AIR INDIA EXPRESS LIMITED AND ORS. versus CAPT. GURDARSHAN KAUR SANDHU on 22 August 2019

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SUPREME COURT REPORTS[2019] 12 S.C.R. 980

[2019] 12 S.C.R.

AIR INDIA EXPRESS LIMITED AND ORS.

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CAPT. GURDARSHAN KAUR SANDHU

(Civil Appeal No.6567 of 2019)

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AUGUST 22, 2019

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Service Law – Withdrawal of Resignation – Respondent wasworking as a pilot in the appellant-Company – On 03.07.2017respondent communicated through e-mail her resignation to theCappellant – In view of her resignation, appellant engaged areplacement pilot – On 02.09.2017, the resignation sent by therespondent was accepted by the appellants – Thereafter on18.12.2017, respondent sent an e-mail and sought withdrawal ofher resignation – Her request for withdrawal of resignation wasDnot accepted by the appellants – Writ petition by the respondent –High Court held that the resignation tendered by the respondentcould be withdrawn by her before she was actually relieved fromthe service – On appeal before the Supreme Court, the appellantscontended that they had already taken appropriate steps for findingand training an alternative and as such the instant case came withinEthe exceptions acknowledged in the decisions of Gopal ChandraMishra and Balram Gupta – Held: It is settled that normally, until theresignation becomes effective, it is open to an employee to withdrawhis resignation – When would the resignation become effective maydepend upon the governing service regulations and/or the termsFand conditions of the office/post – In the instant case, the provisionsof the Civil Aviation Requirements (CAR), the terms and conditionsof appointment specifically stated that the respondent would givesix months’ notice in case she desired to leave the services of theappellant – The underlying principle and the basic idea behindstipulation of the mandatory notice period is public interest – ByGvery nature of the job profile a replacement for a pilot does notcome so easily and therefore, the period of six months – The CARacknowledges the fact that it would require considerable expensesand efforts to train the concerned replacement before he could bea worthy substitute – In the present case, steps were taken by theH

appellant to discharge such obligation and replacement was found– Therefore, the instant matter would be within the exceptionstipulated in the decisions of Gopal Chandra Mishra and Balram Gupta,and the respondent could not have withdrawn the resignation – AirCraft Act, 1934 – ss.5,7 and 8(2) – Indian Telegraph Act, 1885 –s.4 – Air Craft Rules, 1937 – Part XII.

Allowing the appeal, the Court

HELD: 1. It is well settled that normally, until theresignation becomes effective, it is open to an employee towithdraw his resignation. When would the resignation becomeeffective may depend upon the governing service regulations and/or the terms and conditions of the office/post. As stated in GopalChandra Mishra, “in the absence of anything to the contrary inthe provisions governing the terms and conditions of the office/post” or “in the absence of a legal contractual or constitutionalbar, a ‘prospective resignation’ can be withdrawn at any timebefore it becomes effective”. Further, as laid down in BalramGupta, “If, however, the administration had made arrangementsacting on his resignation or letter of retirement to make otheremployee available for his job, that would be another matter.”[Para 11] [1001-E-G]

2. In the light of the aforementioned principles the issuewhether the respondent could have withdrawn her letter ofresignation depends upon answers to the following questions:

A) Whether the stipulation of the notice period in the CivilAviation Requirement (CAR) is intended to safeguard the interestof the employee? ; and

B) Whether the provisions of the CAR and the governingprinciples stipulated therein are in the nature of special provisionscoming within the exception stipulated in Gopal Chandra Mishraand Balram Gupta cases thereby disabling the respondent fromwithdrawing her resignation? [Para 12] [1001-G-H; 1002-A-B]

3. The CAR acknowledges that it takes considerable periodto train a pilot to operate an aircraft and that as a part of thetraining, the new incumbent will be required to pass technicaland performance examinations and will have to undergo simulator A

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Aand flying training and to undertake skill test to satisfy therequirements. Even after imparting of such training, said personwould function only as a co-pilot till he reaches the level ofexpertise required of a pilot. The CAR states that the resignationwithout minimum notice of six months could result in last minutecancellation of flights and harassment to passengers. As the pilotsBare highly skilled personnel, a decision was taken that any act onpart of the pilots including resignation from the airlines withoutminimum notice period of six months be treated as an act againstpublic interest. [Para 13] [1002-C-D]

4. The underlying principle and the basic idea behindCstipulation of the mandatory notice period is public interest. It isnot the interest of the employee which is intended to besafeguarded but the public interest which is to be sub-served. Itseeks to ensure that there would not be any last minutecancellation of flights causing enormous inconvenience to the Dtravellers. It is for this reason that the concerned pilot is requiredto serve till the expiry of the notice period. The notice periodmay stand curtailed if NOC is given to the concerned pilot andthe resignation is accepted even before the expiring of the noticeperiod. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation,Ecould be made available before the expiry of such notice period,in which case the employer is given a choice under Clause 3.7 ofthe CAR. Even in such eventuality, the guiding idea or parameteris public interest. [Para 14] [1003-A-C]5. The stipulation of notice period is, therefore, only toFsub-serve public interest and is designed to enable the airtransport undertaking or employer to find a suitable replacementor a substitute. By very nature of the job profile a replacementfor a pilot does not come so easily and therefore, the period ofsix months. The CAR acknowledges the fact that it would requireGconsiderable expenses and efforts to train the concernedreplacement before he could be a worthy substitute. The noticeperiod enables the air transport undertaking or the employer togear itself up in that direction and obliges it to find a substituteor a replacement. The obligation to find a suitable replacement H

