Case No: Civil Appeal Nos. 10, 11 & 12 of 1987
Judge: Shahabuddin Ahmed ,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,,
Citation: 40 DLR (AD) (1988) 206
Case Year: 1988
Appellant: M. A. Hai Md. Wazed All Miah & Md. Moslem
Respondent: Trading Corporation of Bangladesh
Subject: Interpretation of Statute,
Delivery Date: 1987-8-18
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
M. A. Hai Md. Wazed All Miah & Md. Moslem
Trading Corporation of Bangladesh
..................Respondent (In all the appeals)
August 18, 1987.
The Constitution of Bangladesh, 1972 (as amended)
The proceedings against the appellants were not drawn the Rules of 1984. As such the provision of discharge cannot be applied therein. These proceedings were drawn under the Rules of 1976 and were pending when the Rules of 1984 came into force. In the provisions for automatic disposal under the Rules of 1984 the qualifying clause "as far as may be" was inserted obviously because in the previous Rules there was no such provision; but ho such qualifying clause was necessary in the similar provisions of the Rules of 1985 as the same time-limit was there in the previous Rules-Rules of 1984. It is impossible to apply the provision of time-limit under the Rules of 1985 in a proceeding which was drawn under the Rules of 1976……………….(16)
Cases Referred to-
Shyamakanta Lal v. Rambhajan, AIR 1939 FC 74, Lachmeshwar Prasad Shukul v. Keshwar Lai Choudhury & ors., AIR 1941 FC 5, M/s. M. Laxmi & Co. v. Dr. Anant R. Deshpande, AIR 1973 SC 171, Amarjit Kaur v. Pritam Singh and others, AIR 1974 SC 2068.
Rafiq-ul-Huq, Senior Advocate, (Md. Fazlul Haque and Ajmalul Hossain, Advocates with him) instructed by Sharifuddin Chaklader, Advocate-on-Record.— For the Appellants, (In all the appeals).
Kazi A. T. Monwaruddin, Advocate, instructed by Md. Sajjadul Huq, Advocate-on-Record. - For the Respondent. (In all the appeals).
Civil Appeal Nos. 10, 11 & 12 of 1987.
(From the judgment and order dated 10.3.87 passed by the High Court Division, Dhaka, in Writ Petition Nos. 83 of 1985, 137 of 1985 and 21 of 1986.)
Shahabuddin Ahmed J.
These three appeals by special leave are directed against a common judgment of the High Court Division dated 10 March 1987 disposing of five Writ-petitions including W.P. No. 83 of 1985. A common question of law relating to interpretation of certain statutes being involved in these appeals they have been heard together and will be disposed of by this judgment.
2. In Civil Appeal No. 10 of 1987, which arises out of Writ Petition No. 83 of 1985, the appellant, Abdul Hai, is Senior Executive of the Bangladesh Trading Corporation, briefly the Corporation, established under the President's Order No. 68 of 1972. A charge-sheet containing certain allegations of inefficiency, corruption and misconduct was communicated to him on ID February 1983; he submitted his reply on 2 March 1983 denying the allegations whereupon an inquiry was held by an officer of the Corporation, who submitted his report on 11 October 1984. On consideration of the report the Corporation passed the impugned order, dated 4 April 1985, provisionally removing him from service and asking him to show cause why the provisional removal should not be confirmed. He did not show any cause but filed the writ-petition under Article 102 of the Constitution challenging the order taking the ground that in view of the mandatory provision of Rule 7 (11) of the Government Servants (Discipline and Appeal) Rules, 1984 he stood discharged from the charge as the specified period of 120 days from the date of communication of the Charge-sheet to him, within which the proceeding against him was to be concluded, expired before the impugned order of removal was passed. He claimed that the Government Servants (Discipline and Appeal) Rules, 1984 are applicable to his case since the Corporation adopted these Rules for its employees.
