Public
Conduct (Scrutiny) Ordinance
(III of
1959)
S. 3: Head Quarter
Screening Committees constituted by the Provincial Government are competent to
screen the Head Quarter Staff and the District Screening Committees competent
to screen the staff of the District.
The Provincial Government constituted two
sets of Screening Committees, one for screening the Head Quarter Staff and the
other for screening the staff working in the District.
The appellant’s contention was that the
respondent a staff of the Revenue Department being posted at an interior place
of the district of Dacca, the Dacca District Screening Committee was not
competent to screen the conduct of the respondent.
Held: The
intention for constituting two sets of Screening Committees was that those who
were posted in the Head Quarter to the department were to be screened by the
Head Quarter Screening Committees and the other staff of the department posted
at various places in different districts were be screened by the District
Screening Committees concerned. So, the respondent who was posted at Keraniganj
within the district of Dacca at the material time, for the purpose of
screening, came ‘under the jurisdiction of the Dacca District Screening Committee.
Province of East Pakistan Vs. A.K.M.Rezaul
Karim (1969) 21 DLR 492.
S. 4—The word
“finding” does not necessarily i an adverse finding—Appointing authority is
empowered to refer a case to Advisory Committee.
Md. Taiyab Ali Vs. Province of East Pakistan
(1961) 23 DLR 131.
—The
Department Head (in this case DPI) was directly subordinate to the Chief
Executive (i.e. the Provincial Government represented by the Secretary of the
department). A Committee under the Public Conduct (Scrutiny) Ordinance
recommended the compulsory retirement of the respondent for misconduct in
respect of whom the D.P.I. was the appointing authority and under the
provisions of the above mentioned Ordinance was authorized to pass the final
order on the recommendation of the, Committee.
In the present case the D.P.I. found himself
unable to agree with the Committee recommending the compulsory retirement of
the respondent and wrote to the chief executive for direction. The latter
directed compulsory retirement of the respondent and the D.P.I in compliance
with that direction rendered his compulsory retirement.
The respondent moved the High Court and
contended that the impugned order was not a lawful order as it was not the
order of the appointing authority the D.P.I who was under law authorized to act
finally in his own discretion (and his inclination was just the other way) but
it was the chief executive’s order which the D.P.1 faithfully carried out. The
High Court upheld this contention and set aside the impugned order.
Held: The
question in this case is not merely as to the exercise of discretion, but
whether, in the direct line of subordination, such as obtain between the chief
executive and the Head of a Department, it is necessary, to maintain a power in
the Departmental Head independent of, and if necessary mop- position to, the
power of the Chief Executive.
The DPI made his order as befits a
subordinate authority, as to the exercise of discretion vested in him, in an
executive matter. It is not dishonesty fop a subordinate to submit his judgment
to that of an executive superior.
The judicial power of the Crown in the
prerogative can never be employed so as to create conflict between senior and
subordinate in a direct line of executive authority.
There can be no excess or abuse of authority
in the exercise of, on the executive side, by superiors over subordinates.
Province of East Pakistan vs. Amir Hossain (1963)
15 DLR (SC) 110.
—Governor
has the power to revoke his earlier order
On the basis of the recommendation of the
Screening Committee the Governor on 28.6.59 passed an order of compulsory
retirement of respondent, under section 4 of the Public Conduct (Scrutiny)
Ordinance and accordingly a notification was issued notifying the fact of
retirement.
The recommendation of the Screening Committee
was not accepted by the Advisory Committee who found the respondent fit and
competent. On the basis of the report of the Advisory Committee the Governor on
29 .6.59 revoked the former order and a notification was also issued to that
effect.
It was contended that the order of the
Governor passed on 29.6.59 revoking his earlier order 28.6.59 is illegal.
Held: The Governor has the power to rescind
an order which he had been empowered to make under the Laws (Continuance in
Force) order and Public Conduct (Scrutiny) Ordinance.
Advisory Committee is something superior to
the Screening Committee and is a revisional authority.
Sabir Ahmed vs. Province of East Pakistan (1961)
13 DLR 616.
—Rules
framed have the force of the provisions of the Ordinance itself.
The phrase “shall pass orders thereon
according to law” in section 4 of the Public Conduct (Scrutiny) Ordinance
comprehends as well the Rules framed under the Ordinance.
The Rules stand on the same footing as the
substantive provisions of the Ordinance and consequently the infraction of the
Rules would have the effect of taking an order passed out of the purview of the
Ordinance itself.
Rules 6 and 7 require the appointing
authority to consider any appeal, filed within 15 days, by any person concerned
against the recommendation of the Screening Committee. Where therefore the
appointing authority without allowing 15 days time to prefer appeal against the
recommendation of the Screening Committee passed orders immediately on receipt
of the recommendations:
Held: An
essential part of the procedure designed to ensure a fair hearing to the person
concerned not being complied with, the impugned order could not be said to be
immune from challenge, in view of the bar raised by section 10 of the
Ordinance.
Sardar Muhd. Zaman Khan Vs. M.B. Nishat
(1962) 14 DLR (SC) 1.
—On a charge of misconduct to which Public
Conduct (Scrutiny) Ordinance applies enquiry by… the Screening Committee into
the conduct of the officer concerned is mandatory.
Govt. of Bangladesh. Vs. Dr. M. Nasiruddin.
(1980) 32 DLR 214.
—Even when an enquiry into the conduct of a
public servant is not a statutory requirement if nevertheless an enquiring is
held it must follow the statutory provision in the conduct of such enquiry;
otherwise the order passed will be without jurisdiction. Ibid.
—Adverse remarks in the confidential report
are an opinion of the Reporting Officer and cannot be treated as an evidence of
misconduct—What is required are specific and definite acts of the public
servant concerned. Ibid.
S 7. Advisory
Committee not bound to follow the procedure of Screening Committee to issue
notice to the person concerned.
Taiyab Ali Vs. Province of East Pakistan
(1961) 13 DLR 131.
—An allegation of malafides against
particular member of Screening Committee is not enough unless it is also shown
that he had influenced the other members of the Committee. Ibid.
S. 10. Court’s
jurisdiction barred to call into question proceeding of a Screening Committee
when it acts within its jurisdiction but not when it acts malafides. Ibid.
—Rules framed under section 8 of the
Ordinance, III of. 1959, are operative under the Public Conduct (Public
Statutory Corporations) (Scrutiny) Ordinance, 1959.
Sardar Muhd. Zaman Khan Vs. M.B. Nishat
(1962) 14 DLR (SC) 1.
—See under section 4 in the case of Province
of East Pakistan vs. Amir Hossain, in 15 DLR (SC) 110 above.
—[See under section 4 in the case of Sardar Muhd. Zaman Khan vs. M.B. Nishat, in
14 DLR (SC) I above].
—Under Article 6(5) of the Laws (Continuance
in Force) Order, 1958, an order rearing a public servant for a “cause mentioned
in clause (3)” which includes “misconduct” shall not be called in question in
any Court. But to attract this bar, misconduct must be found.
Under section 10 of the Public Conduct
(Scrutiny) Ordinance, 1959, an order or finding by i appointing authority or a
Screening Committee shall not be called in question in any Court. But for the
same reasons, the finding in the present e is no finding for which protection
against judicial examination can be claimed, and the order which proceeded
thereon is liable to interference.
Province of East Pakistan Vs. M. Amir Hossain
(1963)15 DLR (SC) 110.