AIR INDIA EXPRESS LIMITED & Ors. v. CAPT. GURDARSHAN KAUR SANDHU

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 A B C D E F G H 984 SUPREME COURT REPORTS [2019] 12 S.C.R. 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 A B C (1998) 9 SCC 559 [2002] 2 SCR 396 [1978] 3 SCR 12 [1987] SCR 1173 AIR 1954 SC 584 [1968] 3 SCR 857 [1981] 2 SCR 490 D [1989] 1 SCR 612 [1993] 2 SCR 250 [1997] 2 SCR 1170 (1998) 5 SCC 461 referred to referred to followed relied on relied on relied on referred to referred to referred to referred to referred to E [2000] 4 Suppl. SCR 531 referred to [2002] 5 Suppl. SCR 438 referred to [2003] 6 Suppl. SCR 465 referred to [2007] 4 SCR 976 F [2010] 4 SCR 299 [2014] 6 SCR 563 referred to referred to referred to CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6567 of 2019 G 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. H Para 6 Para 6 Para 6 Para 8 Para 8 Para 10[A] Para 10[B] Para 10[E] Para 10[E] Para 10[E] Para 10[E] Para 10[E] Para 10[E] Para 10[E] Para 10[E] Para 10[E] Para 10[E] Para 10[E] AIR INDIA EXPRESS LIMITED v. CAPT. GURDARSHAN KAUR SANDHU 985 Jamshed P. Cama, Sr. Adv., Anil Kumar Mishra-I, Ms. Suruchi A 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 Director- General may, through Notices to Airmen (NOTAMS), Aeronautical Information Publication, Aeronautical Information Circulars (AICs), Notice to Aircraft Owners and Maintenance Engineers and publication entitled Civil Aviation Requirements issue special directions not inconsistent with the Aircraft Act, 1934 (22 of 1934) or these rules, relating to the operation, use, possession, maintenance or navigation of aircraft flying in or over India or of aircraft registered in India. (2) The Civil Aviation Requirements under sub-rule(1) shall be issued after placing the draft on the website of the Directorate General of Civil Aviation for a period of thirty days for inviting objections and suggestions from all persons likely to be affected thereby: B C D E F G H 986 SUPREME COURT REPORTS [2019] 12 S.C.R. A B C D E F G H 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 AIR INDIA EXPRESS LIMITED v. CAPT. GURDARSHAN KAUR SANDHU [UDAY UMESH LALIT, J.] 987 in rule 38 if in its opinion it is necessary to do so in the public interest.” A

#2. APPLICABILITY

2.1 This Civil Aviation Requirement shall be applicable to the pilots in regular employment of any air transport undertaking as defined in clause (9A) of rule 3 of the Aircraft Rules, 1937.

2.2 This CAR is issued with the approval of the Ministry of Civil Aviation vide their letters No.A2012/08/2005-A dated 1st September 2005 and No.A.60015/024/2008-VE dated 21st October 2009.

#3. REQUIREMENTS

3.1 It takes about four months to train a pilot to operate an aircraft used for airline operations, as he has to pass technical and performance examinations of the aircraft, undergo simulator & flying training and has to undertake ‘Skill Test’ to satisfy licence requirements. Even after this training, the pilot can operate only as a co-pilot. To operate an aircraft as Pilot-in- Command (PIC), he needs to gain experience and undertake ‘Skill Test’ to fly as PIC of an aircraft, which may take another four months or so. Therefore, it would take more than four months for an airline to replace a trained Pilot-in-Command.

3.2 Pilots are highly skilled personnel and shoulder complete responsibility of the aircraft and the passengers. They are highly paid for the responsibility they share with the airlines towards the travelling public and are required to act with extreme responsibility.

3.3 In view of the above, it has been decided by the Government that any act on the part of pilots including resignation from the airlines without a minimum notice period of six months, which may result into last minute cancellation of flights and harassment to passengers, would be treated as an act against the public interest.

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 B C D E F G H 988 SUPREME COURT REPORTS [2019] 12 S.C.R. 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. A B C D E F G H AIR INDIA EXPRESS LIMITED v. CAPT. GURDARSHAN KAUR SANDHU [UDAY UMESH LALIT, J.] 989 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 e- mail to Chief of Operations of the first appellant submitting her resignation. The relevant assertions in the letter were as under:- “I, Capt. G.K. Sandhu, am from the first batch of Air India Express pilot, flying for more than 12 years now, without even a single spot on my flying career. I am tendering my resignation today. Please consider this as my six months’ notice period. I am listing below the reasons of my resignation. … … … If any time I am forced to stay away from home for longer periods during this time, it will be legal for me to leave the A B C D E F G H 990 SUPREME COURT REPORTS [2019] 12 S.C.R. 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 A B C D E F G H AIR INDIA EXPRESS LIMITED v. CAPT. GURDARSHAN KAUR SANDHU [UDAY UMESH LALIT, J.] 991 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