Mst. Razia Akhter Vs. Bangladesh and others, 3 LNJ (2014) 170

Case No: Writ Petition No. 10437 of 2012

Judge: M. Moazzam Husain,

Court: High Court Division,,

Advocate: Mr. Md. Motahar Hossain,Mr. Mohammed Mutahar Hossain,Mr. Md. Aminul Islam,,

Citation: 3 LNJ (2014) 170

Case Year: 2014

Appellant: Mst. Razia Akhter

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2013-09-09


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

 
Present:
M. Moazzam Husain, J.
Md. Badruzzaman, J.
 
Judgment on
9th September, 2013
 
Mst. Razia Akhter ...Petitioner
-Versus-
Government of Bangladesh and others ...Respondents
 
BADC Employees’ Service Regulations, 1990
Regulation 50
Public Servants (Dismissal on Conviction) Ordinance (V of 1985)
Section 3(3)
Departmental authority is within its powers to proceed with disciplinary proceedings side by side with criminal proceedings grounded on the same facts. But the power to proceed with disciplinary proceedings simultaneously cannot be construed to mean that they can award punishment proposed to be given without waiting for the decision of the court.
From a bare reading of the law it is difficult to conclude that power conferred to continue with departmental proceeding side by side with criminal proceeding means, in any view, power conferred to execute the punishment proposed to be given before conclusion of the criminal trial. Rather by plain meaning it suggests that the law is intended to avoid conflict between decisions coming out of departmental and criminal proceedings grounded on the same facts. It follows by necessary implication that decision given by a court on charges grounded on common facts matters significantly and weigh with the decision to be taken by the department. The employer, therefore, is not free to pass its final verdict before the verdict of the court.  It must reconcile its own opinion with the verdict of the court according as the circumstances of the case demands. The outright rejection of an acquittal basing on power to continue parallel departmental proceedings, therefore, is unacceptable being contrary to law. The two proceedings, departmental and criminal, grounded on same facts do never interact as independent variables. They vary in varying circumstances. There cannot be any straightjacket formula to be adopted in all cases. . . . (Para-16)
 
Bangladesh Service Rules, Part-I.
Rule 72(a)
An acquittal of charges given by a criminal court on benefit of doubt or, in other words, upon failure of the prosecution to prove its case beyond reasonable doubt amounts to ‘honourable acquittal’ as contemplated in Rule 72(a).
In view of the legal position as it now stands, it is difficult to say mere technical acquittal given for want of evidence or for other formal defects may be called ‘honourable acquittal’.  If the oft-used phrase ‘ honourable acquittal’ is to be read in its proper signification an acquittal to be called ‘honourable’ there should be a trial   and the accused acquitted  on benefit of doubt or, in other words, acquittal is given on the failure of the prosecution to prove the case beyond reasonable doubt. The acquittal on benefit of doubt, as an acquittal on consideration of evidence, should have effect of ‘honourable acquittal’ for the purpose of Rule 72 of the BSR Part-I. . . . (Para-23).
 
Public Servants (Dismissal on Conviction) Ordinance (V of 1985)
Section 3(3)
Acquittal, if  honorable, in effect  wipes out the stigma of misconduct and/or corruption and entitles the indicted employee to reinstatement in service  and  arrear salary and allowances to which he would have been entitled  had he not been dismissed. It is now well settled that when the dismissal is found illegal and unsustainable in law reinstatement in service with arrear salary and allowances is the rule and refusal to allow the privilege is exception to be justified by the employer.
It is now well settled that when the dismissal is found illegal and unsustainable in law reinstatement in service with arrear salary and allowances is the rule and refusal to allow the privilege is exception to be justified by the employer. And acquittal of charges grounded on the same facts, if  honorable, has the same effect that wipes out the stigma of misconduct and/or corruption and entitles the indicted employee to the same privilege and the employee should be so allowed if not otherwise impracticable. . . . (Para-28).
 
