The case of ‘Air India v. Nargesh Mirza (1981)’ is an important case on Article 14 when the court laid down a broad perspective of equality.

The Institution of the case

The case arose when the constitutional validity of Regulation 46(1) (c) of Air India Employees Service Regulations (hereinafter referred to as ‘A.I. Regulations’) and other questions of law were involved.

A little background of the case

There was a good deal of disparity between the pay-scales and the promotional avenues of the male cabin crew consisting of AFPs (Assistant Flight Pursers), FPs and In-flight pursers on the one hand and the AHs (Air Hostess), Check AH, Deputy Chief AH, Addl. Chief AH and Chief AH on the other. The case of the AHs was sponsored by the ACEU (Air Corporation Employees Union) which made a demand for alteration of the service regulations prejudicial to AHs. This was some time prior to 1964.

G.D.Khosla Award

The said dispute was ultimately referred to a National Industrial Tribunal presided over by Mr. Justice G.D. Khosla who gave his award on 28.7.1965 making some recommendations in order to improve the service conditions of AHs. The main issue canvassed before the Khosla Tribunal centered round the question of the age of retirement of the AHs and matters connected therewith.

According to the Regulations prevalent in A.I. an AH had to retire at the age of 30 or on marriage whichever was earlier subject to an extension being granted for a period of 5 years if the employee was found to be medically fit. While considering this demand, the Tribunal seems to have upheld the view of the Corporation and found no reason to interfere with Regulation Nos. 46 and 47.

Giving the reasons for its conclusion the Award in Para 256 runs thus:-

“With regard to air hostesses, the contention of the Management is that they are in a special class. They have to deal with passengers of various temperaments, and a young and attractive air hostess is able to cope with difficult or awkward situations more competently and more easily than an older person with less personal prepossessions.

On this point there can be no two opinions. It was also pointed out that air hostesses do not stay very long in the service of Air India, and young and attractive women are more inclined to look upon service in Air India as a temporary occupation than as a career. Most of them get married and leave the service.”

Retirement age of I.A.C

The previous regulation regarding the retirement age of I.A.C (Indian Airlines Corporation). AH was regulation No. 12 which may be extracted thus:-

“Flying Crew shall be retained in the service of the Corporation only for so long as they remain medically fit for flying duties. Further, an Air hostess shall retire from the service of Corporation on her attaining the age of 30 years or when she gets married whichever is earlier.

An unmarried Air Hostess may, however, in the interest of the Corporation be retained in the service of the Corporation upto the age of 35 years with the approval of the General Manager.”

Settlement dated 10.1.1972

Then followed the Settlement dated 10.1.1972 between the I.A.C. and ACEU under which AH was to retire at the age of 30 or on marriage. The General Manager, however, could retain an unmarried AH in service upto the age of 40 years. Thus, the only difference that the Settlement made was that the discretion to extend the age of retirement of AH was increased by 5 years, i.e. from 35 years to 40 years.

Regulations 46 and 47,

Amended Regulations 46 and 47 were (relevant portions) thus:

“46. Retiring Age:

 (c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place within four years of service or on first pregnancy, whichever occurs earlier.

47. Extension of Service.

The services of any employee, may, at the option of the Managing Director but on the employee being found medically fit, be extended by one year at a time beyond the age of retirement for an aggregate period not exceeding two years, except in the case of Air Hostesses and Receptionists where the period will be ten years and five years respectively.”

Thus, an AH under A.I. was retired from service in the following contingencies:

(1) on attaining the age of 35 years;

(2) on marriage if it took place within 4 years of the service, and

(3) on first pregnancy.

The age of retirement of AH could be extended upto ten years by granting yearly extensions at the option of the Managing Director. Thus, if the Managing Director chose to exercise his discretion under Regulation 47 an AH could retire at the age of 45 years.

Analysis of the court

The court considered the issue whether and not the conditions imposed on the AHs regarding their retirement and termination are manifestly unreasonable or absolutely arbitrary.

We will now use the words of Court to present the view of Court-

Termination if marriage takes place within four years or on first pregnancy

• “So far as the question of marriage within four years is concerned, we do not think that the provisions suffer from any constitutional infirmity. According to the regulations an AH starts her career between the age of 19 to 26 years. Most of the AHs are not only SSC which is the minimum qualification but possess even higher qualifications and there are very few who decide to marry immediately after entering the service.

• Thus, the Regulation permits an AH to marry at the age of 23 if she has joined the service at the age of 19 which is by all standards a very sound and salutary provision. Apart from improving the health of the employee, it helps a good in the promotion and boosting up of our family planning programme.

• Secondly, if a woman marries near about the age of 20 to 23 years, she becomes fully mature and there is every chance of such a marriage proving a success, all things being equal.

• Thirdly, it has been rightly pointed out to us by the Corporation that if the bar of marriage within four years of service is removed then the Corporation will have to incur huge expenditure in recruiting additional AHs either on a temporary or on ad hoc basis to replace the working AHs if they conceive and any period short of four years would be too little a time for the Corporation to phase out such an ambitious plan.

• Having regard to these circumstances, we are unable to find any unreasonableness or arbitrariness in the provisions of the Regulations which necessitate that the AHs should not marry within four years of the service failing which their services will have to be terminated.”

