Case No: Civil Petition for Leave to Appeal No. 1506 of 2005
Judge: Syed JR Mudassir Husain ,
Court: Appellate Division ,,
Advocate: M. A. Sobhan,,
Citation: V ADC (2008) 872
Case Year: 2008
Appellant: Bangladesh Agriculture Development Corporation
Respondent: Zinnatul Hossain
Subject: Employment & Service,
Delivery Date: 2006-8-8
Syed JR Mudassir Husain CJ
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Bangladesh Agriculture Development Corporation
Zinnatul Hossain and others
August 8, 2006.
The Industrial Relation Ordinance, 1969
Conduct of the respondent No. 2 compelled the petitioner to pass the order of his transfer and against which the said respondent challenged this order of transfer before the High Court Division in Writ Petition No. 84 of 1979 and the Rule issued was discharged on the findings amongst other that the order of suspension of the respondent No.2 is not an action itself and the petitioner passed the order of his transfer within its jurisdiction.….. (8)
M. A. Sobhan, Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For the Petitioner.
Zillul Huq, Advocate, instructed by Zahirul Islam, Advocate-on-Record-For Respondent No. 1.
Not represented-Respondent Nos. 2-6.
Civil Petition for Leave to Appeal No. 1506 of 2005.
(From the judgment and order dated 28-11-2004 passed by the High Court Division in Writ Petition No. 3059 of 2003.)
Syed JR Mudassir Husain CJ.
1. The writ-petitioner, Bangladesh Agriculture Development corporation (BADC), represented by its Chairman is seeking leave to appeal against the judgment and order dated 28-11-2004 passed by a Division Bench of the High Court Division in Writ Petition No. 3059 of 2001 disposing the same with directions.
2. Facts, leading to this petition, are that the respondent No.1 (writ-respondent No. 2), Zinnatul Hossain, filed a case being Industrial Ordinance Case No. 26 of 1994 before the Second Labour Court, Dhaka against the petitioner and others, stating, inter alia, that he was appointed as store-keeper under the petitioner-corporation on 05-08-1968. Thereafter, he was transferred to Kosba Unit Office on 13-07-1974 and after his joining there, the Assistant Engineer, Brahmanbaria placed him under suspension on 02-06-1976. The respondent No.1 then filed a petition to the concerned authority to withdraw his illegal suspension order but it was in vain and for which he was constrained to file a civil suit being Title Suit No.67 of 1976 for cancellation of the order of suspension. Upon hearing the parties, the said case was decreed in his favour and thereafter, the petitioner being aggrieved preferred appeal which was dismissed for default, against which the petitioner filed Miscellaneous Case No. 11 of 1981 but the said Miscellaneous Case was dismissed on contest.
3. It was further stated that the petitioner transferred the respondent No. 1 on 09-12-1978 and the respondent No.2 filed a petition for cancellation of the said order of transfer; that during the pendency of the said petition, the petitioner issued a release letter of the respondent on 22-01-1979 and thereafter on 22-12-1979 the petitioner illegally stopped the subsistence allowance of the respondent No.1 from the date of issuing of the said release letter and also stopped paying wages to the respondent No. 2 till 11-05-1988. The respondent No.1 further stated that the petitioner appointed an inquiry officer for holding inquiry against him and on the basis of said inquiry report, the petitioner imposed punishment in the form of granting extraordinary leave to the respondent No.1 during the period of suspension. Upon the aforestated grievances, the respondent No. 1 filed the aforesaid I.R.O. case for emoluments for the period commencing from 01-06-1976 to 12-12-1988 with bonus etc. and also for compensation.
4. The petitioner contested the said Labour Case by filing written statement denied the material allegations made therein and contended, inter alia, that the case was not maintainable in law, it was barred by law of limitation, estoppel, waiver and acquiescence and the case is also not maintainable under Section 34 of the Industrial Relation Ordinance, 1969.
5. Upon hearing the parties, the Labour Court by its judgment and order dated 26-04-2001 allowed the case in part directing the petitioner (BADC) to pay wages during the period of suspension to the respondent No.1 excluding the amount paid as subsistence allowance within 60 days from the date of judgment and order.
6. The petitioner BADC being thus aggrieved moved the High Court Division under writ-jurisdiction and the Rule issued was discharged of by the impugned judgment as aforesaid and against which this leave-petition has been filed by the petitioner.
7. Mr. M. A. Sobhan, the learned Advocate appearing for the petitioner, placed before us the impugned judgment of the High Court Division and other connected records and thereafter submitted that the office order dated 23-01-1991 (vide Annexure-E of the writ petition) was passed by Executive Engineer (Irrigation), BADC, Brahmanbaria Region and it was very much legal because of the fact that the departmental proceeding was drawn against the respondent No.1 wherein he was found guilty for misappropriation of diesel worth of Tk. 15,195/- and accordingly he was asked to pay the said amount within 15 days from the date of issuance of the said order; secondly, the period of suspension order of respondent No.1 from 02-06-1976 to 22-01-1979 pursuant to the decree of the civil Court was treated as his duty and thirdly that the period of unauthorized absence of the respondent No.1 from the period of 23-01-1979 to 11-05-1988 was treated as extraordinary leave without pay.
8. Mr. Sobhan, having pointed out the aforesaid aspects of the case, argued that the learned Judges of the High Court Division committed an error of law in declaring said office order illegal without proper application of judicial mind. His submission was that the conduct of the respondent No. 2 compelled the petitioner to pass the order of his transfer and against which the said respondent challenged this order of transfer before the High Court Division in Writ Petition No. 84 of 1979 and the Rule issued was discharged on the findings amongst other that the order of suspension of the respondent No. 2 is not an action itself and the petitioner passed the order of his transfer within its jurisdiction. Mr. Sobhan argued that the learned Judges of the High Court Division having misconceived the facts and circumstances of the case passed the impugned judgment illegally which resulted in an error in the decision causing failure of justice and as the findings and decisions arrived at by the High Court Division are liable to be set aside.
9. Learned Advocate lastly contended that the learned Judges of the High Court Division failed to appreciate that the respondent No. 1 remained absconding for more than nine years continuously from 23-11-1979 to 11-05-1988 and he was not entitled to get any relief as prayed for and it is argued that the learned Judges of the High Court Division having not considered this aspect committed error of law in passing the impugned judgment which has seriously prejudiced the petitioner and caused a failure of justice.
10. Mr. Zillul Huq, the learned Advocate appearing for the respondent No. 1, supported the judgment of the High Court Division and argued that learned judges of the High Court Division having meticulously considered the facts, circumstances of the case, rightly passed the impugned judgment and there is no illegality calling for interference by this Division.
11. We have heard the learned lawyers of both sides and considered their submissions. On perusal of the impugned judgment of the High Court Division, we find that the High Court Division meticulously considered the facts and circumstances of the case and other materials on record and we are of the view that the learned Judges having applied their judicial mined discussed and considered the reported decisions cited before them in their proper perspective and we are fully in agreement with the findings and decisions arrived at by the High Court Division.
In the background of above discussion, we find no cogent ground for our interference in the impugned judgment. Accordingly, this petition is dismissed.