GOVERNMENT SERVANTS (DISCIPLINE AND APPEAL) RULES,1984

Rules — 7(11) and 26(2)

Disposal
of departmental proceeding within specified time —Whether an employee of
Trading Corporation of Bangladesh departmentally proceeded against under the
Rules of 1976 stand automatically discharged on the expiry of the time limit to
take decision against them by the authority—All the charges in all the writ
petitions were communicated to the petitioners long before the Rules of 1984
came into force. The charges were commutated under the Rules of 1984 in Writ
petition No.33 of 1986 but the petitioner was suspended on 9-11-81—A legal
fiction can be created only by statute and it is not open to court to create a
legal fiction by interpreting a Rule—If the pending proceedings were to be
covered by Sub-Rule (ii) of Rule 7 then clear words ought to have been employed
to bring their cases within the ambit of the said- sub- rule either in the said
sub—rule itself or in subrule(2) of Rule 26— Sub-Rule (ii) of Rule 7 is only
prospective in operation—The period of limitation will be counted only from the
date when the charges are communicated under Rules or within 150 working days
from the date the employee is placed under suspension, whichever ix
earlier,-The petitioners were cither served with charge sheets or suspended
long h Fore the expiry of 120 working days or 150 w rking days from the date of
cominginto force of the Rules of 1984—The said provision is simply inapplicable
in these cases.

M.A.
Hai and others Vs. Trading Corporation of Bangladesh, 8BLD(HCD)228

GOVERNMENT SERVANTS (DISCIPLINE AND APPEAL) RULES, 1985

Rules —7(9) and 27

Disposal of departmental proceeding within
specified time—Automatic discharge of the employees on the expiry of the
time limit to take decision by the authority— Whether employees of Trading
Corporation of Bangladesh departmentally proceeded against under Government
Servants (Discipline and Appeal) Rules 1976 stand automatically discharged on
the expiry of the time limit to take decision against them by the
authority—These proceedings were drawn under the Rules of 1976 and were pending
when the Rules of 1984 the qualifying clause “as far as may be” was inserted
obviously in the previous Rules there was no such provision, but no such
qualifying clause was necessary in the similar provisions of the Rule of 1985
as the same time limit was there in the provisions of the Rules of 1984—It is
impossible to apply the provision of time limit under the Rules of 1985 in a
proceeding which was drawn under the Rules of 1976-” Government Servants
(Discipline and Appeal) Rules 1985 Rr. 7(9) & 27

M.A.
Hai and others – Vs- Trading Corporation of Bangladesh. 8BLD (AD) 84

Rule — 10(8)

Power of Enquiry officer—Under Rule
10(8) an Enquiry officer shall give only his finding whether the accused is
guilty or not guilty and shall not make any recommendation as to punishment or
otherwise. Further. an enquiry shall be completed within the specified period.

Bashir
Ahmed -Vs- Bangladesh Jute Mills Corporation and others. 12BLD (AD) 125

Rule—11(3)

Further enquiry—It is not required that
a further inquiry is to be made after reinstating the Government servant whose
removal order has been set aside by a Court of law or Administrative Tribunal.
Once the authority decided to hold a further inquiry, the Government servant
“shall be deemed to have been placed under suspension by the authority from the
date of original order of dismissal removal or compulsory retirement and shall
continue to remain under suspension until further order”. The condition of
further inquiry. however, is that the decision to do so shall have to be taken
within 30 days from the date of decision of the Court or Administrative
Tribunal.

Muhammad
Muslim Au -Vs- The Secretary, Ministry of Establishment and others. 12BLD(AD)193

GOVERNMENT SERVANTS (DISCIPLINE AND APPEAL) RULE, 1976

Delinquent Government servant—Departmental
proceeding—Duty of Government—Corrective measures to be taken according to
law—Law must prevail.

“Even
in the case of an exasperating delinquency of a Government servant correcting
measures are to be taken coolly in accordance with law. Between the
plaintiff—respondent’s unauthorised absence and the defendant appellant’s
unauthorised departmental proceeding the law must prevail.

The Executive Engineer, Public Health
Engineering Vs. Mohammad Akkel Au and others, 12BLD (AD) 212

Ref:
36 DLR (AD) 26 (36) 22 DLR (SC) 371—Cited.

Government
Servants (Discipline And Appeal) Rules, 1976

Rules—3 (c)
and 8

It
is well-settled that on the self-same allegation a departmental proceeding
against an employee is competent besides a proceeding in a Court of law.
Although in the present case the departmental proceeding was started on the
basis of the conviction of the respondent in the Summary Martial Law Court but
it was an independent enquiry in which the respondent had examined several
witnesses in his defence and no fault was found by either of the tribunals with
the enquiry procedure. The order of compulsory retirement was passed following
an independent enquiry and the said order has been affirmed in appeal filed
under the Rules. Under such circumstances, irrespective of the question as to
whether conviction on a criminal charge in a Martial Law Court is covered by
Rule 8 of the Rules or not, the order of punishment cannot be interfered with
in the absence of any fault found with the departmental proceeding.

Government
of Bangladesh Vs Md. Abdul Karim, 16 BLD (AD) 99.

