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Departmental proceeding not same as criminal proceeding

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15th-Jul-2017       
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High Court Division :
(Special Original Jurisdiction)
Md Rezaul Hasan J
Kashefa Hussain J
Khandokar Kamrul Hasna...............
..........................................Petitioners
vs
Government of the People's Republic of Bangladesh, represented by the Principal Secretary, Prime Minister's Office and others ...............
............... Respondents*
Judgment
August 2nd, 2016
Constitution of Bangladesh, 1972
Article 102
A departmental proceeding is not same as a criminal proceeding. It is not necessary in a departmental proceeding that any persons should be found guilty beyond reasonable doubt, a stand of proof required in a criminal proceeding. The preponderance of probability is enough to found a person guilty in a departmental proceeding. This difference between these two forums has to be understood and to be followed consistently. One is not barred by the findings of other, nor the procedure followed by them are of equal stringenecy in nature. . ... (11)
AKM Ali with Nigar Sultana. Advocates-For the Petitioner.
AKM Zahirul Huq, DAG with Abdur Rokib (Montu).
AAG and Samira Tarannum Rabeya. AAG-For the Respondents.
Judgment
Md Rezaul Hasan J : On this application, filed under Article 102 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 respondent No.1 should not be directed to dispose of petitioner's application dated 2-9-2014 as evident from Annexure- "K(1)" to the Writ Petition and for pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts leading to issuance of the Rule are that, while the petitioner was working as Administrative Officer-cum-Common Service Protocol Officer, the petitioner, with oblique motive, had falsely identified one Mahbub Alam as Redwan Mujib Siddique and managed visa for Mahbub Alam and thus contrived to and had sent him to Italy as a member of entourage of the Hon'ble Prime Minister. Consequently, a chargesheet dated 11-1-2001 was issued upon the petitioner was asked to show cause as to why he should not be dismissed from the services for the said misconduct under Rule 3(b) of the Government Servants  (Discipline and Appeal) Rules 1985. He was also placed under suspension on 11-12-2000, as per 11 (1) of the Government Servants (Discipline and Appeal), Rules, 1985. The petitioner had submitted a written statement denying all the allegations. Thereafter the authority issued a second show cause notice upon the petitioner proposing major penalty and the petitioner again submitted his reply for the 2nd time pleading his innocence. However, without considering his reply the authority, quite illegally, dismissed him from his service, by their order dated 29-5-2001. The petitioner filed a Departmental Appeal against the said order, which was rejected on 23-7-2001 and subsequently he filed a petition, before the Administrative Tribunal, as per provisions of Section 4(2) of the Administrative Tribunal Act, 1980, against the respondents, for declaration that the order dated 29-5-2001, issued by the Respondent No.2, dismissing the petitioner from his service and that the order dated 23-7-2001, rejecting his departmental appeal, are illegal, void, without jurisdiction and of no legal effect and to direct the respondents to reinstate the petitioner to his service with arrear salary and other attending benefits. However, his petition was rejected by the Tribunal, by a judgment and order dated 19-4-2003. Thereafter the petitioner preferred Appeal No. 115 of 2003 before the Administrative Appellate Tribunal, which was dismissed for default, by it's Order No. 20 dated 20-3-2008, since none of the parties appeared before the Appellate Tribunal on that date. It further appears from the record that, a First Information Report was simultaneously lodged against the petitioner on 23-7-2010, at Sher-E-Bangla Nagar Police Station, by one S.1. Mijanur Rahman, which was registered as Sher-E-Bangla Nagar PS Case No. 32 dated 23-7-2010, corresponding to GR No. 245 of 2010 and the Police, after investigation, submitted chargesheet No. 124 dated 6-4-2011 against him, under Sections 419/465/471/109 of the Penal Code read with Section 11 of the Pass Port Act. The petitioner obtained bail in GR No. 245 of 2010, from the Court of Metropolitan Magistrate, Dhaka. In that court, the said GR case was fixed for framing of charge on 18-3-2012. The petitioner filed an application under Section 241 A of the Code of Criminal Procedure before that court. The Magistrate Court has taken up the petition under Section 241A for hearing along with the matter for framing charge. The Magistrate, after hearing the petition, has discharged this petitioner along with one Md Saifur Rahman from the charges brought against them. Thereafter the petitioner has filed a representation, on 2-9-2014, Annexure- K (I) to the Principal Secretary in the Prime Minister's Office (PMO) with a prayer to reinstate him in the service, apparently, since he was discharged by the criminal court on the self-same allegations. But he received no response to his representation dated 2-9-2014. Hence, he has filed this writ petition and obtained the rule as quoted above.
3. The learned Advocate Mr Dr AKM Ali appeared along with learned Advocate Ms. Nigar Sultana for the petitioner. The learned Advocate for the petitioner, having placed the petition, along with other materials on record, mainly contends that the petitioner has submitted a representation on 2-9-2014, addressing the Principal Secretary to the Prime Minister's Office and the representation was received in that office on 7-9-2014, annexed to this petition as Annexure- K(I). The learned Advocate next submits that, the petitioner is the victim of the circumstances and the petitioner was dismissed from his service illegally, which will be evident from order dated 18-3-2012, passed in G.R. No. 245 of 2010 by the Metropolitan Magistrate, Court No. 6, Dhaka, whereby the petitioner has been discharged, upon hearing an application filed by him under Section 241 A of the Code of Criminal Procedure, from the charge brought against him under Sections 419/465/471/109 of the Penell Code read with Section 11 of the Pass Port Act. As the petitioner was not found guilty by the trial court for committing the same offence for which he has been dismissed from the service. therefore, he has very reasonably submitted the representation on 2-9-2014, before the Principal Secretary to the Prime Minister's Office, for reinstating him. But the Prime Minister's Office does respond to his application dated 2-9-2014. Hence, he has prayed for direction upon the Principal Secretary to the Prime Minister's Office, Respondent No. 1 to this petition, to consider his representation. He concludes that this rule has merit and the same may be made absolute by passing an appropriate direction as prayed for.
