Bangladesh, BTTB Vs. Mohammad Toufique

Appellate Division Cases

(Civil)

PARTIES

The Chairman Bangladesh, Telephone and Telegraph Board, 37/E, Eskaton Garden

Amirul Kabir Road, P. S: Ramna, Dhaka-1000………………………… Petitioner

Vs

Mohammad Toufique and others……………………………………….. Respondents

JUDGES

Syed J. R, Mudassir Husain

M. M. Ruhul Amin J.

Amirul Kabir Chowdhury J

Date of Judgment

17th May 2006

Section 9 Government Lands and Buildings Recovery of Possession Ordinance (Ordinance No. LIV of 1965).

To take steps for taking speedy possession of the same.

Provision of Rule 7(2) of the Government Servants (Discipline and Appeal) Rules, 1985.

Writ petitioner respondent was discharging the duties as a Magistrate being delegated the power under Ordinance of 1965 and that he was in fact exercising the power of the Government and that the proceeding initiated against him on the face of it being malafide and without jurisdiction he had to take shelter of the writ jurisdiction of the High Court Division, according to the learned Counsel, the proceeding being malafide, illegally started against the respondent further continuation of the same is contrary to law and as such the proceeding required to be stayed but the Administrative Tribunal having no jurisdiction to stay even such a malaflde proceeding, the respondent had no other efficacious remedy available to him for redressing his grievance and thus which is grated filed the writ petition (7)

Rafiqul Huq, senior Advocate (Rais Uddin Ahmed, Advocate with leave of the court) instructed by A. K. M. Shahidul Huq, Advocate-on-Record For the Petitioner.Khandker Mahbubuddin Ahmed, Senior Advocate, (Shafique Ahmed, Senior Advocate with him), instructed by Md. Nawab Alt, Advocate-on-Record. For Respondent No.l. Not represented….Respondent Nos. 2-4.

ORDER

1. Amirul Kabir Chowdhury J: -Mohammad Toufique the writ petitioner respondent seeks leave to appeal against the judgment and order dated 08.05.2005 passed by a Division Bench of the High Court Division in Writ Petition No. 4892 of  2003 making the rule absolute.

2. The respondent (Writ petitioner) filed Writ Petition No. 4892 of 2003 stating, inter alia, that he joined Bangladesh Telegraph and Telephone Board (BTTB) as Assistant Divisional Engineer in 1981 and from time to time was promoted to various posts and lastly was transferred as Director (current charge) Phones, Dhaka Telecommunication Regfon (North), Dhaka on 07.10.2001 and that some lands and residential quarters of BTTB situated at Motijheel, Maghbazar and other areas were illegally occupied by trespassers and Ihe respondent No. 5, General manager, Dhaka Telecommunication Region took decision for their eviction under the provision of the Government Lands and Buildings (Recovery of Possession) Ordinance (Ordinance No. LIV of 1965), in short Ordinance 1965and decided to take steps for taking speedy possession of the same and in exercise of the power conferred under Section 9 of the aforesaid Ordinance the Government decided to delegate the powers to the Director of Telephone, Dhaka and accordingly the respondent No. 5 by letter dated 14.07.2003 requested the Police Commissioner, Dhaka Metropolitan Police, Dhaka to deploy a contingent of 20 Police personnel to assist the eviction of unauthorised occupants and trespassers from the T & T land and for deployment of police lorcc necessary fund was also deposited on account of salary and under the Ordinance the writ petitioner respondent with the help of the police removed the unauthorized occupants/trespassers from the T & T land sitatuated at Motijeel and Maghbazar T & T Colony on 12.08. 2002 and 14.08.2002 and that he did the job peacefully and after removal of the unauthorized elements fifteen Ansars were engaged for guarding the area for safety and security and thereafter the eviction interested quarters filed a few cases with the police station and on 15.08.2002 some miscreants attacked the Ansars on duty in T & T colony and tried to snatch away the 303 rifles from them and in order to protect the Government arms and ammunitions and the Government properties the Ansars opened bank fire and the miscreants started firing from all sides on

the Ansars and consequently four persons were killed. But the writ petitioner respondent

was not in any way connected with that incident in any manner whatsoever and that he had no duty in that area on the date of occurrence as he was discharging his job on the day at his office at Sher-E-Bangla Nagar and that being envious of successful eviction by the writ petitioner- respondent, interested quarters filed criminal cases against the writ petitioner respondent but all the cases ended in the final report against him.