begins immediately on receipt of letter of resignation. In thepresent case, steps were taken by the appellant to discharge suchobligation and replacement was found. The normal principle thatan employee can at any time before the resignation becomeseffective, withdraw his resignation will therefore be subject tothe core principles of the CAR. Therefore, the instant matterwould be within the exception stipulated in decisions of the GopalChandra Mishra and Balram Gupta, and the respondent couldnot have withdrawn the resignation. [Para 14] [1003-D-G]

Union of India v. Gopal Chandra Mishra (1978) 2 SCC301 : [1978] 3 SCR 12 – followed.

Balram Gupta v. Union of Indiaand Another (1987)Suppl. SCC 228 :[1987] SCR 1173 ;Jai Ram v. Unionof India AIR 1954 SC 584 ; Raj Kumar v. Union ofIndia[1968] 3 SCR 857 – relied on.

Srikantah S.M. v. Bharath Earth Movers Ltd. (2005) 8SCC 314 : [2005] 4 Suppl. SCR 156 ; J.N. Srivastavav. Union of India and Another (1998) 9 SCC 559;Shambhu Murari Sinha v. Project and DevelopmentIndia Limited and Another (2002) 3 SCC 437 : [2002]2 SCR 396; P. Kasilingam v. P.S.G. College ofTechnology (1981) 1 SCC 405 : [1981] 2 SCR 490;Punjab National Bank v. P.K. Mittal [1989] 2 Suppl.SCC 175 : [1989] 1 SCR 612 ;Moti Ram v. ParamDev(1993) 2 SCC 725 : [1993] 2 SCR 250;PowerFinance Corpn. Ltd. v. Pramod Kumar Bhatia(1997) 4SCC 280 : [1997] 2 SCR 1170 ; Nand Keshwar Prasadv. Indian Farmers Fertilizers Coop. Ltd. (1998) 5 SCC461; Union of India v. Wing Commander T.Parthasarathy (2001) 1 SCC 158 : [2000] 4 Suppl.SCR 531;Bank of India v. O.P. Swarnakar(2003) 2SCC 721 : [2002] 5 Suppl. SCR 438 ; Reserve Bankof India v. Cecil Denis Solomon (2004) 9 SCC 461 :[2003] 6 Suppl. SCR 465; Secy., Technical Education,U.P. and Ors. v. Lalit Mohan Upadhyay(2007) 4 SCC492 : [2007] 4 SCR 976;New India Assurance CompanyLtd. v. Raghuvir Singh Narang and Another(2010) 5

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6567of 2019

GFrom the Judgment and Order dated 09.04.2018 of the High Courtof Kerala at Ernakulam in W.A. No. 796 of 2018

Ms. Madhvi Divan, ASG, Lalit Bhasin, Ms. Nina Gupta, Ms. PalakChadha, P. V. Yogeswaran, Dhawal Jain, Ms. Vaishali Verma, Advs.for the Appellants.

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Jamshed P. Cama, Sr. Adv., Anil Kumar Mishra-I, Ms. SuruchiKumar, M. Kumar Advs., for the Respondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

1. Leave granted.

2. This appeal arises out of the judgment and order dated09.04.2018 passed by the Division Bench of the High Court of Kerala atErnakulam in Writ Appeal No.796 of 2018 preferred by the appellantsherein and thereby affirming the view taken by the Single Judge in WritPetition (Civil) No. 1991 of 2018.

3. The basic issue involved in the instant case is whether therespondent, a pilot working with the appellant, could withdraw herresignation that was tendered on 03.07.2017.

4. The statutory provisions and the concerned regulationsconcerning the controversy in issue are as under:- A] In exercise of powers conferred by Sections 5, 7 and 8(2) ofthe 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 dealswith “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), AeronauticalInformation Publication, Aeronautical Information Circulars(AICs), Notice to Aircraft Owners and Maintenance Engineersand publication entitled Civil Aviation Requirements issue specialdirections not inconsistent with the Aircraft 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 ofaircraft registered in India.

(2) The Civil Aviation Requirements under sub-rule(1) shall beissued after placing the draft on the website of the DirectorateGeneral of Civil Aviation for a period of thirty days for invitingobjections and suggestions from all persons likely to be affectedthereby:

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AProvided that the Director General may, in the public interest andby order in writing dispense with the requirement of inviting suchobjections and suggestions.

(3) Every direction issued under sub-rule (1) shall be compliedwith by the person or persons to whom such direction is issued.”

BB] 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 CIVILAVIATION, TECHNICAL CENTER, OPPOSITESAFDARJUNG AIRPORT, NEW DELHI.

