Bangladesh Biman Corporation and oth­ers Vs. Md. Jusimuddin, II ADC (2005) 732

Case No: Civil Appeal No. 149 of 2000

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. A. K. M. Nazrul Islam,Sharifuddin Chaklader,,

Citation: II ADC (2005) 732

Case Year: 2005

Appellant: Bangladesh Biman Corporation

Respondent: Md. Jusimuddin

Subject: Employment & Service,

Delivery Date: 2001-11-6

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mainur Reza Chowdhury, J.
Mohammad Gholam Rabban, J.
Md. Ruhul Amin, J.
 
Bangladesh Biman Corporation and oth­ers
……............Appellants
Vs.
Md. Jusimuddin
….………...Respondent
 
Judgment
November 6, 2001.
 
General Clauses Act, 1897
Section 21
That respondent having had voluntarily tendered his resignation and that the Biman having had accepted his letter of resignation on due compliance of the provision of the Regulations for withdrawal of resignation in the interim period of acceptance of resignation by the Biman Authority….….. (9)
 
Cases Referred to-
M. A. Mannan V. Biman Bangladesh Air Lines, 1989 BLD 516; AIR 1978 (SC) 694; Belal Rahman Vs. P. J. Industries Ltd. 39 DLR 239; Bangladesh Parjatan Corporation Vs. Mofizur Rahman, 46 DLR (AD) 46.
 
Lawyers Involved:
Sharifuddin Chaklader, Advocate-on-Record - For the Appellants.
A. K. M. Nazrul Islam, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record - For the Respondent.
 
Civil Appeal No. 149 of 2000
(From the Judgment and Order dated 10th November, 1999 passed by the High Court Division in Writ petition No. 3855 of 1998)
 
JUDGMENT
 
Md. Ruhul Amin J.
 
1. This appeal by leave, is from the judgment dated 10th November, 1999 of a Division Bench of the High Court Division in Writ Petition No. 3855 of 1998 declaring acceptance of resig­nation of the writ petitioner to have been made without lawful authority and is of no legal effect.
 
2. Short facts are that respondent joined in the service of Bangladesh Biman, herein after in brief the Biman, on 21st January, 1990 as Junior Traffic Assistant in the Customers Service Department and was confirmed in the said post by the Memo dated 3rd October, 1990 in the Pay Group 3(ii). He was promoted as Senior Traffic Assistant and was posted at Chittagong. On 26th August 1998 he sought permission from the Station Manager, Chittagong Airport to leave Chittagong for Dhaka but the said request was turned down. Inspite of turning down of the permission to leave Chittagong, the respondent left Chittagong and came to Dhaka and on 29th August, 1998 while was at Dhaka he resigned from service. On 6th September, 1998 he addressed a letter to the Station Manager, Bangladesh Biman Airlines, M. A. Hannan International Airport, Chittagong seeking permission to revoke/withdraw his resignation letter dated 29th August, 1998. The let­ter seeking permission to revoke/withdraw the letter of resignation was for warded by the Station Manager and the District Manager, Chittagong Airport on 9th September, 1998 to the Biman's Dhaka office for Consideration. From 9th September 1998 to 14th September, 1998 respondent signed attendance Register but from 15th September, 1998 he was not allowed to sign attendance registrar. On 16th September, 1998 the Personal officer of the Biman, informed the respondent regarding acceptance of his resignation letter with effect from 29th August, 1998. The respondent challenged legality of the acceptance of his resignation by the Biman contending that he having been allowed to resume his duty on the filing of letter seek­ing revocation. Withdrawal of letter of res­ignation before acceptance and communi­cation of acceptance of resignation the acceptance of his resignation was illegal. It was also contended that Bangladesh Biman Corporation Employees (Service) Regulations, 1979, herein after in short the Regulations, requires an employee manda­tory to give one month's notice to resign from the service of the Corporation and same having not been complied with in the instant case acceptance of resignation letter was without jurisdiction.
 
3. The case of the appellant was that respondent's resignation was of immediate effect and in that background while formal communication of acceptance of resignation by the Biman was awaiting the Station Manager, Biman, Chittagong had no authority to allow the respondent to sign Attendance Registrar from 9th September, to 14th September, 1998 and that because of signing of the attendance registrar it can­not be said that respondent's prayer for withdrawal of the letter of resignation was accepted as there is no scope for withdraw­al of resignation while the same was of immediate effect. Moreover, there is no provision in the Regulations for withdrawal of the letter of resignation pending commu­nication of decision as to the matter of acceptance of resignation by the authority. It was also the contention of the appellant that in the background of the position of law acceptance of letter of resignation of the respondent was quite legal and that in taking decision as to the matter of resigna­tion of an employee the Biman by law is not required to consider the subsequent letter seeking permission for withdrawal of the letter of resignation.
 
