Appellate Division Cases
(Civil)
PARTIES
Md. Abdul Mazid………….Appellant, (in C.A.No. 320/01)
Monir Ahmed …………….Appellant, (in C.A. No. 321/01)
-vs-
The Secreatary Ministry of Energy and Mineral Resources,
Bangladesh Secretrate, Dhaka and others ……..Respondents. (in both the appeals)
JUSTICE
Md. Ruhul Amin J.
K. M. Hasan. J.
Md. Fazlui Haque J.
JUDGEMENT DATE: 26th October, 2002.
Power Development Board (employees)
Service Rules 1982. Rule 143 41 DLR 138 relied and CPLA No. 776 of 1998 relied.
We find that there has been a violation of Service Rules, 1982. The findings and observations of the High Court Division are factually not correct inasmuch as the said Division failed to take into consideration that the copies of the inquiry reports were not furnished along with the second show cause notice as provided under Rule 143 of the Service Rules, 1982, and the appellants were seriously prejudiced as they did not get reasonable opportunity to defend themselves for lack of copies of the inquiry reports ……………………… (9)
Question of law raising first time before the Appellate Division
The submission advanced by the learned Deputy Attorney-General that the said
grounds of non-supply of copies of the inquiry was not taken before the High Court
Division is of no consequence. Since this is a question of law and may be agitated at any stage of the proceedings ……………….(9)
Principles of Natural Justice It was incumbent upon the authority to furnish the copies of the inquiry report to the appellants along with the show cause notices.
Admittedly this was not done in the instant cases. Therefore, the authority failed to comply with the principles of natural Justice, which will be read with into the Rules and Regulations …………………….(9)
Civil Appeal Nos. 320 & 321 of 2001. (From Judgment and order dated 20.5.1998
passed by the High Court Division in Writ Petition Nos. 4646 and 4648 of 1997).
Abclur Rob Chowdhury, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record ………………..For the Appellant.(in both the Appeals)
B. Hossain, Advocate-on-Record ………For the respondent. No. 3: B (In both the appeals)
Ex-parte ……………..Respondent Nos. 1-2.4-6 (in both the appeals)
JUDGMENT
1. Md. Fazlul Haque, J: These two appeals being Civil Appeal Nos. 320 and 321 of 2001 are directed against the self-same judgment and order dated 20-5-1998. Since common question of facts and law are involved in both the appeals, these are disposed of by this judgment.
2. The short facts leading to Writ-Petition No. 4646 of 1997 are that writ petitioner, who is a Diploma Engineer (Electrical) had joined power Development Board on 9.12.1977 as Sub-Assistant Engineer in Dhaka Zone, System Control Center and he served at many places and lastly, he was working as Resident Engineer at Nokia Electric Supply, Sherpur. Thereafter on 11.1.1996 the petitioner was suspended from service by notice dated 11.1.1996 and was asked to show cause as to why disciplinary action should not be taken against him as he obtained 47.78 marks out of 100 marks in the reward and punishment scheme of power Development Board. The petitioner submitted his reply stating that inhabitants of his area are mostly agriculturist and they can not pay electric consumption bills regularly and some of the defaulters could not be traced out. Moreover Tk. 21,43,943.36 remained outstanding with different Government offices. The authority found the explanation not satisfactory and a charge was framed against the petitioner under rule 138(a) and (c) of Bangladesh power Development Board (Employees) Service Rules, 1982 alleging that the appellant was found to be inefficient. The appellant gave a reply to the charge stating that most of the electrical lines of the area are on bamboo posts and joint wires which lies stretched to remote areas and it was not possible to stop pilferage of power, and further a sum of Tk.21,43,940.63 paisa remained outstanding with the Government offices and many consumers are not traceable for which another sum of Tk. 4,77,181.54 remained outstanding. Thereafter, on 21.8.1996 the appellant was asked to show cause why he should not be dismissed from service as per Rule 143 (4) of Service Rules, 1982 . Thereafter, the appellant was dismissed form service by order-dated 22.6.1997 under Rule 139(l)(b) of the Service Rules, 1982.
