Case No: Civil Appeal Nos. 60 and 61 of 1997
Judge: Mahmudul Amin Choudhury.,
Court: High Court Division,,
Advocate: AJ Mohammad Ali,Amirul Islam,,
Citation: 1 ADC (2004) 390
Case Year: 2004
Appellant: Government of Bangladesh
Respondent: Md. Anwarul Islam
Subject: Administrative Law,
Delivery Date: 2002-05-06
Government of Bangladesh
Md. Anwarul Islam, 2002,
1 ADC (2004) 390
Mahmudul Amin Choudhury CJ
Md. Ruhul Amin J
KM Hasan J
Government of Bangladesh, represented by the Secretary Ministry of Home Affairs, Bangladesh Secretariat, Ramna, Dhaka and others............Appellants (In Civil Appeal No. 60 of 1997)
Md. Anwarul Islam..................Respondent (In Civil Appeal No. 60 of 1997)
Md. Anwarul Islam..................Appellant (In Civil Appeal No. 61 of 1997)
Government of Bangladesh represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Ramna, Dhaka and others....Respondents (In Civil Appeal No. 61 of 1997)
May 6, 2002.
Administrative Appellate Tribunal
The tribunal cannot grant gratuitous relief and if such a relief is granted the same should be construed as relief granted in excess of jurisdiction. The Administrative Tribunal Act has not provided for any such authority to the Tribunal to give such a relief as has been given to the authority in the present case before us.
Cases Referred To-
Quazi Nazrul Islam Vs. Bangladesh House Building finance Corporation and others 45 DLR (AD) 106.
AJ Mohammad Ali, Additional Attorney General (Feroz Shaha, Assistant Attorney General with him), instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For Appellants (In Civil Appeal No. 60 of 1997)
Amirul-Islam, Senior Advocate (Mrs. Tania Amir, Advocate with him), instructed by Md. Nawab Ali, Advocate-on-Record-For the Respondent (In Civil Appeal No. 60 of 1997)
Amirul-Islam, Senior Advocate (Mrs. Tania Amir, Advocate with him), instructed by Md. Nawab Ali, Advocate-on-Record-For appellant (In Civil Appeal No. 61 of 1997)
AJ Mohammad Ali, Additional Attorney General (Feroz Shaha, Assistant Attorney General with him), instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For Respondents (In Civil Appeal No. 61 of 1997)
Civil Appeal Nos. 60 and 61 of 1997.
(From the judgment and order dated 17th February, 1997 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 29 of 1995.)
Mahmudul Amin Choudhury CJ.- These two appeals are taken up for disposal which arose out of judgment and order dated 17th February, 1997 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 29 of 1995 allowing the same with certain observations.
2. The short fact leading to these appeals are that Md. Anwarul Islam, former Police Sergeant appellant in Civil Appeal No. 61 of 1997 filed Administrative Tribunal Case No.107 of 1991 alleging that earlier he was posted at eastern Police Post, Dhaka and on 20.6.1984 at dead of night while he was returning home from duty station at East Dhanmondi Police outpost he found a Microbus bearing No. Dhaka Cha-1456 moving suspiciously and after a chase he arrested the driver and found two bales of Indian cloth in the Microbus. He then escorted the driver and the Microbus and cloths to Dhanmondi Police Station with the help of another police sergeant and handed over the driver, the Microbus and two bales of Indian cloth and lodged First Information Report which was recorded as Dhanmondi P.S. Case No. 61 (6) 84 under Section 156 (4) of the Customs Act. It is the case of the petitioner that thereafter he was transferred to Khulna on 8.7.1984 by the Inspector General of Police where he joined in 15.7.1984. It is his further case that Assistant Commissioner of Dhaka Metropolitan Police investigated the case and submitted a report on 16.7.1984. On 30.7.1984 respondent petitioner was suspended by the Metropolitan Police Commissioner, Dhaka on the basis of that report and a proceeding drawn up against him under the Police Officers (Special Provisions) Ordinance, 1976 on a charge of corruption on the allegation of illegally releasing 18 bales of Indian cloth seized by him. A show cause notice was served upon him on 15.10.1984 to which he submitted a written statement in his defiance on 27.10.1984 denying all the charges brought against him. In that proceeding 4.11.1984 was fixed for personal hearing before the inquiry officer where he appeared but was not heard. Then the inquiry officer completed the inquiry but the copy of the charge sheet of the Dhanmondi Police Station case was not supplied to him and thereby he was denied the opportunity of defense. Then by order dated 17.11.1984 he was compulsorily retired from service. Then the respondent preferred appeal which was rejected on 7.3.1985. Then again revisional application was filed on 30.3.1985 which was also rejected on 16.1.1991 and thereafter the aforesaid case before the Administrative Tribunal was filed on 28.4.1991.
3. The case was contested by appellant No. 2 the Inspector General of Police by filing a written statement denying the material allegations. It was the case of the contesting party that from the Microbus 20 bales of Indian cloths were seized but after producing only two bales to the duty officer the First Information Report was lodged stating that only two bales were seized consequent to which a departmental proceeding was started against the respondent on charges of misconduct and corruption under Clause 4(1) and 4(IV) of the aforesaid Ordinance of 1976 and after observing the formalities including second show cause notice respondent was compulsorily retired from service on 17.11.1984 under the aforesaid Ordinance.
