Case No: Civil Revision No. 253 of 1996
Judge: Md. Abdur Rashid ,
Court: High Court Division,,
Advocate: M Khaled Ahmed,AKM Enayet Hossain,,
Citation: 53 DLR (2000) 48
Case Year: 2000
Appellant: Sonali Bank and others
Respondent: Md. Jalaluddin and another
Subject: Administrative Law,
Delivery Date: 2000-10-19
Sonali Bank and others
Md. Jalaluddin and another, 2000,
(HCD) 53 DLR (2000) 48
High Court Division
(Civil Revisional Jurisdiction)
Md. Abdur Rashid J
Sonali Bank and others…………..Petitioners
Md. Jalaluddin and another………….Opposite Parties
October 19, 2000.
Code of Civil Procedure (V of 1908)
Order VII rule 11
Constitution of Bangladesh, 1972
Against the dismissal options were open to the plaintiff either to sue in a civil Court or to move in writ under Article 102 of the Constitution. He opted to sue in a civil Court. The decisions of the Courts below setting aside the order of returning the plaint therefore do not call for interference.
Cases Referred To-
43 DLR 395, 44 DLR (AD) 260; 48 DLR 330; Malik and Haq Vs. Muhammad Shamsul Islam, PLD 1961SC 531; Eastern Mercantile Bank Vs. M Shamsuddin, 21 DLR (SC) 365; Md Janata Bank Vs. Hafizuddin Ahmed and others, 29 DLR (SC) 39 and BSLC Vs. Mahbub Hossain, 29 DLR (SC) 41;Dosta Textile Mills Vs. Sudangshu Bikash Nath, 40 DLR (AD) 45; Jogesh Chandra Datta Vs. Bangladesh, 30 DLR 219; Mujibur Rahman Vs. Bangladesh, 14 DLR (AD) 111; MD, Rupali Bank Vs. Tafazzal Hossain and others, GM, Sonali Batik Vs. Abul Khayer and others, Civil Appeal No. 86 of 1994; Md Shahabuddin Vs. Janata Bank, 41 DLR 94; Rupali Bank Vs. Nazrul Islam, 39 DLR 167.
M Khaled Ahmed, Advocate — For the Petitioners.
AKM Enayet Hossain, Advocate — For the Opposite Party No. 1.
Civil Revision No. 253 of 1996.
Md. Abdur Rashid J. - This Rule was obtained by the defendants upon an application under section 115 of the Code of Civil Procedure, in brief the Code, against Judgment and order dated 28-08-95 passed by the Subordinate Judge, Second Court, Kishoreganj in Miscellaneous Appeal No. 58 of 1992 affirming those dated 22-08-95 passed by the Senior Assistant Judge, at Sadar, Kishoreganj in Review Case No. 20 of 1990.
2. Facts are not disputed. On 22-01-77 opposite party-Plaintiff joined the defendant Bank as typist in Kishoreganj Branch. On 09-05-81 the plaintiff was put under suspension pending decision of a police Case lodged against him by the said Branch of the Bank. On 18-11-82 the plaintiff was dismissed from service under the service rules of the Bank.
3. On 17-11-85 the plaintiff instituted Other Class Suit No. 265 of 1985 in the Court of Senior Munsif at Kishoreganj for a decree for declaration that his dismissal from service was illegal, void and not binding upon him and that he continued in service of the Bank. But upon hearing the matter on the issue of maintainability at the instance of the defendants, the learned Munsif held that in view of the Administrative Tribunal Act (Act VII of 1981) 1981, shortly the Administrative Tribunal Act, the Civil Court had no jurisdiction to try the suit and directed to return the plaint to the filing Advocate for presentation before the proper Court by his order dated 05-07-86.
