Anee Patricia Dyook Etc. Etc. vs Indian Airlines Ltd.
2008 Latest Caselaw 874 Del

                      Reportable
      *IN THE HIGH COURT OF DELHI AT NEW DELHI

+LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007
            and Cont. Case No.514/2007

                                                 Reserved on: 6th May, 2008
                                             %Date of Decision: 06 June, 2008

                                 LPA No.1050/2007

ANEE PATRICIA DYOOK                ...Appellant
            Through: Mr. Arvind Kumar Sharma, Advocate.
                Versus
INDIAN AIRLINES LTD.
    ...Respondent
                 Through: Mr. Gopal Subramaniam, ASG
                 with Mr. Abhishek and Ms. Suruchi Suri,
                 Advocates for the respondent.


                                 LPA No.1052/2007

SHEELA JOSHI & ORS.                      ...Appellant
            Through: Mr. Arvind Kumar Sharma, Advocate.
                Versus
INDIAN AIRLINES LTD.
    ...Respondent
                 Through: Mr. Gopal Subramaniam, ASG
                 with Mr. Abhishek and Ms. Suruchi Suri,
                 Advocates for the respondent.

                                 LPA No.1049/2007

SHIVANI MATHUR & ANR.
     ...Appellant
              Through: Mr. Arvind Kumar Sharma, Advocate.
                  Versus
INDIAN AIRLINES LTD.
    ...Respondent
                   Through: Mr. Gopal Subramaniam, ASG
                   with Mr. Abhishek and Ms. Suruchi Suri,
                   Advocates for the respondent.




LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007
and Cont. Case No.514/2007
                                                                 Page 1 of 29
                                  LPA No.1045/2007

KIRAN CHAUDHARY                  ...Appellant
           Through: Mr. Arvind Kumar Sharma, Advocate.

                Versus
INDIAN AIRLINES LTD.
    ...Respondent
                 Through: Mr. Gopal Subramaniam, ASG
                 with Mr. Abhishek and Ms. Suruchi Suri,
                 Advocates for the respondent.

                                                AND

                        CONT. CASE (C)No.514/2007

SHEELA JOSHI & ORS.               ...Appellant
            Through: Mr. Arvind Kumar Sharma, Advocate.

                              Versus

INDIAN AIRLINES LTD.
    ...Respondent
                 Through: Mr. Gopal Subramaniam, ASG
                 with Mr. Abhishek and Ms. Suruchi Suri,
                 Advocates for the respondent.


CORAM :-

THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.        Whether Reporters of Local papers may be allowed to
          see the Judgment?
2.        To be referred to the Reporter or not?
3.        Whether the judgment should be reported in the
          Digest?

A.K. SIKRI, J.

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

. These appeals arise out the judgment dated 31st May

2007 passed by the learned Single Judge dismissing the

Writ Petitions.

2. The relevant facts of these cases in brief are as under:-

Facts:

2.1 The appellants are working as Air Hostesses with the

respondent/Indian Airlines (hereinafter referred to as

„the Airlines‟). The appellants were initially appointed as

Trainee Air Hostesses. The appointment letter issued to

the Air Hostesses provides that the appointee, during her

tenure, would be governed by the Indian Airlines Service

Rules applicable to flying crew and standing orders

concerning discipline and appeals as framed and

amended by the Indian Airlines from time to time. Clause

9(ii)(b) of the said appointment letter clearly provides

that the services of the appellant are liable to be

terminated if she does not maintain weight within the

prescribed limits.

2.2 The weight requirements were prescribed by the

respondent Indian Airlines initially in 1981. The chart

indicates the range of weight to be maintained by the Air

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

Hostesses. There was no discretion in relaxation of

weight from 1981 to 1987.

2.3 Vide circular dated 4th November 1987, respondent

Indian Airlines provided that the revised height, weight,

age chart was under preparation. The circular further

provided that if the crew members‟ weight exceeded

10% of the outer limit prescribed, then he or she would

have to be taken off flying duties and be treated on leave

or leave without pay till she attained the standard

weight.

2.4 On 11th May 1990, another circular was issued by Indian

Airlines stating that where excess weight was over 10%

of the standard weight, such Cabin Crew should be taken

off duties with immediate effect and be given a letter to

reduce the standard weight by a specified period.

2.5 On 4th June 1990, Memos were issued to the overweight

cabin crew including the appellant in LPA No.1052/2007

pointing out that their weight was in excess of the

prescribed standards.

