Miss Lena
Khan Vs. Union of India & Ors [1987] INSC 89; 1987 Air 1515; 1987 Scr (2)
727; 1987 Scc (2) 402; Jt 1987 (2) 19; 1987 Scale (1) 642 (30 March 1987)
KHALID,
V. (J) KHALID, V. (J) OZA, G.L. (J)
CITATION:
1987 AIR 1515 1987 SCR (2) 727 1987 SCC (2) 402 JT 1987 (2) 19 1987 SCALE
(1)642
CITATOR
INFO :
R 1987
SC1527 (30)
ACT:
Constitution
of India, 1950--Articles 14 and 15--Retirement-Different age fixed for
employees of Indian origin and foreign origin Whether permissible.
Constitution
of India--Article 12--Air India--Whether falls within the definition of
"State"--An instrumentality or agency of State having operations
outside India--For complying with the Municipal Law abroad--Whether could
disregard Article 14 of the Indian Constitution.
Constitution
of India--Article 14 Air Hostesses and Deputy Chief Air Hostess--Having regard
to the nature of duties performed by them--Whether belong to the same class.
U.K. Sex
Discrimination Act, 1975, s. 6(4)---To have the same age of retirement for the
Air Hostesses recruited in U.K. as is provided for an Air Hostess recruited of
Indian origin--Whether violative of the Act.
HEADNOTE:
The
petitioner, who was employed as Deputy Chief Air Hostess in Air India, flied
this petition under Article 32 of the Constitution, alleging that while the
employees of Indian origin have to retire at 35 years with extension till 45,
those of foreign origin can go beyond 45 years, which is discriminatory and
violative of Articles 14 and 15 of the Constitution. Accordingly, prayer was
made to quash the letter sent to her retiring her on 28.2.1987, to declare
Regulation 46(1)(c) of the Service Regulations ultra vires, to direct
reconsideration of the decision in Air India v. Nargesh Meerza, [1982] 1 SCR
438 and to declare that the petitioner will retire only on her attaining the
age of 58 years.
In the.
counter-affidavit it was alleged that Air-India has not fixed any higher
retirement age for Air-Hostesses who are recruited outside India, that Air
India has appointed a few Air Hostesses abroad who belong to different nationalities
and speak different European languages with a view to deal with passengers
conversant only with 728 these languages, that Air India has been encouraging
its Indian Air Hostesses to learn European languages and in view of this
'position Air India is in the process of phasing out Air Hostesses of foreign
origin, that service conditions and terms of appointment of the Air Hostesses
appointed abroad are different than the service conditions of Air Hostesses
appointed in India and that no Air Hostess of foreign origin is promoted to the
post of Deputy Chief Air Hostess, Additional Chief Air Hostess or Chief Air
Hostess. These promotional avenues are available only to the Air Hostesses
appointed in India.
Dismissing
the Petition,
HELD:
(Per Khalid, J)
1.
Identical questions were raised and considered at length by this Court in Air
India v. Nargesh Meerza (supra) and that decision is binding. [730A-B]
2. Air
India's policy now is to phase out Air Hostesses recruited outside India and
restore uniformity in their retirement age. [731B-C]
3. The
petitioner is an Air Hostess and does not belong to a separate class. The
duties and functions of Deputy Chief Air Hostess includes operation service as
a regular line Air Hostess and she will be required to perform the same
functions as that of other Air Hostesses. [731F]
4. Air
Hostesses who are recruited outside India are not entitled to the benefits of
promotion to which India Air Hostesses are entitled. This should satisfy the
petitioner in the instant case. [731E] Per Oza, J.)
1. Air
India being a Corporation is for all purposes State within the meaning of
Article 12 of the Constitution of India and it cannot follow a foreign
Corporation in treating Indians differently and discriminate against them.
[732B-C]
Air India etc. etc. v. Nargesh Meerza & Others etc.
etc.,
[1982] 1 SCR 438, referred to.
2. Air
India in order to avoid committing an offence abroad cannot disregard Article
14 of the Indian Constitution. An Indian citizen in such a situation should
prefer to walk off from a State where he may 729 have to flout Indian
Constitution to save himself from committing of an offence. Air India should
abide by the requirements of Article 14 rather than anything else.
