High Court Division :
Special Original Jurisdiction)
Naima Haider J
Mustafa Zaman
Islam J
Judgment
April 13th, 2015.
Mostafizur Rahman (Md)
………………………Petitioner
Vs
Rajshahi Krishi Unnayan
Bank, and others ……………
……………. Respondents
Rajshahi Krishi Unnayan Bank Employees Rules, 1988
Regulation 39(8)
The law expressly provides the consequences for failing to complete the disciplinary proceedings within the stipulated period of 180 working days, which is mandatory and not directory in nature. ” …. (12)
Rajshahi Krishi Unnayan Ordinance (LVIII of 1986)
Section 34
Subordinate legislation cannot be given retrospective effect in the absence of authorisation by the parent statute. , …. ,(17)
Service Matter
Since the dismissal order is illegal, the petitioner is entitled to be reinstated with full back wages. …. (21)
Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) vs Bazluf Karim, 16 BLD (AD) 25 ;
Mallick Afzal Hossain vs Bangladesh Jute Mills Corporation, 18 BLD 686 = 5 BLC 62; Golam Mostofa (Md) vs Bangladesh Jute Mills Corporation, 52 DLR 299; Dr Kazi Monowar Hossain vs Bangladesh, 13 BLC 729; Matiur Rahman vs Chowdhury Mafuzul Islam, 8 MLR (AD) 217 = 55 DLR (AD) 104; United Commercial Bank Ltd. vs Rahimafroze Batteries, 7 BLC (AD) 73; Jonaba Dalia Parveen vs Bangladesh Biman Corporation, 16 BLD 357 = 48 DLR 132; Moni Begum vs RAJUK, 46 DLR (AD) 154; D. Chatterjee vs Mansur Ali, 36 DLR 146; Secretary, Ministry of Establishment vs AM Nurunnabi, 53 DLR (AD) 41; SAH Monowar Ali vs BJMC, 62 DLR 1; M/s Hindustan Tin Works vs Employees of Hindustan Tin Works, AIR 1979 (SC) 75 and Lt. Cdr (Retd.) AHM Mahmud vs Masud Ahmed, 63 DLR 149 ref.
Imran A. Siddiq, Advocate -For the Petitioner.
Md Abdul Malek, Advocate -For the Respondent No. 3.
Judgment
Naima Haider J: In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the notification bearing memo no cÖÖKv/Ke¨vwe/-13(9)/37/2000-2001/ 1732(2) dated 9-8-2000 issued by respondent No.5 (Annexure-AI) communicating the decision of the Board of Directors of respondent No.1 Bank disallowing the petitioner’s Appeal and the notification being memo No. cÖKv/Ke¨we/-13(9)34/98-99/4005 dated 6-12-1998 issued by respondent No.5 (Annexure-A) communicating the decision of the Board of Directors of respondent No.1 Bank removing the petitioner from service should not be declared to have been issued without lawful authority and is of no legal effect and/or pass such other or further order or orders passed as to this Court may seem fit and proper.
2. The petitioner’s case, as set out in the writ petition, in brief, is as follows;
The petitioner was born on 31-12-1955 in Gaibandha. On 19th April 1982, the petitioner joined the Bangladesh Krishi Bank as a Probationary Officer. Thereafter, in 1985, the petitioner was promoted to the post of Principal Officer in which post he served until 1991. In 1991, he was promoted to the post of Senior Principal Officer and served in that post until 1994. In 1994, the petitioner was promoted to the post of Assistant General Manager and was removed from service while holding the post of Assistant General Manager.
3. The Rajshahi Krishi Unnayan Bank was established under section 3(1) of the Rajshahi Krishi Unnayan Bank Ordinance 1986 (‘the Ordinance’). According to section 3(2) of the Ordinance, the Bank shall be a body corporate, having perpetual succession and a common seal with the power to acquire, hold and dispose of property, both movable and immovable and shall by the said name, sue and be sued. By section 37(1) of the Ordinance, every officer or employee of Bangladesh Krishi Bank serving within the area of the Administrative Division of Rajshahi shall become, on the commencement of the Ordinance an officer or employee of the Bank and shall hold office on the same terms and conditions and wilh the same rights and privileges as enjoyed by him immediately before such commencement, and shall continue to do so unless and until his employment in the Bank is terminated or until his remunerations or terms and conditions of service are He duly altered by the Bank. As such, on the commencement of the Ordinance, the petitioner became an employee of the Rajshahi Krishi Unnayan Bank (‘the Bank’).
