Allowed

Captain Gurdarshan Kaur Sandhu v. Air India Express Ltd.

Kerala HC22 Feb 2018WP(C)/1991/2018

Case brief

AI extract

What is this about?

A pilot challenged the refusal to accept her withdrawal of resignation. The court held it had jurisdiction in Kerala. It ordered the airline to accept the withdrawal, permit duty assignment immediately, and deemed her continuing in service with benefits.

What did the court decide?

Resignation withdrawal accepted; petitioner deemed continuing in service; directed to rejoin duty immediately with pay.

Captain Gurdarshan Kaur Sandhu Vs Air India Express Ltd. — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939

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WP(C).No. 1991 of 2018

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PETITIONER(S)

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CAPTAIN GURDARSHAN KAUR SANDHU, STAFF NO.76002, AIR INDIA EXPRESS LIMITED, GANDHI SQUARE, D.H ROAD, KOCHI.682016.

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BY ADVS.SRI.M.V.BOSE SRI.VINOD MADHAVAN

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RESPONDENT(S):

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1. AIR INDIA EXPRESS LTD., 2ND FLOOR, AIRLINES HOUSE, 113, GURUDWARA, RAKABGUNJ ROAD, NEW DELHI.110001, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR.

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2. THE CHIEF OF HUMAN RESOURCES, THE AIR INDIA EXPRESS LIMITED, GANDHI SQUARE, D.H ROAD, KOCHI.682016

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3. THE CHIEF OF OPERATIONS, OPERATIONS DEPARTMENT, 1ST FLOOR, OPERATIONS BUILDING, OLD AIRPORT, SANTACRUZ EAST, MUMBAI.400029.

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BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 1991 of 2018 (Y)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE COMMUNICATION NO.AICL/CAPT/760002/2964 DATED 25.1.2017 ISSUED BY THE CHIEF OF HR TO THE PETITIONER.
EXHIBIT P1(A):	- TRUE COPY OF THE ORDER OF APPOINTMENT DATED 28.7.2011 APPOINTING THE PETITIONER AS CAPTAIN.
EXHIBIT P2	TRUE COPY OF THE RESIGNATION NOTICE SENT BY THE PETITIONER BY E-MAIL DATED 03.07.2017 TO THE RESPONDENTS.
EXHIBIT P3	TRUE COPY OF THE CIVIL AVIATION REQUIREMENT (CAR) DATED 01.09.2005 ISSUED BY THE DIRECTOR GENERAL OF AVIATION.
EXHIBIT P4	TRUE COPY OF THE CIVIL AVIATION REQUIREMENT (CAR) DATED 16.8.2017 ISSUED BY THE DIRECTOR GENERAL OF AVIATION.
EXHIBIT P5	TREU COPY OF THE EMAIL DATED 2.9.2017 SENT BY THE SENIOR ASSISTANT-HR TO THE PETITIONER.
EXHIBIT P6	TRUE COPY OF THE EMAIL DATED 18.12.2017 SENT BY THE PETITIONER TO THE RESPONDENTS WITHDRAWING HER RESIGNATION TENDERED AS PER EXHIBIT P2
EXHIBIT P7	TRUE COPY OF THE ROSTER ISSUED BY THE AIRLINE FOR THE PERIOD FROM 16.10.2017 TILL 14.1.2018.
EXHIBIT P8	TRUE COPY OF THE LETTER DATED 4.1.2018 ISSUED BY OFFICER HR TO THE PETITIONER.
EXHIBIT P9	TRUE COPY OF THE E-MAIL DATED 28.12.2017 SENT BY THE PETITIONER TO THE CHIEF OF OPERATIONS.
EXHIBIT P10:-	TRUE COPY OF THE REPORT PUBLISHED IN THE HINDU BUSINESS LINE, UPDATED ON 27/2/2011.
EXHIBIT P11:-	TRUE COPY OF THE ADVERTISEMENT DATED 17/12/2014 INVITING APPLICATIONS FOR VARIOUS POSTS AT MUMBAI, DELHI, CHENNAI, FOR BEING SUBMITTED TO THE CHIEF OF HR AT KOCHI.
EXHIBIT P12:-	TRUE COPY OF THE ADVERTISEMENT DATED 04/10/2017 INVITING APPLICATIONS FOR VARIOUS POSTS AT MUMBAI,DELHI, KOCHI, CHENNAI, KOZHIKODE, THIRUVANANTHAPURAM, MADURAI, MANGALORE, COIMBATORE FOR BEING SUBMITTED TO THE CHIEF OF HR AT KOCHI.

