By - Rajdev Singh on September 7, 2019
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 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).
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.
1.1 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.”
2.1 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.
3.1 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.
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., J.N. Srivastava v. Union of India and another, Shambhu Murari Sinha v. Project and Development India Limited and another 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.
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?
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, Raj Kumar v. Union of India, Union of India and others. v. Gopal Chandra Mishra and others, Balram Gupta v. Union of India, Punjab National Bank v. Union of India 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:
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.
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