David Bergman and M Moneruzzaman
The Appellate Division of the Supreme Court dismissed on Tuesday an application filed by Muhammad Yunus that had sought the court's permission to appeal against March's High Court ruling that had upheld the legality of the Bangladesh Bank's order seeking his removal as managing director of the Grameen Bank.
Following a 10-minute adjournment, that had been preceded by three hours of legal argument, the chief justice, Khairul Haque, told the lawyers and journalists in the court that the application had been 'dismissed.' He then left the room with the six other appellate court judges, without giving reasons.
At a press conference, held immediately after the Appellate Division's order dismissing the leave application, the attorney general, Mahbubey Alam, said that Yunus can no longer continue to hold the post of managing director legally as the apex court had now dismissed his application to appeal against the High Court order.
'Yunus had no further legal remedy,' he said.
However, a few hours later, Yunus's lawyers filed a new application seeking a recall of this 'dismissal' order on the basis that the court had made its ruling before hearing all the arguments that they wanted to place before it.
Mustafizur Rahman Khan, a member of Yunus's legal team, told New Age that whilst such an application was not common, 'it is not without precedent.'
'We are saying in the application that before the order of dismissal had been passed, we could not finish giving the entire case and we want to represent the whole case to the court,' he said.
'The order has not yet been drawn up and signed and we are praying for an opportunity to present the case fully.'
The application for recall of the order will be heard this morning along with another application, filed by nine of the directors of the Grameen Bank who, along with Yunus, had sought leave to appeal against the High Court order.
In the afternoon, the Grameen Bank postponed at short notice a press conference that was due to be held at its headquarters at Mirpur.
The hearing on Tuesday started with Dr Kamal Hossain arguing that the High Court should have issued 'a rule' on the Bangladesh Bank to explain its order of removal so that the Bangladesh Bank could file an 'affidavit in opposition.'
Without this affidavit, Kamal argued, it was not possible for the High Court to come to a number of factual conclusions that it had made in its decision.
He also argued that the threshold for the High Court to issue such a 'rule' was not high and quoted from a number of Indian court decisions that stated that the High Court should issue a rule if the matter 'was not frivolous and requires consideration.'
Kamal emphasised the importance of natural justice which he said should have required the managing director of the Grameen Bank receiving a show cause notice. 'After 30 years a letter suddenly comes and tells [Yunus] to go.'
In response to questions by the chief justice, Kamal argued that the 1993 Grameen Bank Staff Regulations, which imposed a regulation on all 'staff' to retire at 60 years of age, did not apply to the managing director.
The attorney general argued that the 1993 regulations did apply and as a result at the age of 60, Muhammad Yunus should have retired.
He said that as Yunus was no longer legally employed as managing director of the Grameen Bank from 2000 onwards, he did not need to be given a show cause notice in 2011.
Tawfique Nawaz, one of two lawyers acting for the Bangladesh Bank, accepted that although his client was guilty of acquiescence and had 'totally defaulted' in allowing Yunus to remain as managing director of the Grameen Bank since he reached the age of 60, 'the action of the law cannot be stopped.'
He also argued that there were no factual issues in contest which required a supplementary affidavit from the Bangladesh Bank and said that Yunus had no fundamental legal right to seek a remedy before the court.
The background to the legal dispute goes back to an order sent by a general manger at the Bangladesh Bank on March 2, 2011 to the chairman of the board of directors of the Grameen Bank seeking the removal of Muhammad Yunus on the basis that he was past his retirement age.
On the following day, Yunus and nine of the directors of the Grameen Bank filed an application seeking a 'stay' of the operation of the order as well as 'a rule' to be issued on the Bangladesh Bank to explain why the order should not be considered illegal.
There followed three days of legal argument which ended with the High Court bench of Justice Md Momtazuddin Ahmed and Justice Gobindra Chandra Tagore on March 8 summarily dismissing both the applications.
The High Court judges ruled that Yunus 'had/has no legal right and status to hold the post of managing director of the Grameen Bank… after expiry of his age of retirement at the 60th year. Therefore, he has no legal right or even no locus standi to challenge the impugned orders.'
On March 9, the lawyers representing both Yunus and the nine Grameen Bank directors sought a stay of the High court order with the Appellate Division chamber judge.
Justice Syed Mahmud Hossain, however, decided that the matter should be heard before a full bench of the Appellate Division on March 15. Subsequent adjournments resulted in Tuesday's hearing.
Source: New Age
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