2.6 On 25th December 1990, letters were issued to the

overweight Cabin Crew including the appellant in LPA

No.1052/2007 advising them for a medical check. The

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

appellant in LPA No.1052/2007 was found overweight by

4.5kg.

2.7 On 17th September 1991, a revised height-weight chart

was issued by Indian Airlines. It further provided that

10% grace allowed in 1987 was no longer in existence.

2.8 On 16th October 1991, a circular was issued by Indian

Airlines to the effect that all overweight and underweight

personnel must come within the prescribed limit by 31st

December 1991.

2.9 On 6th June 1996, another circular was issued by Indian

Airlines to the effect that overweight Cabin Crew shall be

taken off flying duties and treated as on leave or leave

without pay. The circular further provided for additional

grace limit of 10 kg. This was followed by circulars

dated 12th August 1998, 13th November 1998, 20th May

1999, 9/10 August 1999, 3rd January 2000 and 31st

October 2000 by which the limits of relaxation of

overweight were provided.

2.10 On 4th May 2006, a circular was issued by Indian Airlines

withdrawing the 3 kg grace weight limit w.e.f. 15th

January 2006 and grounding of the overweight crew

members without pay. This was followed by circulars

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

dated 17th May 2006 and 5th June 2006. The withdrawal

of weight of 3 kg grace limit was finally enforced from 1st

July 2006.

The Challenge:

3. The appellants challenged only the circular dated 4th May

2006 by filing Writ Petitions. The appellants further

prayed that they may be allowed to do flying by

implementing 10% grace of the upper limit weight as

allowed by circular dated 4th June 1990. The appellants

also prayed for salary during the period they were

grounded without pay due to excess weight.

Judgment of the learned Single Judge:

4. These writ petitions came before a learned Single Judge

of this Court and by a common judgment dated

31.5.2007, the learned Single Judge has dismissed all

these petitions.

4.1 After stating the necessary facts, which we have

already delineated above, the learned Single Judge noted

that it was known to the appellants herein that they were

to maintain body weight standards as laid down by the

Airlines from time to time, which was made a condition

of their appointment which they accepted. Thus, this

condition was fructified into a consensual contract

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

between the parties. The Airlines did soft peddling by

giving relaxations to these prescribed weight standards

from time to time and ultimately withdrew these

concessions by the impugned order. Merely because the

appellants were enjoying those concessions earlier,

which were withdrawn, would not give them any legal

right to challenge the withdrawal of these concessions.

4.2 The learned Single Judge also held that the

appointment letter categorically provided that if the

crew members did not maintain the weight within the

prescribed limits, their services were liable to be

terminated. They were bound by this condition

contained in the said appointment letter.

4.3 The contention of the appellants herein that Regulation

No.12 of the Airlines Flying Crew Service Regulations

only provided that the cabin crew should be medically fit

and as the appellant were medically fit, they could not be

grounded or deprived of their salary merely on account

of being overweight, was brushed aside in view of the

aforesaid condition in the appointment letter relating to

the maintenance of weight within the prescribed limits.

The learned Single Judge held that clause in the

appointment letter was in addition to and not in

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

derogation to Regulation No.12, which did not wash

away the terms and conditions found in the letter of

appointment.

4.4 The learned Single Judge cold shouldered another

argument of the appellants herein, namely, Air

Corporation Act, 1953 was repealed by the Air

Corporation (Transfer of Undertaking and Repeal) Act,

1994 and by virtue of Section 8 of the Repealing Act, the

employees of the Corporation as on the appointed day

were to continue to enjoy the same remuneration, terms

and conditions and same obligations as they enjoyed

before coming into force of the repeal of the Air

Corporation Act and thus, they would continue to enjoy

grace of 10% of the weight over and above the standard

weight as laid down. The learned Single Judge, while

repelling this argument, observed thus:-

"I need not go into the question whether the Air Corporation Transfer of Undertaking and Repeal Act took away the powers of the Airlines to issue Circulars because the argument proceeds on the basis that Circulars issued prior thereto alone would hold the ground. If that be so it is not understood how it is the Circular of November 1987 which will apply and not the revised chart which was issued in 1991. In any case the petitioners

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

were quiet so long as the grace of over weight upto 10 kgs was allowed and even till date do not find fault with those circulars which were issued after the repeal Act but now when no grace at all is being given and it has been completely withdrawn they are questioning the authority of the Airlines to issue the Circulars. What does this mean? It means that so long as it suited the petitioners the Airlines had the authority to issue the Circulars and when the weight chart is being strictly followed they are finding fault with it."

4.5 At the end of the judgment, while emphasizing the need

to maintain certain standards of height and weight in so

far as the flying crew is concerned, as their job profile

demanded it, the following pertinent observations are

made:-

"Lastly it is not without rationale that the flying Crew has been subjected to certain standards of height and weight. Their job profile demands it. The aircrafts fly at a very high altitude.

Quite often emergency situations arise because of air turbulence or on account of aircraft developing snag. The Cabin Crew including the Air Hostess are expected to handle the situation deftly, with alacrity and presence of mind . All this will be possible only if the Cabin Crew possesses the highest order of physical and mental fitness. And let us not forget that in this era of cut throat competition no Airlines can afford to remain lax in any department whatsoever, be it the personality of its crew members, their physical fitness in all respects or the air worthiness of the

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

air craft or in relation to other facilities such as catering etc. If keeping in view this kind of job performance the Air Hostesses are asked to battle their bulge, control their girth and keep at desired level the affluence of their body weight as per the norms, it is not understood how it is in any way unfair, unreasonable and insulting to their womanhood. It is not the Air Hostesses alone which are put to these rigours.

The other Members of the flying crew are also required to maintain a particular weight standard. If by preservance the snails could reach the ark, why can‟t these worthy ladies stand on and turn the scale."

5. Implication of undisputed matrix: Applicants bound by contractual terms:-

Most of the arguments pressed before us, legal as well as

factual, remain the same. Before we note these

submissions and deal with them, it would be necessary to

make the ground clear of admitted factual and legal

aspects inasmuch as, the arguments of the appellants

will have to be tested in the light of such undisputed

position, which is this:

5.1 All these appellants, who are Air Hostesses, were initially

offered appointment as Trainee Air Hostesses. Their

appointment letters, which contain certain terms and

conditions, are almost identically worded. Clauses 8 and

9 thereof are to the following effect:-

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

"8. While undergoing Trainee in the Indian Airlines and the appointment as Air-Hostesses, you will be governed by the Indian Airlines Service Regulations applicable to the Flying Crew and Standing Orders concerning discipline and appeals as framed/amended by Indian Airlines from time to time.

9. During the training period and on appointment as Air Hostesses, your services are liable to be terminated under the following circumstances.

I) in the event of your getting married before the specified period.

(II) If you (a) fail to maintain vision without Glasses

(b) do not maintain weight within the prescribed limits.

                                    c)      develop air sickness."

5        It is not in dispute that these terms and conditions were

accepted by the appellants, as in token of their acceptance

they appended their signatures on the appointment letters

given to them. Para (b) of clause 9 very categorically

states that in the event the appointee does not maintain

weight within the prescribed limits, her services would be

liable to be terminated. At that time, a weight chart, which

was issued in the year 1981, was operative. It provided for

the minimum and maximum weight. An Air Hostess was,

thus, required to maintain the weight within those limits.

It could neither be below minimum weight or above

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

maximum weight prescribed. This weight charge has been

revised from time to time. The learned Single Judge is,

therefore, right in holding that right from the date of their

appointment, the appellants knew that there was a

requirement for maintaining body weight standards as laid

down by the Airlines. This was one of the conditions of

appointment, which was accepted by the appellants

without any demur and/or protest. These appellants knew

very well that their services could even be terminated if

they fail to maintain weight within the prescribed limits.

The appellants are, thus, bound by this contractual

condition, which was accepted by both the parties.

5.3 The events also reveal that what happened over a period of

time was to only give relaxation/concession to the Air

Hostesses by not enforcing the said term with all its

rigour. It so happened that on November 4, 1987 the

Airlines issued a circular stating therein that the revised

height and weight chart was under preparation by the

Chief Medical Officer and that pending finalization of the

same, cabin crew should be subjected to weight chart

twice a year. In the process, some indulgence was given

as the said circular also provided that those who were

found exceeding the laid down standards up to 10% would

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

be given a letter to reduce their weight to standard weight

within the specified period. This circular issued

forewarning as well, viz., if after the expiry of that period

the cabin crew failed to come to the standard body weight,

he or she would be taken off flying duty and would be

treated on leave or leave without pay, if no leave was due,

till he or she attained the standard weight.

