Mr. Abdul Baque and others Vs. Government of Bangladesh and others, 2016(1) LNJ (AD) 178

Case No: CIVIL APPEAL No. 506 of 2009

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Mr. Mahbubey Alam,Mr. Mahmudul Islam,Mr. Bivash Chandra Biswas,Mr. Md. Taufique Hossain,,

Citation: 2016(1) LNJ (AD) 178

Case Year: 2016

Appellant: Mr. Abdul Baque

Respondent: Government of Bangladesh

Subject: Constitutional Law,

Delivery Date: 2015-11-1


APPELLATE DIVISION
(CIVIL)
 
Surendra Kumar Sinha, CJ.
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Hasan Foez Siddique, J
 
Judgment on
01.11.2015
 
Mr. Abdul Baque and another.  
. . . Appellants.
(In C. A. No. 506/09)
Arun Chandra Das and others.
. . . Appellants.
(In C. A. No. 98/2011)
-Versus-
Government of Bangladesh, represented by the Secretary, Ministry of Information and others. 
. . . Respondents.
(In C. A. No. 506/09)
Chittagong Port Authority and others.
. . . Respondents.
(In C. A. No. 98/2011)
 
Constitution of Bangladesh, 1972
Articles 27 and 29
The discretion in terminating the employees of the Cittagong Port Authority and Bangladesh Sangbad Sangstha in the absence of any guideline suffered from unconstitutionality and the impugned actions based on it is open to the challenge of being discriminatory and in violation of equality provisions of the Constitution.       . . . (30)
 
Constitution of Bangladesh, 1972
Article 27
Chittagong Port Authority Employees’ Service Regulations, 1991
Regulation 55(2)
Bangladesh Sangbad Sangstha Employees Service Regulations, 1995
Regulation 54(2)
A legislation which does not contain any provision which is directly discriminatory may be yet offend against guarantee of equal protection if it confers upon the executive or administrative authority an unguided or uncontrolled discretionary power in the matter of application of the law. Therefore, the power exercised under Regulation 55(2) of the Chittagong Port Authority Employees’ Service Regulations, 1991 and Bangladesh Sangbad Sangstha Employees Service Regulations, 1995 was illegal as there was no guideline formulated for exercise of such power. Consequently, the order of termination made under those provisions of law cannot be sustained in law. . . . (34 and 35)
 
Constitution of Bangladesh, 1972
Article 102(1)
Sitting in writ jurisdiction in the nature of certiorari over an order of termination simpliciter without stigma, the High Court Division was wrong in finding the appellants guilty of misconduct placing itself into the role of domestic Tribunal more particularly where admittedly the proceeding initiated was not concluded by service of second show cause notice with proposed punishment and by receiving reply thereof.      . . . (37)
 
Shri Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and others, AIR 1958 (SC) 538; Central Inland Water Transport Corporation Ltd. and another Vs. Brojo Nath Ganguly and another, AIR 1986 (SC) 1571 and West Bengal State Electricity Board and others Vs. Desh Bandhu Ghosh and others, AIR 1985 (SC) 722 ref.
 
For the Appellants: Mr. Mahmudul Islam, Senior Advocate, instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record.
For the Respondent Nos. 1-2 in CIVIL APPEAL No. 506 of 2009: Mr. Mahbubey Alam, Attorney General, instructed by Mr. Haridas Paul, Advocate-on-Record.
For the Respondent No. 3 in CIVIL APPEAL No. 506 of 2009: Mr. Md. Taufique Hossain, Advocate-on-Record.
For the Respondent No. 4 in CIVIL APPEAL No. 506 of 2009: Mr. Bivash Chandra Biswas, Advocate-on-Record.
For Respondents in CIVIL APPEAL No. 98 OF 2011: Mrs. Sufia Khatun, Advocate-on-Record.
 
CIVIL APPEAL No. 506 of 2009.
(From the judgment and order dated 27.08.2007 passed by the High Court Division in Writ Petition No. 3617 of 2005)
With
CIVIL APPEAL No. 98 OF 2011.
From the judgment and order dated 22.10.2008 passed by the High Court Division in Writ Petition No. 2300 of 2003)
 
JUDGMENT
 
Syed Mahmud Hossain, J:
 
1. These appeals are directed against the judgments and orders dated 27.08.2007 and 22.10.2008 respectively passed by the High Court Division in Writ Petition Nos. 3617 2005 and 2300 of 2003 discharging the Rules.
 
2. Both the appeals involving similar questions of laws and almost identical facts having been heard together are now disposed of by this single judgment.
 
