Air India Cabin Crew
Assn. & Ors. Vs. Union of India & Ors.
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.
(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.
22.
The
third Agreement contained in the Record Note of Understanding dated 17th March,
1995, did not contain anything of relevance to the facts of this case, except
for paragraph 6 of the Note which provided for interchangeability of job functions.
It was indicated that
in respect of new entrants there would be interchangeability in the job
functions between male and female members of the Cabin Crew to ensure optimum utilization
of the existing work force and the standard force to be maintained, without affecting
the promotional avenues of the work force then in existence and that the uniform
conditions of service were to be maintained.
Paragraph 7 dealt
with the upgradation of In-Flight service, which, it was agreed, would be carried
out as per the Agreement dated 6th October, 1992, with immediate effect. The said
Agreement did not change anything as far as the two separate cadres were concerned,
which continued to remain in existence.
23.
The
aforesaid Agreement was followed by a policy adopted by Air India for redesignation,
scales of pay and changes in promotion policy for Executive Cabin Crew of In-Flight
Services Department. The same was contained in a letter dated 24th May, 1996, written
by the Director, H.R.D., to the Director of Finance of Air India. By virtue of the
said policy, the posts of the Executive Cabin Crew of the In-Flight Services
Department were redesignated.
The Executive Cabin
Crew began from Grade No.27, which consisted of In-Flight Supervisors and Deputy
Chief Air Hostesses. Their designation was revised to that of Deputy
Manager-IFS. Grade No.29 consisting of Deputy Manager and Additional Chief Air Hostesses
were redesignated as Manager-IFS. Grade No.31, which comprised of Managers and
Chief Air Hostesses, were redesignated as Senior Managers-IFS.
Lastly Senior
Managers in Grade No.34 were redesignated as Assistant General Managers-IFS. It
was made clear that such redesignation was for Administrative/ Executive ground
assignments and, that the existing functional designations of In-Flight
Supervisor and Air Hostess would continue, whilst on flight duties, in accordance
with the prevailing practices.
The scales of pay
were also revised and a fitment method was introduced in respect thereof. The effect
of the said policy was that all Cabin Crew could be required to discharge dual
functions, in the air and also on the ground, in addition to duties to be
performed by In-Flight Supervisors.
24.
Inasmuch
as, all members of the appellant Association, which was a Trade Union registered
under the Trade Unions Act, 1926, belong to the workmen category of the Cabin Crew,
as was then existing, such as Assistant Flight Purser, Flight Purser, Check Flight
Purser, Additional Senior Check Flight Purser, Senior Check Flight Purser, Air
Hostess, Senior Air Hostess,
Check Air Hostess, Additional
Senior Check Air Hostess, Senior Check Air Hostess and those recruited from March,
1995 onwards till the date of Settlement, they intimated to the Management of Air
India on 1st July, 1990, that the Settlement entered into between the
Management for the period 1st October, 1985 to August 31, 1990, stood terminated
on the expiry of the period specified in the Settlement. A fresh Charter of Demands
for the period commencing from 1st September, 1990, was also submitted.
On 26th May, 1993, the
Management of Air India and the appellant Association signed a Memorandum of
Settlement providing for payment of interim relief during the period of wage
settlement for the period commencing from 1st September, 1990.
It was indicated that
the settlement was in supersession of all previous Agreements, Record Notes, Understandings,
Awards and past practices in respect of matters specifically dealt with or amended
or modified.
It was stipulated that
the Settlement would be implemented after the same was approved by the Board of
Directors of Air India Limited. The result of the said Settlements and
Agreements was that the designation of Air Hostesses and Flight Pursers were discontinued
and all were designated as "Cabin Crew".
25.
Then
came the promotion policy for Cabin Crew on 5th June, 1997. It was stipulated therein
that the revised promotion policy would cover all promotions of Crew from the induction
level up to the level of Manager, which is the first Executive level post, with
the object of providing planned growth to the Cabin Crew. From this date
onwards, the two cadres of the Cabin Crew stood merged as far as the fresh recruits
were concerned.
