For the Respondent Nos.2-4 Not represented

Date of Hearing and order : The 25th day of April, 2022

ORDER

M. Enayetur Rahim, J: Delay in filing the leave petition is condoned.

This Civil Petition for Leave to Appeal at the instance of the defendant-Appellants is directed against the judgment and order dated 21.03.2018 passed by the Administrative Appellate Tribunal, Dhaka in A.A.T. Appeal No.202 of 2015 allowing the appeal and thereby setting aside the judgment and order dated 21.06.2015 passed by the Administrative Tribunal, Chattogram in A.T. Case No.02 of 2014 allowing the case.

The relevant facts, leading to the filing of this leave

petition, in brief are as follows;

The petitioner filed A T Case No.02 of 2014 under section

4(2) of the Administrative Tribunal Act, 1980 in the

Administrative Tribunal, Chattrogram. It is the case of the

petitioner that he was a service holder of the People’s

Republic of Bangladesh under the Ministry of Post, Telecommunication and Information Technology. Since the

appointment to till retirement, he had served his duties most

honestly and sincerely to the entire satisfaction to his

superiors and during 31 years of his service there was no black

spot, and that he did neither commit any professional

misconduct nor committed any offence at any time which may

cause him any punishment. After retirement when he demanded all

his pension from his department on 22.05.2013, unfortunately

the respondent No.3 passed an order on 21.08.2013 stopping to

pay the pension to the petition on the plea that ÔwefvMxq evmv Ges RvqMv

Rwg‡Z †Kvb Kg©Pvix emevm ev `L‡j ivwL‡j Zv Kg©Pvix KZ…©K mswkøó¨ KZ©„c‡ÿi wbKU eywS‡q bv †`Iqv ch©šÍ †cbkb gÄyixi †Kvb weavb bvB|Õ

Being aggrieved by and dissatisfied with the aforesaid

order dated 21.08.2013 the petitioner preferred a departmental

appeal before the Managing Director, Bangladesh Tele

Communication Ltd. (BTCL) Central Office, on 10.10.2013 but

there is no result. Hence, he filed the case.

The respondent Nos.3 and 4 contested the case by filing

written objection. The material case of these respondents was

that the petitioner occupied the land of BTCL and he used to

live there by making house long time and also the Government is

entitled to get Tk.34,709.00 from him for the purpose of

selling the telephone calls. The authority allowed the

application of the petitioner for twelve months retirement

leave from 01.06.2011-31.05.2012 and paid him to arrear money for twelve months retirement leave with provident fund. But the authority ordered the petitioner for shifting his house from the land of BTCL but he did not care and illegally kept the possession of the said land and as such the A.T. Case No.02 of 2014 is liable to be dismissed.

The Administrative Tribunal, Chattogram by its judgment and order dated 21.06.2015 allowed the A.T. Case holding to the effect that the impugned order dated 21.08.2013 passed by the respondent No.3 is illegal and void.

Against the said judgment and order the respondents preferred an appeal being A.A.T. Appeal No.202 of 2015 before the Administrative Appellate Tribunal, Dhaka and the Appellate Tribunal after hearing the said appeal allowed the same and set aside the judgment and order dated 21.06.2015 passed by the Administrative Tribunal.

Feeling aggrieved by the same the petitioner has preferred this leave petition.

Mr. Md. Bakiruddin Bhuiyan, learned Advocate, appearing for the petitioner submits that the Administrative Appellate Tribunal committed serious error in setting aside judgment passed by the Administrative Tribunal without considering the facts that the respondent No.3 passed the order on 21.08.2013 without any show cause notice and without mentioning any provisions of law and hence ultimate departmental action there under was quite illegal.

He further submits that the departmental order dated 21.08.2013 against the petitioner was passed without supporting documents and there is no proofable evidence on record and thus, the Tribunal has opined that the allegations against the petitioner is false, concocted and fabricated one and those

were not proved against the petitioner by any legal evidence

and the order imposed by the respondent No.3 against the

petitioner is bad in law, but the Administrative Appellate

Tribunal proceeded in the matter in a wrong way and as such the

impugned order is liable to be set aside.

However, Ms. Chowdhury Mousumee Fatema, learned Advocate,

appearing for the respondent Nos.2-4 has supported the impugned

judgment passed by the Administrative Appellate Tribunal.

We have considered the submissions of the learned

Advocates for the respective parties, perused the judgment of

the Administrative Tribunal as well as the Administrative

Appellate Tribunal and other documents as placed before us.

It is the case of the respondents that they have stopped

the pension to the petitioner as he occupied some land of the

respondents organization i.e., BTCL and the respondents are

entitled to get Tk.34,709.00 from the petitioner.

