AIR INDIA CABIN CREW ASSOCIATION v. YES HAWINEE MERCHANT AND ORS.

D On behalf of the respondent/association, learned senior counsel contended that the clarificatory letter addressed by Joint Secretary, Ministry of Civil Aviation in his personal capacity to Managing Director, Air India Limited is ineffectual in either modifying or clarifying the main direction of the Central Government issued on 16. I0.1989 and which in very categorical terms directs superannuation age of air hostesses to be 58 years which means flying duties to air hostesses has to be allowed till 58 years of age at par with males.

Separate appeals against the impugned judgment of the High Court [CA Nos. 4584-4592 of2002] have been preferred by the employer/Air India Limited and by the Union of India [CA Nos. 4571-4578 of 2002] questioning the correctness of the view taken by the Bombay High Court in its judgment on the meaning and effect of directions issued under Section 34 of the Act of

1953. Both the learned senior counsel appearing for the Air India and the Union of India have taken a consistent stand that the letter of clarification dated 29.12.1989 issued by the Joint Secretary was a decision of the Central Government taken in accordance with rules of business with due approval of G Minister-in-charge of the Civil Aviation Ministry. The High Court took a view that letter dated 29.12.1989 is not in itself a direction under section 34 of the Act of 1953 merely on the format of the same though there is no particular prescribed format for issuing such direction. It clarifies the meaning and effect of the original letter issued by the Central Government on 16.10.1989. In this H Court, the stand taken by Union of India is that the letter of clarification dated

AIR INDIA CABIN CREW ASSON. 1·. YESHAIVINEE MERCHANT [DHARMADHIKARl,J.] 495 29.12.1989 is also a direction under Section 34 as was the original directive issued on 16.10.1989. Since the directive issued under Section 34 of the Act of 1953, is of the Central Government, it is the Central Government which can affirmatively and with certainty say whether the letter dated 29.12.1989 be read as a separate directive or a clarification. There is affidavit of Union of India filed before the High Court in which it is specifically asserted that alleged clarificatory letter dated 29.12.1989 emanated from the Central Government and was not a personal letter of the Joint Secretary. The records produced by Union of India before the High Court as well as in this court amply demonstrate that both direction dated 16.10.1989 and letter dated 29.12.1989 were issued for the Central Government with the specific approval of the then Minister of Civil Aviation. The relevant contents of the affidavit filed before the High Court on behalf of the Central Government reads thus :-

"For the sake of abundant caution, I reiterate that the first directive dated 16.10.1989 was issued under section 34 of the Air Corporations Act, 1953, and that the second directive dated 29.12.1989 was issued under the provisions of the said section 34 of the said Act in clarification of the earlier first directive, and in the premises the second directive had to be mandatorily implemented by Air India Corporation as it was then known."

In our opinion, the above affidavit should be held to be decisive with regard to the effect and efficacy of the clarificatory letter dated 29.12.1989. E The direction of the Central Government under Section 34 of the Act of 1953 have to be understood on the basis of both the communications dated 16.10.1989 and 29.12.1989. Reading them together the directive can only be construed to mean that the air hostesses have to be continued in service up to the age of 58 years and as per the terms and settlements reached between the parties 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.

In the course of argument, learned senior counsel appearing for the appellants/associations also made a reference to Article 77 of the Constitution of India which requires every executive action of the government to be expressed to have been taken in the name of President.

In our opinion, reference to Article 77 is wholly inappropriate. The exerc_ise of statutory power under Section 34 by the Central Government, even though not expressed to have been taken in the name of President, does not render it invalid. Clause 2 of Article 77 insulates an executive action of the H

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A government formally taken in the name of President from challenge on the ground that it is not an order or instrument made or executed by the President. Even if an executive action of the Central Government is not fo1mally expressed to have been taken in the name of President, Article 77 does not provil.e that it would, therefore, be rendered void or invalid. We need not, therefore, deal with the argument advanced on the basis of Article 77 of the Constitution because the respondent/association itself is relying on the directive dated 16.10.1989 of the Central Government which is not formally expressed in the name of President in terms of Article 77 of the Constitution.

We have already dealt with the challenge made to the retirement of the air hostesses from flight duties at the age of 50 years and grounding them thereafter up t9 the age of 58 years. We have held that the conditions of retirement are not a discrimination based only on sex. The directives issued by the Central Government, therefore, also cannot be held to be in any manner in violation of Articles 14, 15 and 16 of the Constitution or the provisions of the Equal Remuneration Act, 1976. The Effect of pending reference no. I of D 1990 before the National Industrial Tribunal.

We have already held above that the High Court committed a serious error of procedure and law in entertaining proposals from the employer - the Air India Limited and accepting them as consented by all parties, to make it as a part of its judgment. We have already held that Nergesh Meerza 's case E (supra) was binding on the High Court and could not have been sidetracked by observing that by passage of time the cadres of flight pursers and air hostesses have virtually been merged and the distinction between them has been obliterated. We have also held that such conclusion on the part of the High Court is not borne out from the facts on record. The two cadres of males p and females on cabin came to be merged only after the year 1997 for fresh recruits and the conditions of service and distinction between two cadres continued with regard to the existing cabin staff up to the year 1997. The impugned order of the High Court is self-contradictory. It holds that with passage of time the distinction between two cadres and their conditions of service have been obliterated and at the same time, it allows the employer/ G Air India to make proposals for merger of cadres and interchangeability on all allied matters. Before the High Court, there was neither any pleadings nor materials placed by any of the parties to undertake the exercise of merging of two cadres.