5.4 It appears that those who were found to be excess of

weight over and above the 10% grace, were advised to

reduce their weight from time to time but no orders

grounding them were issued.

5.5 Likewise, on June 6, 1996, a circular was issued stating

that the cabin crew who were to be grounded due to

overweight by more than 10 kgs. were to be treated on

leave up to the time they reduce their weight up to the

specified limits. This 10 kgs. limit was progressively

brought down from time to time and ultimately withdrawn.

It was reduced to 7 kgs. vide circular dated 13/17th

November, 1998, further decreased to 5 kgs. vide circular

dated May 20, 1998, and then curtailed to 4 kgs. vide

circular dated 3rd January 2000, thereafter slenderized to 3

kgs. vide circular dated October 31, 2000 and finally by

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

impugned circular dated May 4, 2006, this concession

withered away completely.

5.6 What is achieved by the circular dated May 2006 after all?

All that is done is to withdraw the indulgences given by

earlier circulars from time to time. With the withdrawal of

these dispensations and concessions, the status quo as on

the date when the appointment letters were issued,

containing terms like the spirit behind clause 9, have

sought to be restored.

5.7 Once the matter is scanned on the aforesaid touchstone,

namely, it was a consensual contractual condition between

the parties that Air Hostesses are required to maintain

weight within the prescribed limits, insistence on the part

of the Airlines that the cabin crew should keep their

weights within those limits is nothing but enforcing this

contractual condition. Therefore, it cannot be said that

such a move on the part of the Airlines is contrary to law.

5.8 We are also of the opinion that merely because earlier

some concessions were given by not adhering to the body

weight chart in stricto senso, it would not mean that

Airlines cannot now be allowed to withdraw those

indulgences. It is trite law that with such concession no

legal right accrues in favour of the other party. In the

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

absence of any legal right, the authority giving concession

has right to withdraw them. At the cost of repetition we

point out that by withdrawing these concessions, the

Airlines is only making the cabin crew adhere to the

contractual conditions and the Airlines has every right to

do so.

5.9 Thus, after examining the matter on the basis of the

contract between the parties as contained in the

appointment letter, we do not find anything wrong in the

circular dated May 4, 2006. The learned Single Judge

rightly pointed out that neither the terms of appointment

letters nor the weight chart, which is prescribed by the

Airlines from time to time, right from 1981 at least have

been challenged by the appellants and there no reason to

even consider the said challenge at this distant time.

The circular does not offend Articles 14 & 16 of the Constitution

6 Notwithstanding the above position as per the law of

contract, since the Airlines is a statutory authority and is,

thus, State and/or instrumentality of the State under

Article 12 of the Constitution of India, such terms and

conditions in the employment are to meet the

constitutional requirement as well. Therefore, if it is

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

shown that this term is contrary to Articles 14, 16 or 19,

the Court can still strike out the same.

6 We do not find that such a condition is discriminatory,

arbitrary and therefore, violative of Articles 14 and 16 of

the Constitution. There is a proper justification and

rationale in prescribing the condition that cabin crew is to

maintain weight within the prescribed limits. As pointed

out above, the prescription of the appellants in this behalf

does not only talk of maximum limit but also stipulates

minimum body weight. A perusal of the chart laying down

the minimum and maximum weight further demonstrates

that the requirement of minimum and maximum weight is

prescribed keeping in view the age and height of the Air

Hostesses. There is a difference of 10 to 12 kgs. between

the minimum and maximum weight commensurating with

varying heights and ages. It is not in dispute that these

limits are fixed by the Chief Medical Officer of the Airlines.

He may have done so in consultation with other experts.

7 For cabin crew, who has to undertake air travel, the very

nature of job justifies such standards of height and weight.

It is rightly pointed out by the learned Single Judge that

the aircrafts fly at a very high altitude. Quite often

emergency arise because of air turbulence or on account

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

of aircraft developing snag. Air Hostesses, at that time,

are required to lend proper advice and help to the

passengers as well. In those delicate and anxious

moments, life of each and every passenger may be at stake

and the entire cabin crew, including Air Hostesses are the

trustees of the lives of these passengers and it is their

bounden duty to save those lives. In addition to mental

fitness, it is the physical fitness, required to deal with such

emergency situations, which becomes a necessary

concomitant to perform duties efficiently and effectively.

