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