S. M. Mosharaf Hossain Vs. Sonali Bank and others

Case No: Civil Petition for Leave to Appeal No. 2103 of 2008

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Quamrul Islam Siddique,,

Citation: VI ADC (2009) 879

Case Year: 2009

Appellant: S. M. Mosharaf Hossain

Respondent: Sonali Bank and others

Subject: Administrative Law,

Delivery Date: 2009-5-31

S. M. Mosharaf Hossain

 Vs.

Sonali Bank and others, 2009,

 VI ADC (2009) 879

 

 

Supreme Court
Appellate Division

(Civil)
 
Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
Md. Abdul Aziz J
 
S. M. Mosharaf Hossain ........................Petitioner

Vs.

The Sonali Bank and others……...............Respondents
 
Judgment
May 31, 2009.

The Administrative Tribunals Act, 1980
Section 4 (2)
Praying an order setting aside the order of demotion of the petitioner……. (2)
It appears that the Administrative Appellate Tribunal considered the provision of Section 4 (2) of the Administrative Tribunals Act, 1980 and held that the application before the tribunal was barred by limitation and set aside the judgment of the Administrative Tribunal. The Administrative Appellate Tribunal further held that the order dated 10.04.2001 is not an independent order. Since it is a question of limitation provided by special law the finding of the Administrative Appellate Tribunal cannot be interfered with. …….. (16)
 
Lawyers Involved:
Quamrul Islam Siddique, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioner (Appeared with the leave of the Court).
Not represented-the Respondents.
 
Civil Petition for Leave to Appeal No. 2103 of 2008
(From the judgment and order dated 02.07.2008 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 228 of 2004)
 
Judgment:
                  Md. Abdul Matin J. - This petition for leave to appeal is directed against the judgment and order dated 02.07.2008 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 228 of 2004 allowing the appeal and reversing the judgment and order dated 29.07.2004 passed by the learned Member of the Administrative Tribunal No.2, Dhaka in Administrative Tribunal Case No.212 of 2003.

2. The facts, in short, are that the petition­er as applicant filed Administrative Tribunal Case No.190 of 2001 before the Administrative Tribunal No.2, Dhaka which was subsequently renumbered as Administrative Tribunal Case No.212 of 2003 praying for an order setting aside the order of demotion of the petitioner under the respondent No.1 contained in their let­ter No.DAD/SecGha/Khulna/Close-3568 dated 10.04.2001 contending, inter alia, that after completion of academic career the petitioner appeared in a competitive examination arranged by the Bankers Recruitment Committee for recruitment of probationary officers, successfully quali­fied in the said examination and was appointed as probationary officer grade VI under the respondent No.1 by letter dated 20.06.1979. After successful com­pletion of the probationary period, the petitioner was confirmed in the said serv­ice as an officer with effect from 02.09.1982 by letter dated 31.07.1983.

3. Since appointment the petitioner had been serving the Bank with all sincerity, honesty and diligence. During the long period of his service under the respondent No.1, the petitioner was never charged or punished for any offence whatsoever. Past service record of the petitioner is unspot­ted. Being satisfied with honesty, loyalty, diligence and brilliant performance of the petitioner, the respondent No.1 was pleased to promote the petitioner to the rank of Senior Officer with effect from 19.12.1983 and to the rank of Principal Officer with effect from 29.06.1991.

4. For his extra ordinary good service, by letter dated 29.06.1986 the petitioner was rewarded with incentive awarded with incentive award of Tk.3,075/- and again by letter dated 27.12.1986 the petitioner was rewarded with
incentive award of Tk.1,860/-. The petitioner passed the Banking Diploma Examination in 1989 from the institute of Bankers, Bangladesh.

5. In Course of service, being so ordered the petitioner joined as in-charge of Foreign. Exchange and passport Department in Khulna Branch of the bank on 29.06.1992 and since then had been discharging his duties in due course honestly and sincerely. The petitioner was transferred to Jessore Principal Office and was released from Khulna Branch on 08.10.1994 and thereafter to Khulna New Market Branch as Manager and in 1995 he was again transferred to Principal Office, Khulna.

6. While working as Principal Officer in the said office the petitioner was placed under suspension vide letter No. POK/PD/PF (Po-74) dated 23.03.1995 on an alleged offence of negotiating a forged sight bill No. KHU/ SGT/3/ 330/94 dated 18.08.1994 for US Dollar 4,87,4607-of the Exporter and the Cash Credit bor­rower M/S. Lokpur Fish Processing Co. Ltd. during the tenure of his service as in-charge of Foreign Exchange Department in Khulna Corporate Branch.

7. After a long silence of about 17 months, a formal letter of charge, vide Memo No. DCD/Section Gha/Khulna/D1887/104 dated 25.08.1996, proposing major penalty of dismissal from service under Rule 39 of the Sonali Bank Employees   Service Rules, 1995 was issued to the petitioner containing various charges.

