(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
AHM Shamsuddin Choudhury J
Judgment
April 28th, 2014
Abdul Mazid (Md) Sarker and 8 others …..Petitioner
vs
Bangladesh and
others…….
…….. Respondents
Constitution of Bangladesh, 1972
Article 105
Review by no means is a re-hearing of the appeal. It is not permissible to embark upon a reiteration of the same contentions as were advanced at the time of hearing of the leave petitions…(17)
Bangladesh Bank vs Md Abdul Mannan, 46 DLR (AD) 1: Lt. Col. Nawabzada Muhammad Amir Khan vs Controller of Estate Duty, Government of Pakistan, PLD 1962 SC 335 = 13 DLR (SC) 105; Secretary Ministry of Finance vs Md Masdar Hossain 21 BLD (AD) 126 = 52 DLR (AD) 82 & 7 BLC (AD) 92 and Tarique Rahman vs Bangladesh 63 DLR (AD) 162 ref.
Rafique-ul-Huq, Senior Advocate with Qumrul Islam Siddique, Advocate instructed by Nurul Islam Chowdhury, Advocate-on-Record–For the Petitioner (In all the Review Petitions).
Shamim Khaled Ahmed Senior Advocate instructed by Sufia Khatun, Advocate-on- Record-For the Respondents (In all the Review Petitions).
Judgment
Md Muzammel Hossain CJ : These Civil Review Petitions, taken up for hearing analogously, are directed against the impugned judgment and order dated 26-7-2009 passed by this Division in Civil Petition for Leave to Appeal Nos. 1309, 1310 and 1317-24 of 2008 heard analogouly and disposed with observation affirming the judgment and order dated 23-3-2008 passed by the Administrative Appellate Tribunal in AAT Appeal Nos, 39 of 2006, 36 of 2006, 32 of 2006, 33 of 2006, 37 of 2006, 40 of 2006, 41 of 2006, 34 of 2006, 37 of 2006 and 35 of 2006 respectively and reversing the judgment and order dated 31-1-2006 passed by the Administrative Tribunal in AT Case Nos.147 of 2005 (New) and 136 of 2004 (old), 144 of 2005 (New) and 133 of 2004 (Old), 140 of 2005 (New) and 129 of 2004 (Old), 141 of 2005 (New) and 130 of 2004 (Old), 145 of 2005 (New) and 134 of 2004 (Old), 148 of 2005 (New) and 137 of 2004 (Old), 149 of 2005 (New) and 138 of 2004 (Old), 142 of 2005 (New) and 131/2004 (Old), 145/2005 (New) and 134/2004 (Old), and 143/2005 (New) and 132 of 2004 (Old) respectively allowing the cases of the petitioners and declaring their termination from service as illegal.
2. The facts, leading to the filing of these civil review petitions in a nutshell, are that the petitioners were Note/Coin Examiner, MLSS., Electric helper, Clerk-cum-typist who had been appointed in their respective service in Bangladesh Bank on different dates and confirmed in their respective posts and as per their claim they have been serving with satisfaction of the concerned authority. On 28-10-2003 at about 2-00 PM some staff of the Bangladesh Bank forcibly entering into the chamber of the Chairman of Bangladesh Bank demanded some illegal facilities and abused the Governor of Bangladesh Bank. In consequence of which a First Information Report (FIR) was lodged, with the Motijheel Police Station on the same date. The General Manager, Human Resources Department, Bangladesh Bank on 30-10-2003 proposed to the Governor of Bangladesh Bank for termination of the services of the petitioners from Bangladesh Bank pursuant to Regulation 13(ii) of the Bangladesh Bank Staff Service Regulations, 2003 stating inter alia, that the occurrence took place on 28-10-2003 and the Deputy Governor and the Governor of Bangladesh accepted and signed the said proposal. Thereafter, the Joint Manager of Bangladesh Bank, Motijheel Branch, issued an order dated 30-10-2003 with the approval of the authority for termination of the services of each of the petitioners. The petitioners preferred appeals against the order dated 30-10-2003 before the Governor of Bangladesh Bank who did not reply to it. Finding no other way, the petitioners filed individual cases before the Administrative Tribunal for setting aside the order dated 30-10-2003. The Administrative Tribunal No-3, Dhaka by the judgment and order dated 3-1-2006 passed in AT Case Nos. 147 of 2005 (New) and 136 of 2004 (old) and 9 (Nine) other AT cases as mentioned above allowed the cases of the petitioners and declared their termination from service as illegal. Against the said judgment and order passed by the Administrative Tribunal the respondents of the instant petitions filed appeals being AAT Appeal Nos. 39 of 2006 and 9 (Nine) other AAT appeals as mentioned above before the Administrative Appellate Tribunal, Dhaka who by a common judgment and order dated 23-3-2008 allowed the appeals and set aside the judgment and order passed by the Administrative Tribunal in all AT cases filed by the petitioners.
