HIGH COURT DIVISION
(Special Original Jurisdiction)
Md Rezaul Hasan J
Kashefa Hussain J
Balayet Hossain (Md) …..
………………………… Petitioner
vs
Secretary, Ministry of Water Resources and others …. Respondents*
Judgment
August 28th, 2016
???????? ???? ?????? ????? (????????? ????????) ?????? ???????? ????, 2013
Rule 52(4)
In absence of any provisions for extension of time limit or condonation of delay, the time limit prescribed under sub-rule (2) of Rule 52 to complete the enquiry shall be taken as mandatory, otherwise an anomaly shall be ensued or there will always remain a likelihood of discrimination in condoning the delay in the case of one and refusing to condone the delay in the case of another. Besides, this will keep open an unfettered discretion in the hands of the authority to decide as to how many days delay they will condone or not.
Hence, we hold that the time prescribed in sub-rule (4) of Rule 54 is mandatory and the enquiry report dated 12-7-2015 was-submitted in violation of the said rules and, therefore; the finding of the enquiry officer is not lawful so far as it relates to imposing the major penalty by way of deduction from the salary of the petitioner. For this reason, the impugned memo, based on this faulty enquiry report, so far as the imposition of major penalty by way of deducting Taka 69,627.87 from salary of the petitioner, is liable to be declared to have been issued without lawful authority and is of no legal effect. However, this judgment and order will not exonerate the petitioner from the charges and the authority shall be at liberty to form a new enquiry committee to hold a fresh enquiry, if so advised, for assessing afresh the charge sheet, the reply to the same second show cause notice and the reply to the same, which are already, in the record. The Enquiry Officer, if be appointed, shall ‘then submit a fresh report for consideration of the’ authority, but without making any recommendation of the enquiry-officer as to what punishment shall be imposed. . . ….. (15 & 16)
Constitution of Bangladesh, 1972
Articles 32, 40 and 102(2)
The service of persons is directly linked with his or her livelihood and the livelihood of his dependents. This has nexus with the fundamental rights ,guaranteed under Articles 32 and 40 of the Constitution. The Service Rules and any other law or Rules that protects and preserves the fundamental rights of citizen shall be interpreted strictly. If any doubt arises in interpreting any statute or rules or any other documents that governs the terms and conditions of service or a profession etc and that may affect the fundamental rights, the, the doubt shall be resolved in favour of the employee or the persons likely to be affected .
………(17)
Khandker Mahbub Hossain, with Md Humayun Kabir, with Ziaur Rahman and Nasrin Hena, Advocates/ For the Petitioner.
Md Abdul Hai, Advocate-For the Respondent Nos 2-6.
Judgment
Md Rezaul Hasan J : Let the supplementary affidavit filed do form part of the substantive petition.
2. In this application, filed under Article 102 (2)(a)(i) and (ii) of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi has been issued, calling upon the respondents to show cause as to why the impugned order of punishment as contained in Memo No. cv???/?”s/kv-3/Awf/(K)-01/2014 dated 17-8-2015 issued under the signature of the Respondent No. 5 dropping off the petitioner to a lower stage in the concerned pay scale and to realize Taka 69,627.87 (Sixty Nine Thousand Six hundred twenty seven and Paisa Eighty Seven) from the petitioner as compensation (Annexure-E) should not be declared to have been done without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
3. Facts leading to issuance of the Rule, in brief, are that a departmental proceeding was started against the petitioner in the year, 2014, on the allegation of corruption of Taka 3,48,46,290 for Rampal Tap Biddut Kendro, under supervision of Khulna Dredger Division. Thereafter the Respondent No. 5 framed charge against the petitioner through a letter contained in Memo No. 3120 cv???/?”s/kv-3/Awf/(K)-01/2014 dated 25-82014, requiring explanation from the petitioner. Accordingly the petitioner submitted a reply on 17-9-2014, as per provisions of the Service Rules of Bangladesh Water Development Board and Government (Discipline and Appeal) Rules 1985; that, thereafter, the Respondent No.5 through a letter contained in Memo dated 17-11-2014 appointed Mr Md Ismail Hossain, Chief Engineer, Comilla, as enquiry officer, to enquire into the allegations brought against the petitioner along with another 2 persons and he was directed to submit an inquiry report within 30 (thirty) days; that the Water Development Board its has own, Service Rules titled evsjv??? ???? ?????? ????? (????????? ? ????????) ?????? ???????? gvjv, 2013, that the petitioner submitted written reply ort 12-5-2015 explaining his conduct that however Mr Md Abdul Latif Miah being the enquiry officer has violated the mandatory provisions of Rule-45 of said Probidhanmala, 2013, and submitted an enquiry report; that thereafter the Respondent No. 5, violating the mandatory provisions of the said rules 2013, has awarded punishment under evsjv??? ???? ?????? ????? (????????? ? ????????) ?????? ???????? gvjv, 2013, Gi cÖweavb 49 Gi Dc cÖweavb 49(1) (K) (D) dropping the petitioner to a lower stage in the concerned pay scale and also directed to realize Taka 69,627.87 from the petitioner under the provisions of Rule 49(1) (L) (Av) of the said Proloidhan, vide office order Memo. No. ???