Appellate Division Cases
Government Bangladesh represented by the Secretary, Ministry of Post Telegraph
and Telecommunication & Others…………………………….Petitioners
Mir, Abul Khair…………………………………………………………..Respondents
Md. Ruhul Amin: J
Mohammad Fazlul Karim. J
M. M. Ruhul Amin. J
Md. Tafazzul Islam. J
JUDGEMENT DATE: 23rd February 2004.
Government Service (Discipline and Appeal) Rules,
The Administrative Tribunal dismissed the case and on appeal same was reversed as aforesaid. Mvi. Ad. Wahidullah, the learned Advocate-on-Record appearing for the petitioners submitted that the enquiry officer held inquiry in accordance with rule and the respondent having legally been compulsorily retired the Administrative Tribunal rightly dismissed the Administrative Case No. 114 of 1994 and thus Administrative Appellate Tribunal erred in Tribunal disturbing the finding of facts duly arrived at by the Administrative Tribunal and as such the same requires interference by this Division………….(4)
Government Service (Discipline and Appeal) Rules, 1985 have not been complied with thereby seriously prejudiced the respondent in his defence and accordingly set aside the impugned order of compulsory retirement of the petitioner and restored him to his original position with all back wages and benefits as admissible under law. The authority imposing any punishment upon a delinquent staff has a duty to see that he has been dealt with in accordance with law and following the principles of natural justice………………..(6)
Civil Petition For Leave to Appeal No. 889 of 2002 ( From the judgment and order dated 24th April 2002 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 57 of 2000)
Mvi, Md. Wahidulah, Advocate-on-Record. …………..For the Petitioners
Md. Sajjadul Hoque, Advocate-on-Record. ……………For the Respondent
1. Mohammad Fazlul Karim, J: – The Government of Bangladesh and others seek
leave to appeal against the judgment and order of the Administrative Appellate Tribunal.
Dhaka in Administrative Appellate Tribunal Appeal No. 57 of 2000 dated 24.4.2002 allowing the appeal setting aside the impugned judgment and order on 18.4.2000 passed by the Administrative Tribunal, Dhaka dismissing A. T. Case No. 114 of 1998 and setting aside the punishment of compulsory retirement passed on 27.2.1997 and thereby restoring the respondent to his former post treating him on duty with all financial and other benefits as admissible under the rules.
2. The respondent filed an application under section 4 of the Administrative Tribunal
Act, 1980 being Administrative Tribunal Case No. 114 of 1998 stating inter alia, that he was appointed as postal clerk on 7.9.1971 and subsequently he was promoted to the rank of Asstt. Post Master (Non-Gazetted) on 13.11.1991. During the tenure of his service he was directly associated with the Trade Union activates. He held the office of Secretary, vice President as well as the President of Dhaka district Side Postal Union Mr. Arun Kumar Sarked Additional Director Genial Bangladesh Post Office, used to invite false and frivolous written allegation against the elected Union Office bearers. On the basis of anonymous Petition he transferred the respondent to Dhaka G.P.O from Sadarghat Post Office and a number of inquires were held to victimize the respondent. Subsequently, a departmental proceeding was drawn up against the respondent brining several charges at the instance of said Arun Kumar Sarker, ADC and a charge sheet drawn up on 6.4.1996 was sent to the respondent. The respondent submitted reply to the allegations
mentioning some irregularities and mistakes for which he was not responsible and the
Government did not sustain any financial loss due to the alleged irregularities. Had there been really any financial loss the same could have been reported to law enforcing agencies, but the authority proceeded against the respondent with the departmental proceeding by appointing Mr. Abdus Sattar A. P M. O (Security) who issued notice to the respondent on 4.7.1996 fixing 8.7.1996 for appearance and hearing . The respondent appeared before him an he was given questionnaire to which he was directed to reply in writing . The Enquiry Officer conducted enquiry is violation of the prescribed rules of the Government Servants (Discipline & Appeal) Rules, 1985. The Enquiry Officer found the respondent guilty of the charges and the authority issued second show cause notice dated 28.8.96 . The respondent submitted reply on 1.9.96 allegation inter alia, that he had no knowledge about the opening of more than one account in his name and he never committed any offence of temporary defalcation as alleged. Thereafter, the respondent was called for personal hearing at the office chamber of Post Master General. On appearance the respondent was again provided with a questionnaire and asked to give his written reply therein. Thereafter, the respondent received the impugned order of compulsory retirement from service dated 27.2.97 . Although he has still 10 years service in his credit. The respondent preferred an appeal to the Director General, Post Office, on 29.5.97 who rejected the appeal on 23.12.97 most illegally, upholding the order of
punishment of compulsory retirement from service.
