The Chairman and another Vs. Md. Sakhawat Hossain and others

Appellate Division Cases

(Civil)

PARTIES

The Chairman and another………………………… Appellants

-vs-

Md. Sakhawat Hossain and others ………………….Respondents

JUSTICE

Md. Ruhul Amin. J

M.M. Ruhul Amin. J

Md. Tafazzal Islam. J

JUDGEMENT DATE: April, 19th 2004

Public servants (dismissal on Conviction) Ordinance 1985.

Section 3 The High Court Division upon observing “In the instant case the admitted position is that the petitioner was an Assistant General Manager (General Service) of Thakurgaon Palli Bidyut Samity. The impugned dismissal order was signed by the Acting General Magager of Thakurgaon Palli Bidyut Samity. According to the rule quoted above the General Manager, Thakurgaon Palli Bidyut Samity was required to obtain prior approval both of the Samity Board and the Rural Electrification Board ……………….(4)

………… if an order is passed without jurisdiction then that is forum-non-judice and the aggrieved person may come for relief under the writ jurisdiction although there is an alternative forum available for redress……………. (5)

Civil Appeal No.50 of 2002. (From the Judgment and Order dated March 12, 2000 passed by the High Court Division in Writ Petition. No. 4201 of 1998)

Sigma Huda, Advocate, instructed by Md. Aftab Hossain, Advocate’-on-record ……….

For the Appellants.

Khalilur Rahman, Advocate, instructed by A. K. M. Shahidul Huq, Advocate-on-rccord

…………………For Respondent No. 1.

Ex-parte……………… Respondent Nos.2-4.

JUDGMENT

1 Md Ruhul Amin J :- This appeal, by leave, is directed against the judgment and order dated March 12, 2000 of a Division Bench of the High Court Division in writ petition No. 4201 of 1998. By the aforesaid judgment the High Court Division made the Rule absolute.

2. The writ petition was filed questioning legality of the order dated March 27, 1997 dismissing the petitioner from the service of Thakurgaon Palli Biddyut Samity, Jagannathpur, Thakurgaon.

3. Facts, in short are that Respondent No.l was appointed by the Rural Electrification Board (REB) on February 10, 1991 as an officer of the Palli Biddyut Samity (the Samity)(General Service) for one year as probationer. After completion of period of probation he was made permanent officer of the Samity and later on was posted as Assistant General Manager (General Service) of Thakurgaon Palli Biddyut Samity. While serving as Assistant General Manager he was made accused in a cases filed by his wife under Section 10 (2) of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain.1995 and was arrested in connection with that case on July 7, 1996. The authority put him under suspension by the order dated July 14, 1996. The Court by the judgment and order February 27, 1997 convicted the Respondent No. 1 in the case registered under Nari-o-Shishu Nirjatan (Baishesh Bidhan) Ain, 1995 and sentenced him to suffer imprisonment for life. On appeal, Criminal Appeal No. 411 of 1997. The High Court Division acquitted the Respondent No. 1 by the judgment and order January 11, 1998. Being convicted in the Nari-o-shishu Nirjatan case the authority dismissed the Respondent No.l on March 27. 1997 from the service under Rule 46 (2) of the Thakurgaon Palli Biddyut Samity Sevice Rule. The Respondent No. 1 on being acquitted by the judgment of the High Court Division filed application on February 12, 1998 for setting aside the order of dismissal and to restore into his post with all benefits and privileges. In spite of repeated remainders to the authority to set aside his order of dismissal and to restore himto his post the respondent No. 1 did not receive any reply from the authority. In the background of the aforesaid facts the Respondent No. 1 served notice demanding justice by way of setting aside the order of dismissal and for restoring him to his post with all benefits and privileges but did not receive any reply. ‘

4. The High Court Division upon observing .In the instant case the admitted position is that the petitioner was an Assistant General Manager (General Service) of Thakurgaon Palli Bidyut Samity. The impugned dismissal order was signed by the Acting General Magager of Thakurgaon Palli Bidyut Samity. According to the rule quoted above the General Manager, Thakurgaon Palli Bidyut Samity was required to obtain prior approval both of the Samity Board and the Rural Electrification Board.”

