The Republic of Pakistan (Now Bangladesh) Vs A.N.M. Serajul Haque be­ing dead his heirs: Jahibul Hoque and ors.

The Republic of Pakistan (Now Bangladesh) (Appellant)

Vs

A.N.M. Serajul Haque be­ing dead his heirs: Jahibul Hoque and ors. (Respondents)

 

Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ah­med J

A.T.M. Afzal J

Judgment

March 2, 1989.

The Laws (Continuance in Force) Order, 1958, Article 6(5)(b)

The High Court Division was in error in holding that the order of the Commissioner of Income Tax to retire the respondent from service was illegal without taxing into consideration exhibit. A order of the government of Pakistan directing the Commissioner of Income Tax to retire the respondent consequent on rejection of his appeal against the decision of the Screening Committee………..(9)

Lawyers Involved:

Abdul Wadud Bhuiyan, Additional Attorney General, instructed by B. Hossain, Advocate-on-Record.—For the Appellant.

Ex parte—Respondents.

Civil Appeal No. 160 of 1983.

(From the judgment and order dated 28.3.83 passed by the High Court Division, Dhaka in First Appeal No. 40 of 1965).

Judgment:

Badrul Haider Chowdhury, J.-This ap­peal by special leave is directed against the judgment and order passed by the High Court Division in First Appeal No. 40 of 1965.

2. The plaintiff-Respondent filed a title suit be­ing Title Suit No.35 of 1962 for a declaration that the order of his compulsory retirement passed by the Commissioner of Income Tax on June 29,1959 was illegal and without jurisdiction alleging, inter alia, that the Commissioner of Income Tax, East Paki­stan was not the competent authority to order his compulsory retirement.

3. The trial Court found that the order of com­pulsory retirement was, in view of the amendment of section 5 of the Income Tax Act, illegal and accord­ingly decreed the suit. The High Court Division in First Appeal affirmed the decision of the trial Court. Leave was granted to consider the point that the order of retirement was directed by the Central Govern­ment and the Commissioner of Income Tax commu­nicated the same to the plaintiff-respondent as such the order of compulsory retirement was not tainted with any illegality. Mr. Abdul Wadud Bhuiyan, the learned Additional Attorney General, pointed out that the Screening Committee recommended for the com­pulsory retirement of the plaintiff on the ground of his being “reputed to be dishonest”. The plaintiffs appealed before the Central Government and it was dismissed. The learned Additional Attorney General placed before us the appointment letter of the plain­tiff. Then he placed Exhibit A which reads as follows:-

“To

The Commissioner of Income Tax, (Dy. Name)

East Pakistan, Dacca.

Subject:-Screening Committee. Final orders on the Appeals submitted by the officers concerned in connection with the recommendations of the Screening Committee.

I am directed to say that the appeal submit­ted by Mr. A.N.M. Sirajul Haq, Income-Tax Officer against the findings of the Screening Com­mittee has been rejected by the Finance Minister. He is, therefore, to retire from service with immediate effect on charges of corruption.

2. A form in which the orders are to be communicated to the Officer is enclosed which should be issued under your signature. A form of notification is also enclosed. Officers may be informed and actions taken accordingly.

3. Please see that all the orders in connec­tion with the Screening are issued within 30th June, 1959.

G.S. Choudhury,

Under Secretary to the Govt. of Pakistan.

Extract from Manual of Appointments and Allowances of Gazetted Officers under the Audit of the Accountant General, Bengal, Part I, Eighth Edition (Revised), published by the Manager of Publications, Delhi in 1937.

Income-Tax Department. Page 155. Chap. XI.

4. Thereafter the order was passed on 29th June, 1959 in the following terms vide Exhibit 8:-

“Ext.8—Copy of Memorandum from Com­missioner of Income-Tax, Dacca to Mr. A.N.M. Serajul Huq and oth­ers, dated the 29th July, 1959.

No. 209/113E-1/58-59(Con).

Government of Pakistan Depart. of Income-Tax.

Dated, Dacca, the 29th June, 1959.