3. In Civil Appeal No. 11 of 1987, which arises out of Writ Petition No. 137 of 1985, the appellant, Wazed Ali, an Assistant Store Officer of the Corporation, challenged an order of the Corporation dated 29 May 1985 provisionally removing him from service. He also took the same ground that the specified period, in his case 150 days from the date of his suspension from service, expired before the impugned order was passed and as such he already stood discharged from the charges brought against him. He was suspended on 18 January 1983, Charge-sheet was submitted on 31 May 1983, inquiry report was submitted on 15 August 1984, but the order of provisional removal was made; as stated above, on 29 May 1985, that is, long after the expiry of the period of 150 days.
4. In Civil Appeal No.12 of 1987, which arises out of Writ Petition No. 21 of 1986, the appellant Md. Moslem, Jetty Supervisor of the Corporation, challenged an order of the Corporation dated 2 September 1984 provisionally removing him from service taking the similar ground that the specified time limit of 120 days long expired before the impugned order was passed. In his case the Charge-sheet was communicated to him on 27 November 1981, inquiry report was submitted on 13 August 1982 but the provisional order of removal was made on 2 September 1984.
5. A common ground taken by these three appellants is that their respective proceedings were drawn by the Corporation under Rule 3 of the Government Servants (Discipline and Appeal) Rules, 1976, inquiry was held thereunder but during the pendency of their proceedings these Rules were repealed by the Government Servants (Discipline and Appeal) Rules, 1984, which came into force on 20 July 1984. By Rule 26 of the Rules of 1984, the proceedings which were pending under the Rules of 1976, were saved and continued to be disposed of under the Rules of 1984. Rule 7(11) of the Rules of 1984 provides that if a proceeding is not concluded within 120 days from the date of communication of the charge to the accused or within 150 days from the date of his suspension, whichever is earlier, the accused shall stand discharged from the charge. This period expired in each of these three cases; consequently, it is contended that the impugned orders passed after the expiry of the time limit are invalid having no legal effect.
6. All the Writ-Petitions were contested by the Corporation, (respondent) whose main ground of defence was that the provisions of the Rules of 1984, which came into force during the pendency of the proceedings against the appellants, were not applicable in 'to to' to the cases of the appellants, but were to be applied "as far as may be". That is, it was not possible to apply the provisions as to concluding the pending proceeding within the specified time since this period expired long before the new Rules came into force. The Corporation stressed that the proceedings were drawn under the Rules of 1976 which did not provide for any time limit, such as 120 days from the date of submission of charge sheet or 150 days from the date of suspension of the accused. Another ground taken by the Corporation, rather halfheartedly, was that the Government servants (Discipline and Appeal) Rules, whether the new ones or the old ones, are not applicable to the appellants, petitioners who are employees of the Corporation and are not Government Servants. The Corporation tried to explain that in the absence of any Service Rules for their employees the Corporation adopted the Government Servants (Discipline and Appeal) Rules as a mere "working arrangement" for their guidance and that these Rules got no statutory force so far as the Corporation's employees are concerned.
7. So far as the second ground of the Corporation is concerned, the High Court Division rejected it m a clear finding that the Corporation by Office Circulars, act and conduct, adopted the Government Servants (Discipline and Appeal) Rules for their employees and that they applied these Rules in drawing he proceedings, holding enquiries and in issuing second show cause notices; as such they are bound to apply the rules for concluding the proceedings. the High Court Division however upheld the other contention of the Corporation that the provisions of Rule 7(11) of the Rules of 1984 relating to "automatic discharge" of the accused from the Charges on the expiry of the specified time are not applicable to the instant cases and that the impugned orders disposing of the proceedings beyond the specified periods do not suffer from any legal infirmity. In this view of the matter, all the Writ-petitions were dismissed.
8. Leave was granted in each of these cases to see whether the interpretation put to the Rules of 1984 by the High Court Division is correct, reasonable and in accordance with the established principles and rules of construction. In addition to this question as to interpretation, another ground involving facts was taken in Civil Appeal No. 12 of 1987. It is that the departmental inquiry on the basis of which the accused appellant (Md. Moslem) was provisionally removed was not an enquiry in the eye of law since it was held behind his back without giving him any opportunity to defend himself. Respondent-Corporation appeared and contested each of these three appeals.