On this issue the Tribunal on consideration of the

materials placed before it has observed that-

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c‡ÿi eivÏK…Z †Kvb evmvq emevm K‡ib bv| . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . . . . .. . . .|

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estoppels Øviv GZ`msµvšÍ (m¤úwËi gvwjKvbv I `Lj) 1g c‡ÿi `vex AvBb ewn©f~Z Mb¨

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welqwU cÖgv‡b mÿg bv nIqvq †KejgvÎ GB ARynv‡Z †cbkb Z_v Aemi MÖnY msµvšÍ cvIbvw

cwi‡kva bv Kivi †Kvb AvBbMZ wfwË cwijwÿZ nq bv| 2q cÿ wdwiw¯’ g~‡j GKwU Rgv wefv‡Mi

wba©vwiZ Q‡K c~iYK…Z 2q c‡ÿi bvgxq KvMR `vwLj K‡ib| wKš‘ GB Rgv wefvM‡i KvMR Øviv 1g c‡ÿi A‰ea `Lj cÖgvb nq bvB| Ó

However, the Administrative Appellate Tribunal relying on

an angikarnama dated 16.06.2013 allowed the appeal and set

aside the judgment passed by the Administrative Tribunal.

A government officer/employee is entitled to get pension

and other retirement benefits after his retirement and such

right of pension cannot be taken away on any unreasonable and

unfounded plea. On the mere allegation of occupying the land of

the respondents by the petitioner is not a ground to stop

pension privilege.

Section 10 of the Public Servants (Retirement) Act, 1974

runs as follows:

“10. Public Servants not entitled to retirement benefits

in certain cases-If any judicial proceedings instituted by the

Government or, as the case may be, employer or any departmental

proceedings are pending against a public servant at the time of

his retirement or, as the case may be, ceasing to be in

service, he shall not be entitled to any pension or other

retirement benefits, except his subscriptions to any provident

fund and the interest thereon, till the determination of such

proceedings, and the payment to him of any pension or other

retirement benefits shall be subject to the findings in such

proceedings.”

If we analyse the above provision of law, then it would be

clear that authority may withhold or stopped the pension or

other retirement benefits if there is any judicial proceedings,

initiated by the government or as the case may be or

departmental proceedings is pending against a public servant at

the time of his retirement subject to the finding of the said proceedings after determination of the proceedings.

In the case of Air Marshal Jamaluddin Ahmed (Retd) vs. Government of Bangladesh and others, reported in 57 DLR 1, a Division Bench of the High Court Division held that:

“On a plain reading of the above provision it would appear that in order to bring a public servant within the mischief of section 10, the Government has to show that a judicial proceeding or a departmental proceeding was pending at the time of his retirement.”

Chapter XVII of Bangladesh Service Rules, Part-1 deals with pension.

Rule 246 of the above Rules contemplated that-

“Future good conduct is an implied condition of every grant of a pension. Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave misconduct.”(under lines supplied).

Rule 247 of the above Rules is as follows:-

“The president reserves to himself the right to order the recovery from the pension of an officer who entered service on or after 23rd February, 1939 of any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service:

Provided that-

(1) Such departmental proceedings, if not instituted while the officer was on duty,-

(i) shall not be instituted save with sanction of the president;

(ii) shall be instituted before the officer’s retirement from service or within a year from the date on which he was last on duty which- ever is later;

(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty; and

(iv) shall be conducted by such authority and in such places whether in Bangladesh or elsewhere, as the president may direct;

(2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and

(3) such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (1).

Rule 249 also speaks that-

“No pension may be granted to an officer dismissed or removed of misconduct, insolvency or inefficiency; but to officers so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration; provided that the allowance granted to any officer shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate.”

In the instant case the petitioner neither convicted nor found guilty of grave misconduct by any competent authority during his entire 31 years service period. In the instant case there was no judicial or departmental proceedings pending against the petitioner at the time of his retirement; even no proceedings either judicial or department had been initiated against him within a year of his retirement. Thus, the action taken by the authority stopping the pay of the pension to the petitioner has no legal basis. The respondents have failed to show us that the impugned action has been taken within the ambit of the above provisions of law or any other relevant law.

Having considered and discussed as above, we are of the opinion that the Administrative Appellate Tribunal in passing the impugned judgment considered some irrelevant and unfounded issues, rather than the legal aspect and as such the impugned judgment cannot be sustained and same is liable to be interfered.

Accordingly, the leave petition is disposed of.

Judgment and order dated 21.03.2018 passed by the Administrative Appellate Tribunal, Dhaka in A.A.T. Appeal No.202 of 2015 allowing the appeal is set aside and the judgment and order dated 21.06.2015 passed by the Administrative Tribunal, Chattogram in A.T. Case No.02 of 2014 is maintained.

J. J. J. J. J.

B/O.Imam Sarwar/ Words:2,101.

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