SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Air India Express Ltd. vs Capt. Gurdarshan Kaur Sandhu on 22 August, 2019

Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
1

Reportable
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6567 OF 2019
(Arising out of Special Leave Petition (Civil) No.28182 of 2018)

AIR INDIA EXPRESS LIMITED AND ORS. …Appellants

VERSUS

CAPT. GURDARSHAN KAUR SANDHU …Respondent

JUDGMENT

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal arises out of the judgment and order dated 09.04.2018

passed by the Division Bench of the High Court of Kerala at Ernakulam in

Writ Appeal No.796 of 2018 preferred by the appellants herein and thereby

affirming the view taken by the Single Judge in Writ Petition (Civil)No.

1991 of 2018.

3. The basic issue involved in the instant case is whether the

respondent, a pilot working with the appellant, could withdraw her
Signature Not Verified

Digitally signed by
INDU MARWAH
resignation that was tendered on 03.07.2017.
Date: 2019.08.22
17:48:09 IST
Reason:

Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
2

4. The statutory provisions and the concerned regulations concerning

the controversy in issue are as under:-

A] In exercise of powers conferred by Sections 5, 7 and 8(2) of the Air

Craft Act, 1934 and by Section 4 of the Indian Telegraph Act, 1885, the Air

Craft Rules, 1937 (hereinafter referred to as ‘the Rules’) were framed by

the Central Government. Part XIIA of the Rules deals with “Regulatory

Provisions”, Rule 133A in said Part is as under:-

“133A. Directions by Director-General.- (1) The
Director-General may, through Notices to Airmen
(NOTAMS), Aeronautical Information Publication,
Aeronautical Information Circulars (AICs), Notice to
Aircraft Owners and Maintenance Engineers and
publication entitled Civil Aviation Requirements issue
special directions not inconsistent with the SectionAircraft
Act, 1934 (22 of 1934) or these rules, relating to the
operation, use, possession, maintenance or navigation
of aircraft flying in or over India or of aircraft
registered in India.

(2) The Civil Aviation Requirements under sub-
rule(1) shall be issued after placing the draft on the
website of the Directorate General of Civil Aviation for
a period of thirty days for inviting objections and
suggestions from all persons likely to be affected
thereby:

Provided that the Director General may, in the
public interest and by order in writing dispense with
the requirement of inviting such objections and
suggestions.

(3) Every direction issued under sub-rule (1) shall
be complied with by the person or persons to whom
such direction is issued.”
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
3

B] On 27.10.2009 the Director General of Civil Aviation (DGCA)

issued “Civil Aviation Requirement” (‘the CAR’ for short) as under:-

“OFFICE OF THE DIRECTOR GENERAL OF
CIVIL AVIATION, TECHNICAL CENTER,
OPPOSITE SAFDARJUNG AIRPORT, NEW
DELHI.

CIVIL AVIATION REQUIREMENT
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 causes
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.”
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
4

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 CAR is 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 ‘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 ‘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.
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
5

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
CAR 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 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.

(Dr. Nasim Zaidi)
Director General of Civil Aviation”
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
6

C] It may be stated here that the revised CAR issued by the Office of

the Director General of Civil Aviation, New Delhi on 16.08.2017 now

records,

“3.1 It takes about eight to nine 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 ‘Skill Test’ to
satisfy licence requirements before he is released to
fly.”

5. The facts leading to the filing of the Writ Petition in the High Court

were as under:-

a) On 15.06.2007 the respondent was offered the post of Co-Pilot by

Air India Charters Limited on successful completion of B737-800

training on a contract for 5 years with effect from 15.06.2007.

b) On 28.07.2011 the respondent was appointed as Captain by Air

India Charters Limited after successful completion of B737-800

training with effect from 26.03.2011. On 25.01.2017 she was

appointed as Commander. Clauses 33 and 34 of the Terms and

Conditions of the appointment were:-

“33. In the event of your desiring to leave the
services of the Company at any time, you shall give
the Company six months’ notice, in writing, as per
CAR Section 7 – Flight Crew Standards Training
Licensing, Series ‘X’ Part II, Issue II dated October
27, 2009 and as amended from time to time subject to
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
7

minimum of six months. You will also be required to
serve the Company during the Notice Period.

