Case: AIR INDIA EXPRESS LTD Vs. CAPT. GURDARSHAN KAUR SANDHU

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 15.06.2007b) 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 minimum of six months. You will also be required to serve the Company during the Notice Period34. 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 Limitedd) 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 careerI am tendering my resignation today. Please consider this as my six months notice period. I am listing below the reasons of my resignationIf 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 mentionede) 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:-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 resignationThis is for your kind information. You are requested to complete all the Admin formalities before releaseg) 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:-I would like to inform you that I am withdrawing my resignation dated 3 rd July, 2017 with immediate effect and will continue serving the company as per my current designationh) 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 decisions of this Court in Srikantah S.M. v. Bharath Earth Movers Ltd. (2005) 8 SCC 314 , J.N. Srivastava v. Union of India and another (1998) 9 SCC 559 , Shambhu Murari Sinha v. Project and Development India Limited and another(2002) 3 SCC 437  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 onwards7. 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 tohim 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.

Reasoning: 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 airline11. 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/postIn terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months notice in case she desired to leave the services of the appellant14. 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 interestThe 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 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 Mishra(1978) 2 SCC 301  and paragraph 12 of the decision in Balram Gupta 1987 (Supp) SCC 228, and the respondent could not have withdrawn the resignation15. 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 letter2. Please consider this as my six months notice periodIf 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 mentionedThe 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.