Md. Sadequr Rahman Vs. Munawar Jute Mills and others

Appellate Division Cases

(Civil)

PARTIES

Md. Sadequr Rahman ……………………………..Appellant.

-vs-

Munawar Jute Mills and others…………………… Respondents

JUDGES

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

Date of Judgmdent

10 November 2005

The Administrative Tribunals Act, 1980 (Vll of1981), Section 4.

The Constitution Article 117 (2).

The Mill authority was of the view that it was within their competence and jurisdiction to allow selection grade scale of Tk.625-45-1315 to the petitioner and they were also of the view that the audit objection raised in this respect should be waived and ignored. It may be mentioned that the relevant Mill authority without taking any instruction from BJMC was competent to take the decision in question i.e. giving selection grade to an employee of the Mill. There is no allegation that the petitioner played any deceptive role in the matter or granting selection grade of scale to him (12)

ADVOCATES

Abdur Razzaque, Advocate, instructed by md. Nawab AH, Advocata-on-Record For the Appellant Mahbubur Rahaman, Advocate-on-Record For Respondent No.l. Not representd Respondent Nos.2-3

JUDGMENT

1. M. M. Ruhul Amin. J : This appeal by leave is directed against the judgment and decree dated 09.08.1998 passed by a Division Bench of the High Court Division in Writ Petition No. 1659 of 1995 discharging the Rule on the ground of maintainability.

2. Short faces are that the writ petitioner has been serving as an officer in the office of respondent No.l, Munawar Jute Mills Ltd. an enterprise of Bangladesh Jute Mills Corporation (BJMC) since 23.02.1981. By a letter dated 07.01.1998 respondent No.l re-fixed the salary of the petitioner at a basic pay of Tk. 470/- With effect from the date of his joining and asked him to pay back Tk.90,322.50/- said to have been overpaid to him during the period from 23rd February 1981 to 23rd July 1989.

3. The petitioner challenged this order in the High Court Division in the above mentioned writ petition as having been made without any lawful authority.

4. The case of the contesting respondent, on the other hand is that on the objection raised by the Audit Department they asked the petitioner to pay back Tk.90.300.50/- said to have been overpaid to him. The High Court Division held that  the petitioner was a person in the service of the Republic and that consequently his remedy lay before the Administrative Tribunal and accordingly writ petition was held to be not maintainable.

5. Leave was granted to consider the submission that the writ petitioner being an employee of an industrial enterprise fully controlled by Bangladesh Jute Mills Corporation established under President’s Order No.27 of 1972, the High Court Division was wrong in holding that he was in the service of the Republic and as such not entitled to maintain the writ petition in view of Article 117 (2) of the Constitution.

6. We have heard Mr. Abdur Razzaque, the learned Counsel for the appellant and Mr. Mahbubur Rahaman, the learned Advocate-on-Record for respondent No.l and perused the judgment of the High Court Division and other connected papers.

7. It appears that the High Court Division discharged the Rule mainly on the ground that the petitioner was a person in the service of the Republic and consequently his remedy lay before the Administrative Tribunal and not before the High Court Division in writ jurisdiction. Accordingly, the High Court Division did not enter into merit of the matter.

8. Annexure-A shows that the petitioner was appointed by Munawar Jute Mills Ltd. and he was given the selection grade scale of Tk.625-45-1315 by Munawar Jute Mills Ltd. vide Annexure-C. Annexure-J dated 01.01.1992 issued by Munawar Jute Mills Ltd. show that the mills authority was of the opinion that it was within their competence and jurisdiction to grant selection grade scale of Tk.625-45-1315 to them but due to audit objection they issued impugned order Annexure-L.

9. Section 4 of the Administrative Tribunals Act, 1980 (VII of 1981) provides that an Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic or of any statutory public athority in respect of the terms and conditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic or of any statutory public authority.

10. Section 2 (aa) of the Act defines statutory public authority as an authority, corporation or body specified in the Schedule to this Act. In the schedule of the Act the name of Bangladesh Jute Mills Corporation (BJMC) does not find place. Therefore the High Court Division was in error in holding that the writ-petitioner was a person in the service of the Republic and as such his remedy lay before the Administrative Tribunal. The judgment of the High Court Division is accordingly liable to be set aside.

11. The learned Counsel for the appellant submitted since 1992 the appellant has been fighting over the matter and as such this Court may dispose of the matter finally and do complete justice in the matter. We force in the submission of the learned Counsel. Accordingly, we like to dispose of the matter finally. We have already pointed out that the mill authority upon due consideration of the petitioner’s qualification, experience, efficiency and the interest of the mill allowed him selection grade scale of Tk. 625-45-1315 along with another following the case of one Majumder of Hafiz Jute Mills Ltd. Having the same qualification, experience etc. who was also given the ‘ selection grade scale of Tk.625-45-1315.

12. We have further found that the Mill authority was of the view that it was within their competence and jurisdiction to allow selection grade scale of Tk.625-45-1315 to the petitioner and they were also of the view that the audit objection raised in this respect should be waived and ignored. It may be mentioned that the relevant Mill authority without taking any instruction from BJMC was competent to take the decision in question i.e. giving selection grade to an employee of the Mill. There is no allegation that the petitioner played any deceptive role in the matter or granting selection grade of scale to him.

13. In the above circumstances, we are of the view that the impugned order 07.01.1993 Annexure-L to the writ petition. Asking the petitioner to repay a sum of Tk.90r322.50/- alleged to have been overpaid lacked legal basis and as such not sustainable in law. The direction for refund is not legally sustainable.

14. The appeal is thus allowed without any order as to cost.

Source: III ADC (2006) 609

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