# AIR INDIA EXPRESS LIMITED AND ORS v. CAPT. GURDARSHAN KAUR SANDHU

- **Citation:** [2019] 12 S.C.R. 980
- **Court:** Supreme Court of India
- **Decided:** 2019-08-22
- **Case number:** Civil Appeal No.6567 of 2019
- **Bench:** Uday Umesh Lalit, Vineet Saran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/air-india-express-limited-and-ors-v-capt-gurdarshan-kaur-sandhu-33175
- **Pages:** 25

## Headnote

Service Law - Withdrawal of Resignation - Respondent was
working as a pilot in the appellant-Company - On 03.07.2017
respondent communicated through e-mail her resignation to the
appellant - In view of her resignation, appellant engaged a
replacement pilot - On 02.09.2017, the resignation sent by the
respondent was accepted by the appellants - Thereafter on
18.12.2017, respondent sent an e-mail and sought withdrawal of
her resignation - Her request for withdrawal of resignation was
not accepted by the appellants - Writ petition by the respondent -
High Court held that the resignation tendered by the respondent
could be withdrawn by her before she was actually relieved from
the service - On appeal before the Supreme Court, the appellants
contended that they had already taken appropriate steps for finding
and training an alternative and as such the instant case came within
the exceptions acknowledged in the decisions of Gopal Chandra
Mishra and Balram Gupta - Held: It is settled that normally, until the
resignation becomes effective, it is open to an employee to withdraw
his resignation - When would the resignation become effective may
depend upon the governing service regulations and/or the terms
and conditions of the office/post - In the instant case, the provisions
of the Civil Aviation Requirements (CAR), the terms and conditions
of appointment specifically stated that the respondent would give
six months' notice in case she desired to leave the services of the
appellant - The underlying principle and the basic idea behind
stipulation of the mandatory notice period is public interest - By
very nature of the job profile a replacement for a pilot does not
come so easily and therefore, the period of six months - The CAR
acknowledges the fact that it would require considerable expenses
and efforts to train the concerned replacement before he could be
a worthy substitute - In the present case, steps were taken by the
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appellant to discharge such obligation and replacement was found
- Therefore, the instant matter would be within the exception
stipulated in the decisions of Gopal Chandra Mishra and Balram Gupta,
and the respondent could not have withdrawn the resignation - Air
Craft Act, 1934 - ss.5,7 and 8(2) - Indian Telegraph Act, 1885 -
s.4 - Air Craft Rules, 1937 - Part XII.
Allowing the appeal, the Court
HELD: 1. It is well settled that normally, until the
resignation becomes effective, it is open to an employee to
withdraw his resignation. When would the resignation become
effective may depend upon the governing service regulations and/
or the terms and conditions of the office/post. As stated in Gopal
Chandra Mishra, "in the absence of anything to the contrary in
the provisions governing the terms and conditions of the office/
post" or "in the absence of a legal contractual or constitutional
bar, a 'prospective resignation' can be withdrawn at any time
before it becomes effective". Further, as laid down in Balram
Gupta, "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."
[Para 11] [1001-E-G]
2. In the light of the aforementioned principles the issue
whether the respondent could have withdrawn her letter of
resignation depends upon answers to the following questions:
A) Whether the stipulation of the notice period in the Civil
Aviation Requirement (CAR) is intended to safeguard the interest
of the employee? ; and
B) Whether the provisions of the CAR and the governing
principles stipulated therein are in the nature of special provisions
coming within the exception stipulated in Gopal Chandra Mishra
and Balram Gupta cases thereby disabling the respondent from
withdrawing her resignation? [Para 12] [1001-G-H; 1002-A-B]
3. The CAR acknowledges that it takes considerable period
to train a pilot to operate an aircraft and that as a part of the
traini

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AIR INDIA EXPRESS LIMITED AND ORS.
v.
