University of Dhaka and others Vs. Md. Jalal Uddin Chowdhury and others

University of Dhaka and others (Appellants)

Vs.

Md. Jalal Uddin Chowdhury and others (Respondents)

Supreme Court

Appellate Division

(Civil)

Present:

Md. Fazlul Karim J

Md. Joynul Abedin J

SAN Mominur Rahman J

Judgment

March 17, 2009.

Case Referred To-

Controller of Examinations, University of Dhaka vs Mahinuddin 44 DLR (AD) 305.

Lawyers Involved:

Dr. Rafiqur Rahman, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record—For the Appellants.

Dr. Md. Abul Bashar, Advocate instructed by Mahmuda Begum, Advocate-on-Record—For Respondent No. 1.

None represented—Respondent Nos. 2-5.

Civil Appeal No. 249 of 2003.

(From the judgment and order dated the 23rd day of November, 2000 passed by the High Court Division in Writ Petition No. 4786 of 1999).

Judgment

Md. Fazlul Karim J. – The appeal by leave is directed against the judgment and order dated 23-11-2000 passed by the High Court Division in Writ Petition No. 4786 of 1999 making the Rule absolute.

2. The facts involved in the case, in short, are that the respondent No.1 as petitioner upon obtain­ing Master Decree was appointed as Lecturer of Dhaka City College in the Department of Islamic History. Subsequently, in response to an advertise­ment made by the Dhaka University he applied for the post of Lecturer in the Department of Islamic History and Culture; out of 10 applicants the rele­vant committee recommended the names of 3 applicants including the respondent for the said post. At that time one Dr Ibrahim, Associate Professor of Department of Islamic History, made a frivolous objection regarding the respondent No.1 on appointment. Thereafter, selection committee on the basis of C and D Committee selected the respondent No.1 in the post of Lecturer and referred the matter to the Syndicate for taking final decision regarding his appointment in view of the complaint made by an Associate Professor. The Syndicate formed an inquiry committee but failed to submit any report within the stipulated time. As a result, the Syndicate formed another committee, which after discussion, took the view that the allegation of adopting unfair means in the subsidiary examination against the respondent would not be deemed to be a bar for his appointment and accordingly, recommended the respondent for appointment and exonerated him from the complaint made by said Dr Ibrahim, an Associate Professor. Thereafter, the appointment let­ter was issued. On receipt of the appointment letter the respondent No.1 resigned from the post of Lecturer of Dhaka City College and submitted his joining letter with respondent No. 2 which was accepted. While the respondent No.1 was serving as a Lecturer in the University, the respondent No. 2 on the basis of news published in the newspaper formed another committee for further inquiry. Thereafter, the respondent No.1 was served with a show cause notice to which the respondent No.1 replied, then a new inquiry committee was formed by the Syndicate and the said committee served another show cause notice upon the respondent No.1 to which he replied. The respondent No.1 was then asked not to participate in Departmental func­tion till disposal of the inquiry. The inquiry committee gave a report and an opinion regarding his appointment and forwarded the same to the Syndi­cate to take a final decision. He then received impug­ned letter issued by the respondent No. 2 stating, inter alia, that the service of the respondent No.1 was no longer required i.e. his service has been ter­minated in accordance with the appointment letter.

3. Leave was granted to consider the submis­sions of the learned Counsel for the appellants that Article 52 of the Dhaka University Order, 1973 (President’s Order 11 of 1973) provides that:

“52. (1)—An appeal against the order of any officer or authority of the University affecting any person or class of persons in the University may be made by petition to the Chancellor who shall send a copy on receipt of the petition thereof to the officer or authority concerned, and shall give such officer or authority an opportunity to show cause why the appeal should not be entertained. But the respondent No.1 without invoking and exhausting the alternative forum of appeal as provided in the aforesaid Article 52 of the University Order, 1973, filed the writ petition and in view of the decision of the Appellate Division passed in the case of Controller of Examinations, University of Dhaka vs Mahinuddin reported in 44 DLR (AD) 305, the instant writ petition is not main­tainable and the remedy lies in an appeal to the Chancellor under Article 52 of PO 11 of 1973.”