Paragraph 7.4 of the
promotion policy provided that the existing category of Cabin Crew on being promoted
to the new grades would continue to perform their job functions prior to such
promotion till the time of actual requirement in the higher grade.
It was also provided
in paragraph 7.5 that on promotion to the Executive cadre, i.e., to the level of
Manager and above, the male Cabin Crew would continue to carry out their respective
job functions of Assistant Flight Pursers/Flight Pursers, as the case may be, until
such time they started performing the functions of In-Flight Supervisors on a regular
basis.
Mr. Agarwala
submitted that paragraph 7.4 created a cadre within a cadre after 5th June, 1997,
and those recruited prior to 1995 and 1999 were to continue in their old cadre till
the date of merger and the new service conditions would apply to new recruits
after the said date.
26.
Mr.
Agarwala submitted that this Court had taken into account all the various Agreements,
Settlements and Awards entered into by the Management of Air India with the appellant
Association in Yeshaswinee Merchant's case and it was not open to the High Court
to attempt to rewrite the law, as had been declared by this Court.
27.
Mr.
Agarwala contended that all the Agreements arrived at between the appellant Association
and the Management of Air India in 1977, 1983, 1988 and 1995, dealt with
Executive posts and also protected the separate and distinct promotional avenues
of Flight Pursers and Air Hostesses, at least till 1997, when there was a
merger of the Cabin Crew.
28.
On
the question as to whether by the directive of 21st November, 2003, issued by the
Government under Section 9 of the 1994 Act, the law as declared by this Court in
Yeshaswinee Merchant's case could be unsettled, Mr. Agarwala's response was to
the contrary. It was submitted by him that the said directive only directed Air
India to allow the female Cabin Crew to perform flying duties up to the age of
58 years, but it did not say anything more.
On the other hand, by
issuing the Administrative Order dated 27th December, 2003, Air India was seeking
to nullify the judgments of this Court, as also the binding settlements, which it
was not empowered to do under the law.
It was submitted that
a contrary view could not be canvassed by the Government authorities barely
four months after the judgment of this Court, concluding that the directives
were no longer operative due to the repeal of the Air Corporations Act, 1994.
Mr. Agarwala contended
that the directive of 21st November, 2003, issued by the Government was nothing
but a mechanism evolved by the management of Air India to circumvent the judgments
of this Court, which it could not do.
29.
As
to the second proposition as to whether a post could be abolished by implication,
Mr. Agarwala submitted that the same could only be effected through a bilateral
settlement or a Court order. It was urged that, although, on behalf of Air India
it had been submitted that the post of In-Flight Supervisor had been abolished under
the said promotion policy, not a single clause of the settlement reflects such submission.
Mr. Agarwala
submitted that except for a seniority list of 1994 and 1998, no material had
been placed on behalf of the Air India to show that in fact the post of
In-Flight Supervisor had been abolished.
In this regard, Mr. Agarwala
also referred to the observation made by this Court in Nergesh Meerza's case,
where it had been observed that the Court was unable to understand how the
Management could phase out a post available to the Air Hostesses exclusively, at
the instance of Pursers, when they had absolutely no concern with the said
post.
30.
Mr.
Agarwala submitted that the case of the appellant Association, representing the
In-Flight Pursers, was confined to the question of the benefits which were available
to In-Flight Pursers prior to the promotion policy of 1997.
31.
Mr.
Sanjoy Ghose, learned Advocate appearing for the appellants in SLP(C)Nos.20679-20682
of 2007, supported the submissions made on behalf of the All India Cabin Crew Association
and submitted that the Appellant No.1, Kanwarjeet Singh, was himself a party in
Yeshaswinee Merchant's case (supra).