4. Thereafter, on or about 09-04-90 plaintiff made an application under Order 47 rule 1 read with section 151 of the Code being Review Case No.20 of 1990 before the Upazila Senior Munsif for review of the said order for return of the plaintiff. On hearing both the sides, the learned Munsif by his order dated 22-08-92 found the order for return of the plaint based on total misconception of law regarding the right of the plaintiff to sue in a Civil Court and accordingly, allowed the application for review and vacated the order for return of the plaint dated 05-07-85 and directed the suit to proceed with.
5. On appeal therefrom at the instance of the defendants, the Subordinate Judge rejected the appeal and confirmed the decision of the Senior Assistant Judge by his order dated 28-08-95.
6. Against this appellate order allowing the review, the defendants obtained the above Rule as stated earlier.
7. In support of the Rule, M. Khaled Ahmed appearing for the defendant Bank, submits that the plaintiff is a worker within the definition of section 2(28) of the Employment of Labour (Standing Orders) Act, 1965, shortly, the SO Act, and as such, his remedy lies before the Labour Court and not before a Civil Court under section 9 of the Code as the jurisdiction of Civil Court stands impliedly ousted by the SO Act. Secondly, the defendant Bank having been brought within the ambit of the Administrative Tribunal Act by an amendment dated 25-09-84, the plaintiff could have gone to an Administrative Tribunal under section 4 of the Administrative Tribunal Act if he claimed to be not a worker and the jurisdiction of a Civil Court is also impliedly ousted by this Act. According to him, after the dismissal of the statutory appeal on 25-09-84, only forum was open to him was that of the Administrative Tribunal. He then, submits, the review petition was hopelessly barred by limitation being out of time by more than 4 years. Both the Courts below erred in law in condoning such an inordinate delay in the absence of an application under section 5 of the Limitation Act. He finally submits that both the Courts below committed serious error of law in their decisions occasioning failure of justice in allowing the review. In support of his submissions, he also cited the decisions reported in 40 DLR (AD) 45, 43 DLR 395, 44 DLR (AD) 260 and 48 DLR 330.
8. AKM Enayet Hossain appearing for the plaintiff cited the decisions of 29 DLR (SC) 39 and 29 DLR (SC) 41. He also filed a photo copy of an unreported decision dated 08-01-97 of the Appellate Division in the Case of GM, Sonali Bank Vs. Abul (Chair being Civil Appeal No. 86 of 1994. He submits that as the plaintiff was removed from service on 18- 11-82 when there was no scope for him to seek any remedy in the Administrative Tribunal under section 4 of the Administrative Tribunal Act as the defendant Bank was not yet included within the schedule of the Act. He also submits that the plaintiff did not qualify under section 25 of the SO Act to make any grievance before a Labour Court. Only doors according to him were open to him were those of a Civil Court. He therefore submits on the authorities that the concurrent order allowing review does not call for interference by this Division under section 115 of the Code.
9. In reply, Mr Khaled Ahmed submits that the principle enunciated by the Appellate Division in the unreported Case cited by Mr Enayet has no manner of application to the facts of the instant Case.
10. After patiently hearing the learned Advocates, going through the entire record, perusing the revision application and the impugned orders, and reading number of decisions of this Division as well as of the Appellate Division as cited at the Bar, it appears to me that the question as to the right of a petty employee of statutory corporations to sue in a Civil Court against his removal from service facing the Courts has not yet been finally settled even after so many authoritative decisions of the Appellate Division.
11. The Supreme Court of Pakistan in Malik and Haq Vs. Muhammad Shamsul Islam, PLD 1961 SC 531 held.
“In the absence of any statutory provision protecting the servant it is not possible in law to grant to him a decree against an unwilling master that he is still his servant. A servant cannot be forced upon his master.”
Following the decision, the Supreme Court in Eastern Mercantile Bank Vs. M Shamsuddin, 21 DLR (SC) 365 set aside the decree obtained by an employee of a private bank against his termination from service and dismissed the suit being of the view:
“The declaration that the order terminating the respondent’s service was null and void, etc. could not be covered by the provisions of section 42 of the Specific Relief Act, ......... the terms and conditions of the respondent’s (plaintiff) service were not regulated by any legal instrument, it could not be said that the declaration asked for by him was in relation to any legal character.”
