Case No: Civil Appeal No. 48 of 1994
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: Mr. Md. Aftab Hossain,MA Tariq,,
Citation: II ADC (2005) 607
Case Year: 2005
Appellant: Bangladesh Agricultural Development Corporation
Respondent: Abdur Razzaque
Subject: Employment & Service,
Delivery Date: 1996-11-19
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Bangladesh Agricultural Development Corporation and others
November 19, 1996.
The Public Servants Ordinance, (Ordinance No. V of 1985)
Section 2,3(1)(3), 5.
Constitution of Bangladesh, 1972
Article 102 (2)(a)
In the instant case the order of dismissal has not been called in question in any court and it has not been declared void, although the conviction of the respondent has been set aside resulting in his acquittal. Therefore, the respondent is not entitled to reinstatement on the ground of his acquittal in accordance with BADC Disciplinary Case Procedures, 1977. …………….…. (12)
M. A Tariq, Advocate, instructed by Sharifuddin Chkalader, Advocate-on-Record-For the Appellants.
Md. Aftab Hossain Advocate-on-Record – For the Respondent.
Civil Appeal No. 48 of 1994.
(From the Judgment and Order dated 18 December 1991 passed by the High Court Division in Writ Petition No. 43 of 1986).
Bimalendu Bikash Roy Choudhury J.
1. This appeal by leave is directed against the judgment and order dated 18 December 1991 of the High Court Division in Writ Petition No. 439 of 1986. The First appellant, Bangladesh Agricultural Development Corporation, hereinafter referred to as BADC, is a statutory Corporation established' under the Bangladesh Agricultural Development Corporation Ordinance, 1961. The second and third appellants are its General Manager (Supply) and Regional Manger (Fertilizer) respectively.
2. The Writ petition came to be filed by the respondent Abdur Razzaque in the following circumstances. The respondent was a Clerk Cum Store Keeper under BADC. While posted at Bhola Kheyaghet fertilizer godown, he was implicated in Bhola RS Case No.1 dated 7 October 1974 which gave rise to special case No. 8 of 1977 before the ex-officio Special Judge, Bakergonj. The learned Special Judge convicted him under section 409 of the Penal code read with section 5(2) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for 5 years and to pay a fine of Tk. 60,000/- by his judgment and order dated 28 July 1979. The respondent preferred Criminal Appeal No. 173 of 1974 to the High Court Division. During the pendency of the appeal the respondent was however, dismissed from service under the provisions of the BADC disciplinary Case Procedures, 1977. The said office order was communicated to him under Memo No. 4E/ 217 70-747 747 (60) dated 29 March 1984 of the District Manager (Fertilizer), BADC, Barisal. The criminal appeal preferred by the respondent was allowed by the High Court Division by judgment and order dated 23 May 1985 and the respondent was acquitted of the charges levelled against him. After the order of acquittal the respondent applied to the Regional Manager (Ferilizer) Barisal (since the post of District manager (Fertilizer) was in the mean time re designated as such) for reinstatement in the service. In reply thereto he was informed by Memo No. PSB (Pre) 1st 117 81/3357 dated 18 May 1986 that the authority had decided that the order of his dismissal would subsist unless it was set aside by a competent Civil Court.
3. The respondent thereupon filed the aforementioned writ petition under Article 102 (2) (a) of the Constitution of the Peoples Republic of Bangladesh for a declaration that the said Memo dated 18 May 1986 refusing to reinstate him in service on setting aside the Order of his dismissal from service made on 29 March 1984 was without lawful authority. A direction was also sought for his reinstatement in service. The respondent alleged that he had been dismissed because of his conviction in the Criminal case and since he was subsequently acquitted of the charge leveled against him, he was entitled to be reinstated in service under section 3(3) of the Public Servants Dismissal on Conviction Ordinance, 1985, Ordinance No. V of 1985.
4. The appellants opposed the writ petition contending inter alia that the respondent was dismissed from his service under the service Rules of BADC, more specifically the BADC Disciplinary Case Procedures, 1977 for an offence of misappropriation of the corporation money following his conviction in special case No. 8 of 1979 prior to the promulgation of the Public Servants (Dismissal on Conviction) Ordinance, 1985, (Ordinance No. V of 1985).
