Appellate Division Cases
(Civil)
PARTIES
Dhaka Water Supply & Swearage Authority and others ………………Appellants
-VS-
Matiar Rahman…………………………………………..Respondent
JUSTICE
Mahmudul Amin Choudhury CJ
Mainur Reza Chowdhury J
Mohammad Gholam Rabbani J
Md. Ruhul Amin J
JUDGEMENT DATE: 17th April 2001
Rules 44(5), 44(8), 46(2) of the WASA Employees Service Rules of 1990.
Section 114 (g) of the Evidence Act
The officer who was directly in charge of the godown, was at first found guilty of misappropriation and was accordingly punished, but the departmental review board exonerated him ignoring the said officer’s admission that he forged the signature of the respondent in the indent and that the evidence of the PWs that the signature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while considering this issue……………….(11)
Civil Appeal No. 15 of 1999 (From the judgment and order dated 12.3.1998 passed by the High Court Division in Civil Revision No. 3077 of 1995)
Mondial Ahmed, Senior Advocate, instructed by Md. Nowab Ali, Advocate-on-Record……………..For the Appellants
Khandker Mahbubuddin Ahmed, Senior Advocate, ‘ instructed by Sharifuddin Chaklader, Advocate-on-Record……………..For the Respondent
JUDGMENT
1. Mohammad Gholam Rabbani J: This appeal is directed against the judgment and order dated 12.3.98 of a learned Single Judge of the High Court Division in Civil Revision No. 3077″ of 1995 discharging the Rule and thereby upholding the judgment and decree dated 31.1.95 of the 5th Court of Subordinate Judge. Dhaka, passed in Title Appeal No. 31 of 1993 dismissing the appeal and affirming those dated 30.1L92 of the 3rd Additional Court of Assistant Judge. Dhaka, passed in Title Suit No. 59 of 1992 decreeing the suit.
2. Facts necessary for the disposal of this appeal are stated first below.
3. Respondent Md. Matiar Rahman is an engineer. He joined in the service of the appellant Dhaka Water Supply and Swearage Authority, briefly WASA. and at the relevant time he was holding the post of executive engineer on promotion in charge of Zone 6 with effect from 14.9.90. Subsequently he was put under suspension consequent to the report of a departmental enquiry committee, but the appointing Authority failed to communicate the charge sheet to the respondent within the stipulated period of thirty days from the date of framing of the charge as required under rule 46(2) of WASA Employees Service Rules of 1990. Under the Rules the respondent was reinstated to his post and was again put under suspension for the second time respectively by the memo. nos. 2025 and 2026 both dated 5.11.90.
4. The Charge against the respondent was that he misappropriated goods worth taka wenty eight lac stored in a godown of WASA by issuing a fake indent. The defence of the respondent was that his signature in the indent was forged by his subordinate sub-assistant engineer M.A. Sobhan who admitted it in his written statement to the enquiry committee.
5. The departmental enquiry committee found the respondent guilty to the charge and fixed his liability to the extent of 45% of the value of the said goods. Respondent preferred departmental appeal and the appeal board dismissed his appeal and increased his liability to 60%. Ultimately the respondent was dismissed from the service with effect from 4.4.91.
6. Respondent then filed the above-numbered title suit for declaring the order of his dismissal from service as illegal and for other consequential reliefs. The trial court decreed the suit and the decree was affirmed by the lower Appellate Court and the High Court Division respectively in the above-numbered title appeal and civil revision both at the instance of the WASA.
7. Leave was granted at the instance of the appellant WASA to examine following four
points as contended by the appellant’s learned advocate: (i) That the Court below were wrong to hold the impugned order of dismissal of the respondent from the service as illegal when there was no procedural error or defect in the domestic enquiry rather it was held in strict compliance writ the provisions of WASA Employees Service Rules. 1990 (ii) That the High Court Division committed an error of law in interfering with the finding of the domestic enquiry committee fixing the liability of the respondent with regard to the value of the misappropriated goods. (iii) That the High Court Division acted
wrongly in finding fault with the authority for not verifying the disputed signature of the respondent in the indent in question vis-a-vis the evidence of the six witnesses before the domestic enquiry committee. (iv) That the High court Division was wrong to hold that the effect of Rules 44(5), 44(8) and 46(2) of the WASA Employees Rules of 1990 were mandatory in nature.
8. We have heard the learned advocates for the appellant and the respondent respectively for and against the aforesaid contentions.
9. The contentions of the appellant were the issues framed by the Trial Court. Trial Court noticed that the plaintiff was put under suspension with effect from 20.9.90 vide ext.2 under sub-rule 1 of rule 46 of the WASA Employees Service Rules of 1990 (hereinafter referred to as “the said Rules”) and so the WASA was required under sub-rule 2 of rule
46 of the said Rules to serve the date of the order of suspension, but that was not done and consequently the order of suspension stood cancelled from that date under rule 46(2). Trial Court further noticed that the plaintiff having been reinstated to his post vide memo, no. 2025 dated 5.11.90, the second order of his suspension from service vide memo. no.
2026 issued on the same dated on 5.11.90 was illegal and without jurisdiction.
10. Trial Court also noticed that the plaintiff submitted an application objecting to the appointment of Abdul Baki Chowdhury as one of the members of the enquiry committee
on the grounds that the said member was junior to him in service and had strained relationship with him, but the objection was not taken into cinsideration.
11. Trial Court further noticed that M.A. Sobhan, the officer who was directly in charge
of the godown, was at first found guilty of misappropriation and was accordingly punished, but the departmental review board exonerated him ignoring the said officer’s admission that he forged the signature of the respondent in the indent and that the evidence of the PWs that the signature in the indent was that of the respondent should not had been treated as legal evidence for not examining the disputed signature by a hand writing expert. The learned trial judge obviously had in his mind section 114(g) of the Evidence Act while considering this issue.
12. The lower appellant court as well as the High Court Division considering all the aspect of the case came to the same conclusion as that of the trial court that there were numbers of illegalities for which both the impugned orders of suspension and dismissal from service must be held to be illegal.
13. In view of our above discussions about the materials on record we come to the same conclusion as that of the Courts below and find no substance in the contentions upon which leave was obtained by the appellant WASA.
14. This appeal is dismissed with costs.
Ed.
Source: IV ADC (2007), 278.