IN THE HIGH COURT OF RANIPUR

WRIT PETITION NO.

MS. MANISHA MISHRA / FLYSAFE AIRLINES

LTD.

(Petitioner) (Respondent)

MEMORANDUM ON BEHALF OF THE RESPONDENT

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 LIST OF ABBREVIATIONS

&- And
Art- Article
AIR – All India Reporter
Ors- Others
Govt- Government
COI- Constitution of India
Anr- Another
Hon’ble- Honourable
SCC- Supreme Court Cases
SC- Supreme Court
Sec- Section
W.P.-Writ Petition
v.- Versus
cl.- Clause
SCR- Supreme Court Reporter
CRL.- Criminal
No.- Number
ILR- India Law ReportJT- Judgment Today
UJ- Unreported Judgments
Supp- Supreme Court Cases

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3
Contents
LIST OF ABBREVIATIONS.............................................................................................................2
INDEX OF AUTHORITY..................................................................................................................5
STATEMENT OF JURISDICTION..................................................................................................6
STATEMENT OF FACTS..................................................................................................................8
ISSUES RAISED...............................................................................................................................10
SUMMARY OF ARGUMENTS.......................................................................................................11
CONTENTION – 1............................................................................................................................12
CONTENTION-II.............................................................................................................................15
2.2 The Supreme Court of India in the case Air India Etc. Etc. vs. Nergesh Meerza & Ors. Etc.Etc.
held that:..............................................................................................................................................15
PRAYER............................................................................................................................................17

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 INDEX OF AUTHORITY

CASES REFERRED
1. Chitra Sharma vs Elite Airlines
2. Air India etc etc vs Nergesh Meerza etc etc

STATUTES REFERRED
1. CONSTITUTION OF INDIA

WEBSITES REFERRED
1. https://www.livelaw.in
2. www.indiankanoon.in
3. www.casemine.com

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 STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble High Court under its jurisdiction as per Article
226 of the Constitution of India.

Clauses 1),2), 3) and 4) of the Article states that:

1) Notwithstanding anything in Article 32 every high court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose
2) The power conferred by clause 1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within these territories.
3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under
clause 1), without
a) Furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and
b) Giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes the copy of such application is
so furnished, whichever is later, or where the High Court is closed on the last day
of that period, before the expiry of the next day afterwards on which the High
Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or as the case may be, the expiry of the aid next day,
stand vacated

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4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause 2) of Article 32

Therefore, it is humbly submitted that the writ petition under the Hon’ble High Court
is maintainable.

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 STATEMENT OF FACTS

1). Ms. Manisha Mishra, a resident of Sripur, the capital of Ranipur, was selected and
appointed as an air-hostess with Flysafe Airlines Ltd., [a government of Rajnagari
undertaking] on 01/09/1996.

2) In accordance with the policy of the Airlines she was appointed on contract for a
period of three years. The contract was renewed from time to time for three years at a
time. It was the usual practice to give the airhostess or employee concerned, a brief
three day orientation or training and to renew the contract. The last of such renewed
contracts expired on 31/12/2014.

3) The same was not renewed further under the following circumstances:

a) Ms. Manisha had been diagnosed with Tuberculosis of bone in January 2013.
b) In her certificate dated 10/11/2013 issued by Dr. A B Das, a doctor on the Airlines’
panel stated that now (i.e 10/11/2013) Ms. Manisha is fit to resume her duties w.e.f.
11/11/2013.
c) However, when Ms. Manisha reported for duty the in-house doctor on the panel of
the Airlines on 11/11/2013, categorized her as not fit on account of being patient of
Tuberculosis.
d) By the certificate of the in-house doctor dated 11/11/2013 it was found that Ms.
Manisha can apply for fitness certificate only on completion of therapy.
e) Ms. Manisha thereafter was advised further rest.
f) As per the records of the Airlines, the Medical Review Board certified that Ms.
Manisha became fit for duty with effect from 7/11/2014. She claims that the contract
ought to have been renewed from 01/01/2015. However, the Airlines did not renew
the contract.

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 ISSUES RAISED

1) Whether the decision not to renew the contract is unfair and unreasonable?
2) Whether this case invokes Art.14 of the Constitution?
3) Whether the policy of engaging airhostesses on contractual basis, exposes female
employees to the likelihood of arbitrary termination?

