IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH  

AAppppeellllaattee DDiivviissiioonn

PRESENT

Mr. Justice Hasan Foez Siddique, C. J.

Mr. Justice M. Enayetur Rahim

Mr. Justice Md. Ashfaqul Islam

Mr. Justice Jahangir Hossain

CIVIL APPEAL NOS. 19 AND 20 OF 2015

(From the judgment and order dated the 24th day of January, 2012 passed by the Administrative Appellate Tribunal, Dhaka, in Administrative Appellate Tribunal Appeal Nos.270 of 2009 and 279 of 2009 respectively ).

Government of Bangladesh and  :    .......... Appellants

another                                 (In the both cases)

-Versus-

Md. Nazrul Islam Biswas For the Appellants

(In both the cases)

For the Respondent

(In both the cases)

Date of hearing Date of judgment

:                                                                        .......... Respondent

(In the both cases)

:       Mr. A.M. Amin Uddin, Attorney General, with Ms. Abantee Nurul, Assistant Attorney General, and Mr. Mohammad Saiful Alam, Assistant Attorney General, instructed by Mr. Haridas Paul, Advocate-on-Record

:       Mr. Mohammad Abdul Hai, Advocate-on-Record

:      The 12th , 18th and 19th day of July, 2023

:      The 1st day of August, 2023

JUDGMENT

M. Enayetur Rahim, J:- These two appeals, by leave, are directed against the judgement and order dated 24.01.2012 passed by the

Administrative Appellate Tribunal in A.A.T Appeal Nos. 270 of 2009 and 279 of 2009 allowing the A.A.T Appeal No. 270 of 2009 and dismissing the A.A.T Appeal No. 279 of 2009.

The facts, relevant for disposal of the appeals are that the respondent herein filed A. T. Case No.217 of 2005 before the Administrative Tribunal No.2, Dhaka challenging the order of his compulsory retirement from service. He contended, inter

alia, that he was appointed on 27.05.1980 as Library Assistant in the Film Archive of the Ministry of Information and had been working there with utmost sincerity, honesty and to the satisfaction of all concerned. The respondent No.2, Director General  (Current Charge) without giving him any opportunity to defend and without any charge sheet or show cause notice, suspended the respondent from service by the order dated 17.09.2002 and long thereafter on 14.09.2003 started a departmental proceeding against him by framing a charge on the allegation that the respondent disobeyed the order of his superior officers and that he attacked his superior officer on 15.09.2002 and wounded him and broke his one teeth and a complaint was lodged against him on that allegation. The respondent submitted his written statement on 20.09.2003  before  the  authority denying the allegations brought against him but the authority without considering his written statement, constituted an enquiry board on 09.10.2003 comprising three members, two of whom were not at all impartial. The petitioner prayed to withdraw those 2 members from the enquiry board but his prayer was rejected and ultimately on the basis of the enquiry report, submitted by that enquiry board the  petitioner was awarded the punishment of compulsory retirement from service under section 4  (3)(b) of the Government Servants (Discipline and Appeal) Rules, 1985 by the Director General (current charge) beyond his power and jurisdiction on 07.07.2004. The petitioner submitted an appeal to the Ministry of Information on 20.07.2004 but the said appeal was rejected and, thereafter, the present respondent as petitioner filed the above mentioned case before the Administrative Tribunal on 20.03.2005.

Present appellants contested that A.T. case by filing written objection denying the material allegations made by the respondent. The case of the appellants is that the respondent had no qualification for holding the post of Library Assistant, in spite of which he had been regularized in the post of Library Assistant on humanitarian ground. But his behavior was not satisfactory, he assaulted the Administrative Officer and as a result he was placed under suspension on the basis of the complaint lodged against him. Prior to the said incident, the petitioner was placed under suspension for 3 (three)times due to the allegations against him. The allegation against the petitioner was proved in the departmental proceeding and he was given all opportunities to defend himself in the departmental proceeding. The petitioner was imposed the penalty of compulsory retirement rightly after observing all requirements of law.

The Administrative Tribunal, on hearing both the parties and considering the materials on record allowed that A.T. case in part and set aside the penalty of compulsory retirement, but imposed the penalty of reduction in rank denying arrear pay and other service benefits.

Being aggrieved by that judgment and order of the Administrative Tribunal the respondent preferred A. A. Appeal No.270 of 2009 and the appellants preferred A. A. T. Appeal No.279 of 2009.

