(Special Original Jurisdiction)
Farah Mahbub J
ANM Bashir Ullah J
Akhtar U Ahmed ……..
…………..Petitioner
vs
Bangladesh Biman Corporation and others …………. Respondents*
Judgment
July 28th, 2011
Bangladesh Biman Corporation Employees
(Service) Regulations, 1979
Rule 79
Bangladesh Biman Corporation Karmachari (Obasar vhata and anutoshik) Bhidimala, 1988
Rule 17
Since there was no departmental proceeding or criminal case pending at the time of retirement of the petitioner, as such, the petitioner is entitled to get his gratuity, provident fund and pension benefits in accordance with law. .. …. (16)
Abdul Haque vs State, 60 DLR (AD) 1 and Mohammad Jahangir Hossain Howlader vs Chief Metropolitan Magistrate, Dhaka, 26 BLD 83 = 58 DLR 106 ref.
Khairul Alam Chowdhury with Ashique Rubaiat, Advocates-For the petitioner.
Mir Md Joynal Abedin with Mohammad AI-Amin, Advocates-For the respondent Nos. 1 and 2.
Judgment
ANM Bashir U11ah J: This Rule Nisi was issued on an application under Article 102 of the Constitution of the People’s Republic of Bangladesh calling upon the respondents to show cause as to why the respondent No. 1 should not be directed to pay the petitioner his retirement benefits such as pension, gratuity, provident fund and other benefits with interest thereon for delayed payment and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of the Rule, in short, are that the petitioner joined in the erstwhile Pakistan International Airlines Corporation (PIAC) on 5-5-1971 and after the emergence of Bangladesh his service was duly transferred to the Biman Bangladesh Airlines Corporation (in short, Corporation). During the total service period of the petitioner he was posted in various posts and before retiring from service he served in the post of General Manager (Marketing) of Biman, Dhaka. On the completion of successful job he retired from the service with effect from 1-3-2005. After retirement the petitioner approached the Corporation in all the possible ways for allowing him to enjoy the retirement benefits. But the Corporation denied to accord his retirement benefits. Under the compelling circumstances the petitioner issued legal notice requesting the Corporation to pay his retirement benefits as per rules and regulations. In reply to the same the Corporation vide letter dated 8-12-2005 (Annexure E-l) disclosed for the first time that there were some allegations against the petitioner which were under the scrutiny of the Anti Corruption Commission (in short ACC). Since the outcome of the said scrutiny was not known, consequently, the Corporation was not in a position to provide the retirement benefits to the petitioner. It has been contended that, during the whole service period, the petitioner successfully completed his career. However, for dishonour of a cheque issued by M/s Surma Overseas, show cause notice was served upon the petitioner on 29-6-2003 and though for said occurrence he was suspended on 10-6-2003. The petitioner replied. to the said show cause notice stating, inter-alia, that he was not involved in any way with the dishonour of the said cheque. The Corporation being satisfied with the said reply disposed of the proceeding by censuring the petitioner vide letter dated 10-7-2003 (Annexure-B(3). The petitioner while was in London as Country Manager in the Corporation some dispute arose relating to lease of the office equipment and telephone system in London. Though the Corporation brought allegations against the petitioner for his laches in the supervision of the said business but ultimately discharged him from the said allegation with caution vide letter dated 14-1-2004 (Annexure-C). Thereafter, the Corporation itself offered the petitioner vide letter dated 6-7-2004 (Annexure-D) to go into retirement honourably. In reply the petitioner expressed his willingness to accept the said offer with effect from 1-3-2005. Ultimately his retirement was given with effect from the said date. As such, at the time of retirement neither there was any departmental proceeding nor there was any pending criminal proceeding against the petitioner before any law enforcing agency or Court. Hence, there was no reason on the part of the Corporation to deny the petitioner from getting his retirement benefits like provident fund, gratuity and pension benefits etc.