34. In the event of your cessation of service for any
reason whatsoever or your leaving abandoning the
Company, you shall be obliged to account for and
return the property of the Company, such as identify
cards, instruments, tools, books, uniforms, Company
accommodation, if any, in your possession, custody or
charge, failing which your stipend/salary shall be
withheld and/or equivalent amount will be liable to be
recovered or any such other action may be taken as
deemed fit. … …”

c) On and with effect from 05.05.2017 the name of the Company

was changed from ‘Air India Charters Limited’ to ‘Air India

Express Limited’.

d) On 03.07.2017 the respondent sent a communication through

e-mail to Chief of Operations of the first appellant submitting her

resignation. The relevant assertions in the letter were as under:-

“I, Capt. G.K. Sandhu, am from the first batch of Air
India Express pilot, flying for more than 12 years
now, without even a single spot on my flying career.

I am tendering my resignation today. Please consider
this as my six months’ notice period. I am listing
below the reasons of my resignation.

… … …

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.”
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
8

e) According to the appellants, in view of the above resignation, a

replacement pilot viz. Captain Jiban Mahapatra was engaged on

14.08.2017 as Captain and was given appropriate training by the

appellant which cost the appellant more than Rs.12,00,000/-.

f) On 02.09.2017 the resignation sent by the respondent was

accepted by the appellants as under:-

“Dear Madam,

Your resignation dated 03.07.2017 from the services
of Air India Express has been accepted by competent
authority. Your expected release after completion of
six months notice period from your date of
resignation.

This is for your kind information. You are requested
to complete all the Admin formalities before release.”

g) More than three months later, on 18.12.2017 an e-mail was

sent by the respondent to the appellants seeking to withdraw

her resignation as under:-

“Respected Sir,

I would like to inform you that I am withdrawing my
resignation dated 3rd July, 2017 with immediate effect
and will continue serving the company as per my
current designation.

Kind Regards,

Capt. G.K. Sandhu
Staff No. 76002”
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
9

h) On 29.12.2017 a letter was received from the Advocates of the

respondent that since she had withdrawn the resignation, the

respondent be rostered for future flights with effect from

02.01.2018. A response was, thereafter, sent by the appellants to

the respondent on 04.01.2018 stating as under:-

“… …Please note that your request for withdrawal of
your resignation letter cannot be acceded to as your
resignation had become effective from 03.07.2017 by
virtue of its acceptance vide email dated 02.09.2017
and you stood released from the services of the
Company w.e.f. 02.01.2018 (i.e. on completion of six
months notice period w.e.f. 03.07.2017). … …”

6. Thereafter, the respondent filed Writ Petition (Civil)No. 1991 of

2018 before the High Court challenging the letters dated 02.09.2017 and

04.01.2018 and for declaration that the respondent was eligible and

entitled to continue with all service benefits without any break in service

and that the appellant be directed to forthwith disburse to the respondent

the salary and other service conditions. The Writ Petition was allowed

by a Single Judge of the High Court by judgment and order dated

22.02.2018. The objection taken by the appellants as regards territorial

jurisdiction to consider the controversy in question was rejected. The

provisions of the CAR (Ext.P3) were considered and relying upon the
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
10

decisions of this Court in SectionSrikantah S.M. v. Bharath Earth Movers

Ltd.1, SectionJ.N. Srivastava v. Union of India and another2, SectionShambhu

Murari Sinha v. Project and Development India Limited and another 3

it was observed that the resignation tendered by the respondent could be

withdrawn by her before she was actually relieved from service. The

Single Judge 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.”

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

1 (2005) 8 SCC 314
2 (1998) 9 SCC 559
3 (2002) 3 SCC 437
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
11

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 Ext.P5 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

SectionUnion of India v. Gopal Chandra Mishra4 and SectionBalram Gupta v. Union

of India and another5 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

4 (1978) 2 SCC 301
5 1987 (Supp) SCC 228
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
12

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.
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
13

A] In Jai Ram vs. Union of India6, 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.

6 AIR 1954 SC 584
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
14

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 post-
retirement 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.”

SectionB] In Raj Kumar v. Union of India7, 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
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
15

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 SectionArticle 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 SectionState 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
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
16

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.”

SectionC] In Union of India and others v. Gopal Chandra Mishra and

others4 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 Ram6 and Raj Kumar7 were considered and while dealing

with the scope of clause(a) of the proviso to SectionArticle 217 of the

Constitution, the Constitution Bench of this Court stated:-

“20. Here, in this case, we have to focus attention on
clause (a) of the proviso. In order to terminate his
tenure under this clause, the Judge must do three
volitional things: Firstly, he should execute a “writing
under his hand”. Secondly, the writing should be
“addressed to the President”. Thirdly, by that writing
he should “resign his office”. If any of these things is
not done, or the performance of any of them is not
complete, clause (a) will not operate to cut short or
terminate the tenure of his office.

