Md. Abdul Jabbar Vs. Governor, Bangladesh Bank and others, II ADC (2005) 471

Case No: Civil Appeal No. 96 of 1997

Judge: Bimalendu Bikash Roy Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Habibul Islam Bhuyan,,

Citation: II ADC (2005) 471

Case Year: 2005

Appellant: Md. Abdul Jabbar

Respondent: Governor, Bangladesh Bank

Subject: Employment & Service,

Delivery Date: 1998-7-27

 
Supreme Court
Appellate Division
(Civil)
 
Present:
A.T.M. Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Mohammad Abdur Rourf, J.
Bimalendu Bikash Roy Choudhury, J.
 
Md. Abdul Jabbar
……..............Appellant
Vs.
Governor, Bangladesh Bank and others
........................Respondents
 
Judgment
July 27, 1998.
 
When any employee entitles to get arrear salary—
There was neither any pleading nor any evidence to show that the plaintiff was in any gainful employment during the period he was kept out from service for no fault of his own and that since the High Court Division has declared the plaintiff to be in service, he is entitled to his arrear salary from the date of his dismissal till the date of resumption of duty as ordered by the High Court Division.….. (5)
 
Lawyers Involved:
Habibul Islam Bhuiyan, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Appellants.
Md. Aftab Hossain, Advocate-on-Record - For the Respondent No. 1.
Not Represented - Respondent Nos. 2-3.
 
Civil Appeal No. 96 of 1997
(From the Judgment and Order dated 27 November 1995 passed by the Appellate Division in Civil Petition No. 425 of 1995).
 
JUDGMENT
 
Bimalendu Bikash Roy Choudhury J.
 
1. This appeal arises out of a petition for review of a part of the order passed by this Court in C.P.L.A. No. 425 of 1995 whereby the leave petition was dismissed on 27 November 1995.
 
2. The plaintiff-appellant, an employee of the Bangladesh Bank, was dismissed from serv­ice by an order dated 5 October 1976. He brought Title Suit No. 487 of 1977 in the first court of Assistant Judge, Khulna challenging the order of dismissal etc. but lost. His appeal therefrom, Title Appeal No. 210 of 1984 also met the same fate. Upon a revision, Civil Revision No. 274 of 1987 a Single Bench of the High Court Division, by judgment and decree dated 5 June 1995, reversed the decisions of the courts below and decreed the suit declaring that the order of dismissal dated 5th October, 1976 was without any lawful authority and void, and that the plaintiff was still in service. The Single Bench further directed the defendants to "allow the plaintiff to resume his duties within 2 (two) months and the plaintiff is also entitled to his arrear salary from the date of his dismissal to the date of his resumption of duty."
 
3. Defendant No. 1, the Governor, Bangladesh Bank, sought leave to appeal from the said decree which this Court dismissed with observation that the portion of the order-decree allowing arrear salary from the date of his dis­missal to the date of his resumption of duty be deleted. For such order this Court gave the fol­lowing reasons: 

"The High Court Division, in our opin­ion, has not committed any error of law which calls for interference except that the relief as to 'arrear salary' was uncalled for as there was no such prayer in the suit nor could it be allowed otherwise in the absence of any finding that the respondent was not in any gainful employment during the period in question. Mr. Awlad Ali, learned Advocate, who entered Caveat for the plaintiff-respondent, could not satisfy us as to the basis of such relief. The proper order should have been to leave the bank to deal with the period in question in accordance with its regu­lations after the respondent resumed his duty. Subject to the deletion of the portion relating to 'arrear salary from the date of his dismissal to the date of his resumption of duty', the impugned order-decree is upheld". 
 
4. The plaintiff-appellant now seeks revival of that part of the order-decree of the High Court Division in Civil Revision No. 274 of 1987, which was deleted, by way of review.
 
5. Appearing on behalf of the plaintiff-appellant, Mr. Habibul Islam Bhuiyan, learned Counsel, has drawn our attention to the amend­ed plaint. On a reference thereto he submits that at the hearing of the leave petition it could not be produced and therefore it could not have been shown that the plaintiff, among others, prayed for a decree allowing him to continue in his service of the Bank with entire financial benefits including wages, compensation, dam­age, rank etc. Mr. Bhuiyan also submits that there was neither any pleading nor any evi­dence to show that the plaintiff was in any gain­ful employment during the period he was kept out from service for no fault of his own and that since the High Court Division has declared the plaintiff to be in service, he is entitled to his arrear salary from the date of his dismissal till the date of resumption of duty as ordered by the High Court Division. Mr. Bhuiyan continues that the impugned part of the order has gone against the plaintiff because the said pleadings could not be produced at the hearing of the leave petition and had they been produced at the hearing of the leave petition and had they been produced the impugned part of the order would not have been passed. This has, learned Counsel submits, resulted in a miscarriage of justice calling for a review of that part of the order in C.P.L.A. No. 425 of 1995 which relates to the arrear salaries.
 
6. We have perused the plaint and the writ­ten statement filed in this case. The plaint shows that by an amendment made on 21 November 1983 the plaintiff made a prayer, among other, to continue in his service of the Bank with entire financial benefits including wages, compensation, damage, rank etc. The learned Counsel for the plaintiff could not bring this amendment to the notice of this Court at the time of hearing of the leave petition wherefore this relief granting arrear salary by the High Court Division was deleted by this Court while dismissing the leave petition. The order was made upon a wrong assumption that the plaint did not contain any prayer for the said relief. Such an erroneous assumption of material fact amounts to an error apparent on the face of the record calling for a review of the order.
 
7. Mr. Md. Aftab Hossain, learned Advocate-on-Record for the respondents, has hardly anything to assail this obvious legal position. Also there is nothing in the written statement to show that the plaintiff was prof­itably employed during the material period so that he could be excluded from the benefit of arrear salary.
 
8. The appeal is accordingly allowed and the order dated 27 November 1995 passed by this Court in C.P.L.A. No. 425 of 1995 modi­fied. The deleted portion of the order-decree of the High Court Division in Civil Revision No. 274 of 1987 namely," and the plaintiff is also entitled to his arrear salary from the date of his dismissal to the date of his resumption of duty," be restored. There shall be no order as to cost.
 
Ed.