4. Dr. Rafiqur Rahman, learned  Counsel, appearing for the appellants, submitted that Article 52 of the Dhaka University Order, 1973 (President’s Order 11 of 1973) providing an appeal against the order of any officer or authority of the University affecting any person or class of persons in the University may be  made by petition to the Chancellor who shall send a copy on receipt of the petition thereof to the officer or authority concerned, and shall give such officer or authority an opportu­nity to show cause as to why the appeal should not be entertained. But the respondent No.1 without invoking and exhausting the alternative forum of appeal as provided in the aforesaid Article 52 of the University Order, 1973, filed the writ petition and in view of the decision of the Appellate Division passed in the case of Controller of Examinations, University of Dhaka vs. Mahinuddin reported in 44 DLR (AD) 305, the instant writ petition is not main­tainable and the remedy lies in appeal to the Chancellor under Article 52 of PO 11 of 1973. The learned Counsel further submitted that the High Court Division failed to take into consideration that the respondent No. 1 has no locus standi to file the writ petition in violation of procedure contained in the Dhaka University Order, 1973 (PO 11 of 1973). The learned Counsel also submitted that the High Court Division failed to take into consideration that as per clause-2 of the appointment letter dated 11-5-1997 of the respondent No. 1, appointing authority i.e. the University, reserves the legal right to termi­nate the service of the respondent No.1 and the appellants by the impugned order terminated the service of the respondent No. 1 as per said clause-2 of the appointment letter of the respondent No.1 and, as such, the judgment and order of the High Court Division is liable to be set aside for the ends of justice. The learned Counsel finally submitted that from the plain reading of the impugned order of termination it will be abundantly clear that the same is a simple order of termination simplicitor without any stigma and, as such, the judgment and order of the High Court Division is liable to be set aside for the ends of justice.

5. Dr Abul Bashar, learned Advocate, appear­ing for the respondent No.1, submitted that once a person is appointed as a Lecturer on being recom­mended by a legally constituted enquiry committee and the subsequent enquiry committee, being not a superior authority, has no jurisdiction to review the decision of the earlier committee; that the very con­stitution of the subsequent committee and all its activities are ultra vires and malafide and do not come within the purview of Article 53(3) of the Dhaka University Order, 1973; that an order of ter­mination with stigma of misconduct or order of dis­missal can only be made on the grounds as laid down in Article 56(3) of the Dhaka University Order, 1973 and a Tribunal must have been constituted in accordance with section 45(4) of the First Statutes of Dhaka University Order, 1973 but in the instant case the appellants had neither shown any grounds nor constituted any tribunal as per the rele­vant law. The learned Advocate further submitted that as per section 45(5) of the First Statutes of Dhaka University Order, 1973 an appeal lies to the Chancellor against any order passed by the Syndi­cate on the recommendation of the Tribunal but not against any order passed by the Syndicate on the recommendation of the so-called enquiry committee and, as such, the ground taken by the appellants with regard to the non-exhaustion of the alternative forum of appeal is not tenable in the eye of law; that Article 52 of the Dhaka University Order, 1973 pro­vides that the provision for appeal before the Chancellor against any order of an officer or author­ity of the University, which is not relevant in the instant matter. In fact, the relevant provision in the instant matter is provided in section 45(5) of the First Statutes of Dhaka University Order, 1973, which lays down that an appeal lies to the Chancel­lor against any order passed by the Syndicate on the recommendation of the Tribunal but no such, tribu­nal was set up by the appellants as per section 45(4) of the First Statutes of Dhaka University Order, 1973. The learned Advocate further submitted that the respondent No.1 duly joined the post of Lecturer and performed his responsibilities without any fault, therefore, a legal right has been accrued to him and this right cannot be taken away in such an arbitrary manner. The learned Advocate finally submitted that the order of termination is not a termination simpliciter but it is with a stigma of misconduct and therefore, the impugned termination order does not come within the ambit of condition No. 2 of the appointment letter.

6. It appears that subsequent committee has no authority to review the earlier decision. It appears that the order of termination is not a termination simpliciter but is with stigma. From the argument of the learned Counsel it appears that the order of ter­mination is malafide in view of the attending facts and circumstances of the case. It appears that once a person is appointed as Lecturer on being recom­mended by a legally constituted committee and the subsequent committee being not a superior authority cannot sit over and review the same. As the respondent No. 1 had already joined the post and worked as Lecturer, a legal right has accrued to him and this right cannot be taken away in such an arbi­trary manner. The decision reported in 44 DLR (AD) 305 has no manner of application in the attending facts and circumstances of the case.

7. The High Court Division held that—

“As we have already observed that subse­quent committee has no authority to review the earlier decision. It appears that the order of ter­mination, we find, is not a termination simpliciter but it is with stigma, so the argument of Mr. AJ Mohammad Ali is that the order of ter­mination is malafide in view of the attending facts and circumstances of the case which can­not be ignored. The question of malafide is rather a disputed fact but what we find from the facts and circumstances of the case is that the argument of malafide is rather established and cannot be altogether brushed aside. It appears that once a person is appointed as Lecturer on being recommended by a legally constituted committee and the subsequent committee being not a superior authority cannot sit over and review the same as we have already considered. Furthermore, the petitioner having joined the post and worked as such a legal right has accrued to him and this right cannot be taken away in such an arbitrary manner. We, there­fore, find substance in the Rule and the order of termination of the petitioner is liable to be declared as illegal and without lawful authority and is of no legal effect. The petitioner is, there­fore, entitled to be reinstated with all benefits of back wages and maintaining his seniority. The respondents are hereby directed to comply with the judgment of this court forthwith.”

8. In view of the above, we find no substance in the submissions of the learned Counsel for the appellants.

Accordingly, the appeal is dismissed without any order as to costs.

Ed.

Source: 62 DLR (AD) (2010) 222

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