Bangladesh Bank and others (Appellants)
Vs.
Mohammad Abdul Mannan (Respondent) (In Civil Appeal No. 42 of 1992)
Mohammad Abdul Mannan (Appellant)
Vs.
Bangladesh Bank and others ( Respondents) (In Civil Appeal No. 79 of 1992)
Supreme Court
Appellate Division
(Civil)
JUSTICES
Shahabuddin Ahmed CJ
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
Judgment : July 12, 1993.
Cases Referred to-
Abdul Hannan Sikder and Ershad Ali Vs. Bangladesh Bank 31 DLR (AD) 298; Abdul Majid Vs. Mushafee Ahmed 17 DLR (SC) 63; Gholam. Sarwar Vs. Pakistan PLD (1962) SC 142; Dr Nurul Islam Vs. Bangladesh 33 DLR (AD) 201; PL Dhingra Vs. Union of India AIR 1958 (SC) 36 & BSI Corporation Vs. Mahbub Hussain 29 DLR (SC) 41; West Bengal State Electricity Board and others Vs. Desh Bandhu Ghose, AIR 1985 (SC) 722; 0 P Bhandari Vs. Indian Tourism Development Corporation, AIR 1987 (SC) I 11; Central Inland Transport Corporation Vs. Brojanath, AIR 1986 (SC) 1571 and MK Agarwal Vs. Gurgaon Gramin Bank, AIR 1988 (SC) 286.
Lawyers:
TH Khan, Senior Advocate, Supreme Court (MA Wahab Miah, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record-For the Appellants.
Abdur Rab Chowdhury, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record – For the Respondent (in CA 42 of 1992).
Abdur Rab Chowdhury, Advocate, instructed by Shahabuddin Ahmad, Advocate-on-Record – For the Appellant (in CA 79 of 1992).
TH Khan, Senior Advocate, (MA Wahab Miah, Advocate, with him), instructed by Md. Aftab Hossain, Advocate-on-Record – For the Respondents (in CA 79 of 1992).
Civil Appeals Nos. 42 and 79 of 1992.
(From the judgment and order dated 25th June, 1992 passed by the Administrative Appellate Tribunal Case No. 71 of 1991)
JUDGEMENT
Shahabuddin Ahmed CJ.- These two appeals, one filed by an employer and the other by an employee, are directed against an order of the Administrative Appellate Tribunal, dated 25 June 1992, declaring void an order of the employer terminating the service of the employee by paying three months pay in lieu of three months notice.
2. The employer is Bangladesh Bank and the employee, Abdul Mannan, is the then General Manager in the Engineering Department of the Bank. At the material time the employee was a confirmed class I officer of the Bank having to his credit about 8 years service. The Board of Directors of the Bank, by an order dated 29 December 1988 terminated his service under the Bank’s Staff Regulation No. 12 (ii). He challenged this order by a Writ Petition before the High Court Division which, after issuing a Rule thereon and hearing the parties dismissed the Writ Petition on the ground that Writ Jurisdiction was not attracted in this case as it was exclusively within the jurisdiction of the Administrative Tribunal, established under the Administrative Tribunal Act, 1980 as amended up to date. The employee?he is Respondent in Civil Appeal No. 42 of 1992 and Appellant in Civil Appeal No. 79 of 1992 then filed an application before the Administrative Tribunal (AT Case No. 350 of 1989) challenging his termination alleging, among other things, that the termination was not a termination simpliciter, but it was a punishment in disguise, such as removal/dismissal from service, without giving him an opportunity to defend himself. The Tribunal after hearing the parties rejected this contention and dismissed his application by an order dated 29 August, 1991. He challenged the order of the Tribunal by filing an appeal (Appeal No. 71 of 1991) before the Administrative Appellate Tribunal which accepted his contention and found that the order of termination was a punishment in disguise and that since the order of termination was made on consideration of certain allegations against the employee, his case attracted the provision of the Bank’s Regulation No. 22 which provided for giving the employee a pre?hearing but that having not been done the order of termination was illegal and void.