4. The petitioner contends that in 1997, when he was serving in Lalmonirhat as the Regional Manager of the Bank, his wife suddenly fell ill. The petitioner decided to take his wife to India and accordingly, on 4-3-1997, he made an application to the respondent No.2 seeking 90 days earned leave to be counted from 3-5-1997 to 31-7-1997. Upon a deterioration of the medical condition of the petitioner’s wife, the petitioner informed the General Manager (Operations) of the Bank about his decision and prayed for granting 7 days casual leave from 3-5-1997 to 9-5-1997 vide his letter dated 20-4-1997. Upon coming to Dhaka, the petitioner contends that he was advised by doctors to take his wife to the United States to avail better medical treatment. On 8-5-1997, the petitioner left Dhaka for the United States. Prior to his departure, he wrote a letter to the Bank on 8-5-1997 informing the Bank of the medical condition of his wife and prayed for granting of earned leave for a period of 90 days to be counted from 3-5-1997 to 31-7-1997.
5. The petitioner further contends that while in the United States, the Bank drew up departmental proceedings against the petitioner under Rule 39 of the Rajshahi Krishi Unnayan Bank Employees Service Regulations 1988. On 21-8-1997, the respondent No.4 issued a charge sheet against the petitioner containing allegations against him under Regulations 35(Ka), 35(Kha), 35(Ga) and 35(Cha) of the Service Regulations. Upon receipt of the charge sheet, the petitioner made a prayer to the Bank on 29-9-1997 for time till 20-1-1998 to file a written objection against the charges against him. On 21-12-1997, the petitioner filed another application for extension of time from 21-1-1998 to 30-5-1998 to submit written objections against the charge sheet.
6. On 14-1-1998, the respondent No. 5 issued a memo appointing the respondent No. 6 to investigate the matter. On 22-4-1998, the respondent No.6 submitted his investigation report to the respondent No.5. On 9-8-1998, the respondent No. 5 issued a final show cause notice to the petitioner, which was also published in the Daily Ittefaq on 20-8-1998. The petitioner replied to the said show cause notice of the Bank. Thereafter, the Board of Directors of the Bank in its 162nd meeting upon consideration of the charges against the petitioner decided to remove him from service by imposing punishment under Regulation 36(1)(Aa) (Cha) of the Service Regulations. By a memo dated 6-12-1998, the respondent No.5 informed the petitioner of the decision of the Board of Directors dated 12-11-1998 to remove the petitioner from service. Thereafter, on 3-1-1999, the Petitioner appealed to the Bank against the order of his removal from service. However, the Bank in its 191st meeting of the Board of Directors upheld its decision to remove the petitioner from service. On 9-8-2000, the respondent No.5 issued a memo informing the Petitioner of the dismissal of his appeal.
7. Being aggrieved by and dissatisfied with the action of the respondents, the petitioner has moved this Court and obtained the instant Rule Nisi.
8. Respondent No.3, entered appearance by filing affidavit-in-opposition. The case of respondent No.3, in short is that: Respondent No.4 brought 7 allegations which are definite, specific and authentic, charged under Rules 35(ka), 35(Kha), 35(ga) and 35(Cha) of the Regulation and Charge Sheet. Respondent No.6 sent notice to the petitioner in his job place and permanent addresses informing him as to the date, time and venue of the investigation. The provisions of section 39(8) of the Rajshahi Krishi Unnayan Bank Employees Service Regulations, 1988 has already been repealed and thereby Gazette published on 15-5-1996 and thus there is no time limit to take final decision by the authority bank.
9. Mr lmran A. Siddiq, learned Advocate appearing on behalf of the petitioner submits
that the investigation regarding the allegations brought against the petitioner had been carried on beyond the statutory time limit in violation of the provision of section 39(4) of the Regulations, and hence the same has been conducted without jurisdiction. He further contends that the Bank took decision with regard to the allegations brought against the petitioner after about 14 months from the date of notifying the petitioner and thereby went beyond the prescribed limit in contravention of the provision of section 39(8) of the Regulations as such the petitioner is discharged from allegations brought against him by operation of section 39(8) of the Regulations. He lastly canvassed that due to the Bank’s failure to take a decision within a period of 180 working days from the date of notifying the petitioner of the charges and the petitioner has been discharged from the allegation brought against him by operation of section 39(8) of the Regulations and therefore the removal of the petitioner from service is without lawful authority and is of no legal effect.
10. Mr Md Abdul Malek, learned Advocate appearing on behalf of the petitioner submits that the Administrative Tribunals Act, 1980 has been amended in 2011 and the Rajshahi Krishi Unnayan Bank has been included in the schedule of the Administrative Tribunals (Amendment) Act, 2011 as serial No. 11 as “Rajshahi Krishi Unnayan Bank established under the Rajshahi Krishi Unnayan Bank Ordinance, 1986 (Ordinance No. LVII of 1986)” and thereby published in Bangladesh Gazette Extraordinary dated 5th April, 2011 Act No. 60 of 2011. He further submits that the petitioner can seek remedy in Administrative Tribunal. He lastly submits that the petitioner is not an aggrieved person under Article 102 of the Constitution of the People’s Republic of Bangladesh and, as such, the Rule is liable to be discharged with costs.