22. It may be observed that the entire edifice of this
reasoning is founded on the supposition that the
“Judge” had completely performed everything which
he was required to do under proviso (a) to Article
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
17

217(1). We have seen that to enable a Judge to
terminate his term of office by his own unilateral act,
he has to perform three things. In the instant case,
there can be no dispute about the performance of the
first two, namely: (i) he wrote a letter under his hand,

(ii) addressed to the President. Thus, the first two
pillars of the ratiocinative edifice raised by the High
Court rest on sound foundations. But, is the same true
about the third, which indisputably is the chief prop of
that edifice? Is it a completed act of resignation within
the contemplation of proviso (a)? This is the primary
question that calls for an answer. If the answer to this
question is found in the affirmative, the appeals must
fail. If it be in the negative, the foundation for the
reasoning of the High Court will fail and the appeals
succeed.”

The tenor and the effect of resignation were then considered in

paragraph 28 and it was held that the letter in question was merely an

intimation or notice to resign the office on a future date and it was open to

withdraw the resignation before the arrival of the indicated future date.

The observations were:-

“28. The substantive body of this letter (which has
been extracted in full in a foregoing part of this
judgment) is comprised of three sentences only. In the
first sentence, it is stated: “I beg to resign my office as
Judge, High Court of Judicature at Allahabad.” Had
this sentence stood alone, or been the only content of
this letter, it would operate as a complete resignation
in praesenti, involving immediate relinquishment of
the office and termination of his tenure as Judge. But
this is not so. The first sentence is immediately
followed by two more, which read : “I will be on
leave till July 31, 1977. My resignation shall be
effective on August 1, 1977.” The first sentence
cannot be divorced from the context of the other two
sentences and construed in isolation. It has to be read
along with the succeeding two which qualify it.

Construed as a whole according to its tenor, the letter
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
18

dated May 7, 1977, is merely an intimation or notice
of the writer’s intention to resign his office as Judge,
on a future date viz. August 1, 1977. For the sake of
convenience, we might call this communication as a
prospective or potential resignation, but before the
arrival of the indicated future date it was certainly not
a complete and operative resignation because, by
itself, it did not and could not, sever the writer from
the office of the Judge, or terminate his tenure as
such.”

The Court went on to state the principles as:-

“41. The general principle that emerges from the
foregoing conspectus, is that in the absence of
anything to the contrary in the provisions governing
the terms and conditions of the office/post, an
intimation in writing sent to the competent authority
by the incumbent, of his intention or proposal to
resign his office/post from a future specified date can
be withdrawn by him at any time before it becomes
effective, i.e. before it effects termination of the
tenure of the office/post or the employment.

50. It will bear repetition that the general principle is
that in the absence of a legal, contractual or
constitutional bar, a “prospective” resignation can be
withdrawn at any time before it becomes effective,
and it becomes effective when it operates to terminate
the employment or the office-tenure of the resignor.

This general rule is equally applicable to government
servants and constitutional functionaries. In the case
of a government servant/or functionary/who cannot,
under the conditions of his service/or office, by his
own unilateral act of tendering resignation, give up
his service/or office, normally, the tender of
resignation becomes effective and his service/or
office-tenure terminated, when it is accepted by the
competent authority. In the case of a Judge of a High
Court, who is a constitutional functionary and under
proviso (a) to SectionArticle 217(1) has a unilateral right or
privilege to resign his office, his resignation becomes
effective and tenure terminated on the date from
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
19

which he, of his own volition, chooses to quit office.
If in terms of the writing under his hand addressed to
the President, he resigns in praesenti, the resignation
terminates his office-tenure forthwith, and cannot
therefore, be withdrawn or revoked thereafter. But, if
he by such writing, chooses to resign from a future
date the act of resigning office is not complete
because it does not terminate his tenure before such
date and the Judge can at any time before the arrival
of that prospective date on which it was intended to
be effective, withdraw it, because the Constitution
does not bar such withdrawal.”

As regards the applicability of the rule in Jai Ram6, it was stated:-

“49. In our opinion, none of the aforesaid reasons
given by the High Court for getting out of the
ratio of Jai Ram case is valid. Firstly, it was not a
“casual” enunciation. It was necessary to dispose
of effectually and completely the second point
that had been canvassed on behalf of Jai Ram.

