Qamrul Islam Siddique Vs. Saber Ahmed and another

Case No: Civil Appeal No. 24 of 1999

Judge: Md.Ruhul Amin,

Court: Appellate Division ,,

Advocate: Abdur Rab Choudhury,Faizul Kabir,,

Citation: 1 ADC (2004) 224

Case Year: 2004

Appellant: Qamrul Islam Siddique

Respondent: Saber Ahmed and another

Subject: Administrative Law,

Delivery Date: 2002-2-10

Qamrul Islam Siddique

Vs.

Saber Ahmed and another, 2002,

 1 ADC (2004) 224
 
 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mainur Reza Chowdhury J
Md. Ruhul Amin J
Mohamad Fazlul Karim J
 
Qamrul Islam Siddique .................................Appellant
 
Vs.
 
Saber Ahmed and another..............................Respondent
 
Judgment
February 10, 2002.
 
Government Servants (Special Provisions) Ordinance, 1979 (Ordinance XI of 1979)
Section 5, 6 & 3 (b)
 
Article 140 (2) of the Constitution
 
       Appointing authority or any person authorized by him to give personal hearing if the delinquent express his desire to that respect………………….. (13)
 
      The delinquent officer and the competent authority to dismissed him having had not given personal hearing to respondent No.1 the officer of the respondent No.1’s category, before issuing order of dismissal, the same was unsustainable in law as because the previous Secretary although gave personal hearing to respondent No.1 but he did not record the final decision in any respect……… (13)
 
Lawyers Involved:
Faizul Kabir, Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the appellant. (Appeared with the leave of the Court)
Abdur Rab Chowdhury, Senior Advocate, instructed by A/tab Hossain, Advocate-on-Record-For the Respondent No. 1.
Not Represented- Respondent No. 2.
 
Civil Appeal No. 24 of 1999.
(From the judgment & order dated 12 November, 1998 passed by the High Court Division in Administrative Tribunal Appeal No. 20 of 1997)
 
 
Judgment:
                 Md. Ruhul Amin J.- This appeal by leave has been preferred by the Chief Engineer, LGED (though government of Bangladesh rep­resented by the Secretary, Ministry of LGRD and Co-operatives was party in the Administrative Tribunal Case No.135 of 1991 and in AAT Appeal No. 20 of 1997) who was impleaded in the A.T case by name since there were certain allegations in the petition filed before the Administrative Tribunal by the respondent No. 1 Executive Engineer, Local Government Engineering Bureau who was dis­missed from Service on 9tn May, 1991 on the ground of being absent without leave or reason­able excuse from the place where he was trans­ferred it may be mentioned case before AT and AAT was disposed of solely on matters of law and at no stage allegations against appellant was considered in any respect in disposing of the case.
 
2. Facts, in short are that respondent No.1 after obtaining degree in Civil Engineering joined on 25th September 1961 as Assistant Engineer in the then East Pakistan Water and power Development Board and while was hold­ing the post of sub Divisional engineer he left the said organization and joined on 1st December, 1966 as District Engineer in Noakhali Zilla Parishad on the basis of a letter of appointment issued under the signature of the secretary, Basic democracies and Local govern­ment department of the then a Government of East Pakistan as per provision of East Pakistan Local Councils service Rules, 1968. The respondent No.1 as district Engineer served in different districts and lastly served as District Engineer in Chittagong Zilla Parishad.
 
