AIR INDIA CABIN CREW ASSN. Vs UNION OF INDIA .
Bench: ALTAMAS KABIR,CYRIAC JOSEPH
Case number: C.A. No.-009857-009861 / 2011
Diary number: 31265 / 2007
Advocates: PRAMOD B. AGARWALA Vs
PUKHRAMBAM RAMESH KUMAR
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.9857-9861 OF 2011 (Arising out of SLP(C)Nos.20668-20672 of 2007)
AIR INDIA CABIN CREW ASSN. & ORS. … APPELLANTS
Vs.
UNION OF INDIA & ORS. … RESPONDENTS
WITH CIVIL APPEAL NOS.9862-9865 OF 2011
(Arising out of SLP(C)Nos.20679-20682 of 2007)
AND CIVIL APPEAL NOS.9866-9871 OF 2011
(Arising out of SLP(C)Nos.20773-20778 of 2007)
2
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
3
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
4
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
5
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
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.
7
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
8
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
9
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
10
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
11
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
12
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
13
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
14
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
15
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
16
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
17
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
18
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.
19
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
20
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 :
21
(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?
22
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?
23
(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
24
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
25
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
26
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
27
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
28
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
29
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,
30
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/
31
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,
32
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
33
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
34
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.
35
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
36
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
37
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
38
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
39
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
40
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
41
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
42
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
43
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
44
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
45
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,
46
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.
47
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
48
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.
49
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
50
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
51
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
52
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
53
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
54
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
55
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.
56
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.
57
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
58
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
59
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.
60
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
61
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
62
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
63
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-
64
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
65
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
66
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
67
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
68
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
69
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
70
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