Case No: Civil Appeal Nos. 102 and 103 of 1997
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: B Hossain,Shamsuddin Ahmed,,
Citation: 1 ADC (2004) 144
Case Year: 2004
Appellant: Government of Bangladesh
Respondent: Shamsuddin Ahmed
Subject: Administrative Law,
Delivery Date: 2003-07-16
Government of Bangladesh
Shamsuddin Ahmed, 2003,
1 ADC (2004) 144
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
The Government of Bangladesh represented by the Secretary, Ministry of Establishment……………… Appellants (In both the appeals).
Shamsuddin Ahmed.....................Respondent (In both the appeals).
16th July, 2003.
Section 240 of the Government of India Act. 22 DLR (SC) 371. ,
P.W.P.karachi vs. Bashir Ahmad, PLD 1973 (SC) 589.
The respondent was not absent from duty. He was prevented from joining his duties because of the order of removal. Rule 195 has also no application. The second contention also fails.
Cases Referred To-
Pakistan vs. M/S A. B. Issacs, 22 DLR (SC) 371; Divisional superintendent, P.W.P. Karachi vs. Bashir Ahmad, PLD 1973(SC) 589.
B. Hossain, Advocate-on-Record-For the appellant (In both the appeals).
Shamsuddin Ahmed, Advocate instructed by Shamsul Haque Siddique, Advocate-on-Record-For the respondent (appeared with the leave of the Court) (In both the appeals).
Civil Appeal Nos. 102 and 103 of 1997.
(From the Judgment and order dated 26-11-96 passed by the Administrative Appellate Tribunal in Appeal Nos. 55 and 58 of 1995).
Mustafa Kamal J. - These two appeals by leave by the respondent Government is from the Judgment and order dated 26-11-96, passed by the Administrative Appellate Tribunal in Appeal Nos. 55 and 58 of 1995, dismissing the appellant's appeal, 55 of 1995, and allowing in part the respondent's appeal, 58 of 1995, from the decision of the Administrative Tribunal dated 19.3.95 in A. T. Case No. 29 of 1994, allowing case.
2. The respondent stood first in the batch of 1965 E. P. C. S. (Ex) Class-1 and while serving as section officer in the Ministry of Health and Family Planning he was removed from service by a Memo. Dated 29-7-74 under P. O. No. 9 of 1972 which the challenged in title Suit No. 123 (a) of 1978 of the 1st Court of Subordinate Judge, Dhaka and obtained a decree declaring the said order as illegal. The government appellant's Title Appeal No. 230 of 1980 was dismissed on 11-12-85. The respondent was not allowed to resume his duties. He instituted a miscellaneous case in the trial court for a proceeding for contempt of court whereupon the Government asked him to withdraw the said case to enable the Government to implement the decree. Accordingly the respondent withdrew the contempt case and the Government reinstated him by an order dated 15-12-93 subject to two conditions, namely that he will not get arrear salary and other benefits from the date of removal to the date of rejoining and that the said period will be treated as extra ordinary leave without pay. The respondent joined on 23-12-93 and then filed a review petition to the Government seeking revocation of the aforesaid two conditions. The review petition was rejected by Memo, dated 13-1-94. The respondent was then posted to the Finance Division as Senior Assistant secretary which was equivalent to the position he was holding at the time of his removal. The respondent's batch mates numbering 25 were holding the post of Joint Secretary and the respondent being the first of his batch had no reason to be superseded but for the illegal order of removal of service, with revocation of the said order of removal the respondent ought to have been elevated to the position he would have occupied had he not been removed from service. The Rule of extra-ordinary leave has no manner of application in his case. During the period of his removal he was not engaged in any remunerative employment or any business of profit. He joined the Dhaka District Bar and then the Supreme Court Bar as an Advocate only to maintain a social status. He could not devote himself to legal practice. He has been suffering from heart problems for the last 7 years. He has no accountable income for the period. With these averments the respondent filed Administrative Tribunal Case No.29 of 1994 before the Administrative Tribunal, Dhaka praying for a direction to pay him all his arrear salary for the period from the date of his removal up to his rejoining and other benefits including promotion.
