air india case study-ankita

8/7/2019 AIR INDIA CASE STUDY-ANKITA

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AIR INDIA

2010-2011

A Legal Case Study

Report On:Mrs. X v. National Aviation Company of India Limited

Ankita Bose.

. BBA.LLB (3rd Semester),

KIIT LAW SCHOOL,

KALINGA UNIVERSITY,

Bhubaneswar.

A Project submitted in partial fulfillment of the award of the degree of LL.B(Law Graduate

degree) under the guidance of Mr. A Jagdish Kumar, Assistant Manager(Personnel),

Industrial Relations.

A I R L I N E S H O U S E , 3 9 , C H I T T A R A N J A N A V E N U E , K O L K A T A - 7 0 0 0 1 2 .


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The case was filed by X, a senior Airhostess of National Aviation Company, India

Limited. The above case was registered against The National Aviation Company of India

Limited, AIR INDIA, which was formed under the Companys Act having its principal

office at 113, Gurdura Rakabganj, New Delhi -1 and its regional office at Airlines

House, 39, Chittaranjan Avenue, Kolkata-700 012 within the territorial limits of this

Honble Court . Now the case proceeds as per the following points:

I. X was appointed as a Trainee Airhostess on 13th of February, 1987, with referenceto her application subsequently followed by an interview for the above post. She

was the declared medically fit by the Companys Medical Officer. She had to

undergo the training at the Training Center at Hyderabad with stipend of Rs 300/-

per month, while accepting the required terms and conditions of the Company

concerned.

II. She was appointed as the Airhostess on 30th March, 1987. Her appointment as anAirhostess was confirmed by the management on 25

thFebruary, 1988 in the pay

scale of Rs 600-1300/- with effect from 30th

September, 1987, in terms of Service

Rule No.9.

III. The letter of application forher change of surname on getting married was datedto be submitted on 5

thSeptember, 1990.She was diagnosed for Phobic anxiety by

Dr. Chandra Shekhar Mukherji on 18th

November, 1997. She was advised to stop

flying with immediate effect.

IV. An application for the requisition of annuity has been submitted by X on 4thDecember, 1997. She requested for the payment of annuity on the reference of Dr.

Partho Bhattacharya due to her suffering of problems like; palpitation, choking

sensation, dry mouth and many others. The annuity was referred to the general

manager, Calcutta along with a copy of the Medical certificate of Dr. Mukherji on

15th

December, 1997. On 18th

March, 1998, another letter of reminder was

addressed to the General Manager, Calcutta for the arrangement of a medical


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board for X and for the sanction of the annuity as soon as possible. In reply on

5th August,1998, the concerned authorities stated that X was still undergoing

treatment under their Medical services and have not till submitted any Medical

certificate to support her treatment. Therefore, she was advised to report to the

Manager of the Medical services immediately on her receipt of this letter.

V. On 23rd November,1988 diagnosis report was produced b the Department ofApplied Psychology, University of Calcutta which revealed that her Z score is

53(normal range is 60)which indicates that her visuo-motor gestalt functioning is

not significantly impaired. It showed that she had poor impulse control tendency

which may lead to pressure for motor activity; need for dependency and

immaturity are inadequately present. Somatic preoccupation, overt aggression and

infantile social behavior with regressive tendency are elicited, so the environment

is viewed as excessively constraining to her. Rorschach Psychograph reveals that

she sticks to practical every day commonsense view of things. She expressed as

overriding intellectual ambition without the ability to back it up. She was either

being unable or unwilling to allow herself to strong emotional reaction even when

a situation demands a deep emotional response. Consequently, she may be

impersonal in occasions. This report is submitted by X to the General Manager

(IFS) on 7th

December, 1998.

VI. On 26th May,1999, another letter of requisition for the sanction of annuity wassubmitted by X, mentioning that almost six months elapsed from the time she

submitted her first letter for the requisition of annuity. For the past 21months she

was without pay, so the letter was given to fulfill the desired needs and relive her

of the increasing anxiety.

VII. The concerned authorities in reply to her letter on 7th December, 1999, advisedher to report to the Indian Airlines Medical Department, Airlines House, Calcutta

along with all Medical papers at the earliest. On 4th May,2000, another letter for

the requisition of annuity was submitted by X also mentioning that she had

received no reply from the Concerned Authorities in regard to the sanction ofher

annuity. Again a letter of reminder for the requisition of annuity has been

submitted by X on 26th

November, 2000.


