Appellate Division Cases
(Civil)
PARTIES
S. M. Iqbal Hossain…………. Petitioner
-Vs-
Managing Director, International Finance Investment and Commerce(IFIC)
Bank Ltd. Head Office, Bangladesh Shilpa Bank Bhaban, 17-18 Floors, 8, RAJUK
Avenue, Motijheel, Dhaka-1000 and others…………. Respondents
M. M. Ruhul Amin J
Amirul Kabir Chowdhury J
Judgment Dated: 30th April 2006
The Code of Civil Procedure, Section 115(1)
Sonali Bank Vs. Ruhul Amin Khan in 46 DLR(AD)85.
Agrani Bank Vs. Khandaker Badrudduza reported in 56 DLR (AD) 136
Praying for declaration that the order of his dismissal passed by the defendant-respondents from the service of the respondent’s bank is illegal stating, interalia, that the plaintiff joined the service of International Finance Investment and Commerce (IFIC) Bank Ltd., (in short, the bank) on 27.01.1984 as officer grade II and that he served the bank with sincerity and honesty and on 01.07.1994 was promoted as Assistant Vice President of the Bank and that on 08.06.1997, a pay order was issued from the branch of which he was the manager and that the pay order was signed by the plaintiff and another and that the pay order was for Tk.1,00,000/- but in fact it ought to have been made for Tk.100/- and that the mistake was inadvertent and was detected later and subsequently the beneficiary of the pay order deposited the entireamount of Tk.1,00,000/- and thus the bank was saved from financial loss but the bank initiated disciplinary proceeding against him and an inquiry committee was constituted who held an inquiry and gave a report and thereafter charge sheets were served upon the plaintiff who submitted replies thereto and the inquiry committee found him guilty and submitted report accordingly on the basis of which the order of removal dated 05.07.1999 was issued ……………….(2)
That the bank is admittedly a private bank and as such the principle of master and servant applies in case of regulating the services of the employees of the bank and the bank fulfilled the provisions of its Service Regulation and then removed the plaintiff-petitioner and as such the suit for declaring the order of removal as illegal is not maintainable and at best there could be prayer for compensation of damage if any……………. (10)
On perusal of the ‘explanation’ to the above rule as mentioned above it appears in item 18 that any action in breach of Rules, Regulations, Standing Orders or Instructions of the Bank constitutes the offence of misconduct and in item 23 any other behavior or act may constitute ‘misconduct’ if is so opined by the management…………. (19)
Regarding question of punishment it appears to us that in a disciplinary proceeding even for allegation of negligence of duty prayer for reinstatement is not necessarily to be considered. In this connection the learned Advocate appearing for the respondents referred to the decision in the case of Sonali Bank Vs. Ruhul Amin Khan in 46 DLR(AD)85 (21) On perusal of record and deposition of the witnesses, it is appears that all the necessary legal formalities were complied with by the petitioner Bank in respect of the departmental proceeding initiated against the plaintiff opposite party No.l. Moreover, in his deposition, the plaintiff opposite party No.l admitted his negligence. On the face of such admission, it was open to the authority concerned to take appropriate action …………..(28)
Abdul Wadud Bhuiyan, Senior Advocate, instructed by A. K. M. Shahidul Huq, Advocate-on-Record …………………….For the Petitioner
Prabir Kumar Neogi, Advocate, instructed by Ahsanullah Patwary, Advocate-on-Record …………………….For Respondents. 1-5
Respondent No. 6 ………………Not represented.
Civil Petition For Leave To Appeal No.450 of 2005
(From the judgment and order dated 27.01.2004 passed by the High Court Division in Civil Revision No.6467 of 2002)
JUDGMENT
Amirul Kabir Chowdhury J : S. M. Iqbal Hossain plaintiff-petitioner seeks leave to appeal against the judgment and order dated 27.01..2004 passed by a Single Bench of the High Court Division in Civil Revision No.6467 of 2002 making the rule absolute setting aside the judgment and decree dated 16.10.2002 passed by the learned Joint District Judge, 3rd Court, Mymensingh in Other Appeal No.54 of 2002 who affirmed the judgment and decree dated 07.02.2002 passed by the learned Senior Assistant Judge, Sadar Mymensingh in Other Class Suit No.205 of 2000.