3. The Government appellant contested the case by filing a written objection contending that the respondent having remained out of office for about 20 years and also having engaged himself as a practicing Advocate from 22-3-75, the question of payment of arrear salary does not arise. Even otherwise, the conditions in the order of reinstatement are supported by Rules 72 (b), 34 and 195 of the B. S. R. Part-1. No defense was raised by the Government appellant in so far as the question of promotion is concerned.
4. Following the case of Pakistan vs. A. V. Issacs, 22 DLR (SC) 371, the Administrative Tribunal held that the respondent was entitled to get salary for the entire period he was kept out of service, minus the remuneration he earned as an Advocate during the period, adding that the respondent shall submit a correct statement of his earnings before the Government for set off. The Administrative Tribunal did not give any finding as to the respondent's case of promotion.
5. Against the said judgment and order of the Administrative Tribunal dated 19-3-95 the Government appellant preferred Appeal No. 55 of 1995 and the respondent preferred appeal No. 58 of 1995.
The Administrative Appellate Tribunal held that the government's contention that the respondent's case is barred by the principle of estoppels is not correct because by the respondent's conduct the Government was not led to alter its position and there cannot by any estoppels against statute. The Appellate Tribunal also held that Rule 72 of B.S.R. Part I am applicable to those who were reinstated after success in an appeal or revision in a departmental proceeding. This Rule has no application to a case involving a claim of arrears of salary in consequence of a decree by a Civil Court. The appellate Tribunal also found that the Government appellant did not controvert the respondent's contention that he earned only Tk.75,300/- from his profession as an Advocate from 22-3-75 and the decision of the Administrative Tribunal to refer the matter to the government for calculation and set off is not practical and appropriate. The Appellate Tribunal therefore directed that the respondent's arrear salary be paid setting off a sum of Tk.75,300/- which he earned from his profession, with regard to promotion the Appellate Tribunal held that the respondent is entitled to "pro-forma promotion" from the date of the promotion of his juniors. In support of this view the Appellate Tribunal relied upon certain decisions. The Government's appeal (Appeal No. 55 of 1995 was dismissed and the respondent's appeal (Appeal No. 58 of 1995) was allowed in part by judgment and order dated 26-11-96.
6. The Government appellant has preferred two appeals from the aforesaid judgment and order of the Administrative Appellate Tribunal and leave was granted in both the appeals in the following terms:-
Mr. B. Hossain, learned Advocate-on-Record for the petitioner submits that the Government petitioner fully executed the Civil Court's decree by reinstating the respondent upon setting two conditions which the respondent apparently accepted, because if he had not accepted those conditions the government would not have allowed him to rejoin his duties. The Government thus changed its position by re instating the respondent because the respondent accepted the two conditions. Now the respondent cannot turn back and challenge those two conditions and the principle of estoppels or waiver is fully applicable in the facts of this case, which the Appellate Tribunal wrongly decided otherwise.
Mr. B. Hossain next submits that the Civil Court's decree having not contained any direction to pay arrear salary or promotion to the respondent, the relevant Government Rules, namely, Rules 72 (b), 34 and 195 of the B. S. R. Part-I are fully applicable to the respondent and the Appellate Tribunal erred in law in giving a wrong interpretation to the said Rules.
Mr. B. Hossain next submits that the respondent having engaged himself for 20 years in a business of profit the income out of which has not been settled by any accounting, the arbitrary set off made by the Appellate Tribunal has no sanction of law and is not permissible.
Lastly Mr. B. Hossain contends that there being no Rule in Government service or in any judicial pronouncement as to granting of "Performa promotion" by a court or Tribunal, the Appellate Tribunal erred in law in granting the said promotion to the respondent which is otherwise impractical, impossible and incapable of performance."
7. In elaborating his first submission on which leave was granted Mr. B. Hossain, learned Advocate-on-Record for the appellant, draws our attention to the order portion of the judgment in Title Suit No. 123 (a) of 1978 of the 1st Court of subordinate judge, Dhaka dated 30-4-80 which is as follows:
"Ordered: that the suit be decreed on contest against the defendants without cost. It is hereby declared that the Memo. No. ED/J IV-144/74-294 dated 29.7.94 removing the plaintiff from service is not valid and legal."