Learned counsel submitted
that the appellants were all Assistant Flight Pursers, who also sought the same
relief as was being sought by the Air India Cabin Crew Association. Mr. Ghose
submitted that the appellants were aggrieved by the order passed by the Minister
of Civil Aviation on 21st November, 2003, enhancing the age of flight duties of
female Cabin Crew up to 58 years and also the subsequent order passed by Air India
on 18th December, 2003, directing the In-Flight Services Department of Air India
to assign flight duties to Air Hostesses who had been grounded at the age of 50
years.
Mr. Ghose submitted
that even the Office Order issued by Air India on 27th December, 2005, stating that
Air India would be at liberty to consider Air Hostesses for the post of Air Flight
Supervisor, was contrary to the decision of this Court in both Nergesh Meerza's
case, as well as Yeshaswinee Merchant's case, indicating that there were three
different categories of staff comprising the Cabin Crew.
It was submitted that
by issuing the said orders, Air India was trying to by-pass the decisions of
this Court in the said two cases. It was submitted that the question has to be
decided as to whether the functions discharged by In-Flight Pursers were "job
functions" or whether the same were the adjuncts of the Flight Purser's
duties on board the Aircraft.
It was further
contended that whatever be the answer to the said question, what was material is
that in the absence of an express agreement with the majority union, the job
functions, which were the subject matter of industrial agreements and
settlements, could not be altered or abolished in any manner by Air India.
32.
Mr.
Ghose further submitted that the respondents' contention that the post of In-Flight
Supervisor is an executive post and workmen have no locus standi to challenge the
same, is contrary to the position adopted by the management of Air India
regarding the legitimate interest of the appellants by which their avenues of promotion
had been altered and their future job functions had been affected, without
recourse to the lawful process of collective bargaining.
It was pointed out that
in Yeshaswinee Merchant's case (supra), this Court had held that executives, who
as workmen had entered into and benefited from the various industrial
settlements, could not attempt to wriggle out of the same, merely on account of
having received promotions to the executive cadre.
33.
The
other challenge with regard to the increase in the retirement age of Air Hostesses
up to 58 years and also assigning them flying duties up to and beyond the age
of 50 years, was the same as in the Air India Cabin Crew Association's case.
In addition, it was also
submitted that having protected the conditions of service of the employees under
Section 8 of the 1994 Act, the legislature could not have intended to confer
powers upon the Central Government in Section 9 thereof, to direct the Management
of Air India to alter the conditions of service which had been settled on the basis
of binding settlements and agreements.
In support of his submissions,
Mr. Ghose referred to the decision of this Court in Karnataka State Road Transport
Corporation Vs. KSRTC Staff & Workers' Federation & Anr. [(1999) 2 SCC 687],
wherein, it was held that the power of the Government to issue directives could
not in its width over-ride industrial law or create service conditions.
Mr. Ghose submitted that
since the decision in Yeshaswinee Merchant's case continued to hold the field,
any attempt to question the 1997 policy on the ground of ironing out the creases
relating to accelerated promotions and eligibility criteria was misplaced and the
2003 directive to permit Air Hostesses to fly beyond the age of 50 years, which
was exigency based, should not be allowed to continue for 8 years, since almost
a thousand new Cabin Crew had been recruited after 2003.
34.
In
SLP(C)Nos.20773-20778 of 2007, Rajendra Grover and Ors. Vs. Air India Ltd.
& Anr., the same challenges were advanced as in the other two SLPs.
It was submitted by
Mr. Siddharth Aggarwal, learned Advocate appearing for the appellants, that Air
India is a Government Company within the meaning of Section 617 of the Companies
Act, 1956, in which one of the departments is the "In-Flight Services
Department", which includes the Cabin Crew Section, consisting of members of
two separate and distinct cadres - Air Hostess's Cadre and Flight Purser's
Cadre.
Mr. Aggarwal submitted
that this Court had clearly recognized the said two cadres as separate and distinct
in Nergesh Meerza's case (supra), and the same was upheld in Yeshaswinee Merchant's
case (supra).
Accordingly, the conditions
of service with regard to the various posts had been the subject matter of
negotiations and settlements and, as contended both by Mr. Siddharth Aggarwal
and Mr. Ghose, the same could not be altered to the detriment of the workmen without
due consultation with the concerned unions.