2. The petitioner as plaintiff filed Other Class Suit No.205 of 2000 praying for declaration that the order of his dismissal passed by the defendant-respondents from the service of the respondent’s bank is illegal stating, interalia, that the plaintiff joined the service of International Finance Investment and Commerce (IFIC) Bank Ltd., (in short, the bank) on 27.01.1984 as officer grade II and that he served the bank with sincerity and honesty and on 01.07.1994 was promoted as Assistant Vice President of the Bank and that on 08.06.1997, a pay order was issued from the branch of which he was the manager and that the pay order was signed by the plaintiff and another and that the pay order was for Tk. 1,00,000/- but in fact it ought to have been made for Tk.100/- and that the mistake was inadvertent and was detected later and subsequently the beneficiary of the pay order deposited the entire amount of Tk.l,00,000/- and thus the bank was saved from financial loss but the bank initiated disciplinary proceeding against him and an inquiry committee was constituted who held an inquiry and gave a report and thereafter charge sheets were served upon the plaintiff who submitted replies thereto and the inquiry committee found him guilty and submitted report accordingly on the basis of which the order of removal dated 05.07.1999 was issued. The plaintiff averred that the issuance of order of removal was not made in accordance with law and being contrary to the provisions of IFIC Bank Service Rules the same was not maintainable and thus the same required to be declared as illegal.
3. Writtem statement was submitted on behalf of the defendant respondent denying material statements made in the plaint. It was stated that so long the plaintiff rendered satisfactory services he was treated as such by bank and was promoted accordingly but in breach of the rules, regulations, standing orders and instructions of the bank he issued pay order of Tk.1,00,000/- against deposit of Tk.100/and as such complying with the provisions of the service rule he has been removed and that the offence committed by the plaintiff is not due to inadvertence or mistake and that in order to cherish his self ends he committed the offence and as such there is no question of declaring the order of removal as illegal.
4. The trial court by the impugned judgment and decree dated 07.02.2002 decreed the suit. The respondents preferred Other Appeal No.54 of. 2002. The lower appellate court also affirmed the judgment and decree of the trial court and thus dismissed the appeal..
5. The defendant-respondents moved the High Court Division under Section 115(1)
of the Code of Civil Procedure and a Single Bench of the High Court Division after hearing the parties made the rule absolute, thereby setting side the judgment and decree passed by the lower appellate court who affirmed the judgment and decree of the trial court and consequently the suit stands dismissed.
6. Hence is this petition.
7. In support of the petition Mr. Abdul Wadud Bhuiyan, learned Counsel has taken us through the impugned judgment and order and submits, inter-alia, that the petitioner had been in the service of the bank for about 16 years since 27 January 1984 and for his dedication and honesty he has been promoted and that except the present proceeding initiated on 03.05.1998 there was no other proceeding against him in long 16 years and that the petitioner signed a pay order prepared by an officer of the branch for Tk.1,00,000/when the pay order should have been for Tk. 100/- which was an inadvertent mistake and the matter being detected the amount in question was deposited and that this inadvertent mistake does not constitute misconduct within the meaning of the term as contained in rule 30.01 of the IFIC Bank Service Rules and considering the inadvertent mistake of the petitioner the respondents ought not to have inflicted major penalty as has been meted out to the petitioner.
8. He further submits that the lower appellate court being the final court of fact, on proper appreciation of evidence found that the action of the respondent inflicting major penalty upon the petitioner for having made financial mistake was whimsical on the part of the respondents and that the High Court Division did not consider this aspect of the case.
9. Lastly he submits that the order of punishment of removal from service is grossly disproportionate to the charges brought against the petitioner and the High Court Division did not consider this aspect of the case and as such the impugned judgment calls for interference.
10. Mr. Prabir Kumar Neogi, learned Advocate appearing for the respondent Nos.l to 5 opposed the petition submitting, inter-alia, that the bank is admittedly a private bank and as such the principle of master and servant applies in case of regulating the services of the employees of the bank and the bank fulfilled the provisions of its Service Regulation and then removed the plaintiff-petitioner and as such the suit for declaring the order of removal as illegal is not maintainable and at best there could be prayer for compensation of damage if any.
11. He further submits that the respondents considered the replies to the show cause notices and charges indicted against the plaintiff petitioner and the report of the inquiry committee and thus removed him legally and the trial court as well as the lower appellate court without considering this vital aspect passed the judgment and decree which has correctly been reversed by the High Court Division considering the facts, circumstances and evidence on record.
12. We have examined the submissions made at the Bar and perused the materials on record.
13. On 03.05.1998 charge sheet was served upon the plaintiff petitioner on the allegation that he issued a pay order bearing No.569162 dated 08.06.1997 for Tk.l,00,000/-m favour of XEN, CMMU, Mymensingh which was presented through clearing house by Agrani Bank on 03.08.1997 and the same was honoured by issuing another payment order bearing No.569283 dated 03.08.1997 for Tk.1,00,000/- only treating the same as paid Pay order (having no Banks Special Crossing, clearing stamp and endorsement) by keeping original instrument presented through clearing as extra in the file and thus the original entry for Pay Order bearing No.569162 dated 08.06.1997 for
Tk.100/- only has been lying outstanding in the Pay Order Register.
