REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.9857-9861 OF 2011
(Arising out of SLP(C)Nos.20668-20672 of 2007)
AIR INDIA CABIN CREW ASSN. & ORS. … APPELLANTS
Vs.
UNION OF INDIA & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NOS.9862-9865 OF 2011
(Arising out of SLP(C)Nos.20679-20682 of 2007)
AND
CIVIL APPEAL NOS.9866-9871 OF 2011
(Arising out of SLP(C)Nos.20773-20778 of 2007)
J U D G M E N T
ALTAMAS KABIR, J.
1. Leave granted.
2. Special Leave Petitions (Civil) Nos.20668-20672 of 2007, Special Leave Petitions (Civil) Nos.20679- 20682 of 2007 and Special Leave Petitions (Civil) Nos.20773-20778 of 2007, have been taken up together for hearing and final disposal, inasmuch as, the facts in the several matters are the same, and the law involved is also the same. For the sake of convenience, we shall narrate the facts from Special Leave Petitions (Civil) Nos.20668- 20672 of 2007, which have been filed by the Air India Cabin Crew association and two others.
3. The common issue in all these matters is whether the promotional avenues and other terms of service of the pre-1997 cadre of Assistant Flight Pursers could be changed to their prejudice despite the provisions of the Air Corporation (Transfer of Undertakings and Repeal) Act, 1994 and, in particular, Section 8 thereof and also in view of the judgments of this Court in Air India Vs. Nergesh Meerza & Ors. [(1981) 4 SCC 335], and Air India Cabin Crew Assn. Vs. Yeshaswinee Merchant & Ors. [(2003) 6 SCC 277], along with the various agreements and settlement arrived at between the parties. The further question that arises is whether in the circumstances indicated, a policy decision of gender neutralization, which was prospective in nature, could be applied retrospectively to the pre-1997 cadre of Pursers and whether such application would be arbitrary and contrary to the provisions of Articles 14, 19 and 21 of the Constitution, as it upsets certain rights relating to promotion which had vested in Assistant Flight Pursers belonging to the pre-1997 cadre.
4. In order to appreciate the case made out by the appellants in these appeals, it is necessary to set out briefly some of the facts leading to the filing of the several writ petitions before the Delhi High Court.
5. According to the appellants, for several decades two distinct cadres have been existing in Air India Corporation, comprising male Air Flight Pursers and female Air Hostesses, each with their own terms and conditions of service, including promotional avenues. In 1980, one Nergesh Meerza and four other Air Hostesses filed Writ Petition No.1186 of 1980 in the Bombay High Court, questioning the constitutional validity of Regulation 46(i)(c) of the Air India Employees’ Service Regulations and raising certain other questions of law. Air India, being the Respondent No.1 therein, moved a transfer petition, being Transfer Case No.3 of 1981, for transfer of the writ petitions from the Bombay High Court to this Court on the ground that several writ petitions filed by Air India were pending before this Court and also on account of the fact that other writ petitions had also been filed by the Air Hostesses employed by the Indian Airlines Corporation, hereinafter referred to as “IAC”, which were also pending in this Court involving almost identical reliefs. Even in the said case, which was transferred to this Court, it was observed that from a comparison of the method of recruitment and the promotional avenues available, Air Hostesses formed an absolutely separate category from that of Assistant Flight Pursers in many respects, having different grades, different promotional avenues and different service conditions.
6. At this stage, it may be necessary to give a little further background regarding Indian Airlines Corporation and Air India Limited established under Section 6 of the Air Corporations Act, 1953. Subsequently, Indian Airlines Limited and Air India Limited were formed and registered under the Companies Act, 1956. In 1994, the Air Corporations (Transfer of Undertakings and Repeal) Act, 1994, hereinafter referred to as “1994 Act”, was enacted to provide for the transfer and vesting of the undertakings of Indian Airlines and Air India respectively to and in the companies formed and registered as Indian Airlines Limited and Air India Limited and also to repeal the Air Corporations Act, 1953. Section 3 of the 1994 Act provided for the vesting and transfer of the undertaking of Indian Airlines in Indian Airlines Limited and the undertaking of Air India in Air India Limited. Section 8 of the 1994 Act also specified that every officer or other employee of the Corporations, except the Director of the Board, Chairman, Managing Director or any other person entitled to manage the whole or a substantial part of the business and affairs of the Corporation serving in its employment immediately before the appointed day (1st April, 1994) would, in so far as such officer or other employee were concerned, become as from the appointed day, an officer or other employee, as the case may be, of the company in which the undertaking had vested and would hold his office or service therein for the same tenure, at the same remuneration and upon the same terms and conditions of service. He would be entitled to the same obligations, rights and privileges as to leave, passage, insurance, superannuation scheme, provident fund, other funds of retirement, pension, gratuity and other benefits as he would have held under the Corporation if its undertaking had not vested in the Company, with the option of not becoming an officer or other employee of the Company.
