Kadamtala Purba Basaboo Uchcha Bidalaya & ors. Vs. Hasna H. Sarker @ Hasna Heba Sarker

  

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin J

MM Ruhul Amin J

Syed JR Mudassir Husain J

Kadamtala Purba Basaboo Uchcha Bidalaya and others the same…………..Appellants

 Vs.

 Hasna Hena Sarker @ Hasna Heba Sarker & ors………….. Respondents 

 

Judgment

December 8, 2003.

The Specific Relief Act, 1887 (1 of 1887), Section 42

Court of appeal below being the final court of fact having legally reversed the finding of the trial court and the High Court Division in their revisional jurisdiction having committed, no illegality in summarily rejecting the revisional application there is nothing to interfere. ………………………(11)

Cases Referred to-

Mustafa Aziz vs. Principal, Momenshahi Cadet College, Mirzapur 29 DLR 104, Rajshahi Girls’ High School and others vs. Md. Abdul Mannan 48 DLR 472 and Abdul Hannan Sikdar vs. Bangladesh Bank 31 DLR (AD) 298.

Lawyers Involved:

SM Munir, Advocate, instructed by Md Nowab Ali, Advocate?on?Record?For the Appellants.

Abdur Rab Chowdhury, Senior Advocate, instructed by ASM Khalequzzaman, Advocate?on? Record?For Respondent No. 1.

Civil Appeal No. 137 of 2001

(From the judgment and order dated 12?4?2000 passed by a Single Bench of the High Court Division in Civil Order No. 1960 of 2000).

 Judgment

                Syed JR Mudassir Husain J.- This appeal, by way of leave, arises out of judgment and order dated 12­-4?2000 passed by a single Bench of the High Court Division in Civil Order No. 1960 of 2000 summarily rejecting the appellants’ revisional application against the judgment and decree dated 28?7?1999 passed by the learned Additional District Judge, 2nd Court, Dhaka in Title Appeal No, 121 of 1999 reversing the judgment and decree dated 8­2-1999 passed by the learned Assistant Judge, Dohar Court, Dhaka in title Suit No. 27 of 1998 dismissing the same.

 2. The plaintiff respondent instituted aforesaid title Suit for a declaration that the letter No. 75/1992 dated 6?8?1992 issued by the headmaster of Kadamtala Purba Basaboo Uchcha Bidalaya purporting to remove the plaintiff respondent from the post of Assistant Teacher is void, illegal and without jurisdiction and not binding upon her and also prayed for mandatory injunction against the defendant petitioner; for her reinstatement in service with back salary and allowances.

 3. The case of the plaintiff respondent is that she was appointed as Junior Assistant Teacher of the aforesaid school as probationer for 2 (two) years and thereupon she joined on 5?3?1988, while performing her duties sincerely and honestly, she was served with a letter of warning by the Headmaster of the school on 11?2?1992 asking, her to be careful in future otherwise action would be taken against her. The plaintiff respondent was surprised to receive the aforesaid letter. In the mean time, by an order dated 27?2?1992, the plaintiff respondent was suspended with effect from 29?2­1992. Thereafter, charge?sheet was submitted with an intimation that an enquiry committee was formed and she was directed to show cause in respect of the charges and to explain her conduct within 15 (fifteen) days. The plaintiff respondent accordingly, submitted her explanation on 18?3?1992 to the enquiry committee. By another letter dated 23?3­1992, the plaintiff respondent was asked to be present before the enquiry committee, that the enquiry committee submitted report behind her back without affording an opportunity to examine the witnesses. It is further stated that the plaintiff respondent sent a representation to the chairman of the Board of Intermediate and Secondary Education, Dhaka stating the above facts on 7?9­1992 and thereupon the Board directed the school authority to reinstate her and accordingly she went to join on 1?1?1993 but the defendant petitioner Nos. 1?4 did not allow her to join and thereafter the Inspector of the Schools by letter dated 13?9?1993 directed tile school authority to allow the plaintiff respondent to join but it was not complied with by the school authority. Thereafter the Inspector of schools again asked the school authority to report Compliance of the order dated 5?10?1993, a, there was no compliance of the order of the Board, the recognition of the school was then withdrawn on 28?7?1994 and all Government benefits were stopped with effect from all these, 1?8?1994, that in spite of the plaintiff respondent was not allowed to join in service nor was given arrear salary and benefits. Hence, the suit.

