Case No: Civil Appeal No. 47 of 1993
Judge: Mohammad Abdur Rouf ,
Court: Appellate Division ,,
Advocate: AW Bhuiyan,,
Citation: 50 DLR (AD) (1998) 200
Case Year: 1998
Respondent: AKM Yousuf Mia & others
Subject: Administrative Law,
Delivery Date: 1997-01-20
AKM Yousuf Mia & others, 1998,
50 DLR (AD) (1998) 200; II ADC (2005) 520 Supreme Court
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Government of the People’s Republic of Bangladesh, represented by the Secretary Ministry of Post and Telegraph, Bangladesh Secretariat, Dhaka………………………………..Appellant
AKM Yousuf Mia & others……………….Respondents*
January 20, 1997.
The Administrative Tribunals Act, 1980 (V of 1981),
In the absence of any legal bar either by express provision or under necessary implication under any law or rules, initiation of a second proceeding when the first one ended on a mere technicality owing to efflux of time, without any fault on the part of the punishing authority, is fully maintainable. ……….(19)
A W Bhuiyan, Additional Attorney-General (Sharifuddin Chaklader, Assistant Attorney-General with him), instructed by Shamsul Haque Siddique, Advocate-on-Record— For the Appellant.
Appeared in person - Respondent No. 1.
Not Represented -For the Respondent Nos. 2-6.
Civil Appeal No. 47 of 1993.
(From the Judgment and order dated 13-8-93 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 65 of 1991).
Mohammad Abdur Rouf J.- This appeal, by leave by the Government of Bangladesh, is from the Judgment and order dated 13-8-92 passed by the Administrative Appellate Tribunal in allowing appeal No. 65 of 1991 preferred by petitioner- respondent No.1 reversing the Judgment and order dated 30-5-91 passed by the Administrative Tribunal Dhaka in dismissing Administrative Tribunal Case No. 129 of 1987.
2. The relevant facts are respondent No. 1 AKM Yusuf Mia, an Upper Division Assistant of the office of the General Manager. Postal Life Insurance, Dhaka was transferred on 28-7-79 along with 17 others to the office of the General Manager, Postal Life Insurance, Western Zone, Rangpur. He did not join at Rangpur on taking various pleas. He worked at Dhaka Office up to 21-8-79 and then stood released on 22-8-79 with effect from 23-8-79 from Dhaka Office. Thereafter he went on leave for some time but ultimately did not join at Rangpur Office. He, however, unsuccessfully challenged his transfer order by instituting TS No.268 of 1980 (renumbered as TS No. 553 of 1987) and obtained an order of temporary injunction on 27-6-80 restraining respondent No. 3 the General Manager, Dhaka Zone from giving effect to the said order of transfer till disposal of the suit, which, however, was dismissed on 22-1-82. He then preferred TA No.70 of 1982 against the Trial Court’s decree.
3. Respondent No.4, the General Manager, Western Zone, Rangpur on 22-12-84 initiated a departmental proceeding against respondent No.1 under Rule 4(3) of the Government Servants (Discipline and Appeal) Rules, 1984, briefly, 1984 Rules, charging him with the offence under Rule 3 (Ga) and 3 (Kha) thereof for unauthorised absence from duty and misconduct. He, however, denied the charges. The enquiry proceeding, due to pendency of the Appeal in the civil Court noted earlier, having not been completed within the prescribed period of 120 days the proceeding ended automatically and thereby respondent No.1 stood released from the said charges. He did not join thereafter in service, even after the dismissal of the aforesaid appeal on 20-8-85. Then on 20-4-86 he was charged afresh under Rule 3(b) of the Government Servants (Discipline and Appeal) Rules, 1985, briefly the 1985 Rules, for misconduct with the proposed punishment of dismissal from service. He again denied the charge in writing and participated in the enquiry proceeding. The enquiry officer found him guilty of the charge. Accordingly, second show cause notice was issued on 17-7-86 by registered post. On consideration of the evidence and other materials on record the concerned authority dismissed him from service on 2-5-86. He then preferred a departmental appeal, which was dismissed on 20-12-86.
