Case No: Civil Appeal No. 96 of 1998
Judge: Md.Ruhul Amin,
Court: Appellate Division ,,
Advocate: A J Mohammad Ali,,
Citation: 14 BLT 2006 (AD) 208
Case Year: 2006
Appellant: Government of Bangladesh
Respondent: Kamrul Hasan
Subject: Administrative Law,
Delivery Date: 2004-7-19
Government of Bangladesh
Kamrul Hasan, 2006, (AD)
14 BLT 2006 (AD) 208
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzal Islam J
Government of Bangladesh and others…………….Appellants
Practice & Procedure
Principle of nature justice— Involving moral turpitude— Held; Suffice it to say an appointment of a public servant to a particular post is not indefeasible or in other words appointment of a particular public servant is not immune from cancellation in case of his being unworthy of having the particular appointment in the background of the facts brought before the authority and found to be genuine or remained unrebutted, as in the instant case. [Para- 11]
A J Mohammad Ali, Additional Attorney General, instructed by Mvi. Md. Wahidullah, Advocate-on-Record.- For the Appellants
Md. Aftab Hossain Advocate-on-Record. - For the Respondent
Civil Appeal No. 96 of 1998.
Md. Ruhul Amin J.-The appeal, by leave, is against the judgment and order dated August 4, 1997 of the Administrative Appellate Tribunal (AAT) in Appeal No. 87 of 1996 allowing the same. The appeal was filed against the judgment and order dated 10.8.1996 of the Administrative Tribunal (AT) Dhaka in Case No. 310 of 1994 dismissing the same.
2. Respondent filed the aforesaid case before the AT challenging the order dated 18.8.1994 of the Ministry of Finance cancelling his appointment as Economic Counselor in Bangladesh Embassy at Stockholm in Sweden alleging that the order of cancellation was malafide and arbitrary and opposed to the principle of natural justice.
2(1).Facts, in short, are that respondent belongs to B.C.S. (Audit and Account) Cadre and in October, 1991 he joined the Muktijuddha Kallyan Trust as Director (Finance) on deputation. The Ministry of Finance, Economic Relations Division by a circular dated 11.8.1993 invited applications for appointment as Economic Counsellor in the Economic wing of Bangladesh Embassy at Stockholm in Sweden from the Senior Government Offices of all Ministries and Divisions not below the rank of Deputy Secretary. The respondent submitted his application and appeared before a Selection Committee and came out successfully. By a notification dated 19.6.1994 the President appointed the respondent as Economic Counsellor of the said Embassy. By the order dated 29.6.1994 Government sanctioned to the respondent an amount of Tk. 4, 73,360/- for travelling and other incidental expenses for himself and his family to join his new assignment. While the respondent was making preparations to join he received Memo, dated 14.8.1994 communicating stay of the order of appointment and thereafter by the Memo, dated 14.8.1994 the respondent's appointment was cancelled.
3. It is the contention of the respondent that before cancelling his appointment, he was not given any opportunity of being heard. He made representation but without any result. Thereafter by the Memo, dated 20.8.1994 he was asked to deposit the money released to him earlier for travelling and other incidental expenses. Respondent deposited Tk. 1,97,7807 by a chalan and preferred an appeal to the President against the order of cancellation and the same was rejected.
4. Thereupon the respondent filed the case before the AT. The case before the AT was contested by the Secretary, Ministry of Finance by filing written objection denying the material averments made in the application and stating, inter alia, that the respondent made unusual delay in joining his new posting and he did not arrange to get his diplomatic passport from the Ministry of Foreign Affairs within a reasonable time and he also neither purchased any air ticket for him and his family nor made arrangements for transportation of personal effects, that the Government reserves the right to cancel any appointment of a public servant or stay the appointment without assigning any reason for the public interest, that the order challenged was passed legally and lawfully.
5. At the time of hearing of the case it was submitted by the Government that the respondent filed an application on 7.8.1994 for the purpose of obtaining passport and Visa and therein he included the name of one Dr. Jhunu Shamsun Nahar aged 37 years as his wife. On 13.8.1994 one Hasna Pervin submitted a petition to the Secretary, Ministry of Finance stating that she is the wife of the respondent but the respondent in his application for passport mentioned the name of Dr. Jhunu Shamsun Nahar as his wife for taking her abroad. One Dr. M. Mainul Haque also wrote to the Secretary, Ministry of Foreign Affairs as well as to Secretary, ERD, Ministry of Finance on 16.8.1994 stating that Dr. Jhunu Shamsun Nahar, Assistant Professor, IPGMR, Dhaka is his wife though she is living separately for about a year and no legal separation has taken place between them and that he has come to know that his wife is planning to travel with one Kamrul Hasan who has been posted in Bangladesh Embassy in Stockholm, Sweden.
6. The AT dismissed the case on the finding that respondent has acquired no right to retain the post and as such the Government was competent to cancel his appointment, that respondent was asked to produce paper in support of his contention that he divorced his wife Hasna Parvin and married Dr. Jhunu Shamsun Nahar but he did not produce such paper and thus this was the cogent ground for cancellation of the appointment of the respondent, that the respondent produced no paper to show that he completed his expenditure of the amount taken as advance and as such he is liable to refund the amount so taken as advance.
