Delhi High Court
Air India Limited vs Captain Adil Shah on 17 December, 2021
$~J-1 to 38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 29.10.2021
Judgment pronounced on: 17.12.2021
+ LPA 246/2021
AIR INDIA LIMITED ..... Appellant
versus
KANWARDEEP SINGH BAMRAH ..... Respondent
LPA 247/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN ADIL SHAH ..... Respondent
LPA 248/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT K SAI SASHANKA ..... Respondent
LPA 249/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN SANDEEP LAMBA ..... Respondent
LPA 250/2021
AIR INDIA LIMITED ..... Appellant
versus
NICK MEHTA ..... Respondent
LPA 251/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN JASMINE RAVAIYA ..... Respondent
LPA 252/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT ADISH M CHAVAN ..... Respondent
LPA 255/2021
AIR INDIA LIMITED ..... Appellant
Signature Not Verified
Signed By:VIPIN KUMAR RAI
LPA No.246/2021 and connected matters Page 1 of 64
Signing Date:17.12.2021
20:03:10
versus
CAPT JITENDER SINGH RANDHAWA ..... Respondent
LPA 256/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT REUBEN JAMES ..... Respondent
LPA 258/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT B SUJIMON ..... Respondent
LPA 259/2021
AIR INDIA LIMITED ..... Appellant
versus
AADITYA MAHESHWARI ..... Respondent
LPA 260/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN VIBHA PARASHAR ..... Respondent
LPA 261/2021
AIR INDIA LIMITED ..... Appellant
versus
ABHINAV GAUR ..... Respondent
LPA 263/2021
AIR INDIA LIMITED ..... Appellant
versus
NITESH GODARA ..... Respondent
LPA 264/2021
AIR INDIA LIMITED ..... Appellant
versus
MOHIT ARORA ..... Respondent
LPA 266/2021
AIR INDIA LIMITED ..... Appellant
versus
PAVAN N LAKHANI ..... Respondent
Signature Not Verified
Signed By:VIPIN KUMAR RAI
LPA No.246/2021 and connected matters Page 2 of 64
Signing Date:17.12.2021
20:03:10
LPA 267/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN SNEHA BHANOT & ANR. ..... Respondents
LPA 268/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN AARTI DATTATRAY KURNE & ORS...... Respondents
LPA 269/2021
AIR INDIA LIMITED ..... Appellant
versus
NIPURN AHUJA ..... Respondent
LPA 270/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT VISHAL V CHANDORKAR ..... Respondent
LPA 271/2021
AIR INDIA LIMITED ..... Appellant
versus
PRADEEP KUMAR ..... Respondent
LPA 272/2021
AIR INDIA LIMITED ..... Appellant
versus
ARJUN AHLUWALIA ..... Respondent
LPA 273/2021
AIR INDIA LIMITED ..... Appellant
versus
DUSHYANT GAUR ..... Respondent
LPA 274/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN LOKESH RAMPAL ..... Respondent
LPA 275/2021
AIR INDIA LIMITED ..... Appellant
versus
Signature Not Verified
Signed By:VIPIN KUMAR RAI
LPA No.246/2021 and connected matters Page 3 of 64
Signing Date:17.12.2021
20:03:10
CAPT JEETENDER YADAV ..... Respondent
LPA 276/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT UDIT NARULA ..... Respondent
LPA 277/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT SHANTANU S SANGIDWAR ..... Respondent
LPA 278/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPTAIN PEHROZ KANGA ..... Respondent
LPA 279/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT ARVIND KUMAR SHARMA ..... Respondent
LPA 280/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT YADAV NANDU GANESH ..... Respondent
LPA 281/2021
AIR INDIA LIMITED ..... Appellant
versus
AMITH SURESH ..... Respondent
LPA 282/2021
AIR INDIA LIMITED ..... Appellant
versus
CAPT VIJAY KUMAR DAHIYA ..... Respondent
LPA 283/2021
AIR INDIA LIMITED ..... Appellant
versus
SHREY MALHOTRA ..... Respondent
LPA 289/2021
AIR INDIA LIMITED ..... Appellant
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Signed By:VIPIN KUMAR RAI
LPA No.246/2021 and connected matters Page 4 of 64
Signing Date:17.12.2021
20:03:10
versus
VIKRANT JADHAV ..... Respondent
LPA 290/2021
AIR INDIA LIMITED ..... Appellant
versus
BALLALESHWAR S PAWADMAL ..... Respondent
LPA 291/2021
AIR INDIA LIMITED ..... Appellant
versus
RIJUL ARORA ..... Respondent
LPA 292/2021
AIR INDIA LIMITED ..... Appellant
versus
VIGNESH SANGARAN ..... Respondent
LPA 294/2021
AIR INDIA LIMITED ..... Appellant
versus
YOGISH S KATAGIHALLIMATH ..... Respondent
Present: Mr. Tushar Mehta, Solicitor General with Mr. Samir Malik, Mr. Ankit
Jain, Ms. Bani Dikshit and Mr. Aditya Vardhman Sharma, Advocates
for the Appellant. Mr. Shanker Raju and Mr. Nilansh Gaur, Advs. for
respondents in LPA Nos.247/2021, 260/2021, 274/2021 & 278/2021.
Mr. Sanjoy Ghose, Sr. Adv. With Mr. Naman Jain and Ms. Urvi
Mohan, Advs. for respondents in LPA Nos.248/2021, 252/2021,
255/2021, 258/2021, 270/2021 & 276/2021. Mr. Ravi Raghunath, Ms.
Aakashi Lodha, Mr. Madhusruthi Neelakantan and Mr. Yashaswini
Venkatadri, Advs. for respondentsin LPA Nos.264/2021,266/2021,
267/2021, 268/2021, 273/2021,281/2021, 289/2021, 291/2021,
292/2021, 294/2021. Mr. Satyabrata Panda, Adv. for respondents in
LPA Nos.246/2021,250/2021 & 263/2021. Mr. Animesh Khandelwal,
Adv. for respondents in LPA No.277/2021. Mr. Abhishek Bharti and
Ms. Aarti Mahto, Advs. for respondents in LPA Nos.259/2021 &
271/2021. Ms. Dipal Ravaiya, Mr. Keshav Sehgal, Mr. Gaurav H Sethi
and Mr. Abhinav Tyagi, Advs. for respondents in LPA Nos.249/2021.
Mr. Nirad Buch, Adv. for LPA No.251/2021. Ms. Sonali Chopra, Adv.
for respondent in LPA 261/2021. Mr. Tushar Ranjan Mohanty with
Ms. Payal Mohanty, Advs. for respondents in LPA Nos. 275/2021,
279/2021 and 280/2021. Mr. Bhasker, Adv. for the respondent
alongwith respondent Captain Ballaleshwar S. Pawadmal in person in
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Signing Date:17.12.2021
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LPA 290/2021. Mr. Satish Tamta, Sr Adv with Mr. Shariq Iqbal, Adv
for Respondent in LPA 282/2021.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
RAJIV SHAKDHER, J.:
Table of contents
Preface ................................................................................................................... 6
Background
........................................................................................................... 7
Submissions on behalf of AIL ............................................................................ 14
Submissions on behalf of the pilots .................................................................... 20
Analysis and reasons ........................................................................................... 27
(I) Whether resignation operates in praesenti? ................................................... 27
(II)Whether the resignation tendered requires acceptance?................................ 37
(III)Inconsistent conduct of AIL ......................................................................... 41
(IV)Relevancy of reasons in ascertaining the legal tenability of resignations ... 43
(IV) Import and scope of CAR. .......................................................................... 47
(V) Cases where resignations were accepted prior to expiry of notice period ... 50
(VI) FTCs ............................................................................................................ 54
(VII) The Sandhu case ....................................................................................... 58
(VII) Ratiocination of the Sandhu case .............................................................. 60
Conclusion:- ........................................................................................................ 63
Preface:-
1. These appeals are directed against a common judgment dated 01.06.2021
[hereafter referred to as "impugned judgment", passed by the learned single
judge in various writ petitions.
2. The appellant before us is Air India Limited [hereafter referred to as
'AIL']. The respondents, in each of these appeals, are pilots who were
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employed by AIL. For the sake of convenience, they will be collectively
referred to as "pilots", unless the context requires them to be described
otherwise.
Background:-
3. Although the record filed before us is huge and expansive, the central
issue which arises for consideration veers around the following.
3.1 The pilots had, at one point or other, tendered their resignation, which
they subsequently sought to withdraw.
3.2 The withdrawal of resignations by pilots led to the emergence of myriad
scenarios. In some cases, the request for withdrawal of resignation was
rejected, while in others, the request made for the withdrawal of resignation was
accepted. In certain cases, after AIL had accepted the request for withdrawal of
resignation, it took a U-turn by accepting the resignation tendered by the pilot,
before the request for withdrawal of resignation was made.
4. Thus, except for the aforesaid variation in circumstances swirling around
resignation tendered by pilots, arrayed before us as parties, the facts are not in
dispute, although the legal implications arising therefrom are contested. It is
also important to highlight the fact that the pilots before us fall into two streams
i.e., one set of pilots are those who were inducted into service as regular
employees [as per prevailing rules and regulations] and are thus permanent
employees, while there are others, who gained entry into AIL with the execution
of "Fixed Term Contracts" [in short 'FTCs'].
5. Thus, before we proceed further, it would be helpful if we were to
segregate the pilots according to the scenarios, in which their cases fall.
(i) Pilots whose resignation was accepted, in the first instance, before the
expiry of six months notice period [albeit, without issuance of No Objection
Certificate ('NOC')]; followed by service of the impugned letter upon them. In
these cases, resignations were accepted the second time around, albeit, after the
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six months notice period expired. [Table I]
(ii) Pilots who withdrew their resignation before the end of six months notice
period and the request made by them for withdrawal of resignation was
accepted by AIL, followed by service of impugned letters. [Table II ]
(iii) Pilots who withdrew their resignation before the end of six months notice
period and their request for withdrawal was rejected. [Table III]
(iv) Pilots who withdrew their resignation, after the expiry of the six months
notice period, but before the acceptance of resignation by AIL [Table IV]
5.1. Pertinently, via the impugned judgment, the learned single judge quashed
the letters dated 13.08.2020, 15.08.2020 and 16.10.2020, whereby resignations
of pilots were accepted, by AIL. For the sake of convenience, these letters will
be collectively referred to as "impugned letters", unless the context requires
otherwise.
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Table I
PERMANENT EMPLOYEES
LPA Name of Date of Expiry of Acceptance Date of Response to Acceptance of LD1
No. Pilot resignation` Notice of withdrawal of pilots' resignation (Rupees
period resignation resignation withdrawal of (Impugned in lakhs)
in the first resignation letter)
instance request
247 Adil Shah 11.09.2019 10.03.2020 22.01.2020 09.03.2020 Accepted in or 13.08.2020
17.06.2009 around
16.03.2020
260 Vibha 30.09.2019 29.03.2020 09.01.2020 21/23.03.2020 Rejected on 13.08.2020
Parashar 13.08.2020,
04.07.2005 via impugned
letter
269 Nipurn 21.09.2019 20.03.2020 17.02.2020 13.03.2020 Accepted on 13.08.2020
Ahuja 19.03.2020.
16.06.2010
280 Yadav 10.10.2019 09.04.2020 06.01.2020 12.03.2020 Accepted on 13.08.2020
Nandu 16.05.20202.
Ganesh
06.09.2007
FTCs
LPA Name of Expiry of Date of Expiry of Prior Date of Response to Acceptance LD
No. Pilot FTC, resignation` Notice acceptance withdrawal pilots' of (Rupe
based on period of of withdrawal resignation es in
five [5] resignation resignation of (Impugned lakhs)
years resignation letter)
tenure request
246 K.P. Singh 12.10.2020 26.09.2019 25.03.2020 06.01.2020 18.03.2020 Rejected on 13.08.2020
Bamrah 13.08.2020,
13.10.2015 via
impugned
letter
250 Nick 23.09.2020 23.09.2019 22.03.2020 29.01.2020 18.03.2020 Rejected on 13.08.2020
Mehta 13.08.2020,
24.09.2015 via
impugned
letter
251 Jasmine 06.09.2020 02.12.2019 01.06.2020 22.01.2020 13.04.2020 Rejected on 13.08.2020
Ravaiya 13.08.2020,
07.09.2015 via
impugned
letter
263 Nitesh 05.10.2020 23.09.2019 22.03.2020 29.01.2020 18.03.2020 Rejected on 13.08.2020
Godara 13.08.2020,
06.10.2015 via
impugned
Liquidated Damages
By ED (Operations)
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letter
282 Vijay 15.10.2020 25.09.2019 18.03.2020 06.01.2020 17.03.2020 Accepted 13.08.2020
Kumar on
Dahiya 17.03.2020/
16.10.215 18.03.2020.
