The state and its instruments are compelled to act as a model employer, the well-being of employees at a time when jobs are difficult as a crucial ingredient in the decision-making process: Delhi HC

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The Delhi High Court observed on Friday that the state and its organs are compelled to act as a model employer and cannot be seen as depriving pilots of the right to serve the organization at a time of finding employment. in the private sector is a difficult proposition.

“The state and its instruments are supposed to look at a multitude of aspects and not just the profits. The well-being of employees at a time when jobs are hard to find should be a crucial ingredient in its decision-making process. social responsibility towards its employees and their families when it expects the private sector to bear this burden,“said the court.

Judge Rajiv Shakdher and Judge Talwant Singh made this observation while getting rid of a bunch of pleas challenging the order of the Single Judge that overturned Air India’s decision to fire pilots by ordering their reinstatement with back pay.

Finding no valid reason to disturb the reasoning of the single judge, the Court took note of the fact that after the judgment was reserved, several pilots had seized the Court of applications which indicated that they no longer requested reinstatement in their functions.

“The reason given, basically, was that they couldn’t afford to be unemployed. As the disengagement period had lasted far too long, they had taken other avenues of engagement that presented themselves to them and , therefore, the only relief they sought was paying back wages until they found another job, “ the Court noted.

As a result, the Court declared that these employees would not be reinstated but would be entitled to wage arrears for the period between the date their resignation was accepted and the date they found other employment.

“We therefore dismiss the above appeals and confirm the directions given in paragraphs 92 (a) to (g) of the judgment under appeal with the caveat given in paragraphs 31.1 and 31.2. “ the court ruled.

In the contested ordinance, the single judge declared that the State or its agencies under article 12 of the Constitution cannot invoke financial constraints or the impact of the pandemic as a reason for providing the services of its employees. . He also found that it was futile for Air India to base its decision on the alleged losses it has suffered and continues to suffer as a result of the covid 19 pandemic.

The pleadings were filed pursuant to orders placed by Air India in which the resignations submitted by the pilots were accepted after they were withdrawn by them prior to their acceptance. Consequently, instructions were requested from the Single Judge to reinstate the pilots who served as permanent employees, with all the resulting advantages in terms of continuity of service, seniority, salary arrears, etc.

On appeal, the division chamber declared that the resignation is a voluntary act as opposed to the termination or withdrawal of service or even retirement or retirement pension, which occurs according to the applicable rules as well as the dissociation which occurs by the passage of time in accordance with the provisions of the contract, concluded between the employer and the employee.

“Thus, the resignation being a voluntary act, the employee concerned can normally determine the date on which he wishes to separate from the employer. The resignation can therefore be instantaneous or be configured to take effect, at a later date. whether the resignation operates in praesenti or in futuro would depend on the language used in the resignation letter, “ said the court.

Therefore, the Court held that when the offices or positions are occupied by persons who have special attributes, then the persons who hold such offices or positions may unilaterally relinquish their functions or positions against that most of the others that have a bilateral attribute attached to them. In other words, the Court declared that these functions and positions cannot be transferred, unless the employer accepts the resignation.

“Insofar as pilots employed by AIL are concerned, they are, in general, governed by a regime which is contained in certain provisions incorporated 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 they are executed between pilots and AIL. 10.4 (a) For brevity, the Service Rules, Operations Manual and CARs would hereinafter collectively be referred to as “documents”, unless the context otherwise requires “ said the court.

The Court also noted that in a case where the Airline Company or Air India Limited in the present case accepts the resignation submitted by the pilot earlier than the required notice period and issues a notice of compliance pursuant to that action, the notice period is truncated, and thus ends on the day of acceptance of the resignation.

“… The pilot has the right to submit his resignation, which must be in writing; with a minimum notice of six months. The pilot can however indicate in his letter of resignation, a deadline by which he wishes to leave the AIL, which can be a date beyond the period of six months,“said the court.

The Court said that although the pilot is required to give a minimum of 6 months notice, the employer-employee relationship does not dissolve until a decision is made by Air India as to whether or not the the pilot who submits his resignation falls into the excluded categories.

“It is possible that the pilots’ financial means have become untenable due to the outbreak of the Covid-19 pandemic, but this in itself, in our opinion, cannot constitute the basis for depriving them of their legal right to review their decision to resign from AIL,“added the Court.

Title: AIR INDIA LIMITED c. KANWARDEEP SINGH BAMRAH

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