India: Rights And Limitations Of An Employee To Withdraw Resignation

Last Updated: 12 September 2019
Article by Rajdev Singh and Ragini Sharma

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).

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:

  1. Whether the stipulation of the notice period in the Civil Aviation Requirement is intended to safeguard the interest of the employee; and
  2. 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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions