IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal No. 425 of 1995
Decided On: 27.11.1995
Appellants: Governor, Bangladesh Bank
Vs.
Respondent: Md. Abdul Jabbar
**Hon’ble Judges:**A.T.M. Afzal, C.J., Mustafa Kamal, Latifur Rahman, Mohammad Abdur Rouf and Mohammad Ismailuddin Sarker, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Abu Salek, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record
For Respondents/Defendant: Md. Awlad Ali, Senior Advocate instructed by Md. Wahidullah, Advocate-on-Record
Subject: Employment Laws
Catch Words
Mentioned IN
Prior History:
From the Judgment and Order dated June 5, 1995 passed by the High Court Division, Dhaka in Civil Revision No. 74 of 1987
JUDGMENT
A.T.M. Afzal, C.J.
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Plaintiff-respondent’s suit, Title Suit No. 487 of 1977, of the First Court of Assistant Judge, Khulna for a declaration that the order of dismissal dated 5-10-1976 passed by defendant No. 2 is illegal, ultra vires etc, and that the plaintiff is still in service and further for an order that the plaintiff be re-instated in service with effect from 6-10-1976 was dismissed and the same was upheld in appeal. Upon a revision filed by the plaintiff, Civil Revision No. 274 of 1987, a Single Judge of the High Court Division by the impugned judgment and order dated 5 June, 1995, set aside the judgment and decree of the Courts below and declared that the order of dismissal was passed without any lawful authority and the plaintiff it still in service and further directing the defendants “to allow the plaintiff to resume his duties within 2(two) months and the plaintiff is also entitled to his arrear salary from the date of his dismissal to the date of his resumption of duty.” Now this petition for leave to appeal from the same by the Governor, Bangladesh Bank, defendant No. 1
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Material facts necessary for disposal of this petition are that, the plaintiff-respondent was appointed as coin/note examiner grade II on ad-hoc and temporary basis. On 9 September 1976 he was served with a charge-sheet (Ext. 3) stating that during the course of verification of cancelled notes on 6 September 1976, the verification Branch detected a shortage of 20 pieces of 5 Taka notes each in 4 packets counted by him which showed that he did not count/examine the notes as per procedure laid down in para 94 of the Issue Department Manual thus exhibiting utter carelessness and gross negligence in the performance of his duties and was therefore, called upon to show cause why severe disciplinary action should not be taken against him for such carelessness and negligence. Plaintiff gave a reply denying the allegation. An enquiry was held in which the inquiry officer did not find him guilty of the charge levelled against him but found him guilty of carelessness in the matter of safe keeping of his allotted seal as per provision of para 86 of the aforesaid manual.
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It was argued in the High Court Court Division that the plaintiff was found guilty of an act for which he was not charge-sheeted and thus he was deprived of an opportunity to defend himself for the alleged act for which he was found guilty. It was, therefore, a case of offending the doctrine of audi alteram partem.
Both the Courts below found the plaintiff guilty of the charge of gross negligence for not keeping the allotted seal as above for which he was not chargesheeted.
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The learned Judge found upon the aforesaid facts that there is a violation of the principle of natural justice. It was also found that the formalities which are required to be complied with as per regulation 22(2) of the Bangladesh Bank Staff Regulations have not at all been complied with and thus the order of dismissal was bad in law. Having rejected the other submissions made on behalf of the defendant-petitioner, the learned Judge, as already noticed, made the Rule absolute and set aside the judgment and decree of the Courts below.
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Mr. Abu Salek, learned Advocate for the petitioner, submits that the learned Judge of the High Court Division upon ignoring the provision of Regulation 2 wrongly held that the Staff Regulations of the Bangladesh Bank are applicable to temporary employees like the respondent. The learned Judge was also otherwise wrong in holding that Regulation 22(2) of the said Regulations was not complied with.
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It is not the application of the Staff Regulations which was the deciding factor with the learned Judge, rather his decision mainly was on the ground that respondent was found guilty of an act for which he was not charged thus offending the principle of natural justice. Regulation or no regulation, the petitioner caused an inquiry against the respondent upon a formal chargesheet but he was found not guilty by the Inquiry Officer for the alleged act which was said to be in violation of para 94 of the Issue Department Manual. He was found violating para 86 for which there was no charge and thus he had no opportunity to answer the same.
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Mr. Salek also argued that in terms of his appointment and having regard to section 69 of Establishment Manual and section 2 of the Booklet of Instructions, the service of a temporary employee, as the respondent was, can be terminated without notice. True, but the respondent was dismissed as a punishment on a given charge which was not proved.
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The High Court Division, in our opinion, has not committed any error of law which calls for interference except that the relief as to ‘arrear salary’ was uncalled for as there was no such prayer in the suit nor could it be allowed otherwise in the absence of any finding that the respondent was not in any gainful employment during the period in question. Mr. Awlad Ali, learned Advocate, who entered Caveat for the plaintiff-respondent, could not satisfy us as to the basis of such relief. The proper order should have been to leave the Bank to deal with the period in question in accordance with its Regulations after the respondent resumed his duty. Subject to the deletion of the portion relating to “arrears salary from the date of his dismissal to the date of his resumption of duty”, the impugned order/decree is upheld.
The petition is dismissed subject to modification as above.