3. It is also stated that the service of the petitioner is guided and regulated by the Bangladesh Biman Corporation employees (Service) Regulations, 1979 (in short, the Regulations) and the Bangladesh Biman Corporation Karmachari (Obasar vhata and anu toshik) Bhidimala, 1988 (in short, the Bhidimala). In view of regulation 79 of the Regulations, the petitioner on the attaining of the age of superannuation is entitled to get gratuity and in view of regulation 66 of the Regulations he is entitled to get his provident fund. Rule 17 of the Bhidimala provides that an employee of the Corporation will not get pension benefits at the time of retirement if he is removed or suspended from the service or there is any departmental proceeding or criminal case pending against the employee or he is found guilty of any departmental proceeding of misconduct or for any other offence. During the long service period there was no departmental proceeding nor any criminal case against the petitioner and he was never found guilty of any misconduct. During his service period he had been suspended once by the Corporation which ended much earlier, as stated herein before. So, there is no legal impediment either in law or in the Regulations and Bhidimala of the Corporation for which the petitioner can be deprived from getting his retirement benefits. The respondents with malafide intention denied to accord the retirement benefits to the petitioner. Under this compelling circumstance the petitioner invoked the writ jurisdiction of this Court.
4. The respondent Nos. 1 and 2 appearing by filing affidavit-in-opposition opposes the Rule stating, inter-alia, that the petitioner served in the Corporation and he retired from the service on 1-3-2005. However, during his service tenure he was cautioned and censured twice for some his misdeeds which caused serious loss and damage to the Corporation worth of Taka 96,59,440. This matter has been referred to the Anti Corruption Commission for investigation, which is still under investigation. As such, till disposal of the investigation by the Anti Corruption Commission he is not entitled to get the retirement benefits.
5. Mr Khairul Alam Chowdhury appearing alongwith Mr Ashique Rubaiat, the learned Advocates on behalf of the petitioner submits that for no fault of the petitioner the Corporation very arbitrarily and whimsically deprived him from getting his retirement benefits. The service of the petitioner is guided by the Bangladesh Biman Corporation Employees (Service) Regulations, 1979 and Bangladesh Biman Corporation Karmachari (Obasar vhata and anutoshik) Bidhimala, 1988 but no where within the 4(four) corners of the said Regulations and Bidhimala it has empowered the authority to withhold his retirement benefits in the absence of any pending departmental or criminal proceeding. The petitioner successfully had completed his long service career in the Corporation though for some trifling reasons on which the petitioner had no control the Corporation issued show cause notices upon him twice but those notices have been disposed of by the Corporation with full satisfaction of all concerned. Under the above prevailing facts and circumstances the Corporation invited the petitioner to go on retirement through administrative order dated 6-7-2004 (Annexure-D) and the said letter of the Corporation goes to show that there was no pending proceeding or criminal case against the petitioner. At the fag end of his service and after his peaceful and lawful retirement a vested quarter in order to stigmatise him sent some allegations to the Anti Corruption Commission which had been disposed of earlier to the full satisfaction of the authority. He accordingly submits that an employee or a person cannot be vexed twice for the selfsame occurrence.
(To be continued)
In this connection the learned Advocate referred the decision of the case of Mohammad ]ahangir Hossain Howlader vs Chief Metropolitan Magistrate, Dhaka reported in 26 BLD 83 = 58 DLR 106. The learned Advocate further submits that the petitioner went on retirement on 1-3-2005 and immediate thereafter his matter was sent to the Anti Corruption Commission. But within last 5/6 years no steps have been taken so far. As such, the financial benefit of an employee should not be withheld on a mere apprehension of filing a criminal case. The learned Advocate further submits that mere inquiry or investigation of an allegation is not a judicial proceeding at all. So, under the above facts and circumstances the Corporation cannot legally withheld the financial benefits of the petitioner which he is legally entitled to albeit the Corporation in colourable exercise of their jurisdiction undermining the existing law, regulations and rules have deprived the petitioner for the last 6 years from enjoying his retirement benefits.
