Director Vs. Hasan Ahmed Bhuiyan and another.

Supreme Court

Appellate Division

(Civil)

PARTIES

Director (Establishment and Administration) T & T Board, Tele Communication Building . (Appellant)

Vs.

Hasan Ahmed Bhuiyan and another.  (Respondent)

JUSTICES

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdur Rouf J

Md. Ismailuddin Sarker J

Judgment : June 19th, 1995.

Domestic Tribunal

Procedure- The enquiry office is not to follow the procedure of a trial by a court, he may, in appropriate cases, arrive at a decision simply by questioning the delinquent officer and considering his explanation.

In view of the enquiry report and the other materials including the admission of the respondent No.1 to the first charge the Appellate Tribunal exceed its jurisdiction in setting aside the findings of the Tribunal.

Case Referred to-

Bashir Ahmed vs. Bangladesh lute Mills Corporation and others 44 DLR (AD) 267.

Lawyers Involved:

Sirajul Huq, Advocate, instructed by Sharifuddin Chaklader, Advocate?on?Record ? For the Appellant.

Miah Abdul Gafur, Advocate?on?Record ? For Respondent No.1.

Not represented ?Respondent No. 2.

Civil Appeal No.55 of 1993.

(From the judgment and order dated 31.3.1993 passed by the Administrative Appellate Tribunal Appeal No.53 of 1992).

JUDGEMENT

             Md. Ismailuddin Sarker J: This appeal by leave by the appellant, Director (Establishment and Administration) T & T Board, Telecommunication Building, Dhaka is against the judgment and order dated 31.3.1993 passed by the Administrative Appellate Tribunal Dhaka is Appeal No. 53 of 1992 setting aside the judgment and order dated 26.7.1992 passed by the Administrative Tribunal in Administrative Tribunal Case No. 29 of 1990.

2. Respondent No.1 Hasem Ahmed Bhuiyan filed an application under section 4(1) of the Administrative Tribunal Act. 1980 for a declaration that the order of the appellant dated 31.11.1988 compulsorily retiring him from service was illegal, malafide and invalid and that he was still in service.

3. The case of the respondent No. 1, in short, is that he had been in service in the Office of the Divisional Engineer (Air Condition) T & T Board, Dhaka as Telecommunication Mechanic, in short TCM since 1981. As he did not assist the Divisional Engineer Mr. Maniruzzaman Khan in his corrupt activities the latter bore grudge against him and he suspected that allegation was brought against him in the Anti?Corruption Bureau for that. He was placed under suspension by an order dated 3.5.1988 on the allegations of misconduct and breach of office discipline. Thereafter he was served with charges under Rule 3(b) of the Government Servants (Discipline and Appeal) Rules, 1985 on 13.6.1988 bringing allegations on four heads, namely, that (i) on 29,8.1987 at about 9?00 AM he abused Mr. Mofizullah, a dealing Assistant and Mr. Sarker Alauddin, an Upper Division Clerk of the Central Office T & T Board. Dhaka in filthy language, (ii) that on 20.2.1988 at about 10?30 AM he assaulted Mr. Sarker Alauddin TCM on duty inside Ramna 240 tons Air Condition Plant, (iii) that on 24.4.1988 at about 1?45 PM he abused the Divisional Engineer. (Air condition) T & T Board over telephone and (iv) that on 11.5.1988 he threatened LSD Clerk Mr. Jasimuddin Ahmed. A departmental proceeding was started against him in which one Mr. Md. Ashraful Alam, Divisional Engineer, Management (Termination) was appointed as Enquiry Officer to enquire into the allegations contained in the charges against him. The respondent No.1 submitted a written statement denying the allegations leveled against him. The respondent No.2 is the Chairman T & T Board, Dhaka.

4. The enquiry officer examined as many as 14 witnesses including 4 cited by the respondent No.1 and the respondent No. 1 was also examined by the enquiry officer and he was present before the enquiry officer for the enquiry.

5. The Administrative Tribunal considered the report of the enquiry officer along with other evidence and held that the respondent No. 1 admitted the first charge leveled against him and except the charge of threatening over telephone to the Divisional Engineer the other charges were also proved. The Tribunal noticed that the respondent No. 1 was served with a second show cause notice in reply to which he stated that he was not allowed to cross?examine the witnesses and that two of his witnesses were not properly considered by the enquiry officer. The Tribunal further noticed that the enquiry officer examined 14 witnesses in presence of the respondent No. 1. The Tribunal therefore, held that the impugned order of compulsory retirement was passed on the basis of the enquiry report and sufficient evidence on record and accordingly, dismissed the case.