3. The Bank obtained leave from us and filed Civil Appeal No. 42 of 1992 in which the main contention is that the order of termination is in fact a simple order for termination without giving any stigma to the employee and that Regulation No. 22 is not attracted to his case as this Regulation is intended for awarding any punishment to an employee and that the Appellate Tribunal misinterpreted this Regulation and wrongly interfered with die order of termination.
4. The employee, though he got relief in his appeal before the Appellate Tribunal, obtained leave from us and filed Civil Appeal No. 79 of 1992 challenging two other decisions of the Appellate Tribunal which went against him. One is that the Administrative Appellate Tribunal wrongly rejected his contention that the Board of Directors of the Bank, which had made the impugned order of termination was not properly constituted and the other is that the Appellate Tribunal misconstrued Regulation 12(ii), which, according to him, is itself violative of Article 27 of the Constitution of Bangladesh and also it is inconsistent with the provisions of the Services (Re?organisation and Conditions) Act, 1975, as well as the Public Servants Retirement Act, 1974.
5. Just at the time, of hearing of these appeals together, the Bangladesh Bank, appellant in Civil Appeal No. 42 of 1992, filed an application for permission to urge an additional ground as to limitation which was not specifically taken in their Leave Petition and the connected Concise, Statement, nor was it ?seriously urged during the hearing of the appeal before the Appellate Tribunal. The limitation spoken of related to the application of the employee, that is, AT Case No. 350 of 1991 before the Administrative Tribunal. The application was to be filed within six months from the date of the impugned order of termination but it was filed about one year thereafter. This question was raised before the Tribunal, which, however, rejected the Bank’s objection on the ground that the period spent by the petitioner?employee in seeking remedy in a wrong forum, such as, by filing the Writ Petition was to be excluded in computing the period of limitation, particularly when acts and decisions of Bangladesh Bank relating to service matters were not within the purview of the Administrative Tribunal when it was established in 1980, but were brought within the Tribunal’s jurisdiction by an Amendment made in 1984. Mr. TH Khan, learned Counsel for the applicant?Bank, has tried to argue that the Administrative Tribunal Act being a special law, the provisions of section 14 of the Limitation Act for the purpose of computation of the period of limitation are not attracted to this case. Section 14 of the Limitation Act provides that in computing the period of limitation prescribed for a suit or an application, the time during which the plaintiff has been “prosecuting in good faith and with due diligence another civil proceeding” in a Court having no jurisdiction shall be excluded. Section 29 of this Act says that the provisions contained in section 4, sections 9?18 and section 22 shall apply to a case under a special or local law “only in so far as, and to the extent to which they arc not expressly excluded by such Special or Local Law”. Before considering whether the provision in section 14 are expressly excluded by the Administrative Tribunal Act it should be seen whether the previous proceeding (the Writ Petition) before the High Court Division was started in good faith. The appellant?bank which was respondent before the Tribunal, did not say that the proceeding under Writ Jurisdiction was not taken by the employee in good faith but was taken for the purpose of killing time. Before the Administrative Appellate Tribunal the ground of limitation was not urged and in this Court, as stated by the bank, appellant itself, it was not taken as a ground either in the Leave Petition or in the Concise Statement and as such leave was not granted to this effect. In the circumstances of this case we do not find any good reason to take up for consideration this new ground.