8. On 08.09.1996 the petitioner submitted his written explanation to the said enquiry officer denying the charges and contend­ing, inter alia, that the petitioner, being in-charge of Foreign Exchange Department always tried to boost upto achieve exporters application dated 17.08.1996 along with L/C  and  other papers  for release of 3200 Master Cartoons of shrimps was duly recommended for ship­ment. The documents against the bill in question were submitted to the desk of the petitioner by M/S Lokpur Fish Processing Company Limited on 18.08.1994. It was prevalent practice in the branch that all, export/import documents addressed to the branch to be submitted to the in-charge of Foreign Exchange Department not only during the tenure of the petitioner but also from the very beginning of Foreign Exchange Department. Accordingly the petitioner instructed the checking official Mr. Zakir to check and verify the docu­ments. Mr. Zakir pointed out the discrep­ancies on the offering and checking sheet and submitted for decision of the authori­ty. The petitioner found the above major discrepancies in the checking and offering sheet and documents were placed to the Deputy General Manager for his decision. At that time the Managing Director of M/S. Lokpur Fish Processing Company Limited was sitting in the chamber of the Deputy General Manager, who elaborately discussed regarding the exporter's past performance and Considering personal undertaking and indemnity of the Managing Director of the Company, the Deputy General Manager accorded approval to negotiate the documents. The checking official and the petitioner point­ed out all the major discrepancies in the checking and offering sheet with opinion not to negotiate the documents but the Deputy General Manager ignored such opinion and instructed to negotiate the documents ,and thus the documents were negotiated and proceeds was credited into the exporters cash credit account main­tained with the branch. The petitioner was transferred to principal office, Jessore on 08.10.1994 and before joining there he handed over the charge of Foreign Exchange Department to Mr. Md. Hanif, Senior Principal Officer, who did not raise any objection regarding the bill and there was no export/import or inward/ outward remittances under dispute during the tenure of the petitioner as in-charge of Foreign Exchange Department. The bill in question has been realised from foreign correspondent. Everything was done for the interest of the branch as well as for the interest of the bank as a whole. The peti­tioner left no stone unturned to bring the Foreign Exchange business of the branch to a remarkable position. During the peri­od of his service in the Khulna branch as in-charge of Foreign Exchange Department the petitioner rendered his untiring labour to accelerate Foreign Exchange business without jeopardizing banks interest. As such double payment in responding TRA No. 003549 dated 08.05.1994 for Tk. 5169.10 was a bona fide mistake through oversight in course of huge departmental works.

9. On receipt of the said written explana­tion Mr. Md. Abdul Malek, the deputed enquiry officer conducted his enquiry and he might have submitted his report. Without giving any decision thereon and even without giving a copy of the said report to the petitioner and also without assigning any reason. Therefore authority might have changed the enquiry officer. By fax message dated 24.02.1998 which was about 18 months after submission of written explanation by the petitioner, Mr. Abdul Kabir Dewan, General Manager, styling himself as enquiry officer, directed the petitioner to appear before him on 26.02.1998 for enquiry. It was sudden and surprising. The petitioner did not gel any time to get prepared for the enquiry. Even the petitioner could not understand that it was going to be a fresh enquiry and thus the petitioner was deprived of sufficient opportunity to defend himself.

10. For an early disposal of his long pend­ing suspension order, the petitioner refrained from raising any objection to such unusual actions of the authority which is also suggestive of mala fide. On 26.02.1998  the petitioner appeared before the said enquiry officer who compelled the petitioner to write answer to some pre­arranged  and type written purposeful questions without allowing him to make a full defence statement and thereafter con­cluded the enquiry without examining the relevant document conversant persons and related transactions.

11. The petitioner received the second show cause notice dated 22.11.1999, 02.12.1999 and 05.12.1999 submitted a short reply thereto contending, inter-alia, that he still rely on his reply to the charges and prayed for exonerating him from the charges.

12. Again after a silence of about 8 months by letter No. DAD/SEC-GHA/KHUL-NA/D-1817/2037/369 (Ka) dated 01.08.2000 as per decision of the Board of Directors the petitioner was dismissed from service.

13. The petitioner challenged the impugned order and the Administrative Tribunal allowed the Administrative Tribunal case setting aside the punishment but on appeal the Appellate Administrative Tribunal found that the very Administrative Tribunal case was barred by limitation.

14. Being aggrieved by the judgment of the Administrative Appellate Tribunal the petitioner has filed this petition for leave to appeal.

15. Heard the learned Advocate and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.

16. It appears that the Administrative Appellate Tribunal considered the provi­sion of Section 4(2) of the Administrative Tribunals Act, 1980 and held that the application before the tribunal was barred by limitation and set aside the judgment of the Administrative Tribunal. The Administrative Appellate Tribunal further held that the order dated 10.04.2001 is not an independent order. Since it is a question of limitation provided by special law the finding of the Administrative Appellate Tribunal cannot be interfered with.

In such view of the matter we find no merit in this petition which is accordingly dismissed.
Ed.