High Court Division :
(Special Original Jurisdiction)
Hasan Foez
Siddique J
Jahangir Hossain J
Shirin Akhter … Petitioner
vs
Secretary, Ministry of Education, Government of Bangladesh and others ….Respondents.
Judgment
August 2nd, 2011
Constitution of Bangladesh, 1972
Article 102(2)
Administrative Tribunal Act (VII of 1981)
Section 4
The petitioner is admittedly heir of the deceased-employee, having no other forum except to invoke writ jurisdiction under Article 102 as she has/had no locus standi to make application before the Tribunal under the Act. . ….. (10)
Constitution of Bangladesh, 1972 Article 102(2)
Admittedly, the deceased husband was removed from service after his death. He was removed from service long after his death. For which the petitioner as heir of the deceased employee in the Republic is entitled to all service benefits as permissible under the law and since the petitioner has no other efficacious remedy by filing any application before the tribunal, the writ petition is maintainable.
…… (9)
Administrative Tribunal Act (VII of 1981)
Section 7A
When an application against any order, decision, dismissal or removal from service is pending before the Tribunal, if the employee or servant of the Republic dies, than his/her heirs can be substituted in the pending proceeding as heirs of the deceased and right to so survive. But there was no case against any order, decision, dismissal or removal pending before the Tribunal when the petitioner’s husband-employee died. Therefore, no question of substitution can be raised for the heirs of the deceased.
Kazi Shamsunnahar vs Commandant Range Reserved Force, 2 BLC 569 ref.
……………(7)
SM Atikur Rahaman, Advocate-For the Petitioner.
Al-Amin Sarker, AAG with Ms Shahida Khatoon, AAGs-For the Respondent.
Judgment
Jahangir Hossain J : On an application a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned office order contained in Memo No. Shishak Anu: Shi:/Ba:/l006/2000/321/7 dated 23-1-2003 dismissing the deceased husband of the petitioner from service (Annexure-D) should not be declared to have been issued without lawful authority and is of no legal effect and why the respondents should not be directed to pay the after death service benefits of the deceased husband of the petitioner including family pension, gratuity and other financial benefits to the petitioner including all arrears since 2003.
2. The relevant facts for disposal of the Rule, in brief, are that the petitioner is the widow of late Minhazuddin Ahmed who was serving as Assistant Teacher in Chandishar Government Primary School, Baishkanda, Dhamrai, Dhaka. Said Minhazuddin Ahmed was absent from attending the school due to his illness. Thereafter, the respondent No.3, the District Primary Education Officer, issued a show cause notice vide Memo No. Anu:Shi:Ba: 1006/2001/3114 dated 13-8-2002 asking the said Minhaz Uddin Ahmed as to why the punishment should not be imposed upon him for unauthorized absence from his service which was never reached in the hand of Minhazuddin Ahmed. Thereafter, 2nd show cause notice vide Memo No. Anu:/Shi:/Ba:/Prosha:/1006/2000 /3707 dated 21-9-2002 was served in order to dismiss him from service. Said notice was also not reached the deceased husband of the petitioner. It has been stated in the petition that Minhazuddin Ahmed expired on 14-10-2002. This demise news was communicated to the respondents by letter dated 9-11-2002 and 12-12-2002 respectively and the petitioner being the heir of the deceased husband repeatedly made request to the respondents to provide provident fund, gratuity and other death pensions benefits, entitled to get it as per law. The respondent No.3, the District Primary Education Officer, vide Memo No. Shikhak Anu: Shi: /Ba:/1006/2000 /321/7 dated 23-1-2003 dismissed the husband of the petitioner from his service, who already died long before.
Thereafter, the petitioner through latter dated 19-2-2007 and 18-1-2008 requested the respondents to give the benefit in accordance with law but the respondents did not pay any heed to the prayers filed by her. It has been further stated that the petitioner served demanding justice notice dated 29-7-2009 upon the respondents to make payment of gratuity, provident fund, family pension and others benefit to the heirs of the deceased Minhazuddin Ahmed but in vain. Thereafter, the petitioner finding no other alternative, moved this court with a petition and obtained the present rule.