12. Whether the rule of master and servant is equally applicable in the Cases of employees of statutory corporations and whether, in the absence of service rules, a suit of such employees is maintainable under section 42 of the Specific Relief Act were seriously mooted before the Appellate Division in MD, Janata Bank Vs. Hafizuddin Ahmed and others, 29 DLR (SC) 39 and BSIC Vs. Mahbub Hossain, 29 DLR (SC) 41.
13. In the earlier Case, Hafizuddin, a Grade II Officer, sued for a declaration against his dismissal from service. In the appeal of the bank preferred from the concurrent order rejecting an application of the bank under Order 7 r 11 of the Code, the then Supreme Court of Bangladesh held for the first time that an employee of a statutory corporation does not come within the master and servant rule as his service has a public character. So, he is entitled to a legal character and can maintain a suit for declaration under section 42 of the Specific Relief Act.
14. The questions were thoroughly investigated in BSIC Vs. Mahbub Hossain. Mahbub, an officer of the Corporation was on 31-05-73 dismissed under the service rules pursuant to a decision of the Board of Directors and in consideration of first Screening Board appointed by the Government. He successfully challenged his dismissal in an application under Article 102(2) of the Constitution before this Division. On an appeal therefrom, the Appellate Division on review of various decisions, formulated the principles as to the law relating to the employees of statutory corporations or bodies-
(a) If an employee is dismissed or his service is terminated in contravention of a mandatory statutory provision, the employee has a right of action either in the Supreme Court in its writ jurisdiction or in a Civil Court.
(b) If the service of its employee is terminated in violation of the principle of natural justice, the employee has a similar right of action as in (a),
(c) If the office is a statutory one, the holder of the office has similar right of action as in (a), in Case of termination of the said office not in accordance with the law under which the said office has been held,
(d) In spite of the office being a statutory one or of public character, terms and conditions of the office may be regulated by contract, and termination of service in contravention of such contract, but otherwise than in the manner mentioned in (a) and (b) is not actionable for the purpose of reinstatement in the office, and
(e) Terms and conditions of service prescribed by the rules, regulations or any other form of delegated legislation made by a body under statutory powers are not contractual, but have statutory force and the dismissal or termination of service in substantial disregard of them will entitle the employee to a right of action as in (a).
15. An employee of a statutory corporation answering the description of a worker as defined in the SO Act may be removed from service either under such Act or under the service rules of such corporations. The Cases against removal started coming before the Courts with the moot issue, whether the suit of such an employee of a statutory corporation is still maintainable. In Dosta Textile Mills Vs. Sudangshu Bikash Nath, 40 DLR (AD) 45, Sudangshu, Store-in-Charge, on being discharged from a criminal charge on final report was proceeded under section 18 of the SO Act and finally dismissed from service. He sued the mills in Civil Court and got a decree against the dismissal from the appellate Court and affirmed by this Division in revision. In further appeal to the Appellate Division, it was held that Sudangshu was a worker and that he was not an employee of the Corporation in which the Mill vested and the Service Rules of the corporation were not applicable to him. The Appellate Division also observed,
“.........the very moment it is found that the plaintiff is a worker, he is non-suited, because his suit filed under the Civil Procedure Code is not maintainable, specific remedy of his grievance lies in a separate forum, the Labour Court, established under the Industrial Relations Ordinance, 1969, as amended up to date.’
The principle followed-
“Where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute.”
The decision of this Division in Jogesh Chandra Datta Vs. Bangladesh, 30 DLR 219 was approved.
16. In Mujibur Rahman Vs. Bangladesh, 44 DLR (AD) 111, the Appellate Division held that in view of clause 5 of Article 102 of the Constitution, a writ petition is not maintainable against judgment and order of the Administrative Tribunal established under section 5 of the Administrative Tribunal Act. It further held, inter alia,
“A person in the service of the Republic who intends to invoke the fundamental rights in challenging the vires of a law will seek his remedy under Article 102(1) of the Constitution.”