3. On 23rd August, 1984 National Implementation Committee for Administrative Reorganization (NICAR), recommended for creation of Local government Engineering Bureau (LGEB) comprising the District Engineers and other Engineers of the Zilla parishad and there upon LGEB was created with the said personnel. The respondent No.1 while working as District Engineer in Chittagong Zilla Parishad, he and 32 others were absorbed by the office order issued under the signature of the Deputy Secretary (Development) of Local government Division, Ministry of LGRD and co-operatives on 22nd December, 1984 as Executive Engineer in the Local Government Engineering Bureau. Thereafter he was transferred from Chittagong Zilla Parishad on 25th June, 1985 to LGRD Head Quarter at Dhaka as superintendent Engineer and he worked there as superintendent Engineer from 5th September,1985 to 10th July,   1987 in Noakhali Rural Development project II and thereafter on 16th July, 1987 he was transferred to Mymensingh as executive Engineer and thereafter on 28th February,1989 he was transferred to Borguna as Executive Engineer,  but  he  did  not  Join  either  in Mymensingh  or in Borguna. The respondent No. 1 challenged his transfer as Executive Engineer to Mymensingh by filing A.T Case No.182 of 1987 which was pending till the time of disposal of the Administrative Tribunal Appeal No. 20 of 1997.
 
4. Since the respondent No.1 instead of joining at the place where he was transferred, but absented without leave from the competent authority or without reasonable excuse proceed­ing under section 3(b) of the Government Servants (Special Provisions) Ordinance, 1979 (Ordinance XI of 1979), herein after in short the ordinance of 1979, was initiated on 10th November, 1990 by the Secretary of the Ministry of LGRD and co operatives. The respondent No.1 replaced to the show cause notice denying the allegations made against him. Thereafter he was given personal hearing by the Secretary on 10 January 1991 and later on he was served with 2nd show cause notice to which he replied. Finally on 9tn May, 1991 he was dismissed by the office order communicat­ed under the signature of the then secretary, of the Ministry of LGRD and co operatives. The respondent No.1 challenging the legality of the order of his dismissal filed A.T. case No.135 of 1991 before the Administrative Tribunal (A.T), Dhaka.
 
5. The appellant and the respondent No. 2 Government of Bangladesh, contested the said A.T. Case No.135 of 1991 contending, inter alia, that respondent No.1 was absent from the place of duties for long time without leave and that on that allegation charge was framed under Section 3(b) of the Ordinance of 1979 against the respondent No.1 and to that respondent No.1 submitted his explanation. The authority gave personal hearing to the respondent No.1 and that served 2nd show cause notice stating the proposed punishment to be imposed on him and that respondent No.1 submitted his expla­nation and the authority considering the allegations as well as the explanation given by the respondent No.1 imposed the penalty upon dis­missing him from service.
 
6. The A.T. dismissed the case by the order dated 15th January, 1997 on the finding that respondent No. 1 was absent from his place of duties for long time without leave or permission and thereby committed punishable offence under the provision of the ordinance of 1979. The A.T further held that disciplinary proceed­ing was initiated by the competent authority, secretary of the ministry being the Executive Head as because 'Government in the Ministry is the appointing authority of the petitioner" (respondent No.1 in the leave petition). It may be mentioned that the A.T held that disciplinary proceeding against the respondent No.1 was initiated by the competent authority under the presumption that in 1991 the government was of Parliamentary form and that in the said from of Government, "Cabinet may be understood as the government and it includes all the min­istries headed by the Prime Minister, the Cabinet has distributed functions between the Ministries. Accordingly the Ministry of LGRD and co-operative, Local, Government division has been allocated the subject of the Local gov­ernment Engineering Bureau" and as such Government in the said Ministry being the appointing authority of the petitioner was com­petent to initiate discipliner proceeding under the ordinance of 1979 against the respondent No.1.
 
7. Respondent No.1 as against the judgment and order in the AT case No.135 of 1991 took appeal, being Appeal No. 20 of 1997, before the Administrative Appellate Tribunal (AAT). It was the contention of the opposite-parties of the A.T Case No.  135 of 1991 as because the appointing authority of the respondent No.1 was the secretary Ministry of LGRD, as such initiation of disciplinary proceeding by the Secretary of the Ministry of LGRD and that passing of the order of dismissal by the secre­tary of the Ministry of LGRD was quite legal.
 