3. Mr SM Atiqur Rahman, learned Advocate appearing for the petitioner submits that the order of dismissal after death of the husband of the petitioner is not valid and effective in the eye of law. He submits that the deceased husband of the petitioner could not attend the school due to his sickness suffering from cancer. He further submits that there was no allegation of corruption or any other charge against the husband of the petitioner during his service. The notices issued as clamed by the respondents were not duly served upon the husband of the petitioner when he was alive. Beyond knowledge of the deceased husband a departmental proceeding was illegally initiated by the respondents on the allegation of non-attendance in the service of the school. For which he could not reply to the said notices during the period of his ailment. The learned Advocate for the petitioner further submits that after death of her husband, the petitioner informed the respondent No.3 in writing and repeatedly made request to arrange all benefits entitled as per Service Rules to them. But the respondents did not pay heed to this effect rather issued a dismissal order after his death arbitrarily which is void abinitio, malafide and without lawful authority and is of no legal effect. He submits that since the petitioner has no other efficacious remedy as per Administrative Tribunal Act thereof, the petitioner can invoke writ jurisdiction under Article 102 of the Constitution. In respect of question on maintainability under writ jurisdiction he has relied upon a case of Kazi Shamsunnahar vs Commandant RRF, Khulna reported in 2 BLC 569.
4. On the other hand, Mr Al-Amin Barker with Ms Shahida Khatoon, learned Assistant Attorney Generals appearing on behalf of the respondents submits that the present petition filed by the petitioner is not maintainable as the petitioner is not an employee of the republic. He submits further that if there is any remedy for the petitioner she may file an application before the Administrative Tribunal.
Without exhausting provision of Administrative Tribunal Act, she cannot invoke the summary proceeding under Article 102 of the Constitution before this court. Therefore, the rule issued by this Court should be discharged.
5. Heard the learned Advocates of both the parties, perused the petition along with annexures and other materials on record, wherefrom it appears that the petitioner as the heir of the deceased husband filed the present petition before this court with a prayer for obtaining legal service benefit of the deceased husband as per service rules. Now the question raises before us as to whether the writ petition filed by the petitioner has the locus stand and as to whether the writ petition is maintainable or not. Let us see what has been provided in Section 4 of the Administrative Tribunal Act 1980 regarding the entitlement of filing of suit in order to get remedy, which reads as under:-
4. (1) An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic l[or of any statutory public authority] in respect of the terms and conditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic 2[or of any statutory public authority].
(2) A person in the service of the Republic 3 [or of any statutory public authority] may make an application to an Administrative Tribunal under Sub-section (1), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic 4[or of any statutory public authority]:
Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by in higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic 1[for of any statutory public authority] or the discipline of that service can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter:
2[Provided further that, where no decision on an appeal or application for review in respect of an order, decision or action referred to in the preceding proviso has been taken by the higher administrative authority within a period of two months from the date on which the appeal or application was preferred or made, it shall, on the expiry of such period, be deemed, for the purpose of making an application to the Administrative Tribunals under this section, that such higher authority has disallowed the appeal of the application:]
Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the dale of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be.
(3) In this section “person in the service of the Republic 3[or of any statutory public authority]” includes a person who is or has retired or is dismissed removed or discharged from such service, but does not include a person in the defence-services of Bangladesh 4 [or of the Bangladesh Rifles].
6. It appears from the provision of section 4 of the Administrative Tribunal Act that a servant if being aggrieved by any order of the concerned authority, shall have to go to the Administrative Tribunal for his remedy first, but the petitioner has no that scope to file any application before the Administrative Tribunal as she is not a servant in the Republic. Section 7A says:
2[7 A. (1) Where a person is dismissed or removed from service and an application is made under Section 4 against such removal or dismissal and that person dies during the pendency of the case, the right to sue of that applicant shall survive if his service had been pensionable under any law for the time being in force.
