Government of Bangladesh Vs. AAM Salekuzzaman and another

Case No: Civil Appeal No. 34 of 1999

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Khandaker Mahbuhuddin Ahmed,B Hossain,,

Citation: 52 DLR (AD) (2000) 166

Case Year: 2000

Appellant: Government of Bangladesh

Respondent: AAM Salekuzzaman and another

Subject: Administrative Law,

Delivery Date: 2000-05-08

Government of Bangladesh

Vs.

AAM Salekuzzaman and another, 2000,

52 DLR (AD) (2000) 166

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Latifur Rahman CJ
Bimalendu Bikash Roy Choudhury J
Mahmudul Amin Choudhury J
Kazi Ebadul Hoque J
 
Government of Bangladesh…………………………………….Appellant

Vs.

AAM Salekuzzaman and another………………………………………….Respondent*

 

Judgment

May 8, 2000.
 
 
Bangladesh Public Service Commission (Consultation) Regulation, 1979
Regulation 6

The advice of the Public Service Commission is not binding upon the authority but the authority is required to consider it and pass any appropriate order.
 
Case Referred To-
Bangladesh vs. Md. Matiur Rahman, 1982 BLD (AD)109 = 34 DLR (AD) 285.
 
Lawyers Involved:
B Hossain, Deputy Attorney-General, instructed by Mvi. Md. Wahidullah, Advocate-on- Record—For the Appellant.
Khandker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Nawab Ali, Advocate- on-Record—For Respondent No. 1.
Not Represented — The Respondent No. 2.
 
Civil Appeal No. 34 of 1999.
(From the Judgment and order dated 1-3-98 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 24 of 1997).

 

Judgment:

                    Latifur Rahman CJ.- This appeal by the Government- appellant following leave is against the judgment and order dated 1-3-1998 passed Administrative Appellate Tribunal, Dhaka in Tribunal Appeal No. 24 of 1997 arising out of judgment and order dated 11-2-1996 passed by Administrative Tribunal, Dhaka allowing Administrative Tribunal Case No. 7 of 1994.

2. Respondent No. 1 who was an Executive Engineer under the Roads and Highways Directorate and working in the Roads Construction Division-I, Dhaka at the relevant time was placed under suspension and proceeded against on charges of misconduct and corruption under the Government Servants (Discipline and Appeal) Rules 1985 on six different allegations. He submitted his written statement on 9-5-1991 denying the allegations. Respondent No. 2 was appointed enquiry officer who upon holding submitted his report. The authority, however, ordered a second enquiry by the same officer who again submitted his report on 8-l-1992. The authority ordered yet a further enquiry report was submitted on 28-4-1992, Respondent No. 1 was then served with a second show cause notice dated 18-5-1992 and it is alleged that the first enquiry report was not enclosed with the said notice. The respondent submitted his reply on 19-6-1991 pleading innocence. The authority ultimately, it alleged, without any consultation with the Public Service Commission illegally dismissed him service by the impugned order dated 17-7-1993. The present respondent primarily contended that allegations against him were vague and indefinite that no notice of the third enquiry was given to him that there were no specific points for further and the respondent was not informed anything such points for further enquiry and that no order of dismissal could be passed without a reference to the Public Service Commission.

3. The Government-appellant contested the case by filing a written statement denying the material allegations made by the respondent application. It was asserted that the respondent was proceeded against on specific allegation corruption and misconduct, that the first report was incomplete and the enquiry officer was therefore, directed to enquire into the allegations more elaborately, that on receipt of the second enquiry report it was found that the sixth allegation in the charge sheet was not properly enquired into and, as such, the enquiry officer was again asked to enquire into the said allegation, that as the respondent was clearly found guilty in the second and third enquiry reports, copies of those reports were enclosed with the second show cause notice, that as the third enquiry was ordered for clarification of the second enquiry report as to the sixth allegation on the basis of documentary evidence no notice was given to the respondent for the third enquiry and that the proceeding was initiated, conducted and concluded fully in accordance with the rules and there was no illegality committed in the said proceeding.

