Government of Bangladesh, represented by the Secretary, Ministry of Civil Aviation and Tourism and another ……………………Respondents
ATM Afzal CJ
Mustafa Kamal J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J
Judgment : June 26th, 1995.
Public Servants (Retirement) Act (XII of 1974)
Section 9 (2)
If a Government servants is retired from service not on consideration of his services record but on consideration of an impartial report submitted by enquiry high Government officials after an open enquiry on an incident of an extremely grave nature, then it is for the Government to decide whether to take disciplinary proceedings against the incident or to retire them in the public interest.
The words “punitive measure” used in the Enquiry Report in paragraphs 8 and 9 are not a lawyers draft, but laymen’s expression. The final Authority who took the decision to retire the appellant was supposed to know that a retirement at all. Reading the enquiry report as a whole we have no doubt in our mind that the Government took an overall view of the basic problems and issues involved in the running of the Civil Aviation Authority as identified by the report within its terms of reference and decided to retire the appellant in the greater interest of providing better administrators in the top hierarchy of the newly-created authority as also to avoid similar incidents in future. We do not think that under the special circumstances of this case it was a colorable exercise of power or a misuse or abuse of power, as urged by the appellant.
Cases Referred to-
Mafizur Rahman Khan vs. Government of Bangladesh 34 DLR (AD) 321; State of Punjab vs Gurdial Singh AIR 1980 (SC) 319; Dr. Nurul Islam vs. Bangladesh 33 DLR (AD) 201; Habibullah Khan vs. Shah Azharuddin Ahmed, 35 DLR (AD) 72; Brij Mohan Singh vs. State of Punjab, AIR 1987 (SC) 948; Baikuntha Nath Das vs. Chief District Medical Officer. Baripada, AIR 1992 (SC) 1020; Union of India vs. ME Reddy, AIR 1980 (SC) 563 and Union of India vs. JN Sinha, AIR 1971 (SC) 40.
Syed Ishtiaq Ahmed, Senior Advocate, instructed by Mr. Serajuddin Ahmed, Advocate?on-Record?For the Appellant.
Abdul Wadud Bhuiyan, Additional Attorney General, (B Hossain, Deputy Attorney General with him) instructed by Md. Sajjadul Huq, Advocate?on-Record ? For Respondent No.1.
Not Represented ?Respondent No.2.
Civil Appeal No.22 of 1994.
(From the Judgment and Order dated 30.8.93 passed by the Administrative Appellate Tribunal in Appeal No 34 of 1988).
Mustafa Kamal J: This appeal by leave by the appellant?petitioner is from the judgment and order dated 30.8.93 passed by the Administrative Appellate Tribunal in Appeal No. 34 of 1988 affirming those of the Administrative Tribunal, Dhaka dated 27.10.88 dismissing the appellant’s AT Case No. 22 of 1988 filed against the order dated 2.1.88 passed under the order of the President retiring him from service under section 9(2) of the Public Servants (Retirement) Act, 1974 (Act XII of 1974), briefly the Act.
2. The appellant was appointed as an Assistant Communication Engineer in the Civil Aviation Department on the 15th March, 1960 and it is his case that by dint of merit he was gradually promoted to the post of Director, Civil Aviation Authority. In 1985 the Government formed a corporate body, namely, Civil Aviation Authority of Bangladesh, by abolishing the Department of Civil Aviation which was purely a Government Department, by Civil Aviation Authority Ordinance, 1985 (Ordinance No. XXXVIII of 1985). About 2,000 employees of the Civil Aviation Department were transferred by the Government to the newly created Authority with the condition that they will be governed by the terms and conditions of service to be framed by the new Authority which had the effect of invalidating their service conditions which they enjoyed as Government servants. They formed a “Samannya Parishad” and launched a movement for withdrawal of the Ordinance of 1985. By Civil Aviation Authority (Amendment) Ordinance, 1985 (Ordinance No. LI of 1985) the transferred employees were given the status of Government servants to be treated as on deputation for the purpose of promotion, pension, retirement benefits, etc. The former Airport Development Agency picked up quarrels with the deputationist officials on flimsy pretexts and on the 18th and 19th February, 1987 a number of Airport Development Agency employees insulted a Senior Officer and a Staff of the former Civil Aviation Department which was duly reported to the Chairman without any result. On the 19th February, 1987 they again started assaulting some deputationist officials on duty which incident infuriated the deputationists who went on a strike which continued upto the 24th February. On the 25th February the strikers resumed their duties. The appellant did not join the strike. He performed his duties throughout the period of strike. By a Gazette Notification dated 1.3.87 the Government constituted a 4?Member Enquiry Committee (a) to determine the reasons of the incident that took place on the 19th February, 1987; (b) to identify the persons responsible for the incident and (c) to enquire into any other matter which the Committee thinks necessary in connection with the incident and to submit its report by 23.3.87. The appellant contended that the enquiry was held secretly and the appellant was never asked to show cause or appear before the Committee nor any charge was framed against him. On the basis of the secret report the Government retired the appellant under section 9(2) of Act XII of 1974 on 2.1.88 malafide and in colourable exercise of power.