(2) Where the right to sue survives under sub-section (1), such legal representative of the deceased applicant who would have been entitled to the pensionery benefit at the event of the death or retirement of the deceased applicant may be substituted, upon an application, made to the Tribunal or, as the case may be, to the Appellate Division, within sixty days from the date of the death of the applicant.
(3) The legal representative of the deceased, as referred to in sub-section (2), shall be entitled to the pensionery benefit which would have been payable to that deceased if he had been removed or dismissed:
Provided that, such pensionery benefit shall not be payable unless the Tribunal or, as the case may be, the Appellate Division, declares the order of the dismissal or removal, as the case may be, as illegal or void:
Provided further that, for the purpose of this section, the applicant shall be deemed to have died or retired, as the case may be, on the day on which he was removed or dismissed.
7. It has been provided in Section 7 A that when an application against any order, decision, dismissal or removal from service is pending before the Administrative Tribunal, if the employee or servant of the Republic dies, than his/her heirs can be substituted in the pending proceeding as heirs of the deceased and right to so survive. But here, there was no case against any order, decision, dismissal or removal pending before the Administrative Tribunal when the petitioner’s husband-employee died. Therefore, no question of substitution can be raised for the heirs of the deceased.
8. The claim of die petitioner is that the notices issued by the respondent, were not served neither upon the petitioner nor the deceased husband when he was alive. This contention of the petitioner has not been controverted by the respondent upon filing affidavit in-opposition.
9. It appears from the papers submitted by the petitioner that the husband of the petitioner died on 14-10-2002 but the dismissal order of the deceased husband was issued (Annexure-D to the writ petition) on 23-1-2003 after his death. As per provision of law of the land, punishment cannot be imposed upon a dead person. Admittedly, the deceased husband was removed from service after his death, i.e. by issuing annexure-D dated 23-1-2003 to the present writ petition. He was removed from service long after his death. For which the petitioner as heir of the deceased employee in the Republic is entitled to all service benefits as permissible under the law of the land and since the petitioner has no other efficacious remedy by filing any application before the Administrative Tribunal as per Administrative Tribunal Act 1980, the writ petition is maintainable. In the case of Kazi Shamsunnahar vs Commandant Range Reserved Force, reported in 2 BLC 569 wherein it was held that:
“Admittedly the deceased government servant was not removed from service prior to his death but he was removed from service just after his death resulting thereby the government servant died while he was still in the service of the Republic for which the
petitioners as heirs of the government servant are entitled to recover the service benefits as permissible under the law and the writ petition is maintainable.”
10. In the instant case, we do not find any document that the deceased husband of the petitioner was neither found guilty nor removed, nor dismissed from service before his death. So the punishment like dismissal order, served by the respondent upon a dead man is not legal in the eye of law.
Therefore, the impugned office order dated 23-1-2003 (Annexure-D to the writ petition) is ex-facie illegal and the same has been passed without lawful authority and is of no legal effect. It is apparent that the petitioner is admittedly heir of the deceased-employee, having no other forum except to invoke writ jurisdiction under Article 102 of the Constitution as she has/had no locus standi to make application before the Administrative Tribunal under the Administrative Tribunal Act.
11. In view of the fact as above, we are inclined to hold that the petitioner as heir of late Minhazuddin Ahmed is entitled to recover all service benefits including pension, gratuity and others as permissible in law.
12. In the result, the rule is made Absolute without any order as to costs and the impugned office order vide memo No. Shishak Anu: sm:/Ba:/l006/2000/321/7 dated 23-1-2003 is hereby declared to have been made without lawful authority and is of no legal effect.
The respondents are directed to pay all service benefits to the heirs of the deceased employee as per service rules.
