Present:

Mr. Justice Mohammad Bazlur Rahman and

Mr. Justice Md. Ruhul Quddus

Writ Petition No.2024 of 2011 Md. Akidul Islam and others

                            ...Petitioners -Versus-

The Government of Bangladesh and others

                                                        ...Respondents

Mr. Md. Humayun Kabir, Advocate

... for the petitioners Mr. F. A. Talukder, Advocate

... for the co-petitioners Mr. J. K. Paul, Advocate

... for respondent 3

Judgment on 26.11.2012

Md. Ruhul Quddus,J:

This Rule at the instance of 125 freedom fighters was issued challenging an office order of the Ministry of Liberation War Affairs as contained in Memo No.Mu:Bi:M:/Pro-1/Bivid-34/2002-371 dated 28.10.2003 issued under the signature of its Senior Assistant Secretary, Administration-1 (Section) in respect of payment of state honorarium with other benefits for 5% disabled freedom fighters including the petitioners at monthly rate of Taka 600/- instead of Taka 2004/- and for direction upon the respondents to pay the petitioners honorarium at the rate of Taka 2004/- instead of Taka 600/- and give them other benefits with effect from July, 2003.

It is contended in the writ petition that the petitioners are valiant freedom fighters who fought the war of liberation to liberate the Country from the occupation of Pakistani forces and their collaborators. They were injured in different battles during the war.

Bangladesh Muktijodda Kalyan Trust (hereinafter called the Trust) was established under The Bangladesh (Freedom Fighters) Welfare Trust Order, 1972 (P. O. 94 of 1972) for the welfare of freedom fighters, disabled freedom fighters and the dependants of martyr freedom fighters. A board of trustee is entrusted with the management of the Trust, which in exercise of its authority under article 17 of P. O. 94 of 1972 made The Bangladesh Freedom Fighters Welfare Trust Regulations, 1984 to regulate and control its affairs that includes enlistment of disabled freedom fighters and payment of state honorarium in their favour. 

The Trust in its sixteenth board meeting held on 26th November, 1998 decided to award state honorarium to the disabled freedom fighters subject to determination of the degree of disability through proper investigation. Accordingly, the petitioners filed applications to the Trust in prescribed form furnishing necessary information in detail. Thereafter, the Trust by separate letters asked them to appear before a Medical Board with necessary documents in support of their disability for medical test. In compliance therewith, the petitioners appeared before the Medical Board and the Board after thorough medical checkup confirmed their disability and classified them in “F” category with 5% disability. The Director (Welfare) of the Trust by separate letters addressed to the petitioners confirmed their status as genuine disabled freedom

fighters and recommended them for state honorarium. The Trust started paying them state honorarium at reduced rate of Taka 600/- per months from 2003 under the impugned Memo dated 28.10.2003, and suspended all other facilities which it was providing to other disabled freedom fighters of same category.

During pendency of the Rule twelve other freedom fighters standing on same footing with the petitioners moved an application for their addition as co- petitioners in the present writ petition. The application was allowed by order dated 19.6.2011 and accordingly they were added as co-petitioners 126-137.

At the concluding stage of hearing the petitioners have filed a supplementary affidavit annexing three judgments of the High Court Division passed in several writ petitions relating to state honorarium of the disabled freedom fighters.

The Managing Director of the Trust (respondent 3) contests the Rule by filling an affidavit-in-opposition denying the material allegations of the writ petition and contending, inter alia, that for determination of disability of the injured freedom fighters a committee named “ k¤Ü¡qa j¤¢š²−k¡Ü¡ h¡R¡C L¢j¢V” was formed under notification No. j¤¢hj/¢h¢hd-34/fËx-1/02-301 dated 31.3.2002. The committee was headed by the Consultant Surgeon, Combined Military Hospital, Dhaka as its Chairman. After holding proper medical examination of

the petitioners by the said committee, their disability was found to the extent of 5%. The impugned office Memo No. j¤¢hj/fËx-1/¢h¢hd-34/2002-371 dated 28.10.2003 was issued on the basis of the said notification No.j¤¢hj/¢h¢hd-34/fËx- 1/02-301 dated 31.3.2002 published in Official Gazette, but the petitioners did

not challenge the said notification. Moreover, the petitioners do not have any

legal right to challenge any decision of the Trust and as such the Rule is liable to be discharged.

