Government of Bangla­desh represented by the Secretary, Ministry of Post, Telegraph and Tele­communication and others Vs. Abul Khair, 56 DLR (AD) (2004) 183

Case No: Civil Petition for Leave to Appeal No. 889 of 2002

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mvi. Md. Wahidullah,,

Citation: 56 DLR (AD) (2004) 183

Appellant: Government of Bangla­desh

Respondent: Abul Khair

Subject: Administrative Law, Principles of Natural Justice,

Delivery Date: 2004-2-23

 
Supreme Court
Appellate Division
(Civil) 
 
Present: 
Md. Ruhul Amin J
Md. Fazlul Karim J
MM Ruhul Amin J
Md. Tafazzal Islam J 
 
Government of Bangla­desh represented by the Secretary, Ministry of Post, Telegraph and Tele­ communication and others
…………....................Petitioners
Vs.
Abul Khair
…………………...... Respondent
 
Judgment
February 23, 2004.
 
The Administrative Tribunals Act, 1981 (VII of 1981), Section 4 
The Government Servants (Discipline and Appeal) Rules, 1985, Rules 7 and 10
Natural Justice 
The authority imposing any punishment upon a delinquent staff has a duty to see that he has been dealt with in accordance with law and following the principles of natural justice….(7)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Lawyers Involved: 
Mvi. Md. Wahidullah, Advocate‑on‑Record‑For the Petitioner.
Md. Sajjadul Hoque, Advocate‑on‑Record- For the Respondent.
 
Civil Petition for Leave to Appeal No. 889 of 2002
(From the order dated 24th April 2002 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 57 of 2002). 
 
JUDGMENT
Md. Faziul Karim J.
 
The Government of Bangladesh and others seek leave to appeal against the judgment and order of the Administrative Appellate Tribunal Dhaka in Administrative Appellate Tribunal Appeal No. 57 of 2000 dated 24-­4‑2002 allowing the appeal setting aside the impugned judgment and order dated 18‑4‑2000 passed by the Administrative Tribunal Dhaka dismissing AT Case No. 114 of 1998 and setting aside the punishment of compulsory retirement passed on 27‑2‑1997 and thereby restoring the respondent to his former post treating him on duty with all financial and other benefits as admissible under the rules. 
 
2. The respondent filed an application under section 4 of the Administrative Tribunal Act, 1980 being Administrative Tribunal Case No. 114 of 1998 stating, inter alia, that he was appointed as Postal Clerk on 7‑9‑1971 and subsequently he was promoted to the rank of Asstt Post Master (Non Gazetted) on 13‑11‑1991. During the tenure of his service he was directly associated with the Trade Union Activities. He held the office of Secretary, Vice‑President as well as the President of Dhaka District Sadar Postal Union. Mr. Arun Kumar Sarker, the then Additional Director General Bangladesh Post Office used to invite false and frivolous written allegation against the elected Union office bearers. On the basis of anonymous petition he transferred the respondent to Dhaka GPO from Sadarghat Post Office and a number of inquiries were held to victimise the respondent. Subsequently a departmental proceeding was drawn up against the respondent bringing several charges at the instance of said Arun Kumar Sarker, ADG and a charge sheet drawn up on 6‑4‑1996 was sent to the respondent. The respondent submitted reply to the allegations mentioning some irregularities and mistakes for which he was not responsible and the Government did not sustain any financial loss due to the alleged irregularities Had there been really any financial loss the same could have been reported to law enforcing agencies but the authority proceeded against the respondent with the departmental proceeding by appointing Mr. Abdus Sattar APMG (Security) who issued notice to the respondent on 4­-7‑1996 fixing 8‑7‑1996 for appearance and hearing. The respondent appeared before him and he was Oven questionnaire to which lie was directed to reply in writing. The Enquiry Officer conduced enquiry is violation of the prescribed rules of the Government Servants (Discipline and Appeal) Rules 1985. The Enquiry Officer found the respondent guilty of the charges and the authority issued second show cause notice dated 28‑8‑96. The respondent submitted reply on 1‑9‑96 stating, inter alia, that he had no knowledge about the opening of more than one account in his name and he never committed any offence of temporary defalcation as alleged. Thereafter, the respondent was called for personal hearing at the office chamber of Post Master General. On appearance the respondent was again provided with a questionnaire and asked to a give his written reply therein. Thereafter, the respondent received the impugned order of compulsory retirement from service dated 27‑2‑97 although he has still 10 years service in his credit. The respondent preferred an appeal to the Director General Post Office on 29‑5‑97 who rejected the appeal on 23‑12‑97 most illegally upholding the order of punishment of compulsory retirement from service. 
 
