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

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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

J U D G M E N T

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

resignation that was tendered on 03.07.2017.  

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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  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  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

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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.”

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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.

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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”

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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

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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.”

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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”

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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

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

Ltd.1,  J.N.  Srivastava v.  Union  of  India  and  another2,  Shambhu

Murari Sinha v. Project and Development India Limited and another3

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

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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

Union of India v. Gopal Chandra Mishra4 and Balram 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

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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.

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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

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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.”

B] 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

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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 Article 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  State 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

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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.”

C] 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  Article  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

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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

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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 Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective  and  tenure  terminated  on  the  date  from

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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.”

D] 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:

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“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.

Kasilingam vs. P.S.G. College of Technology8,  Punjab National Bank

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

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

Farmers Fertilizers Coop. Ltd.12,  J.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

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and another2,  Union of India vs. Wing Commander T. Parthasarathy13,

Shambhu Murari Sinha vs.  Proect & Development India Ltd.3,  Bank

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

Solomon15,  Srikantha S.M.  vs.  Bharath Earth Movers Ltd.1,  Secy.,

Technical  Education,  U.P.  and  ors.    vs.   Lalit  Mohan Upadhyay16,

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

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

F) 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

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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

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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  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 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

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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

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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

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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

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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

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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;

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August 22, 2019.