Bangladesh Vs. Md. Abu Bakar

Appellate Division Cases

(Civil)

PARTIES

Government of Bangladesh represented by Secretary Ministry of Establishment, Bangladesh Secretary, Dhaka……………………………….. ……………Appellant

Vs.

Md. Abu Bakar ……………………………………………………………..Respondent

JUSTICE

Syed J.R. Mudassir Husain C J.

Mohammad Fazlul Karim J.

Amirul Kabir Chowdhury J

Date of Judgment  : 10th July 2005

The Code of Criminal Procedure (V of  1898), Section 144.

The Constitution Aritcle 116.

Provision of Article 116 of the Constitution of the People’s Republic of Bangladesh being not complied with, the impugned order passed by the appellant is not sustainable in law and, therefore the Appellate Tribunal correctly allowed the appeal and there being no illegality the appeal is liable to be dismissed (7)

The respondent being a Magistrate exercising judicial function, it has been submitted strenuously on behalf of the respondent that, while taking the action (Civil Appeal No. 79 of 2003)against the respondent which is admittedly a disciplinary action, the Supreme Court ought to have been consulted. The Administrative Tribunal lent a deaf ear to such submission and thus negated the contention (10)

In order to take disciplinary actions against any Magistrate exercising judicial function, consultation with the Supreme Court is a must (12)

A. J. Mohammad AH, Attorney General, instructed by B.Hossain, Advocate-on-Record. For the Appellant .A.B.M. Nurid Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocateon-Record For the Respondent

JUDGMENT

1. Amirul Kabir Chowdhury J:-Govemment of Bangladesh represented by the Secretary, Ministry of Establishment preferred this appeal against the judgment and order passed by the Administrative Appellate Tribunal dated 09.11.2000 in Appeal No. 66 of 1998.

2. The facts, in short, are tht the respondent Md. Abu Bakar Joined Government service as Circle officer on 13.06.1977. Thereafter on 15.01.1984 he entered into Cadre Service. While he was Thana Magistrate, Muladi in the District of Barisal he was selected for training in the B.C.S. Academy at Shahbagh and he joined the training course on 26.02.1989. The training course continued upto 07.06.1989 the H.S.C Examination under the Jessore Board started in Muladi College Centre. Mr. Abdur Rouf, Assistant Commissioner and in ADC (2006) Bangladesh vs Md. Abu Bakar (Amirul Kabir Chowdhury J) Magistrate, First Class, Barisal Sadar was deputed by the Deputy Commissioner, Barisal by an order dated 05.06.1989 on 08. 06. 1989 to be in charge of Muladi Examination Center. After completion of the training course the respondent returned to Muladi on the night following 10.06.1989. On 11.06.1989 when Mr. Abdur Rouf was in charge of the examination centre there was some trouble in which the Upazilla Nirbahi Officer, Mr. Babul Mazumder was assaulted by some miscreants. At that time the respondent was in his office doing his normal duties. When he heard hue and cry from the examination centre he reshed there, arranged medical treatment for Mr. Majumder and directed the police to open fire when the mob attacked the residence of the UNO. He also promulgated prohibitory order under section 144 of the Code of Criminal Procedure and lodged F.I.R. being Muladi P.S. Case No. 3. An Inquiry Committee constituted by the Deputy Commissioner, held enquiry into the incident and submitted report on 02.09.1989 with the recommendation to transfer the respondent elsewhere and accordingly, the respondent was transferred from Muladi.

3. On 28.05.1992, almost after three years, proceeding was drawn up against the respondent under the provisions of the Government Servant (Discipline and Appeal) Rules, 1985 on allegations that he failed to discharge his duties in connivance with the miscreants at Muladi H.S.C. Examination Centre. The respondent in writing denied the charges on 14.06.1992 and stated further taht he was neither in charge of the Examination Centre nor was he at the centre when the trouble arose at about 11.15 A.M. The enquiry found him guilty in its report dated 29.10.1992. He was served with a second show cause notice on 07.02.1993 proposing imposition of major penalty, to which he sent reply pleading innocence. Ultimately the impugned order dated 03.08.1994 was passed illegally imposing upon him penalty of reduction to lower time scale for three years. He then filed review petition against the order which was rejected by the Hon’ble Present on 12.07.1995.