Mr. Md. Humayun Kabir, learned Advocate appearing for the writ petitioners submits that the petitioner are disabled freedom fighters to the extent of 5% disability and all of them are getting allowance at the rate of Taka 600/- only with effect from 2003-04, while many other freedom fighters standing on same footing with the present petitioners are getting state honorarium at the rate of Taka 2004/- per month. Referring to his supplementary affidavit, Mr. Kabir further submits that in case of curtailment/reduction of honorarium and refusal of the respondents in giving adequate honorarium, some other freedom fighters standing on same footing with the present petitioners moved several writ petitions before the High Court Division, wherein the impugned curtailment/reduction of state honorarium was declared without lawful authority and the respondents were directed to pay state honorarium at higher rate. The present petitioners being makers of this Country cannot be neglected and discriminated and therefore, are entitled to get state honorarium at the rate of Taka 2004/- instead of Taka 600/-

Mr. F. A. Talukder, learned Advocate appearing for the co-petitioners adopts the submissions of Mr. Kabir and submits in addition that the poor amount of allowance/honorarium which the respondent-Trust has been paying to the injured freedom fighters is not adequate and therefore, the amount should be enhanced so that they can meet their minimum basic necessities of life. The respondent-Trust should be directed to enhance the amount of state honorarium and allowances, he concludes.

Mr. J. K. Paul, learned Advocate appearing for the Managing Director of the respondent-Trust on the other hand submits that the Government in the Ministry of Liberation War Affairs on recommendation of the  Juddhahata Muktijoddha Bachhai Committee reclassified the disabled freedom fighters in

six categories from A-F, wherein the petitioners with 5% disability fell in category ‘F’. The amount of honorarium/allowance for such category was initially fixed at Taka 600/- per month. By this time the amount has been enhanced to Taka 3600/- and the petitioners have been receiving the same. Mr. Paul then submits that the writ petitioners have challenged the memo dated 28.10.2003, which was issued on the basis of notification No. j¤¢hj/¢h¢hd-34/fËx- 1/02-301 dated 31.3.2002. The said notification dated 31.3.2002 is not under challenge. Since the petitioners have not challenged the basis of the impugned memo, the instant writ petition is not maintainable on the ground of not praying

for adequate relief.

Mr. Paul further submits that the petitioners in the cases referred to by the present writ petitioners were getting state honorarium from 1999 in previous category ‘3’ amount of which was monthly Taka 2004/-, but after issuing the impugned Memo the petitioners in those writ petitions being disabled freedom fighters were reclassified and fell in category ‘F’ as their disability was found to the extent of 5%. In this way their honorarium were reduced/curtailed which the High Court Division declared without lawful authority and directed the respondents to pay them honorarium at the rate, which they were getting earlier. But in the present case the writ petitioners were  getting  their  allowances  for  the  first  time  from  2003,  therefore,  no question of reduction/curtailment is there.

It  appears  from  a  report  filed  on  31.3.2003  by  the  Juddhahata Muktijoddha Bachhai Committee (annex-1 to the affidavit-in-opposition filed

by respondent 3) that earlier (prior to 2003) the disabled freedom fighters with disability to the extent of 20% or above were classified in three categories from

1 to 3 and those who had disability to the extent of 1-19% were not entitled to

any state honorarium. In 2003 a fresh medical test was held for determination

of the degree of disability of all injured freedom fighters, on furnishing report

of which the disabled freedom fighters were reclassified in six categories from

A to F, wherein the disabled freedom fighters having 1-19% disability were

placed in category “F”. In the said report it was further observed that according

to the Regulations of the Trust the disabled freedom fighters to the extent of 1-

19% disability were not entitled to any honorarium. However, the Government

in the Ministry of Liberation War Affairs while issued the impugned memo provided a fixed allowance of Taka 600/= for them, which was subsequently enhanced  to  Taka  3600/=.  The  relevant  portions  of  the  said  report  dated 31.3.2003 are quoted below:

“  12z h¡wm¡−cn j¤¢J²−k¡Ü¡ LmÉ¡Z VÊ¡÷ LaѪL pÇj¡e£ fËc¡−el SeÉ fËZ£a ®nËZ£ ¢hi¢J²−a ¢ae¢V d¡f b¡L¡u HLC d¡−fl fËbj J ®no k¤Ü¡qa j¤¢J²−k¡Ü¡l i¡a¡ Hhw f‰− ¤aÄl f¢lj¡−Zl j−dÉ A¢dL j¡œ¡l hÉhd¡e l−u−Rz AbÑ¡v A−eL Lj J ®hn£ f‰¤−aÄl j¡œ¡pÇfæ k¤Ü¡qa j¤¢J²−¡Ü¡NZ HLC f¢lj¡Z i¡a¡fË¡ç q−µRez fËQ¢ma pÇj¡e£ i¡a¡l d¡f J q¡l ¢egèiƒc x