4. Before the Administrative Tribunal both the parties adduced evidence and the Tribunal on consideration of the same by judgment dated 18.2.1995 dismissed the case on two counts, firstly that the case is time barred and secondly that no illegality has been committed in passing the order of compulsory retirement.
5. On being aggrieved by the order of dismissal of the case respondent preferred Appeal No. 29 of 1995 before the Administrative Appellate Tribunal and the Appellate Tribunal on hearing allowed the appeal set aside the order of the Administrative Tribunal and declared that the respondent is still in service and entitled to all benefits upon setting aside the order of compulsory retirement. The Administrative Tribunal however observed that the competent authority will be at liberty to proceed against the respondent afresh on the same allegation if they so desire and the appellant will continue to remain in suspension till final order is passed. The present appellant and the respondent on being aggrieved by the same judgment of the Administrative Appellate Tribunal filed two leave Petitions and leave was granted to consider the following:
"It appears from the impugned judgment that the Appellate Tribunal took the view that since opposite party No. 3 drew up proceeding against the petitioner after he had joined District Police Force. Khulna on transfer he (O. P. No. 3) had no jurisdiction for taking disciplinary action against the petitioner because the provisions of Regulation No. 859 of P.R.B, and Section 9 of the DMP Ordinance (III of 1976) provide that when a police detachment is transferred to another jurisdiction the authority of taking disciplinary action against that detachment will lie with the competent authority of the latter jurisdiction for all purposes and the jurisdiction of the authority of former station will cease. The Appellate Tribunal also found that the application of the petitioner was not time barred and the decision of the Tribunal below on that point was wrong.
Mr. B. Hossain learned Deputy Attorney General appearing for the opposite party petitioner (civil Petition No. 326 of 1997) submits that the learned Appellate Tribunal upon a misconception of law and facts wrongly held that the Metropolitan Police Commissioner, Dhaka ceased to have jurisdiction for taking disciplinary action against the petitioner (respondent) causing failure of justice. He also submits that the order of compulsory retirement passed against the petitioner is protected by Section 8 of the Police Officers (Special Provisions) Ordinance, 1976.
Mr. Amir-ul-Islam, learned Advocate appearing for the petitioner (In Civil Petition No. 330 of 1997) submits that the learned Appellate Tribunal acted in excess of it jurisdiction by making the observation in the judgment as above causing prejudice to the petitioner. The impugned judgment, he submits."
6. From the perusal of the judgment it appears that the Administrative Tribunal also dismissed the case on the ground of limitation which was set aside by the Administrative Appellate Tribunal but leave was not granted on the point of limitation. Leave was granted on the competency of appellant No. 3, Metropolitan Police Commissioner to pass the impugned order of compulsory retirement of the respondent. Leave was also granted in the Civil Petition filed by the respondent Md. Anwarul Islam against certain observations made by the Administrative Appellate Tribunal. The first point raised by the Additional Attorney General is that the Administrative Appellate Tribunal committed wrong and illegality in holding that drawing up for the proceeding against the respondent by appellant No.3 i.e. Metropolitan Police Commissioner, Dhaka after transfer of the respondent from Dhaka to Khulna and joining there is contrary to law and discipline and it is the superintendent of Police of Khulna where the respondent was posted on the date of drawing up proceeding was competent to proceed with the inquiry.
7. Admittedly the respondent was charged for misconduct alleging that on 20.6.1984 while he was posted as Sergeant in Dhaka Metropolitan Police he apprehended a Microbus with a Driver and actually recovered 20 bales of Indian cloth but while lodging the First Information Report he showed recovery of only two bales and misappropriated the remaining. The occurrence took place with in Dhaka metropolitan are where the respondent was posted at the relevant time. On receipt of the First Information Report from the respondent Dhanmondi PS Case No. 61 (6) 84 was started. Thereafter on 8.7.1984 the respondent was transferred by the Inspector General of Police to Khulna where he joined on 15.7.1984. It is also an admitted fact that on 30.7.1984 the respondent was placed under suspension and proceeding was drawn up against him under Police Officers (Special Provisions) Ordinance, 1976 on a charge of corruption. It is also an admitted fact that show cause notice was served upon there respondent on 15.10.1984 and he submitted his written statement in his defense on 27.10.1984. He was to be hearted in person on 4.11.1984 by appellant No.3, Subsequently on completion of inquiry report was submitted and ultimately respondent was compulsorily retired from service on 17.11.1984. Now the Administrative Appellate Tribunal found that after transfer of the respondent from Dhaka to Khulna the Metropolitan Police Commissioner Dhaka had an authority to initiate proceeding and to pass any disciplinary order compulsorily retiring the respondent. The proceeding was intimated under the Police officers (Special Provisions) Ordinance, 1976. The Distractive Appellate Tribunal placing reliance on regulation 859 of Police Regulation observed that the proceeding ought to have been imitated and conducted by the superintendent of Police of Khulna where at the relevant time the respondent was posted. Admittedly the occurrence took place while respondent was posted in Metropolitan Police at Dhaka, Section 6 of the Ordinance provided that when a police officer is