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CIVIL AVIATION REQUIREMENT

SECTION 7 – FLIGHT CREW STANDARDS

TRAINING AND LICENSING

SERIES ‘X’ PART II

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ISSUE II, 27[TH] OCTOBER 2009 EFFECTIVE:FORTHWITHSubject: Requirement of ‘Notice Period’ by the Pilots to the airlinesemploying them.

1. INTRODUCTION

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1.1 It has been observed that pilots are resigning withoutproviding any notice to the airlines. In some cases, evengroups of pilots resign together without notice and as a resultairlines are forced to cancel their flights at the last minute.Such resignation by the pilots and the resultant cancellationFof flights causes inconvenience and harassment to thepassengers. Sometimes such an abrupt action on the partof the pilots is in the form of a concerted move, which istantamount to holding the airlines to ransom and leaving thetravelling public stranded. This is a highly undesirablepractice and goes against the public interest.

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1.2 Such an action on the part of pilots attracts the provisionsof sub-rule (2) of rule 39A of the Aircraft Rules, 1937, whichreads as follows:

“The Central Government may debar a person permanentlyor temporarily from holding any licence or rating mentioned H

AIR INDIA EXPRESS LIMITED v. CAPT. GURDARSHANKAUR SANDHU [UDAY UMESH LALIT, J.]

in rule 38 if in its opinion it is necessary to do so in thepublic interest.”

2. APPLICABILITY

2.1 This Civil Aviation Requirement shall be applicable to the pilotsin regular employment of any air transport undertaking asdefined in clause (9A) of rule 3 of the Aircraft Rules, 1937.

2.2 This CAR is issued with the approval of the Ministry of CivilAviation vide their letters No.A2012/08/2005-A dated1[st] September 2005 and No.A.60015/024/2008-VE dated21[st] October 2009.

3. REQUIREMENTS

3.1 It takes about four months to train a pilot to operate an aircraftused for airline operations, as he has to pass technical andperformance examinations of the aircraft, undergo simulator& flying training and has to undertake ‘Skill Test’ to satisfylicence requirements. Even after this training, the pilot canoperate 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 anotherfour months or so. Therefore, it would take more than fourmonths for an airline to replace a trained Pilot-in-Command.

3.2 Pilots are highly skilled personnel and shoulder completeresponsibility of the aircraft and the passengers. They arehighly paid for the responsibility they share with the airlinestowards the travelling public and are required to act withextreme responsibility.

3.3 In view of the above, it has been decided by the Governmentthat any act on the part of pilots including resignation from theairlines without a minimum notice period of six months, whichmay result into last minute cancellation of flights and harassmentto passengers, would be treated as an act against the publicinterest.

3.4 It has, therefore, been decided that every pilot working in anair transport undertaking shall give a ‘Notice Period’ of at leastsix months to the employer indicating his intention to leave the A

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Ajob. During the notice period, neither the pilot shall refuse toundertake the flight duties assigned to him nor shall the employerdeprive the pilot of his legitimate rights and privileges withrespect to the assignment of his duties. Failure to comply withthe provisions of the CAR may lead to action against the pilotor the air transport undertaking, as the case may be, under theBrelevant provisions of Aircraft Rules, 1937.

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3.5 In case an air transport undertaking resorts to reduction in thesalary/perks or otherwise alters the terms and conditions ofthe employment to the disadvantage of the employee pilotduring the notice period, the pilot shall be free to make aCrequest for his release before the expiry of the notice periodand the air transport undertaking shall accept his request.

3.6 It shall be mandatory for the air transport undertaking to issueNOC to the pilot on expiry of the notice period of six months,failing which it shall be liable to penal action by DGCA.

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3.7 The ‘Notice Period’ of six months, however, may be reducedif the air transport undertaking provides a ‘No ObjectionCertificate’ to a pilot and accepts his resignation earlier thansix months.

(Dr. Nasim Zaidi)

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Director General of Civil Aviation”

C] It may be stated here that the revised CAR issued by theOffice of the Director General of Civil Aviation, New Delhi on 16.08.2017now records,F“3.1 It takes about eight to nine months to train a pilot to operatean aircraft used for airline operations, as he has to pass technicaland performance examinations of the aircraft, undergo simulator& flying training and has to undertake ‘Skill Test’ to satisfy licencerequirements before he is released to fly.”

G5. The facts leading to the filing of the Writ Petition in the HighCourt were as under:-

a) On 15.06.2007 the respondent was offered the post of Co-Pilot byAir India Charters Limited on successful completion of B737-800training on a contract for 5 years with effect from 15.06.2007.

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b)On 28.07.2011 the respondent was appointed as Captain by AirIndia Charters Limited after successful completion of B737-800training with effect from 26.03.2011. On 25.01.2017 she wasappointed as Commander. Clauses 33 and 34 of the Terms andConditions of the appointment were:- “33 In the event of your desiring to leave the services of theCompany at any time, you shall give the Company six months’notice, in writing, as per CAR Section 7 – Flight Crew StandardsTraining & Licensing, Series ‘X’ Part II, Issue II dated October27, 2009 and as amended from time to time subject to minimumof six months. You will also be required to serve the Companyduring the Notice Period.

