Khandaker Jalaluddin and others Vs. Most. Jamila Khatun, VI ADC (2009) 485

Case No: Civil Petition for Leave to Appeal No. 350 of 2007

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: VI ADC (2009) 485

Case Year: 2009

Appellant: Khandaker Jalaluddin

Respondent: Most. Jamila Khatun

Subject: Injunction, Employment & Service,

Delivery Date: 2008-6-13

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Abdul Matin J
 
Khandaker Jalaluddin and others
……………..........Petitioners
Vs.
Most. Jamila Khatun
…....................................Respondent
 
Judgment
June 13, 2008.
 
The High Court Division held that admission into B.Ed Course is not an offence rather it should be encouraged and so a strong prima facie case being made out in support of the prayer for temporary injunction the appellate Court  did not commit any error of law resulting in an error in the decision occasioning a failure of justice in granting the order of temporary injunction and further the question of maintainability of the suit as raised by the defendant is not tenable in law in view of the decision reported in the case of Choumohini College reported in 26 DLR 10. . (3)
 
Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Not represented-the Respondent.
 
Civil Petition for Leave to Appeal No. 350 of 2007.
(From the judgment and order dated 27.6.2005 passed by the High Court Division in Civil Revision No. 988 of 2000).
 
JUDGMENT
 
Md. Tafazzul Islam J.
 
1. This petition for leave to appeal is directed against the judgment and order dated 27.6.2005 of the High Court Division passed in Civil Revision No. 988 of 2000 discharging the Rule obtained challenging the judgment and order dated 25.10.1999 of the learned Subordinate Judge (now Joint District Judge), 1st Court, Sherpur passed in Miscellaneous Appeal No.22 of 1999 reversing those of dated 16.6.1999 of the Assistant Judge, Makla, Sherpur passed in the Other Class Suit No.15 of 1999 reject­ing the prayer for temporary injunction.
 
2. The respondent, as plaintiff, filed the above suit seeking declaration that the order dated 23.3.99 under the signature of the Head Master/Member Secretary of Dishari High School Managing Committee suspending her from the post of Assistant Teacher is illegal, void, collu­sive and not binding upon her and she is still in service, on the averments that she, on 7.9. 1989, joined Dishari High School on 7.9.1989 as an Assistant Teacher and since then she was performing her duties with good reputation; she orally prayed for study leave for her admission to B. Ed course which was allowed and then she was admitted to a non-Government B. Ed college, Mymensingh and that since the class of B. Ed course used to be held in the night, she without taking any leave, con­tinued her B. Ed course after taking her classes at the school in the day and attend­ing B. Ed class in the evening after going to Mymensingh and thereby continued both B. Ed Course and teaching since July, 1998; for the purpose of practice teaching of B. Ed Course from 17th December 1948, she on 14.12.1998 filed an applica­tion for leave with pay upto 30.4.99 which was granted subject to the approval of the Managing Committee and she after obtaining leave continued the B. Ed Course on Teaching Practice; she under the Regulation is entitle to get leave for her B. Ed Course but since there is no provision for leave at the time of teaching period of school she had to pray for part leave only for teaching of B. Ed Course; then the defendant Nos. 1, 2 and 10, in collusion with the other defendants, hold­ing a meeting of Managing Committee on 15.2.1999 and violating the Rules, took a resolution to the effect that the plaintiff is not entitled to get leave for a period of four months 15 days for B. Ed Training Course and that a notice be issued upon her to show cause as to why action should not be taken against her for absence from the school without leave; then a show cause notice was issued on 16.2.99 under the signature of the defendant No.10 which was received by her on 26.2.99 and on 4.3.99 she gave reply to the same. Then on 2.3.99, the Managing Committee sent a second show cause notice which was received by her on 6.3.99 and she gave reply to the same on 10.3.99; the Managing Committee, without consider­ing the replies filed and violating the Rules of the Non-Government School ille­gally issued letter dated 23.3.99 signed by the defendant No.4 suspending her which she received on 4.4.99 and hence the suit. After filing of the suit the respondents filed an application praying for restraining the defendant from disturbing the per­formance of her duties as an Assistant Teacher and also from not removing her from the post of Assistant Teacher till dis­posal of the suit. The defendant Nos. 1-10, by filing written objection opposed the above prayer of injunction stating that the uit is premature and that the B. Ed Course Session started from 1.7.1998 but the plaintiff remained absent from 16.12.98 without permission of the managing Committee and thereafter the Managing Committee took a resolution on 10.3.99 for suspending her on and from 1.3.99 and constituted a 3 members Enquiry Committee with direction to submit a report within 30 days and then the Chairman of the Enquiry Committee issued a notice upon the plaintiff request­ing her to remain present before the Enquiry Committee with her paper and the plaintiff before any final order of the Enquiry Committee filed the present suit.
 
3. The learned Assistant Judge, after hear­ing, rejected prayer for temporary injunc­tion. On appeal, the learned Subordinate Judge (now Joint District Judge), after hearing, allowed the appeal and thereby granted temporary injunction. As against that the defendant petitioners moved the High Court Division and obtained Rule in Civil Revision No. 988 of 2000 and the High Court Division after hearing dis­charged the Rule.
 
4. We have heard the learned Advocate-on-Record appearing for the petitioner, perused the impugned judgment and order of the High Court Division and also other connected papers.
 
5. As it appears the High Court Division discharged the Rule holding that it is the case of the plaintiff respondent that she got admission into the B. Ed Course in July 1998 and she made a prayer for a leave for the period from 14.12.98 to 30.4.99 and obtained leave from the Headmaster of the School subject to approval of Managing Committee and at its meeting the Managing Committee suspended her from service taking the view that her admission into B. Ed Course without taking permis­sion from the authority is a violation of the Rules but the plaintiff has asserted that she filed an application for leave to the Headmaster of the School who granted her leave subject to the approval of the Managing Committee and it does not appear from the records that the plaintiff was communicated any decision taken by the Managing Committee upon the said prayer and further the plaintiff, after obtaining provisional leave from the Headmaster, left the school and started attending her class and she was quite in darkness as to whether her prayer for leave was rejected or allowed and the Managing Committee kept her in darkness and then issued the first show cause notice and thereafter issued the second show cause notice. The High Court Division further held that admission into B. Ed Course in not an offence rather it should he encouraged and so a strong prima facie case being made out in support of the prayer for temporary injunction the appel­late Court did not commit any error of law resulting in an error in the decision occa­sioning a failure of justice in granting the order of temporary injunction and further the question of maintainability of the suit as raised by the defendant is not tenable in law in view of the decision reported in the case of Choumohini College reported in 26DLR 10.
 
6. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision and there is no illegality or infir­mity in the above decision so as to call for any interference.
 
The petition is dismissed.
 
Ed.