Md. Anwar Hossain Vs. Superintendent of Police, Khulna and others

Case No: Civil Petition for Leave to Appeal No. 549 of 2006

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Sufia Khatun,,

Citation: VI ADC (2009) 780

Case Year: 2009

Appellant: Md. Anwar Hossain

Respondent: Superintendent of Police, Khulna and others

Subject: Administrative Law,

Delivery Date: 2008-1-23

Md. Anwar Hossain

Vs.

 Superintendent of Police, Khulna and others,

 VI ADC (2009) 780

 

 

Supreme Court
Appellate Division

(Civil)
 
Present:
MM Ruhul Amin J  
Md. Tafazzul Islam J
Md. Abdul Matin J  
 
Md. Anwar Hossain……….........Petitioner

Vs.

Superintendent of Police, Khulna and others.........Respondents
 
Judgment        
January 23, 2008.  

Administrative Tribunal Act, 1980

Section 4(2)
It is conceded that appeal was not rejected then in the absence of any decision of the higher administration authority on the departmental appeal filed by the petitioner, the filing of Administrative Tribunal case no.50 of 1993 before the Administrative Tribunal was premature and further  the respondent No.1 at para 11 of his written statement filed before the Administrative Tribunal which shows that the departmental appeal dated 26.05.82 preferred before the respondent No.2 was rejected on 08.11.82 in as much as there is no categorical assertion by the petitioner that his appeal was not rejected by the respondent No.2 on the above date and, further any subsequent representation in writing filed by the petitioner to the respondent No.3, the highest authority.

Cases Referred To-
Govt. of Bangladesh and others vs. Md. Sharufuddin Mollahas 54 DLR (AD) 120.
 
Lawyers Involved:
Sufia Khatun, Advocate-on-Record-For the Petitioner.
Not represented- the Respondents.

Civil Petition for Leave to Appeal No. 549 of 2006.
(From the judgment and order dated 23.3.2006 passed by the High Court Division in Administrative Appellate Tribunal Appeal No. 121 of 1995.)
 
Judgment:
                 Md. Tafazzul Islam J. - This petition for leave to appeal is directed against the judgment and order dated 23.3.2006 of the Administrative Appellate Tribunal Dhaka passed in Administrative Appellate Tribunal Appeal No.121 of 1995 allowing the appeal upon setting aside the judgment and order dated 24.6.1995 of the Administrative Tribunal Dhaka passed in Administrative Tribunal Case No.50 of 1993 allowing the case.

2. The petitioner filed the above Administrative Tribunal Case No.50 of 1993 on the averments that Daulatpur P.S. Case No.8 dated 3.3.1980 was started against him for receiving bribe and after investigation, charge sheet was submitted against him and the petitioner was put under suspension and after 9 months and 8 days from the date of suspension the respondent No.1 framing charge against the petitioner asked him to submit reply within 7 days which the petitioner duly complied and then though the petitioner prayed for stay of the departmental pro­ceeding against him till disposal of the criminal case but the said prayer was rejected; though the allegations made against the petitioner were not proved the Investigating Officer submitted his report on 30.4.1982 giving opinion to remove the petitioner from service and then the respondent No.1 removed the petitioner from service. As against that the petitioner preferred departmental appeal on 26.5.1982 before the Deputy Inspector General of Police, Khulna Range, the respondent No.2, but the appellate author­ity did not communicate to the petitioner any result of the above appeal and so the petitioner filed an application to the Inspector General of Police, the respon­dent No.3, praying for reinstating him in his service but by order dated 24.1.93 the above prayer was rejected. The respondent No.1 contested the above case and filed written objection contending that the enquiry against the petitioner was duly held and the petitioner being found guilty therein, was removed from his service and no illegality or irregularity was committed in the departmental proceeding. The Administrative Tribunal, after hearing, allowed the case and ordered reinstate­ment of the petitioner in his service with all financial benefits. The respondent No.1 then preferred Administrative Appellate Tribunal Appeal No.121 of 1995 and after hearing by the impugned judgment and order the same was allowed.

