Case No: Writ Petition No. 4251 of 2014
Judge: Kashefa Hussain. J.
Court: High Court Division,
Advocate: Mr. Bakir Uddin Bhuiyan, Mr. A.K.M. Zahirul Huq,
Citation: 2017 (2) LNJ 223
Case Year: 2016
Appellant: Md. Yousuf Ali
Respondent: University of Dhaka and others
Subject: Writ Jurisdiction
Delivery Date: 2017-11-15
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Md. Rezaul Hasan, J.
Kashefa Hussain, J.
Md. Yousuf Ali
. . .Petitioner
University of Dhaka and others.
. . .Respondents
Constitution of Bangladesh, 1973
It is evident that the whole process of the enquiry was held behind the back of the petitioner. Our view is the Respondents embarked upon an enquiry on a totally perfunctory basis and is manifest of their arbitrary conduct and transgressing their authority and the limits of the jurisdiction conferred upon them by the relevant statutes and they thereby violated the fundamental principle of the concepts of due process and fair hearing which principles are entrenched in our Constitution and guaranteed by it. …(9)
Dhaka University Ordinance, 1973
(President’s Order No. 11 of 1973)
Sections 56 and 56 (3)
The petitioner being an officer of the university within the meaning of provision of section 56 of Dhaka University Ordinance, 1973 and his probationary period being over on 15.12.2012, therefore he is entitled to the procedure of due process afforded to him by Section 56(3) of the Order of 1973 in the event of his dismissal within the meaning of the relevant laws and Rules. The petitioner did not remain a probationer after 15.12.2012 therefore the Rules for probationers under the relevant Rules did not remain applicable for him from 15.12.2012 onwards. The impugned letters terminating (eiLv¯Í) the petitioner was issued on 01.07.2013 after the expiry of the probationary period of the petitioner. Even if he was a probationer, since he was dismissed (hlM¡Ù¹) from his service with a stigma therefore, the authorities are bound to give him a reasonable opportunity to defend his case for ends of justice. Giving retrospective effect to the date of a dismissal, termination whatsoever is beyond the scope of the law and the Rules. ...(13, 15, 24 and 25)
Dhaka University Ordinance, 1973
(President’s Order No. 11 of 1973)
Section 56 (3)
From the enquiry report it is revealed that the petitioner was not given any chance to due process or fair hearing and which reveals the mala-fide intention of the Respondent. This type of arbitrary conduct of the Respondent is deprecated by us. And even given that he was a probationer, upon hypothesis, under the circumstances unless it is a termination simpliciter, the termination of such probationer with a stigma or allegation is not legally permissible without a reasonable opportunity of a fair hearing. …(26)
Mr. Mohammad Bakir Uddin Bhuiyan with
Mr. Mahfujur Rahman Roman, Advocates
. . . For the petitioner
Mr. A.K.M. Zahirul Huq, D.A.G. with
Mrs. Samira Tarannum Rabeya and
Mr. Abdur Rokib (Montu), A.A.Gs.
. . . For the Respondents.
Dr. Naim Ahmed with
Mr.Md.Shoyebur Rahman Sarker, Adv.
...For the Respondent Nos.1-4 & 6-8.
Kashefa Hussain, J: The supplementary-affidavit do form part of the main application. (The prayer as inserted under Paragraph No.5 in the supplementary-affidavit be added with the prayer ‘A’ of the main petition. Office is directed to do the needful accordingly).
2. Rule Nisi was issued calling upon the respondents to show cause as to why the impugned Memo No. Regi: Prosashon-2/323-325 dated 01.07.2013 (Annexure-F) issued under the signature of the Respondent No.3 terminating the petitioner from the service of the University shall not be declared to have been issued without lawful authority and of no legal effect and further to show cause as to why the respondents shall not be directed to reinstate the petitioner in his post with all his service benefits and salaries and/or pass such other or further order or orders as to this Court may seem fit and proper.
