Case No: Civil Appeal Nos. 50 of 1992 and 51 of 1992
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Dr. Kamal Hossain,Mr. Asrarul Hossain,,
Citation: 46 DLR (AD) (1994) 85
Case Year: 1994
Respondent: Ruhul Amin Khan
Subject: Administrative Law,
Delivery Date: 1993-12-9
Shahabuddin Ahmed CJ
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
Ruhul Amin Khan
…...................Defendant-Respondent [in CA 50 of 1992]
Ruhul Amin Khan
......................Defendant-Respondent [In CA 51 of 1992]
December 9th, 1993
In a disciplinary proceeding for negligence of duty or contravention of instructions, etc, no dishonest intention is required to be proved. The liability in such cases is of an absolute nature.
Asrarul Hossain, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Appellant [In CA 50 of 92].
Dr. Kamal Hossain, Senior Advocate Mainul Hosein and Md. Joynal Abedin, Advocates with him) instructed by Md. Aftab Hossain. Advocate-on-Record- For the Respondent. [In CA 50 of 92]
Dr. Kamal Hossain, Senior Advocate, (Mainul Hosein and Joynal Abedin Advocates, with him) instructed by Md. Aftab Hossain, Advocate-on-Record - For the Appellant. [In CA 51 of 92]
Asrarul Hossain, Senior Advocate, Supreme Court, instructed by Mvi. Md. Wahidullah, Advocate-on-Record- For the Respondent. [In CA 51 of 92]
Civil Appeal Nos. 50 of 1992 and 51 of 1992.
(From the Judgment and Order dated 24.3.1992 passed by the Administrative Appellate Tribunal in Appeal Nos. 81 of 1991 and 85 of 1991).
These two appeals by leave, Civil Appeal No. 50 of 1992 by the Sonali Bank and Civil Appeal No. 51 of 1992 by the respondent of the former appeal, who was the Senior Principal Officer/Manager of the Sadarghat, Dhaka Branch of the Bank, arise out of the same judgment and order dated 24.3.1992 passed by the Administrative Appellate Tribunal, Dhaka dismissing both the appeals, Nos. 81 of 1991 and 85 of 1991, preferred by the respective appellants. The present appeals have been heard together since the contentions raised therein veer round the same and only question as to the powers of the Tribunal under the Administrative Tribunals Act, 1980 (Act No. VII of 198 1), briefly the Act. This judgment will govern both the appeals and in the discussion following parties will be referred to as in CA No. 50 of 1992.
2. On 1.6.89 the respondent filed an application before the Administrative Tribunal, Dhaka under section 4(2) of the Act, registered as Case No. 158 of 1989, alleging, inter alia, that the Bank Authority upon suspending him from service charge sheeted him on 16.7.86 on the allegation that he had abetted in defrauding and causing loss to the Bank of an amount of Taka 58,00,698.30 by collectively opening some letters of credit in favour of two fictitious firms, namely, Ahmed Brothers and Millat & Co., at 15% margin in excess of his powers and by obtaining approval of the Principal Office fraudulently. An Assistant General Manager of the Bank was appointed as the Enquiry Officer and the respondent was asked to show cause within seven days as to why he should not be dismissed from service. The respondent showed cause and cited eight witnesses in support of his case but the Enquiry Officer did not examine them. He was asked to answer some questions in writing which he did and made his submissions personally on 16.9.86. As there was no witness/officer examined from the side of the Bank there was no question of cross-examining anybody. The authority served a second show‑cause notice for awarding the major penalty of dismissal from service to which the respondent replied and ultimately the Bank authority by its memo dated 10.10.87, inter alia, dismissed him from service. The respondent being aggrieved by the order of dismissal took an appeal to the Board of Directors of the Bank under the Service Regulations, 1981 and he was heard personally by the Disciplinary Cases Committee of the Bank on several days. He was, however, informed on 7.1.89 that the Board had dismissed his appeal in its meeting held on 11.12.88. Hence the application.
3. The appellant Bank contested the case by filing a written statement. It was asserted, inter alia, that in the inquiry it was proved that the respondent was guilty of gross negligence and serious irregularities in opening the disputed letters o credit in the name of fictitious persons causing huge loss to the Bank, that he prepared false credit reports for the benefit of so-called importers in utter disregard of his duties, that the whole transaction was collusively made for misappropriating Bank's money and that there was no violation of any law/rule or procedure in awarding the punishment of dismissal to the respondent.
4. The Administrative Tribunal upon a consideration of the matter found that the respondent had exceeded his authority in opening the disputed letters of credit for Taka 19 lakh in the name of each firm, that he had violated a staff circular and the usual banking practice and provisions of exchange control manual and that his negligence was proved beyond reasonable doubt. The Tribunal, however, also found that although the acts of the respondent complained of were culpable yet there was nothing on record to show that he had either any dishonest intention in committing the same or that he was in collusion with the importers and others in making any wrongful gain. It was observed that although the respondent deserved to be meted with a major penalty for his negligence in duty yet the order of dismissal from service was not a proper order in that all the circumstances in his favour were not taken into consideration in awarding the said punishment which caused a miscarriage of justice. Finally, the Tribunal by its judgment and order dated 22.10.91 allowed the application in part, set aside the impugned order of dismissal and substituted the said punishment with reduction to a lower post by directing that the respondent be demoted to the post which he had held before being promoted to the post of Senior Principal Officer.
