Government of Bangladesh, represented by the Secretary, Ministry of Defence and others Vs. Md. Afzal Hossain Ansari, 55 DLR (AD) (2003) 65

Case No: Civil Appeal No. 98 of 1999

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,Mr. A. J. Mohammad Ali,,

Citation: 55 DLR (AD) (2003) 65

Case Year: 2003

Appellant: Government of Bangladesh

Respondent: Md. Afzal Hossain Ansari

Subject: Administrative Law,

Delivery Date: 2003-1-8

 
Supreme Court
Appellate Division 
(Civil)  
 
Present:
Md. Ruhul Amin J 
KM Hasan J  
Md. Fazlul Haque J
 
Government of Bangladesh, represented by the Secretary, Ministry of Defence and others
……………..............Appellants  
Vs.  
Md. Afzal Hossain Ansari
.................................Respondent 
 
Judgment 
January 8, 2003.
 
The Administrative Tribunal Act, 1980 (VII of 1981)
Section 4
The Government Servants (Discipline & Appeal) Rules, 1985 Rule 4 
Section 4 of the Administrative Tribunal Act vested the Tribunal with the power to consider the regularity and legality of the proceeding initiated against the delinquent officer as well as to consider the proportionality of the penalty imposed in the background of the facts and circumstances of the case……………….(11) 
 
Cases Referred to-
Sonali Bank vs Ruhul Amin Khan 1994 BLD (AD) 171 = 46 DLR (AD) 85; Service Law Report (1981) (4) 735; (1999) 9 SCC 86.
 
Lawyers Involved:
AJ Mohammad Ali, Additional Attorney‑General. instructed by Mvi. Md Wahidullah, Advocate‑ on‑Record­-For the Appellants.
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Md. Nawab Ali, Advocate‑on‑Record‑For the Respondent.
 
Civil Appeal No. 98 of 1999.
(From the Judgment and order dated October 26, 1998 passed by the Administrative Appellate Tribunal in Appeal No. 9 of 1998)
 
JUDGMENT
Md. Ruhul Amin J.
 
The present appeal by the opposite party before the Administrative tribunal by leave is against the judgment and order dated October 26, 1998 of the Administrative Appellate Tribunal (AAT) in Appeal No. 9 of 1998 affirming the judgment and order dated January 11, 1998 of the Administrative Tribunal (AT), Dhaka in Case No. 93 of 1996. The Administrative Tribunal by the aforesaid judgment and order considering compulsory retirement from the service has altered the said punishment to stoppage of 3 annual increments for 3 years (within the meaning of sub‑ rule (2) (c) of Rule 4 of the Government Servants (Discipline and Appeal) Rules, 1985) and further made the order to the opposite party in the Administrative Tribunal Case to reinstate the petitioner (respondent herein) in the AT Case.
 
2. Short facts of the case are that, respondent Store Officer of Bangladesh Survey Department, Tejgaon, Dhaka in the Office of the Surveyor General, filed AT Case No. 93 of 1996 questioning legality of imposition of punishment of compulsory retirement from service sequel to department inquiry held against him on the charge that during the year 1990‑91 and 1991‑92 stationery item, Lithu paper, was purchased illegally from the paper local market for an amount of Taka 24,75,748 without obtaining non‑availability certificate from the Stationery Department and that also without bringing to the notice of the higher authority principles of purchase as were in the Memo dated July 29, 1985 of the Ministry of Finance and that received current account cheques instead of bank draft or pay order from the bidders and, as such, committed gross negligence of duty making him liable to be punished for misconduct and corruption. On the said allegations the respondent was served with a show cause notice accompanying statement of charges and to that he replied and thereupon an inquiry was held and the inquiry committee submitted report with the finding that the respondent was guilty of the charges brought against him. Thereupon the department served the 2nd show cause notice mentioning the proposed punishment and to that the respondent replied. The Department finally made the order of compulsory retirement from service in respect of the respondent. The respondent as against the order of his compulsory retirement by order dated December 30, 1995 filed appeal and the same was dismissed on April 2, 1996. Thereafter, the respondent filed AT Case No. 93 of 1996. The Administrative Tribunal upon arriving at the finding “I under the facts and circumstances of the case cannot but to hold that the petitioner having been found guilty of inefficiency and misconduct, the punishment of compulsory retirement is not illegal. The question of quantum was not ordinarily considered. In this particular case the punishment awarded is found harsh and unreasonably severe in consideration of the nature of the charges" altered the punishment of compulsory retirement to stoppage of 3 annual increments for 3 years.  
 
3. The appellant went on appeal before the AAT. The AAT upon observing "It will appear that for the purchase of the Lithu papers a Tender Committee of which the applicant was the Member Secretary was formed by the OP No. 3 and everything was done through the committee. So, the applicant could not be said to have had any direct involvement or responsibility in connection with the purchase. On a plain reading of the charge­ sheet it appears that the only definite and effective charge against the applicant is that he did not bring to the notice of OP No. 3 the relevant rules and regulations that for the local purchases of the huge quantity of the Lithu papers non‑availability certificate and the Government approval was necessary. He has been found guilty of such allegation………the repeated assertions of the then Surveyor General in his correspondence dated 20‑5­-1993, 14‑7‑1993 and 28‑3‑1994 about his power to make local purchase addressed to the Ministry of Defence in reply to queries of other rather minimise the gravity of the negligence of the applicant. In our view, therefore the learned Tribunal has very correctly assessed the material on record in finding that the penalty of compulsory retirement has been harsh and that minor penalty would meet the ends of justice" dismissed the appeal.
 