17. After coming into force of the Administrative Tribunal Act, 1981 (Administrative Tribunal Act) bringing all classes of employees of statutory corporations, bodies or authorities within its sweep, the confusion around the questions appears to have heightened. In MD, Rupali Bank Vs. Tafazal Hossain and others, 44 DLR (AD) 260. Tafazal, an Assistant Cashier of the bank, got a decree against his termination from service and the decree was confirmed in appeal as well in revision by this Division.
He was terminated on 15-09-81. The statutory public authorities, including Rupali Bank was on 25-09-84 brought into the ambit of section 4 of the Act by Administrative Tribunal (Amendment) Ordinance, (Ordinance No. LX of 1984) 1984. In 1987, he instituted the suit after spending six years seeking remedies before persons and authorities not contemplated in section 4(2) of the Administrative Tribunal Act.
The Appellate Division held that his Case goes out of the ambit of the Administrative Tribunal Act. For his Case would be governed by the law which was applicable to him and was in force at the time of his termination in 1981. But Tafazal was found to be a worker and accordingly, it was ruled that his remedy would lie before the Labour Court under section 25(1) of the Employment of Labour (Standing Orders) Act, 1965.
The Appellate Division approved the view of a Single Bench decision in Md. Shahabuddin Vs. Janata Bank, 41 DLR 94. But it could not be ascertained, whether the termination was under the SO Act, 1965 or the Bank Service Rules.
18. In GM, Sonali Bank Vs. Abul Khayer and others, Civil Appeal No. 86 of 1994, Abul Khayer, a driver in the Bank, instituted OC Suit 289 of 1986 for declarations that his termination from service dated 24-09-81 under the Sonali Bank Service Rules was void, illegal, inoperative etc, and further that his service as driver was continuing with its salaries and facilities. Leave was granted against the order of the HCD affirming the Order of the trial Court rejecting an application of the Bank under Order 7 rule 11 of the Code for rejection of the plaint made on the grounds.
(a) The suit was barred by reason of the Administrative Tribunal Act, 1980 which got exclusive jurisdiction to try such matter,
(b) the suit was barred under section 42 of the SR Act,
(c) the matter was triable by the Labour Court, and
(d) the suit was barred under the Limitation Act.
Relying on the decision in Rupali Bank Vs. Nazrul Islam, 39 DLR 167, the trial Court held that the plaintiff was not a worker and hence his case was not triable by the Labour Court. Relying on the decision in 44 DLR (AD) 260, only point argued before the Appellate Division that since the plaintiff was a worker his remedy would lie before the Labour Court and the jurisdiction of the Civil Court was impliedly barred.
It was pointed out by this Division that the termination of the plaintiff’s service was not done under the SO Act but under rule 17(ii) of the Banks (Staff) Service Rules which is permitted under section 3 of the SO Act. This Division also noticed that in 44 DLR (AD) 260 the termination was issued in 1981 and the Rupali Bank was brought into the ambit of Administrative Tribunal Act in 1984.
The Appellate Division confirmed the decision of this Division in holding that in view of the proviso to section 25 of the Standing Orders Act and the facts of the Case, this Division correctly took the view that the door of the Labour Court was closed to the plaintiff and as such, the decision in 44 DLR (AD) 260 would not be a binding precedent in the instant Case.
The Appellate Division also noticed that the proviso to section 25 of the Standing Orders Act was not brought to its notice. If the proviso was considered as above in 44 DLR (AD) 260 it would be difficult to resist the view taken by this Division. The plaintiff having been found to have no other forum either under the Standing Orders Act or Industrial Relations Ordinance, 1969 (Ordinance XXIII of 1969) to challenge the order of termination from service was found to be entitled to go to the Civil Court.
