Md. Monir Uddin Ahmed Vs. Bangladesh and others 2017 (2) LNJ 6

Case No: Writ Petition No. 11473 of 2006

Judge: Moyeenul Islam Chowdhury. J.

Court: High Court Division,

Advocate: Mr. A. S. Md. Abdul Mobin, Mr. Choudhury Murshed Kamal Tipu,

Citation: 2017 (2) LNJ 6

Case Year: 2017

Appellant: Md. Monir Uddin Ahmed

Respondent: Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2017-08-14

 

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

 

Moyeenul Islam Chowdhury, J.

And

J. B. M. Hassan, J.

Judgment on

16.02.2017

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Md. Monir Uddin Ahmed

.. Petitioner

-Versus-

Government of the People’s Republic of Bangladesh represented by the Secretary, Ministry of Local Government, Rural Development and Co-operative, Bangladesh Secretariat, Ramna, Dhaka and others.

... Respondents

Constitution of Bangladesh, 1972

Article 102

It is abundantly clear that having accepted the ex-gratia payment of Tk. 50,000/- from the respondent No.3, the petitioner cannot come up with the instant Writ Petition.          . . . (20)

Constitution of Bangladesh, 1972

Article 102

Code of Civil Procedure (V of 1908)

Order XXI, Rule 32

There is no gainsaying the fact that the frame of the suit was declaratory in nature; but eventually the Appellate Court below decreed the suit and declared the order of removal of the petitioner from service illegal and directed the respondent no. 3 to reinstate him in service and to pay all his arrear salaries and service benefits as per law. From the nature of the reliefs given by the Appellate Court below, it seems that it directed the respondent no. 3 to reinstate the petitioner in service and pay all his outstanding salaries and service benefits in accordance with law by way of mandatory injunction, albeit the expression ‘mandatory injunction’ is absent in the judgment and decree of the lower Appellate Court. So for all practical purposes, the decree passed by the Appellate Court below in Title Appeal No. 119 of 2002, according to us, is an executable decree under Order 21 Rule 32 of the Code of Civil Procedure. It is a settled proposition of law that the High Court Division is not the Executing Court of any decree of any Civil Court. Without availing himself of the provisions of Order 21 Rule 32 of the Code of Civil Procedure, the petitioner chose to file the instant Writ Petition before the High Court Division under Article 102 of the Constitution. An equally efficacious remedy having been provided for in Order 21 Rule 32 of the Code of Civil Procedure, the petitioner can not invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution. On top of that, it is worthy of notice that the petitioner has filed the Writ Petition long after 2(two) years of the acceptance of the ex-gratia payment of Tk. 50,000/- from the respondent no. 3. In the facts and circumstances of the case, we hold that the present Writ Petition is an afterthought. In this regard, we see eye to eye with Mr. Choudhury Murshed Kamal Tipu.       . . . (24)

Jahangir Kabir (Md) Vs. Bangladesh represented by the Secretary, Ministry of Home Affairs, 48 DLR (AD) 156; Golzar Hossain (Md) Vs. Janata Bank, 65 DLR (AD) 101; Bangladesh Agricultural Development Corporation and others Vs. Md. Abdur Rashid and others, 67 DLR (AD) 257; Hallsbury’s Laws of England, 3rd Edition, Volume-14, Pages 637 and 638 and Arjun Suie Vs. Emperor, 44 Indian Cases 737 ref.

Mr. A. S. Md. Abdul Mobin with

Mr. Chanchal Kumar Biswas, Advocates

. . . For the petitioner.

Mr. Choudhury Murshed Kamal Tipu, Advocate

. . . For the Respondent No. 3.

JUDGMENT

Moyeenul Islam Chowdhury, J:  On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why they should not be directed to reinstate the petitioner in the post of Valve Operator of Sylhet City Corporation and to pay his salaries and other benefits from 20.10.1979 in compliance with the judgment and decree passed by the Joint District Judge, 3rd Court, Sylhet in Title Appeal No. 119 of 2002 and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.            The case of the petitioner, as set out in the Writ Petition, in short, is as follows:

         The petitioner was appointed as Valve Operator of Water Supply Centre of the then Sylhet Pourashava (now Sylhet City Corporation) on 13.01.1971 and he was discharging his duties diligently and to the satisfaction of all concerned and at one stage, he was promoted to the post of Supervisor. While he was serving as Supervisor of the then Sylhet Pourashava, a departmental proceeding was initiated against him and having been found guilty of the charge levelled against him, he was removed from service on 20.10.1979. As against the order of removal dated 20.10.1979, he preferred an appeal to the Appellate Authority, but the appeal was dismissed on the ground of limitation. Subsequently, the petitioner filed Title Suit No. 273 of 1981 against the respondents in the Court of Assistant Judge, Sadar, Sylhet for a declaration that the order of removal of the petitioner from service was illegal. The Title Suit No. 273 of 1981 was decreed on contest on 30.05.1989 and thereafter the respondent nos. 2 and 3 jointly filed Title Appeal No. 150 of 1989 and the petitioner also filed a cross-objection being No. 09 of 1989 in the Court of District Judge, Sylhet and both the appeal and the cross-objection were heard in the 1st Court of Joint District Judge, Sylhet and the same were dismissed on 27.06.1994. As against the decree of dismissal of Title Appeal No. 150 of 1989, the respondent nos. 2 and 3 preferred Civil Revision No. 1421 of 1995 in the High Court Division and the revision was allowed on 14.12.2000 by setting aside the decree and the suit was sent back to the Trial Court on remand for retrial. However, after retrial, the suit was decreed in part on 07.05.2002. As against the part- decree dated 07.05.2002, the petitioner filed Title Appeal No. 119 of 2002 in the Court of District Judge, Sylhet and the appeal was heard, on transfer, by the 3rd Court of Joint District Judge, Sylhet and it was allowed on 20.09.2003 by way of modification of the decree of the Trial Court. By the judgment and decree dated 20.09.2003 passed by the Joint District Judge, 3rd Court, Sylhet in Title Appeal No. 119 of 2002, the Appellate Court declared the order of removal dated 20.10.1979 of the petitioner from service illegal and directed the respondents concerned to reinstate him in his service and to pay his salaries and other benefits as per law. After the pronouncement of the judgment and decree dated 20.09.2003, the petitioner filed an application to the authority for allowing him to join the service; but the authority did not allow him to do so. Rather the authority asked the petitioner to prove his age. Be that as it may, eventually the authority allotted a lump sum of Tk. 50,000/- in his favour as his service benefits by disregarding the judgment and decree dated 20.09.2003 passed by the Appellate Court in Title Appeal No. 119 of 2002.  But according to law, the respondents are legally bound to reinstate the petitioner in his service and to pay his arrear salaries and other financial benefits in accordance with the judgment and decree dated 20.09.2003 of the Court of Appeal.

3.            By filing a Supplementary Affidavit dated 12.06.2016, the petitioner has annexed the certified copies of the judgment and decree dated 30.05.1989 passed by the Assistant Judge, Sadar, Sylhet in Title Suit No. 273 of 1981, certified copies of the judgment and decree dated 27.06.1994 passed by the Joint District Judge, 1st Court, Sylhet in Title Appeal No. 150 of 1989 and certified copies of the judgment and decree dated 07.05.2002 passed by the Senior Assistant Judge, Sadar, Sylhet in Title Suit No. 273 of 1981.

4.            The respondent no. 3 has contested the Rule by filing an Affidavit-in-Opposition. His case, as set out therein, in brief, runs as under:

         The petitioner was appointed as Valve Operator of Water Supply Centre of the then Sylhet Pourashava on 13.01.1971; but it is not true that he was promoted to the post of Supervisor by the Pourashava authority in 1978. A departmental proceeding was initiated against him on the basis of some allegations and ultimately he was removed from service. Thereafter he filed Title Suit No. 273 of 1981 against the respondents in the Court of Assistant Judge, Sadar, Sylhet challenging the order of removal from service. Eventually the suit was decreed in part by the Joint District Judge, 3rd Court, Sylhet in Title Appeal No. 119 of 2002. Admittedly the petitioner was out of office consequent upon the order of his removal from service passed by the then Sylhet Pourashava authority and that being so, a declaratory decree to the effect that the removal of the petitioner from service is illegal without any consequential relief, that is to say, without any prayer for a decree of mandatory injunction is not enough for his reinstatement in service and getting back all arrear salaries and other service benefits in accordance with law. The decree obtained by the petitioner being a declaratory decree is not capable of being executed. The High Court Division is not the Executing Court of any decree passed by any Civil Court. In such view of the matter, the High Court Division can not legally execute the decree passed by the Joint District Judge, 3rd Court, Sylhet in Title Appeal No. 119 of 2002 under Article 102 of the Constitution. Anyway, the petitioner made an application dated 08.03.2004 to the respondent no. 3 for his reinstatement in service in view of the judgment and decree passed in Title Appeal No. 119 of 2002. On receipt of the application of the petitioner dated 08.03.2004, the respondent no. 3 found that the decree in question could be challenged in the higher Court; but on humanitarian consideration and in compliance therewith, the respondent no. 3 decided to reinstate the petitioner in service and as such it became necessary to ascertain as to whether the petitioner reached the age of superannuation or not. With that end in view, the respondent no. 3 by a letter dated 29.06.2004 asked the petitioner to submit a certificate in support of his age from any competent authority. Accordingly the petitioner filed a certificate which was allegedly issued by the Principal of Israb Ali High School and College, Sylhet; but the said certificate was found to be spurious. Because of filing a false certificate as to his age, the petitioner incurred criminal liability. But none the less, the respondent no. 3 took a compassionate view and after mutual discussion, he decided to provide the petitioner with a lump sum amount of Tk. 50,000/- as ex-gratia payment and the petitioner consented thereto and received the said amount of money without any objection whatsoever on 30.10.2004. As the petitioner voluntarily accepted the ex-gratia payment of Tk. 50,000/- in view of his rendition of service to the then Sylhet Pourashava, the Writ Petition is barred by the principles of waiver, estoppel and acquiescence.      

5.            In the Supplementary Affidavit-in-Opposition filed on behalf of the respondent no. 3, it has been averred that while the respondent no. 3  was considering the case of the petitioner for his reinstatement in service in compliance with the judgment and decree passed by the Appellate Court in Title Appeal No. 119 of 2002, he found that no document or paper was available in the service record of the petitioner as regards the proof of his age and as such the respondent no. 3 by a letter dated 29.06.2004 asked the petitioner to submit a certificate in support of his age with a view to ascertaining whether the petitioner was below the age of superannuation for his reinstatement in service.

6.            In the Affidavit-in-Reply filed by the petitioner, it has been stated that the respondent no. 3 collected a report from the Principal of Israb Ali High School and College, Sylhet as to the issuance of the certificate of age of the petitioner in a clandestine manner. Moreover, the petitioner had to collect a cheque of Tk. 50,000/- as part payment of his outstanding dues by signing a white piece of paper. The question of receipt of the amount of Tk. 50,000/- from the respondent no. 3 by the petitioner by way of ex-gratia payment without any objection was simply incomprehensible to him.

7.            Mr. A. S. Md. Abdul Mobin, learned Advocate appearing on behalf of the petitioner, submits that the respondent no. 3 failed to comply with the judgment and decree passed by the Joint District Judge, 3rd Court, Sylhet in Title Appeal No. 119 of 2002 and in this perspective, the petitioner felt constrained to come up with the instant Writ Petition.

8.            Mr. A. S. Md. Abdul Mobin also submits that it appears from Annexure-‘5’ dated 27.09.2004 that the petitioner accepted a lump sum amount of Tk. 50,000/- towards liquidation of his outstanding dues; but this acceptance of the amount does not mean that he has waived his right under the law. In support of this submission, Mr. A. S. Md. Abdul Mobin draws our attention to the decision in the case of Jahangir Kabir (Md)…Vs… Bangladesh represented by the Secretary, Ministry of Home Affairs reported in 48 DLR (AD) 156.

9.            Mr. A. S. Md. Abdul Mobin next submits that the petitioner was an ill-paid employee of the then Sylhet Pourashava (now Sylhet City Corporation) and under the relevant rules, he is entitled to pensionary benefits, if he has already attained the age of superannuation.

10.        Mr. A. S. Md. Abdul Mobin further submits by referring to the decision in the case of Arjun Suie…Vs…Emperor reported in 44 Indian Cases 737 that the consequential relief given to the petitioner by the Appellate Court in the case before us by way of his reinstatement in service and payment of his arrear salaries and other service benefits in accordance with law can not be deemed to be a consequential relief by way of injunction and for all practical purposes, it was a mere declaratory decree and in such a posture of things, the Writ Petition is maintainable, though he concedes that the High Court Division is not the Executing Court of any decree of the Civil Court.