CAPT. GURDARSHAN KAUR SANDHU
(Civil Appeal No.6567 of 2019)
AUGUST 22, 2019
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Service Law - Withdrawal of Resignation - Respondent was
working as a pilot in the appellant-Company - On 03.07.2017
respondent communicated through e-mail her resignation to the
appellant - In view of her resignation, appellant engaged a
replacement pilot - On 02.09.2017, the resignation sent by the
respondent was accepted by the appellants - Thereafter on
18.12.2017, respondent sent an e-mail and sought withdrawal of
her resignation - Her request for withdrawal of resignation was
not accepted by the appellants - Writ petition by the respondent -
High Court held that the resignation tendered by the respondent
could be withdrawn by her before she was actually relieved from
the service - On appeal before the Supreme Court, the appellants
contended that they had already taken appropriate steps for finding
and training an alternative and as such the instant case came within
the exceptions acknowledged in the decisions of Gopal Chandra
Mishra and Balram Gupta - Held: It is settled that normally, until the
resignation becomes effective, it is open to an employee to withdraw
his resignation - When would the resignation become effective may
depend upon the governing service regulations and/or the terms
and conditions of the office/post - In the instant case, the provisions
of the Civil Aviation Requirements (CAR), the terms and conditions
of appointment specifically stated that the respondent would give
six months' notice in case she desired to leave the services of the
appellant - The underlying principle and the basic idea behind
stipulation of the mandatory notice period is public interest - By
very nature of the job profile a replacement for a pilot does not
come so easily and therefore, the period of six months - The CAR
acknowledges the fact that it would require considerable expenses
and efforts to train the concerned replacement before he could be
a worthy substitute - In the present case, steps were taken by the
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appellant to discharge such obligation and replacement was found
- Therefore, the instant matter would be within the exception
stipulated in the decisions of Gopal Chandra Mishra and Balram Gupta,
and the respondent could not have withdrawn the resignation - Air
Craft Act, 1934 - ss.5,7 and 8(2) - Indian Telegraph Act, 1885 -
s.4 - Air Craft Rules, 1937 - Part XII.
Allowing the appeal, the Court
HELD: 1. It is well settled that normally, until the
resignation becomes effective, it is open to an employee to
withdraw his resignation. When would the resignation become
effective may depend upon the governing service regulations and/
or the terms and conditions of the office/post. As stated in Gopal
Chandra Mishra, "in the absence of anything to the contrary in
the provisions governing the terms and conditions of the office/
post" or "in the absence of a legal contractual or constitutional
bar, a 'prospective resignation' can be withdrawn at any time
before it becomes effective". Further, as laid down in Balram
Gupta, "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."
[Para 11] [1001-E-G]
2. In the light of the aforementioned principles the issue
whether the respondent could have withdrawn her letter of
resignation depends upon answers to the following questions:
A) Whether the stipulation of the notice period in the Civil
Aviation Requirement (CAR) is intended to safeguard the interest
of the employee? ; and
B) Whether the provisions of the CAR and the governing
principles stipulated therein are in the nature of special provisions
coming within the exception stipulated in Gopal Chandra Mishra
and Balram Gupta cases thereby disabling the respondent from
withdrawing her resignation? [Para 12] [1001-G-H; 1002-A-B]
3. The CAR acknowledges that it takes considerable period
to train a pilot to operate an aircraft and that as a part of the
training, the new incumbent will be required to pass technical
and performance examinations and will have to undergo simulator
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and flying training and to undertake skill test to satisfy the
requirements. Even after imparting of such training, said person
would function only as a co-pilot till he reaches the level of
expertise required of a pilot. The CAR states that the resignation
without minimum notice of six months could result in last minute
cancellation of flights and harassment to passengers. As the pilots
are highly skilled personnel, a decision was taken that any act on
part of the pilots including resignation from the airlines without
minimum notice period of six months be treated as an act against
public interest. [Para 13] [1002-C-D]
4. The underlying principle and the basic idea behind
stipulation of the mandatory notice period is public interest. It is
not the interest of the employee which is intended to be
safeguarded but the public interest which is to be sub-served. It
seeks to ensure that there would not be any last minute
cancellation of flights causing enormous inconvenience to the
travellers. It is for this reason that the concerned pilot is required
to serve till the expiry of the notice period. The notice period
may stand curtailed if NOC is given to the concerned pilot and
the resignation is accepted even before the expiring of the notice
period. It may, in a given case, be possible that the trained
manpower to replace the pilot, who had tendered resignation,
could be made available before the expiry of such notice period,
in which case the employer is given a choice under Clause 3.7 of
the CAR. Even in such eventuality, the guiding idea or parameter
is public interest. [Para 14] [1003-A-C]
5. The stipulation of notice period is, therefore, only to
sub-serve public interest and is designed to enable the air
transport undertaking or employer to find a suitable replacement
or a substitute. By very nature of the job profile a replacement
for a pilot does not come so easily and therefore, the period of
six months. The CAR acknowledges the fact that it would require
considerable expenses and efforts to train the concerned
replacement before he could be a worthy substitute. The notice
period enables the air transport undertaking or the employer to
gear itself up in that direction and obliges it to find a substitute
or a replacement. The obligation to find a suitable replacement
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begins immediately on receipt of letter of resignation. In the
present case, steps were taken by the appellant to discharge such
obligation and replacement was found. The normal principle that
an employee can at any time before the resignation becomes
effective, withdraw his resignation will therefore be subject to
the core principles of the CAR. Therefore, the instant matter
would be within the exception stipulated in decisions of the Gopal
Chandra Mishra and Balram Gupta, and the respondent could
not have withdrawn the resignation. [Para 14] [1003-D-G]
Union of India v. Gopal Chandra Mishra (1978) 2 SCC
301 : [1978] 3 SCR 12 - followed.
