Khandaker Golam Najib (Appellant)
Chairman, Board of Directors, Agrani Bank, Head Office, Dhaka & others (Rspondents)
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
BB Roy Choudhury J
Judgment : November 4th, 1996
Cases Referred to-
Bangladesh vs. M Mustafa and others 35 DLR 404 Saleh Ahmed Joarder vs. People’s Republic of Bangladesh, 36 DLR ( 26 and Executive Engineer Public Health, Barisal Division vs. Mohammad Ali, 41 DLR (AD) 64.
Shafique Ahmed, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record- For the Appellant.
Syed Abdur Rahman, Advocate instructed by Shamsul Haque Siddique, Advocate-on- Record — For the Respondents.
Civil Appeal No. 15 of 1996
(From the Judgment and order dated 31-7-94 passed by the Administrative Appellate Tribunal in Appeal No. 59 of 1993)
Mustafa Kamal J: This appeal by leave by the petitioner-appellant is from the Judgment and order dated 31-7-94 passed by the Administrative Appellate Tribunal in Appeal No. 59 of 1993 dismissing the appellant’s appeal and affirming the judgment and order dated 15-5-93 passed by the Administrative Tribunal, Dhaka in Administrative Tribunal Case No. 27 of 1989, dismissing the appellant’s application under section 4(2) of the Administrative Tribunal Act, 1980 (Act No. VII of 1981), henceforth the said Act.
2. The appellant, a Manager in the Audit Division of the Head Office, Agrani Bank, respondent No. 2 was departmentally proceeded against by a charge-sheet dated 8-11-77 following which he was dismissed from service on 16-2-79, an appeal from which order was also rejected by the Chairman. Board of Directors of the said Bank on 21-12-81. He filed Title Suit No. 109 of 1982 in the 3rd Court of Subordinate Judge, Dhaka which on transfer to the court of Subordinate Judge and Commercial Court, Dhaka was renumbered as Title Suit No. 72 of 1984. By a judgment and decree dated 28-3-85 the appellant’s suit was decreed and the impugned orders dated 16-2-79 and 11-12-81 were declared to be void, illegal and without jurisdiction and the plaintiff were declared to be still in service in the eye of law with loss of 3 years seniority in service. The respondent bank preferred Title Appeal No. 94 of 1985 and the appellant also filed a cross appeal. The respondent’s appeal was dismissed and the appellant’s cross-appeal was allowed by judgment and decree dated 28-4-86 passed by the 3rd Court of Additional District Judge, Dhaka. The trial Court’s decree was modified thereby. The decree of loss of 3 years’ seniority in service was deleted. The appellant joined his services on 28-4-86 and he submitted an application on 20-12-86 to the Chairman, Board of Directors of the Bank, respondent No.1 for arrear pay and other financial benefits where after he was informed on 7-9-89 that his prayer had been rejected by the Board. The appellant then filed case No. 27 of 1989 on 29-1-89 before the Administrative Tribunal. Dhaka, claiming as many as nine reliefs mainly concerning his arrear pay, etc. from 16-2-79 to 13-8-86, scale of pay, promotion and other benefits. The Administrative Tribunal dismissed the appellant’s case solely on the ground that the reliefs claimed for emanate from the Civil Court’s decree and are in the nature of ancillary and consequential reliefs arising out of the Civil Court’s decree. The appellant by putting the decree into execution in the Civil Court under the saving clause provided in section 13 of the Administrative Tribunals Act 1980 can ask for execution of the decree from the same Court which passed the decree. The petition was held to be not maintainable before the Tribunal. The merit of the appellant’s case was not gone into.
3. On appeal the Appellant Tribunal concurred with the opinion of the Administrative Tribunal and, as already noticed, dismissed the appeal.
4. Leave was granted on the submissions that the Tribunals below erred in not considering that the cause of action of the appellant before the Tribunal arose not because the appellant was praying for some ancillary or consequential reliefs following the decree of the Civil Court, but because the Board of Directors of the respondent bank illegally refused his prayer for arrear salary and other reliefs in violation of the decisions laid down in the cases of Government of Bangladesh vs. Md. Mustafa and others 35 DLR 404, Saleh Ahmed Joarder vs. People’s Republic of Bangladesh, 36 DLR (AD) 26 and Executive Engineer, Public Health, Barisal Division vs. Mohammad Ali, 41 DLR (AD) 64 and thus erred in law in not holding that the appellant’s application before the Tribunal is founded upon a new cause of action, hence maintainable.
5. Mr. Shafique Ahmed, learned Counsel for the appellant, placed before us the plaint and judgment of Title Suit No. 72 of 1984. In the plaint the appellant prayed for a declaration that the orders dated 16-2-79 and 21-12-81 are void, illegal, without jurisdiction, malafide, inoperative and without lawful authority and that the plaintiff (appellant) is still in service in the eye of law. In the judgment of the trial Court in Title Suit No. 72 of 1984 it was ordered as follows:
“That the suit be decreed on contest again the defendant without any order dated 16.2.79 passed by the defendant No. 1 dismissing the plaintiff from service and the order dated 11.1241 passed by the defendants 2 and 3 are void, illegal, without jurisdiction and the plaintiff is still in service in the eye of law but the plaintiff will lose 3 years’ seniority in service.”