BADC Employees’ Service Regulations, 1990.
Regulation 47
Refusal of BADC to treat the period of absence of the dismissed employee (superannuated), acquitted on benefit of doubt in the connected criminal case, as time spent on duty and not to allow him his arrear salary and benefits, is illegal.
BADC cannot afford to take a different stand in respect of reinstatement and payment of dues of an acquitted employee unless barred by express provision of law.    It follows as a logical corollary that if an employee of BADC is acquitted by a competent court allowing him benefit of doubt  the departmental proceeding on the same facts becomes inconsequential and the punishment proposed to be given or even if  given  is superseded.  The employee so acquitted shall be entitled to be reinstated in service provided in the meantime he does not reach the age of superannuation or the post or service is not abolished and also  full pay and allowances to which he would have been entitled had he not been dismissed. It follows by parity of reasoning that the employee so entitled, if meanwhile superannuated, shall be treated by fiction of law as ‘on duty’ as required by Reg. 47, for the purpose of paying off his arrear salary, allowances and other service benefits. . . .(Para-24)
 
Mr. Mohammed Mutahar Hossain, Advocate
. . . For the Petitioner

Mr. Md. Aminul Islam, Advocate
. . . For the Respondent No. 2-3

Mr. Md. Motahar Hossain, DAG
. . . For the Respondents
 
Writ Petition No. 10437 of 2012
 
JUDGMENT
M. Moazzam Husain, J
 
This rule nisi, at the instance of the wife ofone Md. Hassan Ali, an employee of Bangladesh Agricultural Development Corporation, wasissuedasking the respondents to show cause as to why the Memo dated 21.5.2012 issued by Respondent No.4 refusing to reinstate said Hassan Ali (since dead) in his service shall not be declared to have been issued without lawful authority and why they shall not be directed topay to the petitioner thearrear salary, allowances and other benefits to which Hassan Ali would have been entitled but for the suspension and dismissal orders passed against him.

Facts, in brief, are that the petitioner is wife of one Md. Hassan Ali, who was an employee of Bangladesh Agricultural Development Corporation (referred to hereinafter as “BADC”). Hassan Ali was employed as a clerk and later was working as Godown Supervisor, Sherpur Zone of the BADC, under PS- Nokla, District- Sherpur.
 
An allegation of misappropriation was brought against said Hassan Ali. Departmental proceeding was initiated against him and by a Memo dated 18.10.1992 he was placed under suspension during inquiry. After inquiry Hassan Ali was dismissed from service vide an office order dated 12.9.1993 issued by the Executive Engineer, BADC, Sherpur.Meanwhile on 31.5.1993 a criminal case was filed by the District Anti-Corruption Bureau, against him which gave rise to Special Case No. 07 of 1994 of the Court of the Special Judge, Sherpur. The Special Judge upon trial found him guilty and by his judgment and order dated 28.9.2097 convicted and sentenced him to suffer rigorous imprisonment (“RI” for short) for1 year and to pay a fine of Tk. 72,000/-, in default, to suffer RI for 3 years more.

Convict Hassan Ali challenged in appeal the judgment and order of conviction and sentence passed by the trial court which gave rise to Criminal Appeal No. 2225 of 1997, in the High Court Division. A Division Bench of the High Court Division heard the appeal and allowed the same thereby acquitted Hassan Ali by its judgment and order dated 03.7.2008.
 
Having been so acquitted by the High Court Division Hassan Ali made an application on 24.11.2008 to the Respondent No.3 (Chief Engineer, Sech, BADC) narrating the story of acute hardships he was undergoing for want of money and praying for payment of arrear salary and allowances payable to him treating him as an employee reinstated in service.Executive Engineer (Khudra Sech), Jamalpur Region, Jamalpur, took up the matter by reference to a Memo dated 26.11.2008 issued by the Assistant Engineer, (Khudra Sech), Sherpur, and addressed a Memo dated 01.12.2008 to the Superintending Engineer (Khudra Sech) Tangail Circle, asking the latter to take appropriate steps in the light of the judgment of acquittal and application for payment of arrear salary etc. made by Hassan Ali. Thereafter a letter dated 14.1.2009 was issued by Superintending Engineer (Khudra Sech), Tangail, addressing the Additional Chief Engineer (Khudra Sech), Dhaka.And the Additional Chief Engineerin his turn issued a letter dated 02.02.2009 addressing the Chief Engineer (Khudra Sech), BADC, Dhaka, for favor of appropriate steps to be taken on the application made by Hassan Ali.