3. The facts relevant for disposal of the case in short is that on 29.03.2010 the respondent No.1 published a circular, inviting application from the prospective candidates, for some vacant post including posts of Junior Librarian (Against the post of Assistant Librarian). On 29th March 2010 the petitioner applied for the post of Junior Librarian. On 15th December 2010 after compliance of all the formalities of appointment process, the petitioner was appointed as a temporary librarian equivalent to the post of officer of lecturer of University of Dhaka, which was duly authenticated by the decision of the Syndicate and the same was communicated to the petitioner by a letter dated 15.12.2010 signed by respondent No.3 on behalf of the respondent No.1. Clause 2 of aforesaid appointment letter stated that, the petitioner would get salary as per the National pay scale 2009. The pay scale of the petitioner mentioned in the appointment letter was 11,000-490x7-14430-C¢h-540x11-20370 including a basic salary of Tk.11,000/- (taka eleven thousand) and other fees payable under the Rules of University of Dhaka. Since joining the petitioner has been performing his duties and responsibilities with utmost sincerity with satisfaction of all concerned. From the date of appointment till February 2012 the petitioner served on a temporary basis. That upon a recommendation made by the librarian, on 25th April, 2012, the petitioner was placed for the post of Junior Librarian against the vacant post created by the retirement of Md. Abdul Latif, Deputy Librarian. On 28th April 2012, the petitioner joined in the said post, while the petitioner was discharging his duties and responsibilities with utmost sincerity. Suddenly on 21st May 2013, he received a letter from respondent No.8. The said letter stated that, on the basis of some allegations made against the petitioner, an enquiry committee had was formed by the order of the authorities and as such the petitioner was requested to appear at the meeting of the enquiry committee to be held on 22nd May 2013 at 3 p.m. The petitioner was shocked and surprised after receiving the aforesaid letter and it became worse since the said letter did not disclose the allegations brought against the petitioner. The petitioner tried to know the allegations brought against him and about the formation of an enquiry committee but all his attempts went in vain due to the non co-operation of the authorities. On 22nd May 2013 the petitioner appeared before the committee and he found that an enquiry committee was formed comprising of Respondent Nos.4-8. The petitioner further came to learn that the said committee had been formed to investigate some allegations brought against him. However, the petitioner was not informed about the allegations. Although the petitioner asked the Respondent Nos.4-8 about the allegations brought against him but the members of the committee did not give any answers disclosing the allegations against him. The petitioner received a termination letter on 1st July 2003 issued by the Registrar of University of Dhaka mentioning that the petitioner was terminated from service upon the decision made by the syndicate based on the report of the enquiry committee since the allegations against the petitioner has been proved beyond all reasonable doubt. It was also stated that the decision would be deemed to be effective from 23rd June, 2003. The said termination letter stated that, the petitioner had made a confessional statement in respect of the allegation about counterfeiting the signature of the Librarian. After receiving the letter of termination the petitioner was shocked and he immediately contacted the concerned authority and he was able to collect the photocopy of the enquiry report.
4. Mr. Mohammad Bakir Uddin Bhuiyan with Mr. Mahfujur Rahman Roman, the learned Advocate appeared on behalf of the petitioner while Mr. A.K.M. Zahirul Huq, learned Deputy Attorney General with Mrs. Samira Tarannum Rabey with Mr. Abdur Rokib (Montu) the learned Assistant Attorney Generals appeared on behalf of the respondents and Dr. Naim Ahmed with Mr. Md. Shoyebur Rahman, the learned Advocate appeared on behalf of the respondent Nos.1-4 & 6-8.