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VIII. On 30th April, 2001, a show cause notice was addressed to X by the RegionalDirector(East) saying that her flying duties was rostered. On account of her

weight remaining in excess of the prescribed limit. She was advised to undergo

Medical checkup from time to time. However, on account ofher own violation

she did not do so in true earnest and also did not follow up the Medical

recommendation and treatment properly. So accordingly, she was still over-

weight and not fit for flying duties and also her past attendance records are very

unsatisfactory, on several occasions she remained absent unauthorisedly without

any permission. So hereby, she was called upon to show cause within 7 days from

the receipt of the letter as to why her service shall not be terminated in terms of

clause 9(ii)(b) of the letter of appointment as trainee airhostess. She will also be

allowed personal hearing to explain her case, if so desired and subsequently she

was warned that if she fails to submit any reply to this notice within the stipulated

date will be presumed that she is having nothing to offer and orders will be passed

accordingly.

IX. Reply to the show cause notice was given by X on 7th May, 2001 adding thatshe was grounded for being over-weight of marginally 500gms, so it is untrue that

she did not attain to weight checks on her own violations. It is also untrue that her

past attendance was very unsatisfactory because prior to this letter there has been

no letters issued regarding her attendance or non cooperation. In other words, the

main reason from being grounded off flying duties was not due to over-weight but

due to psychological ailment.

X. On 22nd June, 2001, a letter in regard to the termination of service was addressedto X saying that the records showed that she was over-weight even at the initial

time of appointment as trainee airhostess and that she was advised to bring down

her weight to the prescribed limits which was mentioned in the letter dated 10th

April, 1987. There was no records that showed her reduction of weight within the

prescribed limit and in this failure to bring down her weight (she was then

15.5kgs over-weight as referred by Indian Airlines Panel Psychiatrists, Dr, D.

Bhattacharya), the concerned authorities grounded her off flying duties (which

has been nearly for four years). Her contentions forher psychological problems


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for the sanction of annuity was irrelevant from the companies point of view. In

other words, National Aviation Company of India Limited terminated the

services of X mainly on account of her failure to maintain her weight

within the prescribed limits for four years and not due to psychological

ailments.

XI. The kitchen supervisor employment notice was issued on 19th June, 2001 and thelast date of submitting the same was 10

thJuly, 2001, but the application of X

was however, received on 31st August, 2001, 21days late of the last date as held

above by the lawyer of the petitioner enclosing the Court order (Copy enclosed).

On 1st

October, 2001, a letter was addressed to X saying that her application for

the post of Flight Kitchen Supervisor was not considered and she would not be

called for the interview due to the late submission of the application by 21days.

An affidavit has been filed by National Aviation Company of India Limited taking into

consideration the following changes;

At first there was no scope to amend the writ petition having regard to the provision of

Order 6 Rule 17 of the Civil Procedure Code, 1908, therefore, the Learned judge

dismissed the writ petition. As of now it is a settled legal proposition of law that the

amendment of the writ petition could be allowed if it does not change the nature and

character of the proceedings. So the writ petition could not be dismissed and could

provide a strong standing to have a decision of the court in the angel of section 47 of

Disability Act, 1995, which after the amendment reads as;

i. No Discriminations in Government Employment- No establishment shall dispensewith, or reduce in rank, an employee who acquires a disability during a service. If

an employee after acquiring disability is not suitable for the post he was holding

could be shifted to some other post with the same pay scale and service benefits,

provided that it is not possible to adjust employee against the same post that he

was holding before.


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ii. No Promotion shall be denied to a Person nearly on the ground of Disability-Provided that the appropriate government may, having regard to the type of work

carried on in any establishment by notification and subject to such conditions, if

any, as may be specified in such notification, exempt any establishment on the

provisions of this section.

So therefore, the Case as pleaded, amendment of pleading, and ground has sort for this effect that

as due to physical illness namely suffering from altitude phobia, the writ petitioner could not

function the job of Airhostess and due to medication of such ailment, she gained weight,

Disability Act, 1995 as the applicability was done with its vigor as the National Aviation

Company of India Limited is an establishment under the same act.

The amendment of the provisions of the Civil Procedure Code is no more a rigid one and

under all circumstances can be extended with time. The Civil Procedure Code is now

held to be a procedural law as held by the apex court in the case of Sangram Singh v.

Election Tribunal(1955 SC 425). The Court held that the procedural law is not a master,

but a servant, not an obstruction but an aid to justice. It has been furtherheld in the case

ofTopline Shoes Limited v. Corporation in 2000 that the procedural prescriptions are

substantive to justice in accordance with time.

The nature of pleadings done in a Court of Law are no more stricto(Latin meaning of the

term strict). This has been made in pursuance of Order 7 Rule 17 of the C.P.C by

inserting clause 53 under Section 141 of the C.P.C.

