IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)
Writ Petition No. 1180 of 1994
Decided On: 10.06.1996
Appellants: Producers Milk Co-operative Union Ltd.
Vs.
Respondent: Md. Lal Miah and others
**Hon’ble Judges:**Kazi Ebadul Hoque and Amirul Kabir Chowdhury, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: SK. Abul Hossain with M. Ataul Haque, Advocates
For Respondents/Defendant: Garib Newaz, Advocate for the Respondent No. 1
Subject: Contract
Catch Words
Mentioned IN
Case Note:
Co-operative Societies Ordinance. 1984 (1 of 1985)
Section - 134(5)
The District Judge has been empowered to entertain and hear an application at the instance of an aggrieved person against the decision of the appellate authority. The District Judge has thus been vested with the power to revise the decision of the appellate authority on examination of the records of the proceedings of the dispute case and the appeal case if he finds that the appellate authority acted illegally or with material irregularity in deriding the appeal, causing miscarriage of justice. Under Section 134(5) there is hardly any scope for examination of witnesses or for production of fresh documents before the District Judge. The learned Additional District Judge acted illegally and with material irregularity in exercise of his jurisdiction in setting aside the order of the appellate authority on fresh evidence adduced before him instead of deciding the case on the basis of materials already placed before the appellate authority.
Principles of Waiver and Acquiescence
When after the disputed retirement the petitioner received retirement benefits and also served the company for 2 years on contract basis and thereafter filed the dispute case, it is evident that he waived his right to challenge the validity of the order of his retirement.
JUDGMENT
Kazi Ebadul Hoque, J.
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In this Rule at the instance of the petitioner, Bangladesh Milk Producer’s Co-operative Union Ltd. Legality of the judgment and order dated 28. 2. 94 passed by the Additional District Judge. 5th Court, Dhaka in Misc. Case No. 132 of 1992 is under challenge. Learned Advocate appearing for the petitioner submitted that the learned Additional District Judge acted illegally and without jurisdiction in deciding the case and in passing the impugned judgment setting aside the order dated 6.7.92 passed by the appellate officer in appeal case No. 3 of 1992 without considering the materials considered by the appellate authority. He further contended that respondent No. 1 by receiving service benefit after his retirement waived his right to challenge the order of retirement and the learned Additional District Judge acted illegally in examining witnesses and admitting into evidence documents and relying on fresh evidence and in not considering the evidence adduced in the arbitration proceedings or in the appellate proceedings.
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It appears that respondent No. 1 Md. Lal Mia was appointed driver on 1.6.77 and he was retired on 31.3.87 from his service on completion of 57 years of his age on the basis of date of birth furnished by him in his bio-data. Thereafter respondent No. 1 filed dispute case No. 21 of 89 under section 86 of the Cooperative Societies Ordinance 1984 on the ground that in his Bio-data of his date of birth was wrongly typed as 6,1.1930 instead of 15.9.1938. The case was contested by the petitioner stating that respondent No. 1 did not mention his date of birth in his application for appointment but mentioned his age as 38 years and further that he served as supervisor and driver in the Agricultural Department, Comilla from 1962 to 1965. Thereafter he furnished a Bio-data on 7.12.77 incompliance with the direction of the petitioner wherein he mentioned his date of birth as 6.1.1930. So his retirement on completion of 57 years of his age under Rule 12 of the service rules of the petitioner was valid and legal. Respondent No. 1 received his retirement benefit after his retirement, On consideration of his prayer for fresh employment on compassionate ground he was appointed on 19.5.87 on contract basis for one year on humanitarian ground. Thereafter he was employed for another year on contract basis. Thus he accepted his retirement one year on contract basis. Thus he accepted his retirement on 31.3.87 without any objection and waived his claim to challenge the order of retirement. But surprisingly he filed dispute case in 1989 claiming his date of birth as 15.9.1938 in a malafide manner subsequently creating papers in support of his false claim. Date of birth of respondent No. 1 was also recorded in the group insurance policy as 6.1.1930 and premium was paid on that basis. By order dated 25.5.89 award was passed by the arbitrator in the said dispute case No. 21 of 1989 infavour of respondent no. 1 holding that his date of birth was 15.9.1938 and date of his retirement would fall 14.9.95 instead of 31.9.87. The said order was ultimately set aside by order dated 6.7.92 passed by the Deputy Registrar and appellate officer in Appeal Case No. 3 of 1992. Thereafter respondent No. 1 filed Misc. Case No. 132 of 1992 and by the impugned judgment dated 28.2.94 the case was allowed and the order of the appellate officer was set aside. Being aggrieved by the same the petitioner moved this court and obtained the present rule.
