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Genuineness of official order should be established first

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20th-Jan-2018       
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High Court Division :
(Special Original Jurisdiction)
Zinat Ara J
KM Kamrul Kader J     
Nurul Islam (Md) ..............Petitioner
vs
Anti-Corruption Commission represented by its Chairman Dhaka and others
        .............. Respondents
Judgment
February 25th, 2016
Anti-Corruption Act (XXVI of 1957)
Section 3(2)
Before proceeding further with the Memos, the Commission, upon enquiry, should decide as to whether the approval letter issued by the Bureau is genuine or not and should take action the person/persons responsible for sending/receiving the letter with the official seal of the Bureau (now, the Commission), if it is found not a genuine letter issued by the Bureau.      …..(13)
Mianul Hosein with Bepul Bagmar Advocates-For the Petitioner.
ABM Bayezid Advocate-For Respondent  No. 1
Judgment
Zinat Ara J : In this Rule Nisi, the petitioner has challenged the legality of the orders as contained in Memo No. 20595 dated 8-7-2014 (Annexure-M to the writ petition) and Memo No. 22976 dated 7-8-2014 (Annexure-N to the writ petition) both passed by respondent No.2, the Deputy Assistant Director, Anti-Corruption Commission, Head Office, Segun Bagicha, Dhaka.       
2. Facts necessary for disposal of the Rule, in brief, are as under:-
The petitioner was the Jail Superintendent of Faridpur District Jail. The petitioner had been discharging his duties and responsibilities in different posts under the Directorate of Prison with due diligence and he retired from service in the month of September, 2005 after enjoying leave preparatory to retirement. On 31-10-1999, the petitioner received a notice under Memo No, 1037 dated 31-10-1999 issued under Section 3(2) of the Anti-Corruption Act, 1957 (the Act, 1957, in short). The notice was issued under the signature of Md Serajuddin, Assistant Inspector of the Anti-Corruption, Bureau (briefly stated as the Bureau); Noakhali directing the petitioner to submit relevant papers in relation to some allegations against him for building a house and buying a car with money from illegal income. The petitioner submitted an explanation denying the allegations made against him with relevant documents. The Anti-Corruption Officer after completing enquiry submitted a report on 13-4-2000 to the effect that the allegations made in the complaint' against the petitioner were not proved. This enquiry report was forwarded to the Director, Chittagong Branch of the Bureau by the officer of Noakhali of the Bureau under Memo No. DAB(NOA)/2000-528 dated 17-4-2000. The petitioner then received another- notice under Memo No. DAB(NOA)/200-869 dated 31-7-2000 from another Anti-Corruption Officer of Noakhali alleging that the petitioner in the name of his wife Delwara Begum, Proprietor of M/s Islam Brothers of Molatola, Rangpur, participated in a tender for supply of food products· to the district Jail of Noakhali from 3-7-1998 till 31-12-1998, while the petitioner was a public servant. The said District Anti-Corruption Officer, Noakhali informed the petitioner by Memo No. DAB(NOA:)/2001-1126 dated 12-11-2001 that the complaint against the petitioner has been filed (bw_fz³) Thereafter, on 26-12-2011, the petitioner received another notice under Section 3(2) of the Act, 1957 vide Memo No. 2062/DAB(Rang) dated 26-12-2001 directing the petitioner to submit the relevant papers as regards buying land, building of house, buying shops, car, etc. The petitioner, accordingly, submitted all the relevant papers once again to the Anti-Corruption Officer. The petitioner also submitted an explanation to the notice denying all the material allegations against him as contained in the notice dated 26-12-2001. One Md Khairul Huda, an Inspector of the Bureau, Rangpur carried out an enquiry in the matter and submitted an enquiry report dated 30-1-2002 to the effect that the allegations made against petitioner in the complaint were not proved and the allegations were made against the petitioner on the self-same matter for the second time only with a view to unduly