Md. Eklashur Rahman Khan Vs. DGM Bangladesh Krishi Bank Dhaka and ors. (Naima Haider, J.)

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Moyeenul Islam Chowdhury, J. And Naima Haider, J. Judgment 05.08.2010

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Md. Eklashur Rahman Khan …Petitioner. Vs. Deputy General Manager, Staff management Division-1, Bangladesh  Krishi Bank, Head Office, Dhaka and others. …Respondents.

Constitution of Bangladesh, 1972

Article 102

Bangladesh Service Rules

Part I, Clause 9

Bangladesh Krishi Bank Karmachari

Probhidan Mala, 1988

Clause 55

In the instant case, admittedly the age of the petitioner as declared by the petitioner at the time of entry into the service of the Bank is discrepant with the age as shown in his S.S.C certificate. As per clause 9 of the B.S.R Rules read with Clause 55 of the Bangladesh Krishi Bank Karmachari Prob-hidhan Mala, the age as reflected in the petitioner’s S.S.C certificate must prevail over the age as declared by the petitioner at the entry point of his employment.

Pearlberg Vs. Varty (Inspector of Taxes), [1971] 2 All ER 552 (CA), ref.

Mr. Khijir Ahmed, Advocate with

Mr. Dider Alam Kollol, Advocate

…For the Petitioner.

Mr. Md. Delwar Hossain, Advocate

…For the respondents 1 to 6.

Judgment

Naima Haider, J :

In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents  to show cause as to why the Memo No. Proka/Kobaybi-1.bay.na (u.ka) e/42/2005-2006/4345 dated 13.03.2006 issued by the deputy General Manager, respondent No.1, ordering retirement of the petitioner from his service under section 9(1) of the Public Servang (Retirement) Act, 1974 and Memo No. Proka/Kobaybi-1/bay na (u.ka) /e-42/2005-2006/4345(15) dated 13.03.2006 issued by respondent No.2 requesting the Deputy General Manager, Human Resource Development Division, Bangladesh Krishi Bank, Head Office, Dhaka to deduct the salary and other emolument of the petitioner drawn from 06.01.2004 from his pension (Annexure-D) should not be declared to have been done without any lawful authority and is of no legal effect or such other or further order or orders passed as to this Court may seem fit and proper.

