(From previous issue) :
Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six-months from the date of making or taking of the order, decision or action concerned or making of the Decision on the matter by the higher administrative authority, as the case, may be.
(3) In this section "person in the service of the Republic 3[or of any statutory public authority]" includes a person who is or has retired or is dismissed, removed or discharged from such service, but does not include a person in the defence services of Bangladesh 4[or of the Bangladesh Rifles].
8. It appears from the provision of section 4 of the Administrative Tribunal Act that a servant if being aggrieved by any order of the concerned authority, shall have to go to the Administrative Tribunal for his remedy first, but the present petitioners have no that scope to file any application before the Administrative Tribunal as they were not in the service of the republic.
Section 7 A says:
2[7A. (1) Where a person is dismissed or removed from service and an application is made under section 4 against such removal or dismissal and that person dies during the pendency of the ease, the right to sue of that applicant shall survive if his service had been pensionable under any law for the time being in force.
(2) Where the right to sue survives under sub-section (I), such legal representative of the deceased applicant who would have been entitled to the pensioner benefit at the event of the death or retirement of the deceased applicant may be substituted, upon an application, made to the Tribunal or, as the case may be, to the Appellate division within sixty days from the date of the earth of the applicant.
(3) The legal representative of the deceased, as referred to in sub-section (2), shall be entitled to the pensionery benefit which would have been payable to that deceased if he had been removed or dismissed:
Provided that, such pensioner benefit shall not be payable unless the Tribunal or, as the case may the Appellate Division, declares the order of the dismissal or removal, as the case may be, as illegal or void:
Provided further that, for the purpose of this section, the applicant shall be deemed to have died or retired, as the case may be, on the day on which he was removed or dismissed.
9. It has been provided in section 7A that when all application against the dismissal or removal from service is pending before the Administrative Tribunal, if the employee or servant of the republic dies, than his/her heirs can be substituted in the pending proceeding as heirs of the deceased and right to so survive. But here there was no case pending against any dismissal or removal before the administrative tribunal when the employee died of cancer. Therefore, no question of substitution can be raised for the heirs of the deceased.
10. On plain reading of these sections it appears that only the servant of the republic may apply before the Administrative Tribunal or his heirs may be substituted in the case if he dies during pendency of the case filed by him against his removed or dismissal from service. But there is no such case pending in the Administrative Tribunal at the time of his death. In such view of the fact, the petitioners do rot have locus standi to file an application before the administrative tribunal as they are not servants in the republic.
II. In such a situation, the petitioners as heirs of the predecessor, have no other forum to seek relief rather to move this court with a writ petition invoking Article 102 of the Constitution. It is pertinent here to refer the case of Kazi Shamsunnahar vs Commandant RRF Khulna reported in 2 BLC 569 where their Lordships observed that
"Admittedly, the deceased government servant was not removed from service prior to his death but he was removed from service just after his death resulting thereby the government servant died while he was still in the service of the Republic for which the petitioners as heirs of the government servant are entitled to recover the service benefits as permissible under the law and the writ petition is maintainable".
12. In the instant case there is no dispute that Abdur Rouf Chowdhury was neither convicted nor removed, nor dismissed from service before his death. So the penalty imposed by the authority concerned upon the dead man is not legal in the eye of law. It is apparent that the petitioners are admittedly heirs of the deceased employee having no other forum except to invoke writ jurisdiction under Article 102 of the Constitution and since the predecessor of the petitioners was acquitted from the charge brought against him by the competent court of law, there is no bar to the petitioners as heirs of the ex-employee in obtaining full service benefits as per service rules. Furthermore, as the departmental proceeding was withdrawn by the concerned authority the service of the predecessor of the petitioners was seemed to be treated as regular one and all service benefits of the predecessor to be recovered by the petitioners as his heirs.
13. In view of the discussion as above, we are inclined to hold that the impugned orders (Annexures-H, E, F and FI to this writ petition) are ex-facie illegal and the same have been passed without any lawful authority and are of no legal effect, therefore, the petitioners as heirs of late Abdur Rob Chowdhury are entitled to get all service benefits including pension and arrear, if any, as permissible in law.
In the result the rule is made absolute without order as to costs. The impugned orders (Annexures-H, E, F and F1 to this writ petition) have been passed without lawful authority and are of no legal effect. The respondents are directed to pay full service benefits of late Abdur Rob Chowdhury to the petitioners as permissible under the law.