4. The respondent then filed A.T. Case No. 144 of 1995 before the Administrative Tribunal which was dismissed by judgment and order dated 09.07.1998. The learned member of the Administrative Tribunal held that Article 116 of the Constitution was not applicable to this case and as such for imposition of punishment upon the respondent no consultation with the Supreme Court was necessary. He also held that the impugned order of punishment was passed after observing all necessary formalities in the proceeding. Being aggrieved by the said judgment and order Appeal No. 66 of 1998 was preferred before the Administrative Appellate Tribunal which was allowed on consideration of the evidence and the deposition of the witnesses. Hence is this appeal.

5. Mr. A. J. Mohammad Ali, learned Attorney General appearing on behalf of the appellant submits, inter alia, that the competent authority found the respondent guilty of misconduct and awarded penalty of reduction to lower time scale for three years and that the Administrative Tribunal found that no illegalities or irregularities have been committed by the authority in passing the impugned order.

6. He then submits that the Appellate 290 Bangladesh vs Md. Abu Bakar (Amirul Kabir Chowdhury J) ‘” ADC (2006) Tribunal without considering the facts and circumstances and the law passed the impugned order allowing the appeal which is not sustainable in the eye of law.

7. Mr. A.B.M. Nurul Islam, learned Senior Advocate appearing on behalf of the respondent opposes the appeal submitting, inter alia, that the respondent did not commit any offence as alleged and that the provision of Article 116 of the Constitution of the People’s Republic of Bangladesh being not complied with, the impugned order passed by the appellant is not sustainable in law and, therefore the Appellate Tribunal correctly allowed the appeal and there being no illegality the appeal is liable to be dismissed.

8. We have considered the submissions made at the Bar and perused the materials on record. From the materials on record it appears that the respondent went on training during the relevant period and as such Mr. Abdur Rouf, Assistant Commissioner and Magistrate, First Class, Barisal Sadar was deputed by the Deputy Commissioner, Barisal by an order dated 05.06.1989 to be in charge of Muladi Examination Centre and after completion of the training course he returned to Muladi on 11.06.1989 when Mr. Abdur Rouf was in charge of the examination centre and taht coming to know that there was excitement in the area and the Upazilla Nirbahi Officer was assaulted by the mob who had taken shelter in the Administrative building the respondent went there and then the Officer-in-charge of the police station and principal of the college and others were waiting and that an examinee was injured in the clash who died on the day, then the mob gharaoed the Upalilla Nirbahi Officer and others and the respondent appearing at the scene promulgated order under Section 144 of the Code of Criminal Procedure and order the police to open fire and the police fired blank shots and then the mob dispersed and the respondent lodged F.I.R. with the police station on the occurrence.

9. It appears that the Appellate Tribunal considered the facts and circumstances and found that there was no material to support the allegation of inefficiency or misconduct against the respondent and as such considering the facts and circumstances passed the impugned judgment and order.

10. There is yet another side of the coin. The respondent being a Magistrate exercising judicial function, it has been submitted strenuously on behalf of the respondent that , while taking the action against the respondent which is admittedly a disciplinary action, the Supreme Court ought to have been consulted. The Administrative Tribunal lent a deaf ear to such submission and thus negated the contention.

11. To examine the submission let us quote Article 116 of the constitution of the People’s Republic of Bangladesh which runs as follows: “116. the control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial service and magistrates exercising judicial functions shall vest in the Present and shall be exercised by him in consultation with the Supreme Court.

12. In view of Article 116 of the Constitution we are of the view that in order to take disciplinary actions against any Magistrate exercising judicial function, consultation with the Supreme Court is a must.

13. It does not appear that the respondent was not a Magistrate exercising judicial function at the relevant time. Moreso, in exercise of the judicial function he promulgated prohibitory orders under Section 144 of the Code of Criminal Procedure, ordered police to open fire and the police accordingly fired blank shots and thus dispersed the unruly mob.

14. In the above premises, the submission of the learned Counsel for the respondent that the order of awarding penalty upon the respondent without consultation of the Supreme Court has rendered the said action illegal is backed by sufficient force.

15. We have perused the judgment and order of the Administrative Appellate Tribunal. In view of the discussion made above we do not find that there is any illegality in the impugned judgment and order. Thee is, therefore, no substance in this appeal. The appeal is dismissed without any order as to cost.

Source: III ADC (2006) 288.

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