The Income Tax Ordinance, 1984 (Ordinance No. XXXVI of 1984)

Sections 30(aa) and 53H

On combined reading of the sections 30(aa) and 53H it is evident that the assessee was liable to deduct advance tax from the commission or fees paid to the Agent of Foreign Buyers. The assessee claimed to have paid the agent’s commission or fee and therefore, he was liable to deduct advance tax at source before payment of commission to the Foreign Buying Agents under section 53E of the Ordinance...............(18) 

Employment of Lobour (Standing Orders) Act (VIII of 1965) Sections. 18 (1) 25 (c)

Labour domestic enquiry - Jurisdiction of Labour Court—

A Labour Court is not a Court of appeal sitting over the finding of domestic enquiry--Nor is the Enquiry Officer/Enquiry Committee is a criminal court for the purpose of following procedure of such enquiry. Labour Court can only interfere with the finding of Enquiry Officer/Enquiry Committee if it is found that the enquiry was held unfirly with bad faith without complying with the principles of rules of natural justice and without following the procedure laid down in section 18(1) of the Employment of Labour (Standing orders) Act.

Labour Court arrogated to itself the power of appellate authority against Enquiry officer when it found the delinquent not guilty. Unless violation of the procedure laid down in section 18(1) or any unfairness or bad faith or mala fide is found in the proceeding before the enquiry officer Labour court cannot reverse his finding.

Reinstatement in service—

Even when the proceeding before the Enquiry officer suffers from proper compliance with the procedure laid down by the law warranting quashment of the dismissal order, reinstatement cannot follow as a matrer of course--In a dispute relating to allegation of theft by the employer against the employee there always remains an incongenial relationship between the parties--In such a relationship it would be no appropriate case where reinstatement would be allowed.

 Dismissal--Extenuating circumstance—

The management while dismissing the delinquent did not take into account the extenuating circumstances that he was the first offender during his service for over 10 years--That being so the dilinquent respondent shall be deemed to have been discharged. 

Sale of Goods Act (III of 1930), Sections 19 & 23

F.O.B. Contract (Free on board contract)–

F.O.B are contracts where the duty of the seller is to deliver the goods on board ship at his own expense, upon which prima facie the property and the risk passes to the buyer, who is liable for subsequent charges, and payment for the goods become due……….(6)

Property in goods passes to the buyer on shipment unless parties intend otherwise-

The normal incidence of an f.o.b. contract is that property in goods passes to the buyer on shipment; (ii) the parties, however may intend that property shall pass at a subsequent time, as for example, on payment of price and charges and on such event property shall pass at such subsequent time; (iii) intention is a question of fact and has to be gathered from facts and circumstances of each case; (iv) the mere fact that an f.o.b. contract provides for handing over of bills of lading against payment does not justify a presumption that property is to pass on payment; (v) a retention of the bills of lading by the seller should not be construed in a manner which is inconsistent with commercial practice. Any such retention should be regarded in conjunction with the object of securing the purchase price of the goods only, that is to say, property should be construed to pass on shipment subject to unpaid seller's lien……..(8) 

International Crimes Tribunal Act, 1973; Section 3(2)

International Crimes Tribunal-2 (ICT-2)

[Tribunal constituted under section 6 (1) of the International Crimes Tribunal Act, 1973(XIX of 1973]

[Charges: crimes against Humanity and aiding & complicity to commit such crimes as specified in section 3(2) (a) (g) (h) of the Act No. XIX of 1973]

The Petitioner Ali Ahsan Muhammad Mujahid was found guilty for the “Crimes against Humanity enumerated in Section 3(2) of the ICT Act listed in charge Nos.1, 2, 5,6 and 7 and sentenced to “single sentence of Death” for the crimes as listed in charge Nos.6 and 7, 5(five) years imprisonment for the Crimes listed in charge No.3 and imprisonment for life for the crimes as listed in charge No.5. No sentence was awarded for the crimes listed in charge No.1.

A very large segment of people worldwide including the sociologists, legislatures, jurists, Judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of the society. The Supreme Court of India, in Ediga Annamma (AIR 1974 SC 799) while noticing the social and personal circumstances, possessing an extenuating impact, has highlighted that death penalty may not be a time barred punishment in some frightful areas of barbarous murder. Illustratively, the Court has mentioned that the brutal features of the crime and the hapless and helpless state of the victims.

Although many countries have abolished death sentence, the capital punishment still prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional cases.

Countries that retain capital sentence include the largest democracy, i.e. India, and 33 component States of the United States of America. Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13 (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence.