Table II
PERMANENT EMPLOYEES
LPA Name of Date of Expiry of Date of Date of Acceptance of LD (Rupees in
No. Pilot resignation` Notice period withdrawal of acceptance resignation lakhs)
resignation of (Impugned
withdrawal letter)
of
resignation
248 K. Sai 22.01.2020 21.07.2020 16.03.2020 18.03.2020 13.08.2020 10
Sashanka
16.07.2008
277 Shantanu S. 15.01.2020 14.07.2020 03.03.2020 03.03.2020 13.08.2020
Sangidwar
16.12.2010
283 Shrey 21.01.2020 20.07.2020 16.03.2020 20.03.2020 13.08.2020 26.88
Malhotra
21.10.2013
FTCs
LPA Name of Expiry of Date of Expiry of Date of Date of Acceptance LD
No. Pilot [Date FTC, based resignation` Notice period withdrawal of acceptance of of (Rupees
of release on five [5] resignation withdrawal of resignation in lakhs)
as first years resignation (Impugned
officer] tenure letter)
276 Udit 01.04.2023 05.02.2020 04.08.2020 09.03.2020 13.03.2020 13.08.2020 50
Narula
02.04.2018
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Table III
PERMANENT EMPLOYEES
LPA Name of Pilot Date of Expiry of Date of Date of rejection of Acceptance LD
No. resignation` Notice period withdrawal request for withdrawal of (Rupe
of of resignation, via resignation es in
resignation impugned letter (Impugned lakhs)
letter)
256 Reuben James 03.02.2020 02.08.2020 23.03.2020 13.08.2020 13.08.2020
18.06.2014
258 B. Sujimon 15.01.2020 14.07.2020 17.03.2020 13.08.2020 13.08.2020 10
08.10.2010
259 Aditya Maheshwari 01.10.2019 01.04.2020 18.03.2020 13.08.2020 13.08.2020
07.11.2013
261 Abhinav Gaur 15.01.2020 14.07.2020 18.03.2020 13.08.2020 13.08.2020
29.02.2009
267 Sneha Bhanot 31.01.2020 31.07.2020 19.03.2020 13.08.2020 13.08.2020
06.05.2009
Ayush Mahajan
24.04.2009 31.01.2020 31.07.2020 19.03.2020 13.08.2020 13.08.2020
268 Arti Kurne 10.02.2020 09.08.2020 17.03.2020 13.08.2020 13.08.2020
Praveen Chandra 30.01.2020 29.07.2020 17.03.2020 13.08.2020 13.08.2020
Bequr
Mayank Yadav
08.05.2010 06.02.2020 05.08.2020 19.03.2020 13.08.2020 13.08.2020
271 Pardeep Kumar 01.10.2019 31.03.2020 18.03.2020 13.08.2020 13.08.2020
272 Arjun Ahluwalia 06.02.2020 05.08.2020 19.03.2020 13.08.2020 13.08.2020
19.04.2008
274 Lokesh Rampal 06.02.2020 05.08.2020 19.03.2020 13.08.2020 13.08.2020
20.05.2008
FTCs
LPA Name of Pilot Expiry of Date of Expiry of Date of Date of Acceptance LD
No. FTC, based resignation` Notice period withdrawal rejection of of (Rupe
on five [5] of request for resignation es in
years resignation withdrawal of (Impugned lakhs)
tenure resignation, letter)
via impugned
letter
252 Adish Chavan 30.08.2020 19.08.2019 18.02.2020 13.01.2020 13.08.2020 13.08.2020
31.08.2015
255 J. S. Randhawa 18.09.2020 01.01.2020 30.06.2020 12.03.2020 13.08.2020 13.08.2020
19.09.2015
264 Mohit Arora 29.01.2023 02.12.2019 01.06.2020 18.03.2020 13.08.2020 13.08.2020 50
30.01.2018
266 Pawan Lakhani 18.11.2020 02.12.2019 01.06.2020 16.04.2020 13.08.2020 13.08.2020
19.11.2015
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270 Vishal Chandorkar 26.09.2020 05.08.2019 04.02.2020 10.01.2020 13.08.2020 13.08.2020
27.09.2015
273 Dushyant Gaur 29.03.2023 04.01.2020 03.07.2020 20.03.2020 16.10.2020 16.10.2020
30.09.2018
281 Amith Suresh 05.11.2020 30.01.2020 29.07.2020 18.03.2020 16.10.2020 16.10.2020
06.11.2015
289 Vikrant Jadhav 07.05.2023 22.11.2019 21.05.2020 20.03.2020 13.08.2020 13.08.2020 50
08.05.2018
290 Ballaleshwar 11.01.2022 21.10.2019 20.04.2020 20.03.2020 13.08.2020 13.08.2020 28
Pawadmal
12.01.2017
291 Rijul Arora 29.01.2023 14.11.2019 13.05.2020 18.03.2020 13.08.2020 13.08.2020 50
30.01.2018
292 Vignesh Sangaran 15.02.2023 02.12.2019 01.06.2020 18.03.2020 13.08.2020 13.08.2020 50
16.02.2018
294 Yogesh S 15.04.2023 18.12.2019 17.06.2020 17.03.2020 13.08.2020 13.08.2020 50
Katagihallimath
16.04.2018
Table IV
FTCs
LPA Name of Expiry of Date of Expiry of Date of Response Acceptance of LD
No. Pilot FTC, based resignation` Notice period withdrawal to pilots' resignation (Rupees in
on five [5] of withdrawal (Impugned lakhs)
years resignation of letter)
tenure resignation
request
275 Jeetender 31.07.2021 05.07.2019 04.01.2020 27.01.2020 Accepted 13.08.2020 28
Yadav on
01.08.2016 28.01.2020
278 Pehroz 11.02.2022 10.07.2019 09.01.2020 03.03.2020 Rejected on 15.08.2020 50
Kanga 15.08.2020,
12.02.2017 via
impugned
letter
279 Arvind 16.06.2021 18.07.2019 16.01.2020 28.01.2020 Accepted 13.08.2020 28
Kumar on
Sharma 29.01.2020
15.06.2016
249 Sandeep 28.06.2021 31.07.2019 Initial expiry 18.03.2020 Rejected on 13.08.2020 28
Lamba of notice 13.08.2020,
29.06.2016 period- via
31.01.2020 impugned
Extension of letter
one month, in
the first
instance, to
29.02.2020
and
subsequently
to 28.03.2020
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6. As would be evident on a perusal of the tables above [something which
AIL has also highlighted in its appeals], that the resignations were tendered by
the pilots in the period spanning between July 2019 and February 2020.
6.1. It is AIL's case that these resignations were tendered by the pilots, as
certain commercial airlines had expanded their business and were, looking out
for trained pilots to handle their aircraft(s). The pilots, according to AIL, were
wanting to seize this opportunity, and therefore, had tendered their resignations.
6.2. However, one cannot dispute, [an aspect that we can take judicial notice
of], after March 2020, the situation changed drastically with the Covid-19
pandemic, erupting with venom, across the world including India. This resulted
in the shutdown of businesses and cost-cutting measures as also rationalization
of salaries across industries, including the airline industry. AIL was no different.
It claims that it took similar steps to bring about rationalisation in the conduct of
its business.
6.3. Therefore, the gravamen of AIL's case is that the pilots, having realised
that there were no opportunities left for employment, decided to withdraw their
resignations. Demonstrably [as is evident upon perusal of the "details" given in
the aforementioned tables], AIL did not adhere to a uniform policy or pattern in
dealing with the request for withdrawal of resignations.
7. That being said, it is, at the present juncture, AIL's stand that once the
resignation is submitted, it operates, in praesenti, and therefore, the subsequent
acts concerning acceptance of resignation or acceptance of withdrawal of
resignation and the U-turn made thereafter in accepting the resignation would
not impact the legal position, which is, that the employer-employee relationship
snapped insofar as the employee was concerned the moment the resignation was
tendered. The arguments made, in this context, which has several layers, will be
touched upon in the latter part of the judgment, however, in a nutshell, this is
the stand taken by AIL before us.
7.1 Insofar as AIL is concerned, the submissions were advanced by Mr Tushar
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Mehta, learned Solicitor General, instructed by Ms Bani Dixit for AIL, while
the pilots were represented by various counsels i.e., Mr Sanjoy Ghose and Mr
Satish Tamta, Senior Advocates, along with Mr Ravi Raghunath, Mr
Satyabarata Panda, Mr Tushar Ranjan Mohanty, Mr Shanker Raju, Mr Nirad
Buch, Ms Aarti Mahto, and Mr Keshav Sehgal.
Submissions on behalf of AIL
8. Mr Mehta's submissions can be, broadly, paraphrased as follows:
(i) AIL is a national carrier. It employs pilots, both permanently as well as
on contract. The pilots, who are permanent employees of the AIL, are governed
by the Service Regulations, whereas those who are engaged on contract are
required to adhere to the terms and conditions contained in the FTCs.
(ii) Both, over and above the Service Regulations and the FTC, the pilots are
governed by the Civil Aviation Requirement, dated 27.10.2009 [in short
"CAR"]. CAR has been issued by the Director-General of Civil Aviation [in
short 'DGCA'], in the exercise of powers conferred upon it under the Aircraft
Act, 1934. Thus, the provisions of CAR have a statutory flavour and is binding
on both the pilots and the airline [in this case 'the AIL']. The CAR provides that
every pilot, at the time of resigning from an airline, would have to serve a
mandatory notice period of six months. During the notice period, the pilot is
obligated to undertake flight duties with a corresponding obligation on the
airline to preserve the legitimate rights and privileges of the pilots.
(iii) Between July 2019 and February 2020, several pilots employed with AIL
tendered their resignation giving six months' notice, as required under CAR.
AIL believes that these pilots tendered resignation as they sought "greener
pastures" i.e., better offers from other private airlines. [In support of this plea,
reliance is placed on the representation dated 10.01.2020, issued by the Indian
Commercial Pilots Association i.e., one of the pilots' unions, which, inter alia,
adverted to the fact that experienced co-pilots employed by AIL, were being
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poached by private carriers and AIL had become a training institute for private
airlines.] These co-pilots, according to the representation, are "potential
commanders" who had been trained by AIL by deploying its resources.
(iv) With the advent of the Covid-19 pandemic in March 2020,
DGCA/Ministry of Civil Aviation (MOCA) imposed onerous conditions on the
functioning of airlines, which included a ban on international and domestic air
travel, w.e.f. 22.03.2020 and 24.03.2020, respectively. In most cases, the notice
period(s) which the pilots were required to serve under their respective
resignation letters, was ending in March 2020. Therefore, in some cases,
resignations were accepted when a request was made by pilots seeking to
withdraw the resignation, while in other cases, the decision was kept pending.
(v) Once AIL's offices opened up after easing the national lockdown, the
request made by pilots to withdraw their resignations was rejected, vide letter
dated 13.08.2021 [sic 13.08.2020, 15.08.2020 and 16.10.2020]. In cases where
the decision on acceptance of resignation had been pending, the same were
accepted while rejecting their request seeking withdrawal of resignation. It is
these letters that AIL sent (whereby resignations were accepted) that were
challenged by the pilots by way of various writ petitions, from which the above-
captioned appeals have arisen.
(vi) Since a large number of pilots had resigned, AIL had made efforts to
retain some of them, and, therefore, some requests for withdrawal of resignation
made by the pilots were 'allowed', however, when, on 13.08.2021 [sic
13.08.2020] the withdrawal of request of remaining pilots was rejected; the
decision taken to accept the request for withdrawal of resignation in the case of
few pilots was recalled, to maintain uniformity and consistency. Consequently,
these pilots were also released from the services of AIL; the details of these
candidates have been provided in the impugned judgment under the head
"Category C" [adverted to in the impugned judgment].
(vii) CAR encapsulates a peculiar regulatory regime under which the end of
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service is immediate and effective on tendering the letter of resignation. In
support of this submission, reliance is placed on the judgment of the Supreme
Court rendered in Air India Express v. Gurdarshan Kaur Sandhu (2019) 17
SCC 1693.
(viii) The stipulation of the notice period in CAR is premised on the principle
of public interest, and is, therefore, different from all other rules and regulations
relating to resignation and its withdrawal, in service jurisprudence. Therefore,
the judgments relied upon by the pilots and also discussed at length by the
learned Single Judge in the impugned judgment have no applicability to the
instant appeals, as they do not deal with the issue of public interest; a factor,
which is required to be considered in respect of resignations, their withdrawal
and end of service of employees, employed by AIL. Therefore, the legality of
resignations, withdrawal and their acceptance will have to be examined de novo,
keeping in mind the framework of CAR and its intended purpose.
