Government of Bangladesh and others Vs. A.K.M. Fazlul Haque

Case No: Civil Appeal No.283 of 2002

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: TH Khan,Mr. Abdur Razzaq,,

Citation: 58 DLR (AD) 166

Case Year: 2006

Appellant: Government of Bangladesh and others

Respondent: A.K.M. Fazlul Haque

Subject: Administrative Law,

Delivery Date: 2005-3-22

Government of Bangladesh and others

 Vs.

A.K.M. Fazlul Haque, 2006, (AD)

58 DLR (AD) 166

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
M. A. Aziz J
Amirul Kabir Chowdhury J
 
Government of Bangladesh and others .....................Appellants
Vs.
A.K.M. Fazlul Haque...............................................Respondent
 
Judgment
22 March 2005.
 
Government Servants (Discipline and Appeal) Rules, 1985
Rule 11 (3)

The authority having allowed the respondent to act in his service for about six months of joining, the purported action after about more than a year of setting aside the order of termination, the impugned action against the delinquent officer was surely a measure of belated afterthought and the authority will be estopped from initiating an action under Rule 11(3) of the Rules, 1985.
 
Cases Referred To-
Zane Alam Khan vs. Abdul Hamid Chowdhury, 3 BLC (AD) 55; A.B.M. Abdul Baqi vs.  Government of Bangladesh, 4 BLC (AD) 213.
 
Lawyers Involved:
Abdur Razaque Khan, Additional Attorney General, (Faisal H. Khan, Assistant Attorney General with him), instructed by Md. Ahsanullah Patwary, Advocate-on-Record- For the Appellants    
T.H. Khan, Senior Advocate, instructed by Khaled Ahmed, Advocate-on Record- For the Respondent

Civil Appeal No.283 of 2002
(From the judgment and order dated 301 November 2000 passed by the Administrative Appellate Tribunal in Appeal No. 1 of 2000).
 
Judgment:
             
Mohammad Fazlul Karim J.-
This appeal by leave is directed against the impugned judgment and order dated 30.11.2000 passed by the Administrative Appellate Tribunal in Miscellaneous Appeal No.1 of 2000 allowing the appeal on contest against the order No.3 dated 3.1.2000 in Administrative Tribunal Case No.282 of 1999 rejecting as premature the application filed under section 4(2) of the Administrative Tribunal Act, 1980 for respondent's reinstatement in service as Assistant Director after setting aside the order dated 11.11.1999 putting him under suspension and also the order of the same date framing charge against him for the purpose of further enquiry.

2. The respondent as the petitioner instituted Administrative Tribunal Case No. 282 of 999 on 15.2.1999 before the Administrative Tribunal, Dhaka.

