Additional General Manager, GM Office, Postal Life Insurance Dhaka Vs. Sheikh Mizanur Rahman.

Supreme Court

Appellate Division

(Civil)

PARTIES

Additional General Manager, GM Office, Postal Life Insurance Dhaka and another………………Appellants

Vs.

Sheikh Mizanur Rahman.………………….Respondent

JUSTICES

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Muhammad Abdur Rouf J

Md. Ismailuddin Sarker J

Judgment : November 6th, 1995

Government Servants (Discipline and Appeal) Rules, 1984

Rule 7(11)

The Appellant Tribunal having noticed that one hundred and fifty days had already elapsed long before the promulgation of the new Rules of 1984, wrongly held that the instant case falls within the mischief of sub-rule(11) of Rules of 1984.

Lawyers :

B Hossain, Advocate-on-Record—For the Appellants.

Abdur Rob Chowdhury instructed by Md. Nawab Ali, Advocate-on-Record,— For the Respondent.

Civil Appeal No. 81 of 1994.

(From the Judgment and order dated 28.4..94 passed by the Administrative Appellate Tribunal in Appeal No. 87 of 1991).

Judgment:

       Latifur Rahman J: This appeal following leave is from the Judgment and order passed by the Administrative Appellate Tribunal, Dhaka on 28.4.94 in Appeal No. 87 of 1991 setting aside the judgment of the Administrative Tribunal. Dhaka passed on 20.8.91 in Case No. 159 of 1987.

2. Respondent who was an Upper Division Assistant of GM Office, Postal Life Insurance, Dhaka filed Administrative Tribunal Case No. 154 of 1987 alleging, inter alia, that he was not allotted any official quarter though he was entitled thereto; that he requested the General Manager, Postal Life Insurance, for allotting a quarter but he verbally told him to occupy any quarter if found vacant and accordingly, he took possession of quarter No. G-14/11, at Motijheel Colony on 18.12.1981 and requested the authority to allot him the said quarter but he was asked to vacate the same; that he was placed under suspension and an Enquiry Officer was appointed and on the basis of his report he was compulsorily retired from service on 20 that he preferred a departmental appeal on 11-8-85 but the same was dismissed and thereafter he filed the case before the Administrative Tribunal.

3. The case was contested by the appellant by filing a written statement contending, inter alia, that the respondent forcibly occupied the government quarter without any allotment order and he was again and again asked to vacate but on his failure to do so proceedings under the Government Servants (Discipline and Appeal) Rules, 1976 was taken against him and after observing all formalities and giving him all opportunities to defend himself the order of compulsory retirement was passed.

4. The Administrative Tribunal dismissed the case after holding that the proceeding started under the repealed Rules of the Government Servants (Discipline and Appeal) Rules, 1976. shortly, the Rules of 1976. As per Rule 26 of the Government Servants (Discipline and Appeal) Rules, 1984 shortly, the Rules of 1984, the Rules of 1976 have not been saved and the pending proceedings are to be disposed of as far as may be in accordance with the Rules of 1984. Rule 7(11) of the Rules of 1984 has provided that the proceedings have to be disposed of within 120 days from the date of notice of the proceedings or within 150 days from the date on which the Government Servant is placed under suspension whichever is earlier. As the appellant was furnished with the charge and suspended long before the Rule of 1984 came into force, Rule 7(11) thereof has no manner of application in a pending proceeding under the Rules of 1976.

5. The Administrative Appellate Tribunal found that the respondent was guilty of misconduct but allowed the appeal and set aside the order of retirement on the ground that the departmental proceeding falls within the mischief of Rule 7(11) of the Rules of 1984 as the said proceeding was not completed within the time limit prescribed by this Rule. The Administrative Appellate Tribunal held that the proceeding against the respondent, though drawn under the Rules of 1976, shall be disposed of under the new Rules of 1984 providing for the time-limit and that since no final decision was taken within the period mentioned therein, or at least from the date of coming into force of the new Rules, that is, 19th July, 1984 the accused stood discharged.

6. Leave was granted to consider whether the Administrative Appellate Tribunal seriously misinterpreted Rule 7(11) of the Rules of 1984 in holding that though the proceeding was started under the Rules of 1976, the proceeding being a pending proceeding when the Rules of 1984 came into operation the same is to be disposed of within the time limit as provided in Rule 7(11) of Rules of 1984 or at least from the date of coming into force of the new Rules of 1984 i.e. 19th July, 1984.

7. Admittedly in the present case the respondent was placed under suspension and a proceeding was drawn against him on a charge of misconduct on 23rd February, 1982 under the Rules of 1976 and during the pendency of this proceeding the new Rules of 1984 came into operation on 19-7-84. The respondent was compulsorily retired from his service by the appellant on 20th February, 1985. Rule 26 of 1984 reads as follows:

“26. Repeal and savings.-(1) The Government Servants (Discipline and Appeal) Rules, 1976 are hereby repealed.