-?????/?”?/??-?/???/(K)-01/2014 dated 17-8-2015; that the petitioner, being aggrieved by and dissatisfied with the punishment order, had filed an appeal to the Respondent No. 2 which was received in the office of the Respondent No. 2 on 2-9-2015, and as per the service Rules the Respondent No. 2 was under an obligation to dispose of the appeal within 60 days from the date of receiving the Memo of appeal but most regretfully, the respondent No. 2 has kept the appeal unheeded for long time and hence the appeal is deemed to have been, rejected; that it is stated that the petitioner, on 13-1-2016, served a Notice upon the Respondents demanding justice and requested the Respondent No. 2 and other Respondents to do justice to the petitioner by withdrawing the, punishment order and by disposing of the departmental appeal, dated 2-9-2016, of the petitioner, within 7 (seven days from the date of receipt of the Notice, that they received the notice on 18-1-2016, but the Respondents did not pay any heed to the said notice. It has been submitted that the whole procedure is defective and illegal and is contrary to the provisions of the said Rules. Therefore, the impugned punishment order dated 17-8-2015 is liabe to be declared illegal and without lawful effect. Hence this writ petition has been, filed and the instant Rule Nisi has been issued.
4. The respondent No. 2-6 filed an affidavit-in-opposition, and affidavit-in-reply to the supplementary affidavit.
5. In their Affidavit-in-opposition, the Respondent Nos. 2-6 have denied all material allegations made in the writ petition as well as stating their case in paragraph No. 8 of the affidavit-in-opposition and have concluded, the same submitting that the rule has no merit and the same is liable to be discharged.
6. Learned Advocate Mr Khandker Mahbub Hossain appeared with Mr Md Humayun Kabir, Mr Ziaur Rahman and Mr Nasrin Hena, Advocates. He, ‘having placed the petition, submits that in passing the impugned order of punishment contained in a Memo No. 202 cv???/?”?/??-?/???/(K)-01/2014 dated 17-8-2015 (Annexure-E), the respondent did not follow the Service Rule namely, ???????? ???? ?????? ????? (????????? ? ????????) ?????? ????????????, ????,” (hereinafter referred to the Service Rules). He points out that two kinds of punishment were imposed upon the petitioner by the impugned order dated 17-8-2015 (Annexure-E), namely (1) petitioner was dropped off two lower stage in the concerned pay scale, which is a minor penalty, and (2) a decision was taken to realize Taka 69,627.87 (Sixtynine Thousand Six hundred twenty-seven and Paisa Eightyseven) as compensation, referring to service rule 49(1) (K) (D) from salary of the petitioner, in 5 installments, and this amounts to a major penalty, as described in Rule 49(1) (L) (Av). But, he continues, the procedure laid down in Rule 52 and Rule 54 were not followed in passing the impugned order, so far as it relates to awarding the major penalty. He specifically points out that in sub-rule (4) of Rule 52, it has been stipulated that the enquiry must be completed within the time specified by the authority. Whereas, sub-rule (8) of Rule 54 stipulates that the Enquiry Officer shall not make any recommendation as regards the punishment to be imposed. But the enquiry officer did not follow the provisions of sub-Rule (8) of Rule 54 as it is evident from enquiry report submitted on 12-7-2015 (Annexure-D(l), in which he had made specific recommendation regarding penalty to be imposed. Similarly, the enquiry officer Mr Md Abdul Latif Mia has exceeded 30 days time limit fixed by the authority for completing the enquiry, vide Office order dated 6-4-2015 (Annexure-D), whereby he was appointed as the Enquiry Officer. He has made a delay of 57 days in submitting the enquiry report dated 12-7-2015 (Annexure-Dl) and, as such, the provision of sub-Rule (4) of Rule 52 and the provisions of sub-Rule (8) of Rule 54 has been violated by the Enquiry Officer. Hence the impugned order is liable to be declared to have been issued without lawful authority and is of no legal effect for violation of the mandatory provisions of sub-rules (4) and (8) of Rule 54. Therefore, the rule has merit and the same may be made absolute.
