Shahinur Alam (Md) Vs. People’s Republic of Bangladesh

Shahinur Alam (Md) (Petitioner)

Vs.

People’s Republic of Bangladesh and others (Respondents)

Supreme Court 

Appellate Division

(Civil)

JUSTICES

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdur Rouf J

Bimalendu Bikash Roy Choudhury J

Judgment : November 27, 1997.

The Administrative Tribunals Act, 1980 (VII of 1981), Section 4(2)

The Rules of Business, 1975, Rule 5

Charges against the government servant having proved with opportunity to defend and when such delinquent being dismissed with due approval of the president and omission of use of the name of the President is merely a technicality, such order of dismissal does not call for interference………………(8)

Lawyers Involved:

Md. Mozaffar Hossain, Advocate, instructed by Md Nawab Ali, Advocate-on-Record -For the Petitioner. 

Not Represented — For the Respondents.

Civil Petition For Leave to Appeal No. 396 of 1996.

(From the Judgment and order dated 25-6-1996 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 82 of 1994).

Judgment

               Mohammad Abdur Rouf J.- The Petitioner Md. Shahinur Alam as a Munsif was proceeded against under the Government Servants (Discipline & Appeal) Rules, 1985 on the charges of misconduct and corruption with the specific allegation that as a Munsif at Bagaripara Upazila in the district of Natore he on 28-4-87 had delivered two Judgments decreeing suit Nos.58 and 59 of 1986 but on 3-5-87 by tampering with those Judgments he illegally dismissed those suits.

2. The then District Judge, Natore as an inquiry official found him guilty and in pursuance thereof the concerned authority after consultation with the Public Service Commission dismissed the petitioner from service with effect from 11-4-88 under Rules 4(3)(d) of the aforesaid Rules, 1985. On 18-3-89, the petitioner filed an application to the Hon’ble President of Bangladesh for reviewing the order of the dismissal from service and the same was rejected. Thereafter on 31-10-89 he instituted Administrative Tribunal Case No.396 of 1989 under section 4(2) of the Administrative Tribunals Act, 1980, for declaration of the said order of dismissal from service as illegal, alleging, inter alia, that the disciplinary proceeding against him was not lawful and that he was not given proper opportunity to defend himself in the proceeding and thereby he was illegally dismissed from service.

3. Respondent Nos.1 and 2, as opposite party Nos. 1 and 2 respectively, contested the case by filing a joint written statement denying the allegation of the petitioner and asserting, inter alia, that the petitioner was dismissed from service in accordance with law and that previously on one occasion he had also been placed under suspension and in another disciplinary proceeding he was awarded penalty in the form of stoppage of three annual increments and that his service record was not at all satisfactory.

4. The Administrative Tribunal, however, by its judgment and order dated 7-5-94 allowed the said case and set aside the order of dismissal of the petitioner from service holding, inter alia, that, the order of dismissal had been passed without consultation with the Supreme Court which is violative of the provision of Article 116 of the Constitution and that the same had also been passed in violation of the mandatory Rule 5 of the Rules of Business, 1975 inasmuch as the same was not passed by the order of the President the appointing authority of the petitioner.

5. Thereafter respondent No.2 preferred appeal in the Administrative Appellate Tribunal, Appellate case No.82 of 1994 against the said order of Administrative Tribunal. The appeal, however, allowed on contest by the Appellate Tribunal by its Judgment and order dated 25-6-96 and thereby petitioner’s case was dismissed.

6. The petitioner now seeks leave from the said Judgement of Administrative Appellate Tribunal.

7. Mr. Md. Mozaffer Hossain, learned Advocate appearing for the petitioner submits only one point namely that the order of dismissal from service was not expressly made in the name of the President Bangladesh or by his order. It is therefore violative of the mandatory Rule 5 of the Rules of Business, 1975. The Administrative Appellate Tribunal acted illegally in setting aside the Judgement of the Administrative Tribunal.

8. Evidently his point was raised before the appellate Tribunal which after perusing the relevant office file held that the Hon’ble President himself under the own hand had passed the impugned order dismissal and as such the Administrative Tribunal acted illegally in setting aside the impugned order of dismissal. It appears that the Administrative Tribunal itself also noted that the impugned order of dismissal had been passed without the approval of the Hon’ble President. Moreover, the impugned order as it appears at page 42 of the paper book shows that it has been expressly mentioned therein that concerned authority mentioning thereby the President of Bangladesh, who was the appointing authority of the petitioner took the decision on petitioner’ dismissal from service, Thus we find little substantive in the submission of the learned Advocate. No case for leave has been made out.

The petition is dismissed.

Ed.

Source : 50 DLR (AD) (1998) 211