6. We now find three questions before us which call for determination in these two appeals which arose from the same judgment and order of the Administrative Appellate Tribunal. One question is whether the Administrative Appellate Tribunal is well?founded in law and fact in holding that the impugned termination is a ‘punishment in disguise’. The said Tribunal took the view that as there were some allegations against the employee his case had attracted the provisions of Regulation 22. This Regulation provides for a show?cause notice upon an employee if he is sought to be punished. Regulation 12(i) gives option to an employee to leave or discontinue his service by giving three months notice in writing; and Regulation 12(ii) gives similar option to the Bank to determine the service of any employee in Class I and above, by giving him three months’ notice or three months pay in lieu thereof. Such termination is, in the ordinary language, known as termination simpliciter, without entailing any stigma or punishment. Regulation 22 gives the procedure for awarding punishment to an employee on definite charges. It provides (fiat any employee who commits a breach of the Regulations or who displays negligence, inefficiency, or indolence or who knowingly does anything detrimental to the interest of the Bank or who commits breach of’ discipline or is guilty of any other misconduct, etc., shall be liable to penalties, the highest penalty being dismissal from service. The impugned order of termination dated 29 December 1988 shows that with the approval of the Board of Directors this employee, Mr. Abdul Mannan, Managing Director of the Bank, has been “released” from his service under Regulation 12 (ii) and that he is entitled to three months’ pay in lieu of three months notice, The word “released” sic actually means termination of his service and this order is within Sour corners of Regulation 12 (ii). It does not contain stigma, nor does it show that the employee’s service has been terminated because of any breach of discipline or misconduct. It is also not the case of this employee that his termination has been made with any malafide intention. How, then, he can allege that it is a punishment in disguise?
7. Before the Administrative Appellate Tribunal it was urged that a resolution adopted in a meeting of the Board of Directors referred to certain allegations including a report of the Anti?Corruption against this employee and that after considering all aspects of the matter the Board decided that he should be got rid of under Regulation 12. No copy of this resolution was forwarded to this employee to whom only the order of termination, as stated above, was forwarded. How could he know of the resolution and how could he procure a copy thereof. In dealing with the case of any employee the Board of Directors may take into consideration any relevant matter including allegations against him and it is for the Board to decide whether the employee concerned should be punished or should be simply terminated. Even if the conduct of an employee appears to be such a one which calls for punishment, it is wholly for the Board to decide whether it will proceed to punish him following the procedure laid down in Regulation 22 or to adopt the simple procedure for termination by notice. It is not for any Court to give direction to the employer whenever there is any allegation against an employee, that the employer should proceed against the employee under Regulation 22. If the order of termination, on the face of it, does not entail any stigma or does not refer to any allegations, the termination is simpliciter. Mr. Abdur Rab Chowdhury, learned Advocate for the employee?respondent, has argued that the resolution of the Board is the very foundation of the order of termination and when the resolution referred to certain allegations against the respondent he was liable to be proceeded against under Regulation 22. We do not find any substance in this contention, for the employee is concerned only with the order of termination and he is not supposed to intrude into the office?record or proceedings of any meeting of the Board of Directors. In a previous case of two employees of this very Bank, Abdul Hannan Sikder and Ershad Ali Vs. Bangladesh Bank 31 DLR (AD) 298, a similar question was considered. Those employees were terminated under Regulation 12 (ii) and it was held by this Court that when sub-regulations (i) and (ii) of this Regulation are read together they clearly show that those two terminations of service cannot be termed ‘punishment’ and, as such, no notice need be served upon them for passing the orders of’ termination. It was further held that termination simpliciter not being a punishment which is contemplated in Regulation 22 the question of giving notice or a pre?hearing does not arise. In such a case there is no scope for making any grievance on the ground of violation of the principle of natural justice either. In the instant case the Administrative Tribunal is found to have correctly applied the principle laid down in this previous decision.