(Special Original Jurisdiction)
Hasan Foez
Siddique J
Jahangir Hossain J
Shirin Akhter … Petitioner
vs
Secretary, Ministry of Education, Government of Bangladesh and others ….Respondents.
Judgment
August 2nd, 2011
Constitution of Bangladesh, 1972
Article 102(2)
Administrative Tribunal Act (VII of 1981)
Section 4
The petitioner is admittedly heir of the deceased-employee, having no other forum except to invoke writ jurisdiction under Article 102 as she has/had no locus standi to make application before the Tribunal under the Act. . ….. (10)
Constitution of Bangladesh, 1972 Article 102(2)
Admittedly, the deceased husband was removed from service after his death. He was removed from service long after his death. For which the petitioner as heir of the deceased employee in the Republic is entitled to all service benefits as permissible under the law and since the petitioner has no other efficacious remedy by filing any application before the tribunal, the writ petition is maintainable.
…… (9)
Administrative Tribunal Act (VII of 1981)
Section 7A
When an application against any order, decision, dismissal or removal from service is pending before the Tribunal, if the employee or servant of the Republic dies, than his/her heirs can be substituted in the pending proceeding as heirs of the deceased and right to so survive. But there was no case against any order, decision, dismissal or removal pending before the Tribunal when the petitioner’s husband-employee died. Therefore, no question of substitution can be raised for the heirs of the deceased.
Kazi Shamsunnahar vs Commandant Range Reserved Force, 2 BLC 569 ref.
……………(7)
SM Atikur Rahaman, Advocate-For the Petitioner.
Al-Amin Sarker, AAG with Ms Shahida Khatoon, AAGs-For the Respondent.
Judgment
Jahangir Hossain J : On an application a Rule Nisi was issued calling upon the respondents to show cause as to why the impugned office order contained in Memo No. Shishak Anu: Shi:/Ba:/l006/2000/321/7 dated 23-1-2003 dismissing the deceased husband of the petitioner from service (Annexure-D) should not be declared to have been issued without lawful authority and is of no legal effect and why the respondents should not be directed to pay the after death service benefits of the deceased husband of the petitioner including family pension, gratuity and other financial benefits to the petitioner including all arrears since 2003.
2. The relevant facts for disposal of the Rule, in brief, are that the petitioner is the widow of late Minhazuddin Ahmed who was serving as Assistant Teacher in Chandishar Government Primary School, Baishkanda, Dhamrai, Dhaka. Said Minhazuddin Ahmed was absent from attending the school due to his illness. Thereafter, the respondent No.3, the District Primary Education Officer, issued a show cause notice vide Memo No. Anu:Shi:Ba: 1006/2001/3114 dated 13-8-2002 asking the said Minhaz Uddin Ahmed as to why the punishment should not be imposed upon him for unauthorized absence from his service which was never reached in the hand of Minhazuddin Ahmed. Thereafter, 2nd show cause notice vide Memo No. Anu:/Shi:/Ba:/Prosha:/1006/2000 /3707 dated 21-9-2002 was served in order to dismiss him from service. Said notice was also not reached the deceased husband of the petitioner. It has been stated in the petition that Minhazuddin Ahmed expired on 14-10-2002. This demise news was communicated to the respondents by letter dated 9-11-2002 and 12-12-2002 respectively and the petitioner being the heir of the deceased husband repeatedly made request to the respondents to provide provident fund, gratuity and other death pensions benefits, entitled to get it as per law. The respondent No.3, the District Primary Education Officer, vide Memo No. Shikhak Anu: Shi: /Ba:/1006/2000 /321/7 dated 23-1-2003 dismissed the husband of the petitioner from his service, who already died long before.
