Important point
Declaration of the age of retirement from flying duties of Air hostesses at the age of 50 years with option to them to accept post for ground duties after 50 and up to the age of 58 years is not discriminated against them based on sex.

Headnote:(i) Service Law—Constitution of India—Articles 14, 15 and 16—Air Corporation Act of 1994—Air hostesses—Retirement age from flying duties—Challenged as discriminatory compared to their male counterparts working with them—Early retirement age fixed for women for flying duties with option to them to go after 50 years of age to ground duties—Whether it can be held to be either arbitrary or discriminatory—(No)—It being a service condition agreed to and incorporated in a binding agreement or settlement reached with the employer.
       Held : Early retirement age fixed for women for flying duties with option to them to go after 50 years of age to ground duties is a condition of service fixed after negotiations and settlements with association of air hostesses represented by AICCA with appropriately matching numerous advantages and betterment to match them. We have also found that early retirement age for women from flying duties has been found favourable by majority of air hostesses represented through the appellant/AICCA before us who support the age of retirement and option for ground duties given to them. Air India is a travel industry. Pleasing appearance, manners and physical fitness are required for members of the crew of both sexes. The air hostesses have agreed to the early retirement age, as they need an option to go for ground duties after the age of 50 years. The arguments advanced on behalf of respondent/ association, therefore, cannot be accepted that the air hostesses are made to retire at an age earlier than males because of their failing physical appearance and it is a practice derogatory to the dignity of women. For services on board of an Air craft both male and female members of the crew are expected to be smart, alert and agile. The early retirement age of 50 years from flying duties for female members of the crew with an option to them to accept ground duties beyond 50 years up to the age of 58 years being a service condition agreed to and incorporated in a binding agreement or settlement and award reached with the employer, the same cannot be held to be either arbitrary or discriminatory under Articles 15 and 16 of the Constitution. It is not a discrimination against females only on ground of sex. As a result of the impugned judgment of the High Court, there would be merger of two cadres of air hostesses and flight pursers and the air hostesses would have to compulsorily continue on flying duties up to the age of 58 years even though for health and family reasons they are unable to fly after the age of 50 years. On the order of the High Court and after the merger of cadres of male and female employees, the females have to resign from their jobs if they do not want to fly up to the age of 58 years. The order of the High Court requires the air hostesses to give up their more advantageous conditions of service for which they had held negotiations with the employer and obtained binding settlements and awards in the course of industrial adjudication. (Paras 50 and 51)
       (ii) Service Law—Equal Remuneration Act, 1976—Section 5—Air hostesses—Term of service fixed by Air India to retire air hostesses at the age of 50 years or grounding them on alternative jobs—Challenged as in violation of provisions of Section 5 of the Act—Terms and condition of age of retirement settled in course of industrial adjudication by air hostesses—Whether early age retirement policy of air hostesses contravenes Section 5 of the Act—(No)—A service condition giving a special treatment to women is saved by clause (a) of Section 15 of the Act.
       Held : The term and condition of age of retirement settled in course of industrial adjudication by air hostesses through their associations is a term and condition of their employment fixed in accordance with the adjudicatory machinery provided in Industrial Law. It gives them a special treatment as found by them to be favourable to them. We have already noticed that there is nothing objectionable for the air hostesses to agree for a lower retirement age from flight duties with option for grounds duties after the age of 50 years up to the age of 58 years. Duties on flight demand of air hostesses physical fitness, agility and alertness. Duties in air are full of tension and sometimes hazardous. They have, therefore, agreed for comparatively early age of retirement with option to accept duties on the ground. There is nothing objectionable for air hostesses to wish for a peaceful and tension-free life at home with their families in the middle age and avoid remaining away for long durations on international flights. This view point has been projected before us on their behalf by learned counsel appearing for AICCA and other appellants. A service condition giving a special treatment to women is saved by clause a) of Section 15 of the E.R. Act of 1976. It is also saved by sub-clause (ii) of clause (b) of the said section which allows special treatment to women in terms and conditions of service relating to retirement. We, therefore, hold that the early age retirement policy of air hostesses in Air India does not contravene Section 5 of the E.R. Act of 1976 and otherwise, it is saved by section 15 (a) and 15 (b) (ii) of the E.R. Act of 1976. The challenge, therefore, to the terms and conditions of early retirement of air hostesses and option to them to go for ground duties up to the age of 58 years, fails. These terms and conditions are now part of Statutory Regulations w.e.f. 30.3.2000, framed under Air Corporation Act and Standing Order framed under Industrial Employment (Standing Order) Act, 1946 w.e.f. 21.10.2000. (Paras 59 and 60)
       (iii) Air Corporation Act, 1953—Section 34—Air hostesses—Lower age of retirement for air hostesses as compared to flight pursers—Challenged as in contravention of mandatory direction issued by Central Government on 16.10.1989 in exercise of powers u/s 34 of the Act—Clarificatory letter dated 29.12.1989—Direction of Central Government u/s 34 of the Act to be understood on basis of both the communications dated 16.10.1989 and 29.12.1989—Air hostesses have to be continued in service up to the age of 58 years—They can be assigned ground duties at their option after retirement from flight duties at the age of 45 years which is now raised to 50 years. (Para 9)

