after age 35 and be subject to weight tests at all times regardless of sex.

Following this judgment, the Air India Cabin Crew representing the majority of the Cabin Crew Workers including 684 female flight attendants filed an appeal against the Bombay High Court decision in the Supreme Court. They appealed that they were happy with the age of 35 as their retirement age as they get to retire early, they would be given seniority early with various allowances. They also contended that they were the only official Air India Cabin Crew workers and thus had the sole rights to represent the Cabin Crew members. They requested leave to appeal against the rulings which adversely affect Air India’s seniority and promotion policies.

Appellants Argument in this case

Separate appeals against the High Court’s judgment were filed by the Union of India and Air India Limited. The appellant Union of India contended that the Government of India’s letter dated 29-12-1989 was also a direction under Section 34 of the Air Corporations Act: In this regard, reference was made to Article 77 of the Constitution of India that requires every action of the Government of India to have been taken by using the name of President. During the hearing, some parties requested the Supreme Court to direct the National Industrial Tribunal to decide the disputes inter se between Air India and its employees — “males and females”. Some of them pleaded to allow the air hostesses more than one option. They also contented that this way they will be able to fulfill their marital obligation more successfully and have much more time for their kids and family.

Respondent Arguments in this case

The respondent Air India Air Hostess contended that air hostesses were selected for their youth and looks hence, retired earlier than males which was a practice derogatory to women and contrary to Article 51 A(e). Also, they contended on the points on which they were successful in the Bombay High Court namely it being gender discrimination and being violative of Articles fourteen, fifteen and sixteen of the Constitution of India.

On The Constitutional Provisions regarding

Articles 15 and 16

The Supreme Court said that under Articles 15 and 16 special provisions for women is not prohibited, women could be treated differently based on the requirement of work and of course for their comfort part. The Court relied on the but for their sex test. The Court stated that as in English Law but for their sex test is applied so that the Court can see whether the other gender requires to do something, or will it be in their comfort zone. It means that women should not be given no less treatment than the other gender and their favorable conditions should be fulfilled. As contented by the Appellants that they may require more time to fulfill their marital obligations, it is a perfect example of a but-for-test.

In any case, the Court then upheld the holding of Nargesh Mirza, noting that it had been observed on the “but-for” check that because air hostesses and air flight pursers developed different cadres, there was no discrimination on grounds of sex. The issues with this review were described in depth within a previous article, so require no clarification. However, the Court went on to remark:

“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, settlements 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 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 but not preferential or special treatment of women, which is a positive measure in their favour.”

The Court also assumed that the settlement was for a positive cause in favour of women. To work on this particular point, the Court observed:

“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 recognised 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 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.”

Therefore, as it has been proved that this was not discrimination based on the gender of the employees, it cannot be held as violative of the Articles 14, 15 and 16 of the Constitution of India.

ON The AIR CORPORATIONS ACT, 1953

Regarding the Air Corporations Act of 1953, the Supreme Court of India mentioned that the notification issued by the Government of India dated 16/10/1989 was not discriminatory. The Court said that if we read the notification with the clarification which was issued on 29/12/1989 under the directions of the Air Corporations Act 1953, we can imply that the air hostesses were meant to serve until the age of 58 years as per the directions and terms and conditions which was reached into during the settlement between the two parties. In the leading case of Air India v B.R. Age the Court referred to, which read as:

“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 void or invalid, Moreover, the respondent 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.”

Therefore, the Court implied the following act could not be held as violative of the Air Corporations Act 1953.

ON THE EQUAL REMUNERATIONS ACT 1976

As it has been already held that the conditions for the retirement of the air hostesses from the duties of on board flight at the age of 50 are not discrimination based on the gender of the employees working there it cannot be said to be violative as in any means and neither violative of the Equal Remunerations Act 1976.

“Even though declaration under Section 16 was made and notified on 15-6- 1979 i.e. before the amendment was introduced to Section 5 of the ER Act of 1976 by Amendment Act of 49 of 1987, the said declaration which is taken note of and relied on in the decision in Nergesh Meerza case clearly indicates that the Central Government did record its 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. Differences in conditions of service of the two cadres remained unchanged till 1997. Therefore, the factual foundation of the declaration under Section 16 of the ER Act of 1976 remains unshaken and the declaration has not lost its efficacy on an amendment introduced to Section 5 in 1997. There has been no change in the service conditions of pre-1997-recruited air hostesses, after their recruitment.”

When referring to Lena Khan Case, the Court said that the duty requirements for fixing the lower retirement age of the air hostess with the option of undertaking ground duties after that age were decided upon by the air hostesses to change negotiations by there during the process of industrial adjudication. These terms and conditions voluntarily agreed to by them are binding to them and cannot be brought into doubt under the rules of Section 5 of the 1976 ER Act. The Court mentioned while giving the following statement:

“They cannot be described as discriminatory conditions of service based on sex alone. In this respect Section 15 und particularly clauses (a) and (xii) thereof are relevant. The tent and condition of the retirement age settled in the course of industrial adjudication by air hostesses through there is a term and condition of their employment fixed in accordance with the adjudicatory machinery provided for in the industrial law. It gives them a special treatment found by them to be favourable to them. Duties on flight demand of air hostess physical fitness, agility and alertness. Duties in the air are full of tension and sometimes hazardous. They have, therefore, agreed to a comparatively early retirement age with an option to accept cities on the ground. Therefore, it is held that the early-age retirement policy for air hostesses in Air India does not contravene Section 5 of the ER Act of 1976; otherwise, it is saved by Sections 15 a) and 15b) of the ER Act of 1976.”

