Begum Shamsunnahar Vs. Government of Bangladesh

Case No: Civil Appeal Ho. 299 of 2002

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Fida M. Kamal,Tabarak Hossain,,

Citation: 58 DLR 2006 (AD) 07

Case Year: 2006

Appellant: Begum Shamsunnahar

Respondent: Government of Bangladesh

Subject: Administrative Law,

Delivery Date: 2004-6-14

Begum Shamsunnahar

Vs.

Government of Bangladesh, 2006, (AD)

58 DLR 2006 (AD) 07

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J
 
Begum Shamsunnahar..................Appellant

vs.

Government of Bangladesh represented by the Secretary, Women and Children Affairs &. others..............Respondents
 
Judgment
June 14th, 2004
 
The Constitution of Bangladesh, 1972,
Article 135(2)

The appellant being in service of the Republic, in case of her removal, she is eligible for protection under Article 139(1) of the Constitution. She cannot be removed or discharged from service by an authority subordinate to which she was appointed…………..(6)
Because of pendency of a Criminal Case against the Appellant during the period of her removal, such removal was not a removal simpliciter, because of which she is entitled to  protection of Law eligible to her……..(10)
 
Lawyers Involved:
Tabarak Hossain, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For the Appellant.
Fida M Kamal, Additional Attorney-General (Karuna May Chakma, Additional Attorney-General with him) instructed by B Hossain, Advocate-on-Record—For the Respondents.

Civil Appeal Ho. 299 of 2002.
(From the judgment and order dated 28-1-2001 passed by the Administrative Appellate Tribunal in Appeal No. 127 of 1999).
 
Judgment:
                  MM Ruhul Amin J.- This appeal by leave is directed against the judgment and order dated 28-1-2001 passed by the Administrative Appellate Tribunal in Appeal No. 127 of 1999 allowing the appeal by majority view.

2. Short facts are that the appellant while working as Project Director of Rural Women Employment Creation Project, the Bureau of Anti-Corruption on 16-11-1994 lodged an FIR with the Ramna Police Station on the allegations of offence punishable under sections 406/409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 against her. She surrendered before the Court on 20-11-1994 and was enlarged on bail. The respondent No.2, a Deputy Secretary of the Ministry of Women and Children Affairs, then by his impugned memo dated 19-12-1994 discharged her from service. She then preferred Writ Petition No. 2602 of 1994 against the above order of her discharge from service but the writ petition was rejected on 5-1-1995 with observation that she should seek redress before the competent Administrative Tribunal. In the meantime she preferred an appeal on 7-1-1995 to the Secretary, Ministry of Women and Children Affairs against the impugned order of discharge from service. Thereafter, on 23-2-1995, she instituted Adminis­trative Tribunal Case No. 34 of 1995 before the Administrative Tribunal, Dhaka which was rejected on 22-4-1995 as being not maintainable since no decision of the Secretary, Ministry of Women and Children Affairs was annexed. She preferred Administrative Appellate Tribunal Appeal No. 73 of 1995 before the Administrative Appellate Tribunal challenging the order of rejection but the same was also rejected on 1-3-1997. Thereafter, she received memo No. মশি বিম/শা-৭/১৫/৯৩-৯৫-৩১ dated 1-3-1997 under the signature of respondent No.3 informing her that her appeal to the Secretary of the Ministry of Women and Children Affairs was rejected. Being aggrieved she filed the present case before the Administrative Tribunal alleging, inter alia, that she was appointed by order of the President but his approval was not obtained before discharging her from service.

3. The learned Member of the Administrative Tribunal by his judgment and order dated 27-5-1999 allowed the case holding that the discharge of the appellant from service by respondent No. 2, a Deputy Secretary of the Ministry of Women and Children Affairs, was illegal on account of the President being her appointing authority. It was further held that the impugned order was against the principle of natural justice and in violation of Article 135(1) of the Constitution. The respondent then filed appeal before the Administrative Appellate Tribunal being Appeal No. 127 of 1999 and the Administrative Appellate Tribunal by the impugned judgment and order allowed the appeal by majority view as aforesaid.

