Shaymol Mitra Borua Vs. Bangladesh Government and others

Appellate Division Cases

(Civil)

PARTIES

Shaymol Mitra Borua……………… Petitioner.

-Vs-

Bangladesh Government and others……………… Respondents.


JUSTICES

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Hassan Ameen J

Judgment Dated: 10th February 2008

The P.R.B (Vol.1), Regulation 861, 857

It appears from the record that admittedly the order of removal from service was made on 24.12.1999 and the petitioner on 22.01.1995 has preferred his departmental appeal direct, not through the proper channel as prescribed by Regulation 888 of the P.R.B., before the D.I.G., Chittagong Range, Chittagong. But the petitioner claims that such departmental appeal was rejected on 21.05.1995. It is found that such appeal was in fact rejected on 10.03.1995 and the petitioner manipulated the figure 5 in place of 3 and thereby charged the exact and real date of rejection which was on 10.03.1995. In this view of the matter, the petitioner was required to file his A.T. Case within 10.09.1995 i.e. within 6 months from the date of rejection of his appeal to the higher Administrative Authority and the A.T. Case having been admittedly filed on 06.11.1995 such case was filed beyond the period of limitation………………. (5)

It further appears that Regulation 882(d) of the P.R.B. (Volume-I) provides that “No second appeal shall lie from an order passed in an appeal”. Moreover Regulation 883 of the said P.R.B. provides that petitions of appeal or for revision is required to be presented to the officer against whose order the appeal is preferred within 37 days of the date of receipt of the order and Regulation 888 of the said P.R.B. prescribes that the petitioner was forbidden from submitting his petition direct to his higher authority and the said Regulation states that the petitioner or representations complaining against of any order of punishment passed against him either made originally or in appeal and any police officer who disregards would be guilty of the breach of discipline and be dealt with accordingly …………………..(6)

Abdul Wadud Bhuiycm, Senior Advocate, instructed by Syed Mahbubar Rahman,

Advocate-on-Record………………… For the Petitioner

For Respondents………………….. None Represented.

Civil Petition For Leave To Appeal No. 1132 of 2006

(From the judgment and order dated 5th July, 2006 passed by the Administrative

Appellate Tribunal Dhaka in A.A.T. No.71 of 1998).

JUDGMENT

Mohammad Fazlul Karim J: This petition for leave to appeal at the instance of the petitioner is directed against the judgment and order dated 05.07.2006 passed by the Administrative Appellate Tribunal in A.A.T. Appeal No.71 of 1998 allowing the appeal reversing those dated 20.07.1998 of the Administrative Tribunal, Dhaka allowing A.T. Case no.l96of 1995.

2. The short facts are that while the petitioner was serving as a Sub Inspector of Police at Chhagolnaya Police Station in the District of Feni, a department proceeding Case No.7 of 1994 dated 19.03. 1994 was started against him framing charge sheet on the allegation as detailed therein under Regulation 861 of the P.R.B (Vol.1) and asked the Petitioner to show cause as to why he would not be duly punished under Regulation 857 of the said P.R.B and to directed the petitioner to state whether the petitioner desired to be heard

in person; that petitioner submitted his written statement in reply the show cause notice containing charge sheet denying the allegations as brought against him and pleaded his innocence and desired to be heard in person; that the charges as framed against the petitioner was enquired into by appointing an Enquiry Officer who after enquiry in presence of the petitioner found guilty in full for charge No.l and in part for the charge No.2; that the authority, the S.P. Feni on consideration of the enquiry report and the materials on record passed a provisional order on 03.11.1994 with a proposal to remove the petitioner from service thereupon asked him as to why such penalty not be imposed upon him and also asked him to submit his oral or written statement in response; that the petitioner submitted his written statement on 17.12.1994 in his defence praying for

exonerating him from the charges and the proposed penalty; but the Superintendent of Police, Feni, on consideration of materials on record and hearing the petitioner in person passed the final order of removing him from service vide order dated 24.12.1994; that the petitioner preferred on 12.01.1995 a departmental appeal against the aforesaid order from removal of service straight to the D.I.G. of Police, Chittagong Range, Chittagong who had rejected such appeal on 21.03.1995. Thereafter he filed the Appellate Tribunal

Case No.196 of 1995 on 06.11.1995 before the Administrative Tribunal, Dhaka without impleading Government of Bangladesh or the relevant Secretary to represent the Government praying for setting aside the order of removal from service and the order of rejecting the departmental appeal with a further prayer for reinstating him in service with full financial benefits.

