GM, Janata Bank Vs. Md. Shah Alam Sarker

Case No: Civil Appeal No. 4 of 1996

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Dr. Ahmed Hussain,,

Citation: 51 DLR (AD) (1999) 138

Case Year: 1999

Appellant: GM, Janata Bank

Respondent: Md. Shah Alam Sarker

Subject: Administrative Law,

Delivery Date: 1999-04-09

GM, Janata Bank

Vs.

Md. Shah Alam Sarker, 1999,

 51 DLR (AD) (1999) 138

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ            
Mustafa Kamal J
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J                                                           
 
GM, Janata Bank………………… Appellant
Vs.
Md. Shah Alam Sarker………………... Respondent*

 

Judgment
April 9, 1997.

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

BSRS Part I, Rule 389

The Rules of Janata Bank only provide for certain benefits as are admissible to a government servant, Rule 389 BSRS Part I provides that there is no bar to the re-employment of an officer after regaining his health after invalid pension. But the said rule has no legal application to Janata Bank employees. Administrative Appellate Tribunal failed to notice that re-employment is not legally permissible under the Rules of the Bank. ………………….(10)

Lawyers Involved:
Dr. Ahmed Hussain, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Not represented — The Respondent.

Civil Appeal No. 4 of 1996.
(From the Judgment and order dated 9-8-95 passed by the Administrative Appellate Tribunal in Appeal No. 68 of 1994).

Judgment:
                  Latifur Rahman J.- This appeal following leave by the General Manager, Janata Bank is against the Judgment and order dated 9-8-95 passed by the Administrative Appellate Tribunal Appeal No. 68 of 1994 setting aside the judgment and order dated 19-2-92 passed by the Administrative Tribunal, Dhaka in Administrative Tribunal Case No. 224 of 1992, dismissing the tribunal case.

2. The short point raised for consideration in this appeal is, whether the application filed by the respondent under section 4(2) of the Administrative Tribunals Act, 1980 (Act No. VII of 1981) was maintainable and whether the Tribunal has jurisdiction to interfere with the order complained against.

3. The case of the respondent briefly, is that he was appointed as an officer of the appellant Bank on 4-1-78. He became mentally disturbed because of family troubles and went on leave from 4-3-85. He was under treatment for 6/7 months and thereafter resumed duties. In 1988, he again lost his mental balance and the doctor upon examining him gave a report that he was suffering from mental disease and was unfit to perform his official duties. On 1-4-89, he submitted a prayer for invalid retirement whereupon a Medical Board was constituted which upon examination found him unfit to continue with his job in the Bank. On the basis of the report of the Medical Board the respondent was given invalid retirement on the ground of mental incapacity. On 15-10-89, he was released from his job. Thereafter on 15-8-90, he submitted an application for re- employment in the Bank supported by a medical certificate. A Medical Board was constituted which after examining him found him mentally and physically fit to continue his job in the Bank. The authority, however, did not consider the report of the Medical Board and instead of re-appointing, him rejected his application for re-employment by order dated 16-3-92.

4. The appellant contested the application of the respondent by filing a written statement contending, inter alia, that the respondent was given invalid retirement on his own seeking, that the matter of re-employment was within the discretion of the Bank authority and subject to availability of post and that the matter does not fall within the jurisdiction of the Administrative Tribunal.

5. The Administrative Tribunal dismissed the application observing that the question of re-employment was absolutely a matter within the discretion of the bank authority and that the respondent was no longer in service, the same having been terminated in the year 1989 and that the application is not maintainable.

6.  The Administrative Appellate Tribunal set aside the judgment and order of the Tribunal holding that the application of the respondent was maintainable and that the order of the appellant Bank refusing re-employment of the respondent was arbitrary, illegal and improper.

7. Leave was granted to consider whether the Appellate Administrative Tribunal upon a misconception of law erroneously held that the application of the respondent was maintainable under section 4(2) of the Administrative Tribunal Act, 1980 inasmuch as the respondent ceased to be in the service of the Bank and the Tribunal had no jurisdiction to deal with the claim of re employment which is not based on any law but is a matter of pure discretion of the Bank. Leave was also granted to consider whether the Administrative Appellate Tribunal has reversed the judgment of the tribunal on irrelevant consideration resulting in miscarriage of justice.

8. It is not disputed before us by the respondent that on his own seeking and also on the basis of the medical report submitted by him, he was granted invalid pension and thereafter released from service. After about one year of the release respondent applied for re-employment and the same was rejected by the appellant. Thus it appears that the respondent was no longer in service and his service was terminated on 15-10-89. So far as the original service of the petitioner was concerned, it was a closed transaction and the application for re-employment is, in fact, a new application for fresh employment, not in continuity with old employment, but as a fresh recruit. In the background of these admitted facts, we are to consider whether the Administrative Tribunal had jurisdiction to entertain this application of the respondent. Section 4(2) of the Administrative Tribunals Act, 1980 reads as follows:
        “(2) A person in the service of the Republic or of any statutory public authority may make an application to an Administrative Tribunal under sub-section (1), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic or of any statutory public authority”.

9. Hence it is clear that the jurisdiction of the Tribunal is attracted when the person is in the service of the Republic or of any statutory public authority but in the present case the former service of the respondent had ceased to exist and the question of re-employment is an issue wherein the respondent has no legal claim in the service of the appellant-Bank. It is purely a matter of discretion for the appellant to re-employ the respondent and if the appellant does not feel, inclined to re-employ the respondent, that matter cannot be brought within the jurisdiction of the Administrative Tribunal, not being covered by the provision of section 4(2) of the Administrative Tribunals Act, 1980.

10. It also appears that the Administrative Appellate Tribunal wrongly considered Rule 16(1) of the Janata Bank Service Rules and Rule 389 of BSR Part 1. Rule 16(1) of Janata Bank provides for certain benefits of the General Provident Fund Scheme, Pension and death-cum-benefit Scheme and such other schemes as are admissible to the Government servant from time to time. The Rules of the Janata Bank only provide for certain benefits as are admissible to a Government servant, Rule 389 of BSR Part 1 provides that there is no bar to the re-employment of an officer after regaining his health after invalid pension. But Rule 389 BSR Part 1 has no legal application to Janata Bank employees. The Administrative Appellate Tribunal failed to notice that re-employment is not legally permissible under the Rules of the Bank. The Administrative Appellate Tribunal further held wrongly, that the Bank authority could not refuse re-employment without assigning any reason. Thus on extraneous and irrelevant considerations the appeal was wrongly allowed by the Administrative Appellate Tribunal resulting in an injustice.

For the above reason, this appeal is allowed without any order as to costs.

Ed.