FAZAL ALI - (1.) TRANSFERRED case No. 3 of 1981 and the writ petitions filed by the petitioners raise common constitutional and legal questions and we propose to decide all these cases by one common judgment. So far as TRANSFERRED Case No. 3/81 is concerned, it arises out of writ petition No. 1186/1980 filed by Nergesh Meerza and Ors. Respondent No. 1 ( Air India) moved this Court for transfer of the writ petition filed by the petitioners, Nergesh Meerza and Ors. In the Bombay High Court because the Constitutional validity of Regulation 46 (i) (c) of Air India Employees Service Regulations') (hereinafter referred to as 'A. I. Regulation) and other questions of law were involved. Another ground taken by the applicant-Air India in the transfer petition was that other writ petions 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 invalved almost identical reliefs. After hearing the transfer petition this Court by its Order dated 21-1-81 allowed the petition and directed that the transfer petition arising out of writ petition No. 1186/80 pending before the Bombay High Court be transferred to this Court. By a later Order dated 23-3-1981 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 petitionts, 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 India Corporation Act of 1953 or the Indian Airlines Corporation Act of 1953 would be referred to as 'A I. Regulations' and 'I. A. C. Regulations' respectively. (4) Nergesh Meerza and Ors as 'petitioners'. (5) Declaration by the Central, Government under Equal Remuneration Act as "Declaration" and Equal Remunration Act 1976 as '1976 Act'. (6) Air Corporation Act of 1953 as '1953 Act'. (7) Justice Khosla Award as Khosla Award' and Justice Mahesh Chandra Award as Mahesh Award'. (8) Assistant Flight Pursers as 'AFPs'. (9) Air Hostess as 'A. H.' and Air Hostesses as 'AHs'. (10) Air India Cabin Crew as 'A I. Crew' and Indian Airlines Corporation Cabin Crew as 'IAC Crew'. (11) Flight Steward as "F, S"
(2.) BEFORE dealing with the facts of the case and the central constitutional cantroversies and substantial points of law involved in these petitions, it may be necessary to give a brief survey of the history which led to the formation of the two Corporations. viz., A. I. and I. A. C. By virtue of Section 3 of the 1953 Act, the Central Government by a notification published in the official Gazette created two Corporations known as Indian Airlines and Air India International. Section 3 (2) provided that each of the two Corporations would be a body corporate having perpetual succession and a common seal subject to the provisions of the Act to acquire and hold property. Section 4 of the 1953 Act provides for the constitution of the Corporations and Section 5 deals with the conditions of service, of the Chairman and other Directors of the Corporations. Section 7 defines the various functions of the Corporations; Further details regarding the provisions of Section 7 would be dealt with later wherever necessary. Section 8 deals with the appointment of the officers and other employees of the Corporations. Section is 10 to 15 deal with finance accounts and audit. Section 34 defines the control which the Central Government may exercise over the performance by the corporation of its functions. The other provisions of the 1953 Act are not germane for the purpose of this case. It is manifest therefore from a perusal of the various provisions of the 1953 Act that A. I. and I. A. C. were established as a single entity which was divided into two units in view of the duties that each Corporation had to perform. We have metioned this fact particularly because one of the contentions of Mr. Nariman, counsel for A. I., was that A. I. itself was a separate and distinct entity and could not be equated with I. A. C. The provisions of the Act completely nullify this argument and clearly show that the two Corporations formed on 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 (IAC) 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 1-3-1971 (vide p. 1191 of the Gazette of India - Section 3 (ii) dated 25-3-72) for being impleaded as a party to the Reference. As a result of the allowing of the application of the ACEU the scope of the Reference was widened to include the demands of I. A. C. and A. I. This, therefore, clearly shows that the two Corporations formed one single entity and whenever any dispute arose they tried to get the dispute settled by a common agency. Thus, the two Corporations before the Industrial Tribunals did not take any stand that they were different entities having two separate individualities. The initial argument of Mr. Nariman on this point is, therefore, overruled at the threshold. In fact, Mr. Nariman having indicated the point did not choose to pursue it further because the sheet-anchor of his argument was that so far as AHs in the two Organisations are concerned they constitute a sex-based recruitment and, therefore, a completely separate and different category from the class of AFPs, in that, their service conditions, the mode of recruitment, the emoluments, the age of retirement of these two classes were quite different and, therefore, the question of the applicability of Article 14 did not arise. We may have to dilate on this part of the argument a little later when we examine the respective contentions advanced before us by the counsel for the parties. At the moment, we would like first to complete the history of the circumstances leading to the present controversy between the parties. It appears that there was a good deal of disparity between the pay-scales and the promotional avenues of the male cabin crew consisting of AFPs, FPs and In-flight pursers on the one hand and the AHs Check AH, Deputy Chief AH, Addl. Chief AH and Chief AH on the other. The case of the AHs was sponsored by the ACEU which made a demand for alteration of the service regulations prejudicial to AHs. This was some time prior to 1964. The said dispute was ultimately referred to a National Industrial Tribunal presided over by Mr. Justice G. D. Khosla who gave his award on 28-7-1965 making some recommendations in order to improve the service conditions of AHs.
(3.) IN fact, the main issue canvassed before the Khosla Tribunal centred round the question of the age of retirement of the AHs and matters connected therewith. A perusal of the Khosla Award shows that the parties entered into a settlement with respect to all other disputes excepting the retirement benefits on which the Tribunal had to give its award. 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 further extension of the employee be-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 period of 5 years. The extension is granted on the employee being found medically fit." 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 Regulations Nos, 46 and 47. In this connection, the Tribunal observed as follows :- "In my view, no case has been made out for raising the age of retirement and in cases where the efficiency of the employee is not impaired, there is suitable provision under regulation 47 for extending his service upto the age of 60. As observed above, there have been no complaints of any employee being made to retire under the provision of clause (ii) of regulation 46." Giving the reasons for its conclusion the Award in Para 256 runs thus :- "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 situations more competently and more easily than an older person with less personal prepossession. On this point there can be no two opinions. It was also pointed out that air hostesses do not stay very long in the service of Air India, and young and attractive women are more inclined to look upon service in Air India as a temporary occupation than as a career. Most of them get married and leave the service. Counsel for the Corporation placed before me a table (Exhibit M 14) which shows that the average service of an air hostess for the 5 years between 1960 and 1965 was only two years. Only 2 air hostesses reached the age of 30. None was retired at the age of 30 and in all, 70 air hostesses resigned before reaching the age of retirement. The total number of air hostesses at present is 87 and, therefore, it will at once be seen that most of them chose to leave service of their own free will." ;