7. At the time of hearing of the case the Government produce the file before the AT and it was noticed by the AT that in the background of the facts relating to information given by the respondent in his application for passport as regard his wife and the letter written to the Secretary by Hasna Pervin and Dr. Mainul Haque the decision was taken for cancellation of the appointment of the respondent.
8. The respondent filed appeal as against the order of the AT before the AAT. The AAT allowed the appeal on the finding that the impugned order of cancellation was passed without the approval of the higher authority, that there was no specific date in the appointment letter for joining in the new place of posting and that office file belies the stand taken in defence as to unusual delay and it clearly shows that the order of appointment was cancelled for collateral purposes on some extraneous consideration thereby the appellant was condemned unheard, that it was not the case of the Government in the written statement that it cook decision for cancelling of the appointment of the appellant in the background of the letter written by Hasna Pervin and Dr. M. Mainul Haque and that the case that was presented at the time of hearing of the AT case being a new case the Tribunal ought not to have relied upon the said case to non-suit the appellant, that though Government reserves the right to cancel an appointment but that does not mean that the Government will in colourable exercise of power cancel order of appointment which has already become effective without assigning any reason and on some extraneous consideration, that the impugned order of cancellation of appointment of the appellant is malafide and arbitrary, that the Tribunal has not considered the material point at issue in its correct perspective and therefore arrived at a wrong decision.
9. Leave was granted to consider the submissions that in the interest of continuity in service of the respondent himself the Government did not refer the materials in the file to wash his dirty linens in public in the written objection but inspite of the absence of any averment regarding the conduct of the respondent involving moral turpitude the entire office file was shown to the Administrative Tribunal in which the letters of the respondent's wife and of one Dr. M. Mainul Haque were there and his failure to produce paper in support of his claim of divorce and re-marriage was also there, that a summary prepared for the Finance Minister and Prime Minister containing their respective approval of the cancellation of appointment was also there and the AAT having observed and noticed that the cancellation of appointment was made "in the public interest" failed to take into account these official records maintained in the ordinary course of business and further failed to appreciate that the cancellation of the appointment of the respondent in the public interest was fully explained and justified by the Government before the AT, that the AAT has taken a technical view of the matter and that the AAT committed a grave error of law in not approaching the subject matter from the point of view of public interest and in ignoring the materials provided by the Government i.e. the petitions of Hasna Pervin and Dr. M. Mainul Haque as well as the summary and approval of the Finance Minister and Prime Minister.
10. It is seen from the materials on record that appointment of the respondent was cancelled since he failed to substantiate his contention that he divorced his wife Hasna Pervin and married Dr. Jhunu Shamsun Nahar. From the summary prepared in the background of the petition filed by Hasna Pervin and the representation made by Dr. M. Mainul Haque relating to the information furnished by the respondent as to his wife it is seen correctness of the information given by the respondent in his petition for passport as regard his wife was seriously questioned. It is also seen from the materials on record that the said fact was brought to the notice of the respondent and he was asked to submit papers to substantiate his claim that he has divorced his first wife Hasna Pervin and that married Dr. Jhunu Shamsun Nahar but he did not place any document in support of the claim. This being the position the AAT was totally in error in holding that appointment of the respondent was cancelled for 'collateral purpose on some extraneous consideration' and that the respondent was condemned unheard. The AAT was also in error in the background of the facts as stated hereinabove in holding that the Government cancelled the appointment of the respondent in colourable exercise of power without assigning any reason. It may be mentioned in the letter cancelling the appointment of the respondent it was clearly mentioned that the Government has passed the order of cancellation in public interest (জনস্বার্থে) and as such AAT was in error in holding that appointment of the respondent was cancelled without assigning any reason. We are of the view the AAT was also in error in observing that AT "ought not to have relied" upon the materials in the file produced by the Government at the time of hearing of the case in that materials those were taken into consideration by the AT were brought to the notice of the respondent and in refutal thereof the respondent did not file any material. The AAT was also in error in setting aside the order cancelling the appointment while itself has observed "of course the Government reserves the right to cancel an appointment". The AAT was in error in holding that order of cancellation of appointment of the respondent was malafide since no case of malafide was established by the respondent nor any material was brought on record to substantiate allegation of malafide or arbitrariness.
11. Suffice it to say an appointment of a public servant to a particular post is not indefeasible or in other words appointment of a particular public servant is not immune from cancellation in case of his being unworthy of having the particular appointment in the background of the facts brought before the authority and found to be genuine or remained unrebutted, as in the instant case.
12. In the background of the discussions made hereinabove we are of the opinion that the judgment of the AAT was made upon erroneous view of the materials on record and without taking into consideration the basic fact that appointment of the respondent was cancelled in public interest.
13.Accordingly the appeal is allowed with cost of Tk.30.000/- (twenty thousand).