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High Court of Judicature at Bombay
R.P. SONDURBALDOTA & V.M. KANADE, JJ.
Rakesh Rai
Versus
M/s National Aviation Company of India & Another
Writ Petition No.287 of 2003
Decided on: 08-07-2013
Where there was a clear withdrawal of resignation by employee before its acceptance by employer therefore employee entitled to continuity in service. - It is clear that the petitioner had withdrawn his resignation and had declined to accept the conditions for acceptance of resignation imposed by respondent No. 1. The ratio of the judgments, therefore, is squarely applicable to the facts of the present case and it will have to be held that the petition had withdrawn his resignation before it was accepted by respondent No. 1.
The petitioner sent a letter of resignation on 18.5.2000 which was to take effect from 31.5.2000. This resignation was not processed by the respondents as there was conditional acceptance which is evidence from two letters dated 13/14.6.2000 and 17.6.2000. Apart from that, a show-cause notice was also issued to the petitioner by respondent No. 1, asking him why his absence on two days should not be treated as misconduct. The petitioner within two months thereafter by his letter dated 26.9.2000 informed respondent No. 1 of his withdrawal of letter of resignation on account of non-acceptance of the conditions imposed by respondent No. 1. The petitioner, thereafter, was continuously requesting respondent No. 1 to permit him to rejoin the services of respondent No. 1. However, respondent No. 1 permitted the petitioner to rejoin the services only after a lapse of almost two years. This being the factual position, merely because the petitioner had joined United Ai rlines after he left India, could not by itself be a ground to suggest that there was a severance of relationship of Master and Servant. At the highest, it could be said that it would amount to misconduct on the part of the petitioner for having joined another service which was contrary to the Standing Order No. 35. The submission made by counsel appearing on behalf of respondents of severance of status is without any substance.
Registration of the petitioner dated 18.5.2000 was never accepted by the respondents and before it could be accepted conditionally, petitioner had withdrawn his resignation by his letter dated 26.9.2000. However, petitioner would not be entitled to get the salary from 1.6.2000 to June, 2003 since the petitioner had not worked with respondent No. 1. However, the said period shall be considered as if he was on duty for the purpose of continuity of service. Petitioner also would not be entitled to get seniority over the Officers who were appointed during the period from June, 2000 to June, 2003.
(V.M. Kanade, J.)
1. Petitioner, by this Petition, is invoking writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking appropriate writ, order and direction for quashing and setting aside the order dated 17/06/2000 passed by the Respondents accepting the Petitioner's resignation with effect from 01/06/2000 and for further direction, directing that the Petitioner may be deemed to be in service during the aforesaid period and for all consequential benefits.
2. Brief facts which are necessary for the purpose of deciding this Petition are as under:-
3. Respondent No.1 is a Company fully owned by the Government of India and it is admittedly the “State” within the meaning of Article 12 of the Constitution of India. Petitioner, initially, was an Officer in the Indian Air Force which he joined in 1983 and after meritorious service in Indian Air Force, Petitioner took premature retirement and took training in commercial flying and, thereafter, he joined Respondent No.1 – Company as a Co-pilot on and around 21/11/1994 as per the terms and conditions contained in letter of offer No.4-15/5368 dated 15/11/1994 and the Agreement dated 21/11/1994.
4. Sometime in 1997, according to the Petitioner, inter se seniority of the Petitioner and one Capt. C.S. Randhawa and others was altered and the Petitioner challenged the said alteration by filing Writ Petition No.1745 of 1997 in this Court which is still pending.
5. Sometime in May, 2000 Petitioner submitted his resignation from the service of Respondent No.1 by his letter dated 18/05/2000. Petitioner had sought acceptance of the resignation with effect from 31/05/2000. Petitioner had taken the said decision of resigning since his wife had migrated to USA and, therefore, in the larger interest of the family harmony, he had no choice but to join his wife in USA. Respondent No.1 gave reply to the Petitioner by their letter dated 13/14-06-2000, stating therein that Petitioner's letter of resignation could be processed only if certain conditions mentioned in the letter were accepted by the Petitioner viz (i) Petitioner withdrawing Writ Petition No.1745/1997, (ii) Petitioner returning excess pay and allowances received by the Petitioner in view of the order passed by the High Court in the said Writ Petitioner, (iii) Petitioner agreeing to pay training cost incurred by Respondent No.1 on the Petitioner, (iv) Petitioner agreeing to return all emoluments drawn by the Petitioner as Co-Pilot on pro-rata basis from the time his training commenced and (v) Petitioner paying Respondent No.1 liquidated damages, a sum computed on the basis of 12 times the last drawn emoluments. It was stated in the letter that if the Petitioner confirmed the acceptance of these conditions, only thereafter Respondents would be in a position to process the said letter. Petitioner, thereafter, was further informed by the Respondent No1. by their letter dated 17/06/2000 that the Petitioner's resignation had been accepted by the Managing Director with effect from 01/06/2000 subject to terms as contained in the letter dated 13/14-06-2000 and the Petitioner was asked to communicate his acceptance of the conditions so that the said letter could be processed expeditiously.
6. In the meantime, Petitioner also received a letter dated 21/24-07-2000 in which he was informed that he was scheduled to operate flight AI-101 of 05/06/2000 and again Flight AI-101 of 17/7/2000 and since the Petitioner had not reported for the said Flights and had neither applied for leave, this amounted to unauthorized absence and was a misconduct as per the provisions of Standing Orders applicable to the Petitioner.
7. Petitioner gave reply to the letters dated 13/14/-06-2000 and 17/06/2000 by his letter dated 26/09/2000 in which Petitioner stated that it was not possible for him to accept the terms and conditions contained in the said letter and, therefore, had requested that he may be permitted to rejoin the services at ear
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