9. Mr. Rafiq-ul-Huq, learned Advocate has appeared for the appellants and Mr. Monowaruddin, learned Advocate has appeared for the respondent-Corporation. We have heard their arguments at considerable length and our decisions are being given instantly.
10. It may be noted that the respondent-Corporation did not file any cross-appeal challenging the High Court Division's decision that the Government Servants (Discipline and Appeal) Rules, both old and new, are applicable to the Corporation's employees by adoption as well as by acts and conduct. Mr. Monowaruddin, learned Advocate for the respondent has only contended that if these Rules were to be applied in these cases they should be applied in all respects, such as, in respect of the provisions for appeal and revision against the impugned orders of the Corporation. He has referred to Rule 16 which provides for appeal from and Rule 23 which provides for revision of, the impugned orders of removal of the appellants; but this alternative forum not being gone through, the Writ petitions are not maintainable, he has contended. We do not think that there is any substance in this contention, for, if the writ jurisdiction is sought to be invoked raising purely a question of law or interpretation of statute, as in these cases, availability of an alternative remedy will not stand in the way. Contention of Mr. Monowaruddin that the Writ-petitions are incompetent is therefore rejected.
11. The main question in these appeals centres on the applicability in these appeals of the provision of time-limit and automatic discharge of the accused contained in Rule 7(11) of the new Rules, namely, the Rules of 1984, which came into force from 20 July 1984. This Rule is quoted below:
"7. (11) In case of failure of the authority to take decision within one hundred and twenty working days from the date of communicating the charges under these rules or within one hundred and fifty working days from the date the Government Servant is placed under suspension, whichever is earlier, the accused shall stand discharged of the charges brought against him and in such event the persons responsible for such failure shall be proceeded against under these rules."
Rule 26 of the Rules of 1984 provides for repeal and savings, relevant part of which is quoted below:
"26. Repeal and savings.- (1) The Government Servants (Discipline and Appeal) Rules, 1976, are hereby repealed.
(2) Such repeal shall not affect the previous operation of the said rules or any thing done or any action taken thereunder, and any proceedings under the said rules pending at the commencement of these rules shall be continued, and disposed of, as far as may be, in accordance with the provisions of these rules."
12. Proceedings against the appellants were drawn under the Rules of 1976 and they were pending when these Rules were repealed by the Rules of 1984. But in spite of the repeal the pending proceedings were continued to be disposed of as far as possible under the repealing Rules. It is the repealing Rules (of 1984) which contained the mandatory provision for disposal within a specified time, whereas there was no such provision in the repealed Rules--under which the proceedings were drawn. The specified period under the new Rules is 120 days from the date of communication of the charge to the accused or 150 days from the date of his suspension, whichever is earlier. This period expired long before the new Rules were made and put into effect. If these Rules are applied to the pending proceedings then the appellant stood discharged on the date of coming into force of these Rules-on 20.7.1984. Now the question is whether this was the intention of the Legislature in enacting sub-rule (2) of Rule 26 of the new Rules. The learned Judges of the High Court Division, on consideration of the rules, concluded that this was not the intention of the Legislature and that is why the qualifying clause-as far as may be-has been used in the new Rules. Mr. Rafiq-ul-Huq, learned Advocate for the appellants, has contended that when the intention of the new enactment is to provide for disposal of proceedings without undue delay, but within a specified time, this intention can be best fulfilled by giving a reasonable interpretation lo the provision of time limit and this can be done if the specified time is counted from the date of coming into force of the new Rules, that is, 20.7.84. But charged, for the impugned orders were passed several months after 20.7.84. The learned Judges did not accept this interpretation and observed that "this would amount to rule making" on the part of the court. The learned Judges further observed:
"We cannot read into the rules what is not there. A legal fiction can be created only by a statute and it is not open to us to create a legal fiction by interpreting a rule. If the pending proceedings were to be covered by sub-rule (11) of rule 7, then clear words ought to have been employed to bring their cases within the ambit of the new rules."