(ix) Paragraphs 1.1, 3.3 and 3.4 of CAR provide that once the resignation is
tendered by a pilot, it de jure ends the service of the pilot with the airline from
the date of resignation. However, de facto the pilot continues to serve the
airline, in the public interest, as alluded to in the Sandhu case. The resignation,
thus, becomes effective de jure from the date it is tendered, with a request to be
relieved from service although, de facto, the pilot is required to perform her or
his functions till the end of the notice period. Paragraph 3.7 of CAR which gives
the right to the airline to accept the resignation, before the end of the six months'
notice period by furnishing the No-Objection Certificate (NOC) to the pilot,
fortifies this submission.
(x) Thus, insofar as the pilot is concerned, once she/he tenders the
resignation, the service stands terminated/ended even though the notice period
is extended to ensure necessary replacement and training of the inductee pilot.
In short 'the Sandhu case'
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Thus, the notice period is not for the benefit of the pilot but for the benefit of the
airline and that too, to further the public interest. This interpretation is confined
to the provisions of CAR and the "highly regulated" airline industry which
cannot be applied to other services and employments'. The following
observations in the Sandhu case emphasize the unique nature of the job
performed by a pilot :
".......by very nature of the job profile a replacement for a pilot does
not come so easily and therefore, the period of six months....."
(xi) The observations of the learned Single Judge in paragraph 26 of the
impugned judgment, to the effect, that there is no rule prescribing either that
withdrawal of resignation can be made only with the prior permission of the
employer or that withdrawal needs acceptance under a given set of rules,
misconstrues the true impact of CAR. Every aspect of the aviation sector is
regulated by the DGCA, and, therefore, it would be perilous to allow pilots to
withdraw their resignation at their whim and fancy at the nth hour i.e., just
before the end of the six months' notice period.
(xii) Given the fact that CAR has been notified to further the public interest, it
is axiomatic that it impliedly bars unilateral withdrawal of resignation.
Withdrawal of resignation, thus, can only be made with the concurrence of the
airline. In this context, it is important to note the language employed by the
pilots in their letters seeking withdrawal of resignation; which was couched as a
request to AIL to allow them to continue as pilots with AIL. Such a language
was employed by the pilots as they were aware that aviation is a "heavily
regulated" sector.
(xiii) Given this background, AIL treated the pilots' communication(s) seeking
withdrawal of resignation, as a request, and, therefore, in most cases had
conveyed that such request will be evaluated later and that they would not be
utilized for flying duties after the end of the six months notice period. This
position taken by AIL was never challenged by the pilots.
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(xiv) The pilots acquiesced to the position taken by the AIL, which was to treat
the letter(s) seeking withdrawal of resignation as a request, and not a unilateral
action of the pilots. It was when the AIL rejected the pilots' requests seeking
withdrawal of resignation that they took the stand before the learned Single
Judge that there was no bar in the pilots unilaterally withdrawing the resignation
tendered by them. The "legal, contractual or constitutional bar" to the unilateral
withdrawal of resignation as envisaged in paragraph 50 of the judgment
rendered by the Supreme Court in the case of Union of India v. Gopal Chandra
Misra (1978) 2 SCC 301, would cover such cases as well.
(xv) The observations made by the learned Single Judge in paragraph 26 of the
impugned judgment that AIL could not accept the resignation which was
withdrawn before its acceptance as it was non-existent and non-est in the eyes
of law is inaccurate, insofar as pilots (who are respondents) in the following
appeals are concerned:-
LPA Nos. 246/2021, 250/2021, 251/2021, 263/2021, 260/2021, 269/2021
and 280/2021.
(xvi) These are cases where resignation was accepted before the request for
withdrawal of resignation was tendered. Therefore, the findings contained, inter
alia, in paragraphs 26 and 31 are inaccurate, as it does not take into account the
peculiarities of different cases placed before the court.
(xvii) The learned Single Judge has "wrongly interpreted" the decision rendered
by the Supreme Court in the Sandhu case. The learned Single Judge has
confined the interpretation of the judgment to the facts of that case. The learned
Single Judge failed to appreciate the ratio of the case and apply the same to the
facts of the instant case.
(xviii) As indicated above, the Covid-19 pandemic caused mayhem in the
country when the pilots were serving their notice period. As a result of this
situation obtaining, AIL had reduced its operations drastically which resulted in
AIL having surplus pilots. The surplus pilots would have stepped into the shoes
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of pilots who had tendered their resignation. Therefore, in the given situation,
replacements were not required to be found outside AIL.
(xix) In any event, the ratio of the judgment in the Sandhu case is that CAR
represents the entire regulatory scheme concerning resignations and that notice
period is prescribed keeping public interest in mind and, in particular, to prevent
disruption of flights. The learned Single Judge needed to keep this aspect in
mind while examining the circumstances that led to the acceptance of
resignation by AIL.
(xx) The observation made by the learned Single Judge in paragraph 60 of the
impugned judgment that the action of the pilots of withdrawing their resignation
[just before the end of the notice period] was in the larger public interest, while
the acceptance of resignation by AIL was against public interest - is a legally
unsustainable finding. AIL's decision to reject the requests made by pilots for
withdrawal of resignation, and, simultaneously, accepting the resignations
which had not been accepted earlier was made, keeping the commercial
viability of AIL in mind which had been hit hard by the Covid-19 pandemic.
The impugned decision was taken on 13.08.2020 [sic 13.08.2020, 15.08.2020
and 16.10.2020] when domestic flights were operating on 45% capacity.
Therefore, the decision which was taken to reject the request for withdrawal of
resignations was part of a series of steps taken by AIL to maintain its financial
viability, during the Covid-19 pandemic. Hence, the observation of the learned
Single Judge that the decision taken by AIL was against the public interest, is an
untenable finding.
(xxi) In sum, the decision of the learned Single Judge is flawed for the reasons
stated above, and, therefore, should be set aside.
8.1. The submissions advanced on behalf of AIL were confined to aforesaid.
In particular, no submissions were advanced with respect to imposition of
damages and encashment of bank guarantee.
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Submissions on behalf of the pilots:-
9. The aforementioned counsel for the pilots, broadly, made the following
submissions :
(i) It is well-settled that an employee can withdraw his resignation at any
time before it becomes effective or operational. [See Union of India v. Gopal
Chandra Misra, (1978) 2 SCC 301 (paragraphs 41, 50).]
(ii) The Supreme Court and this court in various judgments have quashed the
orders of acceptance of resignation after the resignation was withdrawn. [See
Union of India v. Wing Commander T. Parthasarathy, (2001) 1 SCC 158
(paragraphs 1, 2, 4, 8, 9); Prem Prakash v. Air India Corporation, (1996) 38
DRJ 532 (DB) (paragraphs 1, 2, 8, 13); and Secretary, Home Department,
Government of Maharashtra Mantralaya v. Sanjay Pandey, (2005) SCC
OnLine Delhi 1366 (paragraphs 2, 3, 4 and 9)]
(iii) The submission advanced on behalf of AIL that the provisions of CAR
are emblematic of the fact that resignation once tendered in law i.e., de jure,
operates in praesenti, and that de facto the link between employer and employee
expires only after completion of the notice period of six months' is flawed in
law, besides the fact that this submission was not articulated before the learned
Single Judge. It is for this reason that no such ground has been raised in the
appeals by AIL.
(iv) Furthermore, this submission is contrary to and inconsistent with the
following :
(a) The internal notes found on the files of AIL when the matter was
under consideration, at various levels in AIL. [See paragraphs 44 & 45 of
the impugned judgment.]
(b) Clause 1.34(ii) of the Operations Manual.
(c) The impugned communications dated 13.08.2020/16.10.2020 that
emanated from AIL in no uncertain terms gave away AIL's position and
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understanding of the regime, which was in place, that the resignations had
to be accepted for terminating the employer-employee relationship.
(d) The Sandhu case, on which reliance is placed by AIL, was one
where resignation had been accepted before its withdrawal, coupled with
the fact that a substitute pilot had been drafted in by AIL.
(v) The impugned communication(s) dated 13.08.2020, 15.08.2020 and/or
16.10.2020 flies in the face of the aforementioned provisions of the Operations
Manual, inasmuch as the resignations were accepted with retrospective effect
i.e., from the date, when the notice period came to an end. As per the provisions
of the Operations Manual, the period of six months was to commence only from
the date of acceptance of the resignation.
(vi) The AIL had submitted before the learned Single Judge that resignation
could not be withdrawn unless there was a provision put in place, allowing for
such an eventuality. This submission is misconceived, both, on facts and in law,
as under the extant regime there is no prohibition on withdrawal of resignation.
There is, thus, neither any requirement for seeking permission to withdraw a
resignation nor is there any provision that requires AIL to accept [the
communication for withdrawal of resignation], for it to take effect. [See Punjab
National Bank v. P.K. Mittal, 1989 Suppl. 2 SCC 175 (paragraph 8).]
(vii) In the absence of any statutory rule or contractual provision, the
provisions of Section 5 of the Indian Contract Act, 1872 would be applicable.
Thus, the employee/pilot had absolute right to withdraw her/his resignation
before its acceptance. [See Bank of India v. O.P. Swarnakar, (2003) 2 SCC
721 (paragraphs 50, 75, 76 & 121).]
(viii) An employee/pilot has the fundamental right to continue in employment
which cannot be taken away, except in the manner known to law. Since there is
no bar on the withdrawal of resignation before its acceptance, the impugned
letters issued by AIL are legally untenable.
(ix) AIL has misconstrued the ratio of the judgment rendered by the Supreme
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Court in the Sandhu case. It is well-established that what is binding is the ratio
of the decision, and not every observation found therein or what logically
follows on the observations made in the decision [See Quinn v. Leatham,
[1901] UKHL 2 and State of Orissa v. Sudhanshu Sekhar Misra, AIR 1968 SC
647 (paragraph 12)]
(x) The decision in the Sandhu case is distinguishable. [See paragraphs 4.4
to 4.8, 10 and 16 of the Sandhu case.]
(x)(a) This was a case where the pilot resigned on 03.07.2017 and a replacement
was put in place on 14.08.2017. The airline accepted the pilot's resignation on
02.09.2017. It is only, thereafter, that the pilot sought to withdraw the
resignation on 18.12.2017 which was followed by a legal notice sent through
her lawyer on 29.12.2017. The airline in a response dated 04.01.2018 took the
position that the resignation had become effective with its acceptance, and,
hence, the situation could not be reversed. Pertinently, the pilot had joined
another airline after she refused allocation of duties by the employer airline.
(x)(b) It is in these circumstances that the Supreme Court in the Sandhu case
concluded that it fell within the exceptions adverted to in Gopal Chandra Misra
case and those adverted to in Balram Gupta v. Union of India and Anr. 1987
(Supp.) SCC 228. [See paragraph 14 of the Sandhu case.]
(x)(c) In contradistinction, the pilots in the instant cases have withdrawn their
resignation before it was accepted; during the notice period, the pilots were
discharging their duties; AIL did not put in place substitutes/replacements either
at the time when resignations were submitted or at the stage of withdrawal of
resignations; and lastly, the pilots on the rolls of AIL are not in excess as
claimed by AIL.
(xi) The impugned letters were not an outcome of a well-thought-out
commercial decision as portrayed by AIL, but was an arbitrary decision, taken
in undue haste when writ petitions were pending before the learned Single
Judge and the matter was sub judice. These aspects are demonstrable from the
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following facts and events :
(a) Resignations were submitted to AIL between November 2019 and
February 2020, however, no steps were taken during the notice period.
(b) MOCA, having regard to the position of AIL, had issued circulars
dated 15.07.2020 and 17.07.2020, whereby allowances payable to the
pilots were reduced with retrospective effect i.e., 01.04.2020.
(c) On 15.07.2020, in W.P.(C) No.4203/2020 titled Arjun Ahluwalia
v. Air India Ltd., notice was issued by the court. The issue raised in the
said writ petition concerned withdrawal of resignation, and, thus, sought a
declaration that the same as non-est in law.
(d) In another writ petition i.e., W.P.(C)No.4420/2020 titled Sneha
Bhanot v. Air India Ltd. which raised a similar issue as the one, which
obtained in W.P.(C)No.4420/2020, notice was issued by the court.
(e) Substantial arguments were addressed in the aforementioned
petitions and the matter was adjourned to for further arguments. In the
interregnum, another set of writ petitions were filed i.e., W.P.(C)
Nos.5184/2020, 5227/2020, 5229/2020, 5240/2020, 5195/2020,
5230/2020 and 5232/2020 wherein similar issue was raised. The court
issued a notice in these petitions as well and directed that the same be
listed on 14.08.2020, along with connected matters.
(f) It is at this juncture i.e., on the night of 13.08.2020, at about 10.30
p.m., the impugned letters were issued, whereby resignations were
accepted. The intimation to the concerned pilots was sent by AIL, via e-
mails to render the writ petitions infructuous.
(xii) That, the impugned action was taken without application of mind apart
from being arbitrary and hasty, is demonstrable from the following facts :
(a) The impugned letter(s) dated 13.08.2020 were cyclostyled.
(b) The impugned letters bear the same reference number i.e.