3. The facts relevant for the purpose of disposal of Civil Appeal No. 506 of 2009, in a nutshell, are:
 
4. The petitioners were appointed as Probationary Radio Operators on temporary basis in the service of Bangladesh Sangbad Sangstha (BSS) by Office orders dated 18.05.1986. It was mentioned in the appointment orders that after successful completion of probation period their cases would be considered for regular appointment. Being satisfied with the services of the petitioners on probation, respondent No.4 by office order dated 14.12.1986 appointed them as Radio Operators on regular basis with effect from 01.12.1986. The petitioners were promoted to the post of Assistant Accountants on 08.12.1996 and 07.12.1996. While serving BSS sincerely, honestly, efficiently and diligently to the satisfaction of all concerned, the petitioners were taken by surprise to receive a copy of the office order dated 28.07.2003 issued under the signature of the Managing Director and Chief Editor of BSS (respondent No.4) stating therein:-
 
""সংস্থার হিসাব বিভাগ কর্তৃক সম্পাদিত বেতন-ভাতার সীটে গুরূতর আর্থিক অভিযোগ পাওয়া গেছে। বাসস কর্মচারী চাকুরী বিধিমালা ১৯৯৫-এ ৭(সাত) অধ্যায়ের ৩৮-এর "চ' ও "ছ' অনুযায়ী অভিযুক্ত করার মত গুরূতর অপরাধ। এ প্রেক্ষিতে সংস্থার ভারপ্রাপ্ত প্রধান হিসাব রক্ষক জনাব ইউছুফ আলী মোল্লার নেতৃত্বে ১(এক) সদস্য বিশিষ্ট তদন্ত কমিটি গঠন করা হল। এই কমিটিকে আগামী ৪ আগষ্ট, ২০০৩ ইং তারিখের মধ্যে এ ব্যাপারে বিস্তারিত তদন্ত প্রতিবেদন (যদি অতীতেও এমন ঘটনা ঘটে থাকে তা সহ) নিম্ন স্বাক্ষরকারীর নিকট পেশ করতে বলা হল।'' 
 
5. Petitioner Nos.1 and 2 were placed under suspension by orders dated 03.08.2003 and 05.08.2003 respectively purportedly under the provisions of Regulation 44(1) of BSS Employees Service Regulations, 1995 pending an enquiry under Regulation 38(Cha) of the said Regulations. Respondent No.4 by memos dated 06.08.2003 served charge sheets cum show cause notices upon the petitioners alleging some financial irregularities therein. The petitioners made separate reply to the said notices on 14.08.2003 and 13.08.2003 denying the allegations brought against them. An enquiry committee was formed behind the back of the petitioners on 18.08.2003. But the said committee without following the procedure laid down in the BSS Employees Service Regulations, 1995 and without affording the petitioners ample opportunity of hearing arbitrarily prepared a report which was never brought to the notice of the petitioners. The petitioners were taken by surprise to receive the impugned orders of termination dated 09.09.2003 by post under Regulation 54(2) of the said Regulations, 1995.
 
6. Being aggrieved by and dissatisfied with Memo No. ২০১/অ আ/ব্যপ/ডি-৫৭৩১ and Memo No. ২০৩/অ আ/ব্যপ/ডি-৫৭৩২ dated 09.09.2003 issued under the signature of the Managing Director and Chief Editor of Bangladesh Sangbad Sangstha (BSS) (respondent No.4) terminating the services of the petitioners under Regulation 54(2) of Bangladesh Sangbad Sangstha Employees Service Regulations, 1995 and also questioning the vires of Regulation 54 of the Bangladesh Sangbad Sangstha Employees Service Regulations, 1995, the petitioners filed a writ petition before the High Court Division and obtained Rule Nisi in Writ Petition No. 3617 of 2005.
 
7. The facts relevant for the purpose of disposal of Civil Appeal No. 98 of 2011, in a nutshell, are:
 
8. The petitioners were appointed in different posts in the Chittagong Port Authority, and subsequently were promoted to the higher posts upon satisfactory discharge of duties. The petitioners were terminated from service under Regulation 54(2) of the Chittagong Port Authority Employees’ Service Regulations, 1991. The petitioners were terminated from service in violation of Articles 26 and 31 of the Constitution.
 
9. The petitioners filed a writ petition before the High Court Division challenging the constitutionality of Regulation 55(2) of the Chittagong Port Authority Employees’ Service Regulations, 1991 (Annexure-A)) and office order No.12-2003 dated 25.02.2003 issued by respondent No.3 terminating the petitioners from service (Annexure-P) pursuant to Regulation 55(2) of the said Regulations and obtained Rule Nisi in Writ Petition No. 2300 of 2003.
 
10. Writ-respondent No.4 of Writ Petition No. 3617 of 2005 and writ-respondent Nos.1, 2 and 3 of Writ Petition No. 2300 of 2003 contested the Rules by filing separate affidavit-in-oppositions controverting the material statements made in the writ petitions.
 
11. The learned Judges of the High Court Division upon hearing the parties by the impugned judgments and orders dated 27.08.2007 and 22.10.2008 respectively discharged the Rules.
 