4. The Administrative Tribunal allowed the case holding that the respondent was not supplied with a copy of the first enquiry report, that the second and third enquiry were held in his absence without allowing him any opportunity to defend himself and thus the decision taken on the basis of the said two enquiry reports was not legally justified.

5. In the appeal the Appellate Tribunal agreed with the aforesaid findings of the Tribunal even though it was pointed out that it escaped the notice of the learned member of the Administrative Tribunal, that it was not disputed by the respondent that he was duly given notice of the second enquiry and that he was in fact present therein. The Appellate Tribunal held that the respondent asserted that he was not given to know as to on what point or points the enquiry would be held.

6. The Appellate Tribunal held that the second and third enquiries were illegally held without rejecting the first enquiry report, that in the subsequent enquiry only some documents were relied upon and the respondent was not given to know as to on what specific points the second or the third enquiry was to be held and what documents were going to be relied upon by the enquiry officer. It was concluded that this was a clear case of denial of self-defence vitiating not only the two enquiries but also the impugned order itself which was based thereon. The Appellate Tribunal further held that inasmuch as the authority had no further consultation with the Public Service Commission as required by the Establishment Division Memo dated 21-6-1972 before placing the summary to the Prime Minister and the President for dismissal of the respondent it amounted to no consultation with the Public Service Commission.

7. On the submissions of the learned Deputy Attorney-General leave was granted on the following points-
          (i) The Tribunals below wholly went wrong in holding that the order of dismissal passed on the basis of the second and third enquiry reports was not legally justified in that they lost sight of the fact that it was but one and the same enquiry in respect of the sixth allegation brought against the respondent and that the authority in order to be fully satisfied about the thoroughness of the enquiry directed the enquiry officer to probe into the individual allegations more intensively with reference to official records which apparently proves the bonafide of the authority in conducting the enquiry.
          (ii) The respondent has had full opportunity to defend himself and that he was asked to show cause for a second time on the basis of the second and third enquiry reports and, as such, it cannot be said that there was a denial of the opportunity to defend himself.
         (iii) The Public Service Commission was consulted before awarding the punishment which was noticed by the Appellate Tribunal itself and therefore it was wrong to say that there was no consultation with the Public Service Commission according to law.

8. The broad fact remains that the same enquiry officer was directed to enquire into the 6th allegation brought against respondent No. 1 as the first and second enquiry were not held properly as the enquiry officer did not specifically mention about the 6th allegation brought against the respondent. As a matter of fact, it cannot be said that it was a fresh enquiry but it was in the process of the same enquiry wherein the authority wanted to know certain facts with regard to document to be fully satisfied about the thoroughness of the enquiry held earlier and to go into specific allegation more precisely to hold respondent No. 1 guilty of specified charges.

9. In the case of Bangladesh vs. Md. Matiur Rahman, 1982 BLD (AD) 109 = 34 DLR (AD) 285 the job of the Enquiry Officer has been clearly spelt out wherein it has been held that the enquiry officer is required to submit a report on his findings to the authority by whom he was appointed and it is for the authority to consider the report and to act on the same. The authority is not bound to act on the findings of the enquiry officer but may go to different findings on the basis of material on record. In that decision, it has further been held that the authority may direct further enquiry either by the same officer or by another officer. In the present case, the same enquiry officer was entrusted to make a report, as first report was not complete in all respects. As a matter of fact, 2nd 3rd enquiry reports were supplied to respondent No. 1 which formed the basis of his dismissal and, as such, it is not a further enquiry but it is an enquiry by the same enquiry officer for further clarification of findings on the charges which were not specifically gone into by the enquiry officer earlier.