8. The respondent No.1 and others were absorbed as Executive Engineer in the LGRB by the office order dated 22nd December 1984 and at that relevant time terms and conditions of the service of LGEB personnel were regulated by the provisions  of East Pakistan Local Council Service Rules 1968 and there in secre­tary of the Basic Democracies and Local Government Rural Development, later on LGRD was the appointing authority of the offi­cers like the respondent No.1 of the Local Government Engineering Bureau. Later on under Article 133 of the Constitution, the President in the light of the provision of Article 140 (2) of the Constitution framed rules relat­ing to the appointment of the officers and Employees of Local government Engineering Bureau titled as "স্থানীয় সরকার প্রকৌশল ব্যুরো কর্মকর্তা এবং কর্মচারী নিয়োগ বিধিমালা ১৯৮৬" [The Local Government Engineering Bureau Employer and Employee Appointment Rules, 1986] and the same was published in the Bangladesh Gazette, Extraordinary on 30 April, 1987 and by the provision of Section 2(Ga) of the said Rules Government was made the appointing authority or any other person authorized by the Government.
 
9. The AAT on the finding that the expres­sion Government at the time of initiation of the proceeding and passing of the order of dis­missal was referable to the president since the country at the relevant time was run by presi­dential form of Government and as such the expression Government as in the Rules of 1986 means, the president and "as such the president is the appointing authority of the appellant". Although it was claimed by the respondent (in the AAT), the then Secretary of the ministry of LGRD and co-operatives gave personal hearing to the appellant and formally recorded the final decision and that on his transfer the said deci­sion was only communicated by the successor-in-office but as in support of said claim as the respondents (before AAT) did not place any paper before the AAT. There upon AT held, "even if the Secretary is taken to be competent authority the position is in no way improved as the secretary who made the order and under whose signature the order was communicated had no lawful authority and as such it is of no legal effect."
 
10. It was contended on behalf of the respondent No.1 before the AAT that in view of the provision of Section 6 of the Rules of Business read with the provision at SD. No. 74 (d) of the Schedule III of the Rules of business as because appellant's pay scale was Tk. 3700-4425/-prior approval of the President was nec­essary before issuance of the order of dismissal, but no approved was obtained although it was mentioned in the order of dismissal that the same was communicated by the order of presi­dent. As no paper was placed before the tribu­nal as regard the obtaining of approval of the President before the making of the order of dis­missal in respect of the appellant (before AAT), the AAT held "we must therefore hold that the impugned order could not be made or issued without the approval of the president". Upon the aforesaid findings AAT allowed the appeal.
 
11. As against the judgment and order of the AAT Government respondent No.1 before the AAT did not file any petition for leave to appeal. But the chief Engineer, Local Government Engineering Department filed petition for leave to appeal against the judgment of the AAT.
 
12. Leave was granted to consider the sub­missions of the appellant:-
                 "Respondent No. 1 having been appoint­ed as District Engineer by the Zilla Perishad and there after having been absorbed in the service of Local gov­ernment Engineering Bureau as Executive Engineer along with other District Engineers of Zilla Parishad by an office order dated 22-11-84 issued by the Deputy Secretary to the Ministry of LGRD, Local Government Division and respondent No.1 having not been appointed by the President, the provi­sions of Rule 75 (1) of the Rules of business, 1975 which was prevalent at the relevant time is not attracted in this case and the Appellate Tribunal was wrong in declaring that the impugned order of dismissal passed by the Secretary not having been made or issued without the approval of the President was illegal." 
 
