Government of Bangladesh Vs. Md. Abdul Karim

Case No: Civil Appeal No. 16 of 1994

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: B Hossain,Kazi Shahadat Hossain,,

Citation: II ADC (2005) 610

Case Year: 2005

Appellant: Government of Bangladesh

Respondent: Md. Abdul Karim

Subject: Administrative Law,

Delivery Date: 1995-06-04

Govt. of Bangladesh

 Vs.

 Md. Abdul Karim, 1995,

II ADC (2005) 610

 

 

Supreme Court
Appellate Division

(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
 
Govt. of Bangladesh...................Appellant

Vs.

Md. Abdul Karim.....................Respondent
 
Judgment
June 4, 1995.
 
The Local Government (Union Parishads) Ordinance 1983
Section 7 (2)(d)
It is well settled that on the self same allegation a Departmental proceeding against an employee is competent besides a proceeding in a Court of law.
 
Cases Referred to-
Monoranjan Mukharjee Vs. Election Commission, 1990 BLD (Vol. X) 17 = 41 DLR (1989) 484; State of Punjab Vs. Amar Singh Harika, AIR 1966 SC 1313; Ram Bilas Paswan Vs. Union of India (Cal) (1991) 16.
 
Lawyers Involved:
B. Hossain, Deputy Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Appellant
Kazi Shahadat Hossain, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record – For the Respondent

Civil Appeal No. 16 of 1994.
(From the Judgment and Order dated 15th November 1993 passed by Administrative Appellate Tribunal No. 33 of 1993).
 

Judgment:
                  ATM Afazl CJ.- This appeal by leave at the instance of the Secretary, Ministry of Law and Justice and Parliamentary Affairs arises out of a pro­ceeding under the Administrative Tribunals Act, 1980 (Act No.VII of 1981) and is from judgment and order dated 27.11.1993 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.33 of 1993 upholding those of the Administrative Tribunal, Bogra passed in A.T. Case No. 27 of 1992.

2. Facts of the case, briefly, are that the respondent Md. Abdul Karim who was an Accountant-cum-Bench Assistant in the First Court of Munsif, Sirajgonj District Pabna at the relevant time was tried by a Summary Martial Law Court under Regulation No. 11 of Martial Law Regulation No. 1 of 1992 for allegedly tak­ing a bribe of TK.25/- from a party, convict­ed there under on 14.11.1982 and sentenced to suffer rigorous imprisonment for six months and a fine of TK. 500/- in default to R.I. for two months more. The Zonal Martial Law Authority reduced the sen­tence to a fine of TK. 200/- in default to R.I. for three months.

3. On 30.11.1982 the District Judge, Pabna started a Departmental Proceeding, Case No.7 of 1982, against the respondent on the basis of the aforesaid case which, ended in his conviction. The Subordinate Judge, Sirajgonj who was appointed Enquiry officer in the proceeding by his report dated 31.3.1983 found the respon­dent not guilty under rule 3(c) of the Government servants (Discipline and Appeal) Rules, 1976 briefly, the Rules. The District Judge, however did not agree with the opinion of the Enquiry Officer and by an order passed on 8.5.1983 retired the respondent compulsorily form service under rule 4(3) (b) of the said Rules.
Respondent took an appeal against the said order to the appellant but the same was (allegedly) dismissed on 20.1.1991 where­upon the respondent filed the aforesaid case before the Administrative Tribunal on 10.2.1991 for setting aside the order of compulsory retirement and for a direction to reinstate him in service with all arrear salaries etc.

4. The appellant contested the case by filing written objection stating, inter alia, therein that the order of compulsory retire­ment was legally passed and confirmed in appeal because of the respondent's convic­tion on a criminal charge in a Martial Law Court.

5. It appears that the decision in the matter at both the trial and the appellate stage turned on the question as to whether the conviction of the respondent in a Martial Law Court would justify a Departmental Proceeding and further whether the said conviction was covered by Rule 8 of the said Rules. Both the Tribunals relying  upon  the case of Monoranjan Mukharjee Vs. Election Commission, 1990 BLD (Vol. X) 17 = 41 DLR (1989) 484 held that the respondent could not be punished in the Departmental Proceeding on the basis of his conviction in a Martial Law Court. Accordingly, the order of compulsory retirement was set aside by the Administrative Tribunal, Bogra by its judg­ment and order dated 18.2.1993 and the opposite parties were directed to reinstate the respondent (herein) in his former post with all back salaries and other attending benefit. This order was upheld in appeal by the impugned judgment and order.