Thereafter, the petitioner through latter dated 19-2-2007 and 18-1-2008 requested the respondents to give the benefit in accordance with law but the respondents did not pay any heed to the prayers filed by her. It has been further stated that the petitioner served demanding justice notice dated 29-7-2009 upon the respondents to make payment of gratuity, provident fund, family pension and others benefit to the heirs of the deceased Minhazuddin Ahmed but in vain. Thereafter, the petitioner finding no other alternative, moved this court with a petition and obtained the present rule.
3. Mr SM Atiqur Rahman, learned Advocate appearing for the petitioner submits that the order of dismissal after death of the husband of the petitioner is not valid and effective in the eye of law. He submits that the deceased husband of the petitioner could not attend the school due to his sickness suffering from cancer. He further submits that there was no allegation of corruption or any other charge against the husband of the petitioner during his service. The notices issued as clamed by the respondents were not duly served upon the husband of the petitioner when he was alive. Beyond knowledge of the deceased husband a departmental proceeding was illegally initiated by the respondents on the allegation of non-attendance in the service of the school. For which he could not reply to the said notices during the period of his ailment. The learned Advocate for the petitioner further submits that after death of her husband, the petitioner informed the respondent No.3 in writing and repeatedly made request to arrange all benefits entitled as per Service Rules to them. But the respondents did not pay heed to this effect rather issued a dismissal order after his death arbitrarily which is void abinitio, malafide and without lawful authority and is of no legal effect. He submits that since the petitioner has no other efficacious remedy as per Administrative Tribunal Act thereof, the petitioner can invoke writ jurisdiction under Article 102 of the Constitution. In respect of question on maintainability under writ jurisdiction he has relied upon a case of Kazi Shamsunnahar vs Commandant RRF, Khulna reported in 2 BLC 569.
4. On the other hand, Mr Al-Amin Barker with Ms Shahida Khatoon, learned Assistant Attorney Generals appearing on behalf of the respondents submits that the present petition filed by the petitioner is not maintainable as the petitioner is not an employee of the republic. He submits further that if there is any remedy for the petitioner she may file an application before the Administrative Tribunal.
Without exhausting provision of Administrative Tribunal Act, she cannot invoke the summary proceeding under Article 102 of the Constitution before this court. Therefore, the rule issued by this Court should be discharged.
5. Heard the learned Advocates of both the parties, perused the petition along with annexures and other materials on record, wherefrom it appears that the petitioner as the heir of the deceased husband filed the present petition before this court with a prayer for obtaining legal service benefit of the deceased husband as per service rules. Now the question raises before us as to whether the writ petition filed by the petitioner has the locus stand and as to whether the writ petition is maintainable or not. Let us see what has been provided in Section 4 of the Administrative Tribunal Act 1980 regarding the entitlement of filing of suit in order to get remedy, which reads as under:-
4. (1) An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic l[or of any statutory public authority] in respect of the terms and conditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic 2[or of any statutory public authority].
(2) A person in the service of the Republic 3 [or of any statutory public authority] may make an application to an Administrative Tribunal under Sub-section (1), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic 4[or of any statutory public authority]:
Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by in higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic 1[for of any statutory public authority] or the discipline of that service can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter:
2[Provided further that, where no decision on an appeal or application for review in respect of an order, decision or action referred to in the preceding proviso has been taken by the higher administrative authority within a period of two months from the date on which the appeal or application was preferred or made, it shall, on the expiry of such period, be deemed, for the purpose of making an application to the Administrative Tribunals under this section, that such higher authority has disallowed the appeal of the application:]
Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the dale of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be.
(3) In this section “person in the service of the Republic 3[or of any statutory public authority]” includes a person who is or has retired or is dismissed removed or discharged from such service, but does not include a person in the defence-services of Bangladesh 4 [or of the Bangladesh Rifles].
6. It appears from the provision of section 4 of the Administrative Tribunal Act that a servant if being aggrieved by any order of the concerned authority, shall have to go to the Administrative Tribunal for his remedy first, but the petitioner has no that scope to file any application before the Administrative Tribunal as she is not a servant in the Republic. Section 7A says:
2[7 A. (1) Where a person is dismissed or removed from service and an application is made under Section 4 against such removal or dismissal and that person dies during the pendency of the case, the right to sue of that applicant shall survive if his service had been pensionable under any law for the time being in force.