11. We have perused the writ petition, its annexures, and affidavit-in-opposition filed by respondent No.3 and other materials on record placed before us.
12. Admittedly according to Regulation 39(8), of the Rajshahi Krishi Unnayan Bank Employees Service Regulations, 1988 if the departmental proceedings do not culminate in a final decision of the authorities within a period of 180 working days of the commencement of the proceedings, the employee will be deemed to have been exonerated of the charges against him. In the case in hand we find that on 21-8-1997, the respondent No.4 framed charges against the petitioner under Regulation 35(Ka), 35(Kha), 35(Ga) and 35(Cha) of the Employees Service Regulations. On 12-11-1998, the Board of Directors in its 162nd meeting took a decision to remove the petitioner from service. The said decision was communicated to the petitioner by the impugned memo dated 6-12-1998. It is clear that the charges were framed on 21-8-1997 against the petitioner which culminated in a final decision on 12-11-1998. As such, a total of 321 days elapsed between the date of framing charges and the date of decision of the Bank to remove the petitioner. Accordingly, by virtue of Regulation 39(8) of the Employees Service Regulations, the petitioner is deemed to have been exonerated of all charges on the 180th day following the framing of charges against him. It is a settled principle of law that the consequences for failing to complete the disciplinary proceedings within the stipulated period of 180 working days having been expressly provided in the law, the provision is mandatory in nature and not directory. It was canvassed by Mr Siddiq that on the 180th day after the charges were framed against him, the petitioner stood exonerated of all charges. In order to substantiate his contentions, reliance was placed on Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) vs Bazlul Karim, reported in 16 BLD
(AD) 25, Mallick Afzal Hossain vs Bangladesh Jute Mills Corporation, reported in 18 BLD 686 = 5 BLC 62, Golam Mostofa (Md) vs Bangladesh Jute Mills Corporation, reported in 52 DLR 299 paras 7-11, 14 and Dr Kazi Monowar Hossain vs Bangladesh, reported in 13 BLC 729 para 11.
13. In this context learned Advocate for the respondent No.3 argued that Regulation 39(8) of the Service Regulations has been repealed by an amendment dated 15th May 1996, and that as such, the petitioner cannot take advantage of the said Regulation 39(8) and that under the amended Service Regulations, there is no stipulated time limit for completing the disciplinary proceedings. It was contended by the respondents that in such circumstances, there was no illegality in completing the disciplinary proceedings instituted against the petitioner.
14. Against this backdrop the petitioner had drawn our attention that the aforesaid argument of the respondent No.3 by submitting that the amendment dated 15th May 1996 to the Rajshahi Krishi Unnayan Bank Service Regulations 1988 repealing Regulation 39(8) will not apply in the instant case inasmuch as the petitioner had acquired a right under the unamended Bank Service Regulations of 1988 which cannot be taken away by the retrospective effect of a subsequent amendment. The petitioner relies in this regard on the judgment of the Appellate Division reported in 8 MLR (AD) 217 = 55 DLR (AD) 104 under the case of Matiur Rahman vs Chowdhury Mafuzul Islam.
(To be continued)
15. In that case reported in the 8 MLR case, Matiur Rahman, an Executive Engineer of BADC was appointed under the BADC Service Regulations 1968 but was deprived of promotion to the post of Superintending Engineer in accordance with the 1968 Regulations. The Appellate Division held that the employee had acquired a right under the 1968 Regulations to be considered for promotion which could not be taken away by the subsequent Regulations of 1990. The argument that no accrued rights had been impaired as the employee’s chances of promotion had arisen after coming into operation of the 1990 Service Regulations was rejected by the Appellate Division.
16. Relying on the decision of the Appellate Division reported in 8 MLR (AD) 217, it was contended by the learned Advocate for the petitioner that the petitioner had acquired a right to be governed by and to be treated in accordance with the Bank Service Regulations 1988. Disciplinary proceedings against the petitioner are required to be instituted and completed in strict compliance with the provisions of the 1988 Regulations. Such right cannot be taken away by a retrospective application of the amendment dated 15th May 1996 and, as such, the amendment dated 15-5-1996 shall not apply in the instant case.
17. Taking the facts and law as stated above, we are of the view that the amendment dated 15th May 1996 is in the nature of subordinate legislation, having been framed by the Board of Directors under Section 34 of the Ordinance of 1986. It is settled law that subordinate legislation cannot be given retrospective effect in the absence of authorisation by the parent statute. In this regard, reliance is placed on the decision of the Appellate Division in Ltd. United Commercial Bank Ltd. vs Rahimajroze Batteries Ltd., reported in 7 BLC (AD) 73. It is an admitted fact that the Section 34 of the Ordinance of 1986 does not allow the Board of Directors to pass any law with retrospective effect. As such, there is no question of the amendment dated 15th May 1996 applying with retrospective effect to the facts and circumstances of the instant case. The amendment of 1996 cannot retrospectively affect the petitioner’s substantive rights under the unamended 1988 Service Regulations.
