Mohammed Abdul Naim Vs. Chairman, Board of Directors, Sonali Bank

Case No: Civil Appeal No. 52 of 1996

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,A.B.M. Khairul Huq,,

Citation: II ADC (2005) 369

Case Year: 2005

Appellant: Mohammed Abdul Naim

Respondent: Chairman, Board of Directors, Sonali Bank

Subject: Administrative Law,

Delivery Date: 1997-11-20

Mohammed Abdul Naim

Vs.

Chairman, Board of Directors, Sonali Bank, 1997,

 II ADC (2005) 369

 

 

Supreme Court
Appellate Division

(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Mohammed Abdul Naim........Appellants

Vs.

The Chairman, Board of Directors, Sonali Bank, Head Office, Dhaka and others...........Respondents
 
Judgment
November 20, 1997.
 
Administrative Tribunal Act, (VII of 1981)
Section 4 (2)
The Appellant’s submission that the plea of defect of party was taken after 6 years at the appellate stage does not hold good. The respondents took this objection at the first available opportunity. It is therefore difficult to say that the conduct of the respondents was such that the appellant deserves a differential treatment. On going through the said Concise Statement, on the other hand, our view is otherwise. The conduct of the appellant himself appears to depressing. He paid no heed on the respondents written statement.
 
Case Referred to:
Murari Mohan Deb vs. Secretary to the Government of India, AIR 1985(SC) 931.

Lawyers Involved:
Dr. Kamal Hossain, Senior Advocate (Md. Moksudur Rahman, Senior Advocate with him), instructed by Mr. Md. Aftab Hossain,Advocate-on- Record - For the Appellant.
A.B.M. Khairul Huq, Advocate instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Respondents.

Civil Appeal No. 52 of 1996
(This Appeal arises out of the Review Petition No. 24 of 1995 against the Judgment and order dated 6-4-95 passed by this Division in Civil Petition for Leave to Appeal No. 298 of 1994).
 
Judgment:
Mustafa Kamal J.- Leave was granted in this appeal for review of the judgment and order of this Division dated 6-4-95 dismissing the appellant's Civil Petition for Leave to Appeal No. 298 of 1994.

2. The appellant was dismissed from serv­ice of Sonali Bank on 29-7-86 and his depart­mental appeal was dismissed on 29-7-87. His application before the Administrative Tribunal, A.T. Case No. 169 of 1987, was allowed by judgment and order dated 10-1-93. The respon­dents' appeal, A.A.T. Appeal No. 17 of 1993, was allowed by the Administrative Appellate Tribunal on 12-4-94 on the ground that the Sonali Bank, a legal entity capable of suing and of being sued, having not been made a party the appellant's A.T. Case was not maintainable. The appellant's Civil Petition for Leave to Appeal was dismissed by this Division on the following reasoning's:-
           "Under Section 4(2) of the said Act the jurisdiction of the Administrative Tribunal can be invoked only by a per­son in the service of the Republic or in the service of a statutory public author­ity. In other words, his employer is a necessary party. The officers whom the petitioner made opposite parties in his application may be his appointing authority and appellate authority but the petitioner was not in the service of those officers. Section 2(a) of the said Act defines "statutory public authority" as those which are described in the Schedule to the said Act. In the Schedule Sonali Bank is mentioned as one of the statutory public authorities. The petitioner was in the service of Sonali Bank and his cause of action is against his employer and not against his appointing authority or appellate authority. They are merely functionar­ies of his employer. He may or may not make his appointing authority or appel­late authority a party to the application under section 4(2), but it is obligatory for him to make his employer a party to the application or else any decree in his favour will be in executable, his employer will not being bound by the decree. The Board of Directors or the Chairman thereof who is entrusted with the duty of administering the Bank can only execute a decree if the Bank is bound by it."