harass him. Subsequently, the petitioner was informed by Memo No. 1498/DAB/ (Rang) dated 8-8-2002 that the allegations brought against him were not proved and the complaint has been made "(bw_fz³)" with the approval of Head Office of the Bureau. But, the petitioner received another notice for the third time under section 3(2) of the Act, 1957 under Memo No. 3656 dated 7-2-2002 issued by Md Aminul Islam, Inspector, Anti-Corruption Bureau of Bangladesh, Dhaka containing the self-same allegations against the petitioner for possessing wealth beyond known source of income and for illegally recruiting Jail Guards in exchange of money. The petitioner sought for one month's time for submission of the papers as required by the said officer, but Md Aminul Islam, on 4-3-2002, issued another notice for the fourth time under Section 3(2) of the Act, 1957 with reference to BAC Nathi No. 16-2000(Ga)/(TaFo)-3 with same allegations against the petitioner and directing him to be present in Segun Bagicha Office of the Bureau on 11-3-2002 at 10-00 am with papers relating to land purchased by the petitioner at Rangpur Town, the costs of building of a house and buying a corolla car. Those were the subject matters of enquiry made against the petitioner under first notice dated 31-10-1999 wherein the petitioner was exonerated, as the allegations against the petitioner were not proved. The petitioner was served with a fifth notice under Section 3(2) of the Act, 1957 under Memo No. 21533 dated 25-8-2002 by respondent No. 2 containing the self-same allegations once again. The petitioner wrote a letter to respondent No. 2 stating that the allegations made against him in the said notice are vague and unspecific and he sought for giving specific information about the papers to be submitted before him. Instead of informing about the particulars of documents, respondent No.2 issued another notice for the sixth time under Section 3(2) of the Act, 1957 with reference to BAC Nathi No. 189/2002(Ga) bearing Memo No. 23266 dated 15-9-2002 containing the self-same allegations against the petitioner. Respondent No.3, Inspector General of Prison by letter No. 23266 dated 15-9-2002 with reference to Memo No. 189/02(Ga) (TaFo 04) was informed by respondent No.2, Inspector of the Bureau about some allegations against the petitioner and requested to send the petitioner to the Segun Bagicha Office of the Bureau. In the above circumstances, the petitioner filed Writ Petition No. 4831 of 2002 before the High Court Division challenging Memo No. 23266 dated 15-9-2002 issued under Section 3(2) of the Act, 1957 with reference to BAC Memo No. 189/02(Ta.Fo.-4) and Memo No. 23768 dated 22-9-2002 addressed to respondent No.3, Inspector General of Prison with reference to BAC Memo No. 189/02(Ga) (Ta.Fo.-4). The High Court Division by order dated 23-11-2002 was pleased to issue Rule as prayed for and was further pleased to stay the operation of the said notices (Annexures-J and K to the writ petition). However, the Rule issued in the said writ petition came up for hearing on 25-5-2008 and the learned Advocate for the petitioner missed the list. As a result, the Rule was discharged for default without deciding the matter on merit. The petitioner then filed an application for restoration of the Rule, but respondent No.2, meanwhile, issued two fresh notices against the petitioner under Memo Nos. 20595 dated 8-7-2014 and 22976 dated 7-8-2014 (shortly, the impugned Memos) asking the petitioner to appear before respondent No.2. The impugned Memos were issued most arbitrarily without mentioning any reason for new suspicion against the petitioner as regards the same subject matters which have already been dealt with by the Bureau on several occasions earlier. The impugned Memos are also violative of the fundamental rights of the petitioner as guaranteed by articles 27, 31 and 42 of the Constitution and therefore, the impugned notices are unlawful.
3. The petitioner filed a supplementary affidavit stating that the petitioner has served a notice dated 3-12-2014 upon the respondents demanding justice to ventilate of his grievance, but of no avail. The copy of the notice demanding justice has also been annexed with the supplementary affidavit.
