Bangladesh Vs. Naziruddin Ahmed

Case No: Civil Appeal No. 15-D of 1970

Judge: A. M. Sayem,

Court: Appellate Division ,,

Advocate: Faqeer Sahabuddin Ahmed,S.R. Pal,,

Citation: 25 DLR (SC) (1973) 94

Case Year: 1973

Appellant: Bangladesh

Respondent: Naziruddin Ahmed

Subject: Administrative Law,

Delivery Date: 1972-12-15

Bangladesh

Vs.

Naziruddin Ahmed, 1973,

25 DLR (SC) (1973) 94

 
Supreme Court
Appellate Division
(Civil)
 
Present:
A.M. Sayem CJ
Mahmud Hussain J
Abdullah Jabir J
 
Bangladesh, substituted in place of Province of East Pakistan................Appellant

Vs.

Naziruddin Ahmed............................................................................Respondent*
 
Judgment
December 15, 1972.
 

The Laws (Continuance in Force) Order, 1958,

Article 6(5)
The impugned order of retirement having been made before 1st of July 1959 the court is precluded from questioning the legality of such order passed by the appointing authority in view of the concluding words of clause (5) of Article 6 of the Laws (Continuance in Force) Order 1958…………..(20)
 
Cases Referred to:
Zafar-ul-Ahsan Vs. Republic of Pakistan, (1960) 12 DLR (SC) 9; Govt. of East Pakistan Vs. Murzaqullah, (1964) 16 DLR (SC) 16.
 
Lawyers Involved:
Faqeer Sahabuddin Ahmed, Additional Attorney-General, instructed by A. S. M. Shamsuzzaman, Advocate-on-Record—For the Appellant.
S.R. Pal, Senior Advocate (Kazi Serajul Islam, Advocate with him) instructed by A.W. Mallik, Advocate with him —For the Respon­dent.

Civil Appeal No. 15-D of 1970.
(On ap­peal from the judgment of the High Court of East Pakistan dated the 23rd January, 1968 in F.A. No. 47 of 1967.)
 
Judgment:
               A. M. Sayem, CJ.— This appeal by Special Leave arises out of a suit by respondent Mr. Naziruddin Ahmed, which was dismissed by the trial Court but decreed on appeal by a Division Bench of the erstwhile High Court of East Pakistan.

2. The circumstances giving rise to the suit may be summarized as follows: The plain­tiff Mr. Naziruddin Ahmed was a member of the East Pakistan Civil Service (Executive). At the time of the Revolution of 1958 he was employed as an Officer on Special Duty in the Home Department of the Government of erst­while Province of East Pakistan; and was placed in charge of East Pakistan Govern­ment Press at Tejgaon, Dacca. His case hav­ing been referred to a Screening Committee appointed under section 3 of the Public Con­duct (Scrutiny) Ordinance, 1959 (Ordinance No III of 1959), the Chairman of the said Committee served a notice on him on the 25th day of March, 1959 calling upon him to show cause why disciplinary action should not be taken against him for inefficiency. The plain-tiff showed cause in writing. He was also given a personal hearing. The Screening Committee, however, arrived at the conclusion that the plaintiff was inefficient, and on the 24th April, 1959 it recommended his retirement from ser­vice. Thereafter, by a notification bearing No. 2742 G.A., dated the 29th May, 1959 the Governor of East Pakistan ordered his retire­ment for inefficiency with effect from the 1st June, 1959. A copy of the said notification was served on the plaintiff under memorandum No. 2742/1-G.A., communicating a further order directing him to ''hand over charge on the forenoon of the 1st June, 1959 positively".