3. But the respondent No.3 the Secretary, Ministry of Post and Telecommunication, Government of Bangladesh, by memo dated 15.08.2002 suspended the respondent alleging that he was on duty at Maghbazar T&T area at the time of occurrence on 15.08.2002 though in fact he was not there at that time and that the respondent No. 2 also brought charge against the writ petitioner respondent on 08.04.2003 bringing aforesaid false allegations to which he submitted reply on 24.02.2003 denying the allegations but the respondent No.2 on the allegations leveled against the respondent calling for minor penalty served a notice dated 06.05.2003 to the effect giving him opportunity of being heard and that he appeared and explained that he was not present at the place of occurrence during the occurrence and was innocent and he was given magisterial power and acted in good faith in evicting the unauthorized occupations from T & T land and recovered possession as per law and that the respondent No.2 following the provision of Rule 7(2) of the Government Servants (Discipline and Appeal) Rules, 1985 and without awarding any minor penalty and without following the procedure as laid down in rule 6 illegally issued order dated 31.05.2003 (Annexure-R to the writ petition) forming three member inquiry committee for conducting an inquiry for conducting an inquiry for imposing major penalty upon the respondent and that the members of the inquiry committee did not record statements of any witness in presence of the respondent and issued memo dated 06.07.2003 asking him to appear before the committee on 14.07.2003 for cross examining witnesses who deposed against the writ petitioner respondent and taht both the memo being illegal the writ petitioner felt constrained to file the writ petition challenging the legality of the aforesaid two memo dated 31.05.2003 and 14.07.2003.

4. The rule was contested on behalf of the leave petitioner who also filed an affidavit-in-opposition denying the allegations made in the writ petitioners.

5. The High Court Division after hearing the parties made the rule absolute declaring the departmental proceeding against the writ petitioner-respondent as illceal. Hence is this petition.

6. In support of the petition Mr. Rafiqul Huq. learned Counsel appearing on behalf of the petitioner submits, intcr-alia, that the High Court Division has failed to appreciate that the petitioner has not acquired any right to challenge his suspension and initiation of departmental proceeding by way of a petition under Article 102 of the Constitution inasmuch as the petitioner ought to have challenged the departmental proceedings before the Administrative Tribunal.

7. Mr. Khandker Mahbubuddin Ahmed, learned Counsel appearing for the respondent No. 1 opposes the petition stating, inter-alia, that the writ petitioner respondent was discharging the duties as a Magistrate being delegated the power under Ordinance of 1965 and that he was in fact exercising the power of the Government and that the proceeding initiated against him on the face of it being malafide and without jurisdiction he had to take shelter of the writ jurisdiction of the High Court Division, More so, according to the learned Counsel, the proceeding being malafide, illegally started against the respondent further continuation of the same is contrary to law and as such the proceeding required to be stayed but the Administrative Tribunal having no jurisdiction to stay even such a malafide proceeding, the respondent had no other efficacious remedy available to him for redressing his grievance and thus filed the writ petition. 8. He further submits with reference to Section 11 of the aforesaid Ordinance 1965 that there being clear indemnity of the bonafide action of the respondent the proceeding was also barred and as such the proceeding ought not to have been started against him and so he filed the writ petition legally and that the High Court Division considering the facts and circumstances came to a correct decision in making the rule absolute.

9. The learned Counsel further submits that the respondent being not present at the place of occurrence on 15.08.2002, the date of occurrence and thus under no circumstances could be held responsible for the incident causing death of four persons and still the proceeding being started against him he had to file the writ petition which has been correctly decided by the High Court Division.

10. We have considered the submissions and perused the materials on record.

11. In the facts and circumstances the submissions made on behalf of the petitioner merit consideration.

Security of Tk. 1,000/- is to be deposited within one month.

Preparation of paper book is dispensed with as prayed for.

The petitioner is directed to make the appeal ready for expeditious hearing.

The order of status quo passed on 07.08.2005 vacated.

Source : III ADC (2006), 345.