Case No: Civil Revision No. 3352 of 2011
Judge: Borhanuddin, J.
Court: High Court Division,
Advocate: Mr. Mahbubey Alam, Mr. A. J. Mohammad Ali,
Citation: 2018(1) LNJ 82
Case Year: 2017
Appellant: World Bank Office, Dhaka and another
Respondent: Ismet Zerin Khan
Subject: Code of Civil Procedure
Delivery Date: 2018-05-29
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
World Bank Office, Dhaka and another
. . . Petitioners
Ismet Zerin Khan
. . . Opposite party
Immunity of World Bank
Courts below justly and correctly apprised the issue in holding that all the immunities granted under Article VII of the Article of Agreement essentially refer to the ‘external activities’ of the World Bank. The immunities claimed under Article VII of the Article of Agreement do not refer to its ‘internal activities’. . . .(22)
Principle of Natural Justice
It is well established that the essential requirement of natural justice at least include that before someone is condemned he/she is to have an opportunity of defending himself/herself in order that he/she is aware of the charges of allegations or suggestions which he/she has to meet. . . .(31)
Code of Civil Procedure (V of 1908)
It is well settled position in law that under Section 115 of the Code of Civil Procedure, the High Court cannot re-appreciate the evidence and cannot set aside concurrent findings of court’s below by taking a different view of the evidence. The High Court is empowered only to interfere with findings of fact, if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Court below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction. . . .(37)
Bangladesh Jute Mills Corporation Ltd. and others Vs. Abdul Halim Chowdhury, 47 DLR 173; Chowmuhani College and another Vs. Md. Ismail Hossain and others, 26 DLR 10; Ms. Suraiya Parvin and others Vs. Shah Anwarul and another, 28 DLR (SC) 368; Dipak Chandra Vs. Selestin Resel and others, 2 BLC 391; Haider Ali Mollah and others Vs. The Chairman, 2nd Labour Court and others, 42 DLR 200; S. M. Kuddus and others Vs. Chairman, Labour Court, Chittagong and another, 33 DLR (AD) 12; Managing Director, Janata Bank Vs. Hafizuddin Ahmed and others, 29 DLR (SC)39; Bangladesh Small Industries Corporation, Dacca Vs. Mahbub Hossain Chowdhury, 29 DLR (SC) 41; Md. Shah Alam Vs. Musammat Farida Begum, 2 MLR (AD)153; Government of Bangladesh, represented by the Additional Deputy Commissioner (Rev), Perojpur Vs. Abdul Hoque Khan and others, 3 MLR (AD) 255; Bangladesh Steamer Agent’s Association Vs. Bangladesh and others, 31 DLR 272; Nurul Abser Chowdhury Vs. Jesmin Akther, 51 DLR 35; Scimet Vs. African Development Bank (1997), 128 I.L.R. 582, at p. 584; Shanta Shamsher Jung Bahadur Rana Vs. Kamani Brothers Private Ltd., AIR 1959 Bom 201 at page 212; Vine Vs. National Dock Labour Board, (1956) 3 All England report 939 and Dacca, Vs. Mahbub Hossain Chowdhury, 29 DLR (SC) 41 ref.
Mr. Mahbubey Alam, with
Ms. Tahmina Poly, Advocates
. . . For the Petitioners
Mr. A. J. Mohammad Ali, with
Ms. Rubayet Hossain, Advocates
. . . For the Opposite Party
Borhanuddin, J: This rule has been issued calling upon the opposite party to show cause as to why the judgment and decree dated 27.03.2011 passed by the learned Additional District Judge, 6th Court, Dhaka, in Title Appeal No. 186 of 2010 affirming those of dated 28.04.2010 passed by the learned Assistant Judge, Nawabgonj, Dhaka, in Title Suit No.48 of 2010 decreeing the suit, should not be set aside and/or such other or further order or orders passed as to this court may seem fit and proper.
2. Facts relevant for disposal of the rule are that the opposite party herein as plaintiff instituted Title Suit No.225 of 2002 in the 1st Court of Assistant Judge, Dhaka, on transfer renumbered as Title Suit No.48 of 2010, for declaration that the letter of non-confirmation and termination dated 03.05.2001 is collusive, illegal, against natural justice, not binding upon the plaintiff and seeking further declaration that the plaintiff is entitled to be reinstated in her service with arrear salary.