3. The aforesaid notification No. 2742-G.A., dated 29-5-59 containing the retirement order is set down below:—
Notification No. 1742-G. A., dated the 29th May, 1959.
In exercise of the powers conferred on him by sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, the Governor has been pleased to order retirement of Mr. Naziruddin Ahmed, Deputy Magistrate and Deputy Collector now employed as Officer on Special Duty, Home De­partment In-charge of the East Pakistan, Government Press, Tejgaon, Dacca from service with effect from 1st June, 1959 for inefficiency.
By order of the Governor,
Sd/- M. Azfar,
Chief Secretary to the Govt. of East Pakistan."
On the 25th June, 1959 the plaintiff submit­ted a representation to' the Governor of East Pakistan praying that orders be passed "...by way of revoking, the order or retirement passed, on him with effect from 1-6-59 and reinstate him in his office with effect from the same date and thereby remove from him the stigma of inefficiency attaching to the order of re­tirement". This representation was signed by the plaintiff describing himself as "Retired Special Officer (Home Deptt.), East Pakistan Govt. Press, Testury Bazar, Tejgaon, Dacca". (The under linings are ours).

4. More than three months thereafter by another notification, bearing No. 6013-G. A. dated the 7th October, 1959 the Governor of East Pakistan modified the earlier order contained in the notification dated the 29th May, 1959. By this subsequent notification the order of retirement was made operative with effect from the 30th November, 1959 granting the plaintiff certain retirement bene­fits in the shape of leave with pay for the period from the 1st June, 1959 till the 29th Novem­ber, 1959.

5. In his suit, being Title Suit No. 72 of 1964 of the 3rd Court of the Subordinate Judge, Dacca, the plaintiff prayed for a declara­tion, inter alia, that the Governor's order retiring the plaintiff contained in notification No. 2742-G A., dated the 29th May, 1959 and the subsequent order of modification con­tained in Notification No. 6013-G. A., dated the 7th October, 1959 were illegal, ultra vires, and inoperative and further that he was still in service.
Besides seeking to resist the suit on merits the defendants, namely, the erstwhile Province of East Pakistan inter alia pleaded that the Court had no jurisdiction to call in question the validity of the impugned order of retire­ment.

6. The trial Court having dismissed the suit, the plaintiff took an appeal to the erstwhile High Court of East Pakistan; and the said appeal was heard by a Division Bench of the said Court.

7. It was not in dispute before the Division Bench of the High Court that the Governor passed the impugned order upon acceptance of the Screening Committee's recommenda­tion for retiring the plaintiff on its finding that the plaintiff was inefficient. Nor was it disputed there that by reason of an amendment effected as far back as on the 28th Feb­ruary, 1959 in the rules framed under the Public Conduct (Scrutiny) Ordinance 1959 (Ordinance III of 1959), at the relevant time, i.e., when the Governor referred the charge of inefficiency against the plaintiff to the Scree­ning Committee and its Chairman served the notice on the plaintiff to show cause why disci­plinary action should not be taken against him, inefficiency has ceased to be a ground not for an enquiry under the said Ordinance.

8. In view of the absence of any dispute on the above two points, the Division Bench arrived at a conclusion that the entire procee­ding before the Screening Committee as well as its recommendation for retiring the plaintiff whom it found to be inefficient were without jurisdiction and, therefore, in the words of the Division Bench "the impugned order which is founded on the said unauthorised recommendation is clearly outside the jurisdiction of the Ordinance III of 1959 and the rules framed thereunder". Having emphasised further that the "Governor did not make the order under any other law or proceeding" the Division Bench, held that the impugned order of re­tirement was in excess of the authority of the Governor. It escaped the notice of the Division Bench, however, that apart from vesting the Government with powers to appoint the Co­mmittees, Ordinance III of 1959 i.e. the Public Conduct (Scrutiny) Ordinance, 1959 simply laid down the procedure a Screening Committee was required to follow in con­ducting enquiries. The Ordinance did not even prescribe the penalties that could be imposed on the delinquents. The Authority was left in this connection to seek guidance and power from some other law, as will be evident from the last few words of section 4 of the Ordinance which fan as follows:
                                "4. Orders to be passed upon a fin­ding.- Every finding recorded by a Com­mittee under section 3 shall together, in the case of a finding against the person concerned, with the recommendation pro­vided for in that section be submitted to the authority by which the person concer­ned was appointed hereinafter called the appointing authority, and that authority shall pass orders thereon according to law."