34. In the event of your cessation of service for any reasonwhatsoever or your leaving abandoning the Company, you shallbe 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, custodyor charge, failing which your stipend/salary shall be withheldand/or equivalent amount will be liable to be recovered or anysuch other action may be taken as deemed fit. … …”

c)On and with effect from 05.05.2017 the name of the Companywas changed from ‘Air India Charters Limited’ to ‘Air IndiaExpress Limited’.

d)On 03.07.2017 the respondent sent a communication through e-mail to Chief of Operations of the first appellant submitting herresignation. The relevant assertions in the letter were as under:- “I, Capt. G.K. Sandhu, am from the first batch of Air IndiaExpress pilot, flying for more than 12 years now, without even asingle spot on my flying career.

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

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If any time I am forced to stay away from home for longerperiods during this time, it will be legal for me to leave the A

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Acompany without completing the notice period, as these are theleast of the reasons I have mentioned.”

e) According to the appellants, in view of the above resignation, areplacement pilot viz. Captain Jiban Mahapatra was engaged on14.08.2017 as Captain and was given appropriate training by theBappellant which cost the appellant more than Rs.12,00,000/-.

f) On 02.09.2017 the resignation sent by the respondent was acceptedby the appellants as under:- “Dear Madam, CYour resignation dated 03.07.2017 from the services of Air IndiaExpress has been accepted by competent authority. Yourexpected release after completion of six months notice periodfrom your date of resignation.

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

g) More than three months later, on 18.12.2017 an e-mail was sentby the respondent to the appellants seeking to withdraw herresignation as under:- “Respected Sir,E

I would like to inform you that I am withdrawing my resignationdated 3[rd] July, 2017 with immediate effect and will continueserving the company as per my current designation.

Kind Regards,FCapt. G.K. Sandhu

Staff No. 76002"

h) On 29.12.2017 a letter was received from the Advocates of therespondent that since she had withdrawn the resignation, therespondent be rostered for future flights with effect fromG02.01.2018. A response was, thereafter, sent by the appellants tothe respondent on 04.01.2018 stating as under:- “… …Please note that your request for withdrawal of yourresignation letter cannot be acceded to as your resignation hadbecome effective from 03.07.2017 by virtue of its acceptance H

AIR INDIA EXPRESS LIMITED v. CAPT. GURDARSHANKAUR SANDHU [UDAY UMESH LALIT, J.]

vide email dated 02.09.2017 and you stood released from theservices of the Company w.e.f. 02.01.2018 (i.e. on completionof six months notice period w.e.f. 03.07.2017). … …”

6. Thereafter, the respondent filed Writ Petition (Civil)No. 1991of 2018 before the High Court challenging the letters dated 02.09.2017and 04.01.2018 and for declaration that the respondent was eligible andentitled to continue with all service benefits without any break in serviceand that the appellant be directed to forthwith disburse to the respondentthe salary and other service conditions. The Writ Petition was allowedby a Single Judge of the High Court by judgment and order dated22.02.2018. The objection taken by the appellants as regards territorialjurisdiction to consider the controversy in question was rejected. Theprovisions of the CAR (Ext.P3) were considered and relying upon thedecisions of this Court in Srikantah S.M. v. Bharath Earth MoversLtd.[1], J.N. Srivastava v. Union of India and another[2], ShambhuMurari Sinha v. Project and Development India Limited andanother[3] it was observed that the resignation tendered by the respondentcould 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 effectfrom 02.01.2018, the petitioner could have very well withdrawnher resignation and the respondents could not have withheld thesame or rejected the same. In this case there is one moreobligation on the respondents under clause 3.6 of Ext.p3, to issuean NOC on acceptance of resignation. Such a no objectioncertificate is not granted even when they issued Ext.P8 letter andrefused to assign her duty from 02.01.2018 onwards.”

7. The appellants being aggrieved filed Writ Appeal No.796 of2018 against the decision of the Single Judge. The Division Bench ofthe High Court rejected the challenge by its judgment and order dated09.04.2018 which is presently under challenge. The Division Benchrelied upon the decisions noted by the Single Judge and concluded:

“There can be little doubt with respect to the position of law settledon the said subject. In respect of an employee who submitted an 1(2005) 8 SCC 314

2(1998) 9 SCC 559

3(2002) 3 SCC 437

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Aapplication for resignation, it would be open to him to withdrawthe same prior to the expiry of the period of notice. ….. It is tobe noted that even though the appellants claimed that the Ext.P2letter of resignation was accepted the tenor of Ext.P5 would revealthat it was ordered to accept only on the expiry of the noticeperiod. In that context, it is relevant to refer to Ext.P5 letter.”B8. In this appeal we heard Ms. Madhavi Divan, learned AdditionalSolicitor General for the appellants and Mr. Jamshed P. Cama, learnedSenior Advocate for the respondent.

Learned Additional Solicitor General submitted that though inCnormal circumstances an employee who had tendered resignation wouldbe well within his rights to withdraw the resignation before suchresignation had become effective but the decisions of this Court admittedtwo exceptions to the rule. She relied upon the decisions of this Court inUnion of India v. Gopal Chandra Mishra[4] and Balram Gupta v.Union of Indiaand another[5] and submitted that as acknowledged byDthe CAR the positions of pilots stood on a different footing and finding areplacement or an alternative for a pilot would require incurring of someexpenditure in training the concerned new talent. In the circumstances,the CAR had put certain restrictions and made some special provisionsin public interest. The appellants had already taken appropriate stepsEfor finding and training an alternative and as such the instant case camewithin the exceptions acknowledged in the decisions of this Court.