Mr. Aggarwal urged
that the post of In-Flight Supervisor is a post which was exclusive to the Flight
Pursers Cadre and even if it is taken as a job function, the same would
continue to be exclusive to the Flight Pursers cadre and could not, therefore, have
been extended to Air Hostesses after 1997 when the Cabin Crew comprised of In-Flight
Purser and Air Hostess were merged.
Mr. Aggarwal,
submitted that on account of judicial precedent and the principles of res judicata,
the decisions in Nergesh Meerza's case and Yeshaswinee Merchant's case were binding
and since the terms and conditions of service of the pre-1997 recruits had been
fixed through negotiations and agreements made in course of industrial adjudication,
the High Court ought not to have accepted the proposal of merger of the two
cadres, without the consent of the employees.
He also reiterated that
a splinter group of Air Hostesses, who had consented to the merger as proposed
by Air India, could not wriggle out of the binding agreements and settlements to
which they were also parties through the Air India Cabin Crew Association,
merely on the ground that they were no longer workmen as they had been promoted
to executive posts.
It was urged that the
decision taken by the Management of Air India contained in the order of the Ministry
of Civil Aviation dated 21st November, 2003, and the Office Order issued by Air
India on 18th December, 2003, as well as the Office Order dated 27th December, 2005,
were, illegal, arbitrary and in violation of the principles of res judicata and
were, therefore, liable to be quashed.
35.
Mr.
L. Nageshwara Rao, learned Senior Advocate, who also appeared on behalf of the Appellant
Association, submitted that the three issues framed for adjudication by the High
Court related to (1) the effect of the judgments of the Supreme Court in
Nergesh Meerza's case and in Yeshaswinee Merchant's case (supra) on the
validity of the impugned orders and directives; (2)
Whether the position of
an In-Flight Supervisor was a job function or a post; and (3) Whether the impugned
circulars and orders were rendered invalid on the ground of procedural
violation or on the ground of discrimination, arbitrariness or irrationality. Mr.
Rao submitted that all the three issues had been incorrectly answered by the
High Court.
36.
Mr.
Rao submitted that since it had been categorically held in Nergesh Meerza's case
and in Yeshaswinee Merchant's case that Air Hostesses and Flight Pursers
constitute different cadres and that "In-Flight Supervisor" is a post
belonging to and forming part of the Flight Purser cadre, the same could not be
altered by mere Office Orders.
It was also held that
there could be no interchangeability of functions between the two cadres, unless
such interchangeability was introduced by way of settlement between the Appellant
Association and the Management of Air India. Mr. Rao submitted that the High
Court also observed that there was no discrimination made out as regards the
differential treatment between Flight Pursers and Air Hostesses and their service
conditions could be different.
Accordingly, the flying
age of Air Hostesses from the Pre-1997 settlement period was fixed at 50 years,
though the retirement age was 58 years. On the question whether the position of
In-Flight Supervisor was a job function or a post, Mr. Rao submitted that the said
question had been decided in Nergesh Meerza's case and it was held that the
post belonged to the Flight Pursers cadre.
37.
On
the third issue regarding whether the impugned circulars and orders had been rendered
invalid, Mr. Rao submitted that there could not be any exercise of powers by the
Central Government under Section 9 in respect of the dispute, having regard to the
decisions rendered in Nergesh Meerza's case and in Yeshaswinee Merchant's case.
Mr. Rao submitted that
the High Court, while considering the matter, had arrived at a wrong conclusion
and the impugned judgment was, therefore, liable to be set aside.
38.
The
submissions made on behalf of the appellants in all these appeals were strongly
opposed on behalf of the Union of India by the Additional Solicitor General, Mr.
Gaurav Banerji. He submitted that on the basis of a Record Note dated 30th May,
1977, between Air India and the Air India Cabin Crew Association, the post of Deputy
Chief Air Hostess was abolished and the service conditions of Air Hostesses were
altered on 12th April, 1980 vide Regulation 46.