1. 2.          In order to appreciate the contentions raised by the respective parties and to answer the issues raised here, a brief narration of the facts relating to the filing of the present writ petition is set out hereinafter.
2. 3.          The petitioner was appointed as a Junior Assistant of Bangladesh Krishi Bank vide Memo No. 1(2)77-78/558 dated 26.08.1977. On commencement of the service, he was initially appointed as a probationer for a period of one year. His service was thereafter confirmed and his service book was prepared entering the date of birth of the petitioner as 06.01.1953 on the basis of the application and papers annexed thereto submitted by the petitioner at the time of his application for employment. During the continuation of the service, the petitioner was promoted as Supervisor in 1980, as an officer in the year 1985 and lastly he served as a Senior Officer from 23.03.205 till issuance of the impugned notice. The petitioner had been performing his duties in various branches of the Bank. While performing his duties as a Senior Officer in the Cerkhi Branch, Sylhet, all on a sudden he received a letter on 16.03.2006 issued by the respondent Bank under section 9(1) of the Public Servant (Retirement) Act, 1974 announcing his retirement from his service on completion of 57 years treating his date of birth as 06.01.1947. The same letter also contained a direction issued by the respondent No.2 for deducting his salary and other emoluments from 06.01.2004 from his pension. Being aggrieved by the said letter and finding no other alternative and efficacious remedy, the petitioner moved this Court and obtained the Rule Nisi.
3. 4.          Mr. Khijir Ahmed, the learned Advocate appearing on behalf of the petitioner submits at the very out set that the date of birth of the petitioner supplied by him to the respondent Bank has been recorded in the service book as 06.01.1953. The respondents after verifying the necessary documents and certificates and the information supplied by the petitioner at the time of his entry into the Bank and on being satisfied  had offered the petitioner a position in the bank. He submits that the maximum age limit for entering into the Bank was 25 years. In taking into consideration the date of birth of the petitioner as 06.01.1953, the petitioner’s entry into service was well within time. Mr. Ahmed contends that if the date of birth of the petitioner was taken to be  6.01.1947, he would not have been able to join the service. He further submits that the discrepancy as to the date of birth actually cropped up when the petitioner found that his school record erroneously recorded his date of birth as 06.01.1947 and as a result of which the S.S.C. certificate bears the same date of birth i.e., 06.01.1947. After detecting this  anomaly, the uncle and guardian of the petitioner had sworn an affidavit on 08.01.1969 before the Magistrate, 1^st class, Sylhet stating that birth date of the petitioner was 06.01.1953.
4. 5.          Mr. Ahmed further submits that at the time of joining the Bank the petitioner had submitted his S.S.C. certificate as well as the affidavit affirmed by his uncle and guardian dated 08.01.1969. He further submits that the respondent Bank after accepting the date of birth of the petitioner as 08.01.1953 is now estopped from issuing the impugned notices and cannot take recourse to section 9(1) of the Public Servant (Retirement) Act, 1974.
5. 6.          The learned Advocate’s next leg of submission is based on the principle of the natural justice. Mr. Ahmed submits that no notice of any form was served upon the petitioner before issuance of the impugned notice. Furthermore, no enquiry was ever held by the Bank when the alleged dispute had arisen as to the date of birth in his service record and the date of birth reflected in his S.S.C. certificate. Mr. Ahmed takes us to the office memorandum dated 26.08.1977 as evidenced from Annexure  -A to the writ petition and had drawn our attention to clause 11 as follows :

11. “He will have to produce his original certificates in support of academic qualification and proof of age at the time of joining the post and will also be required to produce release order from present employer, if any.

1. 7.          Mr. Ahmed contends that by this memorandum the petitioner was required to produce any proof of age at the time of joining the said post. He further submits that the words “academic qualification” and “proof of age” must be read disjunctively and in that view, any proof of age will suffice. The respondent having accepted his application at the time of entry cannot now move from their earlier stand and retire the petitioner by issuing the purported impugned memo treating the date of birth as reflected in the S.S.C certificate.
2. 8.          Mr. Ahmed next submits that on being satisfied the respondent Bank has appointed the petitioner in the service and was given confirmation on his satisfactory completion of the probationary period. He further submits that the petitioner’s age was 25 years at the time of entry into the service which was well within time. The petitioner would not have been able to join if his date of birth would have been 6.1.1947. Having accepted the date of birth of the petitioner as 6.1.1953, the respondent Bank is now estopped from backing out from their stand and cannot retire the petitioner by taking resort to Section 9(1) of Public Service (Retirement) Act, 1974. He lastly submits that the action of the respondent Bank is malafide and illegal and the impugned notices  warrant interference by this Court and as such the Rule is liable to be made absolute.
3. 9.          Mr. Md. Delwar Hossain, learned Advocate appearing on behalf of the respondent No.1 submits that the petitioner passed the S.S.C  certificate (compartmental) in science group in the year 1970 wherein the petitioner’s date of birth was recorded as 06.01.1947. At the time of his making the application for post of Junior Assistant in Bangladesh Krishi Bank,  the uncle and the guardian of the petitioner had sworn an affidavit and stated that the petitioner’s date of birth as 06.01.1953. He further submits that this particular affidavit sworn on 08.01.1969 cannot be taken into consideration because of the fact that at that relevant point of time, the father of the petitioner was alive and there was no cogent  reason for  the uncle of the petitioner to affirm the affidavit stating the date of birth of the petitioner as 06.01.1953. Mr. Hossain submits that the said affidavit was sworn by an incompetent person who actually posed to be the guardian of the petitioner.
4. 10.      Mr. Hossain further submits that the official record of the bank reveals that the time of the making the application for the post, the petitioner committed fraud upon the bank by misrepresenting the date of birth as 06.01.1953. His further contention is that the petitioner never took any steps to correct the date of birth from the Board of Intermediate and Secondary Education, Comilla when the alleged affidavit was affirmed by his uncle on 08.01.1969 while the S.S.C certificate was issued on 24.10.1970.
5. 11.      On the question of serving the impugned notices upon the petitioner, Mr. Hossain submits that no notice was required to be served upon the petitioner who has already attained the age of retirement. The bank after detecting the fraud, took opinion from the lawyer of the Bank who opined that Rule 9 of  part (1) of Bangladesh Service Rules is applicable when the LjÑQ¡l£ Q¡L¥l£ fË¢hd¡e 1988  is silent on any issue. Rule 9(1) of the Bangladesh Service Rules is quoted below :