Mr. B. Hossain submits that the Court did not pass any decree for payment of arrear salary or grant of pro-forma promotion to the respondent.
Next Mr. B. Hossain draws our attention to the latter of reinstatement dated 15-12-93. the relevant portions of which are follows: Mr. B. Hossain submits that the respondent was not reinstated in service in execution of the decree of the Civil Court but in deference to an order of a Civil Court in exercise of an independent volition of the Government. It was not done on the basis of the reasoning's given by the trial Court but on the basis of a persuasive opinion of the Ministry of Law. The trial court did not set aside the order removing the plaintiff respondent from service. It is the Government which by the order of reinstatement dated 15-12-93 set aside the earlier order of removal dated 29-7-74 and thereafter prescribed two conditions on the basis of which the respondent was free to rejoin or not to rejoin Government service. The First condition was that he will not get any arrear salary or other benefits from the date of his removal up to the date previous to his rejoining and the second condition was that the aforesaid period will be treated as a period of extraordinary leave without pay, obviously to maintain continuity in service.
8. Mr. B. Hossain submits that these are new conditions of service. After accepting the conditions and rejoining his former post the respondent cannot now turn back and challenge those conditions. It will be a case of estoppels or in the alternative a case of waiver as held in the case of Md. Jahangir Kabir vs. Bangladesh, 16 BLD (AD) 85. Further under Rule 72 (b) of B.S.R. Part I, the Government has the discretion not to grant any pay or allowance for the period of absence from duty.
Mr. Shamsuddin Ahmed, the plaintiff respondent, who has in the meantime joined the Bar as an Advocate, appeared in person with the leave of the court and refuted the aforesaid submissions of Mr. B. Hossain by referring profusely to a number of decisions most of which need not be noticed.
9. Mr. Shamsuddin Ahmed has provided us with a copy of the plaint in Title Suit No. 123 (a) of 1978. It appears that the prayed therein "that notwithstanding the said order (the order of removal from service) the plaintiff is still in service of the defendant Government, and he is entitled to all attendant benefits thereto". His entire prayer was not allowed, but once he is reinstated after setting aside the order of removal from service, either by the Court or by the government, his arrear salary becomes his legal dues, on the basis of the decision in Pakistan vs. M/S A. B. Issacs, 22 DLR (SC) 371. Rule 72 (b) of the B.S.R. Part I has no application in such cases. There can be no estoppels or waiver of legal dues. He relies upon the case of Divisional Superintendent, P.W.P. Karachi vs. Bashir Ahmad, PLD 1973(SC) 589.
10. It appears to us that the decree, which the respondent obtained, was an in executable decree. He could not have compelled the government to reinstate him in service on the basis of that decree. If he wanted his full relief he should have preferred an appeal against the said decree re-agitating the question of his reinstatement in service, arrear salary and promotion. But once the government takes a decision to reinstate him in service, whether by way of executing an otherwise in executable decree or by its own volition, without re-appointing him or giving him any break in service, the respondent will be deemed to be in service throughout the period of his removal. Invalidation of the order of removal by the Government itself means as if no order of removal was passed. The incumbent continues in service. Being in service, salary is his due. There can be no waiver of his legal dues. The question of estoppels also does not arise.