Subsequently, after the
judgment in Nergesh Meerza's case, the post of Deputy Chief Air Hostess was reintroduced
on 17th November, 1983, and the challenge thereto was rejected both by the learned
Single Judge and the Division Bench of the Bombay High Court.
On 16th October, 1989,
the Government of India issued directions to Air India under Section 34 of the
1983 Act to increase the retirement age of Air Hostesses to 58 years and the
same was followed by a Clarification dated 29th December, 1989, indicating that
while the Air Hostesses would retire at the age of 58 years, they would be
entitled to fly till the age of 45 years.
Thereafter, on 12th January,
1983, a further Circular was issued by Air India extending the flying age of Air
Hostesses from 45 years to 50 years. Soon thereafter, the Air Corporation Act
was repealed by the Air Corporations (Transfer of Undertakings and Repeal) Act,
1994, resulting in the Record Note between Air India and the Association on
17th March, 1995, leading to the re-designation of scales of pay and changes in
the promotion policy for the Executive Cabin Crew of In-Flight Services Department.
Mr. Banerji submitted
that on 5th June, 1997, a Memorandum of Settlement was entered into between Air
India and the Association and on the same day, a promotion policy for Cabin Crew
was also promulgated. This was challenged in the Bombay High Court in
Yeshaswinee Merchant's case (supra), in which the Bombay High Court held that the
cadre of Flight Pursers was distinct and separate from that of Air Hostesses.
Mr. Banerji submitted
that while the decision in Yeshaswinee Merchant's case was rendered by the Division
Bench on 11th July, 2003, by a Presidential Directive dated 21st November,
2003, issued under section 9 of the Air Corporations (Repeal) Act, 1994, Air
Hostesses were allowed to undertake flying duties till the age of 58 years, which
was followed by the Administrative Order dated 27th December, 2005, by which the
Executive female Cabin Crew was made eligible to be considered to be in position
along with male Cabin Crew.
39.
Mr.
Banerji submitted that the issues involved in these matters are purely administrative
in nature relating to the management of Air India and did not, therefore, attract
the provisions of Article 14 of the Constitution as the Company has the right to
run and manage its affairs in accordance with law.
Mr. Banerji submitted
that in the revised Promotion Policy for the Cabin Crew dated 5th June, 1997, there
was a shift from the policy of standard force promotion to a time bound policy.
By virtue of Clause 4 of the Promotion Policy, there was a merger of the male and
female Cabin Crew, both the existing crew and new recruits, to make them all eligible
for the Career Advancement Scheme.
40.
Referring
to the Memorandum of Settlement arrived at between the management and the workmen
represented by the Appellant Association, Mr. Banerji pointed out that the said
Settlement covered only the workmen and not the members of the executive staff.
He pointed out that in
clause 7 of the Memorandum of Settlement it was categorically stated and agreed
to by the parties that the Cabin Crew who are promoted to the grade of Manager (Grade
29 and above) would not be represented by the Appellant Association.
Mr. Banerji submitted
that as per the earlier promotion policy, a decision had been taken to rationalize
the designations of the Cabin Crew. In keeping with the said decision In-Flight
Supervisors and Deputy Chief Air Hostesses, who were in Grade 27, were
re-designated as Deputy Manager-IFS. Grade 28 was abolished and Grade 29 was comprised
of Deputy Manager and Additional Chief Air Hostesses, who were re-designated as
Manager-IFS.
It was, however, clarified
that the revised designations were for executive/administrative ground
assignments. The existing functional designations of In-Flight Supervisors and Air
Hostesses would continue while on flight duties, in accordance with prevailing practices.
Once again referring to
the revised Promotion Policy of 5th June, 1997, Mr. Banerji also referred to paragraph
7.4 onwards where it has been stated in no uncertain terms that the existing cadre
of Cabin Crew on being promoted to the new/higher grades would continue to perform
their job functions prior to such promotion till the time actual requirement arose
in the higher grade or position.