18. The amendment to the 1988 Bank Service Regulations will be applicable on and from the date it was published in the Official Gazette, i.e., 15th May 1996. Thus, only in the case of employees employed by the Bank after 15th May 1996, disciplinary proceedings may be conducted in accordance with the amended Service Regulations. Reliance is placed on the decision of the High Court Division in Jonaba Dalia Parveen vs Bangladesh Biman Corporation, reported in 16 BLD 357 = 48 DLR 132.
19. Another limb of argument advanced by the learned Advocate for the Respondent Bank is that the petitioner has come to the Court at a belated stage. This Court notes that the petitioner challenged the legality of the impugned orders dated 12-11-1998 and 9-8-2000 by filing Administrative Tribunal Case No.3 of 2001. On 29-1-2001, the Administrative Tribunal rejected the case on the ground that the Bank, not being specified in the Schedule to the Administrative Tribunal Act 1980, the same was not a ‘statutory public authority’ within the meaning of Section 2(aa) of the said Act, and that as such the case filed by the petitioner was not maintainable. The petitioner filed an appeal before the Administrative Appellate Tribunal. By an order dated 10-1-2008, the Appellate Tribunal dismissed the appeal. It was brought to our notice by the learned Advocate for the petitioner that the petitioner obtained certified copy of the order of the Tribunal on 30-1-2008 and after obtaining all necessary papers, the writ petition was filed on 8th March 2009.
20. It is a settled principle of law that the High Court Division is the master of its own procedure and it will exercise its substantive and procedural discretions on the basis of justice, equity and good conscience (per Mustafa Kamal J in Moni Begum vs RAJUK reported in 46 DLR (AD) 154). Furthermore, it is has been held in the case of D. Chatterjee vs Mansur Ali, reported in 36 OLR 146 that a ‘bona fide mistake by even a senior counsel is sufficient to condone the delay in filing an appeal’.
21. Reverting back to the case in hand, we find that since the dismissal order is illegal, the petitioner is entitled to be reinstated with full back wages. In this connection reliance is placed on the decision of the Appellate Division in Secretary, Ministry of Establishment vs AM Nurunnabi, reported in 53 DLR (AD) 41, wherein it was observed that it is for the employer to raise the issue that the employee was gainfully employed during the period that he was out of service.
22. During the course of argument, learned Advocate on behalf of the petitioner had submitted that the Bank in its affidavit-in-opposition had not made any averments disputing the petitioner’s contentions of being gainfully employed. As such, the Bank is required to pay the petitioner back-wages for the period during which he was unlawfully out of service. Mr Siddiq also relied on the decision of the High Court Division in SAH Monowar Ali vs BJMC, reported in 62 DLR 1 and the judgment of the Supreme Court of Inddia in M/s Hindustan Tin Works ‘vs Employees of Hindustan Tin Works, reported in AIR 1979 (SC) 75 to substantiate his arguments relating to claim of back-wages.
23. It was on behalf of the Respondents that since the petitioner was in the United States without authorisation from the authorities, it would be inequitable in the facts and circumstances of the case to allow him full back wages. In this regard, upon a query by the Court, the learned Advocate for the petitioner referred to the decision of the High Court Division in Lt. Cdr (Retd.) AHM Mahmud vs Masud Ahmed, reported in 63 DLR 149. In Paragraph 37 of the said judgment, the High Court Division while allowing all back-wages to the petitioner was pleased to deduct the salary for a particular period from his outstanding dues to reflect his laches in pursuing the case with due diligence.
24. Taking the facts in their entirety and in view of the above discussions and observations made hereinbefore, we are inclined to make the Rule absolute.
25. Accordingly, the Rule is made absolute.
26. The notification bearing memo No. cÖKv/Ke¨we-13(9)/37/2000-2001/1732(2) dated 9-8-2000 issued by respondent No. 5 (Annexure-Al) communicating the decision of the Board of Directors of respondent No.1 Bank disallowing the petitioner’s Appeal and the notification being memo No. cÖKv/Ke¨we-13(9)/34/98-99/4005 dated 6-12-1998 issued by respondent No.5 (Annexure-A) communicating the decision of the Board of Directors of respondent No.1 Bank removing the petitioner from service is declared to have been issued without lawful authority and is of no legal effect. The petitioner will be deemed to be in service from the date of his dismissal on 6-12-1998 till the date of his retirement on 31-12-2014.
27. Since the petitioner had wrongly invoked the forum of the Administrative Tribunal to challenge the order of his removal from service, the Respondents are exempted from making any payment of salaries to the petitioner that accrued to him during period from 29-1-2001 to 10-1-2008.
28. The respondent Bank is directed to pay the salary and other benefits accruing to the petitioner for the period from 6-12-1998 to 28-1-2001 and for the period from 11-1-2008 until the date of his retirement on 31-12-2014.
There is no order as to costs.
