IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 5359 of 2021
IN THE MATTER OF:
An application under Article 102 of the Constitution of the People's Republic of Bangladesh.
AND
IN THE MATTER OF:
Md. Kamrul Hasan Kabir
….Petitioner Versus
The Government of Bangladesh and others
….Respondents
Ms. Shahina Tazrin, Advocate
….For the Petitioner Mr. A.B. Siddique, Advocate
….For the Respondents Present:
Mr. Justice Md. Jahangir Hossain
And
Mr. Justice S. M. Masud Hossain Dolon
Heard on: 02.01.2024, 10.01.2024, 11.01.24, 29.01.2024
Judgment on: 30.01.2024
S.M. Masud Hossain Dolon, J:
On an application under article 102 of the Constitution, the Rule Nisi has been issued in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned Memo No. 27.12.2672.571.02.009.2021.746 dated 27.02.2021 (Annexure-F) issued under the signature of the respondent No. 4 removing from service to the petitioner and Memo No. 27.12.2672.571.
1
02.012.21.21.1519 dated 25.05.2021 (Annexure-H) issued by the respondent No. 4 dismissing the service appeal of the petitioner should not be declared to have been passed without lawful authority and is of no legal effect and as to why a direction should not be given upon the respondents to reinstate the petitioner in his service and /or pass such other or further order or orders as to this Court may seem fit and proper.”
Facts relevant for disposal of the Rule in short, are that the petitioner was appointed as Security guard to the Dhaka Polli Bidyut Samity-1, Dhaka. When he was performing his duties as a security guard, Respondent No. 2, Director, Directorate of Inquiry and Discipline, Bangladesh Rural Electrification Board, Dhaka served a show cause notice upon him on 31.08.2020 alleging that the petitioner received Tk. 10,000/- illegal money from Lineman Grade-1, Md. Kholilur Rahman for false assurances to transfer him from one office to another. After receiving show cause notice the petitioner submitted his explanation and denied all the allegation brought against him. Thereafter, Respondent No. 2 issued formal charge against the petitioner and appointed an Inquiry Officer and the petitioner again denied all the allegation brought against him. The respondent No. 2 served final show cause notice to the petitioner and there against he submitted his reply and again denied all the allegation brought against him. On 27.02.2021, the respondent No. 4 finally relieving the petitioner from his service against this order petitioner preferred appeal before the President, Samity Board, Dhaka Polli Biduyt Samity-3 Genda, Dhaka who was dismissed the appeal by a non speaking order.
Thereafter, having found no other equally efficacious remedy the petitioner filed the instant writ petition and obtained the Rule.
Ms. Shahina Tazrin learned Advocate for the petitioner submits that the charge brought against the petitioner is vage, false, fabricated and concocted as such the removal of service may kindly be declared to have been issued without lawful authority and is of no legal effect. She further submits that the authority concerned violated the provision of Rules 42 and 45 of
the fõ£ ¢hc¤Év p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d, 1992 pwn¡¢dax 2012Cw. That the petitioner was not called for cross examine the witnesses and
the appeal was dismissed without assessment of the provision
of law with arbitrary and malafide manner of the respondents thereafter the entire departmental proceedings and impugned punishment may kindly be declared to have been without lawful authority and is of no legal effect.
Mr. A.B. Siddique, the learned Advocate for the respondent No. 4 submits that all legal formalities of the service Rules were followed by concerned authority and imposed punishment against the petitioner and as such the Rule may be discharged for the ends of justice. He also submits that the petitioner admitted that he had been received bribe for transfer of his one colleague as such he was liable to be convicted for misconduct and corruption under section 38(1)(ka) and (Ga). He further submits that the charges of the departmental proceedings brought against the petitioner under Rule 40 of the Service Rule were specific and at any stage there was no illegality, arbitrary and malafide done against the petitioner. Mr. Siddique lastly submits that at the time of inquiry the petitioner was appeared personally before the inquiry committee wherein all procedure under Rules 41 and 42 of the Service Rule were complied with and as such the writ petition is liable to be discharged.
