Appellate Division Cases
Government of Bangladesh …………………………..Appellant
Md. Golam Rahaman Mallick ……………………… Respondent.
Shahabuddin Ahmed CJ
M.H. Rahman J
A.T.M. Afzal J
Mustafa Kamal J
Latifur Rahman J
Date of Judgment
27th July 1994
The Constitution, Article 56 (3).
The Government Servants (Discipline and Appeal) Rules, 1985, Rule 4, (2) (3), Rule 25.
Establishment but the words “by order of the President” were used to comply with the constitutional formalities as laid down in the then Article 56 (3) of the Constitution. He means to say that the order of dismissal was not passed “by the President’ and therefore the remedy of appeal was available to him under the 1985 Rules (8)
Respondent was dismissed from service in full compliance with Rule 25 (2) of the 1985 Rules and the Administrative Appellate Tribunal wrongly held that the authority did not decide whether the respondent convicted by a Court of Civil Appeal No.21 of 1992.
Criminal offences should be punished under 1985 Rules or not. The Appellate Tribunal wrongly held that the Government ought to have decided whether on the evidence given before the Summary Martial Law Court the respondent’s dismissal from service was justified or not. He submits that the impugned order of dismissal itself is indicative of the fact that the Government had taken a decision to dismiss the respondent from service after considering his conviction on criminal offences (10)
B. Hossain, Advocate-on-Record For the appellant Khandker Mahbubuddin Ahmead, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record For the respondent.
1. Mustafa Kamal. J : This appeal by the government-appellant is from the judgment and order passed by the Administrative Appellate Tribunal, Dhaka on 2-5-91 in Appeal No.49 of 1990 setting aside the judgment and order passed by the Administrative Tribunal, Dhaka on 11-7-90 in Administrative Tribunal Case No. 132 of 1986.
2. Respondent Md. Golam Rahman Mallik who was at the material time an Additional Land Acquisition officer, Jessore was arrested on 6-3-83 in connection with Kalia P.S. Case No.5 of 1982 and ought to have decided whether on the evidence given before the Summary Martial Law Court the respondent’s dismissal from service was justified or not. He submits that the impugned order of dismissal itself is indicative of the fact that the Government had taken a decision to dismiss the respondent from service after considering his conviction on criminal offences.
11. Mr. Khandker Mahbubuddin Ahmed on the other hand draws our attention to Rules 27 (1) and (2) of he 1985 Rules which are as follows:”27. Repeal and savings.-(1) The Government Servants (Discipline and Appeal) Rules, 1994, are hereby repealed. (2) Such repeal shall not affect the previous pperation of the said rules or anything done or any action taken there under and any proceedings under the said rules pending at the commencement of these rules shall be continued and disposed of in accordance with the provision of these rules.” He submits that unless any proceedings under the 1994 Rules were pending at the commencement of 1985 Rules (the 20th August, 1985) the proceedings cannot be continued and disposed of in accordance with the provisions of 1985 Rules. The appellant has not produced any papers to show that any proceeding was pending against the respondent when the 1985 Rules come into operation on the 20th August, 1985. He submits that in such situation the respondent’s case will be governed by Rule 24 (2) of the Government Servants (Discipline and Appeal) Rules, 1984 which provides as folows :”24. (2) A Government servant convicted by a court of any offence, including any offence involving moral turpitude, shall not be dismissed, discharged or removed from service automatically. The Government shall consider the circumstances which led to the conviction and decide whether the Government servant so convicted shall be retained in service or not: Provided that for arriving at such decision no further proceeding will be drawn up against such convicted person: Provided further that no convicted person shall be re-instated or retained in service except with the approval of the President.”
12. Mr. Ahmed supports the judgment of the Appellate Tribunal and submits that the Government in the impugned order has not considered the circumstances which led to the conviction of the respondent and did not decide whether the respondent so convicted shall be retained in service or not. The impugned order of dismissal was passed mechanically and without application of mind.
13. We cannot accept the submission of Mr. Khandker Mahbubuddin Ahmed that the 1985 Rules are not applicable to the respondent. Rule 27 (2) no doubt provides that any proceedings under 1984 Rules pending at the commencement of 1985. Rules shall be continued and disposed of in accordance with the provisions of 1985 Rules, but this does not mean that if no proceedings under the 1984 Rules were pending at the commencement of 1985 Rules then no fresh proceedings can be taken under 1985 Rules against a Government servant. The Appellate Tribunal has rightly found that the respondent was suspended from 6-3-83 and until the order of dismissal was passed on 18-1-86 he was still in Government service. The Appellate Tribunal also rightly found that the 1985 Rules were applicable to him. The Appellate Tribunal however did not interpret
Rule 25 (2) of 1985 Rules correctly. It was not necessary for the Government to assess the evidence given before the Summary Martial Law Courts to decide whether the respondent should be retained in government service or not. As a matter of fact the Appellate Tribunal considered the Provisions of Rule 24 (2) of 1984 Rules and imported the same into Rule 25 (2) of 2985 Rules. We have gone through the impugned order of dismissal. The authority in view of the conviction of the respondent of a criminal offence decided whether the respondent should be punished under 1985 Rules and in fact decided to dismiss him from service under Rule 4 (3) (d) of 1985 Rules. As no proceeding needs to be drawn up and no opportunity needs to be given to the respondent for showing because against the proposed penalty (under Rule 25 (3) of 1985 Rules) the Government passed the order of dismissal straightway, we find no illegality in it and the Appellate Tribunal was obviously in the wrong in finding the impugned order to be illegal.
14. Mr. Khandker Mahubuddin Ahmed finally submits that the respondent has been tried and convicted by a martial Law Court of a martial law offence and when Rule 25 (2) of 1985 Rules speak of conviction by a Court of any offence, it does not refer either to a Martial Law Court or to a Martial Law offence. He relies upon the case of Monoranjan Mukharjee vs. Election Commission, 41 DLR 484, in support of his submission. the order of the President” on 18-1-86 when Martial Law was in force in the country. Paragraph 19 (2) added to the Fourth Schedule to the Constitution by the Constitution (Seventh Amendment) Act, 1986 (Act No.I of 1986) provides inter alia that all orders made by the President in exercise or purported exercise of the powers derived from the law (which includes Rules), shall be deemed to have been validly made, done or taken and shall not be called in question in or before any Court, Tribunal or Authority on any ground whatsoever. Mr. Khandker Mahbubuddin Ahmed has not addressed us in respect of -X this indemnity clause in the Constitution.
16. For the reasons stated above we find that the judgment and order of the Administrative Appellate Tribunal cannot be sustained. The appeal is therefore allowed without costs.
Latifur Rahman. J : I agree with the ultimate order of my learned brother Mustafa Kamal, J. that the appeal should be allowed, but the reason being different, I write out this separate judgment. As per Rule 16 of the Government Servants (Disciplinary and Appeals) Rules, 1985, briefly, the Rules, no Appeal lies against any order made by the President. In 46 DLR (AD) 113,1 held that in such a case review must be filed under Rule 23 of the Rules before the President. I having held in that decision that the procedure of review must be followed by an agrieved person before going to the tribunal, the case as filed before the Administrative Tribunal is not maintainable as no review was filed as per Rule 23 of the Rules in this case. Hence, on this ground alone I allow the appeal as the case was not maintainable.
Source: III ADC (2006)624