Monday, February 19, 2018 | ePaper

Departmental proceeding not same as criminal proceeding

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(From previous issue) :
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.
In the result, the Rule is discharged.
No order as to cost.

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