Criminal case against delinquent employees to be disposed of first
Appellate Division
(Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Government of Bangladesh and others ………Petitioners
vs
Md Abdul Karim ……..
…………………..Respondent*
Judgment
June 9th, 2014
Government Servants (Discipline and Appeal) Rules, 1985
Rule 25(1)
The purpose of section 25(1) of the Rules is to enable the authority to impose appropriate penalty on the delinquent employee taking into consideration the punishment, if any, imposed on that delinquent employee in the criminal case.
Rule 25(1)
Imposition of punishment in the departmental proceeding will remain stayed only until disposal of the criminal case. After disposal of the criminal case the authority will have no bar in imposing any punishment on the delinquent employee in the departmental proceeding ……..(6)
Biswajit Deb Nath, Deputy Attorney-General instructed by B Hossain, Advocate-on-Record-For the Petitioners.
Khurshid Alam Khan, Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For the Respondent.
Judgment
Nazmun Ara Sultana J: The delay in filing this Civil Petition for Leave to Appeal be condoned.
2. This Civil Petition for Leave to Appeal, at the instance of the Government of Bangladesh and others, is directed against the judgment and order dated 21-10-2009 passed by the Administrative Appellate Tribunal, Dhaka in AAT Appeal No. 45 of 2005 dismissing the appeal and thereby affirming the judgment and order dated 29-11-2004 passed by the Administrative Tribunal, Bogra in AT Case No. 92 of 2003 allowing the same.
3. The respondent herein, as petitioner, filed the above mentioned AT Case No. 92 of 2003 challenging the order of his dismissal from service stating, inter-alia, that he was appointed as Food Inspector under Ministry of Food and joined in the office of the Controller of Food, Dinajpur on 24-11-1977. While he was serving as Officer-in-Charge of Fakirgonj Food Godown (LSD) he was put under suspension on the allegation of misappropriation of the Government goods/commodities of the said Fakirgonj Food Godown worth Tk: 21,61,200.79. A departmental proceeding under Government Servants (Discipline and Appeal) Rules, 1985 was started against the petitioner and charges of misconduct, corruption and inefficiency were framed against him. The petitioner, submitted his reply to that charges but the authority concerned without considering the reply of the petitioner served a second show cause notice on the petitioner on 7-4-2002. The petitioner submitted his reply to that second show cause notice also but the authority without considering his reply passed the impugned order of his dismissal and also directed him to deposit Taka 19,45.000 to the government Treasury. The petitioner preferred departmental appeal against that order and as the departmental appeal was not disposed of within 2 (two) months he filed the said at Case on 30-12-2003.
4. The present appellant contested that AT case by filing written statement denying the material allegations of the petitioner and stating. Tnteralia, that the charges against the petitioner was proved in the departmental proceeding and the petitioner was given all opportunities to defend himself but the reply of the petitioner was not found satisfactory and the authority concerned, therefore, imposed the impugned punishment upon compliance with all the requirements of law.
5. The Administrative Tribunal, after hearing both the parties and on consideration of the materials on record, allowed that A. T. case on the ground only that there was a criminal case pending against the petitioner on the selfsame allegations and in that circumstances the imposition of punishment upon the petitioner in the departmental proceeding was illegal in view of section 25(1) of the Government Servants (Discipline and Appeal) Rules, 1985.
The learned Judge of the Administrative Tribunal by his impugned judgment and order declared the impugned order of dismissal illegal and directed the respondents to reinstate the petitioner in the service immediately and give him all arrear salary and other financial benefits. The Administrative Tribunal did not state anything as to whether the departmental proceeding started against the petitioner will be proceeded again after disposal of the criminal case pending against him.
6. Section 25(I) of the Government Servants (Discipline and Appeal) Rules, 1985 has stated that if there be any prosecution or legal proceeding. Against the Government servant pending in any court on the same issue, there shall be no bar on the disposal of the department proceeding against him, but if the authority decides to impose any penalty on such Government servant in the departmental proceeding, imposition of such penalty shall be stayed until disposal of that prosecution or legal proceeding.
