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Penalty imposed upon dead employee is not legal

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22nd-Oct-2016       
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High Court Division :
(Special Original Jurisdiction)
Hasan Foez Siddique J
Jahangir Hossain J
Honufa Begum and  others ………Petitioners
vs
Secretary Ministry of Posts Telegraph and Telecommunication and others. …….Respondents·
Judgment
August 7th, 2011
Administrative Tribunal Act, 1980 (VII of 1981)
Sections 4 and 7A
Only the servant of the republic may apply before the Tribunal or his heirs may be substituted in the case if he dies during pendency of the case filed by him against his removal or dismissal from service. But there is no such case pending in the Tribunal at the time of his death. The petitioners do not have locus standi to file an application before the tribunal as they are not servants in the republic. ………10)
Constitution of Bangladesh, 1972
Article 102(2)
Penalty imposed by the authority concerned upon the dead man is not legal in the eye of law. It is apparent that the petitioners are admittedly heirs of the deceased-employee, having no other forum except to invoke writ jurisdiction and since the predecessor of the petitioners was acquitted from the charge brought against him by the competent court of law, there is no bar to the petitioners as heirs of the ex-employee in obtaining full service benefits as per service rules.        ............... (12)
Kazi Shamsunnahar vs Commandant RRF Khulna, 2 BLC 569 ref.
Aminul Islam, advocate-For the Petitioners.
Bishwjit Roy, DAG-For the Respondents.
Judgment
Jahangir Hossain J : Upon an application Rule Nisi was issued calling upon the Respondents to show cause as to why the impugned order bw_ bs-Kg©-we/Gb-02/08 dated 11 -5-2008 (Annexure-H) passed by the respondent No. 3 dismissing a departmental appeal preferred by the petitioners challenging the order vide Memo No. Gd-1-1/96-97  dated No. 2-8-2007 (Annexure-E) passed by the Respondent No.4 in a department proceeding imposing penalty upon the predecessor of the petitioners by treating his suspension period as leave as due in spite of releasing him from the charge of the proceeding and also the order vide bw_ bs-we-1-1/Kg©Pvix/ Aemi/2006 dated 24-9-2006 and bw_ bs we-1-1/Kg©Pvix Aemi/2006 dated 19-8-2007 (Annexure-F and F -1) sanctioning family pension and other service benefits without granting LPR should not be declared to have been made without lawful authority and are of no legal effect.
2. The facts for disposal of the Rule, in brief, are that the petitioners are the legal heirs of late Abdur Rob Chowdhury, an Ex-employee of the Postal Department, who joined the same in the year 1972. The Predecessor of the petitioners while in service, was posted at Sub Post Office, Khalifarhat, Noakhali and delivered his service at the address mentioned above from 10-4-1994 and 23-7-1996. During that time, a departmental proceeding was initiated against him upon false and baseless allegation and subsequently he was suspended from the post temporarily. Besides, a criminal case was also started against him upon the same self allegation and the appointing authority served a notice upon the predecessor of the petitioners who replied in writing in time to the same explaining the reasons thereof.
3. It has been further stated in the petition that during pendency of the criminal, proceeding, departmental proceeding was suspended. In the criminal proceeding the predecessor of the petitioners was acquitted after holding trial of the case by the competent court. Against the order of acquittal the concerned authority· preferred an appeal being Govt. Appeal No. 23 of 2003 before this Court. During pendency of the said government appeal the predecessor of the petitioners died of fatal disease on 13-1-2007 and subsequently the criminal appeal was abated at the instance of the authority concerned under section 431 of the Code of Criminal Procedure.
4. It is further stated that the concerned authority in respect of the family pension and other service benefit of the predecessor of the petitioners, sought a legal opinion from the learned government pleader through a letter vide Memo No. 317 dated 23-7-2007. The G P gave his opinion in favour of the petitioners. Thereafter, the respondent No. 4 issued a letter vide Memo No. Gd-1-1/96-97 dated 2-8-2007 in the caption of `Ûv‡`k bvgv withdrawing the departmental proceeding against the predecessor of the petitioners but most arbitrarily granted leave as to be paid for his suspension period as penalty (Annexure-E to this writ petition) . In the meantime, the predecessor of the petitioners had got 57 years age. As a result, he would have been placed on LPR (leave preparatory to retirement) but the authority through letter vide bw_ bs we-1-1Kg©Pvix/Aemi/2006 dated 24-9-2006 informing that no order as required to be issued for sending him on LPR. Thereafter, the respondent No. 4 through letter vide vide bw_ bs-we-1-1/Kg©Pvix/Aemi/2006 dated 19-8-2007 sanctioned family pension without granting LPR. The petitioner No. I being wife of the deceased preferred an appeal against the said letters dated 2-8-2007, 24-9-2006 and 19-8-2007 respectively before the respondent No. 3 stating reasons thereof and further seeking for full pay with allowances and other service benefits treating the suspension period of the predecessor as usual duty and granting LPR in due course. But the appellate authority dismissed the appeal and affirmed the decision of the Respondent No. 4 through bw_ bs-Kg©-we/Gb-02/08 dated 11-5-2008 on misconception of law and non-consideration of the merit of the appeal. Thereafter, the wife (petitioner No. I) of the predecessor made a representation before the Respondent No. 2 seeking remedy in. respect of the same but the respondent informed her. by issuing a letter vide bw_ bs-Z`šÍ 6-2/96/1681 dated 15-10-2008 under signature of Respondent No. 5 that they had no jurisdiction to consider the prayer filed by her and further issued a letter by the Respondent No. 4 clarifying the leave to be granted for the suspension period of the deceased employee through Memo No. bw_ bs-we-306 dated 22-2·2009 wherein it has been stated that from 14-8-1996 to 22-4-1998 the 'deceased employee was granted leave with full pay and 23-4-1998 to 9-6-2000, was granted leave with half pay and from 2-62000 to 30-9-2006 long six years three months granted leave without pay, which appears to be penalty upon him though the departmental proceeding was withdrawn by the authority. Thus, the heirs of the predecessor-employee, being petitioners moved this court with a petition and obtained the present rule.
