Case No: Civil Appeal No. 22 of 1995
Judge: Md. Ismailuddin Sarker ,
Court: Appellate Division ,,
Advocate: Abdur Rab Choudhury,B Hossain,,
Citation: 48 DLR (AD) (1996) 156
Case Year: 1996
Appellant: Jahangir Kabir (Md)
Respondent: BD, represented by The Secretary, Ministry of Home Affair
Subject: Administrative Law,
Delivery Date: 1995-08-28
Jahangir Kabir (Md)
BD, represented by The Secretary, Ministry of Home Affair, 1996,
48 DLR (AD) (1996) 156
ATM Afzal CJ
Mustafa Kamal J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J
Jahangir Kabir (Md)............................ Appellant
Bangladesh, represented by The Secretary, Ministry of Home Affair……Respondents*
August 28th, 1995.
Administrative Tribunals Act, 1980 (VII of 1981)
Time spent on review before the President under the Government Servants (Discipline & Appeal) Rules 1985 was to be excluded in the computation of the period of limitation.
Cases Referred to-
Bangladesh Parjatan Corporation Mafizur Rahman 46 DLR (AD) 46. Akhlasur Rabmanvi Safaurullah & others 42 DLR (AD) 189. AC Jose vs. Sivan Pillai AIR 1984 (SC) 921; Occan Industries Ltd. vs. Industrial Development Bank, 18 DLR (SC) 354 Ambur Nair vs. Kelu Nair AIR 1933 (PC) 167.
Md. Abdur Rob Chowdhury, Senior Advocate, instructed by Md. Aftab Hossain, Advocate Record—For the Appellant.
B Hossain Deputy Attorney General, instruct by Sharifuddin Chaklader, Advocate-on-Record—P the Respondents.
Civil Appeal No. 22 of 1995.
(From the judgement and order dated 7 June 1994 passed by the Administrative Appellate Tribunal Dhaka in Appeal No. 75 of 1991).
Md. Ismailuddin Sarker J: This appeal by leave by the appellant is from the judgment and order dated June 7, 1994 passed by the Administrative Appellate Tribunal in Appeal No. 75 of 1991. The appellant while acting as a Director of Fire Service Civil Defence and Rescue Service was placed on suspension under Rule 11(I) of the Government Servants (Discipline and Appeal) Rules, 1985 herein after referred to as the said Rules, and later January 27, 1986 a charge was framed against under Rules 3(b) and 3(d) of the aforesaid Rules, is alleged corruption and misconduct by a Deputy Secretary, Ministry of Home Affairs, alleging the appellant entered into service showing that he passed BA Examination, but, in fact, he did not pass the BA Examination. The appellant submitted written statement on February 4, 1986 denying the allegations and stating that he did not himself write his qualification as BA in the application for service nor in his annual confidential report which were done by others. The aforesaid Deputy Secretary, Ministry of Home Affairs also appointed a Joint Secretary, Ministry of Home Affairs as Inquiry Officer to enquire into the allegations against the appellant. The Inquiry Officer did not examine any witness in holding enquiry into the allegations and submitted report finding that the allegations against appellant were established. The authority then served a second show cause notice upon the appellant to which the appellant submitted a written reply on, April 7, 1986 pleading not guilty of the charges. The Ministry of Home Affairs, however, without considering the reply of the appellant forward case for opinion to the Public Service Commission which without examining the relevant papers gave consent to the proposed punishment. The Secretary Ministry of Home Affairs thereafter issued the impugned order of compulsory retirement from service on June 1,1986 and on the following day i.e. June 2, 1986, issued a memo amending his order dated June 1, 1986.
2. The appellant thereafter filed an application for review on July 24, 1986 before the Hon’ble President of Bangladesh but he was informed on December 24, 1986 that the application was rejected by the Hon’ble President. The appellant then filed AT Case No. 67 of 1987 on March 28, 1987 before the Administrative Tribunal, Dhaka. The Secretary Ministry of Home Affairs contested the case on behalf of the Ministry filing a written statement contending, inter alia, that the appellant noted his qualification as BA in the relevant form, though, in fact, he failed to passed the BA examination. Although the Administrative Tribunal held that the proceeding and order of compulsory retirement was illegal and void being without jurisdiction, but dismissed the appellant’s case by the judgment and order dated August 17, 1991 holding that the case was barred by limitation. The appellant thereafter tiled an appeal before the Administrative Appellate Tribunal being appeal No. 75 of 1991 but the Administrative Appellate Tribunal by its Judgment and order dated June 15, 1992 dismissed the appeal affirming the find of the Administrative Tribunal that the case was barred by limitation.
3. The appellant thereafter obtained leave to appeal from this Division and preferred Civil Appeal No. 82 of 1992 before this Court. This Division allowed the appeal by the judgment and order dated July 26, 1993 holding that the time spent on review before the President under the Government Servants (Discipline & Appeal) Rules. 1985 was to be excluded in the computation of the period of limitation and remanded the appeal to the Administrative Appellate Tribunal for disposal. After remand the Administrative Appellate Tribunal held that the ultimate order of compulsory retirement of the appellant was illegal and void inasmuch as the charge framed against the appellant by the Deputy Secretary, Ministry of Home Affairs was without jurisdiction, as according to the rules the Secretary, Ministry of Home Affairs was the designated officer to frame the charges against the appellant and further, the Deputy Secretary also appointed the Inquiry Officer whereas according to the Rules the Secretary himself was to appoint the inquiry officer. Accordingly, the Administrative Appellate Tribunal held that since the proceeding against the appellant was not initiated according to the Rules the same was without jurisdiction and the ultimate order of compulsory retirement of the appellant was illegal and void. But the Administrative Appellate Tribunal dismissed the appeal on the ground of “estoppel” under section 115 of the Evidence Act as after passing of the order of compulsory retirement the applied appealed for LPR and accepted all financial benefits including monthly pension.