Balram Gupta v. Union of India and Another (1987)
Suppl. SCC 228 : [1987] SCR 1173 ; Jai Ram v. Union
of India AIR 1954 SC 584 ; Raj Kumar v. Union of
India [1968] 3 SCR 857 - relied on.
Srikantah S.M. v. Bharath Earth Movers Ltd. (2005) 8
SCC 314 : [2005] 4 Suppl. SCR 156 ; J.N. Srivastava
v. Union of India and Another (1998) 9 SCC 559;
Shambhu Murari Sinha v. Project and Development
India Limited and Another (2002) 3 SCC 437 : [2002]
2 SCR 396; P. Kasilingam v. P.S.G. College of
Technology (1981) 1 SCC 405 : [1981] 2 SCR 490;
Punjab National Bank v. P.K. Mittal [1989] 2 Suppl.
SCC 175 : [1989] 1 SCR 612 ; Moti Ram v. Param
Dev (1993) 2 SCC 725 : [1993] 2 SCR 250; Power
Finance Corpn. Ltd. v. Pramod Kumar Bhatia (1997) 4
SCC 280 : [1997] 2 SCR 1170 ; Nand Keshwar Prasad
v. Indian Farmers Fertilizers Coop. Ltd. (1998) 5 SCC
461; Union of India v. Wing Commander T.
Parthasarathy (2001) 1 SCC 158 : [2000] 4 Suppl.
SCR 531; Bank of India v. O.P. Swarnakar (2003) 2
SCC 721 : [2002] 5 Suppl. SCR 438 ; Reserve Bank
of India v. Cecil Denis Solomon (2004) 9 SCC 461 :
[2003] 6 Suppl. SCR 465; Secy., Technical Education,
U.P. and Ors. v. Lalit Mohan Upadhyay (2007) 4 SCC
492 : [2007] 4 SCR 976; New India Assurance Company
Ltd. v. Raghuvir Singh Narang and Another (2010) 5
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SCC 335 : [2010] 4 SCR 299 ; Union of India and
Ors. v. Hitendra Kumar Soni (2014) 13 SCC 204 :
[2014] 6 SCR 563 - referred to.
Case Law Reference
[2005] 4 Suppl. SCR 156
referred to
Para 6
(1998) 9 SCC 559
referred to
Para 6
[2002] 2 SCR 396
referred to
Para 6
[1978] 3 SCR 12
followed
Para 8
[1987] SCR 1173
relied on
Para 8
AIR 1954 SC 584
relied on
Para 10[A]
[1968] 3 SCR 857
relied on
Para 10[B]
[1981] 2 SCR 490
referred to
Para 10[E]
[1989] 1 SCR 612
referred to
Para 10[E]
[1993] 2 SCR 250
referred to
Para 10[E]
[1997] 2 SCR 1170
referred to
Para 10[E]
(1998) 5 SCC 461
referred to
Para 10[E]
[2000] 4 Suppl. SCR 531
referred to
Para 10[E]
[2002] 5 Suppl. SCR 438
referred to
Para 10[E]
[2003] 6 Suppl. SCR 465
referred to
Para 10[E]
[2007] 4 SCR 976
referred to
Para 10[E]
[2010] 4 SCR 299
referred to
Para 10[E]
[2014] 6 SCR 563
referred to
Para 10[E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6567
of 2019
From the Judgment and Order dated 09.04.2018 of the High Court
of Kerala at Ernakulam in W.A. No. 796 of 2018
 Ms. Madhvi Divan, ASG, Lalit Bhasin, Ms. Nina Gupta, Ms. Palak
Chadha, P. V. Yogeswaran, Dhawal Jain, Ms. Vaishali Verma, Advs.
for the Appellants.
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Jamshed P. Cama, Sr. Adv., Anil Kumar Mishra-I, Ms. Suruchi
Kumar, M. Kumar Advs., for the Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Leave granted.
2. This appeal arises out of the judgment and order dated
09.04.2018 passed by the Division Bench of the High Court of Kerala at
Ernakulam in Writ Appeal No.796 of 2018 preferred by the appellants
herein and thereby affirming the view taken by the Single Judge in Writ
Petition (Civil) No. 1991 of 2018.
3. The basic issue involved in the instant case is whether the
respondent, a pilot working with the appellant, could withdraw her
resignation that was tendered on 03.07.2017.
