Badsha Miah (Md) Vs. Sonali Bank and others

Case No: Civil Appeal No. 353 of 2002

Judge: Syed JR Mudassir Husain ,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Abdur Razaque Khan,,

Citation: 11 BLC 2006 (AD) 208

Case Year: 2006

Appellant: Badsha Miah (Md)

Respondent: Sonali Bank and others

Subject: Administrative Law,

Delivery Date: 2004-6-15

Badsha Miah (Md)

Vs.

Sonali Bank and others, 2006, (AD)

11 BLC 2006 (AD) 208

 
 
Supreme Court
Appellate Division
(Civil)
 
Present:
Syed JR Mudassir Husain CJ                  
Md Fazlul Karim J 
Amirul K Chowdhury J
 
Badsha Miah (Md)...............Appellant

vs

Sonali Bank and others.......Respondents
 
Judgment           
June 15th, 2004.

Administrative Tribunals Act (VII of 1981)
Section 4(2)

Public Servants (Retirement) Act (XII of 1974)
Section 9 (2)

The learned Administrative Appellate Tribunal has rightly found that the review itself was not maintainable under any law and as such the maintainability of a case challenging an order passed in such a review is out of the question. The original order in the notification dated 15.1.97 has not merged in the review order dated 13.8.97 and as such the appellant is not entitled to get any relief without assailing the original order itself. If it is a case challenging the notification dated 15.1.1997, it is barred by limitation and, on the contrary, if it is a case against the review order dated 13.8.97 claiming declaration as to entitlement of service benefits it is not maintainable… (2,3,&13)
 
Lawyers Involved:
Mahbubey Alam, Senior Advocate, instructed by Firoz Shall, Advocate-on-Record—For the Appellant.
Abdur Razaque Khan, Additional Attorney-General, instructed by M Khaled Ahmed, Advocate- on-Record—For Respondent No.1.
Not represented—Respondent Nos. 2-4

Civil Appeal No. 353 of 2002.
(From the judgment and order dated 14-8-2002 passed by this Division in Civil Petition for leave to Appeal No. 1290 of 2000).
 
Judgment:
                    Syed JR Mudassir Husain CJ. - This appeal by leave is directed against the judgment and order dated 22-11-2000 passed by the Administrative Appellate Tribunal in Tribunal Case No. 108 of 1999 allowing the same upon setting aside the judgment and order dated 20-11-1997 passed by the Administrative Tri­bunal, Dhaka in Tribunal Case No. 228 of 1997 allowing the same.

2. The relevant facts are that the appellant filed the above case before the Administrative Tribunal, Dhaka for declaration that he is entitled to get all the financial benefits for the period from the date of his retirement up to the joining his duties.

3. The appellant's case was that while serving as Deputy General Manager of Sonali Bank, he was retired from service by an order dated 13-12-1993 under section 9(2) of the Public Servants (Retirement) Act, 1974 along with 4 others of the same Bank and 9 others of some other nationalised Banks including Agrani Bank; that one Mr. Kobad Ali, Deputy General Manager of the Agrani Bank, who was also one of those so retired by the Government, instituted Administrative Tribunal Case No. 168 of 1994 before the Administrative Tribunal, Dhaka challenging his order of retirement; that during the pendency of the said Tribunal Case, the present appellant Md. Badsha Miah of Sonali Bank submitted representation to the Hon'ble President of the People's Republic of Bangladesh on 20-8-1996 for his reinstatement in service whereupon a notification was issued on 15-1-1997 whereby the appellant was reinstated in service but without any arrear salary and allowances for the period he was out of service treating the said period as an extraordinary leave. Thereafter, the appellant joined his duties; that in the meantime the Administrative Tribunal case filed by Mr. Kobad Ali was heard and upon hearing the parries, the Administrative Tribunal allowed the said case upon setting aside the order of his retirement and directing his reinstatement in service with all financial benefits. Accordingly, said Kobad Ali was reinstated in service on 23-4-1997 with all benefits for the period he was out of service.

4. The appellant, being encouraged by the aforesaid order allowing the financial benefits to Mr Kobad  Ali submitted   an application before the Hon'ble President for review of his order dated 15-1-1997 by which the appellant was reinstated but the President rejected the prayer for review for granting the appellant the service benefits on 13-8-1997. The appellant thereafter filed the aforesaid Administrative Tribunal Case on the ground that he stands on the same footing with the case of Mr. Kobad Ali and also alleged that the appellant was denied the equal treatment violating Article 27 of the Constitution.

5. The respondents contested the case by taking a plea of limitation and principle of estoppel.

6. The Administrative Tribunal  upon hearing the parties allowed the case of the appellant by its judgment and order dated 20-11-1997 holding that the appellant (applicant) filed the case within the prescribed period of 6 (six) months from the date of rejection of the review application of the appellant on 13-8-1997 and, as such, the appellant's Tribunal Case is not barred by limitation and the order refusing to grant financial benefits to the appellant is violative of Note 4 of Rule 72 of Bangladesh Service Rules (BSR) Part 1 and also in violation of Article 27 of the Constitution. And thereby the Administrative Tribunal came to the finding that the present appellant (applicant) was entitled to get the financial benefit for the period of his unemployment by judgment and order of the Administrative Tribunal as aforesaid.