This section does not say at all that if any criminal case is pending against the Government servant he cannot be imposed any punishment in the departmental proceeding started on the selfsame allegations. This section 25(1) or any other section of the Government Servants (Discipline and Appeal) Rules, 1985 does not say also that if any delinquent employee is convicted in a criminal case he cannot be imposed any penalty in the departmental proceeding for the same offence.
What this section 25(1) says is that the imposition of punishment in the departmental proceeding will remain stayed only until disposal of the criminal case. After disposal of the criminal case the authority will have no bar in imposing any punishment on the delinquent employee in the departmental proceeding.
7. Evidently, the Administrative Tribunal has committed illegality in setting aside the impugned order of punishment without making any observation to the effect that after disposal of the criminal case against the petitioner the authority will be at liberty to consider the imposition of any penalty on the petitioner in that departmental proceeding again and that the departmental proceeding will remain stayed at the stage of awarding punishment until disposal of the criminal case filed against the petitioner on the same issue.
8. The Administrative Appellate Tribunal also has committed the same wrong and illegality in affirming the judgment and order of the administrative tribunal without making any observation at least to the effect that the departmental proceeding against the petitioner would remain alive and after the disposal of the criminal case against him the authority concerned would be able to impose appropriate punishment on the petitioner. In fact the purpose of section 25(1) of the Government Servants (Discipline and Appeal) Rules, 1985 is to enable the authority to impose appropriate penalty on the delinquent employee taking into consideration the punishment, if any, imposed on that delinquent employee in the criminal case.
However, we dispose of this Civil Petition for Leave to Appeal making observation to the effect that the departmental proceeding started against the petitioner-respondent Md Abdul Karim is still alive and the authority concerned may consider imposition of punishment on the petitioner-respondent in that departmental proceeding afresh after disposal of the criminal case pending against him on the same issue.
(Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Government of Bangladesh and others ………Petitioners
vs
Md Abdul Karim ……..
…………………..Respondent*
Judgment
June 9th, 2014
Government Servants (Discipline and Appeal) Rules, 1985
Rule 25(1)
The purpose of section 25(1) of the Rules is to enable the authority to impose appropriate penalty on the delinquent employee taking into consideration the punishment, if any, imposed on that delinquent employee in the criminal case.
Rule 25(1)
Imposition of punishment in the departmental proceeding will remain stayed only until disposal of the criminal case. After disposal of the criminal case the authority will have no bar in imposing any punishment on the delinquent employee in the departmental proceeding ……..(6)
Biswajit Deb Nath, Deputy Attorney-General instructed by B Hossain, Advocate-on-Record-For the Petitioners.
Khurshid Alam Khan, Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For the Respondent.
Judgment
Nazmun Ara Sultana J: The delay in filing this Civil Petition for Leave to Appeal be condoned.
2. This Civil Petition for Leave to Appeal, at the instance of the Government of Bangladesh and others, is directed against the judgment and order dated 21-10-2009 passed by the Administrative Appellate Tribunal, Dhaka in AAT Appeal No. 45 of 2005 dismissing the appeal and thereby affirming the judgment and order dated 29-11-2004 passed by the Administrative Tribunal, Bogra in AT Case No. 92 of 2003 allowing the same.