3. Dhaka stating, inter alia, that the respondent joined the service on 6.3.70 as a Social Welfare Organizer under the Ministry of Social Welfare, since then he served at different stations efficiently, sincerely, honestly and to the satisfaction of the authority. He was promoted to the post of Assistant Director on 27.11.86 and was   posted at Jessore. Lastly, he was posted to the District Social Service Office, Pabna. That the Additional Secretary-in- Charge, Ministry of Social Welfare by his order   dated 16.6.1991 framed charge against him. There were many other allegations in the charge as regards misuse of public money, misappropriation and irregularity in dealing Government money, etc. The allegations were enquired into and by order dated 1.6.1995 he was retired from service. The respondent filed Administrative   Tribunal Case No.84 of 1996 before the Administrative Tribunal; Dhaka with a prayer for setting aside the order of retirement dated 1.6.1995.  The Administrative Tribunal after hearing the parties allowed the case on contest by the judgment and order dated 15.9.1998. The Administrative Tribunal disposed of the case on merit discussing all the material facts necessary for proper adjudication. The said Tribunal observed that no evidence was there to establish any of the allegations labelled against the respondent mentioned in the charge. And, as such, the Administrative Tribunal set aside the order imposing penalty upon the respondent and directed the authority to reinstate the respondent in service with all financial benefits. The authority preferred no appeal against the said judgment and order dated 15.9.99 passed in A.T. Case No.84 of 1996 before the Administrative Appellate Tribunal and accepted the judgment and order in question. Thereafter, the authority in the Ministry of Social Welfare by their order dated 4.5.1999 transferred the respondent to the District Social Service Office, Khagrachari as the Assistant Director. The respondent joined there and took over charge of the said office on 31.5.99 from Janab Teslim Uddin Ahmed, Deputy Director, District Social Service Office, Khagrachari. The respondent served as the Assistant Director in the District Social Service Office Khagrachari until he was again placed under suspension by order dated 11.11.1999 passed by the Secretary, Ministry of Social Welfare. Before his suspension the respondent served the department very sincerely, honestly and efficiently, he received salary and allowance from May, 1999 to October, 1999. The authority by obeying the directions give by the Administrative Tribunal, Dhaka reinstated the respondent in service, accepted his joining report, allowed the respondent to serve physically for more than six months and allowed him to draw pay and allowance admissible under the rules. Thereby all the actions of the provisions, departmental proceeding starting from framing of the charges by order dated 16.6.91 were complete, closed and past transaction. After compliance with the direction given by the Administrative Tribunal, Dhaka in A.T. Case No.84 of 1996 and after rendering service physically for more than 6 months by the respondent, the Secretary, Ministry of Social Welfare most illegally and only to harass the respondent passed an order dated 11.11.99 directing further enquiry under the provision of rule 11 (3) of the Government Servants (Discipline and Appeal) Rules 1985 placing the respondent under suspension with immediate effect from 1.6.1995 which was contrary to the provision of rule 11(3). Thereafter the Secretary, Ministry of Social Welfare by order dated 11.11.99 framed charge on the selfsame allegations in the previously disposed of charges and directed the respondent to submit explanation within ten working days. In the last portion of the said order the Secretary directed suspension of the respondent from service with effect from 1.6.1995, though he served after reinstatement in service for more than six months during the interim period. This action of the Secretary, Ministry of Social Welfare is out and out illegal one which should not be allowed to stand.

4. The Administrative Tribunal summarily rejected the A.T. Case No.289 of 1999 on the ground of non-maintainability by order dated 3.1.2000 and an appeal therefrom to the Administrative Appellate Tribunal was, however, allowed setting aside the impugned judgment and order dated 11.11.99  placing  the respondent  under suspension and also directing  further enquiry against him and declared that the respondent is entitled to be reinstated in service with arrear benefits admissible under the rules.

5. Leave was granted to consider the submission of the learned Additional Attorney General as under:

6. "Mr. Abdur Razaque Khan, the learned Counsel appearing for the petitioners, submits that the respondent had been initially awarded an order of compulsory retirement as a measure of punishment  on   1.6.1995   and  the  said order was set aside by the Administrative Tribunal. Dhaka in A.T. Case No.84 of 1996 vide judgment and order dated 15.9.1998 on procedural irregularities as the competent authority did not initiate action and the departmental inquiry had not been conducted in accordance with rules, and pursuant thereto the respondent was reinstated in service on 5.4.1999. Thereafter, the Government invoking the provision of Rule 11 (3) of the Government Servant's (Discipline and Appeal) Rules 1985 placed the respondent under suspension and commenced a fresh proceeding with a view to holding an inquiry on the charges as per Government order as contained in Memo dated 11.11.1999, whereby the Government has acted in accordance with rules and the learned Administrative Appellate Tribunal illegally and improperly did not consider that aspect of the case while allowing the appeal. It is further submitted that the Government acted in accordance with rule 11(3) of the Government Servant's (Discipline and Appeal) Rules, 1985 in the manner as decided in the case of Zane Alam Khan Vs. Abdul Hamid Chowdhury reported in 3 BLC (AD) 55 and another case A.B.M. Abdul Baqi Vs. Government of Bangladesh reported in 4 BLC (AD) 213."