4. The High Court Division made the Rule absolute upon the view that as prior to the communication of acceptance of resig­nation the respondent addressed letter to the Biman seeking permission to withdraw the letter of resignation and consequent there­upon as the letter of resignation lost its effect and the respondent deemed to be in the service of the Biman the action of the appellant in accepting the letter of resigna­tion was without lawful authority.
 
5. The High Court Division while mak­ing the Rule absolute has observed that before the letter of resignation could be accepted authority had already been in possession of the letter of withdrawal of the letter of resignation. And that it was not reflected in the letter accepting resignation of the respondent that his letter of with­drawal was considered and that on submis­sion of the letter seeking permission for withdrawal of the letter of resignation the respondent was allowed by the station Manager Chittagong Air Port to sign atten­dance registrar which showed bona fide of the respondent that he did not resign volun­tarily and that Regulation 53(1) of the Regulations clearly provides that a perma­nent employee shall be required to give one month's notice should he wish to resign from the service of the Corporation, but in the instant case there was no such notice.
 
6. There is no dispute that the respon­dent was a permanent employee of the Biman and that his service was regulated by the Regulations.
The Respondent resigned from the service by the letter dated 29th August 1999 which runs as:
 
বরাবর
পরিচালক প্রশাসন
বিমান বাংলাদেশ এয়ার লাইন, বলাকা বিল্ডিং
জিয়া, ঢাকা।
মাধ্যমঃ যথাযথ কতৃপক্ষ
বিষয়ঃ চাকুরি হইতে ইস্তফা প্রদান প্রসঙ্গে।
জনাব,
যথাযথ সম্মান প্রদর্শন পূর্বক বিনীত নিবেদন এইযে, আমার পারিবারিক সমস্যার জন্য বর্তমানে চাকুরি করা আমার পক্ষে অসম্ভব।
অতএব, জনাবের নিকট আবেদন আমাকে চাকুরি হইতে ইস্তফা প্রদান করিতে জনাবের মর্জি হয়।
 
7. Subsequent to the submission of the letter of resignation the respondent sought permission of the Biman authority to with­draw his latter of resignation by the letter dated 6th September 1998, which runs as;
 
বরাবর
স্টেশন ব্যাবস্থাপক
বিমান বাংলাদেশ এয়ারলিনস
এম, এ, হান্নান আন্তর্জাতিক বিমান বন্দর
চট্টগ্রাম     
বিষয়ঃ চাকুরি হইতে অব্যহতি নেওয়ার আবেদনপত্র প্রত্যাহার প্রসঙ্গে
জনাব
সবিনয় বিনীত নিবেদন এইযে, আমি গত ২৯/৮/৯৮ ইং তারিখে পারিবারিক ঝামেলাইয় সাময়িকভাবে মানসিক বিপর্যস্থ অবস্থায় চাকরি থেকে ইস্তফা নেওয়ার জন্য কর্তপক্ষের বরাবরে আবেদন করি। পরবর্তীতে আমি আমার এই ভুল সিদ্ধান্তের জন্য অনুতপ্ত হই। এই জন্য আমি হতাশাইয় ভুগছি এবং কতৃপক্ষের কাছে ক্ষমা প্রার্থনা পূর্বক আমার ইস্তফা পত্রটি প্রত্যাহার করে আমাকে পুনরায় স্বাভাবিক কাজকর্ম করার অনুমতি প্রদানের প্রার্থনা করছি।
অতএব, আমার পারিবারিক ও মানুষিক অবস্থার বিষয়টি সদয় বিবেচনা পূর্বক আমাকে পুনরায় স্বাভাবিক কাজকর্ম করার অনুমতি প্রদানের জন্য বিনীত অনুরোধ জানাচ্ছি।
 
8. Respondent's resignation was accept­ed by the Biman on 16th September, 1998 with effect from 29th August, 1998.
The respondent was an employee of the Biman in Pay Group 3(ii).
The matter of resignation of an employ­ee of the Biman is regulated by the provi­sions of Regulation 53 of the -Regulations which runs as;
 
"53. Resignation.- (1) A permanent employee working in any of the pay groups from I to V shall be required to give one month's notice, should he which to resign from the service of the Corporation.
(2) An officer in Administrative pay group VI or above, who wishes to resign from the service of the Corporation shall be required to give notice as under:
Officers with service up to 5 years..............One month.
Officer with service above 5 years but not exceeding 10 years........Two months.
Officers with service above 10 years..............Three months
(3) An employee who resings from service of the Corporation but fails to give the required notice in accordance with sub-regulation (1) or sub-regulation (2), as the case may be, shall surrender pay in lieu of notice period.
(4) On receiving the notice of resigna­tion from the employees, the Competent Authority may accept or reject the resigna­tion or, accept it with immediate effect or from any date after or prior to the expiry of the notice period with payment of the salary for the unexpired portion of the notice peri­od:
Provided that the Competent Authority may accept a written request of an employ­ee for release from a date earlier than the date from which the resignation is accepted without payment of salary in lieu of the unexpired period of notice." 
 