Paragraph 7.5.1 also
stipulated that on promotion to the executive cadre i.e. to the level of
Manager (Grade 29 and above) the male Cabin Crew would continue to carry out their
respective job functions of AFP/FP till such time as they started to perform the
functions of In-Flight Supervisors on a regular basis.
Mr. Banerji also pointed
out that in paragraph 7.5.3 it has been mentioned that the male Cabin Crew would
be required to carry out executive/administrative office duties, as and when required,
without disturbing their bids and on promotion to the level of Manager and above,
they would be entitled to applicable allowances and benefits attached to the
respective executive grades of Cabin Crew.
Similarly, in the case
of promotee female Cabin Crew recruited prior to March, 1995, to the executive grades,
paragraph 7.5.4 provided that there would be no change in their existing terms
and conditions of service and the female Cabin Crew would be entitled to be paid
for their flights.
They would also be entitled
to applicable allowances and benefits attached to their respective grades of Cabin
Crew. Mr. Banerji submitted that the aforesaid Settlement and Promotion Policy superseded
all the earlier Settlements and hence the claim of the Appellants regarding the
right of In-Flight Pursers to pre-merger benefits was not tenable in law.
41.
Referring
to the decision in Nargesh Meerza's case (supra), Mr. Banerji contended that
two cadres of In-Flight Pursers and Air Hostesses were being maintained
separately, although, there was always a possibility of duties and job functions
overlapping. By the revised Promotion Policy the two cadres were brought at par
with each other.
Mr. Banerji submitted
that the basis of the decision in Yeshaswinee Merchant's case (supra) was that the
majority of the Air Hostesses had wanted to retire from flight duties on international
flights at the age of 50 yeas or opt for ground duties on 50 years of age up to
the age of 58 years on a par with males, so that at least in some period of their
service, they would not have to remain for long periods away from their homes and
families.
42.
Mr.
Banerji submitted that, although, in the writ petitions before the High Court the
vires of Section 9 of the Air Corporations (Transfer of Undertaking and Repeal)
Act, 1994, had been challenged, the said provisions were exactly the same, as was
contained in Section 34 of the Air Corporations Act, 1953,
which empowered the
Government to issue any directions in respect of any functions of the Corporations,
which then existed, where the Corporations have power to regulate the matter in
any manner including the terms and conditions of service of officers and
employees of the Corporation.
In fact, the
provisions of Section 9 of the Repeal Act had not been diluted in any way by the
judgments in the Nergesh Meerza and in Yeshaswinee Merchant's case. Mr. Banerji
submitted that for a long time there had been complaints with regard to the
discrimination in the service conditions of Air Hostesses in Air India and it was,
therefore, decided to remove such discrimination in service conditions of the Air
Hostesses to bring them at par with other male crew members.
Mr. Banerji submitted
that in individual cases, Air Hostesses could be allowed to opt out of flying
till the age of 58 years, but as a general Rule, by virtue of the Presidential Directive,
all Air Hostesses were required to discharge the functions of Air Cabin Crew along
with their male counter-parts.
As far as Air Hostesses
belonging to the Executive Cadre are concerned, even they were required to
discharge such duties till they could be accommodated in a substantial vacancy.
43.
Mr.
Banerji submitted that the decision to increase the flying age of Air Hostesses
to 58 years was to remove the discrimination allegedly practised against them and
not to prejudice their service conditions.
44.
Appearing
for a group of Air Hostesses represented by the Air India Hostesses Association
and the Air India Executive Hostesses Association, Respondent Nos.3 and 4 in the
writ petition filed by Kanwarjeet Singh, Mr. C.U. Singh, learned Senior
Advocate, submitted that the said Association (AICCA) had no right to question the
claims of those who had already been promoted to the managerial cadre by virtue
of the revised promotion policy.
Mr. Singh submitted that
the said Association could represent employees up to Grade 26 who were considered
to be "workmen" for the purposes of collective bargaining. Mr. Singh
pointed out that the settlement dated 5th June, 1997, was only with regard to the
terms and conditions of service of workmen up to Grade 26.
