IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
Present:
Mr. Justice Hasan Foez Siddique, Chief Justice Mr. Justice Obaidul Hassan
Mr. Justice M. Enayetur Rahim
CIVIL APPEAL NO.101 OF 2014
Arising out of Civil Petition for Leave to Appeal No.641 of 2010
(From the judgment and order dated 26.10.2009 passed by the High Court Division in Writ Petition No.4540 of 2003)
Sadharan Bima Corporation and another …..….Appellants
-Versus-
Md. Rafiqul Islam and others ...…Respondents
For the appellants For the respondents
Date of hearing : Date of judgment :
: Mr. Tofailur Rahman, senior Advocate, instructed by Mr. Md. Nurul Islam Chowdhury, Advocate-on-Record.
: Mr. Md. Munsurul Hoque Chowdhury, senior Advocate, instructed by Mr. Md. Mozibur Rahman, Advocate-on-Record.
The 10th day of August, 2022 The 24th day of August, 2022
JUDGMENT
Obaidul Hassan, J. This Civil Appeal by leave granting order dated 13.03.2014 in Civil Petition for Leave to Appeal No.641 of 2010 has
been directed against the judgment and order dated 26.10.2009
passed by the High Court Division in Writ Petition No.4540 of 2003.
The facts leading to the filing of this Civil Appeal, in a nutshell,
are that the petitioner joined at Sadharan Bima Corporation as Junior Assistant on 31.12.1979 at Zonal Office, Rajshahi and after successful completion of 1(one) year probation period his service was
confirmed. The writ petitioner served in the same post at different Zonal Offices including Khulna and lastly posted at Bheramara Unit Office under Kushtia Branch. While serving at Bheramara Unit, the
writ petitioner received office order vide memo No. mvexK/cÖkv/cÖ:/99/543
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dated 21.07.1999 with forwarding letter under the signature of respondent No.5 putting him under suspension on the allegation of misappropriation of Tk.50,000.00 (fifty thousand) received as premium against motor certificate.
Thereafter a show cause notice was issued to the petitioner by
the respondent No.5 vide memo No. mvexK/Kwb/c:Ö/99/641 dated 24.08.1999 asking the writ petitioner to show cause within 10(ten) days of receipt of the notice as to why disciplinary action shall not be taken against him for misappropriation of Tk.56,718.19 (fifty six thousand seven hundred eighteen and paisa nineteen only) for showing less amount in the duplicates of certificates issued against motor premium certificate, but no penalty was proposed against him. Despite the writ petitioner had not been served with any copy of the charge, he replied to the show cause notice on 12.09.1999 contending inter alia that the allegations brought against him in the show cause notice were not correct and the detail particulars relating to the certificates in dispute had not been mentioned therein and as such
the show cause notice was issued without any lawful basis.
Later on, the writ respondent No.5 by office memo No.mvexK/Kwb/cÖ:/99 dated 11.11.1999 appointed Mr. Abul Hossain, Manager Re-Insurance (Accounts) Department of Head Office as Inquiry Officer and Mr. Md. Enamul Haque, Deputy Manager, Administration, Head Office as prosecutor for holding inquiry. The Inquiry Officer by notice dated 28.11.1999 asked the writ petitioner to
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appear before the Inquiry Commission on 30.11.1999 at 10.00 am at Khulna Zonal Office to make self-defence by producing evidence and other relevant documents. On 28.11.1999 the Inquiry Officer framed charge against the writ petitioner on the allegation of misappropriation of Tk.56,718.19 (fifty six thousand seven hundred eighteen and paisa nineteen only) against issuance of certificate of premium of motor vehicles showing less recovery in the duplicates of the certificates, but no penalty was proposed as required under Sections 41(Ka) of Sadharan Bima Corporation Karmachari Probidhanmala, 1992 (shortly Probidhanmala, 1992). The writ petitioner was also not given any opportunity for submitting reply against the charge enabling him 10(ten) days time as envisaged in Sections 41(Ka) of Probidhanmala, 1992. Notwithstanding that the writ petitioner had not been served with the copy of charge as well as the sufficient time for giving reply to the show cause notice, he was constrained to appear before the Inquiry Officer on 30.11.1999, but the Inquiry Officer without recording the statement of the writ petitioner and without examining the prosecutor in his presence, obtained signature of the writ petitioner on 2(two) blank sheets informing him the conclusion of inquiry proceeding.