4. Leave has been granted to consider the contentions of the appellant that while the AAT and AT found that there was no wrong or illegality in holding the respondent guilty by the Enquiry Officer as well as in the departmental appeal the tribunals committed wrong in interfering with the penalty of compulsory retirement although the penalty so imposed was quite appropriate and proper in the background of the facts and circumstances of the case initiated against the respondent, that while the Enquiry Officer found the respondent negligent in the discharge of his duties and that because of the negligent act of the respondent the State suffered financial loss, in such a situation there was no room for taking any lenient view in awarding punishment and more so while Tribunals had not found the respondent guilty of the offence of misconduct the reduction of penalty from major punishment to minor punishment was unwarranted, illegal and without jurisdiction and that AT and AAT erred in law in reducing sentence as because Tribunals have no authority to reduce the sentence awarded by the Department since the Tribunals did not find any wrong or illegality in conducting the proceeding against the respondent.
 
5. On perusal of the judgment of the AAT and AT it is seen that the said Tribunal did not find any irregularity or illegality in proceeding with the inquiry by the department against the respondent. It is also seen that respondent was given opportunity to defend himself and that inquiry against him was conducted upon due observance of the procedure prescribed by the Government Servants (Discipline and Appeal) Rules, 1985, hereafter in brief, the Rules. The AAT and AT did not find any wrong with the findings arrived at by the Inquiry Officer as against the respondent in holding him guilty of misconduct in making the purchase of Lithu papers without obtaining clearance from the Stationery section and for not bringing to the notice of the authority relevant rules and principles contained in letter dated 29‑7‑1985 of the Ministry of Finance relating to purchase of Stationery items. Charge of corruption was brought against the respondent for acceptance of cheques instead of pay order or bank drafts from the bidders. It may be mentioned there is no allegation that by the purchase in question or because of receiving cheques from bidders financial loss was caused to the Government. The Inquiry Officer found the respondent guilty of gross intentional negligence of duties and improper conduct.  
 
6. Primary question for consideration in this appeal is, whether the Tribunals are competent to consider the proportionality of the punishment imposed by the department in the background of the facts alleged against the delinquent Officer and in the inquiry the said officer was found guilty of the charge or charges brought against him.
 
7. The employee‑respondent, who was proceeded with by his Department was found guilty of misconduct being negligent in the discharge of his duties and thereupon major punishment of one of the kinds prescribed in the Rules was imposed on him. He then moved the AT questioning legality of the action of the Department. To dispose of the point as to whether AAT or AT is within its jurisdiction while altering the punishment imposed on a delinquent officer or, in other words, the Tribunals are competent to substitute one kind of punishment different from the kind of punishment imposed on the delinquent while the enquiry proceeding was quite in accordance with law and the findings of the enquiry committee free from infirmity. Sub‑section (1) of section ‑ 4 of the Administrative Tribunal Act, 1980 is relevant and the same reads as:
         
“Section 4(1): An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic or of any statutory public authority."
 
8. The question of competency of the AAT and the AT to consider proportionality of the punishment imposed by the department came up for consideration in the case of Sonali Bank vs. Rubul Amin Khan reported in 1994 BLD (AD) 171 and therein it has been observed “from a reading of the aforesaid provisions it becomes clear that in matters assigned to the Tribunal, its jurisdiction is exclusive and to the extent the jurisdiction of all other Courts is barred. It follows logically as a general principle that comprehensiveness in dealing with such matters cannot lag far behind the exclusiveness of such a jurisdiction. An Administrative Tribunal has been invested with exclusive Jurisdiction “to hear and determine applications made by any person in the service of the Republic or of any Statutory Public Authority in respect of……….. any action taken in relation to him…….. A Tribunal has therefore to determine in respect of an action which is complained against before it. The dictionary meaning of the word 'determine' is 'settle', ‘decide.' These expressions bear amplitude which, in my opinion, is sufficient to cover any decision as to any aspect of the action which is impugned before a Tribunal. In other words, a Tribunal is competent even to vary or modify an order including an order of punishment/sentence in exercise of its powers under section 4 of the Act. It is not disputed that the Tribunal is competent to set aside an order. If that be so, it hardly stands to reason that the Tribunal will not have power to deal with it in a lesser way. Considering the background of establishing the Tribunals, and particularly the terms of section 4 of the Act, we find no difficulty in holding that a Tribunal is competent to vary or modify an order, including an order of punishment/sentence which is impugned before it. But whether such variation or modification is justified or not in a given case or whether it is at all called for is altogether a different matter and may be debated in the facts of each case". So, appellant's contention that AAT or AT was not authorised by law while the proceeding initiated against the delinquent officer was conducted in due compliance of the procedure prescribed therefore and that Tribunals did not find any flaw in conducting the proceeding against the delinquent officer by the department, to modify or reduce the sentence imposed on the delinquent officer by the department upon finding him guilty of the charge or charges for which delinquent officer was proceeded with is not well founded in law. 
 
