PUBLIC SERVANT’S (RETIREMENT) ACT, 1974 (XII OF 1974)
Government power to retire a Government
servant—The power of the Government to retire a Government servant before
the age of superannuating is only on the ground of ‘public interest’—That is to
say there must be a case that the Government servant concerned suffers from
inefficiency or incompetence.
Government
servant substantively appointed has the right to hold the post till the age of
superannuation—This right is subject to law conforming to constitutional
provisions.
Section
9(2) of Act XII of 1974 permitting an impugned notification prematurely
retiring appellant without affording opportunity of showing cause is violative
of Article 135 of the Constitution.
A
Government servant is retired with full pension after 25years service not as a
measure of punishment—It does not bear any stigma, nor any imputation is made
or allegation is brought against the Government servant when thus retired with
pension—The Indian Supreme Court has consistently held that premature
retirement is not a punishment and it does not amount to removal—This is no
reason to take a different view in this case.
Dr.
Narul islam Vs. Bangladesh and others, 1BLD (AD) 140
Ref.
A.I.R. 1958 (SC)36; A.I.R. 1964 (SC) 600; A.I.R. 1954(SC)369; A.I.R. 1975 (SC)
1487; A.I.R. l965(SC)280; A.I.R. 1965 (SC)l 967.
Violation of equality clause of the
Constitution—Section 9(2) of Act XII of 1974 conferring unfettered
discretion on the Government in the matter of compulsory retirement without any
guideline either in the Act or in the Rules framed there under is violative of
equality clause of the Constitution—Constitution of Bangladesh, 1972, Articles
27 and 29.
Dr.
Nurul Islam vs. Bangladesh and others; 1BLD (AD) 140
Ref:
A.IR. l958 (SC)538; A.LR. 1955 4SC)191;PLD1957(SC)159;PLD1957 (SC) 9; A.I.R.
1961 (SC)552; PLDI 958(SC)4 1; A.I.R. 1956(SC)44; (1968) 1 All. E.R. 694;
A.I.R. 1954 (SC) 369; A.I.R. 1957 (SC) 892; A.I.R. 1965 (SC) 280; A.I.R. 1975
(SC) 1487; A.I.R. 1970 (All) 269; A.I.R. 1972 (Mys) 71; PLD 1967(Lah) 227;
PLD1959 (SC) 37; PLD 1971 (Kar) 333; 19DLR(SC)281; 1957 SCA. 660.
Section — 2(d)
Public Servant—Public servant includes
any person who is in the service of the Republic, corporation, nationalised
enterprise or local authority as defined in clause (d) of section 2 of the
Public Servants (Retirement) Act, 1974.
Golam
Morshed Vs. Bangladesh Textile Mills Corporation & ors., 1BLD (HCD) 420
Sections — 3 and 4
Service—Termination of service— Simple
termination of service of any employee of any statutory corporation even
invoking any provision of any contract or terms of service is grossly violative
of the provision of section 4 read with section 3 of the Public Servants
(Retirement) Act, 1974.
Golam
Morshed Vs. Bangladesh Textile Mills Corporation and others, 1 BLD (HCD)420
Section —4
Termination of service In the absence
of any publication of Rules and Regulations relating to terms and conditions of
service in terms of Articles 24 and 25 of P.O. No. 27 of 1972 and without
holding a proceeding there under upon giving a cause, no employee of a
statutory corporation can be dismissed, removed or even terminated from service
prior to attainment of the age of retirement as specified in Public Servants
(Retirement) Act, 1974 — Bangladesh, Industrial Enterprises (Nationalisation)
Order,1972 (P.O. 27 of 1972), Articles, 24 and 25. –
Golam
Morshed Vs. Bangladesh Textile Mills Corporation & ors., 1 BLD (HCD) 420.
Ref:
IBLD 86—Cited.
Section — 9(2)
Compulsory retirement—Section 9(2) of
Act XII of 1974 conferring unfettered discretion on the Government in the
matter of compulsory retirement without any guideline either in the Act or in
the rules framed there under is violative of equality clause of the
Constitution. — Constitution of Bangladesh, 1972, Articles 27 and 29.