4. The statutory provisions and the concerned regulations
concerning the controversy in issue are as under:-
A] In exercise of powers conferred by Sections 5, 7 and 8(2) of
the Air Craft Act, 1934 and by Section 4 of the Indian Telegraph Act,
1885, the Air Craft Rules, 1937 (hereinafter referred to as 'the Rules')
were framed by the Central Government. Part XIIA of the Rules deals
with "Regulatory Provisions", Rule 133A in said Part is as under:-
"133A. Directions by Director-General.- (1) The DirectorGeneral may, through Notices to Airmen (NOTAMS), Aeronautical
Information Publication, Aeronautical Information Circulars
(AICs), Notice to Aircraft Owners and Maintenance Engineers
and publication entitled Civil Aviation Requirements issue special
directions not inconsistent with the Aircraft Act, 1934 (22 of 1934)
or these rules, relating to the operation, use, possession,
maintenance or navigation of aircraft flying in or over India or of
aircraft registered in India.
(2) The Civil Aviation Requirements under sub-rule(1) shall be
issued after placing the draft on the website of the Directorate
General of Civil Aviation for a period of thirty days for inviting
objections and suggestions from all persons likely to be affected
thereby:
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Provided that the Director General may, in the public interest and
by order in writing dispense with the requirement of inviting such
objections and suggestions.
(3) Every direction issued under sub-rule (1) shall be complied
with by the person or persons to whom such direction is issued."
B] On 27.10.2009 the Director General of Civil Aviation (DGCA)
issued "Civil Aviation Requirement" ('the CAR' for short) as under:-
"OFFICE OF THE DIRECTOR GENERAL OF CIVIL
AVIATION,
TECHNICAL
CENTER,
OPPOSITE
SAFDARJUNG AIRPORT, NEW DELHI.
CIVIL AVIATION REQUIREMENT
SECTION 7 - FLIGHT CREW STANDARDS
 TRAINING AND LICENSING
SERIES 'X' PART II
ISSUE II, 27TH OCTOBER 2009 EFFECTIVE:FORTHWITH
Subject: Requirement of 'Notice Period' by the Pilots to the airlines
employing them.
1. INTRODUCTION
1.1 It has been observed that pilots are resigning without
providing any notice to the airlines. In some cases, even
groups of pilots resign together without notice and as a result
airlines are forced to cancel their flights at the last minute.
Such resignation by the pilots and the resultant cancellation
of flights causes inconvenience and harassment to the
passengers. Sometimes such an abrupt action on the part
of the pilots is in the form of a concerted move, which is
tantamount to holding the airlines to ransom and leaving the
travelling public stranded. This is a highly undesirable
practice and goes against the public interest.
1.2 Such an action on the part of pilots attracts the provisions
of sub-rule (2) of rule 39A of the Aircraft Rules, 1937, which
reads as follows:
"The Central Government may debar a person permanently
or temporarily from holding any licence or rating mentioned
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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
defined in clause (9A) of rule 3 of the Aircraft Rules, 1937.
2.2 This CAR is issued with the approval of the Ministry of Civil
Aviation vide their letters No.A2012/08/2005-A dated
1st September 2005 and No.A.60015/024/2008-VE dated
21st October 2009.
3. REQUIREMENTS
3.1 It takes about four months to train a pilot to operate an aircraft
used for airline operations, as he has to pass technical and
performance examinations of the aircraft, undergo simulator
& flying training and has to undertake 'Skill Test' to satisfy
licence requirements. Even after this training, the pilot can
operate only as a co-pilot. To operate an aircraft as Pilot-inCommand (PIC), he needs to gain experience and undertake
'Skill Test' to fly as PIC of an aircraft, which may take another
four months or so. Therefore, it would take more than four
months for an airline to replace a trained Pilot-in-Command.
3.2 Pilots are highly skilled personnel and shoulder complete
responsibility of the aircraft and the passengers. They are
highly paid for the responsibility they share with the airlines
towards the travelling public and are required to act with
extreme responsibility.
3.3 In view of the above, it has been decided by the Government
that any act on the part of pilots including resignation from the
airlines without a minimum notice period of six months, which
may result into last minute cancellation of flights and harassment
to passengers, would be treated as an act against the public
interest.
3.4 It has, therefore, been decided that every pilot working in an
air transport undertaking shall give a 'Notice Period' of at least
six months to the employer indicating his intention to leave the
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job. During the notice period, neither the pilot shall refuse to
undertake the flight duties assigned to him nor shall the employer
deprive the pilot of his legitimate rights and privileges with
respect to the assignment of his duties. Failure to comply with
the provisions of the CAR may lead to action against the pilot
or the air transport undertaking, as the case may be, under the
relevant provisions of Aircraft Rules, 1937.
