Air India Express Ltd. and Others v. Capt. Gurdarshan Kaur Sandhu

7. The appellants being aggrieved filed Writ Appeal No.796 of 2018 against the decision of the Single Judge. The Division Bench of the High Court rejected the challenge by its judgment and order dated 09.04.2018 which is presently under challenge. The Division Bench relied upon the decisions noted by the Single Judge and concluded: “There can be little doubt with respect to the position of law settled on the said subject. In respect of an employee who submitted an application for resignation, it would be open to him to withdraw the same prior to the expiry of the period of notice. ….. It is to be noted that even though the appellants claimed that the Ext.P[2] letter of resignation was accepted the tenor of Ext.P[5] would reveal that it was ordered to accept only on the expiry of the notice period. In that context, it is relevant to refer to Ext.P[5] letter.”

8. In this appeal we heard Ms. Madhavi Divan, learned Additional Solicitor General for the appellants and Mr. Jamshed P. Cama, learned Senior Advocate for the respondent. Learned Additional Solicitor General submitted that though in normal circumstances an employee who had tendered resignation would be well within his rights to withdraw the resignation before such resignation had become effective but the decisions of this Court admitted two exceptions to the rule. She relied upon the decisions of this Court in Union of India v. Gopal Chandra Mishra[4] and Balram Gupta v. Union of India and another[5] and submitted that as acknowledged by the CAR the positions of pilots stood on a different footing and finding a replacement or an alternative for a pilot would require incurring of some expenditure in training the concerned new talent. In the circumstances, the CAR had put certain restrictions and made some special provisions in public interest. The appellants had already taken appropriate steps for

5 1987 (Supp) SCC 228 finding and training an alternative and as such the instant case came within the exceptions acknowledged in the decisions of this Court. On the other hand, Mr. Jamshed P. Cama, learned Senior Advocate submitted that the law on the point is well settled that an employee could withdraw the resignation before it comes into effect or operation. He submitted that the resignation submitted by the respondent was to come into effect from a prospective date and the respondent was therefore entitled to withdraw the resignation before it became effective. According to him, the fact that the appellant had to incur expenditure in training another pilot would be of no consequence, as for an organisation of the size of Air India the requirement and consequential training of pilots would be a regular feature.

9. Before we deal with the rival submissions an important fact must be noted. After the respondent was not allowed to join her duties, it appears that she was employed as a pilot with Jet Airways for some time. However, with the closing of operations of Jet Airways, she is not presently holding any position as pilot in any airline.

10. The circumstances under which an employee can withdraw the resignation tendered by him and what are the limitations to the exercise of such right, have been dealt by this Court in a number of decisions. A] In Jai Ram vs. Union of India[6], the concerned Government servant was to attain age of 55 years on 26.11.1946. He applied on 07.05.1945 for leave preparatory to retirement in terms of Fundamental Rule 86. The request was finally allowed and he was given 6 months’ leave which was to expire on 25.05.1947. Ten days before such expiry i.e. on 16.05.1947, he sent an intimation that he would resume his duties which request was rejected. The submission that the age of retirement was 60 years was rejected by this Court. The submission that in terms of Rule 56(b)(i) of Chapter IX of the Fundamental Rules, if found efficient, he could have continued till he attained the age of 60 years, was rejected. It was observed that when a public servant himself expresses his inability to continue in service any longer and seeks permission for retirement, the required exercise in terms of said Rule 56(b)(i) to decide whether to continue him beyond the age of 55 years was rightly not undertaken and the age of retirement for him would be 55 years. In the context whether he could apply for resuming duties on 16.05.1947, it was observed by the Constitution Bench of this Court,:- “It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so long as he continues in service and not after it has terminated.