We have perused the writ petition and all other relevant papers submitted by the petitioner in connection with the contents of this writ petition, supplementary affidavit and also affidavit in opposition submitted by the Respondent No.4. It
appears that the petitioner was working as security guard in Dhaka Polli Biduyt Samity. The petitioner admitted by his letter dated 31.08.2020 that he had received graft from one of his colleague by false assurance for favorable transfer on 14.11.2018, Annexure-C(1). On perusal of the document we found that the petitioner in his reply of the show cause notice, Annexure E-2, admitted that he received BDT 10,000/- to his colleague for his mother treatment.
On scrutiny of inquiry report we also found that one Rafia Hasan Taheri who was the then AGM (HR) and responsible for internal transfer of employees of the Polli Biduyt Samity-3 and he transferred one Md. Khalilur Rahman, security guard, the friend of the petitioner and others vide memo No. 27.12.2672.518.01.09.17.4724 dated 13.11.2017. The inter office transfers of employees were carried out under Mr. Taheri’s supervision as directed by superior and he affirmed that no one had recommended him to transfer Md. Khalilur Rahman and no one had any interfere in it. In his written statement he also stated that by official order the petitioner’s colleague was transferred in Shimulthali Zonal office from Amin Bazar Zonal office but transfer of Lineman Grade-1, Mr. Md. Khalilur Rahman had not been made any recommendation to him by anyone.
It appears from aforesaid discussion the petitioner received bribe from one of his colleague for favorable transfer after one year his colleague had been transferred and he has been admitted the same after 3 years of the alleged transfer which is absurd. On our query, we asked the Advocate of the Respondent No. 4 whether the petitioner was received bribe from his fried after one year he had been transferred in Shimulthali Zonal office from Amin Bazar Zonal office and he cannot give answer the perplex facts of this case and also he was unable to deny but he strongly argued petitioner is liable for corruption and misconduct.
The petitioner was removed from his service vide order dated 27.02.2021 (Annexure-F to the writ petition). On perusal
of the same it appears that the petitioner was condemned
under section 38(1) (Ka) and (Ga) and removal from his service was passed under Rules 39(1)(M)(3) of the fõ£ ¢hc¤Év p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d, 1992 pwn¡¢dax 2012Cw. Admittedly, the petitioner was serving the Polli Biduyt Samity-3 and before making such type of allegation he was not held liable in any sought of activity in his service rather he had been discharged his duties with satisfactions of the authority concerned.
The learned Advocate of the petitioner submits that by
issuing impugned order, the respondents violated the section 42
of the fõ£ ¢hc¤Év p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d, 1992 pwn¡¢dax 2012Cw which runs as follows:
42z ac¿¹ LjÑLaÑ¡ La«ÑL Ae¤plZ£u L¡kÑ fÜ¢ax
¢eLV A¡Njel fl ¢eS i¡o¡u HL¢V ¢m¢Ma q¡¢Sl¡ fœ ü¡rl
L¢lu¡ ac¿¹L¡l£ LjÑLaÑ¡/ac¿¹ L¢j¢Vl ¢eLV c¡¢Mm L¢lhez ac¿¹L¡l£ LjÑLaÑ¡/ac¿¹ L¢j¢V pw¢nÔø A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£l Ef¢Øq¢aa a¡q¡l ¢hl²Ü Be£a A¢ik¡Npj§q ®j±¢MLi¡h
E›¡fe L¢lhez Aaxfl E~š² ac¿¹L¡l£ LjÑLaÑ¡/ac¿ ¹L¢j¢V
A¢ik¡N fËj¡Zl SeÉ p¡r£cl ¢eLV qCa ¢m¢Mai¡h Sh¡h¾c£
NËqZ L¢lhe Hhw Aaxfl A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£ Eš² p¡r£L ®Sl¡ Ll¡l SeÉ Bqh¡e L¢lhez k¢c A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£ p¡r£L ®Sl¡ L¢la Q¡e ®pCrœ ®Sl¡l j¡dÉj p¡r£ k¡q¡