4. Respondent No. I, Anti-Corruption Commission (hereinafter stated as the Commission) has contested the Rule by filling an affidavit-in-opposition controverting some of the statements made in the writ petition contending, inter-alia, that several notices had been served upon the petitioner, but the question relating to the genuineness of approval letter dated 9-7-2002, allegedly issued by the Commission was doubtful inasmuch as such approval was not found in the file of the Commission. Therefore, Memo dated 28-8-2002, Memo dated 15-9-2002 and Memo dated 12-9-2002 were issued after the issuance of Memo dated 8-8-2002 (Annexure-E to the writ petition). The impugned notices have been issued in accordance with law and therefore, the Rule is liable to be discharged with costs.
5. Mr Mainul Hosein, the learned Advocate appearing with Mr Bepul Bagmar for the petitioner, takes us through the writ petition, the supplementary affidavit thereto, the connected materials on record and put forward the following arguments before us:-
(1) the petitioner was served with two notices under Section 3(2) of the Act, 1957 bearing, Memo No. 1037 dated 31-10-1999 and Memo No. DAB/ (NOA)/200-864 dated 3-7-2000 from District. Anti-Corruption Officer, Noakhali;
 (2)  the first enquiry officer submitted enquiry report on 3-4-2000 stating that the allegations against the petitioner were not proved. Subsequently, the enquiry officer forwarded the report to the Head Office of the Bureau by Memo dated 17-4-2000 for approval;
(3)  the second notice was enquired by one Md Abdus Sattar, District Anti-Corruption Officer, Noakhali and the said District Anti-Corruption Officer also informed the petitioner by Memo No. DAB/(NOA)/2001-1126 dated 12-11-2001 that the complaint against the petitioner was filed (bw_fz³);
(4)  though after due enquiry, the allegations against the petitioner were not proved and it was filed by the Bureau. But, subsequently, several notices were issued upon the petitioner on the self-same allegations;
(5) the petitioner challenged the two notices in Writ Petition No. 4831 of 2002. But the Rule issued thereon was discharged for default, as the learned Advocate failed to appear in the Court for hearing;
(6)  the petitioner filed an application for restoration of the Rule. But, meanwhile, the petitioner received the impugned notices with reference to the other notices. Therefore, the petitioner without pressing the application for restoration of the Rule has filed this writ petition challenging the latest two Memos of the Bureau i.e. the impugned Memos, as fresh cause of action has arisen;
(7)  it is evident from the series of Memos issued by the Bureau that self-same allegations were brought against the petitioner and upon enquiry, those were not proved and so, with the approval of Head Office of the Bureau, those were filed (bw_fz³). But most arbitrarily the subsequent impugned notices were issued again upon the petitioner and, as such, those are liable to be struck down.
6. In reply, Mr ABM Bayezid, the learned Advocate for respondent No. I, takes us through the affidavit-in-opposition and as per our verbal instruction, by placing the concerned file of the Commission contends as under:-
 a)  it is true that some other complaints with the self-same allegations were enquired into by different enquiry officers and those enquiry officers reported that the allegations brought against the petitioner were not proved and recommended for filing of the said complaints. But, before filing of the said complaints, no permission was taken from the Bureau;
 (b)  in fact, permission was not given by the Bureau for filing of the complaints, though reference was given about obtaining approval from the Bureau;
 (c)  thus, it is evident that the Anti-Corruption Officers, who had enquired into the matter through corruption mentioned about approval by the Bureau and filed the cases unlawfully;
 (d from the wealth statements of the petitioner, it is evident that the petitioner accumulated huge amount of wealth by corrupt practice, as the wealth accumulated by the petitioner in his name and in the names of his wife and children appears to be beyond the known source of income of the petitioner;
(e)    in the above context, fresh enquiries over the self-same allegations by the Commission cannot be said to be unlawful and therefore, the Rule is liable to be discharged.
7. Mr Bayezid, however, admits that from the record of Rangpur Bureau, it appears that on 9-7-2002 permission was given by the Head Office of the Bureau for filing (bw_fz³) of a complaint against the petitioner, though no such copy is available in the record of the Head Office of the Bureau.
