Bangladesh Jute Mills Corporation Vs. Md. Mahbubur Rahman and another, 2 LNJ (AD) (2013) 17

Case No: Civil Appeal No. 200 Of 2003

Judge: Md. Abdul Wahhab Miah,

Court: Appellate Division ,,

Advocate: Abdur Rob Chowdhury,Mr. Tofailur Rahman,,

Citation: 2 LNJ (AD) (2013) 17

Case Year: 2014

Appellant: Bangladesh Jute Mills Corporation

Respondent: Md. Mahbubur Rahman and another

Subject: Service Rules,

Delivery Date: 2011-12-13

APPELLATE DIVISION
(CIVIL)
 
Mr. Md. Muzammel Hossain, CJ.
Mr. Surendra Kumar Sinha, J..
Mr. Md. Abdul Wahhab Miah, J.
Ms. Nazmun Ara Sultana, J.
Mr. Syed Mahmud Hossain
Mr. Muhammad Imman Ali, J.
Mr. Muhammad Mamtaz Uddin Ahmed, J.


Judgment
13.12.2011
 
Bangladesh Jute Mills Corporation
…Appellant
Vs.
Md. Mahbubur Rahman and another
....Respondents
 
 
Constitution of Bangladesh, 1972
Article 102
As soon as the writ petitioner voluntarily tendered his resignation from service of the disinvested Jute Mills, he ceased to have any relationship with BJMC, cannot be reinstated as he was neither dismissed nor removed.
The learned Judges of the High Court Division totally failed to consider the broad fact that the moment, the petitioner resigned from his service factually and legally, he ceased to have any relationship with BJMC as its employee. So, he could not make any prayer for reinstating him in the service of BJMC. We find no fault on the part of BJMC to take the stand that since the petitioner was neither dismissed nor removed by BJMC the question of reinstating him in the service of BJMC does not arise at all……(16)
Chairman Petro-Bangla and others -Vs- AKM Fazlul Karim and another 15 BLD (AD) 114, ref.
 
For the Appellant: Mr. Tofailur Rahman, Senior Advocate, instructed by Mr. Md. S. R. Khoshnabish, Advocate-on-Record

For the Respondents: Mr. Abdur Rab Chowdhury, Senior Advocate instructed by Md. Zahirul Islam, Advocate-on-Record.

Civil Appeal No. 200 of 2003
 
JUDGMENT
Md. Abdul Wahhab Miah, J:
 
This appeal, by leave, has arisen out of the judgment and order dated the 18th day of November, 2001 passed by the High Court Division in Writ Petition No. 3614 of 2000 heard analogously with Writ Petition No. 3449 of 2000 making the Rules absolute.
 
Facts giving rise to this appeal are as follows:
        Respondent No.1 as writ-petitioner (hereinafter referred to as the petitioner) filed the said writ petition before the High Court Division challenging his release order dated 31.12.1982 from Bangladesh Jute Mills Corporation (BJMC) i.e. the present appellant to have been issued without lawful authority and is of no legal effect and as to why a direction in the nature of mandamus should not be issued to BJMC to re-instate him in his service without unavoidable delay. The Rule was issued in the terms of the prayer.
 
The case of the petitioner as made out in the writ petition was that he was appointed on July 1, 1972 as Accounts Trainee Officer in the Bangladesh Industrial Development Corporat-ion and later on, by the office order dated February 10, 1973, he was given regular appointment by BJMC with effect from November 6, 1973. BJMC being satisfied with the service of the petitioner promoted him as Accounts Officer; while he had been perfo-rming his duties as Accounts Officer in BJMC, he was temporarily transferred to Latif Bawani Jute Mills on 31st December, 1976 and later on, he was withdrawn on April 20, 1979 and posted in BJMC as Finance officer; BJMC promoted the petitioner to the post of Assistant Chief Finance officer with effect from July 1, 1980 and while serving in BJMC as Assistant Chief Finance Officer, he was transferred on December 23, 1982 to a disinvested Jute Mills, namely, Alhaj Jute Mills, without his consent by the office order dated December 23, 1982 and was released from BJMC. In transferring the petitioner from BJMC to disinvested Jute Mills the authority did not consult him and also did not obtain his consent. The petitioner made representations to the authority against his transfer, but those were not heeded to and in a compelling situation he joined the disinvested Jute Mills. After joining the said disinvested Jute Mills, the petitioner made representations to BJMC as well as to the Minister-in-charge of the Ministry of Jute and at one point of time, he made representation to the Chief Martial Law Administrator (CMLA). The petitioner again made representation to the Minister-in-charge of the Ministry of Jute on December 23, 1983 with the request to withdraw him from the disinvested Jute Mills and to place him in any other Jute Mills under the control and management of BJMC, but nothing was done. The petitioner came to know that many of the officers transferred from BJMC to disinvested private Jute Mills were withdrawn and taken back to the service of BJMC, made represent-ations to the President and CMLA mentioning specific cases of withdrawal and posting in BJMC and prayed for his withdrawal from disinvested Jute Mills, but that was not also heeded to.
 