3. Being aggrieved by and dissatisfied with the aforesaid judgment and order of the Administrative Appellate Tribunal, the petitioners filed Civil Petition for Leave to Appeal Nos.
1309, 1310 and 1317-1324 of 2008 before this Division. This Division by its judgment and order dated 26-7-2009 disposed of all these leave petitions affirming the judgment and order of the Administrative Appellate Tribunal with observation and direction upon the authority of Bangladesh Bank to the effect that if any situation occurs in future in any appropriate case, the authority shall, with all fairness, take appropriate legal steps against the employees for ends of justice instead of resorting to the shortcut provisions of Rule 13(ii) of the Regulations, 2003.
4. Feeling aggrieved by and dissatisfied with the impugned judgment and order dated 26-7-2009 passed by this Division, the review petitioners filed these instant petitions for review before this Division.
5. While the hearing of the review petition was going on the petitioner Md Abdul Mazid Sarker in Civil Review Petition No. 103 of 2013 submitted an Additional Paper Book with the leave of the Court in which petitioner presented the already discussed facts importing new circumstances. In the Additional Paper Book the petitioner stated that they were the members of Registered Trade Union of Bangladesh Bank having its Registration No. B-1898. The said Trade Union had been elected as the Collective Bargaining Agent (CBA) for the employees of Bangladesh Bank. In exercise of their legal rights and duty in the nature of a trustee, the Officers of the CBA Trade Union had to issue a notice under section 26(1) of the Industrial Relations Ordinance, 1969 to the employer by letter under Memo m~Î bs Rvs Ks ms/41/2003 dated 27-10-2003 raising some demands and speaking about grievances to the authority. Demands so raised was not received positively by the then Governor of Bangladesh Bank rather it was received with grudge and vindictive attitude. Out of the said grudge and decision of victimization on 29-10-2003 Mr Mostaq Aziz, Deputy Director, Bangladesh Bank, Head Office, Dhaka lodged a false FIR with the Motijheel Police Station which was later registered as GR No.4392 of 2003 under sections 143/447/448/341/ 186/189/506 of the Penal Code against the Officers of the CBA Trade Union in Dhaka. On 30-10-2003 the Manager, HRD. Head Office of Bangladesh Bank prepared a note to the effect that on 28-10-2003 some employees and officers uttered some unmannerly language to the Governor for which 10 persons should be terminated from the service of Bangladesh Bank under Regulation 13. On the basis of that note 10 persons including the petitioners were terminated by letter dated 30-10-2003. Amongst those 10 persons, 7 were the President, Executive President, Head Quarters, Vice-President, Secretary, Finance Secretary and Assistant, Finance Secretary of, the CBA Trade Union.
6. The petitioner also submitted that, at the time of preparing the application tiled before the Administrative Tribunal, the petitioner told everything to his learned Advocate but the learned Advocate refused to make these statements before the Administrative Tribunal saying that the Administrative Tribunal would not consider victimization for trade union activities and labour laws are not considered by the Administrative Tribunal.
7. Mr Rafique-ul Huq, learned Senior Advocate appearing for the petitioners submits that the cases of the petitioners are not cases of ‘termination simpliciter’ because as many as 10 employees were terminated thus these were cases of ‘termination enmasse. He submits that in the latest judgment dated 8-11-2009 in Civil Petition for Leave to Appeal Nos. 578-614 of 2009 this Division has affirmed the judgment of the High Court Division dated 11-1-2009 wherein the High Court Division had declared termination of 46 Biman Employees as illegal, void and without lawful authority and that all the Biman employees were terminated in purported exercise of power under Regulation 52(1) of the Bangladesh Biman Employees Service Regulations, 1979, which has also empowered the Biman to terminate the service of a permanent employee by giving 3 months notice or in lieu thereof by payment of 3 months pay. The learned Senior ‘Advocate also refers to the case of Bangladesh, Bank vs Md Abdul Mannan reported in 46 DLR (AD), 1 in support of his arguf!1ent and submits, that while passing the impugned judgment this Division had failed to consider the above mentioned decision of this Division exactly on the same point and that this Division had committed serious error which had led to miscarriage of justice., He contends that this Court had also failed to: consider, that termination of a permanent employee with 1 month pay, in lieu of 1 month notice is opposed to Public Policy and the principle of “Audi Alteram Partem” and the petitioners had not only been condemned unheard but they had been also denied the procedural safeguards of the provision of the Article 135 of the Constitution. He finally submits that review of a judgment is permissible to do complete justice if this Division fails to consider a previous decision exactly on the similar point and, as such, this Division should set aside the impugned judgment and order considering the decision of the above referred case and thereby allow these petitions.
