Rule 5(57)
|
"Traveling allowance"-It varies upon the circumstances of each journey
undertaken by an employee.
Government of People's Republic of Bangladesh represented by the Secretary
Ministry of Labour and Manpower, Bangladesh Secretariat Dhaka vs Hasan
Movies Ltd and others 48 DLR (AD) 40.
|
Government of People's Republic of Bangladesh represented by the Secretary Ministry of Labour and Manpower, Bangladesh Secretariat Dhaka vs Hasan Movies Ltd and others |
48 DLR (AD) 40 |
Rule 9
|
Service record counted when the date of birth entered in the service or
SSC–
Rule 9 of Bangladesh Service Rules (Part-I), where it has been stated as
under:
"বিধি-৯। সরকারী চাকরিতে
প্রবেশের সময় বা প্রবেশের
উদ্দেশে একজন আবেদনকারী যে
বয়স ঘোষনা করেন, উহাই তাহার
ক্ষেত্রে আবশিকভাবে
প্রযোজ্য হইবে এবং
পরবরতীকালে কোন উদ্দেশেই
তাহা সংশোধনের অনুমতি দেওয়া
যাইবে না।"
The case of Randir Singh Vs. The Sate of Rajastan and others reported in
1992(2) ESC 435 (Raj) where it has been observed that the respondents were
duty bound to scrutinize the documents right at the time of admission
rather than punishing at a belated stage.
(1995) 4 SCC 172 the Indian Supreme Court held that when the date of birth
entered in the service and leave record on the basis of voluntary
declaration made by the employee at the time of appointment authenticated
by him and never objected to up to the fag end of service such action of
any party will act as acquiescence and when a party expresses acquiescence
and thereby waived a right to dispute he will be estopped from making any
such dispute at the end of the service.
Reported in 15 MLR (AD) 65, this Division held that when by an act, conduct
or consent, express or implied a person allows another person to proceed in
doing some act or transaction with bona fide belief, such conduct or
consent of the person so allowing constitutes waiver and acquiescence and
the said person is stopped from claiming any right subsequent thereto
against the person acting under such assurance.
We are of the view that since the order impugned before the High Court
Division had been issued after retirement of the writ-petitioner-respondent
he cannot be treated in the service of the Republic. Thus issuance of the
order impugned before the High Court Division upon the
writ-petitioner-respondent, when he was not actually in the service can be
challenged under Article 102 of the Constitution. We do not find any
substance in this appeal. Accordingly, this civil appeal is dismissed
without any order as to costs. …Ministry of Social Welfare, Bangladesh
=VS= Akterun Nabi(Md.), (Civil), 2019 (2) [7 LM (AD) 63]
....View Full Judgment
|
Ministry of Social Welfare, Bangladesh =VS= Akterun Nabi(Md.) |
7 LM (AD) 63 |
Rule 9
|
Under rule 9 of the BSR Part I date of birth declared and recorded at the
time of entry into service cannot be changed subsequently.
Bangladesh Agricultural Development Corporation Vs. Abdul Barek Dewan
being dead his heirs Bali Begum and others 4, MLR (1999) (AD) 167.
|
Bangladesh Agricultural Development Corporation Vs. Abdul Barek Dewan being dead his heirs Bali Begum and others |
4 MLR (AD) 167 |
Rule 24(1)
|
lf Class III and Class IV employees have been exempted from operation of
rule 24(1) then it is an improvement in their general condition of service.
If any authority violates this improved condition of service then it is a
clear violation of the general conditions of service of that employee.
Government of Bangladesh and Ors vs Mohammad Faruque 51 DLR (AD) 112.
|
Government of Bangladesh and Ors vs Mohammad Faruque |
51 DLR (AD) 112 |
Rule 24(1)
|
Under Rule 24(1) of Bangladesh Service Rules Government Servant may be
transferred from one post to another. This is a term and conditions of
service of a Government servant If Class III and Class IV employees have
been exempted from operation of Rule 24(1) then it is an improvement in
their general condition of service. If any authority violates the said
improved condition of service and transfers a Class III or Class IV
employee from one station to another then it is a clean violation of the
general conditions of service of that employee.
