Appellate Division Cases
(Civil)
PARTIES
Government of Bangladesh represented by the Secretary,Ministry of Health and Family Welfareand othere ………………Appellants
-vs-
Md. Salim Reza………………………………………Respondent
JUSTICE
Mainur Reza Chowdhury, C.J.
Mohammad Fazlul Karim. J
Syed J. R. Mudassir Husain. J
Abu Sayeed Ahammed. J
JUDGEMENT DATE: 29th January 2003
Article 102 Constitution of Bangladesh Writ Petition.
Haryana V. Jagdish Chander {(1995) 2 SCC 567; 1995 SCC (L &S) 539; (1995) 29 ATC
385. Director, ECIL V. B Karunakar { (1993) 4 SCC 727; 1993 SCC ( L&S) 1184 ; (1993) 25 ATC 704. Corpn. v. Purendu Chakrobarty (1999) 11 SCC 4-4, Oil & Natural Gas Commission V. Dr. Md. S iskender Ali (1980) 3 SCC 428 and 1980 SCC ( L &C ) 446, Unit Trust of India v. T Bijaya Kumar (1992) 5 SLR 855 (SC), Principal, Institute of Postgraduate Medical Education & Reserach, Pondicherry V. S. Andel 1995 Supp (4) SCC 609 and a labour case Oswal Pressure Die Casting Industry v. Presiding Officer (1998) 3 SCC 225 and 1998 SCC (L&S ) 862]. Liberty Oil Mills V. Union of India (1984) 3 SCC 465; (AIR 1984 -SC 1271). Dr. Nurul Islam Vs. Bangladesh reported
in 33 DLR (AD) 201
Respondent has been appointed in accordance with law and after his appointment he has joined in his post and his joining report was duly accepted after necessary formalities and he is continuing in his post and working and signing his attendance register and his service cannot be under any circumstances be taken away without due process of law…………… (6)
The impugned order manifested non application of mind issuing a general Circulation to do away with the service of the respondent and the omnibus termination even though the appointment was individual where in it has been reported that “some persons entrusted with the task of Government appear to be unaware of the fact that the exercise of discretion they must be governed by rule, not by rumors whim, caprice or fancy or personal predictions …………………(15)
Civil Appeal No. 206 of 2000 (From the judgment and order dated 7th May 2000 passed by the High Court division in Writ Petition No. 4753 of 1999)
J. Mohammad Ali, Additional Attorney General, instructed by Md. Sajjadul Huq,
Advocate-on-Record…………. For the Appellants
Abdul Wadud Bhuiyan Senior Advocate, instructed by A. s. Khalequzzaman, Advocateon-Record……………………… For Respondent
JUDGMENT
1. Mohammad Fazlul Karim, J :- This appeal by leave arises out of judgment and
order dated 7t h May 2000 Passed by the High Court Division in Writ Petition No. 4753 of 1999 making the Rule absolute.
2. The respondent filed the writ petition stating inter alia, that appellant no .1
Government of Bangladesh in 1994-1995 decided to raise and upgrade the Government
General Hospital. Jessore from 100 beds to 250 beds, sanctioning initially Tk. 10 crores under Head Project for upgrading of Hospital bed and the Civil Surgeon Jessore was appointed as Project Director under the care and contract of the Ministry of Health and Family Planning Government of Bangladesh the appellant Nos. 1 to 6 decided to recruit man power of the upgrade hospital for opening the Hospital and accordingly created 142 gazette and non gazetted post for running the hospital. That the order was issued for appointment under order of appellant no . 3 with the approval of the government . That the respondent also alleged in the writ petition that the Government constituted
appointment committee with 6 members. He also alleges that the civil Surgeon, Jessore,
being authorized advertised for appointment. That the respondent alleges that he applied for the post of appointment at Sterilizer and was appointed and as such he worked for long period as Sterilizer.
3. The appellants contested the rule filing affidavit in opposition stating that the authority
illegally appointed persons including the respondent and after detecting of the irregularities and bungling in the appointments the appointment orders of the appointees were cancelled.
4. The rule was made absolute. Leave was granted on additional grounds submitted by the learned Additional Attorney General for the appellant urging that the impugned order having been passed after investigation and the Government having found appointments were made illegally and as by the impugned order appointments of all the 3™ class and 4t n class employees having been cancelled, the High Court Division was wrong in holding that the impugned order is illegal as the same has been passed without hearing the writ petitioner. He further submitted that the writ petitioner’s appointment having been made in violation of the procedure and system of recruitment the government cancelled the recruitment and for such cancellation no notice of show cause is required. He also submitted that the impugned order having been passed in respect of the terms
and conditions of service the High Court division erred in law in not holding that the writ
petition was not maintainable.
5. Mr. A. J Mohammad Ali, the learned Additional Attorney General appearing for the
appellant has submitted that the impugned order having been passed after investigation and the government having found the appointment as illegal, cancelled it the High Court Division was wrong in holding that the impugned order is illegal as same has been passed without hearing the writ petitioner. The learned Attitudinal Attorney General further submitted that the writ petitioner’s appointment having been made in violation of the procedure and system of recruitment the Government cancelled the recruitment and for such cancellation no notice of show cause is required. Hence the judgment of the High Court division is not proper.
6. Mr. Abdul Wadud Bhuiyan, the learned Counsel appearing for the respondent has submitted that the respondent has been appointed in accordance with law and after his appointment he has joined in his post and his joining report was duly accepted after necessary formalities and he is continuing in his post and working and signing his attendance register and his service cannot be under any circumstances be taken away without due process of law as such the impugned order as contained in Annexure-G is devoid of natural justice also. The learned Counsel further submitted that while issuing the impugned order no proceedings as contemplated under Government servant (Discipline and Appeal) rules 1985 has been initiated and no show cause notice as
required under law was ever issued and the respondent is condemned unheard of the
impugned order issued by the Director ( Hospital and Clinic) and Line Director (Hospital and Care) to dismissing the appellant Nos.2-3 canceling all appointments as contained
in Annexure -G dismissing the respondent and other 3 and 4 m grade employees from their respective jobs is illegal, bad void, malafide and passed without any lawful authority
and is of no legal effect. The learned Counsel further submitted that by the purported
order contained in Annexure-G of the writ petition respondent the rest 3rd and 4th grade
employees have been virtually dismissed from their services and the said order was passed without any legal formalities and the impugned inquiry is partial, malafide, based on imagination and without any evidence and the respondent was not given any opportunity of being heard against the imaginary, malafide, false and concocted allegations against disregarding the appointment of the respondent and the alleged
report being confidential, one sided, partial suffers from due process of law, the actions taken on the basis of the malafide report, is also illegal, bad, malafide and is of no legal consequence and is liable to be cancelled. The learned Counsel lastly submitted that the salary of the respondent has been withheld and the respondent and other have not been paid their salary so long by illegally stop payment of the salary of the respondent without initiating any legal proceedings whatsoever against the respondent and the Order of withholding of the payment of the salary of the respondent is beyond the jurisdiction of the appellants and the respondent was condemned unheard and as the impugned order contained in Annexure-G is illegal, malafide and without any lawful authority and should be declared as such and they be directed to pay the salary of the writ petitioner.
7. Mr. Abdul Wadud Bhuiyan has submitted with the reference to the report such resulted in the issuance of the impugned order containing a stigma that the same though not in the order of termination the letter is the out come of the said report and as such the same was issued without any chance to show cause in not sustainable in law and has referred to a decision in the case of Dipti Prakash Benerjee Vs. Satyendra Nath Bose National Center for Bsisc Sciences reported in (1999) 3 Supreme court Cases 60 where in it has been held that: “It will be seen from the above case that the resolution of the committee was part of the termination order being an enclosure to it . But the offensive part was not really contained in the order of termination nor in the resolution which was an enclosure to the
order of termination but in the Manager’s report which was referred to in the enclosure. The said report of the Manager was placed before the Court along with the Counter. The allegations in the Manager’s report were the basis for the terminating and the said report
contained words amounting to a stigma. The termination order was, as stated above, set aside.”
8. The above decision is, in our view, a clear authority for the proposition that the material which amounts to stigma need not be contained in the order of termination of the probationer but might be contained in any document referred to in the termination order or in its Annexure. Obviously such a document could be asked for or called for by any future employed of the probationer. In such a case, the order of termination would stand vitiated on the ground that on regular enquiry was conducted. We shall presently consider whether, on the facts of the case before us, the documents referred to in the impugned order contain any stigma.