The Chief Engineer (Res-.3) vide his office Memo dated 09.6.2009 responded saying that Hassan Ali was dismissed from service by an office order dated 12.9.1993 issued by Executive Engineer (Sech), Sherpur Region. No legal step was taken against the order of dismissal. There is no scope of reinstatement or payment of salary etc merely because he has been acquitted in the criminal case.
 
Hassan Ali, however, did not lose heart and continued to pursue the authority for his dues in different ways. Lastly on 16.5.2012 he addressed another letter to Respondent No.4 by reference to his earlier letter dated 24.11.2008 urging upon the latter to consider him as reinstated in service and pay off all the arrear salaries and allowances payable to him.
 
Respondent No.4 in reply given videthe impugnedoffice Memo dated 21.5.2012 informed Hassan Ali that meanwhile the office madeclear its position and at the momentthere was no scope for his reinstatement in service and payment of arrear salary or allowances he prayed for.
 
Soon thereafter, ie, on 30.6.2012 Hassan Ali died leaving his wife, the writ petitioner and six children. His wife on behalf of herself andas constituted attorney of her six children (who by now are major and sui juris) brought this writ petition and obtained the instant rule.
 
Respondent No.2 and 3 (BADC & the Chief Engineer) contested the Rule by filing an affidavit-in-opposition. Theircase is that the petitioner’s husband has failed to challenge the order of dismissal in the departmental forumwhich he could do in an appeal brought under Rule 17(1) of theGovernment Servant (Discipline and Appeal) Rules, 1985. Since law does not bar departmental and court proceedings to continue simultaneously the dismissed employee is not entitled to any service benefit merely by reason of his acquittal in the criminal proceedings initiated on the self-same matter.
 
Mr. Aminul Islam learned Advocate, appearing for the respondents found it difficult to assail the contentions raised by Mr. Mutahar Hossain. He, however, tried to argue that the case of Ferdous Laskar and Nurunnabi are distinguishable as they wereyet to reach the age of superannuation. He tried to indicate that it is difficult for a statutory body like BADC to treat an employee, who has reached the age of superannuation, as reinstated in service in absence of express law or a direction from court. Mr. Aminul Islam by way of repelling the imputation of disregard contended that a body bereft of power to do something cannot be said to have shown disregard by not doing or even by refusing to do that thing. It is, therefore, not correct to say that BADC has shown disregard to the decision given by the court.
 
In the instant case a godown supervisor was dismissed from service as his reply was not satisfactory about short-fall of the various agricultural stuffs stored in the godown under his supervision. He was initially placed under suspension and after completion of inquiry was dismissed from service. Meanwhile a criminal case was started against him on the self-same facts. The case was put to trial and ended in conviction under section 409 of the Penal Code. Finally the godown supervisor was acquitted in appeal. By the time he was acquitted he far exceeded the age of superannuation. A wretched man, as he was, the godown supervisor, however, tried by formal applications to be treated as reinstated in service for the purpose of getting his salary and benefits. His applications were refused by his employer on the ground that the dismissal order not being challenged was still valid. Therefore, there was no scope for reinstatement in service or payment of the money asked for merely by reason of his acquittal from criminal charges.In the milieu he died.
 
The language of refusal is significant and perhaps goes to the root of the problem ie, the co-relation and resultant tension between ‘acquittal’ and ‘reinstatement’ vis-à-vis the employer’s power to put his own house in order.The issue, however, is much deeper than what is up with us in this case and something to be addressed in an appropriate case.
 
In the factual and legal background of this case and deliberations made, the moot question that falls to be considered is:whether the employer can stick to the dismissal order passed in a departmental proceeding although the dismissed employee is subsequently acquitted from the criminal charge grounded on the same facts.
 
