Decided on March 17,2009

Gm, Postal Insurance, Eastern Region, Dhaka Appellant
A.B.M. Abu Taher Respondents


MD.JOYNUL ABEDIN,J. - (1.) This appeal has arisen by leave from the judgment and order dated 30.4.2002 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 61 of 1998 allowing the appeal on contest.
(2.) The short fact is that the respondent instituted Administrative Tribunal Case No.47 of 1995 before the Administrative Tribunal, Dhaka alleging, inter alia, that he was appointed as Lower Division Clerk (L.D.C.) on 3.1.1962 in the Postal Life Insurance and since then he discharged his duties honestly and sincerely. Later on he was promoted as Upper Division Clerk (U.D.C.) on 19.8.1968. Thereafter, he was promoted to the post of Superintendent and was serving in that capacity to the satisfaction of the concerned authority. The appellant had to go home on account of resolving his land disputes and accordingly he filed an application for leave from 3.4.1993 to 28.4.1993 and left the station. However the appellant No. 2, the Regional Manager, Postal Life Insurance, Regional Office, Dhaka by his letter dated 11.4. 1993 informed the respondent that his prayer for leave was refused and he asked him to join his duties. He however was not aware of the said instructions made in the said letter dated 11.4.1993. The respondent was under the impression that his leave petition would be allowed and no exception would be taken for his absence for those days. After joining in the Office, the respondent came to know that he was selected for a training course on the Management of Insurance Business. Accordingly he went to Rajshahi for 7(seven) days training at the Rajshahi Postal Training Academy. In 1989 the respondent was attacked with "Jaundice" and he also suffered from various other ailments and as a result his health deteriorated. Upon the advice of the Doctor the respondent had to apply for casual leave on 16.5.1993, 18.5.1993 to 20.5.1993 and 20.5.1993 to 30.5.1993 and thereafter he also prayed for earned leave from 6.6.1993 to 28.6.1993. While the respondent was enjoining his medical leave as per the advice of the doctor, the appellant No.2 by his letter dated 15.6.1993 informed the respondent that the leave as prayed for could not be granted and asked him to join his duties immediately without referring him to the Civil Surgeon. The respondent was again intimated by another letter dated 16.6.1993 of the appellant No.2 to remain on compulsory leave as per Rule 11 (2) of the Government Servants (Discipline and Appeal) Rules, 1985 until further orders although the said Sub-Rule 2 of Rule 11 of the said Rules was already omitted by S.R.O. No.304-Law/89/EM (Reg-5)1-D/88 dated 13.3.1989.
(3.) Thereafter, a proceeding was started against the respondent for misconduct by letter dated 4.7.1993 issued by the appellant No. 2 as per Rule 3(6) of the Government Servants (Discipline and Appeal) Rules, 1985 for unauthorized absence in the office. Consequently he was asked to show cause within 10(ten) days as to why he should not be dismissed from service. On receipt of the said letter, the respondent submitted his reply on 28.7.1993 explaining his position stating that the charge of misconduct so framed against the respondent was not sustainable in law inasmuch as it did not fall within the ambit of Rule 3(b) of the said Rules of 1985 and prayed for exoneration from the alleged charge of misconduct. But the authority was not satisfied with the explanation submitted by the respondent and ultimately Mr. Moklesur Rahman, Superintendent (Post Office), P.M.G. Office, Dhaka Division, Dhaka was appointed as the Inquiry Officer to investigate the charge of misconduct by his memo dated 17.8.1983. But the inquiry officer without following the provision as laid down in Sub-Rule (4) of Rule 7 of the said Rules fixed the date of inquiry on 7.12.1993 and without affording any opportunity of self-defence to the respondent the inquiry was completed on the aforesaid date. No witness was present before the inquiry officer and the respondent was not given any opportunity to cross-examine the witnesses of the management. The inquiry officer however submitted his report on 22.1.1994 finding the respondent guilty of the charge. Thereafter the respondent received a second show cause notice on 10.3.1998 to which the respondent replied on 28.3.1994. The appellant without considering the facts and circumstances of the case and the provisions of law applicable in the case most illegally and with malafide intention passed an order dated 18.5.1994 retiring the respondent from service. The respondent then filed a departmental appeal but the same was summarily dismissed.;

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