It is a pre-requisite. It is inherent in the exigency of

service. Therefore, the thrust is safety of the passengers.

Air crew has to be athletic to deal with emergency. And

for that he/she has to be in good shape. That is the reason

that not only maximum limit but minimum weight limits

are also prescribed. It is acceptance of the hard fact that

neither anorexic nor overweight people are acceptable for

such jobs. It is, thus, clear that even those Air Hostesses

who want to starve themselves on a hopeless diet to get

too slim a figure are also not encouraged. What is needed

is a healthy body - neither abnormally thin nor abysmally

fat. As per doctor‟s prescription for physical fitness - thin

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

is out and healthy bodies in. Grace created by ultra-thin

look is dying a slow death.

6.3 While on the one hand, there has been much debate about

skinny bodies vis-à-vis healthy bodies, on the other hand

when there is a discussion about overweight people, there

is no scope for any debate. It is universally accepted that

overweight people have tendency to suffer from many

diseases. Common among them are diabetes, hyper-

tension, heart disease, arthritis, high blood cholesterol,

emotional sleep apnea etc. Medical and psychological

research also suggests that it may lead to

emotional/psychological illness. Last mentioned illness

may assume some significance in the context of Air

Hostesses. Statistics reveal that overweight persons face

constant challenges to their emotions which include

remarks from strangers, discrimination at work, lower self-

esteem and poor body image. All this may lead to anxiety

and depression. Therefore, a particular cabin crew/Air

Hostess, who is much overweight, is at risk when he/she

would perform duties along with his/her other colleagues

who are physically fit. Peer pressure can take his/her toll,

psychologically.

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

6.4 Requirement of physical fitness may vary from job to job.

For example, there cannot be any compromise on this in

the cases of military personnel, para-military officials and

police officials. Likewise, there are certain attributes

which are pre-requisites for Air Hostesses. One cannot

shy away from the reality that by the very nature of their

jobs, while selecting these Air Hostesses, their overall

physical personality is one of the primary considerations.

Call of the job is: Pleasing appearance with sharp mind.

Airline industry is not about glamour. But at the same

time presence of mind, communication abilities as well as

agreeable personality are needed to perform this job with

proficiency. After all, air hostesses are brand ambassadors

as well

6.5 In this backdrop and with so many private Airlines now

operating, which has resulted in severe competition, the

respondent Airlines has to, per force, meet this challenge.

One of the steps, apart from many other required was to

ensure that air crew enjoys necessary physical fitness with

which overall personality would automatically improve.

The rationale behind such a condition for maintaining the

weight standards within the prescribed limit is, thus,

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

manifest. Prescribing of such a condition, therefore,

cannot be treated as irrational, arbitrary or discriminatory.

Arguments of Appellants and their answers:

7. After having cleared these basic parameters, we now deal

with some of the legal submission of the appellants, purely

technical in nature.

7 It was argued that circular dated 4th May, 2006 issued by

the DGM (IFS) under the advice of Executive Director

(IFS), IAL, Headquarters, was without any authority of

law. However, we find that on 8.9.1998, an instrument of

delegation of financial and administrative powers was

issued by which Director (IFS) was included in the list of

Headquarters Departmental Deads and the Dy. General

Manager (IFS)/Senior Manager (IFS) as Regional

Departmental Head. The respondents have been able to

give satisfactory explanation in this behalf. Indian Airlines

was governed by the provisions of the Air Corporations

Act, 1953 till 1.3.1994. Section 45 of the 1953 Act enabled

the Corporation to frame Regulations in respect of terms

and conditions of service of officers and other employees

of the Corporation. Section 40 of the said Act enabled the

Corporations to delegate powers. The 1953 Act was

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

repealed by the provisions of the Air Corporations

(Transfer of Undertakings and Repeal) Act, 1994. The said

Repeal Act came into force w.e.f. 1.3.1994. Section 8(1) of

the Repeal Act saved remuneration, terms and conditions

and obligations in respect of persons who were appointed

prior to 1.3.1994. Paras 2.1, 3.1, 3.5.1 and 3.5.4 of the

Instrument of delegation of powers dated 14.2.1994

provide for delegation to Regional Departmental Heads

etc. That apart, it is stated at the cost of repetition that by

impugned circular only the position contained in the terms

and conditions of appointment is sought to be enforced

and therefore, we find no force in the argument that such

a circular is without any authority.

