The attorney-general told the Appellate Division on Tuesday that it should not 'recall' its earlier unsigned order which had dismissed Mohammed Yunus's application to seek leave to appeal against a High Court ruling that had upheld the legality of Bangladesh Bank's attempt to remove the Nobel Laureate from his post as managing director of Grameen Bank.
'There was a whole day of argument before the order was passed, and the issue was dismissed by the court,'
argued Mahbubey Alam, the attorney-general.
'It is not the practice of this court to entertain recall applications. After the pronouncement of an order the only option is for the petitioner to make a review application,' he added.
He was joined in making this argument by Tawfique Nawaz, Bangladesh Bank's lawyer.
'I see no provision in the written Constitution for a recall order of either a signed or unsigned order,' Nawaz told the court. 'There may or may not have been [previously] an instance in this court of a recall order but there is no provision for this.'
On 6 April the Appellate Division of the Supreme Court dismissed Mohammed Yunus's application for leave to
appeal against the High Court order issued
on 9 March which had ruled that Yunus
should have retired from Grameen Bank when he had reached 60 years of age.
However, that same afternoon, the seven-member court agreed to hear an application filed by Yunus's lawyers to seek a recall of the order on the basis that they had not been given time to present their arguments to the court.
The court on Tuesday also heard arguments by the two lawyers about why the High Court order's was valid.
Mahbubey Alam argued that Yunus was a public servant and that his retirement age was 'governed by the laws that applied to public servants'.
He argued that when the Grameen Bank's staff regulations came into force in 1993, they
applied to Yunus as to 'any other regular employee' and required him to retire like others at the age
of 60.
Yunus's position of managing director was just a rank amongst employees, he said. 'The regulation applied to all employees and the managing director is one of them.'
He argued that there was no violation of natural justice as Yunus 'was very aware of the legal situation when it was discussed at Grameen Bank board's meetings where he himself said that it was high time for him to leave the bank'.
Tawfique Nawaz, acting on behalf of the Bangladesh Bank, said that the failure of his client to remove Yunus from his position of managing director in the last 11 years 'did not validate what was unlawful'.
'If the law has not been invoked, it does not mean that it has died,' he argued. 'No law becomes invalid simply because it has not been applied.'
He also argued that the Appellate Division was duty-bound to correct any situation which 'conflicted with the law'.
'It will be such a bad precedent on the part of the court if it allows the continuance of this wrong,' he added.
He admitted that the High Court 'may have erred' in saying that Bangladesh Bank had used the powers available to it under the Bank Companies Act to seek the removal of Yunus in its letter of 2 March to the chairman of Grameen Bank.
'[To remove the petitioner] the letter clearly invoked Section 14(1) of the Grameen Bank Ordinance which required the Bangladesh Bank to give it prior approval before the appointment of the managing director,' he said.
In response to these arguments Kamal Hossain, acting on behalf of Mohammed Yunus, said that the rules of the Appellate Division allowed it to recall an unsigned order since the court could make any order 'for the ends of justice'.
Without passing an order on the recall application, the court then began to hear another application filed on behalf of nine directors of Grameen Bank, seeking leave to appeal against the High Court order which had dismissed their petition seeking a stay of the same Bangladesh Bank letter of 2 March.
Sara Hossain, on behalf of the nine women, told the court that her clients have a 'separate and distinct right' to challenge
the Bangladesh Bank's order because of
'their position as directors of the Grameen Bank' whose powers of appointment of the managing director have been 'usurped'.
The case will continue today.
Source: New Age
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