Special Original Jurisdiction)
Naima Haider J
Mustafa Zaman
Islam J
Judgment
April 13th, 2015.
Mostafizur Rahman (Md)
………………………Petitioner
Vs
Rajshahi Krishi Unnayan
Bank, and others ……………
……………. Respondents
Rajshahi Krishi Unnayan Bank Employees Rules, 1988
Regulation 39(8)
The law expressly provides the consequences for failing to complete the disciplinary proceedings within the stipulated period of 180 working days, which is mandatory and not directory in nature. ” …. (12)
Rajshahi Krishi Unnayan Ordinance (LVIII of 1986)
Section 34
Subordinate legislation cannot be given retrospective effect in the absence of authorisation by the parent statute. , …. ,(17)
Service Matter
Since the dismissal order is illegal, the petitioner is entitled to be reinstated with full back wages. …. (21)
Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) vs Bazluf Karim, 16 BLD (AD) 25 ;
Mallick Afzal Hossain vs Bangladesh Jute Mills Corporation, 18 BLD 686 = 5 BLC 62; Golam Mostofa (Md) vs Bangladesh Jute Mills Corporation, 52 DLR 299; Dr Kazi Monowar Hossain vs Bangladesh, 13 BLC 729; Matiur Rahman vs Chowdhury Mafuzul Islam, 8 MLR (AD) 217 = 55 DLR (AD) 104; United Commercial Bank Ltd. vs Rahimafroze Batteries, 7 BLC (AD) 73; Jonaba Dalia Parveen vs Bangladesh Biman Corporation, 16 BLD 357 = 48 DLR 132; Moni Begum vs RAJUK, 46 DLR (AD) 154; D. Chatterjee vs Mansur Ali, 36 DLR 146; Secretary, Ministry of Establishment vs AM Nurunnabi, 53 DLR (AD) 41; SAH Monowar Ali vs BJMC, 62 DLR 1; M/s Hindustan Tin Works vs Employees of Hindustan Tin Works, AIR 1979 (SC) 75 and Lt. Cdr (Retd.) AHM Mahmud vs Masud Ahmed, 63 DLR 149 ref.
Imran A. Siddiq, Advocate -For the Petitioner.
Md Abdul Malek, Advocate -For the Respondent No. 3.
Judgment
Naima Haider J: In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the notification bearing memo no cÖÖKv/Ke¨vwe/-13(9)/37/2000-2001/ 1732(2) dated 9-8-2000 issued by respondent No.5 (Annexure-AI) communicating the decision of the Board of Directors of respondent No.1 Bank disallowing the petitioner’s Appeal and the notification being memo No. cÖKv/Ke¨we/-13(9)34/98-99/4005 dated 6-12-1998 issued by respondent No.5 (Annexure-A) communicating the decision of the Board of Directors of respondent No.1 Bank removing the petitioner from service should not be declared to have been issued without lawful authority and is of no legal effect and/or pass such other or further order or orders passed as to this Court may seem fit and proper.
2. The petitioner’s case, as set out in the writ petition, in brief, is as follows;
The petitioner was born on 31-12-1955 in Gaibandha. On 19th April 1982, the petitioner joined the Bangladesh Krishi Bank as a Probationary Officer. Thereafter, in 1985, the petitioner was promoted to the post of Principal Officer in which post he served until 1991. In 1991, he was promoted to the post of Senior Principal Officer and served in that post until 1994. In 1994, the petitioner was promoted to the post of Assistant General Manager and was removed from service while holding the post of Assistant General Manager.
3. The Rajshahi Krishi Unnayan Bank was established under section 3(1) of the Rajshahi Krishi Unnayan Bank Ordinance 1986 (‘the Ordinance’). According to section 3(2) of the Ordinance, the Bank shall be a body corporate, having perpetual succession and a common seal with the power to acquire, hold and dispose of property, both movable and immovable and shall by the said name, sue and be sued. By section 37(1) of the Ordinance, every officer or employee of Bangladesh Krishi Bank serving within the area of the Administrative Division of Rajshahi shall become, on the commencement of the Ordinance an officer or employee of the Bank and shall hold office on the same terms and conditions and wilh the same rights and privileges as enjoyed by him immediately before such commencement, and shall continue to do so unless and until his employment in the Bank is terminated or until his remunerations or terms and conditions of service are He duly altered by the Bank. As such, on the commencement of the Ordinance, the petitioner became an employee of the Rajshahi Krishi Unnayan Bank (‘the Bank’).
