Bangladesh Biman Corporation Ordinance, 1977
Bangladesh Biman Corporation was dissolved on 22.07.2007. Biman Bangladesh Airlines Ltd. was registered as public company on 23.07.2007. The entire undertaking of the Corporation has been transferred to and vested in the Company. However, the Ordinance, 1977 is still effective subject to subsequent developments done pursuant to Section 28A of the Ordinance. (Para 17)
Articles of Association are to be followed mandatorily if they are not in conflict with the company law: It is settled principle of law that memorandum and articles of association being the constitution of the company regulate the affairs of the company including the powers of the board of directors and others and thus, articles are mandatory to be followed if they are not in conflict with the company law. (Para 26)
Without reference of the decision of the Board of Directors, note mentioning the consent of the board is an after thought act and was created to justify the malafide action of the Managing Director and CEO of the Biman: It appears from the above that in note No. 15 dated 25.02.2020 the approval/decision/resolution of the board was not mentioned, but surprisingly in note No. 13 dated 25.02.2020 of a separate Nothi it is stated that the board had given consent to retiring the petitioner with benefit. It further appears from note No. 12 of the same note sheets that those were placed before the Managing Director and CEO on 25.02.2020. The impugned order was issued on 25.02.2020. So, when did the board of directors decide the matter and gave consent to the same? Is it on 25.02.2020? What is the number of the board meeting? Where are the minutes of the meeting? The respondents could not give any answer to these questions. No decision of the board was placed before us. We have examined the personal file of the petitioner and the connected file provided by the Biman. We have not found any decision of the board. Mr. Dolon submits that Note No. 13 is after thought and was created to justify the malafide action of the Managing Director and CEO of the Biman. The impugned order does not mention any decision of the Board of directors of the Biman, whereas, it is already noted that in the matter of removal from the service, the Biman follows article 59(b) of its articles of association and in the respective office orders reference of the decision of the board is mentioned. In the circumstances, the respondents are not allowed to rely on the case of Md. Yousuf Haroon on the basis of the principle of approbation and reprobation. (Para 36, 37)
Presumption of regularity of the official acts and burden of proof in such cases: In judicial review of administrative actions, the Court has to start with the presumption of regularity of the official acts which is incorporated in illustration (e) to Section 114 of the Evidence Act. The burden of proof is on the party who alleges the contrary. In the present case, the petitioner has successfully rebutted the presumption. The case of Shinepukur Holdings Ltd., 50 DLR (AD) 189 is of no assistance to the respondents. (Para 38) In absence of delegated authority and without any decision of the board of directors the Managing Director and CEO of the Biman has no power to retire anyone from service: In the case in hand, the Managing Director and CEO of the Biman issued the impugned order retiring the petitioner from service without any decision of the board of directors. No power was delegated to him to take the decision. Therefore, he was not competent authority to retire the petitioner. For this reason coupled with the attending facts and circumstances of the case, the unauthorised exercise of power by the Managing Director and CEO of the Biman is also without jurisdiction, arbitrary and malafide. Accordingly, we find merit in the Rule. (Para 40) [17 SCOB [2023] HCD 108]
