Current Trends In Law “To Resign is employee’s right” By Adv. R.S. Agrawal

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The Supreme Court has declared in the judgment of the case –Sanjay Jain v. National Aviation Company of India Ltd., delivered on November 1, 2018, through its division bench consisting of Justice Arun Mishra and Justice Vineet Saran that  “ To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services.” And based on this declaration, the Court has concluded that the Bombay High Court has erred in law in holding otherwise.

          The appellant was aggrieved by the judgment and order passed by the Bombay High Court on September 7, 2010, dismissing writ petition No. 1740/2010.The question involved has been whether the appellant ceased to be an employee of the respondent on October 1, 2006 as 30 days’ period ended on that very day.

          The appellant joined the services of Air India Ltd. as Assistant Aircraft Engineer in Major Maintenance Division of Engineering Department with effect from September 1, 1992.As per the terms and conditions, stipulated in his appointment letter, he was required to serve Air India for a minimum period of five years. As on the date he  resigned, he had completed five years of service.

          The Certified Standing Orders framed under the Industrial Employment (Standing Orders) Act, 1946 as introduced in Air India Ltd. and as applicable to the establishment, required the employer to define the terms and the conditions of applicable to a workman and inform him of the same.

          The Certified Standing Order, deals with the condition under which an employee can tender his resignation. He is entitled to receive the certificate of service rendered at the time of cessation of his employment. The Certified Standing Order confers a right on the employer, under the Act of 1946, not to accept the resignation if at the relevant time of his resignation any disciplinary action is pending or is contemplated.         

           The Court has pointed out that it is apparent from a bare reading of the provisions contained in Standing Order 18 of the Industrial Employment (Standing Orders) Act, 1946 that wokman has a right to resign from the services by giving a notice of the period as prescribed under Standing Order 17 which provides termination of services by serving 30 days notice upon a permanent workman and seven days notice with respect to workman who is on probation and temporary workman by serving a 24 hours notice. Thus, for a permanent employee, a period of 30 days is provided to terminate or resign as is apparent on a conjoint reading of provisions of Standing Orders 17 and 18.

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          In the Court’s opinion, from a bare reading of the provisions contained in Standing Order 18, it is crystal clear that a permanent employee has a right to resign from the services by giving a notice of the period of 30 days as prescribed under Standing Order 17, and is entitled to obtain certificate from the employer for the period services have been rendered.

          Clause 2 of Standing Order 18 provides that in case resignation is submitted with immediate effect or at any time before expiry of notice period, acceptance is necessary. Acceptance of resignation is not required in case a notice has been given of 30 days. It would operative from and effective on the lapse of the period.

           It is right of a workman to serve an employer and to resign also by serving notice of 30 days. The bond to serve was only for five years as stipulated in his order of appointment. The period of bond to serve was admittedly over. There is no other Standing Order or Rule which puts a fetter on an employee to resign or confers power on the employer to reject a resignation.

           No disciplinary proceedings was pending or contemplated against an employee in the case, when he resigned. The resignation became effective after lapse of 30days period. There was no power with the employer as per Standing Order 18 to reject such a resignation. Moreover, the bond period of five years service was already over.

           A case of voluntary retirement stands on a different footing than that of resignation. Voluntary retirement is with certain civil consequences of monetary benefits. It would depend upon the phraseology used in a particular provision whether prayer made for the resignation or for voluntary retirement is required to be accepted or it takes effect without acceptance.

          In the facts of the case, in the Standing Order 18, there is no provision for acceptance of resignation, notice is served for requisite period of 30 days, obviously, the appellant had the right to resign from the services.

          In view of enunciation of law and on consideration of the provisions contained in the Standing Order 18, in the facts and circumstances of the case, the Court has been of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation.

          The Court has held that in this case, there is no such requirement of acceptance by such an employee under the provisions of the Standing Order 18 read with 17. Thus, the decision in the case – Moti Ram v. Param Dev and Another – (1993) 2 SCC 725 paragraphs 16 and 18 ,heavily relied upon by the Respondent’s counsel , is not applicable ,as factual matrix in that case is different from this case.

           The Supreme Court has allowed the appeal and quashed the HC’s judgment and order and the order passed by the respondent- employer declining to accept the resignation. The benefits which may be available shall be paid to the appellant. Provident Fund with the prevailing rate of interest from time to time. The gratuity, if payable or any other benefit, shall be paid with interest at 6 pc per annum. Outstanding amount, if any, has been ordered to be paid within three months from the date of the judgment.

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