3. Plaint case in short is that the plaintiff served in various organizations successfully before joining in the job under defendant no.1 organization and got recognition for her skill, competence and dedication; Plaintiff was appointed as ‘External Affairs Officer’ of defendant no.1 Bank for a period of two years with effect from 16.01.2000 through a rigorous selection process; As recognization of her excellent service, defendant no.1 Bank awarded her spot award within six months of joining and an increment within eight months; In the Staff Manual of defendant no.1 Bank, there is a provision for written assessment of employee’s performance after every six months but plaintiff was not given written assessment during her probationary period; On 13.03.2001 some misleading, false and confusing allegations were brought against her; Plaintiff denied the allegations and send a letter of rebuttal to the concern Senior official but no reply was given to the letter; All of a sudden on 3rd May, 2001, Plaintiff was informed by the country director of defendant no.1 Bank that her appointment would not be extended after probationary period and also informed that her employment with the Bank would be terminated from 2nd July, 2001, without complying due process of law, in violation of Bank’s applicable rules and procedures embodied in the staff manual of Bank; Plaintiff filed appeal to the appeal committee of Bank challenging illegal termination; During pendency of that appeal, defendant no.1 published a vacancy announcement on 20.07.2001 in a National Daily inviting application in her post; Plaintiff served legal notice for publishing the advertisement; Acting country director of the Bank replied on 24.07.2001 informing the plaintiff that she may take recourse through internal administrative grievance process of the World Bank; Non confirmation of appointment and decision of termination of the plaintiff is unjust, illegal and in violation of the natural justice; Hence, the suit.
4. Defendant nos. 1 and 2 contested the suit by filing two separate written statement denying material allegations made in the plaint; Defendant no.1 contended that the suit is barred under section 8 of Article VII of the International Financial Organisations Order 1972 (President’s Order No.86 of 1972) and also under Section 42 of the Specific Relief Act; Relationship between plaintiff and defendant no.1 Bank is of master and servant; An unwilling master cannot be compelled to retain his servant through Court decree; If plaintiff’s termination on non-confirmation is illegal than she is entitled to damages only; Further contending that plaintiff filed an appeal before appeal committee of the Bank challenging her termination with a request to stop her “replacement” but the appeal committee found no merit of her claim and did not recommend for any relief; Being dissatisfied with the decision of appeal committee, plaintiff filed an application before the World Bank Administrative Tribunal, a judicial body composed of seven judges, all of whom are nationals of different Member States of the Bank and persons of high moral character possessing qualifications required for high judicial office; The Tribunal by its judgment upheld Bank’s decision of non-confirmation and termination but awarded compensation amounting to one year salary and a cost of US# 10,000 in favour of the plaintiff holding that the Bank had failed to fulfill its obligation to provide the plaintiff adequate opportunity to cure her performance and deficiencies; Plaintiff received the amount and therefore cannot be allowed 2nd relief for the same cause of action; Suit is liable to be dismissed.
5. Contention of the defendant no.2 is that section 8 of 2nd schedule of the International Financial Organisations Order, 1972 (President’s Order No.86 of 1972) gives immunities and privileges to the officers and employees of the World Bank; It provides that all Governors, Executive Directors, Alternates, Officers and employees of the Bank shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives this immunity; In the present case the Bank has not waived immunity; Defendant No.2 issued the letter of non-confirmation and termination dated 03.05.2001 in official capacity and thus the same is immune from legal process in any court of law in Bangladesh; There is no cause of action to maintain the present suit.