7. Mr. Abdur Razzak Khan, the learned Additional Attorney General with Mr. Faisal H. Khan, the Assistant Attorney General appearing for the appellants submitted that the respondent had been initially awarded an order of compulsory retirement as a measure of punishment on 1.6.1995 and the said order was set aside by the Administrative Tribunal, Dhaka in A.T. Case No.84 of 1996 vide judgment and order dated 15.9.1998 on procedural irregularities as the competent authority did not initiate the action and the departmental inquiry had not been conducted in accordance with rules, and pursuant thereto the respondent was reinstated in service on 5.4.1999. Thereafter the Government invoking the provision of Rule 11 (3) of the Government Servant (Discipline and Appeal) Rules, 1985 placed the respondent under suspension and commenced a fresh proceeding with a view to holding an inquiry on the charges as per Government order as contained in Memo dated 11.11.1999, whereby the Government has acted in accordance with rules and the learned Administrative Appellate Tribunal illegally and improperly did not consider that aspect of the case while allowing the appeal. The learned Additional Attorney General further submitted that the Government acted in accordance with rule 11(3) of the Government Servant (Discipline and Appeal) Rules, 1985 to remove any irregularities and instituted a fresh enquiry against the respondent on the self same charges and the Government action suspending the respondent from service is fully lawful as the previous proceedings the respondent was not found guilty of the charges framed against him but the proceedings against the respondent were to be vitiated with irregularities by the Tribunal as have decided in the case of Zane Alam Khan Vs. Abdul Hamid Chowdhury reported in 3 BLC (AD) 55 and A.B.M. Abdul Baqi Vs. Government of Bangladesh reported in 4 BLC (AD) 213. The learned Counsel further submitted that the respondent is a servant of the People's Republic of Bangladesh whose service is controlled by the Bangladesh Service Rules but the respondent violated the service rules and acted against the public interest and hence Government took legal action against him under the provision of Government Servant (Discipline and Appeal) Rules, 1985.

8. Mr. TH Khan, the learned Counsel appearing for the respondent submitted that the order of reinstatement not being made within 3 months as directed in the Tribunal's order, the authority could not be heard to say that it had to pass the order of re-instatement showing respect to the Tribunal's decision. The learned Counsel further submitted that the authority by complying with the direction given by the Tribunal, re-instated the respondent in service accepted his joining report, allowed him to physically join, serve and to draw his salary admissible under the Rules and under the circumstances the previous proceeding being a past and closed transaction, the order dated 11.11.1999 directing further enquiry of the proceeding was contrary to the provisions of Rule 11(3) of the Government Servant (Discipline and Appeal) Rules, 1985. The learned Counsel submitted that the decisions in 3 BLC (AD) 55 and 4 BLC (AD) 213 being distinguishable from the facts and circumstances of the present case are not applicable in facts of the instant case.

9. Rule 11 (3) of the Government Servant (Discipline and Appeal) Rules. 1985 reads as under:
       "11. Suspension.- (1) A Government servant against whom action is proposed to be taken under clause (b) or (c) or (d) of rule 3, may be placed under suspension if, in the opinion of the authority, suspension is necessary or expedient:
        Provided that the authority may, if it considers it more expedient, instead of placing such Government servant under suspension, by order in writing require him to proceed on such leave as may be admissible to him from such date as may be specified in the order.
       (2)  Omitted
       (3) Where a penalty of dismissal, removal or compulsory retirement from service, imposed upon a Government servant is set aside or declared or rendered void in consequence of, or by a decision of, a Court of law or Administrative Tribunal and the authority, on consideration, of the circumstances of the case, decided to hold a further inquiry against him on the allegation on which the  penalty of dismissal,  removal or compulsory retirement was originally imposed  the Government servant shall be deemed to have been placed under suspension by the authority from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
       (4) Omitted."

