Case No: Civil Appeal No. 74 of 1992 & Civil Appeal No. 32 of 1993
Judge: MH Rahman ,
Court: Appellate Division ,,
Advocate: AW Bhuiyan,Golam Mohiuddin,,
Citation: Civil Appeal No. 74 of 1992 & Civil Appeal No. 32 of 1993
Case Year: 1993
Appellant: Government of the People's Republic of Bangladesh
Respondent: Abdul Motaleb Dewan and others
Subject: Administrative Law,
Delivery Date: 1993-04-20
Government of the People's Republic of Bangladesh
Abdul Motaleb Dewan and others, 1993,
45 DLR (AD) (1993) 108
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
Government of the People's Republic of Bangladesh ........................Appellant
Abdul Motaleb Dewan and ors ……………………….Respondents
April 20th, 1993.
Constitution of Bangladesh, 1972
An order for compulsory retirement by way of penalty amounts to removal from service for which protection under Article 135 is available.
Cases Referred to-
Shyamlal Vs. State of UP AIR 1954 SC 369; State of Bombay Vs. Saubbagchand AIR 1957 SC 892; Dalip Singh Vs. State of Punjab AIR 1960 SC 1305, Jagdish Mitter Vs. Union of India AIR 1964 SC 449, State of UP Vs. Madan Mohan Nagar AIR 1967 SC 1260; State of UP Vs. Shyam Lal AIR 1971 SC 2151 and Union of India Vs. Tulsiram Patel 1985 SC 1416; Rangachari Vs. Secretary of State AIR 1937 PC 27; Krishna Kumar Vs. Divisional Asstt. Electrical Engineer, Central Rly. AIR 1979 (SC) 1912; State of UP Vs. Ram Naresh AIR 1970 SC 1263 (1265).
AW Bhuiyan, Additional Attorney‑General (B. Hossain, Deputy Attorney‑General, with him) instructed by Mvi. Wahidullah,Advocate-on-Record -For the Appellant.
Golam Mohiuddin, Advocate, Supreme Court, instructed by Md. Nowab Ali, Advocate-on-Record- For the Respondent No. 1.
Not Represented - Respondent Nos. 2—4.
Civil Appeal No. 74 of 1992 & Civil Appeal No. 32 of 1993.
(From the Judgment and Order dated 28th May, 1992 and 11th August 1992 passed by the High Court Division in Administrative Appellate Tribunal in Administrative Appeal Nos. 3 & 26 of 1992 respectively).
MH Rahman J.- Leave was granted in these two appeals for determination of a common question of law, namely, whether the respondent Government Servants in CA No. 74 of 1992 and CA No. 32 of 1993 who were admittedly appointed by the Chief Conservator of Forests could be compulsorily retired after a departmental enquiry by the Conservator of Forests on the strength of a circular for redistribution of administrative powers issued by the Deputy Secretary of the Ministry of Agriculture and Forest on June 4, 1981 and making the Conservator of Forests as the appointing authority for the posts respondents were holding at the time of the order of compulsory retirement.
2. In both the matters the Administrative Tribunal set aside the order of compulsory retirement. The Administrative Appellate Tribunal affirmed the order of the Tribunal by finding that the Circular dated June 4, 1981 was not issued by President and as such it had no legal effect. In matter from which CA No. 32 of 1993 has arisen the Appellate Tribunal further held that as at be relevant time when the respondent was appointed the Chief Conservator of Forests was the appointing authority, he cannot be removed from service by an order of the Conservator of Forests on the strength of a circular subsequent to the date of appointment.
3. The Government's case is that the Circular dated 4.6.81 was passed, in super session of all previous orders in the matter, making the Conservator of Forests as the appointing authority for officers like the respondents; and as, such, the Conservator of Forests was authorised to draw the proceeding, and impose penalty upon the respondents. It is contended that the Tribunal erroneously assumed that it had no legal effect simply because it was issued by the Deputy Secretary of the Ministry and it did not indicate that it was passed by an order of the President. It is submitted that notwithstanding its finding be circular was not issued by an order of the President of the Republic or by any amendment of the Government Servants (Discipline and Appeal) Rules 1985, the Tribunal ought to have held that the Chief Conservator of Forests could delegate to the Conservator of Forests the power to frame charge or impose penalty upon the respondents when the term “authority" as defined under rule 2(b) of the Government Servants (Discipline and Appeal) Rules, 1985, indicates that the Conservator of Forests could exercise the same power as that of the appointing a designated officer. An order of authority as retirement imposed by way of compulsory retirement imposed by way of punishment is a major penalty under sub‑rule 3(b) of rule 4 of the Government Servants (Discipline and Appeal) Rules, 1985. Sub‑rule (6) of rule 4 provides that "no authority subordinate to that by which a Government servant was appointed shall be competent to impose on him any major Penalty".