6. After hearing the parties and assessing evidence on record, learned Senior Assistant Judge, Nawabgonj, Dhaka, decreed the suit by his judgment and decree dated 28.04.2010 holding that the World Bank as an institution is not immune from the legal process of Bangladesh; Status of plaintiff as ‘External Affairs Officer’ of defendant no.1 comes within the purview of legal character under Section 42 of the Specific Relief Act; In the facts and circumstances of present case, rule of ‘Master and Servant’ is not applicable as such, the suit is maintainable in its present form; Letter of non-confirmation and termination dated 03.05.2001 is illegal, malafide; Acceptance of compensation by the plaintiff pursuant to decision of World Bank Administrative Tribunal does not foreclose her right to seek relief from the court and plaintiff is still in service as an “External Affairs officer” of the defendant no.1 Bank but she could not perform her function and responsibilities due to malafide intention of the defendant so she is entitled to the salary and other benefits from 02.07.2001 to the date of decree of the suit.
7. Being aggrieved, the defendants as appellants filed Title Appeal No.186 of 2010 in the court of learned District Judge, Dhaka, which was ultimately heard and disposed of by the learned Additional District Judge, 6th Court, Dhaka, who after hearing the parties and re-assessing evidence on record dismissed the appeal by his judgment and decree dated 27.03.2011 and thereby affirmed findings of the Trial Court.
8. Having aggrieved by and dissatisfied with the judgment and decree passed by appellate Court below, defendant-appellants as petitioners preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the present rule alongwith an order of stay.
9. Mr. Mahbubey Alam, learned advocate appearing for the petitioners submits that the court below committed an error of law resulting in an error in the decision occasioning failure of justice in not holding that the suit is barred under section 8 of Article VII of the International Financial Organisations Order, 1972 (President’s Order No.86 of 1972) and also under Section 42 of the Special Relief Act as such the judgment and decree is liable to be set aside. He also submits that the court below committed an illegality in not considering that the defendants are immune from any legal process of Bangladesh and letter of non-confirmation and termination dated 03.05.2001 was an act performed under official capacity as such impugned judgment and decree is liable to be set aside. He again submits that the court below committed illegality in not holding that the plaintiff exhausted adequate grievance mechanism of the World Bank including Administrative Tribunal and received salary of one year and compensation awarded by the Tribunal as such she is not entitled to get 2nd relief for the same cause of action. He next submits that the court below committed an error of law in not holding that relationship between the plaintiff and defendant no.1 Bank was of master and servant and an unwilling master cannot be compelled to reinstate her servant as such impugned judgment and decree is liable to be set aside. He further submits that the court below committed an error of law as well as fact in not considering that the defendant no.1 Bank provides adequate opportunity to the plaintiff before terminating her from job complying principle of natural justice as such impugned judgment and decree is not tenable in the eye of law. In support of his submission relating to immunity of the World Bank, learned advocate referred to the case of Mendaro-Vs- World Bank, decided by the United States Court of Appeals for the District of Columbia Circuit vide judgment dated September 27, 1983; the case of Felicia Adjei and others-Vs- the Attorney General and others, decided by the High Court of Justice, Ghana, on 30th July, 1996, and the case of World Bank Group-Vs- Kevin Wallace and others, decided by the Supreme Court of Canada on April 29th, 2016. Relating to maintainability of the suit, learned Advocate referred to the case of Bangladesh Jute Mills Corporation Ltd. and others-Vs- Abdul Halim Chowdhury, reported in 47 DLR 173; the case of Chowmuhani College and another-Vs-Md. Ismail Hossain and others, reported in 26 DLR 10; Ms. Suraiya Parvin and others, -Vs- Shah Anwarul and another, reported in 28 DLR (SC)368. Relating to rule of master and servant, learned Advocate referred to the case of Dipak Chandra-Vs- Selestin Resel and others, reported in 2 BLC 391 and the case of Haider Ali Mollah and others-Vs-The Chairman, 2nd labour Court and others, reported in 42 DLR 200 and the case of S. M. Kuddus and others-Vs- Chairman, Labour Court, Chittagong and another, reported in 33 DLR(AD)12.
