DISTRICT: RANGAMATI
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
CIVIL REVISION NO. OF ________
IN THE MATTER OF:
An application under Section 115(1) of the Code of Civil Procedure.
AND
IN THE MATTER OF:
1. The Chairman
Bangladesh Forest Industries Development Corporation
73 Motijheel Commercial Area
Dhaka-1000
2. The General Manager
Bangladesh Forest Industries Development Corporation
Karnafuli Weed Procurement Unit, Kaptai
(Timber Extraction Project, Kaptai)
Rangamati
PETITIONERS
/RESPONDENTS
/DEFENDANTS
Versus
A
Son of B
Ex-Assistant Field Superintendent
Bangladesh Forest Industries Development Corporation
At present:
House No. 16, Line No. 9
Road No. 32, Block B
Halishahar Housing Estate
Chittagong
OPPOSITE-PARTY
/APPELLANT
/PLAINTIFF
PETITION VALUED AT TK. (NIL)
AND
IN THE MATTER OF:
Judgement and order dated 21.06.99 (wrongly signed on 09.06.99) passed by Mr. Sharif Toyiabur Rahman, Additional Commissioner (Rangamati), Chittagong Division, Chittagong (exercising the jurisdiction of a civil Court) in Civil Appeal No. 31 of 1997 (Rangamati) allowing the appeal filed by the opposite-party against the judgement and order dated 24.02.97 passed by the Deputy Commissioner, Rangamati Hill District (exercising the jurisdiction of a civil Court) in Civil Suit No. 17 of 1995 dismissing the suit filed by the opposite-party for declaration that the order dated 30.03.93 dismissing the opposite-party from service is illegal, void and inoperative and not binding upon the opposite-party.
To:
Mr. Justice Mustafa Kamal, the Chief Justice of the Supreme Court of Bangladesh and his companion justices of the said Hon’ble Court.
The humble petition of the petitioner above named most respectfully
SHEWETH:
01. That this revisional petition is filed against Judgement and order dated 21.06.99 passed by Mr. Sharif Toyiabur Rahman, Additional Commissioner (Rangamati), Chittagong Division, Chittagong (exercising the jurisdiction of a civil Court) in Civil Appeal No. 31 of 1997 (Rangamati) allowing the appeal filed by the opposite-party against the judgement and order dated 24.02.97 passed by the Deputy Commissioner, Rangamati Hill District (exercising the jurisdiction of a civil Court) in Civil Suit No. 17 of 1995 dismissing the suit filed by the opposite-party. Civil Suit No. 17 of 1995 was filed by the opposite-party for declaration that the order dated 30.03.93 dismissing the opposite-party from service of Bangladesh Forest Industries Development Corporation is illegal, void and inoperative and not binding upon the opposite-party. The opposite party was dismissed from his service on 30.03.93 vide Office Order No. 193 for misappropriation and defalcation of Tk. 1,30,629.39 only after proper enquiry and after compliance with all legal formalities by the Corporation. As such the impugned Judgement and order dated 21.06.99 is liable to be set aside.
02. That the petitioner No. 1 is the Chairman of Bangladesh Forest Industries Development Corporation, which is a statutory corporation (hereinafter referred to as the Corporation). The petitioner No. 2 is the General Manager of the said Corporation.
03. That the opposite-party was an employee of the Corporation. The opposite party was appointed as Supervisor in the Timber Extraction Project, Kaptai of Bangladesh Forest Industries Development Corporation (hereinafter referred to as the Project) on 23.12.73 on master roll basis and his service was regularised by Office Order No. 789 dated 14.04.78. From 19.04.85 the opposite-party was posted at Gangaram Centre of the Project as Centre in Charge.
04. That in 1988 the Board of Directors of the Corporation suspected huge financial irregularities in the Timber Extraction Project, Kaptai of the Corporation. As such the Board of Directors of the Corporation sent an investigation team to investigate and verify the actual financial state of affairs of the Project. After investigation the said team came to a preliminary conclusion that a huge amount of money received by six Centre in Charge including the opposite party of the Project as advance against various works was remain unadjusted for long time. Accordingly the team submitted its report dated 10.01.89. The said team found that as on 30.11.88 the opposite-party while posted at Gangaram Centre as Centre in Charge received substantial amount of money from the Corporation as advance for the purpose of completion of various works in his centre. Part of the said amount was expended by the opposite-party for completion of certain works and he submitted vouchers to the Corporation against the said expenses. But as on 30.11.88 an amount of Tk. 11,31,574.30 only was remain unadjusted.
05. That on the basis of the report of the said team the opposite-party on several occasions was directed to furnish the vouchers of expenditures, if any, against the said amount of Tk. 11,31,574.30 which was unadjusted till 30.11.88 or to refund the money. But neither did the opposite-party furnish any voucher nor did he refund the said amount.
