May 18, 2013 | 06:10 PM (BD Time)
18 May, 2013 Saturday
Forced retirement violates principles of natural justice
(From previous issue)
The learned Advocate further submits that although the petitioner has been retired from service on the plea of public benefit, no public benefit has been reflected in the impugned order or anywhere else and, as such, the said impugned order has been passed in colourable exercise of power. In this regard, he points out that though the Government may retire a person from service after completion of 25 years of service without assigning any reason it does not mean that the said retirement will be without any reason. In this respect he submits that the Government should form an opinion that it would be in the public interest to retire the petitioner from service after the petitioner's completion of 25 years of service. In this regard he has drawn our attention to an unreported decision of this Court in Writ Petition No. 10-427 of 2006 in the case or Fariduddin vs the Government of Bangladesh and also decision in the case of Mamun-ur-Rashid vs the Government of Bangladesh reported in 57 DLR 100. The same reasoning appears to have been affirmed by the Appellate Division in Civil Appeal No. 2382-83 of 2009 in the case of Bangladesh vs Goutam Kumar Saha as well as the decision of this Court in Writ Petition No. 7705 of 2006 and 7706 of 2006 (unreported).
6. As against this, Mr Akter Imam, the learned Advocate for the Respondent No.3 Biman Bangladesh Airlines Limited submits that the petitioner had joined the Service of the Armed Forces on 1-2-1976 and thereafter he joined the service of Bangladesh Biman and this period in service is to be counted from the date he joined the service of the Armed Force i.e. from 1-2-1976 for the purpose of his retirement. In this respect he has drawn our attention to the case Bangladesh Biman Corporation vs Government of Bangladesh reported in 2000 BLD (AD) 230 = 5 BLC (AD) 169 as well the case of Mazharul Huq (Capt.) vs Bangladesh Biman Corporation reported in 13 BLR (A D) 2008 page I = 60 DLR (AD) 21 and submits that the period of the petitioner's service in the Armed Forces would be tacked to the period that he served in Bangladesh Biman Corporation for the purpose of calculating his period in service and determining his length of service and the applicability of Section 9(2) of the Act. The learned Advocate further submits that the Government in exercise of its power under Section 9(2) of the Act can in the public interest retire any person in the service of the Republic as well as in any Corporation if the employee has completed 25 years of service and no reason need be shown in such case and in the instant case also the Government has so exercised its power in the best interest of Bangladesh Biman Corporation which has been incorporated into a public limited company. The learned Advocate there fore submits that the impugned order calls for no interference by this Court.
7. The Respondent No.1, Government of Bangladesh has not filed any Affidavit-in Opposition but Mr Delowar Hossain Samadder, the learned Assistant Attorney General opposes the Rule and adopts the arguments of the learned Advocate for the Respondent No.3 Mr Akter Imam. He submits that the order of compulsory retirement under section 9(2) of the Public Servants (Retirement) Act, 1974 has been rightly passed by the Government after complying with all formalities and he has drawn our attention to an order sheet of the Government wherein the proposal for the retirement of 6 persons including the petitioner was initiated by note No. 182 dated 9-10-2006 for retiring them under Section 9(2) of the Act and, as such, claims that the retirement of the petitioner was rightly approved by the Minister for Civil Aviation and Tourism and, as such, claims that the impugned order was passed in accordance with law and procedures and also submits that the same calls for no interference by this Court.
8. Heard the learned Advocates, perused the writ petition, affidavit-in-opposition, impugned order and the Annexures.
9. Section 9(2) of the Public Servants (Retirement) Act, 1974 state as follows:
"9. Optional retirement-(1) A public servant may opt to retire from service at any time after he has completed twenty five years of service by giving notice in writing to the appointing authority at least thirty days prior to the date of his intended retirement:
Provided that such option once exercised shall be final and shall not be permitted to be modified or withdrawn.
(2) The Government may, if it considers necessary in the public interest so to do, retire from service a public servant at any time after he has completed twenty five years of service without assigning any reason"
10. The first requirement of the aforesaid provision is that the concerned employee must have completed 25 years of service. In the instant case the petitioner had completed 11 years of service in Biman when the impugned order retiring him from service was issued. The question therefore remains as to whether the period that he had served prior to that in the Armed Forces i.e. from 1st February, 1976 should be counted for calculating his length of service in Civil Appeal No. 30 and 31 of 1999 and 32 and 33 of 1999 cases concerning Bangladesh Biman Corporation reported in 2000 BLD (AD) 230 = 5 BLC (AD) 169 where the Writ petitioners were employees of Biman it was held that the petitioner's previous length of service in the defence service would be counted for calculating seniority as well as length of service. In the said case retirement under Section 9(2) of the Act was upheld by counting the incumbent's prior length of service in the defence service. In the instant case thus despite the fact that the petitioner has served 22 years of service in Biman, his length of service would be counted from I st February, 1976 i.e. from the date he had joined the service of the Armed Force, for the purpose of length of service as per Section 9(2). In the in
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