10. On the other hand, Mr. A. J. Mohammad Ali, learned advocate appearing for the opposite party submits that the issue relating to immunity of the World Bank is settled by now and there is no scope to reopen the matter in this jurisdiction inasmuch as the suit has been continuing over the last 15 years in the courts of Bangladesh including the apex court and our apex Court in Civil Appeal No.184 of 2004, arising out of this case, without exercising power under Article 104 of the Constitution directed Trial court to hear the suit on all issues including the issue of maintainability and thus to determine the issue of immunity was given to the Trial Court. He also submits that our apex court in its judgment in Civil Appeal No.184 of 2004 observed ‘the question of immunity is a mixed question of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of evidence in the suit and a decision should be arrived accordingly’ and both the courts below arrived at a concurrent finding that the World Bank as an institution is not immune from the legal process of Bangladesh as such this issue cannot be agitated at this stage. He next submits that both the courts below justly and legally arrived at a finding that the plaintiff acquired a legal character as an ‘External Affairs Officer’ of defendant Bank and as such the suit is not barred under Section 42 of the Specific Relief Act. Learned Advocate again submits that World Bank enjoy the status of inter-governmental body owned by its member countries including Bangladesh and member countries govern the World Bank through Board of Governors and Board of Executive Directors which have the ultimate decision making power within the organization in all matters and there is a staff manual for the employees employed in the Bank all over the World wherein no clause embodied that the relationship between the employer and employee is of the master and servant as such there is nothing to interfere with the judgment and decree passed by the court below. He further submits that exhausting of the forum of World Bank Appellate Tribunal does not dabar the plaintiff from seeking relief in the court of Bangladesh inasmuch as though the Tribunal arrived at a clear finding that treatment of the plaintiff fell short of appropriate standards of procedural justice which has effectively caused her harm and the plaintiff is entitled to be compensated but inspite of such finding the plaintiff was not reinstated in her post because the Administrative Tribunal is constituted by the World Bank management as such court below justly and correctly passed the impugned judgment and decree. He lastly submits that both the Courts below after assessing and reassessing the evidence on record arrived at concurrent findings as such these findings based on due consideration of evidence are beyond the scope of revisional Court to interfere with under Section 115 of the Code of Civil Procedure. In support of his submissions, learned advocate referred to the case of Managing Director, Janata Bank-Vs- Hafizuddin Ahmed and others, reported in 29 DLR(SC)39; the case of Bangladesh Small Industries Corporation, Dacca –Vs- Mahbub Hossain Chowdhury, reported in 29 DLR (SC) 41; the case of Md. Shah Alam-Vs- Musammat Farida Begum, reported in 2 MLR (AD)153; the case of Government of Bangladesh, represented by the Additional Deputy Commissioner (Rev), Perojpur-Vs- Abdul Hoque Khan and others, reported in 3 MLR(AD)255; the case of Bangladesh Steamer Agent’s Association –Vs- Bangladesh and others, reported in 31 DLR 272 and the case of Nurul Abser Chowdhury –Vs- Jesmin Akther, reported in 51 DLR 353.
11. Heard learned advocate for the parties. Perused the revisional application, counter affidavit, affidavit in reply, supplementary affidavit and annexures appended thereof alongwith lower courts record.
12. I have gone through the judgment and decree passed by the courts below. Both the courts below after assessing and re-assessing evidence on record arrived at concurrent findings that World Bank is not immune from the legal process of Bangladesh; as an ‘External Affairs Officer’ the plaintiff acquired a legal character under section 42 of the Specific Relief Act; World Bank is not an ordinary private organization but a public international financial organization having a staff manual which is applicable to all employees of the Bank all over the world as such rule of master and servant is not applicable in this case; Letter of non-confirmation and termination dated 03.05.2001 issued by the defendant no.1 Bank without affording an opportunity of hearing to the plaintiff is against the principle of natural justice.
13. Both the Courts below after thorough and meticulous discussions arrived at concurrent findings relating to the issues framed by the trial Court which includes maintainability of the suit. However, learned Advocate for the petitioners at the very outset argued at length in support of his contention that the World Bank is immune from legal process of Bangladesh. As such, issue of immunity is taken first.