Judgment

Dharmadhikari, J.—This batch of appeals has been filed against the Division Bench judgment of the Bombay High Court dated 20-23.8.2002.

2. In a batch of petitions filed by respondents Air India Air hostesses Association and its members (shortly referred hereinafter as the respondent Association), the High Court of Bombay has held that the age of retirement from flying duties of Air hostesses at the age of 50 years with option to them to accept post for ground duties after 50 and up to the age of 58 years is discrimination against them based on sex which is violative of Articles 14, 15 & 16 of the Constitution of India as also Section 5 of the Equal Remuneration Act, 1976 (for short the ER Act) and contrary to the mandatory directions issued by the Central Government under Section 34 of the Air Corporations Act, 1953 (for short Act of 1953).

3. On such declaration of retirement age of air hostesses from flying duties as discriminating compared to their male counterparts working them on board of Air craft, the High Court went further in passing an alleged consensual order based on proposals in writing given by the employer Air India which was alleged to have been accepted by other parties before the High Court. The operative part of the impugned judgment of Bombay High Court by which several reliefs were granted to the respondent association, needs reproduction :-

(i) "The impugned letter of the 3rd respondent dated 24th December 1989 and circulars issued by Air India dated 23rd March 1990, 2nd March 1990 and 5th August 1991 as well as office order dated 12th January 1993 are hereby quashed and set aside;

(i) Air India is directed to implement the directive dated 16th October, 1989 issued by the Union of India by permitting the petitioners to perform flying duties until they attain the retirement age of 58 years subject to medical fitness and weight check and further subject to the measures suggested by Air India and reproduced earlier in this Order;

(iii) Air India is directed to pay to the petitioners the differential amount of salary from the date of grounding till the date of resumption of flight duties and 50 of the compensatory allowances as per column 9 of the proposal marked x to the air hostesses who were grounded prior to 31st December 1997 and 30 of the allowances for the air hostesses who were grounded on or after 1st January 1997;

(iv) Air India is directed to comply with the above directions within a period of 12 weeks.

(v) Air India is directed to take steps to refix seniority of the cabin crew in accordance with this order and complete the work of refixation of seniority within 24 weeks;

(vi) Air India is directed to take steps to amend clause 30(1)(c) of the Certified standing orders in the light of the directions given by this Court;

(vii) All Awards and settlements entered into between the management of Air India and the unions of cabin crew to stand modified to the extent they conflict with this order;

(viii) Air hostesses will be entitled to the benefit under section 192 (2A) read with section 89 of the Income Tax Act with regard to the amounts paid in arrears".

4. The consensual order recorded by the High Court in its judgment on the conditional proposals made by the employer Air India and alleged to have been accepted by some of the employees and their Associations which were parties before the High Court also needs reproduction:-

"As indicated by us at the outset that Air India has agreed to increase the flying age of air hostesses to 58 years subject to certain measures proposed by Air India, the proposal to that effect in writing was put on record by the learned counsel for Air India. The same was discussed during the course of arguments and finally a consensus has been reached on the following:-

(i) Order of this Court be confined only to such members of the cabin crew of both sexes recruited prior to October 1997;

(ii) There shall be total interchangeability of job functio

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2003 Supreme(SC) 604

Important pointDeclaration of the age of retirement from flying duties of Air hostesses at the age of 50 years with option to them to accept post for ground duties after 50 and up to the age of 58 years is not discriminated against them based on sex.

Cases Referred (1)

Important point
Declaration of the age of retirement from flying duties of Air hostesses at the age of 50 years with option to them to accept post for ground duties after 50 and up to the age of 58 years is not discriminated against them based on sex.