On the other hand, Mr. Jamshed P. Cama, learned Senior Advocatesubmitted that the law on the point is well settled that an employee couldwithdraw the resignation before it comes into effect or operation. HeFsubmitted that the resignation submitted by the respondent was to comeinto effect from a prospective date and the respondent was thereforeentitled to withdraw the resignation before it became effective. Accordingto him, the fact that the appellant had to incur expenditure in traininganother pilot would be of no consequence, as for an organisation of thesize of Air India the requirement and consequential training of pilotsGwould be a regular feature.

9. Before we deal with the rival submissions an important factmust be noted. After the respondent was not allowed to join her duties,4(1978) 2 SCC 301

51987 (Supp) SCC 228

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it appears that she was employed as a pilot with Jet Airways for sometime. However, with the closing of operations of Jet Airways, she is notpresently holding any position as pilot in any airline.

10. The circumstances under which an employee can withdrawthe resignation tendered by him and what are the limitations to the exerciseof such right, have been dealt by this Court in a number of decisions.

A] In Jai Ram vs. Union of India[6], the concerned Governmentservant was to attain age of 55 years on 26.11.1946. He applied on07.05.1945 for leave preparatory to retirement in terms of FundamentalRule 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 expiryi.e. on 16.05.1947, he sent an intimation that he would resume his dutieswhich request was rejected. The submission that the age of retirementwas 60 years was rejected by this Court. The submission that in termsof Rule 56(b)(i) of Chapter IX of the Fundamental Rules, if foundefficient, he could have continued till he attained the age of 60 years,was rejected. It was observed that when a public servant himselfexpresses his inability to continue in service any longer and seekspermission for retirement, the required exercise in terms of said Rule56(b)(i) to decide whether to continue him beyond the age of 55 yearswas rightly not undertaken and the age of retirement for him would be55 years. In the context whether he could apply for resuming duties on16.05.1947, it was observed by the Constitution Bench of this Court,:- “It may be conceded that it is open to a servant, who has expresseda desire to retire from service and applied to his superior officerto give him the requisite permission, to change his mindsubsequently and ask for cancellation of the permission thusobtained; but he can be allowed to do so long as he continues inservice and not after it has terminated.

As we have said above, the plaintiff’s service ceased on the 27thof November 1946; the leave, which was allowed to himsubsequent to that date, was post-retirement leave which wasgranted under the special circumstances mentioned in F. R. 86.He could not be held to continue in service after the 26th ofNovember 1946, and consequently it was no longer competent to A

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994SUPREME COURT REPORTS

Ahim to apply for joining his duties on the 16th of May 1947, eventhough the post-retirement leave had not yet run out. In our opinion,the decision of the Letters Patent Bench of the High Court isright and this appeal should stand dismissed.”

B] In Raj Kumar v. Union of India[7], an officer belonging to theBIndian Administrative Service tendered resignation and addressed a letterto the Chief Secretary to the Government of Rajasthan on 30.08.1964that it may be forwarded to the Government of India with remarks ofthe State Government. The State Government recommended that theresignation be accepted and on 31.10.1964 the Government of Indiarequested the Chief Secretary to the State Government “to intimate theCdate on which the appellant was relieved of his duties so that a formalnotification could be issued in that behalf”. Before the date could beintimated and formal notification could be issued, the officer withdrewhis resignation by letter dated 27.11.1964. On 29.03.1965 an orderaccepting his resignation was issued. The challenge raised by the officerDwas rejected and the High Court held that the resignation becameeffective on the date the Government of India had accepted it. Whiledismissing the appeal, a Bench of three Judges of this Court observed:-

“The letters written by the appellant on August 21, 1964, andAugust 30, 1964, did not indicate that the resignation was not toEbecome effective until acceptances thereof was intimated to theappellant. The appellant informed the authorities of the State ofRajasthan that his resignation may be forwarded for earlyacceptance. On the plain terms of the letters, the resignation wasto become effective as soon as it was accepted by the appointingauthority. No rule has been framed under Article 309 of theFConstitution which enacts that for an order accepting theresignation to be effective, it must be communicated to the personsubmitting his resignation.

Our attention was invited to a judgment of this Court in State ofPunjab v. Amar Singh Harika (AIR 1966 SCR 1313)in which itGwas held that an order of dismissal passed by an authority andkept on its file without communicating it to the officer concernedor otherwise publishing it did not take effect as from the date onwhich the order was actually written out by the said authority; such an order could only be effective after it was communicatedto the Officer concerned or was otherwise published. Theprinciple of that case has no application here. Termination ofemployment by order passed by the Government does not becomeeffective until the order is intimated to the employee. But wherea public servant has invited by his letter of resignation determinationof his employment, his services normally stand terminated fromthe date on which the letter of resignation is accepted by theappropriate authority and in the absence of any law or rulegoverning the conditions of his service to the contrary, it will notbe open to the public servant to withdraw his resignation after it isaccepted by the appropriate authority. Till the resignation isaccepted by the appropriate authority in consonance with the rulesgoverning the acceptance, the public servant concerned has locuspoenitentiae but not thereafter. Undue delay in intimating to thepublic servant concerned the action taken on the letter ofresignation may justify an inference that resignation has not beenaccepted. In the present case the resignation was accepted withina short time after it was received by the Government of India.Apparently the State of Rajasthan did not immediately implementthe order, and relieve the appellant of his duties, but the appellantcannot profit by the delay in intimating acceptance or in relievinghim of his duties.”