AIR INDIA CABIN CREW ASSON. r. YESHAWINEE MERCHANT [DHARMADHIKARl,J.] 497 It is true that the pending dispute before the National Industrial Tribunal A is between employees of Indian Airlines and its employer but there is ample material on record to show that Air India and its important employees' associations have been noticed to participate in the pending dispute before the National Industrial Tribunal. It is also on record that statements of claims have been submitted by appellants/All India Cabin Crew Association as also B by the respondent/association. The respondent/association, only after it succeeded in the petition before the High Court and could get a favourable judgment, which is subject matter of these appeals before us, withdrew their claims from the National Industrial Tribunal. When the matter of fixing the terms and conditions of employees of Indian Airlines, in which Air lnd'ia and its employees had also been noticed, was pending before the National Industrial C Tribunal, it was wholly uncalled for the High Court to have allowed the employer to come forward with proposals for creating parity in age of superannuation between air hostesses and flight pursers only on the condition of merging of the two cadres with withdrawal of all earlier benefits conferred on air hostesses like accelerated promotions, higher salaries, higher allowances and pension packages. Proceedings under Article 226 of the Constitution, are neither appropriate nor a substitute of industrial adjudication in the industrial courts and tribunals constituted in industrial law. In our opinion, the High Court was clearly in error in exceeding its jurisdiction by trenching upon an industrial field and adjudicating disputes inter se employer and employees and employees. Before the High Court not all the parties likely to be affected were the parties to the writ petitions. The appellant/All India Cabin Crew Association was only allowed intervention and it could not have foreseen that conditions of service of both male and female members working in cabin would be adversely affected by High Court by recording a so called consensual order directing merger of cadres. The consensual order seriously prejudices the air hostesses of the workmen category represented by appellant/AICCA. F The order freezes their salaries and allowances for two years, forces them to opt within a month as to whether they would fly after 50 years of age or not, makes their duties interchangeable and forces them to continue with the arduous jobs with males on board with flight duties up to the age of 58 years.

It is also to be noted that Air India Officers' Association as one of the G appellants on leave before us was not even a party before the High Court. The impugned judgment rendered in favour of the respondent/association comprising air hostesses of executi\'e category has also adversely affected the service conditions of its male and female members of officers category. The High Court, therefore, adopted a hazardous course of fixing the terms and H

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A conditions of employees of Air India of various categories of males and females which was an exercise to be undertaken in pending industrial dispute before the National Industrial Tribunal.

A request was made in the course of hearing on behalf of some of the parties that this Court should direct the National Industrial Tribunal to decide the disputes inter se Air India and its employees - 'males and females'.

On behalf of the All India Cabin Crew Association, an alternative submission has been made that the ideal situation for them would be that the air hostesses are allowed more than one option. They may be allowed to retire from flight duties at the age of 50 years, to opt for ground duties after the age of 50 years up to 58 years of age or to opt flight duties throughout up to the age of 58 years. Whether such several options can be given and would be condusive to an efficient and sound management of the business of the employer is a matter better left for adjudication to a legally chosen industrial forum by the parties. D We do noi consider it proper or necessary for us to make any direction in the pending reference to the National Industrial Tribunal as in doing so, we would be committing a similar mistake as was done by the High Court.

It is open to the Central Government to enlarge the terms of the reference E under Section I 0 of the Industrial Disputes Act to specifically include for adjudication the dispute of Air India and its employees and/or the employees inter se. It would also be open to the air hostesses represented by appellant/ AICCA and the respondent/AHSA to make their demands in the pending reference before the Tribunal by seeking a fresh reference from the Central Government. It would be then open to the National Industrial Tribunal to take F a fair and just decision in accordance with law after examining all aspects of the matter, on hearing the employer and considering its business and administrative exigencies.

Lastly in desperate attempt, to support a part of the judgment of the G High Court which declares denial of flight duties to the air hostesses up to the age of 58 years at par with males as invalid, on behalf of the respondents/ associations, an alternative submission is advanced that the other part of the impugned judgment whereby conditional proposal of Air India of merger of the two cadres [males and females] was accepted, may alone be quashed and the remaining part be left undisturbed and intact as valid. H

AIR INDIA CABIN CREW AS SON. v. YES HAWIN EE MERCHANT [DHARMADHIKARI J., 11 499 In view of the detailed discussion of the various grounds urged before A us, we have held that both impugned parts of the judgment of the High Court are unsustainable. It is, therefore, not possible for us to accept the alternative submission made on behalf of the respondents/associations that since two parts of the impugned judgment are severeble, one of the parts fixing age of retirement for air hostesses on flight duties up to the age of 58 years be -~ B In the result, these appeals are allowed and the impugned judgment of the Bombay High Court dated 20/23.8.200I is hereby set aside. The Writ Petition of respondent/association is dismissed. All interim orders including dated 14.12.2001 shall stand vacated. Looking to the nature of the controversy C involved, we leave the parties to bear their own costs in this Court.

K.K.T. Appeals allowed.