11. For entitlement to arrear salary, it is not necessary, in the facts of the case, to look into Rule 72(b) of B. S. R. Part-I because payment of arrear salary in such situation was clearly and squarely decided in the case of Pakistan vs. M/S A. B. Isaacs, 22 DLR (SC) 371. In that case the plaintiff respondent, an employee of the central government filed a suit for declaration that the order of discharge from service was illegal, void and inoperative and she further prayed for consequential relief’s. The trial Court declared the discharge order illegal but refused to grant a decree for arrear salary taking the then prevalent view that salary is a bounty of the Crown. The High Court of West Pakistan, Lahore in appeal held that the doctrine that the salary of a government servant is a bounty of the State is no longer applicable. On appeal by the State on the strength of a certificate granted by the High Court, the Supreme court of Pakistan dismissed the appeal and sent the case back on remand to the trial court for determining whether the provisions of section 240 of the Government of India Act, 1935 had been complied with and for determining the plaintiff's claim for arrears of salary from August, 1948 to 15th November, 1949. On remand the trial court framed several issues and found that the provisions of section 240 of the Government of India Act, 1935 had not been complied with, that the total monthly pay of the respondent was Rs. 202. 31, but it did not grant a decree for arrears of salary from August 1948 to 15th November, 1949 as claimed. The plaintiff was accordingly granted only a declaration that the order passed on the 12th March, 1969 discharging her from service was illegal, inoperative, null and void, against this order the plaintiff went upon appeal to the High Court of West Pakistan which took the view that the doctrine of the bounty of the state was no longer applicable and held that the plaintiff would be entitled to a decree for the payment of arrear salary for the period in question. An appeal was taken to the Supreme Court of Pakistan and after hearing both the Advocates-General of East Pakistan and West Pakistan the Supreme Court of Pakistan clearly held that salary was no longer a bounty of the crown and accordingly the appeal was dismissed.
12. What we fined to be the ratio decided of Issacs's case in its application to the present one is that even if a claim for arrear salary has been refused (although claimed in the suit, as in the present case) the arrear salary, because of the continuation in service of the incumbent, becomes his/her legal due, subject to set off as described in Isaacs's case.
13. This Court has consistently followed the principles enunciated in Issacs's case and has had never any occasion to depart from it. We fined no reason to depart from the said principles even though we fined that the respondent was reinstated in service not by a decree of any Court but by the Government itself upon imposition of two conditions. The first condition is in our view in the nature of a waiver of legal entitlement, which is not enforceable against the respondent. The respondent will get his arrear salary for the period in question, which is incapable of being waived. One cannot part with his legal entitlement by accepting a unilateral condition from someone in authority with whom he has an unequal relationship. Rule 72(b) of B. S. R. Part-I has no application in the facts and circumstances of the case.
14. The respondent has already submitted that he has received Tk. 73,000/- by way of earnings from his profession, a claim uncontroversial by the appellant. By now he has also retired from service. Without probing too much at this stage into the correctness or otherwise of his statement of earnings we think it will be fit and proper in the facts and circumstances of case to accept his statement of earnings during the period in question and to set it off against his arrear salary. That disposes of the first point on which leave was granted.
15. Mr. B. Hossain next submits that Rule 195 of B. S. R. Part I authorises the authority to grant extraordinary leave without leave salary, but as Mr. Shamusddin Ahmed rightly points out, this Rule is subject to Rule 34, which means that it is applicable when a Government servant is absent from duty continuously for five years. The respondent was not absent from duty. He was prevented from joining his duties because of the order of removal. Rule 195 has also no application. The second contention also fails.
16. As regards arbitrary set off we have already held that the plaintiff respondent's claim of earnings during the period of removal remains uncontroversial and it will be a useless exercise at this stage when he has already retired from service.
Taking now the last point on which leave has been granted, while Mr. B. Hossain has insisted that there are no Government Rules permitting pro forma promotion Mr. Shamsuddin Ahmed has inundated us with a number of Rules and case laws from Indian and Pakistani Jurisdictions allowing pro forma promotion. These are all decisions based on appropriate rules or circulars of respective foreign governments, inapplicable to the case in hand. The nearest that Mr. Shamsuddin Ahmed Could lay his hands on is an office Memorandum of Cabinet Secretariat dated 1-7-80 which is applicable only to those against whom a departmental charge has been framed. The respondent does not fall in this category. Therefore the Appellate Tribunal was not well founded in law in granting pro forma promotion to the respondent in support of which we find no legal basis.
17. Both the appeals are allowed in part. No costs. The order of the Appellate Tribunal allowing arrear salary to the respondent is affirmed and the order allowing pro forma promotion to him is disallowed.