Bangladesh Krishi Bank Vs. A.F.M. Farid Uddin and others

Case No: Civil Appeal No.74 of 1998

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Quamrul Islam Siddique,A.K.M. Abdul Hakim,,

Citation: 14 BLT 2006 (AD)226

Case Year: 2006

Appellant: Bangladesh Krishi Bank

Respondent: A.F.M. Farid Uddin and others

Subject: Administrative Law,

Delivery Date: 2004-5-19

Bangladesh Krishi Bank

Vs.

A.F.M. Farid Uddin and others, 2006, (AD)

14 BLT 2006 (AD)226

 
 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
 
Bangladesh Krishi Bank…….......Appellant

Vs

A.F.M. Farid Uddin and others .........Respondents
 
Judgement:
May 19, 2004.

Bangladesh Krishi Bank Order, 1973 [ P.O. No. XXVII of 1973]
Article 9 with

Bangladesh Krishi Bank Rules, 1983
Rule- 4
Managing Director was the competent authority for passing the order of compulsory retirement of the Deputy General Manager. [ Para- 12]
 
Lawyers Involved:
Dr. Rafiqur Rahman, Senior Advocate, M.A. Baqui, Advocate with him, instructed by Md. Serajur Rahman, Advocate-on-Record- For the Appellant 
A.K.M. Abdul Hakim, Advocate instructed by Md. Sajjadul Huq, Advocate-on-Record- For Respondent No. 1
Not represented- Respondent Nos. 2-4  
 
Civil Appeal No.74 of 1998.
 
Judgment:
                   M. M. Ruhul Amin J. - This appeal by leave is directed against the judgment and order dated 12.04.1994 passed by the Administrative Appellate Tribunal, Dhaka in Administrative Appeal No. 80 of 1992 dismissing the appeal.

2. Short facts are that the respondent No.1 was promoted to the post of deputy General Manager in the appellant-Bank which was established under the Bangladesh Krishi Bank Order 1973 (President's Order No. XXVII of 1973). The respondent entered into the service of the then Pakistan Agricultural Development Bank in 1959 as a Class II Officer. Following a departmental proceeding on the allegation of violating the Bank's Service Regulation the respondent was compulsorily retired from service by the Managing Director of the bank and the order was communicated by the General Manager, Head Office by order dated 04.06.1988. The respondent filed case No. 37 of 1989 before the Administrative Tribunal, Dhaka under section 4(2) of the Administrative Tribunals Act, 1980 impugning the said order of compulsory retirement stating, inter alia, that the Board of Directors was the appointing authority of the respondent under the existing service rules and regulations and as such the said Board was the only competent authority to pass the order of compulsory retirement. The impugned order not having been passed by the Board of Directors, the same was not sustainable in law.

3. The appellant-Bank in its written objection refuted all the allegations of the respondent and asserted that the Managing Director was the competent authority to pass the impugned order under the existing law inasmuch as the same way as the Chairman was authorized to do under the old regulations of 1961 which was operative to the extent, it was not repugnant to P.O. 27 of 1973 and the rules and regulations made thereunder. The respondent did not press his case on merit but confined the challenge only to the authority of the Managing Director who passed the impugned order.

4. The Administrative Tribunal set aside the order of compulsory retirement upon taking the view that the General Manager of the Bank passed the order of compulsory retirement but it was not the case of the respondent. On appeal   by the appellant being Appeal No. 80 of 1992, Administrative Appellate Tribunal, Dhaka affirmed the order of the Administrative Tribunal by the impugned judgment and order dated 12.04.1994.

5. Leave was granted to consider the submissions that the judgment of Administrative Appellate Tribunal should be set aside as the same suffers from through misconception both as to law and fact and also the submission that if the provisions of P.O. 27 of 1973 and the service regulations of 1961 are construed together there cannot be any other conclusion than that the Managing Director was the competent authority for passing the order of compulsory retirement and also the further submission that under Ordinance No. 4 of 1961 creating the Agricultural Development Bank of Pakistan, the Chairman and the Managing Director was the same person and so was the position under P.O. No. 27 the post of Chairman was created but since no job / duty had been assigned to him, the Managing Director remained the Chief Executive and the Chairman is nothing but an ornament and also the submission that Article 9(2) of P.O. No. 27 read with Rule 4 of the Bangladesh Krishi Bank Rules, 1973 authorizes the Managing Director to exercise all powers and do all acts and things which may be exercised / done by the Board. The Board in its meeting No. 61 dated 01.06.1983 having delegated to the Managing Director power of appointment of officers upto the level of Deputy General Manager and also the power of making final order in case of disciplinary proceeding, the Managing Director was competent to pass the impugned order. Further the Managing Director having appointed the respondent as Deputy General Manager on promotion by Memorandum dated 17th March, 1981, there cannot be any question of his competence to pass the final order in the disciplinary proceeding and the last submission that the order passed by the Managing Director having been upheld by the Board on appeal by the respondent, the same could not be said to be lacking in authority any more.