4. Furthermore, as an order for compulsory retirement by way of penalty amounts to removal from service the respondents are also entitled to protection under Article 135 of our Constitution. The Indian Supreme Court held similar view in a number of decisions in interpreting the corresponding Article 311 of the Indian Constitution in Shyamlal Vs. Stateof UP AIR 954 SC 369, State of Bombay Vs. Saubhagehand AIR 1957 SC 892, Dalip Singh Vs. State of Punjab AIR 1960 SC 1305, Jagidish Mitter Vs. union of India AIR 1964 SC 449, State of UP Vs. Madan Mohan Nagar AIR 1967 SC 1260, State of UP V shyam Lal AIR 1971 SC 2151 and Union of India Vs. Tulsiram Patel, 1985 SC 1416. In Rangachari Vs, Secretary of State AIR 1937 PC 27, a case on section 96‑B of the Government of India Act, 1919, a provision similar to Article 135(l) of our constitution it was held that the guarantee afforded by that Statutory provision could not be taken under rules, otherwise it would wipe out a proviso and destroy a protection contained not in the rule but in the Statute itself. The same view was reiterated in AIR 1942 FC 3 with regard to similar provision Section 240(2) of the Government of India Act 1935.
5. In Krishna Kumar Vs. Divisional Asstt. Electrical Engineer, Central Rly. AIR 1979 (SC) 1912, where the appellant appointed as a Train Lighting Inspector by the Chief Electrical Engineer was removed from service under an order passed by the Divisional Assistant Engineer the order of removal was struck down. It was held that (a) whether or not an authority is subordinate in rank to another, was to be determined with reference to the state of affairs existing on the date of appointment, when the constitutional guarantee under Art. 311(1) becomes available; (b) that delegation of the powers to make a particular appointment does not enhance or improve the hierarchical status of the delegate; (c) that the subsequent authorisation made in favour of the authority passing the order of removal in regard of making appointment to the post held by the appellant cannot confer upon him the power to remove him; and (d) that the Divisional Engineer did not cease to be subordinate in rank to the Chief Electrical Engineer merely because the latter's power to make appointments to certain posts had been delegated to him.
6. In these matters the respondents are entitled to the protection under Article 135(l) of the Constitution and such protection cannot be taken away either by the Parliament in its statute making power or by the President in his rule making power. The constitutional guarantee given under Article 135 of the Constitution cannot be whittled down by designating an officer lower in rank than the one who was the appointing authority at the time of the appointment of the respondents.
7. In State of UP Vs. Ram Naresh AIR 1970 SC 1263 (1265) it was held : "There is nothing in the Constitution which debars the Government from conferring powers on an officer other than the appointing authority to dismiss a Government servant, provided he is not subordinate in rank to the appointing officer or authority.
8. The Conservator of Forests being subordinate in rank to the Chief Conservator of Forests cannot as a designated officer exercise the power of the appointing authority, namely the power impose a penalty of compulsory retirement.
9. The learned Additional Attorney‑General has fairly conceded that the impugned order of compulsory retirement is not sustainable. Having failed to produce any paper to Show that tile circular dated June 4, 1981 was made with the consent of the President he has, however, expressed his concern for the consequences that may follow from the finding that the circular dated June 4, 1981 was passed without lawful authority, as, according to him, several orders have been made by the department on the basis of that order. We do not like to speculate what kind of order passed on the basis of the circular will be challenged in future. In this case vires of the circular is not directly in issue. Even if it were shown that the circular was passed by the consent of the President, then also that order would not have affected the Government servant's right to protect himself under the Constitution with reference to his position at the time of his appointment.
In view of the above, we dismiss both the appeals and affirm the impugned decision. No cost.