[732F-G]
3. It has
been conceded that in view of s. 6(4) of the United Kingdom Sex Discrimination
Act, 1975 it will not be a contravention of that law to have the same age of
retirement for an Air Hostess recruited in U.K. as is provided for an Air
Hostess recruited of Indian origin. [733B-C]
4. In
view of the policy of Air India that henceforth Air Hostesses recruited
anywhere will be treated in the same manner as Air Hostesses recruited from
India no interference is called for. [733C-D]
ORIGINAL
JURISDICTION: Writ Petition (Civil) No. 231 of 1987.
(Under
Article 32 of the Constitution of India).
Soli J.
Sorabjee, P.H. Parekh, Rajender Mahapatra and Ms. Ayesha Misra for the
Petitioner.
K.K.
Venugopal, D.R. Dhanuka, Mr. Kapil Sibal, Lalit Bhasin, Vineet Kumar and Ms.
Nina Gupta for the Respondents.
The
following Judgments of the Court were delivered by KHALID, J. In this writ
petition, filed by an Air India employee, who at the relevant time was Deputy
Chief Air Hostess, notice was taken for the respondents when the matter came up
for admission. We directed the respondents to file their Counter Affidavit.
Accordingly Counter Affidavit has been filed. The Petitioner has filed her
Rejoinder Affidavit also. Heard the learned counsel on both sides at some
length.
Under the
existing rules, namely Regulation 46(1)(c) of the Service Regulation the
petitioner was to retire on 28-2-1987 and in fact she retired on that date. The
prayer in the writ petition is to quash the letter sent to her retiring her on
28-2-1987, to declare Regulation 46(1)(c) ultra vires, to direct
reconsideration of the decision in Air India v. Nargesh Meerza, [1982] 1 SCR
438 and to declare that the petitioner will retire only on her attaining the
age of 58 years.
Identical
questions were raised before this Court in a few writ 730 petitions earlier by
some other employees of Air India and they were considered at length by a bench
of three Judges in Air India v. Nargesh Meerza and were considered in favour of
Air India. We are bound by this decision. The learned counsel for the petitioner
submits that this decision needs reconsideration and made a fervent appeal to
us to refer the matter for that purpose. We do not feel persuaded to accept
this request.
The main
thrust of the submissions by the petitioner's counsel is based on Article 14
and Article 15 of the Constitution of India, in that Air India discriminates
between the Air Hostesses and the officers like the petitioner of Indian origin
and of foreign origin who are employees of Air India.
The
contention is that while the employees of India origin have to retire at 35
years with extension till 45, those of foreign origin can go beyond 45 years.
This contention also was considered by this Court in the decision referred
above.
The case
that Air Hostess recruited outside India can be in the employment of Air India
beyond 45 years is met in the Counter Affidavit in the following paragraph:
"
....... Therefore, I submit that so far as Air India is concerned, it has not
fixed any higher retirement age for Air Hostesses who are recruited outside
India. In U.K. there are only six Air Hostesses and they are also being phased
out. The Senior most Air Hostess in U.K. in terms of age is 41 years old. It is
further pertinent to note that there are only six Air Hostesses presently employed
in U.K.
These Air
Hostesses belong to different nationalities and speak different European
languages with a view to dealing with passengers conversant only with these
languages. I say that Air India has been encouraging its Indian Air Hostesses
to learn European languages. In view of this position Air India is in the
process of phasing out the European Air Hostesses employed in U.K. It is also
pertinent to note that Air India has appointed a few Air Hostesses in Japan.
These Air Hostesses were also appointed for the same reason i.e. their
knowledge of the Japanese language.
The Air
Hostesses employed in Japan would also retire upon reaching the normal age of
retirement applicable to Indian Air Hostesses. I say that the service
conditions and terms of appointment of the Air Hostesses appointed abroad are
different than the service conditions 731 of Air Hostesses appointed in India.
It is of utmost importance to note that no Air Hostess appointed is promoted to
the post of Deputy Chief Air Hostess, Additional Chief Air Hostess or Chief Air
Hostess. These promotional avenues are available only to the Air Hostesses
appointed in India From the above extract we find that Air India's policy now
is to phase out Air Hostesses recruited outside India and restore uniformity in
their retirement age. In U.K., there are only six Air Hostesses, the
senior-most among whom is only aged 41. The provisions of Sex Discrimination
Act, 1975 applicable to United Kingdom was brought to our notice.
Part II
deals with discrimination in the employment field.
