PRESIDENCY UNIVERSITY

LABOUR LAW INTERNAL ASSESSMENT

AN ANALYTICAL STUDY ON AIR INDIA V.

SUBMITTED BY:
SURAJ DAS V, 20191BBL0090
YADHU KRISHNA, 201910107
SUBMITTED TO:
PROF. PALLAVI

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 TABLE OF CONTENTS

SI NO CONTENTS PG. NO
1 ABSTRACT 3

2 INTRODUCTION 4-5
 RESEARCH QUESTIONS
 RESEARCH OBJECTIVES
 RESEARCH METHODOLOGY
 SCOPE OF THE STUDY
3 CASE STUDY 6-7
 FACTS OF THE CASE
 RULE OF LAW
 VERDICT
4 CONSTITUTIONAL IMPLICATION 8-9
 ARTICLE 14
 ARTICLE 15
 ARTICLE 16

5 CASE ANALYSIS 9

6 Whether clause C of regulation 46 is violative of articles 10-11

7 Whether regulation 47 was violative of Article 14 12

8 CONCLUSION 13

9 SUGGESTIONS 13

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ABSTRACT
The 30-year-long fight of air hostesses to reclaim their equality and rights began with the first
lawsuit, "Air India v. Nargesh Meerza." Two Air India Employees' Service Regulations have
been contested in this instance. They were numbered 46 and 47. This occurred as a result of
their discrimination. Articles 14, 15, and 16 were violated by these restrictions. The court's
ruling draws attention to the shortcomings in Indian courts. Many other instances based on
the same problems surfaced after this one, improving the circumstances for the air hostesses.
This research study examines this particular instance. The study will examine the reasons
behind the rules' violations of Articles 14, 15, and 16. Additionally, the research paper will
make an effort to comprehend the limits of the ruling rendered by the Indian Supreme Court
and the rationale behind its criticism. Finally, the researcher will examine the prior instances
that had the same concerns and the current case's verdict.

KEYWORDS: DISCRIMINATION, ART. 14, 15,& 16.

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INTRODUCTION

Discrimination occurs due to gender, language, diverse cultures, and different regions.
However, this kind of discrimination called gender-based discrimination is still quite popular
in modern civilized societies nowadays. Sex discrimination remains a deep-rooted problem in
society despite its modernization, which often follows the practices from olden days. This
discrimination has shown a persistent character that makes obvious its reluctance to equality
and neutrality. This kind of bias manifests itself most commonly in workplace discrimination
targeting on women. The patriarchal elements persistently depict women are inferior hence
their subordinate placement in our society 1. The underlying stereotype withholds female
rights to economic and political existence. As a result, women are constantly fighting for their
rights and chances that these systematic hindrances pose to them.

Discrimination against women at workplace takes different forms such as treating them with
disrespect because of their gender, paying them less than men for identical jobs, and not
hiring ladies depending upon their marital state or expectancy 2. Although our constitution
contains many legislations that are supposed to protect women’s rights, the problem is that
most of them are not properly implemented. Women are hampered by a challenge that
includes low awareness and poorly executed enforcement in many sectors.

Presently3, this represents an instance of gender discrimination which was rooted in the belief
that women were by default inferior to men and thus led to systematic discrimination. The air
hostess lost the long drawn out case with the court ruling that she could not cite
discrimination in terms of unequal retirement ages for men and women. Female attendants
were required to retire at 35 but men had age limit of up to 58. In response to a petition, the
Government of India passed legislation in 1989 that made it safe for a female attendant or
ground staff to work post 35 to 58 years as well. Thereafter, Air India stated in 1990 that its
air hostesses would be permitted to work on earth when they attained 45 years of age. The
age limit was further raised to 50 years conditionally on an employees’ suitability for flying
duties in 1993. The subsequent legal proceedings and hearings before the “National Industrial
Tribunals” resulted in declaring those two policies illegal and, thus, withdrawn. Just like this,
rule 47 was questioned because of giving out too many powers without any clear parameters
to enforce these powers.
1
Equalityhumanrights.com. 2022. Article 14: Protection from discrimination | Equality and Human Rights
Commission.
2
Id
3
Air India v. Nargesh Meerza, [1978] 2 SCR