14. Article 8 of the International Financial Organizations Order, 1972 (President’s Order No.86 of 1972) is as follows:
“8. Notwithstanding anything to the contrary contained in any other law the provisions of:
(i) Section 2 (b) of Article VIII, Sections 2 to 9 inclusive of Article IX and [Article XXI (b) of, and paragraph 5(d) of Schedule D to, the Fund] Agreement as set out in Part I of the Second Schedule;
(ii) Sections 2 to 9 inclusive of Article VII of the Bank Agreement as set out in Part II of the Second Schedule; and
(iii) Sections 2 to 9 inclusive of Article VIII of the Association Agreement as set out in Part III of the Second Schedule of this Order, shall have the force of law in the People’s Republic of Bangladesh:
Provided that nothing in Section 9 of Article IX of the Fund Agreement or in Section 9 of the Article VII of the Bank Agreement or in Section 9 of Article VIII of the Association Agreement shall be construed as-
(a) entitling the Fund or the Bank or the Association to import into Bangladesh goods free of any duty of customs without any restriction on their subsequent sale therein, or
(b) Conferring on the Fund or Bank or the Association any exemption from duties or taxes which form part of the price of goods sold or which are in fact no more than charges for services rendered.” (emphasis supplied by me)
15. Above quoted Article clearly provides that Sections 2 to 9 of Article VII of the Bank Agreement as set out in part II of the second schedule of the Bank Agreement shall have the force of law in the People’s Republic of Bangladesh.
16. Section 2 of Article VII relates to status of Bank, Section 3 relates to position of the Bank with regard to judicial process, Section 4 regarding immunity of assets from seizure, Section 5 is immunity of Archives, Sections 6 and 7 deals with freedom of assets from restriction and privilege of communication respectively, Section 8 relates to immunities and privileges of officer and employees of the defendant Bank and Section 9 deals with immunities from taxation. For our purpose Section 8 of Article VII is relevant, which is reproduced below.
“Section-8: All governors, executive directors, alternates, officers and employees of the Bank-
(i) Shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives this immunity;
(ii) Not being local nationals, shall be accorded the same immunities from immigration restrictions, alien registration requirements and national service obligations and the same facilities as regards exchange restrictions as are accorded by members to the representatives, officials, and employees of comparable rank of other members;
(iii) Shall be granted the same treatment in respect of traveling facilities as is accorded by members to representatives, officials and employees of comparable rank of other members.”
17. Relating to immunity of the World Bank, Mr. Mahbubey Alam referred judgment of three cases, not from our jurisdiction but from other jurisdictions, first one is the case of Mendaro-Vs- World Bank, decided by the United States Court of Appeals for the District of Columbia Circuit, dated September 27, 1983.
18. I have gone through the judgment. In passing the judgment, the court of appeals for the District of Columbia Circuit, considered “International Organization Immunity Act” which is ‘United States federal law enacted in 1945. It established a special group of foreign or international organizations whose members could work in the United States and enjoy certain exemption from US taxes and search and seizure laws. These advantages are usually given to diplomatic bodies.’ It may be mentioned here that there is no such Act or law in Bangladesh relating to ‘immunity for international organizations’. In deciding the case, the Court of appeals given much emphasis upon Section 1 of Article VII of the Article of Agreement which states that the purpose of the waiver of immunity is “to enable the Bank to fulfill the function with which it is entrusted” and taking into consideration section 1 of the Article VII, the Court of appeals observed that “Thus we cannot construe the vague language of Article VII Section 3 more broadly than necessary to enable the Bank to fulfill its functions.” Section 1 of Article VII of the Articles of Agreement is not adapted in our law i.e. President’s Order No.86 of 1972 as such judgment of Mendaro vs. World Bank is not applicable in this case. In deciding the case of World Bank Group vs. Kevin Wallance, Supreme Court of Canada observed that:
“ To support their theory, the respondents draw this Court’s attention to s.1, which states as follows:
“To enable the [IBRD or IDA] to fulfill the functions with which [they are] entrusted, the status, immunities and privileges [set forth or provided] in this Article shall be accorded to the [IBRD or IDA] in the territories of each member.”