11.        Per contra, Mr. Choudhury Murshed Kamal Tipu, learned Advocate appearing on behalf of the respondent no. 3, submits that the order dated 22.09.2004 as evidenced by Annexure-‘4’ to the Affidavit-in-Opposition has not been challenged by the petitioner in this Writ Petition and that being so, the Writ Petition is not maintainable. 

12.        Mr. Choudhury Murshed Kamal Tipu further submits that a reference to Annexure-‘5’ dated 27.09.2004 annexed to the Affidavit-in-Opposition clearly indicates that the petitioner accepted a lump sum amount of Tk. 50,000/- by way of ex-gratia payment without any objection and by that reason, the Writ Petition is barred by the principles of estoppel, waiver and acquiescence.

13.        Mr. Choudhury Murshed Kamal Tipu next submits that although the suit was declaratory in nature; yet the fact remains that the Appellate Court below, that is to say, the 3rd Court of Joint District Judge, Sylhet in Title Appeal No. 119 of 2002 decreed the suit in part with a direction for reinstatement of the petitioner in service and a further direction for payment of his arrear salaries and other service benefits in accordance with law and the nature of the reliefs granted to the petitioner clearly shows that the reinstatement of the petitioner in service and payment of his arrear salaries and other service benefits as per law were directed by way of mandatory injunction, even though the expression ‘mandatory injunction’ is absent in the operative portion of the judgment of the lower Appellate Court (3rd Court of Joint District Judge, Sylhet).

14.        Mr. Choudhury Murshed Kamal Tipu lastly submits that as an afterthought, the petitioner has come up with the Writ Petition long after 2(two) years of his acceptance of the ex-gratia payment of Tk. 50,000/- from the respondent no. 3.

15.        In support of the above submissions, Mr. Choudhury Murshed Kamal Tipu adverts to the decisions in the cases of Golzar Hossain (Md)…Vs…Janata Bank, 65 DLR (AD) 101; Bangladesh Agricultural Development Corporation and others…Vs…Md. Abdur Rashid and others, 67 DLR (AD) 257 and Hallsbury’s Laws of England, 3rd Edition, Volume-14, Pages 637 and 638.

16.        Admittedly the petitioner was appointed as a Valve Operator of Water Supply Centre of the then Sylhet Pourashava in 1971. It is also admitted that a departmental proceeding was initiated against him and he was found guilty of the charge brought against him and as such he was removed from service by the authority on 20.10.1979. It is further undisputed that the petitioner resorted to the Civil Court for necessary redress arising out of his removal from service and eventually the suit was decreed in part by the Joint District Judge, 3rd Court, Sylhet in Title Appeal No. 119 of 2002. So far, so good.

17.        After passing of the decree by the Appellate Court in Title Appeal No. 119 of 2002, it seems, the respondent no. 3 decided to reinstate the petitioner in service and with that end in view, the respondent no. 3 wanted to ascertain his age. Non-availability of his certificate of age in his service record necessitated issuance of a fresh certificate from any competent authority. Indisputably the petitioner was asked by the respondent no. 3 to submit a certificate in proof of his age and accordingly he submitted a certificate from Israb Ali High School and College, Sylhet. But that certificate was found to be spurious. Annexure-‘3’ dated 09.08.2004 bears ample testimony to that effect. Having regard to this factual position, it transpires that the respondent no. 3 took a compassionate view about the petitioner and after mutual discussion finally decided to give him a lump sum amount of Tk. 50,000/- by way of ex-gratia payment.

18.        Annexure-‘5’ dated 27.09.2004 shows that the petitioner accepted the amount of Tk. 50,000/- from the respondent no. 3 without any objection whatsoever. Besides, it is ex-facie clear from Annexure-‘5’ that the petitioner himself filed an application to the respondent no. 3 to provide him with the ex-gratia payment of Tk. 50,000/-. This being the scenario, a pertinent question arises: is the Writ Petition barred by the principles of estoppel, waiver and acquiescence?

19.        It has been stated in Hallsbury’s Laws of England, 3rd Edition, Volume-14 at Pages 637 and 638:

“Waiver is the abandonment of a right, and is either express or implied from conduct. A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted upon it is sufficient consideration.

The term “acquiescence” is used in two senses. In its proper legal sense it implies that a person abstains from interfering while a violation of his legal rights is in progress; in another sense it implies that he refrains from seeking redress when a violation of his rights, of which he did not know at the time, is brought to his notice. Here the term is used in the former sense; in the second sense acquiescence is an element in laches.