3. The petitioners contested the case filing written statement denying Allegations stating,
inter alia, that the respondent was appointed as Postal Clerk and he joined in service on
7.9.1971. Subsequently, he was promoted to the post of Assistant Post Master and had been working in the said post from 14.11.1991. During the tenure of his service allegation were received against him for misappropriation of money from pass book account and Savings Defence Accounts of Post Office Branch where in he was posted. The allegations were enquired into by the Additional Director General (Savings and Insurance), Postal Department, During enquiry it was found that one dijendra Chandra Dutta opened Account No. RD-1412 and received interest of the Deposit on several
occasions. Account No. 4357 was opened in the same post Office in his name against the Rules. Again his another Account bearing No. F.D. 4740 was brought to the same Post Office on transfer. Respondent was acquainted with the said Dijendra chandra Duta and he was known to him since long and at his instance several accounts were opened illegally in the post Office. Huge amount of Government money was unlawfully disbursed to him from those accounts. Similarly, number of accounts were opened in the name of Himangau Dutta and Prodip Kumar Dutta, sons of the aforesaid Digendra Chandra Dutta, most illegally causing financial loss to the Government. It was also
found that the respondent tried to misappropriate Tk. 6,000/- at the time of payment of a
Defence Savings Certificate. When the occurrenc of temporary defalcation came to the
knowledge of the authority, the respondent deposited the amount of Tk. 6000/-. He was
found to have written excess amount by interpolation for the purpose of alleged misappropriation of Tk. 6000/-. The petitioner was also found involved in committing forgery in misappropriation of Tk. 6,565/- from Account No. F. G. 2091. So in view of the aforesaid allegations, charges were framed in the departmental proceeding
against the respondent under rules 3(b) of the Government Servants (Discipline &
Appeal) Rules, 1985. The respondent submitted reply to the charges and personally participated at the hearing of the proceeding case before the Enquiry Officer and the authority took the decision on the basis of enquiry report on serving second show cause notice in accordance with rules. There is no illegality in the matter of taking disciplinary action against the respondent and as such the case is liable to be dismissed.
4. The Administrative Tribunal dismissed the case and on appeal same was reversed as
aforesaid. Mvi. Ad. Wahidullah, the learned Advocate-on-Record appearing for the petitioners submitted that the enquiry officer held inquiry in accordance with rule and the respondent having legally been compulsorily retired the Administrative Tribunal rightly dismissed the Administrative Case No. 114 of 1994 and thus Administrative Appellate Tribunal erred in Tribunal disturbing the finding of facts duly arrived at by the Administrative Tribunal and as such the same requires interference by this Division. The learned Advocate-on-Record further submitted that the Administrative Tribunal rightly held that rule 7 and 10 of the Government Service (Discipline and Appeal) rules, 1985 have been complied with and the Administrative Appellate Tribunal wrongly held otherwise. The learned Advocate-on-Record lastly submitted that during the period
of service of the respondent good amount was misappropriated out of the pass book and savings certificate and Administrative Tribunal rightly held so and dismissed the case of the respondent.
5. On perusal of the impugned judgment it appears that the Administrative Appellate
Tribunal arrived at a finding, inter, alia, that : “It further transpires from the written
reply of the charges that the petitioner appellant did not admit his guilt except the irregularities with regard to a payment of Tk. 6000/- of Saving Defence Certificate and no charge under rule 3(d) for corruption was brought against him” “It is evident that as per provision of Rule 10(4) of Govt. Servants (Discipline & Appeal) rules 1985 no
person was nominated to present the case in support of the charge before the
enquiry officer.” “It is further evident that one G.M Rafuqul Islam A.F.M.G. Central (Circle) sent notice on 15.9.96 (Annexure-1) to the petitioner directing him to personally appear before the Post Master General O.P. Respondent No.3 (appointing authority) on 6.10.96 at 11. A. M. for hearing him in person and in the name of personal hearing
some questionnaire was given to the petitioner to answers. So the appearance of the petitioner before P.M.C. during enquiry who happens to be the appointing authority of the petitioner is against the provisions of law. If the appointing authority O.P No. 3 P.M.G. was not satisfied with the enquiry report he could easily pass an order for further enquiry on certain points with a view of arrive at a firm decision.”It appears that the Tribunal wrongly placed onus of proof to substantiate charge against the respondent contrary to the established -of law and natural justice inasmuch as the rule 7 and 10 of the
6. Government Service (Discipline and Appeal) Rules, 1985 have not been complied
with thereby seriously prejudiced the respondent in his defence and accordingly set aside the impugned order of compulsory retirement of the petitioner and restored him to his original position with all back wages and benefits as admissible under law. The authority imposing any punishment upon a delinquent staff has a duty to see that he has been dealt with in accordance with law and following the principles of natural justice.
7. In the instant case the Administrative Appellate Tribunal on scrutiny, found that the
respondent has not been properly dealt with during the enquiry complying with the provision of law following the principles of natural justice and as such the impugned orders have been tainted with illegality making the same illegal and void and as such the same are not sustainable in law.
8. We have no reason to interfere with the impugned order of the Appellate Tribunal when apparently the respondent has not been dealt with in accordance with law following the principles of natural justice. The Petition is dismissed.
Source: I ADC (2004), 165