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Rights and Limitations Of An Employee To Withdraw Resignation: SC Explains [Read Judgment]

Ashok Kini
23 Aug 2019 11:50 AM GMT
Rights and Limitations Of An Employee To Withdraw Resignation: SC Explains [Read Judgment]
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In Air India Express Limited vs. Capt. Gurdarshan Kaur Sandhu, the Supreme Court discussed the rights and limitations of an employee withdrawing the resignation tendered by her.

Gurdarshan who was working as a Captain in Air India Charters Limited submitted her resignation on 3rd July 2017. On 2nd September 2019, the resignation was accepted by the employer. Three months later, she intimated the employer that she is withdrawing her resignation. The employer refused to accept this withdrawal of resignation letter on the ground that the resignation had become effective from 03.07.2017 by virtue of its acceptance on 02.09.2017 and thus she 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). The Employee challenged this action before the High Court which allowed her plea on the ground it was open for him to withdraw the same prior to the expiry of the period of notice.

The Apex Court bench comprising of Justice Uday Umesh Lalit and Justice Vineet Saran, while considering the appeal filed by the employer, noted that there are two exceptions to the general rule that an employee who had tendered resignation would be well within his rights to withdraw the resignation before such resignation had become effective. As stated in constitutional bench judgment in Union of India and others v. Gopal Chandra Mishra, they are: "in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post" or "in the absence of a legal contractual or constitutional bar, a 'prospective resignation' can be withdrawn at any time before it becomes effective". Further exception as stated in Balram Gupta v. Union of India is: "If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter."

The bench, examining the facts of the case observed that it would fall in the exceptions illustrated in the judgments mentioned supra. The court noted that the stipulation of notice period is only to sub-serve public interest and is designed to enable the air transport undertaking or employer to find a suitable replacement or a substitute. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will be subject to the core principles of the CAR, the bench observed while setting aside the High Court judgment.

Right and Limitations Summarized.

The legal position is that the general principle that the employee is entitled to withdraw her resignation before it become effective is not applicable if there is any stipulation to the contrary in the provisions governing the terms and conditions of the office/post. Further, a 'prospective resignation' cannot be withdrawn if there is a legal contractual or constitutional bar. Yet another factor which may dilute the general principle is when the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter. In a recent judgment, the Supreme Court had held that the unrestrained choice of an employee to withdraw a resignation may yet be constrained if the employer had made arrangements acting on the resignation or letter to make another employee available for the job.

Click here to Read/Download Judgment


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