fËL¡n L¢lh a¡q¡ ac¿¹L¡l£ LjÑLaÑ¡ ¢m¢fhÜ L¢lhez ®Sl¡ ®no qCm ac¿¹L¡l£ LjÑLaÑ¡ fËaÉL p¡r £l Sh¡eh¾c£ J ®Sl¡ ®k
L¡NS ¢m¢fhÜ qCh Eq¡a p¡r£ Hhw pw¢nÓø A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£l ü¡rl NËqZ L¢lhe Hhw ac¿¹L¡l£ LjÑLaÑ¡/ac¿¹ L¢j¢Vl pcpÉNe ¢eSl¡J ü¡rl fËc¡e L¢lhez
ah, EõM b¡L ®k, k¢c ac¿¹l pju pw¢nÔø A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£ Ef¢Øqa e¡ b¡Le, ®pCrœ a¡q¡l Ef¢Øq¢a hÉ¢alL ac¿¹L¡l£ LjÑLaÑ¡ p¡r£cl Sh¡eh¾c£ NËqZ L¢lhe
Hhw p¡r£cl Sh¡eh¾c£ ¢m¢Ma qJu¡l fl p¡r£cl ü¡rl NËqZ
L¢lhe J ac¿¹L¡l£ LjÑLaÑ¡/ac¿¹ L¢j¢Vl pcpÉNe ¢eSl¡J
ü¡rl L¢lhez BlJ EõM b¡L ®k, k¢c A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£ Ef¢Øqa b¡¢Lu¡J p¡r£L ®Sl¡ L¢la Aü£L¡l
Lle ®pCrœ ®Sl¡ L¢la Aü£L¡l pð¢m¢a HL¢V ®e¡V p¡r£l
Sh¡eh¾c£ ¢m¢fhÜ Ll¡l L¡NS ¢m¢fhÜ L¢lu¡ p¡r£ Hhw pw¢nÔø A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£l ü¡rl NËqZ L¢lhez k¢c ®L¡e L¡lZ A¢ik¤š² LjÑLaÑ¡/LjÑQ¡l£ Eš² ü¡rl L¢la Aü£L¡l Lle
®pCr œ ac¿¹L¡l£ LjÑLaÑ¡/ac¿¹ L¢j¢V fuË¡Se£u ®e¡V ¢m¢fhÜ
L¢lu¡ p¡r£l Sh¡eh¾c£ e¢ba ¢m¢fhÜ L¢lhe Hhw Sh¡eh¾c£ ¢m¢fhÜ Ll¡l L¡NS p¡r£l ü¡rl NËqZ L¢lhe Hhw ac¿¹L¡l£ LjÑLaÑ¡/ac¿¹ L¢j¢Vl pcpÉNZ ¢eSl¡J ü¡rl L¢lhez
On plain reading of the Rules 42(2) of the fõ£ ¢hc¤Év p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d, 1992 pwn¡¢dax 2012Cw provides that the inquire committee will have take written statements from the witnesses to prove allegations then the delinquent employee
shall call for cross examination of the said witnesses. On our query, the learned Advocate of the Respondent No. 4 failed to produce any written examination of the witnesses and he also failed to produce any document that the petitioner was called
for cross examine the witnesses or he cross examined the witnesses. He then candidly admitted the inquiry committee
was not codified any witnesses statements and also petitioner
was not called for cross examination of the witnesses. The inquire committee relied upon their decision of written statement of the petitioner where he admitted that he had
been received bribe to transfer of his colleague, Md. Khalilur
Rahman. The appellate authority failed to examine the
petitioner admitted that he received bribe one after year he had
transfer Shimultholi Zonal office and he was not transferred thereafter. The appeal was dismissed by non-speaking order as
of the provision of Rule 45 of the Service Rules. We found that
the inquire committee was not examined any witness and was
not called for cross examined of the witness as such inquire committee is violated section 42 of the fõ£ ¢hc¤Év p¢j¢a LjÑQ¡l£ Q¡L¥l£ ¢h¢d, 1992 pwn¡¢dax 2012Cw. and appellate authority violated Rule
45 of the Service Rules.
In view of the above facts and circumstances coupled with the provision of law quoted above, we find substances in the submission of the learned Advocate for the petitioner.
Thus, we find merit in this Rule.
Accordingly, the Rule is made absolute. Hence memo No. 27.12.2672.571.02.009.2021.746 dated 27.02.2021 convicted the petitioner and removed him from service, Annexure-F and memo No. 27.12.2672.571.02.012.21.1519 dated 25.05.2021, Annexure-H dismissed the appeal by non-speaking order is without lawful authority and is of no legal effect and are hereby set-aside. The Respondents are directed to re-instate the petitioner in his Job within 60(sixty) days from the date of the receipt of this judgment.
However, there would be no order as to costs. Md. Jahangir Hossain, J:
I agree.
Asad/B.O