Abdul Khaleque (Md) Vs. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of the People’s Republic of Bangladesh and others

Case No: Civil Petition for Leave to Appeal No. 799 of 1994.

Judge: AM Mahmudur Rahman ,

Court: Appellate Division ,,

Advocate: Abdus Sobhan,,

Citation: 52 DLR (AD) (2000) 147

Case Year: 2000

Appellant: Abdul Khaleque (Md)

Respondent: Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of the People’s Republic of Bangladesh and others

Subject: Administrative Law,

Delivery Date: 1999-06-08

Abdul Khaleque (Md)

Vs.

Sec, Ministry of Law, Justice and Parliamentary Affairs, 2000,

52 DLR (AD) (2000) 147

Supreme Court

Appellate Division

(Civil)


Present:

Mustafa Kamal CJ

Latifur Rahman J  

Bimalendu Bikash Roy Choudhury J  

A M Mahmudur Rahman J  


Abdul Khaleque (Md)………………………….. Petitioner

Vs.

Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of the People’s Republic of Bangladesh and others…………………………….. Respondents*

Judgment

June 8, 1999.

 

The Bangladesh Public Service Commission (Consultation) Regulation, 1979

Regulation 9

In passing order of compulsory retirement there was no violation of any provision of law and consultation with the Public Service Commission was not required as the petitioner was not up-graded till framing of the Recruitment Rule 8 on 5-9-1990…………(7) 


Lawyers Invoved:

Abdus Sobhan, Advocate instructed by SH Siddique, Advocate-on-Record—For the Petitioner.

Not represented—The Respondents.

Civil Petition for Leave to Appeal No. 799 of 1994.


Judgment

 

AM Mahmudur Rahman J.-  

                                           This petition for leave to appeal by the petitioner (who filed Administrative Tribunal case No. 98 of 1989 of the Administrative Tribunal Dhaka) is from the Judgment and order dated 22-08-94 passed by the Administrative Appellate Tribunal in Appeal Case No. 10 of 1994.  

2. The petitioner filed Administrative Tribunal Case No. 98 of 1989 before the Administrative Tribunal, Dhaka against the Government of the People’s Republic of Bangladesh-respondent for declaration that the order of compulsory retirement dated 26-11-88 passed by the Assistant Secretary, Ministry of Law and Justice was illegal and void and also for a declaration that he was in service. His case was that while he was a Sheristader in the Court of District Judge, Patuakhali he submitted a report to the concerned authority that Abdur Rashid Chaklader, ex-nazir of the Court of District Judge, Patuakhali, forged certified copies and misappropriated court fees. The said Nazir was compulsorily retired from service for such offence and he became inimical to the petitioner. Thereafter on the basis of some anonymous letters against the petitioner the learned District Judge submitted reports both to the Secretary, Ministry of Law and Justice against the petitioner and also to the Registrar, Supreme Court of Bangladesh. Thereafter the petitioner was transferred from Patuakhali to Pabna as a Sheristader. The Ministry of Law and Justice held an enquiry on the basis of such letters and the petitioner was served with charges to which he submitted explanation. Thereafter an enquiry was held by the Subordinate Judge of Patuakhali against the petitioner but he found that the charge could not be established. The petitioner alleged that in spite of the said report, the petitioner was found guilty of the charges and he was served with a second show cause notice against the proposed penalty to which he submitted reply-pleading innocence. But by order dated 26-11-88 he was compulsorily retired from service. His appeal against that order to the Government also failed. He filed a petition for review which was also rejected on 26-02-89. Hence this case against the order of compulsory retirement from service.

3. The Government-respondent contested the case by filing written statement stating that for specific allegations department proceeding was started against the petitioner, an enquiry was held, charges were established and the enquiry-officer submitted report finding the petitioner guilty of the charges. Then he was served with a second show cause notice but his reply was found to be unsatisfactory. He was then compulsorily retired from service. No illegality was committed by the impugned order.

4. The Administrative Tribunal allowed the case by its judgment dated 13-11-93 leading to filing of Appeal No. 10 of 1994 by the Government before the Administrative Appellate Tribunal.

5. The Administrative Appellate Tribunal allowed the appeal, set aside the order of Administrative Tribunal and confirmed the order of compulsorily retirement on the findings, that the petitioner was served with a second show cause notice along with a copy of the record of the authority’s decision, that the petitioner was not prejudiced and that there was no violation of the principle of natural justice The notification upgrading the post of Sheristader came into force on 7-11-85. The petitioner on the basis of the Notification was allowed to continue in the up-graded post till the framing of the Recruitment  Rules on 5-9-90 and, as such, there was no scope of consultation with the Public Service Commission. The Administrative Tribunal wrongly held that the Government ought to have consulted with the Public Service Commission before passing the impugned order.

6. Md. Abdus Sobhan, Advocate for the appellant submits that Administrative Appellate Tribunal upon misreading and misinterpretation of the written reply of the petitioner wrongly held that the petitioner admitted his guilt, that the finding of the Administrative Tribunal that the charges brought against the petitioner were clearly in conflict with the findings of the Inquiry Officer were not reversed by the Administrative Appellate Tribunal. He also submits that the petitioner held Class-II Gagetted Post and as the Government did not consult Public Service Commission the Administrative Appellate Tribunal was wrong in reversing finding of the Administrative Appellate Tribunal.

7. From the judgment and order of Administrative Appellate Tribunal it appears that it rightly held that, in passing order of compulsory, retirement there was no violation of any provision of law and consultation with the Public Service Commission was not required as the petitioner was not up-graded till framing of the Recruitment Rule 8 on 5-9-1990.

8. We do not find any substance in the submissions of the learned Advocate for the petitioner.

The petition is dismissed.

Ed.