As we have said above, the plaintiff's service ceased on the 27th of November 1946; the leave, which was allowed to him subsequent to that date, was postretirement leave which was granted under the special circumstances mentioned in F. R. 86. He could not be held to continue in service after the 26th of November 1946, and consequently it was no longer competent to him to apply for joining his duties on the 16th of May 1947, even though the post-retirement leave had not yet run out. In our opinion, the decision of the Letters Patent Bench of the High Court is right and this appeal should stand dismissed.” B] In Raj Kumar v. Union of India[7], an officer belonging to the Indian Administrative Service tendered resignation and addressed a letter to the Chief Secretary to the Government of Rajasthan on 30.08.1964 that it may be forwarded to the Government of India with remarks of the State Government. The State Government recommended that the resignation be accepted and on 31.10.1964 the Government of India requested the Chief Secretary to the State Government “to intimate the date on which the appellant was relieved of his duties so that a formal notification could be issued in that behalf”. Before the date could be intimated and formal notification could be issued, the officer withdrew his resignation by letter dated 27.11.1964. On 29.03.1965 an order accepting his resignation was issued. The challenge raised by the officer was rejected and the High Court held that the resignation became effective on the date the 7 (1968) 3 SCR 857 Government of India had accepted it. While dismissing the appeal, a Bench of three Judges of this Court observed:- “The letters written by the appellant on August 21, 1964, and August 30, 1964, did not indicate that the resignation was not to become effective until acceptances thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance. On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Article 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation. Our attention was invited to a judgment of this Court in State of Punjab v. Amar Singh Harika (AIR 1966 SCR 1313) in which it was held that an order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority; such an order could only be effective after it was communicated to the Officer concerned or was otherwise published. The principle of that case has no application here. Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties.” C] In Union of India and others v. Gopal Chandra Mishra and others[4] the issue for consideration was whether a High Court Judge, who had by letter in his own hand writing sent to the President intimated his intention to resign the office with effect from a future date would be competent to withdraw the resignation before the date had reached? The decisions in Jai Ram[6] and Raj Kumar[7] were considered and while dealing with the scope of clause(a) of the proviso to Article 217 of the Constitution, the Constitution Bench of this Court stated:-

D] In Balram Gupta v. Union of India[5] the concerned officer was an accountant in the Photo Division of the Ministry of Information and Broadcasting. While holding that the matter was covered by the decisions of this Court in Raj Kumar[7] and Gopal Chandra Misra[4], this Court considered the relevant guidelines and observed:

E) The principles laid down in Union of India and others v. Gopal Chandra Misra[4] have since then been followed by this Court in P. Kasilingam vs. P.S.G. College of Technology[8], Punjab National Bank vs. P.K. Mittal[9], Moti Ram vs. Param Dev10, Power Finance Corpn. Ltd. vs. Pramod Kumar Bhatia11 Nand Keshwar Prasad vs. Indian Farmers Fertilizers Coop. Ltd.12, J.N. Srivastava vs. Union of India and another[2], Union of India vs. Wing Commander T. Parthasarathy13, Shambhu Murari Sinha vs. Proect & Development India Ltd.3, Bank of India vs. O.P. Swarnakar14, Reserve Bank of India vs. Cecil Denis Solomon15, Srikantha S.M. vs. Bharath Earth Movers Ltd.1, Secy., Technical Education, U.P. and ors. vs. Lalit Mohan Upadhyay16, New India Assurance Company Ltd. vs. Raghuvir Singh Narang and another17 and Union of India and ors. vs. Hitendra Kumar Soni18. F) In Punjab National Bank vs. P.K. Mittal[9] a permanent officer in the bank sent a letter of resignation on 21.01.1986 in terms of Regulation 20 of PNB (Officers) Service Regulation, 1979, which was to become effective on 30.06.1986. By communication dated 07.02.1986, he was informed that his resignation was accepted with immediate effect. The resignation was withdrawn by the officer on 15.04.1986. The issue therefore arose in the context of said Regulation 20, whether the officer could withdraw the resignation. Regulation 20 was as under:

7. Dr. Anand Prakash emphasises that as clause (2) and its proviso are intended only to safeguard the bank’s interests they should be interpreted on the lines suggested by him. We are of the opinion that clause (2) of the regulation and its proviso are intended not only for the protection of the bank but also for the benefit of the employee. It is common knowledge that a person proposing to resign often wavers in this decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months for various personal reasons. Equally an employer may like to have time to make some alternative arrangement before relieving the resigning employee. Clause (2) is carefully worded keeping both these requirements in mind. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. We, therefore, agree with the High Court that in the present case the resignation of the employee could have become effective only on or about 21-4-1986 or on 30-6-1986 and that the bank could not have “accepted” that resignation on any earlier date. The letter dated 7-2-1986 was, therefore, without jurisdiction.

8. The result of the above interpretation is that the employee continued to be in service till 21-4-1986 or 30-6-1986, on which date his services would have come normally to an end in terms of his letter dated 21-1-1986. But, by that time, he had exercised his right to withdraw the resignation. Since the withdrawal letter was written before the resignation became effective, the resignation stands withdrawn, with the result that the respondent continues to be in the service of the bank. It is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation becomes effective on the terms of the letter read with Regulation 20, it is open to the employee, on general principles, to withdraw his letter of resignation. That is why, in some cases of public services, this right of withdrawal is also made subject to the permission of the employer. There is no such clause here. It is not necessary to labour this point further as it is well settled by the earlier decisions of this Court in Raj Kumar v. Union of India, Union of India v. Gopal Chandra Misra and Balram Gupta v. Union of India.

11. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/post. As stated in paragraphs 41 and 50 in Gopal Chandra Misra[4], “in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post” or “in the absence of a legal contractual or constitutional bar, a ‘prospective resignation’ can be withdrawn at any time before it becomes effective”. Further, as laid down in Balram Gupta[5], “If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter.”

12. In the light of the aforementioned principles the issue whether the respondent could have withdrawn her letter of resignation depends upon answers to the following questions: A) Whether the stipulation of the notice period in the CAR is intended to safeguard the interest of the employee?; and B) Whether the provisions of the CAR and the governing principles stipulated therein are in the nature of special provisions coming within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra[4] and paragraph 12 of the decision in Balram Gupta[5] thereby disabling the respondent from withdrawing her resignation?

13. The CAR acknowledges that it takes considerable period to train a pilot to operate an aircraft and that as a part of the training, the new incumbent will be required to pass technical and performance examinations and will have to undergo simulator and flying training and to undertake skill test to satisfy the requirements. Even after imparting of such training, said person would function only as a co-pilot till he reaches the level of expertise required of a pilot. The CAR states that the resignation without minimum notice of six months could result in last minute cancellation of flights and harassment to passengers. As the pilots are highly skilled personnel, a decision was taken that any act on part of the pilots including resignation from the airlines without minimum notice period of six months be treated as an act against public interest. The CAR, therefore, provides:a) During the notice period neither the pilot shall refuse to undertake flight duties nor shall the employer deprive the pilot of his legitimate rights and privileges. b) In case the air transport undertaking resorts to reduction in the salaries/perks, the pilot will be free to make a request for his release before the expiry of the notice period c) On the expiry of the notice period an appropriate NOC shall be issued by the air transport undertaking d) The notice period of six months could however be reduced if the NOC was provided to the pilot and his resignation was accepted earlier than six months. In terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months’ notice in case she desired to leave the services of the appellant.

14. The underlying principle and the basic idea behind stipulation of the mandatory notice period is public interest. It is not the interest of the employee which is intended to be safeguarded but the public interest which is to be sub-served. It seeks to ensure that there would not be any last minute cancellation of flights causing enormous inconvenience to the travellers. It is for this reason that the concerned pilot is required to serve till the expiry of the notice period. The notice period may stand curtailed if NOC is given to the concerned pilot and the resignation is accepted even before the expiring of the notice period. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation, could be made available before the expiry of such notice period, in which case the employer is given a choice under Clause 3.[7] of the CAR. Even in such eventuality, the guiding idea or parameter is public interest. The stipulation of notice period is, therefore, only to sub-serve public interest and is designed to enable the air transport undertaking or employer to find a suitable replacement or a substitute. By very nature of the job profile a replacement for a pilot does not come so easily and therefore, the period of six months. The CAR acknowledges the fact that it would require considerable expenses and efforts to train the concerned replacement before he could be a worthy substitute. The notice period enables the air transport undertaking or the employer to gear itself up in that direction and obliges it to find a substitute or a replacement. The obligation to find a suitable replacement begins immediately on receipt of letter of resignation. In the present case, steps were taken by the appellant to discharge such obligation and replacement in Captain Jiban Mahapatra was found. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will therefore be subject to the core principles of the CAR. In our view, the instant matter would, therefore, be within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra[4] and paragraph 12 of the decision in Balram Gupta[5], and the respondent could not have withdrawn the resignation.

15. The letter of resignation may now be considered to complete the discussion. Said resignation letter dated 03.07.2017 had three relevant statements: -

1. I am tendering my resignation letter.

2. Please consider this as my six months’notice period

3. If any time I am forced to stay away from home for longer periods during this time, it will be legal for me to leave the company without completing the notice period, as these are the least of the reasons I have mentioned. The first sentence shows that the intimation was unequivocal that the respondent was tendering resignation. The following sentence referred to the notice period of six months, being the requirement under the CAR and the terms and conditions of the appointment. The third sentence clearly suggested that in case the respondent was forced to stay away from home for longer periods during the notice period, it would be open to her to leave the company without completing the notice period. The notice period was thus only in terms of the requirements of the CAR.

16. In the circumstances, we hold that the respondent could not have withdrawn the letter of resignation dated 03.07.2017. We, therefore, allow this appeal, set aside the judgment and orders passed by the Single Judge and the Division Bench of the High Court and dismiss Writ Petition (Civil) No.1991 of 2018. No order as to costs. ………………………..J. [Uday Umesh Lalit] ………………………..J. [Vineet Saran] New Delhi; August 22, 2019.