Memorandum:

In Exercise of the powers conferred on me by Sub-Clause (b) of Clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, 1 order Mr. A.N.M. Sirajul Haq, Income Tax Of­ficer, Central Salaries, Circle II, Dacca to retire with immediate effect from service on charges of having reputation of being corrupt.

2. In the event of his conviction in the legal proceedings, if any, to be instituted hereafter the liability for payment of pension or propor­tionate pension as the case may be would be re­considered and the Government may forfeit the entire pension or part thereof.

3. Mr. A.N.M. Sirajul Haq is further de­barred from future employment under the Government.

Sd/-

(A. Latif)

Commissioner of Income Tax,

East Pakistan, Dacca.

Copy forwarded to:-

(1) Mr. A.N.M. Sirajul Haq, Income Tax Offi­cer, Central Salaries, Circle II, Dacca. He should positively make over charge on or before 30.6.59.

(2) A.R. Khan, Esqr., Secretary, Establishment Division, Ministry of the Interior, Karachi.

(3) Accountant-General, East Pakistan, Dacca.

(4) Secretary, Central Board of Revenue, Kara­chi.

(5) Inspecting Assistant Commissioner of In­come-Tax, Range III, Dacca.

A. Latif,

Commissioner of Income Tax,

East Pakistan, Dacca.

The Gazelle of Pakistan, Extra, Jan. 24, 1959.

Karachi,

The 24th January, 1959.”

5. The High Court Division in their judgment had token the view that the Commissioner of Income Tax had not issued the letter as a delegate of the Cen­tral Government; that he had passed the order inde­pendently although he was not the competent author­ity to pass such an order. The High Court Division repelled the contention of Mr. M.M. Haque, Assist­ant Attorney-General that if Exhibit 8 is read with Exhibit A it will be found that the Commissioner of Income Tax had the authority to pass such an order. Unfortunately, the learned Judges were not inclined to consider the proposition. It was observed:-

“We are not concerned with Ext. A here. We are concerned here with the order passed by the Commissioner of Income Tax”.

6. Mr. Abdul Wadud Bhuiyan, referred to Ext. A which communicates the decision of the Govern­ment that the appeal of the plaintiff-respondent had been rejected by the Finance Minister. The Commis­sioner of Income Tax issued the order in exercise of the powers conferred on him by Sub-Clause (b) of Clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958. This Sub-Clause (b) of Clause (5) of Article 6 reads as under:-

“Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause (1) from being-(b) retired for any cause mentioned in the proceeding sub-clause, or for having the reputa­tion of being corrupt or for inefficiency, on such pension (if any), as may be admissible to him, proportionate or otherwise-

by an order of the authority mentioned in clause(3) made before the first day of July 1959, and no appeal shall lie against such order nor shall such order be called in question in any Court.”

7. Now clause (3) may be considered which reads as follows:—

“(3) Notwithstanding anything in clause (1) a person in the service of Pakistan may, if he is found inefficient or guilty of subversive activi­ties, corruption or misconduct, under rules made in that behalf by the President or a Governor, be suspended, compulsorily retired (whether he has reached the age of retirement or not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed.”

8. Mr. Bhuiyan argued that if the two exhibits, Ext. A and 8 are read together it will be clear that the decision to retire the respondent was taken by the Central Government and the Commissioner of In­come Tax issued the order of retirement as directed by the Central Government. It is contended that the retirement order was validly made and the High Court Division erred in law in construing Ext. 8 in­dependently of Ext. A. It is submitted that the Com­missioner of Income Tax communicated the decision as per direction of the Central Government contained in Exhibit A.

9. The argument has force. It is unfortunate that the learned Judges of the High Court Division ignored to consider the bearing of Exhibit A in com­ing to decision. None appears for the respondent, nor any concise statement has been filed on his behalf. Having heard Mr. Abdul Wadud Bhuiyan and pe­rused the Exhibit A and Exhibit 8 in the context of Laws Continuance Order, 1958, there is no hesitation in saying that the High Court Division was in error in coming to the decision without taking into consideration effect of Exhibit A.

In the result, the appeal is allowed without any order as to costs.

Ed.

Source: 42 DLR (AD) (1990) 68