3. The respondents contested the case by filing a written statement denying the material allegations as made in the application and specifically pleaded therein that the Appellate Tribunal case as filed by the petitioner is barred by limitation and bad for defect of party and as such the A.T. case is liable to be dismissed in limini; that defence case, in short, is that following an enquiry through a departmental proceeding, the petitioner respondent was found guilty of the charges by the Enquiry Officer and that there was no illegality or

irregularity in conducting the proceeding and the enquiry and accordingly the S.P. Feni rightly removed the petitioner from service and that departmental appeal as filed by the petitioner before the D.I.G. of police was rejected rightly. In these facts and circumstances the A.T. case as filed by the petitioner is liable to be dismissed with costs.

4. Mr. Md. Abdul Wadud Bhuiyan, learned Counsel, appearing for the petitioner submits

that the petitioner was appointed as Sub-inspector of Police and superintendent of Police issued removal order who is not the appointing authority of this petitioner and the Appellate Tribunal failed to appreciate thus materials aspect, as such, committed illegality in the decision; that Administrative Appellate Tribunal failed to appreciate that the respondent never took any ground of delay in filing application before Administrative Tribunal and never drawn any ground for delay for amendment of petition but the Appellate Tribunal findings that the application before Administrative Tribunal is barred

by limitation and amendment of the petition before A.T is barred by limitation which are not correct and thus committed illegality in the decision; that Appellate Tribunal reassessed the evidence in question while disposing of the Appeal and went beyond the grounds of appeal and came to a wrong decision; that after rejection of Appeal on 21.05.1995 petitioner filed petition before Administrative Tribunal within 6 month time application for certified copy was filed on 06.11.1995 and amendment of petition for addition of party was not time barred, as illegally held in the decision; that the Tribunal misread the evidence gave a finding to the effect that petitioner manipulated the figure 5 in place of 3 and thereby changed the exact and real date of rejection of appeal on

10.03.1995 and failed to appreciate this material aspect and committed illegally in the decision; that the Tribunal failed to appreciate that a case being Roangachari P.S. Case No.2 dated 30.03.1994 though started Anti-Corruption Bureau filed final report which was accepted by Court as such committed illegally in the decision.

5. It appears from the record that admittedly the order of removal from service was made on 24.12.1999 and the petitioner on 22.01.1995 has preferred his departmental appeal direct, not through the propftr channel as prescribed by Regulation 888 of the P.R.B., before the D.I.G., Chittagong Range, Chittagong. But the petitioner claims that such departmental appeal was rejected on 21.05.1995. It is found that such appeal was in fact rejected on 10.03.1995 and the petitioner manipulated the figure 5 in place of 3 and thereby charged the exact and real date of rejection which was on 10.03.1995. In this view of the matter, the petitioner was required to file his A.T. Case within 10.09.1995 i.e.

within 6 months from the date of rejection of his appeal to the higher Administrative Authority and the A.T. Case having been admittedly filed on 06.11.1995 such case

was filed beyond the period of limitation.

6. It further appears that Regulation 882(d) of the P.R.B. (Volume-I) provides that “No second appeal shall lie from an order passed in an appeal”. Moreover Regulation 883 of the said P.R.B. provides that petitions of appeal or for revision is required to be presented to the officer against whose order the appeal is preferred within 37 days of the date of receipt of the order and Regulation 888 of the said P.R.B. prescribes that the petitioner was forbidden from submitting his petition direct to his higher authority and the said

Regulation states that the petitioner or representations complaining against of any order of punishment passed against him either made originally or in appeal and any police officer who disregards would be guilty of the breach of discipline and be dealt with accordingly.

7. The Administrative Appellate Tribunal found that a petition dated 01.06.1995 was directed to the Inspector General of Police praying for reinstatement the petitioner in

his service setting aside the removal order. The petitioner claims such petition as a petition for revision. But this petition for revision is required to be filed within 37

days from 10.03.1995 i.e. within 17.04.1995. But admittedly such petition for revision before the Inspector General of. Police was made by the petitioner on 01.06.1995 making a delay of one month 14 days and therefore, the A. A. T. found that his such alleged petition is also barred by limitation.

8. We do not find any illegality in the impugned order for our interference.

9. In view of the above, we find no substance in the submissions of the learned

Counsel for the petitioner.

10. Accordingly, the petition is dismissed.

Source : V ADC (2008),642