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WP(C).No. 1991 of 2018 (Y)

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EXHIBIT P13:- TRUE COPY OF THE RELEVANT PAGE OF THE LOG BOOK PERTAINING TO THE FLYING DUTY OF THE WRIT PETITIONER FOR THE MONTH OF SEPTEMBER, 2017.

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EXHIBIT P14:- TRUE COPY OF THE APPRECIATION LETTER SERVED ON THE PETITIONER BY THE MANAGEMENT.

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RESPONDENT(S)' EXHIBITS - NIL

/TRUE COPY/

PS TO JUDGE

TS 27/02/2018

P.V.ASHA J.

W.P.(C).No.1991 of 2018

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------------------------------------- Dated this the 22^nd day of February, 2018

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J U D G M E N T

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Petitioner has filed this writ petition aggrieved

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by the refusal to accept her application to withdraw her resignation.

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Petitioner was appointed as Captain in the Air India Charters Ltd (AICL) as per Ext.P1(a) order dated 28.07.2011, issued by its Chief of Operations, Operations Department, Mumbai. As per Ext.P1 letter dated 25.01.2017, she was appointed as a Commander by the Chief of HR-2^nd respondent, in the Air India Express Limited, which is having its Head Quarters at Kochi.

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Petitioner submits that she has got 13

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years' experience as Pilot/Commander. She submitted Ext.P2 letter of resignation on 03.07.2017 to the 2^nd respondent through the 3^rd respondent, by e-mail.

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According to her the resignation was submitted because of the harassment she was subjected to, by the superiors, as there was no other option. Ext.P3 guidelines relating to resignation, provides that there should be a notice period of six months. The relevant portion in Ext.P3, the Guidelines issued by the Director General of Civil Aviation on 01.09.2005 which prevailed at the relevant time, reads as follows:

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"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 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 as per agreed terms of employment. 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.

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3.5 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.

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3.6 The 'Notice Period' of six months, however, may be reduced if the air transport undertaking provides a 'No Objection

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W.P.(C).No.1991 of 2018

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Certificate' to a pilot and accepts his resignation earlier than six months."

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A Senior Assistant HR, from the Head

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Quarters at Kochi, as per Ext.P5 e-mail dated 02.09.2017, informed the petitioner that her resignation had been accepted by the competent authority and she could be released on completion of six months from the date of her resignation.

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While so, the petitioner submitted Ext.P6 e-mail dated 18.12.2017 informing that she was withdrawing her resignation with immediate effect and would continue to serve the company as per her current designation. Petitioner's case is that she sent a lawyer notice demanding assignment of duty, as she was not assigned duty for the period from 02.01.2018 onwards. Thereupon, the Officer HR, as per Ext.P8 letter dated 04.01.2018, informed the petitioner that her request for withdrawal cannot be acceded to, as the competent authority had already

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W.P.(C).No.1991 of 2018

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accepted her resignation, as was informed by the Senior Assistant, HR as per e-mail dated 02.09.2017 and that her resignation became effective from 03.07.2017 and she stood relieved from the service of the company with effect from 02.01.2018. Petitioner filed this writ petition challenging Ext.P8.

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The case of the petitioner is that the relationship between employer and employee had not severed until she was relieved by the respondent on completion of six months from the date of tendering notice of resignation and since she continued to be an employee as on 18.12.2017, she could withdraw her resignation at any time before the expiry of the notice period of six months, despite acceptance of the resignation. It is her further claim that Ext.P5

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E-mail from the Senior Assistant cannot be considered as acceptance of her resignation and that

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W.P.(C).No.1991 of 2018

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the competent authority never issued any communication to her accepting resignation.

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Petitioner relies on the judgments of the Apex Court Rajasekharan Nair S. v. State of Kerala and Others [2009 (4) KHC 567], Srikantha S.M. v. Bharath Earth Movers Ltd . J.N.Srivastava v. Union of India and Another [1998 (9) SCC 559], Shambhu Murari Sinha v. Project and Development India Ltd., and Another [2002 (3) SCC 437].