Government of Bangladesh and ors., Vs Mohammad Faruque, 18 BLD (AD) 277.
|
Government of Bangladesh and ors., Vs Mohammad Faruque |
18 BLD (AD) 277 |
Rule 34
|
The plea of waiver or acquiescence is not available in respect of violation
of any law. If it is violated, the Court is bound to say so, no matter when
it is raised– The Administrative Appellate Tribunal miserably failed to
notice that in the instant case there found no application of the said
“special circumstances of the case” by the Government. Rather the then
Director General applied the said “special circumstances of the case’
concerning the unauthorized leave of absence of the respondent for 07 years
and 07 months and 24 days from his work. As the Director General was not
empowered to act under rule 34, his alleged application of the said
“special circumstances of the case’ was not only without lawful
authority but also void ab intio. What is void ab initio, that cannot be
validated later in any way. Appellate Division opines that the
Administrative Appellate Tribunal erred in law in interfering with the
judgment and order of the Administrative Tribunal. The Government is at
liberty in taking initiative for refunding the amount paid to the
respondent-petitioner as pay and allowances. .....Ministry of Planning,
Bangladesh =VS= Sayed Mahabubul Karim, (Civil), 2022(2) [13 LM (AD) 157]
....View Full Judgment
|
Ministry of Planning, Bangladesh =VS= Sayed Mahabubul Karim |
13 LM (AD) 157 |
Rule 34
|
Bangladesh Service Rules(1st Part)
Rule 34
It is unambiguous from the phraseology of the rule 34 of the BSR that when
continuous absence from work exceeds five years, be the absence with or
without leave; the service of a Government servant will come to an end.
Yet, the Government and only the Government may make a diverse conclusion
upon taking into consideration any special state of affairs. Consequently,
this mechanical ceasing of the service is subject to the ability of the
Government to take a different decision in the light of out of the ordinary
situation. …Bangladesh and another Vs. Sayed Mahabubul Karim, (Civil), 16
SCOB [2022] AD 46
....View Full Judgment
|
Bangladesh and another Vs. Sayed Mahabubul Karim |
16 SCOB [2022] AD 46 |
Rule 34
|
A Government servant ceases to be in service in consequence of his
continuous absence from duties for more than five years without leave—
In the instant case the respondent filed the application u/s 4(1) before
taking any decision by the departmental higher authority and as such the
application is held not maintainable. Moreover the respondent tendered his
resignation and remained absent from duty for more than 25 years without
leave and in consequence whereof he ceased to be in the government
employment as provided under rule 34 of the BSR Part-I. The apex court held
the impugned judgment of the Administrative Tribunal and Administrative
Appellate Tribunal illegal and set-aside the same. Government of
Bangladesh, represented by the Secretary, Ministry of Food and others Vs.
A.B.M Siddique Mia 15 MLR (2010) (AD) 460.
|
Government of Bangladesh, represented by the Secretary, Ministry of Food and others Vs. A.B.M Siddique Mia |
15 MLR (AD) 460 |
Rule 34
|
Writ-petitioner allowed to join her post–
We are of the opinion that the decision of the concerned authority to treat
the service of the writ-petitioner as ceased, without considering any
special circumstances put forward by her, is in violation of rule 34 of the
BSR. Hence, the writ-petitioner-respondent No.1 must be allowed to join her
post. The writ-respondents are directed to accept the joining letter of the
writ-petitioner. However, in view of her absence from service, we are of
the opinion that the writ-petitioner will not be entitled to receive any
arrear salary. ...Government of Bangladesh =VS= Dr. Monija Begum, (Civil),
2019 (1) [6 LM (AD) 35]
....View Full Judgment
|
Government of Bangladesh =VS= Dr. Monija Begum |
6 LM (AD) 35 |
Rule 42
|
Bangladesh Service Rules, Part-1
Rule 42
Bengal Statue 1781, Bengal Regulation No.1793, Act of 1964, Act of 1865,
Act of 1871, Act of 1877 and Act 16 of 1908, Act of 1964
Service (Reorganization and Condition) Act, 1975
Constitution of Bangladesh, 1972
Article 102, 105
Supreme Court of Bangladesh (Appellate Division) Rules, 1988
Order XXVI
Code of Civil Procedure, 1908
Order XLVII, rule 1
Extra Mohorars— Writ-petitioners are entitled to united grades and pay of
scale, equal pay and other benefits of service— The
respondents-writ-petitioners invoked writ jurisdiction under Article 102 of
the Constitution to protect their rights as Government employees and
against hostile and discriminatory action of the appellant-writ respondents
as such writ petition is very much maintainable. .....Ministry of Law,
Bangladesh =VS= Abdur Rahman Bhuiyan, (Civil), 2024(1) [16 LM (AD) 35]
....View Full Judgment
|
Ministry of Law, Bangladesh =VS= Abdur Rahman Bhuiyan |
16 LM (AD) 35 |
Rule 45
|
Government Servants (Discipline and Appeal) Rules, 1985
Rule 4(b), 4(2)(b)
The Bangladesh Service Rules (Part-II)
Rule 45
The Jail Code
Rule 194
Increments can be withheld for a specified period– In ordering the
withholding of an increment the withholding authority shall state the
period for which it is withheld, and whether the postponement shall have
the effect of postponing future increments. The same principle has been
followed in Rule 4(b) of the Government Servants (Discipline and Appeal)
Rules, 1985. It is quite evident from the Fundamental Rule 24 that
increments can be withheld for a specified period and it is to be stated
whether the postponement shall have the effect of postponing future
increments. But in the instant case the two annual increments of the
petitioner had been stopped permanently and it was not stated whether the
said postponement of the annual increment shall affect the future
increments, which is derogatory to the Fundamental Rule 24. It is,
therefore, clear that the appellants passed the impugned orders by
violating the Rule 24 of the Fundamental Rules; the Rule 45 of the B.S.R.
