Secretary, Ministry of Establishment Vs. A M Nurunnabi

Secretary, Ministry of Establishment.  (Petitioner)

Vs.

A M Nurunnabi. (Respondent)

Supreme Court

Appellate Division

(Civil)

JUSTICES

Latifur Rahman CJ 

Mahmudul Amin Choudhury J 

Md. Gholam Rabbani J  

Md. Ruhul Amin J 

Judgment

February 27, 2001.

he Bangladesh Service Rules, Part I, Rule 72(b)

The review forum having found the respondent honourably acquitted, the Tribunals below rightly held that the respondent is entitled to the arrear pay and allowances………………………(7)

Lawyers Involved:

Mahmudul Islam, Attorney-General, instructed by Sufia Khatun, Advocate-on- Record — For the Petitioner

Abdul Wadud Bhuiyan, Advocate, instructed by Fokrul Islam, Advocate-on-Record — For the Respondent.

Civil Petition for Leave to Appeal No.776 of 2000.

(From the Judgment and order dated 31-5-2000 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.83 of 1998).

Judgment

               Latifur Rahman CJ.- This civil petition for leave to appeal by the Secretary, Ministry of Establishment, Government of Bangladesh is directed against the judgment and order dated 31-5- 2000 passed by the Administrative Appellate Tribunal in Administrative Appeal No.83 of 1998 affirming the judgment and order dated 16-8-1998 passed by the Administrative Tribunal in Tribunal Case No.51 of 1997.

2. The respondent instituted the case for a declaration that the notification dated 6-6-1996 passed by the Government is void, illegal and without lawful authority and that the period of absence from service of the respondent from 1-10- 82 to 5-6-96 shall be treated as spent on duty and he is entitled to all arrear pay and other allowances. The case of the respondent-applicant is that while he was serving as Deputy Secretary, Ministry of Food he received a letter dated 27-8-82 signed by an Assistant Inspector General of Police intimating him that he had been retired from service under Martial Law Order No. 9 of 1982 by the CMLA (Chief Martial Law Administrator) with effect from 1-10-1982. The respondent submitted representations to different authorities but with no effect. Lastly he filed an application to the CMLA as per paragraph 1A of MLO No. 9 of 1982 to review the order of retirement but no final order was issued by the CMLA till withdrawal on 10-11-1986. As the review petition was not disposed of the respondent was compelled to file Writ Petition No.1282 of 1989 for a direction upon the Government for disposal of the review application of the respondent. The writ petition was allowed and the court directed the Government to dispose of the review petition. Accordingly, the Government set up a review forum who found the allegations against the respondent as stated in the charge-sheet was baseless and submitted a report for recommendation with reinstating the respondent in service. Even thereafter the respondent was not reinstated in the service. But Government issued a letter dated 16-1-1994 which was again challenged by the respondent before the High Court Division by filing another Writ Petition No. 450 of 1994. The said Rule was made absolute on 15-1-1996 and a direction was issued upon the Government to implement the recommendation of the review forum within two months of the date of the receipt of the order. The petitioner being aggrieved filed civil petition for leave to appeal No.184 of 1996 which was summarily rejected by this Division on 9-5-1996. Consequently, the respondent was reinstated in the service on 6-6-1996 canceling his earlier order of retirement dated 27-8-1982 and treating the period of absence from service as extra-ordinary leave without pay under rule 72(b) of Bangladesh Service Rules, Part- 1. The petitioner thereafter filed the case before the Administrative Appellate Tribunal, Dhaka.

3. The present petitioner contested the case by filing a written statement stating, inter alia, that as the petitioner was not in service he would not get the pay and allowances but his seniority in this service would not be affected and that no illegality was committed for treating the period of absence as leave without pay and allowances. The case is liable to be dismissed.

4. Mr. Mahmudul Islam learned Attorney-General appearing for the petitioner-Secretary, Ministry of Establishment submits that the respondent is not entitled to arrear pay and allowances from 1-10-1982 to 5-6-96 as there is nothing on record to show as to whether he was gainfully employed during this long period and in the absence of this finding both the tribunals below acted illegally in allowing the respondent’s pay and allowances.

5. It appears from the judgment of the Administrative Appellate Tribunal that the respondent was honorably acquitted by the review forum after finding that the charges were baseless and groundless and recommended for his reinstatement in the service. The review forum further observed that the respondent has been honorably acquitted from the charges and, as such, he is entitled to pay and allowances for the period of absence from his service as per Note-4 of rule 72 of BSR Part-1. A reference to Note-4 of rule 72 shows that “the period of absence of Government servant on reinstatement in service after wrongful retirement shall be treated as a period spent on duty and he will be entitled to pay and allowances as admissible under clause (a) of this rule Clause (a) of rule 72 speaks that in case of honorable acquittal the incumbent is entitled to full pay to which he should have been entitled if he had not been dismissed or removed or suspended. In that view of the matter the Administrative Appellate Tribunal rightly held that the respondent is entitled to the arrear pay and allowances.

6. In this application before the Tribunal the respondent prayed for arrear pay and allowances from 1-1-10-1981 to 5-6-96. In reply to this, the petitioner while filing the written objection did not raise any issue as to the fact that the respondent was working somewhere or he was engaged gainfully in some profession or business for which he is not entitled to the arrear pay and allowances. There is nothing on record in respect of the submission. It is difficult for this Court to enter into this matter.

7. Mr. Abdul Wadud Bhuiyan, the learned Advocate appearing for the respondent, on the other hand, shows from gazette notifications that some Government officers who were removed under MLO No. 9 of 1982 having been reinstated were given full arrear pay and allowances. Be that as it may, the review forum having found the respondent honorably acquitted the Tribunals below rightly held that the respondent is entitled to the arrear pay and allowances.

The delay is condoned but there being no merit in the petition the same is dismissed.

Ed.

Source : 53 DLR (AD) (2001) 41

 

 

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