Appellate Division Cases
Gazi Gaiasuddin ……………………………..Appellant
Bangladesh Power Development Board andother ……………….Respondents
Mahmudul Amin Choudhury C J
Md Ruhul Amin. J
Abu Sayeed Ahammed. J
JUDGEMENT DATE: 21st May, 2002
Service Rules of the Employees Provision of Rule 143(4) of the Rules in case of the disciplinary action and proceedings which provides that the proceeding against a delinquent shall be completed within three months from the date of framing charge but the time limit is not always mandatory .
It may be mentioned grading system as to matters of reduction of system loss and enhancing of revenue was not uniform in respect of the electric supply substations where Resident Engineers were posted and entrusted with the responsibility of reducing the system loss and enhancing of revenue collection and that being so soundness of awarding of punishment for non-attaining of the targets as to system loss and enhancing of revenue in light of the new scheme, can reasonably be questioned on the ground of absence of uniform guide line in the fixing of targets under the reward and punishment scheme of the authority.I….(10)
Civil Appeal Nos. 68 of 2000. From the Judgment and order dated 2 March, 1998 passed by the High Court Division in Writ Petition No. 1845 of 1996.)
Ozair Farooq, Senior Advocate, instructed by, Sharifuddin chaklader, Advocate-on-
Record. ………………….For the Appellant
Amir Hossain, Advocate-on-Record. ……….For the Respondents
1. Md Ruhul Amin, J:– This appeal, by leave, is of the writ petitioner against the judgment and order dated 2 March, 1998 of a Division Bench of the High Court Division in writ Petition No. 1845 of 1996. The writ petition was filed impugning the order dated 5 January, 1995 of the Bangladesh Power Development Board (Respondent No. 1) retiring compulsorily the writ petitioner a diploma engineer, from the service.
2. Facts, in short, are that the appellant joined in the service of the Respondent No.1 in the year 1983 and that while as Resident Engineer (sub Assistant Engineer), he was serving in Dagon Bhuiyan Electric Supply on being transferred from Raipur Electric Supply, wherehe was Resident Engineer, was server with the letter dated 23 July 1994 asking him to explain why disciplinary action under the Bangladesh Power Development Board (Employees) Service Rule, 1982 , hereinafter referred in brief as the rules, would not be taken against him for negligence of duties and misconduct due to his failure to attain the target with reared to reception of system loss and increasing recovery of revenue. The appellant Teplied to the said letter on 30 June, 1994 denying the allegations made against him and that also explained the situations and the reasons why the target could not be reached. The authority being not satisfied with the reply issued charge sheet under the signature of the Deputy Director (J) Enquiry and discipline Directorate, Respondent No. 2 asking the appellant to show cause why he shall not be dismissed from service for the negligence of duty under the provision of Rule 138 (a) and (c) of the Rules . The appellant replied on 21 August, 1994 denying the allegations made against him in the charge sheet and prayed for personal hearing . The authority constituted one man enquiry committee and the enquiry officer after giving personal hearing to the appellant submitted his report ons12 September, 1994 observing that there was shortage of employees and that with increase of manpower the activities with regard to system loss reduced and also there was increase in revenue collection and that there was seriousness from the side of the appellant to reduce the system loss and to increase revenue collection. The authority on receiving the report of the Enquiry officer issued second show cause notice on 20 November, 1994 annexing copy of the enquiry report asking the appellate to show cause as to why penalty of dismissal from service shall not be imposed upon him. The appellant replied to the second show cause notice on 30 November 1994. The authority thereafter issued the order retiring the appellant compulsorily from the service. The appellant filed appeal on 16 January, 1994 and that having not received any information from the respondent as to the result to the appeal he wrote to the appellate-authority on 26 June, 1995 seeking information as to the fate of his appeal and there upon the authority informed the appellant on 21 March, 1996 that his review application has been dismissed.