4. The petitioner contends that in 1997, when he was serving in Lalmonirhat as the Regional Manager of the Bank, his wife suddenly fell ill. The petitioner decided to take his wife to India and accordingly, on 4-3-1997, he made an application to the respondent No.2 seeking 90 days earned leave to be counted from 3-5-1997 to 31-7-1997. Upon a deterioration of the medical condition of the petitioner’s wife, the petitioner informed the General Manager (Operations) of the Bank about his decision and prayed for granting 7 days casual leave from 3-5-1997 to 9-5-1997 vide his letter dated 20-4-1997. Upon coming to Dhaka, the petitioner contends that he was advised by doctors to take his wife to the United States to avail better medical treatment. On 8-5-1997, the petitioner left Dhaka for the United States. Prior to his departure, he wrote a letter to the Bank on 8-5-1997 informing the Bank of the medical condition of his wife and prayed for granting of earned leave for a period of 90 days to be counted from 3-5-1997 to 31-7-1997.
5. The petitioner further contends that while in the United States, the Bank drew up departmental proceedings against the petitioner under Rule 39 of the Rajshahi Krishi Unnayan Bank Employees Service Regulations 1988. On 21-8-1997, the respondent No.4 issued a charge sheet against the petitioner containing allegations against him under Regulations 35(Ka), 35(Kha), 35(Ga) and 35(Cha) of the Service Regulations. Upon receipt of the charge sheet, the petitioner made a prayer to the Bank on 29-9-1997 for time till 20-1-1998 to file a written objection against the charges against him. On 21-12-1997, the petitioner filed another application for extension of time from 21-1-1998 to 30-5-1998 to submit written objections against the charge sheet.
6. On 14-1-1998, the respondent No. 5 issued a memo appointing the respondent No. 6 to investigate the matter. On 22-4-1998, the respondent No.6 submitted his investigation report to the respondent No.5. On 9-8-1998, the respondent No. 5 issued a final show cause notice to the petitioner, which was also published in the Daily Ittefaq on 20-8-1998. The petitioner replied to the said show cause notice of the Bank. Thereafter, the Board of Directors of the Bank in its 162nd meeting upon consideration of the charges against the petitioner decided to remove him from service by imposing punishment under Regulation 36(1)(Aa) (Cha) of the Service Regulations. By a memo dated 6-12-1998, the respondent No.5 informed the petitioner of the decision of the Board of Directors dated 12-11-1998 to remove the petitioner from service. Thereafter, on 3-1-1999, the Petitioner appealed to the Bank against the order of his removal from service. However, the Bank in its 191st meeting of the Board of Directors upheld its decision to remove the petitioner from service. On 9-8-2000, the respondent No.5 issued a memo informing the Petitioner of the dismissal of his appeal.
7. Being aggrieved by and dissatisfied with the action of the respondents, the petitioner has moved this Court and obtained the instant Rule Nisi.
8. Respondent No.3, entered appearance by filing affidavit-in-opposition. The case of respondent No.3, in short is that: Respondent No.4 brought 7 allegations which are definite, specific and authentic, charged under Rules 35(ka), 35(Kha), 35(ga) and 35(Cha) of the Regulation and Charge Sheet. Respondent No.6 sent notice to the petitioner in his job place and permanent addresses informing him as to the date, time and venue of the investigation. The provisions of section 39(8) of the Rajshahi Krishi Unnayan Bank Employees Service Regulations, 1988 has already been repealed and thereby Gazette published on 15-5-1996 and thus there is no time limit to take final decision by the authority bank.
9. Mr lmran A. Siddiq, learned Advocate appearing on behalf of the petitioner submits
that the investigation regarding the allegations brought against the petitioner had been carried on beyond the statutory time limit in violation of the provision of section 39(4) of the Regulations, and hence the same has been conducted without jurisdiction. He further contends that the Bank took decision with regard to the allegations brought against the petitioner after about 14 months from the date of notifying the petitioner and thereby went beyond the prescribed limit in contravention of the provision of section 39(8) of the Regulations as such the petitioner is discharged from allegations brought against him by operation of section 39(8) of the Regulations. He lastly canvassed that due to the Bank’s failure to take a decision within a period of 180 working days from the date of notifying the petitioner of the charges and the petitioner has been discharged from the allegation brought against him by operation of section 39(8) of the Regulations and therefore the removal of the petitioner from service is without lawful authority and is of no legal effect.
10. Mr Md Abdul Malek, learned Advocate appearing on behalf of the petitioner submits that the Administrative Tribunals Act, 1980 has been amended in 2011 and the Rajshahi Krishi Unnayan Bank has been included in the schedule of the Administrative Tribunals (Amendment) Act, 2011 as serial No. 11 as “Rajshahi Krishi Unnayan Bank established under the Rajshahi Krishi Unnayan Bank Ordinance, 1986 (Ordinance No. LVII of 1986)” and thereby published in Bangladesh Gazette Extraordinary dated 5th April, 2011 Act No. 60 of 2011. He further submits that the petitioner can seek remedy in Administrative Tribunal. He lastly submits that the petitioner is not an aggrieved person under Article 102 of the Constitution of the People’s Republic of Bangladesh and, as such, the Rule is liable to be discharged with costs.