C] In Union of India and others v. Gopal Chandra Mishraand others[4] the issue for consideration was whether a High CourtJudge, who had by letter in his own hand writing sent to the Presidentintimated his intention to resign the office with effect from a future datewould be competent to withdraw the resignation before the date hadreached? The decisions in Jai Ram[6] and Raj Kumar[7 ]were consideredand while dealing with the scope of clause(a) of the proviso to Article217 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 executea “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 AB

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performance of any of them is not complete, clause (a) will notoperate to cut short or terminate the tenure of his office.

22. It may be observed that the entire edifice of this reasoning isfounded on the supposition that the “Judge” had completelyperformed everything which he was required to do under proviso(a) to Article 217(1). We have seen that to enable a Judge toterminate his term of office by his own unilateral act, he has toperform three things. In the instant case, there can be no disputeabout the performance of the first two, namely: (i) he wrote aletter under his hand, (ii) addressed to the President. Thus, thefirst two pillars of the ratiocinative edifice raised by the High Courtrest on sound foundations. But, is the same true about the third,which indisputably is the chief prop of that edifice? Is it a completedact of resignation within the contemplation of proviso (a)? This isthe primary question that calls for an answer. If the answer to thisquestion is found in the affirmative, the appeals must fail. If it bein the negative, the foundation for the reasoning of the High Courtwill fail and the appeals succeed.”

The tenor and the effect of resignation were then considered inparagraph 28 and it was held that the letter in question was merely anintimation or notice to resign the office on a future date and it was opento withdraw the resignation before the arrival of the indicated futuredate. The observations were:- “28. The substantive body of this letter (which has been extractedin full in a foregoing part of this judgment) is comprised of threesentences only. In the first sentence, it is stated: “I beg to resignmy office as Judge, High Court of Judicature at Allahabad.” Hadthis sentence stood alone, or been the only content of this letter, itwould operate as a complete resignation in praesenti, involvingimmediate relinquishment of the office and termination of his tenureas Judge. But this is not so. The first sentence is immediatelyfollowed by two more, which read : “I will be on leave till July 31,1977. My resignation shall be effective on August 1, 1977.” Thefirst sentence cannot be divorced from the context of the othertwo sentences and construed in isolation. It has to be read alongwith the succeeding two which qualify it. Construed as a wholeaccording to its tenor, the letter dated May 7, 1977, is merely anintimation or notice of the writer’s intention to resign his office as Judge, on a future date viz. August 1, 1977. For the sake ofconvenience, we might call this communication as a prospectiveor potential resignation, but before the arrival of the indicated futuredate it was certainly not a complete and operative resignationbecause, by itself, it did not and could not, sever the writer fromthe 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 foregoingconspectus, is that in the absence of anything to the contrary inthe provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority bythe incumbent, of his intention or proposal to resign his office/postfrom a future specified date can be withdrawn by him at any timebefore it becomes effective, i.e. before it effects termination ofthe tenure of the office/post or the employment.

50. It will bear repetition that the general principle is that in theabsence of a legal, contractual or constitutional bar, a “prospective”resignation can be withdrawn at any time before it becomeseffective, and it becomes effective when it operates to terminatethe employment or the office-tenure of the resignor. This generalrule is equally applicable to government servants and constitutionalfunctionaries. In the case of a government servant/or functionary/who cannot, under the conditions of his service/or office, by hisown unilateral act of tendering resignation, give up his service/oroffice, normally, the tender of resignation becomes effective andhis service/or office-tenure terminated, when it is accepted bythe competent authority. In the case of a Judge of a High Court,who is a constitutional functionary and under proviso (a) to Article217(1) has a unilateral right or privilege to resign his office, hisresignation becomes effective and tenure terminated on the datefrom which he, of his own volition, chooses to quit office. If interms of the writing under his hand addressed to the President, heresigns in praesenti, the resignation terminates his office-tenureforthwith, and cannot therefore, be withdrawn or revokedthereafter. But, if he by such writing, chooses to resign from afuture date the act of resigning office is not complete because itdoes not terminate his tenure before such date and the Judge canat any time before the arrival of that prospective date on which it A

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was intended to be effective, withdraw it, because the Constitutiondoes not bar such withdrawal.”