13. At the time of hearing of these appeals before us, the learned Counsel for the appellants brought to our notice further change in the law. The Rules of 1984 were repealed by the Rules of 1985 -Government Servants (Discipline and Appeal) Rules, 1985- which came into force on 20 August 1985. It appears that the provisions of these two Rules 1984 and 1985, contain identical provisions in many respects; but the Rules of 1985 have done away with the expression "as far as may be" which was there in the Rules of 1984. This changed position has been contained in Rule 27 which is quoted below (relevant Portion):
"27. Repeal and savings.- (1) The Government Servants (Discipline and Appeal) Rules, 1984, are here by repealed.
(2) Such repeal shall not affect the previous operation of the said rules or anything done or any action taken thereunder and any proceedings under the said rules pending at the commencement of these rules shall be continued and disposed of in accordance with the provisions of these rules."
Mr. Rafiq-ul-Huq has then referred to sub-rule (9) of Rule 7 of the Rules of 1985 which are corresponding to, and have replaced Rule 7(11) of the Rules of 1984. Sub-rule (9) is quoted below:
"7. (9) In case of failure of the authority to take final decision in a case under this rule within one hundred and fifty working days from the date of communicating the charge, the accused shall automatically be discharged of the charge brought against him and in such event, the person or persons responsible for such failure shall have to explain the reason therefore and, if the explanation is not found satisfactory he or they may be proceeded against on charge of inefficiency under rule 3(a) (iv)."
14. Mr. Rafiq-ul- Huq, on the basis of the Rule 27(2) of the Rules of 1985, which may better be called the existing rules, argues that the pending proceedings should be disposed of under the existing Rules and since there is no qualifying clause therein-such as 'as far as may be" the mandatory provision for concluding a proceeding within the specified time must be applied and this specified time having already expired the appellants stand discharged from the charges against them. Mr. Rafiq-ul-Huq further argued that the Rules of 1985 come into force during the pendency of the Writ-Petitions and as such, these petitions should have’ been disposed of by the High Court Division under these existing Rules. The learned Counsel has argued that even now the existing Rules may be looked into by this Court as the appeals arising out of those Petitions are pending. When an appeal is pending, the whole matter is reopened for fresh hearing and as such this Court should take into consideration the subsequent events, facts and alteration of law, he has further argued. The appellants then filed Supplementary- Affidavits taking the ground that their appeals should be disposed of under the Rules of 1985 and also giving further fact those appellants was finally removed from service by order dated 4 May 1987 after High Court Division's judgment on 10 March 1987.
15. The learned Counsel for the appellants has referred to a number of decisions in support of his contention that the court should decide an appeal in the light of the existing law. In the case of Shyamakanta Lal v. Rambhajan, AIR 1939 FC 74, it has been held that the Federal Court in exercise of its appellate jurisdiction can remit a case to High Court with a declaration that there shall be substituted for the judgment of the High Court a judgment which recognises the state of the law which comes into force while the appeal is pending. In the case of Lachmeshwar Prasad Shukul v. Keshwar Lai Choudhury & ors., AIR 1941 FC 5, the Federal Court observed that the appellate court is entitled to take into account the facts and events which have come into existence after the decree appealed against; consequently, the appellate court is competent to take into account legislative changes since the decision in appeal was given and that its powers are not confined only to see whether the lower courts' decision was correct according to law as it stood at the time when this decision was given. In the case of M/s. M. Laxmi & Co. v. Dr. Anant R. Deshpande, AIR 1973 SC171, it has been held that the Court can take notice of subsequent events to shorten litigation, to preserve rights of both the parties and to serve the ends of justice. In the case of Amarjit Kaur v. Pritam Singh and others, AIR 1974 SC 2068, it has been observed that the Court should take into consideration the change of law in a pre-emption case during the pendency of appeal and dismissed the appeal by applying the new law which barred the passing of any decree in a preemption suit which was earlier decreed by the trial court under the law which existed when the suit was filed.