Ref: Monoranjan Mukharjee Vs. Election Commissioner,
10 BLD 17 : 41 DLR 484; State of Punjab Vs. Amar Singh Harika, A.I.R 1966 (SC)
1313; Ram Bilas Paswan Vs. Union of India (Cal) (199 1)16, Administrative Tribunal
Cases 18—Cited

Rule—7(5)

It
requires that on receipt of the report of the Enquiry Officer or the Board of
Enquiry, the authority shall consider the report and record its findings on the
charge.

The
Enquiry Officer’s findings are not binding on the punishing authority. The
authority has the duty, obligation and jurisdiction to give independent
findings based not only on the enquiry report and papers submitted by the
Enquiry Officer but also on other departmental reports and papers available to
it. If the enquiry report makes finding in favour of the delinquent employee
and the punishing authority disagrees with the said findings and holds that
charges framed against I delinquent employee have been proved, the punishing
authority is required to give some reasons for disagreeing with the findings of
the Enquiry Officer. Unless the reasonings are perverse and shocking to human
conscience, based on pure surmises and conjectures, there is no scope for the
High Court Division to reject the reasonings.

The Trading
Corporation of Bangladesh, represented by its Chairman Vs Kazi Abdul Hye, 17 BLD
(AD) 156.

Ref:
Md. Bashirullah Vs. Bangladeshi, 1 BLD (1981) (AD) 198; Union of India and
others Vs. Mohd. Ramzan Khan, 1991 (1) SCC 588—Cited.

Departmental
Proceedings—Second proceeding on the same cause of action is not barred

The
Appellate Tribunal after setting aside the order of dismissal from service on grounds
of illegalities and irregularities in the enquiry proceedings directed a fresh
departmental proceeding against the delinquent officer. The principle that a
man cannot be vexed twice on the same cause of action having no application to
departmental proceedings, the order of the Appellate Tribunal cannot be said to
be illegal.

Chaudhury
Aziz Ahmed Hashmatullah Vs. Secretary, (Now Principal Secretary), Govt. of
Bangladesh and others, 15 BLD (AD) 13.

Government
Servants (Discipline And Appeal) Rules, 1984

Rule 7,
Sub-Rule 11

It is mandatory for the Corporation to serve
a second show cause notice to the delinquent of the proposed penalty before the
final order is made. A Corporation having violated the mandatory provision for
removing an employee from service, the order of removal is illegal and without
lawful authority.

Md. Mahfuzur
Rahman Vs. Bangladesh Forest industries Development Corporation 13 BLD (HCD) 182.

Government
Servants (Discipline And Appeals) Rules, 1985

Rules—6 and
7

As
per notification dated 24.6.86, the Secretary being the Designated Officer can
lawfully do everything except imposing a major penalty and the same needs no
approval of the President who is the appointing authority of the respondent.

Sub-rule
(4) of Rule 6 of the Rules only speaks that no major penalty can be imposed by
any subordinate authority other than the appointing authority. Secretary being
the designated authority, the imposition of minor punishment has been lawfully
passed in the case although the charge-sheet was submitted by the authority for
imposing major penalty.

Government
of Bangladesh and another Vs M.A. Malek, 17 BLD (AD) 161.

Rule—7(9)

Completion
of departmental proceeding within 150 days

In
the instant case, no final decision was taken by the authority within 150 days
as contemplated by Rule 7(9) of the Govt. Servants (Discipline and Appeal)
Rules, 1985. But since the Tribunal found the very appointment of the
petitioner as false and fictitious the Appellate Division refused to exercise
its discretion to interfere in the case of a departmental proceeding as the
petitioner would not be able to improve his case in a fresh inquiry.

Md. Abdus
Salam Vs Govt. of Bangladesh, represented by the Collector of Customs and
Excise, Dhaka and others, 17 BLD (AD) 214.

Rule—23

Time spent
on review to be excluded in computing limitation.

The
time spent on review before the President under the Government Servants
(Discipline and Appeal) Rules, 1985 is to be excluded in computing the period
of limitation in filing a case before the Administrative Tribunal.

Md. Jahangir
Kabir Vs Bangladesh, 16 BLD (AD) 85.

Rule 22

Govt.
Servants (Discipline and Appeal) Rules, 1985-Rule 22 prescribes the manner of
disposal of an appeal by an aggrieved Govt. Servant, but no time limit has been
fixed for disposal of appeals by the appellate authority.

Previously
there was a provision for disposal of an appeal within 60 working days, but by
the present amendment, this time limit has been abolished. But even in the
absence of any time limit for disposal of the appeals by the appellate
authority, inordinate delay in disposal of the appeal is deprecated inasmuch as
the aggrieved party cannot ventilate his a grievance before the proper forum
before disposal of his appeal.

Md. Jahangir
Alam Vs. The Secretary, Ministry of land, Govt. of Bangladesh & others, 13
BLD (HCD) 639.

Rule—27

A
reference to rule 27 of the Government Servants (Discipline and Appeal) Rules,
1985 makes it clear that the Rules of 1984 were repealed and as per sub-rule
(2). of rule 27 of the Rules of 1985 there was no bar in disposing of the
proceeding in accordance with the provisions of the Rules of 1985 as the
proceeding was pending at the commencement of the Rules of 1985.

Syed Masudur
Rahman Vs Govt. of Bangladesh and ors., 18 BLD (AD) 245.