Ref.No.HPDO1/O-2701.
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(c) The impugned letters were issued even in those cases where
withdrawal of resignation by the pilots had been accepted by AIL. [See
LPA Nos. 247/2021, 248/2021, 269/2021, 275/2021, 276/2021,
277/2021, 279/2021, 280/2021, 283/2021 (sic and 282/2021).]
(d) Impugned letters were issued to even those pilots who according to
AIL had been served with letters accepting their resignation between
January 2020 and March 2020 [See LPA Nos. 246/2021, 247/2021,
250/2021, 251/2021, 260/2021, 263/2021, 269/2021, 280/2021 (sic and
282/2021).]
(e) In the case of two pilots i.e., Dushyant Gaur and Amith Suresh
[who were petitioners in W.P.(C) Nos.8625/2020 and 8626/2020
respectively], impugned action was not taken on 13.08.2020, although,
they had submitted their resignations followed by withdrawal of the
same. These two pilots were issued impugned orders on 16.10.2020,
albeit, without any explanation.
(f) Impugned action (i.e. acceptance of resignation) was taken even
qua the pilots who were served by AIL with letters calling upon them to
pay liquidated damages to enable AIL to process their resignations. The
pilots, vis-à-vis whom this step was taken, were the following: Vignesh
Sangaram (LPA No.292/2021); Rijul Arora (LPA No.291/2021); Vikrant
Jadhav (LPA No.289/2021); Yogish S. Katagihallimath (LPA
No.294/2021); and Mohit Arora (LPA No.264/2021).
(xiii) Financial constraint which is given by AIL as defence qua the impugned
action does not align with the following actions or deliberate inactions, taken by
AIL.
(a) None of the other employees or cabin crew have been retrenched.
AIL is unable to demonstrate as to how the impugned action taken against
the pilots involved in the instant litigation is, thus, even-handed and
would help AIL substantially in dealing with its financial difficulties.
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(b) AIL renewed between July 2020 and August 2020, contracts of 19
pilots whose FTCs had expired. [See averments made in paragraph 31 in
W.P.(C) No.8626/2020, titled Amith Suresh v. Air India Ltd..] AIL has
not controverted this assertion.
(c) AIL has given promotions to numerous employees. [See rejoinder
filed in W.P.(C) No.5614/2020 titled Abhinav Gaur v. Air India Ltd.]
(d) AIL has failed to discharge the onus concerning the defence raised,
as regards financial constraints. It has failed to cite any judicial precedent
in support of its defence that would establish that the law concerning
resignation, its withdrawal and acceptance is required to bear in mind the
financial constraints of the employer. Financial difficulty cannot be cited
as a ground for frustration of a contract, and, therefore, the State or its
instrumentalities such as AIL cannot refuse to perform their obligations
by adverting to weak financial position, in defence of its actions.
(e) Since pilots were prevented from joining their duty and because
AIL's actions have been held by the learned Single Judge as being
contrary to law, reinstatement, full back wages and consequential benefits
should follow as a matter of right.
(xiv) FTCs are renewed and/or are extendable by a further period of five years,
as a matter of course. At the point in time, when pilots governed by FTCs
[while they were subsisting] had approached the court, they were assured that
impugned orders qua them would not be given effect to and that renewal of
FTCs will be subject to the outcome in the writ petitions; while in the case of 19
pilots who were similarly circumstanced, contracts were extended for five years
and others were denied extension.
(xiv)(a) It is in this background that, via order dated 03.11.2020 passed in
W.P.(C) No.8626/2020, titled Amith Suresh v. Air India Ltd., the learned
Single Judge ordered that release/renewal of the petitioner and/or renewal of his
FTC would be subject to the outcome in the writ petition.
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(xv) AIL cannot contend that writ petitions filed by pilots who had executed
FTCs had been rendered infructuous, given AIL's communication dated
28.10.2020 wherein AIL took the stand that since the issue concerning the
resignations was sub judice, the matter concerning the renewal of FTC had to be
deferred. [See Annexure-A, appended to CM No.29306/2020, filed in
W.P.(C)No. 5371/2020 titled Pavan N. Lakhani v. Air India Ltd.]
(xvi) In some cases, even after the impugned letter dated 13.08.2020 had been
issued by AIL, they were rostered for flying till 21.08.2020. [See LPA
No.277/2021, titled Air India Ltd. v. Capt. Shantanu S. Sangidwar]
(xvii) The pilots were on duty even after the expiration of six months notice
period [in some cases, up to six months after the expiry of the notice period].
Illustratively, the flying duty roster issued to the pilot concerned in LPA
No.248/202 i.e., Capt. K. Sai Sashanka went beyond the date when the notice
period expired i.e., beyond 22.07.2021.
(xviii) The submission advanced on behalf of AIL that the step taken by the
pilots to withdraw their resignations was triggered due to adverse conditions
created with the spread of the Covid-19 pandemic is inaccurate since the
withdrawal of resignation and acceptance of withdrawal of resignation are
instances which occurred before declaration of pandemic and implementation of
nationwide lockdown.
(xix) The provisions of the Operations Manual would bind AIL. Although
averments to that effect were made in the writ petitions, the same was not
denied. [See paragraphs 4.6 and 4.7 of the writ petition concerned in LPA
No.248/2021, alongside paragraphs 4.6 and 4.7 of the counter-affidavit filed by
AIL, in the writ petition.]
(xx) In the case of trainee pilots/first officers as well, the invocation of bank
guarantees by AIL is flawed once they had withdrawn their resignation. [See
LPA No.290/2021.] The assertion made by the pilot concerned in the said LPA
is that he has not been paid his salary w.e.f. 20.04.2020.
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(xxi) In a nutshell, the impugned judgment of the learned Single Judge
deserves to be upheld, and, consequently, the appeals preferred by AIL should
be dismissed.
Analysis and Reasons:-
(I) WHETHER RESIGNATION OPERATES IN PRAESENTI?
10. Before we proceed further, it may be relevant to put forth the legal
landscape concerning the date on which the resignation becomes effective, and
its impact on snapping the link between the employer and employee. In other
words, the event which determines the relinquishment of office/post of an
employee, upon the resignation being tendered.
10.1 In this context, the first aspect to be noticed is that resignation is a
voluntary act in contradistinction to termination/removal from service or even
retirement/superannuation, which occurs as per the applicable rules as also the
delinking which occurs by efflux of time in consonance with the provisions of
the contract, obtaining between the employer and employee.
10.2 Therefore, since resignation is a voluntary act, the concerned employee
can ordinarily determine the date when she/he wishes to part company with the
employer. Resignation can, thus, be instantaneous or be configured to take
effect, at a future date. As to whether or not the resignation operates in praesenti
or in futuro would depend upon the language employed in the resignation letter.
[See Union of India Vs Gopal Chandra Mishra 1978 (2) SCC 301; Balram
Gupta case; and Punjab National Bank case]
10.3. Although the trigger for snapping the link between the employer and the
employee is placed in the hands of the employee, the link will get snapped
based on the nature of the office/post held by the employee and/or the contract
entered into between the employer and the employee. Thus, ordinarily, where
the offices/posts are held by persons, which have special attributes, then,
persons who hold such office(s)/post(s) can unilaterally relinquish their
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office/post; as against this, most of the other office(s)/post(s) have a bilateral
attribute attached to them. In other words, these are offices and posts which
cannot be relinquished, unless the employer accepts the resignation.
Illustratively, offices that fall in the first category i.e., office(s) and post(s) that
can be relinquished unilaterally, are the offices of the President, Vice-President,
Speaker, Judge of the Supreme Court and Judge of the High Court. Likewise,
the offices or posts which can be relinquished only upon the resignation being
accepted are offices held by government/public servants and by employees in
private enterprises. This, though, will depend on the rules and regulations,
which govern a government or a public servant or the terms of engagement that
are agreed upon by an employee or a private employer. [See Moti Ram vs Pram
Dev & Anr 1993(2) SCC 725 ]
10.4. Insofar as pilots employed by the AIL are concerned, they are, broadly,
governed by a regime that is contained in certain provisions embedded in the
following documents : Air India Employees Service Regulations [hereafter
referred as "Service Regulations"; Air India Operations Manual Part-A
[hereafter referred as "Operations Manual"]; CAR, issued by the Director-
General of Civil Aviation [in short "DGCA"] in the exercise of powers under
Section 133A of the Aircraft Rules, 1937; and the provisions of the Fixed Term
Contract [in short" FTC"] wherever executed between the pilots and AIL.
10.4(a) For the sake of brevity, the Service Regulations, Operations Manual and
CAR would hereafter, collectively, be referred to as 'documents' unless the
context requires otherwise.
10.5 Therefore, before one moves further it would be relevant to advert to the
specific provisions in each of these documents that would lend clarity to the
approach to be adopted for dealing with the issues at hand.
(i) Service Regulations
"Resignation
18. No employee shall resign from the employment of the
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Company without giving six months notice in writing to the
Company, in case of licence/approval categories.
In all other cases, employee shall give three months notice in
writing to the company or pay compensation in lieu of the notice
period. Such compensation shall be equivalent to the pay and
allowances the employee would have drawn during the relevant
period. Provided that Chairman and Managing Director/Managing
Director in case of licence/approval categories and the Competent
Authority in other cases may dispense with or reduce the period of
notice on grounds of continued ill-health of the employee or such
other compelling or extraordinary circumstances which in the
opinion of the Chairman and Managing Director/Managing
Director/Competent Authority warrants such dispensing with or
reduction in the period of notice;
During the notice period, the employee is required to be on duty and
serve the company. The notice period will not run concurrently with
leave unless specifically permitted under exceptional circumstances
by the Competent Authority.
Provided further that the Company shall have the right to refuse to
accept the resignation/termination of services by an employee where
such resignation/ termination of service is sought in order to avoid
disciplinary action contemplated or taken by the management or
such employees who are on bond obligations and/or other
obligations to serve for a specified period of time. Where the
Company decides to accept the resignation of an employee who is
under an obligation to serve the Company for a specified period of
time after training, the Company shall also have the right, as a
precondition to acceptance of the resignation, to advise the
employee to reimburse to the Company expenses on imparting
training and the other payments made to the employee during the
training."
(emphasis is ours)
(ii) Operations Manual
"1.34 SUBMISSION OF RESIGNATIONS BY FLIGHT
CREW
i) Pilots who wish to resign must first deposit the training
cost with the Finance Department, if applicable. After receipt
of which, the resignation will be considered for acceptance by
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the office of the CMD.
ii) Once the resignation is accepted by the office of the
CMD, the crew would be informed accordingly and the six
months notice period will then commence.
iii) During the notice period of six months, the crew should
be available for normal flight duties.
iv) A pilot, seeking NOC from the Company, will be issued
such a document on completing all monetary and procedural
formalities.
v) The 'No Objection Certificate' (NOC) whenever issued
to a flight crew, must indicate the reason(s) for the
resignation. Issues related to any incident/accident, CRM etc.
must be mentioned, if applicable."
(emphasis is ours)
(iii) CAR issued by the Director-General of Civil Aviation( "DGCA")
"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."
2. APPLICABILITY
2.1 This Civil Aviation Requirement shall be applicable to the
pilots in regular employment of any air transport undertaking as
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defined in clause (9A) of rule 3 of the Aircraft Rules, 1937.
2.2 Provision of this CAR shall be subject to the outcome of WP©
12387/2009 pending before Hon'ble High Court of Delhi.
2.3. 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, No.A.60015/024/2008-VE dated 21st October 2009, No.
AV.14011/1/2016-A dated 12th May 2017 and AV.32018/1/2017-DG
dated 14th Aug 2017.
3. REQUIREMENTS
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.
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 one year in respect of
commanders and six months in respect of co-pilots, which may
result into last minute cancellation of flights and harassment to
passengers, would be treated as an act against the public interest.
3.4 It has, therefore, been decided that pilots working in an air
transport undertaking shall give a 'Notice Period' of at least one
year in respect of commanders and six months in respect of co-pilots
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
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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 as indicated in
Para 3.3 of this CAR, failing which it shall be liable to penal action
by DGCA.
3.7 The 'Notice Period', however, may be reduced if the air
transport undertaking provides a 'No Objection Certificate' to a pilot
and accepts his resignation earlier than the requisite notice period."
(emphasis is ours)
(iv) Since provisions with regard to FTCs are contained in different contracts
executed in different periods, what is set forth hereafter is a sample of a
termination clause [concerning LPA No.246/2021], which is more or less
similar in all FTCs.
"......
XI. TERMINATION OF FIXED TERM CONTRACT
You will maintain strict discipline, integrity and good behavior during the
course of your Fixed Tenn Contractual engagement and shall be
governed by the terms and conditions of this Fixed Term Contract and
applicable Rules and Regulations of the Company as framed and
amended from time to time in this regard.