5. Mt Aminul Islam, learned Advocate on behalf of the petitioners submits that the impugned orders (Annexures -H, E, F and F 1 to this writ petition) passed by the appellate authority and the appointing authority are arbitrary and malafide and not tenable in the eye of law. He submits that the allegation brought by the concerned authority against the predecessor of the petitioners was vague and baseless. In fact, no offence or misconduct of deception was committed by the predecessor of the petitioners and the amount, of cash shortage was duly deposited in the office of the Respondent No.4 as the same was kept in his personal custody' of being in secured inside the post office.
 (To be continued)
He submits further that the predecessor on the petitioners got order of acquittal from the charge brought against him. Against which the government preferred an appeal in which he had been abated after his death. He submits further that the departmental proceeding was also withdrawn by the concerned authority and subsequently? the concerned authority obtained the opinion as desired from the learned government pleader in respect of the service benefit of the petitioners wherein the learned pleader opined that the petitioners are entitled to get all benefits of the predecessor as per as usual course. He further submits that as per provision of Rule 247, 1st Part, Bangladesh Service Rules, if Departmental Proceeding is withdrawn after death of the person concerned, no penalty can be imposed upon a dead man who served as an employee in the republic. He finally submits that the heirs of the late employee have been  passing the days with financial hardship on being deprived by, the impugned orders preventing, them from getting full payment of benefits and other allowances of the predecessor and the petitioners, finding no other alternative and efficacious remedy, moved this' court and obtained present the rule 'which, should be made absulate.
6. On the other hand, Mr Bishwajit Roy the  learned Deputy Attorney-General appearing on , behalf, of the Responde its submits that the petitioners are not government employees and they are not on any way aggrieved persons, for which they' can file a writ' petition before this Court invoking Article 102 of the Constitution. He further submits that the petitioners as heirs of the late employee filed application before the appellate authority which was, turned down narrating all the reasons therein. He lastly submits that the petitioners could file an application before the Administrative Tribunal if they were somehow aggrieved, by the impugned letters. In fact, they did not have any right t6 file a writ petition before this Court. Accordingly, this rule should be discharged.
7. Heard the learned Advocates from both the parties and perused the petition along with annexures there of, wherefrom it transpires that the predecessor of the petitioners during his service in the republic at Khalifarhat, Noakhali upon an allegation of shortage of, fund in the sub post office, a departmental proceeding was initiated against him and on the same self allegation a criminal case was also started against him. During pendency of the criminal proceeding, the departmental proceeding was suspended, but in trial of the criminal case he got an order of acquit that from charge brought against him when he was found not guilty of the offence by the competent court of law. Subsequently a government appeal was preferred by the authority concerned. During pendency of the Govt. appeal the predecessor of the, petitioners died of cancer and therefore, the departmental proceeding was also withdrawn by the concerned authority. But the' authority treating the predecessor of the petitioners, unusual servant of the republic, curtailed some service benefits which the petitioners are entitled to get asusual course of his service. It 'appears from the 'submission of the learned' Deputy Attorney-General that' the petitioners have not been aggrieved the impugned letters as they are not servants in the service of the republic. Therefore, they don't have locus standi to file this writ petition before the court under Article 102 of the constitution. In view 'of the facts as above: let' us see sections 4 and section 7,A of the Administrative Tribunal Act, 980 which provides as under:
4. (1) An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic - [or of any statutory public authority] in respect of the terms and conditions of his service including pension rights, or in respect of any" action taken in relation to him as a person in the service of the Republic 2[or of any statutory public authority].  
