By Akanksha Singh
In the Supreme Court of India
|NAME OF THE CASE||Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc|
|CITATION||1981 AIR 1829, 1982 SCR (1) 438|
|DATE OF JUDGMENT||28 August, 1981|
|APPELANT||Air India Etc. Etc.|
|RESPONDENT||Nergesh Meerza & Ors. Etc. Etc.|
|BENCH/JUDGE||Fazalali, Syed Murtaza|
|STATUTES/CONSTITUTION INVOLVED||Constitution of India Air India Employees Service Regulations|
|IMPORTANT SECTIONS/ARTICLES||Constitution of India – Article 14, 15, 16 Air India Employees Service Regulations – Section 25|
Regulations 46 and 47 of the Air India Employees Service Regulations were challenged in the case. With the challenge based on the fact that the aforementioned legislation established a significant difference between male (referred to as Air Flight Pursers) and female (Air Hostesses). The Supreme Court heard the matter in the form of a writ petition. Previous versions of the lawsuit were brought before National Industrial Tribunals (the Khosla Tribunal in 1965 and the Mahesh Tribunal in 1972).
Gender discrimination is one of the most heinous sins of most modern societies. However, there is global progress, and most cultures have transformed themselves to achieve modernity. However, there is still a flaw in people’s thoughts that allows them to discriminate on the basis of gender. Individuals have prejudices towards other people. They favour the in-group and have a skewed picture of the outgroup. People are reluctant to adopt this language of equality and impartiality since it is rooted in ancient times. Discrimination arises due to a variety of variables such as geographical disparities, cultural differences, gender, language differences, and so on. Gender discrimination is defined as uneven treatment of a person or group of people based on their gender or sexual orientation.
Gender inequality or uneven treatment has long been a source of contention in Indian society. This occurs not just in the social world, but also in the business or any other formal organisation. Although many legislation have been enacted to combat this expanding threat, the crucial issue is execution. Raising awareness and disseminating knowledge on women’s rights may certainly help in the drive to create a gender-neutral society in which everyone is treated equally in all aspects, including the right to freedom and liberty. Now, gender disparity in the workplace is no different from societal inequality. This also treats people differently based on their gender or sex.
As we can see, no arena exists for women in which she does not suffer. In one way or another, women is viewed as inferior to males and consequently discriminated against. Air India v. Nergesh Meerza & Ors is one such case demonstrating gender discrimination and injustice.
FACT OF THE CASE
So, from the outset, there were two corporations: Indian Airlines and Air India International. As a result, two corporations were formed: A.I., or Air India Cabin Crew, and IAC, or Indian Airlines Corporation Cabin Crew. The two corporations were part of the same organisation, which was established under the 1953 Act. In addition, the A.I. conflict was submitted to Justice Khosla in the Khosla Tribunal, while the disagreement between the I.A.C. and its workers was referred to Justice Mahesh Chandra in the Mahesh Tribunal.
According to the circumstances, the appellant challenged the service regulation that obliged air hostesses to retire upon marriage, their first pregnancy, or the age of 35, whichever occurred first. The responses of the airline authorities underlined the importance of physical beauty, youth, glamour, and so on as vital criteria for in-flight service. Initially, the business decided that airhostesses would retire at the age of 50 with a choice of ground jobs. In comparison to male employees who were to retire at the age of 58, this was later challenged as a violation of Articles 14, 15, and 16 of the Indian Constitution, as well as certain clauses of the Equal Remuneration and Air Corporation Acts. The Bombay High Court issued an order based on the suggestions presented, laying out particular factors that are not gender discriminatory and stating that both male and female cadres would be given the choice of retiring at the age of 50 or 58. However, many employee groups, notably airhostesses, opposed the High Court’s decision, claiming that it would jeopardise their seniority and promotional opportunities, which are exclusively controlled by agreements.
A writ petition was subsequently filed in the Honorable Supreme Court challenging regulations 46 and 47 of the Air India Employees Service Regulation. This was done in order to have these regulations overturned because they disproportionately affected men and women in terms of promotion, retirement age, and termination for reasons such as pregnancy or marriage.
ISSUES RAISED BEFORE THE COURT
- Do clauses 46 and 47 of the Air India Employees Service Regulations completely or partially violate the Indian Constitution’s Articles 14, 15, and 16?
- Can the managing director’s exercise of the discretionary powers listed in Regulation 47 be viewed as an undue transfer of authority?
ARGUMENTS RAISED BY THE APPELLATE
· Learned counsel for the appellant contends that the Air Hostess employed by one firm or another from the same class of service as the AFPs and other cabin crew members, performing equal or comparable responsibilities, and so any discrimination made between these two employees who are similarly situated was plainly in violation of Article 14.
· In the instant matter, it is an admitted position that apart from women being discriminated against in terms of retirement age, AHs have been denied any promotional chances offered to male cabin crew personnel.
· Learned counsel for the petitioner submitted that the Corporation has specifically targeted the AHs for hostile discrimination, primarily on the basis of sex or limitations related to sex, and so the restrictions constitute a clear violation of Articles 15 and 16. (4) The termination of AHs services for pregnancy or marriage within four years is plainly unjustified, arbitrary, and in violation of Article 14.
ARGUMENTS RAISED BY THE RESPONDENT
· Learned counsel for the respondent submitted that according to the nature of their jobs, the way they were hired, their qualifications, their opportunities for advancement, and the circumstances surrounding their retirement, AHs are in a class apart from pursers, so there is no question of discrimination or a violation of Art. 14, which would apply if there is discrimination among members of the same class inter se.
· Learned counsel for the respondent submitted that Since the hiring of AHs is truly based on sex, Art. 15 (2) of the Constitution is not applicable because it is influenced by many other factors in addition to sex.