7. The dispute regarding the distinction between Assistant Flight Pursers and Air Hostesses resulted in a Record Note signed on 30th May, 1977, by the Air India Cabin Crew Association and Air India Limited, which noticed differences between the functional designation of In-Flight Crew and actual designation and also permitted female Executive Air Hostesses to fly. After the decision in Nergesh Meerza’s case, on 17th November, 1983, a further Record Note was entered into between the aforesaid Association and Air India Limited, which introduced avenues of promotion for Air Hostesses. It was provided that the avenues of promotion for Air Hostesses would be through the categories of Senior Check Air Hostess, Deputy Check Air Hostess and Additional Chief Air Hostess to Chief Air Hostess. It was also indicated that as far as male Assistant Flight Pursers, comprising Flight Pursers and In- Flight Supervisors were concerned, they would continue to be unaffected and the hierarchy on board the aircraft for various categories would remain as was then existing and there would be no change in the job functions of any category of cabin crew on account of the said agreement. What is evident from the said Record Note is that the separate and distinct cadres of male and female Cabin Crew were continued in respect of promotional avenues, hierarchy and job functions on board an aircraft.
8. Subsequently, on 5th June, 1997, a settlement was arrived at between the appellants and Air India that all earlier settlements, awards, past practices, record notes and understandings arrived at between the erstwhile Corporation and the appellant Association, would continue. Immediately after the signing of the said Memorandum of Settlement, on the very same day Air India Limited issued a promotion policy for all the Cabin Crew members, but treated the pre-1997 and post-1997 crew separately. By a specific clause, the said promotion policy amended the existing promotional avenues for the male Cabin Crew to that of In- Flight Supervisors and female Cabin Crew to the post of Senior Check Air Hostesses recruited prior to the settlement. The said promotion policy kept the promotional avenues in the two streams of male Cabin Crew and female Cabin Crew, recruited prior to 1997, separate.
9. It may be of interest to note that there was a distinct division among the Air Hostesses, the majority of whom belonging to “workmen” category, numbering about 684 at the relevant time, were members of the Air India Cabin Crew Association. When the revised promotion policy for Cabin crew was brought into effect from 7th June, 1997, a small number of about 53 Air Hostesses, who were about 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 an association in the name of Air India Air Hostesses’ Association. The Association unsuccessfully challenged the binding effects of the Settlement of 5th June, 1997, in the Bombay High Court, but got itself impleaded as a party in a pending Reference before the National Industrial Tribunal and raised the issues of merger and interchangeability of job functions between the male and female Cabin Crew members. Despite opposition from the appellant Association, which represented 684 out of 1138 Air Hostesses of Air India, the High Court accepted the conditional proposal of merger of cadres of male and female members of Cabin Crew and held that Air Hostesses were also entitled to retire at the age of 58 years from flying duties on par with Flight Pursers and other members of the cabin crew. The High Court held that the age of retirement from flying duties of Air Hostesses at and up to the age of 50 years with option to them to accept ground duties after 50 and up to the age of 58 years amounted to discrimination against them based on sex, which was violative of Articles 14, 15 and 16 of the Constitution, as also Section 5 of the Equal Remuneration Act, 1976. It was further held that the two cadres of male and female Cabin Crew members came to be merged only after 1997 and such merger applied to fresh recruits and the conditions of service and distinction between the two cadres would continue with regard to the existing Cabin Staff up to the year 1997.
10. The aforesaid promotion policy separated the promotional avenues for male Cabin Crew and female Cabin Crew recruited prior to 1997 as a separate and distinct class, as was also observed in Yeshaswinee Merchant’s case (supra). According to the appellants, the Union of India, by its directive dated 21st November, 2003, attempted to over-reach the judgment of this Court in Yeshaswinee Merchant’s case (supra), wherein, the directives dated 16th October, 1989 and 29th December, 1989, were to become inoperative after the Repeal Act of 1994. Thereafter, on 18th December, 2003, in terms of the directive of 21st November, 2003, the Respondent No.2 came out with an Office Order of even date, wherein, it was,inter alia, indicated that with the flying age of female Cabin Crew having been brought at par with the male Cabin Crew, the issue of seniority and promotion would have to be addressed by the Department so that there was no resentment among the categories of employees. Liberty was given to the In-Flight Service Department to assign flight duties to such Air Hostesses, who may have been grounded at the age of 50 years. On 30th December 2003, the Respondent No.2 addressed a letter to the Air Hostesses informing them that in keeping with the directions received from the Respondent No.1, it had been decided by the management to allow them to fly up to the age of 58 years, though, of course, such decision would be without prejudice to the proceedings pending before the National Industrial Tribunal at Mumbai. Thereafter, by subsequent letters, the Respondent No.2 wrote to the appellant Association that on the issue of service conditions, the management was aware of the various Agreements, Awards and Judgments and it was re-emphasized that the two cadres were not being merged and the service conditions of the male and female Cabin crew continued to be separate and distinct in terms of the Agreements and judgments passed in respect thereof.