13. In the light of the decisions of the NICAR Local Engineering Bureau (LGEB), [now LGED], was created to absorb the District Engineer of the Zilla Parishads and all other engineer Personnel of the Rural Works Programs and the said Proposal having been approved by the President, the district Engineer and all other engineer personnel of the Rural Works Programs were absorbed in the LGEB. The respondent No.1 and others were absorbed by the office memo dated 22nd December, 1984 as the Excusive Engineer in the LGEB. Although at a time when the respondent No. 1 joined in Noakhali Zilla Parishad as District Engineer the terms and conditions of the serv­ice were Governed by the East Pakistan Local council Service Rules, 1968 and as per provi­sion of the said rules of 1968, Secretary of the Basic Democracies and Local government Department was the appointing authority, but this position changed with the promulgating of Local government Engineering Bureau (offi­cers and Employees) Appointment Rules, 1986 where in the Government or any other authori­ty authorized by the government was made the appointing authority. In the instant case at the time when the proceeding was initiated respon­dent No.1 was an employee in the service of the Republic at the scale of pay Tk.3700-4425/-per month. The proceeding against the petitioner under section 3(b) of the ordinance of 1979 was initiated by the secretary, Ministry of the Local Government, Rural Development and co operatives. The respondent No.1 seri­ously challenged the legality of the initiation of the proceeding by the secretary of the LGRD and co-operatives on the contention that in view of the provision of the rules of 1986, the Government being the appointing authority of the officers of the respondent No.1's category, as such any disciplinary proceeding could have against him only been initiated upon obtaining approval of the president since at the relevant time i.e. on 10th November, 1990, when show cause notice was issued to the respondent No.1 and the order of dismissal dated 9th May, 1991 were issued the form of the Government preva­lent was presidential form of the Government prevalent was Presidential form of govern­ment. As seen from the judgment of the AT that the said Tribunal on the premise that at the time when the order of dismissal was issued the form of government was parliamentary form of Government and there by the Secretary in the Ministry was the competent authority to make order of dismissal. This presumption was fallacious has been conceded before the AAT by the respondent there in i.e. the present appel­lant and the respondent No.2. In the said state of the matter it has been contended on behalf of the respondent No.1 that the expression Governing means 'the person or body of per­sons administering laws and government the State "Or that" the body or persons charged with the duty of Governing and exercising cer­tain pore and performing of certain duties by public authorities or officers together with cer­tain corporation exercising certain public func­tion.’  At a time when the order of dismissal in respect of the respondent No. 1 was made undisputedly the form of Government being Presidential on it was the president alone who was legally authorized to make the order of dismissal in respect of the respondent No.1. Although it appears from the memo communi­cating the order of dismissal that the same was made by the president and that the said order of dismissal was merely communicated by the Secretary Ministry of LGRD and co-operatives but in support of that the order dismissal of the respondent No.1 was in fact passed by the president no material was placed before the AT and AAT, nor before this Division, As seen from the stand that was taken before the AT and AAT by the appellant and the respondent No. 2 that Secretary was the competent author­ity to appoint the officers of the respondent No.1's category and as such the secretary, Ministry of LGRD and Co operatives was the competent authority to initiate disciplinary proceeding against the officers of the category of respondent No.1 of LGEB (now LGED) and that also was competent to make the order of dismissal in respect of the officers of the said category. In support of the leave to appeal it was submitted that the respondent No.1 as Executive Engineer was absorbed in the LGED by the office order issued by the Deputy Secretary of the LGRD and as such Secretary, Ministry of LGRD and co operatives was com­petent to dismiss the respondentNo.1. It is cor­rect office order dated 22nd November, 1984 absorbing the respondent No. 1 and others as executive Engineer in the LGEB was issued under the signature of the Deputy Secretary, Ministry of LGRD and co-operatives, but for that it cannot be said that respondent No.1 was appointed as Executive Engineer of the LGEB by the Secretary and that not by the govern­ment as because as per decision of NICAR, which had approval of President LGEB (now LGED) was created and thereupon respondent No operatives and later on by the Rules of 1986 appointing authority either was the Government or any other agency or person authorized by the Government. This later change in the power to make appointment of the officer of the Respondent No.1's category, cer­tainly brought a change in the position that was at the time of respondent No.1's