Appellate Division Cases
Agrani Bank, Represented by the Chairman. Board Of Director Agrani Bank.
Head Office. Motijheel C/A Dhaka and others ……………………Appellants
Khandaker Badurdduza …………………………………………..Respondent
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzal Islam J
JUDGEMENT DATE: April 6th, 2004
AAT was in Serious error in modifying the order of dismissal in the manner as stated hereinbefore upon importing the concept of proportionality which has no application in the instant case Sonali Bank Vs. Ruhul Amin 46 DLR (AD) 85, Union of India and another Vs. G. Ganayutham AIR 1997 (SC) 3387.
Civil Appeal No. 288 of 2001. (From the Judgment and Order dated June 27. 2000
passed by the Administrative Appellate Tribunal, Dhaka in Administrative Appellate Tribunal Appeal No. 58 of 1997)
Mr. Mahmudul Islam, Senior Advocae, instructed by Mr. Md. Nawab AH, Advocale-onrecord. … For the Appellants
Mr. Abdus Salam Khan. Senior Advocate, instructed bv Mr. Md. Aftab Hossain, Advocate-onrecord. … For the Respndent
1. Md. Ruhul Amin J. : this appeal by leave is against the judgment and order dated June 27, 2000 of the Administrative Appellate Tribunal, (AAT) Dhaka in Administrative ppellate Tribunal Appeal No -58 of 1997 allowing the same upon modification of the judgment and order dated February 26. 1997 of the Administrative Tribunal , (AT) Dhaka in Administrative Tribunal cased No. 193 of 1994 dismissing the same.
2. The Respondent filed the aforesaid AT case challenging legality of his dismissal and prayed for reinstatement with all financial benefits. Facts of the case, in short, are that the Respondent while serving in the Chak Bazar Branch of the appellant No. I ( Agrani Bank) having had fallen ill on November 15. 1990 applied for leave for one month with effect from November 20, 1990 upon filing a medical certificate duly counter signed by the Medical Officer of the appellant No. 1 that thereafter on December 26. 1990 the Respondent submitted an application for the extension of his leave up to January 15, 1991 . The respondent was served with the charge-sheet on February 2, 1991 containing allegation of unauthorized absence and he was asked to show cause. The respondent showed cause and the same having been found unsatisfactory an inquiry was held and therein he was found guilty. The authority on receiving the inquiry report served 2nd show cause notice on the Respondent, to which he replied, proposing dismissal from service and finally on February 24, 1992 Respondent was dismissed from service.
3. As against the order of dismissal the Respondent filed appeal on March 30, 1992 before the appellant No. 1 and the same was rejected on April 2, 1994 and the matter of rejection of the appeal was communicated to the Respondent on April 7. 1994
4. Thereupon the Respondent filed case before the Administrative Tribunal and the said Tribunal upon holding that here was no procedural defect in holding the departmental proceeding and all the allegations of unauthorized absence were proved during the inquiry and all the actions were taken by the competent authority dismissed the AT Case. The respondent thereupon filed Appeal before the AAT and AAT upon holding “that the learned lower Tribunal has correctly held that there has been no procedural defect in the departmental proceeding. But in our view the order of dismissal from service has been made unreasonably severe in consideration of the nature of the guilt and the said order is liable to be modified” Allowed the appeal in the following manner : “In the result the appeal is allowed in part on contest but without cost. The impugned judgment and order passed on 26.2.97 by the learned Administrative Tribunal, Dhaka dismissing AT. Case No. 193 of 1994 is modified and the said case is allowed in part. The impugned order oi” dismissal from service dated 24.2.92 passed by O. P. No. 4 is hereby modified to that of reducing the applicant-appellant to the lowest stage in the Time Scale. “V The applicant-appellant is entitled to all arrears of financial benefits as per rule for the period he was out of duty because of the order of dismissal from service”.
5. As against the judgment of the AAT the appellants moved the Appellate Division and the leave has been granted to consider the submission that unauthorized absence of the Respondent has been proved and both the Tribunal found the allegation correct and as such Appellate Tribunal committed wrong in interfering with the order of dismissal when there was no procedural defect, that the Appellate Tribunal was wrong in applying the doctrine of proportionality which is not operative in the administration of justice in Bangladesh and the Tribunal can interfere only when a punishment is so unreasonable that no reasonable man would inflict it, that the Administrative Appellate Tribunal was wrong in reducing the punishment awarded by the domestic Tribunal while the espondent himself admitted his guilt, that in one year the Respondent remained absent unauthorized for 113 days and his indicate the attitude of the Respondent and as such for proper management of the banking affairs Respondent had rightly and correctly dismissed by the appellant No. 1.