Since the dismissed employee was an employee of BADC the answer must be sought at the first instance in the BADC Employees’ Service Regulations.The Service Regulations do not bar departmental proceedings to go side by side with a criminal proceeding but nowhere say that the simultaneity of proceedings accrues any right to the employer to maintain the dismissal order irrespective of acquittal of the dismissed employee from criminal charges grounded on the same facts. Reg. 50, on the contrary, makes it obligatory for the departmental authority towithhold punishment proposed to be imposed till conclusion of criminal trial.To quote the language:
 
৫০। আদালতে বিচারাধীন কার্যধারাঃ-
(১) কোন কর্মচারীর বিরুদ্ধে কোন আদালতে একই বিষয়ের উপর কোন ফৌজদারী মামলা বা আইনগত কার্যধারা বিচারাধীন থাকিলে, তাহার বিরুদ্ধে বিভাগীয় কার্যধারা সমাধানের ব্যাপারে কোন বাধা থাকিবেনা। কিন্তু যদি কর্তৃপক্ষ বিভাগীয় কার্যধারায় উক্ত কর্মচারীর উপর কোন দন্ড আরোপ করার সিদ্ধান্ত গ্রহণ করে, তাহা হইলে উক্ত আইনগত কার্যধারা নিষ্পত্তি বা সম্পন্ন না হওয়া পর্যন্ত এইরূপ দন্ডারোপ স্থগিত থাকিবে।
(২)        ***       ***       ***
(৩)        ***       ***       ***
(৪)         ***       ***       ***
 
From a bare reading of the law it is difficult to conclude that power conferred to continue with departmental proceeding side by side with criminal proceeding means, in any view, power conferred to execute the punishment proposed to be given before conclusion of the criminal trial. Rather by plain meaning it suggests that the law is intended to avoid conflict between decisions coming out of departmental and criminal proceedings grounded on the same facts. It follows by necessary implication that decisiongiven by a court on charges grounded on common facts matters significantly and weigh with the decision to be taken by the department. The employer, therefore, is not free to pass its final verdict before the verdict of the court.It must reconcile its own opinion with the verdict of the court according as the circumstances of the case demands. The outright rejection of an acquittal basing on power to continue parallel departmental proceedings, therefore, is unacceptable being contrary to law.The two proceedings, departmental and criminal, grounded on same facts do never interact as independent variables. They vary in varying circumstances. There cannot be any straightjacket formula to be adopted in all cases.
 
Reg. 47 of the BADC Employees’ Service Regulations says, inter alia, that –if any employee is detained in prison in connection with a criminal offence he will not be entitled to his salary, allowances or other benefits (except subsistence allowance) for the period of his absence from duty. Provided that if he is acquitted of the charges all his dues shall be paid. If all his dues payable to him as salary, allowances and other benefits are paid off he shall be deemed to have been on duty for the period he was absent.To quote the language of the law:
 
