Abdur Rashid Sarker Vs. Government of Bangladesh and others.

Abdur Rashid Sarker

Vs.

Government of Bangladesh and others 

Supreme Court

Appellate Division

(Civil)

JUSTICES

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdur Rouf J

Md. Ismailuddin Sarker J

Judgment : January 11th, 1996.

Constitution (Seventh Amendment) Act (I of 1986)

Section 3

The order of compulsory retirement passed by the then Chief Martial Law Administrator is not liable to be challenged before any Court or Tribunal as the same was passed when Martial Law was in force.

Cases Referred To:

Mujibur Rahman, Ex-Collector of Customs vs. Government of Bangladesh 13 BLD (AD) 1993 54=45 DLR (AD) 98.

Lawyers:

Md. Nawab Ali, Advocate-on-Record — For the Petitioner.

Not represented— The Respondents.

Civil Petition for Leave to Appeal No. 477 of 1995.

(From the Judgement and order dated 20-7-95 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 31 of 1994).

JUDGEMENT:

     Latifur Rahman J: Petitioner Abdur Rashid Sarker who was an Executive Engineer in Public Works Department, Ministry of Works was compulsorily retired from his service with all pension benefits by order dated 2-3-86. He challenged this order of compulsory retirement as illegal and not tenable in law before the Administrative Tribunal, Dhaka in Administrative Tribunal Case No. 148 of 1989. The said Administrative Tribunal case was dismissed on 14-2-92. Against that order he preferred an appeal, being Administrative Appellate Tribunal Appeal No. 31 of 1994 and the same was also dismissed by the Appellate Tribunal. Against that impugned judgment the present leave petition has been filed by the petitioner.

2. The petitioner was convicted by Special Martial Law Court No. 8 at Jessore in Case No. 14 of 1982 under 11/9 Martial Law Regulations on 12-1-84 and was sentenced to suffer RI for two years and to pay a fine of taka two lakh, in default to suffer RI for 3 years. In Review the CMLA by his order dated 13-4-84 confirmed the sentence of fine and remitted the sentence of imprisonment. Subsequently, the President and Chief Martial Law Administrator by his order dated 2-3-86 retired the petitioner from his service with all pensionary benefits.

3. The respondent’s main contention is that the order of compulsory retirement passed by the CMLA is not liable to be challenged before any Court or tribunal and that there was no illegality in the impugned order. The review petition has been rightly rejected after due consideration of all the material facts.

4. Mr. Md. Nawab Ali, learned Advocate- On-Record appearing for the petitioner, submits that the review application having been disposed of after lifting of the Martial Law the same should have been taken into consideration by the Administrative Appellate Tribunal in deciding the case.

5. The Martial Law was promulgated on 24-3-82 and the petitioner was compulsory retired from his service on 2-3-86 and, as such, all actions were taken during the continuance of the martial law. The petitioner filed the review petition on 7-4-1986 and the same was rejected on 13-3-89. In the case of Majibur Rahman, Ex-Collector of Customs vs. Government of Bangladesh reported in 13 BLD (AD) (1993) 54, it has been held by this Division that all actions of Martial Law Authorities are protected by the 7th Amendment of the Constitution. In that view of the matter, the rejection of the review petition does not materially affect the position as the impugned order of compulsory retirement stands as the same was passed when Martial Law was in force. Hence there is no illegality in the impugned judgment.

The petition is dismissed.

Ed.

Source : 48 DLR (AD) (1996) 99 .

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