5. Mr. Mohammad Bakir Uddin Bhuiyan, the learned Advocate for the petitioner submits that although he was appointed as an officer pursuant to the pay scale of the advertisement which is Annexure-‘A’ of the Writ Petition and his appointment as an officer is evident by the appointment letter dated 15.12.2010 which is Annexure-‘B’ of the Writ Petition, yet he not issued any show cause notice nor was he given any opportunity of being heard and therefore the respondents have violated the provision of Article 56(3) of the Dhaka University Order, 1973 committing serious illegality. He points out that he was appointed on 15.12.2010 as a temporary Junior Librarian and his probationary period expired on 15.12.2012 as per the provisions of Regulation 2 of Part I-B of Chapter XXI of the Dhaka University Ordinances and Regulations as amended up to 1997. The learned Advocate draws our attention to Regulation 2 which prescribes that the period of probation for direct recruitment shall be normally for two years. He asserts that inspite of his probationary period being over, yet the respondents arbitrarily treated him as a probationer even after the expiry of that period and unlawfully ‘terminated’ (hlM¡Ù¹) him as a ‘probationer. He contends that the respondents in an arbitrary manner with mala-fide intention neither formed a proper enquiry committee nor did they issue any show cause notice or any information and persuades that he was in consequence deprived of any chance to represent his case by his nominated person. He contends that the respondents did not issue any show cause notice bringing any specific allegations against him nor did they give him any chance for explanation. He persuades that the petitioner was not aware of the charges against him nor was he made aware of the proceedings of the enquiry committee. He draws our attention to Annexure-‘E’ of the Writ Petition, where the respondents served a letter to the petitioner to appear at a meeting before the enquiry committee on 22.05.2013 at 3: p.m and assails that the petitioner duly went before the enquiry committee on 22.05.2013 at 3: p.m. but there was no hearing or anything else whatsoever. He now takes us to the report and draws our attention to the term ‘L¢afu’ arguing that the use of the term ‘L¢afu’ without elaborating further fails to determine and specify the existence of any allegations alleged to be committed by him. In continuation of his arguments the learned Advocate refers to Annexure-‘5’ of the affidavit-in-opposition filed by the respondents and draws upon the report and argues that as per enquiry report dated 26.05.2016 (Annexure-‘G’ to the affidavit-in-opposition, the enquiry committee held three meetings, (i) on 20.05.2013 at 11:00 am. (ii) on 21.05.2013 at 11:00 am. and (iii) on 22.05.2013 at 2:00 pm. and as such he contends that the ‘so called’ enquiry meeting was virtually held behind his back and the Respondents passed the impugned order based upon a perfunctory enquiry and report only. He submits that the petitioner had preferred an appeal against the impugned order before the Chancellor, University of Dhaka on 05.08.2013 which is Annexure-‘G’ to the Writ Petition, but the application has not been disposed of till date. He further assails that therefore the said application of the petitioner shall be deemed to have been rejected and concludes his submission by assertion that the impugned order issued by the Respondents is illegal, mala-fide and without lawful authority affecting the fundamental rights of the petition guaranteed under Article 31 of the Constitution and the Rule ought to be made absolute for ends of justice.
6. Dr. Naim Ahmed, the learned Advocate appearing on behalf of the respondent Nos.1-4 & 6-8 upon filing an Affidavit-in-opposition submits that the petitioner being a ‘probationer’ within the definition of part I-B of chapter XXI of Dhaka University Ordinances and Regulations, therefore, his dismissal (hlM¡Ù¹) is in accordance with Regulation 5 of Part I-B of Chapter XXI, since no formal proceeding is required to discharge the petitioner while he serving in his capacity as a probationer. Upon a query from the bench the learned Advocate for the Respondents subsequently admitted that the petitioner’s case is actually one of ‘dismissal’ ‘hlM¡Ù¹’ and not of ‘discharge’. He however concludes his submissions that the respondents committed no illegality in passing the impugned order and therefore the Rule has no merit and is liable to be discharged.