In the writ petition, it was further contended that the petitioner being a perm-anent officer of BJMC and BJMC having had transferred him to the disinvested Jute Mills without obtaining his consent, the said action of BJMC was violative of the provision of paragraph-17 of the notification dated Sept-ember 27, 1982. The action of BJMC in transferring the petitioner to the disinvested Jute Mills was malafide being violative of the ‘policy guideline’ of the Government. The petitioner had been discriminated by BJMC since many other officers and staffs who were initially recruited for disinvested Jute Mills were retained by it, but the service of the petitioner was transferred to disinvested Jute Mills in spite of being an officer of BJMC. The management of the disinvested Jute Mills, Alhaj Jute Mills, totally mismanaged the affairs of Jute Mills and they being unable to run the same gave sub-lease. The disinvested Jute Mills was unable to pay the petitioner his regular salary or any responsible job comme-nsurate to his qualification and in that situation he was forced to resign from his post on June 23, 1987. Thereafter on December 26, 1987, the petitioner applied to BJMC to reinstate him in his service and having had no reply on April 23, 1988 he submitted a representation to its Chairman but the same went unheeded. The action of BJMC was arbitrary and capricious and discriminatory. The petitioner being a permanent officer of BJMC and being a public servant within the meaning of the Public Servants (Retirement) Act, 1974 was entitled to uniform grades and scales and uniform terms and conditions of the services under the provisions of the Services (Re-organisation and Conditions) Act, 1975 and he has a vested right to continue in the service till the age of retirement at 57 years unless he was otherwise legally terminated or removed and BJMC has a duty to take back or reinstate him in his service.
 
The Rule was contested by writ-respondent No.1, appellant herein by filing an affidavit-in-opposition contending, inter alia, that as the petitioner was transferred to disinv-ested Jute Mills, he ceased to be an officer of BJMC. The petitioner was transferred in pursuance of the policy of disinvestment, so there was no necessity of consulting him to obtain his consent in making the order of transfer from BJMC to disinvested Jute Mills. There being no merits in the representations made by the petitioner, the same were not heeded to. The transfer of the petitioner to the disinvested Jute Mills being lawful, there was no occasion to withdraw him from the said disinvested Jute Mills and to post him in BJMC.
 
It was further contended that the petitioner was transferred from BJMC to the disinvested Jute Mills in compliance with the provision of law, namely, article 4(5) of the Bangladesh Industrial Enterprise (Nationali-zation) Order, 1972 read with paragraph 23 of the agreement between the Government and the disinvested Jute Mills and as such, his transfer was neither illegal nor void. The petitioner could not claim to be taken back in BJMC since he ceased to be the employee of BJMC after his transfer to disinvested Jute Mills and finally he having had resigned from the service in June, 1987.  
 
A Division Bench of the High Court Division hearing the said writ petition along with Writ Petition No.3449 of 2000 by the judgment and order dated the 18th day of November, 2001 made both Rules absolute.  
 
Being aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the appellant filed Civil Petition for Leave to Appeal No.555 of 2002 before this Division and leave was granted on 19.07.2003 to consider the following submissions:
“The learned Counsel for the Petitioner submits that the learned Judges of the High Court Division failed to consider that the Respondent No.I having resigned from service on June 23, 1987 the relationship of employer and employee, if at all subsisting till then was finally severed and he ceased to be in the employment any more and thus he had no legal claim to be taken back in the BJMC and as such the Judgment and order of the High Court Division is illegal and liable to be set aside.”
 
Mr. Tofailur Rahman, learned Counsel, appearing for the appellant, has made submissions in line with the leave granting order.
 
Mr. Abdur Rab Chowdhury, learned Counsel, appearing on behalf of the writ-petitioner-respondent, on the other hand, has supported the impugned judgment and order passed by the High Court Division.
 
From the impugned judgment, it appears that the learned Judges of the High Court Division made the Rule absolute on the finding, inter alia, that the petitioner was a permanent employee of BJMC, he could not be transferred to the disinvested Jute Mills, namely, Alhaj Jute Mills Ltd; moreso before transferring the petitioner to the disinvested Jute Mills, he was neither consulted nor his consent was obtained. In taking the said view the learned Judges relied upon the decisions given by two different Benches of the High Court Division in Civil Revision No. 600 of 1988 and in Writ Petition No. 2115 of 1999 and also of this Division in the case of the Chairman Petro-Bangla and others -vs- A.K.M. Fazlul Karim and another reported in 15 BLD(AD) 111. The learned Judges further observed that after transfer the petitioner moved all quarters including the corporation and the high authorities to reconsider the order of transfer and return him back to the service of the corporation. The learned Judges also observed that when the Government took decision on 27.09.1982 to disinvest the nationalized Jute Mills and the decision was published in the Gazette notification, BJMC could not make the release order of the petitioner on 30.12.1982; since the disinves-tment order was passed earlier BJMC had no authority to transfer any of its employee including the writ-petitioner to any disinvested Jute Mills after the said date of 27.09.1982 and accordingly, declared the order of transfer of the petitioner as illegal and without lawful authority.
 