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It appears from the impugned judgment that the learned Additional District Judge relied on the evidence of 4 witnesses, adduced by the respondent No. 1 in support of his claim that his date of birth was 15.9.1938 and also on the documents Exts. 1 to 8 produced by him before the learned Additional Judge and did not rely on the evidence of the lone witness of the petitioner and the documents Exts. ‘Ka’ ‘Kha’ and ‘Ga’ produced by the petitioner and held that date of birth of respondent 1 was 15.9.38 and not 6.1.30. So he found that order dated 6.7.92 passed by the appellate officer on 6,7.92 was not legal and reasonable.
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Defendant No. 1 has filed an affidavit-in-opposition to oppose the rule. In paragraph No. 6 and 7 of the said affidavit-in-opposition respondent No. 1 admitted that he submitted a bio-data to the petitioner but disputed the date of birth to be 6.1.1930 and be also admitted that he accepted retirement benefits but he did not deny his date of birth in the group insurance policy to be 6.1.30.
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It appears from award dated 25.5.89 that respondent No. 1 joined service in 1977 showing his age as 38 years at that time in his application for service dated 20.5.77. It further appears that after the order of retirement respondent No. 1 applied for correction of his date of birth producing certain documents. Relying upon those documents arbitrator held that date of birth of the petitioner on 15.9.1938. It appears that the appellate officer on consideration of the record of the dispute case allowed the appeal holding that the arbitrator failed to properly evaluate the documents filed before him. It has already been noticed that the learned Additional District Judge also held that date of birth of the respondent No. 1 was 15.9.38.
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From the above it is clear that the arbitrator as well as the learned Additional ‘District Judge relied upon the documents produced by the respondent No. 1 after his retirement from service for correction of his age. He was retired from service on the basis of the record of his age maintained by the petitioner as given by the respondent No. 1 in his Bio-data. Had the respondent applied for correction of his age before his retirement then the documents produced in support of the same could have been considered. But after his retirement from service there was no scope for correction of his age.
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Admittedly respondent No. 1 received retirement benefits. The petitioner after his retirement and he also served for 2 years on contract basis and thereafter filed the dispute case. Thus it appears that the respondent No. 1 waived his right to challenge the validity of the order of the retirement.
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Section 134 of the Co-operative Societies Ordinance 1984 provides for filing an appeal against an award passed in a dispute case before the appellate authority and an application before the District Judge against the decision of the appellate authority. Sub-section (1) of the said section provides for filing appeal by an aggrieved person to the authority shown in column 3 within the period shown in column 4 against the order shown in column 2 of the Third Schedule of the Ordinance. Sub-section (5) of the said Section 134 provides for filing an application by an aggrieved person against the decision of the appellate authority to the District Judge. In the present case respondent no. 1 being aggrieved by the decision of the appellate authority filed the said Misc. case No. 132 of 1992 before the District Judge. Dhaka and the case was disposed of by the Additional District Judge exercising concurrent jurisdiction to the District Judge by the impugned judgment.
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There is no mention in sub-section (5) of section 134 of the Co-operative Societies Ordinance 1984 or in any other section what procedure should be followed by the District Judge in disposing of an application filed before him by an aggrieved party against the decision of the appellate authority. Section 134 of the now-repealed Co-operative Societies Act. 1940 did not provide for filing any application to the District Judge by an aggrieved person against the decision of the appellate authority but for review and revision of any proceedings of the Registrar or his subordinate officers by the Government under section 135 of that Act. No such power of revision or review has been given to the Government under the provisions of the Co-operative Societies Ordinance, 1984. Instead thereof District Judge has been empowered to entertain and hear an application against decision of the appellate authority. Thus it is clear that the District Judge has been vested with the power to revise the decision of the appellate authority. I le is to see after examination of the records of the proceedings of the dispute case and appeal case, whether the appellate authority acted illegally or with material irregularity in deciding the appeal causing miscarriage of justice. In an application filed before the District Judge under the provisions of sub-section (5) of the section 134 of the said Ordinance there is hardly any scope for examination of witnesses or production of documents afresh before him as he has been empowered only to revise the order of the appellate officer. So the learned Additional District Judge acted illegally and with material irregularity in the exercise of his jurisdiction in not considering the materials relied upon by the appellate authority in passing the appellate order and setting aside the same relying on fresh evidence adduced before him.
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In the above facts and circumstances of the case we find merit in this Rule. In the result, the Rule is made absolute without any order as to costs. The impugned judgment is declared to have been passed without lawful authority and is of no legal effect.