4. Leave was granted to consider the submissions that the appellant was appointed as Project Director under the Rural Women Employment Creation Project: by order of the President and she was removed by an order passed by the Deputy Secretary of the concerned Ministry and, as such, it is clear that in passing the impugned order sub-rule (b) of Rule 4 of the Government Servants (Discipline and Appeal Rules), 1985 has been violated as the impugned order was passed by an authority which was subordinate to the appoin­ting authority and the Appellate Tribunal did not properly consider this aspect of the case and as a result these has been miscarriage of justice and the next submission that, Article 135(1) of the Constitu­tion provides that "No person who holds any civil post in the service of the Republic shall be dismissed or removed or reduced in rank by an authority subordinate to that by which he was appointed." In this case, the appellant was removed by the Deputy Secretary of the concerned Ministry and even if the removal order was passed with the approval of the State Minister of the concerned Ministry that cannot be a proper order as under Article 135 of the Constitutions, the State Minister has no authority to issue this order and the Administrative Appellate Tribunal ought to have considered this aspect and, as a result, there has been miscarriage of justice as the Tribunal did not consider this aspect of the matter and also the submission that before passing the impugned order of removal from service of the appellant no show cause notice was served upon her and, as such, the principle of natural justice and Article 135(2) of the Constitution have been violated and the last submission that the appellant in paragraph 4 of her petition in Administrative Tribunal Case No. 102 of 97 clearly stated that " ইতিমধ্যে দরখাস্তকারিনি বিগত ৭.১.১৯৯৫ ইং তারিখে সচিব,মহিলা ও শিশু বিষয়ক মন্ত্রণালয়, বাংলাদেশ সচিবালয় বরাবরে তর্কিত অব্যাহতি আদেশের বিরুদ্ধে একটি আপীল আবেদন দায়ের করেন,” and in paragraph 6 of the Petition, it was stated that  “নিরুপায় দরখাস্তকারিনি সচিব, মহিলা ও শিশু বিষয়ক মন্ত্রণালয় বরাবর ৭.১.১৯৯৫ ইং তারিখে সচিব বরাবরে দরখাস্ত পেশ করেন,”and in Annexure “Cha” it was clearly mentioned that “পরবর্তীতে সচিব মহোদয়ের নিকট ৭.১.১৯৯৫ ইং তারিখে আমার দায়িত্বভার প্রদানের জন্য আবেদন জানাই; ১৫.১.১৯৯৫ ইং তারিখে যথাযথ কর্তৃপক্ষের মাধ্যমে প্রেরণের জন্য আপীল দাখিল করি৷” Therefore, the majority members of the appellate Tribunal committed wrong in observing that the appellant did not at all prefer any appeal and accordingly, the appeal preferred before the Administrative Appellate Tribunal was wrongly allowed.

5.  We have heard Mr. Tabarak Hossain, the learned Counsel for the appellant and Mr Fida M Kamal, the learned Additional Attorney-General for the respondents and perused the judgment of the Administrative Appellate Tribunal and other connected papers.

6.  It is undisputed that the appellant was appointed as project director by order of the President of the Republic (Annexure-Ka) but at the time of removal from service, the approval of the President was not obtained. The contention of the learned Advocate for the respondent is that approval of the Secretary of the concerned Ministry and State Minister of the Ministry were obtained but in our view the requirement of law is that the appellant's removal from service is to be made by the appointing authority, that is the President of the Republic, and not by any other   authority subordinate to the appointing authority. It is not disputed that the appellant was a person in the service of the Republic. Therefore, under Article 135(1) of the Constitution she cannot be removed or discharged from service by an authority subordinate to that by which she was appointed. Hence, in the instant case there has been violation of the Provisions of Article 135(1) of the Constitution.

7.  It is also undisputed that no notice to show cause was served upon the appellant before her removal from service. The finding of the Administrative Appellate Tribunal is that the appellant was asked to make comments on some allegations published against her in a daily newspaper but she remained silent and this tantamounts to notice to show cause and hence no fresh notice to show cause before her removal from service was required to be served upon her. In our view, this finding of the Administrative Appellate Tribunal regarding service of notice to show cause upon the appellant before her removal from service is totally unfounded as the communication of newspaper cutting inviting comments of the appellant cannot be tagged with the fundamental principle of natural justice—that no man should be condemned unheard.

8. The Administrative Appellate Tribunal further held that admittedly, the appellant was appointed in a project and she was to continue in service so long the project continues. This position is not disputed.  The Administrative Appellate Tribunal held that the period of the project in which she was appointed expired on 30-6-1999. This finding of the Administrative Appellate Tribunal is wholly incorrect as from memo dated 23-4-2000 of the Ministry of Women and Children Affairs it is clear that the project was extended till 30th June, 2004.

9. From Annexure-Kha, the impugned order of removal of the appellant dated 19-12-1994, it appears that it was stated that since Ramna PS Case No. 44 dated 20-11-1994 was lodged against appellant under sections 406/409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, she was removed from service in terms of the conditions of her appointment letter dated 2-10-1994. It is undisputed that in the appointment letter Annexure-Ka, it was mentioned that appellant could be removed at any time without assigning any reason with one month's notice or one month's pay in lieu thereof.

10. It is true in terms of the letter of appointment the appellant was liable to be removed with one month's notice or one month's pay in lieu thereof but in the instant case, she was removed from service, because of the pendency of Ramna PS 44 dated 20-11-1994 as stated above. So, it is clear that her removal was not a removal simpliciter; rather her removal was with stigma. Therefore, her removal from service without notice to show cause was without jurisdiction.

11.  It is also undisputed that in Ramna PS Case No. 44 dated 20-11-1994 police on completion of investigation submitted final report against the appellant and the same was duly accepted by the learned Special Judge, Dhaka by order dated 30-11-1997. Hence, in the eye of law, there is no criminal case pending against the appellant although she was removed on this count.

12. Therefore, from the discussions made above, it is clear that the Administrative Appellate Tribunal on misreading and non-consideration of the materials on record arrived at an erroneous decision requiring interference by us.

Accordingly, the appeal is allowed without any order as to costs.

Ed.