Acquiescence operates by way of estoppel. It is acquiescence in such circumstances that assent may reasonably be inferred, and is an instance of estoppel by words or conduct.”

20.        In view of the above, it is abundantly clear that having accepted the ex-gratia payment of Tk. 50,000/- from the respondent no. 3, the petitioner can not come up with the instant Writ Petition. In this context, the decision in the case of Bangladesh Agricultural Development Corporation and others …Vs… Md. Abdur Rashid and others reported in 67 DLR (AD) 257 relied upon by Mr. Choudhury Murshed Kamal Tipu may be adverted to. In that decision, it has been clearly stated, inter alia, in paragraph 18 that since the respondents accepted the ex-gratia payment, they could not have resiled therefrom.

21.        In the decision in the case of Golzar Hossain (Md)…Vs…Janata Bank reported in 65 DLR (AD) 101 referred to by Mr. Choudhury Murshed Kamal Tipu, it has been held in paragraph 20 that before entering into the merit of a Writ Petition, the Judges owe a duty to see whether the Writ Petition is maintainable in law, and in the case in hand since the Writ Petition was not maintainable, the learned Judges ought not to have entered into the merit of the petitioner’s claim to the property in question.  

22.        Before entering into the merit of the case, this Court is mandated to see as to whether the Writ Petition is maintainable or not. Undeniably the petitioner has not challenged Annexures- ‘4’ and ‘5’ to the Affidavit-in-Opposition. On the one hand, he has accepted the ex-gratia payment of Tk. 50,000/- from the respondent no. 3; but on the other hand, he has come up with the instant Writ Petition for enforcement of his right for getting payment of his arrear salaries and service benefits in compliance with the judgment and decree of the Appellate Court passed in Title Appeal No. 119 of 2002. This stance of the petitioner can not be countenanced at all. In a word, he can not blow hot and cold in the same breath. The principles enunciated in the cases of Arjun Suie …Vs… Emperor, 44 Indian Cases 737 and Jahangir Kabir (Md)…Vs… Bangladesh represented by the Secretary, Ministry of Home Affairs, 48 DLR (AD) 156 banked upon by Mr. A. S. Md. Abdul Mobin are not applicable to the facts and circumstances of the present case in view of its distinguishing features.

23.        Regard being had to the facts and circumstances of the case, we opine that by the conduct of both the parties, they gave a go-by to the judgment and decree dated 20.09.2003 passed by the 3rd Court of Joint District Judge, Sylhet. So the petitioner can not stick thereto. 

There is no gainsaying the fact that the frame of the suit was declaratory in nature; but eventually the Appellate Court below decreed the suit and declared the order of removal of the petitioner from service illegal and directed the respondent no. 3 to reinstate him in service and to pay all his arrear salaries and service benefits as per law. From the nature of the reliefs given by the Appellate Court below, it seems that it directed the respondent no. 3 to reinstate the petitioner in service and pay all his outstanding salaries and service benefits in accordance with law by way of mandatory injunction, albeit the expression ‘mandatory injunction’ is absent in the judgment and decree of the lower Appellate Court. So for all practical purposes, the decree passed by the Appellate Court below in Title Appeal No. 119 of 2002, according to us, is an executable decree under Order 21 Rule 32 of the Code of Civil Procedure. It is a settled proposition of law that the High Court Division is not the Executing Court of any decree of any Civil Court. Without availing himself of the provisions of Order 21 Rule 32 of the Code of Civil Procedure, the petitioner chose to file the instant Writ Petition before the High Court Division under Article 102 of the Constitution.

An equally efficacious remedy having been provided for in Order 21 Rule 32 of the Code of Civil Procedure, the petitioner can not invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution. On top of that, it is worthy of notice that the petitioner has filed the Writ Petition long after 2(two) years of the acceptance of the ex-gratia payment of Tk. 50,000/- from the respondent no. 3. In the facts and circumstances of the case, we hold that the present Writ Petition is an afterthought. In this regard, we see eye to eye with Mr. Choudhury Murshed Kamal Tipu.  

24.        Form the foregoing discussions and regard being had to the facts and circumstances of the case, we find that the Rule is not maintainable. So the Rule fails.

         Accordingly, the Rule is discharged as being not maintainable without any order as to costs.

Ed.