06. That in the circumstances the opposite-party was suspended vide Office Order No. 889 dated 12.09.89 with effect from 12.09.89 for misappropriation and defalcation of Tk. 11,31,574.30 only and was finally directed to adjust the said amount within 3 (three) months from the date of receipt of the notice. Although the opposite-party was suspended with effect from 12.09.89, he handed over his charge on 19.11.89. The opposite-party was also informed that he would forthwith be charge sheeted. Accordingly the opposite party was charge sheeted and an Enquiry Committee was formed consisting of 3 persons – (1) Mr. Matiur Rahman, Manager, (2) Mr. Kazi Nazrul Islam, Assistant Manager and (3) Mr. Mozibur Rahman, Assistant Manager. It may be mentioned here that on 10.09.89 just before his suspension the opposite-party also received an amount of Tk. 2,50,000.00 only as advance, which was not included in the charge brought against the opposite-party. The opposite-party was charge sheeted for misappropriation and defalcation of money on the basis of calculation as on 30.11.88 investigated and verified by the investigation team sent by the head office. Since the amount of Tk. 2,50,000.00 only was received by the opposite-party subsequent to 30.11.88, the said amount was not included in the charge brought against the opposite-party.
07. That the Enquiry Committee after conducting the enquiry submitted their reports dated 03.02.90 and 15.11.90. On the basis of the said report the opposite-party was reinstated in the service vide Office Order No. 254 dated 14.03.91 with lineal punishment of stoppage of three yearly increments of the opposite-party. It may be mentioned here that in 1989 on the basis of the report of the investigation team six Centre-in-charge of different centres of the Corporation were suspended for misappropriation and defalcation of huge amount of money of the Corporation. Initially three of them including the opposite-party were reinstated and the remaining three were dismissed from service.
08. That it is a fact that a huge amount of money was misappropriated and defalcated from different centres including the Gangaram centre of the Timber Extraction Project of the Corporation. To find out the actual fact with regard to the financial irregularities committed in Timber Extraction Project of the Corporation, another high powered Enquiry Committee was formed in 1992 by the Ministry of Environment and Forest vide Notification No. 208 dated 09.06.92. The Committee was formed consisting of five member headed by Dr. Md. Osman Ali, Joint Secretary of Ministry of Environment and Forest as Convenor. The high powered Committee enquired into the financial state of the Project and submitted its report on 21.07.92. In the said report the High Powered Committee stated that the Departmental Enquiry Committee who conducted the enquiry of the misappropriation and defalcation of money by the opposite-party did not provide the actual facts of adjustment of the advance money received by the opposite-party. The High Powered Committee stated that at the date of the report submitted by the said Enquiry Committee an amount of Tk. 1,41,540.82 only was remain unadjusted by the opposite-party since he received Tk. 2,50,000.00 only on 10.09.89.
09. That on the basis of the report of the high powered Enquiry Committee the opposite-party was again suspended vide Office Order No. 389 dated 22.07.92 and he was charge sheeted on 23.08.92 for misappropriation and defalcation of Tk. 1,39,933.10 only. He was also requested to show cause within 10 days as to why he would not be dismissed from service for the allegation brought against him. It may be mentioned here that this time the opposite-party was suspended for misappropriation and defalcation of money on the basis of accountability /calculation from 01.12.88 up to his suspension.
10. That an enquiry committee was formed consisting of two members vide Office Order No. 615 dated 10.10.92. After enquiry the Committee found the opposite-party guilty for misappropriation and defalcation of Tk. 1,30,629.39 only and submitted its report on 15.02.93.
11. That as the allegation against the opposite-party was proved and established, the Corporation preliminarily decided to dismiss the petitioner from service. As such the opposite-party was served second show cause notice dated 16.03.93 along with the report of the Enquiry Committee and he was requested to show cause within 7 days.
12. That the opposite-party gave reply to the second show cause notice vide his letter dated 21.03.93. The opposite-party denied the allegation and requested the Corporation to reconsider the preliminary decision of dismissal and realisation of Tk. 1,30,629.39 only from him. But he failed to produce any evidence in support of his denial.
13. That in such circumstances the opposite-party was dismissed from service vide Office Order No. 193 dated 30.03.93. He was also directed to deposit the defalcated amount of Tk. 1,30,629.39 only within 30 days.
14. That against the order of dismissal dated 30.03.93 the opposite-party filed appeal on 17.04.93 to the petitioner No. 1 and prayed for re-consideration of his case and re-enquiry of the allegations brought against him. As per the prayer of the opposite-party another Enquiry Committee was formed consisting of 4 (four) members.