7 It was next contended that grounding of Air Hostess/cabin

crew on the ground of overweight is without any authority

or provision of law inasmuch as, service Regulations do not

provide grounding of Air Hostess. However, as we have

already pointed out above, the contractual term gives

much wider power to the respondent, namely, even to

terminate the services of those cabin crew who do not

meet the prescribed weight limits. Though as per the said

clause even the services can be terminated, but instead of

taking this extreme step the Airline only wants that such

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

Air Hostesses who do not maintain the weight within the

prescribed limits should bring their weight within the

range of minimum and maximum weight laid down by the

Airlines. Therefore, notwithstanding the rigour of clause

9, the Airlines does not want extreme step to be taken but

wants to give a chance to such Air Hostesses to gain some

weight if it is below the minimum weight (though no such

case is pointed out) and reduce the weight if their weight

exceeds the maximum limit prescribed. The raison d‟etre

and rationale for providing this course of action rather

than terminating the services is justified. The extreme

action is not required inasmuch as, it is not impossible to

bring the weight within the prescribed limits by necessary

physical exercises and following proper diet regime.

Therefore, the „disability‟ because of the overweight etc.

would be of temporary nature and not permanent and

thus, the air crew is grounded during the period of such

"disability" alone. If the respondents have such a wide

power and could take an extreme action of termination of

services of the overweight Air Hostess, we do not

understand as to why the appellants should feel aggrieved

by such an order which merely results in grounding of Air

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

Hostesses temporarily for the period for which they are

not within the prescribed weight limits.

7.3 For the same reason we do not find any force in the

submission of the learned counsel for the appellant that as

per Regulation 12, the only condition is that a person

should be medically fit and once all these appellants are

found fit, they cannot be grounded. We have already

negated this argument above while agreeing with the

reasoning of the learned Single Judge on this account as

perfectly justified. Once we find that there is nothing

wrong in the action of the Airlines to ground such an Air

Hostess, she naturally would not be entitled to the salary

during that period on the principle of „No work No pay‟.

7.4 We also do not subscribe to the submission of the learned

counsel for the appellants that grounding of Air Hostess on

being overweight by merely 500 gm. is mala fide and

illegal. The argument taken in isolation may appear to be

attractive, but what is to be seen is that it is not a

particular/fixed weight which an Air Hostess/cabin crew is

bound to maintain. There is a range of weight prescribed,

i.e., minimum and maximum within which the Air Hostess

is supposed to remain. It spans over 10-12 kgs.. Once

lower or upper limit is crossed, then it is no ground to

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

challenge that a particular Air Hostess was found

overweight by only 500 gm. If this relaxation is given, it

would be difficult to draw a line.

The Closing Chapers:

8 To sum up, we summarise our discussion and findings as

under:

8.1 The nature of work of the Air Hostesses is strenuous in

nature and the weight check is relevant in relation to their

physical fitness. As aircrafts fly at a very high altitude,

highest order of physical fitness is necessary to handle

emergency situations. As such, there is no arbitrariness or

unreasonableness in the weight limits fixed by Indian

Airlines in their height-weight chart dated 17th September

1991. It is not even the case of the appellants that the

weight limits are unrealistic or unreasonable.

8.2 The appointment letter of the appellants clearly provide

the maintenance of weight within prescribed parameters

by the Air Hostesses and even empowers the Indian

Airlines to terminate their services on account of non-

maintenance of weight within the prescribed parameters.

The appellants have not challenged the termination clause

of the appointment letter.

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

8.3 Indian Airlines prescribed the weight parameters from

time to time. The weight parameters were initially

prescribed in 1981 and revised in 1991. The same were

enforced regularly vide circulars dated 4th November

1987, 11th May 1990, 4th June 1990, 25th December 1990,

17th September 1991, 16th October 1991, 6th June 1996,

12th August 1998, 13th November 1998, 20th May 1999, 9-

10th August 1999, 3rd January 2000, 31st October 2000, 22nd

November 2000, 4th May 2006, 17th May 2006 and 5th June

2006.

8.4 The appellants have challenged only one circular dated 4th

May 2006 whereby the grace weight limit of 3 kg. was

withdrawn by Indian Airlines. The appellants have not

challenged the previous circulars by which the weight

parameters were fixed and the concessions were given and

curtailed from time to time, meaning thereby that the

appellants have accepted the weight parameters fixed

from time to time as well as the relaxation given/curtailed

from time to time. Having accepted the same continuously

for more than a decade, the appellants have acquiesced

and cannot now be permitted to challenge the same.