7. We have heard the learned Advocates from both sides, perused the application, affidavit-in-opposition and the other materials available on record before us. It transpires that the petitioner was appointed a Junior Librarian by an appointment letter dated 15.12.2010 against some vacant posts as per an advertisement, which is Annexure-A of the Writ Petition and we also find that his appointment letter dated 15.12.2010 which is Annexure-B of the Writ Petition specifically stipulated that the terms and conditions of his appointment shall be governed by the provisions of Dhaka University Order, 1973 and the relevant Statute and the Rules and Regulations. It is also evident that in accordance with Regulation 2 of part I-B of Chapter XXI of Dhaka University Ordinances and Regulations, the period of probation expired on 15.12.2012. However, from the date of appointment till February of 2012 the petitioner served on temporary basis although he was appointed against some vacant posts as per advertisement. As is evident from the records upon a recommendation made by the Respondent No.4 Librarian, on 25.05.2012 the petitioner was placed for the post of Junior Librarian against a vacant post. Learned Advocate for the Respondent in course of his submissions tried to impress upon us that the petitioner’s previous appointment vide letter dated 15.12.2010 was on a ‘temporary’ basis and had further contented that subsequently he was appointed as a probationer in pursuance of a recommendation letter for the ‘placement’ of the petitioner under the signature of the Respondent No.4 Librarian of Dhaka University and that he was appointed by the Respondent No.3 Registrar, by a fresh appointment letter dated 24.04.2012. The recommendation letter and the fresh appointment letters are Annexure C and C-1 respectively of the Writ Petition.
8. This contention of the learned advocate for the Respondents we are afraid does not bear any legal strength to justify their actions. We have scrutinized the original appointment letters dated 15.12.2010 Annexure- B and including Annexure-C and C-1 carefully. Upon scrutiny it is revealed from Annexure-C, that is the recommendation letter dated 26.02.2012 under the signature of the Respondent No.4, Librarian that the Respondent No.4 admits that the probationary (Ahr¡d£e) period was not mentioned in the earlier original appointment letters dated 15.12.2010 due to procedural (fË¢œ²u¡Na) reasons and therefore it is our considered finding that Annexure-C-1, the second appointment letter dated 24.04.2012 is only a continuation of Annexure-B the earlier appointment letter dated 15.12.2010. Annexure-C-1 clearly states that pursuant to vacancy in the post of Junior Librarian, the petitioner has obtained a ‘placement’ in the vacant post. Now, upon a construction of the ordinary meaning of the term ‘placement’ and by the express admission of the Respondents in Annexure-C regarding their omission of the mention of the probationary period due to procedural reasons (fË¢œ²u¡NaLlZ) in the earlier appointment letter dated 15.12.2010, it is our considered finding that the petitioner’s appointment for every purpose shall be deemed to be from the date of original appointment letter dated 15.12.2010 which is Annexure-B of the Writ Petition and the eventual appointment dated 24.04.2012 which is Annexure-C of the Writ Petition is of ‘placement’ only and a continuation of the earlier appointment dated 15.12.2010.
9. It is evident that the whole process of the enquiry was held behind the back of the petitioner. Our view is the Respondents embarked upon an enquiry on a totally perfunctory basis and is manifest of their arbitrary conduct and transgressing their authority and the limits of the jurisdiction conferred upon them by the relevant statutes and they thereby violated the fundamental principle of the concepts of due process and fair hearing which principles are entrenched in our Constitution and guaranteed by it.
10. Therefore, relying upon Annexure ‘C’ especially upon the express admission of the Respondents regarding the omission of the mention of the term ‘probationer’ in the earlier appointment letter due to procedural reasons (fË¢œ²u¡NaLlZ) and taking the relevant Rules into consideration, it is evident that the appointment of the petitioner shall be deemed to be from 15.12.2010 by dint of earlier appointment letter of the petitioner dated 15.12.2010 and the subsequent ‘appointment’ letter dated 29.04.2012 letter Annexure-C-1 is only a continuation of the original appointment letter.
11. Upon reaching our findings, it goes without saying that as per Regulation 2 of Chapter XXI, Part I-B of the Dhaka University Ordinances and Regulations and taking the other facts, into the consideration the petitioner’s period of probation ended on 15.12.2012.
12. We also find force in the contention of the learned Advocate for the petitioner that he was appointed as officer within the meaning of Section 56 of the Dhaka University Order 1973 and relies his contentions inter alia, upon Annexure-C of the Writ Petition where the Respondent No.4, addressed the petitioner as an officer by using the term ‘(LjÑLaÑ¡hª¾c)’.