to be proceeded for any of the offences mentioned in Section 4, the authority concern shall frame a charge and specify therein penalty proposed to be imposed and communicate it to the police officer hereinafter called "Accused" requiring him to show cause within specified time which shall not be less than 7 days and more than 10 days from the date of charge has been communicated to him why penalty proposed to be imposed shall not be imposed and also to state what he desires to be heard in person. Now Section 2(A) of the Ordinance defined "authority" as the authority specified column 2 of the schedule. In column 2 of the schedule it has been provided that in case of a sergeant the authority would be Deputy Inspector General of Police and in case of Metropolitan area Police Commissioner or Additional police commissioner. Admittedly the respondent was acting as Sergeant in the Dhaka Metropolitan Police and as such as per this Ordinance it is the Metropolitan Police commissioner, Dhaka or the Additional Commissioner who was competent to draw up proceeding and that has been done in the present case. Admittedly when the proceeding was initiated by the Metropolitan Police Commissioner the respondent was posted in Khulna. In this Ordinance there is nothing that in caser of transfer before drawing up of proceeding the same should be drawn up or initiated or proceeded with at the place where the accused is posted. This ordinance indicate that the proceeding may be imitated, drawn up where the alleged offence has been committed. Thought in Regulation 859 of P.R.B. it has been provided that the Superintendent of Police where such an officer is posted will be fully competent to take any disciplinary action for an offence committed by such an officer when he was posted outside his jurisdiction but in view of Section 3 of the Ordinance this Regulation 859 has lost its force as Section 3 provided that this Ordinance shall have effect notwithstanding anything contained in any law, rules and regulations relating to police force nor shall prejudice operation of any other law, Rules and regulations including service conditions of the said police force. When a proceeding is drawn up against a police official under this Ordinance the plea that his case is to be decided under any other law will have no effective force. So in the present case regulation 859 cannot be a bar in proceeding with the disciplinary action against the respondent by the Metropolitan Police Commissioner in Dhaka. It is an admitted fact that the accused respondent was transferred to Khulna by the Inspector General of police and he has been charged and proceeded with for an offence committed by him while posted in Dhaka Metropolitan Police by the Police Commissioner of Dhaka Metropolitan Police and in view of the clear provision of the Ordinance we hold that no illegality and wrong has been committed in this case. In the Ordnances there is nothing to show that in case of such a nature the concerned authority is required to send the record of the proceeding to the Superintendent of Police where the accused has been subsequently transferred and when there is not such provision in the Ordinance and when this Ordinance override all other laws, rules and regulations we hold that the Administrative Appellate Tribunal Committed wrong and illegality in allowing the appeal holding that appellant No.3 i.e. the Police Commissioner of Dhaka Metropolitan Police had no jurisdiction in taking disciplinary action against the respondent. In such a case provision of regulation 859 of P. R. B. and Section 9 of the DMP Ordinance (III of 1976) will have no affect and bar in holding an inquiry and punishing an accused.
8. Having given our anxious consideration to the materials on record and after hearing the learned Advocate of both the sides we hold that the Administrative Appellate Tribunal Committed wrong and illegality in allowing the appeal.
9. The respondent also filed Civil Appeal No. 61 of 1997 against certain observation made in the judgment by the Administrative Appellate Tribunal. It appeals that while disposing of the appeal the Administrative Appellate Tribunal observed as follows:
"In view however of the facts and circumstances of the case we are inclined in the interest of justice to allow the competent authority an opportunity to proceed afresh against the appellant on the same allegations."
10. Mr. Amir-ul-Islam, learned Counsel appearing on behalf of appellant of civil Appeal No. 61 of 1997 submits that the Administrative Appellate Tribunal committed gross illegality in passing the aforesaid order. It is submitted that under the Administrative Tribunal Act the appellate authority has no jurisdiction to pass such an order and in support of his submission he placed reliance in the case of Quazi Nazrul Islam Vs. Bangladesh House Building Finance Corporation and others reported in 45 DLR (AD) 106 where in it has been held that the Administrative Tribunal and the Administrative Appellate Tribunal have been established with a limited jurisdiction and limited powers. The tribunal cannot grant gratuitous relief and if such a relief is granted the same should be construed as relief granted in excess of jurisdiction. The Administrative Tribunal Act has not provided for any such authority to the Tribunal to give such a relief as has been given to the authority in the present case before us.
11. In view of this we hold that illegality and wrong has been committed in making the aforesaid observation, which require interference and accordingly were are inclined to allow the appeal and delete the aforesaid observation.
12. Civil Appeal No. 60 of 1997 is allowed without cost as aforesaid. Judgment and order passed by the Administrative Appellate Tribunal in the aforesaid appeal is hereby set aside and those of the Administrative Tribunal is restored.
In Civil Appeal No. 61 of 1997 the observation made by the Appellate Tribunal as aforesaid as hereby deleted and the appeal is accordingly disposed of.
No order as to cost.