6. The Appellant Tribunal in its judg­ment held that rule 8 of the said Rules does not refer to a 'conviction' by a Martial Law Court and it does not refer to an 'offence' under the Martial Law Regulation or order but "it simply refers to a criminal charge and conviction as provided in the Judicial hierarchy or by special tribunal."

7. Leave was granted to consider the submission  that both the Tribunals below fell into an error in overlooking completely that the impugned action was taken against the respondent upon an independent enquiry under the aforesaid Rules of 1976 in which the District Judge who passed the impugned order recorded his own finding as to the guilt of the respondent on the basis of the evidence on record and as such the consideration whether the conviction of the respondent in the Martial Law Court was a 'conviction on a criminal charge' within the meaning of Rule 8 was wholly irrelevant. The other submission was that the Appellate Tribunal was in any case wrong in holding that rule 8 of the Rules of 1976 does not refer to a conviction by a Martial Law Court and it only refers to a criminal charge and conviction as provided under the ordinary law.

8. At the hearing of the appeal the learned Deputy Attorney General has pressed the First submission as above and modified his second submission by urging that the aforesaid decision in Monoranjan Mukharjee's case was wrongly applied in the facts of the instant case resulting in a miscarriage of justice.

9. As far as the first submission is con­cerned it is found that both the Tribunals attached no importance to the Departmental Proceeding in which there was an enquiry held in respect of the same allegation on the basis of which the respondent was found guilty in the Summary Martial Law Court. It is well settled that on the self same alle­gation a Departmental proceeding against an employee is competent besides a pro­ceeding in a Court of law. In the present case it is true that the proceeding was started on the basis of the conviction of the respondent in the summary Martial Law Court but nevertheless, it was an independ­ent enquiry in which the respondent had examined several witnesses in his defence. Neither of the Tribunal has found any fault with the enquiry procedure and the relief given to the respondent was not on the ground that there was any lapse in proce­dure in holing the enquiry or that the respondent was prejudiced for any reason. The order of compulsory retirement was set aside only on the ground that it was based upon conviction on a criminal charge in a martial Law Court which is against the principle laid down in Monoranjan Mukharjee's case. Whether that case has been rightly applied will be seen presently but the fact remains that the order of pun­ishment was passed following an independ­ent Departmental Enquiry and the order has been affirmed hi appeal field under the Rules. Therefore irrespective of the ques­tion whether conviction on a criminal charge in a Martial Law Court is covered by rule 8 of the Rules or not the order of pun­ishment cannot be interfered with, for, no fault has been found with the Departmental proceeding which was an independent pro­ceeding apart from the proceeding in the Martial Law Court although based on the same facts. We, therefore, find force in the first submission of the learned Deputy, Attorney General, Kazi Shahadat Hossain, learned Advocate appearing for the respon­dent, submitted that the Departmental Proceeding, was not a Departmental Proceeding in the true sense of the term, that the learned District Judge, Pabna failed to apply his independent judicial mind while rejecting the finding of the Enquiry Officer who had examined witnesses and found the respondent not guilty of the alleged offence of corruption after giving the respondent a personal hearing and that the learned District Judge had acted upon the direction of the Summary Martial Law Court .We cannot entertain and examine these submissions of the learned Advocate because the Tribunals below had not grant­ed the relief on the grounds now canvassed before us.

10. The question for consideration before us is whether the Tribunals below were justified in interfering with the order of punishment on the ground as given by them in support of their orders. The only ground as find is the principle as laid down in the case of Monoranjan Mukharjee which has been invoked in toto. It remains to be seen, therefore, whether the Principle of that case has been correctly appreciated and applied in the facts of the present case.

