Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)

petition. But a party claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high-handed, arbitrary or unjust is entitled to a hearing of its petition on the merits. Apparently the petition filed by the Company did not raise any complicated questions of fact for determination, and the claim could not be characterised as frivolous, vexatious or unjust. The High Court has given no reasons for dismissing the petition in limine, and on a consideration of the averments in the petition and the materials placed before the Court we are satisfied that the Company was entitled to have its grievance against   the action of the Municipality, which was prima-facie unjust, tried”.

  1. 48.      In Veerapa Rachappa Saboji, (AIR 1975 SC 773), the Supreme Court observed “we do not think the High Court Division was right in rejecting the petition of the appellant in limine. The grounds of challenge taken by the appellant in the petition could not be said to be frivolous so as to merit summary rejection. They did require consideration, and particularly the first ground raised an issue of some importance depending on the true construction of Rule 4(2)(iv) of the Bombay Judicial Service Recruitment Rules, 1956. The High Court ought, therefore, to have admitted the petition and issued a rule so that the grounds of challenge set out in the petition could be examined on merits. No disputed questions of fact appeared to arise in the petition and in any event until a return was filed by the respondents, it could not be said whether the controversy between the parties would involve any disputed questions of fact. There was, therefore, no point in refusing to entertain the petition on merits   and referring the appellant to a suit. We must in the circum-stances, set aside the order of summary reject-ion passed by the High Court and remand the petition to the High Court with a direction to admit it and to issue a rule to the respondents”.
  2. 49.      We do not dispute the statement of law argued in the cases referred to by Dr. Hossain. These cases are quite distinguishable and not applicable in this case. No case can be an authority on facts. We find no substance in the submission that the High Court Division acted illegally in dismissing the petitions, inasmuch as, the petitions do not involve issues relating to interpretation and construction of law.
  3. 50.      Now the question is after expressing the desire to retire about one year before making of the impugned orders, the petitioner can challenge the impugned orders? When he has been convinced that he has no legal sanction of law to hold on the office, he has no right   to challenge the order of removal. In course of hearing learned counsel also indicated that there is still scope for honourable transition of power if the petitioner is appointed as chairman of the Bank by the Government considering his social status and contribution towards the Bank, and this can be possible if this Division makes observation in this regard. It is the discretionary power of the Govern-ment to appoint the Chairman under the Ordinance and it is not within our jurisdiction. Since the impugned orders were made on 27th February, 2011 after about one year of writing of the above letter, the issuance of prior notice, in our view, will be an unnecessary exercise. Therefore, the submission that the Prof. Muhammad Yunus was removed without affording any opportunity of being heard is contrary to the materials on record, specially when, in the eye of law, he was not ‘removed’ rather, he ceased to hold his office of Managing Director of Grameen Bank by operation of law, on his attaining the age of his superannuation. On these facts, it cannot be said that he was dealt with unfairly.
  4. 51.      Next point is whether the High Court Division acted illegally in dismissing the writ petitions summarily and thereby denied the petitioner access to  justice. The main thrust of Dr. Hossain is that the High Court Division ought to have admitted the petitions and should have decided the matters on the basis of the affidavit-in-opposition. This lead us to decide whether the admission of a writ petition, irrespective of its merit, is a sine-qua-non. The power of the High Court Division to issue writ under Article 102 can be exercised for the enforcement of fundamental rights, as well as, of non-fundamental legal rights where the action taken is procedurally ultra vires or where the authority being under an obligation to act judicially, or even quasi judicially, passes an order which is in violation of the principle of natural justice, for safeguarding such fundamental rights of the aggrieved person. When all the facts are on record and the law is clear on the subject, the exercise of jurisdiction in such a case is uncalled for.
  5. 52.      Similarly, in cases where the question of law or constitutionality urged can be determ-ined only upon investigation into disputed questions of fact, for which there are no materials on the record, or where  the facts stated in the petition do not ex facie support the petitioner’s case, but not otherwise or where the petitioner seeks to secure unjust gain, or where the quasi-judicial authority acted without or in excess of jurisdiction or in contravention of the principle of natural justice, the exercise of power may be refused. We have observed above, there was no infraction of any right of the petitioner as he was holding and continuing in the office of Managing Director of a statutory bank without any legal sanction. Or in the alternative, he has no legal authority to hold the office of Managing Director as he has no legal basis to continue in such office after attaining the age of superannuation. In the absence of violation of any mandatory provision of law, the Court will not come in aid to the petitioner as he is a disqualified person to continue in the office of Managing Director.