  −j¡V

20

(h¡wm¡−cn j¤¢J²−k¡Ü¡ LmÉ¡Z VÊ¡ø fË¢hd¡Z ®j¡a¡−hL phÑ¢ejÀ 20% f‰¤aÄpÇfæ−cl k¤Ü¡qa j¤¢J²−k¡Ü¡ ¢qp¡−h l¡øÊ£u pÇj¡e£ i¡a¡ fËc¡e Ll¡ qu Hhw 20% Hl Lj BbÑ¡v 1% q−a 19% f‰¤−aÄl SeÉ ®L¡e pÇj¡e£ i¡a¡ fËc¡e Ll¡ qu e¡ z)

“13 z H a¡lajÉ c§l£Ll−el E−Ÿ−nÉ j¤¢š²k¤Ü ¢houL j¿»Z¡mu fË‘¡fZ Ae¤k¡u£ k¤Ü¡qa j¤¢š²−k¡Ü¡−cl n¡l£¢lLi¡−h fl£r¡-¢el£r¡ L−l ea¥ei¡−h haÑj¡e f‰¤−al Ä …l¦aÄ ¢h−hQe¡u ®j¡V 6 (Ru) ®nËY£−a f§e¢hÑZÉ¡p

Ll¡ quz 01% q−a 19% f‰¤−aÄl SeÉ j¤¢š²−k¡Ü¡ LmÉ¡Z VÊ¡ø fË¢hd¡e Ae¤k¡u£ ®L¡e pjÈ¡e£ i¡a¡ fË¡fÉ q−he e¡ h−m i¡a¡l p¤f¡¢ln Ll¡ qu¢ez

“14z f‰¤−aÄl ®nËY£¢hZÉ¡p J j¡œ¡z Avš—R©vwZK fv‡e ¯^xK…Z cš’v Aej¤¦‡b eZ©gv‡b mk¯¿ evwnbx‡Z wewfbœ c½y‡Z¡i Rb¨ wbgèwjwLZ wewfbœ ‡kªYxi †kªYx weY¨vm Pvjy Av‡Qt

kɡN

¡s¡ Qm−

É  ¢e−S

fæ  hÉ¢š²NZ

 Arja¡

Ll−a ¡V c¡N

“15z Ef−l¡š² ¢h¢iæ ®nËZ£l f‰¤−aÄl ®nËY£¢eY¨vp Ae¤k¡u£ h¡wm¡−cn pnØœ h¡¢qe£ La«ÑL fËQ¢ma Ap¡jbÑa¡l ¢euj¡hm£l B−m¡−L, n¡l£¢lL Ap¡jbÑa¡l j¡œ¡ f−k¡Ñ−m¡Qe¡ Hhw haÑj¡e S£he k¡œ¡l hÉ−ul j¡e fkÑ¡−m¡Qe¡

f§hÑL k¤Ü¡qa j¤¢š²−k¡Ü¡−cl ®~c¢qLi¡−h fl£r¡ ¢el£r¡ L−l L¢j¢V KZ©„K k¤Ü¡qa j¤¢š²−k¡Ü¡−cl f‰¤−aÄl f¤ex®nËY£¢eY¨vpf§hÑL pÇj¡e£ hª¢Ül p¤f¡¢ln Ll¡ qu, k¡ ¢e−jÀ fËcš q−m¡x