7. Learned Advocate Mr Md Abdul Hai appeared for Respondent Nos. 2-6. He submits that admittedly the petitioner has received the charge sheet Dated 25-8-2014 (Annexure-A) to the writ petition in which same allegations were brought against the petitioner, as specifically stated in the charge sheet, giving him opportunity to show cause and also informed him that if he were willing to appear for personal hearing then he should mention the same in the written explanation. The authority has formed an enquiry committee as per provisions of the service rule and the petitioner has given the opportunity to defend himself. The enquiry officer found him guilty and submitted report on 12-7-2015. The enquiry report it shows that the enquiry officer did not make any recommendation, rather that he has given some explanation in the enquiry report, heads. He next submits that as per rule 52(4), the Enquiry Officer gets 10 days time, while he was given 30 days time to submit his report after completion of the enquiry. As such he gets total 40 days time for completing the enquiry. However, the provision of time limit is not mandatory and on mere technical ground the petitioner cannot go escort free, he asserts. Besides, he continues, that the petitioner did not file any review application and that he has come before this court without observing the legal formalities. Therefore, he submits, that the rule has no merit and the same is liable to be discharged without cost.
8. We have heard the learned Advocates for both sides and perused the writ petition, supplementary affidavits, affidavit-in-opposition, affidavit-in-reply along with the documents annexed thereto.
9. Having perused the records, we find that admittedly a charge sheet was issued against the petitioner vide Annexure-A. We find that specific allegations were brought in the charge sheet and the petitioner was given 10 days time, to submit his reply, from the date of receiving the charge sheet. We also find from Annexure- A 1 dated 17-9-2014 that the petitioner has submitted elaborate reply through the proper authority. It is also admitted that by an Office Order dated 17-9-2014 (Annexure-A-1) an one member enquiry committee was formed and a copy of the same was forwarded to the enquiry officer appointed thereby as well as to the writ petitioner. It is also evident from Annexure- 0 dated 6-4-2015 that the petitioner would appear before the enquiry officer, who would hold enquire into the allegations brought and should submit his report. It further appears from Annexure- D(1) that the enquiry officer has submitted report on 12-7-2015 to the authority. The authority, having received the enquiry report, has issued a second show cause notice, vide Memo No. 167-cvD‡ev/k”s/kv-3/Awf/(K)-01/2014 dated 26-7-2015 (Annexure-E) and the petitioner gave reply to the same. After considering all these matter the authority has issued the impugned Memo dated 17-8-2015, whereby the petitioner was imposed two penalties namely, (I) he was dropped off to a lower stage in the concerned pay scale, which is a minor penalty, and (2) a decision was taken to realize Taka 69,627.87 (Sixtynine Thousand Six hundred twenty seven and Paisa Eightyseven) from the petitioner as compensation, .as per Rule 49(1) (L) (Av), from his salary in 5 installments. This latter penalty is a major penalty as described in Rule 49(1) (L) (Av).
10. To the matter of departmental proceedings Rule 49, 51, 52, 53 of the Service Rule are relevant for our consideration.
11. Having considered the provisions of Rule 49, 51, 52, 53 and 54 of the Service Rules. We find that Rule 51 lays down the procedure to be followed in the matter of awarding minor penalty. Whereas, Rule 52 lays down the procedure to be followed in the case of awarding major penalty. Rule 54 lays down the procedure to be followed by the enquiry officer.
12. Having considered the aforesaid provisions of the Rules vis a vis the procedure followed in the case of the petitioner, as recorded hereinabove, we find that so far as the minor penalty is concerned i.e. dropping off to a lower stage in the concerned pay scale, as per Sub clause (D) of Clause-(K) of Rule 49, we do not find any deviation in imposing the said, penalty. The authority has followed of the procedure laid down in Rule 51 in imposing this penalty.