9. It was in this contest argued for the respondent that the employer in the present case
had given ample opportunity to the employee by giving him warnings, asking him to improve and even extended his probation twice and this was not a case of unfairness and this Court should not interfere. It is true that where the employee had been given suitable warings, requested to improve, or where he was given a long rope by ways of extension of probation, this court has said that the termination orderscannot be held to be punitive, (see in this connection Hindustan Paper Corpn. v. Purendu Chakrobarty reported in (1999) 11 SCC 4-4, Oil & Natural Gas Commission V. Dr. Md. S iskender Ali reported in (1980) 3 SCC 428 and 1980 SCC ( L &C ) 446, Unit Trust of India v. T Bijaya Kumar reported in (1992) 5 SLR 855 (SC), Principal, Institute of Postgraduate Medical Education & Reserach, Pondicherry V. S. Andel reported in 1995 Supp (4) SCC 609 and a labour case Oswal Pressure Die Casting Industry’ v. Presiding Officer reported in (1998) 3 SCC 225 and 1998 SCC ( L & S) 862]. But in all these cases, the orders were simple orders of termination which did not contain any words amounting to stigma. In case we come to the conclusion that there is stigma in the impugned order, we cannot ignore the effect it will have on the probationer’s future whatever be the earlier
opportunities granted by the respondent Organization to the appellant to improve.”
10. The learned Counsel further submitted that the impugned order having been found
void, the respondents are entitled to re instatement with back wages and has relied on the self same decision referring to the passage that:”Learned Senior Counsel for the
respondent submitted on the basis of State of Haryana V. Jagdish Chander {(1995) 2 SCC 567; 1995 SCC (L &S) 539; (1995) 29 ATC 385} that merely because in order of termination was set aside on grounds of lack of opportunity, it was not necessary to direct reinstatement and back Wages. Reliance in Jagdish Chander case was placed upon
Managing Director, ECIL V. B Karunakar { (1993) 4 SCC 727; 1993 SCC ( L&S) 1184 ; (1993) 25 ATC 704}. It is true that such an order not granting reinstatement or back wages was passed in Jagdish Chander case following karunakar Case, But it has to
be noticed that in Karunakar case there was a regular departmental enquiry but the enquiiy report was not given to the officer. This court Directed the report to be given and set aside the proceedings from that stage and stated that no order for reinstatement or back wages need be passed at that stage . But in cases liked the present where no departmental enquiry whatsoever was held, Karunakar case in our view, cannot be
an authority. As to back wages, on facts, the position in the present case is that there is no material to say that the appellant has been gainfully employed . The appellant is, therefore, entitled to reinstatement and back wages till the date of reinstatement from the date of termination and to continuity of Service.”
11. The learned Additional Attorney General contended that the temporary appointments
of the writ petitioner could be terminated at will at any time without assigning reasons.
Mr. A. J. Mohammad Ali, the learned Additional Attorney General further submits
that the appointment of the respondent being purely temporary and for the project the appellants is not required to issue a notice to show cause upon the respondent in order to do away wiih the service inasmuch as the respondent being employed in any particular project and the period having been expired no show cause notice is required to terminate pursuant to the letter of appointment inasmuch as the learned Additional Attorney General further submitted that the Court is not to see as to whether the process as to termination has been complied with in the instant case in view of the fact that the respondent’s appointment was purely temporary and for a limited period of the project
and there being no final sanction beyond project period and that the termination was in consequence through enquiry the same did not suffer from any illegality but the learned Counsel for the respondent submitted that in any view of the matter whether the reasons communicated or not, the reason for the order must exist.
12. In the case of Md. Abdur Rasheed Vs. Govt. of Bangladesh reported in 30 DLR 231 it
has been observed that: “But when the order of terminating of service, even of a temporary employee casts an aspersion or puts any blame or contains any statement that may adversely affect the employee’s career, the employers is obliged to give an
opportunity to the employee to place his case. In this regard provision for giving reasonable opportunity is beneficial both to employee as well as to employer and conducive to the cause of justice. The employee gets an opportunity to explain his position and the employer also gets a Chance to consider the employee’s point of view that might have escaped his notice or was withheld from him.”
13. In the case of Dr. Nurul Islam Vs. Bangladesh reported in 33 DLR (AD) 201 it has
been found, inter alia, that: ” In the cases of P. L. Dhaingra, AIR 1958 S. C. 36 and Moti Ram, AIR 1964 S. C. 600, amongst others two tests have been laid down to determine
whether termination of service amounted to punishment. First test is to ascertain
whether the servant but for such termination had the right to hold the post. The other test is whether he has been visited with evil consequences, in that loss of service benefits accrued to him. In such a case the order of termination if taken without complying with
requirements of Article 311(2) (corresponding to Article 135 of our Constitution ) must be knocked down as illegal and void.”