8. Mr Shamim Khaled Ahmed, the learned Senior Advocate for the respondents, supporting the impugned judgment and order, of this Division, submits that the petitioners, miserably failed to make out any case for, review of the impugned judgment and order and all the points raised in this review petitions were addressed and well answered in the impugned judgment and order by this Division in these leave petitioners and therefore, there is nothing left to be reconsidered in these review petitions and, as such, these review petitions are liable to be dismissed.
9. We have heard the learned Advocates for both the parties and perused the Civil Revision Petitions, impugned judgment and order dated 26-7-2009 passed by this Division disposing of the Civil Petitions for Leave to Appeal and all other connected papers on record.
10. In the instant cases we have to decide whether the petitioners have made out their cases for review and whether services of the review petitioners were terminated or dismissed by invoking Regulation 13(ii) of the Bangladesh Bank Staff Regulations, 2003. The Bangladesh Bank Staff Regulations of 2003 is the guiding principle in respect of service of the employees of Bangladesh Bank. Regulation 13 of the Bangladesh Bank Staff Regulations, 2003 provides for termination of service. Regulation 13(ii) reads as under:
“(II) The Bank may determine the service of any employee by calling upon him to resign or otherwise, after the expiry of the period of his probation on giving him three months, notice or pay in lieu thereof if he is an Assistant Director and above, and on giving him one month’s notice or pay in lieu thereof if he is an employee of any other class/category. The power to determine the service of an employee shall be exercised by the Governor with the prior approval of the Board in the case of an Assistant Director and above and by the General Manager of an office or branch with the approval of the Governor in the case of other employees”.
11. Regulation 13(ii) provides that the appropriate Bank Authority may determine the service of any employee after giving him one month’s notice or pay in lieu thereof. In the instant case this Division while disposing of the leave petitions with observation rightly noticed that the Administrative Appellate Tribunal found that the General Manager of Bangladesh Bank being the appropriate authority of the petitioners for termination of their service, terminated their service by order dated 30-10-2003; that the order of termination signed by the Joint Manager (Admn-1) is a mere communicating order as the order was proposed and given by the General Manager with the approval of the Governor and others; that the heading of the order of termination of service is written in BangIa as ÒeiLv¯ÍÓ and within bracket the words “termination of service” were written and the said letters were issued pursuant to Regulation No.13(ii) and erroneously the word ÒeiLv¯ÍÓ was written in BangIa in the order instead of ÒPvKzixP~¨ZÓ and that the Administrative Tribunal wrongly allowed the cases of the petitioners declaring the order dated. 13-10-2003 passed by the respondent null and void and without jurisdiction on the ground that the petitioners were not terminated from their service but they were dismissed from their service in the garb of Regulation 13(ii) though under Regulation 44(i)(g) of the Bangladesh Bank Staff Regulations, 2003 the respondent Bank was empowered to dismiss the petitioners from their service after giving them oppol1unity of being heard as per provision of Article 135(2) of the Constitution. It is to be noted that all the orders of termination of services of the petitioners were in identical terms. In this context it is pertinent to quote in verbatim the order dated 30-10-2003 of termination of service of the petitioner in Civil Review Petition No. 105 of 2010 which reads as under:
???????? ??????
??????, ?????
”????????? ?? ????? ???”
……??????????????
???????? ??????? ??-???????? ? ???/????
????? ? ?? ???????, ????
?? ??????? ????
???????? ??????????? (??????????? ?? ???????) ?
???? ??? ????? ??????, ?????-?? ????
??????? ??????????? ???????????? ???? ?????? ?????-?? ??? ???? ??? ????? ??????, (?????? ????? ???? ?? ???????-??) ?? ?????????? ???? ????? ??????????, ???? ?? ??(??) ????? ? (??) ????? ???? ?????? ?????? ???????? ?????? ???? ??????? (??????????? ?? ???????) ??? ????
?? ??????? ???????? ??????? ?????
???????? ?????
????????/-
(??? ?????? ?????
????? ?????????? (???????-?)”
12. On perusal of the memos dated 30-10-2003 it appears that the petitioners service was terminated by invoking Regulation 13(ii) of the Bangladesh Bank Staff Regulations, 2003 but in the aforesaid letter of termination the word ÒeiLv¯ÍÓ was written though Regulation No. 13(ii) and termination of service was clearly stated in the letter of termination under consideration. We have found that Bangladesh Bank Staff Regulations, 2003 consists of 4 parts. Part-I is the General Part which contains amongst others definitions, employment of temporary staff, appointments, probation, reversion, termination of service, retirement and re-employment and record of service. Part II contains discipline. Part-III contains punishment. In this Part Regulation 44 provides for penalties, 45 provides for inquiry and punishment and 46 enumerates the provisions of appeal and Part IV contains miscellaneous matters like salary, leave, medical attendance, allowances etc.