15. That before submission of any report by the said Enquiry Committee the opposite-party filed Civil Suit No. 17 of 1995 on 06.02.95 in the Court of the Deputy Commissioner, Rangamati Hill District for a declaration that the order of dismissal dated 30.03.93 was illegal, void, inoperative and not binding upon the opposite-party. It may be submitted here that the service of the opposite-party was under a project of the Corporation. His service was purely temporary and under a project of the Corporation and the opposite-party could be terminated at any time with prior notice. Even then the Corporation conducted the enquiry and dismissed the opposite-party only after the allegation was proved. But although there was no illegality or irregularity in dismissing the opposite-party from service, he filed the above Civil Suit challenging the dismissal order.
16. That the Court of Deputy Commissioner, after hearing, was pleased to dismiss the suit vide Judgement and Order dated 24.02.97. Being aggrieved by and dissatisfied with the Judgement and Order dated 24.02.97 passed by the Court of the Deputy Commissioner the opposite-party preferred Civil Appeal No. 31 of 1997 in the Court of the Divisional Commissioner on 29.03.97.
17. That the lower appellate Court after hearing was pleased to allow the same and set aside the Judgement and Order passed by the trial Court on wrong conception. The lower appellate Court without assessing the evidence adduced by both the parties has given findings on the facts of the previous suspension of the opposite-party vide Office Order No. 889 dated 12.09.89 for defalcation of Tk. 11,31,574.30 only. The said Court has given the finding that the said suspension was illegal. The said Court also made the following comment:
“H dlZl Bcn ®L¡e plL¡l£ pwÙÛ¡ ®k ¢Li¡h S¡l£ Lla f¡l a¡-C Nhoe¡l ¢houhÙº qJu¡l c¡h£ l¡Mz”
Whereas the lower appellate Court overlooked that the opposite-party was subsequently reinstated in service. The said Court also overlooked the fact that the enquiry report on the basis of which the opposite-party was reinstated was wrong and as such departmental proceedings were taken against the members of the said Enquiry Committee.
18. That it is submitted that the lower appellate Court failed to consider that the previous suspension of the opposite-party was based on the calculation of the advances received by the opposite-party till 30.11.88, whereas the present dismissal is based on the calculation of the advances received by the opposite-party from 01.12.88 to 12.09.89. The previous suspension and the present dismissal have not arisen out of the same allegation.
19. That it is submitted that the lower appellate Court considered only the enquiry reports dated 03.02.90 and 15.11.90 submitted by the earlier Enquiry Committee on the basis of which the opposite-party was reinstated in service. But the said Court did not consider the enquiry report dated 15.02.93 submitted by the latter Enquiry Committee on the basis of which the opposite-party was dismissed from his service.
20. That it is submitted that the lower appellate Court failed to consider that the opposite-party was dismissed vide order dated 30.03.93 for misappropriation and defalcation of Tk. 1,30,629.39 only after conducting departmental enquiry by a duly constituted Enquiry Committee. The opposite-party was dismissed after compliance with all legal formalities. There was no violation of the principal of natural justice since the opposite-party was served show cause notice and he was given the opportunity of personal hearing. The lower appellate Court also failed to consider that a departmental proceeding cannot be challenged unless there is any apparent irregularity in conducting the same. Since in the instant case there is no such irregularities in conducting the departmental proceedings, the said departmental proceedings cannot be challenged.
21. That it is submitted that the trial Court failed to give any decision on the merit of the case. The trial Court dismissed the suit on the ground of maintainability. As such since the lower appellate Court set aside the judgement of the trial Court then the lower appellate Court should either send the case to the trail Court on remand or try the suit itself. But the lower appellate Court neither itself tried the suit nor sent the suit to the trial Court on remand.
22. That it is submitted that the lower appellate Court did not consider that the proper forum to challenge such dismissal order of the opposite-party was the Administrative Tribunal. As such the civil suit filed by the said opposite-party was not maintainable.
23. That being aggrieved by and dissatisfied with the Judgement and order dated 21.06.99 passed by Mr. Sharif Toyiabur Rahman, Additional Commissioner (Rangamati), Chittagong Division, Chittagong (exercising the jurisdiction of a civil Court) in Civil Appeal No. 31 of 1997 (Rangamati) the petitioners/respondents/defendants above named beg to file this application for revision on the following amongst other
GROUNDS
I) For that the learned appellate Court below erred in law in allowing the appeal considering the facts and circumstances and prima facie evidence on record of the case.