As regards the applicability of the rule in Jai Ram[6], it was stated:-“49. In our opinion, none of the aforesaid reasons given by theHigh Court for getting out of the ratio of Jai Ram case is valid.Firstly, it was not a “casual” enunciation. It was necessary todispose of effectually and completely the second point that hadbeen canvassed on behalf of Jai Ram. Moreover, the sameprinciple was reiterated pointedly in 1968 in Raj Kumar case.Secondly, a proposal to retire from service/office and a tender toresign office from a future date for the purpose of the point underdiscussion, stand on the same footing. Thirdly, the distinctionbetween a case where the resignation is required to be acceptedand the one where no acceptance is required, makes no differenceto the applicability of the rule in Jai Ram case.”

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

“12. In this case the guidelines are that ordinarily permissionshould not be granted unless the officer concerned is in a positionto show that there has been a material change in the circumstancesin consideration of which the notice was originally given. In thefacts of the instant case such indication has been given. Theappellant has stated that on the persistent and personal requestsof the staff members he had dropped the idea of seeking voluntaryretirement. We do not see how this could not be a good and validreason. It is true that he was resigning and in the notice forresignation he had not given any reason except to state that hesought voluntary retirement. We see nothing wrong in this. In themodern age we should not put embargo upon people’s choice orfreedom. If, however, the administration had made arrangementsacting on his resignation or letter of retirement to make otheremployee available for his job, that would be another matter butthe appellant’s offer to retire and withdrawal of the same happenedin such quick succession that it cannot be said that any administrative set-up or arrangement was affected. Theadministration has now taken a long time by its own attitude tocommunicate the matter. For this the respondent is to blame andnot the appellant.”

E) The principles laid down in Union of India and others v.Gopal Chandra Misra[4]have since then been followed by this CourtinP. Kasilingam vs. P.S.G. College of Technology[8], Punjab NationalBank vs. P.K. Mittal[9], Moti Ram vs. Param Dev[10], Power FinanceCorpn. Ltd. vs. Pramod Kumar Bhatia[11] Nand Keshwar Prasadvs. Indian Farmers Fertilizers Coop. Ltd.[12], J.N. Srivastava vs.Union of India and another[2], Union of India vs. Wing Commander

T. Parthasarathy[13], Shambhu Murari Sinha vs. Proect &Development India Ltd.[3], Bank of India vs. O.P. Swarnakar[14],Reserve Bank of India vs. Cecil Denis Solomon[15], Srikantha S.M.vs. Bharath Earth Movers Ltd.[1], Secy., Technical Education, U.P.and ors. vs. Lalit Mohan Upadhyay[16], New India AssuranceCompany Ltd. vs. Raghuvir Singh Narang and another[17] and Unionof India and ors. vs. Hitendra Kumar Soni[18].

F) In Punjab National Bank vs. P.K. Mittal[9] a permanent officerin the bank sent a letter of resignation on 21.01.1986 in terms of Regulation20 of PNB (Officers) Service Regulation, 1979, which was to becomeeffective on 30.06.1986. By communication dated 07.02.1986, he wasinformed that his resignation was accepted with immediate effect. Theresignation was withdrawn by the officer on 15.04.1986. The issuetherefore arose in the context of said Regulation 20, whether the officercould withdraw the resignation. Regulation 20 was as under:

“20. (1) Subject to sub-regulation (3) of Regulation 16, the bankmay terminate the services of any officer by giving him three 8 (1981) 1 SCC 4059 (1989) Supp 2 SCC 17510 (1993) 2 SCC 72511 (1997) 4 SCC 28012 (1998) 5 SCC 46113 (2001) 1 SCC 15814 (2003) 2 SCC 72115 (2004) 9 SCC 46116 (2007) 4 SCC 49217 (2010) 5 SCC 33518 (2014) 13 SCC 204

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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 otherwisethan on the expiry of three months from the service on the bankof a notice in writing of such resignation:

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

The submission that Clause 2 of Regulation 20 and its provisowere intended only to safeguard the bank’s interest and as such thebank could accept the resignation before the date when it was to comeinto effect was rejected by this Court in following terms:

7. Dr. Anand Prakash emphasises that as clause (2) and its provisoare intended only to safeguard the bank’s interests they should beinterpreted on the lines suggested by him. We are of the opinionthat clause (2) of the regulation and its proviso are intended notonly for the protection of the bank but also for the benefit of theemployee. It is common knowledge that a person proposing toresign often wavers in this decision and even in a case where hehas taken a firm decision to resign, he may not be ready to go outimmediately. In most cases he would need a period of adjustmentand hence like to defer the actual date of relief from duties for afew months for various personal reasons. Equally an employermay like to have time to make some alternative arrangement beforerelieving the resigning employee. Clause (2) is carefully wordedkeeping both these requirements in mind. It gives the employee aperiod of adjustment and rethinking. It also enables the bank tohave some time to arrange its affairs, with the liberty, in anappropriate case, to accept the resignation of an employee evenwithout the requisite notice if he so desires it. The proviso in ouropinion should not be interpreted as enabling a bank to thrust aresignation on an employee with effect from a date different fromthe one on which he can make his resignation effective under theterms of the regulation. We, therefore, agree with the High Courtthat in the present case the resignation of the employee couldhave 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 employeecontinued to be in service till 21-4-1986 or 30-6-1986, on whichdate his services would have come normally to an end in terms ofhis letter dated 21-1-1986. But, by that time, he had exercised hisright to withdraw the resignation. Since the withdrawal letter waswritten before the resignation became effective, the resignationstands withdrawn, with the result that the respondent continues tobe in the service of the bank. It is true that there is no specificprovision in the regulations permitting the employee to withdrawthe resignation. It is, however, not necessary that there should beany such specific rule. Until the resignation becomes effective onthe terms of the letter read with Regulation 20, it is open to theemployee, on general principles, to withdraw his letter ofresignation. That is why, in some cases of public services, thisright of withdrawal is also made subject to the permission of theemployer. There is no such clause here. It is not necessary tolabour this point further as it is well settled by the earlier decisionsof this Court in Raj Kumar v. Union of India, Union of India v.Gopal Chandra Misra and Balram Gupta v. Union of India.