(2) A person in the service of the Republic 3[or of any' statutory public authority] may make an application to an Administrative Tribunal under sub-section (l), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a, person in the service of the Republic 4[or of any statutory public authority]:
Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic [for of any statutory public authority] or the discipline of that service can be made to the Administrative Tribunal 'until such higher authority has taken decision on the matter:
2 [Provided further that,. where no decision on an appeal or application for review in respect of an order, decision or action referred to in the preceding proviso has been taken by the higher administrative authority within a period of two months from the date on which the appeal or application was preferred or made," it shall on the expiry of such period, be deemed, for the purpose of making an application to. the Administrative Tribunals under this section, that such higher authority has disallowed the appeal of the application:]
Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned "or making of the decision on the matter by the higher administrative authority, as the case may be.
(3) In this section "person in the service of the Republic 3[or of any statutory public authority]" includes a person who is or has retired or is dismissed, removed or discharged from such service, but does not include a person in the defence services of Bangladesh 4[or of the Bangladesh Rifles] .
8. It appears from the provision of section 4 of the Administrative Tribunal Act that a servant if being aggrieved by any order of the concerned authority, shall have to go to the Administrative 'Tribunal "for his remedy first, but the present petitioners have no that scope to file any application before the Administrative Tribunal as they were not in the' service of the republic. Section 7 A says:
2[7 A.(I) Where a person is dismissed or "removed from service and an" application is made under section 4 against such removal or dismissal and that person dies 'during the pendency of the case, the right to sue of that applicant shall survive if his service had been pensionable under any law for the time being in force.
(2) Where the" right to 'sue' survives under sub-section (1), such legal representative of the deceased applicant who' would have been entitled to the pensionery benefit at the event of the death or' retirement of the deceased applicant may be substituted, upon an application, made tathe Tribunal 'or, as the case may be, to the Appellate, Division, within sixty days from the date of the death of the applicant
(3) The legal representative of the deceased, as referred to in sub-section (2), shall be entitled to the pensionery benefit which would have been payable to that deceased if he had been removed or dismissed:
Provided that, such pensionery benefit shall not be payable unless the Tribunal or, as the case may be, the Appellate Division, declares the order of the dismissal or removal, as the case may be, as illegal or void:
Provided further that, for the purpose of this section, the applicant shall be deemed to have died or retired, as the case may be, on the day on which he was removed or dismissed.
9. It his been provided in Section 7 A that when an application against the dismissal or removal from service is pending before the Administrative Tribunal, if the employee or servant of the republic dies, than his/her heirs can be substituted in the pending proceeding as heirs of the deceased and right to so survive. But here there was no case pending against any dismissal or removal before the administrative tribunal when the employee died of cancer. Therefore, no question of substitution can be raised for the heirs of the deceased.
10. On plain reading of these sections it appears that only the servant of the republic may apply before the Administrative Tribunal or his heirs may be substituted in the case if he dies during pendency of the case filed by him against his removal or dismissal from service. But there is no such case pending in the Administrative Tribunal at the time of his death. In such view of the fact, the petitioners do not have locus standi to file an application before the administrative tribunal as they are not servants in the republic.
11. In such a situation, the petitioners as heirs of the predecessor, have no other forum to seek relief rather to move this court with a writ petition invoking Article 102 of the constitution. It is pertinent here to refer the case of Kazi Shamsunnahar vs Commandant RRF Khulna reported in 2 BLC 569 where their Lordships observed that
"Admittedly, the deceased government servant was not removed from service prior to his death but he was removed from service just after his death resulting thereby the government servant died while he was still in the service of the Republic for which the petitioners as heirs of the government servant are entitled to recover the service benefits as permissible under the law and the writ petition is maintainable."
12. In the instant case there is no dispute that Abdur Rouf Chowdhury was neither convicted nor removed, nor dismissed from service before his death. So the penalty imposed by the authority concerned upon the dead man is not legal in the eye of law. It is apparent that the petitioners are admittedly heirs of the deceased-employee, having no other forum except to invoke writ jurisdiction under Article 102 of the Constitution and since the predecessor of the petitioners was acquitted from the charge brought against him by the competent court of law, there is no bar to the petitioners as heirs of the ex-employee in obtaining full service benefits as per service rules. Furthermore, as the departmental proceeding was withdrawn by the concerned authority the service of the predecessor of the petitioners was seemed to be treated as regular pone and all service benefits of the predecessor to be recovered by the petitioners as his heirs.
13. In view of the discussion as above, we are inclined to hold that the impugned orders (Annexures-H, E, F and FI to this writ petition) are ex-facie illegal and the same have been passed without any lawful authority and are of no legal effect, therefore, the petitioners as heirs of late Abdur Rob Chowdhury are entitled to get all service benefits including pension and arrear, if any, as permissible in law.
In the result the rule is made absolute without order as to costs. The impugned orders (Annexures-H, E, F and FI to this writ petition) have been passed without lawful authority and are of no legal effect. The respondents are directed to pay full service benefits of late Abdur' Rob Chowdhury to the petitioners as permissible undet the law.

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