4. Learned Deputy Attorney-General Mr AKM Zahirul Huq appeared along with Mr Abdur Rokib (Montu), AAG on behalf of the respondents and have opposed the Rule.
5. We have heard both the sides, perused the petition along with other materials on record.
6. Facts leading to filing of this writ petition has been narrated herein above, in brief.
7. We find that, admittedly the petitioner was the Administrative Office-Cum-Common Service Protocol Officer of the Prime Minister's' Office and a charge sheet was issued, on 11-1-2001, against him specifying the allegations brought against the petitioner, under Rule 3(b) of the Government Servants (Discipline and Appeal) Rules, 1985 and the petitioner was suspended pending enquiry, keeping provision for allowing him subsistence allowance. He gave a reply to the charges brought against him.
The reply having found not satisfactory a second show cause notice dated 28-2-2001 was served upon the petitioner, specifically asking him to show cause as to why he should not be dismissed from the service in accordance with the provisions of Rule 4(3)(d) of the Government Servants (Discipline and Appeal) Rules, 1985. The petitioner gave reply to the second show cause notice, on 14-3-2001. It further appears from the letter of dismissal dated 29-5-2001 (Annexure-D-2), that a departmental proceedings was initiated in which the petitioner was given all opportunity to defend himself as per provisions of the aforesaid Rules. The enquiry Officer has found him guilty of the charges brought against him. Therefore, he has been dismissed from service according to the aforesaid rules, on 29-5-2001.
 (To be continued)
It is also admitted that treafter the petitioner has filed a departmental apeal. But the said appeal was dismissed by an order dated 23-7-2001. Subsequently the petitioner has filed an application under Section 4(2) of the Administrative Tribunal Act, 1980, before the Administrative Tribunal, Dhaka, challenging the aforsaid order dated 23-7-2001, which was registered as Case No. 160 of 2001. The Administration Tribunal, by an elaborate judgment and order dated 19-4-2003, rejected the case of the petitioner filed under Section 4(2) of the Administrative Tribunal Act, 1980, in which, as we find, all legally material facts were duly considered by the Tribunal. It is also admitted that, being aggrieved by the aforesaid judgment and order dated 19-4-2003 of the Tribunal, the petitioner had preferred an Appeal No. 115 of 2003 before the Administrative Appellate Tribunal, which was dismissed for default by order No. 20 dated 20-3-2008. Section 6(a) of the Administrative Tribunal Act, 1980, provides for preferring appeal before the Appellate Division under Article 103 of the Constitution against any judgment and order of the Appellate Tribunal.
8. In view of the foregoing facts and circumstances, we are of the view that the petitioner having not preferred any appeal under Article 103 of the Constitution, before the Appellate Division, as per provisions of section 6(a) of the Administrative Tribunal Act, 1980, the judgment and order 19-4-2003, passed by the Administrative Tribunal, has become final.
9. Once a dispute has been settled by the judicial body, there is no scope to refer the aforesaid representation dated 2-9-2014, Annexure- K(l), to the Principal Secretary of the Prime Minister's Office and thereby to re-open the matter. In other words, the Principal Secretary, Prime Minister's Office, being the executive authority, cannot sit in appeal over the judgment passed by the Administrative Tribunal or by any other judicial/quasi-judicial authority, by re-opening the matter. Nor this Division, far less the executive organ, can arrogate to itself the jurisdiction vested in the Appellate Division under Article 103 of the Constitution, read with Section 6(a) of the Administrative Tribunal Act, 1980.
10. On the other hand the executive authority, in this case the Principal Secretary of Prime Minister's Office, has no competence or authority to re-open the issue already decided by a competent judicial body or Tribunal or to sit as court of appeal over a judgment passed by any court or any Tribunal. Any persos aggrieved by any judgment or order of a court or Tribunal can address to the higher forum in the judicial highrearchy, if there is any, not to any other person or authority. The order or judgment thus passed is final and conclusive, so far as a dispute resolved by it. This is based on the doctrine of separation of power.
11. As regards the contention, though no more necessary to address indeed that the petitioner was discharged from a Criminal case filed against him, we do hereby hold, to make it clear, that a departmental proceeding is not same as a criminal proceeding. It is not necessary in a departmental proceeding that any persons should be found guilty beyond reasonable doubt, a stand of proof required in a criminal proceeding. The preponderance of probability is enough to found a person guilty in a departmental proceeding. This difference between these two forums has to be understood and to be followed consistently. One is not barred by the findings of other, nor the procedure followed by them are of equal stringenecy in nature.
In the light of the deliberation recorded herein above, we find no merit in this rule.
Order
In the result, the Rule is discharged.
No order as to cost.

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