5. Both the appellant and the respondent having felt aggrieved by the Judgment of the Tribunal took their respective appeals against the same and, as already noticed, the Administrative Appellate Tribunal by the impugned judgment dismissed both the appeals.
6. Leave was granted to consider whether it was competent for the Tribunal to vary/modify the order of punishment which was passed by the proper authority in the exercise of its discretion vested in it by law. Secondly, even if it had such power, was the modification justified in the facts and circumstances of the present case?
7. Mr. Asrarul Hossain, learned counsel for the appellant, submitted that the Tribunal not being an appellate authority had no power to interfere with the order of sentence/ punishment awarded by a competent authority particularly after finding that the respondent was guilty of the charges levelled against him and that there was no violation of any service rules in the process of awarding the sentence of dismissal to the respondent. Mr. Hossain also submitted that in view of the Tribunal's own finding that the negligence of the respondent was proved beyond reasonable doubt and that he was liable to be inflicted with a major penalty, the alteration of the order of dismissal from service to an order of demotion by one step only was wholly unwarranted.
8. Dr. Kamal Hossain, learned counsel for the respondent, strongly joined issue with the first contention and submitted that upon a proper interpretation of Section 4 of the Act in the context of Article 117 of the Constitution there can be no doubt that the Tribunal which has the power to set aside an order of the concerned authority (which is not denied) has also the power to vary or modify the same including an order of sentence/punishment in the facts and circumstances of a given case. As to the second contention, Dr. Hossain argued making reference to the findings made in favour of the respondent (as noticed above) that instead of merely altering the order of punishment, the Tribunal should have entirely set that order aside and ordered reinstatement of the respondent to the post from which he was dismissed. Dr. Hossain in pressing the appeal of the respondent, besides pointing out the finding of the Tribunal that there was no evidence of any dishonest intention or any collusion on the part of the respondent, referred to certain redeeming facts which proved that the respondent was not wilfully responsible for the loss and the Bank authority was also satisfied about the same. The matter was investigated by the CID but the complicity of the respondent was not found. During the departmental enquiry, it was pointed out that, the respondent was not found actively involved with the importers for causing financial loss to the Bank and accordingly the Bank did not implicate the respondent in the criminal case nor impleaded him as a defendant in the civil suit filed by the bank for recovery of the loss. Dr. Hossain even also made a faint attempt to show that the findings of the Tribunals as to the negligence of the respondent and violation of circulars and instructions by him were not correct.
9. As far as the question of negligence of and violation of circulars, etc. by the respondent is concerned there are concurrent findings by the Tribunals and we do not find any good reason to disturb the said findings. Before, however, dealing with the main question as to whether the Tribunal was justified in interfering with and varying die order of dismissal even after finding further that there was no procedural defect in the departmental proceeding, we would like to dispose of the first contention of Mr. Asrarul Hossain questioning the very competence of the Tribunal to vary or modify an order passed by a competent authority in due course of law.
10. Tribunals have been established under the Act, inter alia, to exercise jurisdiction in respect of matters relating to or arising out of, as provided under Article 117(1)(a) of the Constitution, "the terms and conditions of persons in the service of the Republic, including the matters provided for in Part IX and the award of penalties or punishments;". Sub-article (2) of Article 117 provides as follows :
(2) Where any administrative tribunal is established under this article, no court shall entertain any proceedings or make any order in respect of any matter failing within the jurisdiction of such tribunal."
It is necessary to quote here section 4 of the Act in full.
(2) A person in the service of the Republic (or of any statutory public authority) may make an application to an Administrative Tribunal Under sub‑section (1), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic (or of any statutory public authority):
Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic (or of any statutory public authority), or the discipline of that service, can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter:
Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be.
(3) In this section person in the service of the Republic (or of any statutory public authority) includes a person who is or has referred or is dismissed, removed or discharged from such service, but does not include a person in the defence services of Bangladesh (or of the Bangladesh Rifles).