 A plain reading suggests that this is merely a descriptive, purposive clause. It states the reason for according the IBRD and the IDA the immunities set out in Article VII and Article VIII of their respective Articles of Agreement. As the Court of First Instance of Brussels concluded with regards to similar immunities outlined in the governing agreement of the African Development Bank, this kind of purposive clause explains why the enumerated immunities were granted. It is not meant to require international organizations to justify the application of the asserted immunity: Scimet v. African Development Bank (1997), 128 I.L.R. 582, at p. 584. Our conclusion that the provision is only an interpretive aid is further supported by the fact that, unlike ss. 3, 5 and 8, s. 1 is not implemented in Canadian law through the Orders in Council.”
19. Same principle is applicable in this case also. The International Financial Organizations Order, 1972 (P.O. No. 86 of 1972) not incorporated section 1 of the Article VII though incorporated sections 2-9 of article VII of the Articles of Agreement.
20. On perusal of the case of Fucia Adjel and others vs. The Attorney General and others, decided by the High Court of Justice, Ghana, on 30th July 1996, it appears that Ghana has acceded to the United Nation’s Convention on the Privileges and immunities of the specialized agencies with respect to the International Bank for Reconstruction and Development. As such findings of the High Court of Justice, Ghana, cannot help petitioners of this case.
21. It also appears from the counter affidavit that Barrister Syed Ishtiaq Ahmed, the then Adviser, Ministry of Law, Justice and Parliamentary Affairs, Mr. Mahmudul Islam and A. F. Hassan Ariff, both former Attorney General opined in this particular case that the World Bank as a body does not enjoy immunity from legal process, the suit by its employee on the Count of immunity is not barred.
22. Considering facts and circumstances of the cases stated above alongwith opinions annexed with the counter affidavit, I am of the view that courts below justly and correctly apprised the issue in holding that all the immunities granted under Article VII of the Article of Agreement essentially refer to the ‘external activities’ of the World Bank. The immunities claimed under Article VII of the Article of Agreement do not refer to its ‘internal activities’.
23. Mr. Mahbubey Alam also questioned ‘legal character’ of the plaintiff under Section 42 of the Specific Relief Act. He submits that the plaintiff has no legal character to file the suit and the court cannot compel the Bank to reinstate the plaintiff in her job.
24. The question what “legal character” actually meant was considered in detail in the case of Shanta Shamsher Jung Bahadur Rana –Vs- Kamani Brothers Private Ltd., reported in AIR 1959 Bom 201 at page 212. It was laid down in the case that:
“legal character” as used in Section 42 (old) is equivalent to legal status and legal status is a legal right when it involves a peculiarity of the personality arising from anything unconnected with the nature of the act itself which the person of inherence can enforce against the person of incidence.”
25. It was argued by the learned counsel of the petitioner that court cannot reinstate the plaintiff in her job. It is true but order of non confirmation and termination in contravention of ‘Staff Rules’ of the Bank and in violation of the ‘principle of natural justice’ attaches a stigma to her and that stigma can be removed if the Court gives a declaration of continuation of service prayed by the plaintiff. In the case of Vine-Vs- National Dock Labour Board, reported in (1956) 3 All England report 939, their lordships observed:
“the only declaration that was sought and given and was considered sufficient was that the action of the defendants in dismissing the plaintiff was ultravires and invalid. Therefore a declaration that the act of statutory body is illegal and ultravires will compel the body to restore the position which obtained before the act so declared. If the body does not do it, it may make itself liable to be proceeded against.”
26. On the other hand, the non making of such a declaration does not debar the employee from suing for damages not only for wrongful termination but also for the stigma which may have attached to him and it cannot be said that a decree would not afford adequate relief. It would remove a stigma also.
27. Regarding applicability of master and servant relationship and principle of natural justice, our apex Court discussed elaborately in the case of Bangladesh Small Industries Corporation, Dacca, -vs- Mahbub Hossain Chowdhury, reported in 29 DLR (SC) 41. In the case their lordships discussed many English Decisions as well as decisions of this Sub-continent.