From the leave granting order, it is apparent that leave was granted only on one point, whether the writ-petitioner ceased to be an employee of BJMC after he resigned from service on the 3rd day of June, 1987 and thus he had any legal claim to be taken back in BJMC.
 
To answer the question, we need to see the statements made in the writ petition. There is no dispute that the petitioner was an employee of BJMC and while he had been working as Assistant Chief Finance Officer, head office BJMC, he was transferred to Alhaj Jute Mills, Sharishabari, Jamalpur, a disinv-ested Jute Mills vide order No. BJMC/ Project/ Admn-71/1982 dated 23.12.1982 and he was released from the head office on 30.12.1982 vide Ref. No. BJMC/ AC/Head Office dated 30.12.1982 and the petitioner joined the said disinvested Jute Mills on 06.01.1983. Although in the petition, the petitioner stated that he being a permanent employee of BJMC he could not be transferred to any disinvested Industrial concerned and that too without his consent and that he made many representations to the authorities concerned including the Minister-in-charge of the Ministry of Industries and Commerce and the CMLA and annexed the letters by which he gave his representations, in paragraph 15 of the petition, it was specifically stated “.  Thus the petitioner was compelled to resign his post under the Alhaj Jute Mills on 23.06.1987.” And in support of the said statement, the petitioner also annexed the letter of resignation as annexure-‘M’. The said resignation letter reads as follows:

“The Managing Director,
M/s. Al-Haj Jute Mills Ltd.
19, Dilkusha C/A.
Dhaka.
Sub:-Resignation-acceptance thereof.
Dear Sir,
I do hereby tender my resignation to-day the 23rd June, 1987 which may kindly be accepted and oblige thereby.
Thanking you.
Yours obediently,
Sd/- illegible
(md. mahbubur rahman)
Dy. Manager (Admn)
Al-Haj Jute Mills Ltd.
Dated-23rd June, 1987
c.o.to:-
The Project Incharge,
Al-Haj Jute Mills Ltd.
Sharishabari, Jamalpur.”
 
A mere reading of the resignation letter clearly shows that the petitioner addressed the same to the Managing Director of M/S. Al-haj Jute Mills Ltd with the request to accept the same and thus oblige him without any reservation. In this regard, it is to be noted that although the petitioner gave representations to the concerned authorities to transfer him from the disinvested Jute Mills to BJMC and his representations did not receive any response, he did not challenge the said order of his transfer in any Court of law. In the same paragraph, the petitioner stated that after resignation, he applied to BJMC on 26.12.1987 i.e. after long 6(six) months of the date of his resignation for reinstating him in the service of BJMC. In reply to the statements made in paragraph 15 of the writ petition, the writ-respondent stated that “. . . the question of reinstatement does not arise inasmuch as the petitioner was not dismissed or removed by BJMC.”
 
From the above, it is prima-facie clear that the petitioner voluntarily resigned from his service while he was posted at the disinvested Jute Mills, namely, Alhaj Jute Mills and thus the relationship of the petitioner with BJMC as employee and employer, if thereby any, had totally ceased.
 
It is true that the petitioner had been making representations to the concerned autho-rities with the prayer to transfer him to BJMC from the disinvested Jute Mills, but his repres-entations met no favourable result. However, the petitioner might have a good case in view of the decision given by the High Court Division in Civil Revision No. 600 of 1988, Writ Petition No. 2115 of 1999 as well as by this Division in the case of Chairman Petro-Bangla and others -vs- AKM Fazlul Karim and another 15 BLD (AD) 114 had he not resigned from his service, but when the petitioner voluntarily resigned from his service while posted at the disinvested Jute Mills under no logic he could claim any link whatsoever with BJMC and thus make prayer to be reinstated in his service in BJMC. The learned Judges of the High Court Division totally failed to consider the broad fact that the moment, the petitioner resigned from his service factually and legally, he ceased to have any relationship with BJMC as its employee. So, he could not make any prayer for reinstating him in the service of BJMC. We find no fault on the part of BJMC to take the stand that since the petitioner was neither dismissed nor removed by BJMC the question of reinstating him in the service of BJMC does not arise at all. More interestingly the petitioner applied to the Chairman, BJMC on 26.12.1987 for reinstating him in the service of BJMC treating his resignation as ‘Forced Resignation’ as ‘terminated/dischar-ged’ employee of BJMC after long 6(six) months from the date of his resignation though he submitted his resignation letter to the Managing Director, M/S. Al-haj Jute Mills Ltd on 23.06.1987. We failed to see any rationale behind the prayer of the petitioner in reinsta-ting him in the service of BJMC when he was neither removed nor dismissed by BJMC. Since the petitioner ceased to be an employee even of the disinvested Jute Mills, the question of his reinstatement in BJMC does not arise at all. And  the learned Judges of the High Court Division were not at all required to enter into the merits of the claim of the petitioner and thus to waste  the valuable public time. 
 
For the discussions made above, we find merits in the appeal.
 
Accordingly, the appeal is allowed without any order as to cost. The impugned judgment and order is set aside.

Ed.