(From previous issue) :
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.
(Concluded)
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.
(Concluded)
