DISTRICT : DHAKA
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
CIVIL REVISION NO. OF _____
IN THE MATTER OF:
An application under Section 115
of the Code of Civil Procedure
AND
IN THE MATTER OF:
Prime Bank Limited
Represented by its
Managing Director
Head Office
Adamjee Court Annex Building – 2
119 – 120 Motijheel Commercial Area
Dhaka
PETITIONER/
DEFENDANT
Versus
X
son of late Y
Sheltech Monihar
Flat No. 3G
154/1 Monipuripara
Tejgaon, Dhaka
OPPOSITE-PARTY
/PLAINTIFF
AND
IN THE MATTER OF:
Order No.1 dated 07/09/97 passed by Mr. Md. Abdul Mannan Khan, Senior Assistant Judge, 4th Court of Assistant Judge, Dhaka, in Title Suit No. 248 of 1997, passing an order of adinterim injunction on an application filed by the opposite party under Order 39 Rule 1 read with section 151 of the Code of Civil Procedure.
Application valued at Tk. 1000.00
To:
Mr. Justice Abu Taher Muhammad Afzal, the Chief Justice and his companion justices of the said Hon’ble Court.
The humble petition of the Petitioner above named most respectfully
SHEWETH:
01. This revisional application is filed against an order passed by Mr. Md. Abdul Mannan Khan, Senior Assistant Judge, 4th Court of Assistant Judge, Dhaka in Title Suit No. 248 of 1997 passing an order of adinterim injunction under Order 39 Rule 1 read with section 151 of the Code of Civil Procedure on the suspension of the opposite party from his employment. The opposite party was neither dismissed nor terminated from his service. But because of serious irregularities amounting to criminal conduct being detected against him, the petitioner Bank in order to conduct a fair investigation decided to put the opposite party under suspension with all necessary benefits allowed under the Bank’s Service Rules. As against the said order of suspension the opposite party has obtained an order of ad interim injunction thereby blocking any investigation against him by the Bank.
02. That the Petitioner is a banking company incorporated under the relevant Companies Act having Head Office at 119-120 Motijheel Commercial Area, Dhaka. The petitioner carries on banking business with permission of Bangladesh Bank through its branches.
03. That the opposite-Party is an employee of the petitioner Bank. The opposite party joined the petitioner Bank in July 1995 as Vice President. He was then given charge of Moulvi Bazar Branch of the Bank as Manager.
04. That while in charge of Moulvi Bazar Branch of the Bank, the petitioner detected serious irregularities having been committed by the opposite party. The petitioner immediately transferred the opposite party from the Branch and brought him to the Head Office in March 1997. While the opposite party was posted in the Head Office, an investigating team was constituted for investigation of the affairs of the Branch at Moulvi Bazar.
05. After preliminary investigation the petitioner Bank found out that the opposite party as Manager of the Branch committed series of illegal acts, some of them amount of serious criminal misconduct.
06. That the opposite party while taking the job in the petitioner Bank suppressed his record with his previous employer, National Bank Limited. National Bank Limited stated in his release order that the plaintiff’s performance with National Bank Limited was not satisfactory and that he was not entitled to any gratuity from the Bank. The defendant bank subsequently came to know that the plaintiff was involved in irregularity while in the employment of National Bank Limited.
07. That the preliminary investigation revealed following irregularities being committed by the opposite party :
a. The plaintiff as Vice President and In Charge of Moulvi Bazar Branch opened a Current account being Account No. 11001756 of one Mr. Azizur Rahim with his photograph attached to the form. The account was opened on 12-12-95. Mr. Azizur Rahim was identified by the plaintiff. On 14-01-96 the plaintiff opened another Current account being Account No. 11001961 of M/s Holly Computer showing the proprietor as one Mr. Md. Salim. The plaintiff also identified Mr. Md. Salim. In fact both Mr. Azizur Rahim and Mr. Md. Salim are the same person as will be evident from the two photographs attached to the forms. The opening of two different accounts in two different names of one person both identified by the plaintiff is a criminal act which itself is sufficient to dismiss the plaintiff from his service.
b. In a similar manner the plaintiff again opened Current account being Account No. 11001795 of one Mr. Iftekhar showing him as proprietor of M/s. ITPS Enterprises. The account was opened on 18-12-95. On 10-06-96 the plaintiff again opened another Current account being Account No. 11002499 under the name of M/s. Ratan Enterprise, proprietor, Mr. Md Zia. In fact both Mr. Iftekhar and Mr. Md Zia are the same person as will be evident from the two photographs attached to the forms. The opening of two different accounts in two different names of one person both identified by the plaintiff is again another criminal act which itself is sufficient to dismiss the plaintiff from his service.
c. That as a Vice President and In Charge of the Branch, the plaintiff is not authorised to purchase any cheque except cheque issued by the Bangladesh Government and Pay Orders but the plaintiff as In-charge of the Branch purchase two cheques of Tk.10,00,000.00 each issued by M/s. Holly Computer to the order of M/s. Holly Computer, one issued on Arab Bangladesh Bank Limited and another issued on National Bank Limited. The cheques were found lying in the drawer of the opposite party after he was transferred to head office. By purchasing these two cheques the plaintiff not only committed gross irregularity but also caused serious loss to the defendant bank in that this amounts were never paid by the drawee banks. These particular incidents are good enough for the plaintiff to be dismissed from his service.
d. The opposite party also allowed opening of the letter of credits without any margin which is totally illegal. By opening such letters of credit without any margin the opposite party has exposed the Bank to the risks of crores of takas.
e. In addition to this serious irregularity the plaintiff has caused serious loss to the defendant Bank by extending loan facilities to various business houses without sanction of the Head Office.
