Air India v. Nergesh Meerza & Ors.
DATE OF JUDGMENT: 28/08/1981
COURT: Supreme Court of India
JUDGES: Justice Fazalali and Justice Syed Murtaza
REFERENCE: 1981 AIR 1829
Petitioner: Air India.
Respondent: Nergesh Meerza & Ors.
SUBJECT: The judgment revolves around gender justice and discrimination on the basis of biological features of women.
FACTS: Many petitions were filed before the Bombay HC questioning the validity of regulations 46 and 47 of Air-India Employee’s Service Regulations and regulation number 12 of the Indian Airlines (Flying Crew) Service Regulations, stating it to be ultra vires of Articles 14, 15, 16 and 21 of the Indian Constitution. Therefore, Air India appealed to the SC to decide all the petitions by one common judgment as they all raise the same question of law. Therefore, the Supreme Court under Article 139 A of the Indian Constitution transferred all the petitions in Bombay HC to the SC for a joint hearing.
The Indian Constitution
- Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
- Article 15(1): The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
- Article 16: Equality of opportunity in matters of public employment:
- There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State
- No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State
- Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 139 A: Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.
Air-India Employee’s Service Regulations
- Regulation 46(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.
- Regulation 47: Notwithstanding anything contained in Regulation 46, 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.”
Indian Airlines (Flying Crew) Service Regulations
- Regulation 12: 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.
- Whether regulations 46 and 47 of Air-India Employee’s Service Regulations and regulation number 12 of the Indian Airlines (Flying Crew) Service Regulations are constitutionally valid?
ANALYSIS OF THE JUDGEMENT:
Air India contends that,
- The recruitment of the Air Hostesses is sex-based recruitment made not merely on the ground of sex alone but swayed by a lot of other considerations, hence Article 15 (2) of the Constitution was not attracted.
- Having regard to the nature of work, selection process, promotional avenues, and the circumstances under which Air Hostesses work they themselves form a separate class from the rest of the members, and therefore Article 14 is not attracted
in the present case. As Article 14 only prohibits discrimination among equals and not unequal’s.
- In pursuance of the previous argument the Corporation also contended that, the job functions performed Air Hostesses are entirely different from the other crew members.
- Having regard to the prevailing hindrances a woman may face post marriage and during pregnancy the bar in the regulations is to be considered as a reasonable restriction.
- They also submitted that, if the regulations are removed the Corporation might have to face a lot of working irregularities such as looking for substitute Air Hostesses when the already appointed ones avail long term leaves for their pregnancy and other domestic needs.
Rebutting the contentions raised by Air India the respondents submitted that,
- The Air Hostesses along with other male members belong to the same class of the Flying crew and hence Article 14 is rightfully applied.
- Even if they are treated as a separate class, there is an inter se discrimination between the Air Hostesses posted in the United Kingdom and those serving in the other Air India flights.
- Further marriage, procreation are all matters of personal liberty under Article 21 and hence cannot be viewed as a reasonable restriction.
- The contention that a woman in view of strenuous work that she is called upon to perform, becomes tired or incapable of doing the work is based on pure speculation and being against the well-established facts and norms set up by the Geneva Convention is clearly inconsistent with the concept of emancipation of women. No material has been placed before the Court to prove that the efficiency of the Air Hostesses is in any way impaired at the age of 40 or 45 years so as to make a gross discrimination between the male pursers and Air Hostesses.
- Also, regulation 12 gives arbitrary and unreasonable powers in the hands of General Manager who alone can decide at his own whims and fancies if an Air Hostess can continue her work even beyond the age mentioned for retirement.
- Apart from the discrimination regarding the age of retirement, the Air Hostesses have been completely deprived of promotional opportunities available to the male members of the cabin crew.
Upon hearing the parties, the Court in order to judge whether the Air Hostesses formed a separate class out of the crew applied the following guidelines:
- the nature, the mode and the manner of recruitment of from the very start
- the terms and conditions of service of the members of the category,
- the nature and character of the posts and promotional avenues,
- the special attributes that the particular category possess which are not to be found in other classes, and the like.
By applying the above guidelines the Court was satisfied that the Air Hostesses formed a separate class, however it still denied the Corporation’s contention that they performed an entirely different job from the rest as the work put in by the members of different category has to go hand in hand to complete a successful flight travel. Further the Court struck down the provisions to the extent that it prohibited the Air Hostesses to get married or become pregnant as it was an inherent right that every woman possesses.
CONCLUSION: Even before the foundation for fundamental rights were laid down in the Indian Constitution, every individual possessed certain natural rights by virtue of being born in this world. To get married or become pregnant are such inherent rights which can never be forfeited or regulated by an external authority. Therefore, judicial pronouncements as in the present case uphold the value of such inherent rights.