4. Thereafter he instituted the aforesaid case in the Administrative Tribunal under section 4(2) of the Administrative Tribunals Act, 1980 briefly, the AT Act challenging the legality and propriety of the order of dismissal from service alleging, inter alia, that as a UD Assistant of the Office of respondent No.3 he on 22-8-79 went on earned leave for two months and thereafter he had been on medical leave upto 31-12-79; that after recovery from illness he on 22-2-80 went to join at Dhaka office but was not allowed and respondent No.4 directed him by a letter dated 25-3-80 to join at Rangpur office; that respondent No.2, the Director General, Bangladesh Postal Department, turned down his representation against the order of transfer and then he filed the Title Suit in the Civil Court and obtained an order of temporary injunction thereunder on 27-6-80, as noted earlier. Later on he also prayed for advance traveling allowance to join at Rangpur Office, but the same was refused by respondent No.3; that respondent No.4 then issued show cause notice on 22-12-84 under Rule 4(3) of 1984 Rules charging him with the offence under rule 3(Ga) and 3(Kha) thereof and he replied in writing to the said show cause notice to respondent No.6; that after holding necessary enquiry in the said departmental proceeding, the concerned authority released him from the charges and he then applied for formal release order and advance travelling allowance which were not allowed by respondent No.3; that on 20-4-86 respondent No.6 issued another show cause notice with the identical charge, as noted earlier and he again denied the charge.
5. It was also alleged that he was not given the opportunity to examine relevant papers and record and cross examine the witnesses and that respondent No.6 most illegally submitted a false enquiry report and in pursuance thereof he was dismissed from service on 25-8-86, without issuing any second show cause notice; that respondent No.4 most arbitrarily dismissed the departmental appeal.
6. The appellant and respondent Nos.2-6 contested the said Tribunal case by filing a joint written statement denying the allegations made by respondent No.1 and contended, inter alia, that the case is not maintainable as respondent had ceased to be a government servant under Rule 18 of the Fundamental Rules because of his continuous absence from duty for more than 5 years since 23-8-79; that in view of the bifurcation of the office of the General Manager, Postal Life Insurance into two zones, viz. the Eastern Zone at Dhaka and the Western Zone at Rangpur respondent No.1 along with 17 others were transferred by an office Memo dated 21-7-79 to Rangpur, but upon taking different pleas he did not make over charge and thereby he was released by office memo dated 22-8-79 with effect from 23-8-79 from Dhaka Office; that after availing leave for some time he filed the aforesaid title suit and obtained an order of injunction, as noted earlier; that the Suit was, ultimately dismissed on 22-1-82 and thereafter despite the direction given by respondent No.4 upon respondent No.1 to join at Rangpur Office he tried to create pressure upon respondent Nos. 2 and 3 through a false telephone call in the name of one Major General Abdus Salam for his absorption at Dhaka Office.
7. In the circumstances a departmental proceeding, under section 4(3) of “1984 Rules” was initiated on 22-12-84 against him for his unauthorised absence and misconduct under Rule 3 (Ga) and 3(Kha) thereof. The enquiry officer after holding proper enquiry submitted his report on 15-6-85 finding respondent No.1 guilty of the charges and accordingly, second show cause notice was issued on 9-7-85. But due to pendency of the aforesaid Title Appeal No.70 of 1982 in the Civil Court, preferred by respondent No. 1, no punishment could be awarded in view of the provision of Rule 24 of the aforesaid Rules of 1984, which created a bar to impose penalty due to pendency of the appeal in the Civil Court and thereby the prescribed period of 120 days, provided in Rule 7(11) expired and the departmental proceeding ended automatically and respondent No.1 stood released of the charges after the dismissal of his Title Appeal No. 70 of 1982 on 20-8-85 respondent No.1 did not resume his duties and remained absent unauthorisedly in violation of the departmental Rules and for that a fresh departmental proceeding was initiated on 20-4-86 under “1985 Rules” against him for misconduct under Rule 3(b) thereof. The enquiry was held in his presence and was given every opportunity to consult record cross examine the witnesses. The enquiry officer by his report found respondent No.1 guilty of the charge of misconduct and the concerned authority on 17-7-86 issued the second show cause notice together with the enquiry report to respondent No.1 by registered and as well as by special messenger for his personal service, but he refused to receive the same. Then on consideration of the evidence and other materials record the concerned authority removed respondent No.1 from service by the impugned order dated 25-8-86.