11. However, in contrast to the correspondence on 27th December, 2005, the Respondent No.2, in total disregard of the Record Notes, Memorandum of Settlement and the judgments of this Court in Nergesh Meerza’s case and in Yeshaswinee Merchant’s case (supra), issued an administrative order bringing female Cabin crew and the male Cabin Crew at par in respect of age of retirement. Accordingly, Air Hostesses were also permitted to fly up to the age of 58 years. In the said order it was also indicated that after the promulgation of the order, the Executive Female Cabin Crew would be eligible to be considered for the position of In-Flight Supervisor along with the Executive Male Cabin Crew. It was, however, clarified that the number of Executive Cabin Crew to be designated as In-Flight Supervisors would be based on operational requirements of the company.
12. On the promulgation of the said order, the appellant Association made a representation to the Chairman and Managing Director of the respondent No.2 on 28th December, 2005, pointing out that the same was contrary to the judgments of this Court. Since the appellant Association did not receive any response to its representation, it filed Writ Petition (C) Nos.983-987 of 2006, before the Delhi High Court on 21st January, 2006, complaining that the orders passed were arbitrary, illegal and contrary to the various decisions of this Court. The said writ petitions, along with various connected matters, came up for consideration before the Division Bench of the High Court on 30th January, 2006. After impleading Air India Air Hostesses Association and the Air India Executive Air Hostesses Association as respondents in the writ petition on the ground that they were likely to be affected by any order which may be passed in the pending proceedings, the appellant Association filed its Rejoinder Affidavit to the Counter Affidavits filed by the Respondent Nos.1, 2 and 3 and denied the claim of the respondents that the posts of Flight Supervisors had been abolished by the promotion policy of 1997 and that the male and female cadres of the Cabin Crew recruited prior to 1997, had been merged. Before the Division Bench of the High Court, both the parties appeared to have clarified their stand that the merger of Indian Airlines with Air India did not in any manner affect the existing settlements and agreements. Ultimately, on 8th October, 2007, the Division Bench of the High Court dismissed the writ petitions filed by the appellant Association. By the said judgment, the Division Bench of the High Court rejected the challenge of the appellant Association to the constitutional validity of Section 9 of the Air Corporation (Transfer of Undertakings) Act, 1994, though, on the ground of laches. The other challenge to the impugned directive issued by the management on 21st November, 2003, was also not accepted. More importantly, for our purpose in these cases, the Division Bench of the High Court held that the expression “In-Flight Supervisor” is, in fact, a description of a job function and is not a post exclusively reserved for the male Cabin crew.
13. As mentioned hereinabove, these appeals are directed against the said decision of the Division Bench of the High Court of Delhi.
14. Appearing for the appellant Association and the other appellants in SLP(C)Nos.20668-20672 of 2007 (Now appeals), Mr. Pramod B. Agarwala, learned Advocate for the appellants in SLP(C)Nos. 20679- 20682 of 2007, contended that the Appellant No.1, Association, is a registered trade union under the Trade Unions Act and represents the largest number of Cabin Crew in the country, both prior to and after 1997 of both Air India and the former Indian Airlines. Learned counsel contended that the said Association is the sole recognized union for collective bargaining in respect of the Cabin Crew, such as Air Hostess and Flight Purser cadres. He submitted that the said Association represented more than 1480 Cabin Crew in Air India and more than 350 of their members were pre-1997 Air Hostesses and, approximately, 360 were pre-1997 Flight Pursers. The Executive Cabin Crew members are represented by the Air India Officers Association, as also the Air India Executive Cabin Crew Association. It was contended by Mr. Agarwala that none of the other trade unions are recognized or registered trade unions.
15. Mr. Agarwala submitted that the challenge to the directive issued by the Central Government on 21st November, 2003, had been wrongly interpreted by the management of Air India as facilitating the breach of binding Settlements, Agreements and Record Notes. The management of Air India also appears to have taken the position that the directive issued by the Central Government on 21st November, 2003, freed it from the directions contained in the decision of this Court in Yeshaswinee Merchant’s case (supra). Mr. Agarwala submitted that the decision in these appeals would
depend on the answers to the following questions :
(a) Whether the decision of this Court in Nergesh Meerza’s case and Yeshaswinee Merchant’s case (supra), could be nullified by an order of the Civil Aviation Ministry issued under Section 9 of the Air Corporation (Repeal and Transfer of Undertakings) Act, 1994, and also whether the same could set aside the various Record Notes, Settlements and Agreements entered into by Air India with the appellant Association?; and (b) Did the post of In-Flight Supervisor stand abolished by the promulgation of the promotion policy of 5th June, 1997?