13. Thus being the position, we are of the considered view that the petitioner being an officer of the university within the meaning of provision of section 56 of Dhaka University Ordinance, 1973 and his probationary period being over on 15.12.2012, therefore he is entitled to the procedure of due process afforded to him by Section 56(3) of the Order of 1973 in the event of his dismissal within the meaning of the relevant laws and Rules.
14. The learned Advocate for the Respondents had at the initial point of his submissions tried to argue that since the petitioner was a ‘probationer’ and he was ‘discharged’ under Regulation 5 of Chapter 21 Part I-B of Dhaka University Order and Rules, he was not entitled to any formal hearing or proceedings which are prescribed in case of ‘dismissal’ of employees, under the provisions of Section 56(3) of Dhaka University Order and Rules, 1973. But subsequently, at one stage of his submissions, upon query from the bench he conceded that the petitioner was actually dismissed (hlM¡Ù¹) and not ‘discharged’.
15. However, we do not find it imperative to dwell upon this issue, inasmuch as that upon scrutiny into the records and the relevant Rules we have arrived at our findings that the petitioner did not remain a probationer after 15.12.2012 therefore the Rules for probationers under the relevant Rules did not remain applicable for him from 15.12.2012 onwards. The impugned letters terminating (eiLv¯Í) the petitioner was issued on 01.07.2013 after the expiry of the probationary period of the petitioner.
16. The impugned order dated 01.07.2013 of (hlM¡Ù¹) (termination) itself is a misrepresentation of facts given that the question of ‘ü£L¡l¡¢J²j§mL Sh¡eh¢¾c’ on the part of the petitioner against the allegations do not even arise, since, as we discussed elsewhere in this judgment, he was never accorded any opportunity of hearing or otherwise defending himself at any stage and which is revealed upon a scrutiny and comparison of Annexure-E of the Writ Petition and Annexure-5 of the affidavit-in-opposition filed by the Respondents.
17. We examined the Enquiry report which is marked as Annexure-5 of the Affidavit-in-opposition filed by the Respondents. As is quite apparent from Annexure-E-1 of the Writ Petition, the petitioner was asked to appear before the Enquiry Committee on 22.05.2013 at 3.00 p.m.
18. Curiously enough, upon examination of Annexure-5 of the affidavit-in-opposition that is, the Enquiry Report, we noticed serious discrepancy in the conduct of the Respondents. It appears that the enquiry committee held meetings relating to the enquiry on their allegations against the petitioner on three days i.e. on 20.05.2013, 21.05.2013 and 22.05.2013. The petitioner was however informed and asked to appear on 22.05.2013. But it appears even stranger and shows a total lack of transparency in the conduct of the Respondents given that as per Annexure-E of the Writ Petition the petitioner was asked to appear on 22.05.2013 at 3.00 a.m, but as per the Enquiry report annexed as Annexure-5, it is quite manifest as per the respondent’s own records that the committee already held its meeting at 2.00 p.m. on that date.
19. From the facts and circumstances as is ex-facie evident from the records, it is obvious that the petitioner was never accorded any opportunity of defending his case, nor was he made aware of the allegations against him.
20. The statement of ‘ü£L¡l¡¢J²j§mL Sh¡eh¢¾c’ made by the Respondent as per Annexure-E, amount to a fiction created by the Respondents and is palpably untrue which manifests the mala-fide intention on their part.
21. Now the term ‘L¢afu’ by its very meaning becomes vague given that no specific allegations against the petitioner was identified or otherwise communicated to him by the Respondents and the petitioner consequently did not get any opportunity to place his case and defend himself.