3. The petitioners contested the case filing written statement denying material allegations stating, inter alia, that the respondent was appointed as Postal Clerk and he joined in service on 7‑9­-1971. Subsequently he was promoted to the post of Assistant Post Master and had been working in the said post from 14‑11‑1991. During the tenure of his service allegations were received against him for misappropriation of money from passbook account and Savings Defence Accounts of Post Office Branch wherein he was posted. The allegations were enquired into by the Additional Director General (Saving and Insurance) Postal Department. During enquiry it was found that one Dejindra Chandra Dutta opened Account No. RD1412 and received interest of the deposit on several occasions. Account No. 4357 was opened in the same Post Office in his name against the Rules. Again, his another Account bearing No. FD 4740 was brought to the same Post Office on transfer. Respondent was acquainted with the said Dejindra Chandra Dutta and he was known to him since long and at his instance several accounts were opened illegally in the Post Office. Huge amount of Government money was unlawfully disbursed to him from those accounts. Similarly, number of accounts were opened in the name of Himangsu Dutta and Prodip Kumar Dutta, sons of the aforesaid Dejindra Chandra Dutta most illegally causing financial loss to the Government. It was also found that the respondent tried to misappropriate Taka 6000 at the time of payment of a Defence Savings Certificate. When the occurrence of temporary defalcation came to the knowledge of the authority the respondent deposited the amount of Taka 6000. He was found to have written excess amount by interpolation for the purpose of alleged misappropriation of Taka 6000 from Account No. FG 2091. So, in view of the aforesaid allegations charges were framed in the departmental proceeding against the respondent under rules 3(b) of the Government Servants (Discipline and Appeal) Rules 1985. The respondent submitted reply to the charges and personally participated at the hearing of the proceeding case before the Enquiry Officer and the authority took the decision on the basis of enquiry report on serving second show cause notice in accordance with rules. There is no illegality in the matter of taking disciplinary action against the respondent and, as such, the case is liable to be dismissed. 
 
4. The Administrative Tribunal dismissed the case and on appeal the same was reversed as aforesaid. 
 
5. Mvi. Md Wahidullah, the learned Advocate­-on‑Record appearing for the petitioners submitted that the enquiry officer held inquiry in accordance with rules and the respondent having legally been compulsorily retired the Administrative Tribunal rightly dismissed the Administrative Case No. 114 of 1994 and thus Administrative Appellate Tribunal erred in law in disturbing the finding of facts duly arrived at by the Administrative Tribunal and, as such, the same requires Interference by this Division. The learned Advocate‑on‑Record further submitted that the Administrative Tribunal rightly held that rule VII and X of the Government Servants (Discipline and Appeal) Rules 1985 have been complied with and the Administrative Appellate Tribunal wrongly held otherwise. The learned Advocate‑on‑Record lastly, submitted that during the period of service of the respondent good amount was misappropriated out of the passbook and savings certificate and Administrative Tribunal rightly field so and dismissed the case of the respondent. 
 
6. On perusal of the Impugned judgment it appears that the Administrative Appellate Tribunal arrived at a finding, inter alia, that:     
 
"It further transpires from the written reply of the charges that the petitioner appellant did not admit his guilt except the irregularities with regard to a payment of Taka 6000 of Saving Defence Certificate and no charge under rule 3(d) for corruption was brought against him."
 
"It is evident that as per provision of Rule 10(4) of Government Servants (Discipline and Appeal) Rules 1985 no person was nominated to present the case in support of the charge before the enquiry officer."     
           
"It is further evident that one GM Rafiqul Islam AFMG Central (Circle) sent notice on 15‑9‑1996 (Annexure 1) to the petitioner directing him to personally appear before the Post Master General OP Respondent No. 3 (appointing authority) on 6‑10‑1996 at 11‑00 AM for hearing him in person and in the name of personal hearing some questionnaire was given to the petitioner to answer. So, the appearance of the petitioner before PMG during enquiry who happens to be the appointing authority of the petitioner is against the provisions of law. If the appointing authority OP No. 3 PMG was not satisfied with the enquiry report he could easily pass an order for further enquiry on certain points with a view to arrive at the firm decision." 
 
7. It appears that the Tribunal wrongly placed onus of proof to substantiate charge against the respondent contrary to the established principles of law and natural justice inasmuch as the rules VII and X of the Government Servants (Discipline and Appeal) Rules, 1985 have not been complied with thereby seriously prejudicing the respondent in his defence and accordingly, set aside the impugned order of compulsory retirement of the petitioner and restored him to his original position with all back wages and benefits as admissible under law. The authority imposing any punishment upon a delinquent staff has a duty to see that he has been dealt with in accordance with law and following the principles of natural justice. 
 
8. In the instant case the Administrative Appellate Tribunal on scrutiny found that the respondent has not been properly dealt with during the enquiry complying with the provision of law following the principles of natural justice and, as such, the impugned orders have been tainted with illegality making the same illegal and void and, as such, the same are not sustainable in law. 
 
9. We have no reason to interfere with the impugned order of the Appellate Tribunal when apparently the respondent has not been dealt with in accordance with law following the principles of natural justice. 
 
The petition is dismissed. 
 
Ed.