14. In the case of Kumari Sharilekha vidyarthi V. State of Up and others reported in A
IR 1991 Supreme Court 537 where in the legality of terminating of appointments of all
Government Counsel in all the districts of the State of U. P by a Circular Go. O. NO. D-284 Seven-Law-Ministry dated 6.2.1990 terminating all the existing appointments with effect from 28.2.1990 irrespective of the fact whether the terms of the incumbent had expired or subsisting came up for consideration. The validity of this State action was challenged in these matters after the challenge was rejected by the Allahabad High Court which it was observed: ” This, However, does not necessarily mean that a person who is not a Government servant holding a post under the Government does not hold any public office and the engagement is purl private with no public element attaching to it. This part of C 1.3 Para 7.06 means only this and no more. The other part of C1.3 which enables the
Government to terminate the appointment ‘at any time without assigning any cause’ can also not be considered in the manner, suggested by the learned Additional Advocate General, the expression ‘at any time’ merely means that the termination may be made even during the subsistence of the term of appointment and ‘without assigning any cause’ means without communicating any cause to the appointee any cause’ is not to be equated with ‘without existence of any cause’. It merely means that the reason for which the termination is made need to be assigned or communicated to the appointee . It was
held in Liberty Oil Mills V. Union of India (1984) 3 SCC 465; (AIR 1984 -SC 1271) that the expression ‘ without assigning any reason’ implies that the decision has to be communicated, but reasons for the decision have not to be stated ; but the reasons must exist, other wise, the decision would be arbitrary.”
15. The learned Counsel for the respondent has also submitted that the impugned order
manifested non application of mind issuing a general Circulation to do away with the service of the respondent and the omnibus termination even though the appointment was individual where in it has been reported that “some persons entrusted with the task of Government appear to be unaware of the fact that the exercise of discretion they must be governed by rule, not by rumors whim, caprice or fancy or personal predictions as spelled out in the case of John Welkes (197o ) 4 Burr 2528 more than 2 centuries back and quoted with approval in Jaisinghair’s case (AIR 1967 SC 1427). The said decision proceeded to hold inter alia, that” “Viewed in any manner, the impugned circular dated 6.2.90 is arbitrary. It terminates all the appointments of Government Counsel in the districts of the State of Uttar Pradesh by an omnibus order, even though these
appointments were all individual. No common reason applicable to all of them justifying their termination in one stroke on a reasonable ground has been shown. The submission on behalf of the State of Uttar Pradesh at the hearing that many of them were likely to be
reappointed is by itself ample proof of the fact that there was total non application of mind to the individual cased before issuing the general order terminating all the appointments. This was done in spite of the clear provisions in the L.R Manual laying down detailed procedure for appointment, termination to first consider the existing incumbent for renewal of his tenure and to take steps for a fresh appointment in his
place only the existing incumbent is not found suitable in comparison to more suitable persons available for appointment at the time of renewal. In the cases of existing appointees, a decision has to be first reached about their nonsuitability for renewal before deciding to take steps for making fresh appointments to replace them. None of theses
steps were taken and no material has been produced to show that any existing incumbent was found unsuitable for the office on objective assessment before the decision to replace all by fresh appointees was taken. The prescribed procedure laid down in the L. R Manual which has to regulate exercise of this power was totally ignored. In short, nothing worth while has been shown on behalf of the state of U. P. to support the impugned action as reasonable and non arbitrary. The impugned circular must, there fore, perish on the ground of arbitrariness which is an available ground for judicial review in such a situation.” “In our view, bringing the State activity in contractual matters also with in the
purview of judicial review as inevitable and is a logical corollary to the stage already reached in the decisions of the this court so far. Having fortunately reached this point, we should not now turn back or take a turn in a different direction or merely stop there. In our opinion, two recent decision in M/S Dwarkadas Marfatia and Sons (AIR
1989 SC 1942) (Supra) and Mahabir Auto Stores (AIR 1990 SC 1031) (Supra) also lead in the same direction without saying so in clear terms. This appear to be also the trend of the recent English decisions. It is in consonance with our commitment to openness
which imp lice scrutiny of every State acting to provide an effective check against arbitrariness and abuse of power. We would much rather be wrong in saying so rather than be wrong in not saying so. Non arbitrariness, being a necessary concomitant of
the rule of law, it is imperative that all actions of every public functionary, in
whatever sphere, must be guided by reason and not humor, whim, caprice or personal predilections of the persons entrusted with task on behalf s of the State and exercise of all power must be for public good instead of being an abuse of the power.”