8. The learned Member of the Administrative Tribunal by his judgment and order dated 30-5-91 dismissed the case holding, inter alia, that the proceeding afresh under the 1985 rules had beer legally drawn against respondent No.1 as the enquiry thereof was properly held giving all possible Opportunities to the petitioner before him and that the department issued the second show cause notice in three different processes namely, under registered post, by special messenger and through GPO Service but all the services were refused by respondent No.1.
9. The aggrieved respondent No.1 then preferred the appeal in the Administrative Appellant Tribunal and by the impugned judgment and order the said tribunal allowed the appeal and set aside the judgment and order of the Administrative Tribunal holding, inter alia, that initiation of the second proceeding upon fresh charge on 20-4-86 was not authorised by law and that the Administrative Tribunal had wrongly held that new allegations had been brought against respondent No.1 in the memo of charge dated 20-4-86.
10. Leave was granted to consider:
(i) Whether Administrative Appellate Tribunal erred in law in not considering the charge under Clause 3 of the charge-sheet dated 20.4.86 wherein respondent No.1 was charged with the offence of misconduct for having remained absent from the office till 20-4-86, the period of his absence being different from that of the first memo of charges dated 22-2-84.
(ii) Whether in view of continuous absence from duty for over 5 years on the plea that the order of transfer was illegal respondent No.1 ceased to be a Government Servant under Rule 18 of the Fundamental Rule as he was not under suspension during the departmental proceeding and whether on that account the impugned judgment is bad in law.
11. Mr. A W Bhuiyan, learned Additional Attorney-General appearing in support of the appeal submitted that the impugned judgment is bad in law inasmuch as the Administrative Appellate Tribunal upon misreading of the content of the charges dated 22-12-86 and 20-4-84 wrongly held that in the second proceeding no new charge was brought against respondent No.1 as found by the Administrative Tribunal. Mr. Bhuiyan further submitted that the 1st departmental proceeding could not be completed within the prescribed period of 120 days because of pendency of an appeal in the Civil Court, preferred by respondent No.1 against the decree of dismissal of his aforesaid Title Suit, which created a bar under Rule 24(1) of 1984 Rules and as such respondent No.1 was automatically discharged under Rule 7(11) thereof for merely technical reason and that even after the dismissal of the said Civil Appeal on 22-8-85 respondent No.1 did not resume his duties. On the contrary, he remained absent from duties till 20-4-86 unauthorisedly in violation of the relevant service rules and on that account the 2nd departmental proceeding was initiated upon framing fresh charge on a new ground under 1985 Rules. Mr. Bhuiya submitted that the Administrative Tribunal rightly held that the 2nd departmental proceeding has been initiated upon fresh allegation against respondent No 1. Mr. Bhuiyan further submitted that the continuous absence from duties for over 5 years disentitled respondent No.1 to get any benefit as a Government Servant, inasmuch as, in view of Rule 18 of the Fundamental Rules he ceased to be a Government Servant.
12. Respondent No.1 AKM Yusuf Mia, appeared in person to oppose the appeal and contended, inter alia, that he was not an unauthorised absentee from duties, rather he had been on leave, granted from time to time by the concerned authority of Dhaka Office till 31-12-79 and thereafter he submitted several applications to allow him to resume duties at Dhaka Office, even on the basis of the order of temporary injunction passed on 27-6-80, but respondent No.3 did not allow his prayer and that after the disposal of his appeal in the civil Court he also asked the concerned authority for advance travelling allowance and fresh release order to joint at Rangpur Office but it was refused by respondent No.3. He further submitted that the first departmental proceeding was completed in due course and he was honourably discharged from the charges and, as such, initiation of the second proceeding upon the self-same grounds of absence from duties and misconduct being not authorised by law, the Appellate Tribunal was justified in setting aside the impugned judgment of the Administrative Tribunal.
13. Now the main question is, whether in the facts and circumstances the plea of double jeopardy is available to respondent No.1 so far as the second departmental proceeding is concerned.
14. From a plain reading of the two charges in the two proceedings it is apparent that in the 1st proceeding, respondent No.1 was charged under Rule 3 and 3(Ga) of 1984 Rules for misconduct and for desertion respectively on a statement of facts that he was absent from duty unauthorisedly from 23-8-79 till 22-12-84 and that he made a false telephone call in the name of one army official and tried to press upon respondent Nos.2 and 3 to recall the order of transfer and to absorb him at Dhaka Office.