9. The Division Bench also rejected the defendant's contention that the charge of in­efficiency against the plaintiff had been refer­red by the Governor to the Screening Commi­ttee not for an enquiry under the Public Con­duct (Scrutiny) Ordinance, 1959 but for an informal enquiry prior to a contemplated ac­tion under sub-clause (b) of clause (5) of Ar­ticle 6 of the Laws (Continuance in Force) Order, 1958 for which no formal enquiry was necessary. The Division Bench took the view that in the circumstances in which the impug­ned order of retirement was passed it was futile for the Governor to invoke such powers in support of the impugned order.

10. Being of the view that the Governor acted in excess of his authority in passing the impugned order retiring the plaintiff, the Divi­sion Bench rejected the defendant's contention that the Court had no jurisdiction to entertain the plaintiff's suit. The Division Bench allo­wed the appeal by the plaintiff and decreed his suit. Hence this appeal by Special Leave at the instance of the defendant.

11. Section 4 of the Public Conduct (Scr­utiny) Ordinance, 1959 has already been set out above. For a proper appreciation of the parties it will be necessary to refer also to certain clauses of Article 6 of the Laws (Con­tinuance in Force) Order, 1958 inserted by the Laws (Continuance in Force) (Amendment) Order, 1959 which was promulgated on the 10th March, 1959, and as they stood at the time the plaintiff's case was referred to the Screening Committee. These clauses, namely', clauses (3), (4) and (5) of Article 6 of the said Order as they stood at the time, are set down below:—
             '' (3) Notwithstanding anything in clause (i) person in the service of Pak­istan may, if he is found inefficient or guilty of subversive activities, corruption or misconduct, under rules made in that behalf by the President or a Governor, be suspended, compulsorily retired (whe­ther he has reached the age of retirement or not), reduced in rank, removed or dismissed in accordance with those rules by an authority not subordinate to that by which he was appointed.
(4) No rule made under clause (3) or order expressed to be made in accord­ance with any such rule shall be called in question in any Court.
(5) Nothing in this Article or in any law, rule or instrument having the force of law shall prevent a person mentioned in clause (1) from being—
(a) suspended, reduced in rank, re­moved or dismissed for being corrupt or for misconduct, after such enquiry as may be held under the orders of the Cen­tral Government, or
(b) retired for any cause mentioned in the proceeding sub-clause, or for hav­ing the reputation of being corrupt, or for inefficiency, on such pension (if any), as may be admissible to him, propor­tionate or otherwise—
by an order of the authority mentioned in clause (3) made before the first day of July, 1959, and no appeal shall lie against such order nor shall such order be called in question in any Court".

12. It has already been noticed how since the 28th February, 1959 inefficiency had ceased to be a ground for enquiry under the Public Conduct (Scrutiny) Ordinance, 1959. It will also appear from the text of clause (5) of Arti­cle 6 of the Laws (Continuance in Force) Order, 1958 quoted above that at the relevant time, i. e., when the plaintiff's case was referred for enquiry to the Screening Committee and the plaintiff was served with a notice to show cause why disciplinary action should not be taken agai­nst him for inefficiency, sub-clause (b) of clause (5) alone provided penalty for in efficiency, and that the said penalty was of retirement on­ly. It will further appear that this sub-clause i. e, sub-clause (b) was silent about any enquiry though sub-clause (a) provided for enquiry "as may be held under orders''' of Government.

13. It needs being mentioned further that by the Laws (Continuance in Force) (Second Amendment) Order, 1959 promulgated as late as on the 24th April, 1959 the words "or for inefficiency" occurring on that date in sub-clause (b) was deleted; and the said words were inserted in sub-clause (a) before the words "after such enquiry". It is evident, therefore, that prior to the 24th April, 1969 any action intended to be taken under clause (5) of Arti­cle 6 of the Laws (Continuance in Force) Order, 1958 on the ground of inefficiency could only be contemplated under sub-clause (b) thereof and not under sub-clause (a); nor could an enquiry into an allegation of inefficiency be contemplated under the Public Conduct (Scru­tiny) Ordinance, 1959 since after the 28th Fe­bruary, 1959, inasmuch as inefficiency had ce­ased to be available as a ground for scrutinising the conduct of Government servants under the said Ordinance.