3. Thereupon the appellant moved the High Court Division in its writ jurisdiction contending inter alia, that he was found not negligent by the enquiry officer in pursuing the policy of the authority as regard minimizing the system loss and that gearing up the fecovery of revenue and as such the order of compulsory retirement was not sustainable in law. It was also contended that non-attaining of the target fixed by the authority as to reduction of system loss and maximization of realization of revenue were not due to the fault of the appellant, rather it was due to shortage of manpower. Further contention of the appellant was that in the 2nd show cause notice it was mentioned that punishment the authority intend to award would be compulsory retirement and lastly it was contended that since enquiry proceeding in the light of the provision of Rule 143(4) of the Rules was not completed with in the time specified in the rule i.e. with in the period of 3 months from the date of framing of the charge and consequent thereupon having not stopped the enquiry proceeding and absolved the appellant from the allegations as such the order of compulsory retirement made in the light of the enquiry report submitted beyond the prescribed period of 3 months for completion of the enquiry was bad in law.
4. The Rule was opposed by the respondent No.2 by filing Affidavit-in-Opposition contending,’ inter alia, that during the relevant period from July, 1992 to J.une 1993 due to negligence of the writ petitioner target for reduction of system loss and realization of revenue could not be attained and that the said failure was a misconduct on the part of the writ petitioner, that writ petitioner’s contention that because of not having sufficient number of employees the target fixed by the authority could not be reached was not correct, since the personnel as against post those were vacant had nothing to do with the work relating to the reduction of system loss and enhancement of revenue collection, that the report of the enquiry officer was misleading and misconceived one, that the authority on consideration of the replies made by the writ petitioner to the letters of the authority the authority and that also of the enquiry report as well as other attending facts and circumstances found the charges level against the writ petitioners were establish and thereupon made the order of compulsory retirement in respect of him.
5. The High Court Division upon considering the materials on record arrived at the findings that the order of punishment of compulsory retirement in respect of the writ petitioner was made after due compliance of the procedure for enquiry as well as on consideration of the materials found the writ petitioner negligent in attaining the target relating to system loss and enhancing of revenue that “since no consequence is provided in the provisions sub rule 4 of Rule 143, this provision for completing the enquiry proceeding with in 3 moths, is not mandatory but directory”, and that “since lesser punishment i.e. compulsory retirement from service has been imposed upon the petitioner and there is no question of the petitioner of being prejudiced because of non mentioning of punishment of compulsory retirement form service in the notice as compulsory retirement is lesser punishment” and thereupon discharged the Rule.
6. The appellant as against the judgment and order of the High Court Division filed petition for leave to appeal. Leave has been granted to consider the submissions of the leave petitioner (i) that in the second show cause notice there has not been any mention of the kind of punishment to be inflicted on the petitioner, (ii) that the respondents failed to consider that the failure of the leasye petitioner in reducing system loss was not due to own fault rather it was due to shortage of staff over which he had no control, (iii) that disciplinary proceeding against the leave petition was illegal in view of the provision of Rule 143(4) which provides that the proceeding shall be completed with in three months from the date of framing of charge but in the instant case though the charge sheet was issued on 16.8.1994, punishment was communicated on 5.1.1995, (iv) that the High Court Division failed to consider that the enquiry officer found no negligence on the part of the leave petitioner for the system loss and as such no punishment under Rule’138 and 139 of the Service Rule of the Power Development Board could be inflicted on him.
7. The submission of the learned counsel for the petitioner that in the second show cause notice there was absence of kind of punishment going to be imposed on the appellant is of no substance since in the second show cause notice the appellant was called upon to show cause why punishment of dismissal from service shall not be imposed upon him. So it is seen from the second show cause notice (Annexure-D to” the writ petition) that the authority proposed- to impose punishment of dismissal from service upon the appellant, but finally imposed lesser harsh kind of punishment of compulsory retirement which undoubtedly the authority under the law in consideration of the materials before it is competent to impose. It is for the punishing authority to make final decision as to the kind of punishment it would impose upon a delinquent employee. The other contention that the proceeding against the appellant was completed beyond 3 months as provided in Rule 143 (4) of the rules and that as punishment was imposed on the basis of the enquiry report made beyond the prescribed period of 3 months as in the Rule 143 (4) of the Rules and consequently the order of compulsory retirement was illegal is also of no mert since no consequence’has been provided in the rule 143 (4) of the Rules in case of non-completion of the enquiry proceeding with in the time mention in the Rule.