10. It is on record that respondent No. 1 had full opportunity to defend himself and that he was asked to show cause for a second time on the basis of second and third enquiry report. Respondent No. 1 was in fact present in the second enquiry wherein he said that whatever he had to say he had already said in the first enquiry and he would not further attend the enquiry in his defence nor adduce any evidence. In the circumstances, it cannot be said that there was a denial of the opportunity to defend himself when he himself declined to appear in the subsequent enquiry by the same officer earlier.

11. The Administrative Appellate Tribunal itself found that the Public Service Commission was consulted before awarding the punishment and, as such, it was wrong to hold that there was no consultation with the Public Service Commission according to law.

12. Khondkar Mahbubuddin Ahmed to Item No. 9 of Memorandum No, Estb/R l/R 73/72-79(500) dated 21st June, 1972 which reads as follows:
       “When it is proposed not to accept any recommendation of the Commission, the Ministry/Division/Statutory body concerned shall consult the Commission again and if it is again proposed not to accept the subsequent recommendation of the commission, the case will be submitted to the Prime Minister through the Establishment Division with reasons for the proposal.”
        This is a mere office memorandum which has no force of law. This- is a mere guide-line Further we find that the Bangladesh Public Service Commission (Consultation) Regulation. 1979 was made by the President in exercise of power conferred under Article 140 (2) of the Constitution on 27 October, 1979 which reads as follows:
       6. “It shall not be necessary to consult the Commission in any disciplinary matter except before passing any order of imposing the penalty of removal, dismissal or compulsory retirement from service, or reduction in rank a Class I or Class II Gazetted Officer.”

13. The advice of the Public Service Commission is not binding upon the authority but the authority is required to consider it and pass an appropriate order. In the present case in hand, we find that Public Service Commission was consulted and thereafter the authority awarded the punishment and as such, there was no error of law on this score as well.

14. Thus there was lawful consultation with the Public Service Commission and thereafter the decision was taken at the highest level and, as such it cannot be said that there was no consultation in accordance with the law.

15. Before parting with the case it may be stated that in the petition before the Tribunal there was no allegation whatsoever that with a malafide intention respondent No. 1 was victimised by the authority. As a matter of fact, there is no finding whatsoever in any of the judgments with regard to malafide or unnecessary harassment of the petitioner for fictitious or imaginary grounds.

16. For the aforesaid reasons indicated above the judgments of both the Tribunals are set aside.
In the result the appeal is allowed with out any order as to cost.
     Bimalendu Bikash Roy Choudhury J.- I also agree with the judgment of my Lord, the Chief Justices.
     Mahmudul Amin Choudhury J.- I have the privilege of going through the judgment written by My Lord the Chief justice but I failed to persuade myself in agreeing with the same for the reasons mentioned below.
17. As the fact leading to this appeal has already been noted by My Lord the Chief Justice I refrain myself from noting that again. Leave in this appeal was granted on the following grounds:
          “Mr. B Hossain, learned Deputy Attorney General, submits that the Tribunal below wholly went wrong in holding that the order of dismissal passed on the basis of the second and third inquiry reports was not legally justified in that they lost sight of the fact that it was but one and the same enquiry in respect of the sixth allegation brought against the respondent and that the authority in order to be fully satisfied about the thoroughness of the enquiry directed the enquiry officer to probe into the individual allegations more intensively with reference to official records which apparently proves the bona fides of the authority in conducting the enquiry. The learned Deputy-Attorney General submits that the respondent has had full opportunity to defend himself and that he was asked to show cause for a second time on the basis of the second and third enquiry reports and, as such, it cannot be said that there was a denial of the opportunity to defend himself. He submits that the Public Service Commission was consulted before awarding the punishment which was noticed by the Appellate Tribunal itself and therefore it was wrong to say that there was no consultation with the Public Service Commission according to law.’’

18. Admittedly a proceeding was drawn up against the respondent and an inquiry officer was appointed to hold inquiry who initially submitted his report. The concerned authority being not satisfied directed for holding a second inquiry and then a third inquiry and thereafter the order of dismissal of respondent from service was passed.