5. The Respondents have failed to show any eivdence that such approval was obtained from Thajurgaon Palli Bidyut Samity and the Rural Electrification Board. In that view of the matter we hold that the impugned dismissal order was passed without lawful authority. There is no record before us nor it is the case of the respondents that any domestic enquiry was held against the petitioner on allegation made in paragraph 1 of the dismissal order. No enquiry or proceeding having been started against the petitioner on those grounds or any other grounds, the dismissal order on those grounds without giving the petitioner an opportunity to defend himself or to be heard is illegal and without lawful authority. Therefore the impugned order as a whole passed without lawful authority. The petitioner having been acquitted of the charge made against him he under section 3 of the Public servants (Dismissal On conviction) Ordinance. 1985 is entitled to be reinstated to his original post held at the time of suspension and (dismissal order that is Assistant General Manager (General Service) of Thakurgaon Palli Bidut Samity The inordinate delay in considering his appeal was good enough reason for the petitioner to be aggrieved and to file this writ petition. Further is was pointed out that although an alternative forum is available if an order is passed without jurisdiction then that is corum-non-judice and the aggrieved person may come for relief under the writ jurisdiction although there is an alternative forum available for redress” made the Rule absolute with a direction to the writ Respondents to reinstate the Respondent No.l herein hi his service with all benefits from 14.7.1996.

6. Leave was granted to consider the question of non maintainability of the writ petition for impleading chairman, Rural Electrification Board instead of the Rural Electrification Board.

7. The learned Counsel appearing for the appellants submits that High Court Division was in serious error in granting the relief prayed for in the writ petition since the writ petitioner did not impaled the Rural Electrification Board which is the authority in the matter of employment and dismissal as well as reinstatement of an employee like the writ petitioner and others. The learned Counsel also submits that the Rural Electrification Board (the Board) is a statutory body established under the Rural electrification Board Ordinance, 1977 and as per section 3(2) of the said Ordinance the writ petition was required to be filed impleading the Board, but writ petitioner filed without impleading the Board and as such writ petition was not maintainable.

8. The submissions so made appears to be not correct. It is seen from the papers on record that while the writ Respondent Nos.l and 2 in their affidavit-in-opposition raised the question of maintainability of the writ petition on the ground of non-impleaiding the Rural Electrification Board, the writ petitioner filed an application for adding the Rural Electrification Board and the Thakurgaon Palli Bidyut Samity as Respondent Nos. 6 and 7 in the writ petition . The High Court Division by the order of January 27, 2000 impleaded the Rural Electrification Board and Thakurgaon Palli Bidyut Samity as writ Respondent Nos.6 and 7 and made further direction to serve a copy of the Rule that was issued on February 7,1999 on the added Respondents.

9. In response to the Rule so served on the Respondent Nos. 6 i.e. Rural Electrification Board, the Board entered appearance and filed an affidavit-in-opposition. In the afore state of the matter it is seen that the contention of the appellants that writ petition was filed without misleading the Rural Electrification Board and consequent thereupon the writ petition being not maintainable the High Court Division was in error in making the Rule absolute appears to be of no merit. As we have already mentioned hereinbefore the appellants (Respondent Nos.l and 2 in the writ petition ) in their affidavit-inopposition having had raised question of maintainability of the writ petition on the ground of non impleading Rural Electrification Board, the writ petitioner filed application before the High Court Division for impleading the Rural Electrification Board and Thakurgaon Ralli Bidyut Samity as Respondent and the High Court Division by the order January 27, 2000 impleaded them as Respondent Nos. 6 and 7 respectively and the respondent No.6 Rural Electrification Board filed affidavit-in-opposition. Thereafter, writ petition was heard on March 9, 2000 and by the judgment of March 12, 2000 the High Court Division made the Rule absolute in presence of the Rural Electrification Board with a direction to reinstate the writ petitioner, Respondent No. 1 herein, in his post which he was holding on July 14, 1996 with all benefits. In the afore state of the matter the contention making which leave was obtained by the appellants is of no merit. Accordingly the appeal is dismissed with costs at all stages.

Ed

Source: I ADC (2004), 192

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