7. The respondent employer of the appellant being thus aggrieved by the aforesaid judgment of the Administrative Tribunal dated 20-11-1997 preferred appeal before the Administrative Appellate Tribunal being Administrative Appeal No. 108 of 1999 who after hearing the parties allowed  the appeal by its judgment and order dated 22-11-2000 reversing the judgment and order of the Administrative Tribunal on the ground that period of limitation should run from the notification dated 15-1-1997.

8. The appellant, being aggrieved by the above judgment of the Administrative Appe­llate Tribunal  dated 22-11-2000 moved  this Division and obtained leave to consider as to whether the Administrative Appellate Tribunal committed an error of law in holding the view that without challenging the notification dated 15-1-1997 the appellant cannot challenge the order rejecting the review of the appellant by the Hon'ble President of Bangladesh on 13-8-1997 and also to consider as to whether the appellant's Tribunal Case having been filed on 20-11-1997 after rejection of the aforesaid order of review was time barred or not.

9. Mr. Mahbubey Alam, the learned Counsel, appearing for the appellant, conten­ded that the Administrative Appellate Tribunal committed an error of law in holding the view that without challenging the notification dated 15-1-1997, the appellant cannot challenge order rejecting his review petition by the President passed on 13-8-1997 inasmuch as the President of the People's Republic of Bangladesh, being the highest Constitutional functionary and there being no appellate authority above him, since the aforesaid order being reviewable only by the President, the appellant was entitled to challenge the order of review before the Administrative Tribunal  and,  as  such,  the Administrative Appellate Tribunal wrongly held that the petition before the Tribunal by the appellant is barred and in such view of the matter,  the  findings  and,  decisions of the Administrative Appellate Tribunal are wrong and cannot sustain in law.

10. Mr. Alam next contended that the Administrative Appellate Tribunal while dismi­ssing the appeal misread and misconstrued the second proviso of sub-section 2 of the Adminis­trative Tribunal Act, 1980 and therefore, committed illegality in dismissing the appeal without considering that the word review has been included in the aforesaid provision of law and, as such, the findings and decisions arrived at by the Administrative Tribunal being erroneous are liable to be set aside. He further contended that the High Court Divi­sion having misdirected itself in considering the aforesaid provision of law came to an erroneous finding which cannot be sustained in law.

11. Mr. Abdur Razaque Khan, the learned Additional Attorney-General, contended that the appellant did not file any review petition before the President of the Republic and the copy of the same has not been filed before the Administrative Tribunal nor even to this Division. But the appellant actually filed incompetent representation under the garb of review before the Secretary, Ministry of Finance, Banking Division and the same was rejected on 3-8-1997 and in such view of the matter the question of filing review petition before the President did not arise. He, there­fore, argued that the Administrative Appellate Tribunal rightly considered the provision of section 9(2) of the Administrative Tribunal Act, 1980 and other attending facts and circums­tances of the case.

12. We have heard the learned Counsels of both sides and considered their submi­ssions. On perusal of the impugned judgment, we find that the Administrative Appellate Tribunal meticulously considered the case of both the parties, the provision of section 9(2) of the Public Servant (Retirement) Act, 1974 and also the provision of Rule 3(2) (d) of the Administrative Tribunal Rules' 1992.

13. Having regard to the facts and circumstances of the ease and in view of the submissions made by the learned Counsels of both sides, we find that the learned Adminis­trative Appellate Tribunal upon meticulous consideration of the materials on record rightly came to the findings which are as follows:
            "Section 4(2) of the Administrative Tribunals Act says that a person may make an application to the Tribunal if he is aggrieved by any order, decision or action of the authority, and the second proviso thereto prescribes a period of 6 months from the date of such order, decision or action to file such an application. The respondent's learned lawyer referring to the cause title to the application at one stage submits that for the purpose of this case, he has been aggrieved by the review order of rejection dated 13-8-1997. It will be noted that the review itself was not maintainable under any law and, as such, the maintainability of a case challenging an order passed in such a view is out of the question. It may be mentioned, however that the original order in the notification dated 15-1-1997 has not merged in the review order dated 13-8-1997 and, as such, the applicant has not got any relief without assailing the original order itself. We do therefore, hold that if it is a case challenging the notification dated 15-1-1997, it is barred by limitation and on the contrary, if it is a case against the review order dated 13-8-1997 claiming declaration as to entitlement to service benefits it is not maintainable."

14. We are fully in agreement with the above findings and decisions arrived at by the Administrative Appellate Tribunal and, as such, we find no substance in this appeal.

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

Ed.