DG, Prisons & others Vs. Md. Nasim Uddin

DG, Prisons & others (Petitioners)

Vs.

Md. Nasim Uddin (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICES

Latifur Rahman CJ                                                  

Bimalendu Bikash Roy Choudhury J                                                           

AMM Rahman J                                                                    

Mahmudul Amin Choudhury J                                                          

Kazi Ebadul Hoque J           

 

Judgment : August 24, 2000.

The Constitution of Bangladesh, 1972, Article 135     

 

The Jail Code, Rule 205     

On the event of dismissal, removal or reduction in rank a person holding a civil post is entitled to a second show cause notice………………………(4)

Case Referred to-

Jamuna Oil Company Limited and another vs. SK Dey and another 44 DLR (AD).

Lawyers:

B Hossain Deputy Attorney-General instructed by Mvi Md Wahidullah, Advocate-on-Record For the Petitioners.    

Not represented — The Respondent.

Civil Petition for Leave to Appeal No. 498 of 1996

(From the judgment and order dated 14-7-1996 passed by the Administrative Appellate Tribunal in Appeal No.01 of 1995)

JUDGEMENT

              

                 Mahmudul Amin Choudhury J.- This petition for leave to appeal is against judgment and order dated 14-7-1996 passed by the Administrative Appellate Tribunal in Appeal No. 01 of l995 affirming the judgment and order dated 31-l0-19 passed by the Administrative Tribunal, Bogra Administrative Tribunal Case No. 21 of 19 dismissing the appeal.

2. The short fact leading to this petition is the respondent Md. Nasim Uddin instituted the aforesaid Administrative Case stating that he was a warder in Pabna jail and on 23-10-1992 the Superintendent of Pabna jail ordered for drawing up of a departmental proceeding against  him and he himself held inquiry in the absence of the respondent and submitted a report to appellant No. 2 Deputy Inspector General of Prisons who without any second show cause notice and without giving any opportunity to the respondent to defend himself dismissed him from service by order dated 4-11-1992. Respondent then preferred an appeal to appellant No. 1 who dismissed the appeal by his order dated 29-1-1994. Thereafter the respondent filed aforesaid AT Case alleging that he was not given any opportunity to cross-examine the witnesses from the prosecution and also was not allowed to examine his own witnesses and that there was no second show cause notice thereby totally depriving the respondent of the opportunity of self defence and the second show cause notice is a constitutional protection for the respondent.

3.  Before the Tribunal the present petitioner and others entered appearance and their case is that as the respondent caused disturbance while performing duties as a warder in Pabna Jail proceeding was initiated against him and after inquiry it was found that the respondent is guilty of misconduct and accordingly following the provision of Rule 205 of the Jail Code he was ultimately dismissed.

4. It is an admitted fact that before passing the order of dismissal no second show cause notice was issued. Mr. B Hossain learned Deputy Attorney-General submits that as the disciplinary action was taken under the Jail Code wherein there is no scope for issuance of a second show cause notice this has not in any way prejudiced the defence. But the Tribunal found that the Deputy Inspector General of Prison has not recorded any reason for not issuing a second show cause notice thereby violated the constitutional protection available to the respondent and relying on the principle of law enunciated in 44 DLR (AD) 104 (Jamuna Oil Company Limited and another vs. SK Dey and another) allowed the case and set aside the order of dismissal passed against this respondent. The Appellate Tribunal also held that the conviction can not be sustained in view of aforesaid decision of this Division. Mr. B Hossain submits that the second show cause notice would not have improved the case of the respondent as he was found guilty of misconduct earlier by the competent authority. But the fact remains that a person holding a civil post is entitled to second show cause notice in the event of his dismissal, removal or reduction in rank. This is a constitutional protection available to a person holding a civil post and admittedly respondent was holding a civil post in the service of the Republic and second show cause notice is a must. It appears that the Tribunal as well as the Appellate Tribunal thoroughly considered this legal position and rightly found that the order of dismissal of the respondent suffers from inherent defect. Both the Tribunals concurrently found that non-issuance of second show cause notice proved fatal for the petitioner and on that ground order of dismissal was set aside. The submission of Mr. B Hossain on issuance of second show cause notice can not be accepted as that notice is a constitutional protection which can not be denied to any one who is serving in a civil post of the Republic. We find no substance in the submission made by Mr B Hossain, the learned Deputy Attorney-General. There is no merit in this petition.

The petition is therefore dismissed.

Before we part with the judgment we must record here our appreciation of the labour and trouble undertaken by Mr. Abdur Rob Chowdhury, the learned Counsel who at out request helped this Division in the proper disposal of this matter.

Ed.

Source : 53 DLR (AD) (2001) 30

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