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The respondents filed a counter affidavit mainly objecting the jurisdiction of this Court to entertain the writ petition under Article 226 (2) of Constitution of India, pointing out that writ petition can be maintained only in a High Court within the territorial jurisdiction of which the integral part of cause of action has arisen. As petitioner had been operating from Mumbai, her homebase is Mumbai; she was reporting before the 3^rd

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W.P.(C).No.1991 of 2018

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respondent-the Chief of Operations; the decision to accept her resignation was made at Mumbai; integral part of cause of action arose within the jurisdiction of the Mumbai High Court. It is also pointed out that petitioner had been approaching the Mumbai High Court for various discipline and safety related issues raised against the respondents; she had sent a lawyer notice to the Mumbai Office; she is very well aware of the jurisdiction of the Mumbai High Court, where she should have approached; it is stated that merely because Exts.P5 or P8 were issued from Cochin office that would not give rise to a cause of action within the territorial limits of this Court and hence the writ petition is liable to be dismissed.

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Apart from the objection with reference to the territorial jurisdiction, respondents have stated that petitioner did have only less than

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satisfactory record of service; it is stated that the petitioner was not subjected to any harassment; she had been involved in a number of discipline and safety related issues; the allegations raised by her in the letter of resignation are baseless. Further it is stated that the applicable civil aviation requirements (CAR) do not permit withdrawal of resignation which is already accepted. It is stated that since petitioner had in Ext.P2 letter threatened to leave the company even before notice period, the first respondent accepted her resignation, considering the petitioner's no-sosatisfactory service record, which was intimated to her as per Ext.P5 correspondence on 02.09.2017. It is stated that requirement of NOC is not applicable to petitioner; it is stated that the competent authority to accept resignation is the 3^rd respondent and not the 2^nd respondent and that the first

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respondent company accepted her resignation on 02.09.2017, in order to ensure continuity in

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operation and sufficient time to make alternate arrangements in public interest.

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Petitioner filed a reply affidavit producing Ext.P11 news item and Ext.P12 notification inviting application for recruitment to various posts in Mumbai, Delhi, Chennai, etc. to be submitted before the 2^nd respondent, at Kochi, asserting that the corporate Head Quarters of first respondent continues to be at Kochi. Petitioner also asserts that it is for the 2^nd respondent, who is the appointing authority at Kochi, to accept the resignation. Producing Ext.P13 logbook for September 2017, petitioner claims that out of the 7000 flying hours of her flying experience, 6000 hours were from Kerala, by declining her request to have her roster starting from Mumbai.

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W.P.(C).No.1991 of 2018

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Having heard the contentions on both sides,

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firstly it is necessary to examine the preliminary objection as to the territorial jurisdiction of this Court to entertain the writ petition. The learned Senior Counsel for the respondents relied on the Full Bench judgment in Indian Maritime University v. Viswanathan [2014 (4) KLT 798], and argued that the integral part of the cause of action arose in Mumbai and this Court has no jurisdiction to entertain the writ petition. But I find that the said judgment does not support the case of the petitioner. The question considered by the Full Bench in that case was as to whether in a case the orders impugned are passed outside the jurisdiction of the court, writ petition is maintainable before this Court, because the orders were served or communicated to the petitioner while he is in Kerala. A teacher challenged the orders passed by the authorities in

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Chennai filing writ petition before this Court and wanted to re-join duty at Chennai. Following another Full Bench judgment in Nakul Deo Singh v. Deputy Commissioner [1999 (3) KLT 629 ] , the Full Bench held that communication of the order by itself will not give rise to cause of action, when the action complained of takes place outside the jurisdiction and no part of cause of action arose within this State. It is to be noted that in the judgment in Naval Kishore Sharma v. Union of India [2014 (9) SCC 329], which the Full Bench had noticed, also held that when a part of cause of action has arisen within the jurisdiction of the Court, the writ petition can be entertained.

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In the judgment in Kusum Ingots and Alloys

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Ltd V Union of India [2004 (6) SCC 254] it was held that writ petition will lie either at the place of original authority or at the place of appellate

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W.P.(C).No.1991 of 2018

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authority. In Kusum Ingot 's case ( supra ), the Apex Court was considering a case where the appellant company which was having its registered office at Mumbai filed a writ petition in the High Court of Delhi, challenging the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, under which proceedings were initiated against it by Bhopal branch of State Bank of India, for repayment of the loan from Bhopal. It was held that passing of a legislation by itself would not confer any such right to file a writ petition unless a cause of action arises therein. it was held as follows. The following observations in that judgment are relevant:

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"10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter.

