The National University and others (Appellants)
Vs.
Begum Sultana Razia (Respondent)
Supreme Court
Appellate Division
(Civil)
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Shah Abu Nayeem Mominur Rahman J
Judgment
May 19, 2009.
Cases Referred To-
Jamini Ranjan Jala Das Vs. Board of Trustees, Port of Chittagong and others 33 DLR 300; Bangladesh Small Industries Corporation, Dacca Vs. Mahbub Hossain Chowdhury 29 DLR (S.C) 41; V.P. Ahuja vs. State of Punjub and others reported in AIR 2000 SC 1080; Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3SCC 60 AIR 1999 SC 983; Managing Director, ECIL Vs. B. Karunakar, (1993) 4 SCC 727; (1994)AIR SCW 1050). Jagadish Chandra’s case (1995 AIR SCW 964).
Lawyers Involved:
Syed Amirul Islam, Senior Advocate, instructed by Mr. Md. Zahirul Islam, Advocate- on-Record-For the Appellants.
Abdur Rob Chowdhury, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Respondent.
Civil Appeal No.105 of 2006.
Judgment
Mohammad Fazlul Karim J.- This Appeal by leave is directed against the judgment and order dated 22.11.2005 passed by the High Court Division in Writ petition No.2206 of 2005 making the Rule absolute without any order as to costs declaring the order dated 17.03.2005 terminating the service of the respondent as Deputy Registrar of the National University, Gazipur to be illegal and of no legal authority and further directing the National University to reinstate the respondent in her service will all attending benefits admissible to her.
2. The facts involved in the case, in short, are that the respondent had served for nearly 13 years as a teacher in different Private Colleges and Madrasa. In early 2004, in response to an advertisement made by the National University, she applied for the post of Deputy registrar and was appointed on 17.10.2004 on ad-hoc basis. In the appointment letter, it was mentioned that she would be treated as a probationer for one year and she will be guided by the Service Regulations (???????-?) of the National University Act, 1992. Since after joining she had been discharging her duties and there was no adverse report against her. But all on a sudden on 15.03.2005 the authority issued a suspension order along with some allegations. Thereafter, on 17.03.2005 the appellants issued the order of removal of the respondent from her service. She further asserted that the order dated 15.03.2005 placing her under suspension and the order dated 17.03.2005 terminating her service are malafide, arbitrary and she was not given any opportunity to defend herself when charge of corruption was brought against her.
3. The appellant Nos. 2 and 3 contested the Rule by filing affidavit-in-opposition denying all the material allegations made in the writ petition contending, inter alia, that at the time of removal from service the respondent was a probationer and as such, her service will be governed by the National University Sangbidhi (Regulation No.6) and not by Sangbidhi-8 of the Jatiya Biswabiddalaya Karmachari (Srinkkhola-O-Appeal) Sangbidhi. It was further asserted that the charged against her was enquired into by a Board and found her guilty but the Authority instead of proceeding against in accordance with Service Regulations has decided not to proceed against her and taken the decision in the Syndicate meeting to terminate her service as a probationer.
4. Leave was granted to consider the submissions of the learned Counsel for the appellants that “the respondent being admittedly on probation in her service and her service being not satisfactory the Syndicate of the University in its 77th meeting held on 17.03.2005 unanimously decided not to proceed against her under Section 5(3) of the Service Sangbidhi-8 and terminated her service under Section 101 of Service Sangbidhi-6, and as such there is no violation of the principle of natural justice. The learned Counsel next submits that the High Court Division erred in construing the order of termination of service of the respondent as decided upon by the Syndicate of the University in its 77th meeting, and holding that there was stigma against the respondent in deciding termination of service under Section 101 of the Sangbidhi-6 of the University.”
5. Mr. Syed Amirul Islam, learned Counsel, appearing for the appellant submitted that the respondent being admittedly on probation in her service and her service being not satisfactory the Syndicate of the University in its 77th meeting held on 17.03.2005 unanimously decided not to proceed against her under Section 5(3) of the Service Sangbidhi-8 and terminated her service under Section 100 of the Service Sangbidhi-6 and as such, there is no violation of the principle of natural justice. The learned Counsel further submitted that the High Court Division erred in construing the order of termination of service as decided upon by the Syndicate of the University in its 77th meeting holding that there was stigma against the respondent in deciding termination of service under section 100 of Sangbidhi-6 of the Jatiya Biswabiddalaya Karmachari (Srinkkhola-O-Appeal) Sangbidhi.