10. Mr. Faisal H Khan, the learned Assistant Attorney General referred to a decision in the case of Jane Alam Khan Vs. Abdul Hamid Chowdhury and another reported in 3 BLC (AD) 55 for the proposition that the Government on consideration of the circumstances of the case that the proceeding against the respondent though vitiated by the Tribunal on ground of irregularity and no finding having been given as to the guilt or otherwise of the charges framed against him, could institute a fresh enquiry against the delinquent officer on the same cause of action set aside earlier by the Administrative Tribunal. In the said decision the appellant were dismissed on 7.12.1993 with a direction for recovery of Tk.2,09,70,909.47 who moved the Administrative Tribunal on 9.4.1996 which set aside the impugned order of dismissal but refused to give the financial benefit allowances during the period of suspension, for which the delinquent officer moved the Appellate Tribunal which allowed the said appeal with attending benefits including pay and allowances to the delinquent officer on 25.7.1997, the appellant having filed the joining report on 12.5.1996 and another on 8.6.1997, but by order dated 16.6.1997 the delinquent officer was again suspended from the date of dismissal i.e., 07.12.1993 in exercise of power under rule 11(3) of the Rules, 1985 whereupon the cited decision held that:
           "We do not think that the petitioner succeeded in the Appellate Tribunal not only on the ground of technicality but also on merit. The proceedings against the petitioner were found by both the Tribunals to be vitiated with irregularities but no finding was given that the petitioner was not guilty of the charges framed against him. If the Government now decides to remove those irregularities and to institute a fresh inquiry against the petitioner on the self-same charges the Government action is fully covered by the provisions of Rule 11(3)."

11. Mr. Faisal H.   Khan has   further referred to the decision reported in the case of A.B.M. Abdul Baki Vs. Government of Bangladesh reported in 4 BLC (AD) 213 and submitted that Rule 11(3) of the Government Servant (Discipline and Appeal) Rules, 1985 empowers the authority to hold further enquiry against an incumbent in respect of whom an order of dismissal, removal etc. has been set aside by a Court or Tribunal. The Appellate Division with reference to Rule 11 (3) of the said Rules observed that:

12."It is true that rule 11(3) does not speak of fact or  new proceeding but it empowers the authority to hold a further enquiry against an incumbent in respect of whom an order of dismissal, removal etc. had been set aside by a Court or Tribunal"

13. "The submission made by the learned Advocate is not tenable because the consequences of suspension will follow after the decision of the authority is taken and it is not known if any decision has been taken by the authority."

14. Mr. TH Khan, the learned Counsel has submitted with reference to the said provision to Rule 11 (3) of the said Rules that in the instant case the appellant was dismissed on 1.6.1995 and the Administrative Tribunal set aside the said impugned order on 15.9.1998 against which the appellant did not prefer any appeal. The respondent thereafter joined in the service on 31.5.1999 as Assistant Director and drew the pay and allowances while serving as such but long about 6 months thereafter the respondent was suspended on the basis of previous charge dated 16.6.1991 with effect from 1.6.1995 under the provision of rule 11(3) of the said Rules as a measure of after-thought and has not been contemplated in the said Rules after the respondent was allowed to join on 30.5.1999 by waiving its right under rule 11(3) of the Rules, 1985 and thus the Government under the circumstances is estopped from acting under rule 11 (3) of the Rules.

15. In the cited decision soon after the order of reinstatement and before allowing him to join in his service on the basis of re­instatement, the delinquent  officer  was served with the order of  suspension pursuant to rule 11(3) of the said Rules. But in the instant case the respondent was allowed restatement who joined his post as Assistant Director on 11.5.1999 arid have served the appellant until 11.11.1999 and got all the service benefits i.e., pay and allowances for serving until then.