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In Chand Kour v. Partab Singh it was held: (IA pp. 157-58)

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“[T]he cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour.”

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This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu [1994 (4) SCC 711] held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial.

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xxxxx

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16 . In Union of India v. Adani Exports Ltd. it was held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction.

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xxxx

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18 . The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court.”

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13. In Rajendran Chingaravelu v. R.K. Mishra

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W.P.(C).No.1991 of 2018

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[2010 (1) SCC 457] the appellant who travelled by air from Hyderabad was intercepted at Chennai, and detained by the Income Tax officials for transportation of large sum of cash. The High Court at Hyderabad dismissed his writ petition for want of jurisdiction. Seeing that appellant was allowed to board the aircraft at Hyderabad Airport without objection the Apex Court held that part of cause of action arose at Hyderabad and the dismissal of the writ petition was not correct. It was held as follows:

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"10. In this case, the genesis for the entire episode of search, seizure and detention was the action of the security/intelligence officials at Hyderabad Airport (in Andhra Pradesh) who having inspected the cash carried by him, alerted their counterparts at Chennai Airport that the appellant was carrying a huge sum of money, and required to be intercepted and questioned. A part of the cause of action therefore clearly arose in Hyderabad. It is also to be noticed that the consequential income tax proceedings against him, which he challenged in the writ petition, were also initiated at Hyderabad. Therefore, his writ petition ought not to have been rejected on the ground of want of jurisdiction."

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14. Article 226(2) of the Constitution of India

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reads as follows:

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"The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."

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15. It is admitted by the respondents that

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Ext.P5 E-mail communicating the acceptance of resignation and Ext.P8 letter rejecting the withdrawal of resignation are issued from the offices of the second respondent, at Kochi. From Ext.P1, it can be seen that petitioner was appointed by the 2^nd respondent who is at Kochi. It is the case of the petitioner that the appointing authority is also the Chief of HR-the second respondent who is very well within the jurisdiction of this Court. The respondents have not produced any material to controvert the same. Though her home base is at

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Mumbai and she has filed writ petitions in Mumbai High Court, it cannot be said that no cause of action arose within this State. It is not a case where the appointing authority at Kochi does not have any role in acceptance or withdrawal of resignation. Petitioner has also a case that she has been flying from Cochin to Bombay in several flights. It is not a case where the issue arising in this case does not have any connection with the 2^nd respondent who functions at Kochi in the Head Quarters. Unlike Indian Maritime University's case, petitioner could move either Mumbai High Court or this court as the substantial part of the cause of action have arisen within the jurisdiction of this Court. Therefore, the preliminary objection raised by the respondents cannot be sustained.

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Regarding the resignation, the six months

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time expires from the date of Ext.P2 letter only on

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W.P.(C).No.1991 of 2018

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03.01.2018. The petitioner submitted the letter of withdrawal as per Ext.P6 E-mail on 18.12.2017, well before the resignation was to be effective. Even though, an e-mail was issued by respondents on 02.09.2017, accepting the resignation, the resignation was to take effect only on completion of 6 months of Ext.P2 letter i.e from 02.01.2018, as provided in Ext.P3 Guidelines. Ext.P3 guidelines requires the employer to issue a 'No Objection Certificate' also.

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As per Clause 3.5 and 3.6 of Ext.P3 guidelines, it is mandatory for the air transport undertaking to issue NOC to the pilot on expiry of the notice period of six months. It is also incumbent on the persons who resign from service to work under the respondent till such time. Therefore, since the employer-employee relationship continued, it cannot be said that the withdrawal of the

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W.P.(C).No.1991 of 2018

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petitioner's resignation requested by her in Ext.P6 could not have been accepted in view of Ext.P5 letter or any acceptance referred to in Ext.P5. Contention of the respondents that requirement of NOC does not arise in her case cannot be accepted in view of clause 3.5 and 3.6 of Ext.P3.

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As rightly pointed out by the learned

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counsel for the petitioner, in the light of the judgment of the Apex Court in Srikantha S.M. v. Bharath Earth Movers Ltd . [2005 (8) SCC 314], Rajasekharan Nair S. v. State of Kerala and Others

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[2009 (4) KHC 567], J.N.Srivastava v. Union of India and Another [1998 (9) SCC 559], Shambhu Murari Sinha v. Project and Development India Ltd., and Another [2002 (3) SCC 437], etc the

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resignation/voluntary retirement can be withdrawn by the employee before he is actually released from service.