8. Mr. Abdur Rab Chowdhury has, in this connection, referred to a number of cases to seek support to his contention that terminations of service by simply giving a notice of two or three months or the pay in lieu thereof were held illegal and void and that in those cases the impugned terminations of service were held to be punishment without giving show cause notice. In the case of Abdul Majid Vs. Mushafee Ahmed, 17 DLR (SC) 63 the appellant held a civil post in the Ministry of Defence; his service was terminated by two months’ notice in terms of the order of’ his appointment as 11 temporary”. The Ministry sought to defend the termination relying on Article 179 of the Constitution of 1962 which came into force from June 1962. The appellant had been in his service from 1954, that is, from before the coining into force of Article 179 and as such it was held that this Article providing for “temporary service” of the Republic was not applicable to the appellant’s case; secondly, it was found that the appellant being in the service of Pakistan (Government), his case was governed by Article 177 of the Constitution which like Article 181 of the Constitution of 1956 and section 240 (3) of the Government of India Act, 1935, protected a person against punishment by way of dismissal, removal and reduction in rank, without show?cause notice, and that since the provision in Article 177 of the Constitution was not followed in his case, the termination which was in fact removal from service was unconstitutional and void. In the case, Gholam Sarwar Vs. Pakistan, PLD 1962 (SC) 142, the appellant was also found to be a government servant in service of Pakistan Railway. His appointment was temporary in terms of the Agreement of his employment. After 25 years of continuous service, he was terminated by one month’s notice served in terms of his employment. The Supreme Court held that though his service was termed “temporary’, his service was for indefinite duration and against a permanent post and as such, it ripened into a permanent post and secondly, his service was governed by section 240(3) of the Government of India Act, 1935 and, as such, his service could not have been terminated except following the procedure which requires show?cause notice. In the case Dr. Nurul Islam Vs. Bangladesh, 33 DLR (AD) 201, the Government’s power to retire a public servant on completion of 25 years of service without assigning any reason or giving any show cause notice was held by the majority decision to be capable of being used arbitrarily in the absence of any guide?line of exercising it; further, it was held that the impugned order of retirement was illegal and void. In that case, it should be noted, protection of Article 135 of the Constitution of Bangladesh was available to the appellant. Mr. Abdur Rab Chowdhury also referred to the dissenting view expressed by Bose J of the Indian Supreme Court in PL Dhingra Vs. Union of India, AIR 1958 (SC), 36. According to that view, it does not matter whether an action is termed ‘termination’ of service or “dismissal/ removal ” from service when the consequence thereof is the same. “The real hurt does not lie in any of those things but in the consequences that follow……. and the protection of Article 311 are not against harsh words but against hard flows”. In the case of BSI Corporation Vs. Mahabub Hussain, 29 DLR (SC) 41 some important questions relating to terms and conditions of service under Statutory Corporations were considered. It was found that provisions of Article 135 of the Constitution of 1972 cannot be invoked by the employees of such Corporations, as they stand outside the class of employees referred to therein as “persons in the service of the Republic”; nevertheless, these employees are not governed by the law of master and servants either; they will be governed by the rules and regulations of their Corporations in respect of conditions of service and in the absence of such service rules or of any Agreement of employment their termination of service shall be governed by the principles of natural justice which require a pre?hearing. None of these decisions, I find, helps Mr. Abdur Rab Chowdhury in his contention that the respondent’s termination by paying notice Pay is illegal or invalid.
9. Next two questions have been raised by the employee in his appeal Civil Appeal No. 79 of 1992. One question is, whether the Board of Directors of the Bangladesh Bank, on whose resolution his service was terminated, was itself not properly constituted according to the Bank’s (Staff) Regulations. These Regulations provide for constitution of a Central Board of Directors, but no such Central Board has been constituted and the impugned decision has been taken by Board of Directors instead of Central Board of Directors. It may be mentioned here that after the emergence of Bangladesh as an Independent State the Bangladesh Bank Order……Presidents Order No. 127 of 1972……was made to establish a Central Bank in Bangladesh. Article 2(e) thereof says that ‘Board’ means the Board of Directors of the Bank i.e. Bangladesh Bank. By Article 84 thereof, the State Bank Act, 1956 under which the State Bank of Pakistan had been created was repealed, but any rules and regulations made under the State Bank Act, 1956 11 shall continue in force and be deemed to have been made under the corresponding provisions of this Order (President’s Order No. 127 of 1972)”. The Bank (Staff) Regulations were made by the State Bank of Pakistan and were in force when the Bangladesh Bank Order was promulgated in October 1972 and by Article 84 of President’s Order 127 of 1972 these Regulations became Bangladesh Bank (Staff) Regulations. In the Bangladesh Bank’s Order (Presidents Order 127 of 1972) there is no provision for creating 4ny Central Board of Directors, but there shall be a ‘Board of Directors’ of Bangladesh Bank and it is this Board of Directors which has been vested with all the powers which are required to be exercised by the Bank (Staff) Regulations. It therefore cannot be said that the Board of Directors which had taken the decision for the appellant’s termination was not properly constituted. Mr. Abdur Rab Chowdhury has argued that the decision to terminate the appellant’s service required approval of the Government and no such approval having been obtained the impugned termination is illegal. Regulation 2, in its proviso, requires Government’s approval to any action in respect of officers mentioned in sub-regulation (iii). These officers are in senior officers of the Bank whose salaries and allowances are determined by, or require the approval of the Government. There is no evidence that the appellant fell within this class of officers. In view of the provisions of law we do not find any substance in the contention of Mr. Abdur Rab Chowdhury that the Board of Directors was not properly constituted or that Government’s approval was necessary for the impugned termination.
10. The third and last question raised in this appeal and vehemently argued by Mr. Abdur Rab Chowdhury relates to the vires of Regulation 12 (ii) itself. He has pointed out that the appellant is a ‘public servant’ within the meaning of section 2(d) of Public Servants Retirement Act, 1974 (Act XII of 1974), and as such he is entitled to equal treatment with all other public servants in respect of terms and conditions of service under a statutory body, like the Bangladesh Bank. Regulation 12 (ii) of the Bank (Staff) Regulations, which provides for termination of a permanent employee like the appellant by giving him three months’ notice or three months’ pay in lieu thereof is violative of the equality-clause of our Constitution namely, Article 27. This Article provides that all citizens are equal before law and are entitled to equal protection of law. Learned Advocate further argues that this Regulation is also violative of the Public Servants Retirement Act, 1974 and the Services (Re?organisation and Conditions) Act, 1975, which provides for uniform treatment of all public servants in respect of their pay, allowances and service conditions.
11. As to the alleged violation of Article 27 of the Constitution, contention of the learned Advocate is that though the appellant is a public servant, he has been discriminated against by Regulation 12 (ii) in respect of his service condition, and as such it is in direct conflict with Art 27 of the Constitution. He has sought support to his contention from some decisions of the Indian Supreme Court, particularly in the cases of West Bengal State Electricity Board and others Vs. Desh Bandhu Ghose, AIR 1985 (SC) 722; 0 P Bhandari Vs. Indian Tourism Development Corporation, AIR 1987 (SC) III; Central Inland Transport Corporation Vs. Brojanath, AIR 1986 (SC) 1571 and MK Agarwal Vs. Gurgaon Gramin Bank, AIR 1988 (SC) 286. In all these cases some employees in their respective Statutory Corporations were terminated under their Corporations’ Service Rules which provide for termination of service by giving three months’ notice or three months’ pay in lieu thereof. These Rules for termination were challenged under writ jurisdiction on the ground that the Rules violated the equality clause as to the Fundamental Right guaranteed under Article 14 of the Indian Constitution. In all these cases the Indian Supreme Court held that the Rules authorising termination of service of employees of the Statutory Corporations, which arc “instrumentalities of the State” violated Article 14 of the Constitution. In some of the cases this provision for termination was criticised in strong terms, such as, arbitrary, highly discriminatory, Henry VIII orders, etc.
12. Mr. TH Khan, learned Counsel for the respondent, Bangladesh Bank, has tried to counter these Indian decisions taking shelter under Article 47(2) of the Bangladesh Constitution which gave a blanket cover to, and protected from any attack on the ground of discrimination, of certain laws including the Bangladesh Bank Order President’s Order No. 127 of 1972. Article 47 (2) provides that notwithstanding anything in this Constitution, the laws specified in the First Schedule shall continue to have full force and effect, and no provision of any such law, nor anything done under the authority of such law shall be deemed void on the ground of inconsistency with any provision of the Constitution. Mr. TH Khan has argued that the Bangladesh Bank (Staff) Regulations including Regulation 12(ii) being “deemed to have been made under the Bangladesh Bank Order” are also protected from attack on the ground that they are inconsistent with, or repugnant to Article 27. Mr. Abdur Rab Chowdhury, while agreeing that the Bangladesh Bank Order is a protected law, contends that the Regulations made thereunder are not so protected. Mr. TH Khan has, however, referred to the definition of ‘law’ given in Article 152 of the Constitution and has argued that according to the definition of law it includes, among other things, rules and regulations made under it, We find substance in this contention and hold that the Bangladesh Bank (Staff) Regulations are protected legislation like its parent law, namely, the Bangladesh Bank Order. As such the constitutionality of these Regulations including Regulation 12 (ii) stands beyond any question; consequently, the provision in Reg. 12 (ii) cannot be declared void being inconsistent, if at all, with the equality clause contemplated in Article. 27 of the Constitution.
13. In this connection reference maybe made to our previous decision in the case of the Parjatan Corporation 43 DLR (AD) 164. Service Rules including the Rule for termination of service of the Corporation’s employees by three months’ notice or three months’ pay in lieu thereof were made under the Bangladesh Parjatan Corporation Order?the President’s Order No. 143 of 1972. This Order was not a protected ‘law’ under Article 47 of the Constitution and, as such, the question of its immunity from any attack on the ground of violation of any fundamental right could not arise. Certain orders of termination of service passed by the Parjatan Corporation were challenged on different grounds but no ground as to inconsistency with Article 27 was taken. After the decision was given in that case an application for review of our judgment was filed by an Advocate other than one who had appeared before us in the appeal by special leave. There in the Review petition, the question as to vires of the Corporation’s Service Rules was raised and it was argued that the said Rules were violative of Article 27 of the Constitution. In disposing of the Review Petition we found that the orders of termination had been challenged on the grounds that the employee’s appellants were entitled to protection of Article 135 of the Constitution, that the principle of natural justice was not followed and that the termination orders were prompted by malafide intention of the employer. All these grounds were rejected upon consideration of the merit of the appeal. But when in the Review application an important question relating to interpretation of the Constitution, in particular, Article 27, was raised for the first time we took the view that “it is altogether a new ground which cannot be subject of review under Article 105 of the Constitution, read with the provisions of the relevant law namely, Order 47 of the Civil Procedure Code. We, however, expressed our view that the provision for termination of employees of a Statutory Corporation by simply giving him three months’ notice or three months’ pay is a harsh rule capable of being used indiscriminately and that such rule should be re?examined by the authorities concerned, particularly the Corporation and the Government so as to amend the Rules providing for giving at least gratuity to a terminated employee according to the length of his service. In the instant case, as we have pointed out, Regulation 12, like its parent law, being a protected legislation the provision for termination by notice is not void though it may be inconsistent with any fundamental right.
14. Now coming to Act XXXII of 1975 and Act XII of 1974, we have heard at length the argument advanced by Mr. Abdur Rab Chowdhury that the appellant, a Class I officer of the Bangladesh Bank, is a public servant and as such he is entitled to claim same terms and conditions of service as arc applicable to other public servants including government servants. It is to be seen how Regulation 12 of the Bank (Staff) Regulations comes in conflict with any provision of either o these two Acts.
15. Act XXXII of 1975 (Service Re?organisation and Conditions) Act, as its preamble shows, was enacted to provide for reorganisation of the services of the Republic, public bodies and nationalised enterprises and to prescribe “uniform grades and scales of pay” and other terms and conditions of service of their employees. Prior to Act No. XXXII of 1975, to be precise, prior to the Independence of Bangladesh, there were in force over 200 different grades and scales of pay in the service of the Republic, that is, government service, and in the case of banks and companies, prior to their nationalisation, salaries of their employees were much higher than those of the government servants in many cases. Re-organisation of services of the Government servants was provided for in Article 136 of the Constitution; thereafter the two Acts Act XII of 1974 and Act XXXII of 1975 were made keeping in view Article 136. In the Re?organisation of the Services Act, Act XXXII of 1975, the Government was given power to re?organise the services and also to create new services or to amalgamate or unify existing services. Section 5 of this Act empowers the Government to prescribe “unified grades and scales of pay” for all public servants. Section 9 provides for a penalty in the case of disregard to any order prescribing unified grades and scales of pay. In pursuance of this Act, read with Article 136 of the Constitution, Pay and Service Commissions were constituted by the Government and according to their recommendations ten Grades and Scales of Pay were provided; later on, the number of Grades and Scales of Pay was raised to twenty and these 20 Grades and Pay?scales arc in force now. All employees, whether in the Government service or in the service of Corporations, Statutory Bodies and Nationalised Enterprises shall fall within these 20 Grades and Pay?Scales. This is what is meant by prescribing “unified grades and scales of pay”. Act XII of 1974 gave the definition of “public servant”, which brings in its fold employees of the Government, Corporations, Statutory Bodies and Local Authorities and provides for age of retirement and prohibits re-employment in certain cases, etc. Beyond these two provisions nothing else was provided therein. So far as unified grades and scales of pay arc concerned, there is no discrimination between government servants and employees of the statutory bodies. The age of retirement of public servants under Act XII of 1974 and that of employees of the Bangladesh Bank (like other statutory bodies) as provided in the Bank’s Regulations are the same. But as to other conditions of service, there is a marked distinction between persons in the service of the Republic and those in the employment of statutory bodies. Conditions of service of government servants are regulated by law made in pursuance of Article 133 of the Constitution. They come under protection of Article 135 of the Constitution in the case of dismissal and removal from service or reduction in rank. In pursuance of these Articles the Government Servants (Discipline and Conduct) Rules, 1976, subsequently re?named as Discipline and Appeal Rules 1984 were made. In these Rules there is no provision for “termination” of service by giving notice or pay of a few months in lieu of notice, whereas the provision for such termination has been made in the Service Rules or Regulations of statutory bodies including, banks, corporations, nationalised enterprises and local authorities. If there is any inconsistency between the Bangladesh Bank Regulations and these two Acts of Parliament then it is only in respect of the provision for “termination of service”. This is because services in the Bank like that under all other statutory bodies arc not protected by Article 135 of the Constitution. Therefore, there is no basis for argument that the Bangladesh Bank (Staff) Regulations (and for that purpose, Service Regulations of all other statutory bodies) are inconsistent with the Public Servants Retirement Act or Service Re?organisation Act. Even if there is any inconsistency, the Rule in question cannot be declared void for, a law may be declared void only if it is inconsistent with any provision of the Constitution. Moreover, when these Bank Regulations are immune from attack on the ground of inconsistency with any constitutional provision, they cannot be held to be void because of inconsistency with any other law.
16. Before we leave we once again observe that though termination simpliciter of an employee of any statutory body may be permissible in law, such measure is very harsh and sometimes may cause injustice; the Rules providing for termination may be used in a discriminatory manner, in particular, to get rid of a conscientious employee who does not toe the line of his capricious boss. We are fully aware of the fact that the main function of the Bangladesh Bank and for that purpose of any other statutory body or corporation is commercial in nature and their affairs are to be run from commercial point of view and for that purpose the procedure for removal of any undesirable employee should be free from any protracted proceeding, as applicable to a Government servant. But in the case of permanent employees of these bodies the length of service should be taken into consideration and for that purpose, service benefits, such as gratuity, according to the completed years of service may be given. Their service regulations may be amended so as to meet the ends of justice as well as the requirement of time.
In the result, Civil Appeal No. 42 of 1992 is allowed and Civil Appeal No. 79 of 1992 is dismissed. The impugned order of the Administrative Appellate Tribunal is set aside and that of the Administrative Tribunal is restored. Parties are to bear their respective costs.
Ed.
Source : 46 DLR (AD) (1994) 1