3.5 In case an air transport undertaking resorts to reduction in the
salary/perks or otherwise alters the terms and conditions of
the employment to the disadvantage of the employee pilot
during the notice period, the pilot shall be free to make a
request for his release before the expiry of the notice period
and the air transport undertaking shall accept his request.
3.6 It shall be mandatory for the air transport undertaking to issue
NOC to the pilot on expiry of the notice period of six months,
failing which it shall be liable to penal action by DGCA.
3.7 The 'Notice Period' of six months, however, may be reduced
if the air transport undertaking provides a 'No Objection
Certificate' to a pilot and accepts his resignation earlier than
six months.
 (Dr. Nasim Zaidi)
 Director General of Civil Aviation"
C] It may be stated here that the revised CAR issued by the
Office of the Director General of Civil Aviation, New Delhi on 16.08.2017
now records,
"3.1 It takes about eight to nine months to train a pilot to operate
an aircraft used for airline operations, as he has to pass technical
and performance examinations of the aircraft, undergo simulator
& flying training and has to undertake 'Skill Test' to satisfy licence
requirements before he is released to fly."
5. The facts leading to the filing of the Writ Petition in the High
Court were as under:-
a) On 15.06.2007 the respondent was offered the post of Co-Pilot by
Air India Charters Limited on successful completion of B737-800
training on a contract for 5 years with effect from 15.06.2007.
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b) On 28.07.2011 the respondent was appointed as Captain by Air
India Charters Limited after successful completion of B737-800
training with effect from 26.03.2011. On 25.01.2017 she was
appointed as Commander. Clauses 33 and 34 of the Terms and
Conditions of the appointment were:-
"33 In the event of your desiring to leave the services of the
Company at any time, you shall give the Company six months'
notice, in writing, as per CAR Section 7 - Flight Crew Standards
Training & Licensing, Series 'X' Part II, Issue II dated October
27, 2009 and as amended from time to time subject to minimum
of six months. You will also be required to serve the Company
during the Notice Period.
34. In the event of your cessation of service for any reason
whatsoever or your leaving abandoning the Company, you shall
be obliged to account for and return the property of the Company,
such as identify cards, instruments, tools, books, uniforms,
Company accommodation, if any, in your possession, custody
or charge, failing which your stipend/salary shall be withheld
and/or equivalent amount will be liable to be recovered or any
such other action may be taken as deemed fit. ... ..."
c) On and with effect from 05.05.2017 the name of the Company
was changed from 'Air India Charters Limited' to 'Air India
Express Limited'.
d) On 03.07.2017 the respondent sent a communication through email to Chief of Operations of the first appellant submitting her
resignation. The relevant assertions in the letter were as under:-
"I, Capt. G.K. Sandhu, am from the first batch of Air India
Express pilot, flying for more than 12 years now, without even a
single spot on my flying career.
I am tendering my resignation today. Please consider this as
my six months' notice period. I am listing below the reasons of
my resignation.
...
...
...
If any time I am forced to stay away from home for longer
periods during this time, it will be legal for me to leave the
AIR INDIA EXPRESS LIMITED v. CAPT. GURDARSHAN
KAUR SANDHU [UDAY UMESH LALIT, J.]
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company without completing the notice period, as these are the
least of the reasons I have mentioned."
e) According to the appellants, in view of the above resignation, a
replacement pilot viz. Captain Jiban Mahapatra was engaged on
14.08.2017 as Captain and was given appropriate training by the
appellant which cost the appellant more than Rs.12,00,000/-.
f) On 02.09.2017 the resignation sent by the respondent was accepted
by the appellants as under:-
"Dear Madam,
Your resignation dated 03.07.2017 from the services of Air India
Express has been accepted by competent authority. Your
expected release after completion of six months notice period
from your date of resignation.
This is for your kind information. You are requested to complete
all the Admin formalities before release."
g) More than three months later, on 18.12.2017 an e-mail was sent
by the respondent to the appellants seeking to withdraw her
resignation as under:-
"Respected Sir,
I would like to inform you that I am withdrawing my resignation
dated 3rd July, 2017 with immediate effect and will continue
serving the company as per my current designation.
Kind Regards,
Capt. G.K. Sandhu
 Staff No. 76002"
h) On 29.12.2017 a letter was received from the Advocates of the
respondent that since she had withdrawn the resignation, the
respondent be rostered for future flights with effect from
02.01.2018. A response was, thereafter, sent by the appellants to
the respondent on 04.01.2018 stating as under:-
"... ...Please note that your request for withdrawal of your
resignation letter cannot be acceded to as your resignation had
become effective from 03.07.2017 by virtue of its acceptance
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vide email dated 02.09.2017 and you stood released from the
services of the Company w.e.f. 02.01.2018 (i.e. on completion
of six months notice period w.e.f. 03.07.2017). ... ..."