Subsequently, on 04.04.2000 the writ respondent No.5 issued memorandum intimating the writ petitioner that having been found him guilty by the Inquiry Officer for misappropriation of Tk.89,528.24 (eighty nine thousand five hundred twenty eight and paisa twenty
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four only) in the inquiry held on 30.11.1999, the Board of the Corporation in its 360th meeting decided to dismiss him from the service and accordingly he was asked to show cause within 10(ten) days. The said decision was also not accompanied with the inquiry report as required under Sections 41(5) of Probidhanmala, 1992. Although the writ petitioner had not received copy of the inquiry report along with the show cause notice, submitted reply to the show cause on 11.04.2000 denying the allegation and claiming that he being a freedom fighter might be exonerated from the charge reinstating him in the service.
In the meantime, an FIR has been lodged against the writ petitioner with Bheramara Police Station on 19.08.1999 being Case No.12(8)1999 under Sections 409 of the Penal Code regarding same allegation. After investigation police submitted charge sheet and eventually the case was sent for trial. Having held the trial in Special Case No.29 of 2001 against the writ petitioner, the Court acquitted him from charge framed against him under Sections 420 and 409 of the Penal Code.
On 05.10.2002 he submitted joining report addressing the Manager of Sadharan Bima Corporation, Kushtia Branch. Later on, the authority on receipt of his joining report dismissed him from service by office order No.647 issued under memo No.mvexK/cÖkv/cÖKv/2003 dated 05.05.2003.
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Thereafter, the writ petitioner filed the writ petition challenging the said dismissal order and a Rule was issued calling upon the writ respondents to show cause as to why the impugned order of dismissal dated 05.05.2003 (Annexure-H) under the signature of Deputy General Manager, Zonal Office, Sadharan Bima Corporation should not be declared to have been passed without lawful authority and is of no legal effect. Thereafter, upon hearing a Division Bench of the High Court Division by judgment and order dated 26.10.2009 made the Rule absolute with direction to the writ respondents to reinstate the writ petitioner in the service and to pay his arrear salaries and other benefits.
Being aggrieved, by the impugned judgment and order dated 26.10.2009 passed by the High Court Division the writ respondents No.1-2-the appellants, filed the Civil Petition for Leave to Appeal No.641 of 2010 before this Division. After hearing the parties this Division was pleased to grant leave by order dated 13.03.2014 and hence the instant Civil Appeal.
The writ respondents No.1-2-appellants contested the writ petition contending inter alia that the writ petitioner was put under suspension on the allegation of misappropriation of Tk.50,000.00 received as premium and he was charged for misappropriation of the corporation fund, negligence of duty, corruption, forgery and deliberate attempt to tarnish the images of the corporation. The writ petitioner was asked to show cause within 10(ten) days of receipt of
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the notice dated 24.08.1999 as to why disciplinary action shall not be taken against him for the above acts of misconduct and he replied to the show cause notice by denying the allegation. As the reply was not found to be satisfactory an enquiry officer was appointed to enquire into the charges brought against him. The writ petitioner appeared before the Inquiry Officer and he was given full opportunity to rebut the charges brought against him. However, as he failed to prove his innocence the Inquiry Officer found him guilty of the charges brought against him. Accordingly, the authority decided to temporarily suspend the writ petitioner-respondent from service. A second show cause notice was served as per provisions of Probidhanmala, 1992 and upon compliance of all necessary formalities as the writ petitioner was found guilty of the charges and thus he was dismissed. An FIR was lodged on the selfsame allegations and accordingly a criminal case was started against the writ petitioner in which he was ultimately acquitted on the ground of benefit of doubt. After acquittal from criminal charges the writ petitioner submitted joining report. As the departmental proceeding is not dependent on the finding of criminal court, the writ petitioner was found guilty of charges in the departmental proceedings and as such he was dismissed and not allowed to join the service. The writ petitioner filed an appeal for reversal of the decision of dismissal for consideration by the Board of Directors. Since as per provision the Board of Directors of Sadharan Bima Corporation had no authority to
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dispose of appeal, the said appeal was forwarded to the Secretary, Ministry of Commerce, who disposed the appeal with the finding that the Writ petitioner was lawfully dismissed from service.