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 SUMMARY OF ARGUMENTS

1. Whether the decision not to renew the contract unfair and unreasonable?
No, the decision not to renew the contract was not unfair and unreasonable, because the
employee didn’t apply for the medical leave and acted irresponsibly.

2. Whether this case invokes Art.14 of the Constitution?

No, this case does not invoke Art. 14 of the Constitution as the decision by the Airlines is not
discriminatory on the part of the petitioner.

3. Whether the policy of engaging Air Hostesses on contractual basis exposes the female
employees to the likelihood of arbitrary termination?
No, the policy of engaging Air Hostesses on contractual basis does not expose the female
employees to the likelihood of arbitrary termination as the job is generally of temporary
period for most of the people and both male and female employees are appointed through
contractual obligations.

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 CONTENTION – 1

WHETHER THE DECISION NOT TO RENEW THE CONTRACT IS UNFAIR AND

UNREASONABLE ?

It is humbly submitted that the decision not to renew the contract is not unfair and
unreasonable.

1.1 In terms of Clause 2.1, the FTEA (i.e. the fixed term contract/agreement) automatically
expire/ terminated on 30.12.2014 unless the same were extended / renewed by mutual written
consent of both the parties.It was averred, inter alia: "There is no obligation on the part of the
Respondent to mandatorily renew the contract / FTEA executed between the Respondent and
the Petitioner and the same is the discretion of the Respondent being a matter of contract. The
Respondent is well within its rights not to extend / renew the contractual employment
granted to the Petitioner and in terms of the contract governing the employment of the
Respondent with the Petitioner the Respondent is also not required to convey any reasons for
the non renewal of the FTEA.

1.2 Though the Respondent is not obligated to convey any reasons for non renewal of the
FTEA, however, in the present case, the FTEA was not renewed in terms of the guidelines/
policy of the Respondent pertaining to renewal / extension of fixed term employment
agreements of the cabin crew [contained in the internal instructions/ letter dated 22.09.2014
issued by the General Manager (Personnel) of Air India Limited to the Chief Executive
Officer of the Respondent No.1] in terms of which the fixed term employment agreements of
such cabin crew is not to be renewed who indulge in unauthorized absence. Copy of the
letter/ instructions dated 22.09.2014 is annexed herewith and marked as Annexure R-1. 9. It
is submitted that the Petitioner from January, 2013 stopped reporting from her duties without
applying for any medical leave. The Respondent had not sanctioned any medical leave to the
Petitioner and the Petitioner abstained from her work from January, 2013 till the nonrenewal
of her contract. The Petitioner was thus, guilty of unauthorized absence, which was in
complete breach of contractual obligations.

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 1.3 It is submitted that as the petitioner never reported for work from January, 2013 she
was not paid her salary or any other amounts in terms of the FTEA since January, 2013.

1.4 It is submitted that as Clause 4.2 of the FTEA, it is specifically provided that no leave
can be claimed by the Petitioner as a matter of right and grant of any leave shall be at the sole
discretion of the Respondent, The said clause further provides that any unauthorized absence
without sanctioned leave shall be without pay and for which the Petitioner will be liable for
disciplinary action. Further, Clause 4.6 provides in detail the procedure for applying for any
leave and terms and conditions governing the grant or refusal for such leave. It is submitted
that in the present case, the Petitioner followed no procedure as prescribed under the contract
for availing medical leave and merely resorted to unauthorized absence resulting in non
renewal of her contract."

1.5 Further, it is humbly submitted that, the petitioner did not report for duty without even
applying for medical leave. Reliance by the respondent is placed upon the terms and
conditions of employment contained in paragraph 4.2 and 4.6 which read as under:-

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"4.2. LEAVE No leave can be claimed as a right and Grant of any leave shall be at the sole
discretion of the management. Any absence without authorised or sanctioned leave shall be
leave without pay and the employee will be liable for disciplinary action. All leave will be
granted at the discretion the Company and can only be availed, after the Competent Authority
has approved/sanctioned the leave request. XXXXX XXXXX 4.6 CONDITIONS OF
LEAVE With reference to above, some of other main terms and conditions of the leave rules
framed by the Company as applicable are follows:

(i) Prior written permission of the Competent Authority has to be obtained to leave
station when availing leave. Permissible to leave station when on sick leave will only
be granted if it is necessary for medical reasons.
(ii) Leave for more than 2 days, on sickness grounds shall be supported by a Medical
Certificate from a specialist Doctor/Registered Medical Practitioner under Allopathic
stream. Moreover, the leave on medical grounds for more than 5 consecutive days
shall also require medical fitness certificate from the doctor/Registered Medical
Practitioner from Allopathic stream.