45.
Mr.
Singh submitted that the claim of the Air Hostesses for parity of service conditions
with their male counter-parts had been continuing for a considerable length of time.
The said disputes were referred to the National Industrial Tribunal by the Central
Government on 28th February, 1972.
The Award was published
on 25th March, 1972, wherein, it was ultimately observed that the nature of duties
of In-Flight Supervisors, the Deputy Chief Flight Pursers and the Deputy Chief Air
Hostesses were administrative and supervisory.
Hence, they were not "workmen"
within the meaning of the Industrial Disputes Act, 1947, and their case was beyond
the jurisdiction of the Tribunal. The Tribunal also took note of the evidence that
the Deputy Chief Air Hostess and the In-Flight Supervisor performed supervisory
functions, both on the ground as well as in flight and that Cabin Crew were to work
as a team and interchangeability of duties could be insisted upon by the Management
in emergencies, when a standby Crew of that class was not available.
It was, however,
clarified that the Management should not have blanket power to effect such interchangeability
of duties between Air Hostesses and Assistant Flight Pursers and Flight
Pursers.
Mr. Singh reiterated that
in 1977 the supervisory post of Deputy Chief Air Hostesses was phased out and on
account of the anomalies which surfaced the Record Note of Agreement signed by
the Management of Air India and the Association on 30th May, 1977 took note of the
fact that female Executives, irrespective of rank or seniority, would be listed
as Air Hostesses on board the Aircraft, and would be deprived of their rank and
seniority. Consequently, all reports issued on the Aircraft would have to be signed
by the Air Hostess, irrespective of her rank and were to be countersigned by
the Flight Purser.
This ultimately led to
the new promotion policy for Cabin Crew on 5th June, 1997, which was, however, confined
to employees in the workmen category alone. Ultimately, by Office Order dated 18th
December, 2003, female Cabin Crew were permitted to undertake flying duties up to
the age of 58 years with the object that opportunities for male and female
Cabin Crew should be equal in Air India and that female Cabin Crew should be eligible
for being considered for the post of In-Flight Supervisor along with the male
Cabin Crew.
46.
Mr.
Singh submitted that ultimately the writ petitions, which were filed, inter alia,
for a declaration that Section 9 of the Air Corporation (Transfer of Undertakings
and Repeal) Act, 1994, was ultra vires and for other reliefs, was dismissed by
the Delhi High Court, resulting in the Special Leave Petitions.
Mr. Singh submitted that
there was no substance in the appeals filed since the revised promotion rules had
been approved and accepted by all concerned.
Mr. Singh urged that
it was on account of the continued representations made for placing the cadre
of Air Hostesses at par with the cadre of In-Flight Pursers, that the
settlement was arrived at and there was no reason to interfere with the same. Mr.
Singh submitted that the appeals were, therefore, liable to be dismissed.
47.
From
the submissions made on behalf of the respective parties, what ultimately emerges
for decision is whether the management of Air India was entitled to alter the service
conditions of Flight Pursers and Air Hostesses, despite several bilateral agreements
arrived at between
Air India and its workmen
represented by the Air India Cabin Crew Association, and the Executive cadre of
In-Flight Pursers and Air Hostesses promoted to the Executive rank and given Grade
29, which was the starting point of the Executive cadre.
The other connected
question involved is whether those Flight Pursers who had been promoted in terms
of the revised promotion policy, would still be governed by the Settlements arrived
at between the Management and the Unions, since they were covered by the same prior
to their promotion to the Executive cadre.
48.
Another
question which calls for our attention is with regard to the merger of Cabin
Crew effected in 1996, giving rise to the other disputed questions relating to interchangeability
of duties between Flight Pursers and Air Hostesses. It may be indicated that
during the course of the hearing,
Mr. Pramod B. Agarwala
urged that the Appellant Association was mainly concerned with the status of In-Flight
Supervisors prior to the merger of cadres in 1996.