8. We have examined the writ petition, the supplementary affidavit thereto, the affidavit-in-opposition as well as the connected materials on record. We have also carefully perused the record as placed before us by Mr Bayezid, the learned Advocate for the Commission.
9. It is an admitted proposition that earlier the petitioner was served with two notices under Section 3(2) of the Act, 1957 bearing Memo No. 1033 dated 31-10-1999 and Memo No. DAB/ (NOA)/200-864 dated 3-7-2000 by the District Anti-Corruption Officers asking the petitioner to submit statements of wealth of the petitioner and of his wife and children and to explain his source of income relating to the wealth. Admittedly, two separate enquiry officers after conducting enquiry about the allegations made against the petitioner found that the allegations brought against the petitioner not to be true.
10. From the report given Zatann Kumar Roy, District Anti-Corruption Officer, Rangpur dated 31-1-2002 vide page-137 of Original Nathi E/R No. 25/2001, it appears as under:-
“.....................
অভিযোগটি নোয়াখালি ডি এ বি কর্তৃক অনুসন্ধান কালে জনাব মোঃ নূরুল ইসলাম কর্তৃক দাখিলকৃত কাগজপত্র পর্যালোচনাপূর্বক এই মতে উপনিত হন যে, জনাব মোঃ নুরুল ইসলাম একজন নিয়মিত করদাতা এবং তাহার আয় ব্যয়ের হিসাবের পূর্ণ বিবরণ তিনি নিয়মিত ভাবে আয়কর বিভাগে দাখিল করিয়াছেন। আয়কর বিভাগ কর্তৃক তাহা পরীক্ষা নিরীক্ষান্তে গ"হীত হইয়াছে। এমতাবস্থায় জনাব মোঃ নুরুল ইসলাম তাহার দীর্ঘ জীবনে যে সম্পদ করিয়াছেন তাহা তাহার জ্ঞাত আয় বহির্ভূত নয় এবং তাহা অবৈধ ভাবে অর্জিত নয় বিধায় অভিযোগটি নথিভূক্তির সুপারিশ করিয়া নোয়াখালি ডি এ বি’র অনুসন্ধানকারী কর্মকর্তা সহকারী পরিদর্শক জনাব মোঃ সিরাজ উদ্দিন বিস্তারিত প্রতিবেদন গত ১৩-৪-২০০০ইং তারিখের দাখিল করেন। জনাব মোঃ আবদুছ ছাত্তার জেলা দুর্নীতি দমন অফিসার নোয়াখালী অনুসন্ধানকারী কর্মকর্তার সাথে একমত পোষন করিয়া অভিযোগটি নথি ভূক্তির সুপারিশসহ প্রতিবেদন আঞ্চলিক উপ-পরিচালক চট্টগ্রামের মাধ্যমে দূর্নীতি দমন ব্যুরোর সদর দপ্তরে প্রেরণ করেন। অতঃপর ব্যুরোর সদর দপ্তরের পর্যালোচনায় অভিযোগটি নথি ভূক্তির সিদ্ধান্ত গৃহীত হওয়ায় বি এ বি ঢাকার স্মারক নং-৪৮৩-৯৯/ নোয়াখালী/২০০৮১ তাং-২৯-১০-২০০০ইং মোতাবেক নথি ভূক্তির নির্দেশ প্রদান করা হয়।
ইহাতে দেখা যায় যে, জনাব মোঃ নূরুল ইসলামের বিরুদ্ধে আনীত অবৈধ সম্পদ অর্জনের অভিযোগটি প্রমানিত না হওয়ায়  দূর্নীতি দমন ব্যুরোর সদর দপ্তর হইতে অভিযোটি নথি ভূক্তির সিদ্ধান্ত গ"হীত হইয়াছে। ইহাতে স্পষ্টতই প্রতিয়মান হয় যে, জনাব মোঃ নুরুল ইসলামকে অযথা হয়রানী করার জন্যই কে বা কাহারা বেনামীতে অত্র অভিযোগটি পুনঃরায় করিয়াছেন।
-----------------
আমি অনুসন্ধানকারী কর্মকর্তার সহিত একমত পোষন করিয়া অভিযোগটি নথি ভূক্তির অনুমতি  প্রদানের জন্য সুপারিশু করিয়া অনুসন্ধান প্রতিবেদন সহ সংশ্লিষ্ট কাগজ পত্রের কপি আপনার সদয় অবগতি ও প্রয়োজনীয় ব্যবস্থা গ্রহনের জন্য এতদসংগে প্রেরন করিলাম।
(underlines by us)
11. From the file placed before us by the Commission, it transpires that the Head Office of the Bureau by its Memo No. 524/`i/2001/iscyi/17008 dated 9-7-2002 with reference to iscyi wW G weÕi ¯§viK bs 188 dated 31-1-2002 (B/Avi bs 25/2001), on examination of enquiry report, decided to file (bw_fz³) of the complaint made against the petitioner and directed for taking such action. This Memo was received with official seal of the Office of District Anti-Corruption Officer, Rangpur on 15-7-2002.