19. It appears that on 6-6-1991 the inquiry officer was directed to hold fresh inquiry for the second time in detail and in pursuance of that he issued notice upon the parties. Admittedly the respondent entered appearance before the inquiry officer and submitted an application stating that he has nothing to add to what he has already stated during the first inquiry. It further appears from the report of the second inquiry that in spite of request from the inquiry officer no new material could be produced from the side of the prosecution and only the prosecutor was examined. The inquiry officer categorically and clearly mentioned this in his report. Here it appears that the inquiry officer in the second inquiry report found on allegation No. 1 that the respondent has caused loss for which he may be held responsible and as regards allegation No. 2 his finding is that the respondent may he held irresponsible in his duties due to lack of experience. As regards allegation No. 3 it has been mentioned that the respondent has caused loss to the Government. As regards allegation No. 4 it has been mentioned that technically this respondent may be held responsible but as regards allegation No. 5 the inquiry officer has not given any new opinion and in support of the allegation No. 6 the inquiry officer specifically stated that due to lack of supporting materials it cannot be found that the respondent has caused any loss to the Government.

20. It appears that the authority was even not satisfied with the second inquiry report and accordingly directed for the third inquiry in respect of allegation No. 6. It appears from the perusal of the available materials that during the third inquiry on allegation No. 6, no further material or paper was produced before the inquiry officer in spite of the fact that he asked for the same. The inquiry officer on hearing only the prosecutor has not found that this petitioner is wholly guilty of causing loss of Taka 19.31 crore. He simply found that the respondent has created a situation which might have caused loss to the Government to the tune of Taka 16.88 crore. On going through these inquiry reports it appears that in some cases the respondent has only followed the foot-steps of his predecessors who adopted the procedure. He has not created any new situation for which he may be personally held responsible and in some cases he has simply caused a situation for the department to make certain payments though he has not himself made any such payment. It is in the inquiry report that such situations are very much prevalent in the department. The inquiry officer in his 3(three) reports has not found that the respondent has dishonestly and for illegal gains done these acts. There is not a single instance to find that the activities of the respondent is tantamount to dishonesty. What the inquiry officer found is lack of experience of the respondent who has simply followed the foot-steps of his predecessors. The inquiry officer in his 3 reports held the respondent guilty of inefficiency but not of corruption.

21. It further appears that in the first inquiry the respondent was present and he participated but during the second inquiry he informed that he has nothing to add to what he has earlier submitted. Further, it appears that before initiating the second inquiry the report of the first inquiry was not made available to the respondent and it is an admitted fact that during the third inquiry the respondent was not notified at all. The inquiry officer conducted the inquiry behind his back. This holding of 3rd inquiry without issuing any notice on the respondent is on the very face illegal.

22. It appears from the first inquiry report that the respondent was not found guilty of allegation Nos. 1, 2, 3, 4 and 6 but was found guilty only on the allegation made in item No. 5 which is related to payment of Taka Ten lac to one M/s Heno Commercial on the basis of a hand receipt without preparing a regular bill. But without accepting or rejecting the first inquiry report a second inquiry was ordered. From the second inquiry report it is abundantly clear that no fresh material could be produced before the inquiry officer from the department but in spite of that the inquiry officer found the respondent guilty of negligence of duty and inefficiency. He has not found the respondent guilty of any corrupt practice. In the 3rd inquiry also no new material could be produced. But the respondent was found responsible for creating charge on the Government exchequer. From these three inquiry reports it is abundantly clear that the prosecution failed to produce any material to find that the petitioner is guilty of misconduct and corruption.

23. It appears from the conduct of the concerned authority that time and again the inquiry officer was directed to hold fresh inquiry without canceling the earlier ones. It is of course not illegal to hold further inquiry by the same officer without even canceling the earlier reports but the remains that no new material could be produced by the department before the inquiry officer.

24. The Administrative Tribunal as well as Administrative Appellate Tribunal found that as the inquiries were conducted without fresh materials and without notifying the respondent the same can not be used against him and I fully agree with the findings of these two Tribunals.