 4. The defendant appellant contested the suit by filling written statement denying the Material allegations and contending, inter alia, that he plaintiff respondent was appointed as temporary Probationer junior teacher, since her standard of reaching was not up to the mark, the school authority served warming notice to the plaintiff respondent on 1?2?1992 and on receipt on the said latter of warning the plaintiff respondent attacked one senior teacher of tile school with the help of her nephew, Md. Adil and also being accompanied by few mastans and they also attacked the Headmaster of the school. Thereafter, the Managing Committee in a meeting held on 20?2?1992 and on 22?2?1992 constituted 3 (three) members enquiry committee and Suspended tile plaintiff respondent on 29?2­1992 and she was charged and asked to explain. The said respondent submitted her explanation on 18?3­-1992. The enquiry committee held enquiry, and the committee found the allegations brought against her to be correct and accordingly, submitted report on 20?6?1992. It was further stated that since the plaintiff respondent was a Probationer in service and having not been confirmed in service by the school authority, the approval of the Board was not required for her termination from service and her removal from service was legal.

 5. The trial Court dismissed the suit holding that the Plaintiff respondent’s service was not confirmed or regularized upon expiry of her probationary period of 2 (two) years and held that the plaintiff had no cause of action of the suit because of her representation being Pending before the appeal and arbitration committee of the Board. The trial Court also held that the suit for mandatory injunction and for direction to pay arrear salary, etc. is not maintainable tinder the Provision of section 42 of the Specific Relief Act and being aggrieved thereby the plaintiff respondent preferred an appeal and the appellate Court reversed the findings of the trial Court upon consideration of Exhibits 5, 7 and 10 and other evidence on record and came to the finding to the effect that since plaintiff respondent was allowed to continue in service for a period of two and a half year after a specific probationary period of 2 (two) years the plaintiff respondent would be deemed to have been confirmed in the service according to the principle enunciated in the decision in the case of Mustafia Aziz vs Principal Momenshahi Cadet College, Mirzapur reported in 29 DLR 104 and thereupon allowed the appeal by Setting aside the trial Court’s judgment. The appellants being aggrieved thereby moved the High Court Division in its revisional jurisdiction and the learned Judges of the High Court Division summarily rejected the said revisional application.

 6. Leave was granted on two counts, one is that the suit was not maintainable having no cause of action as a review application filed by the respondent No. 1 against her dismissal order was pending before the Intermediate and Secondary Education Board, Dhaka. The other is that, the service of the respondent No. 1 having not been confirmed the question of approving her dismissal only by the Board of Intermediate and Secondary Education does not arise at all.

 7. Mr. SM Munir, the learned Advocate of the provision Appellants, contended that in view of section 10(4) of the Intermediate Secondary Education Ordinance (E. P. Ordinance No. XXXIII of 1963) and the letter of the controlling authority, the Ministry of education, dated 18?10 1994 (Annexure?1) and reply thereto from the Board of Intermediate and Secondary Education dated 14­1?1995 (Annexure?1) no action was taken by the Board in pursuance thereof till the institution of the suit and, as such, the Court of appeal below ought to have dismissed the suit. It was further contended that in view of the Regulation No. 6(1) of the Recognition of the Non?Government Secondary Teachers Board of Intermediate and Secondary Education, Dhaka Terms and Conditions of 1977 and on the principle of law as enunciated in 48 DLR 472 and 31 DLR (AD) 298, the impugned judgment of the High Court Division affirming the appellate judgment is liable to be set aside. We have read the above cited decisions and find that the facts of the above cited decisions and the facts of the instant case are quite distinguishable and those decisions are not applicable in the instant case.

 8. Mr. Abdur Rob Chowdhury, the learned Senior Counsel, appearing for the plaintiff respondent, on the other hand, contended that respondent No. 1 was appointed as temporary junior Teacher on 5?3?1988 and her probationary period was for 2 (two) years and she was allowed to continue in service for two and a half years and having relied upon the decision in the case of Mostafa Aziz vs. The Principal, Momnenshahi Cadet College, Mirzapur reported in 29 DLR 104, Mr. Rob argued that the continuation in the service by the respondent No. 1 would amount to her confirmation in the service. It was further contended that the appellate Court as a final Court of fact, considered the material evidence on record, rightly decided the case in favour of the plaintiff respondent and, in such view of the matter, the findings and decision as arrived at by the High Court Division affirming the appellate judgment cannot be interfered with.

 10. The whole argument of Mr. Rob is that before imposing any penalty of dismissal or removal the matter must be examined by the Board and admittedly this was not done by the Board and, as such, the allegations brought against the plaintiff respondent No. 1 cannot be said to have been proved.

 11. Having regard to the facts and circumstances of the case and in consideration of the materials on record, we are of the view that the court of appeal below being the final Court of fact has legally reversed the findings of the trial Court and the High Court Division in their revisional jurisdiction committed no illegality in summarily rejecting the revisional application. We are fully in agreement with the findings and decisions arrived at by the High Court Division.

 12. In the aforesaid premises, we do not find any cogent ground for our interference with the impugned judgment of the High Court Division and consequently, this appeal is dismissed with costs of a Senior counsel in all stages.

Ed.

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