9. The appellant has challenged legality of the judgment of the High Court Division contending that respondent having had vol­untarily tendered his resignation and that the Biman having had accepted his letter of resignation on due compliance of the provi­sion of the Regulations and there having no provision in the Regulations for withdrawal of resignation in the interim period of acceptance of resignation by the Biman Authority, the High Court Division was in error in declaring acceptance of the letter of resignation illegal on the grounds that before acceptation of resignation respon­dent submitted letter seeking withdrawal of letter of resignation and that the letter com­municating acceptance of resignation does not show letter seeking withdrawal of resig­nation letter was considered.
 
10. It is the contention of the respondent that as per provision of Regulation 53(1) it being mandatory for a permanent employee of the Biman in pay group 3(ii) to give one month's notice if he intends to resign from the service of the Biman and that in the instant case before passing of one month from the date of submission of letter of res­ignation dated 29th August, 1998 he having had filed on 6th September, 1998 letter seeking permission to withdraw the letter of resignation and that the said having been forwarded to the authority before the acceptance and communication of accept­ance of his resignation and that there being nothing in the letter communicating accept­ance of his resignation that letter of with­drawal was considered, the acceptance and communication of acceptance of his resig­nation was illegal.
 
11. Case of the appellant is somewhat straight. That the Respondent had filed the letter of resignation expressing his intention to resign from the service instantly and that in fact his resignation became effective from the very day of submission of the let­ter of resignation as because he refrained from attending office on and from 29th August 1998. As Respondent's resignation became effective from the very date of sub­mission of letter of resignation, communi­cation from the Biman's side as to accept­ance of respondent's resignation was a for­mal and routine matter. Since respondents resignation became effective from 29th August, 1998 as such there was no scope for withdrawal or revocation of letter of res­ignation and because of that respondent's signing of the attendance Registrar subse­quent to the filing of the letter seeking per­mission to withdraw the resignation letter did in no way brought to an end of the res­ignation.
 
12. Respondent's case was that before acceptance and communication of the letter of resignation he having had filed letter seeking permission to withdraw his letter of resignation and that he having been allowed to sign attendance registrar, his resignation terminated and thereupon he was very much in the service and as such the author­ity did acted illegally in accepting his letter of resignation which was in fact was not in existence.
 
13. Mr. A. K. M. Nazrul Islam, learned Counsel of the respondent has submitted that with the submission of the letter seek­ing withdrawal of the letter of resignation respondent's letter of resignation became non-existent as because he was allowed to sign attendance registrar and in that back­ground there was no occasion for the Biman authority to accept the letter of resignation that was submitted on 29th August, 1998. In support of his submission the learned Counsel has referred us to the case of M. A. Mannan V. Biman Bangladesh Air Lines, reported in 1989 BLD 516. Facts of the aforesaid case are quite distinguished from the facts of the instant case and as such the said case is of no help to the learned Counsel in support of his aforesaid submis­sion. The learned Counsel has also referred us to a case report in AIR 1978 (SC) 694. This case has no relevancy since there in question of withdrawal of prospective res­ignation came up for consideration, but the instant case is not one like that. The learned Counsel has also referred the case of Belal Rahman Vs. P. J. Industries Ltd. reported in 39 DLR 239. The learned Counsel wants to rely on the observation in the said case which is to the effect. "We, however, are of the view that if the letter of resignation is withdrawn before its acceptance, it shall have no effect and the worker shall contin­ue to be in the service." It may be men­tioned in the reported case provision of Section 19 of the Bangladesh Employment of Labour (Standing Orders) Act, 1965 came up for consideration. The provision of Section 19 of standing order and the provi­sion of Regulation 53 of the Regulations are quite distinct and different and as such observation on which reliance has been placed in support of submission that as because before acceptance of resignation letter to withdraw the letter of resignation was filed respondent continued to be in service is of no assistance. It is relevant to mention herein that in the case reported in 1989 BLD provision of Regulation 53 of the Regulations was considered and it has been observed "The question of acceptance or refusal of resignation arises only when the employee gives a notice of resignation, in terms of sub-regulation (1) or (2). Since the petitioner resigned with immediate effect, he had only to surrender his pay in. lieu of notice period." So Regulation 53 provides for resignation with immediate effect.
 