(2) Such repeal shall not affect the previous operation of the said rules or anything done or any action taken thereunder, and any proceeding under the said rules pending at the commencement of these rules shall be , continued, and disposed of, so far as may be in accordance with the provisions of these rules”.

Rule 7(11) of Rules 1984 reads as follows:

“In case of failure of the authority to take decision within one hundred and twenty working days from the date of communicating the charges under these rules or within one hundred and fifty working days from the date the Government Servant is placed under suspension whichever is earlier, the accused shall stand discharged from the charges brought against him and in such event the persons responsible for such failure shall be proceeded against under these rules.”

8. Rule 26 of the Rules of 1984 speaks that the earlier proceeding which is a pending proceeding at the commencement of the Rules of 1984 shall continue and be disposed of so ‘far as may be in accordance with the provision of the Rules of 1984. Rule 7(11) of the Rules of 1984 speaks of a time limit, specifically providing that the proceeding drawn under the Rules of 1984 shall be concluded  and final decision shall be taken within 120 days from the date of the notice of the proceeding or within 150 days from the date the Government servant is placed under suspension, whichever is earlier, and that in case of failure of the authority to take decision within this period, the accused “shall stand discharged” from the charge against him under these Rules. It is found from the Rules of 1976 that there was no such provision for disposal of a proceeding within a specified time as provided in Rule 7(11) of the new Rules of 1984. In the present case the suspension order was passed on 23.2.82 and after about two years and five, months the new Rules misinterpreted sub-rule (11) of Rule 7 of the new of 1984 came into operation. As such, the question of Rules of 1984 and wrongly made the same applicable communicating charges under the new Rules of 1984 within one hundred and fifty working days when a Government servant is placed under suspension as provided in rule 7(11) of the new Rules does not arise at all as the time had already elapsed. The Appellate Tribunal rightly noticed that one hundred and fifty days had already elapsed in taking decision with effect from coming into operation of the new Rules and thereafter the order of compulsory retirement was passed after more than two hundred days. The Appellate Tribunal having noticed that one hundred and fifty days had already elapsed long before the promulgation of the new Rules of 1984, wrongly held that the instant case falls within the mischief of sub-rule (II) of Rule 7 of the Rules of 1984. This point was specifically noticed in the case of MA Hai and others vs. Trading Corporation of Bangladesh reported in 40 DLR 109, wherein a Division Bench of the High Court Division presided over by Mr. Justice Mustafa Kamal J, as his Lordship then was, observed as follows:

“We cannot read into the Rules what is not there. A legal fiction can be created only by a statute and it is not open to us to create a legal fiction by interpreting a Rule. If the pending proceedings were to be covered by sub-rule (11) of Rule 7 then clearer words ought to have been employed to bring their cases within the ambit of the said sub-rule either in the said sub-rule itself or in sub-rule (2) of Rule 26.”

9. In that decision the learned Judges correctly held that sub-rule (11) of Rule 7 is only prospective in operation. 40 DLR 109 has been approved by this Division in 40 DLR (AD) 206 in which their Lordships observed that, “these proceedings were drawn under the Rules of 1976 and were pending when the Rules of 1984 came into force. In the provisions for automatic disposal under the Rules of 1984 the qualifying clause “as far as may be” was inserted obviously because in the previous Rules there was no such provision”. In the present case, the respondent having not been served with the charge-sheet under the Rules of 1984 sub-rule (11) of Rule 7 is not applicable at all. Since sub-rule(1 I) of Rule 7 of the Rules of 1984 is not applicable in the case of the respondent as has been discussed above, we hold that the Administrative Appellate Tribunal grossly misinterpreted sub-rule (11) of Rule 7 of the new of Rules of 1984 and wrongly made the same applicable in the present case.

10. Mr. Abdur Rob Chowdhury, learned Advocate appearing for the respondent, referred to a decision of this Division reported in 43 DLR (AD) 209. That decision is not applicable in the facts of the present case. In that decision, it was held that the proceeding which was started under the Rules of 1976 being a pending proceeding the punishment could be awarded under the new Rules of 1984 if it is not otherwise invalid or illegal. The interpretation of sub-rule (11) of Rule 7 of the Rules of 1984 was not specifically considered in that decision.

11. For the reasons stated above, the judgment and order of the Administrative Appellate Tribunal is set aside and the judgment and order of the Administrative Tribunal is restored.

The appeal is allowed without any order as to costs.

Ed.

Source : 48 DLR (AD) (1996) 97

 

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