“”V£L¡x (1) Q¡L¤¢l­a fË­hnL¡m£e pj­u ®O¡¢oa hupC Q¨s¡¿¹ h¢mu¡ NZÉ qC­hz a­h ®Se¡­lm ¢geÉ¡¢¾pu¡m l¦mp Hl 124 ew ¢h¢dl BJa¡u ®k ®L¡e L¡l¢eL i¥m (clerical error) pw­n¡de ®k¡NÉz Cq¡R¡s¡ ®O¡¢oa hup Hl p¢qa jÉ¡¢VÊL¥­mne h¡ Hp, Hp, ¢p p¡¢VÑ¢g­L­V E­õ¢Ma hupC p¢WL h¢mu¡ NZÉ L¢l­a qC­hz pwØq¡fe j¿»Z¡m­ul fËX·¡fe ew-pj (¢h¢d-4)1C-4/87-18(400), a¡¢lMx 1 H¢fËm, 1987 ®j¡a¡­hL H¢g­X¢i­Vl j¡dÉ­j hup f¢lhaÑe NËqZ­k¡NÉ euz”

1. 12.      After scanning the submissions of the parties and the documents in the file, we are of the view that the fate of the petition orbits round the singular question, namely, whether the date of birth of the petitioner at the time of his entry into employment will prevail or the date of birth as recorded in the SSC certificate will prevail.
2. 13.      Having regard to the facts of the case, it is to be borne in mind that this court sitting in writ jurisdiction is not the appropriate forum for undertaking any enquiry into such disputed questions of fact. When a person seeks employment he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service whether be it in the government or any other instrumentality, there is a minimum age of entry. In order to verify that the person concerned is not below the prescribed age he is required to disclose his date of birth. It is ordinarily presumed that the date of birth disclosed by the incumbent   gives the date of birth and the employee accepts it as true and accurate before it is entered in the service record. This entry in  the service record made in the before of the employee’s statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules.
3. 14.      Again, one of the relevant circumstances in matters relating to service is the age of the person particular who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. It will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for the office. In such a case, it can not be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage.  In such a situation, it would not be justified and proper to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of this estoppel, as advanced by the learned Advocate for the petitioner would apply and the Bank is estopped from issuing the impugned notice.
4. 15.      Any document coming into existences subsequent to entrance in service and correctness or genuineness of entry therein is said not free from doubt. In the instant case the petitioner joined service in 1977 and got his date of birth recorded as 01.06.1953. Thereafter, he had passed the S.S.C examination in 1970 wherein that the date of birth was recorded at 06.01.1947.  It cannot be lost sight of that the petitioner ever took any step to rectify the date of birth after entering into service with the respondent bank. The dispute of date of birth raised by the petitioner can also be looked by another angle and appears to be not workable. If the date of birth of the petitioner as projected by him at the fag end of his service is accepted, the petitioner in that event would have been 30(thirty) years of age when he joined the bank in 1977 and he could not have joined the bank as he had already exceeded age limit of 25(twenty five) years.
5. 16.      The grievance of the petitioner was that he was not given any opportunity of being heard and no enquiry by the bank was ever held. The learned Advocate for the petitioner relied on a decision reported in 10 SCC 516.  In that case, the petitioner was afforded an opportunity of being heard when similar dispute with regard to the date of birth had arisen. The decision of that case does not apply in the circumstances of the case.  There are situations when the principle of “Audi Alteram Partem” would be excluded. This cardinal principle of natural justice will not apply if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or urgency of the situation so demands as has been held in Pearlberg v Varty (Inspector of Taxes),[1971] 2 All ER 552 (CA).
6. 17.      One cannot be oblivious of the fact of the pristine maxim that “fraud and justice never dwell together” (fraus et jus nunquam cohabitant).  Therefore, where the employment which is obtained by fraud or suppression of facts cannot entitle the petitioner to a notice and no opportunity of hearing need be given.
7. 18.      It is a well settled principle of law that the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the Legislature. Therefore, the language employed in a statute is the determinative factor of legislative intent.  To arrive at an impeccable resolution to the said question we are required to explore the relevant provision of the Bangladesh Service Rules intensively.