3. The case of the petitioner in Writ petition No. 4648 of 1997 is that as a Diploma Engineer (Electrical) he joined power Development Board on 21.8.1978 as Sub-Assistant Engineer, Construction Division, Narayanganj and in this capacity he served at many stations and lastly, while working as Sub-Assistant Engineer on 11.1.1996 he was suspended from service and by order dated 22.1.1996 he was asked to show Cause why disciplinary action should not be, taken against him as he obtained only 47.78 marks out of 100 marks in the reward and punishment scheme of power Development Board. The petitioner duly submitted his reply stating that the distance of Islampur to Jamalpur is about 40 kilometer and due to technical fault 14 distribution transformers had to be repaired on many occasions, which caused system loss and since 95 posts of the electric lines are open and fixed on bamboo posts it caused further system loss. The explanation when found not satisfactory a charge was framed against the petitioner under Rule 138(a) and (c) of the Bangladesh Power Development Board (Employees) Service Rules, 1982 wherein it has been alleged that from July 1993 to June, 1994 the writ-petitioner obtained 47.78 marks out of 100 which shows his inefficiency. The appellant was ultimately dismissed from service by order dated 22.6.1997 under rule 139(l)(b) of Service Rules, 1982.
4. Both the aforesaid writ-petitions were heard together by the High Court Division and the Rules were discharged. The High Court Division while discharging the rules observed that in order to reduce system loss and to earn revenue Bangladesh power Development Board initiated reward and punishment scheme giving reward to the persons employed in each unit, circle and zone, who had satisfactory performance, and at the same time provided for punishment to those who fail to obtain the target mark. The High Court Division observed that in order to regain the image of Power Development Board to the donor country the organization had to take certain steps for increasing revenue earning and to reduce system loss and for that purpose reward and punishment scheme was introduced and in the said scheme maximum marks to be obtained was fixed at 100 and out of that the appellants, Md. Abdul Mazid got 47.78 marks and Monir Ahmed 44.47 marks for which they were placed under suspension and ultimately dismissed from service as per provision of Rule 139 (l)(b) of the Service Rules, 1982 . The High Court Division found that explanations were called for which were when found not satisfactory inquiry officers were appointed where the appellants were heard in persons and after inquiry these two appellants were found guilt and ultimately dismissed. The High Court Division found that since all the rules were observed by the Board there is nothing to be interfered with.
5 . Leave was granted to consider as to whether the appellants were prejudiced as they did not get reasonable opportunity to defend themselves because they were not furnished with the copies of the inquiry reports with the second show cause notice under rule 143 of power Development Board (Employees) Service Rules, 1982 as was mandated by the decision in 41 DLR 138 and by the Appellate Division in Civil Petition for leave to Appeal No.776 of 1998.
6. We have gone through the judgment passed by the High Court Division where in the High Court Division has observed. “Inquiry officers were appointed in terms of Rule 143(3) and the concerned inquiry officer’s offered personal hearing to the petitioners and after due inquiry found the petitioners guilty and as this court, under writ jurisdiction cannot sit as a court of appeal and decide whether the said inquiry officer’s on proper appraciation of evidence, duly came to the aforesaid findings. Since it appears that all the relevant procedure of Service Rules, 1982 were followed and the enquiry officers, after giving all opportunities as provided in Service rules, 1982 and also complying the provisions of natural justice, found that the charge against the petitioners have been proved and thereafter the competent authority after considering the findings of the enquiry officers and other circumstances, passed the impugned orders, we are of the view that no interference is called for in these writ petitions. In the Result, these Rules are discharged without any order as to costs.”
7. Mr. Abdur Rob Chowdhury, the learned Advocate appearing for these two appellants submits that the learned Judges of the High Court division while disposing of writ petitions failed to appreciate the local factors of Jamalpur where the distribution line run on bamboo posts with joint wires resulting high system loss and most of the arrears of revenue were with Government departments which were beyond the control of the appellants to realize. The learned advocate further submits that the standard and targets were not realistically established with due regard to the economic condition of the consumers and the conduct of the Government agencies. Lastly, the learned advocate submits that the appellants were highly prejudiced as they did not get reasonable opportunity to defend themselves because they were not furnished with the copies of the inquiry reports with the second show cause notices under Rule 143 of Power Development Board (employees) Service Rules, 1982 as was mandated by the decision in 41 DLR 138and by the Appellate Division in Civil Petition for leave to Appeal No, 776 of 1998.