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

12. In the light of the aforementioned principles the issue whetherthe respondent could have withdrawn her letter of resignation dependsupon answers to the following questions:

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AA) Whether the stipulation of the notice period in the CAR isintended to safeguard the interest of the employee? ; and

B) Whether the provisions of the CAR and the governing principlesstipulated therein are in the nature of special provisions comingwithin the exception stipulated in paragraphs 41 and 50 of theBdecision in Gopal Chandra Mishra[4] and paragraph 12 of thedecision in Balram Gupta[5 ] thereby disabling the respondent fromwithdrawing her resignation?

13. The CAR acknowledges that it takes considerable period totrain a pilot to operate an aircraft and that as a part of the training, theCnew incumbent will be required to pass technical and performanceexaminations and will have to undergo simulator and flying training andto undertake skill test to satisfy the requirements. Even after impartingof such training, said person would function only as a co-pilot till hereaches the level of expertise required of a pilot. The CAR states thatthe resignation without minimum notice of six months could result in lastDminute cancellation of flights and harassment to passengers. As thepilots are highly skilled personnel, a decision was taken that any act onpart of the pilots including resignation from the airlines without minimumnotice period of six months be treated as an act against public interest.The CAR, therefore, provides:- Ea) During the notice period neither the pilot shall refuse to undertakeflight duties nor shall the employer deprive the pilot of his legitimaterights and privileges.

b) In case the air transport undertaking resorts to reduction in thesalaries/perks, the pilot will be free to make a request for hisFrelease before the expiry of the notice period

c) On the expiry of the notice period an appropriate NOC shall beissued by the air transport undertaking d) The notice period of six months could however be reduced ifthe NOC was provided to the pilot and his resignation was acceptedGearlier than six months.

In terms of the provisions of the CAR, the terms and conditionsof appointment in the instant case specifically stated that the respondentwould give six months’ notice in case she desired to leave the servicesof the appellant.H

14. The underlying principle and the basic idea behind stipulationof the mandatory notice period is public interest. It is not the interest ofthe employee which is intended to be safeguarded but the public interestwhich is to be sub-served. It seeks to ensure that there would not beany last minute cancellation of flights causing enormous inconvenienceto the travellers. It is for this reason that the concerned pilot is requiredto serve till the expiry of the notice period. The notice period may standcurtailed if NOC is given to the concerned pilot and the resignation isaccepted even before the expiring of the notice period. It may, in agiven case, be possible that the trained manpower to replace the pilot,who had tendered resignation, could be made available before the expiryof such notice period, in which case the employer is given a choiceunder Clause 3.7 of the CAR. Even in such eventuality, the guiding ideaor parameter is public interest.

The stipulation of notice period is, therefore, only to sub-servepublic interest and is designed to enable the air transport undertaking oremployer to find a suitable replacement or a substitute. By very natureof the job profile a replacement for a pilot does not come so easily andtherefore, the period of six months. The CAR acknowledges the factthat it would require considerable expenses and efforts to train theconcerned replacement before he could be a worthy substitute. Thenotice period enables the air transport undertaking or the employer togear itself up in that direction and obliges it to find a substitute or areplacement. The obligation to find a suitable replacement beginsimmediately on receipt of letter of resignation. In the present case,steps were taken by the appellant to discharge such obligation andreplacement in Captain Jiban Mahapatra was found. The normal principlethat an employee can at any time before the resignation becomeseffective, withdraw his resignation will therefore be subject to the coreprinciples of the CAR. In our view, the instant matter would, therefore,be within the exception stipulated in paragraphs 41 and 50 of the decisionin Gopal Chandra Mishra[4]and paragraph 12 of the decision in BalramGupta[5], and the respondent could not have withdrawn the resignation.

15. The letter of resignation may now be considered to completethe discussion. Said resignation letter dated 03.07.2017 had three relevantstatements: -

1. I am tendering my resignation letter.

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A3. If any time I am forced to stay away from home for longerperiods during this time, it will be legal for me to leave thecompany without completing the notice period, as theseare the least of the reasons I have mentioned.

The first sentence shows that the intimation was unequivocal thatBthe respondent was tendering resignation. The following sentence referredto the notice period of six months, being the requirement under the CARand the terms and conditions of the appointment. The third sentenceclearly suggested that in case the respondent was forced to stay awayfrom home for longer periods during the notice period, it would be opento her to leave the company without completing the notice period. TheCnotice period was thus only in terms of the requirements of the CAR.