Government of Bangladesh & anothers Vs. Sheikh Munsur Rahman

Case No: Civil Appeal No. 49 of 2000

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Fida M. Kamal,Abul Kalam Mainuddin ,,

Citation: 1 ADC (2004) 562

Case Year: 2004

Appellant: Government of Bangladesh & anothers

Respondent: Sheikh Munsur Rahman

Subject: Administrative Law,

Delivery Date: 2004-07-14

Government of Bangladesh & anothers

Vs.

Sheikh Munsur Rahman, 2004,

     1 ADC (2004) 562

 


 

Supreme Court
Appellate Division
(Civil)

 
Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J
 
Government of Bangladesh and another.......................Appellants

Vs.

Sheikh Munsur Rahman.....................Respondent
 
Judgment
July 14, 2004.
 
The Government Servant (Discipline and Appeal) Rules 1985,

Rule 3(d)(iii), 7 (1)(b)(2)(c)
Respondent was dismissed from service on the ground that he has a persistent reputation of being corrupt but as it appears in the charge there is no particulars in this regard and further there is nothing in the record to show that an statement of allegations containing particulars in this regard were sent to the respondent along with the charge to enable the respondent to refute that………..(7)
 
Lawyers Involved:
Fida M. Kamal, Additional Attorney General, instructed by B. Hossain, Advocate-on-Record-For the Appellants.
Abul Kalam Mainuddin, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Respondent.

Civil Appeal No. 49 of 2000.
(From the Judgment and Order dated 31st March, 1998 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 31 of 1996)
 
Judgment:
               Md. Tafazzul Islam J.- This Civil appeal by way of leave, is against the judgment and order dated 13.2.2000 passed by the Administrative Appellate Tribunal Dhaka in Appeal No. 317 of 1996 allowing the appeal reversing judgment and order dated 14.2.1996 passed by the Administrative tribunal in Administrative Tribunal Case No. 45 of 1995 dismissing the case ex parte.

2. The respondent filed the above Administrative Tribunal Case No. 45 of 1995 stating, inter alia, that while serving as Bench Assistant of 2nd Court of Subordinate Judge, Khulna, he was charge sheeted on the allega­tions that he on his transfer failed to hand over the records of three cases to his successor at the time of making charge and he also failed to obtain the signature of the Presiding Officer in the judgment passed in Special Tribunal Case No. 116 of 1991 though he was in custody of the records of the above case and as such he was guilty of negligence of duty and corruption. The respondent denied both the charges. Thereafter an enquiry was held by A.F.M. Aminul Islam, the Subordinate Judge, who after enquiry found the respondent guilty of negli­gence of duty and corruption for not handing over the files of three special tribunal cases to his successor and also for not obtaining signa­ture of the Presiding Officer in the judgment passed in Special Tribunal Case No.116 of 1991. The appellant did not contest the above case before the Administrative Tribunal. After hearing by judgment and order dated 14.2.1996 the Administrative Tribunal dismissed the case ex parte holding that allegations brought against the respondent have been proved in the enquiry and there was no illegality in the departmental proceeding. The respondent then preferred the aforesaid Appeal No. 31 of 1996 and the Administrative Appellate Tribunal, after hear­ing, allowed the appeal.

3. The learned counsel appearing for the appellant has submitted that the Administrative Tribunal having found that no illegality have been committed by the enquiry officer, the Administrative Appellate Tribunal acted illegally in allowing the appeal and that charge of cor­ruption having been leveled in the charge sheet the Administrative Appellate Tribunal erred in law in finding that there was no charge of cor­ruption in the charge sheet. The learned counsel further submits that the Administrative Appellate Tribunal erred in law in interfering with the departmental proceeding in setting aside the order of dismissal.

4. The learned counsel appearing for the respondent on the other hand submits that in his application filed before the Administrative Tribunal the respondent took specific ground to the effect that the provisions of Rule 7 of Government Servant Discipline and Appeal Rules 1985, (Rules) were not followed in the departmental proceeding started against the respondent and the concerned authority, being bent upon to punish the respondent in any way, did not comply with the provisions of Rule 7 but inspite of above the Administrative Tribunal dismissed the case without at all considering that in the departmental proceedings against the respondent the provisions of Rule 7 of the. Rules were not followed; the Administrative Tribunal fell in error in not con­sidering that Rule 7(1)(b) of the Rules gives 10 working days of submissions of reply but in the present case the enquiry officer was appointed even before expiry of 10 working days and accordingly the Administrative Appellate Tribunal took this fact into consideration right­ly held that the judgment of the Administrative Tribunal is not sustainable in law; the Administrative Tribunal failed to consider that the enquiry was based not on evidence on record but on surmise and conjecture, the respondent was dismissed on the charge that he had a persistent reputation of being corrupt as is provided in Rule 3(d) (iii) of the Rules but there is nothing on record to show that the respondent had a persistent reputation of being corrupt and in the charge framed against the respondent previous instances of such corruption were are not mentioned and further no statement of alle­gations to substantiate the charge of persistence reputation of being corrupt was also sent to the respondent along with charge so as to unable the respondent to explain the allegations further the short handbook of the stenographer which was very vital for the enquiry was also not called for by the Enquiry Officer inspite of requests made by the respondent in this behalf.