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RESEARCH QUESTIONS

 “Whether Regulation 46 & 47 are violative of Articles 14,15, 16 of the Constitution of

RESEARCH OBJECTIVES

 To analyze the facts and the judgment of the case of “Air India vs. Nargesh Meerza”
and form a conclusion on the basis of our analysis.
 To examine whether the laws regarding social welfare is implemented properly
 To evaluate the need fro labour reformations other than relying on fundamental rights
of individuals.

RESEARCH METHODOLOGY

A qualitative form of research was found to be suitable and appropriate to analyse the cases.

The primary source is the case as its whole. The secondary sources for the research include

opinions and articles from varied and reputed individuals from the field of law. There has
been

a usage of journal articles, newspaper reviews, interviews, online databases, and various other

sources that give us insight into the rule of the case. A combination of descriptive, conceptual

analysis, and analytical research design has been employed in the course of this study to
come

out with appropriate advancements.

SCOPE OF RESEARCH

This research paper is mainly an analysis of the case “Air India v. Nargesh Meerza.” The
paper also analyzed the law and its applicability in the case. Cases preceding the present case
were also analyzed. The paper also includes other cases based on the same issue.

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FACTS OF THE CASE

The case Air India vs. Nargesh Meerza 4 is about regulations 46 and 47 of ‘Air India
Employees Service Regulations.’ These regulations contended because they caused inequality
between the male and female cabin crew. Both the regulations were discriminatory on various
grounds including the different retirement ages for male and female cabin crew, payment and
promotional avenues, and conditions related to the termination of Air Hostesses. The
regulations also specified different operational grounds for air hostesses working in
International and domestic circuits. The male and female cabin crew were also called
differently, the male cabin crew were known as Air Flight Pursers (AFPs.), and the female
cabin crew were known as the Air Hostesses (AH). The major issue of the case was regarding
the age of retirement for air hostesses and air flight pursuers. This is specified under
regulation 46. It specifies the retirement age for men as 58 years but for women was 35 years.
But the female cabin crew had to retire on grounds of marriage or pregnancy. Another
important issue raised was regarding the discretionary powers of the Managing

Director given under regulation 47 of the Air India Employees Services. This regulation
specifies that the managing director at his discretion can increase the retirement age.

RULE OF LAW

ARTICLE 145 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(16) OF THE CONSTITUTION OF INDIA

“The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, and place of birth or any of them.”

ARTICLE 167 OF THE CONSTITUTION OF INDIA

4
Id
5
INDIA CONST. art. 14,
6
INDIA CONST. art. 15, Cl. 1
7
INDIA CONST. art. 16,

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“Equality of opportunity in matters of public employment”

“Article 16(1): There shall be equality of opportunity for all citizens in matters of
employment

under the State.”

REGULATION 46 AIR INDIA EMPLOYEES SERVICE REGULATIONS

“Retiring Age:

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 EMPLOYEE'S 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.”

VERDICT

The Supreme Court in its judgment did not completely strike down both regulations. The
Court partially struck down the clauses of regulation 46 and completely struck down
regulation 47. The conditions regarding retirement and pregnancy were ordered to be struck
down as it was unconstitutional but the clause regarding marriage was not ordered to be
struck down as it was constitutionally valid. It was also recommended by the court to amend
the pregnancy clause and change the retirement criteria to third pregnancy than the first
pregnancy. This suggestion was made on the reason of public health. The Court also held
regulation 47 unconstitutional as it suffered from the excessive delegation and also proper
guidelines were not prescribed for the same. Regulation 47 therefore also had to be struck

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down.