Mr. Tofailur Rahman, the learned senior Counsel, appearing on behalf of the appellants has taken us through the judgment and order dated 26.10.2009 passed by the High court Division in Writ Petition No.4540 of 2003, the materials on record and submitted that it being a settled principle of law that the departmental proceeding is not dependent on the finding of a criminal Court, the High Court Division erroneously held that the writ petitioner having not been found guilty after trial of the criminal case on same allegation by a competent criminal Court, the dismissal order passed against the writ petitioner is apparently illegal. The learned Counsel contends next that High Court Division having accepted the fact of negligence in duty on the part of the writ petitioner erroneously held that the writ petitioner cannot be dismissed from service and as such the judgment and order of the High Court Division cannot be sustained. The learned Counsel argues next that the respondent No.1 having suppressed the facts of rejection of departmental appeal filed by him in pursuance of the order of the High Court Division and thus it led to non-consideration of material facts for determination of the correctness of the dismissal order while making the Rule absolute by the High Court Division and as such the impugned judgment and order cannot sustain in the eye of law. In support of his submissions
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the learned Counsel relied on the decisions reported in 9 ADC(2012) 418; 34 DLR(AD)(1982) 304; and 1981(2) SLR 274.
On the other hand, , Mr. Md. Munsurul Hoque Chowdhury, the learned senior Counsel appearing on behalf of the respondent No.1 vehemently opposes the submission put forward by the learned Counsel for the appellants. The learned senior Counsel argues that the inquiry proceedings having not been followed by the procedures as laid down in Probidhan 41 of Probidhanmala, 1992, and as such the impugned dismissal order is illegal. He contends next that in initiating the proceeding against the respondent No.1 the first show cause notice having not been accompanied by particular charges with proposed penalty and with the 2nd show cause notice the inquiry proceeding having not been communicated to the petitioner for his reply the whole proceeding has been vitiated for breach of provisions of law as the same caused prejudice to the respondent No.1 and on such a vitiated proceeding the respondent No.1 cannot be dismissed from service.
He contends lastly that regarding the selfsame allegation there being a criminal case prior to the departmental proceeding and the respondent No.1 having found not guilty by the competent criminal Court he ought not to have been dismissed from service on an illegal departmental proceeding as the same was held in violation of statutory provisions and in breach of principles of natural justice and thus the judgment and order passed by the High Court Division is
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not liable to be interfered with. The learned senior Counsel relied on the decision reported in 5 ALR(AD) 2015(1) 130.
We have considered the submissions of the learned Counsels for both the sides, perused the impugned judgment and order dated 26.10.2009 passed by the High Court Division and the materials on record.