The Management reserves the right to terminate your Fixed Term
Contract by giving one months notice· or an amount equivalent to one
months' salary (excluding Flying related allowances) in lieu thereof for
unsatisfactory conduct, dishonesty, fraud or any other act which in view
of the Company is contrary to its interest.
Your performance, conduct, flying techniques etc. will be adjudged for a
minimum period of one year from the date of your release as First
Officer. If during this period of one year, your work, conductor progress
with regard to your performance, flying techniques is not found
satisfactory or if you fail to qualify in any Refresher Course/Test at
C.T.E. and/or at any Base, your Fixed Term Contractual engagement are
liable to be terminated without any notice and such termination of Fixed
Term Contractual engagement will be considered as final.
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In the event of your unsatisfactory progress or behaviour or due to any
act of omission or commission on your part which in the estimation of the
company amounts .to a misconduct your FTC engagement will be
terminated.
In the event you abandon or leave the Fixed Term Contractual
engagement of the Company before expiry of this Fixed Term Contract or
extended contract, you will be liable to pay to the Company the amount of
training spent by the Company......"
11. A perusal of the aforementioned documents would show that, as per the
Service Regulations, an employee can resign only if he has given six months
notice in writing, in case he falls in the licence/approval category; a period
which is reduced to three months with an alternative to paying compensation in
lieu of notice, qua employees falling in all other categories.
11.1 Furthermore, the Service Regulations confer on, the Chairman and
Managing Director/Managing Director [in short "CMD/MD"] in the case of
employees falling in licence/approval categories [and the competent authority in
other cases], the discretion to dispense with or reduce the notice period on the
ground of continued ill-health of the employee or such other compelling or
extraordinary circumstances, which, in the opinion of the CMD/MD/competent
authority, warrants dispensing with or reduction in the notice period.
11.2 Likewise, Clause 1.34 of the Operations Manual, which applies to the
flight crew4 [which would include a pilot], stipulates that pilots who wish to
resign would be required to deposit training cost with the finance department,
wherever applicable, and only after receipt of such cost, would the resignation
be considered for acceptance "by the office of CMD".
11.3 It is only after the resignation is accepted by the office of the CMD, and
information in that behalf is communicated to the crew, would the six months
notice get triggered.
Section 2(21) of the Aircraft Rules, 1937:-"Flight crew member" means a licence[d] crew
member charged with duties essential to the operation[of] an aircraft during a flight duty
period;
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11.4. Both, under Regulation 18 of the Service Regulations and Clause 1.34 of
the Operations Manual, the concerned employees are required to be available to
carry out their duties, during the notice period. Pertinently, under sub-clause
5(v) of Clause 1.34 of the Operations Manual, wherever a No Objection
Certificate (NOC) is issued to a flight crew, it is required to indicate the
reason(s) for resignation and state therein, the issues, if any, related to the
incident(s) or accident(s). The NOC is also required to mention CRM etcetera,
wherever applicable.
11.5. Significantly, under Regulation 18 of the Service Regulations, AIL has
been, inter alia, conferred with a right to refuse to accept, the resignation of an
employee, where resignation is tendered to avoid disciplinary action
contemplated or taken by the management or of such employees, who, have
undertaken obligations under a bond executed by them and/or other obligations
which require them to serve AIL, for a specified period. Where an employee is
obliged to serve AIL for a specific period after receiving training, and if AIL
decides to accept the resignation of such an employee, AIL has the right [as a
precondition to acceptance of the resignation], to advise the employee to
reimburse such expenses that may have been incurred on training or other
payments made to the employee during his/her training.
11.6. Likewise, DGCA, via CAR, albeit, in "public interest" has stipulated a
notice period. Insofar as the pilots involved in the appeals are concerned, AIL
has taken a firm stand that applicable notice period fixed is six months and that
provisions of CAR apply to both permanent employees as well as those
employees who have executed FTCs.
11.7. As is evident upon a plain reading of paragraphs 3.2 and 3.3 of the CAR,
the stipulations qua notice period has been made to prevent last-minute
cancellation of flights and harassment to passengers; in a nutshell, to further
public weal. Thus, in line with the provisions contained in the Service
Regulations and the Operations Manual, during the notice period, the pilot is
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obliged to undertake the flight duties assigned to her/him with a corresponding
obligation placed on the employer (in this case AIL) not to deprive the pilot of
her/his legitimate rights and privileges concerning assignment of duties.
11.8. CAR states in no uncertain terms in paragraph 3.4 that, the failure to
comply with its provisions may lead to action against the pilot or the air
transport undertaking, as the case may be, under the relevant provisions of the
Aircraft Rules, 1937. CAR also provides that, in case the air transport
undertaking resorts to a reduction in salaries/perks or otherwise alters the terms
and conditions of employment to the disadvantage of the pilot, during the notice
period, the pilot shall be free to request, her/his release, before the expiry of the
notice period, and upon such request being made, the air transport undertaking
shall be bound accept her/his request in such circumstances.
11.9. There is a further obligation placed upon the air transport undertaking,
which is, that it is duty-bound to issue a NOC to the pilot on expiry of the notice
period, failing which it shall be subjected to penal action by the DGCA.
Furthermore, the air transport undertaking can reduce the notice period, if it
provides a NOC to the pilot and accepts "his resignation earlier than the
requisite notice period".
12. In sum, what emerges is that, although, Regulation 18 of the Service
Regulations and Clause 1.34 of the Operations Manual are confined to the
employees (in this case the pilots) of AIL, the Directives issued by the DGCA
apply to the employees, including the pilots, of the all transport undertakings,
including the AIL.
12.1. The common thread which runs through all these documents is that a pilot
who wishes to resign, would necessarily have to give six months notice in
writing.
12.2. As emphasized in CAR, the requirement of giving six months notice to
the air transport undertaking is founded on public interest i.e., to prevent last-
minute cancellation of flights and harassment to passengers. It is, however,
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balanced with the right of the pilot to terminate the employer-employee
relationship by tendering, in writing, a minimum notice period of six months.
The CAR requires air transport undertaking to issue a NOC to the pilot once the
notice period expires. Whenever the air transport undertaking resorts to a
reduction in salaries/perks or otherwise alters the terms and conditions of
employment to the disadvantage of the employee-pilot during the notice period,
she/he shall be free, to request, her/his early release. In such circumstances, the
air transport undertaking is obliged to accept the request.
12.3. Besides this, in case, the air transport undertaking accepts the resignation
earlier than the notice period, the notice period is automatically truncated, and
the air transport undertaking is, thereafter, obliged to provide a NOC.
12.4. Therefore, what surfaces is that, broadly, Regulation 18 of the Service
Regulations and Clause 1.34 of the Operations Manual are in line with the
provisions of CAR, inasmuch as all three documents require the issuance of a
prior notice of six months to trigger the resignation. Once the notice period
expires, the AIL would have no option but to let the pilot go, save and except,
where resignation is tendered to avoid disciplinary action contemplated or taken
by its management or where the pilot has to fulfil bond or other obligations,
albeit, for a specified period.
12.5. Barring these circumstances, AIL would have to issue a NOC to the pilot,
once the notice period expires. The notice period, however, can be curtailed, as
indicated above, if AIL chooses to accept the resignation at an earlier date. In
such circumstances, the NOC will have to be issued by the AIL with the
acceptance of resignation.
13. Therefore, the argument advanced on behalf of the AIL by Mr. Tushar
Mehta, learned Solicitor General, that once the resignation is tendered by a
pilot, it operates in praesenti irrespective of the date mentioned in the
resignation letter, is untenable. The pilot in each case, upon tendering his
resignation, would have to serve AIL for the stipulated notice period i.e., six
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months.
13.1. The pilot in a given case can provide for an effective date of resignation,
which goes beyond the stipulated period of six months. The AIL on its part can
curtail the notice period, which could be six months or more, by accepting the
resignation at an earlier date. In such eventuality, the NOC would have to be
issued by AIL at a point in time, when it accepts the resignation.
13.2. Therefore, when CAR is read along with the Service Regulations and the
Operations Manual, it highlights the fact that there are three terminal points that
lead to snapping, the employer-employee relationship: first, upon completion of
the six months notice period; second, on the end date provided in the resignation
letter of the pilot, which can be a date when the six month notice period ends or
beyond the date when the six months period ends; in no case, can the end date
fall on the day, which is short of the stipulated six months notice period; and
third, AIL can, if it so wishes, put an end to the employer-employee relationship
while accepting the resignation before the stipulated six month period.
(II) WHETHER THE RESIGNATION TENDERED REQUIRES
ACCEPTANCE?
14. The question which arises for consideration is: whether the acceptance of
resignation by AIL (as day follows night) is the logical sequitur i.e. the next step
once the resignation is tendered by an employee pilot?
14.1. The answer to the aforesaid poser is embedded in the intersectionality of
Regulation 18 of the Service Regulations, Clause 1.34 of the Operations Manual
and paragraphs 3.1 to 3.7 of the CAR. The commonality between all three
documents is the obligation cast on the pilots, to serve upon AIL a minimum
notice period of six months, in case they intend to resign.
14.2. As noticed above, the Service Regulations and Operations Manual is
specific to the employees of AIL [in this case, the pilots], whereas the
provisions of CAR apply to the pilots who are employed by air transport
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undertakings, which includes AIL.
14.3. Thus, insofar as the pilots of AIL are concerned, not only Regulation 18
of the Service Regulations and Clause 1.34 of the Operations Manual would be
applicable, but paragraph 3 of the CAR would also apply to them. A conjoint
reading of these documents would show that the other common feature of these
documents is the obligation on the part of the AIL/air transport undertaking to
issue a NOC, once the notice period expires. Qua this aspect, the slight
departure in the language, concerning the issuance of NOC in the Operations
Manual, is that, the obligation to issue the same by AIL gets triggered once a
pilot asks for the same, upon completion of all monetary and procedural
formalities, whereas Paragraph 3.6 of the CAR links it to the expiry of the
notice period, as indicated in paragraph 3.3 of CAR.
14.4. In this context, it may be relevant to note that, in a case where the air
transport undertaking/AIL accepts the resignation tendered by the pilot earlier
than the required notice period and issues a NOC in line with this action, the
notice period gets truncated, and, thus, terminates on the day of acceptance of
resignation. This is evident on a perusal of paragraph 3.7 of the CAR, which
points in the direction that the obligation on the part of the air transport
undertaking/AIL to issue a NOC, is coterminous with the expiration of the
notice period.
14.5. Besides this, what is required to be noticed is that, under Regulation 18 of
the Service Regulations, the AIL, as adverted to above, has, inter alia, the right
to refuse to accept the resignation of a pilot or termination of the services of a
pilot, where resignation is tendered to avoid disciplinary action, which is either
contemplated or taken by the management of the AIL or where pilots are
required to adhere to obligations undertaken by them, under a bond executed by
them and/or any other obligation which requires them to serve AIL for a
specific period.
14.6. In a case, where AIL decides to accept the resignation of an employee [in
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this case, a pilot] who is under an obligation to serve AIL for a specific period,
post his training, AIL is vested with the right to impose a pre-condition for
acceptance of the resignation to advise such an employee i.e., a pilot to
reimburse the AIL--the expenses incurred on imparting training or other
payments made to the employees/pilots, during the training period.
14.7. Likewise, Clause 1.34 of the Operational Manual provides that, the six
months' notice period will commence only after the resignation tendered by a
pilot, is accepted by the office of CMD/MD. It also provides that, wherever
applicable, the pilot wishing to resign must first deposit the training cost with
the Finance Department, before the resignation can be considered for
acceptance by the office of the CMD/MD. These provisions [to which we have
referred to hereinabove] do not find mention in the CAR.
14.8. As noticed above, the CAR speaks about the minimum notice period and
the obligation on the part of the air transport undertakings/AIL, to issue a NOC.
There is, therefore, to that extent, no dissonance as regards the fundamental
aspects, which are etched out in Regulation 18 of the Service Regulations,
Clause 1.34 of the Operations Manual and paragraphs 3.3 to 3.7 of the CAR.
15. The CAR, as adverted to hereinabove, operates in rem qua all air
transport undertakings, which includes the AIL, while the Service Regulation
and Operations Manual are specific to the employees i.e., the pilots, in this case,
of AIL.
15.1. The variation concerning the provisions for acceptance [to which we have
referred to hereinabove] is in no way inconsistent with the provisions contained
in paragraphs 3.3 to 3.7 of the CAR.
15.2. Therefore, what it boils down to is that the pilot has the right to tender his
resignation, which should be in writing; with a minimum notice period of six
months. The pilot can, however, provide in her/his resignation letter, a terminal
date when she or he wishes to exit the AIL, which can be a date beyond the
period of six months. The CMD/MD/competent authority of AIL can dispense
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with or truncate the notice period to less than the stipulated minimum notice
period of six months on the grounds of ill health or extraordinary circumstances;
which, in the opinion of the CMD/MD/competent authority warrant dispensing
with or reduction in the notice period.