After a prescribed amendment being done a general principal of law was that the

amendment should enables the parties to agitate real question of issue for a finality of the

adjudication is within the domain of public policy, with a rider the question of prejudice

of the other side should be looked into and should be taken care of by the court while

allowing such amendments by passing appropriate order as refer to in the case of Narayan

v. Purushottam[2000 (1) SCC 712]. The amendment was based on 2 principals;

a) By such amendment whether it will cause injustice on the other side,b) Whether it is necessary for the purpose of determining the real question in a

controversy between the parties.


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According to the amendment allowed that the amendment application to be considered in

the angel of basic requisite findings or on the facts already pleaded and not on some made

up information that is not a part of the original facts.

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The Service of the petitioner was terminated on the ground that she was overweight. Shewas grounded due to her weight in September 1997. Inspite of lapse of 4 years since after

her being grounded, she failed to make up the deficiency, as a result of whichher service

was dispensed. Clause 9(II) (b) of the letter of appointment clearly provides that the

appointment shall be liable to be terminated in the event the petitioner fails to maintain

her weight within the prescribed limit.

This is a Contract of Employment. The Law of Contract exists between the Employerand the Employee. The event the petitioner fails to maintain her weight within the

prescribed limit, the Contract would be terminated. The event that the petitioner gained

weight is a breach of Contract, which automatically gave the Company the right to

terminate her service. As referred to in the Case Uptorn v. Sammi [AIR 1998 SC 1681].

A Contract (Service) cannot be terminated unless it is capable of being continued. If it isnot capable of being continued in the same manner in which it had been going before,

then the Contract cannot be terminated. Here, the Contract requires physical fitness of the

workers, so if a worker is unfit on the grounds of ill-health, then the Contract comes to an

end.

Once the service of an employee is terminated there is no question of reinstatement. Sheagain has to apply and in case she applies against any vacancy and she qualifies thereof,

then she may be considered as per the required necessary qualifications.

The respondent, however, did not proceed to terminate the Contract immediately after the petitioner was disqualified from flying on 1

stSeptember, 1997. The petitioner was

granted opportunity to improve herself (weight). She was reminded from time to time

(through 4 letters) to reduce her weight.


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Even if she became a permanent employee, the terms and conditions remained the sameas of when she became a temporary employee. If any modification or change is done in

relation to the Contract, then it will be a part of the Original Contract only as per Section

62 of the Indian Contract Act as referred to in the Case; Juggilal Kamalapat v. N.V

Intermation [AIR 1955 Calcutta 65].

The violation of the Principles of Natural Justice is without any merit because she wasdirected to Show Case, where in reply she admitted that she was over-weight and so on

that basis the Contract can be terminated. So, there has been no infringement of the Rules

of Natural Justice.

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Clause 9(II) (b) of the Letter of Appointment was unconstitutional because it wasviolative of Article 14 (Fundamental Rights and Duties) of the Indian Constitution and

the Directive Principles of the State Policy laid down therein. The Order of termination

was passed, also in violation of the Natural Justice.

The terms and conditions conditioned in the letter of appointment lost its force after thepetitioner became a permanent employee on 30

thMarch, 1987.

It was not really the weight which was the problem but the petitioner was in fact sick andsuffering from Phobic Anxiety Syndrome in relation to flying. Here, comes the

implication of the Disability Act, 1995. According to Clause 1 of Section 47 of the said

Act, there should be no discrimination in case of Government employment. There shall

be no reduction in rank of an employee who acquires a disability during his service.

Provided that if an employee after acquiring disability is not suitable for the post he was

holding could be shifted to some other post with the same pay scale and service benefits.

Provided that further that it is not possible to adjust the employee against any post, he

may be kept on a supernumerary post until a suitable post is available or he attains the


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age of superannuation, whichever is earlier. Clause 2 of the same section says, that no

promotion shall be denied to a person merely on the ground ofhis disability.

The letter of termination issued on 22nd June, 2001 at a point of time when the petitionercould

have easily avail

herself of joining t

he post of t

he kitc

hen supervisor under a

scheme issued on 19th

July, 2001. So, she could have easily got an employment of the

post of a kitchen supervisor.

A.I.R INDIA is a travel industry. Pleasing appearance, manners and physical fitness arerequired for the members of the crew of both sexes. The airhostesses have agreed to the

early retirement age, as they need an option to go for ground duties after the age of 50

years. Therefore, it cannot be accepted that the airhostesses are made to made to retire

earlier th

an th

e males because of th

eir failing ph

ysical appearance as it is a practice,derogatory to the dignity of women. It is a Contract of Service, which is terminated and

that this contract requires certain physical fitness in their workmen. Therefore, the

Company has the right to terminate their workmen on the ground of ill-health or when are

unfit to discharge their service.

The Disability Act, 1995 says that equal opportunities, protection of rights and full participation; should be provided to both men and women, who are employed as an

employee or workmen in the particular Company.

