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Service Lawyer: Pilot cannot withdraw the resignation during six month notice period; SC.

Supreme Court of India

Justice U U Lalit and Justice Vineet Saran

The SC {AIR INDIA EXPRESS LIMITED AND ORS. v. CAPT. GURDARSHAN KAUR SANDHU} holds that it is well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. It was held that when would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/post. As stated in paragraphs 41 and 50 in Gopal Chandra Misra, “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of the office/post” or “in the absence of a legal contractual or constitutional bar, a ‘prospective resignation’ can be withdrawn at any time before it becomes effective”.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.”

In the present case,  it was held in terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months’ notice in case she desired to leave the services of the appellant. 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. It was held that 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. It was further held that the obligation to find a suitable replacement begins immediately on receipt of letter of resignation.

In the present case, steps were taken by the appellant to discharge such obligation and replacement in Captain Jiban Mahapatra was found. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will therefore be subject to the core principles of the CAR. The SC holds, the instant matter would, therefore, be within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Mishra and paragraph 12 of the decision in Balram Gupta, and the respondent could not have withdrawn the resignation. The judgments of the High Court were set aside by the SC which held in favour of the pilot to the effect that the resignation can be withdrawn anytime before expiry of six months period.

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