Financial wherewithal of pilots becoming untenable because of Covid-19, by itself, cannot form basis of denuding them of their legal right to revisit their decision to resign from Airline: Delhi HC

Read Judgment: Air India Limited vs. Kanwardeep Singh Bamrah & Others 

Pankaj Bajpai

New Delhi, January 3, 2022: The Delhi High Court has opined that a decision taken by Kanwardeep Singh Bamrah & Others (Respondent – Pilots) to withdraw their resignation letters because of kicking in travel restrictions on account of Covid-19 pandemic, cannot form the basis of denuding them of their legal right to revisit their decision to resign from Air India Limited (AIL – Appellant Airline). 

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, added the Court. 

A Division Bench of Justice Rajiv Shakdher and Justice Talwant Singh observed that 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 (AIL), at a point in time when finding jobs in the private sector is a difficult proposition.

Thus, 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, added the Bench. 

It was the case of AIL that resignations were tendered by the pilots in the period spanning between July 2019 and February 2020, 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. However, 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 as AIL took similar steps to bring about rationalization in the conduct of its business.

Therefore, the gravamen of AIL’s case was that the pilots, having realized that there were no opportunities left for employment, decided to withdraw their resignations. 

The stand of AIL was 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.  

After considering the arguments, the High Court noticed 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.

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, and resignation can, thus, be instantaneous or be configured to take effect, at a future date, added the Court. 

The Division Bench noted that 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 office/post; as against this, most of the other office(s)/post(s) have a bilateral attribute attached to them, added the Bench.   

The High Court noted 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.

The Division noted from the Civil Aviation Requirement, dated October 27, 2009 (CAR), that 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 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, added the Bench. 

The High Court went on to observe that CAR requires air transport undertaking to issue a NOC to the pilot once the notice period expires, and 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.

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, added the Court. 

The High Court highlighted that although there is an obligation on the part of the pilot to serve a minimum notice period of six 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. 

Therefore, the High Court held that the 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.