-8'*(0(17

1) Ms. X was not being rostered for flying duties since 01/9/97 on account of over-weight.She did not follow medical recommendation and treatment properly. Accordingly, show-cause notice dated 30/4/2001 was issued to her as to why her service should not be

terminated for overweight in terms of letter of appointment. In her reply while enclosingmedical documents she sought annuity. Her request for annuity was not considered and


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her service was dispensed with on 22/6/2001 as per clause of the letter of appointmentgoverning maintenance of weight within prescribed limit as she failed to maintain her

weight within prescribed limits.

2) She filed a writ petition on 23/8/2001 before Honble Calcutta High Court challengingthe above order of termination and to consider her appointment to the post of FlightKitchen Supervisor.

3) The aforesaid writ petition was disposed off by the Single Judge vide order dated20/01/2004 holding that termination in accordance with the letter of appointment holds

good in the present case.

4) She preferred an appeal before the Division Bench. After prolonged hearing and filing ofdocuments including inspection of records, the Division Bench today set aside the

termination order dated 22/6/2001 and reinstated Ms X in the service with full backwages to be made within 2 months on the following grounds:-

a) Clauses of letter of appointment should be read with various agreements, rulesand regulations of the Company. Agreement provides for payment of annuitywhich she was entitled to.

b) She was entitled to the protection under Disability Act, 1995 which provides foralternate appointment when cases of other over-weight Airhostesses were

considered for appointment of Flight Kitchen Supervisor.c) There was infirmity in the judgment of the trial court.

The Division Bench further ordered that Medical Board should be constituted within 3

months for adjudging her case for annuity. Stay was sought for but it was rejected.

68**(67,216 $6 72 :+


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the basis of over-weight only. Again it is given in Clause 9(II) (c) that an employee can

be terminated on developing air sickness. So, an employee can be terminated by the

Company on the basis of Clause 9(II) (c) also.

This is a Contract of Employment. A Contract of Employment is a contract like any othercontract. There is a promisor and a promisee. The Employer needs Employees in order to

discharge certain duties and for the purpose of discharging those duties certain mental

and physical conditions may be required. The employee by entering into the contract

promises to maintain the requisite mental and physical conditions in order to discharge

the desired duty. If the promisor fails to fulfill the necessary conditions, then the contract

becomes null and void and the employerhas full authority to terminate the services of the

employee.

The petitioner was suffering from Simple Phobia which is definitely curable on propertreatment on time, but she did not co-operate with the panel doctors and simply avoided

her treatment. In other words, she did not undergo a proper treatment due to her own very

negligence. So, the Company has every possible right to terminate her and also she

cannot claim annuity on the ground of suffering from phobia.

The petitioner claimed annuity as she held a simple phobia under the mischief of theDisability Act, 1995. Though air sickness is held to be a disability only but still it is in

question whether a simple phobia could be taken to be a disability. Accordingly, the

extent of phobia should be taken into consideration before heading it to be a disability. If

it a serious phobic anxiety concerning a long treatment process, then it can be held to be a

disability but if it is only a simple phobia, curable within a short span of treatment, then it

should not be entitled to be under the mischief ofDISABILITY. Now, at first the degree

of air sickness developed in the petitioner should be treated and if it is a serious one then

only it will be a disability, otherwise annuity could not be claimed upon it and can also be

terminated. This should be the process of dealing this matter because otherwise after

some days of work all the air hostess will claim that they are having air sickness, so

should be off the flying duties and as a result would claim for annuity and if this becomes

the case then the Company would soon start earning heavy losses and may even close

down.


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It is my privilege to extend my heartfelt thanks to the Personnel Department of NACIL, ER, and

Kolkata forhaving generously agreed to accept me as a winter intern, providing me a solid

platform to educate myself in the field of Law. It was a matter of great pleasure to work in such a

company which is our national pride.

I am thankful to Mr. A. Jagdish Kumar, Asst. Manager (Personnel), whose help, guidance and

cooperation were instrumental in accomplishing and giving a final shape to this project.

I am also grateful to Mr. Debasish Dutta, forhis through co-operation and giving the project a

definite shape.

My thanks go to every single individual I approached while collecting data, for their timely co-

operation and my heartiest thanks goes to the Director of my college, KIIT LAW SCHOOL,

Bhubaneswar, Mr. Nirmal Kanti Chakroborty forhis kind co-operation and support.

Finally I would like to acknowledge my heartiest thanks to my family for their continuous

support and encouragement.

&(57,),&$7(:

I as a winter-intern did my internship in A.I.R INDIA from 15th December, 2010 to 5th January,

2011 under the guidance of Mr. A Jagdish Kumar, Assistant Manager (Personnel). His kind co-

operation and assistance helped us to the whereabouts of the Company and various other legal

backgrounds and prospects of the concerned company.

air india case study-ankita

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