The core contention between the both parties hinges on a question whether the provisions of law have been complied with in dismissing the writ petitioner-respondent No.1 from service. To determine the said issue let us examine the provisions of law while imposing major punishment on an employee. Probidhan 41 of
Probidhanmala, 1992 is as follows:
Ò41| ¸iæZi `‡Ûi †ÿ‡Î Z`‡šiÍ Kvhc©ÖYvj x- (1) †h †ÿ‡Î †Kvb Kg©Pvixi weiæ‡× GB cÖweavbgvjvi Aaxb †Kvb Kvh©aviv m~Pbv Kwi‡Z nq Ges KZ©cÿ … AwfgZ †cvlY K‡ib †h,
Awf‡hvM cÖgvwYZ nB‡j ¸iæZi `Ûv‡ivc Kiv cÖqvRb nB‡e, †m †ÿ‡Î KZ©c „ÿ-
(K) Awf‡hvMbvgv cÖYqb Kwi‡eb Ges †h mKj Awf‡hv‡Mi wfwˇZ Awf‡hvMbvgvwU cYÖxZ nBqv‡Q Dnvi weeiY Ges KZ…©cÿ Av‡`k c`Öv‡bi mg‡q
Ab¨ †h mKj NUbv we‡ePbv Kivi B”Qv †cvlY K‡ib ZvnvI Kg©Pvix‡K AewnZ Kwi‡eb;
(L) Awf‡hvMbvgv cvÖwßi ci Awfh³y e¨w³ `kwU Kvhw©`e‡mi g‡a¨ AvZ¥cÿ
mg_©b Kwiqv wjwLZ weew „Z †ck Kwi‡eb Ges cÖ¯ÍvweZ `Û †Kb Zvnvi Dci
Av‡ivc Kiv nB‡e bv Zrm¤ú‡K© KviY `k©vB‡eb Ges wZwb e¨w³MZfv‡e kybvbxi B”Qv †cvlY K‡ib wKbv ZvnvI D‡jøL Kwi‡eb|
Z‡e kZ© _v‡K †h, wba©vwiZ †gqv` †kl nBevi c‡ ~e© Awfh³ y e¨w³ hw` mgq ew„×i Rb¨
Av‡e`b K‡ib, Zvnv nB‡j KZ…©cÿ Zvnv‡K Zvnvi wjwLZ weew „Z †ck Kivi Rb¨ `kwU
Kvh© w`em ch©š Ímgq w`‡Z cvwi‡eb|
(2) †h †ÿ‡Î Awfh³ y e¨w³ wba©vwiZ ev ewa©Z mg‡qi g‡a¨ AvZ¥cÿ mg_©b Kwiqv weew „Z
†ck Kwi‡eb, †m †ÿ‡Î KZ©c …ÿ Awf‡hvM msµvšÍ Ab¨vb¨ welqvw`i mvÿ¨ cÖgvYmn
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Zvnvi weew „Z we‡ePbv Kwi‡eb Ges Abyiƒc we‡ePbvi ci KZ„c ©ÿ hw` AwfgZ †cvlY
K‡ib †h,-
(K) Awfh³ y e¨w³i weiæ‡× m~wPZ Kvh©avivwU AMÖmi nBevi ch©vß KviY bvB Zvnv nB‡j D³ Awf‡hvM cZÖ¨vnvi Kwi‡eb Ges Z`vbymv‡i D³ Kvha©viv wb®úwË nB‡e|
(খ) অিভয ু ব র িব ে সূিচ তকাযধ ারা ট AMÖmi nBevi chv©ß KviY আেছ এবং
অিভেযাগ মািণত হইেল jNyদ দােনর েয়াজন হইেব তাহা হইেল অিভযু
ব েক ব গতভােব নািনর সুেযা গদান কিরয়া য কােনা এক ট jNy দ দান
কিরেত পািরেবন অথবা jNyদ আেরােপর উে েশ িবধান ৪০এর অধীন একজন
তদ কমকতা িনেয়াগ কিরয়া উ cÖweav‡b বিণত কায ণালী অনুসর ণকিরেত পািরেবন;
(M) D³ Kvha©vivq অিভয ু ব র উপর ¸iæ `Û আেরােপর জন পযা কারণ আেছ তাহা হইেল অিভেযাগ তদে র জন অিভয ু ব র পদমযাদ ার wb‡¤œ b‡n Ggb
GKRb Z`š ÍKg©KZ©v ev ‡ÿÎ we‡k‡l Z`šÍ †evW© wb‡qvM Kwi‡eb|
(3) য ে অিভয ু ব িনধাি রত ev বিধত সমেয়র মেধ আ প সমথন কিরqv †Kvb
wjwLZ weew „Z †ck bv K‡ib †m‡ÿ‡Î কতৃপ অিভযু ব i পদমযাদ াi িনে নয় এমন
একজন তদ কমকতা wb‡qvM Kwi‡eb বা িবেশেষ তদ ‡evW© গঠন কিরেবb|
(4) তদ কারী কমকতা ev িবেশেষ তদ ‡evW ©Z`‡šÍi আেদশ cÖvwßi তািরখ হইেত
সাত ট Kvh ©িদবেসর মেধ তদে র কাজ Kwi‡eb এবং িবধান 42 এ বিণত প িত
অনুসাে রতদ পিরচালনা কিরেবন এবং কতৃপে র িনকট তদ িতেবদন পশ কিরেবন |
(5) তদ কারী কমকতা ev তদ ‡ev‡W©i Z`š Í িতেবদন াি র পর কতৃপ িতেবদন ট
িবেবচনা কিরেবন এবং উ অিভেযােগর Dci কতৃপে র িস া wjwce× কিরেবন এবং
অিভয ু ব েক উ িতেবদেনi Kwcmn িস া ট জানাইেবন|
(6) KZ…©cÿ hw` Dc-cÖweavb (5) †gvZv‡eK ¸iæ `Û Av‡iv‡ci wm×všÍ MÖnY K‡ib Zvnv nB‡j c¯ÖÍvweZ `Û Awfhy³ e¨w³ i cÖwZ †Kb Av‡ivc Kiv nB‡e bv Zrস েক mvZwU
কাযিদ বেসর মেধ তাহঁােক কারণ `kv©Bevi িনেদশ িদেবন|
(7) KZ…©cÿ D³ Kvha©vivi Dci P~ovšÍ িস া MÖnY কিরেবন এবং অিভয ু ব েক Dnv
অবিহত কিরেবন |
(8) এই cÖweav‡bi Aaxb Z`šÍ Kvh©avivq chv©ß সা মাণ wjwce× _vwK‡Z nB‡e Ges
†h †ÿ‡Î Z`š ÍKgK©Z©v ev Z`šÍ †evW© wbh³y Kiv nq, †m †ÿ‡Î D³ Kg©KZ©v ev †ev‡W©i
Z`†šÍi cÖwZ‡e`b ev cÖwZ‡e`‡bi mg_‡ ©b hyw³msMZ KviY _vwK‡Z nB‡e |
(9) GBiƒc mKj Z`šÍ Kvha©viv †Mvcbxq ewj qv MY¨ nB‡e| Ó
(underlines supplied)
What appears from the above is that if the authority thinks to impose major penalty on a delinquent employee then the authority at
