Government of Bangladesh and others Vs. Khondaker Khairul Kabir

Case No: Civil Petition for Leave to Appeal No. 1490 of 2003

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: A J Mohammad Ali,Humayun Hossain Khan,,

Citation: 58 DLR 2006 (AD) 18

Case Year: 2006

Appellant: Government of Bangladesh and others

Respondent: Khondaker Khairul Kabir

Subject: Administrative Law,

Delivery Date: 2005-4-10

Government of Bangladesh and others

Vs.

 Khondaker Khairul Kabir, 2006, (AD)

58 DLR 2006 (AD) 18

 
 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J
 
Government of Bangladesh and others…….Petitioners

Vs

Khonaker Khairul Kabir…………. Respondent*
 
Judgment
April 10th , 2005
 
The Government Servant (Discipline and Appeal) Rules, 1985
 
Rule 7 (2)

Appointment of an Inquiry Officer before being satisfied that there was good ground for proceeding against the accused is a violation of the mandatory provision of law. The Sub-rule (2) of Rule 7 provides that after receiving of the statement of defence from the accused the authority is to consider such statement along with other materials relating to the charge and if on such consideration the authority is of the opinion that there is good ground for proceeding against the accused, then only the authority shall appoint an Inquiry Officer to inquire into the allegations made against him. Without completing with this requirement of law, an Inquiry Officer was appointed and the accused was directed to forward his statement of defence directly to the Inquiry Officer.
Appellate Tribunal on correct appreciation of law and the materials on law was fully justified in allowing the appeal……………..(7) 
 
Lawyers Involved:
AJ Mohammad Alt, Additional Attorney-General, instructed by Mvi. Md Wahidullah,Advocate-on-Record— For the Petitioners.
Humayun Hossain Khan, Advocate, instructed by Aftab Hossain, Advocate-on-Record—For the Respondent.

Civil Petition for Leave to Appeal No. 1490 of 2003.
(From the judgment and order dated 15th September, 2003 passed by the Administrative Appellate Tribunal in Administrative Appellate Tribunal Appeal No. 43 of 1993).
 
Judgment:
                  Md. Tafazzul Islam J.- This petition for leave to appeal is directed against the judgment and order dated 15-9-2003 passed by Administrative Appe­llate Tribunal in Appeal No. 43 of 1993 allowing the appeal upon setting aside the judgment and order dated 16-3-2003 passed by Administrative Tribunal, Dhaka dismissing the Administrative Tribunal Case No. 185 of 1989.

2. The respondent filed the above Administra­tive Tribunal Case No. 185 of 1989 stating, inter alia, that on 23-9-1980 he was appointed as the Field Officer of the National Security & Intelligence and after completion of departmental training in  the year 1981, he was posted at Khulna and on 17-5-87 he was transferred to Dhaka Office and he having served sincerely and honestly for 9 years was awarded many rewards and while posted at Dhaka City Internal Operation he suddenly fell ill and, as such, could not attend the office from 9-7-87 to 14-7-87 and he having no relation at Dhaka could not also inform the office about his illness and after recovery he attended office on 15-7-87 and submitted petition for leave supported by medical certificate and then on 26-7-87, receiving the information that following land dispute his wife was attacked and injured by miscreants, he on verbal permission from his office left for home at Khulna by filing petition for 10 days leave and thereafter, he sent application for extension of leave for 30 days but was not informed as to whether leave was sanctioned or not, then on 23-8-87 the petitioner No. 2 called for an explanation from him as to his unauthorised absence whereupon he submitted reply stating the circumstance of his absence but without considering the same at all departmental proceedings were drawn against him to which he submitted written defence denying all the charges and as the inquiry officer had some bias against him he on 3-10-1987 also made representation praying for changing the Inquiry Officer but nothing was done, then he duly appeared before the inquiry officer during the inquiry wherein the petitioner No. 2 did not nominate any officer to conduct the prosecution and the Inquiry Officer himself played the role of prosecutor and he, without giving the respondent the opportunity to cross-examine the witnesses in violation of the provisions of rule 10(1)(2)(3) and (4) of the Government Servant (Discipline and Appeal) Rules 1985, completed the inquiry and submitted report holding the respondent guilty of the charge, then second show cause notice was issued without supplying the copy of the inquiry report and the respondent on the ground of Illness prayed for time to file his reply to the second show cause notice but no time was allowed and thereafter the petitioner No. 2 by order dated 14-12-87 dismissed him from service and being aggrieved he preferred appeal to the petitioner No. 1 which was also rejected by order dated 28-12-88.

3. The petitioners contested the above case by filing written statement contending, inter alia, that the respondent on 9-7-1987 at 12 noon left office without obtaining any leave or permission and he remained absent till 14-7-87 without giving any intimation and he was found in Khulna City on 11-7-87 and after attending the office on 15-7-87 he prayed for leave from 11-7-87 to 14-7-87 but then on 28-7-87 he left the office leaving behind a petition seeking leave for 10  days  and then remained on unauthorised absence till 12-12-87 which constituted misconduct and then for keeping unauthorised firearms in his possession as well as for remaining in unauthorised absence charges were brought against the respondent on 23-8-87 to which he submitted statement of defence and then on inquiry, charges against him were established and second notice was also served upon him with copy of the inquiry report to which he did not give any reply and then the order of dismissal was passed and the appeal of the respondent was also rejected after due consideration.

4. The Administrative Tribunal, after hearing dismissed the case and the respondent then preferred Appeal No.  43 of 1993   before the Administrative Appellate Tribunal, which after hearing allowed the appeal.

5. The learned Counsel appearing for the petitioners, submits that the Administrative Tribunal dismissed the above case on the finding that due to unauthorised absence of the respondent from his office notice was issued on 23-8-87 calling from him explanation for his unauthorised absence and the statement of defence submitted by him being found not satisfactory formal proceedings were drawn up against him by filing specific charges of misconduct and desertion and after holding inquiry the Inquiry Officer submitted his report holding the respondent guilty of the charges and then second notice was issued upon the respondent to show cause as to why the proposed penalty of dismissal should not be passed and on receiving the same the respondent raised the plea that copy of the inquiry report was not supplied to him but on production of official file of the proceedings of the respondent, it was found that he received the copy of the inquiry report on 25-11-87 by putting his signature. The learned Counsel further submits in the proceeding against the respondent all the requirements of law were complied and the Appellate Tribunal erred in law in allowing the appeal.

6. As  it appears, the Appellate Tribunal allowed the appeal holding that sub-rule (2) of Rule 7 of Government Servant (Discipline and Appeal) Rules,  1985 provides that after receiving of the statement of defence from the accused the authority is to consider such statement along with  all materials relating to the charge and if on such consideration the authority is of the opinion that there is good ground for proceeding against the accused then only the authority shall appoint an Inquiry Officer to inquire into the allegations made against him but in the present case prior to such consideration as provided above the Inquiry Officer was appointed and further the respondent was also directed to forward his statement of defence directly to the Inquiry Officer and thus it is apparent that the authority failed to consider at all as to whether there is a good ground for proceeding against the respondent or not and such failure cannot be said to be a mere violation of the procedure nor it can be said this provision is mere directory in nature.

7. We are of the view that the Appellate Tribunal on correct appreciation of the materials on record and the law applicable allowed the appeal and accordingly, no interference is called for.

The petition is dismissed.

Ed.