14. To be brief, the learned Additional Attorney-General who appeared in support of the appeal before us contended that the Divi­sion Bench of the High Court arrived at an erroneous decision because of a wrong appro­ach to the case. He submitted that the Division Bench erred in assuming that the impugned order was not passed under sub-clause (b) of clause (5) of Article 6 of the Laws (Continu­ance in Force) Order, 1958, which was cited in the impugned order, but under the Public Con­duct (Scrutiny) Ordinance, 1959; and further that the Division Bench erred in seeking aut­hority for the Screening Committee to enquire into the allegation against the plaintiff, which was of inefficiency, in the Public Conduct (Scrutiny) Ordinance, 1959. The learned Ad­ditional Attorney-General maintained that the last few words of section 4 of the said Ordin­ance clearly indicated that an order imposing a penalty on the basis of the finding and reco­mmendation of a Screening Committee was to be made under a different law. He submit­ted further that the Screening Committee derived its authority to hold the enquiry in this case not from anything in the said Ordinance but from the direction of the Governor who could, at the relevant time get himself infor­med as to the truth or otherwise of an allega­tion as to inefficiency by any means whatso­ever, with a view to taking an action conte­mplated under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958; and that the impugned order of retirement having been passed on 29-5-59, i.e., on a date prior to the date specified in the said clause, namely, the first day of July, 1959 the said order was not open to challenge in any Court because of the concluding words of the said clause.

15. The view taken by the Division Bench of the High Court that the impugned order of retirement was passed by the Governor not under any law other than the Public Conduct (Scrutiny) Ordinance, 1959 need not detain us long since the last few words of section 4 of the said Ordinance, which do not appear to have engaged the attention of the Division Bench, indicate that such an order was to be passed under a different law. Mr. S R. Pal, the learned Counsel for the plaintiff-respondent did not also contest the proposition that an order imposing a penalty on the basis of a Screening Committee's finding and recommen­dation could only be passed by the appointing authority in exercise of powers under the Laws (Continuance in Force) Order, 1958.

16. Mr. S. R. Pal did not also dispute the proposition that the Governor had ample powers under sub-clause (b) of clause (6) of Article 6 of the Laws (Continuance in Force) Order, 1958 to retire the plaintiff for inefficiency, even without an enquiry. Since, however, the Governor ordered an enquiry into the alle­gation against the plaintiff by a Screening Com­mittee appointed under the Public Conduct (Scrutiny) Ordinance, 1959 Mr. S.R. Pal con­tended that the Governor must be presumed to have initially intended to act under sub-clause (a) which provided for an enquiry "as may be held under the orders" of the Govern­ment but eventually, after the Screening Com­mittee submitted its finding, took recourse to sub-clause (b) which did not contemplate an enquiry, upon a belated realisation that by reason of inefficiency having ceased to be a gro­und for enquiry under the said Ordinance the entire proceeding before the said Committee was without jurisdiction; and as such any order that the Governor might pass upon acceptance of the finding of the Screening Committee would be in excess of his jurisdiction. Mr. S. R. Pal maintained that the Governor's subse­quent endeavour to invoke sub-clause (b) could be of no avail and would not save the impug­ned order.

17. In support of his above contentions Mr. S. R. Pal relied upon a decision of the Supreme Court of Pakistan reported in (1960) 12 DLR (SC) 9—P.L.D. 1960 S.C, (Pak) 113 (Zafar-ul-Ahsan Vs. Republic of Pakistan). That case arose out of an order of retirement of an officer purported to have been made under sub-clause (b) of clause (5) of the Laws (Continuance in Force) Order, 1958 on the result of an enquiry. The allegation against the officer concerned was of ‘misconduct', which was a valid ground for enquiry under the Public Conduct (Scrutiny) Ordinance, 1959. It will be evident from the text of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958 quoted above that it was also one of grounds for which the appoint­ing authority could suspend, reduce in rank, remove or dismiss a Government servant after such enquiry as might be held under orders of Government under sub-clause (a); or retire him even without an enquiry in exercise of powers under sub-clause (b). Government chose to order an enquiry by a Screening Committee appointed under the Public Conduct (Scrutiny) Ordinance, 1959. In such circumstances, the Supreme Court of Pakistan held that the enquiry ordered in that case was a 'statutory' enquiry, and as such the Committee appointed to conduct the enquiry was bound to follow the statutory procedure, i.e., the pro­cedure laid down in the rules framed under the Public Conduct (Scrutiny) Ordinance, 1959.