8.5 Having accepted the weight parameters fixed vide circular

dated 17th September 1991, the appellants cannot claim

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

the legal right to relaxation. The relaxation of 10% was

given by Indian Airlines purely at their discretion for a

limited period which they have withdrawn in their wisdom.

There is no unreasonableness or arbitrariness in the said

decision. Grace and concessions are not matters of legal

right. They are matter of policy and we do not find any

illegality, arbitrariness or unreasonableness attached to

the same.

8.6 The argument of the appellants that Indian Airlines has no

power to issue the circulars in view of the repeal of Air

Corporations Act, 1953 is not correct. Indian Airlines has

the power to fix weight parameters and to enforce the

same in terms of the appointment letter. The respondent

has also placed on record the instrument of delegation of

powers of the respondent which are in order. The

appellants having accepted the other circulars of the

respondent, cannot challenge the authority of the

respondent in respect of only one circular dated 4th May

2006 by which only the relaxation has been withdrawn.

Since the power to give the relaxation is not disputed, the

power to withdraw the same cannot be challenged.

8.7 The appointment letter gives power of termination. The

power to terminate would include the power to adopt

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

lesser measure, i.e., grounding the air crew during the

period it is not within prescribed weight limits.

8.8 The appellants had relied upon the judgment of the

Hon‟ble Supreme Court in the case of Air India vs.

Nergesh Meerza & Ors. reported as 1981 (4) SCC

335. The said judgment relates to challenge to the

fixation of the age of retirement and does not deal with the

issue relating to the weight limits fixed by the respondent.

We have already held that such a prescription is neither

arbitrary nor discriminatory.

8.9 Learned counsel for the appellants also referred to the

judgment of the Apex Court in Indian Airlines Ltd. v.

Prabha D. Kanan, (2006) 11 SCC 67. The Court in that

case, inter alia, held that Regulation 13 of Indian Airlines

(Flying Crew) Service Regulations would not be applicable

to the employees appointed prior to the date of its coming

into force. However, this judgment would not come to the

aid of the appellants as we are of the opinion that it is the

terms and conditions of the appointment letter which are

binding on the appellants herein and drawing support

and/or sustenance therefrom it was open to the

respondents to take such a measure.

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

8.10 Learned counsel for the appellants also sought to draw

support from another judgment of the Apex Court. The

case cited by him was Air India v. Union of India and

Others, (1995) 4 SCC 734 and particularly paras 8 and 9

thereof wherein the Supreme Court held that if the

subordinate legislation is to survive the repeal of its parent

statute, the repealing statute must say so in so many

words and further that Section 8 of the Air Corporations

(Transfer of Undertakings and Repeal) Act does not in

express terms save Air India Employees‟ Service

Regulations termed under Air India Corporation Act, 1953.

However, in that very judgment the Supreme Court

immediately defined the scope of Section 8 by adding that

it protects the remuneration, terms and conditions and

rights and privileges of those who were Air India‟s

employees when the 1994 Act came into force. Thus, the

appellants shall remain bound by the terms and conditions

incorporated in their appointment letter.

The Conclusion:

9 In view of the above, we do not find any arbitrariness or

unreasonableness in the withdrawal of the relaxation of

weight parameters fixed by India Airlines for the Air

Hostesses. We agree with the findings of the learned

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007

Single Judge and dismiss the appeals but refrain from

burdening the appellants with any costs.

CONT. CASE (C)No.514/2007

The respondent-Airlines had started making

deductions from the salary of the appellants herein in

respect of payments made during the period when these

appellants were grounded and laid off. The payments

were made by the orders of the learned Single Judge,

subject to the outcome of the writ petitions. The writ

petitions were ultimately dismissed. The appeals against

the judgment of the learned Single Judge have also been

dismissed by us. In view thereof, the action of the Airlines

recovering the aforesaid amount is not in violation of any

orders. This contempt petition is also dismissed.

(A.K. SIKRI) JUDGE

(J.R. MIDHA) JUDGE June 06, 2008 aj/hp

LPA Nos.1050/2007, 1052/2007, 1049/2007, 1045/2007 and Cont. Case No.514/2007