Supreme Court— Public Interest and T & C of Service are Touchstones in Allowing Withdrawal of Resignation

Supreme Court— Public Interest and T & C of Service are Touchstones in Allowing Withdrawal of Resignation

AIR INDIA EXPRESS LIMITED AND ORS. Vs CAPT. GURDARSHAN KAUR SANDHU [22/08/2019]:  In the referred matter the respondent pilot submitted resignation by giving six months notice as per the statutory requirement of the Appellant employer. However, later on, the respondent intended to withdraw his resignation before the completion of six month notice period. But, the Appellant denied for revocation of the resignation. So, the basic issue involved in the instant case was whether the respondent, a pilot working with the appellant, could withdraw her resignation before the notice period. The Single and the Division Bench of High Court held that “there can be little doubt with respect to the position of law settled on the said subject. The Court further held that for an employee who submitted an application for resignation, it would be open to him to withdraw the same prior to the expiry of the period of notice.”

The above order of the HC was challenged before the Hon’ble SC. The Appellant 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 the SC in Union of India v. Gopal Chandra Mishra[1] and Balram Gupta v. Union of India and another[2] admitted two exceptions to this general rule. The Appellant further submitted that as 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. It was further pleaded by the Appellant that it had already taken appropriate steps for finding and training an alternative and the instant case came within the exceptions acknowledged in the decisions of the Court in the above cases.

On the other hand, the respondent pilot 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 further 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. The respondent counsel also pleaded that the fact as to 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.

The Court allowed the appeal and set aside the judgment and orders passed by the Single Judge and the Division Bench of the High Court holding that keeping in view of the service condition of the employer institution the respondent has lost the right to withdraw the letter of resignation.

The SC further observed that the stipulation of notice period is 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. As the pilots are highly skilled personnel, a decision was taken that any act on part of the pilots including resignation from the airlines without minimum notice period of six months be treated as an act against public interest. The notice period enables the air transport undertaking or the employer to gear itself up in that direction and obliges it to find a substitute or a replacement. The obligation to find a suitable replacement begins immediately on receipt of letter of resignation.

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 the SC in a number of decisions. The principles laid down in Union of India and others v. Gopal Chandra Misra [(1978) 2 SCC 301], Balram Gupta v. Union of India and another [1987 (Supp) SCC 228], P. Kasilingam vs. P.S.G. College of Technology [(1981) 1 SCC 405], Punjab National Bank vs. P.K. Mittal [(1989) Supp 2 SCC 175] , Moti Ram vs. Param Dev [(1993) 2 SCC 725], Power Finance Corpn. Ltd. vs. Pramod Kumar Bhatia [(1997) 4 SCC 280] Nand Keshwar Prasad vs. Indian Farmers Fertilizers Coop. Ltd.[ (1998) 5 SCC 461], Union of India vs. Wing Commander T. Parthasarathy [(2001) 1 SCC 158], Bank of India vs. O.P. Swarnakar [(2003) 2 SCC 721], Reserve Bank of India vs. Cecil Denis Solomon [(2004) 9 SCC 461], New India Assurance Company Ltd. vs. Raghuvir Singh Narang and another [(2010) 5 SCC 335] and Union of India and ors. vs. Hitendra Kumar Soni [(2014) 13 SCC 204] were considered in the referred case and the ratios of these cases are as under—

• Dismissal order different from acceptance of resignation—An order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it does not take effect as from the date on which the order is actually written out by the said authority; such an order could only be effective after it is communicated to the Officer concerned or is otherwise published. 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. [State of Punjab v. Amar Singh Harika (AIR 1966 SCR 1313)]
• General rule is Resignation can be withdrawn before it is Accepted by Competent Authority—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. (Jai Ram vs. Union of India-AIR 1954 SC 584; Raj Kumar v. Union of India-(1968) 3 SCR 857)
• No permission to Withdraw Resignation unless Material Changes take place—Ordinarily permission to withdraw resignation 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. (Balram Gupta v. Union of India and another1987 (Supp) SCC 228)
• Notice Period is Beneficial for both Employer and Employee—The notice period for resignation is intended not only for the protection of the bank but also for the benefit of the employee. It is common knowledge that a person proposing to resign often wavers in this decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months for various personal reasons. Equally an employer may like to have time to make some alternative arrangement before relieving the resigning employee. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The intended resignation should not be interpreted as enabling an institution to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. Thus, resignation before the date when it is to come into effect is not tenable. [Punjab National Bank vs. P.K. Mittal (1989) Supp 2 SCC 175]
• Specific Rule as to Withdrawal of Resignation is not necessary—It is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation becomes effective (i.e. accepted by competent Authority), it is open to the employee, on general principles, to withdraw his letter of resignation. That is why, in some cases of public services, this right of withdrawal is also made subject to the permission of the employer. There is no such clause here. [Punjab National Bank vs. P.K. Mittal (1989) Supp 2 SCC 175]
• Public Interest is touchstone while determining right to withdraw Resignation—It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/post The spirit, requirement and constraints (like mass resignation etc.) of the institution/ employer must be taken into consideration while scanning the notice period for resignation.

[1] . [(1978) 2 SCC 301]

[2]. [1987 (Supp) SCC 228]

The detail judgment can be visited at:

https://sci.gov.in/supremecourt/2018/38495/38495_2018_8_1501_16111_Judgement_22-Aug-2019.pdf

# Prepared by team LegalMines and typographical error, if any, is inadvertent.