8. Now there remains the two other contentions i.e non-attaining of the target of reduction of system loss and enhancing of collection of revenue due to shortage of staff and that the enquiry officer found the appellant of not being negligent in attaining the target fixed by the authority relating to reduction of system loss and enhancing of revenue collection. As seen from the materials on record that the authority upon fixing 1000 marks allotted 60 marks as to the matter of bringing down of (he system loss and 40 marks in respect of the increase of the revenue earning and that out of the 60 marks relating to system loss the appellant was required to score 18.17 and that out of 40 marks appellant was to score 12.35%, but the appellant failed to score the said minimum mark in both counts and that he scored in all 18.09 out of the total 100 mark. In the background of the aforesaid fact the authority served letter asking the appellant to explain why disciplinary action shall not taken against him and that the appellant replied to that. There after the authority issued charge sheet upon the appellant since he defaulted in attaining the targets fixed by the authority relating to system loss and enhancing of revenue and to that the appellant replied. The authority being not satisfied with the reply constituted one man enquiry committee. The enquiry officer finally upon giving hearing to the appellant submitted his report pientioning that there was no negligence on the part of the appellant in attaining the targets fixed by the authority relating to system loss and enhancing of revenue collection and that with the addition of manpower in the subsequent year there was reduction of system loss and enhancement of revenue collection.
9. It may be mentioned that the authority formulated new scheme of reward and punishment for its employees posted in Electric supplystations as regard the matter of achieving thetargets against the system loss and revenue collection, but there is total absence of specific rules or regulation as to that. It appears that there was absence.of uniform system of allocation of marks out of total 100 marks in respectof the matter of system loss and enhancing of revenue collection at different electric supply stations: It is further seen from the materials on record that at the relevant time there was shortage of manpower in the electric supply stationwhere appellant was a Resident Engineer andthat it was specifically asserted by the appellantthat because of shortage of manpower targetsthat were fixed by the authority as regard system loss and enhancing of revenue collection could not be achieved and that this fact finds place in the report of the enquiry officer. It has been contended from the side of the respondentNo.2, that personnel of the posts those were vacant in the sub station had nothing to do withthe reduction of system loss and enhancementof revenue collection .This contention of the Respondent appears to* be not correct” in the background or the fact reflected in the report ofthe Enquiry officer, i.e . it has been specificallymentioned in the enquiry report that with theincrease of the manpower in the sub-station there.has been reduction of system loss and enhancement of revenue collection. So the contention of the appellant that because of the shortage of manpower targets that were fixed by’ the authority relating to system loss and enhancing ‘of revenue collection could not be achieved appears to be of basis and that this contention of the appellant is supported by thereport of the enquiry officer. The authority hascontended that the report of the enquiry officerwas misconceived and misleading but did not place any material to show how and in what respect the report of the Enquiry officer was misleading and misconceived. Fact remains thatwith the increase of manpower there was reduction of system loss and enhancement of revenuecollection and that being so the contention ofthe respen’dent that report of the enquiry officerwas misleading and misconceived as regard targets could not be received because of shortageof manpower does not stand to logic.
10. It may be mentioned grading system as to matters of reduction of. system loss and enhancing of revenue was not uniform in respect of the electric supply substations where Resident Engineers were posted and entrusted with the responsibility of reducing the system loss and enhancing of revenue collection and that being so soundness of awarding of punishment for non-attaining of the targets as to system loss and enhancing of revenue in light of the new scheme, can reasonably be questioned pn the ground of absence of uniform guide line in the fixing of targets under the reward and punishment scheme of the authority.
11. In the light of our discussion made hereinbefore we find that allegations as to failure on the part of the appellant in achieving the targets fixed by the authority relating to reduction of system loss and enhancing of revenue collection was not due to default or negligence on the part of the appellant and as such punishment that has been imposed upon him by the authority on the ground of his default in achieving the targets fixed by it relating to reduction of loss and enhancement of collection of revenue is not legally sustainable in law.
12. In the restilt the appeal is allowed, the judgment and order dated 2 March, 1998 in Writ Petition No. 1845 of 1996 is §et aside and consequent thereupon order dated 5 January , 1995 compulfcorily retiring the appellant from his service made by the respondent No.l and issued under the signature of the respondent No.3 is declared to have been passed without lawful authority. There is no order as to cost.
Source: I ADC (2004),103