16. We need not discuss in detail the principle of law as applied in the cases mentioned above, and we accept the arguments of the learned Counsel for the appellants that this Court may take into consideration the subsequent change of law- the replacement of the Rules of 1984 by those of 1985-for disposal of the pending proceedings. For, it is now a settled law that an appeal is re-hearing of the case and that rights of parties thereto are to be determined according to the law as it stands. This is also necessary for shortening litigations keeping in view the rights of parties under the law which is enacted since the decision appealed from. But the question before us is whether the Rules of 1985 admit of, in the facts of the cases, any such interpretation as to give any benefit to the appellants. Rule 7(9) of the Rules of 1985 provides for automatic discharge of the accused if the authority fails to take final decision within 150 working days from the date of communicating the charge to him. Rule 27 (2) of said Rules provides that the proceedings drawn under the previous Rules (Rules of 1984) and pending at the commencement of the Rules of 1985 shall be continued and disposed of in accordance with the provisions of these Rules (of 1985). Here again, the same difficulty arises; the period of 150 days from the date of communication of the charges had expired long before the Rules of 1985, like the Rules of 1984, came into effect. If the specified time limit of 150 days is to be applied in these pending proceedings, from what point of time this specified period should be counted? Mr. Rafiq-ul-Huq suggests that the period should be counted from the date the Rules come into effect- that is, from 20 August 1985. But the Rules expressly do not say so. What they say is that any pending proceeding under the said rules, shall be disposed of under these rules. In other words, if a proceeding had been drawn under the Rules of 1984 and was pending on 20.8.85 then this provision will apply. But the proceedings against the appellants were not drawn the Rules of 1984. As such the provision of discharge cannot be applied therein. These proceedings were drawn under the Rules of 1976 and were pending when the Rules of 1984 came into force. In the provisions for automatic disposal under the Rules of 1984 the qualifying clause "as far as may be" was inserted obviously because in the previous Rules there was no such provision; but ho such qualifying clause was necessary in the similar provisions of the Rules of 1985 as the same time-limit was there in the previous Rules-Rules of 1984. It is impossible to apply the provision of time-limit under the Rules of 1985 in a proceeding which was drawn under the Rules of 1976.
17. Mr. Rafiq-ul-Huq then went back to the Rules of 1984 and insisted on a reasonable construction of rules 7(11) and 26(2) thereof. He has argued that the intention of the Legislature in making the provisions for automatic discharge on the expiry of the specified period is to prevent the authorities from keeping disciplinary matters pending for unreasonably long periods thereby aggravating the sufferings of the accused employees. This intention, he has pointed out, is clear from the penal provision to the effect that if the person responsible for failure to comply with this provision within the time limit, he himself shall be liable to disciplinary action. We hardly find anything to disagree with the learned Counsel that the intention of the Legislature is quick disposal of disciplinary proceedings. But the provision for automatic discharge, along with the penal provision, is prospective in operation. Mr. Rafiq-ul-Huq contends that the Legislature intended that the provision for automatic discharge be applied in the pending proceedings as well and that these provisions should be construed in such a way as to give effect to this legislative intent. But it should be remembered that the intention of the Legislature is to be derived from the words used in the statute, but where the language in its ordinary meaning leads to any manifest contradiction of, the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words (Maxwell 12th Edition, 228). Mr. Rafiq-ul-Huq, as already stated before, proposes that the time limit (of 120 days from the date of communication of the charge or 150 days from the date of suspension) may be counted from the date of coming into operation of the Rules, 1984. We find it difficult to accept this construction, for, had the Legislature intended so it could have done it by making an express provision in the Rules. Mr. Rafiq-ul-Huq argues that if no time limit is observed in the pending proceedings the accused will be left to the mercy of the authorities who will be at liberty to prolong the proceeding for an indefinite time. Theoretically speaking, the authorities may prolong the proceedings, but if they act malafide, then such act may be questioned in court, for an act done malafide is an act done without jurisdiction.
18. In the instant cases, as has been explained by Mr. Monowaruddin, the authorities did not make any unnecessary delay in disposing of the proceedings. The proceedings which were continued on repeal of the 1976 Rules, under which they were drawn, are left to be disposed of under the subsequent Rules 'as far as may be'. And Rules of 1985 do not improve the appellant’s case.