28. Relevant portion from the judgment is reproduced below:
“21. The law of master and servant, as applicable for determining the right of an employee dismissed from service is based upon the view that such a right is exclusively founded upon a contract of service between an employer and an employee and that inasmuch as such a contract is incapable of being specifically enforced under the provision of the Specific Relief Act, an action for restoration of the dismissed employee to its former office is not maintainable in law. It conceives a private individual serving another private individual or body for mutual private benefits and the relationship does not involve any element other than the contractual one. In such a case, the employee is interested only in his remuneration, which can be measured solely in monetary value. In the same way, the employer employs the particular individual for his own private purpose which is exclusively his own concern and in which nobody else is interested, and if, in case of a breach of any contractual obligation arising out of the contract of employment, the employer is prepared to forego the service of his employee and at the same time pay the dismissed employee adequate monetary compensation, it is nobody else’s business to be concerned about it. But if the office of employment has got a public character, the relationship transcends the confines of a contractual character and ceases to be the concern of the individuals, namely, the person who dismisses and the person who is dismissed. In such a case, the person who exercises the power of dismissal does so on behalf of public corporation in which the general public or a substantial section of the general public is interested and such power is exercised under some authority of law. He cannot rest cynically content by saying that it is the personal affair of an individual or some individuals whose representative he is, and he is prepared to pay the dismissed employee the necessary compensation, if the order of dismissal is ultimately found to be illegal and that it is nobody else’s business to be bothered about it. The position of the employee is also different from that of one serving a private concern, at least in principle, as he is serving an institution of public benefit in the development and progress of which he also is supposed to be interested. Those are the considerations which naturally lift the cases of public employment out of the strict category of the master and servant rule. In such a case, the terms and conditions of service may also be regulated by some statutory provisions, and the termination of service may be made in violation of such provisions. In that event as well the master and servant rule cannot be invoked in order to deny the relief of reinstatement to the discharged employee. It may be also that the office itself has been created by the Statute where the employee will undoubtedly have a kind of legal status the rights where of may be capable of being enforced.
23. The case of dismissal from the office of a statutory corporation of a public character by giving a charge, however, stands on a different footing and an action for reinstatement may be competent, notwithstanding the fact that the terms and conditions of the said office are regulated by a contract, because the principle of natural justice, audi altarem partem is attracted in such a case. The substance of this principle is expressed in the maxim. ‘no one shall be condemned unheard’ and it means that when a person or a body of persons is invested by some statutory provision with a power to make an order or take a decision which may affect the right or property of another person adversely the exercise of such power is coupled with a duty of acting judicially and of following the principle of natural justice in making the said order or taking the said decision. Simple termination of service without giving a blame or stigma, even though illegal or irregular, will not attract the operation of the principle of natural justice in such a case.
45. It is no doubt true that the English decisions have not been uniform, and sometimes they appear to be perplexing but the distinguished opinion which has been so lucidly expressed in those important decisions or the House of Lords in expounding in an illuminating way the position of an employee of a statutory body having a public character has introduced a great amount of clarity and precision in the understanding of the legal right of such an employee, when excluded from his employment. The principle which has been laid down in these decisions is that when an employee holding a statutory office or having a public character, is dismissed or discharged from his employment, in contravention of a statutory provision or in violation of the principle of natural justice, he is not governed by the ordinary master and servant rule, but is entitled to appropriate relief against the order of dismissal or discharge from his employment.” (emphasis supplied by me)
29. The World Bank was created at the 1944 Bretton Woods conference, alongwith three other institutions, including the International Monetary Fund (IMF). The International Bank for Reconstruction and Development (IBRD) and its concessional lending arms, the International Development Association (IDA), are collectively known as the World Bank as they share the same leadership and staff. Since the Bank’k creation in 1944 at Bretton Woods, New Hampshire, more than 189 nations have joined as members, Bangladesh is one of the member country. The primary role of the World Bank is unbiased distribution of funds for economic upliftment of the international community. The World Bank is owned and governed by it’s member states, but has it’s own executive leadership and staff which conduct it’s normal business operation. The Bank’s member governments are share holders which contribute paid-in-capital and consists of one governor per member country (most often the country’s finance minster or treasury secretary). The Board of Governors delegates most of its authority over daily matters such as lending and operations to the Board of Directors. The Board of Directors consists of 25 executive directors and is chaired by the president of the World Bank Group. The executive directors collectively represents all 189 member states of the World Bank have the right to vote on its matters. The IBRD is governed by the World Bank’s Board of Governors which meets annually. In such view of the matter, I do not find any reason to disagree with the finding of the Court’s below that the World Bank is not an ordinary private organization but a Public International Financial Organization enjoys the status of an inter-governmental body owned by member countries of which the People’s Republic of Bangladesh is also a member country. Both the Courts’ below rightly and justly arrived at a concurrent finding that the Rule of master and servant is not applicable in the present case.