6. Mr Mir Md Joynal Abedin appearing with Mr Mohammad Al-Amin, the learned Advocates for the respondent Nos. 1 and 2 could hardly controvert the submissions of the learned Advocate for the petition regarding the facts of the case, but very vigilantly and vigorously raised the question of maintainability of the Rule. The learned Advocate for the respondent Nos. 1 and 2 submits that this Rule is not maintainable under Article 102 of the Constitution for the petitioner and he could have availed the jurisdiction of the Civil Court in order to get proper relief regarding his service benefits at the time of his retirement. He further submits that during the long period of job the petitioner was censured and cautioned for his misdeeds and that for the action of the petitioner the Corporation sustained huge financial loss. Ultimately, the matter has been referred to the Anti Corruption Commission for a thorough investigation where the matter is still pending. So, before conclusion of the investigation the Corporation is not in a position to allow the petitioner to enjoy his retirement benefits. As such, the Rule is liable to be discharged accordingly.
7. We have considered the submissions of the learned Advocates of both the sides, perused the original Writ Petition, the annexures so have been annexed with the Writ Petition and the affidavit-in-opposition.
8. In this Rule, there is no dispute that the petitioner served in various posts and position under the Corporation from 5-5-1971 to 1-3-2005. It is also admitted that during this long service tenure the petitioner was censured and cautioned twice for his official acts. Ultimately, the matters were dropped accordingly. But when the petitioner reached at the fag end of his service, the Corporation itself invited the petitioner by a letter dated 6-7-2004 (Annexure- D) to go on retirement after completion of his 57 years service which goes on to show that there was no encumbrance on the petitioner at the verge of his service, rather the Corporation plainly invited the petitioner for filing an application to enjoy 6 months LPR. As such, this letter issued by the Corporation is a genuine proof that at the verge of his service career· there was no pending departmental proceeding or criminal case against him arid accordingly the petitioner went on his retirement on 1-3-2005. Since the utmost effort of the petitioner in getting the retirement benefits from the Corporation resulted in vain, ultimately, he issued legal notice to the Corporation demanding justice and in answer to the said notice the Corporation vide Annexure-EI for the petitioner which has been sent to the Anti Corruption Commission for investigation. This reply by the Corporation was made on 8-12-2005, but within the last 6 years no formal criminal case has been lodged against the petitioner pursuant to the said allegations by the ACC.
9. Bangladesh Biman Corporation Employees (Service) Regulations, 1979 and the Bidhimala made under the said regulation goes to show that an employee after completion of his service at the time of retirement will get the gratuity, provident fund and pension benefits. Rule 17 of the Bidhimala provides that no retirement benefit will be given to an employee of the Corporation if he was suspended or removed from the service or there is any departmental proceeding or criminal case pending against him or he has been found guilty of misconduct or any other offence. In view of the letter dated 6-7-2004 (Annexure-D) issued by the Corporation shows that there was no pending departmental proceeding or criminal case against the petitioner at the verge of his retirement. Moreso, the respondent nos. 1 and 2 failed to point out that there is any departmental proceeding pending against the petitioner. As such, said provision is not applicable in the case of the petitioner.
10. Now, we come to the question of investigation pending against the petitioner before the ACC. Even if for the sake of argument it is conceded for a moment that an investigation is I pending against the petitioner before the ACC in that case also an investigation or an FIR is not a pending case at all in the eye of law. In the, case of Abdul Haque vs State, reported in 60 DLR (AD) 1 it is held by the Appellate Division that before taking cognizance of a case by the competent Court or Tribunal, a proceeding cannot be said to be a pending case at all. In this particular case for the last 6 years inquiry into allegation against the petitioner is pending but no criminal case as yet has been filed. As such, mere apprehension of filing of a criminal case is not sufficient for withholding the service benefits of a person at the time of his retirement, The Corporation enmeshed the petitioner for the last 6 years in the prognosis of filing of a criminal case. It is unheard of and ludicrous also that a matter can be pending for investigation by any law enforcing agencies for 5-6 years where the allegation is based on papers. Had there been any genuinity in the allegations brought against the petitioner by the Corporation, the ACC could have filed a case within this long period of 6 years. So, the plea of inquiry or investigation against the petitioner to block his benefits is nothing but a mockery and pantomime on the part of the Corporation. So, it is apparent on the face of the record that the Corporation without any lawful reason just to fulfil their ulterior motive and to harass the petitioner withheld his service benefits which he is legally entitled to on attaining the age of superannuating.