18. In the above case the Screening Committee having found the officer concerned guilty of misconduct, he was retired from service in purported exercise of powers under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958 instead of any action being taken against him under sub-clause (a). While considering an alleged violation by the Screening Committee of certain rules of procedure, it was observed that if the finding arrived at in the enquiry was vitiated by reason of non-compliance of the procedural rules, then an order passed on such a finding would not be a valid order; and the Authority could not be permitted subsequently to vali­date such an order in purported exercise of another power under which it could validly pass the same order without any enquiry. Ulti­mately, however, it was pointed out that sec­tion 10 of the Public Conduct (Scrutiny) Ordinance, 1959 barred the jurisdiction of the Court to call in question the proceedings of a Screening Committee, and similarly the concluding words of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958 also precluded the Court from calling in ques­tion an order passed by the appointing autho­rity under the said clause.

19. In the instant case the allegation, namely of inefficiency, at the time the Governor directed the enquiry, was not to be found in sub-clause (a) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958. It was to be found then only in sub-clause (b) thereof which did not contemplate an enquiry, far less a statutory enquiry. Evidently, there­fore, there could be no question of the enquiry into the allegation against the plaintiff, which involved inefficiency, being directed under sub-clause (a) of clause (5) of the Laws (Continuance in Force) Order, 1958. Nor could, the Gover­nor otherwise have intended the enquiry to be made under the Public Conduct (Scrutiny) Ordinance, 1959 since admittedly, at the re­levant time, inefficiency had ceased to be a ground for enquiry under the said Ordinance. Besides, the case before us does not involve a grievance as to a violation of any procedure in the enquiry as was the case in (1960) 12 DLR (SC) 9=P.L.D. 1960 S.C. (Pak) 113.

20. Being faced with this situation, Mr. S.R. Pal offered as an alternative contention that the Governor referred the plaintiff's case to the Screening Committee under clause (3) of Article 6 of the Laws (Continuance in Force) Order, 1958 which did provide for enquiry in case involving allegations of inefficiency and also specified penalties, thereof, including the penalty imposed on the plaintiff, namely, of retirement from service. He maintained that the enquiry envisaged in clause (3) of the said Order was an enquiry the procedure where­of was provided in the Public Conduct (Scru­tiny) Ordinance, 1959. He maintained further that the enquiry by the Screening Committee having been ordered under a particular legal provision, namely, clause (3) of the Laws (Continuance in Force) Order, 1958 the prin­ciple laid down in (1960) 12 DLR (SC) 9= P.L.D. 1960 S.C. (Pak) 113 would apply. He submitted that once the Governor had taken recourse to clause (3) and in pursuance thereof the Screening Committee conducted an enquiry under the Public Conduct (Scru­tiny) Ordinance, 1959 and submitted its find­ing and recommendation there could be no scope for the Governor to turn round and pass the impugned order of retirement under sub-clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, on a realisation that the said Committee had no jurisdiction to hold the enquiry. We are unable to appreciate this contention. Clause (3), it will appear, speaks of rules made by the pre­sident or a Governor which, clause (4) said "shall not be called in question in any Court" It is difficult to see how the Public Conduct (Scrutiny) Ordinance, 1959 could be treated as a set of rules referred to in clause (3) and an enquiry held under the said Ordinance to be an enquiry envisaged in the said clause of the Laws (Continuance in Force) Order, 1958. Be that as it may, there is nothing to indicate that as referring the plaintiff's case to the Screening Committee the Governor purported to act under clause(3) of the Laws (Continuance in Force) Order, 1958. In (1960) 12 DLR (SC) 9=P.L.D. 1960 S.C. (Pak) 113 also the Supreme Court of Pakistan did not con­sider the reference to the Screening Committee as being one made under clause (3) of the Laws (Continuance in Force) Order, 1958. It appears to us that since at the time the plaintiff's case was referred to the Screening Committee no rules had been framed under clause (3) of the Laws (Continuance in Force) Order, 1958, an enquiry into the conduct of a Government servant could not be directed under clause (3) of the Laws (Continuance in Force) Order, 1958. Then again, since inefficiency was not to be found at that time in clause (a) but in clause (b) thereof, the Governor could not but have intended to proceed under sub-clause (b) of clause (5) which authorised only a penalty of retirement for inefficiency. The reference to the Screening Committee could not, there­fore, have been made under sub-clause (a) of clause (5) of the Laws (Continuance in Force) Order, 1958, as was at one stage argued by Mr. S.R. Pal. The impugned order of retire­ment was made before the 1st July, 1959 and accordingly the same must be held, in view of the concluding words of clause (5) to preclude Courts from questioning the legality of such an order passed by the appointing authority, here the Governor. We are unable also to follow how an enquiry held by the Screening Committee, though under orders of the Go­vernor, can be without jurisdiction simply because inefficiency had ceased to be a ground for an enquiry under the Public Conduct (Scrutiny) Ordinance, 1959.