6. Mr. Abdur, Rob Chowdhury, learned Counsel, appearing for the respondent submitted that the respondent was appointed as per Annexure-A to the writ petition and the appointment was approved by the Syndicate in its meeting on 14.10.2004. In the appointment letter it is unequivocally stated that the respondent was appointed on a substantive basis in a permanent post. The respondent was not appointed as a probationer inasmuch as the period of probation was fixed under the Service Statutes for two years. But the respondent remained on probation for only one year. This was done in recognition of the fact that the respondent had previously served for over a period of 12, years in different colleges as a teacher; that there is no provision in the University Statute to suspend an officer who is to be terminated during the probationary period or for unsatisfactory service during probation. The order of suspension dated 15.03.2005 as in Annexure B to the writ petition clearly shows that the respondent was suspended for drawing disciplinary proceeding under the University Statute-8. It was mandatory provision in Regulation-8 of the said law that a formal charge be framed and the delinquent officer has to be given at least ten working days to Submit his or her statement of defence and whether she wanted to be heard in person and thereafter, the matter is to be enquired into by an inquiry officer or a team. The inquiry report to be considered by the disciplinary authority and if she is found guilty, a copy of the inquiry report together with the provisional decision to be communicated to the officer and show cause for a second time against the proposed punishment. Within 48 hours of suspension without forming any charge and without complying with the mandatory provision of law the respondent was removed from service; that none of the allegation were proved against the respondent and therefore, she was removed unjustifiable when such stigma was attached it is no longer permissible to terminate her service as if she was on a probationary service. When specific allegations are brought attaching stigma against the respondent, then there must be a fair and impartial hearing. The suspension was made malafide and arbitrarily would be attested by the fact that the provisions in Regulation 4 providing for impartial enquiry and reasonable opportunity was not afforded to the respondent as her service was terminated with 48 hours without holding any enquiry in violation of natural justice. The learned Counsel further submitted that disciplinary proceeding against the respondent are being drawn under Regulation 4(a), (b), (e) and (jha) of the provisions in Statute-8 of the University. It is abundantly clear that her service was not terminated as simpliciter for unsatisfactory work during probation but she was suspended for disciplinary proceeding. Even in the order of termination of service dated 15.03. it was stated that the allegations against her under Regulation 4(a), (b), (e) and (jha) were established against her in enquiry whereas no enquiry as held nor was there sufficient interval of time between 15.03.2005 when the suspension was made and 17.03.2005 when the termination was made and as such, the appeal should be dismissed. The learned Counsel finally submitted that it is not true that the respondent was dealt with under the Statute-6 inasmuch as the respondent was placed under suspension with the specific purposes of disciplinary action under the Statute-8 and the appellants are bound by estoppel to claim that the respondent was terminated as a probationary officer and was appointed in a substantive capacity against a permanent post. That in suspending her on 15.03.2005, serious allegations, causing stigma on her, were made and it was absolute essential in law and equity to hold and impartial enquiry in which the respondent was to be given every reasonable opportunity for defence. But in the instant case no enquiry was held, no witness was examined in the presence of the respondent nor had any opportunity to cross-examine the witness to establish the truth or otherwise and as such, the appeal is liable to be dismissed.
7. It appears that even if the respondent was a probationer yet she ought to have been given chance to defend herself when a charge of corruption and misconduct is brought against her. It further appears that the authority should have followed the mandatory provisions of Service Regulations as contained in Chapter XVII; that the respondent has been condemned unheard which is against all norms of justice and fairness. In that view, the order of suspension dated 15.03.2005 and the order of removal dated 17.03.2005 were malafide, arbitrary and colourable exercise of power.
8. The suspension order dated 15.03.2005 passed by the authority speaks that
“????? ??????? ?????????, ????-???? ??????? ????????? ? ?????????? ?? ??? ??????????????? ????????? ? ????? ???????? ???? ??????? ?????? ????? ? ??? ???? ??????????????? ???????? (??????? ? ????) ?????? (??????-?) ? ???? ????????? ???????? ?? ???????? ?????????? ?? ????? ??????????????? ???????? (??????? ? ????) ?????? (??????-?) ?? (?), (?), (?) ? (?) ???? ??????? ?????? ???????? ??? ??????? ???????? ????? ??? ?????? ??? ??? ????? ???????? ????????? ????? ????? ??? ????????? ??? ???? ??? ??????????????? ??????? ? ????????? ???? ????? ???????? ???????? ?????? ??/??/???? ?????? ????? ??????????????? ?????? ???? ?????? ???? ??????? ??? ????
9. The termination order dated 15.03.2005 passsed by the authority speaks that “ ?????? ?????????? ???? ????? ???????? ????? ????????????? ???????? (??????? ? ????) ?????? (??????-?) ?? ? (?), (?), (?) ? (?) ????? ???? ?????? ???? ???????? ????? ??? ????? ?????? ????????? ?? ????? ?????????? ????? ????? ????? ????????????? ???????? (??????? ? ????) ?????? (??????-?) ?? ?(?) ????? ????? ???????? ????? ?? ??? ????????? ??/??/???? ????? ????? ????????????? ?????? ?????? (??????-?) ?? ???? ??? ??????? ????? ???????????? ????? ??????? ????? ?????? ????? ??????????????? ?????????????? ????????? ????? ???”?