8. Mr. B. Hossain, the learned Deputy Attorney General appearing on behalf of the respondents submits that the grounds have not been agitated before the High Court Division as to the non-supply of copies of the inquiry report along with the second show Cause notice.
9. We have considered this aspect of the case. It appears that as per Rule 143 of Power Development (Employees) Service Rules, 1982 the authority is required to furnish the copies of the inquiry reports along with show cause notice. The High Court Division has observed that all the Rules and regulations were complied with and thereupon the appellants were found guilty and that the High Court Division cannot sit as a court of appeal to interfere with the findings of the inquiry officers. Be that as it may, admittedly the copies of the inquiry reports were not forwarded along with the second show cause notice as provided under Rule 143 of power Development (Employees) Service Rules, 1982 to the appellants. Therefore, we find that there has been a violation of Service Rules, 1982. The findings and observations of the High Court Division are factually not correct inasmuch as the said Division failed to take into consideration that the copies of the inquiry reports were not furnished along with the second show cause notice as provided under Rule 143 of the Service Rules, 1982, and the appellants were seriously prejudiced as they did not get reasonable opportunity to defend themselves for lack of copies of the inquiry reports. The submission advanced by the learned Deputy Attorney-General that the said grounds of non-supply of copies of the inquiry was not taken before the High Court Division is of no consequence. Since this is a question of law and may be agitated at any stage of the proceedings. Further, the decision reported in 41 DLR 138 and the unreported decision by the Appellate Division in Civil petition for leave to Appeal No. 776 of 1998 clearly demonstrate that it is mandatory that the copies of the inquiry report must be furnished along with second show cause notice enabling the incumbent to place his side of the case. In fact, it has been held in the case of Md. Torab Ali-vs- Bangladesh Textiles Mills Corporation reported in 41 DLR 138 that:
“The petitioner is an employee of a statutory Corporation. He is not a government servant. He cannot claim a second opportunity to show cause as a matter of right. But if his Service Rules or Regulations provide for a second show cause notice, then it must be served on him, as has been done in the present case. A second show cause notice is, in fact, the accused employee’s last opportunity to place his side of the case before the appointing authority who is about to take the last decision against the accused employee armed with the report of the enquiry officer. The accused employed has the burden of disabusing the mind of the appointing authority from the impression created by the report of the enquiry officer. If he does not get a copy of the report, he has no means of knowing what finding or findings of the enquiry officer have gone against him and what have weighed with the appointing authority in coming to a decision as to the punishment proposed to be inflicted upon him. He does not know on what point or points he should address himself to the appointing authority. Without the report he is groping in the dark. The second show cause notice no doubt requires him only to show cause why the proposed punishment shall not be inflicted upon him. But upon. But upon perusal of his reply, the appointing authority may still take any view of his guilt. The second show cause notice, therefore, is not an idle formality. In order to be meaningful, it has to be accompanied or followed by the report of the enquiry officer. So whether or not rules or regulations provide for a copy of the report to be given to the accused employee, the rules of natural justice require that along with the second show cause notice that accused employee should be furnished with the same. Failure to do so will be a failure to comply with the principles of natural justice which will be read into Rules or Regulations”.
10. Therefore, it was incumbent upon the authority to furnish the copies of the inquiry report to the appellants along with the show cause notices. Admittedly this was not done in the instant cases. Therefore, the authority failed to comply with the principles of natural justice which will be read into the Rules or Regulations.
11. We have also considered the judgment passed by the High Court Division as well as submissions made by the respective parties. We are of the view that the High Court Division has committed error of law in holding that the Rules and regulations of the Bangladesh power Development Board (Employees) Service Rules, 1982 have been complied which are not factually correct. Rule 143 of the power Development (employees) Service Rules, 1982 was not complied with before the appellants were dismissed from service inasmuch as copies of inquiry reports were not served upon the appellants. In the light of the aforesaid decisions this is mandatory. In that view of the matter we are inclined to allow both the appeals. Accordingly, both the appeals are allowed without any order as to costs and the judgment and order dated 20.5.1998 passed by the High Court Division in Writ-Petition Nos. 4646 and 4648 of 1997 are set aside.
Ed.
Source: I ADC (2004), 409