appointment as District Engineer of Noakhali Zilla Parishad and thereafter absorptions by the office order dated 22nd November, 1984 even if contention of appellant is taken correct, thought in fact oth­erwise as already state herein before. In this sit­uation the contention of the appellant that sec­retary of the LGRD and co operatives was vest­ed with the authority to make appointment of the officer of the respondent No.1 category of the LGEB (now LGED) is not legally well founded and that being so disciplinary proceed­ing that was initiated by the Secretary of the LGRD and co operatives under section 3(b) of the Ordinance of 1979 was not initiated by competent authority and that order of dismissal was not made by the competent authority since no material was placed either before the Tribunals or before this Division that the order of dismissal was made by the president although in the letter communicating order of dismissal it was shown same said to have been passed by the president. It is pertinent to men­tion it was the positive stand of the opposite parties before At and the respondents before AAT that Secretary, Ministry of LGRD and co operatives was the competent authority to make order of dismissal in respect of respondent No. 1 and as such order of dismissal was legal. The other aspect of the matter relating to dismissal of the respondent No.1 is that provision of sec­tion 6 read with the provision at SI. No.75 (1) of Schedule III of the Rules of Business attract­ed or not in the case of respondent No.1. The respondent No. 1 was holding the post in the service of the Republic at the scale of pay Tk.3700-4425/-. The officers of the said pay scale in view of the provision at SI. No.74 (d) of the 3rd Schedule of the Rules of business, could be dealt with in any respect only with the approval of the President. On 9th May, 1991 when the respondent No. 1 was dismissed from service the from of Government prevalent was a Presidential form of Government and that no material having been placed on record that appointment of the officer of respondent No.1's category with the pay scale as mentioned here­in above could be made without the approval of the president and officers of the respondent No.1's category could be dismissed by the any other authority other than the president. In the background of this undisputed situation the sub­mission of the appellant that provision at SI. No.75/ (1) of the 3rd Schedule of the Rules of Business, as at the relevant time was in force, was not attracted in the case of the respondent No. 1 legally not sustainable, There is another aspect of the matter i.e. taking of final decision in a disciplinary proceeding under the provision of the ordinance of 1979 after giving personal hearing to the delinquent officer by the Secretary of the Concerned Ministry. In the instant case personal hearing to the respondent No. 1 was given by the Secretary, of the Ministry of LGRD and co-operatives, but he did not record any final decision in any respect before leaving the Ministry on transfer. The successor in the office of the Secretary, Ministry of LGRD and Co operatives without giving any personal hearing to the respondent No.1 passed the order of dismissal and commu­nicated the order of dismissal mentioning pur­portedly to have been passed by the president. Although in spite of challenge as to absence of approval of the order of dismissal by the presi­dent no material was placed before a the tri­bunals and this court that punishment of dis­missal was approved by the president and that the Secretary who gave the personal hearing to the respondent No.1 recorded the final decision and that the decision so recorded by the previ­ous Secretary was communicated only by the incoming Secretary. The provision of section 5 of the Ordinance of 1979 requires that the appointing authority or any person authorized by him to give personal hearing if the delin­quent express his desire to that respect, which then delinquent officer in the instant case expressed and that the delinquent officer was heard by the secretary of the Ministry of LGRD and co-operatives but the Secretary did not record the final decision. Even if the contention of the appellant is taken to be correct that Secretary, Ministry of LGRD and co operative was the appointing authority of the respondent No.1. which is otherwise in law, even then as provision of section 5 of the ordinance of 1979 was not complied with i.e. Secretary of the Ministry, of LGRD and Co-operatives who is being claimed to be the appointing authority of the delinquent officer and the competent authority to dismissed him having had not given personal hearing to respondent No.1 the officer of the respondent No.1's category, before issu­ing order of dismissal, the same was unsustain­able in law as because the previous Secretary although gave personal hearing to respondent No.1 but he did not record the final decision in any respect.
 
14. The order of dismissal having been made in violation of the provision of section 5 of the ordinance of 1979 in that score also the same is not sustainable in law.
 
            In view of the discussions made here in above the appeal is dismissed without any order as to costs. The judgment and order of the Administrative Appellate Tribunal, Dhaka in Appeal Case No. 20 of 1997 is maintained.
Ed.