The Administrative Appellate Tribunal heard and disposed both the appeals analogously by the impugned judgment and order found the impugned penalty imposed on the respondent illegal making comment to the effect that the said punishment was imposed by Md. Aminul Islam, Director General (Current

Charge) who was, admittedly, holding current charge and was not the appointing authority and that officer on stop gap arrangement in place of the appointing authority is not competent to perform statutory functions and, therefore, the very penalty having been imposed by an incompetent authority is void.

Being aggrieved by this judgment and order of the Administrative Appellate Tribunal, the Government of Bangladesh and others have preferred Civil Petitions for Appeal No. 2137 and 2138 of 2012 before this Division and leave was granted on 15.12.2014. Hence, these appeals.

Mr. A.M. Amin Uddin, learned Attorney General, appearing for the petitioner submits that the Administrative Appellate Tribunal erred in law in dismissing Appeal No.279 of 2009 and allowing Appeal No.270 of 2009 without any discussions of the respective case of the parties simply finding that the penalty of compulsory retirement was void as it has been passed by an incompetent authority. Learned Attorney General also submits that the Director General in charge having passed the order of compulsory retirement by drawing a departmental proceeding according to Rule 4(3)(b) of the Government Servants (Discipline and Appeal) Rule, 1985 by observing all formalities and procedures according to law and thus, the Administrative Appellate Tribunal erred in law in setting aside the said order and passing the judgment and order. 

The learned Attorney General finally submits that the Director General in charge having exercising all other functions and duties of the Department being quite competent to pass the order of compulsory retirement as his normal duties, the Administrative Appellate Tribunal erred in law in passing the impugned judgment dated 24.01.2012 which is liable to be set aside.

Per contra, Mr. Mohammad Abdul Hai, learned Advocate-On- Record, appearing on behalf of the respondent made submissions in support of the impugned judgment and order passed by the Administrative Appellate Tribunal.

We have considered the submissions of the learned Advocates appearing for the respective parties, perused the judgment of the Appellate Tribunal as well as the Tribunal and connected papers on record.

In this particular case, the moot question is whether Director General, who was holding the current charge, had got the authority to pass the order of dismissal.

The Administrative Tribunal as well as the Appellate Tribunal have held that the Director General holding current charge had no authority to pass the order of dismissal.

 The learned Attorney General placed before the Court the Nitimala in regard to the current and additional charge issued by the concerned Ministry, which runs as follows:

5-2-92Bs ""bs-mg (wewa-1)/Gm-11/92-30(150)  ZvwiL: 22-10-98 evs 

welqt  PjwZ `vwqZ¡/AwZwi³ `vwqZ¡ cÖ`vb cÖm‡½|

Dc‡iv³ wel‡q AÎ gšY¿vj q KZ©„K RvixK…Z mg/Avi-1/Gm-3/90-43(200), ZvwiLt 1-2-90Bs/19-10-

1396 evs ¯§vi‡Ki Aby‡”Q`¸wj wb¤œiƒ‡c cÖwZ¯v ’wcZ nB‡et

1| Gd, Avi 49 G GKRb miKvwi KgK ©Z©v/KgP©vix‡K A¯v’qx wnmv‡e GKB ms‡M `yB ev Z‡ZvwaK c‡`i

`vwqZ¡ cÖ`v‡bi e¨e¯’v Av‡Q, Z‡e GKRb miKvwi Kg©KZ©v/Kg©Pvix GKB ms‡M `yB ev Z‡ZvwaK ¯vq ’x c‡` ¯’vqxfv‡e (Substantively) wbhy³ nB‡Z cv‡ib bv|

2|  D³ wewa ‡gvZv‡eK wewfbœ gšY¿vj q/wefvM mvaviYZt kb~¨ c‡` h_vµ‡g mgc`avix‡K AwZwi³ `vwqZ¡

Ges wb¤œc`avix‡K PjwZ `vwqZ¡ cÖ`vb Kwiqv _v‡Kb| BwZc‡ ~e© ivóªcwZ wb‡`©k cÖ`vb KwiqvwQ‡jb †h,

PjwZ `vwqZ¡ Ac‡ ©Yi cwie‡Z© c‡`vbœwZi gva¨‡g k~b¨ c`mg~n c~iY Kwi‡Z nB‡e| D³ wb‡`©k Abyhvqx Pj wZ/AwZwi³ `vwqZ¡ c`Övb wbiærmvwnZ Kiv nB‡Z‡Q| Z‡e wewfbœ Kvi‡Y e¨e¯v’wU m¤ú~Y© we‡jvc Kiv

m¤¢e nq bvB| fwel¨‡Z Pj wZ/AwZwi³ `vwqZ¡ c`Öv‡bi cÖeYZv †iva Ges we‡kl c‡ÖqvR‡b mywbw`©ó

bxwZgvjv AbymiY Kwiqv e¨wZµgx †ÿÎ wnmv‡e Giƒc `vwqZ¡ cÖ`v‡bi e¨e¯v P ’vjyKi‡Yi Rb¨ 27-5-89Bs