Per F. Munim, J:
Since
neither the impugned provisions nor the Act nor the rules containing them
provide any principle or guideline for the exercise of discretion by the
Government when it proposes to retire a Government servant from amongst a group
of government servants similarly situated and holding similar jobs, there
invariably exists scope far arbitrary exercise of such discretion. What is of
importance and consequence to the Government servant concerned, who is proposed
to be retired, is that the discretion of the relevant authority must be seen to
have been exercised on some such principles as are discernible in Fundamental
Rule 56, Note 2, East Bengal .Service Rule and Rule 3 of the Bangladesh Public
Servants Retirement Rules, 1973. Where such basis has been provided by the
enunciation of such principles, whether under the Act or rules made under an
Act or even in the note to such rules regarding the retirement of government
servants, the concerned authority before exercising its discretion, has to
conform to the principles so provided therein … The omission of such basis in
the Public Servants (Retirement) Rules, 1975 leaves scope to the concerned
authority to arbitrarily retire a Government servant who has completed 25 years
of service. The existence of such principles as are found in the Rules of 1973
would have provided a complete answer to any challenge to their
constitutionality, inspite of the expression “without assigning any reason’
used in section 9(2) of the Act. In such a case the authority concerned would
have remained free, so as not to disclose any reason in the retirement order,
but if its action in retiring a Government servant was challenged as arbitrary,
as has been done by the appellant in the present case, them authority could
have disclosed before the Court the basis of its action.
Per F. Munim, J:
The
minimum principle or guideline as has been provided in service rules as appear
from the cases cited in the judgment is that of public interest or the interest
of public service. If either the impugned Act or the rules made there under
provided such principle, the minimum requirement of law as showing the
existence of some guideline for the exercise of discretion in retiring a
Government servant, who has completed 25 years of service, would, be satisfied,
thus making it immune from any challenge on the ground of d crimination
violative of Arts. 27 and 29 of Constitution. In the absence of such a guide
line either in the Act or the rules from there under, section 9(2) of Act XII
of 19 suffers from unconstitutionality and the I pugned action based on it is
open to the chalenge as being discriminatory and in violatof the equality
provisions of the Constitution
Ref:
A.I.R. I 958(SC)538; A.I.R. I 955(
191;
PLD 1957 (SC)l59; PLD1959(SCk A.I.R. 196 l(SC)552; PLD I 958(SC)4 1; A.I.R..
1956 (SC) 44; (1968) lAll. E.R.694; A.IR.. 1954 (SC) 369; A.I.R.l957 (SC) 892;
A.L 1965 (SC) 280; A.I.R.l975(SC)1487; AJL 1970 (AlI)296; A.I.R.1972(Mys)7l;
PLDI96 (Lah) 227; PLD1959(SC) 37; PLDI97I (K 333; I9DLR(SC) 281; 1957SCA
660—CiteL
Per Ruhul Islam, J:
In
the absence of any principle or guide line for the exercise of uncontrolled and
unqualified discretion, S. 9(2) of the Act vided the scope to the authority to
pick choose and to discriminate between Government servants similarly placed on
complete of 25 years of service in the matter of premature retirement and as
such discrimination – inherent in the Act itself and S. 9(2) is violative of
Articles 27 and 29.
Per B.H. Chowdhury, J:
Neither
the Act nor the rules provide a principle or guideline for the exercise of discretion
by the Government when it proposed to retire a Government servant under S. 9(2.
In such case the scope for arbitrary exercise i discretion cannot be ruled out
as happened this case.
Dr.
Nurul islam Vs. Bangladesh aad others, 1BLD (AD) 140
Section — 9(2)
Section
9(2) of Act XII of 1974 permitting an impugned notification prematurely retiring
appellant without affording him opportunity of showing cause is violative of
Artclee 135 of the Constitution.
Per Ruhul Islam, J:
Premature
retirement is per se a punishment, because the Government servant is –prived of
his right to continue in service until he attains the age of superannuation and
he loses the benefit of service accrued to him. Termination of service before
his superannuation is undoubtedly removal if not termed as ‘dismissal’.. It is
true that the (impugned) order does not contain any stigma, but the very fact
that the appellant was selected out of a number of persons similarly placed,
and consequently he has been deprived not only from continuing in the
employment for the remaining period of his term of service but also from some
of the service benefits accrued to him, makes out a case of punishment. In effect,
whatever may be the phraseology used in terminating the service, it is
punishment imposed on him, for it not only destroys his right to the post held
by him, but also inevitably carries with it a stigma. Such a termination is
‘removal’ within the meaning of Article 135 of the Constitution. Therefore the
statute or rule providing a mode of terminating service at the discretion of
the authority without complying with impugned action having been taken against
the appellant without issuing any notice upon him or giving him an opportunity
of being heard before taking the impugned action, the impugned notification is
violative of Article 1 35 of the Constitution.