19. For the reasons given above, interpretation of the Rules as given by the High Court Division is found to be correct and no interference therewith is called for. But in Civil Appeal No. 12 of 1987 a question involving facts has been raised. Appellant Md.Moslem has alleged that the enquiry on the basis of which he was provisionally removed from service was held behind his back and as such it is not an enquiry in the eye of law. This ground was taken in his Writ-petition also, but it was not taken into consideration because there the High Court Division decided all the Writ-Petitions on a common question of law as discussed above. That is why it has been urged before us and leave was granted by us specifically mentioning this ground. But the respondent did not controvert it, nor did Mr.Monowaruddin contend before us that the respondent, Corporation intends to show that the allegation is groundless and that the enquiry was held and witnesses were examined in presence of the appellant.
20. We have gone through the Writ-petition and come across the charge-sheet and the report of inquiry. These papers show that the appellant, Jetty Supervisor, was charged with the missing of two bales of cotton yarn from a godown of which he was in charge, that he worked directly under a Store-officer, that six security guards gave round the clock duty by rotation, that the missing of two bales of yarn took place during a period 16 days when one Store-officer was handing over charge to his successor during which period the godown was opened and closed off and on, while the key was in the appellant's custody. All these 8 persons, the Store-officer, the six Guards and the appellant, Supervisor, were proceeded against being suspected of the missing of the goods "during the period of 16 days". They deposed against each other, but behind others back; the appellant was not present when his co-accused persons deposed against him. In addition the Store-officer made a report absolving himself but implicating the appellant. No opportunity was given to the appellant to cross-examine any of the co-accused, witnesses. The report of the enquiry says that "it is difficult to fix up the responsibility for the theft or missing" and observed that "both the Officer and the Supervisor appeared to be responsible," Both the Officer and the Supervisor were held guilty but the former was given light punishment of stoppage of increment for one year, and the appellant was removed from service. Be that as it may, since the enquiry was held behind the appellant's back, it is not an enquiry in the eye of law and as such the order of punishment on the basis of this enquiry is not sustainable in law. Since the facts are not disputed, the Writ-Petition need not be remanded to the High Court Division for determination of the question raised. The appellant is entitled to discharge from the charge and his appeal before us should be allowed.
21. As to Civil Appeal Nos. 10 and 11 of 1987, though we are not interfering with the impugned orders of provisional removal, now made final, we find that the nature of allegations against the appellants, though found established by the Corporation, does not appear to be so grave as to justify the extreme penalty of removal from service. The allegation against appellant Abdul Hai who was Senior Executive at Iswardy Office (Appeal No. 10 of 1987) is itself vague in nature. It is his "inefficiency, misconduct and corruption". It is alleged that he disposed of some bales of fertilizers in violation of Executive Instructions issued from the Headquarters at Dhaka. In his explanation he explained that disposal of the goods by him did not come in conflict with any Instructions and directions and that from the disposal of the goods the Corporation did not incur any loss, allegedly of Tk.30,000/-, as the sale was held according to the previous price rates. On a similar charge of "inefficiency, misconduct and corruption' he was once before removed from service by the respondent by an order dated 12 April 1978, which he challenged by a writ petition and got remedy by way of reinstatement in appeal to this Court. Decision in the appeal has been reported in 32 DLR (AD) 65. He apprehends that the authorities out of grudge drew the instant proceeding which resulted in the impugned order of provisional removal. We are not expressing any opinion about this apprehension, but we find that the nature of allegation, found proved, docs not call for the extreme punishment and that the authorities have got power to modify the order by awarding some lesser punishment. Similar charge of "inefficiency, misconduct and corruption" was brought against appellant Md. Wazed Ali who was Assistant Store-Officer at Tejgaon Godown (Civil Appeal No. 11 of 1987). His fault was that he made three days delay in lodging ejahar to the police when theft or misappropriation of stainless blades worth 2.36 lacs taka was detected. His punishment also warrants consideration whether such punishment is inflicted in the facts and circumstances of the case. Subject to these observations, Appeals No. 10 and 11 of 1987 are dismissed. Appeal No. 12 of 1987 is allowed; the impugned order of the High Court Division is set aside: his Writ-Petition No. 21 of 1985, is allowed and the impugned order of his provisional removal dated 2.9.84 along with the order of its confirmation dated 28.10.85 is declared to have been passed without any lawful authority and to be of no legal effect.
No order as to costs.