16. Referring to the judgment of the High Court, Mr. Agarwala submitted that three issues were framed for adjudication, namely,
(i) What is the effect of the judgments of the Supreme Court in Nargesh Meerza’s case (supra) and in the case of Yeshaswinee Merchant (supra) on the validity of the impugned orders and directives?;
(ii) Is the position of an In-Flight Supervisor a job function or a post and how does the same affect the claim of male Cabin Crew in the Flight Purser cadre to an exclusive right to be appointed to such a position?
(iii)Are the impugned circulars and orders rendered invalid either on account of procedural violations and/or on the grounds of discrimination, arbitrariness or irrationality and do they violate any previous settlements and agreements?
17. Mr. Agarwala submitted that the High Court had misunderstood the decisions rendered by this Court and had proceeded on an erroneous assumption that Flight Pursers were claiming benefits only for the male Cabin Crew
.
18. Mr. Agarwala submitted that in the two cases referred to hereinabove, the relevant findings are that on a comparison of the mode of recruitment, the classification, the promotional avenues and other matters which had been discussed, it was clear that Air Hostesses formed a separate category
from that of Air Flight Pursers, having different grades, different promotional avenues and different service conditions, but no discrimination had been made between Flight Pursers and Air Hostesses, although their service conditions may have been different. It was also held that the post of In- Flight Supervisor belongs to the Flight Purser cadre. While considering the fact that the retirement age of Air Hostesses was 58 years, Air Hostesses were prohibited from flying beyond the age of 50 years. What was also established was that there could be no interchangeability of functions between the two cadres, unless the same was introduced by way of settlement between the appellant Association and the management of Air India. Mr. Agarwala submitted that all these issues had been considered by this Court in the light of the various Agreements, Settlements and Awards entered into by Air India with the appellant Association in Yeshaswinee Merchant’s case and once such an exercise had been undertaken by this Court, it was no longer open to the High Court to undertake a fresh exercise on the decided issues.
19. Mr. Agarwala further contended that the findings of this Court could not be negated by a mere directive issued by the Government under Section 9 of the 1994 Act. The said directive of 21st November, 2003, merely directs Air India to allow the female Cabin crew to perform flying duties up to the age of 58 years in the interest of operations and in view of the exigencies of circumstances. Mr. Agarwala submitted that by issuing such an administrative order, on 27th December, 2005, Air India was not only seeking to nullify the judgments of this Court, but also the binding settlements which had been arrived at between the parties.
20. On the question as to whether the abolition of a post could be implied or whether it has to be an explicit arrangement through a bilateral settlement or a Court order, learned counsel submitted that, although, it had been Air India’s stand that the post of In-Flight Supervisor stood abolished under the 1997 promotion policy, the same is not reflected either in the said policy or the settlement. In fact, except for placing on record a seniority list as on 1994 and 1998, no other material had been disclosed to establish the fact that the posts of In-Flight Supervisors had been abolished. Mr. Agarwala repeated his submission that it had been admitted by Air India that the post of In-Flight Supervisor was meant exclusively for the Flight Purser cadre, since their promotional avenue and/or any change in their service conditions could only be brought about through a bilateral settlement with the appellant Association. Mr. Agarwala pointed out that in Nergesh Meerza’s case this Court had observed that it was unable to understand how the management could phase out the posts available to the Air Hostesses exclusively at the instance of Pursers when they had no concern with the said post nor did they have any right to persuade the management to abolish a post which had been meant for them. This Court went on to observe that since the decision had been taken as far back as in 1977 and no grievance had been made by the Air Hostesses in that regard, no relief could be given to them, but in view of the limited promotional channels available to Air Hostesses, Air India should seriously consider the desirability of restoring the posts of Deputy Chief Air Hostess in order to remove the injustice which had been done to the Air Hostesses, in violation of the principles of natural justice.
21. Consequent upon the decision in Nergesh Meerza’s case, a settlement was reached on 17th November, 1983, whereby the Executive Post of Deputy Chief Air Hostess was reintroduced with a separate standard force and job profile and also defining separate promotional avenues for the cadre of Flight Pursers and Air Hostesses. The subsequent settlement of 25th December, 1988, went further and increased the standard force of Deputy Chief Air Hostesses, while maintaining the separate avenues of promotion of the two cadres.