Rule 9 of Bangladesh Service Rules stipulates that:

¢h¢d-9z plL¡l£ Q¡L¢l­a fË­h­nl pju h¡ fË­h­nl E­Ÿ­nÉ HLSe B­hceL¡l£ ®k hup ®O¡oZ¡ L­le, Eq¡C a¡q¡l ®r­œ Bh¢nÉLi¡­h fË­k¡SÉ qC­h Hhw flhaÑ£L¡­m ®L¡e E­Ÿ­nÉC a¡q¡ pw­n¡d­el Ae¤j¢a ®cJu¡ k¡C­h e¡z 

V£L¡x Q¡L¢l­a fË­hnL¡m£e pj­u ®O¡¢oa hupC Q¨s¡¿¹ h¢mu¡ NZÉ qC­hz a­h g¡Ce¡¢¾pu¡m l¦mp Hl 116 ew ¢h¢dl BJa¡u ®k ®L¡e L¡lZ£L i¥m (Clerical error) pw­n¡de ®k¡NÉ z Cq¡R¡s¡ ®O¡¢oa hup Hl p¢qa jÉ¡¢VÊL¥­mne h¡ Hp, Hp, ¢p p¡¢VÑ¢g­L­V E­õ¢Ma hu­pl k¢c ®L¡e Ns¢jm f¢lm¢ra qu, a¡q¡ qC­m p¡¢VÑ¢g­L­V E­õ¢Ma hupC p¢WL h¢mu¡ NZÉ L¢l­a qC­hz pwØq¡fe j¿»Z¡m­ul fË‘¡fe ew pj (¢h¢d-4) 1C-4/87-18 (400), a¡¢lMx1/4/1987 Cw ®j¡a¡­hL H¢g­X¢i­Vl j¡dÉ­j hup f¢lhaÑe NËqZ­k¡NÉ euz 

The said Rule 9 therefore, says that the age declared by the applicant at the time of entry into employment is to be regarded as correct. The proviso to Rule 9 however, says in the event of any conflict between the declared age and encrypted age into the S.S.C certificate, the latter shall prevail. The most important provision, so far as the petitioner’s case is concerned, is inscribed in clause 55 of the Bangladesh Krishi Bank “LjÑQ¡l£ Q¡L¥l£ fË¢hd¡e, 1988” which runs as follows:

55z plL¡l£ ¢h¢dj¡m¡, CaÉ¡¢cl fË­u¡N-HC fË¢hd¡ej¡m¡u ®k pLm ¢ho­u ¢hd¡e Ll¡ qu e¡C ®p pLm ¢ho­u plL¡l£ LjÑQ¡l£­cl ®r­œ fË­k¡SÉ ¢h¢dj¡m¡, fÊ¢hd¡ej¡m¡, B­cn, ¢e­cnÑ, CaÉ¡¢cl ¢hd¡epj¤q, hÉ¡w­Ll LjÑQ¡l£N­Zl ®r­œ fË­k¡SÉ qC­hz  

Bangladesh Krishi Bank “LjÑQ¡l£ Q¡L¥l£ fË¢hd¡e, 1988” has also the force of law as per the definition given in Article 152 of the Constitution. It is clear, therefore, clause 55 of the said Probhidan of 1988 refers to clause 9 of Bangladesh Service Rules Part 1. So, Bangladesh Service Rules has legislative source which is binding.

1. 19.     

Md. Hasanul Islam Hanif @ Galcuta Hainf and Hanif Vs. The State (Md. Nazrul Islam Talukder, J.)

In the instant case, admittedly the age of the petitioner as declared by the petitioner at the time of entry into the service of the Bank is discrepant with the age as shown in his S.S.C certificate. As per clause 9 of the B.S.R Rules read with Clause 55 of the Bangladesh Krishi Bank Karmachari Probhidhan Mala, the age as reflected in the petitioner’s S.S.C certificate must prevail over the age as declared by the petitioner at the entry point of his employment.

1. 20.      Having said so, this Court is constrained to hold that there was no illegality in issuing the impugned notice. However, this does not necessary follow that the respondent Bank can automatically recover the money without due process of law. We are rather surprised as to how the Bank at the very inception embarked upon the petitioner’s employment without requiring the petitioner to submit his original SSC certificate. The Bank’s act of indolence cannot be ignored. Even at subsequent stages without asking for the SSC certificate, the Bank allowed the petitioner to continue with his job. There is no doubt, and it is an admitted fact during the period in dispute, the petitioner worked and rendered his services to the Bank for which he was paid his salary. It is therefore difficult on the part of the Bank to come up and say that the petitioner was paid for nothing and without any work. Had the Bank been advertent the unfortunate episode was not have arisen.
2. 21.      With the aforesaid observations and findings the Rule is discharged.
3. 22.      The order of stay granted at the time of the issuance of the Rule is hereby recalled and vacated.

        There is, however, no order as to cost.

        Ed.

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

Syed Mahmud Hossain, J. And Md. Nazrul Islam Talukder, J.   Judgment 26.01.2011

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Md. Hasanul Islam Hanif @ Galcuta Hanif and Hanif. …Petitioner. Vs. The State …Opposite party.

Code of Criminal Procedure ( V of 1898)

Section 561 A

Arms Act ( XI of 1878)

Section 19 (A) and 19 (f)

Evidence Act ( I of 1872 )

Sections 114(g) and 134

Neither the seizure list witnesses nor the public witnesses were produced and exam-ined before the Tribunal to prove the recovery of the Arms and Bullet from the exclusive control and possession of the petitioner. All the 7 prosecution witnesses are police personnel who proved the prosecution case but their evidence was not supported either by seizure list witnesses or by public witnesses. Non – examination of important witnesses raises doubt about the prosecution case and the accused petitioner will get the benefit under section 114 (g) of the Evidence Act. The prosecution has failed to prove recovery of Arms and Bullet from the exclusive control and possession of the petitioners.                                  ….. (9 -10).

Zillur Rahman alias Zillur Vs. The State, 6 BLC 254; Aslam Jahangir Vs. The State, 5 BLC 514; Habibur Rahman alias Jane Alam Vs. The State, 47 DLR 323; Mohiuddin Vs. The State, 61 DLR 35; Abdul Haider Sikder and another Vs. The State, 43 DLR (AD) 95, ref.

Mr. A.B.M. Waliur Rahman Khan, Advocate

–For the petitioner.