16. As regards the fact of not providing the respondent with the opportunity to the show
cause notice making the decision void, the learned Counsel for the respondent has referred to a decision in the case of Bridge V. Baldwin and others reported in (1963) 2 ALL England Reports 66 which has held that “Then there was considerable argument
whether in the result the watch committee’s decision is void or merely voidable. Time and again tin the cases. I have cited it has been stated that a decision given without regarded to the principles of natural justice is void and that was expressly decided in Wood v.
Woad {(1974) L.R. 9 Exch. 190}. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to made a decision until it has afforded to the person affected a proper opportunity to state his case.”
17. The learned Counsel for the respondent has submitted that the order of appointment
crated a vested right and that termination without following the principle of natural justice makes the order void and has referred to a decision in the case of Shridhar V. Nagar Palika, Jaunpur reported in AIR 1990 Supreme Court 307 which arose out of the fact that the Juanpur Municipal Board issued an advertisement inviting application for appointment to the post of Tax Inspector stating eligibility of the existing employees along with outsiders. One Hari Mohan, a senior most Tax Collector was called for interview but he refused to appear at the interview on the plea that the post should be
filled in by promotion without considering outsiders. The board ignored the plea and appointed the appellant ignoring the government order dated 10.4.1950 entitling to be promoted to the post where in it has been held in the light of the aforesaid case that the High Court committed serious error in upholding the order of the Government dated 18.2.1980 in setting aside the appellants appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in
the appellant to hold the post Tax Inspector, that right could not be taken away without
affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioners order had been passed without affording any opportunity of hearing to the appellant, therefore the order was illegal and void, The High Court committed serious error in upholding the commissioner’s order setting aside the appellant’s appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law.
18. Our courts as well consistently followed the aforesaid principle of law since the case of Zakir Ahmed Vs. The University of Dacca 16 DLR 361 where in the petitioner, a student of Dhaka University was found guilty of serious breach of Principle by the authority on the occasion of the convocation in March 1964 and was expelled form the University for a period of 2 years. He challenged the expulsion order on the grounds that the University had no power to pass it and further that he was not given any opportunity to show cause before the decision to expel him was taken, It was held there in that
there is no reason for holding that in case of discipline, the principle of natural justice can have no application and further held that: “Even however, we have already indicated our conclusion that having regard to the nature of act that Dhaka University was called upon to perform under Section 8 of the University Ordinances, it has a quasi judicial act and any inquiry that is, conducted there into before action is taken must be conducted with due regard to the rights accorded by the principles of natural Justice.”
19. The n issuance of the show cause notice would not bring any good to the respondents as they were appointed for the project and that the project period has since expired and Court would not pass any in fructuous order by way of setting aside the order of termination resulting thereby reinstatement in their services to a non existent project in which he was appointed . We can profitable refer to an averment in the petition which has not been denied by the writ respondent that: “That the petitioner No. 1 applied for
the post his appointment as cardiographer and the petitioner was found qualified in the written examination and there after was called for by the committee for their interview made the appointment to the petitioner as sterilize attached O.T Division and in
respect of his appointment letter he reported to his office on 2.7.1998 and his joining letters was accepted and since then the petitioner is working till now.”
20. The argument of the learned Additional Attorney General is not tenable in view of the
fact that the respondent is not employed in any project like building of a house or a bridge whose purpose has been fulfilled or the project came to an end with the completion of the work but has been engaged in the modernization of the hospital and the nature of job of the respondent for rendering medical assistance in the matter of providing sterilize attached to . O. T. Division and the project being a continuing one the employee’s services are liable to be regularized under the terms of the advertisement for
the post.
21. In the case of Bangladesh Vs. Md. Azizur Rahaman reported in 46 DLR (Ad) 29 it
has been held that: ” Even without that Rules for regularization the ad hoc appointees by continuous service for over five years already acquired a right to continue for indefinite
period since the posts against which they were appointed remained in tact. This is a settled principle as to temporary service for indefinite duration requiring into quasi permanent character as explained in the case of Abdul Mazid Vs. Mushafi Ahmed
reported in 17 DLR SC 131.”
22. Although the project period has been termed to be temporary but the Government
servant discipline rules have been made to apply as to their service and they would not be
terminated as such without following the principle of natural justice. In the instant case any order setting aside the impugned order would lead to the reinstatement and back wages of the terminated employees.
23. Since the nature of work of the employees under the project including the respondent, the authority could get the posts sanctioned and making the same continuing one by making provisions as to the salary and other benefits to the employees including the respondent. In that view of the matter, the appeal is dismissed without any order as to costs.
Ed.
Source: I ADC (2004), 344