Effect of Pending Reference before National Industrial Tribunal

The Supreme Court while speaking on this matter stated that as the matter was pending before the National Industrial Tribunal and since the High Court had no material evidence regarding the merging of cadres, how the High Court can reach such a decision? The Supreme Court was heavily critical of this judgment of the High Court. “When the matter of fixing the terms and conditions of employees of the Indian Airlines, in which Air India and its employees had also been noticed, was pending before the National Industrial Tribunal, it was wholly uncalled for the High Court to have allowed the employer to come forward with proposals for creating parity in the age of superannuation between air hostess and flight pursers only on the condition of merging of the two cadres with the 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 neither appropriate nor a substitute of industrial adjudication in the Industrial Courts and Tribunals constituted in industrial law.”

The Court also mentioned that The High Court was evidently misguided in extending its authority by splitting the business and adjudicating conflicts between employers and workers. Not all groups likely to be harmed had been the groups to the writ petitions before the High Court. It would not be proper or necessary for the Supreme Court to make any direction in the pending reference to the National Industrial Tribunal as in doing so, it would be committing a single mistake as was done by the High Court.

Judgment at a glance

• The Supreme Court sharply condemned the impositions and legislation brought out by the Bombay High Court, finding that the High Court had followed “a risky path in deciding the terms and conditions in Air India workers in various groups of men and women.”
• The Supreme Court decided that the High Court’s decision was “unsustainable” concerning its framework for the rules on seniority. It noted, however, that this aspect of the High Court judgment was severable from the ruling on air hostesses’ retirement age. Hence the decision to require flight duty air hostesses to retirement age to be 58 was upheld.

Overview of the Judgement

Constitution of India Fundamental Rights Equality Air India fixed the age of retirement for air hostesses from flying duties at 50 with the option to go for ground duties till 58 Fixing of retirement age arrived after entering into agreements and settlements with employees Male Cabin Crew retiring from flight duties at 58 Whether fixing of retirement age for air hostesses at 50 from flight duties amounted to discriminatory treatment on basis of sex Whether fixing of retirement age for air hostesses at 50 from flight duties was violative of Constitution Held in the negative by the Supreme Court Constitution of India 1950, arts 14, 15, 16, 51A(e), 77, 226 Equal Remuneration Act 1976, ss 2(h), 4, 5, 15, 16 The Air India fixed the age of retirement of air hostesses from flying duties at 50 with the option to go for ground duties beyond the age of 50 till the age of 58 and other terms and conditions of service by entering into agreements and settlements with the employees under the industrial law. The respondent-Air India Air Hostesses and its members (the respondent-) comprising of air hostesses working in executive cadre filed a writ petition before the High Court alleging that fixing the age of retirement of air hostesses from flying duties at 50 with the option to go for ground duties beyond the age of 50 till the age of 58 was a discriminatory treatment meted out by the employer-Air India only based on their sex. They contended that such discriminatory treatment violated Sections 14 and15of the Constitution of India 1950 (the Constitution) and Section 5 of the Equal Remuneration Act 1976 (the Act). The High Court held that with the passage of time, the service conditions between the male and female cadres had been obliterated. It accepted the respondent’s contentions and held that air hostesses were also entitled to a retirement age of 58 years on flying duties at par with flight pursers and other members of the Cabin Crew. The appellants-Air India Officers and most air hostesses of the workmen category appealed. The Court while being highly critical of the Bombay High Court Said that “In desperate attempt, to support a part of the judgment of the 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/s, 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.” Also, in view of the detailed discussion of the various grounds the Court decided that both impugned parts of the judgment of the High Court are unsustainable. “Therefore, the Court did not accept the alternative submission made on behalf of the respondents/ that since two parts of the impugned judgment are severable, one of the parts fixing the retirement age for air hostesses on flight duties up to the age of 58 years be upheld. As a result, these appeals were allowed and the impugned judgment of the Bombay High Court dated 20/23.8.2001 was set aside. The Writ Petition of the respondent/ was also dismissed.”

CONCLUSION

Gender discrimination is the unfair treatment of individuals based on their gender, which is a prevalent social phenomenon in our society. This is evident in various forms of gender inequality that occur on a daily basis.

In Air India v. Nargesh Meerza, 1981, the retirement age for air hostesses was set at 35 years due to the incorrect notion that women lose their youthfulness and glamor after that age.

This regulation was deemed unconstitutional and discriminatory against the constitution of India, particularly articles 14, 15, and 16, which protect basic rights for women. Consequently, the court struck down Regulation 47, which was found to be inappropriate and allowed for the misuse of power by managing directors.

References

Cases

Air India Cabin Crew  Versus Yeshawinee Merchant And Others (2003) 6 SCC 277…………………………………………………………. 5, 6, 11

Air India v B.R. Age, (1995) 6 SCC 359………………………………………. 6

Air India v Nergeshh Meerza [1981 (4) SCC 335]……………………… 2, 4

Lena Khan v. Union of India, (1987) 2 SCC 402…………………………… 7

Yeshaswinee Merchant and Ors. Vs. Air India Ltd. and Ors. [MANU/MH/0359/2002]………………………………………………………… 3

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