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first shall frame charge under Sub-Probidhan (1)(Ka) of Probidhan 41 of Probidhanmala, 1992 against the delinquent employee stating the allegations and the facts or information on the basis of which such allegations were brought and the copy of charge as well as other documents shall be supplied to the delinquent employee. But from Annexure-A(1) to the writ petition it transpires that the authority temporarily dismissed the writ petitioner on 21.07.1999 while from Annexure-B to the writ petition the show cause notice appears to have been issued to the writ petitioner on 24.08.1999. On the other hand, Annexure-F shows that the charge has been framed against the writ petitioner on 28.11.1999. It is palpably transparent from record of the case in hand that in taking action against the writ petitioner- respondent No.1 inflicting major punishment the authority issued show cause notice to him on 24.08.1999, but charge was framed on 28.11.1999, which is in clear violation of Probidhan 41 of Probidhanmala, 1992 which vitiates the entire enquiry proceeding against the writ petitioner. It also divulges from the record that the writ petitioner has also not been supplied with the copy of charge.
Probidhan 42 of Probidhanmala, 1992 lays down in the following-
Ò42| Z`šÍ Kg©KZ©v KZ…©KAbymibxq Kvhc©ÖYvj x-(1) Z`šÍ Kg©KZ©v gvgjvi ïbvbx ïiæi w`b nB‡Z †kl bv nIqv ch©šÍ cwÖZw`b ï bvbx Abyôvb Kwi‡eb Ges KviY wj wce× bv Kwiqv D³ ïbvbx gyjZex ivLv hvB‡e bv| (2) Z`š KÍ vix Kg©KZ©v KZ©„K cwiPvwjZ Z`šÍÑ
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(K) Awfh³ y e¨w³ ‡hB mKj Awf‡hvM A¯^xKvi K‡ib †mB mKj Awf‡hvM A¯^xKvi K‡ib †mB mKj Awf‡hvM m¤ú‡K© †gŠwLK mvÿ¨ MnÖY I wj wce× Kiv nB‡e Ges Awf‡hvM m¤úwK©Z cvÖmswMK ev ¸iæZ¡cY~© `vwj wj K mvÿ¨ we‡ewPZ nB‡e|
(L) Awfh³ y e¨w³ cÖwZc‡ÿi mvÿxMY‡K †Riv Kivi, e¨w³MZfv‡e mvÿ¨ cÖ`vb Kiv Ges Zvnvi cÿ mg_©bKvix †Kvb e¨w³‡K mvÿx wnmv‡e Zje Kivi AwaKvix nB‡eb|
(M) Awf‡hv‡Mi mg_©‡b gvgjv Dc¯v ’cbKvix e¨w³ Awfh³ y e¨w³‡K Ges Zvnvi
mvÿxMY‡K †Riv Kivi AwaKvix nB‡eb|
(N) Awfh³ y e¨w³ cÖvmswMK bw_ c‡Îi Rb¨ Ab‡ yiva Kwi‡Z cvwi‡eb Z‡e Zvnv‡K bw_ †UvKvi Ask †Kvb cÖKv‡iB †`wL‡Z †`Iqv nB‡e bv |Ó
(underlines supplied)
From the inquiry report (Annexure-L(1)) it is seen that no oral evidence was recorded by the Inquiry Officer to prove the allegations brought against the respondent No.1, eventually no question of cross- examination of the prosecution witnesses by the writ petitioner- respondent No.1 has arisen at all. Thus, the inquiry proceeding in the case in hand has not been held in compliance with the provisions laid down in Probidhan 42 of Probidhanmala, 1992. In the aforesaid backdrop the impugned dismissal order of the respondent No.1 backed by flawed departmental proceeding cannot be sustainable in the eye of law.
In view of the proposition of law and the discussion made above, we find that the High Court Division did not commit any error of law and facts in making the Rule absolute in Writ Petition No.4540 of 2003 by the judgment and order dated 26.10.2009 which does not call for intervention by this Division.
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In the light of the observations made above, we do not find merit in the submissions of the learned Counsel for the appellants.
Accordingly, this Civil Appeal is dismissed without any order as to cost.
C.J. J.
J.
The 24th day of August, 2022 RRO; Total words: 3101