ARTICLE 14 OF THE INDIAN CONSTITUTION

Article 14 of the Indian Constitution declares that "The State shall not withhold from any
individual equality before the law or the equal protection of the laws within the territory of
India."8 The primary aim is to ensure impartial treatment of all citizens. Article 14 comprises
two key elements: 'equality before the law' and 'equal protection of the law.' Equality before
the law signifies that every person should be treated without discrimination, irrespective of
factors such as wealth, gender, or caste. It is incumbent upon the state not to grant special
privileges to any segment of society. Equal protection of laws is a constructive concept,
emphasizing that all citizens should enjoy uniform treatment and safeguarding. The state is
obligated to prevent infringements on citizens' rights and ensure equitable treatment, as
highlighted in the case of "Stephens College v. The University of Delhi." 9 In this instance, the
central concern was the alleged preferential treatment given to Christian students in the
admission process of a minority institution. The court also held that using different admission
processes for different categories of students is not violative of article 14. This differential
treatment is required for students belonging to minority sections.

The right to equality is not an absolute right. It is subject to several exceptions. This issue has
been raised in the case “State of West Bengal v. Anwar Ali Sarkar” 10, where the state was
accused of using arbitrary power to refer to any case made by them in the Special Court. The
Court ordered the act of the state violative of article 14.

ARTICLE 15 OF THE INDIAN CONSTITUTION

Article 14 talks about equality and equality can be ensured only when discrimination is
absent. Article 15 thus ensures that discrimination is absent. Article 15 consists of six
different clauses. First clause prohibits discrimination only on 5 grounds. It talks about how
discrimination can be prohibited. Article 15(1) states that the “state shall not discriminate
against any citizen on grounds only of race, religion, caste, sex, and place of birth.” The term
8
Constitution of India § 14.
9
Stephens College v. The University of Delhi.1992 AIR 1630
10
State of West Bengal v. Anwar Ali Sarkar ,1952 AIR 75

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“discrimination” is the process of differentiating between favorable and unfavorable people.
“It thus involves an element of unfavorable bias. This is because of the term “only”, due to
which the state cannot discriminate against people only on the five grounds but can
discriminate against people on any other grounds. Therefore, discrimination on grounds other
than the one mentioned in article 15(1) is not violative of article 15.”11

The major difference between articles 14 and 15(1) is that article 14 applies to both citizens
and non–citizens but article 15(1) applies only to citizens. Article 14 is a wider article
whereas article 15(1) is narrower in several aspects. “Another major difference between these
two articles is that article 14 permits reasonable classification on the basis of any rational
criterion whereas under Article 15(1) the grounds mentioned can never form the basis of the
classification.”12

ARTICLE 16 OF THE INDIAN CONSTITUTION.

This article ensures that citizens are provided with equal opportunities in all matters related to
employment in the public sector and private sectors. Under Article 16(1), “citizens are
guaranteed equal opportunities both in employment and for office under the state.” The
statement “any employment or office under the state” implies that this clause is applied to
employment in both the public and the private sector. Article 16(1) and 16(2) provides
provisions for equal opportunities on the other hand article 16(3) and 16(4) are the exceptions
that state the circumstances where the state can treat people unequally.

ANALYSIS OF AIR INDIA V. NARGESH MEERZA.

The Air Hostess of Air India Corporation has faced a lot of struggle for gaining back their
rights and equality. The 30-year-long struggle is filled with various cases before the courts
and tribunals. The cases also involved several stages. “Air India v. Nargesh Meerza”13 is the
first case of the struggle. In this case regulations, 46 and 47 of the Air India Employees
Service Regulation were challenged. It was argued that both these cases were discriminatory
in nature. Regulation 46 was regarding the retirement ages of women and men. The
retirement ages were different for men and women. “For the male cabin crew it was 58 years
on the other hand for the female cabin crew it was 35 years, on their first or on marriage
within 4 years of the service, whichever was earlier.” These conditions on women were
considered violative of articles 14, 15, and 26. Regulation 47 was also considered violative of

11
MP Jain, Indian Constitutional Law, pp. 933
12
Id

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articles 14, 15, and 16. This is because this regulation granted discretionary powers to the
manager. Thus the manager had a choice to extend the service of the air hostess by his own
choice by five or ten years.