6. In Title Appeal No. 94 of 1985 passed by the 3rd Court of Additional District Judge Dhaka the final order is as follows:
“ Otoeb adesh hoi je , otro appeal mamla dotorfa shutre moi khoroche dismiss hoilo. Ukto morme nimno adaloter rai bohal rohilo tobe uporokot alochoner mormanushare nimno adalot kortik jonab Najiber 3 botshorer siniority binoshto kora shongkranto adesh batil kora galo.”
7. Mr. Shafique Ahmed submits that in pursuance of the Appellate Court’s decree the appellant joined his services on 28-4-86 As such the appellate decree was fully executed and there remained nothing for the trial Court to execute anything further in pursuance of the decree obtained by the appellant. What the appellant submitted to the Chairman, Board of Directors of the respondent Bank by his representation dated 20-12-86 were neither ancillary nor consequential reliefs granted or to be granted in pursuance of the decree obtained by the appellant. Mr. Shafique Ahmed then placed before us the appellant’s representation dated 20-12-86. He claimed absorption in the new National Pay Scale of Taka 1400.00-2225.00 also claimed promotion as a matter of right in respect of officers of category and was aggrieved by his placement as Grade-V Senior Officer carrying the new scale of pay of Taka 425-1275.00 instead of his proper scale of pay of Taka 1400-2225. He claimed that he sustained a loss of Taka 3.67.039, 86 due to his illegal dismissal from 16-2-79 to 13.8.86 which he also claimed to be paid as his salary and allowances. All these grievances relate to service benefits, namely, promotion, fixation of correct scale of pay, status, position and seniority it service. These reliefs were neither claimed in tie plaint nor decreed. As such, he submits, both the Tribunals below committed an illegality in holding that the representation as aforesaid was made (a allowing the appellant’s service benefits as per judgment and decree of the Civil Court and that the Tribunal case was instituted for enforcement of those rights and consequential benefits arising Out of the judgment and decree of the Civil Court. Mr, Shafique Ahmed further submits that both the Tribunals erred in law in holding that in the facts of the present case the Tribunals have no authority to execute a decree of a Civil Court and that the application in the form instituted is not maintainable. The Tribunals below have also misinterpreted section 13 of the said Act.
8. M Syed Abdur Rahim learned Counsel for the respondent-Bank, in re-reading the appellant’s representation dated 20-12-86 points out that the appellant himself stated variously at various places in the said representation that the claims that he was putting forward were in terms of the judgment and decree of the Civil Court. That appears to be correct, but the refusal of the respondent-Bank contained in its letter dated 7-1-89 was specifically on the ground inter alia, that in the judgment of the Civil Court there was no direction to the respondent-Bank to confer on the appellant’s promotion and other service benefits now being asked for by the appellant after his re-instatement.
9. This is the root cause of refusal of the appellant’s representation and therefore the moot point is, whether the appellant will go to the Civil Court for execution of the decree or wilt files an application to the Administrative Tribunal for redress of his grievances.
10. Mr. Syed Abdur Rahim, upon hearing the learned Counsel for the appellant, now finds it difficult to support the views of the two Tribunals that the appellant’s remedy lies, in executing the decree of the Civil Court because, as Mr. Shafique Ahmed rightly submitted, after the appellant was re-instated in service, there remained nothing by way of execution of the Civil Court’s decree which was merely declaratory in nature.
11. Both the Tribunals below have relied upon section 13 of the said Act which is as follows:
13. “Savings-All suits, cases, applications and appeals relating to any matter in respect of which a Tribunal has jurisdiction pending, immediately before the commencement of this Act, before any court shall be tried, heard and disposed of by such Court, as if this Act had not come into force.”
12. It is obvious that section 13 of the said Act has no manner of application in the facts and circumstances of the present case. The decree of the Civil Courts having already been executed after the appellant was re-instated in service, his subsequent prayer for promotion, status, scale of pay, arrear pay and other benefits do not fall in the category of any pending suit, case, application and appeal pending immediately before the commencement of the said Act. This is a new cause of action arising after the commencement of the said Act and the appellant has correctly invoked the jurisdiction of the Administrative Tribunal for obtaining relief in the matter prayed for. The two Tribunals apparently took a wrong view that these relief are ancillary and consequential reliefs emanating from the decree of the Civil Court and have wrongly refrained from exercising their jurisdiction in the matter.
The appeal is allowed with costs and remanded to the Administrative Tribunal for hearing the case in accordance with law.
Source : 49 DLR (AD) (1997) 109