State And It's Instrumentalities Obliged To Act As Model Employer, Employees' Welfare In Time When Jobs Are Difficult Form Crucial Ingredient In Decision Making Process: Delhi HC

The Delhi High Court on Friday observed that the State and its instrumentalities are obliged to act as a model employer and cannot be seen to deprive the pilots of the right to serve the organization at a point in time when finding jobs in the private sector is a difficult proposition.

"The State and its instrumentalities are expected to look at myriad aspects and not just profits. Welfare of employees in times when jobs are difficult to come by should form a crucial ingredient of its decision making process. The State cannot be seen to cast off its social responsibility towards its employees and their families when it expects the private sector to bear that burden," the Court said.

Justice Rajiv Shakdher and Justice Talwant Singh made the observation while disposing of a bunch of pleas challenging the single judge order which had quashed Air India's decision terminating pilots by directing their reinstatement with back wages.

Finding no good ground to disturb the reasoning of the single judge, the Court took note of the fact after the judgment was reserved, several pilots had approached the Court with applications, which stated that they were no longer seeking reinstatement in service.

"The reason given, broadly, was that they could not afford being without a job. Since the period of disengagement had continued for far too long, they had taken up other avenues of engagement that came their way and therefore, the only relief that they sought was, payment of back wages till such time they found alternate jobs," the Court noted.

Accordingly, the Court said that such 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.

"We, thus, dismiss the above-captioned appeals and confirm the directions issued in paragraph 92 (a) to (g) of the impugned judgment with the caveat given in paragraphs 31.1 and 31.2," the Court held.

In the impugned order, the single judge had said that the State or its Agencies under Article 12 of the Constitution cannot claim financial constraints or impact of the Pandemic as a ground for dispensing the services of its employees. It had also observed that it was futile for Air India to base its decision on the alleged losses it has been suffering and continues to suffer on the account of covid 19 pandemic.

The pleas were filed in pursuance of the orders passed by Air India wherein resignations tendered by the pilots were accepted after the same were withdrawn by them before their acceptance. Therefore, directions were sought from the Single Judge to reinstate the pilots who were serving as permanent employees, with all consequential benefits of continuity of service, seniority, back wages etc.

In appeal, the division bench said that resignation is a voluntary act in contradistinction to termination or removal from service or even retirement or 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. Resignation can, thus, be instantaneous or be configured to take effect, at a future date. As to whether or not the resignation operates in praesenti or in futuro would depend upon the language employed in the resignation letter," the Court said.

Therefore, the Court was of the view that where the offices or posts are held by persons, which have special attributes, then, persons who hold such offices or posts can unilaterally relinquish their offices or posts as against this most of the other who ave a bilateral attribute attached to them. In other words, the Court said that such offices and posts cannot be relinquished, unless the employer accepts the resignation.

"Insofar as pilots employed by the AIL are concerned, they are, broadly, governed by a regime that is contained in certain provisions embedded in the following documents : Air India Employees Service Regulations [hereafter referred as "Service Regulations"; Air India Operations Manual Part-A [hereafter referred as "Operations Manual"]; CAR, issued by the Director- General of Civil Aviation [in short "DGCA"] in the exercise of powers under Section 133A of the Aircraft Rules, 1937; and the provisions of the Fixed Term Contract [in short" FTC"] wherever executed between the pilots and AIL. 10.4(a) For the sake of brevity, the Service Regulations, Operations Manual and CAR would hereafter, collectively, be referred to as 'documents' unless the context requires otherwise," the Court said.

The Court also noted that in a case where the air transport undertaking or Air India Limited in the present matter accepts the resignation tendered by the pilot earlier than the required notice period and issues a NOC in line with this action, the notice period gets truncated, and, thus, terminates on the day of acceptance of resignation.

"…the pilot has the right to tender his resignation, which should be in writing; with a minimum notice period of six months. The pilot can, however, provide in her/his resignation letter, a terminal date when she or he wishes to exit the AIL, which can be a date beyond the period of six months," the Court said.

The Court said that although there is an obligation on the part of the pilot to serve a minimum notice period of 6 months, the employer-employee relationship does not dissolve till such time a decision is taken at Air India's end as to whether or not the pilot tendering his resignation falls in the excepted categories.

"It is possible that the financial wherewithal of the pilots' became untenable because of Covid-19 pandemic kicking-in, but that by itself, in our opinion, cannot form the basis of denuding them of their legal right to revisit their decision to resign from AIL," the Court added.

Title: AIR INDIA LIMITED v. KANWARDEEP SINGH BAMRAH

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