ফৌজদারী মামলা, ইত্যাদিতে আবশ্যক কর্মচারীঃ- ঋণ বা ফৌজদারী অপরাধের দায়ে কোন কর্মচারী কারাগারে সোপর্দ হওয়ার কারণে কর্তব্য হইতে অনুপস্থিতি থাকিলে, তাহার বিরূদ্ধে দায়েরকৃত মামলার পরিসমাপ্তি না হওয়া পর্যন্ত এইরূপ অনুপস্থিতিকালের জন্য তিনি কোন বেতন, ছুটিকালীন বেতন বা উক্ত সোপর্দ থাকাকালীন অন্যান্য ভাতাদি (খোরাকী ভাতা ব্যতীত) পাইবেন না। মামলার পরিস্থিতি অনুসারে তাহার বেতন ও ভাতাদি, উক্ত ঋণ বা অপরাধ সংক্রান্ত মামলা নিস্পত্তির পর, সমমবয় সাধন করা হইবে। তিনি অভিযোগ হইতে খালাস পাইলে, অথবা ঋণের দায়ে কারাবরণের ক্ষেত্রে, উক্ত দায় তাহার নিয়ন্ত্রণ বহির্ভূত পরিস্থিতির কারণে উদ্ভব হইয়াছে বলিয়া প্রমাণিত হইলে, তাহার প্রাপ্য বেতন-ভাতাদির টাকা সম্পূর্ণরূপে প্রদান করা হইবে। এইরূপে তাহাকে সম্পূর্ণ টাকা প্রদান করা হইলে, উক্ত অনুপস্থিতিকালের তিনি কর্তব্যরত ছিলেন বলিয়া গণ্য হইবে; এবং উক্ত রূপে প্রাপ্য বেতন-ভাতাদি বাবদ সম্পূর্ণ টাকা অপেক্ষা কম টাকা প্রদান করা হইলে, উক্ত সময় কর্তব্যকাল বা ছুটি বলিয়া গণ্য হইবে, কিন্তু আদেশদানকারী কর্তৃপক্ষ সেই মর্মে নির্দেশ প্রদান না করিলে এইরূপ গণ্য করা হইবে না ।
 
Reg. 47, in its strict literal sense, determines the entitlements of an employee who was out of duty on account of his detention in custody in connection with a criminal case and his entitlement on the event of acquitted from charges as well as conditions and mode of payment of arrear salary and allowances payable under such circumstances. It also empowers the authority to grant full pay and allowances on account of acquittal and uplifts the status of the employee making him entitled to be ‘deemed to have been on duty’, if full pay and allowances are so paid. But Reg. 47 is unclear about his re-instatement in service pursuant to his acquittal in the criminal case.
 
Reg. 46 of the Service Regulations, however, speaks of re-instatement in service with full pay but of those who were not dismissed, removed or reduced in rank. Reg. 46(2) makes Bangladesh Service Rules (shortly, BSR) mutatis mutandis applicable to the employees of the Corporation but only in case of temporary suspension. The case at handis one of dismissal not temporary suspension. Rule 72 of the BSR Part I requires ‘honourable acquittal’ forgrantingfull pay and allowances to which the dismissed employeewould have been entitled had he not been dismissed. The BADC Service Regulations is silent about the nature of acquittal that is needed for granting full pay to the employee acquitted of criminal charges.
 
BADC as a public corporation and essent-ially as an instrumentality of the Government works under the broader governmental objectives and may and indeed does call in aid the laws applicable to the Government servants where the Service Regulations are found inadequate for issues touching upon service conditions of its own employees. BADC Employee’s Service Regulations in Reg. 57 expressly empowers the Corporationso to do.In the fitness of things laws applicable to government servants come to play as of course.
 
So far as the Government servants are concerned co-relation between ‘dismissal’ and ‘acquittal’ generally wavers between the legitimate departmental objectives to bring about discipline in the administration and overriding effect of the decision given by the court. There is no consensus of judicial opinion on this point and views often differ being driven by the apparent differences between the two proceedings in their trappings and objectives.But the two must meet at a certain point so that the affected employees are not pitted against the uncertainty of executive fiat.
 
Sub-section (3) of Section 3 of the Public Servants (Dismissal on Conviction) Ordinance, 1985 says- ‘If a public servant acquitted on in service, provided he has not already attained the age of superannuation or the post or service has not been abolished’. The Ordinance requires a plain acquittal for the purpose of reinstatement.By contrast Rule 72 of the BSR Part I requires ‘honourable acquittal’to grantfull pay and allowances to which the dismissed employeewould have been entitled had he not been dismissed.The Ordinance is made in addition to but not in derogation of any law, rule or regulations for the time being in force. In the sense the provisions of the Ordinance cannot be read in a manner derogatory to the requirements of the Rule.