Ref:
A.I.R.1958 (SC) 36; A.I.R. 1954 (SC) 369; A.I.R.1964 (SC) 600; A.I.R.1975 (SC)
l487 —Cited.
Per S. Ahmed, J:
A
Government servant is retired with full pension after 25 years service not as a
measure of punishment. It does not bear any stigma, nor any imputation is made
or allegation is brought against the Government servant when thus retired with
pension … The Indian Supreme Court has consistently held that premature
retirement is not a punishment and it does not amount to removal.
Ref:
A.I.R1954SC369; A.I.R1965SC280; A.1.R.1965 SC1967; A.I.R.1975SC487 — Cited.
Dr.
Nurul Islam Vs. Bangladesh and others, 1BLD (AD) 140
Section—9(2)
Government Servant — Compulsory retirement
For validity of an order of compulsory retirement, Government must form an
opinion as to the necessity of retiring an employee in public interest —
There1must be materials to support that the employees retirement is necessary
in public interest —. Public Servants (Retirement) (Amendment) Ordinance, 1981
(VI of 1981), S—4.
A.K.M.
Arshad Ali Vs. Government of Bangladesh, 1BLD (HCD)399
Ref:
I BLD (AD)140 — Relied.
Section — 9(2)
Government Servant—Compulsory retirement—Fundamental
right to equality— Government record must show that the Government has
considered the necessity of such retirement and the retirement is in public
interest—Government did not apply its mind as to why amongst 34 doctors who
completed 25 years of service the petitioner should be signed out for
compulsory retirement— Such retirement must be held to be discriminatory and
ordered with ulterior motive—Constitution of Bangladesh, 1972, Articles 27 and
29.
Dr.
Abu Ahmed chowdhury Vs Bangladesh, 2BLD (HCD) 98
Ref:
I BLD (AD) 140; 1BLD 399 — relied.
Section — 9(2)
Service matter — Order of retirement— It’s
validity — There is no instance of misconduct on the part of the respondent
prior to passing of the impugned order of retirement — According to the
Government the action was taken with a view to enforcing strict discipline in
the office — Such justification for taking exemplary punishment only on finding
the respondent absent for a short period is undoubtedly arbitrary — Law does
not empower the Government to päs such arbitrary order of retirement. [Per
Ruhul Islam, J.]
Habibullah
Khan Vs. Shah Azharuddin Ahmed and others, 3 BLD(AD)143
Section—9(2)
Retirement order – In what case
retirement should be resorted to is a matter within the absolute discretion of
the authorities — Retirement with full pensionary benefits after completion of
25 years service is not a punishment nor does it contain any stigma — Even if
respondent’s punishment has been referred to as an exemplary punishment in the
office file, still then when the action of the Government is found to have been
taken in accordance with law and there is no malafide therein, it cannot be
assailed as arbitrary. [Per Shahabuddin Ahmed, J. (dissenting)]
Public interest — A person aggrieved by
retirement order may contend that the order was not in the public interest —
Government is the better judge to decide what is public interest.
There
may be various reasons for which the Government may retire a Government servant
after he completed the requisite period of service qualifying for pension; the
Government is in a better position to decide whom to retire. It is not possible
for a Court to sit on judgment over Government’s action if from the facts
disclosed it does not appear that Government’s action was malafide or courable
exercise of power. Subject to these limitations, the discretion of the
Government in such a matter is absolute. The Court may call for record only to
see that the Government had some materials for deciding that retirement of a
Government servant was considered necessary in the public interest and that
order of retirement was not malafide — In this case the order of retirement is
found to be perfectly lawful. [Per Shahabuddin Ahmed J. (dissenting).]
Public interest—Whether order of
retirement is in public interest can be examined by the Court — The Court may
declare it not in public interest after examining materials produced. [Per
Fazie Munim, J.]
Habibullah
Khan Vs. Shah Azharuddin Ahmed and others, 3 BLD (AD) 143
Ref:
33DLR (AD)20 1; PLD1958SC 181; I 97OPLDSC98; PLD1 969(SC)14—discussed.