16.  Rule 11(3) provides that the authority on consideration of the circumstances of the case may decide to hold the further enquiry against the delinquent on the allegation on which the penalty of dismissal, removal or compulsory retirement was originally imposed by the Government shall be deemed to have been placed under suspension by the authority from the date of original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further order. The said provision clearly speaks out subsequent action is being taken in the said self same proceeding in which delinquent officer was dealt with previously and in spite of setting aside the impugned order by the Tribunal, the authority could proceed with him for the selfsame offence by way of further  enquiry  putting  him under  suspension under the said Rules.

17. The instant case is distinguishable from the cited decisions in that though rule 11(3) speaks about a single proceeding in a row of events  following out of the proceeding but in the instant case the proceeding as in our view culminated in its finality with  the setting aside of the impugned order dated 5.4.1999 against which no appeal  was preferred by the appellant, and upon filing of the joining report the appellant allowed him to join on 31.5.1999 in consideration  of  the circumstances of the case and serve until 11.11.1999 and was allowed to draw the pay and allowances, which manifest clearly that the appellant has decided not to proceed with the previous proceeding against the delinquent, instead, allowed him to join his service and serve the appellant, drew financial benefits including pay until 11.11.1999, when as a measure of afterthought, after a long lapse of six months the delinquent officer was served with an order of suspension under rule 11 (3) and placed him under suspension with effect from 1.6.1995, the date of suspension in the previous proceeding. Thus the cited decisions are distinguishable on the facts than the present one.

18.  In the instant case the dates are very material as the Tribunal on 15.9.1998 made the order of  reinstatement within  three months  but the  appellant  reinstated the respondent on 5.4.1999 and the respondent joined the post on 31.5.1999 but the order of suspension was made on 11.11.1999 and thus the  sequence of events apparently show that the authority initially decided not to proceed against the delinquent officer and allowed him to be re-instated and posted him and drew pay arid allowances but as a measure of afterthought, after a lapse of about 1 year 2 months of the order of reinstatement decided  to take the purported action on  11.11.1999. The conduct of the appellant supports the submissions of the learned Counsel for the respondent about waiver, acquiescence of the appellant and estoppel from proceeding with further enquiry under rule 11 (3) of the Rules, 1985 at the belated stage.

19. In Halsbury's Laws of England, 3rd Edition Volume-14 page 637, “Waiver is the abandonment of a right, and is either express or implied from conduct. A person who is entitled to the benefit of a stopreater in a contract or of a statutory provision may waive it."

20. Thus, though provision of rule 11(3) of the Rules. 1985 authorises the authority to hold a further enquiry on consideration of the case but the facts manifestly reveal that the authority has waived the power to act accordingly and a Court of  law can reasonably and validly make an inference of waiver.

21. This view find supports indirectly in the case of Mustafa Ijjat Ali Chowdhury vs. Government of Bangladesh reported in 1982 BLD 101 that (the reinstatement in the service on withdrawal of suspension order amounts to withdrawal of charge and dropping of the pending enquiry. The Tribunal in the facts and circumstances of the case has also arrived at a definite finding that:

22. "From the above discussion it is clear that the impugned orders for suspension as well as for further proceeding could not be made under rule 11 (3) and the learned Member of the authority holding further enquiry against the
applicant. We are, therefore, inclined to hold that after the reinstatement further proceeding is patently illegal and the application is not premature. In such view of the matter the impugned order passed by the learned Administrative Tribunal below is not sustainable in law and is, as such, liable to be set aside." In the facts and circumstances of the instant case, the authority having allowed the respondent to act in his service for about six months of joining, the purported action after about more than year of setting aside the order of termination, the impugned action against the delinquent officer dated 11.11.1999 was surely a measure of belated afterthought and the authority will be estopped from initiating an action under rule 11(3) of the Rules, 1985.

23. In view of above facts and circumstances of the case and submissions of the learned Counsel for the parties, we do not find any substance in the appeal in order to interfere with the impugned judgment and order of High Court Division.

24. The appeal is, accordingly, dismissed without any order as to cost.

Ed.