In deciding the
aforesaid questions, this Court will have to take into consideration the
decisions rendered in Nergesh Meerza's case (supra) and Yeshaswinee Merchant's case
(supra), although, strictly speaking, we are more concerned with the decision taken
in terms of Section 9 of the 1994 Act, to bring about a parity in the service
conditions of both Flight Pursers and Air Hostesses, both at the level of workmen
and also the Executive cadre.
While the Agreements are
not altered or vary to any large extent, what has been done is to iron out the differences
on account of the revised promotion policy, which exempted some of the workmen,
who had been transformed to the category of Executive from the ambit of the said
Settlements.
It is apparent from a
reading of both the judgments delivered in Nergesh Meerza's case and Yeshaswinee
Merchant's case that the same were rendered in the context of bringing parity between
the cadre of In-Flight Supervisors and the cadre of Air Hostesses. It is, in
fact, the prerogative of the Management to place an employee in a position
where he would be able to contribute the most to the Company.
Hence, notwithstanding
the decision in Nergesh Meerza's case and in Yeshaswinee Merchant's case, the Air
India was at liberty to adopt the revised promotion policy which was intended
to benefit all the employees.
49.
As
indicated hereinbefore, Mr. Pramod B. Agarwala, representing the Appellant Association,
submitted that the appellants were not concerned with the post-revised promotion
policy, but with the separate cadre of In-Flight Pursers, as distinct from the cadre
of Air Hostesses, with regard to their channel of promotion.
We are inclined to agree
with Mr. Agarwala's submissions that prior to 1997, there was a category of Cabin
Crew referred to as In-Flight Supervisors, which was confined to In-Flight
Pursers alone and did not concern the Air Hostesses.
However, we are unable
to agree with Mr. Agarwala's submissions with regard to treating the duties discharged
by In-Flight Supervisors to indicate that "In-Flight Supervisor" was a
separate post.
We are inclined to accept
the submissions made on behalf of Air India that the duties discharged by persons
designated as In-Flight Supervisors did not create any separate post and the
post remained that of In-Flight Pursers.
50.
Accordingly,
we are unable to accept the further submissions made on behalf of the
appellants that they had been discriminated against in any way on account of the
decision in Nergesh Meerza's case and Yeshaswinee Merchant's case. As was observed
by this Court in Inderpreet Singh Kahlon & Ors. Vs. State of Punjab &
Ors. {(2006) 11 SCC 356], it is well-settled that a decision is an authority for
what it decides and not what can logically be deduced therefrom. Further, it is
also well-settled that the ratio of a case must be understood having regard to the
fact situation obtaining therein.
The position since the
decisions rendered in Nergesh Meerza's case and in Yeshaswinee Merchant's case,
underwent a change with the adoption of the revised promotion policy agreed to between
the parties and which replaced all the earlier agreements. In our view, the
Management of Air India was always entitled to alter its policies with regard to
their workmen, subject to the consensus arrived at between the parties in
supersession of all previous agreements.
We are also unable to
accept the further submission made on behalf of the appellants that those
workmen who had been promoted to the Executive category would continue to be governed
by the Settlements arrived at when they were workmen and were represented by the
Association.
In our view, once an employee
is placed in the Executive cadre, he ceases to be a workman and also ceases to be
governed by Settlements arrived at between the Management and the workmen through
the concerned Trade Union.
It is not a question of
an attempt made by such employees to wriggle out of the Settlements which had been
arrived at prior to their elevation to the Executive cadre, which, by operation
of law, cease to have any binding force on the employee so promoted by the
Management.
51.
We
are not, therefore, inclined to interfere with the orders passed in the several
writ petitions, out of which the present appeals arise, and the same are, accordingly,
dismissed. All connected applications, if any, will also stand disposed of by
this order.
52.
However,
having regard to the facts of the case, the parties will bear their own
expenses.
................................................J.
(ALTAMAS KABIR)
................................................J.
(CYRIAC JOSEPH)
New
Delhi
Dated:
17.11.2011
Back