Appellate Division Cases
(Civil)
PARTIES
Khandaker Golam Najib ………………………………Appellant
-VS-
Chairman, Board of Directors, Agrani Bank, Head Office, Dhaka and others ………………..Respondents.
JUSTICE
A.T.M. Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
JUDGEMENT DATE: 4th November 1996.
The Administrative Tribunal Act, 1980 (Act No. VII of 1981), Section 4(2), 13
Government of Bangladesh vs. Md. Mustafa and others. 35DLR404, Saleh Ahmed Joarder Vs. People’s Republic of Bangladesh, 36DLR(AD) 26 and Executive Engineer, Public Health, Barisal Division vs. Mohammad Ali, 41DLR(AD) 64
Prayed for a declaration that the orders dated 16-2-79 and 21-12-81 are void, illegal,
without jurisdiction, mala fide, inoperative and without lawful authority and that the plaintiff (appellant) is still in service in the eye of law ………………….(5)
It is obvious that section 13 of Act No. VII of 1981 has no manner of application of the facts and circumstances of the present case. The decree of the Civil Court having already been executed after the appellant was re-instated in his 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 Act No. VII of 1981. There are new causes of action and the appellant has correctly invoked the jurisdiction of the Administrative Tribunal for obtaining relief in the matters prayed for. The two Tribunals apparently took a wrong view that these reliefs are anciliary and consequential reliefs emanting from the decree of the Civil Court and have wrongly refrained from exercising their jurisdiction in the matter. The Administrative Tribunal will now hear the appellant’s petition on merit …………………. (12)
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).
Shafique Ahmed, Advocate, instructed by Md. Aftab Hossain, Advocate-cm-Record………………… For the appellant
Syed Abdur Rahini, Advocate, instructed by Shamsul Haque Siddique, Advocate-on-
Record.
JUDGMENT
1. Mustafa Kamal J: This appeal by leave by the 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 affinning 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 4(2) of the Administrative Tribunal
Act, 1980.
2. The appellant, a Manager in the Audit Division of the Head Office, Agrani Bank was departmentally proceeded against by a charge-sheet dated 8-11-77 following which he was dismissed from service on 162-79, 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 11-2-81 were declared to be void, illegal and without
jurisdiction and the plaintiff was declared to be still in service in the eye of law but will lose 3 year’s 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, thereby modifying the trial Court’s decree by deleting the decree of loss of 3 years’ seniority in service. The appellant joined his services on 284-86 and on 20-12-86 he submitted an application to the Chirman, Board of
Directors of the Bank for arrear pay and other financial benefits hereafter 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 13-886, scale of pay, and other benefits. The Administrative tribunal dismissed the
appellant’s case mainly 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 not maintainable before the Tribunal.
3. On appeal the Appellate 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 for the appellant before the Tribunal arose not because the appellant was praying for an ancillary or consequential relief 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 reported in Government of Bangladesh vs. Md. Mustafa and others. 35DLR404, Saleh Ahmed Joarder Vs. People’s Republic of Bangladesh, 36DLR(AD) 26 and Executive Engineer, Public Health, Barisal Division vs. Mohammad Ali, 41DLR(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.
5. Mr. Shafique Ahmed, learned Counsel for the appellant placed before us the plaint
and decree of Title Suit no. 72 of 1984. In the plaint the appellant prayed for a declaration
that the orders dated 16-2-79 and 2112-81 are void, illegal, without jurisdiction, mala fide, inoperative and without lawful authority and that the plaintiff (appellant) is still in service in the eye of law. In the ordering portion of 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
against the defendant without any order as to costs. It be declared that the order dated 16-2-79 passed by the defendant No.l dismissing the plaintiff from service and the order dated 11-12-81 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 loose 3 years seniority in service.”
6. The ordering portion in Title Appeal No. 94 of 1985 passed by the 3rd court of
Additional District Judge, Dhaka is as follows: (Bangla)
7. Mr. Shafique Ahmed submits that in pursuance of the appellate Court’s decree the
appellant joined his service 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 where neither ancillary nor consequential reliefs granted or to be granted in pursuance of the decree obtained by the appellant. Mr. Shafuque Ahmed then placed before us the representation dated 20-12-86. He claimed absorption in the New National Pay Scale of Tk. 1400-2225/and a permitted Scale of Pay of Tk. 18502350/- from 1-12-79. He also claimed promotion as a matter of right in respect of officer of his category and was aggrieved by his placement as Grade-V Senior Officer canying the New Scale of Pay of Tk. 425-1275/ instead of his proper Scale of Pay of Tk. 1400-2225/-. He claimed that he sustained a loss of Tk.3,67.039/- 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 including promotion, fixation of correct Scale of Pay, status, position and seniority in the services of the Bank and were neither claimed in the plaint nor decreed as such, he submits, both the Tribunals below committed an illegality in holding that the representation as aforesaid was made for allowing the appellant’s service benefits as per judgment and decree of the enforcement of those rights and consequential benefits arising out of decree and judgment 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.
8. Mr. Syed Abdur Rahim, learned Counsel for the respondent-Bank submits that the
appellant in his own representation dated 20-12-86 stated variously at varisous places that the claims that he was putting forward was in terms of the judgment and decree of the Civil Court and he pointed out those very assertions of the appellant from this representation dated 20-12-86. That appears to be correct, but the refusal of the respon-
dent-Bank contained in its letter dated 7-189 was specifically on the ground in the
judgment of the Civil Court there was no direction to the respondent-Bank to permit for confer the service benefits now being asked after re-instating the appellant.
9. This is the 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
will file 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 are 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 Administrative Tribunals Act, 1980 (Act No. VII of 1981). Section 13 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 Act No. VII of 1981 has no manner of application of
the facts and circumstances of the present case. The decree of the Civil Court having
already been executed after the appellant was re-instated in his 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 Act No. VII of 1981. There are new causes of action and the appellant has correctly invoked the jurisdiction of the Administrative Tribunal for obtaining relief in the matters prayed for. The two Tribunals apparently took a wrong view that these reliefs are anciliary and consequential reliefs emanting from the decree of the Civil Court and have wrongly refrained from exercising their jurisdiction in the matter. The Administrative Tribunal will now hear the appellant’s petition on merit.
13. The appeal is allowed with costs and remanded to the Administrative Tribunal for hearing the case in accordance with law.
Ed.
Source: IV ADC (2007), 317