Appellate Division Cases
(Civil)
PARTIES
Secretary. Ministry of Defence and others…………….Appellants.
-Vs-
Abdul Mannan Lasker and another………………….Respondents.
JUSTICE
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 23rd March 2004
The Administrative Tribunal Act, 1980 (VII of 1981).
That two years ante-dated seniority was granted to the respondent No. 1 because of his contribution to the liberation war. But afterwards his previous service records were received from Pakistan and then the fact that he did not participate in the war of liberation was revealed and there was also nothing on record to show that the respondent No. 1 was associated with the liberation war in 1971 and accordingly his ante-dated seniority was cancelled. Further, certificate dated 25.9.93 showing respondent No. 1 as a freedom fighter, on which the Administrative Appellate Tribunal relied, was not filed before the Administrative Tribunal though as it appears the respondent No.l filed the above Administrative Tribunal Case No. 38 of 1987 on 19.2.84 and the same was dismissed on 7.1.93. Further the above certificate was procured on 25.9.93 i.e. after the above case was dismissed just to cover the alleged claim of being Muktijodha. It thus appears that the Administrative Appellate Tribunal relied on a document which had no evidentiary value in the eye of law. Further there also is at all no evidence on record to show that respondent No. 1 during the period of war of liberation did not receive any salary from the Government of Pakistan which is a pre condition for obtaining any benefit in terms of Memo, dated 18.3.78 issued by the Established Division. So the finding of the
Administrative Appellate Tribunal that during the period of war of liberation Respondent No. 1 did not receive any salary from Pakistan is based on mere conjecture and surmise. Further Annexures-Kha, Ga, Gha, Uraa and Cha clearly negatives the assertion of the respondent No. 1 that he is a freedom fighter. So the order cancelling the gra’nt of ante-dated seniority to the respondent No. 1 is not illegal ……………………………………… (10)
Civil Appeal No. 50 of 1997. (From the Judgment and Order dated 26 September, 1994
passed by the Administrative Appellate Tribunal in Administrative Appeal Case No. 15 of 1993).
A. J. Mohammad Ali, Additional Attorney General, instructed by Ataur Rahman khan,
Advocate-on-Recorcl……………………….. For the Appellants.
Md. Nawab Ali, Advocate-on-Record. ……………….For the Respondent.
JUDGMENT
1. Md. Tafazzul Islam J:– This appeal by way of leave arises out of the judgment and order dated 26.9.1994 passed by Administrative Appellate Tribunal, Dhaka in Appeal No. 15 of 1993 allowing the appeal and setting aside the judgment and order of the Administrative Tribunal dated 7.1.1993 dismissing Administrative Tribunal Case No. 38 of 1987.
2. The respondent No. 1 filed the above Administrative Tribunal Case stating that on 10.2.70 he was appointed as a Chargeman in the Pakistan Ordnance Factory at Wah Cantonment, Rawalpindi and on 10.5.71 he came to Bangladesh on 38 days earned leave and on his arrival at home in the district of Faridpur, he participated in the war of liberation by way of supplying food to the freedom fighters and after liberation of Bangladesh he joined the Bangladesh Ordnance Factory at Gazipur on 16.12.71 and had he not joined the war of liberation, after expiry of his leave, he could easily go to Pakistan to join his service there; he was granted two years ante-dated seniority in recognition of his participation in the liberation war but for some unknown reason by order dated 19.3.86 his ante-dated seniority was cancelled and the review petition filed by him in respect of the above order dated 19.3.86 was also rejected.
3. The appellant contested the above case and filed written statement denying all the material allegations and stating inter alia that respondent no. 1. who was appointed as Chargeman in the Engineering Trade of Pakistan Ordnance Factory on 10.2.70 came to his home by taking 38 days earned leave from 10.5.71 to 16.6.71 and he never participated in the liberation war and on the other hand after expiry of leave, he prayed for extension of his leave on medical ground by sending letters and telegram and also prayed for allowing him to join in the Ordnance Factory at Gazipur by expressing his allegiance to the Government of Pakistan and further, the father of respondent No.l also sent petition seeking mercy of the authorities in Pakistan. After, liberation the respondent No. 1 joined Gazipur Ordnance Factory and by supplying false particulars obtained two years ante-dated seniority. Subsequently after his previous service records were received from Pakistan,it was revealed that he did not participate in the war of liberation and on the contrary he showed allegiance to the Government of Pakistan and so his two years ante-dated seniority was cancelled.
4. The Administrative Tribunal dismissed the case holding that respondent No.l was not a freedom fighter and so the appellant did not commit any illegality in cancelling his antedated seniority. However the Administrative Appellate Tribunal allowed the appeal holding that the materials on record showed that respondent no.1 was a freedom fighter.
5. Leave was granted in the following terms :”Mr. Shamsul Alam, the learned Deputy Attorney General appearing for the petitioner submits that the Administrative Appellate Tribunal acted illegally and wrongly in setting a-side the judgment of the Administrative Tribunal when as a matter of fact the case of respondent No. 1 was based on no evidence in as much as respondent No.l failed to show that he was associated with the liberation movement in 1971 and the learned Advocate next submits that the Administrative Appellate Tribunal committed an error of law in considering the alleged certificate dated 25.9.93 showing respondent No. 1 as a freedom fighter which was filed for the first time before the Administrative Appellate Tribunal, although the Administrative Tribunal case was filed on 19.2.84 and the same was dismissed on 7.1.93 and as such the Administrative Appellate Tribunal relied on a document which had no evidentiary value in the eye of law. He further submits that there is no evidence that respondent No. 1 during the liberation period did not receive any salary from the Government of Pakistan and as such the finding of the Administrative Appellate Tribunal that during this period respondent No.l did not receive any salary form Pakistan is absolutely based on no evidence and consequently the judgment is liable to be set aside. In any view of the matter, the learned Advocate further submits, the initial grant of ante-dated seniority was not legal.”