Zvwi‡Li Gm,Gm, weÕi wm×všÍ Abyhvqx Ges A_© gš¿Yvj‡qi m¤§wZµ‡g wb‡¤œv³ wb‡`©kmg~n Rvix Kiv nBjt-

11.     mKj ¯’vqx kb~¨c` wb‡qvMwewa Abyhvqx c‡`vbœwZ/be wb‡qv‡Mi gva¨‡g ¯’vqxfv‡e c~iY Kivi Z¡wir e¨ev ¯ ’

MÖnY Kwi‡Z nB‡e|

12.    b~Zb óm „c‡` PjwZ/AwZwi³ `vwqZ¡ cÖ`vb Kiv hvB‡e bv|
13. c‡`i `vwqZ¡ hw` GBiƒc nq †h, c`ci~‡Yi AvbyôvwbKZv m¤úv`b ch©šÍ c`wU k~b¨ ivLv Rb¯^v‡_© mgxPxb

b‡n, Zvnv nB‡jB †KejgvÎ wb‡¤œv³ e¨wZµgag©x †ÿ‡Î PjwZ `vwqZ¡ cÖ`vb we‡ePbv Kiv hvB‡Z cv‡it-

1. †R¨ôZv wbY©‡q RwUjZv;
2. wb‡qvMwewa cYÖq‡b wej ¤^;
3. c‡`vbœwZ‡hvM¨ Kg©KZ©v/Kg©Pvixi Afve;
4. wb‡qvMwewa Abyhvqx wb‡qvM wej¤ ^;
5. c`avixi QzwU ev cÖwkÿ‡Yi Rb¨ `vwqZ¡ Z¨vM| Z‡e QzwU, †cÖlY I cÖwkÿ‡Yi Rb¨ msiwÿZ c` _vwK‡j Bnv cÖ‡hvR¨ nB‡e bv|

14.   AbwZwej‡¤^ PjwZ `vwqZ¡/AwZwi³ `vwq‡Z¡i ¯v ’qxZ¡ `yB gv‡mi AwaK nB‡j welqwU   `yB gvm AwZµ‡gi

c~‡e© mswkøó c‡`vbœwZ KwgwU/‡ev‡W©i Aby‡gv`‡bi Rb¨ †ck Kwi‡Z nB‡e|

15. k~b¨c‡` mgc`avix Kg©KZ©v/Kg©Pvix‡`i ga¨ nB‡Z AwZwi³ `vwqZ¡ c`Övb‡K AMÖMY¨Zv †`Iqv nB‡e|
16. mgc`avix‡`i ga¨ nB‡Z AwZwi³ `vwqZ¡ cÖ`vb m¤¢e bv nB‡j Ae¨ewnZ wb¤œc`avix‡`i ga¨ nB‡Z

†R¨ôZv I Kg©`ÿZvi wfwˇZ c‡`vbœwZi †hvM¨Zv we‡ePbv Kwiqv PjwZ `vwqZ¡ cÖ`vb Kiv hvB‡Z cv‡i|

17.   Ae¨ewnZ wb¤œavix‡`i ga¨ nB‡Z Kvnv‡KI PjwZ `vwqZ¡ †`Iqv m¤¢e bv nB‡j wb¤œewY©Z kZ©mv‡c‡ÿ GKavc bx‡Pi c`avix‡K PjwZ `vwqZ¡ †`Iqv hvB‡Z cv‡it-

1. mswkøó c‡`vbœwZ KwgwUi Aby‡gv`b MÖnY Kwi‡Z nB‡e|
2. ga¨eZx© c`wU ï b¨ Av‡Q A_ev Ae¨ewnZ wb¤œc`avix‡`i g‡a¨ `vwqZ¡ c`Öv‡bi  

    Rb¨ Dchy³ Kg©KZ©v/Kg©Pvix bvB GB g‡g© cZÖ¨qb cÖ`vb Kwi‡Z nB‡e|

3.   hvnv‡K `vwqZ¡ †`Iqv nB‡e Zvnvi Dc‡ii c`avix Kvnv‡KI PjwZ `vwqZ¡cÖvß Kg©KZ©v/Kg©Pvixi Aaxb¯’ Kiv hvB‡e bv|