Termination on First Pregnancy

• The Regulation does not prohibit marriage after four years and if an AH after having fulfilled the first condition becomes pregnant, there is no reason why pregnancy should stand in the way of her continuing in service.

• The Corporations represented to us that pregnancy leads to a number of complications and to medical disabilities which may stand in the efficient discharge of the duties by the AHs. It was said that even in the early stage of pregnancy some ladies are prone to get sick due to air pressure, nausea in long flights and such other technical factors.

• This, however, appears to be purely an artificial argument because once a married woman is allowed to continue in service then under the provisions of the Maternity Benefit Act, 1961 and The Maharashtra Maternity Rules, 1965 (these apply to both the Corporations as their Head offices are at Bombay), she is entitled to certain benefits including maternity leave.

• In case, however, the Corporations feel that pregnancy from the very beginning may come in the way of the discharge of the duties by some of the AHs, they could be given maternity leave for a period of 14 to 16 months and in the meanwhile there could be no difficulty in the Management making arrangements on a temporary or ad hoc basis by employing additional AHs.

• We are also unable to understand the argument of the Corporation that a woman after bearing children becomes weak in physique or in her constitution. There is neither any legal nor medical authority for this bald proposition. Having taken the AH in service and after having utilised her services for four years, to terminate her service by the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature.

• It seems to us that the termination of the services of an AH under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood the most sacrosanct and cherised institution.

We are constrained to observe that such a course of action is extremely detestable and abhorrent to the notions of a civilised society. Apart from being grossly unethical, it smacks of a deep rooted sense of utter selfishness at the cost of all human values. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Art. 14 of the Constitution.

Pregnancy is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life. Any distinction therefore, made on the ground of pregnancy cannot but be held to be extremely arbitrary.

Extension of Retirement age at the option of Managing Director

According to this provision, the normal age of retirement of an AH is 35 years which may at the option of the Managing Director be extended to 45 years subject to other conditions being satisfied.

The court said that-

• “In the present times with advancing medical technology it may not be very correct to say that a woman loses her normal faculties or that her efficiency is impaired at the age of 35, 40 or 45, years. It is difficult to generalise a proposition like this which will have to vary from individual to individual.

• The Khosla Award having been carried away by the arguments of the Corporation made the following observations:

“They have to deal with passengers of various temperaments, and a young and attractive air hostess is able to cope with difficult or awkward situations more competently and more easily than an older person with less personal prepossession.”

We fail to see how a young and attractive AH would be able to cope with difficult or awkward situations more effectively than others because smartness or beauty cannot be the only hallmark of competency.

Similar observations were made by the Mahesh Tribunal in the following terms.

“The management claims this on the ground that the cabin crew service has to be attractive to passengers.”

• The argument that AHs should be young and attractive and should possess pleasing manners seems to suggest that AHs should by their sweet smiles and pleasant behaviour entertain and look after the passengers which cannot be done by women of older age. This argument seems to us to be based on pure speculation and an artificial understanding of the qualities of the fair sex and, if we may say so, it amounts to an open insult to the institution of our sacred womanhood.

Such a morbid approach is totally against our ancient culture and heritage as a woman in our country occupies a very high and respected position in the society as a mother, a wife, a companion and a social worker. It is idle to contend that young women with pleasing manners should be employed so as to act as show pieces in order to cater to the varied tastes of the passengers when in fact older women with greater experience and goodwill can look after the comforts of the passengers much better than a young woman can.

Even if the Corporation had been swayed or governed by these considerations, it must immediately banish or efface the same from its approach. More particularly such observations coming from a prestigious Corporation like A.I. appear to be in bad taste and is proof positive of denigration of the role of women and a demonstration of male chauvinism and verily involves nay discloses an element of unfavourable bias against the fair sex which is palpably unreasonable and smacks of pure official arbitrariness.

At any rate, it is not possible for us to entertain such an argument which must be rejected outright.

• The fixation of the age of retirement of AHs who fall within a special class depends on various factors which have to be taken into consideration by the employers. In the instant case, the Corporations have placed good material before us to show some justification for keeping the age of retirement at 35 years (extendable upto 45 years) but the regulation seems to us to arm the Managing Director with uncanalised and unguided discretion to extend the age of AHs at his option which appears to us to suffer from the vice of excessive delegation of powers.

It is true that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms the power has to be struck down as being violative of Art. 14.

• The Managing Directors has been given an uncontrolled, unguided and absolute discretion to extend or not to extend the period of retirement in the case of AHs after 35 years. The words ‘at the option’ are wide enough to allow the Managing Director to exercise his discretion in favour of one AH and not in favour of the other which may result in discrimination.

• The Regulation does not provide any guidelines, rules, or principles which may govern the exercise of the discretion by the Managing Director. Similarly, there is also no provision in the Regulation requiring the authorities to give reason for refusing to extend the period of retirement of AHs. The provision does not even give any right of appeal to higher authorities against the order passed by the Managing Director.

• Under the provision, as it stands, the extension of the retirement of an AH is entirely at the mercy and sweet will of the Managing Director. The conferment of such a wide and uncontrolled power on the Managing Director is clearly violative of Art. 14, as the provision suffers from the vice of excessive delegation of powers. For these reasons, therefore, we have no alternative but to strike down as invalid that part of Regulation 47 which gives option to the Managing Director to extend the service of an AH.

Reference

Air India v. Nargesh Mirza (1981)