JAHANGIR KABIR (MD) Vs. BD, REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIR
SUPREME COURT OF BANGLADESH
Jahangir Kabir (Md)
Bd, Represented By The Secretary, Ministry Of Home Affair
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MD.ISMAILUDDIN SARKER,J. -
(1.) This appeal by leave by the appellant is from the judgment and order dated June 7, 1994 passed by the Administrative Appellate Tribunal in Appeal No. 75 of 1991. The appellant while acting as a Director of Fire Service Civil Defence and Rescue Service was placed on suspension under Rule 11(I) of the Government Servants (Discipline and Appeal) Rules, 1985 herein after referred to as the said Rules, and later January 27, 1986 a charge was framed against under Rules 3(b) and 3(d) of the aforesaid Rules, is alleged corruption and misconduct by a Deputy Secretary, Ministry of Home Affairs, alleging the appellant entered into service showing that he passed BA Examination, but, in fact, he did not pass the BA Examination. The appellant submitted written statement on February 4, 1986 denying the allegations and stating that he did not himself write his qualification as BA in the application for service nor in his annual confidential report which were done by others. The aforesaid Deputy Secretary, Ministry of Home Affairs also appointed a Joint Secretary, Ministry of Home Affairs as Inquiry Officer to enquire into the allegations against the appellant. The Inquiry Officer did not examine any witness in holding enquiry into the allegations and submitted report finding that the allegations against appellant were established. The authority then served a second show cause notice upon the appellant to which the appellant submitted a written reply on, April 7, 1986 pleading not guilty of the charges. The Ministry of Home Affairs, however, without considering the reply of the appellant forward case for opinion to the Public Service Commission which without examining the relevant papers gave consent to the proposed punishment. The Secretary Ministry of Home Affairs thereafter issued the impugned order of compulsory retirement from service on June 1,1986 and on the following day i.e. June 2, 1986, issued a memo amending his order dated June 1, 1986.
(2.) The appellant thereafter filed an application for review on July 24, 1986 before the Hon'ble President of Bangladesh but he was informed on December 24, 1986 that the application was rejected by the Hon'ble President. The appellant then filed AT Case No. 67 of 1987 on March 28, 1987 before the Administrative Tribunal, Dhaka. The Secretary Ministry of Home Affairs contested the case on behalf of the Ministry filing a written statement contending, inter alia, that the appellant noted his qualification as BA in the relevant form, though, in fact, he failed to passed the BA examination. Although the Administrative Tribunal held that the proceeding and order of compulsory retirement was illegal and void being without jurisdiction, but dismissed the appellants case by the judgment and order dated August 17, 1991 holding that the case was barred by limitation. The appellant thereafter tiled an appeal before the Administrative Appellate Tribunal being appeal No. 75 of 1991 but the Administrative Appellate Tribunal by its Judgment and order dated June 15, 1992 dismissed the appeal affirming the find of the Administrative Tribunal that the case was barred by limitation.
(3.) The appellant thereafter obtained leave to appeal from this Division and preferred Civil Appeal No. 82 of 1992 before this Court. This Division allowed the appeal by the judgment and order dated July 26, 1993 holding that the time spent on review before the President under the Government Servants (Discipline & Appeal) Rules. 1985 was to be excluded in the computation of the period of limitation and remanded the appeal to the Administrative Appellate Tribunal for disposal. After remand the Administrative Appellate Tribunal held that the ultimate order of compulsory retirement of the appellant was illegal and void inasmuch as the charge framed against the appellant by the Deputy Secretary, Ministry of Home Affairs was without jurisdiction, as according to the rules the Secretary, Ministry of Home Affairs was the designated officer to frame the charges against the appellant and further, the Deputy Secretary also appointed the Inquiry Officer whereas according to the Rules the Secretary himself was to appoint the inquiry officer. Accordingly, the Administrative Appellate Tribunal held that since the proceeding against the appellant was not initiated according to the Rules the same was without jurisdiction and the ultimate order of compulsory retirement of the appellant was illegal and void. But the Administrative Appellate Tribunal dismissed the appeal on the ground of estoppel under section 115 of the Evidence Act as after passing of the order of compulsory retirement the applied appealed for LPR and accepted all financial benefits including monthly pension.;
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