II) For that the learned appellate Court below committed an error of law in considering wrongly that the allegation on the basis of which the opposite-party was previously suspended and the allegation on the basis of which the opposite-party has been dismissed are the same, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
III) For that the learned appellate Court below failed to consider that the previous suspension and the present dismissal of the opposite-party have not arisen out of the same allegation. The previous suspension of the opposite-party was based on the calculation of the advances received by the opposite-party till 30.11.88, whereas the present dismissal is based on the calculation of the advances received by the opposite-party from 01.12.88 to 12.09.89. The said non consideration of the learned Court resulted in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
IV) For that the learned appellate Court below failed to consider that the opposite-party was dismissed from his service under a separate and independent departmental proceedings which had no manner of relation with the earlier proceedings, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
V) For that the learned appellate Court below has committed an error of law in not considering that the opposite-party was dismissed after conducting departmental enquiry properly in compliance with the service rules by a duly constituted Enquiry Committee and there was no violation of the principal of natural justice, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
VI) That the learned appellate Court below failed to consider that departmental proceedings cannot be challenged unless there is any apparent irregularity in conducting the same and since in the instant case there is no such irregularities in conducting the departmental proceedings, the challenge of the said departmental proceedings by filing the civil suit was not in conformity with the law, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
VII) For that the learned Court below has committed illegality in allowing the appeal only on the basis of the previous enquiry reports dated 03.02.90 and 15.11.90 submitted by the earlier Enquiry Committee on the basis of which the opposite-party was reinstated in service, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
VIII) For that the learned appellate Court below has committed an error of law in not taking into consideration the enquiry report dated 15.02.93 submitted by the latter Enquiry Committee on the basis of which the opposite-party was dismissed vide order dated 30.03.93, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
IX) For that the learned appellate Court below has committed an error of law in not sending the case on remand while the said appellate Court set aside the judgement of the trial Court which was passed by the trial Court without giving any findings on the merit of the case and only on the point of maintainability, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
X) For that the learned appellate Court below failed to consider that the proper forum to challenge such dismissal order of the opposite-party was the Administrative Tribunal, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
XI) For that the learned Court below has committed an error of law in giving an incomplete Judgement and Order, resulting in an error in the decision occasioning failure of justice. As such the impugned Judgement and Order is liable to be set aside.
XII) For that the learned appellate Court below did not apply its judicial mind while disposing of the appeal.
XIII) For that the impugned order is otherwise illegal and liable to be set aside.
24. That it is submitted that the petitioners delayed 88 days in filing the revisional petition due to observation of internal required formalities in taking decision by the superior authority of the Corporation. Since the delay is unintentional and bona-fide the same may condoned by the Hon’ble Court. Unless the delay is condoned the petitioners will suffer irreparable loss and injury. As such the delay may be condoned for ends of justice.
Wherefore, it is humbly prayed that the Hon’ble Court may be pleased to:
a) Condone the delay and issue Rule calling upon the opposite-party to show cause as to why the Judgement and Order dated 21.06.99 passed by Mr. Sharif Toyiabur Rahman, Additional Commissioner (Rangamati), Chittagong Division, Chittagong (exercising the jurisdiction of a civil Court) in Civil Appeal No. 31 of 1997 (Rangamati) allowing the appeal filed by the opposite-party against the judgement and order dated 24.02.97 passed by the Deputy Commissioner, Rangamati Hill District (exercising the jurisdiction of a civil Court) in Civil Suit No. 17 of 1995 dismissing the suit filed by the opposite-party for declaration that the dismissal order dated 30.03.93 dismissing the opposite-party from service was illegal, void and inoperative and not binding upon the opposite-party, shall not be set aside;
b) After hearing the parties and cause shown, if any, make the Rule absolute;
c) Pending hearing of the Rule, stay operation of the impugned Judgement and Order dated 21.06.99 passed by Mr. Sharif Toyiabur Rahman, Additional Commissioner (Rangamati), Chittagong Division, Chittagong (exercising the jurisdiction of a civil Court) in Civil Appeal No. 31 of 1997 (Rangamati) till disposal of the Rule.
d) Cost of the proceeding be awarded in favour of the petitioners; and
e) Pass such other or further order or orders as may be deemed fit and proper.
And for this act of kindness the petitioners as in duty bound will ever pray.
AFFIDAVIT
I, _____________________, son of ___________________, Manager (Law and Legal) of Bangladesh Forest Industries Development Corporation, 73 Motijheel Commercial Area, Dhaka-1000, aged about ____ years, by faith ________, profession service, nationality Bangladeshi, do hereby solemnly affirm and say as follows:
01. That I am the Tadbirkar of the petitioners in this case and acquainted with the facts and circumstances of the present case and competent and authorised to swear this Affidavit.
02. That the statement of facts made in this petition are true to my knowledge and matters of records, which I verily believe to be true and the rests are submission before this Hon’ble Court.
| Prepared in my office: | ||
| DEPONENT | ||
| Advocate | The deponent is known to me and identified by me. | |
| Solemnly affirmed before me by the said deponent on this the _____ day of _____________ at _______ a.m. | Advocate | |
| Commissioner of Affidavits
Supreme Court of Bangladesh High Court Division |