Whether clause C of regulation 46 is violative of articles 14, 15, and 16.

Clause C of Regulation 46 specifies that an air hostess should retire from her service on
“attaining 35 years, or marriage within four years joining of the service or on her first
pregnancy, whichever is earlier.”14 It was argued that this clause of regulation was violative
of articles 14, 15, and 16.

1) Marriage Condition.

According to the regulation, an air hostess should retire from her service if she gets married
within 4 years of her service. Generally, a woman begins her career between the ages of 19-
26. Also, very few women decide to marry at such a young age and immediately after joining
the service as many air hostesses possess higher qualifications than the minimum required
qualification that is SSC. Therefore, if an air hostess joins the service at the age of 19, she
could retire from her service at 23 and then she could marry. The regulation is not
implementing a complete ban on the marriage of air hostesses but only for a certain period.
The air hostess could also marry within those four of joining their service but they would
have to retire from their service. If the corporation removes this clause, then they would have
to incur huge expenditures for employing temporary air hostesses in place of the working air
hostesses who would be on leave. This would be very difficult for the company to bear huge
expenditures within a very short period of joining the air hostesses which is 4 years. Thus, for
the above reasons, the condition “should retire on marriage within four years of the service”
is valid and not violative of article 14. This is mainly because the clause is not based on any
arbitrariness or unreasonableness.

2) Pregnancy clause.

Another condition imposed on the air hostesses is that they should retire from their service on
their first pregnancy. The corporations stated that this condition is valid because pregnancies
may lead to many complications and medical disabilities which will lead to the inefficient
discharge of the duties by the air hostesses. It was also argued that the usual women in the
early stages of pregnancy get sick due to the high air pressure and may also develop nausea
due to long flight hours. The company also claimed that while employing women as post-air

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hostesses, a lot of importance is given to their glamour, charm, appearance, and youth so as to
provide an attractive and satisfying service to the passengers. This is very much required in
the competitive world of today. This is the reason why the air hostesses are asked to retire
from their service after their first pregnancy as women after giving birth to the child may lose
their physique, appearance, and glamour. However, this argument is baseless and is thus
violative of article 14 as the reasons given by the company are based on unreasonable
classification between the same class of people that is women who got married and have
borne a child and women who are not married or are married but have not borne a child. It
was also claimed by the company that once a pregnant woman is allowed to continue in the
service, she needs to be given maternity leave for a period of 14 to 16 months under the
maternity benefits act, of 1961. This would again become difficult for the company to employ
another temporary air hostess in her place as it will lead to huge expenditure.

3) The condition where retirement age of the air hostesses is 35 years.

The minimum age of retirement for air hostesses is 35 years. This is mentioned in regulation
46. But the minimum age for air flight pursuers is 58 years. This was challenged in the court
as the retirement age for the male and females were different and thus amounting to
discrimination. The company argued that the reason for employing young women in the
service is to attract customers so that they will be happy with the service of the airline
company. This will in turn increase the profits of the company. Thus, the company gives
more importance to glamour and appearance. From the company’s statement, it can be
assumed that women will lose their glamour and appearance after attaining the age of 35
years. This statement of the company is baseless and discriminates against women. It was
also very surprising to hear the same arguments given by the Khosla and Mahesh Tribunals.
The argument by Khosla's judgment was that the air hostesses are needed to deal with
passengers with a different character. Thus it would easy for “young and attractive” air
hostesses to manage and settle difficult and awkward situations more efficiently and without
any prejudice than older women or air hostesses above the age of 45. The argument by the
Khosla Tribunal is also not sensible as the older women would be able to solve such difficult
situations more efficiently than the young air hostesses. The argument given by the Mahesh
tribunal was also the same as the arguments by the company and Khosla tribunal. Both the
tribunals and the company gave more importance to smartness and beauty but what is
required to settle the disputes between the passengers is greater experience and goodwill
which will be available to older women than young women. Thus older women are more

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capable to solve disputes than younger air hostesses. Therefore, this clause is also violative of
Article 14 as the arguments of the company and the tribunals are baseless and discriminate
between the same class of people. Therefore, this clause of the regulation was also removed.