25. As regards consultation with the Public Service Commission, it appears that available materials were placed before the Commission on consideration of the same opined that no penalty is called for against the respondent This opinion was obtained after the second inquiry fresh opinion was obtained after the third in and thereafter the matter was placed before the Prime Minister as well as the President necessary approval on the dismissal of respondent. It is submitted by the learned Deputy Attorney General that the opinion or consultation of  the Public Service Commission has no binding effect This is simply a mere formality to which submission I fail to agree. No provision has been made by the concerned authority for nothing. Opinion of the Public Service Commission seems to me is a check value and it must be given proper weight which has not been done in this case. I therefore find no force in the argument advanced by the learned Deputy Attorney-General.

26. I have also gone through the judgment of the Appellate Tribunal It appears that on consideration of the available materials this Tribunal found that the order of dismissal of the respondent is bad in law as no new materials were produced during second and third inquiry and that the Public Service Commission was not consulted after the third inquiry and that no notice of the third inquiry was issued upon the respondent and that the copies of the first inquiry report was not made available at the time of second and third inquiries, Considering the facts and circumstances I fully agree with the opinion of the Appellate Tribunal.

27. The most notable aspect of this case is that the resume of the proceeding was sent to the President through the Prime Minister for approval on the dismissal of the respondent from service and in that resume it has been mentioned that the respondent was found guilty of the charge of misconduct and corruption. I have gone through the inquiry reports and it appears that the inquiry officer nowhere has found the respondent guilty of corruption or that he practiced corruption. What has been found by the inquiry officer is simply negligence of duties due to inexperience but suppressing this finding the resume was sent noting that the inquiry officer found the respondent guilty of corruption. As regards misconduct, it appears from the inquiry reports that nowhere the inquiry officer found the respondent guilty. From the reports of the inquiry officer it is found that the respondent simply followed the procedures that were being adopted or practiced in the department from long before. The respondent has not created any new situation for causing loss to the Government. Though the word misconduct signifies a very wide area but the fact remains that this should be interpreted on the materials collected by the inquiry officer. Here in the present case what the inquiry officer found in these three reports can not be construed a misconduct calling for a major penalty. The inquiry officer has given his full reasoning on his findings from which it is abundantly clear that there was no gross misconduct calling for a major penalty and I am of the opinion that the Public Service Commission on going through these reports advised that the offence calls for a minor penalty. But suppressing the aforesaid an untrue resume was forwarded to the President through the Prime Minister and got their approval for dismissal of the respondent. From the conduct of the concerned authority it appears that they were bent upon to dismiss the respondent from service by any means fair or foul, wanted to get rid of this man and for that end in view they put on indirect pressure upon the inquiry officer and after giving the respondent a bad name and suppressing the real findings got the order of dismissal approved by the President which is indicative of an act which can not be construed a bona fide act. Though the respondent has not taken any ground on the malafide of the concerned authority but from the perusal of the available materials it appears to me that the activities of the appellant can not be construed as bona fide.

28. Thus after consideration of the materials on record and after hearing the learned Advocate of both sides I hold that the Administrative Tribunal and the Appellate Tribunal rightly found that the dismissal of the respondent is illegal and I fully agree with their findings. The learned Deputy Attorney-General failed to point out any legal infirmity in the judgment of the Appellate Tribunal and there is no reason why this Division should interfere with such a concurrent finding of fact which is based on proper and legal appreciation of law and fact.

29. Having given my best consideration to the materials on record and after hearing the learned Advocates of both sides I hold that there is nothing to interfere with the judgment and order passed by the Administrative Tribunal and the Administrative Appellate Tribunal and the appeal must be dismissed.
The appeal is accordingly dismissed without cost.
                   
 
 
 Kazi Ebadul Hoque J.- I also agree with the judgment of My Lord, the Chief Justice.
 
 
Order of the Court:
By a majority decision the appeal is allowed without any order as to costs.
Ed.