Bangladesh Vs. Md. Akhteruzzaman

Appellate Division Cases

(Civil)

PARTIES

Government of Bangladesh …………………..Appellant

-vs-

Md. Akhteruzzaman.. …………………………….Respondent

JUSTICE

Md. Ruhul Amin. J

K. M. Hasan. J

Md. Fazlul Haque. J

JUDGEMENT DATE: 24th November ,2002

The Bangladesh Servants (Special) Provisions Ordinanc 1979, Section 6(2), 5(1).

From a scrutiny of the original Section 6 of the ordinance it appears that only an appeal lied against an order imposing penalty. This Section was amended by a Gazette Notification dated 31.12.1989 by which the provision of review was included in sub section 2 of section 6 i.e after the dismissal of the respondent from service on 3.12.1989 . Thereafter at the time of dismissal the review provision was not there for the appellant to avail it…………………….. (8)

Civil Appeal No. 48 of 2000 (From the judgment and order dated 20.8.1995 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 142 of 1994)

J. Mohammad All, Additional Attorney General, instructed by Mvi. Md. Wahidullah,

Advocate-on-Record…………….. For the Appellant

Md. Serajul Huq, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record…………… For the Respondent

JUDGMENT

1. K. M. Hasan, J . This appeal by leave is against the judgment and order dated 20.8.1995 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 142 of 1994 allowing the appeal.

2. The respondent Md. Akhtueruzzaman, was appointed as z Statistical officer in

Statistical Department on 30.11.1981 on receipt of a massage that his wife and daughter were attacked by diarrhea he lef for Dinajpur on 30.11.1988 without informing the officer. On his return to Dhaka on 29.1.1989 he came to learn that he was selected for training for two months in Public Administration with effect from 5.2.1989. The appellant then applied for leave from 31.1.1989 yo 28.2.1989. The Secretary, Ministry of planning framed charge against him on 31.1.1989 under the provisions of Government servants (special Provisions) Ordinance, 1979 and asked him to show cause as to why he should not be dismissed from service.

3. The respondent duly showed cause denying all the charges brought against him.

Thereafter the Secretary, Ministry of planning issued the second show cause notice on

28.2.1989. The respondent was dismissed from service on 3.12.1989 . Hence the A. T. Case No.Ill of 1994 was initiated. On consideration of the facts and circumstances of the case the learned member, Administrative Tribunal, Dhaka, held that no illegality was committed in the proceeding drawn against the respondent and dismissed the case by his judgment and order dated 16.11.1994 . The respondent then preferred Administrative Appellate Tribunal Appeal No. 142 of 1994. The Administrative Appellate Tribunal after considering the facts, Circumstances and the materials on record and the provisions of law allowed the appeal setting aside the judgment and order dated 16.11.1994 of the Administrative Tribunal, Dhaka, Against the said judgment and order dated 20.8.1995

leave was granted on 27.2.2000 in the following term : “Mr. Mahbubey Alam, learned Additional Attorney General submits that the secretary framed the charge and issued second show course notice in consultation with Public Service commission and as he had obtained prior approval on 3.12.1989 from the President of Bangladesh no illegality is committed by the Secretary in passing the order of dismissal dated 3.12.1989 and the Administrative Appellate Tribunal erred in law in setting aside the judgment and order of the Administrative Tribunal, He further submits that the secretary of the Ministry having been authorized by the appointing authority to frame change against the respondent and he having been empowered under section 6(2) of the government Servant (special Provision) Ordinance, 1979 to issue notice specifying the penalty proposed to be

imposed, the Administrative Appellate Tribunal dismissal passed by the Secretary of the

Ministry is illegal and without jurisdiction, he further submits that under sub-Section (2) of Section 6 of the Bangladesh public Savants (special ) provisions Ordinance, 1979 there

being provision for filing an application for review to the appointing authority before filing the case to the Administrative Tribunal and the respondent having not filed such application his case before the Administrative Tribunal is not maintainable and as such the Administrative Appellate tribunal fell into an error.

4.Mr. A. J. Mohammad Ali, the learned Additional Attorney General, argues that since

the Secrtary, Ministry of planning framed charge and issued second show cause notice in

consultation with public Service Commission and since he had obtained prior approval on

3.1.1989 from the president of Bangladesh no illegality has been committed by the Secretary in passing ;he order of dismissal dated 3.12.1989 . Therefore the Administrative appellate Tribunal erred in law in setting aside the judgment and order of the Administrative Tribunal.

5. In view of the above a reference may be made to section 5(1) of the Government servant (special Provisions) ordinance, 1979 which is to the effect: “When a Government servant is to be proceeded against for any of the offences mentioned in section 3, the

appointing authority or and person authorized by him in this behalf b general or special order shall frame a charge, and by notice accompanied by the charge, require the Government servant, hereinafter called the accusel to show cause within a period which shall not be less than two days nor more than five days from the date of the service of

the notice, why he should not be punished under this ordinance and also to state whether he desires to be heard in person.”

6. From a reading of the aforementioned section it is clear that only the appointing

authority or any person authorized by him shall frame charge and issue show cause notice as to the proposed penalty upon the appellant. In this case it appears that President of Bangladesh who is the appointing authority did not authorize the Secretary, Ministry of Planning to frame charge and issue show cause notice upon the appellant. From the record the learned Additional Attorney General could not show that the Secretary was delegated with the power to draw proceeding against the appellant. He could only show that approval was given on 3.1.1989 by the President with regard to dismissal of the appellate but not for drawing proceeding . Such violation of the requirement of law makes the proceeding illegal and without jurisdiction.

7. Next ground on which the leave was granted is that an application for review to the

appointing authority against the dismissal order under sub-Section (2) of Section 6 of the

Bangladesh Servants (Special ) Provisions Ordinance, case and as such the case before the Administrative Tribunal is not maintainable.

8. From a scrutiny of the original Section 6 of the ordinance it appears that only an appeal

lied against an order imposing penalty. This Section was amended by a Gazette Notification dated 31.12.1989 by which the provision of review was included in sub section 2 of section 6 i.e after the dismissal of the respondent from service on 3.12.1989 . Thereafter at the time of dismissal the review provision was not there for the appellant to avail it.

9. Moreover, from the very inception the inquiry proceeding was drawn by a person not

authorized by the president, therefore no question of review arises. In view of the above, the appeal is dismissed without any order as to costs.

Ed

Source: I ADC (2004), 335

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