Case No: Civil Appeal No. 29 of 1995
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: AW Bhuiyan,Abdur Rab Choudhury,,
Citation: 50 DLR (AD) (1998) 65
Case Year: 1998
Respondent: AM Mansur Ahmed & ors
Subject: Administrative Law,
Delivery Date: 1997-05-04
AM Mansur Ahmed & ors, 1998,
50 DLR (AD) (1998) 65
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
AM Mansur Ahmed & ors………….. Respondents
May 4, 1997.
The Government Servants (Discipline and Appeal) Rules, 1985,
Rules 2(f), 3(b), 3(d) & 4(5)
The penalty for corruption and misconduct calls for compulsory retirement or removal, dismissal from service under rule 4(5) and none else. The disciplinary authority with proper approval awarded him penalty of compulsory retirement. The tribunals below had no reason to take further lenient view of imposing the penalty and reducing the punishment………(8)
AW Bhuiyan, Additional Attorney-General, instructed by Shamsul Haque Siddique, Advocate- on-Record—For the Appellant.
Abdur Rob Chowdhury, Senior Advocate instructed by ANM Manjurul Hassan, Advocate- on-Record— For the Respondent No.1.
Not represented—Respondent Nos. 2 and 3.
Civil Appeal No. 29 of 1995.
(From the judgment and order dated 23 February 1995 by the Administrative Appellate Tribunal passed in Appeal Nos. 58 of 1990 and 3 of 1991. )
Bimalendu Bikash Roy Choudhury J.- This appeal by the Government is from the judgment and order dated 23 February 1995 of the Administrative Appellate Tribunal passed in Appeal Nos.58 of 1990 and 3 of 1991.
2. It arises in the following circumstances. A departmental proceeding was started against respondent No.1 AM Monsur Ahmed by his authority when he held the position of Deputy Assistant Director of the Department of Fire Service and Civil Defence under Rules 3(b) and 3(d) of the Government Servants (Discipline and Appeal) Rules 1985 on the charges of corruption and misconduct. Respondent No.3 the Director General of Fire Service and Civil Defence appointed a three-member Inquiry Board to enquire into the charges. The enquiry ended in a report finding respondent No.1 guilty of the charges leveled against nine counts out of eleven. On 24 December 1987, a second show cause notice was issued to him. The reply not being satisfactory respondent No.3, by his order dated 23 February 1988, retired him compulsorily taking a lenient view considering the long period of his service. This was done in consultation with the Public Service Commission; Respondent No.1 preferred a departmental appeal, which was dismissed on 12 March 1989.
3. Respondent No.1 took the matter before the Administrative Tribunal by means of Tribunal Case No. 155 of 1989. The Government contested the case. The Tribunal upon hearing both sides found that there was illegality or irregularity in the departmental proceeding. It however took the view that the charges established against respondent No 1 were not serious and by judgment and order dated which were October 1990 reduced the penalty of compulsory retirement to withholding of Promotion of the respondent for 5 years. Both the Government and respondent No. 1 filed appeals therefrom, Appeal Nos. 58 of 1990 and 3 of 1991 to the Administrative, Appellate Tribunal. Agreeing with the findings of the Tribunal the Appellate Tribunal held that in view of the minor nature of the misconduct found against the respondent stoppage of 3 annual increments would meet the ends of justice and accordingly modified the order of the Tribunal. The Appellate Tribunal dismissed the appeal of the Government.
4. Leave was granted to consider whether the Administrative Tribunal and the Administrative Appellate Tribunal were justified in modifying the penalty imposed on respondent No. 1.
5. Appearing in support of the appeal the learned Additional Attorney-General submitted that respondent No. 1 was found guilty of charges of corruption, insubordination, etc. amounting to misconduct spreading over a number of years at different stations where he was posted. The penalty of compulsory retirement was itself a lenient one for the offences calling for dismissal from service. He submitted that there was no scope for further lenience demonstrated by the Administrative Tribunal and the Administrative Appellate Tribunal in the impugned orders.
6. The learned Counsel for respondent No. 1 on the other hand, argued that the nine charges established against the respondent were of minor nature and it was aptly noticed by the Tribunals and therefore there is no reason to interfere with their orders.
7. There is no more any dispute that there was no irregularity or illegality in the disciplinary proceeding against respondent No. 1 and nine out of eleven charges leveled against him were fully established. The first charge established against respondent No. 1 is that he occupied a Government residence since 15 July 1984 till 19 June 1986 without paying any rents therefore by suppressing facts. The second charge established against him is that he had separated and kept in his office a tie-rod from a disordered vehicle of the office with a view to misappropriating the same. The third charge established is that he had used at random vehicles that were meant for use in extinguishing fire. The fourth charge established is that he had drawn traveling allowances during the period from 1986 to 1987 by presenting false bills. The fifth charge established is that he sat over TA bill of one Abdul Khaleque, a Fireman, for more than a year on account of his personal grudge and thus harassed a poor employee of the department. The sixth charge established is that he had spent a substantial amount of money towards contingency expenditures for purchasing fuel and maintenance of the vehicles. The seventh account on which respondent No. 1 had been found guilty is his willful and obstinate absence in the inquiry proceeding in spite of notice and information otherwise. The eighth charge established against him is that he disobeyed the order of the Director-General of Fire Service and Civil Defence dated 17 December 1986 to hand over charge of his office and join his place of posting at Pirojpur before 18 December 1986, for which he was released 20 December 1986. The ninth charge established against him is that without obtaining the approval of the proper authority he had illegally issued an office order on 30 April 1987 to the effect that he would perform the function of the Deputy Assistant Director, Fire Service and Civil Defence, Bagerhat on 3 days every week and he acted as such.
8. The above is a brief resume of the offences established against respondent No. 1. The conduct of respondent No.1 amounts to misconduct as defined the Rule 2(f) of the Government Servants (Discipline and Appeal) Rules 1985 and corruption. The penalty for corruption and misconduct calls for compulsory retirement or removal from service or dismissal from service under Rule 4(5) of the Rules and none else. Therefore, it is not difficult to see that in the departmental proceeding a lenient view was taken by the disciplinary authority who with the concurrence of the Public Service Commission visited him with penalty of compulsory retirement instead of dismissal or removal. The Administrative Tribunal and the Administrative Appellate Tribunal had no reason to taker a further lenient view of the offences committed by respondent No. 1 and reduce the penalty of compulsory retirement to one of stoppage of promotion for five years (by the Administrative Tribunal) or to stoppage of three increments (by the Administrative Appellate Tribunal).
9. For the above reasons the orders of the Administrative Tribunal and the Administrative Appellate Tribunal cannot be sustained.
In the result, the appeal is allowed without any order as to costs and the orders of the Administrative Tribunal and the Administrative Appellate Tribunal be set aside.