Thereafter, by Memo No. 1498/DAB (Rang) dated 8-8-2002, Zatan Kumar Roy informed the petitioner about filing (bw_fz³) of the complaint vide Annexure-E to the writ petition. Similarly, another enquiry officer, on enquiry, also found the allegations against the petitioner to be false. Therefore, it is evident that on more or less selfsame allegations were enquired by at least two Anti-Corruption Officers, one from Rangpur Bureau and another from Noakhali Bureau and both, after enquiry of the allegations against the petitioner, submitted report that the allegations made against the petitioner were not proved. Therefore, it is not understood why six other Memos were issued against the petitioner over the self-same allegations repeatedly. In enquiry report, it was clearly stated that the Benami complaint was given against the petitioner to harass him.
12. Mr Bayezid, as per verbal direction of the Court, has placed the original file, namely B/Avi bs 25/2001 Zvs 3-12-2001, Rbve †gvt byiæj Bmjvg, (G AvB wR) AvB wR (wcÖRb), XvKv, relating to filing the case against the petitioner Md Nurul Islam before the Court. But he submits that approval letter of the Head Office of the Bureau, is created by the officers of the Bureau by corrupt practice. It is not understood if the document is not genuine one, how it contains the official seal of Rangpur Bureau with serial number and date and why action was not taken against the person/persons responsible for sending this letter from the Head Office of the Bureau informing about the decision of filing of case against the petitioner to District Anti-Corruption Office, Rangpur.
13. Since the decision of the Head Office of the Bureau deciding to file (bw_fz³) the complaint is found in the original file of the Bureau, we are of the considered view that before proceeding further with the impugned Memos, the Commission, upon enquirty, should decide as to whether the approval letter issued by the Head Office of the Bureau is genuine or not and should take action the person/persons responsible for sending/receiving the letter with the official seal of the Bureau (now, the Commission), if it is found not a genuine letter issued by the Head Office of the then Bureau.
14. In view of the above, the Commission is directed not proceed further with the impugned Memos i.e. Memo Nos. 20595 dated 8-7-2014 and 22976 dated 7-8-2014 against the petitioner before deciding the above  question and taking necessary action as observed hereinbefore.
15. The Commission is further directed that if, after due enquiry, it is satisfied about corruption of its own officials in relation to  letter dated 9-7-2002 in forming the decision of the Head Office of the Bureau about filing  (bw_fz³) of the complaint made against the petitioner, then the Commission would take necessary action against the said official/officials involved in the matter and only after taking appropriate action against him/them, the Commission is to take action against the petitioner by issuing fresh notices in accordance with law.
16. With the above observations and directions, the Rule is disposed of.
Communicate the judgment to respondent  No. 1 at once.

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