1
Chitra Sharma

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(iii) Any casual cum sick leave standing to the credit of the Employee as on 31st March
shall lapse automatically and no accumulation will be permitted.

(iv) Not more than 3 days of casual leave can be availed at a time with prior permission.

(v) All types of leave will be entered in leave card and approved in advance except 4 sick
leave( to be intimated at the earliest) which can be updated immediately on joining"

Thus, it is humbly submitted that the petitioner cannot say that she is her own master and that
because she suffered from a medical condition, she need not report for duties without
applying for and getting sanctioned medical leave. Medical leave has to be applied for and
sanctioned, failing which, an employee will be taken to be an in-disciplined employee that is
guilty of indiscipline in being on leave without any medical leave being applied for or
sanctioned by the respondent no. 1/employer and therefore, the decision of the Airlines to not
to renew the contract is not unfair and unreasonable.

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 CONTENTION-II

WHETHER THIS CASE INVOKES ARTICLE 14 OF THE CONSTITUTION?

2.1 It is humbly submitted that, this case does not invoke Article 14 of the Constitution as it is
neither arbitrary on behalf of the Airlines, nor discriminatory.

Article 14 of the Constitution says that:

Equality before law: The State shall not deny to any person equality before the law and equal
protection of the laws within the territory of India prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth.

2.2 The Supreme Court of India in the case Air India Etc. Etc. vs. Nergesh Meerza & Ors.
Etc.Etc. held that:2

It is undisputed that what Art. 14 prohibits is hostile discrimination and not reasonable
classification. In other words, if equals and unequals are differently treated, no
discrimination at all occurs so as to amount to an infraction of Art. 14 of the Constitution. A
fortiori if equals or persons similarly circumstanced are differently treated, A discrimination
results so as to attract the provisions of Art. 14.

2.3 In the present case the Petitioner is not a victim of discrimination but reasonably
classified as an employee who did not follow the procedure of the Medical leave and acted as
an irresponsible employee.

Thus, it is humbly submitted that this case does not invoke Article 14 of the Constitution.

2
Air India Etc. Etc. vs. Nergesh Meerza & Ors. Etc. Etc. 1981 AIR 1829, 1982 SCR(1) 438

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 CONTENTION-III

WHETHER THE POLICY OF ENGAGING AIRHOSTESSES ON

CONTRACTUAL BASIS EXPOSES FEMALE EMPLOYEES TO THE
LIKELIHOOD OF ARBITRARY TERMINATION?

3.1 It is humbly submitted that the policy of engaging air hostesses on contractual basis
does not expose female employees to the likelihood of Arbitrary termination.

As it is not discriminatory on the basis of gender, both the male and female employees are
employed on the contractual basis, The Air Hostess’s job is a temporary job, which
people chooses for the beginning of their career, most of them leave the job before the
retirement age. Thus, the contractual agreement is the appropriate way to employ them.

3.2 Also, In AIR India etc. etc. v. Nergesh Meerza etc., it is mentioned that

"Flying Crew shall be retained in the service of the Corporation only for so long as they
remain medically fit for flying duties.”

Therefore, it is humbly submitted that the policy of engaging air hostesses on contractual
basis does nit expose female employees to the likelihood of Arbitrary termination.

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 PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS RESPECTFULLY PRAYED THAT THIS HON’BLE
COURT BE PLEASED TO ADJUDGE THAT:

1. the decision not to renew the contract was not unfair and unreasonable, because the
employee didn’t apply for the medical leave and acted irresponsibly.
2. this case does not invoke Art. 14 of the Constitution as the decision by the Airlines is not
discriminatory on the part of the petitioner.
3. the policy of engaging Air Hostesses on contractual basis does not expose the female
employees to the likelihood of arbitrary termination as the job is generally of temporary
period for most of the people and both male and female employees are appointed through
contractual obligations.

AND FOR THIS ACT OF KINDNESS THE RESPONDENT SHALL AS DUTY

BOUND EVER PRAY

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