13. However, so far as the question of major penalty imposed by way of deduction of Taka 69,627.87 (Sixtynine Thousand six hundred twenty seven and Paisa, Eightyseven) from the petitioner’s salary is concerned, we find that in the impugned office order, dated 17-8-2015, the authority did not consider the recommendation of the enquiry officer as alleged, rather they have assessed the reply to the first show cause notice as well as the reply to the second show cause notice, Nonetheless, the findings are based on an enquiry report dated 12-7-2015 (Annexure-D1) that has been submitted after a delay of about 57 days, although the Enquiry Officer was given 30 days time to submit the report, vide the office order dated 6-4-2015 (Annexure- D) to the writ petition, whereby he was appointed as the Enquiry Officer. With this 30 days time, he can count more 10 days time as per provisions of rule 52(4) of the Service Rule. But even after including 10+30= 40 days, the Enquiry Officer has committed delay of about 57 days in submitting the report.
14. The learned Advocate for the respondent Nos. 2-6 has frankly conceded that the delay was unintentional and that may be condoned inasmuch as, petitioner has not shown how he was prejudiced for this delay.
15. We do not find any substance in the submission of the learned Advocate for the respondent Nos. 2-6 inasmuch as sub-rule (4) of Rule 52 has clearly stipulated that, “????????? ????????? ??, ??????? ??????, ????? ????? ??????? ???? ???????? ????? ???? ?? (??) ??????????? ????? ??????? ??? ????? ????? ? ???????? ???? ?????? ?????? ??????? ????? ???????? ????? ??? ????”???? ????”? ????????? ????? ????? ????”?????? ???? ????? ????????? ??? ??????” Sub-rule (2) of Rule 52 did not provide for extension of the time limit. In absence of any provisions for extension of time limit or condonation of delay, the time limit prescribed under Sub-rule (2) of Rule 52 to complete the enquiry shall be taken as mandatory, otherwise an anomaly shall be ensued or there will always remain a likelihood of discrimination in condoning the delay in the case of one and refusing to condone the delay in the case of another. Besides, this will keep open an unfettered discretion in the hands of the authority to decide as to how many days delay they will condone or not.
16. Hence, we hold that the time prescribed in Sub-rule (4) of Rule 54 is mandatory and the enquiry report dated 12-7-2015 was submitted in violation of the said rules and, therefore, the finding of the enquiry officer is not lawful so far as it relates to imposing the major penalty by way of deduction from the salary of the petitioner. For this reason, the impugned memo, based on this faulty enquiry report, so far as the imposition of major penalty by way of deducting Taka 69,627.87 from salary of the petitioner, is liable to be declared to have been issued without lawful authority and is of no legal effect. However, this judgment and order will not exonerate the petitioner from the charges and the authority shall be at liberty to form a new enquiry committee to hold a fresh enquiry, if so advised, for assessing afresh the chargesheet, the reply to the same, second show cause notice and the reply to the same, which are already in the record. The Enquiry Officer, if be appointed, shall then submit a fresh report for consideration of the authority, but without making any recommendation of the Enquiry Officer as to what punishment shall be imposed.
17. Before parting of, we should also put on record that in this Clase, the question of interpretation of Service Rules has arisen. It is to be noted here that the service of persons is directly linked with his or her livelihood and the livelihood of his dependents. This has nexus with the fundamental rights guaranteed under Articles 32 and 40 of the Constitution of the Peoples Republic of Bangladesh. Therefore, the Service Rules and any other law or Rules that protects and preserves the fundamental rights of citizen shall be interpreted strictly. If any doubt arises in interpreting any statute or rules or any other documents that governs the terms and conditions of service or a profession etc and that may affect the fundamental rights, then the doubt shall be resolved in favour of the employee or the persons likely to be affected. Similarly, if two views are possible and both are equally reasonable, then the one favourable to the employee or the person likely to be affected shall be adopted. However, it shall not be confused with the degree of proof required to uphold an allegation made in the service matter. The degree of proof beyond reasonable doubt, as required in a criminal matter, is not applicable in service matter. In a disciplinary proceeding the standard of proof followed is “preponderance of probability”.
In view of the above recorded deliberation, we find merit, in part, in this rule.
Order
In the result, the Rule is made absolute in part.
The Memo No. cvD‡ev/k”s/kv-3/Awf/(K)-01/2014 dated 17-8-2015 (Annexure-E) to the writ petition is declared to have been issued without lawful authority and is of no legal effect, so far as it relates to major punishment to realize Taka 69,627.87 (Sixtynine Thousand six hundred twenty seven and Paisa eighty seven) from the salary of the petitioner as compensation in 5 installments.
The minor penalty i.e. dropping off the petitioner to lower stage in the concerned pay scale shall remain as it is.