13. From the scheme and the contents of the Bangladesh Bank Staff Regulations, 2003 it appears that two different provisions namely, Regulation 13 provides for termination of service contained in Part 1 of the Regulations and Regulation 44(1)(f) provides for removal from service and Regulation 44(1)(g) provides for dismissal from service contained in Part III of tile Regulations. In the instant case the services of the petitioners were terminated vide memos dated 30-10-2003 by invoking Regulation 13(ii) of the Bangladesh Bank Staff Regulations, 2003. It seems that mistakenly the word ÒeiLv¯ÍÓ was written in the order of termination of service instead of the correct word “???????????” But in the subject matter of the order the expressions “???????? ???????????” (Termination of service)” were correctly written. Mere using the word ÒeiLv¯ÍÓ mistakenly in the order of termination of service will not make the same “dismissal” because the respondent Bangladesh Bank Authority specifically invoked Regulation 13(ii) in terminating the services of the petitioners with one month’s notice. From a careful reading of Regulation 13(ii) of the Bangladesh Bank Staff Regulations, 2003 it appears that the Appropriate Bank Authority may determine the service of an employee after giving him one month’s notice or pay in lieu thereof.
(To be continued)
The power to determine the service of an employee below the rank of Assistant Director who are classified as “other employees” shall be exercised by the General Manager of an office or Branch with the approval of the Governor of the Bank. In the instant case this Division rightly found that the General Manager made a proposal to the Governor of the Bangladesh Bank for the termination of the services of the petitioners pursuant to Regulation 13 (ii) of the Regulations, 2003. Accordingly, the General Manager terminated the services of the petitioners with the approval of the Governor. Regulation 13 (ii) does not provide for dismissal of the employee and it does not contain any stigma or, punishment against the petitioners. Therefore, this Division in the leave petitions having considered all aspects of the matter disposed of them with observation holding that the Administrative Appellate Tribunal rightly allowed the appeals after setting aside the judgment and order passed by the Administrative Tribunal. We are of the view that the services of the petitioners were rightly terminated by invoking the Regulation 13(ii) of the Bangladesh Bank Staff Regulations, 2003.
14. While speaking about the scope of review the Supreme Court of Pakistan in the case of Lt. Col. Nawabzada Muhammad Amir Khan vs Controller of Estate Duty, Government of Pakistan, reported in PLD 1962 SC 335 = 13 DLR (SC) 105 observed as under:
“To permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against its own judgments or perhaps a jurisdiction to one Bench of the Court to hear appeals against other Benches; and that surely is not the scope of review jurisdiction. No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction.”
15. In the case of Secretary Ministry of Finance vs Md Masdar Hossain reported in 21 BLD (AD) 126 at page 131 para 12 = 7 BLC (AD) 92 this Division reiterated the principle as under:
“a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies where an error apparent on the face of the record exists. It is not a re-hearing of the main appeal. Review is not intended to empower the Court to correct a mistaken view of law, if any, taken in the main judgment. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected by the leave but it does not include the correction of any erroneous view of law taken by the Court.”
16. I n the case of Tarique Rahman vs Bangladesh reported in 63 DLR (AD) 162 at page 172 para 23 in which two of us was party, whi Ie expounding the grounds of review we observed as under:
“In order to review a judgment there must be an error apparent on the face of the record and that this error is so apparent and manifest and clear that no court of law would permit such an error to remain on the record. We arc therefore convinced to reach to the conclusion that the error must not only be apparent it must also have a material bearing on the face of the case”. (n disposing of the Civil Petitions for Leave to Appeal we already considered the same grounds which have been advanced before us in these civil review petitions.
17. In these civil review petitions we do not find any substance in the submissions of Mr Rafique-ul-Huq, the learned Advocate for the petitioners rather we find substance in the submissions of Mr Shamim Khaled Ahmed, the learned Advocate appearing for the respondents to the effect that the grounds taken in the review petitions are in real terms the same grounds which were already considered and repelled in the judgment and order passed by this Division in the above leave petitions. This Division consistently held that review by no means is are-hearing of the appeal. We are, therefore, of the view that in all these civil review petitions the grounds urged by the petitioners are nothing but the grounds taken into consideration and repelled in the leave Petitions. It is therefore not permissible to embark upon a reiteration of the same contentions as were advanced at the time of hearing of the leave petitions.
18. From the above discussions and findings we are of the opinion that there is no error apparent on the face of the record to interfere in the impugned judgment and order passed by this Division in the above leave petitions. There is no legal ground in these civil review petitions for review of the impugned judgment and order passed by this Division in the civil petitions for leave to appeal.
Accordingly, all these civil review petitions are dismissed.