15.3. Therefore, once the pilot has served the notice period, a right emerges in
his favour to exit from the AIL, and seek issuance of a NOC from the AIL, upon
completion of all monetary and procedural formalities, save and except in the
following circumstances:
(i) where resignation is tendered to avoid disciplinary action contemplated
or taken by the management
(ii) where a pilot is required to fulfil obligations undertaken under a bond
executed by her/him or other obligations to serve AIL for a specific period, in
which case, the AIL can advise reimbursement of charges incurred by it on
training and/or other payments made by the AIL, during the training, before it
takes a decision to communicate the resignation to a pilot, placed in such
circumstances.
15.4. Thus, what follows is that, although there is an obligation on the part of
the pilot to serve a minimum notice period of 6 months, the employer-employee
relationship does not dissolve till such time a decision is taken at AIL's end as to
whether or not the pilot tendering his resignation falls in the excepted
categories, adverted to hereinabove. This hoop [as a figure of speech], AIL will
have to cross in every case. This can happen only, upon AIL taking a conscious
step and reaching a firm conclusion whether or not the resignation tendered, in a
given case, is to be accepted.
15.5. As indicated above, AIL can refuse to accept the resignation tendered by
a pilot not only in cases where disciplinary action has been taken by the
management but also in those cases where disciplinary action is contemplated;
the other excepted category being the obligation cast on the pilot to serve on the
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AIL for a specified period, in consonance with bond obligations or other
obligations undertaken by the pilot.
15.6. The excepted categories, to our minds, serve a larger public interest as,
apart from anything else, they also secure the financial interest of the AIL. The
AIL, on its own showing, undertakes huge expenses in training the pilots at
every level, which AIL may want to be reimbursed if it decides to let go of the
pilot.
16. Bearing in mind the structural framework of the aforementioned
documents and the legal principles enunciated by the judgments referred to
hereinabove it is clear that : resignations tendered by the pilots did not operate
in praesenti and for them to be effective they had to be accepted, albeit, with
two caveats:
(i) First, AIL had the right to truncate the notice period.
(ii) Second, upon completion of the notice period which could be six (6)
months or more, AIL would have to allow the pilots to exit [with the a
corresponding obligation, inter alia, to issue a NOC] excluding those cases
which fell in the excepted category.
(III) INCONSISTENT CONDUCT OF AIL
17. The fact that resignations had to be accepted and that was the
understanding of AIL as well, is evident from its conduct i.e., in issuing the
impugned letters, the majority of which are dated 13.08.2020; except in LPA
Nos.273/2021, 281/2021, and LPA No.278/2021. The impugned letters are
dated 16.10.2020 in LPA Nos.273/2021 and 281/2021, while the impugned
letter is dated 15.08.2020 in LPA No. 278/2021.
17.1. The argument advanced on behalf of AIL that acceptance of resignations,
submitted by the pilots, was not required; is completely inconsistent with the
conduct of the AIL in the cases referred to in LPA Nos. 247/2021, 248/2021,
269/2021, 275/2021, 276/2021, 277/2021, 279/2021, 280/2021, 282/2021 and
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283/2021. These are cases in which AIL after accepting the plea put forth by the
pilots that they were desirous of withdrawing their resignations, proceeded to
accept the resignations which were tendered in the first instance.
17.2. Thus, the argument advanced on behalf of AIL that acceptance of
resignation was not mandated in law is contrary to their own conduct and
understanding, both, at the time of issuance of the impugned letters and also, at
the stage when AIL was contemplating action in the matter concerning
resignations tendered by the pilots.
17.3. The learned Single Judge, while observing that notings in files
maintained by the AIL cannot ordinarily form the basis of a decision by the
Court, came across internal discussions, which disclosed that the position taken
by the officers of AIL was--that where letters withdrawing resignations had
been accepted, those pilots had to be taken back in service. This discussion is
contained in paragraph 44 of the judgment rendered by the learned Single
Judge.
"44.......The notings are indicative of the fact that the respondent (i.e. the
appellant AIL herein) was fully aware of the position of law that, if
resignations were withdrawn within the notice period of six months, prior
to their acceptance by the respondent, it shall have no jurisdiction to act
on the said resignations. The respondent was fully conscious that, with
respect to the pilots, whose withdrawals were accepted, the orders could
not be recalled and there are repeated notings on the file against
acceptance of these resignations. In fact noting dated 13.07.2020 records
that the cases of such pilots cannot be treated similar to other categories
as there is a contract of employer and employee, which must be honoured
by Air India. Succeeding this, the noting dated 23.07.2020, recording that
any action to the contrary could lead to a challenge in court of law......."
17.4. There is neither any ground in the appeals preferred before us, nor was
any argument advanced that the finding returned in the impugned judgment qua
notings made in AIL's file was incorrect and/or inaccurate. The reason that the
aforesaid extract has been adverted to by us is not that the noting in the file by
itself would determine the outcome of the litigation pending between the
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parties, but only, to highlight the fact that AIL has set up a case which is
contrary to its own understanding of the various provisions of the documents
adverted to hereinabove.
(IV) RELEVANCY OF REASONS IN ASCERTAINING THE LEGAL
TENABILITY OF RESIGNATIONS
18. Therefore, if the legal and factual position which has emerged is taken to
be correct, the argument advanced on behalf of AIL as to what motivated the
pilots to tender the resignations, in our view, would be irrelevant.
18.1. The submission made that the pilots tendered their resignations because
they sought "greener pastures" i.e., better offers from private airlines, has no
relevance. We may, however, point out, in passing, that none of the impugned
letters, via which resignations were accepted, was this, given as a reason.
18.2. As a matter of fact, AIL adverted to its own strained financial position,
which had become, according to it, worse during Covid-19 pandemic; as one of
the reasons why it had chosen to accept the resignations. According to AIL, the
concomitant consequences of this circumstance was truncated operations [which
were not likely to improve in the foreseeable future], leading to redundancies.
18.3. In sum, AIL had portrayed that it had been suffering losses, and did not
have the financial ability to make payments. These reasons were, though,
prefaced with AIL's understanding of the decision rendered by the Supreme
Court in the Sandhu case. Based on its appreciation of the ratio in the Sandhu
case, AIL concluded that the pilots could not recall their resignations, and hence
went on to apply the same dicta to even those cases, where it had accepted the
pilot's communications for withdrawal of resignations.
18.4. As noticed above, similar letters were issued in LPA Nos. 273 and
281/2021 as well as LPA No.278/2021, which are dated 16.10.2020 and
15.08.2020.
18.5. At this juncture, it is, however, relevant to point out [something which
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emerges even upon reading the impugned letters issued by AIL to the pilots]
that AIL's financial position was precarious, even before Covid-19 pandemic
broke out and that because it exacerbated during pandemic, following steps
were taken by AIL :
(i) Via notification dated 15.07.2020, issued by the Government of India,
Ministry of Civil Aviation (MOCA), the flying allowance was reduced to 20
hours [i.e., actual flying hours or 20 hours, whichever is higher], as against 70
hours, and the rate of flying allowance per hour was reduced by 40% w.e.f.
01.04.2020, which incidentally constitutes 70% of the salary paid to a pilot.
The fact that pilots were getting flying allowances for 70 hours, and that the
same constituted 70% of their salary, is discernible from a perusal of the
assertions made in W.P. (C) 5330/2020 [concerning LPA No.264/2021]; an
aspect which has not been rebutted by AIL.
(ii) Furthermore, vide notification dated 17.07.2020 [which was on similar
lines as aforementioned notification dated 15.07.2020], MOCA rationalised
allowances of other employees as well i.e., those who were not pilots, having
regard to the reduction in the load factor and the instructions issued by MOCA,
concerning flight capacity.
19. The argument, propounded on behalf of the AIL, that the pilots had taken
a decision to withdraw their resignation letters because travel restrictions had
kicked-in on account of Covid-19 pandemic, disregards the reason(s) tendered
by each pilot in her/his resignation letter; pertinently most of the reasons were
personal to the concerned pilot . It is possible that the financial wherewithal of
the pilots' became untenable because of Covid-19 pandemic kicking-in, but that
by itself, in our opinion, cannot form the basis of denuding them of their legal
right to revisit their decision to resign from AIL.
19.1. In this behalf, it would be relevant to refer the judgment rendered by the
Supreme Court in the Balram Gupta case. This was a case where the appellant
before the Supreme Court sought to withdraw his letter, whereby he had
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indicated his decision to voluntarily retire from service. The letter, which was
dated 24.12.1980, stated that he would retire from service w.e.f. 31.03.1981,
and since he was required to give notice, he also averred that the notice would
commence from 01.01.1981. The Government of India, vide letter dated
20.01.1981, accepted the appellant's offer. However, upon being advised by
relatives and staff members, he decided to continue in government service and
gave notice in that behalf, via communication dated 31.01.1981. The
Government of India, however, took the position that the appellant i.e., Balram
Gupta could not change his position, and, therefore, his decision to voluntarily
retire from service, could not be altered.
19.1(a). The Supreme Court on the aspect of the right of an employee to revisit
his decision to exit from service because of changed circumstances made the
following apposite observations :
"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.
13. We hold, therefore, that there was no valid reason for withholding
the permission by the respondent. We hold further that there has been
compliance with the guidelines because the appellant has indicated that
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there was a change in the circumstances, namely, the persistent and
personal requests from the staff members and relations which changed
his attitude towards continuing in government service and induced the
appellant to withdraw the notice. In the modern and uncertain age it is
very difficult to arrange one's future with any amount of certainty; a
certain amount of flexibility is required, and if such flexibility does not
jeopardize the Government or administration, administration should be
graceful enough to respond and acknowledge the flexibility of human
mind and attitude and allow the appellant to withdraw his letter of
retirement in the facts and circumstances of this case. Much
complications which had arisen could have been thus avoided by such
graceful attitude. The court cannot but condemn circuitous ways "to ease
out" uncomfortable employees. As a model employer the Government
must conduct itself with high probity and candour with its employees."
(emphasis is ours)
19.2. Thus, in our view, to find fault with the pilots that they decided to change
their position cannot be held against them, in the facts and circumstances which
have arisen in the present cases. The reason that we say so is that, if AIL had
altered its position from that which obtained on the date when request for
withdrawal of resignation was submitted to AIL, as for example in the Sandhu
case, then, perhaps, one could have taken a different view in the matter.
19.3. On behalf of the AIL, during the course of hearing, nothing has been
shown to us which would show that its position stood altered on the date when
resignations were withdrawn by the pilots; the only aspect which, as noticed
above, was brought to fore, concerned its financial position. This argument, in
our view, cuts both ways for the reason that if AIL's operations got truncated
during Covid-19 pandemic, the impact of the same on the employees was no
less.
19.4. The State and its instrumentalities are obliged to act as a model employer,
and, therefore, cannot be seen to deprive the pilots of, the right to serve the
organization [i.e., AIL, in this case], at a point in time when finding jobs in the
private sector is a difficult proposition. The State and its instrumentalities are
expected to look at myriad aspects and not just profits. Welfare of employees in
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times when jobs are difficult to come by should form a crucial ingredient of its
decision making process. The State cannot be seen to cast off its social
responsibility towards its employees and their families when it expects the
private sector to bear that burden.
(IV) IMPORT AND SCOPE OF CAR.
20. This brings us to the argument advanced on behalf of AIL that CAR
encapsulates a "regulatory scheme" which is sui generis.
20.1. It was argued that the regime incorporated in CAR, which is binding on
pilots who are permanent employees and those, who had executed FTCs was
founded on subserving public interest, and not the interest of an individual pilot.
According to us, this argument misses a crucial point, which is, that AIL will
not be able to serve public interest without the aid and assistance of its
employees, which includes the pilots.
20.2. A close perusal of the framework of CAR would show that the emphasis
is on ensuring that aircrafts owned by air transport undertakings are not
grounded only, because the pilots take a sudden decision to exit- as it takes
about eight to nine months to train a pilot to operate an aircraft, coupled with
the fact that she/he has to pass technical and performance examinations, and
also undertake simulator and flying training and various skill test, before she/he
is issued a licence. It is because of this reason that CAR provides that, during
the notice period, the pilot shall not refuse to undertake the flight duties
assigned to her/him.
20.3. Furthermore, it is in recognition of the fact that this public interest can be
furthered only with the active assistance of the pilots, that countervailing
obligations have been placed under the CAR on the employers i.e., the air
transport undertaking. The countervailing obligations cast on the employers,
inter alia, requires them to maintain the pilots' rights and privileges qua the
duties assigned to them, and also ensure that there is no reduction in
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salaries/perks or alteration in terms and conditions of employment, to the
disadvantage of the pilot serving the notice period. The consequences, of either
side [i.e., the pilot or the air transport undertaking] not adhering to what is
provided in CAR, are also set forth therein.
