SERAJUL ISLAM (MD) Vs. DIRECTOR GENERAL OF FOOD

JUDGEMENT

(1.) Petitioner, a Government servant, is seeking leave to appeal from an order of the High Court Division dated 18 February, 1990 summarily dismissing his writ petition (No. 309 of 1990). By the said writ petition he had challenged an order of the Director General of Food drawing up a departmental proceeding against him.

(2.) Petitioner was Inspector of Food and In-charge of Sylhet LSD at the relevant time. On the allegation of gross neglect of duty i.e. his failure to take action for recovery of loss on account of Railway transit shortage amounting to Tk. 47.9 lacs a charge-sheet was submitted against him on 1 February 1987 by the Regional Controller of Food, who, however, cancelled that charge-sheet and issued a fresh charge-sheet on 6 June 1987 asking him to show cause why he would not be dismissed from service or otherwise punished for gross neglect of duty. On submission of his explanation the matter was enquired into by an Inquiry Officer and the Director, Food, on consideration of the report, let him off with a warning by an order dated 3 December 1987. The Director General of Food ignoring this order issued a fresh charge-sheet on 30 January 1990 on the same allegation. It is this charge-sheet which the petitioner challenged in his writ petition on the ground of violation of his fundamental rights under Articles 27, 31 and 35 of the Constitution particularly the latter, which prohibits conviction and punishment of a person twice on the same offence. The learned Judges of the High Court Division held that the principle of 'double jeopardy' as embodied in Article 35 of the Constitution is not applicable to a departmental proceeding against a Government Servant and that the matter being within the exclusive jurisdiction of the Administrative Tribunal established under Article 117 of the Constitution, the High Court Division has got no jurisdiction.

(3.) Mr. Abdur Rab Chowdhury, learned Advocate for the petitioner, contends that the matter does not relate to terms and conditions of service of the petitioner but it relates to fundamental rights guaranteed under the Constitution and it is the High Court Division alone which is competent to enforce fundamental rights under Article 44, read with Article 102 of the Constitution. The learned Advocate contends that the principle of 'double jeopardy' under Article 35 of the Constitution is applicable by analogy to punishment of Government Servants in a departmental proceedings as well. Learned counsel further contends that Article 31 of the Constitution which prohibits any action detrimental to life, liberty, reputation or property of any person except in accordance with law has been violated by the impugned proceeding.