6. Thereafter, the respondent filed Writ Petition (Civil)No. 1991
of 2018 before the High Court challenging the letters dated 02.09.2017
and 04.01.2018 and for declaration that the respondent was eligible and
entitled to continue with all service benefits without any break in service
and that the appellant be directed to forthwith disburse to the respondent
the salary and other service conditions. The Writ Petition was allowed
by a Single Judge of the High Court by judgment and order dated
22.02.2018. The objection taken by the appellants as regards territorial
jurisdiction to consider the controversy in question was rejected. The
provisions of the CAR (Ext.P3) were considered and relying upon the
decisions of this Court in Srikantah S.M. v. Bharath Earth Movers
Ltd.1, J.N. Srivastava v. Union of India and another2, Shambhu
Murari Sinha v. Project and Development India Limited and
another3 it was observed that the resignation tendered by the respondent
could be withdrawn by her before she was actually relieved from service.
The Single Judge concluded:
"In the present case also since the resignation was to take effect
from 02.01.2018, the petitioner could have very well withdrawn
her resignation and the respondents could not have withheld the
same or rejected the same. In this case there is one more
obligation on the respondents under clause 3.6 of Ext.p3, to issue
an NOC on acceptance of resignation. Such a no objection
certificate is not granted even when they issued Ext.P8 letter and
refused to assign her duty from 02.01.2018 onwards."
7. The appellants being aggrieved filed Writ Appeal No.796 of
2018 against the decision of the Single Judge. The Division Bench of
the High Court rejected the challenge by its judgment and order dated
09.04.2018 which is presently under challenge. The Division Bench
relied upon the decisions noted by the Single Judge and concluded:
"There can be little doubt with respect to the position of law settled
on the said subject. In respect of an employee who submitted an
1(2005) 8 SCC 314
2(1998) 9 SCC 559
3(2002) 3 SCC 437
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KAUR SANDHU [UDAY UMESH LALIT, J.]
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application for resignation, it would be open to him to withdraw
the same prior to the expiry of the period of notice. ..... It is to
be noted that even though the appellants claimed that the Ext.P2
letter of resignation was accepted the tenor of Ext.P5 would reveal
that it was ordered to accept only on the expiry of the notice
period. In that context, it is relevant to refer to Ext.P5 letter."
8. In this appeal we heard Ms. Madhavi Divan, learned Additional
Solicitor General for the appellants and Mr. Jamshed P. Cama, learned
Senior Advocate for the respondent.
Learned Additional Solicitor General submitted that though in
normal circumstances an employee who had tendered resignation would
be well within his rights to withdraw the resignation before such
resignation had become effective but the decisions of this Court admitted
two exceptions to the rule. She relied upon the decisions of this Court in
Union of India v. Gopal Chandra Mishra4 and Balram Gupta v.
Union of Indiaand another5 and submitted that as acknowledged by
the CAR the positions of pilots stood on a different footing and finding a
replacement or an alternative for a pilot would require incurring of some
expenditure in training the concerned new talent. In the circumstances,
the CAR had put certain restrictions and made some special provisions
in public interest. The appellants had already taken appropriate steps
for finding and training an alternative and as such the instant case came
within the exceptions acknowledged in the decisions of this Court.
On the other hand, Mr. Jamshed P. Cama, learned Senior Advocate
submitted that the law on the point is well settled that an employee could
withdraw the resignation before it comes into effect or operation. He
submitted that the resignation submitted by the respondent was to come
into effect from a prospective date and the respondent was therefore
entitled to withdraw the resignation before it became effective. According
to him, the fact that the appellant had to incur expenditure in training
another pilot would be of no consequence, as for an organisation of the
size of Air India the requirement and consequential training of pilots
would be a regular feature.
9. Before we deal with the rival submissions an important fact
must be noted. After the respondent was not allowed to join her duties,
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it appears that she was employed as a pilot with Jet Airways for some
time. However, with the closing of operations of Jet Airways, she is not
presently holding any position as pilot in any airline.
10. The circumstances under which an employee can withdraw
the resignation tendered by him and what are the limitations to the exercise
of such right, have been dealt by this Court in a number of decisions.
