Mobarak Ali Vs. BD House Building Finance Corporation & another

Case No: Civil Petition for Leave to Appeal No. 337 of 1997

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Aftab Hossain,Md. Moksudur Rahman,,

Citation: 55 DLR 2003(AD) 21

Case Year: 2003

Appellant: Mobarak Ali

Respondent: BD House Building Finance Corporation & another

Subject: Administrative Law,

Delivery Date: 2001-7-24

Mobarak Ali

 Vs.

BD House Building Finance Corporation & another

55 DLR 2003(AD) 21

 


Supreme Court
Appellate Division
(Civil)
 
Present:
Mahmudul Amin Choudhury CJ
Mainur Reza Chowdhury J
Md Gholam Rabbani J
Md Ruhul Amin J
Md Fazlul Karim J 
 
Mobarak Ali…………………….Petitioner

Vs.

Bangladesh House Building Finance Corpora­tion and another............Respondent 
 
Judgment
July 24, 2001.
 
Service of Notice
      From record it is seen that show cause notice with the statement of allegations was sent to the petitioner under registered post and that the envelope having not been returned to the sender the legal presumption is that notice of the proceeding was duly served………(4)
 
Lawyers Involved: 
Md. Moksudur Rahman, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Petitioners. 
Md. Aftab Hossain, Advocate-on-Record — For the Respondents. 
 
Civil Petition for Leave to Appeal No. 337 of 1997
(From judgment dated 30th January, 1997 in Appeal No. 96 of 1992 of the Administrative Appellate Tribunal, Dhaka allowing the appeal upon setting aside the judgment and order dated 17th October, 1992 of the Administrative Tribunal in Administrative Tribunal Case No. 76 of 1989)
 
Judgment:
               Md. Ruhul Amin J.- Petitioner, who was Assistant Regional Manager, of House Building Finance Corporation, is seeking leave to appeal against the judgment dated 30th January, 1997 in Appeal No. 96 of 1992 of the Administrative Appellate Tribunal, Dhaka allowing the appeal upon setting aside the judgment and order dated 17th October, 1992 of the Administrative Tribunal in Administrative Tribunal Case No. 76 of 1989 setting aside the order compulsorily retiring the petitioner. 

2. Petitioner joined the service of the House Building Finance Corporation, hereinafter in short of the Corporation, in 1967 and in 1979 he was promoted to the post of Assistant Regional Manager and that on 30th June, 1998 he was transferred to Rajshahi but instead of joining there he remained unauthorisedly absent for considerable time and thereupon disciplinary proceeding was started and the notices informing him about the initiation of the proceeding and charge sheet was sent to him at the addresses available in his service record since no other address was notified by him and that he having not appeared inquiry was completed in his absence and thereupon 2nd show cause notice with a copy of the inquiry report was sent and he received the same and that he submitted his reply to the 2nd show cause notice. Finally on 19 June, 1988 he was compulsorily retired from service. As against the order of compulsory retirement he preferred appeal but the same was rejected. Thereafter he filed the case before the Administrative Tribunal and the Tribunal set aside the order of compulsory retirement on the view that the petitioner was denied opportunity of self-defence and thereby there was violation of principle of natural justice. The Administrative Tribunal arrived at the aforesaid finding holding although charge-sheet with statement of allegations was sent by registered post to the petitioner's addresses available in the record 'but no acknowledgement receipt has been produced by opposite party to show that charge sheet was actually served upon the petitioner.

3. As against the order of the Administrative Tribunal the Corporation went on appeal before the Administrative Appellate Tribunal, Dhaka and the Administrative Appellate Tribunal dismissed the appeal upon observing-
                "The postal receipts raise the legal presumption of due service and the learned lower tribunal is not right in holding that without the acknowledgement receipts the service could not be inferred. In our view the petition been given reasonable opportunity of defence and there has been no violation service regulations or the principle of justice............The authority it seems has not done anything unjust to the petitioner. There is scope for adverse   interpretation of irresponsible conduct of the petitioner respondent as found by the Lower Tribunal............that the proceedings against the petitioner has conducted according to the Service Regulations and there has been no illegality or irregularity committed by the authority in proceeding against him and ultimately retiring him from service. The learned Member of the lower tribunal does not appear to have considered the matters in is their pro per perspective."

4. Mr. Md Moksudur Rahman, learned Counsel appearing for the petitioner, submits inquiry against the petitioner as was done without notifying him and thereby he having been the right of his defence and consequent there he having been retired without being heard thereby there having been serious violation natural justice, the Administrative Appellate Tribunal erred in setting aside the judgment order of the Administrative Tribunal. 

5. From the materials on record it is seen that show cause notice with the statement of allegations was sent to the addresses of the petitioner available in the record under registered post and that envelope having not been returned to the sender i.e. the Corporation, the legal presumption is notices of the proceeding were duly served on petitioner. That being the position the contention of the learned Counsel that the petitioner was denied of his right to defence and that order compulsorily retiring him was passed without hearing him consequently there was violation of principle natural justice has no merit.

In view of the discussion made hereinbefore find no substance in this petition. Accordingly, the petition is dismissed. 

Ed.