22. As it appears from the impugned order, the respondents dismissed (hlM¡Ù¹) the petitioner as a ‘probationer’ relying upon a letter of ‘placement’ dated 25.05.2012 and which is Annexure-C-1 of the writ petition treated the letter of placement as a fresh appointment letter as a ‘probationer’ deeming his appointment from the subsequent appointment letter of placement dated 25..05.2012 which in our considered view is totally misconceived. We are able to arrive upon this finding given that the period of original appointment was never extended as per Regulations V Chapter XXI part I-B of the Dhaka University Rules and Regulations, 1973. There is nothing on the records to indicate that the earlier appointment dated 15.12.2010 was ever extended or cancelled. Therefore, since the original appointment period dated 15.12.2010 was never extended nor was the earlier appointment cancelled by way of termination whatsoever, consequently the petitioner has become a permanent employee from 15.12.2012. It is also our considered view that in the event of any allegation of misconduct done by him, the petitioner is entitled to receive a notice as per Article 56(3) of the Dhaka University Order. 1973. From the examination of materials on record we find that no notice whatsoever was served upon him on any specific allegation. However, from Annexure E of the Writ Petition it appears that the respondents summoned him to answer some (L¢afu A¢ik¡N) on 22.05.2016 while ‘L¢afu A¢ik¡N’ is prime-facie a vague terminology in itself and does not disclose any allegations.
23. Another aspect, which we feel it necessary to discuss is that the petitioner was not actually discharged (hlM¡Ù¹) but was rather dismissed and with a stigma. It was not a termination simpliciter, given that the Respondent dismissed him though with vague allegations whatsoever. With reference to this context the learned Advocate for the petitioner referred to a decision in the case of Barkatullah Khan –Vs- Government of Bangladesh and others reported in the case of 57 DLR (2005) page 302 the principle of which is reproduced below :-
“Where the impugned order contains serious allegation casting a stigma, the authority is bound to give an opportunity to the parties concerned to present his case before issuance of any order. This is in consonance with the long standing principle of natural justice.”
24. We are in agreement with the principle including that decision. Our considered view is that even if he was a probationer, since he was dismissed (hlM¡Ù¹) from his service with a stigma therefore, the authorities are bound to give him a reasonable opportunity to defend his case for ends of justice.
25. Regarding the issue of dismissal, Annexure-F that is termination (hlM¡Ù¹) letter addressed to the petitioner and which is the impugned order, it is significant to note that although the impugned letter is dated 01.07.2013, but yet it states that the ‘termination’ (hlM¡Ù¹) would be effective from 23.06.2013 that is the date of a meeting held by the syndicate which entails that the petitioner was terminated (hlM¡Ù¹) (dismissed) with retrospective effect. We are of the considered finding that giving retrospective effect to the date of a dismissal, termination whatsoever is beyond the scope of the law and the Rules and the impugned order dated 01.07.2013 suffers from legal infirmity in this respect also.
26. As we discussed elsewhere, from the enquiry report it is revealed that the petitioner was not given any chance to due process or fair hearing and which reveals the mala-fide intention of the Respondent. This type of arbitrary conduct of the Respondent is deprecated by us. And even given that he was a probationer, upon hypothesis, under the circumstances unless it is a termination simpliciter, the termination of such probationer with a stigma or allegation is not legally permissible without a reasonable opportunity of a fair hearing.
27. But, be that as it may, our main concern here is that, in pursuance of our reasoning supported by the relevant Rules having coming to the finding that the petitioner was not a ‘probationer’ on the date the impugned order dated 01.07.2013 was issued, but yet the Respondents treating him as a probationer inspite, the Respondent transgressed the limits of their jurisdiction having wrongly placed a reliance upon a situation which does not exist and in doing so, the Respondents violated the provisions of their statutory duties which they are bound to follow, in having failed to accord him a fair hearing or any hearing at all to defend his case and thus deprived him of his constitutional rights guaranteed under the Constitution. In view of the facts and circumstances and after perusal of the record and the submissions of the learned Advocate for the petitioner, we find merits in the Rule. Hence, the Rule is liable to be absolute.
28. In the result, the Rule is made absolute without any order as to costs.
29. The respondents concerned are hereby directed to reinstate the petitioner (Md. Yousuf Ali) in his service with all the service benefits and pay him all the salaries and benefits with arrears as per provisions of law within period of 30 (thirty) days from the receipt of the copy of this judgment and order.
30. The office is directed to communicate the judgment and order to the concerned persons immediately.
Writ Petition No. 4251 of 2014