30. Learned counsel for the petitioner argued that defendant Bank provides adequate opportunity to the plaintiff before issuing letter of non-confirmation and termination as such court below wrongly found violation of the principle of natural justice. On that score, finding of the Trial Court after assessing evidence on record, affirmed by the appellate Court below after reassessing the evidence, is reproduced below:
“the defendants did not provide any written assessment to the plaintiff and did not comply the rules and regulations stated in the staff manual. Moreover, the defendants did not claim in their written statement that they followed the procedure which is enumerated in the staff manual. On 13.03.2001, after thirteen months of her joining the operational performance evaluation was given to the plaintiff. No notice was issued to the plaintiff to show cause about her performance evaluated on 13/03/2001. No opportunity of hearing was given to the plaintiff.”
31. It is well established that the essential requirement of natural justice at least include that before someone is condemned he/she is to have an opportunity of defending himself/herself in order that he/she is aware of the charges of allegations or suggestions which he/she has to be meet.
32. The World Bank Administrative Tribunal also observed in its judgment that:
“The tribunal view is that the applicant was denied fair procedures by the bank. The staff rules were not followed in her case and she was not given the opportunities for assessment and improvement which are required for a probationary appointment. The failure to provide her with feedback on her performance or to explain how she could better meet the banks expectations was of particular significance in the case of a staff member in a country office who had no face to face contact with her manager and no ready access to the services and facilities available at headquarters to protect her interest. The treatment of the applicant fell short of appropriate standards of procedural justice and this has effectively caused her harm for which she is entitled to be compensated.”
33. Above finding of the Tribunal itself nullify argument of the learned advocate for petitioner that the plaintiff was given adequate opportunity to defend herself before issuance of letter of non confirmation and termination.
34. From Exhibit-‘7’ it appears that plaintiff’s appointment was for a probationary period of 2(two) years. It also appears from the exhibit that said appointment was an open-ended appointment i.e. there was no fixed term.
35. Type of appointment in the World Bank are specified in the ‘Staff Manual’, marked as Exhibit ‘11’. Type of Open-Ended appointment is specified in the ‘staff manual’ as under:
“2.01 (L) Open Ended Appointment is a full time or part time appointment of indefinite duration made after June 30, 1998 except that a staff member who is appointed at any grade for assignment to a position funded from sources other than the Bank Gourps administrative budget, may be appointed to a coterminous open ended appointment as provided in paragraph 2.02(b).”
36. In view of the above, submission of the learned Advocate for the petitioner that the plaintiff being terminated during her probationary period cannot seek relief against the order of non-confirmation and termination does not hold water.
37. It is well settled position in law that under Section 115 of the Code of Civil Procedure, the High Court cannot re-appreciate the evidence and cannot set aside concurrent findings of court’s below by taking a different view of the evidence. The High Court is empowered only to interfere with findings of fact, if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Court below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction.
38. Going through the impugned judgment and decree, I do not find that the findings recorded by the courts below are perverse and there has been non-application of mind.
39. In the facts and circumstances of the case and for the reasons stated above, I am not inclined to interfere with findings of the court below.
40. Accordingly, the Rule is discharged without any order as to cost.
41. Judgment and decree dated 27.03.2011 passed by the learned Additional District Judge, 6th Court, Dhaka, in Title Appeal No. 186 of 2010 affirming those of dated 28.04.2010 passed by the learned Assistant Judge, Nawabgonj, Dhaka, in Title Suit No.48 of 2010 decreeing the suit, is maintained.
42. Order of stay granted at the time of issuance of the Rule and extended from time to time is hereby vacated.
43. Send down lower courts record alongwith a copy of this judgment to the court concern at once.
Civil Revision No. 3352 of 2011