6. We have heard Mr. A. J. Mohammad Ali, the learned Additional Attorney General appearing for the appellant and Mr. Nawab Ali. the learned Advocate on-Record appearing for the respondent No.l and perused both the judgments and also the relevant papers.
7. It is an admitted fact that the service record of the respondent No.l was received from Pakistan which contained certain papers out of which the appellant, amongst others, annexed Annexure Kha to Uma in their written statement filed before the Administrative Tribunal. The appellant asserted that from the said papers they found that the respondent No. 1 did not participate in the liberation war as claimed by him earlier and there is also nothing on recorded to show that he was associated with the liberation war. Accordingly initial grant of ante-dated seniority being not found legal was withdrawn.
8. The Administrative Tribunal, as it appears, considered Annexure “Kha” which is the order granting leave to the petitioner on 26.4.71. Annexure “Gha” which is the telegram of the respondent No.l seeking extension of leave from 17.6.71 to 24.1.72 on medical ground. Annexure “Gha which is the letter directing the respondent No. 1 to resume duties by 25.9.71. Annexure- ”lima” which is the letter of the respondent No. 1 intimating the authorities in Pakistan about his inability to resume duties due to threat of the freedom fighters and praying for permission to join at Gazipur Ordinance Factory to serve Pakistan Government and Annexure “Cha” which is the letter dated 9.11.71 by which the father of the petitioner made allegations to the Chairman Pakistan Ordnance Factory against the freedom fighters, found that respondent No.l did not renunciate his allegiance to the Government of Pakistan during the liberation war and rather for the situation which was unfavorable for him due to liberation war he could not join his duties in the then West Pakistan and was always trying to resume his duties under the Pakistan Government and so the respondent No. 1 was not entitled to claim two years ante-dated seniority on the ground that he participated in the liberation war and accordingly the seniority, which was granted on misrepresentation of facts and on misgivings, was rightly cancelled.
9. As it appears, the Administrative Appellate Tribunal allowed the appeal taking into consideration the fact that during the liberation war. the whole of the then East Pakistan was under the Pakistan Army and on body dared to utter a single word against the sovereignty of Pakistan regarding this part of the country and thus having put in such a dangerous and peculiar situation, it is quite natural for the respondent No. 1 to write/ send some untrue letters/telegrams, i.e. Annexures-Kha, Ga. Gha and Uma, to his Pakistani Authority and his father also had to write letter dated 9.11.71 to convince them that the respondent No.l was very loyal to Pakistan but for circumstances prevailing in the then East Pakistan he could not join his service at Rawalpindi and thus he had to play a double role, on the one hand supplying food to the freedom fighters and thereby collected secret information from occupation army camps and on the other hand to camouflage things to induce belief in the mind of the enemy soldiers that he was a true Pakistani and further, the very fact that the respondent No. 1 had a return ticket for going back to Pakistan but he allowed the same to be lapsed and he did not return to Pakistan thereafter, speak volume in his favour and it can legitimately be inferred from the above facts that at heart the respondent No.l gave up his loyalty towards the Government of Pakistan and he was giving bluffs to the said Government authority to save his life from the hands of the occupation forces by writing letters and sending the above letters and telegrams. The Administrative Appellate Tribunal further held that the certificate dated 25.9.93 being issued by Bangladesh Muktijodha Sanahad, Gopalgonj District Unit Command the genuineness of the same having not been challenged by the appellant, shows that the respondent No.2 was freedom fighter.
10. It is an admitted fact that the respondent No. 1 came to his home at Faridpur by taking 38 days earned leave for the period from 10.5.71 to 16.6.71. From the contents of Annexures Kha to Uma it appears that after expiry of leave he prayed for extension of leave on medical ground, and also prayed for allowing him to join in the Ordnance Factory at Gazipur by expressing his allegiance to the Government of Pakistan. Moreover from the contents Annexure, “Cha’ it also appears that the father of respondent No. 1 also sent petition seeking mercy of the authorities and to allow the respondent No. 1 to join at Gazipur Ordnance Factory. It further appears that two years antedated seniority was granted to the respondent No. 1 because of his contribution to the liberation war. But afterwards his previous service records were received from Pakistan and then the fact that he did not participate in the war of liberation was revealed and there was also nothing on record to show that the respondent No. 1 was associated with the liberation war in 1971 and accordingly his ante-dated seniority was cancelled. Further, certificate dated 25.9.93 showing respondent No. 1 as a freedom fighter, on which the Administrative Appellate Tribunal relied, was not filed before the Administrative Tribunal though as it appears the respondent No. 1 filed the above Administrative Tribunal Case No. 38 of 1987 on 19.2.84 and the same was dismissed on 7.1.93. Further the above certificate was procured on 25.9.93 i.e. after the above case was dismissed just to cover the alleged claim of being Muktijodha. It thus appears that the Administrative Appellate Tribunal relied on a document which had no evidentiary value in the eye of law. Further there also is at all no evidence on record to show that respondent No. 1 during the period of war of liberation did not receive any salary from the Government of Pakistan which is a pre condition for obtaining any benefit in terms of Memo, dated 18.3.78 issued by the Established Division. So the finding of the Administrative Appellate Tribunal that during the period of war of liberation Respondent No. 1 did not receive any salary from Pakistan is based on mere conjecture and surmise. Further Annexures-Kha, Ga, Gha, Uma and Cha clearly, negatives the assertion of the respondent No. 1 that he is a freedom fighter. So the order canceling the grant of ante-dated seniority to the respondent No. 1 is not illegal.
In the result the appeal is allowed without any order as to costs.
Ed.
Source: I ADC (2004), 555