Case No: Civil Appeal No. 236 of 2002
Judge: M. M. Ruhul Amin ,
Court: Appellate Division ,,
Advocate: Dr. M. Zahir,,
Citation: 59 DLR 2007 (AD) 215
Case Year: 2007
Appellant: Mokbul Hossain (Md)
Respondent: Government of Bangladesh
Subject: Administrative Law,
Delivery Date: 2006-8-9
Syed JR Mudassir Husain CJ
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzul Islam J
Mokbul Hossain (Md)
Government of Bangladesh and others
August 9, 2006.
Administrative Tribunals Act (VII of 1981)
The conviction and sentence of a public servant which operates as a disqualification against him refers to conviction and sentence by ordinary courts and not by Martial Law Courts. The conviction and sentence by the Military Court cannot be a bar for getting his arrear salary, especially after withdrawal of the Martial law itself. In the facts and circumstances the Administrative Appellate Tribunal did not consider the matter in its proper prospective and accordingly, arrived at a wrong decision.
Cases Referred To-
Monoranjan Mukherjee vs Election Commission and others, 1990 BLD 17 = 41 DLR 484.
Dr. M Zahir, Senior Advocate, instructed by Amir Hossain Chowdhury, Advocate-on-Record- For the Appellant.
Ex parte-The Respondents.
Civil Appeal No. 236 of 2002
(From the judgment and order dated 14-12-2000 passed by the Administrative Tribunal in Appeal No. 51 of 1998).
This appeal by leave is directed against the judgment and order dated 14-12-2000 passed by the Administrative Appellate Tribunal in AAT Appeal No. 51 of 1998 dismissing the appeal.
2. The case of the appellant, in short, is that he joined as Technical Inspector of Food on 28-7-1981. While serving as such he was placed under suspension on 17-11-1981. In a Martial Law Case he was convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Taka 75,000 by judgment and order dated 20-8-1982. On his prayer, unexpired portion of the sentence of rigorous imprisonment was remitted on 26-4-1984. Thereafter, he was reinstated in service by the authority and the period of his absence was treated as extraordinary leave without pay. The appellant accordingly, submitted joining report on that very day. By an order dated 12-4-1995 of the Regional Controller of Food, Rajshahi he was transferred to Sirajganj. He joined accordingly at Sirajganj and submitted a representation to the Government on 20-4-1995 for arrear salary and allowance, which was refused to him earlier. In the meantime, his current salary bills were submitted to the respondent No. 4, the District Accounts Officer, Sirajganj, who returned the bills without payment.
3. The appellant then filed a case before the Administrative Tribunal, Bogra for getting financial benefits for the period of his absence from duty from 17-11-1981 to 31-3-1995 and also for a declaration that the Ministry of Finance had no jurisdiction to deny his pay and allowances since the date of his reinstatement in service on 1-4-1995.
4. The learned member of the Administrative Tribunal, Bogra refused to grant the appellant's arrear salary and allowances for the period of his absence on the ground that he was not honorably acquitted. But the Tribunal directed the respondents to pay the appellant his current salary with allowances beginning from the date he had been reinstated by the authority.
5. Being aggrieved the appellant filed AAT Appeal No. 51 of 1998 before the Administrative Appellate Tribunal, Dhaka and the appeal as a whole was dismissed and thereupon AT Case No. 66 of 1997 was dismissed.
6. Leave was granted to consider the submission that the Administrative Appellate Tribunal erred in law in setting aside the judgment of the Administrative Tribunal against which the aggrieved party had not preferred any appeal and, as such, there was miscarriage of justice and the submission that the Administrative Appellate Tribunal erred in holding the view that the appellant sought different reliefs from two different sets of respondents but actually, the appellant's claim is against the Government only and, according to the finance rules, bail must be submitted to the concerned accounts officer and the bills were submitted to the concerned accounts office and hence there is no multi-fariousness as found by the Administrative Appellate Tribunal and the further submission, that the Administrative Appellate Tribunal erred in dismissing the case for alleged violation of the proviso to section 4(2) of the Administrative Tribunal Act, is as much as a departmental appeal was filed with regard to arrear salary and no useful purpose will be served if the appeal for current salary would have been filed.
7. We have heard Dr. M Zahir, the learned Counsel for the appellant, and perused the judgment of the High Court Division and other connected papers.
It is not disputed that the appellant entered Government Service as Technical Inspector of Food on 28-7-1981 and while serving as such at Naogaon he was placed under suspension on 17-11-1981 and he was convicted in a Martial Law case by a Martial Law Court, Rajshahi by judgment and order dated 20-8-1982 and sentenced to suffer rigorous imprisonment for 2(two) years and to pay a fine of Taka 75,000. Subsequently, on his prayer, unexpired portion of the sentence was remitted on 26-4-1984. Thereafter, by an order dated 9-3-1985 he was reinstated in service and accordingly, he submitted his joining report. He was then transferred to Sirajganj and he joined there. After joining at Sirajganj, he made representation to the authority for arrear salary and allowances but the prayer was rejected on 14-7-1988. In the meantime, his current salary bills submitted to the District Accounts Officer, Sirajganj were also returned without payment.
8. The Administrative Tribunal allowed the appeal in part allowing his salary for the period he actually served after reinstatement in service by the proper authority but dismissed his prayer for arrear salary. The Administrative Appellate Tribunal dismissed the appeal as a whole on the ground that Ministry of Finance having not been made a party in the proceeding, the appellant was not entitled to get his salary and allowances for the period he actually served. It appears that the District Accounts Officer, Sirajganj who refused to pay his salary for the period he actually served after reinstatement in service was made a party. There is also nothing on record to show that the Ministry of Finance ever directed the District Accounts Officer not to pay the salary and allowances of the appellant for the current month. Therefore, in our view, the Ministry of Finance is not a necessary party in the background of the facts and circumstances of the instant case and the District Accounts Officer, Sirajganj who is already a party is a necessary party. Hence, in our view, the Administrative Appellate Tribunal was not justified in dismissing the appeal regarding the claim of the appellant for the pay and allowances for the period he served after reinstatement in service.
9. The Administrative Appellate Tribunal dismissed the appeal of the appellant regarding his prayer for arrear salary on the ground that although in the case of Monoranjan Mukherjee Vs Election Commission and others reported in 1990 BLD 17 = 41 DLR 484 it was decided that after lifting of Martial Law, conviction by the Martial Law Court no longer casts a shadow under the ordinary law but the appellant was not honourably acquitted and accordingly, rejected his prayer for arrear salary also.
10. In the 1990 BLD 17 case, it was observed:
"Martial Law is not a part of the constitutional scheme of this country. It is an extra-constitutional dispensation. It is a temporary measure, a short-term arrangement. It meets only an interim need. When it leaves, it usually legalises all past actions for purposes of immunity, with the tacit acknowledgment that its interference with the constitutional process is an aberration and needs to be condoned. But while leaving, the Martial Law does not leave a trail of disqualification. It is good as long as it lasts, but with its departure it no longer casts a shadow upon the ordinary laws of the country."
11. In our view, the conviction and sentence of a public servant which operates as a disqualification against him refers to conviction and sentence by ordinary courts and not by Martial Law Courts. Therefore, the conviction and sentence by the Military Court of the appellant, which was subsequently remitted, cannot be a bar for getting his arrear salary, especially after withdrawal of the Martial Law itself.
12. Therefore, in the facts and circumstances of the case and in view of the discussion made above, we are of the opinion that the Administrative Appellate Tribunal did not consider the matter in its proper perspective and accordingly, arrived at a wrong decision.
The appeal is allowed without any order as to cost.