6. We have heard Dr. Rafiqur Rahman, the learned Counsel for the appellant and A.K.M. Abdul Hakim, the learned Counsel for the respondent No.1 and perused the judgment of the Administrative Appellate Tribunal and other connected papers.

7. The vital point for consideration in this appeal is whether the Managing Director of the Bank was the competent authority to issue order of compulsory retirement of the respondent No.1. It is not disputed that the order of promotion of the respondent No.1 to the post of Deputy General Manager was issued by the Managing Director.

8. It appears from Annexure 3 that charge was framed by a deputy General Manager of Head Office of the Bank under order of the competent authority. Annexure-8 shows that the order of compulsory retirement of the respondent No.1 was ‘issued by Deputy General Manager of the Head Office under Order of the competent authority. Annexure-9 shows that the rejection of the appeal of respondent No.1 was also communicated to him by Deputy General Manager of the Head Office under order of the competent authority.

9. As per Provisions of Article 9 of P.O. 27 of 1973 the Managing Director shall be Chief Executive Officer of the Bank.  By Ordinance XLIII of 1983 for Article 7 of P.O. 27 of 1973 following was substituted namely:
            7. (1) The Board shall consist of the following Directors to be appointed by the Government namely:
                (a) Chairman;
                (b) The Managing Director;
                (c) seven Officials; and
                (d) two non-officials.
               (2) The Chairman shall be appointed for amongst persons who are not in the service of the republic.
         Article 8 of P.O. 27 of 1973 was amended making provision that in Article 8 for words "Managing Director", wherever occurring, the words and comma "Chairman, Managing Director" shall be substituted.

10. The learned Advocate for the respondent could not show that at the relevant time the post of Chairman was filled up and his duty/ job was defined or the duties / functions of the Managing director as Chief Executive of the Bank were curtailed.

11. Rule 4 of Bangladesh Krishi Bank Rules 1983 provides that, "Subject to such general or special orders as the Government may from time  to time, issue, the  managing Director shall have the power of general superintendence and direction of the whole affairs and business of the Bank and shall exercise all  powers and do all acts and things which may be exercised by the Board, except in the matters specifically required by the Order or by these Rules or the Regulations to be exercised or done by the Board."
            These Rules were framed in supersession of the Agricultural Development Rules of 1961. Under section 34 of P.O. 27 of 1973 the Government has power to make rules making provisions for the duty and power of the Managing Director and the Rules of 1983 were accordingly made. It further appears that power was delegated by the Board of Directors of the Bank to the Managing Director authorizing him to appoint officers / stuff up to and inclusive of the leave of the Deputy general Manager or equivalent post on the recommendation of the selection committee constituted by him and to promote officers / stuff up to and inclusive of the level of the Deputy General Manager or equivalent post on the recommendation of the selection committee constituted by him.

12. Thus it appears that the Managing Director was the appointing authority of Deputy General Managers of the Bank and undisputedly the petitioner was a Deputy General Manager of the Bank at the time of his compulsory retirement. Since the Managing Director was the appointing and promoting authority of the respondent No. 1, a Deputy General Manager, definitely the Managing Director was also the competent authority to issue the order of his compulsory retirement. Even for argument's sake if it is conceded that the Board of Directors of the Bank was the competent authority to issue the order of compulsory retirement of the respondent No. 1 and not the Managing Director, then also the respondent No.1, in our view, could not make out a case against impugned order as the same was issued under the signature of the Deputy General Manager of the Bank under Order of the competent authority.
       Moreover, under rules of 1983 and by delegation of power the Managing Director was the competent authority being the appointing authority of the Respondent No.1 to issue the impugned order of his compulsory retirement.
        Thus if the provisions of P.O. 27 of 1973, the service rules and regulations of 1961 are construed together, we are led to the conclusion that the Managing Director was the competent authority for passing the order of compulsory retirement of the respondent No.1.

13. We have already noticed that although by subsequent amendment the post of Chairman was created but since no job / duty was assigned to the Chairman, the Managing Director remained the Chief Executive Officer as before and the Chairman is nothing but an ornament.

14. The Administrative Appellate Tribunal observed in the impugned judgment "As the Managing Director was not in the picture either as charge framing authority or as penalty imposing authority the arguments canvassed by the learned Counsels for and against his authority, therefore, need not be considered in further details."
          Thus the observation of the Administrative Appellate Tribunal that the Managing Director was not in the scene at the time of framing charge or issuing the order of compulsory retirement is not correct.

15. While granting leave this Division observed that the judgment of Administrative Appellate Tribunal was delivered after about 3 months of the hearing of the appeal and a complete mess has been made in the impugned judgment both in respect of fact and law. It was further observed that the Administrative Appellate Tribunal also proceeded in the matter on the assumption, as the Tribunal did, that the order of compulsory retirement was passed by the General Manager of the Bank.

16. In view of the facts and circumstances and the discussions made above, we are of opinion that the Administrative Appellate Tribunal committed error of law in holding that the Managing Director of the Bank was not the competent authority to issue the impugned order of compulsory retirement of the Respondent No.1 and as such the same requires interference by us.

The appeal is accordingly allowed without any order as to costs.
Ed.