20.4. Thus, the argument advanced on behalf of AIL that the public interest
aspect adverted to in CAR does not take into account the interest of the pilots,
does not emerge on a plain reading of the provisions of CAR.
20.5. That said, it has to be recognised that the notice period stipulation put in
CAR is to ensure that no inconvenience and/or harassment is caused to the
passengers because of flights being grounded, on account of unavailability of
pilots.
21. We are, however, unable to agree with the argument advanced on behalf
of AIL that the provisions contained in paragraphs 1.1, 3.3 and 3.4 of CAR
would show that once the resignation is tendered by the pilot, it de jure brings to
an end the employer-employee relationship on the date of resignation, although,
de facto in public interest, she/he continues to serve the airline.
21.1. According to us, nothing of the kind, which has been suggested, emerges
on the plain reading of the aforesaid provisions of CAR. The issuance of CAR,
as discussed above, has a specific purpose, which is, to incorporate a minimum
notice period for pilots, wishing to exit the air transport undertaking, so that
operations are not brought to an abrupt halt to the detriment of the passengers.
This purpose has been balanced by conferring certain valuable rights on the
pilots, which includes the right to exit after notice period is served and to
demand the issuance of a NOC.
21.2. The fact that a jural relationship subsists between an employer and an
employee, is clearly evident from the need to accept the resignation letter and to
issue a NOC, almost simultaneously, in case the employer i.e., the air transport
undertaking [which, in this case, includes the AIL], were to truncate the notice
period. [See paragraph 3.7 of CAR.]
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22. As discussed above, the acceptance of resignation is an integral part of
the process put in place for a pilot seeking to exit from AIL. If the argument put
forth on behalf of AIL were to be accepted, it could lead to serious difficulties
for AIL, if it was inclined to bring a delinquent pilot to book i.e., hold her/him
accountable. In our opinion, the power to take disciplinary action against the
pilot would subsist, till there is a snapping of the employer-employee
relationship, and that delinking of this relationship can happen only, once the
resignation tendered is accepted.
22.1. This ties in, with our discussion adverted to hereinabove, which is, that
the resignation letters tendered by the pilots did not operate in praesenti, and
that they were entitled to indicate the date of their exit, bearing in mind that they
had to serve a minimum notice period of six months.
22.2. Furthermore, the argument advanced on behalf of AIL that the letters
seeking withdrawal of resignation were couched in the form of request, as the
pilots had no legal right to withdraw their resignations, is totally misconceived.
22.2(a)Since each letter depicts the personal tryst of the pilot, the language of
these letters is not similar. For a better sense of this aspect of the matter, by way
of illustration, extracts of two letters are set forth hereafter:
Sample I
"TO
THE GENERAL MANAGER,
OPERATIONS DEPARTMENT,
SOUTHERN REGION,
AIR INDIA LTD.,
HYDERABAD
Dear Sir,
Subject: Withdrawal of my Resignation
This is with reference to my letter of resignation, dated 05th Feb' 2020. I am
hereby informing you that I am withdrawing my resignation with immediate
effect.
Thanking you
Yours sincerely
sd/-
F.O. Udit Narula
Signature Not Verified
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SAP. No. - 80038149"
Sample II
"Resignation withdrawal
Respected Sir,
This is to inform and request you that Myself F/O Jeetender Yadav emp. No.
81033012 have resigned on 5 July 2019 and completed 6 months notice period
on 3rd Jan 2020. As the company is now taking into account my issues,
Company permitting I am willing to take my resignation back and continue
services with AIR INDIA.
Request to adjust days marked as "Resigned" after 3rd Jan with PL for the
month and maintain my Seniority as original for any upgrade and training as
well.
Hoping for a positive and asap response.
Request let me know if anything else is needed.
Thank you.
Best regards
F/O Jeetender Yadav
#81033012 "
22.2(b)A careful perusal of the first letter [corresponding to LPA No.276/2021]
shows that the first letter is, clearly, not a request for withdrawal of resignation,
while the second letter [corresponding to LPA No.275/2021] is polite but firm,
indicating that the pilot wishes to withdraw the resignation.
22.2(c) The argument advanced by AIL misses the point that once withdrawal
of resignation had been triggered, then nothing was left for AIL to accept. In our
opinion, the view taken by learned Single Judge on this score is correct.
22.3. Thus, logically, what follows is that, before resignations tendered by the
pilots were accepted, they had every right in law to withdraw the same as their
jural relationship with AIL remained unimpaired till their resignations were
accepted.
(V) CASES WHERE RESIGNATIONS WERE ACCEPTED PRIOR TO
EXPIRY OF NOTICE PERIOD
23. The cases referred to in Table I above would show that, the resignations
tendered by the pilots were sought to be accepted, before they had been
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withdrawn. Insofar as these nine cases are concerned, what has surfaced is that
AIL through its General Manager (Operation), issued letter(s), which
purportedly accepted their resignation prior to expiry of the notice period. The
relevant parts of one such letter which are similar, are extracted hereafter:
"From, To,
General Manager (Pers.) [Name of Pilot]
Air India Limtied [Designation]
Northern Region Air India Limited
New Delhi Northern Region
New Delhi
Through - GM (Operation)
Ref No.- DPE/Resign/....
Date: --.--.----
Subject: Resignation
This refers to your resignation dated ____________ the Competent
Authority has accepted your resignation and you will stand released from
the services of the Company w.e.f close to working hours of __________
i.e. after the completion of required notice period of 06 months.
Further, your account will be settled after checking your
commitments including 'NO DUES' from all concerned departments and
submission of AER, BCAS pass and any other Company's properties in
your possession.
Please note that you are required to be available for duty during
the notice period as per Company's requirement.
[Name of officer]
Assistant Manager (Pers.)
For General Manager (Pers.)
cc: Director (Pers.)
cc: Director (Operations)
cc: Regional Director (NR)
cc: General Manager Pers.(HQ), Airlines House, New Delhi
cc: GM(Fin.), NR
cc: Sr. Manager (Pers./L&P/Estate)
cc: Payroll, AIL, NR"
23.1. A perusal of the aforementioned extract would show the following :
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(i) On the face of it, it shows that the resignation was accepted, although, the
pilot concerned was informed that he would have to serve a minimum notice
period of six months. This, however, is contrary to paragraph 3.7 of CAR, as
once the notice period is truncated, AIL was obligated to let the pilot go and,
simultaneously, issue the concerned pilot a NOC; a step which was, admittedly,
not taken.
(ii) As noticed above, the communication, that purported to accept the
resignation, was issued to the concerned pilot, at the behest of the General
Manager (Personnel), AIL, with a copy to other officers.
(iii) The record in each of these cases shows that, prior to the completion of
the six months notice period, a communication was sent by the pilot concerned
withdrawing her/ his resignation.
23.2. Furthermore, even after the release date, [as stipulated in the above-
referenced communication(s)] had been crossed, for reasons best known to AIL,
the impugned letters were issued attempting to accept the resignations which
stood withdrawn.
23.3. Therefore, it appears that AIL was treating the release date as the date
when the employer-employee link would snap. By not issuing the NOC, AIL
reneged on its part of the obligation; resulting in employer-employee
relationship remaining alive and AIL's attempt at accepting the resignation
remained inchoate. The acceptance of resignation in these cases has to be seen,
in light of the subsequent conduct of the parties.
23.4. Besides this, in LPA Nos.247/2021, 269/2021, 280/2021 and 282/2021,
upon the concerned pilot withdrawing his resignation, AIL accepted the
withdrawal of resignation. The pilots in these cases, thereafter, continued to
perform their assigned duties till the issuance of the impugned letters, except in
LPA Nos.247/2021 and 269/2021, where duties were performed even after the
release date mentioned in the impugned letters. Furthermore, it is noticed that
in these cases, the resignations were made effective from the date which
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appeared on the impugned letter(s), and not from the date indicated by the
resignation letters. As is noticed above, the impugned letters in these cases,
were dated 13.08.2020.
LPA No. Effective date of Effective date of
resignation in the resignation in the
communications, that impugned letter
sought to accept
resignation tendered in
the first instance
247/2021 10.03.2020 13.08.2020
269/2021 20.03.2020 13.08.2020
280/2021 09.04.2020 13.08.2020
282/2021 18.03.2020 13.08.2020
23.5. The submission advanced on behalf of the AIL that the learned Single
Judge had erred in granting relief, is correct to the extent that the
aforementioned facts do not find mention in the impugned judgment. However,
as noted by us hereinabove, the circumstances in the instant cases have to be
appreciated in the light of the subsequent conduct of AIL.
23.6. At the risk of repetition, it appears that AIL, even in these nine cases, did
not consider the communications issued by them as acceptance of resignation,
which brought about a dissolution of the employer-employee relationship. As
discussed above, there was, both, under the CAR and the Operations Manual, a
countervailing duty cast upon AIL to discharge certain obligations, once
resignation was accepted; which included issuance of NOC. Under paragraph
3.7 of CAR, if AIL chose to truncate the notice period, it was obliged to issue a
NOC. Clearly, there is no reference in the above-referenced letters [a sample of
which is extracted hereinabove] that an NOC was issued to the aforementioned
nine pilots; rather they were assigned duties even after purported acceptance of
resignation by AIL on 06.01.2020, 09.01.2020, 22.01.2020, 29.01.2020 and
17.02.2020. AIL could not have, so to speak, retained the cake and eaten it
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(too).
24 AIL, it appears, was keeping its options open or at least had not firmed up
the date when it would bring to an end the jural relationship that subsisted
between the pilots and itself. This resulted in a situation where the pilots on a
revisit sought to withdraw their resignation letters, in and about March-April
2020. AIL, on its part, allowed this situation to subsist till August-October
2020. The fact that these nine [9] pilots were performing their duties has not
been disputed before us. Therefore, the inference that can be drawn in these
cases is that the letters dated 06.01.2020, 09.01.2020, 22.01.2020, 29.01.2020
and 17.02.2020 did not intend to snap the employer- employee link before the
concerned sought to withdraw their of resignations.
(VI) FTC
25. As noticed above, the provisions for exit available to pilots who had
entered into FTCs with AIL are distinct and different, as compared to
permanent employees.
25.1. That being said, it is a common case of parties, that FTCs are also
governed by the provisions of CAR. The tenure of the contract in each of these
cases in the first instance was five years commencing from the date they were
released as first officers, pursuant to their training being completed.
25.2. The FTCs were/are extendable by another five years, subject to
satisfactory performance. These set of pilots, both, during the initial period and
the extended period, were required to be governed by specific terms and
conditions contained in the FTC.
25.3. Insofar as termination of the FTCs is concerned, it was/is dependent on
the following :
(i) The concerned pilot maintaining discipline, integrity and good behaviour
during the course of his engagement. During this period, the concerned pilot
stands governed by the terms and conditions of the FTC and applicable rules
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and regulations of AIL, as framed and amended from time to time.
(ii) Termination of FTC could be brought about by AIL upon serving one
month's notice or an amount equivalent to one month's salary (excluding flying
related allowances) in lieu thereof.
(iii) The termination could be brought about on the ground of unsatisfactory
conduct, dishonesty, fraud or any other act, which, in the view of AIL, was/ is
contrary to its interest.
(iv) Since the performance, conduct, flying techniques, and the like,
concerning the concerned pilot was to be adjudged for a minimum period of one
year commencing from his release as a first officer, the FTC could be
terminated without any notice; in case his performance or flying techniques
were not found satisfactory or if she/he failed to qualify any refresher
course/test at CTE or at any base. In such eventuality, the termination was/is
considered final.
(v) Furthermore, in the event of unsatisfactory progress or behaviour or due
to any act of omission or commission on the part of the concerned pilot, which
in the estimation of AIL amounted to misconduct, the FTC was liable to be
terminated.
(vi) Besides this, the FTC provided that if the concerned pilot were to
abandon or leave her/his engagement before the expiry of the term or the
extended term, she or he would be liable to pay AIL the amount incurred by
AIL in training the pilot.
(vii) With respect to the last aspect i.e., recovery of training cost, Clause V of
the FTC [in this scenario, FTC dated 28.06.2015] is relevant, which, apart from
crystallizing the approximate figure that could be recovered, indicates that the
recovery would be made while the concerned pilot served AIL by making
adjustment in the salary and flying related allowances, albeit in 60 equal
monthly instalments, after her/his release as first officer. Furthermore, the
training cost, as per the said clause, was secured by the concerned pilot by
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executing a bank guarantee, equivalent to the amount spent on training, over the
stipulated period of five years.
(viii) The trigger for invoking the bank guarantee [as provided in the said
clause], were the following :
(a) If the engagement of the concerned employee was terminated for any
reason whatsoever.
(b) If the concerned pilot were to leave AIL before completion of the
stipulated period i.e., five years.
(c) The caveat put in was that the bank guarantee would be invoked by AIL
for the "proportionate amount" i.e., after adjusting the amount already
recovered from salary and flying related allowances.