3. The learned Advocate-on-Record for the petitioner submitted that during inquiry the witnesses of the respondents failed to prove the allegation of receiving bribe of Tk. 500/- by the petitioner and the Administrative Tribunal considering the facts and circumstances rightly ordered for reinstatement of the petitioner but the Administrative Appellate Tribunal, with­out discussing as to whether the guilt of the petitioner has been proved, on mere presumption, observed that the appeal of the petitioner before the appellate authori­ty was rejected earlier than 6.1.1993 and further the Administrative Appellate Tribunal, without reversing the findings of the Administrative Tribunal as to the point of limitation,  erroneously  allowed the appeal reversing the judgment and order of the Administrative Tribunal.

4. As it appears the Administrative Appellate Tribunal on consideration of the materials on record, found that even though the petitioner conspicuously kept silent as to on which exact date his afore­said appeal was rejected by the respondent No.2 but he, in his representation dated 21.07.92 addressed to the respondent No.3 property for reinstating him in service, at para 11 mentioned that "পুলিশ সুপার কর্তৃক চাকুরী হইতে অপসারন করার পর ডি,আই,জি অব পুলিশের নিকত হইতে আপীল করিয়াও কোন সুফল পাইনি" which indicates that his aforesaid depart­mental appeal dated 26.05.82 has already been rejected and further even if it is con­ceded that such appeal was not rejected then in the absence of any decision of the higher administrative authority on the departmental appeal filed by the petition­er, the filling of Administrative Tribunal Case No.50 of 1993 before the Administrative Tribunal was premature and further the respondent No.1, at para 11 of his written statement filed before the Administrative Tribunal, stated that "অভিযুক্ত এস, আই কে বিধি মোতাবেক ১৮-৫-৮২ তারিখ হইতে চাকুরী হইতে অপসারন করা হয়। তাহার বিরুধে আনীত অভিযোগ তদন্তে প্রমানিত হওয়ায় ততকালীন উপমহা পুলিশ পরিদর্শক খুলনা বেঞ্ছ, খুলনা মহোদয় অভিযুক্ত প্রাক্তন এস,আই, আনোয়ার হোসেন এর আপীল আবেদন নাকচ করেন যাহার আদেশ নং-৬৬৮৭ তারিখ ৮/১১/৮২ ইং ।" which shows that the above depart­mental appeal dated 26.05.82 preferred before the respondent No.2 was rejected on 08.11.82 in as much as there is no cat­egorical assertion by the petitioner that his appeal was not rejected by the respondent No.2 on the above date and, further any subsequent representation in writing filed by the petitioner to the respondent No.3, the highest authority, for reinstating him in his service can not be construed as a departmental appeal to the higher admin­istrative authority as contemplated in sec­tion 4(2) of the Administrative Tribunal Act, 1980 and accordingly the departmen­tal appeal dated 26.05.82 preferred by the petitioner before the respondent No.2 against the order of the respondent No.1 having been rejected on 8.11.82, the peti­tioner was required of file his Administrative Tribunal Case before the Tribunal below within six months from the date of rejection of his appeal as pro­vided by the proviso to section 4(2) of Administrative Tribunal Act, 1980 but admittedly the petitioner filed Administrative Tribunal Case No. 50 of 1993 on 03.03.93 and as such the above case is hopelessly barred by limitation as having not been filed within the statutory period of limitation and further as to the point that the respondent No.1 is not the competent authority to pass the impugned order of removal upon the petitioner, in the case of Govt. of Bangladesh and other Vs. Md. Sharufuddin Mollahas reported in 54 DLR (AD) 120 it has been held that punishment like dismissal or removal of a Sub-inspector of Police can be awarded by the Superintendent of Police and so there is no material illegality on the part of the respondent No.1 in conducting the depart­mental proceeding and in inflicting impugned punishment against the peti­tioner.

5. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infir­mity in the above decision so as to call for any interference.

The petition is dismissed.
Ed.