21. In our view, the enquiry conducted by the Screening Committee against the plaintiff was not a statutory enquiry, since an alle­gation of inefficiency could not be enquired into under the Public Conduct (Scrutiny) Or­dinance, 1959. The Screening Committee held the enquiry in this case at the request of the Governor, who could indisputably get himself informed as to the truth or otherwise of the allegation against the plaintiff through any agency he might choose in the absence of a provision to the contrary. With respect, we are of the opinion that no question of lack of jurisdiction is involved in the instant case, either of the Screening Committee to enquire into the allegation against the plain­tiff or of the Governor in passing the impugned order of retirement. Besides in view of the concluding words of clause (5) of Article 6 of the Laws (Continence in Force) Order, 1958 we are precluded from challenging the validity of the said order which was made within the period specified in clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958. The Supreme Court of Pakistan it appears, has taken the same view in similar circumstances in a case of retirement from service reported in 16 D.L.R. (S.C.) 16 (Govt. of East Pakistan Vs. Mr. Murzaqullah). The first point urged by Mr. S.R. Pal in support of the judgment appealed from accordingly fails.

22. Mr. S. R. Pal next contended that the subsequent order dated the 7th October, 1959 retiring the plaintiff with effect from 30th November, 1959 could be the only ope­rative order of retirement in this case; but the said order having admittedly been passed after the date specified in clause (5) of Arti­cle 6 of the Laws (Continuance in Force) Order i.e., after the first day of July, 1959, none of the two orders could be saved by the preclu­sion clause of Article 6(5) of the Laws (Con­tinuance in Force) Order, 1958. We find no substance in this contention either. The first order dated the 29th May, 1959 was passed before the 1st July, 1959; and it was quite an effective order retiring the plaintiff. The plaintiff himself, as earlier noticed, submitted a representation to the Governor on the 25th June, 1959 for reinstatement seeking a re­view of the impugned order of retirement dated the 29th May, 1959 describing himself as "Retired Special Officer (Home Department), East Pakistan Government Press, Testury Bazar, Dacca". The Notification dated the 29th May, 1959 containing the order of re­tirement was served on the plaintiff under memorandum No. 2472/1-G.A. This memo­randum, as also noticed earlier, contained a further order directing the plaintiff to ''hand overcharge on the forenoon of the 1st June, 1959 positively". It was not in dispute at any stage that this order to hand over charge on 1-6-59 was complied with by the plaintiff. It was more than four months there­after, and some time after the plaintiff add­ressed a representation" to the Governor that the earlier order dated the 25th May, 1959 was modified to some extent with a view to allowing the plaintiff certain retirement bene­fits by way of leave with pay for about 6 mon­ths till the 29th November 1959. Thus the second point urged by Mr. S.R. Pal can also have no substance.

In the result, the appeal is allowed and the judgment and decree of the Division Bench of the High Court are reversed. The plaintiff's suit is dismissed. In the circumstances of the case there will be no order as to costs.

Ed.