14. It was further charged that a Pay Order bearing No.569537 dated 29.12.1997 for
Tk.100/- only was issued in favour of the Treasurer, BKB the amount of which appears same in voucher, Pay Order Register and Pay Order balance book but the counterfoil of the Pay Order book shows that the same was issued for Tk.39,000/- only.
15. Regarding the aforesaid charge sheet dated 03.05.1998 the plaintiff-petitioner in his evidence (in cross-examination) stated that he admitted the charges made in the charge sheet dated 03 i) In his evidence he further stated that he gave loan in breach of the directions of the bank authorities
16. Be that as it may, from the replies of the show cause as well as pleadings of the
parties it appears that the plaintiff-petitioner does not deny the issuance of the Pay Order, signed by him along with one Nurul Islam who also has been removed. They issued pay order for Tk. 1,00,000/against deposit of Tk.100/- only. The persistent claim of the petitioner is that the act of the plaintiff does not come within the definition of the offence of misconduct as defined in the IFIC Bank Service Rules.
17. The second prime point advanced on behalf of the petitioner is that considering the nature of his act which, according to him, is an in advertent mistake the punishment of removal has been disproportionate and as such it ought to have been declared as illegal by the High Court Division also and that being not done the impugned judgment cannot sustain in the eye of law.
18. Rules 30.01 of IFIC Bank Service Rules reads as under: “30.01. Without prejudice to other provisions contained in these Rules an employee who commits a breach of any of these Rules or who displays negligence or indolence or who knowingly does anything detrimental to the interest of the Bank of contravenes instructions issued to him in connection with his official work or commits breach of discipline or is guilty of any other act of misconduct or has been convicted of an offence involving moral turpitude, shall be liable to one or more penalties described hereafter.
Explanation
Without prejudice to the generality as aforesaid the term ‘misconduct’, includes, for the purpose of these Rules, the following acts, omissions and commissions:
18. breach of Rules, Regulations, Standing Orders or Instructions of the bank;
23. any other behaviour or act which in the opinion of the management constitutes misconduct.”
19. On perusal of the ‘explanation’ to the above rule as mentioned above it appears in item 18 that any action in breach of Rules, Regulations, Standing Orders or Instructions of the Bank constitutes the offence of misconduct and in item 23 any other behavior or act may constitute ‘misconduct’ if is so opined by the management.
20. Issuance of pay order for Tk. 1,00,000/against deposit of Tk.100/- only cannot be
pleaded as an act not in breach of the Rules, Regulations, Standing Orders or Instructions of the Bank nor of course the plaintiff made any such claim. His claim is that of inadvertent mistake. On the face of admitted position of the plaintiff petitioner in acknowledging the act of issuance of the pay order in question which.was also signed by him the delinquent petitioner cannot be absolved of the charge at least of breach of the Rules, Regulation etc. of the bank constituting misconduct warranting removal under Rule 30.02-Item 6 of the Rules which reads as under: “30.02. An employee found guilty under sub-Rule Penalties. .01 or any other Rule or any offence or misconduct shall be liable to one or more of the following penalties:
6. removal from service;
21. Regarding question of punishment it appears to us that in a disciplinary proceeding even for allegation of negligence of duty prayer for reinstatement is not necessarily to be considered. In this connection the learned Advocate appearing for the respondents referred to the decision in the case of Sonali Bank Vs. Ruhul Amin Khan in 46 DLR(AD)85.
22. In the aforesaid decision the plaintiff Ruhul Amin Khan was manager of Sonali Bank, Sadarghat Branch who was proceeded with on the allegation that he had abetted in defrauding and causing loss to the bank of an amount of Tk.58,00,698.30 by opening letters of credit in favour of two fictitious firms at 15% margin in excess of his powers and by obtaining approval of the Principal office fraudulently and on the aforesaid charge he was dismissed from service who unsuccessfully took an appeal to the Board of Directors.
23. He thereafter filed a case before the Administrative Tribunal. The Tribunal though found him guilty but held the punishment of dismissal to be illegal and thus allowed the application in part setting aside the order of dismissal and substituting the said punishment with reduction to a lower post.
24. Both the parties feeling aggrieved by the judgment of the Tribunal filed appeals before the Administrative Appellate Tribunal and the said Administrative Appellate Tribunal dismissed both the appeals. The matter thus came before the Appellate Division and the Appellate division held:
12. In the instant case, the Tribunal altered the punishment of the respondent from dismissal from service to reduction to a lower post, both of which are major penalties under regulation 28 of the Sonali Bank (Employees) Service Regulations, 1981, briefly the Regulations. This alteration was done mainly on the consideration that there was no evidence to show that the respondent had acted with dishonest intention or that he was in collusion with the importers in opening the disputed letters of credit which caused loss to the bank.
