S.M. Nurul Islam Vs. Padma Oil Company Limited and others

Appellate Division Cases

(Civil)

PARTIES

S.M. Nurul Islam……………. Petitioner.

-Vs-

Padma Oil Company Limited and others…………………. Respondents.

JUSTICES

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 28th November 2006

Seeking declaration that the order dated 7.7.1993 passed by the defendants- respondents discharging the petitioner from his service is illegal, void and also seeking reinstatement in his service with all arrear benefits ……………….(2)

As it appears the High Court Division discharged the Rule holding that the plaintiff in reply to the show cause notice dated 6.6.1993, Exhibit-1, gave explanation on 16.6.1993 by Ext. 2 and in the said explaintion he admitted the guilt and begged apology. Accordingly since the plaintiff admitted his guilt, the opinion of the High Court Division that no further inquiry or issuing of second show cause notice was necessary appears to be the correct position. As it appears the trial court as well as the lower appellate court, though found that the plaintiff indirectly admitted the misappropriation, held that an enquiry an 2nd show cause were necessary which is not at all proper in view of the fact that the offence of misappropriation has been admitted by the plaintiff petitioner by Ext. 2 ………………………….(4)

It thus appears that this Division clearly indicated that both the trial court as well as the appellate Court decreed the suit without at all considering Ext. 2 in which the petitioner admitted his guilt. …………………….(5)

Accordingly the review petition is dismissed. ……………….(6)

S.M. Zillul Hoque, Senior Advocate, instructed by Md. Nawab AH, Advocateon-Record …………………………….For the Petitioner

Md. Wahidullah, Advocate-on-Record. …………………………..For the Respondent

Civil Review Petition No. 09 of 2005

(From the judgment and order dated 7th July 2004 passed by the Appellate Division in Civil Petition for Leave to Appeal No. 1621 of 2002).

JUDGMENT

Md. Tafazzul Islam J: By this netition the petitioner seeks review of the judgment

and order dated 7.7.2004 passed by this Division in Civil Petition for Leave to Appeal No. 1621 of 2002.

2. The petitioner filed Title Suit No. 285 of 1995 in the Court of 4th Assistant Judge

Dhaka seeking declaration that the order dated 7.7.1993 passed by the defendants-respondents discharging the petitioner from his service is illegal, void and also seeking reinstatement in his service with all arrear benefits on the averments that the respondent No. 1, Padma Oil Company Limited, is a public limited company and the shares of the above company are held by Bangladesh Petroleum corporation, the respondent No.3, as well as other financial institutions, public institutions and individuals; since 2.5.1980 the petitioner was serving in the respondent No.l company as its accounts officer sincerely and honestly with satisfaction of his higher authorities; on 6.6.1993 allegation of misconduct was brought against him and then by order dated 7.7.1993 he was discharged

from his service without holding any enquiry and no second show cause notice was also issued upon him; the petitioner then by application dated 14.7.1993  prayed for reconsideration of the above order dated 7.7.1993 and also prayed for his reinstatement in the service but the same was rejected. The respondent No.2 contested the said suit by filing a written statement stating that the relationship between he respondent No. 1 and the petitioner being that of master and servant the suit is not maintainable in its present form; by charge sheet dated 6.6.1993 the petitioner was charged for misappropriation of Tk. 2107.68 by overwriting, interpolation and falsifying medical prescriptions given to the plaintiff by the doctor of the respondent No. 1 and the petitioner by his letter dated 16.6.1993, while giving his explanation to the said charge, admitted the allegations made against him and prayed for exonerating him from the charges; in view of his above admission the petitioner was found guilty of the charges brought against him but having

regard to his past long service the respondent No.l, by order dated 7.7.1993, instead of dismissing the petitioner, discharged him from service so that he could get some service benefits. The trial court decreed the suit. Being aggrieved the respondent No.2 preferred Title Appeal No. 266 of 1998 and after hearing the above appeal was dismissed. The respondent No.2 then moved the High Court Division and obtained Rule in civil Revision No. 2514 of 2000 and after hearing a Single Bench of the High Court Division made the Rule absolute. The petitioner then filed Civil Petition No. 1621 of 2002 before this Division which, after hearing, was dismissed.

3. The learned counsel for the petitioner submits that the suit filed by the petitioner was decreed by the trial Court as well as the appellate Court, the last court of facts, and the concurrent findings arrived at by the above court’s are binding on the High Court Division and hence the High Court Division fell in error in making the Rule absolute holding that since petitioner, in his explanation dated 16.6.93 exhibit-2, admitted his guilt and begged apology no further enquiry or issuing second show cause notice was necessary; this Division also fell in error in agreeing with the above view of the High Court Division specially when the positive case of the petitioner in the above suit was that he was entitled to get second show cause notice prior to discharging him from his

service and though the defendant contested the above suit by filing written statement

the trial court on the basis of the above positive case of the petitioner came to a definite finding that the plaintiff is entitled to get a decree as prayed for and the above decree was also affirmed by the appellate Court and thereafter, in revision-al stage at the High Court Division, the defendants introduced a completely new case completely unheard and unseen in the courts below and this Division, by overlooking the above aspect of the matter, fell in error.

4. As it appears this Division dismissed Civil Petition No. 1621 of 2002 holding as follows:”

As it appears the High Court Division discharged the Rule holding that the plaintiff in reply to the show cause notice dated 6.6.1993, Exhibit-1, gave explanation on 16.6.1993 by Ext. 2 and in the said explaintion he admitted the guilt and begged apology. Accordingly since the plaintiff admitted his guilt, the opinion of the High Court Division that no further inquiry or issuing of second show cause notice was necessary appears to be the correct position. As it appears the trial court as well as the lower appellate court,

though found that the plaintiff indirectly admitted the misappropriation, held that an enquiry an 2nd show cause were necessary which is not at all proper in view of the fact that the offence of misappropriation has been admitted by the plaintiff petitioner by Ext. 2.”

5. It thus appears that this Division clearly indicated that both the trial court as well as the appellate Court decreed the suit without at all considering Ext. 2 in which the petitioner admitted his guilt.

6. Accordingly the review petition is dismissed.

Source : V ADC (2008), 292

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