11. The learned Advocate of the petitioner referring the decision of the case of Mohammad Jahangir Hossain Howlader vs Chief Metropolitan Magistrate, Dhaka reported in 26 BLD 83 = 58 DLR 106 submits that a person cannot be vexed twice for the selfsame occurrence. In the above noted reported case, a Division Bench of this Court opined in the following ways that,
“On the basis of the report the Ministry, i.e. the Government exonerated the petitioner from the departmental proceeding. The Government, however, has allowed a criminal case to proceed against the petitioner on the selfsame occurrence such an attitude of the Government in two different forums cannot be accepted”.
12. We find a full scale application of the above findings in this case. In the instant case during the service period of the petitioner the Corporation being satisfied of the reply of the petitioner dropped the matters censuring and cautioning him. So, on the selfsame ground the Corporation had a little scope to refer the matter again to the ACC for filing a case against the petitioner. Accordingly, the action of the Corporation to that effect appears to be highly malafide and intentional.
13. The learned Advocate of the respondents in respect of maintainability of the writ petition submits that the petitioner could have easily invoked jurisdiction of Civil Court to redress his grievances as the dispute in question is very much civil in nature and the Civil Court justifiably could have rendered the efficacious relief to the petitioner, so the Rule is not maintainable in this Court.
14. In reply, the learned Advocate of the petitioner submits that the Corporation with a malafide intention and in colourable exercise of their jurisdiction withheld the retirement benefits of the petitioner without any cogent and lawful reason which is a violation of the petitioner’s fundamental right as guaranteed in Article 31 of the Constitution and the Civil Court is not competent to enforce the fundamental rights of the petitioner. So, this Court in exercising its jurisdiction under Article 102 of the Constitution can ensure efficacious relief to the petitioner.
15. As the respondents, for no fault of the petitioner withheld his retirement benefits although the law has allowed him to enjoy the same, thus, it is clear that the petitioner’s case has not been dealt with in accordance with law as guaranteed in Article 31 of the Constitution of Bangladesh. So, this Court in exercising its jurisdiction under Article 102 of the Constitution is competent enough to enforce the fundamental right of the petitioner which is intended to be infringed by the respondents.
16. Having regard to the above facts we are of the view that the Corporation without any lawful reason withhold the service benefits of the petitioner at the time of his retirement. The Corporation in the hunch of a criminal case which is shrouded for the last 6 years under the garb of so called inquiry and investigation cannot with held the retirement benefits of the petitioner. Since there was no departmental proceeding or criminal case pending at the time of retirement of the petitioner, as such, in view of the provisions of the Regulations and the Bidhimala the petitioner is entitled to get his gratuity, provident fund and pension benefits in accordance with law.
In view of the foregoing narratives, the Rule is made, absolute without any order as to costs. The respondent nos. 1 and 2 are directed to ensure the payment of gratuity, provident fund and pension benefits of the petitioner which he is lawfully entitled in view of Bangladesh Biman Corporation Employees (Service) Regulations, 1979 and Bangladesh Biman Corporation Karmachari (Obasar vhata and anutoshik) Bhidimala, 1988 and also, in accordance with law within 30 (thirty) days from the date of receipt of this judgment and order. In default, the respondent nos. 1 and 2 shall be liable to pay compensation to the petitioner at the rate of Taka 1,000 (one thousand) only per week till payment is made.