13. it is to be observed that there is a fundamental difference between a disciplinary proceeding against an employee taken departmentally and a criminal proceeding in a Court of law against him on the self same facts. In a criminal trial, for an offence like criminal breach of trust or forgery, dishonest intention or mens rea is required to be proved because it is an ingredient of the offence. But in a disciplinary proceeding
for negligence of duty or contravention of instructions, etc., no dishonest intention is required to be proved. The liability in such cases is of an absolute nature. Once it is found
that an employee is negligent or has contravened any instruction, he incurs the liability for punishment and strictly speaking there is no room for showing any leniency even in the matter of punishment merely because his dishonest intention was not proved.
16. The Tribunal also noticed that it was admitted that the respondent put in 22 years of satisfactory service and the present proceeding was the first proceeding against him. Although it cannot be said that the circumstancs considered by the Tribunal were all cogent circumstances but, at the same time, it cannot also be said that there was nothing at all to sustain an alteration of the sentence. For example, an unblemished record of 22 years of service is a good ground for altering the nature of the sentence which may reduce the hardship. But it can never be considered to be a good exercise of discretion when
a person is reinstated in an institution like a bank by way of altering an order of dismissal from service when the authority had decided not to keep him in service apparently because he had lost their confidence which is so essential in a financial institution. There was a less harsh’ sentence than dismissal, that is, compulsory retirement which is also a major penalty under the Regulations and the Tribunal should have taken recourse to the same if it felt that it was necessary to reduce the rigour of the sentence in the facts and circumstances of the present case.
25. Taking clue from the above decision the learned Advocate submits strenuously that considering the act of misconduct the Bank has decided to remove the plaintiff and as such there is no legal reason to for the Bank to retain the delinquent since he had lost the confidence of the Bank In this view of the matter the trial court as well as the lower appellate court committed illegality in decreeing the suit.
26. In this connection our attention has been drawn to the decision in the case of A grani Bank Vs. Khandaker Badrudduza reported in 56 DLR(AD) 136 in which one of us was a party. Khandaker Badrudduza the appellant in the aforesaid case was .an employee of Agrani Bank who fell ill on November 15, 1990, applied for leave for one month from November 20, 1990 filing a medical certificate countersigned by the medical officer of the bank. On December 26, 1990 he submitted application for extension of his leave upto January 15, 1991. He was, however, served with charge sheet on November 2, 1991 con-
taming allegation of unauthorised absence and was asked to show cause. The show cause submitted by him being found unsatisfactory an inquiry was held and he was found guilty. The authority on receiving the inquiry report served second show cause notice with proposal for dismissal from service to which he replied but he was dismissed from service. Thereupon he filed the case before the Administrative Tribunal and the Tribunal dismissed the AT case. He thereupon filed appeal before the Administrative Appellate Tribunal. The Administrative Appellate Tribunal allowed the appeal modifying the order of dismissal to the extent of reducing him to the lowest stage in the time scale. Against the judgment of the AAT the Agrani Bank moved the Appellate Division. The Appellate Division after hearing the par-tics allowed the appeal holding, inter-alia:
10. It may be mentioned the AAT while observing “the order of dismissal from service has been unreasonably severe in consideration of the nature of the guilt and the said order is liable to be modified” has not assigned any reason in support of the said observation nor has held that the punishment imposed was illegal or vitiated by procedural impropriety, rather the AAT had held that “there has been no procedural defect in the departmental proceeding.” The AAT has also not recorded any finding as to irrationality of the punishment awarded nor it has held that the decision of the appellant No. 1 is one which no sensible persons who weighed the props and cons could have arrived at and that there is no finding, based on material, that the punishment awarded was in ‘outrageous’ defiance of logic.
12 In the background of the aforesaid fact we are of the view that the submission of the learned Counsel for the respondent that for the guilt of the respondent the authority ought to have awarded him lesser punishment is of no merit and further, it is for the authority to decide in the background of the facts and circumstances of the case what punishment will be imposed on the delinquent.
27. In the instant case it may be mentioned that tne appellant has failed to bring on record any material wherefrom it can be said that the punishment awarded to him is. disproportionate to the offence he has committed.
28. We have gone through the impugned judgment of the High Court Division who in consideration of materials on record found: “On perusal of record and deposition of the witnesses, it is appears that all the necessary legal formalities were complied
with by the petitioner Bank in respect of the departmental proceeding initiated against the plaintiff opposite party No.l. Moreover, in his deposition, the plaintiff opposite party No.l admitted his negligence. On the face of such admission, it was open to the authority concerned to take appropriate action.”
29. In view of what has been stated above and in the facts and circumstance of the case and submissions made on behalf of the parties we are of the view that the High Court Division took a correct view in the matter and as such the impugned judgment does not call for our interference.
30. The petition is, therefore, dismissed.
Source : V ADC (2008),485