11. We have perused the writ petition, its annexures, and affidavit-in-opposition filed by respondent No.3 and other materials on record placed before us.
12. Admittedly according to Regulation 39(8), of the Rajshahi Krishi Unnayan Bank Employees Service Regulations, 1988 if the departmental proceedings do not culminate in a final decision of the authorities within a period of 180 working days of the commencement of the proceedings, the employee will be deemed to have been exonerated of the charges against him. In the case in hand we find that on 21-8-1997, the respondent No.4 framed charges against the petitioner under Regulation 35(Ka), 35(Kha), 35(Ga) and 35(Cha) of the Employees Service Regulations. On 12-11-1998, the Board of Directors in its 162nd meeting took a decision to remove the petitioner from service. The said decision was communicated to the petitioner by the impugned memo dated 6-12-1998. It is clear that the charges were framed on 21-8-1997 against the petitioner which culminated in a final decision on 12-11-1998. As such, a total of 321 days elapsed between the date of framing charges and the date of decision of the Bank to remove the petitioner. Accordingly, by virtue of Regulation 39(8) of the Employees Service Regulations, the petitioner is deemed to have been exonerated of all charges on the 180th day following the framing of charges against him. It is a settled principle of law that the consequences for failing to complete the disciplinary proceedings within the stipulated period of 180 working days having been expressly provided in the law, the provision is mandatory in nature and not directory. It was canvassed by Mr Siddiq that on the 180th day after the charges were framed against him, the petitioner stood exonerated of all charges. In order to substantiate his contentions, reliance was placed on Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) vs Bazlul Karim, reported in 16 BLD
(AD) 25, Mallick Afzal Hossain vs Bangladesh Jute Mills Corporation, reported in 18 BLD 686 = 5 BLC 62, Golam Mostofa (Md) vs Bangladesh Jute Mills Corporation, reported in 52 DLR 299 paras 7-11, 14 and Dr Kazi Monowar Hossain vs Bangladesh, reported in 13 BLC 729 para 11.
13. In this context learned Advocate for the respondent No.3 argued that Regulation 39(8) of the Service Regulations has been repealed by an amendment dated 15th May 1996, and that as such, the petitioner cannot take advantage of the said Regulation 39(8) and that under the amended Service Regulations, there is no stipulated time limit for completing the disciplinary proceedings. It was contended by the respondents that in such circumstances, there was no illegality in completing the disciplinary proceedings instituted against the petitioner.
14. Against this backdrop the petitioner had drawn our attention that the aforesaid argument of the respondent No.3 by submitting that the amendment dated 15th May 1996 to the Rajshahi Krishi Unnayan Bank Service Regulations 1988 repealing Regulation 39(8) will not apply in the instant case inasmuch as the petitioner had acquired a right under the unamended Bank Service Regulations of 1988 which cannot be taken away by the retrospective effect of a subsequent amendment. The petitioner relies in this regard on the judgment of the Appellate Division reported in 8 MLR (AD) 217 = 55 DLR (AD) 104 under the case of Matiur Rahman vs Chowdhury Mafuzul Islam.
(To be continued)
15. In that case reported in the 8 MLR case, Matiur Rahman, an Executive Engineer of BADC was appointed under the BADC Service Regulations 1968 but was deprived of promotion to the post of Superintending Engineer in accordance with the 1968 Regulations. The Appellate Division held that the employee had acquired a right under the 1968 Regulations to be considered for promotion which could not be taken away by the subsequent Regulations of 1990. The argument that no accrued rights had been impaired as the employee’s chances of promotion had arisen after coming into operation of the 1990 Service Regulations was rejected by the Appellate Division.
16. Relying on the decision of the Appellate Division reported in 8 MLR (AD) 217, it was contended by the learned Advocate for the petitioner that the petitioner had acquired a right to be governed by and to be treated in accordance with the Bank Service Regulations 1988. Disciplinary proceedings against the petitioner are required to be instituted and completed in strict compliance with the provisions of the 1988 Regulations. Such right cannot be taken away by a retrospective application of the amendment dated 15th May 1996 and, as such, the amendment dated 15-5-1996 shall not apply in the instant case.
17. Taking the facts and law as stated above, we are of the view that the amendment dated 15th May 1996 is in the nature of subordinate legislation, having been framed by the Board of Directors under Section 34 of the Ordinance of 1986. It is settled law that subordinate legislation cannot be given retrospective effect in the absence of authorisation by the parent statute. In this regard, reliance is placed on the decision of the Appellate Division in Ltd. United Commercial Bank Ltd. vs Rahimajroze Batteries Ltd., reported in 7 BLC (AD) 73. It is an admitted fact that the Section 34 of the Ordinance of 1986 does not allow the Board of Directors to pass any law with retrospective effect. As such, there is no question of the amendment dated 15th May 1996 applying with retrospective effect to the facts and circumstances of the instant case. The amendment of 1996 cannot retrospectively affect the petitioner’s substantive rights under the unamended 1988 Service Regulations.
