Bangladesh Bank and others vs. Mohammad Abdul Mannan [1994 14 BLD (AD) 117] & [46 DLR (1994) 1]

Court

Appellate Division

Case Name

Bangladesh Bank and others vs. Mohammad Abdul Mannan

Citation

1994 14 BLD (AD) 117 & 46 DLR (1994) 1

Petition No

Date of Decision

12.07.1993

Name of the Parties

Mohammad Abdul Mannan

Matter

Whether the Administrative Appellate Tribunal is well-founded in Law and fact in holding that the impugned termination is a "punishment in disguise".

Whether the Board of Directors of the Bangladesh Bank, on whose resolution his service was terminated, was itself not properly constituted according to the Bank's Staff Regulations.

Whether the appellant is entitled to equal treatment with all other Public Servants in respect of terms and conditions of service under a statutory body like the Bangladesh Bank Regulation 12 of the Bank (Staff) Regulations, which is violative of the equality-clause of our Constitution, namely, ART. 27.

Factual Background

These two appeals, one filed by Bangladesh Bank and the other by the then General Manager in the Engineering Department of the Bank, Mr. Abdul Mannan, are directed against an Order of the Administrate Appellate Tribunal declaring void an Order of the employer terminating the service of the employee by paying three months, pay in lieu of three months notice. After 8 years' service, on 29 December 1988, he was terminated by the Board of Directors of the Bank under the Bank's Staff Regulation No. (ii). Then he challenged this Order by a Writ Petition before the High Court Division which, after issuing a Rule thereon and hearing the parties, dismissed the Writ Petition on the ground that Writ Jurisdiction was not attracted in this case as it was exclusively within the Jurisdiction of the Administrative Tribunal. Then he filed application before the Administrative Tribunal by challenging his termination alleging that it was a punishment in disguise without giving him an Opportunity to defend himself. After hearing the parties, the Tribunal rejected this contention and dismissed his application. He challenged the Order of the Tribunal by filing an appeal before the Administrative Appellate Tribunal which accepted his contention and found that the Order of termination was a punishment in disguise and that since the Order of termination was made on consideration of certain allegations against the employee, his case attracted
the provision of the Bank's Regulation No. 22 which provided for giving the employee a prehearing, but that having not been done, the Order of termination was illegal and void. However, the Trubunal wrongly rejected his contention that the Board of Directors of the Bank was not properly constituted and the other is that the Appellate Tribunal misconstrued Regulation, 12 (ii), which, according to him, is itself violative of ART. 27 of the Constitution of Bangladesh and also it is inconsistent with the provisions of the Service (Re-organization and Conditions) Act, 1975, as well as the Public Servants' Retirement Act. 1974. On the other hand, the Bank obtained leave from us and filed Civil Appeal in which the main contention is that the Order of termination is in fact a simple Order for termination without giving any stigma to the employee and that Regulation No. 22 is not attracted to his case as this Regulation is intended for awarding any punishment to an employee and that the Appellate Tribunal misinterpreted this Regulation and wrongly interfered with the Order of termination.

Legal Views

It provides that any employee who commits a breach of the Regulations or who displays negligence, inefficiency, or indolence or who knowingly does anything detrimental to the interest of the Bank or who commits breach of discipline or is guilty of any other misconduct etc. shall be liable to penalties, the highest penalty being dismissal from service. The impugned Order of termination shows that this employee has been "released" from his service with the approval of the Board of Directors under Regulation 12 (ii) and that he is entitled to three months' pay in lieu of three months' notice. The word "released" actually means termination of his service and this Order is within four corners of Regulation 12 (ii). It does not contain stigma, nor does it show that the employee's service has been terminated because of any breach of discipline or misconduct. It is also not the case o of this employee that his termination has been made with any malafide intention. How then, he can allege that it is a punishment in disguise?

It may be mentioned here that after the emergence of Bangladesh as an Independent State, the Bangladesh Bank Order President's Order No. 137 of 1972 was made to establish Central Bank in Bangladesh. Article 2(e) thereof says that 'Board' means the Board of Directors of the Bank i.e Bangladesh Bank. By Article 84 thereof, the State Bank Act, 1956, under which the Stale Bank of Pakistan had been created, was repealed, but any Rules and regulations made under the State Bank Act, 1956 " shall continue in force and be deemed to have been made under the corresponding provisions of this Order (P.O. No. 127 of 1972)". The Bank (Staff) Regulations were made by the State Bank of Pakistan and were in force when the Bangladesh Bank Order was promulgated in October 1972 and by Article 84 of P.O. 127 of 1972 these Regulations became Bangladesh Bank Staff) Regulations. In the Bangladesh Bank Order (P.O.127 of 1972) there is no provision for creating any Central Board of Directors, but there shall be a ' Board of Directors' of Bangladesh Bank and it is this Board of Directors which has been vested with all the powers which are required to be exercised by the Bank (Staff) Regulations. It, therefore, cannot be said that the Board of Directors which had taken the
decision for the Appellant's termination was not properly constituted.

Service Rules including the Rule for termination of service of the Corporation's employees by three months' notice or three months' pay in lieu thereof were made under the Bangladesh Parjatan Corporation Order, the President's Order No. 143 of 1972. This Order was not a protected 'Law' under Article 47 of the Constitution and, as such, the question of its immunity from any attack on the ground of violation of any fundamental right could not arise. Certain orders of termination of service passed by the Parjatan Corporation were challenged on different grounds, but no ground as to inconsistency with Article 27 was taken. After the decision was given in that case, an application for review of our judgment was filed by an Advocate other than one who had appeared before us in the Appeal by special leave. There, in the Review petition, the question as to vires of the Corporation's Service Rules was raised and it was argued that the said Rules were violative of Article 27 of the Constitution. In disposing of the Review Petition, we found that the orders of termination had been challenged on the grounds that the Employees-appellants were entitled to protection of ART. 135 of the Constitution, that the principle of natural justice was not followed and that the termination orders were prompted by malafide intention of the employer. All these grounds were rejected upon consideration of the merit of the appeal. But when in the Review Application, an important question relating to interpretation of the Constitution, in particular, ART. 27, was raised for the first time, we took the view that it is altogether a new ground which cannot be subject of review under ART. 105 of the Constitution, read with the provisions
of the relevant Law, namely, Order 47 of the Civil Procedure Code. We, however, expressed our view that the provision for termination of employees of a Statutory Corporation by simply giving him three months' notice or three months' pay is a harsh
Rule capable of being used indiscriminately and that such Rule should be re-examined by the authorities concerned, particularly the Corporation and the Government so as to
amend the Rules providing for giving at least gratuity to a terminated employee according to the length of his service. In the instant case, as we have pointed out, Reg. 12, like its parent Law, being a protected legislation the provision for termination by notice is not void, though it may be inconsistentwith any fundamental right.

Important discussion

Direction

Their service regulations may be amended so as to meet the end of justice as well as the requirement of time

Decision

In the result Civil Appeal No. 42 of 1992 is allowed and Civil Appeal No. 79 of 1992 is dismissed. The impugned Order of the Administrative Appellate Tribunal is set aside and that of the Administrative Tribunal is restored.

Full Judgment

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