4. Being aggrieved by the impugned order passed by the Administrative Appellate Tribunal in Appeal No.75 of 1991 the appellant preferred this appeal by leave to this Division.
5. It is contended by Mr. Abdur Rob Chowdhury, learned Counsel appearing on behalf of the appellant, that the appellant as a Government Servant did not go for voluntary retirement and he was given compulsory retirement from service as a measure of punishment and, as such, the principle of estoppel is not attracted in the facts and circumstances of the case inasmuch as the appellant under compelling circumstances had to accept the financial benefits from the Government. In support of his contention the learned Counsel has referred to the case of Hasina Mawla vs. Bangladesh Parjatan Corporation and another 45 DLR 112, the case of Akhlasur Rahman vs. Safarullah and others 42 DLR (AD) 189 and also the case of AC Jose vs. Sivan Pillai AIR 1984 (SC) 921.
6. Mr. B Hossain, learned Deputy Attorney General appearing on behalf of the respondents, on the other hand, tried to distinguish the case reported in 45 DLR 112 and also the case reported in 42 DLR (AD) 189 pointing out that the latter case arose out of a pre-emption proceeding in which the appellant waived his right by conduct. The learned Deputy Attorney-General submitted that the appellant accepted the retirement benefits by which he also waived his right and, as such, his case is also hit by section 115 of the Evidence Act. It may be pointed out in this connection that the point of estoppel was taken neither before the Administrative Appellate Tribunal nor before the Administrative Tribunal before filing of appeal by the appellant to this Division. After the judgment and order of remand by this Division the ground of estoppel was taken for the first time before the Administrative Appellate Tribunal which accepted the same and dismissed the appeal, although on merit it held that the proceedings against the appellant and the order of his compulsory retirement from service was illegal and without jurisdiction.
7. In the case of Hasina Mawla 45 DLR 112 the learned Judges of the High Court Division held that the Parjatan Corporation failed to establish on the materials on record that she requested the Corporation to retire her from service owing to her ill health and also noticed that after receipt of gratuity benefits under, compelling circumstances, she filed representation against her alleged retirement and, as such, the principle of estoppel was not applicable in her case. This Division dismissed the leave petition of the Bangladesh Parjatan Corporation in the aforesaid case of Hasina Mawla in Civil Petition for Leave to Appeal No.66 of 1993. In the case reported in 42 DLR (AD) 189, a case on the right of pre-emption, this Division quoted with approval the following observation of Hamidur Rahman J in the case of Ocean Industries Ltd. vs. Industrial Development Bank 18 DLR (SC) 354 which runs as follows:
“To establish the case of waiver or estoppel it was necessary to clearly show that the party alleged to have waived its right had acted in such a manner as to lead the other side to believe that such rights will not be enforced or will be kept in suspense or abeyance for some particular time. The “gist of the equity” as observed by Viscount Simonds in the case of Tool Metal Co. vs. Tungsten Electric Co., “lies in the fact that one party has by his conduct led the other to alter his position”. Yet he cautioned that he would not have it supposed that in “commercial transaction mere acts of indulgence are apt to create rights. A mere gratuitous indulgence shown by not enforcing strictly one’s legal rights for a brief period cannot, in our view, give rise to the inference that the rights have been abandoned for all times”.
8. In the case reported in AIR 1984 (SC) 921 it was held that the principle of estoppel was not applicable if a voting process was not authorised by any law or Rule. Thus we are of the opinion that acceptance of pensionary benefits in the facts and circumstances of the present case cannot be accepted as estoppel within the meaning of section 115 of the Evidence Act.
9. In this connection reference may be made to the case of Bangladesh Parjatan Corporation vs Mofizur Rahman 46 DLR (AD) 46, wherein this Division discussed the principles of estoppel and acquiescence. ATM Afzal J (as his Lordship then was) after referring to the decisions of the Judicial Committee in the case of Sarat Chunder Dy. vs Gopal Chunder Laha, Indian Appeals (1891-92) Vol. XIX, page 203 and the case of Ambur Nair vs. Kelu Nair, AIR 1933 (PC) 167 observed as follows:
“Having induced the Appellants to permit him to retire, the Respondent cannot be heard to say that the appellants had no power to relieve him from service. Even if the action of the appellants was not strictly sanctioned by law, the respondent was not the person to make any grievance of it, because he wanted a beneficial order in his favour and the appellants had only obliged him.”
10. In that case the respondent who was an Officer of the Bangladesh Parjatan Corporation joined as a Director in the Directorate of Relief and Rehabilitation keeping lien of his service in Corporation and after returning to the Corporation on the expiry of his service in the Directorate of Relief and Rehabilitation he filed an application praying for retirement from service which was ultimately allowed releasing him from service with all financial benefits; but after keeping quiet for more than a year the respondent challenged the order of his premature retirement and it was held by this Division that the respondent had acquiesced in the order of retirement and he was estopped from challenging the same, as the order of retirement was passed on his prayer. The present case before us is just the reverse.
In the result, the appeal is allowed with costs.