A] In Jai Ram vs. Union of India6, the concerned Government
servant was to attain age of 55 years on 26.11.1946. He applied on
07.05.1945 for leave preparatory to retirement in terms of Fundamental
Rule 86. The request was finally allowed and he was given 6 months'
leave which was to expire on 25.05.1947. Ten days before such expiry
i.e. on 16.05.1947, he sent an intimation that he would resume his duties
which request was rejected. The submission that the age of retirement
was 60 years was rejected by this Court. The submission that in terms
of Rule 56(b)(i) of Chapter IX of the Fundamental Rules, if found
efficient, he could have continued till he attained the age of 60 years,
was rejected. It was observed that when a public servant himself
expresses his inability to continue in service any longer and seeks
permission for retirement, the required exercise in terms of said Rule
56(b)(i) to decide whether to continue him beyond the age of 55 years
was rightly not undertaken and the age of retirement for him would be
55 years. In the context whether he could apply for resuming duties on
16.05.1947, it was observed by the Constitution Bench of this Court,:-
"It may be conceded that it is open to a servant, who has expressed
a desire to retire from service and applied to his superior officer
to give him the requisite permission, to change his mind
subsequently and ask for cancellation of the permission thus
obtained; but he can be allowed to do so long as he continues in
service and not after it has terminated.
As we have said above, the plaintiff's service ceased on the 27th
of November 1946; the leave, which was allowed to him
subsequent to that date, was post-retirement leave which was
granted under the special circumstances mentioned in F. R. 86.
He could not be held to continue in service after the 26th of
November 1946, and consequently it was no longer competent to
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him to apply for joining his duties on the 16th of May 1947, even
though the post-retirement leave had not yet run out. In our opinion,
the decision of the Letters Patent Bench of the High Court is
right and this appeal should stand dismissed."
B] In Raj Kumar v. Union of India7, an officer belonging to the
Indian Administrative Service tendered resignation and addressed a letter
to the Chief Secretary to the Government of Rajasthan on 30.08.1964
that it may be forwarded to the Government of India with remarks of
the State Government. The State Government recommended that the
resignation be accepted and on 31.10.1964 the Government of India
requested the Chief Secretary to the State Government "to intimate the
date on which the appellant was relieved of his duties so that a formal
notification could be issued in that behalf". Before the date could be
intimated and formal notification could be issued, the officer withdrew
his resignation by letter dated 27.11.1964. On 29.03.1965 an order
accepting his resignation was issued. The challenge raised by the officer
was rejected and the High Court held that the resignation became
effective on the date the Government of India had accepted it. While
dismissing the appeal, a Bench of three Judges of this Court observed:-
"The letters written by the appellant on August 21, 1964, and
August 30, 1964, did not indicate that the resignation was not to
become effective until acceptances thereof was intimated to the
appellant. The appellant informed the authorities of the State of
Rajasthan that his resignation may be forwarded for early
acceptance. On the plain terms of the letters, the resignation was
to become effective as soon as it was accepted by the appointing
authority. No rule has been framed under Article 309 of the
Constitution which enacts that for an order accepting the
resignation to be effective, it must be communicated to the person
submitting his resignation.
Our attention was invited to a judgment of this Court in State of
Punjab v. Amar Singh Harika (AIR 1966 SCR 1313)in which it
was held that an order of dismissal passed by an authority and
kept on its file without communicating it to the officer concerned
or otherwise publishing it did not take effect as from the date on
which the order was actually written out by the said authority;
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such an order could only be effective after it was communicated
to the Officer concerned or was otherwise published. The
principle of that case has no application here. Termination of
employment by order passed by the Government does not become
effective until the order is intimated to the employee. But where
a public servant has invited by his letter of resignation determination
of his employment, his services normally stand terminated from
the date on which the letter of resignation is accepted by the
appropriate authority and in the absence of any law or rule
governing the conditions of his service to the contrary, it will not
be open to the public servant to withdraw his resignation after it is
accepted by the appropriate authority. Till the resignation is
accepted by the appropriate authority in consonance with the rules
governing the acceptance, the public servant concerned has locus
poenitentiae but not thereafter. Undue delay in intimating to the
public servant concerned the action taken on the letter of
resignation may justify an inference that resignation has not been
accepted. In the present case the resignation was accepted within
a short time after it was received by the Government of India.
Apparently the State of Rajasthan did not immediately implement
the order, and relieve the appellant of his duties, but the appellant
cannot profit by the delay in intimating acceptance or in relieving
him of his duties."