11. From a reading of the aforesaid provisions it becomes clear that in matters assigned to the tribunal its jurisdiction is exclusive and to that extent the jurisdiction of all other courts is barred. It follows logically as a general principle that comprehensiveness in dealing with such matters cannot lag far behind the exclusiveness of such a jurisdiction. An Administrative Tribunal has been invested with exclusive jurisdiction "to hear and determine applications made by any person in the service of the Republic or of any statutory public authority in respect of ……….any action taken in relation to him …………..”. A Tribunal has therefore to determine in respect of an action which is complained against before it. The dictionary meaning of the word 'determine' is 'settle', 'decide'. These expressions bear an amplitude which, in my opinion, is sufficient to cover any decision as to any aspect of the action which is impugned before a Tribunal. In other words, a Tribunal is competent even to vary or modify an order including an order of punishment/sentence in exercise of its powers under section 4 of the Act. It is not disputed that the Tribunal is competent to set aside an order. If that be so, it hardly stands to reason that the Tribunal will not have power to deal with it in a lesser way. Considering the background of establishing the Tribunals and particularly the terms of Section 4 of the Act, we find no difficulty in holding that a Tribunal is competent to vary or modify an order including an order of punishment/sentence which is impugned before it. But whether such variation or modification is justified or not in a given case or whether it is at all called for is altogether a different matter and may be debated in the facts of each case.
12. In the instant case, the Tribunal altered the punishment of the respondent from dismissal from service to reduction to a lower post, both of which are major penalties under regulation 28 of the Sonali Bank (Employees) Service Regulations, 1981, briefly the Regulations. This alteration was done mainly on the consideration that there was no evidence to show that the respondent had acted with dishonest intention or that he was in collusion with the importers in opening the disputed letters of credit which caused loss to the bank.
13. It is to be observed that there is a fundamental difference between a disciplinary proceeding against an employee taken departmentally and a criminal proceeding in a Court of law against him on the self same facts. In a criminal trial, for an offence like criminal breach of trust or forgery, dishonest intention or mens rea is required to be proved because it is an ingredient of the offence. But in a disciplinary proceeding for negligence of duty or contravention of instructions, etc, no dishonest intention is required to be proved. The liability in such cases is of an absolute nature. Once it is found that an employee is negligent or has contravened any instruction, he incurs the liability for punishment and strictly speaking there is no room for showing any leniency even in the matter of punishment merely because his dishonest intention was not proved.
14. The Tribunal has recorded clear findings that the respondent was negligent in his duty, that he violated the staff circular and usual practice and the provisions of the exchange control manual and that there was no allegation of procedural defect in the matter of enquiry and punishment. In view of these findings question may be legitimately raised as to whether the Tribunal was justified in altering the punishment of the respondent. The Tribunal, it may be observed, was, however, right in assessing the position in law in the matter of awarding of sentence including its own jurisdiction but it cannot be given full credit for its ultimate order of reinstating the respondent to a lower post (by way of alteration of sentence) in an institution like, bank when the authority thereof had decided to get rid of him on charges of negligence, etc, which were fully proved. The relevant portion of the Tribunal's judgment may be quoted here:
15. It is true that in the banking operations the officers and employees of a bank often do many things in good faith in the interest of the bank and as normal practice which are not strictly permissible under the rules. It is for their superior authority to determine and they are the best persons to decide in a disciplinary proceeding whether the lapse or lapses complained of could be viewed with leniency for awarding a lesser sentence. The Tribunal could not say that the sentence awarded in the present case did not reflect a consideration of all the circumstances of the case as admittedly the respondent was personally heard at every stage and particularly during his appeal before the Board, he was heard by the disciplinary cases committee for several days. The Tribunal considered the circumstances which the respondent gave out by way of explaining his negligence and violation of instructions and found that they were not denied and found to be false. It is to be presumed that the punishing authority and the Board of Directors who heard the appeal in the absence of any allegation of malafide must have considered all the circumstances and even then found the respondent unsuitable to continue in the job. It is true that the bank did not prosecute the respondent for any criminal offence nor made him a defendant in the civil suit for recovery of the loss. This by itself is not ground for thinking that the order of dismissal was harsh. It is more likely that because of the dismissal order, the bank did not like to push the respondent further in the civil and criminal courts.
16. The Tribunal also noticed that it was admitted that the respondent put in 22 years of satisfactory service and the present proceeding was the first proceeding against him. Although it cannot be said that the circumstances considered by the Tribunal were all cogent circumstances but, at the same time, it cannot also be said that there was nothing at all to sustain an alteration of the sentence. For example, an unblemished record of 22 years of service is a good ground for altering the nature of the sentence which may reduce the hardship. But it can never be considered to be a good exercise of discretion when a person is reinstated in an institution like a bank by way of altering an order of dismissal from service when the authority had decided not to keep him in service apparently because he had lost their confidence which is so essential in a financial institution. There was a less harsh sentence than dismissal, that is, compulsory retirement which is also a major penalty under the Regulations and the Tribunal should have taken recourse to the same if it felt that it was necessary to reduce the rigour of the sentence in the facts and circumstances of the present case.
17. Considering all aspects of the matter, we think that all ends including that of justice will be sufficiently met if only the order of compulsory retirement is substituted in place of the order of reinstatement to the post held by the respondent before being promoted as the Senior Principal Officer as directed by the Tribunal and affirmed by the Appellate Tribunal.
In the result, therefore, CA No. 50 of 1992 is allowed in part. The order of reduction to a lower post is altered to compulsory retirement of the respondent from service from the date of the order of dismissal. CA No. 51 of 1992 is dismissed.
No cost in either case.