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Legal prosecution and departmental proceeding may run together but penalty shall be stayed until court case ends

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15th-Oct-2016       
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Appellate Division (Civil) :
Surendra Kumar Sinha CJ
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Hasan Foez Siddique J
Judgment
July 27th, 2015
Asaduzzaman (Md)………….Petitioner
vs
Government of Bangladesh represented by the Secretary, Internal Resources Division Ministry of Finance and another….. Respondents
Government Servants' (Discipline and Appeal) Rules, 1985
Rule 25
If there be any prosecution or legal proceeding against a government servant pending in any court on the same issue, there shall be no bar in the disposal of the departmental proceedings against him, but if the authority decides to impose any penalty on such government servant in the departmental proceedings, imposition of such penalty shall be stayed until disposal of that prosecution or legal proceeding. . ..... (9)
AJ Mohammad Ali Senior Advocate· instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner (In both the Petitions).
None Represented -For  the Respondents (In both the Petitions).
Judgment
Nazmun Ara Sultana J : This Civil Petition for Leave to Appeal is directed against the judgment and order dated 2-8-2010 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 79 of 2007 dismissing the appeal and thereby affirming the judgment and order dated 20-2-2007 passed by the administrative Tribunal No. 1, Dhaka in AT Case No.77 of 2003 dismissing the case.
2. The present leave-petitioner filed the above mentioned AT Case No.77 of 2003 challenging the order of his dismissal from service. The material case of the leave-petitioner is that he joined as Pesker of the Customs, Excise and VAT Appellate Tribunal on 18-9-1996 and since then he had been serving as such with outmost satisfaction of the authority concerned. That on 24-6-2001 the opposite party No. 2. placed him under suspension and thereafter on' 22-7-2001 he framed charge against the petitioner under the provisions of Government Servant (Discipline and Appeal) Rules, 1985 on the allegations of misconduct and corruption. The petitioner submitted his reply on 5-8-2001 denying all "the allegations brought against him. Ultimately. the petitioner was dismissed from service in that departmental proceeding by the order dated 31-12-2002. The petitioner preferred departmental appeal against that dismissal order but the authority concerned did not give any decision in that appeal within 2 (two) months and, as such, the petitioner was compelled to file this case.
3. The opposite parties contested the case by filing written statement contending, interalia, that the petitioner was found guilty of charge of corruption in the departmental proceeding and, as such, he was dismissed from service in accordance with rules.
4. The learned member of the Administrative Tribunal No.1, Dhaka, upon hearing both the parties and examining the records, dismissed the petitioner's case by the judgment and order dated 20-2-2007.
5. Being aggrieved by the said judgment and order the petitioner preferred the above mentioned Appeal No.79 of 2007 before the Administrative Appellate Tribunal. Upon hearing the learned Counsel of both the parties and examining the materials on record the Administrative Appellate Tribunal found that the petitioner was dismissed from service on the charge of corruption quite in accordance with rules and therefore, upheld the judgment and order of the Administrative Tribunal by the impugned judgment and order.
6. Mr AJ Mohammad Ali, the learned Senior Advocate appearing for the leave-petitioner has assailed the concurrent findings and decision of the Administrative Tribunal and the Administrative Appellate Tribunal making submissions to the effect only that on the self same allegations. a criminal case also was initiated against this petitioner and in that criminal case the petitioner has been acquitted and in the circumstances the conviction of the petitioner in the departmental proceeding on the same allegation has been illegal.
7. This contention of the learned Advocate is not correct. The departmental proceeding was initiated against the petitioner on some specific allegations as per provisions of the Government Servant (Discipline and Appeal) Rules, 1985 and on enquiry held in that departmental proceeding those allegations were found proved and, as such, the petitioner was dismissed from service on those allegations in compliance with all the mandatory requirements of the Government Servant (Discipline and Appeal) Rules, 1985. There is no provision in these Rules or in any' other Laws and Rules to the effect that if a government servant is acquitted in the criminal case on the self same allegations, he cannot be punished in the departmental proceeding initiated on the same allegation.
8. Mr AJ Mohammad Ali, the learned Advocate for the leave-petitioner has argued that as per provision of Public Servants (Dismissal on Conviction) Ordinance, 1985 a government servant convicted in any criminal case for any offence punishable with imprisonment for 6 (six) months or more is liable to be dismissed from service and if this conviction is set aside on appeal the said government servant is entitled to be reinstated in his service. The learned Advocate has contended that since in the present case the leave-petitioner has been acquitted from the criminal case initiated on the self same allegations, he is now entitled to be reinstated in his service. But we are unable to accept this contention of the learned Advocate. In this case the leave-petitioner has not been dismissed from service as per provision of Public Servants (Dismissal on Conviction) Ordinance, 1985, rather he has been dismissed from service on being found guilty of the charge of corruption in the departmental proceeding initiated in accordance with the provisions of the Government Servant (Discipline and Appeal) Rules, 1985. For conviction a government servant on the ground of conviction in any criminal case as per provision of Public Servants (Dismissal on Conviction) Ordinance, 1985 no departmental proceeding requires to be initiated at all.
9. In the Government Servant (Discipline and Appeal) Rules, 1985 there is a provision, namely, rule 25, which provides that if there be
any prosecution or legal proceeding against a government servant pending in any court on the same issue, there shall be no bar on the disposal of the departmental proceedings against him, but if the authority decides to impose any penalty on such government servant in the departmental proceedings, imposition of such penalty shall be stayed until disposal of that prosecution or .legal proceeding. This rule 25 does not say at all that-if any government servant is convicted in any criminal case he cannot be imposed any. penalty in the departmental proceeding on the same allegation.
However, we find no merit in this civil petition for leave to appeal and hence it is dismissed.

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