(2) Where the right to sue survives under sub-section (1), such legal representative of the deceased applicant who would have been entitled to the pensionery benefit at the event of the death or retirement of the deceased applicant may be substituted, upon an application, made to the Tribunal or, as the case may be, to the Appellate Division, within sixty days from the date of the death of the applicant.
(3) The legal representative of the deceased, as referred to in sub-section (2), shall be entitled to the pensionery benefit which would have been payable to that deceased if he had been removed or dismissed:
Provided that, such pensionery benefit shall not be payable unless the Tribunal or, as the case may be, the Appellate Division, declares the order of the dismissal or removal, as the case may be, as illegal or void:
Provided further that, for the purpose of this section, the applicant shall be deemed to have died or retired, as the case may be, on the day on which he was removed or dismissed.
7. It has been provided in Section 7 A that when an application against any order, decision, dismissal or removal from service is pending before the Administrative Tribunal, if the employee or servant of the Republic dies, than his/her heirs can be substituted in the pending proceeding as heirs of the deceased and right to so survive. But here, there was no case against any order, decision, dismissal or removal pending before the Administrative Tribunal when the petitioner’s husband-employee died. Therefore, no question of substitution can be raised for the heirs of the deceased.
8. The claim of die petitioner is that the notices issued by the respondent, were not served neither upon the petitioner nor the deceased husband when he was alive. This contention of the petitioner has not been controverted by the respondent upon filing affidavit in-opposition.
9. It appears from the papers submitted by the petitioner that the husband of the petitioner died on 14-10-2002 but the dismissal order of the deceased husband was issued (Annexure-D to the writ petition) on 23-1-2003 after his death. As per provision of law of the land, punishment cannot be imposed upon a dead person. Admittedly, the deceased husband was removed from service after his death, i.e. by issuing annexure-D dated 23-1-2003 to the present writ petition. He was removed from service long after his death. For which the petitioner as heir of the deceased employee in the Republic is entitled to all service benefits as permissible under the law of the land and since the petitioner has no other efficacious remedy by filing any application before the Administrative Tribunal as per Administrative Tribunal Act 1980, the writ petition is maintainable. In the case of Kazi Shamsunnahar vs Commandant Range Reserved Force, reported in 2 BLC 569 wherein it was held that:
“Admittedly the deceased government servant was not removed from service prior to his death but he was removed from service just after his death resulting thereby the government servant died while he was still in the service of the Republic for which the
petitioners as heirs of the government servant are entitled to recover the service benefits as permissible under the law and the writ petition is maintainable.”
10. In the instant case, we do not find any document that the deceased husband of the petitioner was neither found guilty nor removed, nor dismissed from service before his death. So the punishment like dismissal order, served by the respondent upon a dead man is not legal in the eye of law.
Therefore, the impugned office order dated 23-1-2003 (Annexure-D to the writ petition) is ex-facie illegal and the same has been passed without lawful authority and is of no legal effect. It is apparent that the petitioner is admittedly heir of the deceased-employee, having no other forum except to invoke writ jurisdiction under Article 102 of the Constitution as she has/had no locus standi to make application before the Administrative Tribunal under the Administrative Tribunal Act.
11. In view of the fact as above, we are inclined to hold that the petitioner as heir of late Minhazuddin Ahmed is entitled to recover all service benefits including pension, gratuity and others as permissible in law.
12. In the result, the rule is made Absolute without any order as to costs and the impugned office order vide memo No. Shishak Anu: sm:/Ba:/l006/2000/321/7 dated 23-1-2003 is hereby declared to have been made without lawful authority and is of no legal effect.
The respondents are directed to pay all service benefits to the heirs of the deceased employee as per service rules.