Whether regulation 47 was violative of Article 14

The general rule of Regulation 47 of the Air India Employee Service Regulations is that the
employees if medically fit, can extend their service by one year after their period of
retirement but only at the discretion of the managing director. This extension cannot be for
more than 2 years. This rule is applicable only to the employees who retire at the age of 58
years that is the air flight pursers and the other male cabin crew and staff. The exception to
this clause is the air hostess and receptionists. Their service also can be extended but only at
the discretion of the managing director. The only difference between the air flight pursuers,
air hostesses, and receptionists is that the maximum extension for male officials is 2 years but
for the air hostess and receptionists it is ten and five years respectively. Therefore, if an air
hostess is medically fit, she can extend her service to 45 years with yearly extensions by the
managing director. But this clause has not been properly implemented. This is mainly due to
the unguided, unrestrained, and absolute discretion given to the managing director. The
statement “at the option of the party” in regulation 47 specifies that the managing director has
the option to approve one air hostess and disapprove another. This will lead to discrimination
among the air hostesses. The regulation also does not provide a proper mechanism through
which the managing director can exercise his discretion. The managing director also need not
specify the reason for not approving the extension of the retirement period as an air hostess.
The air hostesses also do not have the right to file an appeal in the higher courts against the
decision of the managing director. Thus, according to this regulation, the air hostesses, were
under the control of the managing director’s decision regarding the extension of their
retirement period. Therefore, this regulation is violative of article 14 of the Indian
constitution as it confers unrestrained and unguided powers to the managing director and also
suffers from an excessive delegation of powers.

Thus, the clause where the managing director had discretionary power over the extension of
the retirement period of the air hostesses was struck down as it was invalid and was violating
article 14. The removal of this clause would increase the age of air hostesses to 45 years. The
managing director would not also have the discretionary power over the extension of the
retirement period of the air hostesses and would be bound to extend their period on a yearly

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basis of up to ten years if the air hostess is medically fit. This would prevent the managing
director from discriminating between the air hostesses.

CONCLUSION

It took the air hostesses many years to gain their right to equality at their workplace. This
struggle is an example of what women face in different sectors of society. Even though our
Constitution provides for the right to equality and protection from discrimination, women in
patriarchal societies still find it difficult to use these rights. This can be understood from the
30-year struggle of the air hostesses involving various cases and judgments. But in the end,
the female cabin crew achieved their goal and finally got back their fundamental rights.

SUGGESTIONS

The judgment of the Supreme Court in the case “Air India v. Nargesh Meerza”23 brings no
equality between the male and female cabin crew. It also upheld the discrimination between
the male cabin crew and female cabin crew based on the reason that both belong to different
cadres. Due to this both of them will have different rules and conditions and therefore, the
regulations are not violative of articles 14, 15, and 16. Though this reason by the Court is true
according to the Labour Law and Service Rules the court failed to observe that the regulation
was discriminating between the male and female cabin crew based on sex only and no other
consideration was used. Therefore, the regulation will be violative of articles 14, 15, and
16.The court also upheld the clause where the air hostesses are required to retire if they marry
within four years of their service based on the reason that it would cause a financial burden to
the company to employ other temporary air hostesses. This clause is violative of articles 14,
15, and 16 as it is laying a restriction on marriage for women. Air hostesses despite having
several years of experience were not given higher positions like the male air flight pursuers.
Female air hostesses with years of experience were forced to answer inexperienced flight
pursers, assuming their inferiority based on their gender.

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