Government of Bangladesh Vs. Md. Idrish Miah, 58 DLR (AD) (2006) 55

Case No: Civil Appeal No. 118 of 2002

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Md. Amir Hossain,,

Citation: 58 DLR (AD) (2006) 55

Case Year: 2006

Appellant: Government of Bangladesh

Respondent: Md. Idrish Miah

Subject: Administrative Law,

Delivery Date: 2005-3-1

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md Rubul Amin J
Md Tafazzal Islam J
 
Bangladesh, represented by the Secretary Ministry of Health and Family Welfare and Others
.......…………………………...Petitioners
Vs.
Md. Idrish Miah
……………………..................Respondent
 
Judgment
March 1st, 2005.
 
The Administrative Tribunal Act, 1980
Section 6(3)
In view of the provisions of section 6(3) of the Administrative Tribunal Act, 1981 (VII of 1981) it was within the jurisdiction of the Administrative Appellate Tribunal in altering the major penalty of dismissal from service to the reduction in rank of the respondent. The Appeal has no merit and it is accordingly dismissed…………. (13 & 14)
 
Case Referred To:
Government of Bangladesh represented by the Secretary, Ministry of Defence and others vs. Md. Afzal Hossain Ansari, 55 DLR (AD) 65.
 
Lawyers Involved:
Md. Amir Hossain, Advocate-on-Record— For the Appellant.
Md. Nawab Ali, Advocate-on-Record—For the Respondent.
 
Civil Appeal No. 118 of 2002.
(From the judgment and order dated 22-3-1999 passed by the High Court Division in Appeal No.6 of 1996).
 
JUDGMENT
 
MM Ruhul Amin J.
 
This appeal by leave is directed against the judgment and order dated 22-3-1999 passed by the Administrative Appellate Tribunal in Appeal No.6 of 1996 dismissing the appeal upon modifying the judgment and order passed by the Administrative Tribunal.
 
2. Short facts are that the respondent entered into the service of Family Planning Board as Assistant on 8-8-1969. After emergence of Bangladesh, the said Family Planning Board was redesignated and merged with population control and family planning Directorate. The service of the petitioner was absorbed under the directorate of population control and Family Planning. After seven years of service, he was appointed as Thana Family Planning Officer on 1-3-1978 by a competitive examination through Public Service Commission. While he was serving as Thana Family Planning Officer at Bamna Upazilla under District of Barguna, a departmental proceeding was drawn up against him on 12-3-1988 under Government Servants Discipline and Appeal Rules, 1985 as to the allegations of corruption and misconduct during his tenure of service at Kalapara Upazilla under Patuakhali District. The respondent submitted written statement denying all the charges brought against him. An enquiry officer was appointed on 24-4-1990 who after holding enquiry submitted report finding the respondent guilty. The authority then issued second show cause notice upon him and thereafter dismissed him from service. The contention of the respondent is that he was not allowed to cross-examine the witnesses to defend himself and, as such, he has been prejudiced.
 
3. The Respondent then moved the Administra­tive Tribunal in Case No. 41 of 1990 and the case was dismissed by the Administrative Tribunal.
 
4. Being aggrieved the Respondent moved the Administrative Appellate Tribunal in appeal No. 6 of 1996 and the Administrative Appellate Tribunal upon hearing the parties dismissed the appeal upon modification to the extent that the penalty of dismissal of the respondent from service was reduced and he was reverted to the post of Assistant Thana/Upazilla Family Planning Officer. Being aggrieved the appellant preferred the leave petition.
 
5.  Leave was granted to consider the submission that the Administrative Appellate Tribunal had no legal authority or jurisdiction to modify the penalty of the respondent from dismissal of service to the reduction in rank.
 
6. We have heard Mr. Amir Hossain, learned Advocate-on-Record for the appellants and Mr. Md. Nawab Ali, the learned Advocate-on-Record for the respondent and perused the judgment of the Administrative Appellate Tribunal and other connected papers.
7. It is not disputed that the respondent while working as Thana/Upazilla Planning Officer, Bamna Upazilla, District Barguna was dismissed from service on charge of corruption and misconduct.
 
8. It is on record that the respondent admitted the facts of the case and the audit objection. The Administrative Appellate Tribunal observed that during the departmental proceeding the respondent was sent twice for training. It was further held that the respondent complied with the audit objection by making payment and the past services of the appellant were not considered in awarding the major penalty of dismissal from service. Accordingly, Administrative Appellate Tribunal held that the punishment of dismissal from service was unreasonably severe. The Administrative Appellate Tribunal on consideration of the materials on record held that the charges brought against the respondent may be an irregularity and do not constitute any offence of corruption and misconduct and, as such, major penalty from dismissal was unwarranted.
 
9. Therefore, the punishment was reduced to the reduction in rank that is the respondent was reduced in rank to the post of Assistant Thana/ Upazilla Family Planning Officer from the post of Upazilla/Thana Family Planning Officer.
 
10. Now the question is whether the Administrative Appellate Tribunal can modify or vary the judgment and order passed by the Administrative Tribunal.
 
11. Section 6(3) of the Administrative Tribunal Act, 1982 provides that the Administrative Appellate Tribunal may on appeal confirm, set aside, vary or modify any order or decision of Administrative Tribunal.
 
12. This Court in the case of Government of Bangladesh represented by the Secretary, Ministry of Defence and others vs. Md. Afzal Hossain Ansari reported in 55 DLR (AD) 65 held that 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 Administrative Tribunal Rules and thereupon in making the order for the reinstatement of the respondent the Tribunal did not commit any illegality as it was within the jurisdiction of the Tribunal to see the proportionality of the sentence in the given facts of the case.
 
13. Therefore, in the facts and circumstances of the present case, we are of the view that the Administrative Appellate Tribunal took into consideration all aspects of the matter and in view of the provisions of section 6(3) as quoted above it was within the jurisdiction in the Administrative Appellate Tribunal in altering the major penalty of dismissal from service to the reduction in rank of the respondent that is from the post Thana/Upazilla Family Planning Officer to the post of Assistant Thana/Upazilla Family Planning Officer.
 
14.  In view of our above discussion to find no merit in the appeal. The appeal is dismissed without any order as to cost.
 
The appeal is dismissed without any order as to cost.
 
Ed.