Section
6(1)(b) and Section 6(2) make discrimination against a woman in the terms of
service, promotion opportunities and termination unlawful. But Section 6(4)
protects provisions which relate to death and retirement from the vice of the
above sections. We refer this only to reassure ourselves that it would be
possible for Air India to phase out U.K.
incumbents
when they attain the age of 45. Air Hostesses employed in Japan would also
retire upon reaching the normal age of retirement applicable to Indian Air
Hostesses. It is useful to note that Air Hostesses who are recruited outside
India are not entitled to the benefits of promotion to which Indian Air
Hostesses are entitled. We are of the view that this should satisfy the
petitioner.
The case
that the petitioner is not an Air Hostess, but belongs to a separate class can
also not be accepted. This case did not find favour with this Court in the
above decision either. The duties and functions of Deputy Chief Air Hostess
includes operation service as a regular line Air Hostess and she will be
required to perform the same functions as that of other Air Hostesses. The writ
petition thus is devoid of any merit and hence is dismissed.
OZA, J.
Having gone through the judgment dictated by my learned brother Khalid J.
although I agree with the conclusions arrived at by him but will like to add my
own reasons for the conclusions.
When this
petition came up before us the main ground which moved us to issue notice was
that the Air-India employ Indian as well as girls coming from different
nationalities as air-hostesses and in respect of the age of retirement there
are different rules for airhostesses recruited from different countries. It was
alleged that whereas an Indian recruited as air-hostess will normally retire at
the 732 age of 35 years which could be extended upto 45, a British girl
recruited as air-hostess retires at the age of 55 years and this, according to
the petitioner, was discrimination on the basis of colour.
In return
the stand taken by the Air-India is that "As a matter of fact the Air
Hostess recruited by British Airways in India retire at the age of 36 years in
India whereas their counterparts in U.K. retire at the age of 55 years."
It is unfortunate that the second respondent a Corporation which is for all
purposes State within the meaning of the term as provided in Article 12 of
Constitution of India should follow the British Airways in treating Indians differentially
and discriminate against them. Reliance was also placed in return on the
decision of this Court in Air India etc. etc. v. Nergesh Meerza & Ors. etc.
etc., [1982] 1 SCR 438. In return a passage has been quoted which appears at
page 472 of the judgment. It is true that this is what has been observed in
this judgment by a Bench of three Judges of this Court. It is observed:
"
..... There is no complaint by the petitioners that between the separate class
of AHs inter se there has been any discrimination regarding any matter. In fact,
the only point raised on this aspect was that AHs employed by A.I. in U.K. have
different conditions of service from AHs serving A.I. in countries other than
U.K. Doubtless this distinction is there but this is really a fortuitous circumstances
because A.I. was forced to comply with the local laws of U.K. in order to
increase the age of retirement of AHs posted in England. Surely we cannot
expect A.I. to commit an offence by violating the laws of U.K ........ "
It appears as it was also contended that they are bound by the decision of this
Court. It is no doubt true that this is the decision which is binding but even
in a situation as has been indicated in this judgment that Air India in order
to avoid committing an offence in accordance with the law of United Kingdom is
choosing to disregard Article 14 of the Constitution. But I have no hesitation
that an Indian citizen in such a situation would prefer to walk off from a
State where he may have to flout our Constitution to save himself from commission
of an offence. All the more the same is expected of respondent No. 2, a
corporation controlled by the Government of India. It is expected that this
corporation would abide by the requirement of Art. 14 rather than anything
else. If need be, it has to walk out of a country where it may become
impossible to act in accordance with the ideals of our Constitution or where it
may become necessary to disregard the provisions of our 733 Constitution and it
is not something new as we have been keeping away from countries which follow
apartheid policies.
But I am
happy that Shri Venugopal, senior advocate appearing for respondent No. 2
frankly stated that his colleague learned counsel Shri Lalit Bhasin got the
United Kingdom Sex Discrimination Act, 1975 further examined and now it is
clear that in view of Section 6 sub-clause 4 of that Act it will not be a
contravention of that law to have the same age of retirement for an air-hostess
recruited in U.K. as is provided for an airhostess recruited of Indian origin.
It appears that this was the law (United Kingdom Sex Discrimination Act, 1975)
which was perhaps in the minds of the Judges in Air-India's case.
In view
of this learned counsel frankly stated that henceforth air-hostesses recruited
anywhere will be treated in the same manner as air-hostesses recruited from
India and it is only on this frank admission made by learned counsel for
respondent No. 2 that we see no reason to entertain the petition. In this view
of the matter I agree with the conclusions reached by my learned brother,
Khalid, J.
A.P.J.
Petition dismissed.
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