BLD’s Ten
Years Civil Digest (1993—2002) Index
SERVICE
MATTER
The
final order of removal, shall have no retrospective effect but it will be
effective from the date it was passed.—Government Servants (Discipline and Appeal)
Rules, 1976.
Md. Ishaque
Khan and another Vs. Trading Corporation of Bangladesh, 13 BLD (AD) 65.
Service
matter—Person in the Defence Service
The
expression “person in the Defence Services of Bangladesh”, does not include the
petitioners who were employees of the Ordinance Factories Board ( that is
government servants serving under Ordnance Factories Board)—Administrative
Tribunal Act, 1980 (Act VII of 1981), Section 4(3).
Serajul
Islam Thakur Vs. The Government of Bangladesh and another, 13 BLD (HCD) 534.
Service
matter—Termination
The
provision of termination simplicitor has been embodied in Section 19 of the
Bangladesh Employment of Labour (Standing Order) Act ,1965 only. Termination
order which gives all the termination benefits is to be deemed to have been
passed under Section 19 of the Act, although it was passed in pursuance of a
proceeding. When an employee is given all the benefits of the termination under
Section 19 of the Act and the termination order is without any stigma, he
cannot approach the Labour Court under Section 25.
The Managing
Director, Bangladesh Consumer’s Supplies Company Ltd. Vs. the Chairman, 1st. Labour Court, Dhaka and others, 13 BLD
(HCD) 666.
Service
matter—Circular
In
a case in which vires of a Government Circular is not directly in issue, the
order in question would have affected the Government Servant’s right to protect
him under the Constitution with reference to his position at the time of his
appointment—Constitution of Bangladesh, 1972.
Government
of the People’s Republic of Bangladesh Vs. Abdul Motalib Dewan and others 13
BLD (AD) 141.
Service
matter—Promotion
The
Regulation fixing minimum academic qualification for promotion to the higher
posts being prospective in effect, shall not apply to employees who had acquired
their rights to be considered for promotion by operation of Section 24(2)(d) of
the parent statute, i.e. Ordinance No. XXI of 19B5— Bangladesh Oil, Gas and
Mineral Wealth Corporation Service Regulation, 1988.
Abdul Hamid
Sheikh Vs. Bangladesh and others, 13 BLD (HCD) 376.
Service
matter—Right to be considered for promotion
Right
to be considered for promotion acquired by a person by operation of parent
statute, i.e. Section 24(2)(d) of Ordinance No. XXI of 1985, cannot be taken
away by any subordinate Statute.
Abdul Hamid
Sheikh Vs. Bangladesh and others, 13 BLD (HCD) 376.
Service
matter—Government Employee
By
virtue of clause (e) of Section 2 of Ordinance No. 24 of 1983, Respondent 2 has
become Government employee—Bangladesh Railway Board Ordinance, 1983 (Ordinance
No. 24 of 1983), Section 2(e).
The General
Manager, Bangladesh Railway, West, and others Vs. The Chairman, Labour Court,
Rajshahi and another, 13 BLD (HCD) 325.
Service matter
Bank-employee’s communication with outsiders
An
employee of organisation like bank, if allowed to make rampant communication to
outside authority bi-passing the senior officials, whether may lead to serious
indiscipline.
Md. Shamsur
Rahman Vs. The Chairman, 1st. Labour Court, Government of Bangladesh and
others, 13 BLD (HCD) 78.
Service
matter—Right of employee
The
Section 8 of the ordinance XXXIV of 1982 gives a right to the employee whose
salary has been deducted under Sections 4 or 5 or 6 or 7.of the Ordinance, to
file a representation to the authority concerned for a revision of an
order—Public Employees Discipline (Punctual Attendance) Ordinance, 1982
(Ordinance No. XXXIV of 1982), Section—8.
Kazi Enamul
Huq Vs. The Director General, Directorate of Relief and Rehabilitation and
others, 13 BLD (HCD) 576.
Service
matter—Employees of Ordnance factory
The
employees under the Ordinance Factories Board Ordinance, 1961 are not Civilian
employees in any of the Defence Services but are pure and simple Government
servant serving under the said board under the said ordnance of 1961.
Serajul
Islam Thakur Vs. The Government of Bangladesh & another, 13 BLD (HCD) 53.
Service
matter—Second show cause
It
is mandatory for the Corporation to serve a second show cause notice to the
delinquent of the proposed penalty before the final order is made. The
corporation having violated the mandatory provision for removing an employee
from the service, the order of removal is illegal and without lawful
authority.—Government Servants (Discipline and Appeal) Rules, 1984, Rule 7,
Sub-rule 11.
Md. Mahfuzur
Rahman Vs. Bangladesh Forest Industries Development Corporation, 13 BLD (HCD) 1.
Service
matter
Rule
22 prescribes the manner of disposal of an Appeal by an aggrieved Govt. Servant
but no time limit has been fixed for disposal of appeals. But even in the
absence of any time limit, inordinate delay in disposal of appeals is
deprecated—Govt. Servants (Discipline and Appeal) Rules 1985.
Md. Jahangir
Alam Vs. The Secretary, Ministry of Labour and Manpower, Govt. of Bangladesh
and others, 13 BLD (HCD) 639.
Service
Regulations
Although
Rule 15 of Service Regulations of the Corporation empowers it to send its
employees outside the Corporation on deputation basis, the permanent transfer
of respondent No. 1 without his consent to a subsidiary company formed under
the Companies Act, 1913 is illegal—Bangladesh Oil, Gas and Mineral Corporation
Ordinance, 1985 (XXI of 1985), Rule 15.
Chairman,
Petrobangla and others Vs. A.K.M. Faziul Karim and another, 15 BLD (AD) 114.
Service
Matter
Enquiry
Procedure
An
officer or employee of the Parjatan Corporation is not entitled to a second
show cause notice since the Rules do not specifically so provide. The
respondent was given a second show cause notice ex gratia. Since the principle
of natural justice was duly followed in conducting the enquiry, there could be
no grievance on this ground. But since the enquiry was not conducted in
conformity with the Rules the ultimate order of the High Court Division was
maintained—Bangladesh Parjatan Corporation Service Rules, 1980, Rule 57 (1)(2).
Bangladesh Parjatan Corporation, Dhaka V. A KM Abul Kalam, 15 BLD
(AD) 127.
Service
Matter
Notification
can be challenged straightway before the Administrative Tribunal.
The
First Proviso of Section 4(2) of the Act is attracted when there is a higher
administrative authority to take decision in respect of any order or action to
be impugned before the tribunal. In the instant case, there being no higher
administrative authority to redress their grievance the appellants are entitled
to challenge the impugned notification straightway before the Administrative
Tribunal within 6 months under Second proviso to Section 4(2) of the
Act—Administrative Tribunal Act, 1980 (VII of 1981), Section-4(2).
Abdul Mannan
and others Vs. Mr. Hasan Mahmud Khandker and others, 16 BLD (AD) 147.
Service
matter—Dismissal
Dismissal
from service is a serious matter and only a competent authority under the law
is entitled to pass an order of dismissal. The resolutions which have been
relied upon by the learned Advocate for the appellant are clearly not adequate
enough to read in them a power authorising the Director General to dismiss a
person appointed by the Parishad.
Bangladesh
Shilpakala Academy Vs. Janab Shahidul Islam and another, 17 BLD (AD) 245.
Service matter—Optional
Retirement
Sub-section
(1) of Section 9 gives a public servant the option to retire from service any
time after he has completed 25 years of service by giving 30 days’ written
notice to his appointing authority. Sub-section (2) of section 9 gives the
Government the option to retire in the public interest a public servant any
time after he has completed 25 years of services without assigning any reason.
In
the instant case, none of the petitioners has completed 25 years of service and
the impugned retirement order was made not in the public interest but it was
done in effecting retrenchment in the Corporation. Moreover, under sub-section
(2) of Section 9 of the Act the authority to order retirement vests in the
Government and not in the Corporation. Consequently, the impugned order of
retirement must be held to be illegal and without jurisdiction—Public Servants
(Retirement) Act, 1974 (XII of 1974), Section —9(1)(2).
Abul Hossain
and others Vs. Bangladesh Jute Corporation and others, 15 BLD (HCD) 341.
Service
matter—Pensions
The
Bank’s service regulations adopted the Bangladesh Service Rules for payment
relating to pensions for its permanent employees, but the Bangladesh Service
Rules have no provision for payment of pension to terminated officers. As Rule
342(2) of the said Rules caters for a situation similar to termination
simplicitier by providing for retiring pension to an officer who is required by
the Government to retire after completing twenty-five years of service, without
giving any reason, a term is implied into the Bank’s Service Regulations that
Rule 342(2) shall apply to employees terminated without assignment of
reason—Rupali Bank Employees Service Regulations 1981, Regulation—16,
Bangladesh Services Rules 1983, Rule—342(2).
M. A. Jalil
v. Rupali Bank Ltd. and others, 22 BLD (HCD) 264.
Service
matter—Leniency in punishment
An
unblemished record of 22 years of service provides a good ground for awarding a
less harsh sentence in the form of compulsory retirement in place of dismissal
from service. But it can never be a good ground for reinstating the employee in
the service of the Bank when the authority has decided to remove him for lack
of confidence in him. In the circumstances, an order of compulsory retirement
is substituted in place of the order of reinstatement made by the
Administrative Tribunal.
Sonali Bank
Vs. Ruhul Amin Khan, 14 BLD (AD) 171.
Service
matter—Removal
The
removal of the petitioner under Regulation 56(2) is not a termination
simpliciter. As a matter of fact it is not a case of termination but it is a
case of removal from service in the garb of termination—Chittagong Development
Authority Employees (service) Regulation, 1990, Regulation—56(2)
Chittagong
Development Authority and others Vs. Engineer Abul Kalam and another, 19 BLD (AD)
9.
Service
matter—Retirement of Navy officer
Rule
14(5) of the Navy Rules empowers the Government to retire any Officer at any
time without assigning any reason whatsoever—Navy Ordinance, 1961 and Navy
Rules 1961.
Rear Admiral
A.A. Mustafa Vs. Bangladesh, 14 BLD (AD) 16.
Service
matter
The
expression ‘to carry out the purpose of this Order’ as employed in Article
40(1) includes power of appointment, removal, dismissal etc. of the employees
of the Bar Council. No doubt, Article 40(3) authorises the Government in
absence of framing of the Rules to exercise the power of the Bar Council but
Article 40(3) does not oust the power of the Bar Council explicitly. According
to Article 10(J) of the Order, the Bar Council is vested with the authority to
perform function conferred on it under this Order—Bangladesh Legal
Practitioners and Bar Council Order and Rules, 1972, Article—40(i)(3); 10(j);
40(k); Code of Civil Procedure, 1908 (V of 1908), Section—115(1).
Bangladesh
Bar Council Vs. Basiruddin Ahmed, 21 BLD (AD) 83.
Service
matter—Continued ill-health
A
person may suffer from continued illness but it does not necessarily mean that
he suffers from continued ill-health. The interpretation of the word ‘continued
ill-health’ should be kept as flexible as possible so as to accommodate
individual cases or class of cases of ill-health within the scope of those
words, depending upon the facts and circumstances of each case.
M/s. Karim
Jute Mills Ltd. Vs. Chairman, Second Labour Court, Dhaka and another, 17 BLD
(AD) 208.
Service
matter—Aggrieved person and necessary party
Although
there is no guidance in the Act or in the Rules framed thereunder to determine
the question of necessary parties and the provisions of the Code of Civil
Procedure have got very limited application to a case before the Administrative
Tribunal, but still then as a general rule all necessary parties must be
impleaded so that the tribunal may effectually adjudicate on all matters before
it.
Since
the appellants are claiming relief against the Government alone, the case
cannot be held to be bad for defect of parties for non-impleading respondent
Nos. 1-15. But since the order of the tribunal was likely to prejudice them in
the matter of their seniority they are ‘aggrieved’ persons within the meaning
of Section 6(2) of the Act— Administrative Tribunal Act, 1980 (VII of 1981),
Section—6(2.).
Md. Abdul
Mannan and others Vs. Mr. Hasan Mahmud Khandker and others, 16 BLD (AD) 147.
Service
matter—Interim relief by Administrative Tribunal Although the Code of Civil
Procedure
has
been made applicable for specified purposes to the proceedings before the
Administrative Tribunal yet it is not a Civil Court exercising all the powers
of the Court provided under the Code of Civil Procedure. The Administrative
Tribunal cannot grant interim relief in respect of a case pending before it—
Administrative Tribunal Act, 1980 (VII of 1981), Section—7.
Kamrul Hasan
Vs. Bangladesh and others, 16 BLD (AD) 35.
Service
matter
Article
133 of the Constitution regulates the conditions of service of Government
servants and they come under protection of Article 135. The services in the
Bank and other statutory bodies are not protected by Article 135 of the
Constitution.
Bangladesh
Bank and others Vs. Mohammad Abdul Mannan, 14 BLD (AD) 117.
Service
matter—Uncontroverted material assertion
The
failure of the Administrative Appellate Tribunal to consider the legal
incidence of an uncontroverted material assertion of the petitioner before the
Administrative Tribunal and the pleadings of the parties in juxtaposition
renders its decision untenable.
A.K.
Mohammad ldris Vs. Bangladesh Krishi Bank and others, 16 BLD (AD) 33.
Service
matter
It
provides that on the expiration of 180 days from the date of notice of the
proceeding the employee proceeded against shall stand exonerated from all the
allegations if in the meantime the authority has not taken the final decision
in the matter.
Appointment
of an Enquiry Committee after the proceeding lost its force on the expiration
of 180 days is illegal and void— Bangladesh Oil, Gas and Mineral Corporation
Petrobangla) Ordinance, 1985, Service Regulation No-42(8).
Bangladesh
Oil, Gas and Mineral Corporation (Petrobangla) and another Vs. Bazlul Karim, 16
BLD (AD) 25.
Service
matter
Equality
before law—Seniority in Service
Regulation
18 (c) envisages that the order of merit in which the recruits are placed in
the training and the date of completion of their training are the deciding
factors in counting seniority in service. T training of the recruits in batches
not being a requirement of law, the grouping of persons for training recruited
in the said examinations held under the same advertisement should be held to be
one training programme which started on 15.10.1989 and ended on 25.1.1990. The
seniority list was, therefore, required to be prepared in order of merit on the
completion of the training programme as merit of the recruits at the end of the
training governs the question of seniority. Since no reasonable basis for
classification for placing in groups or training could be proved, there. was
enough scope for arbitrary selection which is violative of the equality clause
enshrined by Article 27 of the Constitution— Constitution of Bangladesh, 1972,
Article — 27, Bangladesh Biman Employees (Service) Regulation, 1979, Regulation
-18(c).
Aminul Huq
and others Vs. Rafiqul Hassan and others, 16 BLD (AD) 174.
Service
matter
Functions of
the Public Service Commission
As
a general rule regularization of appointment of the Cadre Service takes effect
from the date of recommendation by the Public Service Commission. Since the
appellants were promoted as A.S.Ps. on an officiating basis without the
recommendation of the Public Service Commission their claim for seniority from
the date of their such appointment or from any date prior to the recommendation
by the Public Service Commission is not tenable in law—Constitution of
Bangladesh, 1972, Article —140, Bangladesh Civil Service Seniority Rules, 1983,
Rules-3, 5 and 6, Cadre Rules, 1980, Rule-3
Md. Abdul
Mannan and others Vs. Mr. Hasan Mahmud Khandker and others, 16 BLD (AD) 147.
Service
matter
When
it is found that before removing the respondent from service the University
authority thrice asked him to show cause as to why he should not be removed
from service for violation of service discipline in refusing to vacate the
staff quarter illegally occupied by him, and he fully availed of those
opportunities, the plea of vic5lation of the principle of natural justice
cannot be entertained—Dhaka University Order, 1973 (P,O. 11 of 1973), Article
-59(2).
Dhaka
University Vs. Syed Md. Ismail, 16 BLD (AD) 103.
Service
matter
Departmental
proceeding and proceeding in a Court of law
It
is well settled that on the selfsame allegation a departmental proceeding
against an employee is competent besides a proceeding in a Court of law.
The
respondent was compulsorily retired following an independent departmental
enquiry in which he examined witnesses in his defence and the said order was
affirmed in appeal filed under the Rules. In these circumstances, irrespective
of the question as to whether conviction on a criminal charge in a Martial Law
Court is covered by Rule 8 of the Rules or not, the order of punishment cannot
be interfered with in the absence of any fault in the departmental proceedings—
Government Servants (Discipline and Appeal) Rules, 1976, Rules -3(C) and 8.
Government
of Bangladesh Vs. Md. Abdul Karim, 16 BLD (AD) 99.
Service
matter
Inspite
of some amount of dubiousness on the part of the Government as regards the
absorption of the respondent the aggrieved employee is entitled to get the
benefit. of doubt in his favour, A double standard treatment on the part of the
executive government while dealing with its different employees is to be
deprecated—Surplus Public Servants Absorption Ordinance,1985 (XXIV of 1985),
Sections—5 and 6.
The Director
General, NSI Vs. Md. Sultan Ahmed, 16 BLD (AD) 76.
Service
matter
The
cumulative effect of Rules 3 and 4 of the Bangladesh Biman Employees (Pension
and Gratuity) Rules, 1988 is that an employee of the Corporation irrespective
of sex has the right to be in service till completion of 57 years of age.
Since
even after amendment of regulation 11 in 1984 there has been no corresponding
amendment of Rules 3 and 4, which prescribed retirement on completion of 57
years, the subsequent amendment which was not in existence at the time of
appointment of the petitioner cannot curtail or reduce her age limit from 57
years to 35 years as it does not have any sanction of law. This is also
violative of Article 28 of the Constitution— Bangladesh Biman Employees
(Pension and Gratuity) Rules, 1988, Rules -3 and 4.
Jonaba Dalia
Parveen Vs. Bangladesh Biman Corporation and another, 16 BLD (HCD) 357.
Service
matter
Regulation
No. 26 provides that a teacher may be permitted to get his service extended by
the appointing authority till he attains the age of 60 years. But this
extension is not a right guaranteed under any law as a fundamental, right and
it i subject to conditions laid down in Clauses (a) to (e) of sub- regulation
(3) of Regulation No. 27. Extension of service as contemplated in Regulation
No. 26 being merely a privilege, the right of extension for continuing in
service on the basis of a resolution is not a fundamental right that can be
enforced in writ jurisdiction—Constitution of Bangladesh, 1972, Article— 102,
Recognized Non-Government Secondary School Teachers (Board of Intermediate and
Secondary Education, Dhaka) Terms and Conditions of Service Regulations, 1979,
Regulations -2(a), 26 and 27.
Mir Abu
Bakar Siddique Vs. The Deputy Commissioner, Faridpur and others, 16 BLD (HCD) 522.
Service
matter—Dismissal of College teacher
Proviso
to regulation No. 12 ‘provides that penalty in the form of dismissal from
service cannot be imposed upon a college teacher unless the proposal for such
penalty is examined by the appeal and arbitration committee and approved by the
Board. Prior approval of the Board is necessary to give effect to an order of
dismissal and a subsequent approval by the Board cannot care this basic
infirmity—Recognized Non-Government Intermediate College Teachers (Board of
Intermediate and Secondary Education, Jessore) Terms and Conditions of Service
Regulation, 1979, Regulation 12
Sheikh
Roushan Ali Vs. Board of Intermediate and Secondary Education, Jessore and
others, 16 BLD (HCD) 204.
Service
matter
ft
is well-settled that if an incumbent after the termination of his service
engages himself in any other service or business transaction, then any amount
that he might earn by way of salary from such service or as profits of such
business may be set off against his salary due on his reinstatement in the
service—Code of Civil Procedure, 1908 (V of 1908), Order VIII Rule 6.
Bangladesh
Shipping Corporation Vs. Raquibuddidn Ahmed& ors, 16 BLD (AD) 201.
Service
matter
This
Regulation makes no provision for the compulsory presence of a member of the
enquiry committee in all its sittings and as such no legal consequence will
follow from a member’s failure to attend such a sitting. In the absence of any
rule or service condition that the appellant is entitled to a second show cause
notice before the order of dismissal is passed against him, the appellate court
was wrong in holding that the appellant deserved a second show cause notice
before the passing of the order of dismissal on grounds of equity of
justice—Recognised Non-Government Secondary School Teachers (Board of
Intermediate and Secondary Education, Dhaka) Terms and Conditions of Service
Regulation, 1979, Regulation – 14.
Post Office
School Vs. Asgar Ali and others, 15 BLD (AD)
38.
Service
matter
Although
Rule 15 of the Service Regulations empowers the Corporation to send on
deputation its employees to a subsidiary company for a period not exceeding 3
years, yet prior consent of the employee concerned has to be obtained before
such transfer. A permanent transfer to a subsidiary company or other
organisations has not been contemplated in the Service Rules—Bangladesh Oil,
Gas and Mineral Corporation Ordinance, 1985 (XXI of 1985), Service Regulations
—Rule 15
A.K.M.
Fazlul Karim and others Vs. Bangladesh and others, 15 BLD (HCD) 277.
Service
matter
The
order of dismissal of an employee of the BADC takes effect not from the date of
his conviction but from the date of the impugned order of dismissal and it
remains valid unless the order itself is declared void by a competent Court.
The incumbent is not therefore entitled to automatic reinstatement in his
service consequent to his acquittal on appeal—BADC Disciplinary Case
Procedures, 1977, Clause -11(4) and (6).
Bangladesh
Agricultural Development Corporation and others Vs. Abdur Razzaque, 17BLD (AD)
148.
Service
matter—Seniority of Employees
The
process of recruitment being one and the same, the recruitment. of the respondents
and those included in the impugned seniority list being one, the fact of their
being included in the first batch for training and thereby getting an
appointment a few days before the next batch of trainees is immaterial for
determining seniority in service—Bangladesh Biman Corporation (Service)
Regulation, 1979, Regulation No. 19(1)(a).
The Managing
Director, Bangladesh Biman Corporation and others Vs. Md. Reza Kamal and
others, 17 BLD (AD) 41.
Service
matter
The
employer has rightly connected the nature of illness of the worker, the
duration and relationship of the illness with the nature of job performed by
him and has rightly come to a conclusion as to his further usefulness in
service bonafide and such use of power by the employer cannot be hedged with
interpretive conditions which make the exercise of the power impossible. The
order of discharge from service was passed legally and lawfully—Employment of
Labour (Standing Orders) Act, 1965 (VIII of 1965), Section—16.
M/S. Karim
Jute Mills Ltd. Vs. Chairman, Second Labour Court, Dhaka and• another, 17BLD
(AD) 208.
Service
matter
A
Labourer cannot make any complaint against the termination of his service
before the Labour Court unless his employment was terminated in connection with
his trade union activitie’s or he was deprived of the termination benefits. The
plaintiffs suit for a declaration that the order of his termination is illegal
and void etc. cannot be adjudicated by the Labour Court and under such
circumstances the civil Court’s jurisdiction is not ousted— Employment of
Labour (Standing Orders) Act, 1965 (VIII of 1965), Section—25(1)(b). ‘Proviso’,
Ordinance No. XIV of 1985, ‘Proviso’.
General
Manager, Sonali Bank and an-’ other Vs. Md. Abul Khayer and others, 17 BLD (AD)
183
Service matter—Imposition
of major Penalty
Secretary
being the designated authority the imposition of minor punishment has been
lawfully passed, in the case, although the charge sheet has been submitted by
the authority recommending imposition of major penalty—Government Servant
(Discipline and Appeals) Rules, 1985, Rules—6 and 7.
Government
of Bangladesh and another Vs. M.A. Malek, 17 BLD (AD) 161.
Service
matter
Conclusion
of Departmental Inquiry within 150 days
No
final decision was taken by the authority within the statutory period of 150
days as required by Rule 7(9) of the Government Servant (Discipline and
Appeals) Rules 1985. The Tribunal found the very appointment of the petitioner
as false and fictitious and as such the Appellate Division refused to exercise its
discretion in the matter as no useful purpose would be served in a fresh
inquiry— Government Servant (Discipline and Appeal) Rules, 1985, Rule—7(9).
Md. Abdus
Salam Vs. Govt. of Bangladesh, represented by Collector of Customs and Excise,
Dhaka and others, 17 BLD (AD) 214.
Service
matter
In
View of the provisions of Article 7(1) and in the absence of any provision in
the BSRS Employees Service Regulations to assess merit for promotion the Board
of Directors of the BSRS is competent to formulate guidelines for effecting
promotion of its officers and employees and to assess their merit by the
Promotion Committee—Bangladesh Shilpa Rin Sangstha (BSRS) Order 1972 (P.O. 128
of 1972), Article—7(1).
Md. Junnur
Rahman Vs. Bangladesh Shilpa Rin Sangstha (BSRS) and others, 17 BLD (HCD) 488.
Service
matter
‘Public
Office’ is created by law conferring upon an individual and vesting upon him
some sovereign functions of the Government to be exercised by him during the
tenure of his office prescribed by law. The Chairman and members of the Board
of the Civil Aviation Authority do not hold any public office— Civil Aviation
Authority Ordinance. 1985(XXXVIII of 1985), Section—5.
Md. Abdur
Rahman Vs. Group Captain(Retd.) Shamim Hossain and others, 17 BLD(HCD) 532
Service matter
A
suit for simple declaration that the impugned order of dismissal from service
is illegal, void and not binding upon the plaintiff without a further prayer
for consequential relief in the form of back salary and reinstatement in his
former post is hit by the proviso to section 42 of the Specific Relief Act—
Specific Relief Act, 1877 (I of 1877), Section—42 Proviso.
Basharatullah
vs. Managing Committee for New Academy and another, 17BLD (HCD,) 68
Service
matter
Violation
of terms and conditions of service may indeed be a violation of law, but if a
specific remedy is provided in the Constitution for remedy then that specific
remedy shall, be availed of by the aggrieved person— Constitution of
Bangladesh, 1 972,Article— 117.
Government
of Bangladesh and ors. Vs. Mohammad Faruque, 18 BLD(AD) 276
Service
matter
A
reference to Rule 27 of the Government Servants (Discipline and peal) Rules,
1985 provides that the Rules of 984 were repealed and as per Rule 27(2) of the
Rules of 1985 there was no bar in disposing of the proceeding in accordance
with the provisions of the Rules of 1985 as a pending proceeding at the
commencement of the Rules of 1985.
Syed Masudur
Rahman Vs. Govt. of Bangladesh and ors., 18 BLD (AD) 245.
Service
matter
Defendant
No. 1 was undoubtedly in a dominant position on account of his high official
position and close association with the Martial Law Authority at the relevant
time and the plaintiff had a helpless role to play in the face of pressure from
the Martial Law Authority. The bargain obtained by defendant No. 1 in the
compromise petition was clearly unconscionable because the plaintiff had to
give up his rightful claim in the contractual land. The burden of proof that
the compromise was not attained by undue influence, therefore, lay squarely
upon defendant No.1 which he has miserably failed to discharge— Contract Act,
1872 (XI of 1872), Section— 16.
Abul Hossain
Vs. Farooq Sobhan & ors., 19 BLD (AD) 291.
Service
matter
Regulation
19(5) provides that in the case of change of category of post, the employee who
has changed the category shall the seniority in the new category of posts
carrying the same scale of pay or comparable scale of pay from the date of his
appointment in the new category of posts—Uttara Bank Employees Service Regulation,
1981, Regulation— 19(5).
Abdul Jalil
Vs The Chairman, JSI Labour Court, 19 BLD (AD) 274.
Service
matter
Rule
21(b) provides that for promotion to other post merit-cum-seniority shall be
sole priority. It is found that the petitioner’s serial number was 37 at the
time of issuance of the Rule and at present the serial number of the petitioner
is 9(nine), there is ample scope for the petitioner to be considered for
promotion in the future and there is no reason for him to be aggrieved at this
stage and as such the petitioner is not an aggrieved person within the meaning
of Article 102 of the Constitution— Artha Rin Adalat Am, 1990 (IV of 1990),
Rule—2 1(b).
Md. Ashraf
Au Vs. Bangladesh Water Development Board and others, 19 BLD (HCD) 182.
Service matter
Under
Regulation 24(1) an employee of the Corporation is liable to serve anywhere in
or outside Bangladesh and he may be transferred from one station to another.
Administrative Orders are conditioned by the provisions of the Regulation,
1979. According to Regulation 24(1) the petitioner is under legal obligation to
serve anywhere in or outside Bangladesh and by the impugned order of transfer
no infringement or violation of any of his fundamental right as contemplated
under Part-Ill of the Constitution has occurred— Bangladesh B iman Employees
(Service) Regulation 1979, Regulation—24( 1).
K.M. Nurul
Islam vs. Secretary, Ministry of Civil Aviation and ors, 19 BLD (HCD) 1.
Service
matter
Whether
there was sufficient good reason to form an opinion cannot be looked into by
the Court as that would be substituting the opinion of the Bangladesh Bank. The
Court cannot accept the contention that the Bangladesh Bank could not have
arrived at an opinion or satisfaction to suspend the petitioner on a single
transaction—Bank Companies Act, 1991(XIV of 1991), Section—46 and 47.
Abdur Rahim
Chowdhury Vs. Bangladesh Bank and others, 19 BLD(HCD) 426
Service
matter
Since
the appointment of the petitioner in the project is in fact re-employment of
the petitioner in BSTI and the approval of the President having under section
5(3) of the Act has not been obtained before issuing Annexure-A, the
appointment of the petitioner as project Director was illegal, the said
appointment could be cancelled by the respondent Nos. 1 and 2 and as such there
is no illegality in the impugned order cancelling the reemployment of the
petitioner—Public Servant (Retirement) Act, 1974 (XII of 1974), Section—5(3).
Syed Nurul
Hossain Vs. Bangladesh and others, 19 BLD (HCD) 261.
Service
matter
Simple
selection of the name of the plaintiff in the list recommended by selection
committee for appointment could not confer any right of appointment to the
service of the Government.
Md. Habibur
Rahman Vs. Deputy Commissioner, Patuakhali and others, 19 BLD (HCD) 34.
Service
matter
A
public servant shall retire from service on the completion of the fifty seventh
year of his age; Provided that the Government of any authority authorised by
the Government in this behalf may extend the service of public servant who is a
physician or teacher beyond the date of his retirement for a period not
exceeding three years and such extension shall be subject to such conditions,
if any, as may be prescribed by rules made under the Act— Constitution of
Bangladesh, 1972, Article— 102, Public Servants Retirement Act, 1974 (XII of
1974), Section—4
Md. Habibur
Rahman Khan Vs Bangladesh and others, 19 BLD(HCD) 575
Service
matter
A
defence service officer appointed in the service of the Biman Corporation falls
within the category of public servant to whom the Public Servants (Retirement)
Act, 1974 is equally applicable. When the seniority of defence officer on
appointment in civil post is determined by taking their past service as
provided under rules 5 and 7 of the Defence Services Officers (Appointment and
Fixation of Seniority in Civil Post) Rules, 1983, the Public Servants
(Retirement) Act, 1974 is perfectly applicable to them on completion of 25
years of service as a whole—Bangladesh Biman Corporation Employees (Service)
Regulations, 1979, Regulation—11A(2), Defence Service Officers (Appointment and
Fixation of Seniority in Civil Post) Rules, 1983, Rules—5 and 7.
Bangladesh
Biman Corporation Vs Lt. CoL. (Rtd) Md. Zainul Abedin and ors., 20 BLD (AD) 230.
Service
matter
The
advice of the Public Service Commission is not binding upon the authority but
the authority is required to consider it and pass any appropriate order. [Per
Latifur Rahman, C.J. delivering the majority judgmental— Bangladesh Public
Service Commission (Consultation) Regulation, 1979, Regulation—6, Constitution
of Bangladesh, 1972, Article—140(2).
Government
of Bangladesh Vs. A A M Salekuzzaman & anr., 20 BLD (AD) 269.
Service
matter
Public
servant—Authority of the Government to retire public servant in public interest
after completion of 25 years service— Public Servants (Retirement) Act, 1974
(XII of 1974), Sections—2(d) and 9(2)
Bangladesh
Biman Corporation Vs Ltd. CoL. (Rtd) Md. Zainul Abedin and ors., 20 BLD (AD) 230.
Service
matter
Rule
3(e) of the BCS Seniority Rules, 1983 is not applicable for determining the
seniority of the appellants as well as of the respondents as they were directly
recruited on the basis of two different advertisements, Rule 3(e) is applicable
only in case of determining seniority involving lateral entrance— BCS Seniority
Rules, 1983, Rule—3(e).
A H M
Mustain Billah & 4 others Vs. Govt. of Bangladesh & 60 ors., 21 BLD
(AD) 1.
Service
matter
There
was no need to give retrospective effect to the amended provision of sub- rule
3(g), because the seniority position of the respondents was always above the
appellants batch. The Government always reserves the right to fix seniority
according to existing rules and principles—BCS Seniority Rules, 1983,
RuIe—3(e).
A H M
Mustain Billah & 4 others Vs. Govt. of Bangladesh & 60 ors., 21 BLD(AD)
1.
Service
matter
The
period of absence of Government servant on reinstatement in service after
wrongful retirement shall be treated as a period spent on duty and he will be
entitled to pay allowances and as admissible under clause (a) of the Rule.
Clause (a) of Rule 72 speaks that in case of honourable acquittal, the
incumbent is entitled to full pay to which he would have been entitled if he
had not been dismissed or removed or suspended— Bangladesh Service Rule, Rule
72 Note 4.
Secretary,
Ministry of Establishment Vs. A M Nurunnabi, 21 BLD (AD) 41.
Service
matter
If
by an order of transfer any terms and conditions of service of a person in the
service of the Republic is violated, his remedy lies with the Administrative
Tribunal. The High Court Division cannot stay a transfer order only on the
ground that the Administrative Tribunal had no authority to pass such an order
of stay—Constitution of Bangladesh, 1972, Article—117.
Government
of the People’s Republic of Bangladesh v. S. M. Fariduddin, 21 BLD (AD) 155
Service
matter
Rules framed
by the President
Under
Article 133 of the Constitution the Rules framed by the President will take
effect both prospectively or retrospectively.
A H M
Mustain Billah & 4 others Vs. Govt. of Bangladesh & 60 ors., 21 BLD (AD)
1.
Service
matter
The
Administrative Appellate Tribunal while exercising appellate jurisdiction over
the decision of the Administrative Tribunal has all the power to alter, set
aside, review or modify the decision of the lower Tribunal.
Government
of Bangladesh and others Vs Mirza Giasuddin, 21 BLD (AD) 58.
Service
Matter
Second Show
Cause Notice
A
person holding a civil post is entitled to a second show cause notice in the
event of his dismissal, removal or reduction in rank. This is a constitutional
protection available to a person holding a civil post and admittedly respondent
was holding a civil post in the service of the Republic. A second show cause
notice is a must in such case.
Director
General of Prisons of Bangladesh Vs. Md Nasim Uddin, 21 BLD (AD) 39.
Service
matter
The
plaintiff has not sought for any decree for setting aside the order of his
termination from service but has sought for his reinstatement with back wages.
The plaintiff did not prefer the statutory appeal as provided in the service
regulations. The suit as framed is thus not maintainable—Specific Relief Act,
1877 (I of 1877), Section—42, Code of Civil Procedure, 1908 (V of 1908),
Section— 115(1).
Mujibur
Rahman Vs. Abdul Maleque Akon and others, 21 BLD (AD) 86.
Service
matter
Procedure
for recruitment is subject to the instructions relating to reservation for the
purpose of clause (3) of Article 29 of the Constitutions. Appointment to a
service shall be made in accordance with the provisions of schedule II—BCSR
Rules, 1981., Rule—3
Sk. Abdur
Rashid & ors. Vs. Bangladesh & ors., 21 BLD (HCD) 127.
Service
matter
Promotion
of persons in the service of Republic being part of the terms and condition of
the service, a grievance in respect of the same falls within the exclusive
jurisdiction of the Administrative Tribunal, and as such the writ petition is
not maintainable— Constitution of Bangladesh, 1972, Article— 102
Md. Nurul
Islam & another v. Government of Bangladesh & others, 21 BLD (HCD) 562.
Service
matter
Article
136 of the Constitution gives the Government enormous power to reorganize the
services of the Republic—Constitution of Bangladesh, 1972, Article—136
Ershad All
Ahmed and others Vs Secretary, Ministry of Youth and Sports and others, 21 BLD (HCD)
249.
Service
matter
Petitioner
is not a worker as per definition provided by the Ordinance in clause (3) of
section 2 and as such he cannot get the benefit of retirement at the age of 60
years as has been provided in section 14A of the same Ordinance—Public
Corporations. (Management Co-ordination) Ordinance, 1 986(XLVIII of 1986),
Sections—2(e) and 14A.
Abdus Salam
Molla Vs. Platinum Jubilee Jute Mills Ltd & ors., 21 BLD (HCD)151
Service
matter
Second show
cause notice
Second
show cause notice is employees’ last opportunity to place his side of the case
before the appointing authority. It is not an idle formality but a Rule of
Natural Justice that requires the authority to furnish him with a copy of the
enquiry report.
Abul Kashem
Sikder Vs Government of the People’s Republic of Bangladesh & ors, 21 BLD
(HCD) 457.
Ref:
Torab Ali Vs. Bangladesh Textile Mills Corporation, 41 DLR 138.
Service
matter
Resignation
If
the resignation is silent as to the date or period of it being effective, the
Biman authority could consider such resignation as of immediate
effect—Bangladesh Biman Corporation Employees (Service) Regulations 1979,
Regulation—53
Bangladesh
Biman Corporation and others v. Md. Jusimuddin, 22 BLD (AD) 23.
Service
matter
The
petitioner did not reply to the ex-gratia second show cause notice, nor prefer
an appeal before the authority concerned nor in the plaint allege that he did
not nor could not reply to the said notice for want of a copy of the enquiry
report. Therefore, non-supply of enquiry report did not cause any prejudice to
the petitioner—Bangladesh Biman Employees (Service) Regulations 1979
Waliulhah
Pradhan v. Bangladesh Biman and another, 22 BLD (AD) 102.
Service
matter
There
are two parts of section 3 of the Ordinance. The second part indicates that the
overriding provision in the first part of section 3 does not exclude the
operation of the law, rules and regulations including PRB in force prior to the
promulgation of the Ordinance. Regulation 858 (a)(2) empowers the Superintendent
of Police to award a police personnel, i.e. Sub-inspector of Police, any
punishment, i.e. dismissal, removal, which may be awarded by the Inspector
General or Deputy Inspector General of Police under Regulation No. 858(a)(
1)—Police Officers (Special Provisions) Ordinance, 1976 (Ordinance No. LXXXIV
of 1976), Section—3, Police Regulation of Bengal (PRB), Regulation—858(a)( 1).
Government
of Bangladesh & ors. v Md. Sharifuddin Mollah, 22 BLD (AD) 237.
Service
matter
Submission
of written defence
Although
in sub-rule (2) no authority has been mentioned to whom a written defence has
to be submitted, the written defence has to be submitted to the enquiry officer
appointed to held the enquiry—Power Development Board (Employees) Service Rules
1982, Rule—143.
Chairman,
Power Development Board, Dhaka and others v. Md. Fazlul Haque, 22 BLD (AD) 85.
Service
matter
When
a petitioner is transferred to the other establishment his lien remains intact
and the vested right accrued by him. cannot be taken away without canceling his
lien by drawing proceeding—Constitution of Bangladesh, 1972, Article—102
Abu Hena
Mohammad Mamun v. Bangladesh Shipping Corporation and others, 22 BLD (HCD) 549.
Service
matter
The
amalgamation of services of different categories has nothing to do with the
appointment or terms of service as contemplated by article 133 of the
Constitution of Bangladesh.
Mohammad
Salahuddin Talukder v The Government of the People’s Republic of Bangladesh, 22
BLD (HCD) 335.
Service
matter
Article
136 provides for reorganization of service by enactment of law. Accordingly,
the amalgamation of services appearing in Act XX of 2000 can only be made under
Act XXXII of 1975—Constitution of Bangladesh, 1972, Article—136.
Mohammad
Salahuddin Talukder v The Government of the People’s Republic of Bangladesh, 22
BLD (HCD) 335.
Service
matter
By
section 8 of Act XX of 2000 the services of Appraisers, preventive officers and
Inspectors, who are of separate grades though their scales of pay may be the
same, have been made inter-transferable without amalgamation of their services
and rules framed accordingly. Accordingly, section 8 of Act XX of 2000 is found
to be violative of articles 133 and 136 of the constitution— Non-Cadre Class I
and II Gazetted officers (Customs, Excise and VAT) Appointment and service
Terms and Conditions Act 2000 (Act XX of 2000), Section—8.
Mohammad
Salahuddin Talukder v The Government of the People’s Republic of Bangladesh, 22
BLD (HCD) 335
Service
matter
Appointment
of employees on temporary basis cannot be termed as probationers inasmuch as
the appointments are not given against any permanent or sanctioned post. In
view of the continuous service rendered by the employees to the Bank, their
service should be regularised as temporary employees and they are entitled for
absorption in permanent posts on preferential basis.
Rupali Bank
Ltd v. The Chairman, Second Labour Court, Dhaka, 22 BLD (HCD) 143.
Service
matter
Voluntary
retirement
The
petitioners went into voluntary retirement out of their own free will on
getting some financial benefits out of a special scheme evolved for the
purpose. There was no compulsion on their part to accept the scheme for
retirement and as such they cannot be allowed to turn round to say that the
scheme is illegal and violative of the provisions of the Act—Public Servants
(Retirement) Act, 1974 (XII of 1974), Sections—4 and 9
Md. Nurul
Hoque Vs. Govt. of Bangladesh and others, 18 BLD (AD) 142.
Service
matter
Termination
of service
Regulation
12 (i) gives option to an employee to leave his Job or to discontinue his
service by giving three months’ notice in writing while Regulation 12 (11)
gives a similar option to the employer Bank to determine the service of any
employee in Class I and above by giving three months notice or three months’
pay in lieu thereof—Bangladesh Bank Order, 1972 (P.O. No. 137 of 1972) and The
Bangladesh Bank (Staff) Regulations, 1972, Regulations Nos. 12 (1) and 12 (ii).
Bangladesh
Bank and others Vs. Mohammad Abdul Mannan, 14 BLD (AD) 117.
Service matter
Termination
of service
Rules
providing for “termination” should not be used in a discriminatory manner.
Though
termination simpliciter of an employee of any statutory body may be permissible
in law, such measure is very harsh and sometimes it may cause injustice to an
employee who does not toe the line of his capricious boss. In the case of
permanent employees of the statutory bodies, the length of service should be
taken into consideration and for that purpose service benefits such as gratuity
should be given. The service regulations should be amended so as to meet the
ends of justice and the requirement of time.
Bangladesh
Bank and others Vs. Mohammad Abdul Mannan, 14 BLD(AD)117
Ref:
17 DLR(SC) 63; PLD 1962(SC) 142; 33 DLR (AD) 102; A.I.R. 1958(SC) 36; 29 DLR
(SC) 11; A.I.R. 1985 (SC) 722; A.I.R. 1987 (SC) 111 AIR 1986 (SC) 1571: A.I.R.
1988(SC) 286; 43 DLR(AD)164-Cited.
Service
matter
Termination
benefit
On
reading of the provisions of the two Acts the High Court Division held that for
not availing of the forum as provided in section 25 of the Act of 1965 a worker
is not precluded from realizing the termination benefits by filing an
application under section 15(2) of the Act of 1936—Employment of Labour
(Standing Order) Act, 1965 (VIII of 1965), Section—25, Payment of Wages Act,
1936 (IV of 1936), Section —15(2).
Managing
Director, Contiform Forms Ltd. Vs. The Member, Labour Appellate Tribunal, Dhaka
and others, 18 BLD (HCD) 531.
Service
matter
Termination
benefit
Any
person, who was in employment but not discharged, is entitled to make an
application under section 15 of the Act as modified, after being out of service
for any reasons except being discharged. The provision of subsection 1 of
section 15 of the Act made it clear that, not only the person in employment but
anybody so competent, on his application, who was in employment can make an
application within the period of limitation prescribed therein—Payment of Wages
Act, 1936 (IV of 1936), Section—15(2)
The Editor,
Bangladesh Observer Vs. The Member, Labor Appellate Tribunal and ors., 18 BLD (HCD)
542.
Service
matter
Termination
benefit
Since
the Labour Court is one of the specified authority to hear and determine the
claim of a worker upon an application filed before it under section 15(2) of the
Act as regards payment of wages (termination benefit), payment whereof has been
delayed, the High Court Division held that no illegality has been committed by
the Labour Court in entertaining the application filed under section 15(2) of
the Act by the worker claiming termination benefits and seeking direction for
the payment thereof having been delayed—Payment of Wages Act, 1936 (IV of
1936), Section— 15(2).
Managing
Director, Contiform Forms Ltd. Vs. The Member, Labour Appellate Tribunal, Dhaka
and others, 18 BLD(HCD) 531
Service
matter
Termination
As
provision to Section 25(1) of the Act does not provide the aggrieved worker any
scope for vindication of his grievance thereunder, as the order of his
termination though made under Section 19 of the Act was not passed for his
trade union activities and it did not deprive him of the benefits under Section
19 of the Act, Section 25 does not stand as a bar against his civil suit–
Employment of Labour (Standing Orders) Act, 1965 (VIII of 1965), Section-25(1).
The Managing
Director, Rupali Bank Limited Vs. Md. Nazrul Islam Patwari and others, 15 BLD (AD)
169.
SERVICE OF
SUMMONS
Service of
Summons
When
the summons is returned under Rule 17 of Order 5 C.P.C. it is incumbent upon
the Court to make an enquiry under Rule 19 of Order 5 of the Code and to record
a distinct declaration of due service, if satisfied, or to order fresh service.
Sharif ullah
Patwary and others Vs. Jharna Dhara Chowdhury and another, 14 BLD (HCD) 257.
Service of
Summons
When
the defendant satisfies the court that summons was not duly served upon him the
court is bound to set aside the exparte decree—Code of Civil Procedure, 1908,
Order 9 Rule 13.
Md. Abul
Hossain and others Vs. Niranjon Mondal and others, 14 BLD (HCD) 442.
Service of
summons
When
service of summons is effected by hanging and there are allegations of
fraudulent suppression of the summons, a duty is cast upon the court in a suit
for setting aside an exparte decree to decide the question of service of
summons with reference to the evidence on record—Code of Civil Procedure, 1908
(V of 1908), Order5Rule 17.
Anwar
Hossain Chunnu and others Vs. Abdur Rashid Howlader and others, 15 BLD (HCD)
442.
Service of
summons
In
an application under Order IX Rule 13 C.P.C. for setting aside an exparte
decree on the ground of non-service of summons the prime consideration for the
Court is to see whether the plaintiff has been able to prove due service upon
the defendant. Once the defendant denies service of summons upon him the whole
onus shifts to the plaintiff to prove satisfactorily that summons was in fact
duly served—Code of Civil Procedure, 1908 (V of 1908), Order VIX Rule 13.
Since
the finding of the trial court as to non-service of summons cannot be said to
be perverse the High Court Division erred in law in setting aside that finding
entering into a question of fact.
Wazed Sarder
Vs. Md. Afsaruddin Sarder and others, 16 BLD (AD) 4.
Service of
summons
When
summons is served upon the defendant by hanging it is the requirement of law
that the Court should examine the process server on oath before declaring due
service. Although Rule 19A of Order V provides that a declaration of service by
the serving officer shall be received as a due service, the Court cannot accept
service of summons mechanically—Code of Civil Procedure, 1908 (V of 1908),
Order V Rules 17, 19 and 19A.
Abdul Wahab
Gazi Vs. sheikh Haider Ali and others, 16 BLD (AD) 53.
Service of
summons
When
summons is effected under Rule 17 of Order 5 C.P.C., Rule 19 casts a duty upon
the servying officer on oath touching
his proceeding and to ascertain by enquiry as to whether summons has been duly
served and make a declaration to that effect.
Rule
19A of Order 5 C.P.C. provides that a declaration made and subscribed by the
serving officer, shall be received as evidence of service of summons. In the
instant case in the absence of any declaration by the serving officer and in
the absence of examination of the process server by the Court, the order of the
learned Munsif reading “notice has been served” does not satisfy the
requirements of law as to due service. In such circumstances, it must be held
that there has been no due service of notices and the ex-parte decree is
accordingly set aside—Code of Civil Procedure, 1908 (V of 190.8), Order V Rules
17, 19. 19A
Sk. Haider
Au Vs. Abdul Wahab Gazi and others, 16 BLD (HCD) 316.
Service of
summons
When
irrelevant?
Petitioner
Jaripuddin entered appearance in the suit by filing a vokalatnama and filed
written objection in the injunction matter. But subsequently he did not file
any written statement in the suit and consequently the exparte decree was
passed. In that view of the matter, the petitioners’ plea that summons was not
served upon them is not tenable at all.
Md.
Jalaluddin and others vs. Mosammat Laily Begum and others, 16 BLD(AD)3
SET-OFF
Set off
The
plea of a counter claim or set off by a defendant being inconsistent with the
intent and purpose of the Adalat Act is not available to the defendant in a
case under the Artha Rin Adalat Ain—Code of Civil Procedure, 1908, Order 8 Rule
6(1).
Sonali Bank
Vs. M.S. Au Tenary and others, 14 BLD (HCD) 457.
Set off
An
application under Order XXI Rule 19 is not maintainable by a judgment debtor
for legal set off. On general principles and in exercise of its inherent power
and executing Court can entertain and give effect to a claim to set off, even
in cases which do not come strictly under Order XXI Rule 19 of the Code. An
equitable set off can be claimed in a case where cross demands arise out of the
same transaction or where they are so connected in nature or circumstances that
it would be inequitable to allow one party to execute his decree depriving the
other party to separate proceedings. No party as of right can claim such set
off, which may be granted by a Court in its discretion to be exercised
judicially—Code of Civil Procedure 1908 (V of 1908), Order XXI Rule 19.
Shankar Lal
Das v. Janata Bank and others. 22 BLD (HCD) 54.
SPECIFIC
PERFORMANCE OF CONTRACT
Specific
performance of contract Alternative prayer
When
the plaintiffs substantive prayer is for a decree for specific performance of
the contract, it cannot be argued that in the face of an alternative prayer for
the refund of the earnest money he is not entitled to a decree for specific
performance of the contract— Specific Relief Act, 1877 (I of 1877), Section
-22.
Amena Khatun
and others Vs. Hajee Abdul Jabbar being dead his heirs : Mst. Maleka Banu and
others, 14 BLD (AD) 267.
Specific
Performance of contract
When
the plaintiff fails to prove the execution of his bainapatra by examining the
scribe and other independent attesting witnesses and fails to prove his
possession in the suit land in pursuance of the contract for sale, he is not
entitled to get a decree for specific performance of the contract—State
Acquisition and Tenancy Act, Section-103
Kartick
Chandra Das Vs. Md. Abul Hossain Bhuiyan and another, 14 BLD (HCD) 585.
Specific
Performance of Contract
In
a suit for specific performance of contract relating to immovable property time
is not essence of the contract nor hardship of the defendant is a ground to
refuse relief.
Mst Anwara
Begum Vs Md Karimul Haque and others, 20 BLD (AD) 187.
STAY
Order of
Stay
Granting
of an order of stay by the High Court Division means the continuance of the
previously existing state of affairs and until the order of stay is vacated or
varied or until the Rule Nisi is disposed of, order under challenge has
absolutely no effect.
Md.
Nazimuddin Molla Vs Government of Bangladesh and others, 13 BLD (AD)177.
Stay of
execution of a decree
When
it appears to the court that the petitioner filed successive suits to frustrate
the decree obtained in an earlier suit the prayer for stay of the execution
case is liable to be rejected as being not bonafide. The stay of an execution
case is purely a matter of discretion for the court and this power has to be
exercised judicially—Code of Civil Procedure, 1908 (V of 1908), Order XXI Rules
26 and 29.
Asia Khatun
being dead her legal heirs and representatives Bulbul Ahmed and others Vs.
Rahatun Nesa and another, 15 BLD (AD) 47.
Stay of a
subsequent suit
Section
10 of the Code provides that when two suits are pending between the same
parties or between parties under whom they or any of them claim litigating and
the matters in issue are directly and substantially the same, the latter suit
shall be stayed.
In
the instant case, there being no two suits but one suit and the other a
miscellaneous case, the learned Assistant Judge was manifestly wrong in staying
the suit for the sake of a subsequently instituted miscellaneous
proceeding—Code of Civil Procedure, 1908 (V of 1908), Section—10.
Chairman,
Santosh Islami University Vs. Nil Mahmud and ors., 15 BLD (HCD) 542.
Stay of
execution
Where
a suit is pending in a Court between the decree-holder and the judgment- debtor
in respect of the decree in question, the Court may stay the execution of the
decree e until the pending suit has been decided. It has no reference to any
suit filed by a third party. In the instant case by the impugned order further
proceedings of the two execution cases have been stayed at the instance of a
third party and as such the same is not sustainable in law—Code of Civil
Procedure, 1908 (V of 1908), Order XXI Rule 29.
Abul Kalam
and others Vs. Kafiluddin and others, 16 BLD (HCD) 617.
Stay of
execution case
When
the plaintiffs got a decree on contest and the petitioners were parties in the
original suit, further proceedings of the execution proceeding cannot be stayed
for the sake of filing a subsequent suit by the petitioners—Code of Civil
Procedure 1908 (V of 1908), Order XXI, Rule 26.
Md. Jabed Au
Sheikh & others v. Md. Abdus Sobhan Sheikh & others, 22 BLD (AD) 183.
Stay of
subsequent suits
A
miscellaneous case under Order IX Rule 9 C.P.C. is not a continuation of the
suit for which further proceedings of an execution case can be stayed—Code of
Civil Procedure, 1908 (V of 1908), Section—10.
Md. Nurul
Islam and others Vs. Md. Maniruddin Bepari and others, 16 BLD (HCD)254
Stay of
Execution of a Decree
The
grant of stay of the execution of a decree is the discretion of the Court but
such discretion has to be exercised judiciously and not capriciously—Code of
Civil Procedure, 1908 (V of 1908), Order XXI Rule 26 and 29.
Abdul Karim
Sarkar and others Vs. Moslemuddin Fakir alias Moslemuddin Sarkar and others, 17
BLD (AD) 61.
Stay of suit
Under
section 10 of the Code of Civil Procedure the later suit shall remain stayed if
it is between the same parties and the matters in issue are substantially the
same. Where common questions of title are involved in the two suits it is
desirable that the suits be tried simultaneously although parties thereto are
not the same, for avoiding conflicting decisions and multiplicity of
litigations—Code of Civil Procedure, 1908 (V of 1908), Section— 10.
Faziur
Rahman Vs. Kazi Humayun Kabir and others, 17 BLD(HCD) 188
Stay of suit
of special court
It
is well-settled that the proceeding of any special Court cannot be stayed on
the ground of filing a suit under the general law even that is for the self
same matter and between the same parties. On the contrary suit filed under the
general law may be stayed in appropriate circumstances—Code of Civil Procedure,
1908( V of 1908), Section—lO.
Iftekhar
Afzal vs. Pubali Bank Ltd. and ors., 18 BLD (HCD) 642.
Stay of
judgment
Order
41 Rule 5(1) of the Code of Civil Procedure the authorises the appellate Court
to pass an order of stay of the impugned judgment or order in an appropriate
case without hearing the other side
Md. Reza Vs.
Executive Engineer, Facilities Department, Noakhali and others, 18 BLD (HCD)
272.
Stay
Mere
pendency of a suit for a decree for specific performance of contract in respect
of the premises in which the respondent obtained a decree for ejectment against
the petitioner is no ground to stay title execution case pending before the
executing court arising out of the decree passed in a suit for eviction.
Mosammat
Hazera Khatun Vs. Dr. Mohammad Enayetullah, 19 BLD (AD) 272.
Stay
An
application for stay under Order 21 Rule 29 read with section 151 of the Code
is maintainable in the subsequent suit challenging the decree pending in the
same Court for stay of the execution proceeding arising out of the decree
between the judgment creditor and the judgment debtor—Code of Civil Procedure,
1908 (V of 1908), Order XXI Rule 29 read with section 151.
Zagir
Hussain Vs. Aminul Haque & ors., 19 BLD (HCD) 366.
Stay
Mere
filing of an appeal does not by itself give any automatic right to the
appellant to get an order of stay of the operation of the impugned judgment or
order or of the proceedings in question. It is purely discretionary with the
appellate Court to grant such a relief only for a sufficient cause. If the
operation of the order of temporary injunction is stayed till the disposal of
the appeal, it simply means that there is not only no order of injunction in
existence but also it virtually gives the appellant the final relief of the
appeal pending adjudication. In the absence of any compelling reasons and that
too for preventing an apparent injustice, the stay of operation of the impugned
order of temporary injunction pending decision in the appeal is not
contemplated in law—Code of Civil Procedure, 1908 (V of 1908), Order XLI Rule
5.
A. Hamid
Shah @ Hamed Shah Vs. Basheruddin Shah & ors., 19 BLD(HCD)520.
Execution
case
Execution
of a decree or an order shall not be stayed automatically by reason only of an
appeal having been preferred from any decree or order and the same having been
admitted in the appellate Court can stay in an appropriate case—Code of Civil
Procedure, 1908 (V of 1908), Order XLI Rule 5 read with order XLIII Rule 2.
Zakaria
Hossain Chowdhury Vs The City Bank Limited, 21 BLD (HCD) 170
Stay of
Execution Case
A
Court can stay further proceedings of the execution case at the instance of a
person against whom the decree was passed if a suit is pending against the
holder of the decree in the same Court but the Court in such cases can stay on
such terms as to security or otherwise as it thinks fit.
Abdul Bashir
Vs Abdur Rashid and others, 21 BLD (HCD) 453
SUBSTITUTION
Substitution
Although
Order 22 C.P.C. does not persee apply to a proceeding in revision, the
consistent practice of our Court has been to treat an application for
substitution in a revision case under that order. The Rule does not abate for
non-substitution within 90 days. Courts have always been liberal in allowing
substitution in a revision case when there is no gross laches on the part of
the defaulting party—Code of Civil Procedure, 1908 (Act V of 1908), Order—22.
Badal Kanti
Barua and others Vs. Must. Jigarunnessa, 14 BLD (AD) 203.
Substitution
Order
22 Rule 4(1) speaks about ‘legal representative’ as defined in sub-section (11)
of Section 2 C.P.C. A transferee of a property sold by a person is not his
legal representative. Sub-rule (2) of Rule 10 of Order I C.P.C. empowers a
Court at any stage of the proceeding to add a person as a party whose presence
is considered by the Court necessary for effective and complete adjudication of
all questions involved in the case—Code of Civil Procedure (V of 1908), Section
2 sub-section (11), Order I Rule 10 and Order 22 Rule 4 (A).
Md. Abu
Tayeb Ali Mia Vs. Nakul Chandra Basak and others, J4BLD (HCD)306
Substitution
in Revision
There
is no limitation for substitution of the heirs of deceased parties in a
revisional application. In a suit for partition, the right to sue survives till
final decree is made and heirs of deceased defendants or plaintiffs should be
brought on record or else complications shall follow—Code of Civil Procedure
1908 (V of 1908), Order XXII Rule 2.
Md. Hossain
and others v. Dildar Begum & ors., 22 BLD (AD) 111.
Substitution
of legal heirs
The
rights of the contending parties in a suit for partition are determined in the
preliminary decree and the final decree is just a follow-up of the preliminary
decree in effecting partition by metes and bounds. So, if the final decree is
completed in the absence of a contesting defendant, who was allotted a specific
Saham, it is likely that his vital interests. would go unrepresented and he is
likely to be adversely affected thereby. The learned trial Court thus erred in
law in not substituting the heirs and the heiresses of deceased defendant Abdus
Salam in the execution proceedings— Code of Civil Procedure, 1908( V of 1908),
Order XXII Rule 4(1).
Kabirunnessa
and ors. Vs. Abdul Shahid and ors., 18 BLD (HCD) 78.
Substitution
of legal representative
Any
of the plaintiff on record or legal representative of the deceased plaintiff
may file an application for substitution of the heirs of any of the deceased
plaintiff.
When
a plaintiff in a case dies ordinarily all his or her legal representatives
should be brought upon the record as plaintiffs unless some of them decide to
be impleaded as defendants. In the instant case although the concerned heirs,
who are left out earlier, did not take any steps for impleading themselves but
the learned trial court on the application of other heirs of the deceased
plaintiff rightly impleaded them as plaintiffs in the suit— Code of Civil
Procedure, 1908 (V of 1908), Order XX Rule 4.
Firoza
Khanam & ors. Vs. Dr. Golam Safiruddin, 20 BLD (HCD) 69.
Substitution
of legal representative
In
considering the prayer for substitution the Court has a duty to see whether the
application has been filed in time and whether the suit has abated in the
meantime for non- substitution—Code of Civil Procedure, 1908 (V of 1908) Order
XXII Rule 9(2).
Mrs. Saleha
Khatun & ors. Vs. Most Fatema Hajura & ors.,20 BLD (HCD) 438
SUCCESSION
Succession
In
every case where either the will itself or anything done under it is
challenged, proof of execution and capacity on the part of the testator and of
the appointment of the executor, would be required. The object of the section
is only to get rid of this multiplicity of proofs. Probate once granted
authenticates the will against all the world—Probate and Administration Act,
1881 (Act V of 1881), Section—12.
Sree
Jogendra Math alias Govinda Sarker Vs. Amulya Chandra Sarker and others, 13 BLD
(AD) 160.
Succession
Revocation
of certificate
A
person seeking revocation of a certificate granted by a competent court must
have some interest in the property of the testator— Succession Act, 1925 (XXXIX
of 1925), Section—383.
Arabinda
Sarker Vs. Bimalenda Bhowmick and others, 16 BLD (AD) 18.
SUSPENSION
Suspension
In
view of the fact that a Govt. appeal is pending against the order of acquittal
of the petitioner, the prayer for declaring his suspension order to be of no
lawful authority is not tenable in the eye of law—Constitution of Bangladesh,
1972, Article—27
A.F.M.
Hamidul Hoque v. The Directors, National Savings Directorate, 22 BLD (HCD) 448
Suspension
of Chairman
The
three alternative circumstances providing the occasion for the Government to
exercise power of suspension of a Chairman are: (1) where any proceeding has
been initiated for his removal under Section 12 or (2) where any criminal
proceeding has been started against him or (3) where on enquiry, the Government
finds him guilty of any misconduct within the meaning of Section 12(I). But the
exercise of this power is conditioned by the formation of an opinion by the
Government that his functioning as Chairman is prejudicial to the interest of
the Union Parishad or undesirable from the view of public interest—Local
Government (Union Parishads) Ordinance, 1983 (LI of 1983). Sections-60-65.
Bangladesh
Vs. Md. Lokman Patwari and another, 14 BLD (AD) 155.
Suspension
of Chairman
Rule
4 of the Union Parishad Chairman and Members (Resignation, Removal and Vacation
of Office) Rules, 1984, provides that the application may be submitted by the
requisitionists either to the Upa-Zilla Nirbahi Officer or the Deputy
Commissioner for convening a special meeting as required by subsection (2) of
Section 12 of the Ordinance. In the instant case, a copy of the application for
convening a special meeting addressed to the Deputy Commissioner being also
sent to the Nirbahi Officer, the letters action authorising the Assistant
Commissioner for holding enquiry and conducting the requisition meeting is not
without lawful authority—Local Government (Union Parishads) Ordinance, 1983,
Section—12, Union Parishad Chairman and Members (Resignation, Removal and
Vacation of Office) Rules, 1984, Rule—4.
Alhaj Md.
Saidur Rahman Vs. The Secretary, Ministry of Local Govt. and Rural Development
and others, 14 BLD (HCD) 275.
Suspension
of Chairman
Before
suspending or removing a Chairman or member of the Union Parishad the
Government must form an opinion on the basis of an enquiry that the delinquent
acted in a manner prejudicial to the interest of the Union Parishad or
undesirable from the point of view of public interest. Passing of any order of
suspension/removal without complying with the requirements of law cannot be
sustained—Local Government (Union Parishads) Ordinance, 1983 (LI of 1983),
Sections—12(l) and 65(1).
Bangladesh
Vs. Md. Lutfur Rahman and others,), 17 BLD (AD) 303.