(Part-II); the Rule 4(2)(b) of the Government servants (Discipline &
Appeal) Rules, 1985 and the Rule 194 of the Jail Code. .....Government of
Bangladesh =VS= Mohd. Bazlur Rashid Akand, (Civil), 2022(1) [12 LM (AD) 19]
....View Full Judgment
|
Government of Bangladesh =VS= Mohd. Bazlur Rashid Akand |
12 LM (AD) 19 |
Rule 52
|
Rule-52 read with Fundamental Rule-29
The punishment inflicted upon the appellant by the domestic tribunal is
defective for not fixing any time limit for the reduction in rank. For this
defect the penalty itself cannot be set aside, but only modified. This will
not only be in conformity with Rule 52 of the Bangladesh Service Rules hut
also with Fundamental Rule 29, although Fundamental Rule 29 has been framed
in a different context. Having regard to the facts and circumstances of the
case we think that the ends of justice will be met if we only state the
period of reduction in rank of the appellant.
S. N. Chowdhury Vs. Govt. of Bangladesh & Ors. 9BLT (AD)-145.
|
S. N. Chowdhury Vs. Govt. of Bangladesh & Ors. |
9 BLT (AD) 145 |
Rule 52
|
Also provides for the penalty of reduction to be for specified period—
As provided under rule 52 of the Bangladesh Service Rules Part I read with
rule 4 (3)(a) of the Government Servants (Discipline and Appeal) Rules 1985
the authority while imposing the penalty of reduction in rank must specify
the period during which such penalty shall exist. When the period is not
specified in the order the penalty itself where the charges are
established, can not be set aside but be modified. Anwar Hossain (Md.) Vs.
Government of Bangladesh represented by the Secretary, Ministry of Finance
and others 12 MLR (2007) (AD) 12.
|
Anwar Hossain (Md.) Vs. Government of Bangladesh represented by the Secretary, Ministry of Finance and others |
12 MLR (AD) 12 |
Rule 72, Note 4
|
The period of absence of Government servant on reinstatement in service
after wrongful retirement shall be treated as a period spent on duty and he
will be entitled to pay allowances and as admissible under clause (a) of
the Rule. Clause (a) of Rule 72 speaks that in case of honourable acquittal
the incumbent is entitled to full pay to which he would have been entitled
if he had not been dismissed or removed or suspended. The Administrate
Appellate Tribunal rightly held that the respondent is entitled to the
arrear pay and allowances.
Secretary, Ministry of Establishment Vs A .M Nurunnabi 21 BLD (AD) 41.
|
Secretary, Ministry of Establishment Vs A .M Nurunnabi |
21 BLD (AD) 41 |
Rule 246, 147 and 249
|
Bangladesh Service Rules, Part-1
Rule 246, 147 and 249 r/w
The Public Servants (Retirement) Act, 1974
Section 10
The authority stopping the pay of the pension to the petitioner has no
legal basis– In the instant case the petitioner neither convicted nor
found guilty of grave misconduct by any competent authority during his
entire 31 years service period. In the instant case there was no judicial
or departmental proceedings pending against the petitioner at the time of
his retirement; even no proceedings either judicial or department had been
initiated against him within a year of his retirement. Thus, the action
taken by the authority stopping the pay of the pension to the petitioner
has no legal basis. The respondents have failed to show us that the
impugned action has been taken within the ambit of the above provisions of
law or any other relevant law. .....Sanaullah(Md.) =VS= Government of
Bangladesh, (Civil), 2022(1) [12 LM (AD) 319]
....View Full Judgment
|
Sanaullah(Md.) =VS= Government of Bangladesh |
12 LM (AD) 319 |
Rules 248 and 258
|
Once the project comes to an end the services of the employees in the
project also come to an end. The appellant having been appointed on
work-charge basis in a project and the post not having made a regular one
so as to entitle him to receive pension benefit could not claim relying on
the equality basis being a persons similarly situated under certain mistake
decision arrived at or misconstruction of certain circular having no force
of law.