14. In this case contents of letter of res­ignation clearly shows respondent resigned with immediate effect since no effective date of resignation was mentioned and con­sequently he resigned upon surrendering his pay in lieu of notice period as in Regulation 53(1) of the Regulations. The fact of instant resignation undisputedly established as because upon submitting letter of resigna­tion on 29th August, 1998 the respondent started absenting from duty. Regulation 53(1) requires that if a permanent employee of respondent's pay group intends to resign. He would be required to serve one month's notice, but instead of giving one month’s notice an employee of the respondent's pay group can resign upon surrendering one month's pay in lieu of notice period as pro­vides in sub-regulation 3 of Regulation 53. If the intimation of or request of resignation is silent as to date or period of resignation being effective as to date or period in that case the Biman authority would be within the bounds of law considering such kind of resignation as of immediate effect upon sur­render of pay in lieu of notice period. It is seen from the letter of the Biman accepting respondent's resignation that his resignation was accepted by the Biman authority in the light of the provision of Sub-regulation 3 of Regulation 53. The Biman authority accept­ed the resignation of the respondent upon deducting one month's salary. The contents of the respondent's letter of resignation clearly shows that he resign immediately upon surrendering one month's pay in lieu of notice period as in sub Regulation 1 of regulation 53. The contention of the respon­dent that he having had addressed letter to the Biman seeking permission to withdraw his letter of resignation with in the period of one month and that before acceptance of resignation by the authority, the factum of resignation on the date of acceptance and communication of the fact of acceptance of resignation by the authority being non existent and that he being in service as he was allowed to sign attendance registrar, the authority acted illegally in accepting resignation is of no substance as we have already held respondent resigned with immediate effect upon surrendering one month's pay in lieu of notice period and that no provision of law having been placed before us from the respondent's side that the case of immediate resignation ceased to exist by filing of an application seeking per­mission to withdraw letter of resignation. We are of the view that by filing a letter seeking permission to withdraw letter of resignation, the resignation with immediate effect does not become non-existent nor becomes ineffective. The matter of commu­nication of he acceptance of resignation was a mere formality and routine work and as such the time that passed in between 29th August, 1998 and 16th September, 1998 did in no way kept in hibernation respondent's resignation which he himself intend to be an immediate one.
 
15. The learned Counsel for the respon­dent upon referring to the provision of sec­tion 21 of the General Clauses Act, 1897 tried to develop an argument that it was very much within the competency of the respondent to recall or rescind the resigna­tion and that having had done so prior to the acceptance and communication of the acceptance of the resignation the action of the Biman authority was incompetent one. The respondent is not authorized by law to avail of the provision of section 21 of the General clauses Act in withdrawing or can­celing the letter of resignation, which was of immediate effect.
 
16. The appellant in support of its action argued that respondent in law is not permit­ted to approbate and reprobate or in other wards respondent is estopped from ques­tioning the action of the Biman Authority in the matter of acceptance of his resignation as respondent of his own resigned and there was no scope for withdrawal of letter of res­ignation and that the Biman in its usual course of business has communicated its decision accepting the resignation that was of immediate effect. In this connection the learned Counsel referred us to the case of Bangladesh Parjatan Corporation Vs. Mofizur Rahman reported in 46 DLR (AD) 46. Facts of the said case are somewhat dif­ferent from the facts of the instant one and as such the principle of estoppel that was considered in the reported case not fully applicable to the instant case. In the report­ed case the question of acquiescence as to the order complained of also came up for consideration.
 
17. As the resignation of the respondent was of immediate effect and that the said having became effective from 29th August, 1998, subsequent filing of letter dated 6th September, 1998 seeking permission to withdraw the letter of resignation and that as signing of attendance Register from 9th September 1998 to 14 September 1998 has in no way brought to an end of the matter of resignation that became effective from 29 August, 1998, the High Court Division was in error in observing that with the submis­sion of letter dated 6th September, 1998 and that with the signing of Attendance Registrar from 9th September, 1998 the respondent returned to his duty and conse­quently he being in service, the Biman acted illegally in accepting the letter of res­ignation of the respondent. The High Court Division was also not correct in holding that in the instant case there was no resigna­tion in fact since the respondent did not serve one months notice expressing his will­ingness to resign as requires by Regulation 53(1) of the Regulations. It appears provi­sion in Sub-Regulation 3 of Regulation 53 of the Regulations enabling an employee of respondent's category to resign with imme­diate effect upon surrendering one months salary was not placed from the Bar before the High court Division.
 
In view of the discussion made herein above the appeal is allowed without any order as to costs.
 
Ed.