C] In Union of India and others v. Gopal Chandra Mishra
and others4 the issue for consideration was whether a High Court
Judge, who had by letter in his own hand writing sent to the President
intimated his intention to resign the office with effect from a future date
would be competent to withdraw the resignation before the date had
reached? The decisions in Jai Ram6 and Raj Kumar7 were considered
and while dealing with the scope of clause(a) of the proviso to Article
217 of the Constitution, the Constitution Bench of this Court stated:-
"20. Here, in this case, we have to focus attention on clause (a)
of the proviso. In order to terminate his tenure under this clause,
the Judge must do three volitional things: Firstly, he should execute
a "writing under his hand". Secondly, the writing should be
"addressed to the President". Thirdly, by that writing he should
"resign his office". If any of these things is not done, or the
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performance of any of them is not complete, clause (a) will not
operate to cut short or terminate the tenure of his office.
22. It may be observed that the entire edifice of this reasoning is
founded on the supposition that the "Judge" had completely
performed everything which he was required to do under proviso
(a) to Article 217(1). We have seen that to enable a Judge to
terminate his term of office by his own unilateral act, he has to
perform three things. In the instant case, there can be no dispute
about the performance of the first two, namely: (i) he wrote a
letter under his hand, (ii) addressed to the President. Thus, the
first two pillars of the ratiocinative edifice raised by the High Court
rest on sound foundations. But, is the same true about the third,
which indisputably is the chief prop of that edifice? Is it a completed
act of resignation within the contemplation of proviso (a)? This is
the primary question that calls for an answer. If the answer to this
question is found in the affirmative, the appeals must fail. If it be
in the negative, the foundation for the reasoning of the High Court
will fail and the appeals succeed."
The tenor and the effect of resignation were then considered in
paragraph 28 and it was held that the letter in question was merely an
intimation or notice to resign the office on a future date and it was open
to withdraw the resignation before the arrival of the indicated future
date. The observations were:-
"28. The substantive body of this letter (which has been extracted
in full in a foregoing part of this judgment) is comprised of three
sentences only. In the first sentence, it is stated: "I beg to resign
my office as Judge, High Court of Judicature at Allahabad." Had
this sentence stood alone, or been the only content of this letter, it
would operate as a complete resignation in praesenti, involving
immediate relinquishment of the office and termination of his tenure
as Judge. But this is not so. The first sentence is immediately
followed by two more, which read : "I will be on leave till July 31,
1977. My resignation shall be effective on August 1, 1977." The
first sentence cannot be divorced from the context of the other
two sentences and construed in isolation. It has to be read along
with the succeeding two which qualify it. Construed as a whole
according to its tenor, the letter dated May 7, 1977, is merely an
intimation or notice of the writer's intention to resign his office as
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Judge, on a future date viz. August 1, 1977. For the sake of
convenience, we might call this communication as a prospective
or potential resignation, but before the arrival of the indicated future
date it was certainly not a complete and operative resignation
because, by itself, it did not and could not, sever the writer from
the office of the Judge, or terminate his tenure as such."
The Court went on to state the principles as:-
"41. The general principle that emerges from the foregoing
conspectus, is that in the absence of anything to the contrary in
the provisions governing the terms and conditions of the office/
post, an intimation in writing sent to the competent authority by
the incumbent, of his intention or proposal to resign his office/post
from a future specified date can be withdrawn by him at any time
before it becomes effective, i.e. before it effects termination of
the tenure of the office/post or the employment.
50. It will bear repetition that the general principle is that in the
absence of a legal, contractual or constitutional bar, a "prospective"
resignation can be withdrawn at any time before it becomes
effective, and it becomes effective when it operates to terminate
the employment or the office-tenure of the resignor. This general
rule is equally applicable to government servants and constitutional
functionaries. In the case of a government servant/or functionary/
who cannot, under the conditions of his service/or office, by his
own unilateral act of tendering resignation, give up his service/or
office, normally, the tender of resignation becomes effective and
his service/or office-tenure terminated, when it is accepted by
the competent authority. In the case of a Judge of a High Court,
who is a constitutional functionary and under proviso (a) to Article
217(1) has a unilateral right or privilege to resign his office, his
resignation becomes effective and tenure terminated on the date
from 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
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was intended to be effective, withdraw it, because the Constitution
does not bar such withdrawal."
As regards the applicability of the rule in Jai Ram6, it was stated:-
"49. In our opinion, none of the aforesaid reasons given by the
High Court for getting out of the ratio of Jai Ram case is valid.
Firstly, it was not a "casual" enunciation. It was necessary to
dispose of effectually and completely the second point that had
been canvassed on behalf of Jai Ram. Moreover, the same
principle was reiterated pointedly in 1968 in Raj Kumar case.
Secondly, a proposal to retire from service/office and a tender to
resign office from a future date for the purpose of the point under
discussion, stand on the same footing. Thirdly, the distinction
between a case where the resignation is required to be accepted
and the one where no acceptance is required, makes no difference
to the applicability of the rule in Jai Ram case."
D] In Balram Gupta v.