9. Now the question is, whether in the instant case the Tribunal was justified in altering the punishment of compulsory retirement to stoppage of 3 annual increments for 3 years. In the instant case the respondent was punished for misconduct being negligent in the discharge of his duties and misconduct has been defined in rule 2(f) of the Rules. In the rules penalties have been categorised as minor penalty and major penalty. Default that makes a government servant liable to penalty has been listed in rule 3 of the Rules and the penalty therefore has been categorised as minor penalty and major penalty in sub‑rules (2) and (3) in rule 4 of the Rules. Sub‑rule (5) of rule 4 of the Rules provides for penalty that can be imposed in case of holding the government servant after inquiry guilty of one of the defaults as listed in rule 3 of the Rules. As per sub‑rule (5) (c) of rule 4 of the Rules any one of the penalties listed in sub‑rules (2) and (3) of rule 4 of the Rules may be imposed for misconduct. It is the contention of the appellant that once an officer is found guilty of misconduct for which major penalty has been prescribed, as such, it is for the authority to take decision which one of the major penalties as in sub‑rule (3) of rule 4 would be imposed on the delinquent officer and that in the case of making decision by the department as to imposition of penalty the same is the sole authority and that Tribunal is not authorised by law to consider the proportionality or harshness of the penalty imposed by the department. The contention of the appellant that for misconduct the prescribed penalty is major penalty as has been listed in sub‑rule 3 of rule 4 of the Rules is not well founded since sub‑rule (5)(c) of rule 4 of the rules prescribes any penalty, i.e. any one of the penalties listed in sub‑rules (2) and (3) of the rules. The claim of the department of being the sole authority to consider the kind of punishment to be imposed and that it is the exclusive authority of the department to impose a particular penalty on an officer in case of finding him guilty of one of the offences enumerated in the Rules and thereupon making him liable to be punished upon imposition of one of the penalties listed in rule 4 of the Rules has been held, in the case mentioned above, by this court as not the correct position in law, rather it has been held that provision of section 4 of the Administrative Tribunal Act vested the Tribunal with the power to consider the regularity and legality of the proceeding initiated against the delinquent officer as well as to consider the proportionality of the penalty in the background of the facts and circumstances of the case imposed on the officer or personnel.  
 
10. In the instant case the respondent has been found guilty by the Inquiry Officer of being negligent in the performance of his duties firstly, in not obtaining clearance from the Stationery Department for the purchase of Lithu paper through tender and that for not bringing to the notice of the authority the rules and principles relating to purchase of stationery items as were in the letter dated 29‑7‑1985 of the Ministry of Finance. There has been also charge of corruption in the background of the fact the respondent received cheque from the tenderers instead of pay order or bank draft but Tribunals held that same was not substantiated in the background of materials on record. The Tribunals, on consideration of the facts and circumstances alleging which the respondent was proceeded with and that ultimately was found guilty of misconduct being negligent in the discharge of duties, held that ‘improper conduct' of the respondent was not so major or serious calling for major punishment and that it was not established by the department that by receiving cheque instead of pay order or bank draft the respondent obtained any pecuniary gain. In the aforesaid background of the facts the Tribunal found that the penalty imposed on the respondent was too harsh. The finding so arrived at in our view cannot be said or considered illegal or suffers from infirmity of the kind calling for interference since it was within the competency of the Tribunal to consider the proportionality of the sentence in the background of the fact upon which the respondent was found guilty of misconduct. The sub‑rule 5(c) of rule 4 provides that for misconduct any one of the penalties as have been listed in sub‑rules 2 and 3 of rule 4 of the Rules can be imposed. In that view of the matter in altering the punishment of compulsory retirement to stoppage of 3 annual increments for 3 years under sub rule 2(c) of rule 4 of the Rules and that thereupon in making the order for the reinstatement of the respondent the Tribunals did not commit any illegality as it was within the jurisdiction of the Tribunals to see the proportionality of the sentence in the given‑facts of the instant case. 
 
11. The learned Counsel for the appellant in support of his contention that the Tribunal is not competent to see proportionality of the penalty or to alter the penalty imposed by the authority has referred to cases reported in (1984) Service Law Report, Vol. 3 page 50 and 10 Administrative Tribunal Case 434. As against those reported decisions the learned Counsel for the respondent has referred to the cases reported in Service Law Report (1981) (4) 735 and (1999) 9 SCC 86. Since in the case reported in 14 BLD (AD) 171 it has been held that Administrative Tribunal is competent to consider proportionality of the penalty imposed by the Department, the cases referred to by the learned Counsels need not be discussed.  
 
12. In the light of the discussions we find no merit in this appeal. 
 
Accordingly, the appeal is dismissed.
 
Ed.