· Learned counsel for the respondent submitted that given the conditions in India and the repercussions of marriage, the ban on pregnancy and marriage is unquestionably a legitimate limitation imposed in the public interest.
Article 14 of the CONSTITUTION OF INDIA
Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Article 15(1) Of the CONSTITUTION OF INDIA
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 of the CONSTITUTION OF INDIA
Equality of opportunity in matters of public employment
Regulation 46 Air India Employees Service Regulations
Subject to the provisions of sub-regulation (ii) hereof an employee shall retire from the service of the Corporation upon attaining the age of 58 years, except in the following cases when he/she shall retire earlier:
(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 of Air India Employees Service Regulations
Extension of Service.
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.”
The Supreme Court overturns the High Court’s finding and order, condemning it for using an unusual technique and manner not prescribed by law. According to the Supreme Court, the High Court avoided the binding ration of this matter and ignored the existing agreements. Furthermore, the court vigorously rejects the respondent’s contention that women after the child’s birth seem to leave job or their husband does not allow them to work, thus making it necessary to have a lower age limit for their retirement, also for example, these can take place in the absence of children, thus these assertions are prima facie baseless.
The Supreme Court further advises that the pregnancy provision be amended so that the criteria of retirement following the birth of the third child replaces the present language, which is based on public health grounds. The Supreme Court now outlines the different articles referred to in this case in its decision.
As a result, the Supreme Court ruled that the articles concerning retirement and pregnancy were immoral and illegal, and it ordered that they be repealed. Furthermore, the powers assigned to the Managing Director by Regulation 47 are excessive, potentially leading to situations of discriminatory behaviour. As a result, it claims that the Managing Director’s powers are so broad that they violate Article 14 due to excessive delegation.
Opinion of the Judge
- After relying on numerous judgements, Justice Fazal Ali issued an opinion on the issue of discrimination under Article 14 of the Indian Constitution, stating that a difference must be made between “discrimination with reason” and “discrimination without reason.” Circumstances regulating one group of people or items may not always apply to another set of people or objects, therefore the issue of uneven treatment does not arise here. Justice Ali based his decision on the cases of the State of Punjab v. Joginder Singh, Sham Sunder v. UOI, and Western U.P. Electric Power and Supply Co. Ltd. V. The State of Upper Michigan and many other cases, held that where the employment conditions, promotion procedure, working methods, and service terms differ, i.e. the AFPs and AHs belong to different classes, there can be no question of discrimination or unequal treatment because unequal classes can be treated unequally, and thus there is no discrimination between AFPs and AHs under Article 14 of the Indian Constitution. Furthermore, while the terms of service in terms of retirement, etc. varied, these do not violate Article 16 of the Indian Constitution. The restrictions appear to be discriminatory not just on the basis of gender, but also on other grounds. As a result, the law does not violate Article 15 of the Indian Constitution, according to Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy Laljee.
- Concerning the age of retirement and the power of the Managing Director to extend an employee’s retirement, Justice Ali stated that the retirement age cannot be fixed on a cut and dried formula and must be determined from individual to individual based on a medical test, as well as a variety of factors and various circumstances. According to Lala Hari Chand Sarda v. Mizo District Council, a law that grants authorities undue discretionary power is irrational and violates Article 19(1)(g) of the Constitution. The aforementioned regulation 47 was declared illegal by Justice Ali because it allowed the Managing Director unfettered, unguided, and unlimited authority.
Gender discrimination impedes women’s general growth and development in modern society. Back at home, a woman’s quest for a stress-free existence is already hampered by patriarchal constraints. According to the circumstances of the current case, the retirement age of air hostesses was set at 35 years due to the incorrect idea that women at that age seem youthful and glamorous. And, when it comes to pregnancy or marriage, the retirement is unreasonable and breaches the basic rights of women as enshrined in Articles 14, 15, and 16 of the Indian constitution. So, if we closely examine the Court’s decision, it is evident that the regulatory provision was, of course, in violation of the basic rights of women under Articles 14, 15, and 16 of the Indian Constitution, and so orders them to be struck down. Also, for the same reason, Regulation 47 was determined to have flaws since it granted the Managing Director vast discretionary powers that needed to be reined in. Finally, we realise that there is an urgent need to address the issue of gender disparity so that all people can use the rights guaranteed to them by the Indian constitution. Both men and women are equal, and communities that adhere to this standard live in harmony. Gender equality is also a human right, and it benefits everyone.
 Author is 4th semester student of ICFAI University, Dehradun.
 Article 14 in the Indian Constitution, https://indiankanoon.org/doc/367586/
 Article 15(4) in the Indian Constitution, https://indiankanoon.org/doc/1942013/
 Article 16 in the Indian Constitution, https://indiankanoon.org/doc/1011960/
Regulation 46 of Air India Employees Service Regulations, https://www.airindia.in/service_regulations_for_flying_crew
Regulation 47 of Air India Employees Service Regulations, https://www.airindia.in/service_regulations_for_flying_crew
 State of Punjab v. Joginder Singh, 1963 AIR 913, 1963 SCR Supl. (2) 169
 Sham Sunder v. UOI, 1969 AIR 212, 1969 SCR (1) 312
 Western U.P. Electric Power and Supply Co. Ltd. V. The State of Upper Michigan, 1970 AIR 21, 1969 SCR (3) 865
 Yusuf Abdul Aziz v. State of Bombay and Husseinbhoy Laljee, 1954 AIR 321, 1954 SCR 930
 Lala Hari Chand Sarda v. Mizo, 1967 AIR 829, 1967 SCR (1)1012