5. A Division Bench of the High Court Division took the view that under section 3(3) of the Public servants (Dismissal on Conviction) Ordinance, 1985, Ordinance No. V of 1985, the respondent was a public servant who had been acquitted by the appellate Court and had not attained the age of superannuation and was, therefore, entitled to be reinstated under the said ordinance to his post which had not been abolished. Accordingly the learned Judges of the High Court Division declared that the impugned memo dated 18 May 1986 refusing to reinstate the respondent to his post to be illegal and of no legal effect. A direction was also given for his reinstatement in service.
6. The core point for consideration in this appeal therefore lies in a narrow compass, viz. whether section 3(3) of the said ordinance was attracted to the facts of the case.
Mr. M. A Tariq, learned Advocate for the appellants submits that Ordinance No. V of 1985 was promulgated in February, 1985 and it has not been given a retrospective effect. Since the respondent was dismissed from service under the BADC Disciplinary case procedures, 1977 on 29 March 1984 long before the said ordinance came into force he is not entitled to the protection of the said ordinance. A public servant, the learned Advocate submits, can claim reinstatement upon acquittal on appeal only when he was dismissed under section 3(1) of the said Ordinance. He further maintains that the case of the respondent will be rather governed by the BADC disciplinary Case Procedures, 1977 which provides, amongst other things that the order of dismissal thereunder shall remain valid unless the order itself is declared void by a Court.
7. In order to decide the question raised before us it is necessary to refer to the relevant provisions of ordinance No. V of 1985. This ordinance was promulgated by the President on 31 January 1985 and published for general information in the Bangladesh Gazette on 3 February 1985. The object of the Ordinance as stated in the preamble is "to provide for the dismissal of a public servant on his conviction of certain criminal offences". Public servant is defined under section 2(a) thus:
8. Section 3 deals with dismissal of public servants on a conviction. Sub-Section (1) of the section provides that notwithstanding anything contained in any other law for the time being in force or any rule, regulation, bye law, instrument or contract or in any terms and conditions of service, a public servant shall, on his conviction of a criminal offence under any law punishable with transportation or imprisonment for a term exceeding six months, or with fine exceeding one thousand taka or with both, stand dismissed from service on the date of delivery of the judgment or order convicting him.
9. Sub-section (3) provides that "If a public servant dismissed under sub section (1) is acquitted on appeal by an Appellate Court, he shall be reinstated in service, provided he has not already attained the age of superannuation or the post or service concerned has not been abolished. This subsection in un equivocal terms makes it clear that this provision will be attracted only if a public servant is dismissed under sub section (1).
10. Under section 5 the provisions of this Ordinance are supplemental to the service Rules of BADC or such other laws.
The respondent sought protection of section 3(3) of this Ordinance. But a perusal of the Ordinance shows that the said ordinance is prospective and not retrospective in operation. Therefore the provision of the said section 3(3) is of no avail to the respondent on the facts of the case.
11. A pertinent question now comes up. Is the respondent entitled to reinstatement in service under the BADC Disciplinary case procedures, 1977 under which he was dismissed? Sub-clauses (4) and (6) of clause 11 are relevant for the purpose of seeing how they apply to the facts of the case. Both the provisions are set out in extenso:
12. (6) If an employee dismissed from the service consequent upon his conviction by a Court of law, files an appeal to higher Court against the order of conviction passed by the Lower Court and if the High Court admits the said appeal, the dismissal order shall remain valid unless the order itself is declared void by the Higher Court."
It is clear to see that the dismissal of an incumbent takes effect from the date of order and not from the date of verdict of conviction and dismissal order is to remain valid unless the order itself is declared void by a Court.
In the instant case the order of dismissal has not been called in question in any Court and it has not been declared void, although the conviction of the respondent has been set aside resulting in his acquittal. Therefore, the respondent is not entitled to reinstatement on the ground of his acquittal in accordance with BADC Disciplinary Case Procedures, 1977.
13. The learned Advocate for the respondent had no arguments to offer against this obvious legal position.
For the reasons stated above the judgment of the high Court Division does not deserve to be sustained.
In the result we allow the appeal and set aside the judgment and order of the High Court Division without any order as to cost.