In view of the legal position as it now stands, it is difficult to say mere technical acquittal given for want of evidence or for other formal defects may be called ‘honourable acquittal’.If the oft-used phrase ‘ honourable acquittal’ is to be read in its proper signification an acquittal to be called ‘honourable’ there should be a trialand the accused acquittedon benefit of doubt or, in other words, acquittal is given on the failure of the prosecution to prove the case beyond reasonable doubt.The acquittal on benefit of doubt, as an acquittal on consideration of evidence, should have effect of ‘honourable acquittal’ for the purpose of Rule 72 of the BSR Part-I.
 
BADC cannot afford to take a different stand in respect of reinstatement and payment of dues of an acquitted employee unless so empowered by express provision of law. It follows as a logical corollary that if an employee of BADC is acquitted by a competent court allowing him benefit of doubtthe departmental proceeding on the same facts becomes inconsequential and the punishment proposed to be given or even ifgivenis superseded.The employee so acquitted shall be entitled to be reinstated in service provided in the meantime he does not reach the age of superannuation or the post or service is not abolished and alsofull pay and allowances to which he would have been entitled had he not been dismissed. It follows by parity of reasoning that the employee so entitled, if meanwhile superannuated, shall be treated by fiction of law as ‘on duty’ as required by Reg. 47, for the purpose of paying off his arrear salary, allowances and other service benefits.
 
In the instant case the authority dismissed Hassan Ali during pendency of a criminal proceeding initiated against him on the same facts, without waiting for the conclusion of the criminal proceeding. An order passed beyond the authority of law is an order passed without jurisdiction and is clearly void. The order of dismissal besides being ex facie illegal and void appears to be grossly arbitrary and oppressive which has harshly operated on a poor employee like Hassan Ali.
 
Husband of the petitioner preferred appeal challenging the conviction and sentence passed on him by the trial court. The court of appeal heard the appeal and allowed the same on merit and thereby acquitted the accused-appellant which necessarily means that Hassan Ali was acquitted on benefit of doubt. More precisely, the prosecution failed to prove its case beyond reasonable doubt which by necessary implication is honourable acquittal. His acquittal, thus, entitles him to reinstatement in service with full pay and allowances. Respondents are not within their powers to refuse reinstatement merely by reason of their right to run a parallel proceeding or by reason of the employee’s failure to challenge the dismissal order.
 
Unfortunately for Hassan Ali, by the time he was acquitted he exceeded the age of superannuation and died too. His monetary entitlements and benefits as an employee of BADC subsist which cannot be defeated or refused on the ground of his failure to challenge the dismissal order or on the excuse of departmental power to run parallel proce-edings. The case of Nurunnabi referred to by Mr. Mutahar Hossain seems to be closer to point save that the dismissed employee here is superannuated. Nurunnabi was reinstated in service with arrear pay and allowances treating the period of his absence as time spent on duty. In a similar case, A. Razzaque v Bangladesh, reported in 45 DLR 613, BADC was directed to reinstate in service its employee acquitted in appeal.
 
It is now well settled that when the dismissal is found illegal and unsustainable in law reinstatement in service with arrear salary and allowances is the rule and refusal to allow the privilege is exception to be justified by the employer. And acquittal of charges grounded on the same facts, ifhonorable, has the same effect that wipes out the stigma of misconduct and/or corruption and entitles the indicted employee to the same privilege and the employee should be so allowed if not otherwise impracticable.

Since dismissal of Hassan Ali is ex facie illegal and he is acquitted honourably in appeal he was entitled to be reinstated in service with full pay and allowances had he not been superannuated. Now that he is superannuated (and also dead) direction may be made to pay off his arrear salary and allowances to his legal heirs treating by fiction of law the period of his absence as time spent on duty.

For what we have stated above, we are of the view that this is eminently a fit case for the rule to be made absolute.
 
In the result, this rule is made absolute. Respondents are directed to treat the period of absence of Md. Hassan Ali from service (from date of suspension to superannuation) as ‘time spent on duty’ and accordingly pay to the petitioner (or in her absence to other legal heirs of Hassan Ali) arrear salary, allowances and other service benefits payable to him against the period within 3 (three) months from date of receipt of this judgment.
 
No order as to cost.
 
Communicate copies of this judgment at once.
 
Ed.