It is admitted facts that the petitioner was initially the President of ICS, Faridpur District Branch and during the war of liberation, he was elected Secretary General of ICS and, thereafter, President of the then East Pakistan ICS. He organized and led ICS and that ICS was subsequently converted into Badr Bahini and that he became leader of the Badr Bahini. As a leader of ICS and Badr Bahini he must take responsibility of his bahini and crimes committed by them during the war of liberation.

Petitioner’s ruthless Badr Bahini being instigated, suggested, provoked and incited by the petitioner had kidnapped and killed the intellectuals which was cold blooded savagery.

Such barbaric gruesome brutal crimes which are comparable with the Hitler’s Gas Chamber Genocide or Jalilianbag massacre.

In awarding the sentence, the Court took into consideration the unbearable pains, tears rolling down the cheeks and sufferings of the widows and children of the victims who cried for getting justice for about 43 years. The barbaric gruesome and heinous crimes which under the petitioner’s leadership his Badr Bahini committed is a revolt against the humanity. As leader of Badr Bahini the petitioner cannot escape from the liability.

It is the duty of the court to impose proper punishment depending upon the criminality and proportionate to the gravity of the offence…………….(16-24) 

Admiralty jurisdiction of the Supreme Court

Under the Act of 1891(Colonial Courts of Admiralty Act (India) 1891), the High Court Division of this Court was declared as the Court of Admiralty. This Court exercises the same jurisdiction as the High Court of England exercised in 1890 under the Admiralty Court Act of 1861. The instant suit arising out of a claim for non-delivery of the cargo that was to be carried by the ship Nedlloyd Leuve is amenable to the jurisdiction of this Court.  

Code of Criminal Procedure, 1898; Section 439 & 202(Chapter-XVI)

Constitu­tion of Bangladesh, 1972; Article 102

Police Regulations Bengal, 1943; Regulations (24), 244(c) & 29 29(d)

Presence of High Police Officer or Representative during Judicial Inquiry

Requiring presence of High Police Officer and Police representative during Judicial Inquiry to be performed by Metropolitan Magistrate suffers from manifest illegality, legal infirmity and flagrant error of law that cause a gross miscarriage of justice.

Paternal or Supervisory power of the High Court

The Power of the High Court Division envisaged in section 439 of the Code of Criminal Procedure is a Kind of paternal or supervisory power which is to be exercised in cases where there is a glaring defect in the procedure or is a manifest error on point of law and consequently there has been a flagrant miscarriage of justice. This power is to be exercised in aid of justice and there is no from of injustice that the long arm of the Court cannot reach because of administering and dispensing real and substantial justice, the Court alone exist and there is no species of injustice where the High Court Division cannot correct where its interference is called for.

Henceforth, the Judicial Inquiry will be performed by metropolitan Magistrate Dhaka in Complaint case No. 1807 of 1999 and complaint case No. 2261 of 2000 in the absence of the High Police Officer and Police representative……......(35-36) 

Companies Act (VII of 1913); Section 38

In a proceeding under Section 38 the Petitioner is not entitled to a relief ex-debito Justitiae and the Court has discretion to refuse remedy if the matter is not a simple one…..(12)

Rectification of share register

Petitioners prayed for rectification of the share register maintained by the respondent No. 1 by declaring the same as incorrect and fraudulent. According to the petitioners the register of members now lying with the company conaias correct entries. In such a position the relief prayed for does not come within the purview of the provision for rectification……. (15-16) 

Bank is unconditionally bound to make pay the amount on demand

Bank guaranteeing satifactory performance of contract by seller. Seller defaulted in delivering goods within stipulated time. Purchaser called upon the bank to credit the guaranteed amount to its account. Bank refusing to comply contending that the contract failed due to circumstances beyond the seller's control--Whether bank liable to encash the guarantee.
The bank has agreed to make an unconditional payment on demand without any further question and without reference to the contractor. The words "without any further question and without reference to the contractor” make it clear that the bank is not to be an arbiter in a dispute between the purchaser and the supplier whether in respect of the performance of the contract or otherwise. On an allegation made by the purchaser that there has been a failure of performance on the part of the supplier, the bank is bound unconditionally to pay the amount on demand. The only condition of the bank guarantee is that the purchaser should make a demand on the bank and when this has been done. the condition of the guarantee has been fulfilled and the bank is bound to make the payment without any further question and without reference to the contractor. As to what the purchaser is entitled to recover from the supplier as liquidated damage and /or penalty for the default of the supplier is a question between the purchaser and the supplier. The bank cannot raise this plea. The question as to what part has not been performed is not also relevant……..(7) 

Government Service- Dismissal of on the ground of Corruption practice

The petitioner was charged under the allegations of misconduct, gross interference with the office work and corrupt practices under the East Pakistan Government Servants (Efficiency and Discipline) Rules, 1960.

It is argued that disciplinary proceedings are to be followed according to the law and since the order are judicial orders, the orders must be based on reasonings.