The Appellate Division also held that if there is termination of a worker under section 19 of the standing Orders Act, there is no doubt that he has to follow the grievance procedure under section 25 of SO Act. Then the Appellate Division observed-
“The terms of section 19 of the (Standing Orders) Act providing termination of a ‘worker’ and those of rule 17(ii) of the Bank’s Service Rules are found to be different and therefore, it is difficult to say that a termination under the service rules of the Bank is covered under the Standing Orders Act. In such view of the matter also the plaintiff cannot be said to have a remedy under the (Standing Orders) Act.”
19. Besides the above Cases, I have also studied other Cases on the issues. The principles enunciated so far may be summarised as follows:
(a) The standing of employees of a private company or authority remains the same to be covered by the law of master and servant and the rule of hire and fire in Case of removal from service with the only exception that if such employee is a worker he may go to the Labour Court with his grievance. But he is not entitled to sue in a Civil Court under section 42 of the Specific Relief Act.
(b) If an employee of a statutory corporation answering to the description of a worker as defined in the Employment of Labour (Standing Orders) Act, 1965, shortly the Standing Orders Act, is removed from service either by termination or dismissal under the provisions of the Act, he must seek his remedy before the Labour Court established by the Industrial Relations Ordinance, 1969.
(c) If such employee is terminated under the provisions of the Act but he does not qualify to make his grievance under section 25 of the Act, he may seek his remedy in a Civil Court.
(d) When such employee is removed from service either by termination or dismissal not under the provisions of the Standing Orders Act but under the service rules of such corporation, and before the coming into force of the Administrative Tribunal Act, 1981 or before his corporation is brought within the ambit of the Administrative Tribunal Act by subsequent amendment, he is entitled to seek his remedy either in a Civil Court or before this Division under Article 102 of the Constitution in writ jurisdiction, and
(e) After the coming into force of the Administrative Tribunal Act or bringing into the ambit of such Act by subsequent amendment, all employees of a statutory corporation, bodies or authorities not covered by clause (d) must seek his remedy against removal from service under the service rules of the corporation or otherwise, before an Administrative Tribunal under the provision of the Administrative Tribunal Act.
20. Now, in the Case before us, I find from the record that after the plaintiff was put under suspension, proceeded with under the Bank’s Old Service Rules and finally dismissed from service on 18-11-82 under the Banks Old Service Rule No. 39. His departmental appeal was also dismissed under Rule No. 43 on 25-09-84. All through he was proceeded with under the Service Rules of the Bank. This is permitted under section 3 of the Standing Orders Act. On 18-11-82 when he was dismissed from service, the defendant Bank was not brought within the ambit of the Administrative Tribunal Act. So, the plaintiff had no scope to seek remedy under the Tribunal Act, 1981. Equally, as the plaintiff was not dismissed under any provision of the Standing Orders Act, 1965 he had also no right to go to the labour Court established under the Industrial Relations Ordinance.
21. In view of the ratio decidendi of the Cases discussed above, against the dismissal, options open to the plaintiff were either to sue in a Civil Court or to move this Division in writ under Article 102 of the Constitution. The plaintiff opted to sue in a Civil Court and he is quite entitled to proceed with his suit in the Civil Court. The impugned decisions of the Courts below setting aside the order of returning the plaint therefore do not call for any interference.
22. On the question of limitation, I must say that both the Courts below considered the reasons for the delay in making the application for review, and in exercise of their discretion were satisfied in condoning the delay. Sitting in revision and exercising a limited jurisdiction under section 115 of the Code, I find it difficult for me to go into the question of exercise of discretion by the Courts below and in particular, their satisfaction, in condoning the delay.
So, the submissions in support of the Rule have no substance. In the result, the Rule is discharged with cost. The impugned judgment and orders are hereby affirmed. The order of stay granted at the time of issue of the Rule hereby stands vacated. Let the records be sent down at once so that the suit may be heard and disposed of as early as possible.