Serajul Islam (Md) Vs. The Director General of Food

Serajul Islam (Md) (Petitioner)

Vs.

The Director General of Food (Respondent)

 

Supreme Court

Appellate Division

(Civil)

JUSTICE

Shahabuddin Ahmed CJ

MH Rahman J

ATM Afzal J

Mustafa Kamal J

Latifur Rahman J

Judgment dated : March 27, 1990

The Constitution of Bangladesh, 1972, Articles 35, 102, 117

Bar to conviction and punishment more than once for the same offence as referred to in Article 35 relates to criminal prosecutions. ‘Double jeopardy’, which has been defined in Black’s Law Dictionary, means danger of being convicted and punished more than once on same facts constituting offence in a criminal proceeding only. It is to be seen whether this principle may be extended to punishment of a public servant in a departmental proceeding which is also governed by law. Before that, it is to be determined whether a fresh departmental proceeding is at all barred after conclusion of an earlier proceeding on the same facts. If the petitioner can establish a case of double jeopardy on facts he can invoke the law under which he is proceeded against which cannot be opposed to fundamental rights and the Tribunal is competent to enforce the statute. The matter, arising from a departmental proceeding relating to terms and conditions of service of the petitioner the High Court Division rightly found a bar to its jurisdiction under Article 102 of the Constitution…(4)

Lawyers Involved:

Abdur Rab Chowdhury, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Petitioner.

Not represented— The Respondent.

Civil Petition for Leave to Appeal No. 64 of 1990.

(From judgment and order dated 18.2.90 passed by the High Court Division, Dhaka, in Writ Petition No. 309 of 1990.

JUDGEMENT

Shahabuddin Ahmed CJ. – Petitioner, a Government servant, is seeking leave to appeal from an order of the High Court Division dated 18 Febru­ary, 1990 summarily dismissing his writ petition (No. 309 of 1990). By the said writ petition he had challenged an order of the Director General of Food drawing up a departmental proceeding against him.

2. Petitioner was Inspector of Food and In-charge of Sylhet LSD at the relevant time. On the allegation of gross neglect of duty i.e. his failure to take action for recovery of loss on account of Rail­way transit shortage amounting to Tk. 47.9 lacs a charge-sheet was submitted against him on 1 Febru­ary 1987 by the Regional Controller of Food, who, however, cancelled that charge-sheet and issued a fresh charge-sheet on 6 June 1987 asking him to show cause why he would not be dismissed from ser­vice or otherwise punished for gross neglect of duty. On submission of his explanation the matter was enquired into by an Inquiry Officer and the Director, Food, on consideration of the report, let him off with a warning by an order dated 3 December 1987. The Director General of Food ignoring this order is­sued a fresh charge-sheet on 30 January 1990 on the same allegation. It is this charge-sheet which the pe­titioner challenged in his writ petition on the ground of violation of his fundamental rights under Articles 27, 31 and 35 of the Constitution particularly the latter, which prohibits conviction and punishment of a person twice on the same offence. The learned Judges of the High Court Division held that the principle of ‘double jeopardy’ as embodied in Article 35 of the Constitution is not applicable to a depart­mental proceeding against a Government Servant and that the matter being within the exclusive jurisdic­tion of the Administrative Tribunal established under Article 117 of the Constitution, the High Court Di­vision has got no jurisdiction.

3. Mr. Abdur Rab Chowdhury, learned Advo­cate for the petitioner, contends that the matter does not relate to terms and conditions of service of the petitioner but it relates to fundamental rights guaran­teed under the Constitution and it is the High Court Division alone which is competent to enforce funda­mental rights under Article 44, read with Article 102 of the Constitution. The learned Advocate contends that the principle of ‘double jeopardy’ under Article 35 of the Constitution is applicable by analogy to punishment of Government Servants in a departmen­tal proceedings as well. Learned counsel further con­tends that Article 31 of the Constitution which pro­hibits any action detrimental to life, liberty, reputation or property of any person except in accor­dance with law has been violated by the impugned proceeding.

4. We are not impressed by the arguments ad­vanced by the learned Advocate. Protection in respect of trial and punishment, that is, bar to conviction and punishment more than once for the same of­fence as referred to in Article 35 relates to criminal prosecutions. ‘Double jeopardy’, which has been de­fined in Black’s Law Dictionary, means danger of being convicted and punished more than once on same facts constituting offence in a criminal proceeding only. It is to be seen whether this principle may be extended to punishment of a public servant in a departmental proceeding which is also gov­erned by law. Before that, it is to be determined whether a fresh departmental proceeding is at all barred after conclusion of an earlier proceeding on the same facts. In this case the earlier proceeding, drawn up on 6 June, 1987 against the petitioner, was disposed of by the Director of Food, whereas the impugned proceeding dated 30 January 1990 has been drawn up by the Director General, Food who is a higher authority than the Director. The learned counsel contends that even if these questions are de­termined in favour of the petitioner and the principle of double jeopardy is found applicable to a depart­mental proceeding, still the Administrative Tribunal has got no jurisdiction to give necessary relief by enforcing any fundamental right under the Constitu­tion. We do not think so, for, if the petitioner can establish a case of double jeopardy on facts he can invoke the law under which he is proceeded against which cannot be opposed to Fundamental Rights and the Tribunal is competent to enforce the statute. The matter arising from a departmental proceeding relating to terms and conditions of service of the pe­titioner the High Court Division rightly found a bar to its jurisdiction under Article 102 of the Constitu­tion.

The petition is dismissed.

Ed.

Source : 42 DLR (AD) (1990) 199

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