  6. 53.      Prof. Muhammad Yunus is a nobel laureate. He is a respectable person not only in Bangladesh but all over the world. He was initially appointed as Managing   Director of Grameen Bank by the Government and subsequently the Board reappointed him with prior approval of the Bangladesh Bank. Under such circumstances, the observations of the High Court Division that “a ‘squatter’ or a ‘trespasser’ or a ‘usurper’ can not maintain a writ petition under Article 102” are totally uncalled for in this case and the petitioner was illegally compared with litigants like “squatter, trespasser, usurper”. Prof. Muhammad Yunus is neither a ‘squatter’ nor a ‘trespasser’ or a ‘usurper’ of Grameen Bank in any sense. Rather he is the person on whose ideas and innovative projects for extending collateral free small loans to the rural people, the Bank has been established and it has achieved the prestigious nobel prize as a recognition of its phenomenal success. Therefore, the unneces-sary observations as quoted above are totally derogatory which are hereby expunged. It is hoped that the High Court Division should be cautious in future in making any unhealthy observation against any litigant who has   come to Court for justice and not for seeking derogatory remarks instead.
  7. 54.      It is to be remembered that Judges admin-ister justice. In order to do justice, the first and foremost expectation from them is to be just. This expectation itself is the fountain source of all that can be put in the realm of canons of judicial ethics. A Judge can not have any pre-disposed state of mind. His judgment would not be actuated by concerns of private interests or considerations. He has to be decisive. His every action and every word–spoken or written, must show and reflect correctly that he holds the office as a public trust and he is determined to strive continuously to enhance and maintain the people’s confidence in the judicial system. Learning, personality, manners  and stature in the judicial functioning matter. A Judge is as much respected as he respects the law, justice, equity and good conscience, and above all serves and seen to serve the cause of justice. It is desirable that the High Court Division should not use such unsophisticated words against a respectable person like Prof. Muhammad  Yunus. The language of the Court should be dignified and the findings should confine to the issues involved in the matter.
  8. 55.      Like a Judge, a lawyer is a functionary of the judicial system with powers and duties as important as those of Judges. Lawyers are an important limb in the administration of justice.  Their duty to the cause of justice is even superior. Their first obligation is to assist the Courts to the best of their ability so that justice can be done, so much so that only the legal profession is deservingly called a learned profession. It has high standards to keep abreast. That is why the profession commands respect. A lawyer’s advanced education, training, knowledge and skill in the field of law, apart from his duty to the client, are the attributes to his tradition in the practice of law. Instances are not rare to find where lawyers in their over-zealousness to protect the interest of their clients have chosen to go over-board to the extent of submitting misleading facts and law. In the words of Justice Sir Maurice Gwyer, “Every member of the Bar is   a trustee for the honour and prestige of the profession as a whole.” He said, every member of the Bar must bear in mind that it is expected of him that “never by any act or word of his will he show himself unworthy of the great tradition which he has inherited.”
  9. 56.      We would like to observe that the writ petition filed by 9(nine) Directors is not maintainable on two grounds firstly, they are not ‘aggrieved persons’ within the meaning of Article 102 of the Constitution and secondly, since the aggrieved person Prof. Muhammad Yunus having challenged the impugned orders himself, they have no locus-standi to challenge the same orders by a separate petition for, if such process is allowed multiplicity of procee-dings would crop up and there would be likelihood of conflicting decisions over the same subject matter, in which event, instead of doing justice, the ends of justice would be defeated. The High Court Division declared the Regulations of 2001 being inconsistent with section 14 of the Ordinance invalid. True, a Subordinate law can not supersede the parent law but since no rule was issued in these matters, the High Court Division is not justified in declaring Regulations of 2001 invalid.
  10. 57.      Though we do not approve of all the findings and observations of the High Court Division, we fully agree with its ultimate decision that there are no merits in the writ petitions. Thus, these petitions merit no consideration which are dismissed with the above observations.

        The parties would bear their respective costs.

Ed. 

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