5. As it appears in his application before the Administrative Tribunal the respondent specifi­cally stated that in Rule 7(1) (b) of the Rules it has been specifically provided that when a Government servant is to be proceeded against under sub clause (iii) of clause (d) of Rule 3 and the authority is of the opinion that the allega­tions, if established, would call for a major penalty, the authority shall at first frame a charge and specify therein the penalty proposed to be imposed, and communicate it to the Government servant together with a statement of allegations on which it is based and require the accused to submit, within 10 working days from the day the charge has been communicat­ed to him, a written statement of his defence and to show cause at the same time why the penalty proposed to be imposed on him should not be imposed and also to state whether he desires to be heard in person and where the accused submits his statement of defence with­in the specified or expended time, the authority shall consider such statement together with all materials relating to the charge and if, after such consideration, the authority is of the opinion that there is good ground for proceeding against the accused for imposition of major penalty, it shall appoint an Inquiry officer to inquire into the allegations contained in the charge. But as it appears in the present case the authority by letter dated 28.5.1994 framed charge directing the respondent to submit written statement to the charge with in 10 working days from the date of receipt of the above letter dated 28.5.1994 and by this very letter the authority also unformed the respondent that Mr. A. F. M. Aminul Islam, Subordinate Judge, has been appointed as the Enquiry Officer ant that reply, if any is to be sent by the respondent directly to the above Enquiry Officer. The above direction it is clear violation of Rule 7(1) (b) of the Rules. If for arguments sake it is conceded that the respondent received the above letter containing charge on the same very day i.e. 28.5.1994, even then in terms of provisions of above Rule 7(1)(b), the respondent was entitled 10 working days to file reply or written statement to the said charge and Rule 7(2)(c) of the Rule specifically provides that if after receiving the written state­ment filed by the accused the authority was of the opinion that there is a good ground for pro­ceeding against the accused for imposition of major penalty, then the authority shall appoint on enquiry officer. But as it appears, in the pres­ent case the authority without waiting for 10 working days for receiving the reply or written statement from the respondent, appointed enquiry officer by the very letter dated 28.5.94 by which charge was framed against the respon­dent and asked the respondent to submit show cause to the enquiry officer directly. It is the very case of the respondent that the authority was bent upon to punish him and so they did not care to follow in Rules.

6. It further appears in the present case the Enquiry Officer found the respondent guilty under Rule 3(d) (iii) of the Rules and on that basis he was dismissed from his service.
Aforesaid Rule 3(d) (iii) provides as fol­lows.
"3. Grounds for Penalty.- Where a Government servant, in the opinion of the authority:-
      (i) is corrupt, or may reasonably be consid­ered corrupt because-
      (ii) he has a persistent reputation of being corrupt". 

7. However as it appears though the respon­dent was dismissed from service on the ground that he has a persistent reputation of being cor­rupt but as it appears in the charge there is no particulars in this regard and further there is nothing in the record to show that an statement of allegations containing particular sin this regard were sent to the respondent along with the charge to enable the respondent to refute that.

8. As it appears the Administrative Tribunal dismissed the case of the respondent simply holding as follows:- 
        "Considering the statements of other witnesses recorded by the Enquiry offi­cer the statement of the present peti­tioner and the explanation submitted by him in response to the charge it is found that the allegation brought against the petitioner are fully proved. Nothing illegality has been noticed in the departmental proceeding. So the impugned order imposing penalty upon the petitioner calls for no interference and the petitioner is not entitled to get any relief." 

9. However as it appears the Administrative Appellate Tribunal discussed the issues in details and allowed the appeal holding as fol­lows:- 
           "The learned Member of the Administrative Tribunal has not in the impugned judgment stated the petition­er's case. The contentions raised in his application before the Tribunal as stat­ed earlier are clear and specific. The O.Ps have not appeared in the case and thus the contentions roman uncontroverted. Had the Short Hand Book of the Stenographer been called for in the Enquiry and the earlier monthly state­ments been looked into and the particu­lars of the 3 so called missing cases asked for from the prosecution, a cor­rect finding could be arrived at in the enquiry by the Enquiry Officer. On the contrary, the enquiry Officer has intro­duced some new things that the judg­ment sheets have been changed and the 3 cases records have been cancelled with malafide motive. This was beyond the scope of the enquiry. The bare alle­gations in the charge sheet as they were very simple and prima facie did not speak of corruption and as a matter of fact the O.Ps did not contest the case asserting otherwise. The prosecution clearly failed to adduce evidence to show that the petitioner secretly misap­propriated the three cases records and that the judgment was otherwise. In our view the simple allegations made in he charge if correctly construed may if at all constitute inefficiency but in no sense corruption. Besides, the learned Member of the Tribunal below has failed to take notice that the enquiry held in not haste before the submission of the reply to the charge sheet being no proper enquiry has greatly prejudiced the petitioner in his defence. We have shown above the irregularities and ille­galities committed in the proceeding writing the final order of punishment and the sweeping observation of the Tribunal below to the effect has no ille­galities have been committed in the proceeding is not warranted by the facts. In view of what has been stated above we are inclined to held that the learned Tribunal has not considered the matters in issue in their correct perspec­tive and has otherwise failed to take notice of the material aspects of the petitioner's case and has thereby arrived at a wrong decision. In such view of the matter the impugned judg­ment and order cannot be sustained in law and is therefore liable to be set aside." 

10. Further the records also show that the respondent prayed before the Enquiry Officer for calling the records of the case but the said prayer was rejected by the Enquiry Officer. In any view of the matter the instances on particu­lars in respect of the charges that the respondent “has a persistent reputation of being corrupt” were neither stated in the charges nor were a state­ment of allegation containing the instances or particulars in this regard sent to for the respondent along with charge to enable him to refuse those. Further there is no materials on record to show that the respondent had the per­sistence reputation of being corrupt and as it appears the Administrative Tribunal completely failed to apply its judicial mind in deciding the case and in a slip shod manner dismissed the case while the Administrative Tribunal, after applying its judicial mind, allowed the appeal and accordingly no interference is called for.

The appeal is dismissed without any order as to costs.
Ed.