- (1.) Assailing the order dated 20th January 2004 passed by the Learned trial judge in writ petition being W. P. No.136 of 2004 this appeal has been preferred. Impugned order of the Learned Trial Judge aforesaid read such : "The Court: This writ petition directed against an order of termination of service dated June 22, 2001. It appears that the service of the petitioner was terminated on the ground that she was overweight. She was an airhostess naturally working as a Cabin Crew. She was grounded due to her overweight in September 1997. In spite of lapse of four years since after her being grounded, she failed to make up the deficiency as a result her service was dispensed with by the employer. It further appears that clause 9(II)(b) of the letter of appointment was pressed into service in passing the aforesaid order. Clause 9(II)(b) of the letter of appointment provides that the appointment shall be liable to be terminated in the event the petitioner fails to maintain her weight within the prescribed weight limit. The learned advocate appearing in support of the writ petition advanced the following submissions: (a) Clause 9(II)(b) of the letter of appointment on the basis of which the termination was made is unconstitutional because it is draconian in nature and is thus violative of Article 14 of the Constitution and the Directive Principles laid down therein. In support of his submission, he relied on judgment in the case of CTWTC vs Brajannath Ganguly, 1986 AIR(SC) 1571. (b) The terms and conditions conditioned in the letter of appointment lost its force after the petitioner became a permanent employee. (c) The order of termination was passed in violation of the principles of natural justice. (d) It was submitted that it is not really the weight which was the problem, but the petitioner was in fact sick and she was suffering from "Phobic anxiety syndrome in relation to flying . In this regard, he referred to page 8 of the affidavit-in-reply. (e) The letter of termination was issued on June 22, 2001 at a point of time when the petitioner could have availed herself of the opportunity of joining the "flight kitchen supervisor s post" under the scheme dated June 19, 2001 copy whereof is annexure R to the writ petition.
(2.) Mr. Mazumdar, learned advocate appearing for the respondent, submitted that the fact that petitioner was overweight is not in dispute. He further submits that the contract of employment provides that the in the event the petitioner fails to maintain her weight within the permissible limit, contract would be terminated. The fact that the petitioner gained weight is a breach of the contract which furnished the respondent with the right to terminate her service. But then, such a right was not exercised instantaneously, she was given four years time to being herself within the permissible weight limit. When she failed to do so, the respondent had no option but to terminate the contract.
(3.) Mr. Mazumdar further submitted that the contract of employment is also a factor to be taken into consideration in terminating the service and in support of his submission he relied on the case of Uptorn-vs-Sammi, 1998 AIR(SC) 1681(Paragraph 9). The last submission made by Mr. Mazumdar was that after the service of the petitioner has been terminated, there is no question of any reinstatement; but in case she applies against any vacancy and she qualifies therefor then her case can be considered.;