15. In the second proceeding he was charged only under Rule 3(b) of 1985 Rules for misconduct for having remained absent from duty unauthorisedly from 23-8-79 to 20-4-86 in violation of service discipline and that he also misconducted himself in arranging false telephone call in the name of one Major General to the concerned respondents for withdrawal of the order of transfer.
16. In 1984 Rules the term misconduct’ was defined in Rule 2(f) as hereunder:
2(f) “misconduct” means conduct prejudicial to good order of service discipline or contrary to any provision of the Government Servants (Conduct) Rules, 1979, or unbecoming of an officer or gentleman and includes submission of petitions containing wild and false accusation;
In 1985 Rules the term ‘misconduct’ has been defined in Rule 2(f) as hereunder:
“misconduct” means conduct prejudicial to good order or service discipline or contrary to any provision of the Government Servants (Conduct) Rules, 1979, or unbecoming of an officer or gentleman and includes—
(i) disobedience to lawful orders of superior officers.
(ii) gross negligence of duty.
(ii) flouting of Government orders, circular and directives without any lawful cause, and
(iv) submission of petitions before any authority containing wild, vexatious, false or frivolous accusations against a Government servant;
17. The Administrative Tribunal upon a detailed consideration of the materials placed before it by both the parties and on perusal of the relevant documents on record held that the second proceeding had been drawn against respondent No.1 under new facts in addition to some old facts viz, that of making false telephone call in the name of one Major General to the concerned respondents to get the order of transfer recalled. The statement of facts of the second memo of charges alleges that respondent No.1 even after the dismissal of Title Appeal No.70 of 1982 on 20-8-85 did not join his duty at Rangpur Office and remained absent from duty unauthorisedly in violation of Government Servants (Conduct) Rules, 1979 and in willful disobedience to the lawful order of his superior officers and thereby he misconducted himself under Rule 3(b) of 1985 Rules. The Administrative Appellate Tribunal held that the addition of fact that respondent No.1 remained absent from duty from 20-8-85 cannot be considered to be a new allegation. There was no direction upon respondent No.1 to join his duties in the order of dismissal of his Title Appeal No.70 of 1982.
18. The Appellate Tribunal failed to consider the offence of misconduct as is defined in Rule 2(f) which is the charge against respondent No.1 under Rule 3(b) of 1985 rules. The conduct of a Government Servant is prejudicial to good order as mentioned in the second memo of charges, also falls within the meaning of misconduct. It thus appears that the Appellate Tribunal was not justified in holding that the memo dated 20-4-86 contained no new charge. The Administrative Tribunal held that the first proceeding could not be completed with the prescribed period of 120 days. It fell through under Rule 7(11) of 1984 Rules. It is evident that in spite of completion of enquiry and submission of inquiry report finding respondent No.1 guilty of the charges no punishment could be imposed because the pendency of the appeal and because of the bar under Rule 24(1) of the 1984 Rules. Respondent No.1 had not at all been honourably discharged the first proceeding, as claimed by him. It ended inconclusively because of a mere technicality, and not on merit. As such the question of double jeopardy in the instant case does not arise.
19. 1985 Rules do not also, in the circumstance of the instant case, appear to have put any legal embargo upon the taking of any second disciplinary proceeding on fresh ground in addition to the grounds already taken in the first proceeding, which ended not on merit but on mere technicality. The Appellate Tribunal failed to appreciate that in the absence of any legal bar either by express provision or under necessary implication under any law or rules, initiation of a second proceeding when the first one ended on a mere technicality owing to efflux of time, without any fault on the part of the punishing authority, is fully maintainable. The Appellate Tribunal thus clearly fell into an error of law in holding that the instant proceeding against respondent No.1 was not authorised by law.
20. In view of our above finding, we do not propose to deal with the second branch of the appellant’s submission, namely, the absence from duty for more than 5 years has resulted in respondent No.1’s cessation as a Government Servant under Rule 18 of the Fundamental Rules.
The appeal is allowed without any order as to costs. The impugned judgment of the Administrative Appellate Tribunal is set aside and that of the Administrative Tribunal is restored.