Md. Nazrul Islam & ors. Vs. Bangladesh

Md. Nazrul Islam & ors. (Petitioners)

Vs.

Bangladesh, rep­resented by the Secretary, Ministry of Industries Dhaka and others (Respondents)

 

 

Supreme Court

Appellate Division

(Civil)

Present:

M.M. Ruhul Amin CJ

Md. Tafazzul Islam J

Md. Abdul Matin J

Chairman, Bangladesh Chemical Ind. Corporation (BCIC) and others Petitioners (In Civil Petition Nos.1419-1424 of 2005.)

Vs.

Md. Abdus Salam & ors…Respondents (In Civil Petition No.1419 of 2005.)

Md. Zabed Hasan & ors…Respondents (In Civil Petition No.1420 of 2005.)

Md. Askir Ali & ors…Respondents (In Civil Petition No.1421 of 2005.)

Md. Noorullah & ors…Respondents (In Civil Petition No.1422 of 2005.)

Md. Nazrul Islam & ors …Respondents (In Civil Petition No.1423 of 2005.)

Md. Golam Rasul Khan…Respondents (In Civil Petition No.1424 of 2005.)

Judgment

June 10, 2008.

Lawyers Involved:

A Samad, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record-For the Petitioners. (In Civil Petition Nos.1317-1321 of 2005.)

Syed Mahbubur Rahman, Advocate-on-Record-For the Petitioners. (In Civil Petition Nos.1419-1424 of 2005.)

Abdur Rob Chowdhury, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondent No. 1. (In Civil Petition Nos.1419-1424 of 2005)

Civil Petition for leave to Appeal Nos. 1317-1321 of 2005.

(From the Judgment and Order dated June 28, 2005 passed by the High Court Division in Trade Mark Application No.13 of 2002 along with other writ petitions.)

And

Civil Petition for leave to Appeal Nos. 1419-1424 of 2005.

(From the Judgment and order dated June 28, 2005 passed by the High Court Division in Trade Mark Application No.13 of 2002.)

Judgment

                Md. Abdul Matin J.- These petitions for leave to appeal are directed against the judgment and order dated 04-05-2005 in Writ Petition No. 8050 of 2002 along with other writ petitions making the Rule absolute by declaring the order of ‘Pay off’ as without lawful authority but refusing the salary due to the petitioners for the period when they were kept out of service by the order of “pay off’.

2. The facts, in short, are that the writ petitioners are citizen of Bangladesh. They were appointed by and have all along been officers of the Bangladesh Chemical Industries Corporation, in short BCIC, which is a statutory public corporation. Under orders of the BCIC, the writ petitioners were serving in the head office of the corporation as well as under several industrial units of the BCIC. But their service is governed by the provisions of the BCIC Employees Service Regulations, 1988 in which it has been specifically stated that as ‘public ser­vants’ they are subject to the provisions of the Public Servants (Retirement) Act, 1974.

3. Under the provision of the said Act, the writ petitioners were entitled to continue in service till the completion of 57th year of age and then entitled to LPR and other retirement benefits.

4. Under the BCIC Board Memorandum No. BCIC/Board/BM/872(2002)/493 dated 04-12-2002, 174 employees of the Central Cadre of BCIC including the writ petitioners were “Paid off” (terminated) on the ground that the BCIC had decided in its 872nd meeting on 28-11-2004 to disinvest 08 industrial units and as such the BCIC employees who were working in those units should be paid off by paying them some termination benefits. It was stated that the writ petitioners were not employees of any of the disinvested units. The workers and other employees of those units might have been liable for termination but the writ petitioners are employees of BCIC and there having been enough vacant positions available in the BCIC head office and other units, they could be easily transferred to and employed there. But instead an arbitrary and discriminatory decision was taken to terminate their services in the name of “pay off’ without any option or notice. After coming to know of this decision which was made effective from 15-12-2002, all the affected employees includ­ing the writ petitioners made written rep­resentations to the BCIC. As there was no response, the writ petitioners have served a notice for demand for Justice on 11-12-2002 by registered mail through their learned advocate Mantu Chandra Ghosh.

5. The petitioners who were respon­dents in the writ petition duly received the same but did not accede thereto. Thereafter, the present petitioners had preferred the Writ petition No. 8050 of 2002.

6. There were five other writ peti­tions being No.7987 of 2002, 236 of 2003, 1331 of 2003, 2648 of 2003 and 3957 of 2003.

7. The petitioners as respondent Nos. 2-3 entered appearance by filing affidavit-in-opposition denying all the material allegations. The petitioners also filed affidavit-in-reply. In the affidavit-in reply it was pointed out that there were innumerable instances that BCIC had withdrawn its employees from disinvested units and transferred them to other units or to its head office.

8. All the six writ petitions were head together and disposed of by a common judgment dated 04-05-2005 by the High Court Division.

9. During hearing, it was brought to the attention of the court that BCIC was recruiting new hands as per the public notice published in the Daily Ittefaq dated 05-02-2005 and daily The Prothom Alo dated 06-02-2005. The posts advertised for could be easily filled up by the respondents who had all the requisite qualifications as chemists and engineers etc.

10. The writ petitioners being totally dependent on their salary income, they were compelled for dire necessity of life to approach the Court for permission to draw some termination benefits without prejudice to their legal claim for rein­statement. By an order dated 21-10-2003, the High Court Division was pleased to grant the prayer.

11. After hearing both parties, the High Court Division was pleased to make the Rule absolute on a finding that the termination of the service of the writ petitioner in the name of “Pay off” was made without any lawful authority and thus has no legal effect. The Court fur­ther directed the respondents to rein­state the writ petitioners to their service on condition that they would refund the termination benefits paid to them. In coming to this finding the court held that the service conditions of the petitioners were being regulated under the BCIC Employees Service Regulations, 1988, there is no provision for such “Pay off’ in the said Regulations.

12. Being aggrieved by the impugned judgment of the High Court Division the writ petitioners have filed this petition for leave to appeal.

13. Heard the learned Advocate and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

14. It appears that the High Court Division while making the Rule absolute directed the writ petitioners to return their entire benefits taken by them to the BCIC before their rein­statement.

15. It further appears that the impugned orders in the entire writ peti­tions     have been declared to have been passed without lawful authority, but the High Court Division directed that the reinstatement shall be done only after return of the bene­fits taken by the employees to the BCIC. Such direction of the High Court Division does not suffer from any legal infirmity.

We find no merit in these petitions which are accordingly dismissed.

Ed.

Source: 6 LG (AD) (2009) 141

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