fËÙ¹¡¢ha f‰¤−aÄl −nËZ£¢hZÉ¡p J pÇj¡e£l q¡l

‡kªYx  c½y‡Z¡l cwigvb

ÒGÓ  96% - 100%

ÒweÓ  81% - 95%

ÒwmÓ  61% - 80%

ÒwWÓ  41% - 60%

ÒBÓ  20% - 40% ÒGdÓ  1% - 19%

m¤§vbx fvZvi nvi 8000.00

5500.00 3500.00 3000.00 2500.00

j¤¢š²−k¡Ü¡ LmÉ¡e VÊ¡−ØVl fË¢hd¡e Ae¤k¡u£ i¡a¡ fË−k¡SÉ euz Ó

We  have  also  gone  through  the  judgments  annexed  with  the supplementary affidavit. Annex-C thereto is a common judgment passed in Writ Petition Nos. 5757, 4908, 5670 and 9361 of 2008, of which the first three petitions are on similar facts that the writ petitioners were already getting honorarium at higher rate. But in the last one, as it appears from paragraph 3 of the judgment, the petitioners were getting honorarium/allowance at monthly rate of Taka 600/- from the very beginning and obtained the Rule claiming Taka 2004/- instead of 600/-. In all the four writ petitions, another Division Bench of this Court made the Rules absolute declaring reduction/curtailment of the petitioners’ state honorarium to be illegal and without lawful authority and consequently directed the respondents to pay them honorarium at the previous rate of Taka 2004/-. The learned members of the Bar failed to bring into the notice of the Hon’ble Judges that in the last one i.e. in Writ Petition No.9361 of 2008 no question of curtailment or reduction was there. If it was pointed out, the decision in that writ petition could have been otherwise. The petitioners in other three writ petitions were already getting honorarium at higher rate, which was stopped/curtailed/reduced by the impugned memo.

Annex-D to the supplementary affidavit is another judgment passed in Writ Petition Nos.2726 of 2009 and 6235 of 2008 wherein another Division Bench disposed of the Rules with observations “in view of articles 27 and 29 of the Constitution there should not be any discrimination amongst the same class. Considering justice, equity and fairplay the respondent–government should take into consideration this aspect of the case and take necessary step to that effect”.  In those cases the learned Judges proceeded on the fact that “the respective petitioners being the disabled freedom fighters accordingly applied for the State Honorarium with other facilities to the authority concern and were getting the same separately on various dates from the year 1997 till 2006 through individual passbook issued by the authority under the proper list (annexure-C)”.

Annex-E is another common judgment passed in Writ Petition No. 8636

of 2010, Writ Petition Nos.1463, 3003, 3004, 2328 and 6851 of 2011 wherein another Division Bench disposed of all the Rules with observations “the respondents in issuing the impugned Memo No.j¤¢hj/fËx-1/¢h¢hd-34/2002-371 dated 28.10.2003 have committed fundamental wrong and also discriminated with the other disabled Freedom Fighters who are receiving allowance at the

rate fixed in January, 1999 by the Trust and thereby fixing of allowance at the

rate of Taka 600/- per month is liable to be declared to have been passed without lawful authority and is of no legal effect” and directed the respondents to” pay all outstanding allowances with effect from July, 2003 to the respective petitioner.”

The petitioners in the above mentioned two bunches of writ petitions were enlisted as disabled freedom fighters long back and were getting their honorarium/allowance from 1997 and 1999 respectively.

Moreover, in all the judgments as referred to above the High Court Division relied upon the judgment and order of the Appellate Division passed in Civil Petition for Leave to Appeal Nos.1157-61 of 2007 [subsequently reported in 14 BLC (AD) 41 (Chairman, Bangladesh Freedom Fighters Welfare Trust and others Vs. Mominul Haque Bhuiyan and others)]. By the said judgment the Appellate Division dismissed all the civil petitions and thereby affirmed the judgment and orders passed by the High Court Division in Writ Petition Nos.955 of 2005, and Writ Petition Nos.3186, 2183, 3362 and 4339 of 2004 making the Rules absolute. In doing so the Appellate Division quoted some passages from the impugned judgment of the High Court Division, which are as follows:

“It is a matter of surprise, that after long lapse of 32 years the degree of disability of the petitioner was again determined by the Committee and pursuant to the report dated 31.3.2003 (annexure-X-3), the State Honorarium of the petitioner was stopped.

“Admittedly, before taking the impugned action, the petitioner was not served any notice of show cause, against the proposed action. He was not given any opportunity to be heard. Natural justice requires that before a person is punished an opportunity to show cause against the proposed punishment should be afforded to him” (in Writ Petition No. 955 of 2005)”

“Admittedly, the petitioners are the Freedom Fighters and seriously wounded in the War of liberation in 1971. They were granted ‘Rastrio Sammani Bhata’ under which they were allowed to receive a sum of Taka 2004 each, on monthly basis, effective from 1-1-1999. The case of the petitioners are that they accrued the vested right to receive “Rastrio Sammani Bhata” which cannot be taken away”. (paragraph 9)

The Appellate Division in dismissing the civil petitions also observed:

“    We called upon the learned Counsel representing the leave petitioners to address the Court as regard the finding of the High Court Division that the writ petitioners were paid Honorarium/Rastri Sammani Bhata for 32 years in the light of the list prepared and published in the official gazette and that before taking the impugned action i.e. canceling, curtailing, reducing or stopping payment of Honorarium/Rastri Sammani Bhata, whether the writ petitioners were heard or that they were given opportunity to establish the fact that they were and are the Freedom Fighters and to establish that earlier they were listed as Freedom Fighters since they established that fact, i.e., Freedom Fighters, by reliable materials.