3. The respondent herein, as petitioner, filed the above mentioned AT Case No. 92 of 2003 challenging the order of his dismissal from service stating, inter-alia, that he was appointed as Food Inspector under Ministry of Food and joined in the office of the Controller of Food, Dinajpur on 24-11-1977. While he was serving as Officer-in-Charge of Fakirgonj Food Godown (LSD) he was put under suspension on the allegation of misappropriation of the Government goods/commodities of the said Fakirgonj Food Godown worth Tk: 21,61,200.79. A departmental proceeding under Government Servants (Discipline and Appeal) Rules, 1985 was started against the petitioner and charges of misconduct, corruption and inefficiency were framed against him. The petitioner, submitted his reply to that charges but the authority concerned without considering the reply of the petitioner served a second show cause notice on the petitioner on 7-4-2002. The petitioner submitted his reply to that second show cause notice also but the authority without considering his reply passed the impugned order of his dismissal and also directed him to deposit Taka 19,45.000 to the government Treasury. The petitioner preferred departmental appeal against that order and as the departmental appeal was not disposed of within 2 (two) months he filed the said at Case on 30-12-2003.
4. The present appellant contested that AT case by filing written statement denying the material allegations of the petitioner and stating. Tnteralia, that the charges against the petitioner was proved in the departmental proceeding and the petitioner was given all opportunities to defend himself but the reply of the petitioner was not found satisfactory and the authority concerned, therefore, imposed the impugned punishment upon compliance with all the requirements of law.
5. The Administrative Tribunal, after hearing both the parties and on consideration of the materials on record, allowed that A. T. case on the ground only that there was a criminal case pending against the petitioner on the selfsame allegations and in that circumstances the imposition of punishment upon the petitioner in the departmental proceeding was illegal in view of section 25(1) of the Government Servants (Discipline and Appeal) Rules, 1985.
The learned Judge of the Administrative Tribunal by his impugned judgment and order declared the impugned order of dismissal illegal and directed the respondents to reinstate the petitioner in the service immediately and give him all arrear salary and other financial benefits. The Administrative Tribunal did not state anything as to whether the departmental proceeding started against the petitioner will be proceeded again after disposal of the criminal case pending against him.
6. Section 25(I) of the Government Servants (Discipline and Appeal) Rules, 1985 has stated that if there be any prosecution or legal proceeding. Against the Government servant pending in any court on the same issue, there shall be no bar on the disposal of the department proceeding against him, but if the authority decides to impose any penalty on such Government servant in the departmental proceeding, imposition of such penalty shall be stayed until disposal of that prosecution or legal proceeding.
This section does not say at all that if any criminal case is pending against the Government servant he cannot be imposed any punishment in the departmental proceeding started on the selfsame allegations. This section 25(1) or any other section of the Government Servants (Discipline and Appeal) Rules, 1985 does not say also that if any delinquent employee is convicted in a criminal case he cannot be imposed any penalty in the departmental proceeding for the same offence.
What this section 25(1) says is that the imposition of punishment in the departmental proceeding will remain stayed only until disposal of the criminal case. After disposal of the criminal case the authority will have no bar in imposing any punishment on the delinquent employee in the departmental proceeding.
7. Evidently, the Administrative Tribunal has committed illegality in setting aside the impugned order of punishment without making any observation to the effect that after disposal of the criminal case against the petitioner the authority will be at liberty to consider the imposition of any penalty on the petitioner in that departmental proceeding again and that the departmental proceeding will remain stayed at the stage of awarding punishment until disposal of the criminal case filed against the petitioner on the same issue.
8. The Administrative Appellate Tribunal also has committed the same wrong and illegality in affirming the judgment and order of the administrative tribunal without making any observation at least to the effect that the departmental proceeding against the petitioner would remain alive and after the disposal of the criminal case against him the authority concerned would be able to impose appropriate punishment on the petitioner. In fact the purpose of section 25(1) of the Government Servants (Discipline and Appeal) Rules, 1985 is to enable the authority to impose appropriate penalty on the delinquent employee taking into consideration the punishment, if any, imposed on that delinquent employee in the criminal case.
However, we dispose of this Civil Petition for Leave to Appeal making observation to the effect that the departmental proceeding started against the petitioner-respondent Md Abdul Karim is still alive and the authority concerned may consider imposition of punishment on the petitioner-respondent in that departmental proceeding afresh after disposal of the criminal case pending against him on the same issue.