6. On appeal by the respondent No.1 the Administrative Appellate Tribunal held that the respondent No.1 was not given any opportunity to cross?examine the witnesses, that the enquiry officer did not consider the evidence of the witnesses adduced by the respondent No. 1 and that the respondent No. 1 was not given a reasonable opportunity to defend himself according to law. The Appellate Tribunal also held that the finding of the Tribunal that respondent No.1 admitted the first charge was also wrong and accordingly, the Appellate Tribunal allowed the appeal of respondent No.1 and declared the impugned order of compulsory retirement from service as illegal and invalid and directed to treat the respondent No. I to be in service as before with full pay and other benefits.

7. Leave was granted to consider whether the Appellate Tribunal exceeded its jurisdiction in setting aside the result of the departmental enquiry when the respondent No.1 himself admitted at least one of the charges leveled against him and when the enquiry officer found him guilty of misconduct and breach of office discipline.

8. Mr. Sirajul Huq, the learned Advocate appearing on behalf of the appellants, has contended that the Appellate Tribunal exceeded its jurisdiction in setting aside the result of the enquiry when the respondent No. 1 himself admitted at least one of the charges leveled against him. The learned Advocate further contended that without any finding that the enquiry officer acted unfairly and against the principle of natural justice, the Appellate Tribunal acted in excess of its jurisdiction in holding that the respondent No.1 was not given any opportunity to defend himself before the enquiry officer.

9. Mr. Miah Abdul Gafur, the learned Advocate?on?Record appearing on behalf of the respondent No. 1, on the other hand, contended that the Appellate Tribunal rightly found that the respondent No.1 was not given any opportunity to defend himself as he was not given the right to cross?examine the witnesses. The learned Advocate?on ?Record further contended that the Appellate Tribunal after proper scrutiny of the records, came to the conclusion that the reply of the respondent No.1 to the first charge had no incriminating ingredient and the Tribunal wrongly found the same to be an admission of the respondent No. 1 of the first charge.

10. The learned Advocate appearing on behalf of the appellant placed the proceedings of the enquiry officer before us and it appears from the enquiry report that the respondent No.1 was present during the enquiry wherein he admitted the enquiry officer to be an impartial one. All answers to the questions put by the enquiry officer were recorded in the report. From the report it appears that 14 witnesses were examined including 4 adduced by the respondent No.l. Mr. Golarn Kebria. Mr. Abdul Kader Mr. Lutfor Rahman and Mr. Yeasin Ali cited by the respondent No.1 were examined by the Enquiry Officer. So far as the first charge is concerned the respondent No. 1 admitted the same in writing when the incident occurred.

11. It is to be mentioned that the enquiry officer is not to follow the procedure of trial by court. In appropriate cases, the enquiry officer may arrive at a decision simply by questioning the delinquent officer and considering his explanation. It is not correct that the respondent No. 1 was not given sufficient opportunity to defend himself and it is not necessary in such enquiry for examination and cross?examination of the witnesses as is done by a regular court. Reference may be made in this connection to the following observations of this Division made in the case of Bashir Ahmed vs. Bangladesh Jute Mills Corporation and others reported in 44 DLR (AD) 267:

“The domestic tribunal is not a court to follow procedures of a trial or enquiry according to the Civil Procedure Code. In appropriate cases the domestic tribunal may arrive at a decision simply by questioning the accused and considering his explanation. In some cases examination of witnesses in presence of accused may be absolutely necessary”.

In the instant case before us the enquiry officer examined as many as 14 witnesses in presence of the respondent No.1 including 4 adduced by him. The Tribunal on the basis of the enquiry report and other evidence on record came to the finding that the charges levelled against the respondent No.1 were established and the enquiry officer rightly found him guilty of misconduct and breach of office discipline and accordingly, the Tribunal dismissed the case of the respondent No. 1. The Appellate Tribunal erred in holding that the respondent No.1 was not given the opportunity to defend himself or the enquiry officer did not at all consider the evidence of his witnesses.

12. In view of the enquiry report and the other materials including the admission of the respondent No.1 to the first charge the Appellate Tribunal exceeded its jurisdiction in setting aside the findings of the Tribunal.

13. In the result, the appeal is allowed with costs.

Ed.

Source : 47 DLR (AD) (1995) 143

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