“The learned Counsel for the petitioners could not refer to any materials or in other words from the materials as are in the paper books of the respective Petitions for Leave to Appeal nor could produce any materials to establish that before taking the action in respect of the writ petitioners, who established their right to receive Honorarium/Rastrio Sammani Bhata as Freedom

Fighters after being listed in the list of Freedom Fighters published in the official gazette and enjoyed the said right for the last 32 years without interruption or question from any corner. In the afore state of the matter we are of the view the High Court Division was not in error in making the Rules absolute upon arriving at the finding that the writ petitioners of the respective writ petitions were deprived of their established right of receiving the Honorarium/Rastrio Sammani Bhata in a whimsical and capricious manner and that action impugned i.e., cancellation/curtailment/reduction/stoppage/ non-payment of the Honorarium was a malafide action of the Writ Respondents and same manifest from the nature and kind of action complained of and is evident from the materials on record. The materials in the paper books clearly demonstrate that the action was anything but not fair since the writ petitioners were deprived of the benefits, which they acquired upon establishment of the fact of their being freedom fighters and they were paid for the 32 years, of receiving Honorarium/Rastrio Sammani Bhata in total disregard of the universally accepted principle of natural justice or in others words without hearing them or affording an opportunity to place their case, and the action impugned was taken to their prejudice keeping them in the dark.”

In those writ petitions the High Court Division made the Rules absolute as the petitioners therein were getting state honorarium from long before at a higher rate, which was subsequently stopped/curtailed/reduced without service of show cause notice. As the subsequent classification was made to their disadvantage, the new category ‘F’ was, therefore, held not applicable for them on the ground that they had acquired vested right to get state honorarium at higher rate.  The Appellate Division dismissed all the civil petitions and thereby affirmed the judgments of the High Court firstly on the ground of natural justice and secondly on vested right of the petitioners.

In the present case as many as 124 documents have been annexed to prove that the petitioners are disabled freedom fighters. All the said documents show that they are disabled to the extent of 5% disability and were enlisted as disabled freedom fighters for the first time in 2003-04. Therefore, the question of curtailment or reduction of their honorarium/allowance does not arise and no question of serving any show cause notice or claiming the previous higher rate on “vested right” on their part arises. Thus the facts and circumstances of the present case are quite distinguishable from the case of 14 BLC (AD), 41.

Since the present petitioners are disabled freedom fighters with 5% disability and were enlisted with the Trust for the first time in 2003-04, they cannot claim themselves in any manner to stand on same footing with the disabled freedom fighters who were initially disabled to the extent of 20% or above and getting honorarium at higher rate from 1999.

P.  O. 94 of 1972 or any regulations/notification/instruction made thereunder did not provide state honorarium/allowance at the rate of Taka 2004/-  for 5% disabled freedom fighters at the relevant time. Whether the respondents would enhance the honorarium/allowance and other financial benefits for them, is a matter of policy decision to be taken by the Government and the Trust. This Court cannot direct them to frame any particular policy or take any decision to that effect. However, we strongly feel that the Ministry of Liberation War Affairs as well as Bangladesh Muktijodda Kalyan Trust should take necessary step towards enhancement of state honorarium/allowance and other benefits for all freedom fighters with special focus on the disabled freedom fighters.

Nowadays we notice that a good number of freedom fighters are being dragged to the Courts because of inaction on the part of the Muktijodda Kalyan Trust and the Ministry of Liberation War Affairs to address their grievances and dispose of their representations and applications regarding state honorarium/allowances, other financial benefits, enlistment in the Gazette, issuance of certificate etc. The freedom fighters, who made this Country and for whose sacrifice, we are recognized as an independent nation, deserve highest care and respect from all citizens of the Country and obviously from all public functionaries. Keeping this view in mind, the officials of the Trust and the Ministry must be careful in dealing with the matters and show utmost respect to the freedom fighters and take proper care of them. The State also needs to provide minimum basic requirements of life, and if possible all amenities to the freedom fighters, the best sons of the soil.     

In view of the above it is legally not possible for this Court to grant the relief sought for in this writ petition. Accordingly, the Rule is discharged with the above observations.  

Mohammad Bazlur Rahman, J:

I agree.