Rights and Limitations of an Employee to Withdraw Resignation
Civil Aviation Requirement – A bench comprising of Justice Ajay Uday Umesh Lalit and Justice Vineet Saran of the Hon’ble Supreme Court of India in the matter of Air India Express Limited vs. Capt. Gurdarshan Kaur Sandhu[1] held that the condition of the notice period is solely to sub-serve public interest and is intended to enable an airline to find an appropriate substitute for the same. The resignation shall also be regulated by the provisions led down by the Director-General of Civil Aviation in the Civil Aviation Requirement (CAR).
Civil Aviation Requirement – ABOUT THE LAW
Following are the
regulations led down in the CAR for regulating resignations in airlines, which
will help us to understand the issue in the mentioned case.
CIVIL AVIATION
REQUIREMENTS SECTION 7 – FLIGHT CREW STANDARDS TRAINING AND LICENSING
SERIES ‘X’ PART II,
ISSUE II, 27TH OCTOBER 2009 EFFECTIVE: FORTHWITH
Subject:
Requirement of ‘Notice Period’ by the Pilots to the airlines employing them.
1.
INTRODUCTION
1.1
It has been observed that pilots are resigning without providing any notice to the
airlines. In some cases, even groups of pilots resign together without notice
and as a result, airlines are forced to cancel their flights at the last
minute. Such resignation by the pilots and the resultant cancellation of
flights cause inconvenience and harassment to the passengers. Sometimes such an
abrupt action on the part of the pilots is in the form of a concerted move,
which is tantamount to holding the airlines to ransom and leaving the
travelling public stranded. This is a highly undesirable practice and goes
against the public interest.
1.2
Such an action on the part of pilots attracts the provisions of sub-rule (2) of
rule 39A of the Aircraft Rules, 1937, which reads as follows: “The Central
Government may debar a person permanently or temporarily from holding any
licence or rating mentioned in rule 38 if in its opinion it is necessary to do
so in the public interest.”
2.
APPLICABILITY
2.1
This Civil Aviation Requirement shall be applicable to the pilots in regular
employment of any air transport undertaking as defined in clause (9A) of rule 3
of the Aircraft Rules, 1937.
2.2
This Civil Aviation Requirement was issued with the approval of the Ministry of
Civil Aviation vide their letters No.A2012/08/2005-A dated 1st September 2005
and No.A.60015/024/2008-VE dated 21st October 2009.
3.
REQUIREMENTS
3.1
It takes about four months to train a pilot to operate an aircraft used for
airline operations, as he has to pass technical and performance examinations of
the aircraft, undergo simulator & flying training and has to undertake the ‘Skill
Test’ to satisfy licence requirements. Even after this training, the pilot can
operate only as a co-pilot. To operate an aircraft as Pilot-in-Command (PIC),
he needs to gain experience and undertake the ‘Skill Test’ to fly as PIC of an
aircraft, which may take another four months or so. Therefore, it would take
more than four months for an airline to replace a trained Pilot-in-Command.
3.2
Pilots are highly skilled personnel and shoulder complete responsibility of the
aircraft and the passengers. They are highly paid for the responsibility they
share with the airlines towards the travelling public and are required to act
with extreme responsibility.
3.3
In view of the above, it has been decided by the Government that any act on the
part of pilots including resignation from the airlines without a minimum notice
period of six months, which may result into last-minute cancellation of flights
and harassment to passengers, would be treated as an act against the public interest.
3.4
It has, therefore, been decided that every pilot working in an air transport
undertaking shall give a ‘Notice Period’ of at least six months to the employer
indicating his intention to leave the job. During the notice period, neither
the pilot shall refuse to undertake the flight duties assigned to him nor shall
the employer deprive the pilot of his legitimate rights and privileges with
respect to the assignment of his duties.
Failure
to comply with the provisions of the Civil Aviation Requirement may lead to
action against the pilot or the air transport undertaking, as the case may be,
under the relevant provisions of Aircraft Rules, 1937.
3.5
In case of an air transport undertaking resorts to reduction in the
salary/perks or otherwise alters the terms and conditions of the employment to
the disadvantage of the employee pilot during the notice period, the pilot
shall be free to make a request for his release before the expiry of the notice
period and the air transport undertaking shall accept his request.
3.6
It shall be mandatory for the air transport undertaking to issue NOC to the
pilot on expiry of the notice period of six months, failing which it shall be
liable to penal action by DGCA.
3.7
The ‘Notice Period’ of six months, however, may be reduced if the air transport
undertaking provides a ‘No Objection Certificate’ to a pilot and accepts his
resignation earlier than six months.
FACTS:
In
the abovementioned case, Capt. Gurdarshan Kaur Sandhu (Respondent),
who was working as a Captain in the Air India Express Limited
(Appellant), made a resignation to the Appellant on 03.07.2017. The same
was accepted by the Appellant on 02.09.2017. After a period of three months
i.e. 18.12.2017, she intimated her revocation of resignation dated 03.07.2017.