18. The amendment to the 1988 Bank Service Regulations will be applicable on and from the date it was published in the Official Gazette, i.e., 15th May 1996. Thus, only in the case of employees employed by the Bank after 15th May 1996, disciplinary proceedings may be conducted in accordance with the amended Service Regulations. Reliance is placed on the decision of the High Court Division in Jonaba Dalia Parveen vs Bangladesh Biman Corporation, reported in 16 BLD 357 = 48 DLR 132.
19. Another limb of argument advanced by the learned Advocate for the Respondent Bank is that the petitioner has come to the Court at a belated stage. This Court notes that the petitioner challenged the legality of the impugned orders dated 12-11-1998 and 9-8-2000 by filing Administrative Tribunal Case No.3 of 2001. On 29-1-2001, the Administrative Tribunal rejected the case on the ground that the Bank, not being specified in the Schedule to the Administrative Tribunal Act 1980, the same was not a ‘statutory public authority’ within the meaning of Section 2(aa) of the said Act, and that as such the case filed by the petitioner was not maintainable. The petitioner filed an appeal before the Administrative Appellate Tribunal. By an order dated 10-1-2008, the Appellate Tribunal dismissed the appeal. It was brought to our notice by the learned Advocate for the petitioner that the petitioner obtained certified copy of the order of the Tribunal on 30-1-2008 and after obtaining all necessary papers, the writ petition was filed on 8th March 2009.
20. It is a settled principle of law that the High Court Division is the master of its own procedure and it will exercise its substantive and procedural discretions on the basis of justice, equity and good conscience (per Mustafa Kamal J in Moni Begum vs RAJUK reported in 46 DLR (AD) 154). Furthermore, it is has been held in the case of D. Chatterjee vs Mansur Ali, reported in 36 OLR 146 that a ‘bona fide mistake by even a senior counsel is sufficient to condone the delay in filing an appeal’.
21. Reverting back to the case in hand, we find that since the dismissal order is illegal, the petitioner is entitled to be reinstated with full back wages. In this connection reliance is placed on the decision of the Appellate Division in Secretary, Ministry of Establishment vs AM Nurunnabi, reported in 53 DLR (AD) 41, wherein it was observed that it is for the employer to raise the issue that the employee was gainfully employed during the period that he was out of service.
22. During the course of argument, learned Advocate on behalf of the petitioner had submitted that the Bank in its affidavit-in-opposition had not made any averments disputing the petitioner’s contentions of being gainfully employed. As such, the Bank is required to pay the petitioner back-wages for the period during which he was unlawfully out of service. Mr Siddiq also relied on the decision of the High Court Division in SAH Monowar Ali vs BJMC, reported in 62 DLR 1 and the judgment of the Supreme Court of Inddia in M/s Hindustan Tin Works ‘vs Employees of Hindustan Tin Works, reported in AIR 1979 (SC) 75 to substantiate his arguments relating to claim of back-wages.
23. It was on behalf of the Respondents that since the petitioner was in the United States without authorisation from the authorities, it would be inequitable in the facts and circumstances of the case to allow him full back wages. In this regard, upon a query by the Court, the learned Advocate for the petitioner referred to the decision of the High Court Division in Lt. Cdr (Retd.) AHM Mahmud vs Masud Ahmed, reported in 63 DLR 149. In Paragraph 37 of the said judgment, the High Court Division while allowing all back-wages to the petitioner was pleased to deduct the salary for a particular period from his outstanding dues to reflect his laches in pursuing the case with due diligence.
24. Taking the facts in their entirety and in view of the above discussions and observations made hereinbefore, we are inclined to make the Rule absolute.
25. Accordingly, the Rule is made absolute.
26. The notification bearing memo No. cÖKv/Ke¨we-13(9)/37/2000-2001/1732(2) dated 9-8-2000 issued by respondent No. 5 (Annexure-Al) communicating the decision of the Board of Directors of respondent No.1 Bank disallowing the petitioner’s Appeal and the notification being memo No. cÖKv/Ke¨we-13(9)/34/98-99/4005 dated 6-12-1998 issued by respondent No.5 (Annexure-A) communicating the decision of the Board of Directors of respondent No.1 Bank removing the petitioner from service is declared to have been issued without lawful authority and is of no legal effect. The petitioner will be deemed to be in service from the date of his dismissal on 6-12-1998 till the date of his retirement on 31-12-2014.
27. Since the petitioner had wrongly invoked the forum of the Administrative Tribunal to challenge the order of his removal from service, the Respondents are exempted from making any payment of salaries to the petitioner that accrued to him during period from 29-1-2001 to 10-1-2008.
28. The respondent Bank is directed to pay the salary and other benefits accruing to the petitioner for the period from 6-12-1998 to 28-1-2001 and for the period from 11-1-2008 until the date of his retirement on 31-12-2014.
There is no order as to costs.