Moreover, the same principle was reiterated
pointedly in 1968 in Raj Kumar case. Secondly, a
proposal to retire from service/office and a tender
to resign office from a future date for the purpose
of the point under discussion, stand on the same
footing. Thirdly, the distinction between a case
where the resignation is required to be accepted
and the one where no acceptance is required,
makes no difference to the applicability of the rule
in Jai Ram case.”

SectionD] In Balram Gupta v. Union of India5 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 Kumar7 and Gopal Chandra Misra4, this

Court considered the relevant guidelines and observed:
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
20

“12. In this case the guidelines are that ordinarily
permission should not be granted unless the officer
concerned is in a position to show that there has been
a material change in the circumstances in
consideration of which the notice was originally
given. In the facts of the instant case such indication
has been given. The appellant has stated that on the
persistent and personal requests of the staff members
he had dropped the idea of seeking voluntary
retirement. We do not see how this could not be a
good and valid reason. It is true that he was resigning
and in the notice for resignation he had not given any
reason except to state that he sought voluntary
retirement. We see nothing wrong in this. In the
modern age we should not put embargo upon people’s
choice or freedom. 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 but the appellant’s
offer to retire and withdrawal of the same happened in
such quick succession that it cannot be said that any
administrative set-up or arrangement was affected.
The administration has now taken a long time by its
own attitude to communicate the matter. For this the
respondent is to blame and not the appellant.”

E) The principles laid down in Union of India and others v. Gopal

Chandra Misra4 have since then been followed by this Court in P.

SectionKasilingam vs. P.S.G. College of Technology 8, SectionPunjab National Bank

vs. P.K. Mittal9, SectionMoti Ram vs. Param Dev10, Power Finance Corpn.

SectionLtd. vs. Pramod Kumar Bhatia11 Nand Keshwar Prasad vs. Indian

Farmers Fertilizers Coop. Ltd.12, SectionJ.N. Srivastava vs. Union of India

8 (1981) 1 SCC 405
9 (1989) Supp 2 SCC 175
10 (1993) 2 SCC 725
11 (1997) 4 SCC 280
12 (1998) 5 SCC 461
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
21

and another2, SectionUnion of India vs. Wing Commander T. Parthasarathy 13,

SectionShambhu Murari Sinha vs. Proect Development India Ltd. 3, SectionBank

of India vs. O.P. Swarnakar14, SectionReserve Bank of India vs. Cecil Denis

Solomon15, SectionSrikantha S.M. vs. Bharath Earth Movers Ltd. 1, SectionSecy.,

Technical Education, U.P. and ors. vs. Lalit Mohan Upadhyay 16,

SectionNew India Assurance Company Ltd. vs. Raghuvir Singh Narang and

another17 and SectionUnion of India and ors. vs. Hitendra Kumar Soni18.

SectionF) In Punjab National Bank vs. P.K. Mittal9 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:

“20. (1) Subject to sub-regulation (3) of Regulation
16, the bank may terminate the services of any officer
by giving him three months’ notice in writing or by
paying him three months’ emoluments in lieu thereof.

(2) No officer shall resign from the service of the bank
otherwise than on the expiry of three months from the
13 (2001) 1 SCC 158
14 (2003) 2 SCC 721
15 (2004) 9 SCC 461
16 (2007) 4 SCC 492
17 (2010) 5 SCC 335
18 (2014) 13 SCC 204
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
22

service on the bank of a notice in writing of such
resignation:

Provided further that the competent authority may reduce
the period of three months, or remit the requirement of
notice.”

The submission that Clause 2 of Regulation 20 and its proviso

were intended only to safeguard the bank’s interest and as such the bank

could accept the resignation before the date when it was to come into

effect was rejected by this Court in following terms:

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
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
23

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 SectionRaj Kumar v. Union of
India, SectionUnion of India v. Gopal Chandra Misra and
SectionBalram 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 Misra4, “in the absence

of anything to the contrary in the provisions governing the terms and
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
24

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

Gupta5, “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 Mishra4 and paragraph 12 of the decision in Balram
Gupta5 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
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
25

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
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
26

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
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
27

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 Mishra4 and paragraph 12 of

the decision in Balram Gupta5, 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
Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
28

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;

Civil Appeal No. 6567 of 2019 @ SLP (Civil) No.28182 of 2018
Air India Express Ltd. and Others Vs. Capt. Gurdarshan Kaur Sandhu
29

August 22, 2019.

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation