General Manager, Postal Insurance, Eastern Region, Dhaka Vs. A.B.M. Abu Taher

General Manager, Postal Insurance, Eastern Region, Dhaka and another (Appellants)

Vs.

A.B.M. Abu Taher (Respondent)

Supreme Court

Appellate Division

(Civil)

JUSTICES

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Shah Abu Nayeem Mominur Rahman J

Judgment : March 17, 2009.

Case Referred To-

Mahbubur Rahman Sikder Vs. Mojibur Rahman Sikder, 37 DLR (AD) 145.

Lawyers:

Enayatur Rahim, Additional Attorney General, instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For the Appellants.                                         

Mahmudul Islam, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Respondent.

Civil Appeal No. 123 of 2004

(From the judgment and order dated 30.4.2002 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.61 of 1998).

JUDGEMENT

                 Md. Joynul Abedin J. – This appeal has arisen by leave from the judgment and order dated 30.4.2002 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 61 of 1998 allowing the appeal on contest.

2. The short fact is that the respondent instituted Administrative Tribunal Case No.47 of 1995 before the Administrative Tribunal, Dhaka alleging, inter alia, that he was appointed as Lower Division Clerk (L.D.C.) on 3.1.1962 in the Postal Life Insurance and since then he discharged his duties honestly and sincerely. Later on he was promoted as Upper Division Clerk (U.D.C.) on 19.8.1968. Thereafter, he was promoted to the post of Superintendent and was serving in that capacity to the sat­isfaction of the concerned authority. The appellant had to go home on account of resolving his land disputes and according­ly he filed an application for leave from 3.4.1993 to 28.4.1993 and left the station. However the appellant No. 2, the Regional Manager, Postal Life Insurance, Regional Office, Dhaka by his letter dated 11.4. 1993 informed the respondent that his prayer for leave was refused and he asked him to join his duties. He however was not aware of the said instructions made in the said letter dated 11.4.1993. The respon­dent was under the impression that his leave petition would be allowed and no exception would be taken for his absence for those days. After joining in the Office, the respondent came to know that he was selected for a training course on the Management of Insurance Business. Accordingly he went to Rajshahi for 7(seven) days training at the Rajshahi Postal Training Academy. In 1989 the respondent was attacked with “Jaundice” and he also suffered from various other ailments and as a result his health deterio­rated. Upon the advice of the Doctor the respondent had to apply for casual leave on 16.5.1993, 18.5.1993 to 20.5.1993 and 20.5.1993 to 30.5.1993 and thereafter he also prayed for earned leave from 6.6.1993 to 28.6.1993. While the respondent was enjoining his medical leave as per the advice of the doctor, the appellant No.2 by his letter dated 15.6.1993 informed the respondent that the leave as prayed for could not be granted and asked him to join his duties immediately without referring him to the Civil Surgeon. The respondent was again intimated by anoth­er letter dated 16.6.1993 of the appellant No.2 to remain on compulsory leave as per Rule 11 (2) of the Government Servants (Discipline and Appeal) Rules, 1985 until further orders although the said Sub-Rule 2 of Rule 11 of the said Rules was already omitted by S.R.O. No.304-Law/89/EM (Reg-5)1-D/88 dated 13.3.1989.

3. Thereafter, a proceeding was started against the respondent for misconduct by letter dated 4.7.1993 issued by the appel­lant No. 2 as per Rule 3(6) of the Government Servants (Discipline and Appeal) Rules, 1985 for unauthorized absence in the office. Consequently he was asked to show cause within 10(ten) days as to why he should not be dismissed from service. On receipt of the said letter, the respondent submitted his reply on 28.7.1993 explaining his position stating that the charge of misconduct so framed against the respondent was not sustainable in law inasmuch as it did not fall within the ambit of Rule 3(b) of the said Rules of 1985 and prayed for exoneration from the alleged charge of misconduct. But the authority was not satisfied with the expla­nation submitted by the respondent and ultimately Mr. Moklesur Rahman, Superintendent (Post Office), P.M.G. Office, Dhaka Division, Dhaka was appointed as the Inquiry Officer to inves­tigate the charge of misconduct by his memo dated 17.8.1983. But the inquiry officer without following the provision as laid down in Sub-Rule (4) of Rule 7 of the said Rules fixed the date of inquiry on 7.12.1993 and without affording any opportunity of self-defence to the respon­dent the inquiry was completed on the aforesaid date. No witness was present before the inquiry officer and the respon­dent was not given any opportunity to cross-examine the witnesses of the man­agement. The inquiry officer however submitted his report on 22.1.1994 finding the respondent guilty of the charge. Thereafter the respondent received a sec­ond show cause notice on 10.3.1998 to which the respondent replied on 28.3.1994. The appellant without consid­ering the facts and circumstances of the case and the provisions of law applicable in the case most illegally and with malafide intention passed an order dated 18.5.1994 retiring the respondent from service. The respondent then filed a departmental appeal but the same was summarily dismissed.

4. The respondent therefore filed Administrative Tribunal Case No.47 of 1995 which was contested by the appel­lants. The Administrative Tribunal on con­sideration of the materials on record allowed the case of the respondent by its judgment and order dated 8.7.1998. Hence, the appellant preferred appeal before Administrative Appellate Tribunal which was dismissed on contest by the judgment and order dated 30.4.2002. In this backdrop, the appellant filed Civil Petition for Leave to Appeal No.1384 of 2002 and this court by its judgment and order dated 6.11.2002 dismissed the same as time-barred. This led the appellant to file civil review petition on the ground that the delay in filing the leave petition was unintentional and for reasons beyond their control.

5. Leave was granted to consider; (1) whether this court erred in dismissing the leave petition by failing to condone the delay of 54 days in view of the fact that the delay was explained by filing a peti­tion for condonation of delay stating that it occurred due to reasons beyond their con­trol and it was unintentional inasmuch as the appellants took adequate and reasonable steps for movement of the case file for preferring the leave petition before this court and (2) whether this court erred in law in dismissing the leave petition despite the fact that the respondent framed definite charges against the respondent for unauthorized absence without prior per mission of the concerned authority rendering the respondent liable for compulsory retirement and the respondent having been proved guilty for such unauthorized absence without prior permission of the concerned authority rendering the respondent liable for compulsory retirement and the respondent having been proved guilty for such unauthorized absence on a proper departmental injury.

6. Mr. Enayutur Rahim, the learned Additional Attorney General for the appellants vehemently argues that the delay in filing the writ petition having been exhaustively explained this court ought to have accepted the explanation as satisfactory and allowed the appeal by condoning the delay, more so when the respondent was found guilty for unauthorized leave on proper departmental inquiry in accordance with law.

7. Mr. Mahamudul Islam, the learned Advocate for the respondents contends that the grounds canvassed in support of the review of the earlier judgment of this court are no ground for review in law. He also submits that this court acted in accordance with law in refusing to condone the delay inasmuch as the grounds agitated for condoning the delay was not satisfactory,

8. This court by its judgment dated 6.11.2002 dismissed the civil petition for leave to appeal filed by the respondent on the finding, that the explanation offered seeking condonation of delay is totally unsatisfactory. A judgment pronounced by this court is normally final and should not be readily disturbed or interfered with by resorting to the exercise of the power of review except in the manner provided by law. A party is not entitled to seek a review of a judgment delivered by this court merely for the purpose for rehearing and a fresh decision of the case and departure from that principle is justified only when circumstances of a substantial and com­pelling character made it necessary to do so.

9. Review matters are governed and regu­lated by the provisions of Order 47, Rule 1 of the Code of Civil Procedure and Order 26 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. As a matter of practice and rules this court proceeds to review a judgment pro­nounced earlier by it upon an application for review by an aggrieved party. Prior to hearing a review petition the court has to be satisfied that grounds for review as mentioned in Order 26 of the said Supreme Court Rules exists. Reference may be made in this regard to the case of Mahbubur Rahman Sikder Vs. Mojibur Rahman Sikder, 37 DLR (AD) 145.

10.  It appears from the record that this court dismissed the leave petition on the ground that delay in filing the same was not satisfactorily explained and the order of compulsory retirement of the respon­dent was also not found to have been passed in due compliance of the relevant service rules. Grounds taken for review are not new and these grounds were agitat­ed earlier by the respondent before this court and the same were answered while dismissing the leave petition. The respon­dent by filing the review petition merely sought for rehearing of the, matter which is not permissible in law. The contentions raised by Mr. Mahamudul Islam therefore appear to have good deal of force, we are of the view that this court upon correct assessment of the materials on record arrived at a correct decision. There is therefore no warrant in law to interfere with the same.

The appeal is accordingly dismissed without any order as to costs.

Ed.

Source : 61 DLR (AD) (2009) 97

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