25.4. The table pertaining to FTC, which is adverted to in paragraph 5
hereinabove, would show that there are two sets of pilots:
(i) one set comprised those, whose initial tenure has already come to an end,
during the pendency of the appeal. These are pilots concerned with : LPA
Nos.246/2021, 249/2021, 250/2021, 251/2021, 252/2021, 255/2021, 263/2021,
266/2021, 270/2021, 275/2021, 279/2021, 281/2021 and 282/2021
(ii) The second set consist of, those pilots whose tenure has not as yet
expired. These are pilots involved in : LPA Nos. 264/2021, 273/2021, 276/2021,
278/2021, 289/2021, 290/2021, 291/2021, 292/2021 and 294/2021.
26. Notably, in the FTCs executed between 2016 and 2018, a provision for
liquidated damages was incorporated to secure the interest of AIL in the event
the concerned pilot abandoned or left AIL i.e, brought the FTC engagement to
an end, before expiry of the tenure or the extended tenure.
26.1. In four cases i.e., LPA Nos.249/2021, 275/2021, 279/2021 and 290/2021
cases, the liquidated damages have been quantified at Rs.28,00,000/-, while in
seven cases i.e., 264/2021, 276/2021, 289/2021, 278/2021, 291/2021, 292/2021
and 294/2021, they have been quantified at Rs.50,00,000/-.
26.2. In this context, in LPA Nos. 264/2021, 289/2021, 291/2021, 292/2021
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and 294/2021 [i.e., cases falling in Category 'D' of the judgment of the learned
Single Judge], the concerned pilots approached the writ court and directions
were issued by the court, whereby in the first instance, the invocation of bank
guarantee was stayed, and, thereafter, a direction was issued to release the same
upon proportionate amount towards training cost being deposited by the
concerned pilot.
27. In sum, insofar as the pilots who executed FTCs are concerned, their
cases stand on a slightly different footing. Since they are not, admittedly, the
permanent employees of AIL, their exit would largely be dependent on the
terms and conditions provided in the FTC.
27.1. Having said that, the provisions of CAR would apply to even those pilots
who had executed FTC, and therefore, to the extent the provisions of the FTC
are inconsistent with CAR, the provisions of the former would have to give way
to the latter. In other words, the minimum notice period obligation cast on the
concerned pilot to exit, will bind them as well.
27.2. The logical sequitur of this construction would be--notwithstanding the
fact that say in a given case, less than six months time frame was available
before the expiry of initial tenure of five years, in our opinion, the concerned
pilot if he chose to tender his resignation, would have to serve a minimum
period of six months as provided in CAR, unless AIL decided to shorten the
notice period.
27.3. It is pertinent to note that except for the five cases [i.e., LPA
Nos.246/2021, 250/2021, 251/2021, 263/2021 and 282/2021], as discussed
above, the other pilots who had executed FTCs withdrew their resignation prior
to the resignation being accepted in the first instance, via the impugned letters.
Therefore, logically, on the same principle which we have applied to pilots
appointed as permanent employees, their contracts should be allowed to subsist
till such time they fall foul of the terms and conditions contained in the FTC.
27.4. The FTC cases cannot, in our view, be dubbed as cases involving
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abandonment or cases where pilots disengaged themselves from AIL; the
admitted position is that they continued to perform their assigned duties.
27.5. Furthermore, Clause I of the FTC [which is common to all FTCs] in no
uncertain terms says, as alluded to hereinabove, that the initial term of the
contract is five years, which is extendable by another five years subject to
satisfactory performance. It is not the case of AIL that the performance of any
of the pilots who had executed FTC was not satisfactory or that their cases fell
within the purview of the clause [under the contract], which deals with the
events which can bring about termination of FTC.
27.6. We agree with the learned Single Judge that if the initial term of five
years provided in the FTC has come to an end, the concerned pilots can only
seek consideration of their case for being re-engaged for an extended term of
five years, as provided in the FTC.
(VII) THE SANDHU CASE
28. This brings us to the last aspect which, perhaps, from the point of view of
the AIL, is the edifice on which the defence of its actions rest.
28.1 As argued by the learned counsel for the pilots and noticed by the learned
Single Judge, the Supreme Court in the Sandhu case was dealing with the facts,
which were peculiar to that case. This was a case where the concerned pilot
submitted her resignation to AIL on 03.07.2017. The resignation letter, as
required, adverted to the fact that she was giving AIL a notice of six months'.
28.2. The six months' notice in that particular case would have expired in
January 2018. However, AIL found a replacement for the pilot and engaged
another pilot on 14.08.2017. AIL, it appears, had also incurred cost of
Rs.12,00,000/- in training the newly engaged pilot. Within less than a month of
engaging a pilot in place of Ms Sandhu, who had tendered her resignation, AIL,
via communication dated 02.09.2017, accepted Ms. Sandhu's resignation. It is,
thereafter i.e., nearly three months later, on 18.12.2017, that Ms. Sandhu sought
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to withdraw her resignation letter tendered on 03.07.2017.
28.3. The aforesaid events would demonstrate that both the engagement of new
pilot in place of Ms Sandhu, and the acceptance of her resignation, took place
before its withdrawal.
28.4. Given this position, the Supreme Court concluded that Ms. Sandhu could
not have withdrawn her resignation. According to the Supreme Court, the facts
and circumstances which came to fore in the Sandhu case placed the matter in
the exception carved out in paragraphs 41 and 50 of the Gopal Chandra Misra
case and paragraph 12 of the Balram Gupta case [which is extracted
hereinabove]. The relevant part of Balram Gupta judgment that the Supreme
Court was, perhaps, referring to was the following :
"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 ......."
28.5. Likewise, insofar as Gopal Chandra Misra case is concerned, the
exception alluded to by the Supreme Court in that case concerned those cases
where the employee intended or proposed to resign from a future specified date.
The Supreme Court held that the resignation could be withdrawn "at any time
before it becomes effective"5. The Supreme Court goes on to state in paragraph
50 that the resignation becomes effective, when it "operates to terminate the
employment or the "office tenure of the resignor"6.
"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
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28.6. As discussed above, in the aforesaid cases, the resignations were
withdrawn, before they became effective. This principle would also apply to
the cases referred to in Table I above, as by its conduct, AIL seems to have
portrayed that the employer-employee link remained live, which was terminated
only, via the impugned letters, albeit, after the resignation letters were
withdrawn. In other words, the resignations in these cases had not become
effective.
28.7. To our minds, AIL has a misread of the ratio of the judgment rendered by
the Supreme Court in the Sandhu case. Ironically, the reason d'etre of AIL's
defence in the Sandhu case was that it had accepted the respondent's resignation
before, and found a suitable replacement before she had withdrawn her
resignation. In that case, AIL did not argue, as it seeks to do in this case, that
resignation operates in praesenti, and it need not have been accepted.
(VIII) RATIOCINATION OF THE SANDHU'S CASE
29. At this juncture, it may be relevant to record as to why, according to us,
AIL has not been able to glean, in our opinion, the correct ratio decidendi in the
Sandhu case. To reach this conclusion, it has to be borne in mind, firstly, what
is the meaning of the expression "ratio decidendi" and secondly, how does one
discern the ratio decidendi of a judgement. Frankly, ratiocination is not easy; a
judgement could contain multiple ratios- as, say, in judgment rendered by an
appellate court comprising more than one member.
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 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."
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29.1. Insofar as the meaning of the expression is concerned, simply put ratio
decidendi is the principle or rule of law on which a court's decision is founded.
It is that principle or rule of law on which the later court thinks that the previous
court founded its decision. [See Black's Law Dictionary 7th Edition page 1269.]
29.2. The importance of ratio decidendi is that it forms a bedrock on which a
judicial precedent evolves over a period of time. As far back as in early 20th
Century, the Earl of Halsbury LC forged the following tool while rendering an
opinion in Quinn v. Leathem, 1901 AC 495 (at page 506), as to how the ratio of
a decision should be discerned:
".....Now before discussing the case of Allen v. Flood, (1898) A.C.1
and what was decided therein, there are two observations of a
general character which I wish to make, and one is to repeat what I
have very often said before, that every judgment must be read as
applicable to the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be found there are
not intended to be expositions of the whole law, but governed and
qualified by the particular facts of the case in which such
expressions are to be found. The other is that a case is only an
authority for what it actually decides. I entirely deny that it can be
quoted for a proposition that may seem to follow logically from it.
Such a mode of reasoning assumes that the law is necessarily a
logical Code, whereas every lawyer must acknowledge that the law
is not always logical at all...."
29.3. This view has been followed by the Supreme Court as far back as in 1968
in Sudhansu Sekhar Misra case , wherein the Supreme Court observed that a
decision is an authority for what it decides. Every casual observation found in
the case or what logically follows thereof, not being the ratio of the decision,
does not form a binding precedent.
29.4. In this context, one has to bear in mind that a distinction has to be drawn
between ratio decidendi and obiter dicta as also a casual observation made by
the court in a given case. Casual observations do not form a part of a judicial
precedent, and therefore, are not binding. [See Mohandas Issardas v. A.N.
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Sattanathan, ILR 1955 Bom 318/AIR 1955 Bom. 113.]
29.5. Therefore, casual and general observation cannot form the foundation of
a particular case. It is only the principle or rule of law, as enunciated in the
judgment which can have a binding effect of ratio decidendi.
29.6. The ratio decidendi should be relatable to the facts found or assumed to
be true and thus have a tenor of materiality in the context of the decision
reached in a matter. [See State of Orissa v. Mohd. Illiyas (2006) 1 SCC 275.]
30. At this juncture, we may note while there is a cleavage in the view
whether or not obiter dicta is binding, there is a consistent and clear view held
that causal observations which are not relatable to the facts found or facts
proved or assumed to be proved, do not, have the effect of a binding precedent.
30.1. We may also indicate herein that the courts in deciphering what is the
ratio decidendi, in a given case, have also applied the "inversion test". This test
was propounded by Professor Wambaugh and is noticed in State of Gujarat v.
Utility Users Welfare Association and Ors. 2018 (6) SCC 21, in paragraphs 113
and 114. Professor Wambaugh articulated the test in the following words:
".....In order to make the test, let him first frame carefully the
supposed proposition of law. Let him then insert in the proposition
a word reversing its meaning. Let him then inquire whether, if the
court had conceived this new proposition to be good, and had it in
mind, the decision could have been the same. If the answer be
affirmative, then, however excellent the original proposition may
be, the case is not a precedent for that proposition, but if the
answer be negative the case is a precedent for the original
proposition and possibly for other propositions also...."
30.2. Thus, in a nutshell what is important while examining a case, to decipher
its ratio decidendi, is to gather which part of the opinion is essential for deciding
the matter. Applying the test outlined in the judgments referred to above what
emerges, as noticed above, is that the conclusion reached in the Sandhu case
cannot be delinked from the material facts found in the matter, which is, that the
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resignation was withdrawn after it had been accepted and a replacement had
been found.
30.3 Therefore, had, the factum of acceptance of resignation and a substitute
being found, not preceded its withdrawal, the conclusion, perhaps, may have not
been the same.
30.4. Thus, in our opinion, for AIL to conclude that the court in the Sandhu
case enunciated a principle, in the backdrop of CAR, that once the resignation is
tendered it operates in praesenti and that the pilot continues in service only in
public weal and thereby, in a sense, ends up denuding the pilot of her/his right
to withdraw the resignation before it is accepted, is not, an aspect which came
up for consideration in the Sandhu case.
30.5. We, therefore, find it difficult to accept the submission proffered on
behalf of AIL that these appeals should be allowed in the backdrop of the
decision rendered in the Sandhu case.
30.6. In our view the court did not appear to expound any such principle or rule
of law.
Conclusion:-
31. Therefore, for the foregoing reasons, we find no good ground to disturb
the final result arrived at by the learned Single Judge.
31.1. It is pertinent to note that, after the judgment was reserved, several pilots
approached the Court with applications, which, in effect, stated that they were
no longer seeking reinstatement in service. The reason given, broadly, was that
they could not afford being without a job. Since the period of disengagement
had continued for far too long, they had taken up other avenues of engagement
that came their way and therefore, the only relief that they sought was, payment
of back wages till such time they found alternate jobs. The pilots who had put
forth this pleas before us are concerned with the following appeals i.e., LPA
Nos. 266/2021; 273/2021; 289/2021; 291/2021; 292/2021 and
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applicant/respondent no. 2 in LPA No. 267/2021.
31.2. Thus, the aforesaid employees would not be reinstated but would be
entitled to back wages for the period spanning between the date when their
resignations were accepted and the date when they found alternate employment.
32. We, thus, dismiss the above-captioned appeals and confirm the directions
issued in paragraph 92 (a) to (g) of the impugned judgment with the caveat
given in paragraphs 31.1 and 31.2.
(RAJIV SHAKDHER)
JUDGE
(TALWANT SINGH)
JUDGE
DECEMBER 17, 2021
aj
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