Abdur Rahman (Md) vs Government of Bangladesh represented by the
Secretary, Ministry of LGRD and Co-operatives and another 10 BLC (AD)
179.
|
Abdur Rahman (Md) vs Government of Bangladesh represented by the Secretary, Ministry of LGRD and Co-operatives and another |
10 BLC (AD) 179 |
Rule 300
|
Bangladesh Service Rules, Part I
Rule 300 read with
Article 27 and 31 of the Constitution:
By virtue of Rule 300(b), a privilege is being granted to those who take up
another pensionable job subsequent to their resignation from service.
Hence, the issue of discrimination is manifest in Rule 300(b). However,
persons not taking up any pensionable job post resignation lose their
pension forthwith by operation of Rule 300(a). In our view, this is
discrimination and is, therefore, hit by Article 27 of the Constitution.
Additionally, the immediate and automatic forfeiture of pension without
issuing any notice or observing any legal procedure is also hit by Article
31 of the Constitution. …Md Mahboob Murshed Vs. Bangladesh & ors,
(Civil), 16 SCOB [2022] HCD 7
Although classification per se is permitted both by law and under the
Constitution, it has to be reasonable. However, what is ‘reasonable’
has to be determined in the context of the society and should not be based
on some hypothetical analysis, totally unconnected with the realities of
life. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022]
HCD 7
The primary purpose of pension:
A pension is a quantified sum of money that is paid by the employer to the
employee, upon the retirement of the employee, in consideration of the
service rendered so as to enable the employee to defray the living expenses
and to meet the basic necessities of life. The primary purpose of pension
is to ensure that an employee, who has given the best part of his/her life
in the service of the employer, has some means to fall back on during old
age, when he/she is no longer able to work. …Md Mahboob Murshed Vs.
Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Employment, in our view, is a two way traffic. While the employer cannot be
forced to retain an employee who is either inefficient, incompetent or even
unruly and can therefore be terminated with proper notice or even be
dismissed (in appropriate cases), at the same time, an employee has a
similar right to tender his resignation from service. …Md Mahboob Murshed
Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Unless expressly excluded, the principle of natural justice shall apply in
all cases:
We are mindful of the argument advanced by the learned DAG to the effect
that as the forfeiture of the petitioner’s pension was on account of Rule
300(a) of BSR, the petitioner is now estopped from challenging the same.
However, in contracts relating to service, there is a clause whereby
employers can terminate the service of an employee upon giving due notice,
although the employee is deemed to have been aware that his service could
be terminated by the employer upon giving due notice. Can it be said that
the employee is therefore estopped from challenging the termination order
in a Court of law? There are a plethora of decisions to the effect that
despite such a provision in a contract of employment, the concerned
employee is entitled to be given a show cause notice before issuance of the
termination order. This, no doubt, is in consonance with the well-settled
principle of natural justice. By the same corollary, it can be said that
although he concerned official is bound by the Service Rules, that cannot,
ipso facto, negate the application of the principle of natural justice. It
is now universally accepted and well-settled that unless expressly
excluded, the principle of natural justice shall apply in all cases. …Md
Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
In the case in hand, the forfeiture of the petitioner’s pension together
with past service has very serious legal and practical ramification. It is
an admitted position that the petitioner had served for long nineteen year
in the Judicial service holding various positions and in doing so, he had
invariably, at some point in time, exercised Sessions power. If, and as
Rule 300(a) provides, his past service is forfeited, what would be its
practical implication? Let me elaborate. The petitioner, while exercising
Sessions power in a case under section 302 of the Penal Code, might have
had, in all likelihood, imposed either capital punishment or a sentence of
imprisonment for life. In either event, as a mandatory requirement, the
appeal by the appellant would have travelled upto the Appellate Division of
the Supreme Court, where it had either been allowed or dismissed by the
Apex Court. In the event of an appeal involving capital punishment or
imprisonment for life being dismissed, the judgment passed by the
petitioner would stand affirmed. However, as in the present case, if the
petitioners’ past service stands forfeited on account of his resignation
from service, what would be the fate of such an appeal decided by the Apex
Court? Would it stand annulled as well? If so, Rule 300 (a) of BSR would
have the effect of nullifying a judgment upheld by the highest Court of the
country. This would give rise to an absurd scenario. Can such a position be
even conceived, far less accepted? The answer is an empathic no. …Md
Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
It is now well settled that a ‘discriminatory act’ is also
“arbitrary”. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16
SCOB [2022] HCD 7
We reiterate that despite our extensive research, we could not come across
a single law or rule, either in our jurisdiction or for that matter in any
other jurisdiction, where resignation has been classified or defined as an
offence or misconduct. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil),
16 SCOB [2022] HCD 7
Doctrine of severability:
It is now well settled through judicial pronouncements that when any
particular law or Rule is challenged as being ultravires the Constitution,
if the offending part can be segregated from the rest of the section or
rule, then the proper course of action is to strike down the offending part
without striking down the entire section or rule. This is commonly referred
to as the “doctrine of severability”. …Md Mahboob Murshed Vs.
Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
A person who tenders resignation from service, should also be entitled to
receive pension, depending on the length of his/her service:
Although the maximum tenure of service required for being entitled to full
pension is 25 years or more, depending on the person’s age at the time of
entry into Government service, nevertheless, a sliding scale is provided
for the person who retires before completing 25 years of service. By the
same corollary, a person who resigns from service before reaching the age
of superannuation should also be entitled to receive pension depending on
the number of years of service rendered by such person. Although
‘retirement’ and ‘resignation’ are two distinct nomenclatures, in
reality, they achieve the same purpose by bringing to an end the long
standing, formal relationship between an employer and an employee ; in the
former case, through operation of law and in the latter case, upon one’s
own volition. On a similar note, a person who tenders resignation from
service, should also be entitled to receive pension, depending on the
length of his/her service. …Md Mahboob Murshed Vs. Bangladesh & ors,
(Civil), 16 SCOB [2022] HCD 7
....View Full Judgment
|
Md Mahboob Murshed Vs. Bangladesh & ors |
16 SCOB [2022] HCD 7 |
Rule 300(a)
|
Bangladesh Service Rules, Part I:
Rule 300(a)
Rule 300(a) of the Bangladesh Service Rules, Part I, so far as it only
relates to “forfeiture of pension in the event of resignation from
service” is declared to be ultravires the Constitution. However, the
remaining part of Rule 300 (a) and Rule 300 (b) remains unaffected and
valid. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022]
HCD 7
....View Full Judgment
|
Md Mahboob Murshed Vs. Bangladesh & ors |
16 SCOB [2022] HCD 7 |
Rule 300
|
Bangladesh Service Rules, Part I:
Rule 300
It is important to note that prior to dismissal from service, as a
mandatory requirement of law, a person has to be given a show-cause notice,
usually followed by a departmental enquiry. This is commonly known as
‘the due process’, whereby the person concerned is afforded an
opportunity to explain his/her position. However, in the case of
resignation from service, there is no such requirement. Merely upon
tendering resignation from service, a person loses his right to pension
forthwith. There is no provision for holding an enquiry, let alone issuance
of any show cause notice to the person concerned, which is tantamount to
non-compliance with the right to be treated in accordance with law. …Md
Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Generally understood, resignation means cessation or discontinuation of a
person’s service with the employer. The act of resignation is a
unilateral act on the part of the employee, tendered in writing to the
employer. It formally brings to an end the relationship between an employer
and an employee. That being the universally accepted position, can
resignation from service be deemed to be an offence or misdemeanor? Does
any law or rule forbid an employee from resigning? Has any punishment been
prescribed, either in our legal system, or for that matter, in any other
legal system, for an employee who has resigned from service? In such
context, how can a person who has tendered his resignation from service
(for whatever reason) be visited with such a drastic form of punishment
which deprives him of his hard earned pension to which he has become
entitled by rendering service to the employer for a considerable period of
time? Can such a rule be said to be in consonance with our Constitution?
Obviously, the answer has to be in the negative. To hold otherwise would be
contrary to the intent and spirit of our Constitution. …Md Mahboob
Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
....View Full Judgment
|
Md Mahboob Murshed Vs. Bangladesh & ors |
16 SCOB [2022] HCD 7 |