Appellate Division Cases
(Civil)
PARTIES
Bangladesh Rural Development Board and others . ……………Appellants.
. -Versus-
Md. Idris AH Akond and others …………………………………. Respondents.
JUDGES
A.T.M. Afzal.C. J.
Mustafa Kamal.J.
Latifur Rahman .J.
Md. Abdur Rouf, J
Bimalendu Bikash Roy Chowdhury, J
Date of Judgment
12th January. 1998
The Government Servants (Discipline & Appeal) Rules, 1976
The Specific Relief Act of section 42. 20 P
For a declaration that the order dated 11.8.1984 removing him from service is illegal, void etc. and that he is still in service as Rural Development Officer, Savar Upazila Central Co-operative Association upon averments, inter (2)
A statutory body, cannot support its disciplinary action against their employee because of an alleged Government order which has no effect in the pending suit and that at any rate the said order could not be relied upon as the Government itself had subsequently suspended the operation of the same which was brought to the notice of the learned judge (7)
Bangladesh Rural Development Board, is a statutory body constituted under the Bangladesh Rural Development Board Ordinance, 1982 (Ordinance No. LIII of 1982) which appointed its own employees. There is nothing in the Ordinance nor has Civil Appeal No. 26 of 1996 anything been brought to our notice by which the Government has maintained its control over the employees of the Board. Disciplinary action against an employee is taken by the Board and it is for the Board to decide whether to reinstate a person after his dismissal from service. An Order by the Government to reinstate an employee of the Board is apparently not covered by any law or rule (9)
This we shall not certainly do to permit another round of confusion as we find that the suit was decreed by the trial Court merely on a technical ground, which is also not correct, that the defendant Board had not followed its own rules in taking the disciplinary proceeding against the plaintiff but followed those of the Government Servants (Discipline and appeal) Rules, 1976. We, however, wish to put on record our appreciation for the correct attitude taken by learned Assistant Judge in a suit like the present one. He has begun his judgment rightly by saying that his Court was not sitting as an appellate Court against the order of dismissal passed by the authority and therefore there is nothing to see whether the allegations made agaii.st the plaintiff were proved or not. The authority controlling the service of the plaintiff is quite competent to decide whether the plaintiff was guilty of the charges leveled against him or not. The learned Assistant Judge rightly observed that even then the Court can scrutinize whether the authority concerned has followed their own rules and regulations while taking action against its employee (12)
ADVOCATES
Mr. A.K.M. Shafiuddin, Advocate, instructed by Mr. Md. Nawah Ali, Advocate-on-Rec ord For the Appellants Mr. Klian Saifur Rahman, Advocate, instructed by Mr. Shamsul Hague Siddic/ue, Advocate -on-Record For Respondent No.1 Not represented Respondent Nos. 2 & 3
JUDGMENT
1. A.T.M.Afzal, CJ. In this appeal by leave by the defendants, the question for consideration is whether the learned Judge of the High Court Division at all acted judicially in setting aside the appellate judgment and decree in favour of the defendants upon relying on a totally extraneous matter unrelated to the contending issues between the parties. After hearing the parties, we have found with regret that the matter has been dealt with in an absolutely misconceived manner and even without noticing a palpable fact on record causing miscarriage of justice. The impugned judgment is therefore wholly unsustainable. Now I proceed to the facts of the case.
2. The plaintiff respondent brought Title Suit No. 465 of 1984 in the Court of Assistant Judge of the then Savar Upazila for a declaration that the order dated 11.8.1984 removing
him from service is illegal, void etc. and that he is still in service as Rural Development Officer, Savar Upazila Central Co-operative Association upon averments, inter alia, that he was appointed as Thana Project Officer under the Bangladesh Pal I i Unnayan Sangstha (BPUS) otherwise called Integrated Rural Development Board (IRDB) now Bangladesh J Rural Development Board (BRDB) in 1973; that he had to his credit commendable service . records; that his wife took a loan of Tk. 72,000/- from the Sonali Bank, Savar Branch as per decision of the concerned authority and she duly repaid the loan and the fact of repayment was noted with satisfaction in resolution No.2 dated 9.5.1986 of the Upazila Central Co-operative Association. Savar to which the plaintiff was attached as Rural Development Officer; that to the utter surprise of the plaintiff he as placed under suspension with effect from 27.7.1983; that the local head of a Director General of B.R.D.B. to withdraw the plaintiffs suspension as his service performance was satisfactory; that the Chairman of the said Co-operative Association also by his letter dated 4.8.1983 and also all the Directors of the Managing Committee of the said Association made similar requests to the said Director General: that the plaintiff’s service
was formerly being guided by the Service Rules and Regulations of IRDB and now his service is being guided by the Managing Committee of the said Co-operative Association and by the Rules and Regulations as laid down by the Bangladesh Rural Development Board vide their 5th and 6th Resolution dated 29.12.83; that inspite of clear cut decisions, resolutions. Rules and Regulations of BRDB by which the plaintiff-respondent is to be guided the authority concerned in total disregard of the same not only put him under suspension but also removed him from service by the impugned order dated 11.8.84 under the Government Rules by which he is not to be guided;-that the departmental charge of misappropriation of Tk. 64.100/- is falsified by the different deposit receipts clearly mentioned in the plaint and likewise other charges of mis-conduct, inefficiency and corruption were false and groundless.
3. The defendant- petitioners contested the suit by filing a written statement denying all the material allegations of the plaintiff and asserting, inter alia, that the suit is not maintainable in its present form, that the BRDB established by Ordinance No. LIII of 1982 did not frame any service rules for regulating the service of the employees of BRDB and decided to follow the provisions of the Government Servants (Discipline & Appeal) Rules. 1976 till framing of the Service Rules of their own and publication in the official gazette. The plaintiff resorted to various malpractice and corruption for his personal gain in contravention of official procedure. He misappropriated huge amount of money and also committed the offence of insubordination and misconduct for which specific charges were brought against him and was place under suspension with effect from 27.7.1983. The explanation submitted by him was not accepted and for fair and impartial enquiry sufficient opportunity was afforded to the plaintiff but he failed to prove his innocence. The authority on careful consideration of the report of the enquiry committee and his past service record found him guilty of the charges and removed him
legally from service.
4. The trial Court decreed the suit on 24.8.1986 whereupon the defendant-appellants preferred Title Appeal No. 226 of 1986 and the learned Subordinate Judge (Arbitration), 4th Court. Dhaka, who heard the appeal, by his judgment and decree dated 13.5.1989 reversed the decision of the trial Court and dismissed the suit holding, inter alia, that the plaintiff failed to prove his case and the suit is not also maintainable being hit by section 42 of the Specific Relief Act.
5. The plaintiff then took a revision from the appellate judgment, Civil Revision No. 699 of 1989, in which the Rule has befti made absolute setting aside the appellate judgment and decree and restoring those of the trial Court by a Single Judge of the High Court Division by the impugned judgment and order dated 4 December, 1994.
6. It appears from the impugned judgment that during the pendency of the appeal before the Subordinate Judge the plaintiff filed a Government order dated 9.2.1988 confirming its decision to reinstate the plaintiff in his former post which was accepted as additional evidence and marked Ext. 19. The learned Subordinate Judge, however, took no notice of it and dismissed the suit.
7. The learned Judge of the High Court Division without deciding the point of law raised for his consideration by the plaintiff although exhaustive notice was taken of the arguments of either side and further without adverting to the reasons for reversal of the trial Court judgment, set aside the appellate judgment and decree observing; “I am of the view that the defendant opposite parties should not have proceeded with the appeal in clear violation and total disregard of the direction in notification issued by the Ministry concerned. In view of the discussions made above I hold that the dispute between the parties came to an end in view of the order of reinstatement of the plaintiff petitioner issued by the Government vide Ext. 19. There remained nothing for the contesting defendant opposite parties to dispute and as such the judgment and decree passed by the lower appellate Court cannot be sustained in law and is liable to be set aside.” Mr. A.K.M. Shafiuddin, learned Advocate for the appellants, submitted that the learned Judge completely misdirected himself in deciding the matter relying upon a wholly irrelevant document, i.e.. the alleged Government order Ext. 19 which has no bearing on the present suit which was instituted by the plaintiff challenging the order of dismissal passed by the defendants and not by the GovernnTent. The learned Advocate submits that the impugned decision is the result of a misconception that the defendant, a statutory body, cannot support its disciplinary action against their employee because of an alleged Government order which has no effect in the pending suit and that at any rate the said order could not be relied upon as the Government itself had subsequently suspended the operation of the same which was brought to the notice of the learned judge.
8. It appears that the plaintiff after making full submission on merit lastly made a submission in the High Court Division that in view of the Government order dated 9.2.88 confirming its earlier decision to reinstate the plaintiff in his former post (which was made Ext. 19 in the appellate Court) it was incumbent upon the defendants to comply with the direction of the Ministry and withdraw the appeal. The learned Judge without at all considering the relevance of the said Government order succumbed to the facile submission of the plaintiff, and. which is more regrettable, without appellate Court set aside its judgment and decree upon holding that the defendants ought not to have proceeded with the appeal.
9. The learned Judge should have kept in mind that the defendant-appellant. Bangladesh Rural Development Board, is a statutory body constituted under the Bangladesh Rural Development Board ‘Ordinance, 1982 (Ordinance No. LIII of 1982) which appointed its own employees. There is nothing in the Ordinance nor has anything been brought to our notice by which the Government has maintained its control over the employees of the Board. Disciplinary action against an employee is taken by the Board and it is for the Board to decide whether to reinstate a person after his dismissal from service. An Order by the Government to reinstate an employee of the Board is apparently not covered by any law or rule. Khan Saifur Rahman, learned Advocate for the plaintiff-respondent, however, sought to justify and government order with reference to section 20 of the Ordinance which says that government may from time to time issue direction to the Board to take such measures as it considers necessary for carrying out die purposes of the Ordinance and the Board shall comply with all such directions. The purposes of the Ordinance have been set out in the permeable thereof and the Government is entitled to issue direction to the Board to take such measures which it considers necessary for carrying out those purposes. The purpose of the Ordinance is certainly not to take action against an employee which is an internal matter of administration for the Board. The Government cannot issue a direction to the Board to reinstate an employee who has been dismissed from service by the Board and furthermore when the Board is contesting the action of the employee in the Court.
10. Ext. 19 is a mere letter of the Government addressed to the Director General of the BRDB but the High Court Division has considered it to be a notification which it is not a
there is no direction in it either. Be that as it may. the Board was not legally bound to comply with the Government decision and with draw from the appeal which it had filed against the decree of the trial Court. The right of appeal of the Board was a statutory right
and it could not be cut short by any authority. The learned Judge suffered from a total misconception in holding that the defendants should not have proceeded with the appeal in view of “the direction in the notification issued by the Ministry concerned”. As a matter of fact, there was no such direction in the said letter except that the Government had taken a decision to reinstate the plaintiff in his former post without mentioning under what authority.
11. Whatever may have been the value of that the Government letter dated 9.2.88 the defendants in their counter-affidavit clearly stated that the said letter was merely a departmental communication and its operation was suspended by a subsequent letter of the Ministry concerned. The learned Advocate for the appellants has submitted before us that the said affidavit was read out to the learned Judge of the High Court Division. In order to support the aforesaid statement in the affidavit, the defendant appellants have annexed to the paper Book a copy of the letter written by them to the Government on 9.3.88 in which after giving the detail background of the wrong doings of the plaintiff it was prayed that the letter dated 9.2.88 of the Government be withdrawn considering the importance that the matter was pending in Court. The Government in reply by its letter dated 19.4.88 suspended the operation of the order dated 9.2.88 pending disposal of the case (a miscellaneous case was perhaps pending at that time). It is clear, therefore, that the Government also decided to abide by the result of the decision in the Court and suspended its own order. We find it wholly incomprehensible as to how the learned Judge
even after knowing that the alleged Government order was suspended by the Government itself could hold that the defendants had proceeded with the appeal in clear violation and disobedience of the Government order. Again, the Board may not have followed the Government order reinstating the \s Mti. kins All Akond and others (A T.M Al’/al. CS I 791 plaintiff, but can that be a ground for setting aside the judgment and decree of the appellate Court without finding that it was either bad in law or on fact? Even Khan Saifur Rahman who obtained the impugned judgment in favour of his client felt embarrassed in advancing any argument in support of the said judgment. He was as if on the horns of a dilemma as he himself persuaded the learned Judge of the High Court Division to give a decision in his favour but now he finds it to be wholly unsupportable. To “get rid of the situation Mr. Rahman submitted that it was a fit case for remand to the High Court Division for disposing of the revision case on merit.
12. This we shall not certainly do to permit another round of confusion as we find that the
suit was decreed by the trial Court merely on a technical ground, which is also not correct, that the defendant Board had not followed its own rules in taking the disciplinary proceeding against the plaintiff but followed those of the Government Servants (Discipline and appeal) Rules, 1976. We. however, wish to put on record our appreciation for the correct attitude taken by learned Assistant Judge in a suit like the present one. He has begun his judgment rightly by saying that his Court was not sitting as an appellate Court against the order of dismissal passed by the authority and therefore there is nothing to see whether the allegations made against the plaintiff were proved or not. The authority controlling the service of the plaintiff is quite competent to decide whether the plaintiff was guilty of the charges leveled against him or not. The learned Assistant Judge rightly observed that even then the Court can scrutinize whether the authority concerned has followed their own rules and regulations while taking action against its employee. The learned Assistant Judge then referred to the resolution of the Board meeting held on 29 December. 1983 Ext. 8 and found thereon that the plaintiff ought to be regulated by the BPUS’s rules and that the “inquiry held by the authority by following the Govt. -Servants (Discipline & Appeal) Rules 1976 and without following the service Rules of B.R.D.B. is an unjust inquiry even though for arguments sake, it is accepted that the principles of natural justice were followed.” Me decreed the suit accordingly. The learned Judge, it will be seen, ended up wrongly while making a very correct beginning.
13. The learned Subordinate Judge, we hold, has taken a correct view in the matter as to the application of rules for enquiry against the plaintiff. The learned Subordinate Judge observed that both the parties failed to submit approved service rules of BRDB. The learned Subordinate Judge ultimately held that till then the BRDB had no approved service rules and regulations to regulate the service of the employees. He considered the aforesaid resolution of the Board dated 29 December, 1983 Ext. 8 (relied upon by the trial Court) and then referred to another resolution of a subsequent date i.e. . 2.3.85 by which ( Paragraph 25) the Board decided that since the BRDB service rules were not yet approved by the Government it would follow the Government Servants (Discipline and Appeal) Rules 1984 and the decisions taken earlier on the basis of the Government Rules of 1976 would be deemed to have been taken in accordance with law. He observed that the BRDB followed the Government Rules for better administration and service of the Board pending approval of its own service rules and regulations by the Government and that it was to be seen whether the plaintiff had been rightly and legally removed from service affording all opportunity of self defence in keeping with the principles of natural justice. Ultimately the learned Subordinate Judge found no irregularities in conducting the enquiry and further held that the plaintiff had failed to prove that the enquiry was not fair and impartial. It was found that the plaintiff was given full opportunity of self defence. The learned Subordinate Judge went on to say that the plaintiff was dismissed in the year 1984 and the service rules of BRDB came into force in 1988 and thus it will be totally erroneous to conclude that the plaintiff’s service would be guided by the BRDB Rules.
14. We record with satisfaction that the learned Subordinate Judge has taken a perfectly legal view in the matter as noticed above. Neither of the Courts below found that the plaintiff had not had full opportunity to defend himself in the enquiry or that there was any violation of the rules which the Board had decided to follow in the absence of its own approved rules. Mr. Saifur Rahman could not find any fault in the appellate judgment which needs correction. We. therefore, find absolutely no justification for making an order of remand as prayed for which will be a ceremony too idle to be permitted.
15. In the result, the appeal is allowed without any order as to cost.
Source: III ADC (2006) 787