18.              hvnv‡K Pj wZ `vwqZ¡ †`Iqv nB‡e wZwb wbR¯^ c~ec©‡`i `vwqZ¡ n¯ÍvšiÍ Kwiqv Zvnvi Pj wZ `vwqZ¡cÖvß

c‡` †hvM`vb Kwi‡eb| Zvnvi c~e©c`wU mgc`avix‡`i ga¨ nB‡Z Kvnv‡KI AwZwi³ `vwqZ¡ c`Öv‡bi

gva¨‡g c~iY Kiv nB‡e A_ev mvgwqKfv‡e c‡`vbœwZ Øviv c~iY Kiv hvB‡e, Z‡e kZ© _v‡K †h, PjwZ `vwqZ¡cÖvß KgK©Z©v/Kg©Pvix Zuvnvi c~ec©‡` †diZ Avwm‡j mvgwqKfv‡e c‡`vbœwZcÖvß

Kg©KZ©v/Kg©Pvix‡K Zvnvi ce~©c‡` c`vebwZ Kwi‡Z nB‡e| Z‡e †h ¯’v‡b c` Lvwj nB‡e mvaviYfv‡e

‡mB  ¯’v‡b/Kg©¯’‡ji  Dchy³  KgK©Z©v/Kg©Pvix‡K  Pj wZ  `vwqZ¡/AwZwi³  `vwqZ¡  cÖ`v‡bi  wel‡q

AMÖvwaKvi †`Iqv nB‡e| †Kvb Dch³ y KgK©Z©v/Kg©Pvix cvIqv bv †M‡j †Kej gvÎ †mB †ÿ‡ÎB

Dc‡iv³ e¨e¯’v MÖnY Kiv hvB‡e|

19.              PjwZ `vwqZ¡ cÖ`vb, e`jx ev c‡`vbœwZ  ev wb‡qvM b‡n, Ges `vwqZ¡cÖvß Kg©KZ©v/Kg©Pvix PjwZ `vwq‡Z¡i Kvi‡Y Giƒc †Kvb myweav `vwe Kwi‡Z cvwi‡eb bv wb‡qvMwewa Abymv‡i k~b¨c` c~iY Kiv nB‡e Ges †m †ÿ‡Î wZwb †KvbI AMÖMY¨Zv ev AwaKvi AR©b Kwi‡eb bv|
20.              AwZwi³ `vwqZ¡cÖvß KgK©Z©v/Kg©Pvix Zvnvi wbR¯^ c‡`i `vwqZ¡ n¯vÍšÍi Kwi‡eb bv| Pj wZ/AwZwi³

`vwqZ¡cÖvß Kg©KZ©v/Kg©Pvix D³ ` wqZ¡cÖvß c‡` ¯’vqx c`avixi gh©v`v `vex Kwi‡Z cvwi‡eb bv|

PjwZ/AwZwi³ `vwqZ¡ cvjbKv‡j wKfv‡e c`ex wjwLZ nB‡e †mB m¤ú‡K© ms¯v ’cb gšY¿vj ‡qi 21-1-

80Bs Zvwi‡Li BwW/GmG-1/275/79-48-(50) bs ¯§viK AbymiY Kwi‡Z nB‡e|

21.            PjwZ/AwZwi³ `vwq‡Z¡i †ÿ‡Î miKvwi Kg©KZ©v/Kg©Pvixi †eZb fvZvw` A_© gš¿Yvjq nB‡Z RvixK…Z 7-6-82Bs Zvwi‡Li ¯§viK bs-GgGd/Avi-2/Gwc-5/82-175 Øviv wbqwš¿Z nB‡e Ges fwel¨‡Z

RvixK…Ze¨ Ab¨vb¨ wb‡`©k cvjb Kwi‡Z nB‡e| (underlines supplied).

22.             Dc‡iv³ wb‡`©kmg~n ivR¯^ I Dbœqb ev‡R‡U Aš©fÍz³ c`mg~‡ni †ÿ‡Î cÖ‡hvR¨ nB‡e|

3|  Bnv‡Z A_© gšY¿vj ‡qi m¤§wZ iwnqv‡Q|                                    

    mwPe ms¯’vcb gšY¿vj q''

Eventually said notification was replaced by notification No.05.00.0000.170.11.017.21-97 dated 18.04.2023. In the said notification, the word ‘PjwZ `vwqZ¡Õ has been defined in clause 2 (Kha) which is as follows:

ms‘vtÑ

 ""PjwZ `vwqZ¡Ó A_© mvgwqKfv‡e †Kv‡bv miKvwi KgP©vix‡K Zvnvi g~j c‡`i cieZ©x D”PZi ‡Kv‡bv cKª Z…  k~b¨c‡` `vwqZ¡ cª`vb;

Clause 5 of the said Nitimala is as follows:

Ó5| PjwZ `vwqZ¡ cª`v‡bi c×wZt- Pj wZ `vwqZ¡ wb¤œiƒ‡c c`ÖË nB‡e, h_vt-

(K)  mswkøó c‡`i wb‡qvMKvix KZ„©cÿ Pj wZ `vwqZ¡ c`Öv‡bi ï iæi ZvwiL D‡j øL Kwiqv Awdm Av‡`k ev               cÖ‘ vcb Rvwi Kwi‡e; 

( L)  Pj wZ `vwqZ¡cÖvß Kg©Pvix Zvnvi c~ee©Zx© c‡`i `vwqZ¡ n¯vÍšÍi Kwiqv Pj wZ `vwq‡Z¡i c‡` †hvM`vb

Kwi‡eb; 

Ges

(M)  PjwZ `vwqZ¡ cÖ`v‡bi †ÿ‡Î c‡`vbœwZi Rb¨ cªYxZ †R¨ôZv msµvšÍ †M‡ ÖWkb ZvwjKv h_vh_fv‡e

AbymiY Kwi‡Z nB‡e Ges GB‡ÿ‡Î PvKwi m‡šÍvlRbK _vwK‡j †R¨ô Kg©KZ‡K v© ev` w`qv Kwbô Kg©KZv©‡K PjwZ `vwqZ¡ cÖ`vb Kiv hvB‡e bv|Ó

 Clause 7 of the said Nitimala is as follows:

""7|  PjwZ `vwqZ¡ cª`v‡bi ‡gqv`t- wb‡qvMKvix KZ©„cÿ Aby‡”Q` 3 Gi weavb mv‡c‡ÿ mvgwqKfv‡e 06

(Qq) gv‡mi Rb¨ PjwZ `vwqZ¡ cÖ`vb Kwi‡Z cvwi‡e, Z‡e 06 (Qq) gv‡mi AwaK PjwZ `vwqZ¡ cÖ`v‡bi cÖ‡qvRb nB‡j, 06 (Qq) gvm AwZµ‡gi c‡ ~e© Avewk¨Kfv‡e mswkøó c‡`vbœwZ KwgwU ev †ev‡W©i Aby‡gv`b MÖnY Kwi‡Z nB‡e|Ó

Clause 8 of the said Nitimala is as follows:

""8|  Pj wZ `vwqZ¡ c`ªv‡bi kZ©vw`t- (1) mgc`avix‡`i ga¨ nB‡Z AwZwi³ `vwqZ¡ c`ªvb Kiv m¤¢e bv

nB‡j  †Kej  k~b¨  c‡`i  wdWvi³ fz  Ae¨ewnZ  wb¤œc`avix‡`i  ga¨  nB‡Z  †R¨ôZv,  Kg©`ÿZv I m‡šÍvlRbK PvKwii wfwˇZ c‡`vbœwZi †hvM¨Zv we‡ePbv Kwiqv PjwZ `vwqZ  ¡cª`vb Kiv hvB‡e|Ó

Upon  perusal  of  the  above  Nitimalas  it  transpires  that the  current  charge  given  to  a  particular  officer  by  an official notification has got some force of law, and when it is given for unlimited period it is to be presumed that he has given  all  the  administrative  and  financial  power  of  the institution.  The  current  charge  given  by  a  gazette notification  cannot  be  termed  or  treated  that  the  concerned officer will perform only day to day  routine work, rather on the strength of such notification he has been vested all the administrative  and  financial  power  to  be  done  in  accordance with rules of business. Said current charge cannot be equated as a stop gap arrangement.

 In the instant case the Director General, who passed the impugned order of dismissal, had given current charge by a gazette notification dated 04.12.2003 by the concerned authority of the Government and as such, we are of the view that he had got every authority to exercise the administrative power and it cannot be said that he had acted illegally having no authority and jurisdiction and as such the Tribunal as well as the Administrative Appellate Tribunal committed serious error in passing the impugned judgment and order.

Further, it also transpires from the record that the respondent was appointed as a Curator Clerk on 27.05.1980 in the Film Institute and Archive by Mr. A.K.M. Abdur Rouf, who at the relevant time held the post of Curator as current charge i.e. this very appointment of the respondent was made an officer, who at the relevant time was holding the current charge.

In view of the above, we are of the view that in this particular case the Director General, Current Charge, had got the authority to pass the order of dismissal.

We find substance in these appeals.

Accordingly, both the appeals are allowed. The impugned judgment and order passed by the Administrative Appellate Tribunal are set aside. 

C. J. J. J.

B.S./B.R./ *Words-2367*