6. The learned Counsel representing the appellants in elaborating the grounds upon which leave was obtained has submitted that the Administrative Appellate Tribunal (AAT) was in serious error in interfering with the order of dismissal on the ground that the punishment awarded “unreasonably severe in consideration of the nature of the guilt” while the Tribunal found that there was no procedural defect in holding the enquiry and the charges leveled against the Respondent was established. The learned Counsel also submitted that in the background of the facts and circumstances of the case it cannot be said that the punishment so awarded is of such nature that no reasonable man would have inflicted the punishment on the Respondent for the offence committed by him. He further submitted that the AAT was in serious error in modifying the punishment awarded by the department upon introducing the doctrine of proportionality which in the matter of administration of justice in Bangladesh in not operative or in other words in the filed of administration of justice in Bangladesh the dotrine of proportionality is not recognized.
7. The learned Counsel in support of his contention that in the facts and circumstances of the instant case there was no occasion for the AAT to resort to the doctrine of proportionality which is non existing in the field of administration of justice in Bangladesh or to consider the punishment so awarded unreasonably severe referred to the case of Sonali Bank Vs. Ruhul Amin Khn reported in 46 DLR (AD) 85 wherein it has been observed “It is to be observed that there is a fundamental difference between a disciplinary proceeding against an employee taken departmentally and a criminal proceeding in a Court of law against him on the self same facts. In a criminal trial, For an offence like criminal brach of trust or forgery, dishonest intention or mens rea is required to be proved because it is an ingredient of the offence. But in a disciplinary proceeding for negligence of duty or contravention of instructions, etc. No dishonest intention is required to be proved. The liability in such cases in of an absolute nature. Once it is found that an employee is negligent or has contravened any instruction. He incures the liability for punishment and strictly speaking there is no room for showing any leniency even in the matter of punishment merely because his dishonest intention was not proved”.
8. The learned Counsel lias also referred to the case of Union of India and another Vs. G. Ganayutham reported in AIR 1997 (SC) 3387 wherein it has been observed “unless the Court /Tribunal opines in its secondary role, that the administrator was. on the material before him. irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only invert rare cases the Court might to Shorten litigation-think of substituting its own view as to the-Quantum of punishment in the place of the punishment awarded by the competent authority”.
9. It may be mentioned the AAT while observ inc. “the order or dismissal from service has been unreasonably severe in consideration of the nature of the guilt and the said order is liable to be modified” has not assigned any reason in support of the said observation nor has held that the punishment imposed was illegal or vitiated by procedural impropriety, rather the AAT had held that “there has been no procedural defect in the departmental proceeding ” The AAT has also not recorded any finding as to irrationality of the punishment awarded nor it has held that the decision of the appellant No. 1 is one which no sensible person who weighed the pros and cons could have arrived at and that there is no finding based on material, that the punishment awarded was in ‘outrageous’ defiance of logic.
10. As against the aforesaid submissions of the learned Counsel of the appellants, the learned Counsel for the Respondent has submitted that when the law provides for lesser punishment for the offence of which the Respondent was found guilty the authority ought not have imposed harsh punishment like dismissal from service. The learned Counsel also submitted that absence from duty of the Respondent should have been considered as leave without pay as per Regulations 31 (b) of the Regulation, 1981.
11. It may be mentioned the AAT found the allegations of unauthorized absence and borrowing of money were not disputed by the Respondent and in that background that AAT held that the AT had rightly held that to establish the aforesaid allegations no oral evidence was necessary. It may also be mentioned that the AAT in its judgment has noted that first application for leave was submitted after 5 days and the second application after 10 days and that there was no application for extension of leave for the last 20days. In the background of the aforesaid fact we were of the view that the submission of the learned Counsel for the Respondent that for the guilt of the Respondent the authority ought to have awarded him lesser punishment is of no merit and further it is for the authority to decide in the background of the facts and circumstances of the case what punishment will be imposed on the delinquent. We have already observed that Respondent has not brought on record material (s) of the kind wherefrom it can be said that the punishment that has been awarded to the Respondent is either irrational or was an ‘ outrageous’ defiance of logic. In our view the AAT was in Serious error in modifying the order of dismissal in the manner as stated hereinbefore upon importing the concept of proportionality which has no application in the instant case in the background of the decision reported in 46 DLR (AD) 85 and further while the said concept is non existent in the field of administration of justice in Bangladesh . The other submission of the learned Counsel for the Respondent that the appellants should have considered the absence of the Respondent as leave without pay is of no merit in the facts and circumstances of the case in that the absence of the Respondent from his duties without permission is not a single occasion, rather multiple and in that background the authority was quite correct in taking the decision to discontinue the service of the Respondent in the interest of the Organization which is a service oriented Organization.
12. In the background of the discussions made hereinbefore we find merit in the appeal. Accordingly the appeal is allowed. There is no order as to costs.
Source: I ADC (2004),81