10. It appears from the above orders that the authority proceeded against the respondent under Regulation-8 of the Jatiya Biswabiddalaya Karmachari (Srinkkhala-O-Appeal) Sangbidhi-8 which provides that she is entitled to get a copy of formal charge, enquiry, second show cause notice along with the enquiry report before the final order of termination but the authority without following the above procedure
stated that “????? ???????? ????? ????????????? ???????? (??????? ? ????) ?????? (??????-?) ?? ?(?), (?), (?) ? (?) ????? ???? ?????? ???? ???????? ?????” which is apparently illegal and without jurisdiction. It is noticed that the authority formed enquiry committee without following the procedure and the respondent was not given any chance to cross-examine the witnesses. The very language of the termination letter dated 17.03.205 clearly speaks about the stigma upon the respondent.
11. Article 100 of Jatio Biswabiddalaya Sangbidi provides that “(?)???????? ????? ??? ????? ?? ?????? ?????? (???????????) ????? ??????? ??? ?????????? ??????????????? ????? ??? ??????? ???????? ??? ???? ????????? ?????? ???????? ?????? ????? ????????? ??? ?????????? ????????? ???????? ????????? ??? ?? ???? ????? ????????? ?????? ???????? ???? ???? ??? ?????? ????????? ?? ???????? ????? ???? ????????? ??????? ?????? ?????? ???? ???? ????????? ????? ????? ????? ??????? ????? ?????? ???????? ??? ????????? ????? ????????? ??? ???? ????? ???????”?
12. The learned Advocate has referred to a decision in the case of Jamini Ranjan Jala Das Vs. Board of Trustees, Port of Chittagong and others reported in 33 DLR 300 wherein it was held that “In matters relating to termination of service the position seems to be fairly well established that when a person’s service is liable to be terminated or he is liable to be retired from service under any law or contract he has no cause to make a grievance if the termination or retirement is brought about in accordance with law or contract without causing any aspersion or stigma upon the incumbent. But if the order of determination or retirement contains any expression from which an aspersion upon the incumbent may be reasonably inferred then it may amount to a removal and/or punishment necessitating the observance of enquiry and show cause notice, etc. either under the Constitution or the Service Rules or in accordance with the principles of natural justice.”
13. In that view of that matter, while terminating the service in terms of law or terms of contract the same if proceeded by an enquiry and resulting in alleged terms during the period of probation cast stigma on the service and such removal necessitates formal enquiry and show cause notice as required under the principle of natural justice but had it been a case of simple termination without any stigma or without any proceeding, whatsoever during the period of probation the delinquent officer had no cause for concern for the said order of dismissal.
14. In the case of Bangladesh Small Industries Corporation, Dacca Vs. Mahbub Hossain Chowdhury reported in 29 DLR (S.C) 41 wherein this Court held that “The case of dismissal from the office of a statutory corporation of a public character by giving a charge stands on a different footing and an action for withstanding the fact that the terms and conditions of the said office are regulated by a contract, because the principle of natural justice, audi alteram partem is attracted in such case….simple termination of service without giving a blame or stigma, even though illegal or irregular, will not attract the operation of the principle of natural justice in such a case.”
15. In the case of V.P. Ahuja Vs State of Punjub and others reported in AIR 2000 SC 1080 it was held that “A probationer, like a temporary servant, is also entitled to certain protection and his services cannot be terminated arbitrarily, nor can those services be terminated in a punitive manner without complying with the principles of natural justice. The entire case law with respect to a probationer was reviewed by this Court in a recent decision in Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta, (1999) 3SCC 60 AIR 1999 SC 983. This decision fully covers the instant case as well, particularly as in this case, the order impugned is stigmatic on the face of it.”
16. In the case of Dipti Prakash Banerjee Vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta and others it was held that “merely because of an 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 Chandra’s case (1995 AIR SCW 964) was placed upon Managing Director, ECIL Vs. B. Karunakar, (1993) 4 SCC 727; (1994 AIR SCW 1050). It is true that such an order not granting reinstatement or back wages was passed in Jagadish Chandra’s case (1995 AIR SCW 964) following Karunakar’s case. But it has to be noticed that in Karunakar’s case, there was regular departmental inquiry but the inquiry 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 case like the present where no departmental inquiry whatsoever was held, Karunakar’s case, in our view, cannot be an authority. As to block 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 continuity of service.”
17. In view of the decision cited above it appears that the authority took up the case of the respondent like a permanent staff and proceeded against her under Sangbidhi-8 of the Jatiya Biswabiddalaya Karmachari (Srinkkhala-O-Appeal) Sangbidi. But she was not given any reasonable opportunity to defend herself. The authority without giving any chance to the respondent to be present at the time of examining the witnesses or without giving her any chance to cross-examine the witness and without issuing any 2nd show cause notice along with inquiry report, passed the order of termination with stigma and therefore, the order suffers from gross illegalities and passed in violation of the principles of natural justice. But if there by any fault with her she may be dealt with in accordance with law.
18. Accordingly, we do not find any substance in the submissions of the learned Counsel for the appellant and hold that the High Court Division’s order making the Rule absolute directing the respondents to re-instate the respondent with all attending benefit admissible to her is an appropriate order in the facts and circumstances of the present case and in accordance in the fact.
In the result, this appeal is dismissed without any order as to costs.
Ed.
Source: 17 BLT (AD) (2009) 190