3. Respondent No.2 the Chairman, Civil Aviation Authority in its written statement contended that the appellant was retired under section 9(2) of the said Ordinance in the public interest without assigning any reason. He has been given all pensionary and other benefits and the order was not passed as a measure of punishment and, as such, it was not challengeable.
4. Both the two Tribunals below on perusal of the synopsis of the inquiry report annexed by the respondent held that there were enough materials before the President for his satisfaction that in the public interest the appellant should be retired from service. The appellant failed to prove his case of malafide, the Appellate Tribunal held.
5. Leave was granted to consider the appellant’s submission that the appellant may not have materials to prove mala fide, as such, but the Appellate Tribunal was not justified in its views as to “public interest” within the meaning of section 9 (2) of the Act which requires to be decided upon an interpretation of the same as made by this Court in the case of Mafizur Rahman Khan vs. Government of Bangladesh 34 DLR (AD) 321. There being no material on record before the Government except the secret report of the Enquiry Committee which the appellant had no occasion to controvert the order of retirement cannot be justified as to have been passed in the public interest on the principles laid down in the said case. In any event the exercise of authority on the basis of the secret report alone should be held to be a colourable exercise of power inasmuch as Courts abhor secrecy and consider such act unfair.
6. Syed Ishtiaq Ahmed, learned Counsel for the appellant, has drawn our attention to paragraphs 8 and 9 of the Synopsis of the Enquiry Report as follows:
“8. Jahara ei andoloner abong kormobiritite netritto diyache abong andolon kormobiroti shongothon koriyache abong dayitto palone bartho hoyache tader birudhe procholito bidhan onujayi shastimulok babostha grohon kora proyojon. boliya protiyoman hoy. Jahara uddeshe pronodito baktider prorochonay bivranto hoya karjobirotite onshogrohon koriyache tahader shonkha 76. Ehader odhikansho e thitio cothurtho srenir sholpo betonvogi kormochari. Bapok oshontosh shisti hoyber uddeshe ehader beton korton kora shomichin hoybe na. amotobosthay nimne bordhito prostab shomuho shodoy bibechoner jonno uposthapon kora hoylo.
(ka) Nimnolikhito kormocharibirdo jahara andoloner netritto diyache othocho 25 shal charuri purno koriyache tahadigoke gonosharthe 1978 shoner oboshor grohon ainer 9 no dharer 2 no upodhara onujayi oboshor prodan kora jayte pare.
1. Jonab Abu Taleb, Porichalok.
“9. Ullekhito shastimulok babostha grohon kora hoyle shonslisto kormokorte o kormochari abong tahader shomorthokder modhe kichu oshuvo protikhier shomvabona ashiker kora jay na. Natritto bartho abong shongothonkarider punoray andolon kormo biroti amongki nashokotamulok karjokolape lipto hower o shopmvabona rohiache. aheno shomvabona protikul poristhiti mukabeler jonno kortipokhoke ekti contingency plan purbanne prostut koriya rakhite hoybe. Proyojonbodhe purber nay biman bahini o policer shohayota grohon kora jayte pare.
7. Mr. Ahmed submits that paragraphs 8 and 9 of the Synopsis of the Enquiry Report were submitted to the President for approval which the President did, resulting in the impugned order of retirement.
8. On a close reading of the said paragraphs, Mr. Ahmed submits, it is crystal clear that the appellant was retired not because his entire unblemished service record was taken into consideration or because his efficiency was found to be impaired or because the Government wanted to infuse new blood into the administration or because he was found to be unsuitable for his post, but because a “punitive measure” has to be taken by getting rid of him by way of retirement thereby avoiding a disciplinary proceeding which would have given him a chance to explain his position and clear his name. The impugned order of retirement contains no stigma against the appellant but the materials furnished by the respondent, namely, the synopsis of the Enquiry Report, which formed the basis of the action taken against him reveals clearly that recourse to retirement was taken as an alternative “punitive measure” and not on a subjective evaluation of the appellant’s service record. He then relies upon the following observations of this Division in the case of Mofizur Rahman Khan vs. Government of Bangladesh 34 DLR (AD) 321:
“For, even in a case where retirement is made under the amended law and the order expressly shows that it has been made in the public interest, yet the Court shall have power to see whether the order is in colourable exercise of power or is malafide or whether it has been made by person by whom it was purportedly made, or the person who made it had authority or jurisdiction to make the order.”