11. In the said case (1990 BLD 17) the question arose whether a candidate for chairmanship of a Union Perished who was convicted and  sentenced by  a summary Martial Law Court in 194 could be said to be disqualified under section 7(2)(d) of the Local Government (Union Parishads) Ordinance, 1983 which provides that a per­son shall be disqualified for election or nomination as, or for being, a Chairman a or member if he has been, on conviction for a criminal offence involving moral turpitude, sentenced to a term of not less than two years, unless a period of five years has elapsed since his release. The Returning Officer rejected the nomination paper but on appeal the appellate authority set aside the order and allowed the candidate to con­test the election who ultimately returned successful. The appellate order was dated 13.1.1988. In repelling a challenge to the said order the Division Bench held that the Local Government Ordinance 1983 was an Ordinary law and when it refers to "Criminal offence" and also speaks about "conviction", it invariably refers to ordi­nary offences provided for by the ordinary laws of the Country and also refers to trial and conviction by an Ordinary Criminal Court within the judicial hierarchy or a Special Tribunal created by Ordinary law. It was held That extra-constitutional offense tried by extra-constitutional Courts are not contemplated by the ordinary laws of the country and they remain good as long as the extra constitutional dispensation namely, Martial Law period lass; but with its depar­ture it no longer casts a shadow upon the ordinary law. In other words, it was held that after the lifting of martial law, while reading any provision as to conviction for a criminal offence in any ordinary law, the conviction by a Martial Law Court for a Martial Law offence cannot be read in such law, although it will be permissible as long as the Martial Law itself remains in force. This is as we can see, the true import of the said decision.

12. Now in the present case the order of punishment was passed on 8.5.1983 while the Martial Law was in force. That being the position, it must be said that the Tribunals below had wrongly followed the principle of the said case and thus allowed themselves to be misled. Kazi Shahadat Hossain, learned Advocate for the respondent, has, however, submitted that the said decision was rightly applied because the order of the District judge was finally upheld by the appellant in appeal on 20.1.1991 when the Martial Law was no longer in force. The submission of the learned Advocate is not based on correct fact as it is found from the record that the appellate order rejecting the appeal was passed on 2nd  November, 1983 (vide resolution of the Ministry of Law and Land reforms, pages 75-77 of the Paper Book). Mr. Hossain has referred to page 73 of the paper Book containing an order of the Ministry dated 7.1.1991 addressed to the District Judge, Pabna where in the learned District Judge was requested to inform the respondent about the result of the appeal who had written to the Ministry that he was no aware of the result of his appeal. The District Judge by his Memo dated 20-1-1991 informed the respondent about the appellate order dated 2.11.1983. Mr. Hossain submits that an order does not take effect unless it is communicated to the per­son concerned and inasmuch as the respon­dent was informed about the appellate order, in which the  original  order had merged, on 20.1.1991 the order will be effective from that date. It was evidently after lifting of the Martial Law in November 1986 and, therefore, the princi­ple in Monoranjan Mukharijees case was rightly held applicable in the instant case. In support of his contention he has referred to a passage in State of Punjab Vs Amar Singh Harika, AIR 1966 SC 1313 which as been quoted in Ram Bilas Paswan Vs. Union of India (Cal) (1991) 16 Administrative Tribunal Cases 18 which reads as follows:  
         "The mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. An order of dis­missal passed by an appropriate authority and kept on its file without communicating it to the officer con­cerned or otherwise publishing it does not take effect as from the date on which the order is actually writ­ten out..." 

13. It cannot be denied that the respon­dents appeal was dismissed by the appellant by order dated 2.11.1983 and a copy of the said order was for warred to the District Judge, Pabna for information, necessary action and communication to the respondent. The respondent, however, it appears from the Ministries letter dated 7.1.1991 (at page 73) complained that he had not received the result of his appeal. He was, therefore communicated of the order dated 2.11.1983 dismissing his appeal by Memo dated 20.1.1991. For the purpose of limita­tion of moving the Administrative Tribunal against the order of punishment the respon­dent was entitled to avail of the benefit of the date of the Memo communicating result of the appeal but the fact remains that the appeal was disposed of in 1983 when the martial Law was in force and an order of conviction by a martial Law Court could be looked into by the authority at that time. On the principal of Monoranjan Mukharjees the convection on a criminal charge in a Martial Law Court was relevant and good when the order of punishment was passed and confirmed in appeal. We are, therefore of the view that the principle of that cases has not been correctly appreciated by the Tribunals below and wrongly applied in die facts of the present case. Thus in any view of the matter we do not think that the Tribunals below were justified in interfer­ing with the order of punishment passed by the District Judge, Pabna.

In the result, therefore, the appeal is allowed without any order as to cost. The impugned judgment and order are set aside.
Ed