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W.P.(C).No.1991 of 2018

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The judgment of the Apex Court in

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Srikantha's case (supra) is rendered in more or less similar circumstances, where the question of withdrawal of resignation was considered by the Apex Court. Reiterating the propositions laid down in the judgments in Union of India v. Gopal Chandra Misra [AIR 1978 SC 694], Balram Gupta v. Union of India (1987 Supp SCC 228), J.N. Srivastava v. Union of India [1998 (9) SCC 559), Shambhu Murari Sinha v. Project and Development India [2000 (5) SCC 621] and Punjab National Bank v. P.K. Mittal (1989 Supp (2) SCC 175) etc, it was held as follows:

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“ 26. On the basis of the above decisions, in our opinion, the learned counsel for the appellant is right in contending that though the respondent Company had accepted the resignation of the appellant on 4-1-1993 and was ordered to be relieved on that day, by a subsequent letter, he was granted casual leave from 5-1-1993 to 13-1-1993. Moreover, he was informed that he would be relieved after office hours on 15-1-1993. The vinculum juris , therefore, in our considered opinion, continued and the relationship of employer and employee did not come to an end on 4-1-1993. The relieving order and payment of salary also make it abundantly clear that

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he was continued in service of the Company up to 15-1-1993.”

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In that case resignation letter was

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tendered on 04.01.1993 requesting to relieve him as per Company rules and it was initially accepted on the same day. Though he was informed that he would be relieved with immediate effect, he was later informed that he would be relieved on 15.01.1993. In the meanwhile the letter of resignation with withdrawn as per letter dated 8-1-1993. But on 151-1993 appellant was informed that he would be relieved on that day giving notice pay. The apex court held that the withdrawal letter was liable to

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be accepted as the same was given well before his relation ship with the employer severed. The Apex Court reiterated the law laid down in Gopal Chandra Misra' s case (supra) and in Balram Gupta 's case (supra) that resignation becomes complete and effective only when one severs the link with his

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office and terminates its tenure.

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The judgment in Punjab National Bank v.

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P.K. Mittal (1989 Supp (2) SCC 175) which was also relied on in Sreekantha 's case (supra) was rendered in a case where resignation from service of the Bank was tendered on 21-1-1986, to be effective from 306-1986. The competent authority initially accepted the resignation with effect from 30-6-1986. Thereafter on 07.02.1986 he was informed of the acceptance of his resignation by the competent authority with immediate effect and he was relieved from the Bank with effect from 7-2-1986. The employee challenged it and sought for a direction to the Bank to treat him in service up to 30-6-1986. Whileso on 15-4-1986, informed the Bank that he was withdrawing his resignation. Accepting the contention of the employee that he continued in service, the apex Court held that his resignation

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could take effect from 30-6-1986 or on expiry of the three months’ period provided in the Service Regulations and that he could withdraw the resignation, before that period, and since he had withdrawn the resignation before 30-6-1986, he continued to remain in service with the Bank. The contention of the Bank that the resignation became effective on 07.02.1986, relying on the proviso to Regulation 20(2) which provides for reducing the notice period, it was held that the notice period was to protect the interest not only of the employer but the employee also. In para 7 it was held as follows:

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“7. xxx Clause (2) is carefully worded keeping both these requirements in mind. 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 proviso in our opinion should not be interpreted as enabling a bank 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. We, therefore,

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agree with the High Court that in the present case the resignation of the employee could have become effective only on or about 21-4-1986 or on 30-6-1986 and that the bank could not have ‘accepted’ that resignation on any earlier date. The letter dated 7- 2-1986 was, therefore, without jurisdiction.”

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In the present case also since the

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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. In view of these circumstances

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and in the light of the dictum in the aforesaid judgments, petitioner should be deemed to have been continuing in service, with all benefits and she shall be assigned duty without any further delay.

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In the above circumstances, Ext.P8 letter is quashed. Petitioner shall be deemed to have been continuing in service without any break with all benefits. The respondents shall allow her to re-join duty with immediate effect and disburse the pay and allowances due to her without any further delay.

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Sd/- P.V.ASHA, JUDGE.

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Captain Gurdarshan Kaur Sandhu v. Air India Express Ltd.

Case brief

What is this about?

What did the court decide?

Captain Gurdarshan Kaur Sandhu v. Air India Express Ltd.

Case brief

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