9. The minimum, Mr. Ahmed submits, that the Government should have done is to go through the service record of the appellant and find out whether the appellant was still useful in public service, but to take a unilateral action against him on the basis of a secret report which was not even made known to him and in which finding of guilt has been made against him behind his back is tantamount to punishment in the garb of retirement and is a colourable exercise of power having been passed for a collateral purpose.
10. Mr. Abdul Wadud Bhuiyan, learned Additional Attorney?General on behalf of the respondent submits, on the other hand, that colourable exercise of power, in the words of VR Krishna Iyer, J in the case of State of Punjab vs. Gurdial Singh AIR 1980 (SC) 319 is as follows:
“Pithily put bad faith which invalidates the exercise of power?sometimes called colourable exercise or fraud on power and often?times overlaps motives, passions and satisfactions?is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion”.
11. He submits that in the facts of the present case from a perusal of the Enquiry Report as a whole it cannot be said that the power was exercised to attain a goal different from the one for which the power was entrusted.?The impugned order is therefore not a colourable exercise of power, he submits.
12. The provision of retiring a Government servant before the age of superannuation after an employee has completed a reasonably long period of service was there in the Fundamental Rule 566) in British India. President Order No.14 of 1972 fixed the age of retirement of “public servant, meaning, inter alia, Government servants, at 55 years. By Public Servants (Retirement) Act, 1974 the age of superannuation was fixed at 57 and section 9(l) made a provision for optional retirement, to be exercised by the “public servant” after completion of 25 years of service and section 9(2) empowered the Government to retire from service a “public servant” who has completed 25 years of service “without assigning any reason”.
13. In the case of Dr. Nurul Islam vs. Bangladesh 33 DLR (AD) 201, it was held that in the absence of a minimum guideline or principle as to how the Government’s power to retire a person should be exercised, section 9(2) is ultra vires Articles 27, 29 and 135 of the Constitution. By an amendment, Ordinance No. VI of 1981 promulgated on 28.7.91 section 9(2) was amended with retrospective effect providing that the Government may retire a public servant from service at any time after be has completed 25 years of service “in the public interest”.
14. This retrospective amendment was found to be valid by this Court in the case of Mofizur Rahman Khan vs. Government of Bangladesh, 34 DLR (AD) 321 but it was observed that even after this amendment the Court shall have power to see whether the order is in colourable exercise of power or is malafide or whether it has been made by person by whom it was purportedly made or the person who made it had authority or jurisdiction to make the order. In fact, the retirement of respondent Borhanuddin Ahmed in another appeal in the same case under the unamended law, sought to be validated by the amended law, was held to be illegal as there was nothing on record to show that the order of retirement was passed in the public interest. This judgment was passed on March 10, 1982.
15. On the very next day, on March 11, 1982, in the case of Habibullah Khan vs. Shah Azharuddin Ahmed, 35 DLR (AD) 72, this Division by a majority judgment dismissed the Government’s appeal against an order passed by the High Court Division declaring the order of retirement of the respondent under section 9(2) of the Act as illegal, on the ground that the Government’s affidavit-in?opposition in the High Court Division itself claimed that section 9(2) “was applied in order to impose exemplary punishment upon the petitioner” and that even in the absence of any proof of malafide alleged by the writ petitioner, the order of retirement was not otherwise sustainable on the materials on record. The two minority judgments of Fazle Munim and Shahabuddin Ahmed, JJ, (as their Lordships then were), in allowing the Government’s appeal, took two mutually different views as to the extent of the Government’s discretion in exercising the power under section 9(2). Fazle Munim, J opined that an order under section 9(2) is justifiable, and if after presentation of materials by the Government, the Court is of the opinion that the impugned order has not been passed in the public interest, it can declare it to be so. Shahabuddin Ahmed, J [who is the author?Judge of the case reported in 34 DLR (AD) 321], opined that it is the Government who is the better judge to decide whether a Government servant should be retired in the public interest under section 9(2). It is not possible, his Lordship held, for a Court to sit on judgment over the government’s action if from the facts disclosed it does not appear that the government’s action was malafide or colourable exercise of power. Subject to these limitations, the discretion of the government in such a matter is absolute, his Lordship concluded.
16. The principle enunciated in the case of Mafizur Rahman Khan vs. Government of Bangladesh, 34 DLR (AD) 321, relied upon by Mr. Ahmed, has not been differed from or dissented to in the majority judgment of the later case, that of Habibullah Khan vs. Shah Azharuddin Ahmed, 35 DLR (A D) 72.