06. That while the investigation was going on the opposite party having being physically present in the Bank made several attempts to change the course of investigation. As such the Management of the Bank decided that in order to complete the investigation fairly and without any influence, the opposite party should be suspended with all benefit available under the Service Rule. Rule 9.1.4 of the Service Rules of the Bank provides as follows:
“An employee against whom disciplinary action is proposed to be taken under Sub-rule 9.1 may be placed under suspension if, in the opinion of the competent authority, suspension is necessary or the competent authority may, instead of placing such an employee under suspension, by order in writing require him to proceed on such leave as may be admissible to him from such date as may date as may be specified in the order.”
The competent authority thought to achieve a fair and proper investigation suspension of the opposite party was necessary and accordingly the opposite party was suspended vide letter dated 28/08/97 with proper benefits.
07. The opposite party thereafter filed Title Suit No. 248 of 1997 in the Court of 4th Asstt. Judge, Dhaka for declaration that the issuance of letter dated 28/08/97 suspending him was in violation of service rule, illegal and in violation of law and as such not binding on the opposite party. On 07/09/97 the opposite party filed an application under Order 39 Rule 1 read with section 151 of the Code of Civil Procedure for temporary injunction. The opposite party also prayed for ad interim injunction.
08. That on the application for temporary injunction the Court issued show cause notice upon the petitioner Bank. On the same date under the same order the Court also passed an order of adinterim injunction upon the Bank which reads as follows:
09. That the passing of the order of adinterim injunction ex-parte without giving any opportunity to the petitioner is an irregular order. No time frame has been given as to the effectiveness of the adinterim order. The order is taking the effect of a final order.
10. That the petitioner Bank filed written objection on 15/09/97 but could not get the application of temporary till the date of filing this revisional application.
11. That it is stated that the plaintiff does not have any prima facie case. Suspension is not termination of dismissal. This is not a punitive order. Suspension was deemed necessary by the Management for conduct of fair and uninterrupted investigation. Due to suspension, the plaintiff will also not suffer any injury which is irreparable. If the plaintiff can prove his innocence, the order of suspension will go and plaintiff will receive all due payments and resume his duty as usual. The purpose of suspension is to ensure fair and uninterrupted investigation. Further the balance of convenience and inconvenience is in favour of the defendant Bank in proceeding against the plaintiff. The order of adinterim injunction is causing serious inconvenience to the defendant Bank disrupting its normal function.
12. That it is stated that the order of adinterim injunction was passed illegally in a service matter. In the absence of any statutory provision protecting the employee, no order of injunction permanent or temporary, not to mention of adinterim which have the effect of keeping an employee in the employment of an unwilling employer can be passed.
13. That it is further stated that adinterim or temporary injunction should not ordinarily be granted in cases where permanent injunction can not be granted. In service matter an employee can not ask for permanent injunction if threatened injury can be compensated by monetary payment. In such case no adinterim or temporary injunction can be granted.
14. That being aggrieved by and dissatisfied with the Order No. 2 dated 07/09/97 passed in Title suit No. 248 of 1997 by the Senior Assistant Judge, 4th Court, Dhaka the Petitioner/Defendant above named begs to file this application for revision on the following amongst other
G R O U N D S
I) For that the Court below in the facts and circumstances of the case has committed an error of law in passing an order of adinterim injunction against the defendant resulting in an error in the decision occasioning failure of justice.
II) For that the Court below committed an error of law in passing an order of adinterim injunction in service matter when only suspension order was passed by the Bank against the opposite party resulting in an error in the decision occasioning failure of justice.
III) For that the learned Court below has committed an error of law in passing the order of adinterim injunction ex-parte in a service matter without hearing the defendant Bank.
IV) For that the learned Court below has committed an error of law in passing the order of adinterim injunction when such order is having the effect of blocking all further investigation into the offences being committed by the opposite party.
V) For that the Court committed an error in law by not disposing of the application for injunction resulting in an error in the decision occasioning failure of justice.
VI) For that the impugned order is otherwise illegal and liable to be set aside.
Wherefore, it is humbly prayed that the Hon’ble Court may be pleased:
a) To issue Rule upon the Opposite-Party to show cause as to why order No. 2 dated 07/09/97 passed by Mr. Md. Abdul Mannan Khan, Senior Assistant Judge, 4th Court of Assistant Judge, Dhaka in Title Suit No. 248 of 1997, shall not be set aside, and after perusal of the cause shown, if any, make the Rule absolute.
b) Pending hearing of the Rule, stay operation of the impugned order No. 2 dated 07/09/97 passed in Title Suit No. 248 of 1997 pending in the 4th Court of Assistant Judge, Dhaka
c) Pass such other or further order or orders as may deem fit and proper in this case.
And for this act of kindness, the Petitioners, as duty bound shall ever pray.
A F F I D A V I T
I, son of , aged about years, Adamjee Court Annex Building – 2, 119 – 120 Motijheel Commercial Area, Dhaka, by faith __________, by nationality Bangladeshi, by profession Serviceholder, do hereby solemnly affirms and declares as follows:
1. That I am the in this petition and acquainted with the facts and circumstances and competent to swear this Affidavit on behalf of all the petitioners.
2. That the statements of facts made in this application are true to the best of my knowledge and belief and rests are submissions before this Hon’ble Court.
| Prepared in my office : | DEPONENT |
| _______________________
Advocate |
The deponent is known to
me and identified by me. |
| Solemnly affirmed before me by
the aforesaid deponent on this the ____th day of ________________. |
ADVOCATE |
| Commissioner of Affidavits
Supreme Court of Bangladesh, High Court Division |