The Appellant refused the revocation made by the Respondent on the ground that
her resignation has become operative from 03.07.2017 as it was accepted by
Appellant on 02.09.2017 and the same shall be terminated on 02.01.2018
(completion of a period of six months). The Respondent aggrieved by the said
decision of the Appellant filed a writ petition before High Court of Delhi
opposing that it was open to her to revoke the said resignation before the
expiry of the said period.
The
High Court of Delhi allowed her contention and a single bench relying on the judgement
passed in Srikantah S.M. v. Bharath Earth Movers Ltd.[2],
J.N. Srivastava v. Union of India and another[3],
Shambhu Murari Sinha v. Project and Development India Limited and another[4]
stated that the Respondent can revoke her resignation before she is
actually relieved from services. It concluded “In the present case also since the resignation was to take effect from
02.01.2018, the petitioner could have very well withdrawn her resignation and
the respondents could not have withheld the same or rejected the same. In this
case there is one more obligation on the respondents under clause 3.6 of
Ext.p3, to issue an NOC on acceptance of resignation. Such a no-objection
certificate is not granted even when they issued Ext.P8 letter and refused to
assign her duty from 02.01.2018 onwards.”
The
Appellant challenged the said order before the Division Bench of Hon’ble High
Court of Delhi but it was rejected and the court relied on the decision passed
by Single Bench and held that: “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.P2 letter of resignation was accepted the tenor of Ext.P5 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 the Ext.P5 letter.”
Therefore,
the present appeal was made before the Hon’ble Supreme Court of India by the
Appellant against the Order of Division Bench of Hon’ble High Court of Delhi.
ISSUE:
Does
the Respondent have the right to revoke her resignation before the expiry of the
said notice period, where the notice of resignation has been accepted by the
Appellant?
SUBMISSION:
The
Appellant submitted that when the Respondent made her resignation to the
Appellant on 03.07.2017, the Appellant appointed another Captain Jiban
Mahapatra on 14.08.2017 as her replacement which cost Appellant more than
12,00,000/-.
The
Counsel for Respondent presented that the resignation made by the respondent
was to come into effect from a prospective date and the respondent was
therefore entitled to revoke the resignation before it became effective. It was
further stated that the expenditure bore by the Appellant in training another
pilot is of no significance, as for an organisation like Air India, the
requirement and consequential training of pilots is a regular feature.
The
Court after referring to a catena of judgments such as Jai Ram v. Union of India[5],
Raj Kumar v. Union of India[6],
Union of India and others. v. Gopal Chandra Mishra and others[7],
Balram Gupta v. Union of India[8],
Punjab National Bank v. Union of India[9]
led down the rights and
limitations of withdrawing resignation which stated that until the resignation
becomes effective, it is open to an employee to withdraw his resignation. The
point of time from which the resignation would become effective may depend upon
the governing service regulations or the terms and conditions of the office/post.
As stated in Gopal Chandra Misra case, “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 the Balram
Gupta case, “If, however, the administration had made arrangements acting
on his resignation or letter of retirement to make another employee available
for his job, that would be another matter.” Therefore, the court had two
questions to determine:
- Whether
the stipulation of the notice period in the Civil Aviation Requirement is
intended to safeguard the interest of the employee; and - Whether
the provisions of the Civil Aviation Requirement and the governing principles
stipulated therein are in the nature of special provisions coming within the
exception stipulated in decision of Gopal Chandra Mishra case and in Balra
Gupta case thereby disabling the respondent from withdrawing her
resignation
JUDGEMENT:
The
court held that “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 was
further stated that the present case comes within the exceptions illustrated in
the decisions of Gopal Chandra Mishra Case and Balram Gupta Case, and the
Respondent could not withdraw the resignation. Further, the Hon’ble Supreme
Court of India has observed that the general principle that an employee can
withdraw his resignation at any time before his resignation becomes effective
will be subject to the core principles of Civil Aviation Requirement and that
the condition of notice period is only to sub-serve public interest and is
intended to enable the air transport to find a suitable replacement or
substitute for the same. Therefore, the Hon’ble Supreme Court of India allowed
the appeal and set aside the judgement of High Court Single and Division Bench
and barred the Respondent from revoking her resignation.
CONCLUSION:
The
Supreme Court while deciding this case has carefully interpreted the Civil
Aviation Requirement provisions and has certainly explained the rights and
limitations of an employee to withdraw its resignation. The Supreme Court has
also stated that the mandatory time period for notice in provisions of Civil
Aviation Requirement is to benefit the public interest and not the employee at
service.
- [1] Civil Appeal No. 6567 of 2019
- [2] (2005) 8 SCC 314
- [3] (1998) 9 SCC 559
- [4] (2002) 3 SCC 437
- [5] AIR 1954 SC 584
- [6] (1968) 3 SCR 857
- [7] (1981) 1 SCC 405
- [8] (1989) Supp 2 SCC 725
- [9] (1993) 4 SCC 461
Contributed By – Rajdev Singh, Partner
Ragini Sharma, Associate
King Stubb & Kasiva,
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