17. In India various State Governments in implementing the provision of law in pari materia with our law, have issued, from time to time, various guidelines for consideration of the Government or the Review Committee as to whether a Government servant should be retired or not after he has put in the required number of years in Government service. The cases from the Indian jurisdiction are indeed cases as to whether the guidelines have been followed or not and often, with respect, there are conflicting decisions of the Indian Supreme Court as to the interpretation of these guidelines. For example, in the case of Brij Mohan Singh vs. State of Punjab. AIR 1987 (SC) 948, referred to by Mr. Ahmed, it was held that only the entries of last 10 years in the annual confidential character roll should be seen and if there are any adverse remarks in the entries of last 10 years they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. In a later case, Baikuntha Nath Das vs. Chief District Medical Officer. Baripada, AIR 1992 (SC) 1020, the Indian Supreme Court held that these two propositions would give rise to practical difficulties and therefore it followed its two other contrary decisions, namely, the cases of Union of India vs. ME Reddy, AIR 1980 (SC) 563 and Union of India vs. JN Sinha, AIR 1971 (SC) 40.
18. What we have to remember in applying the Indian decisions on cases of this nature is that while the various State Governments of India have laid down certain guidelines to determine on what criterion or criteria a Government servant should be retired, the Bangladesh law has stopped at saying merely that the Government can pass the order of retirement “in the public interest”. Those four words are the only guidelines in our law, at least upto now. Nor is there anything in the Public Servants (Retirement) Rules, 1975 to throw any light as to what are the criterion or criteria in determining “public interest”. A Government servant’s entire service record may be absolutely without blemish but in considering his further suitability in Government service, it may not be necessary to consider his service record. A single grave and serious incident of far?reaching consequence reflecting upon his further usefulness may be enough for the satisfaction of the Government that his continued utility in Government service is over, if he has crossed the 25?year limit.
19. We have perused the entire synopsis as a whole, which it should be, including paragraphs 8 and 9 of the report, as the two Tribunals below have done. It is stated therein, which is not disputed, that, the radio telephone machineries of the Airport were made unserviceable by a section of the deputationists and that there was a complete stoppage of flights in and out of the country for six days owing to the strike which necessitated the intervention of the then President in the matter. The enquiry was made after a Gazette Notification. It was, therefore, not a secret enquiry as alleged by the appellant. It was a public and open enquiry. The persons who were appointed to conduct the enquiry were all responsible high officials of the Government against whom no complaint has been made by the appellant. The full Enquiry Report has been made available to us by the learned Additional Attorney?General and it shows that far from keeping the appellant in the dark, the appellant as Director of the Authority was interviewed and questioned by the Enquiry Committee which also considered the appellant’s service career. The Committee found that the appellant was the Chairman of the “Samannya Parishad” which was the originator of repeated agitations and movements. The report was kept secret obviously because the Enquiry Committee was dealing with a serious incident in a sensitive organisation in which a large number of employees were involved. Also the Capital’s Airport is as much a concern of the Civil Aviation Authority as of the Bangladesh Air Force and therefore the Report deserved a secret status. The Committee found that the top officers of the Civil Aviation Authority who were deputationists had risen from the ranks and that they were found to be ill?equipped to meet the challenges of discipline and organisation of the newly?created Authority and, on top of it, they had led and organised not only the incident in question but also some other earlier movements and succeeded in realising some undue benefits, including withdrawal of a departmental proceeding against the appellant through agitation. The Report also suggests some administrative re?organisation. It was then upto the Government to decide whether in the face of this report it should retire the appellant or institute disciplinary proceeding against him under the Service Rules which the Government earlier made an attempt to do, but failed because of agitation instigated by the appellant. If a Government servant is retired from service not on consideration of his service record but on consideration of an impartial report submitted by impartial high Government officials after an open enquiry on an incident of an extremely grave nature, then it is for the Government to decide whether to take disciplinary proceedings against the leading lights of the incident or to retire them in the public interest. The words “punitive measure” used in the Enquiry Report in paragraphs 8 and 9 are not a lawyers’ draft, but laymen’s expression. The final Authority who took the decision to retire the appellant was supposed to know that a retirement under section 9(2) of the Act is not a punishment at all. Reading the enquiry report as a whole we have no doubt in our mind that the Government took an overall view of the basic problems and issues involved in the running of the Civil Aviation Authority as identified by the report within its terms of reference and decided to retire the appellant in the greater interest of providing better administrators in the top hierarchy of the newly?created authority as also to avoid similar incidents in future. We do not think that under the special circumstances of this case it was a colourable exercise of power or a misuse or abuse of power, as urged by the appellant.
20. In that view of the matter we do not find any ground for interference.
The appeal is dismissed without costs.
Source : 47 DLR (AD) (1995) 138.