3. Leave was granted to consider a review of this judgment in the following terms:-
            "Dr. Kamal Hossain, learned Counsel for the petitioner, submits that the Sonali Bank is no doubt the employer of the petitioner and was no doubt a necessary party to the case but in the present case the Chairman of the Board of Directiors of sonali Bank, the Managing Director and other officials of the Bank by whose action the peti­tioner was specifically aggrieved were made parties and therefore the error apparent on the face of the record is the failure to see that there has been a sub­stantial compliance of the requirement of law. More so, because the respon­dents contested the case and did not object to the non-joinder of Sonali Bank as a party before the Administrative Tribunal, taking upon themselves the full responsibility of the outcome of the litigation. It is only at the appellate stage that this objection was taken and the technical error in the draftsmanship of the petition by a lawyer could have been conveniently corrected and the appellate Tribunal could have conveniently read the cause title as "Sonali Bank represented by the Chairman, Board of Directors thereof”. In view of the fact that in this particular case the objection was taken long 6 years after the case was filed and decid­ed before the Administrative Tribunal this Court has made an error in not noticing the conduct of the respondents themselves. Dr. Kamal Hossain sub­mits that this is a fit case for review not for upsetting the law laid down by this Court but for taking a differential view in the particular facts and circumstances of the present case to meet the ends of justice."

4. It is clear from the above and has been made further clear by Dr. Kamal Hossain, the learned Counsel for the appellant, during the course of hearing of the appeal that the appel­lant does not challenge at all the proposition of law enunciated in our decision. The appellant's only case is that there is an error apparent on the face of the record in not noticing that there has been a substantial compliance of the require­ment of law and more so because the contesting respondents did not object to the non-joinder of Sonlai Bank as a party before the Administrative Tribunal. It is only after a long lapse of 6 years that they raised the technical error in the draftsmanship of the petition at the appellate stage. In such circumstances, submits Dr. Kamal Hossain, the Appellate Tribunal could have easily taken a more rational view, namely, that in the particular facts and circum­stances of the present case and to meet the ends of justice there has been substantial compliance with the requirements of law as the Chairman, Board of Directors of Sonali Bank Deputy General Manager and Assistant General Manager, Sonali Bank were all made parties to the case and they took full responsibility of the outcome of the litigation.

5. In reply Mr. A.B.M. Khairul Huq, learned Counsel for respondent No. 3, draws our attention to paragraph 4 of the Concise Statement filed by the said respondent in which it has been stated that respondent Nos. 3 and 4 contested the case by filing a written statement on 21-3-88. In paragraph 3 of the written state­ment it was specifically stated that the applica­tion before the Administrative Tribunal was not maintainable and was liable to be dismissed for not impleading the Sonali Bank, the employer of the appellant. Paragraph 3 has been quoted in Bengali in the Concise Statement. It is further stated in the Concise Statement that still no steps in this regard were taken by the appellant then or thereafter.

6. We do not find any differential factual basis for taking a differential view in this partic­ular case. The appellant's submission that the plea of defect of party was taken after 6 years at the appellate stage does not hold good. The respondents took this objection at the first avail­able opportunity. It is therefore difficult to say that the conduct of the respondents was such that the appellant deserves a differential treatment. On going through the said Concise Statement, on the other hand, our view is other­wise. The conduct of the appellant himself appears to depressing. He paid no heed on the respondents' written statement.

7. Nor do we think that the case of Murari Mohan Deb vs. Secretary to the Government of India, AIR 1985(SC) 931, cited by Dr. Kamal Hossain, has any application to the facts and circumstances of the case. In the cited case the Judicial Commissioner of Tripura while consid­ering a writ petition challenging an order of compulsory retirement suo motu raised the objection that the Union of India having not been made a party, the petition was not compe­tent. The Supreme Court of India observed as follows:
                    "We have not been able to appreciate why the learned Judicial Commissioner should have taken upon himself to raise this unten­able contention even though the respon­dents did not raise such a contention".

8. The Supreme Court of India found that an "oral request to correct the description of the first respondent", Secretary to the Government of India, Ministry of Home Affairs, "would have satisfied the procedural requirement. By raising and accepting such a contention after a lapse of 6 years the law is brought into ridicule. The Court could have conveniently read the cause title as Government of India" instead of the description set out in the writ petition.

9. In the present case the objection was not taken by the Appellate Tribunal itself. The objection was taken at the earliest opportunity by the respon­dents themselves. The Administrative Tribunal did not give any finding on the same. When it was re-agitated before the Appellate Tribunal the said Tribunal found substance in it and found that the petition was not maintainable. The cited case there­fore has no application in the present case.

10. Having considered the particular facts and circumstances of the appellant's case we are unable to find an error apparent on the face of our decision and are also unable to take a differential view. The appeal is dismissed without any order as to cots.

Ed.