12. Feeling aggrieved by and dissatisfied with the impugned judgments and orders passed by the High Court Division, the petitioners of both the writ petitions as the leave petitioners have filed Civil Petitions for Leave to Appeal Nos. 2291 of 2008 and 373 of 2009 before this Division and leave was granted in both the civil petitions on 09.07.2009 and 06.10.2010 resulting in Civil Appeal Nos. 506 of 2009 and 98 of 2011.    
 
13. Mr. Mahmudul Islam, learned Senior Advocate, appearing on behalf of the appellants in Civil Appeal No.506 of 2009,  submits that the provision of Regulation 54(2) of the Bangladesh Sangbad Sangstha Kormochary Regulation, 1995 is void being violative of fundamental right guaranteed by Article 27 of the Constitution and that it does not provide for any guideline for exercise of the power of termination and permits arbitrary and discriminatory treatment and as such, the impugned judgment should be set aside. In this appeal, he further submits that the case involves a question of great public importance, namely, whether in a case where the employer has passed an order of termination simpliciter without stigma and that order has been challenged in the Court on the ground of mala fide and arbitrariness, can the employer be allowed to a plea that in fact, the employees concerned were found guilty in a departmental proceeding but the authority as an act of grace without inflicting punishment of dismissal awarded order of termination simpliciter.
 
14. Mr. Mahmudul Islam, learned Senior Advocate, appearing on behalf of the appellants in Civil Appeal No. 98 of 2011, submits that Regulation No.55(2) of the Chittagong Port Authority Employees’ Service Regulations, 1991 having not provided any guideline for exercise of the power of termination of employees without assigning any reason is void being violative of fundamental right guaranteed by Article 27 of the Constitution.
 
15. Mr. Mahbubey Alam, learned Attorney General, appearing on behalf of respondent Nos.1 and 2 in Civil Appeal No. 506 of 2009, on the other hand, submits that the authority terminated the appellants in exercise of the power under Regulation 54(2) of the Bangladesh Sangbad Sangstha Kormochary Regulation, 1995 and that termination simpliciter without stigma does not call for interference. He further submits that the High Court Division came to a finding that the allegations brought against the appellants were proved and that the concerned authority without awarding punishment to the appellants terminated them from service and that the orders of termination were not illegal and as such, no interference is called for.
 
16. Mrs. Sufia Khatun, learned Advocate-on-Record, appearing on behalf of the respondents in Civil Appeal No. 98 of 2011, on the other hand, supports the impugned judgment delivered by the High Court Division.
 
17. We have considered the submissions of the Senior Advocate for the appellants of both the appeals and the learned Attorney General for respondent Nos.1 and 2 of Civil Appeal Nos. 506 of 2009 and the learned Advocate-on-record of the respondents of Civil Appeal No. 98 of 2011, perused the impugned judgments and the materials on record.
 
18. Before entering into the merit of both the appeals, it would be pertinent to go through the grounds, for which, leave was granted in both the appeals.
 
19. The grounds of Civil Appeal No. 506 of 2009 are quoted below:
 
“The case involves a question great public importance namely, whether in a case where the employer has passed an order of termination simpliciter without stigma and that order has been challenged in the Court on the ground of mala fide and arbitrariness can the employer be allowed to take a plea that in fact, the employees concerned were found guilty in a departmental proceeding but the authority as an act of grace without inflicting punishment of dismissal awarded order of termination simpliciter. 
 
The case involves a question of law of great public importance namely, when the employer authority has passed orders of termination simpliciter without stigma against the petitioners, can the High Court Division in its writ jurisdiction in the nature of certiorari find the petitioners guilty of misconduct placing itself into the role of a domestic more particularly where admittedly the proceeding initiated was not concluded by serving second show cause notice with proposed punishment upon the petitioners and by receiving reply thereof.
 
In the instant case Regulation 54(2) of the BSS Employees Service Regulations has been resorted to in a manner and for the purpose not intended by the legislature and as such, the  mala fide and arbitrariness of the respondents are apparent on the face of the record.
 
The provision of Regulation 94(2) of the Bangladesh Sangbad Sangstha Kormochary Regulation, 1995 is void being violative of fundamental right guaranteed by Article 27 of the Constitution inasmuch as it does not provide any guideline for the exercise of the power of termination and permits arbitrary and discriminatory treatment.”
 
20. The ground of Civil Appeal No. 98 of 2011 is quoted below:
 
“I. Whether the provisions of Regulation 55(2)of the Chittagong Port Authority Employees’ Service Regulations, 1991 having not provided any guideline for exercise of the power of termination of employees without assigning any reason is void being violative of the fundamental right guaranteed by Article 27 of the Constitution.” 
 
21. The common questions of law to be decided in both the appeals are almost identical.
 
22. In both the appeals, it is to be decided whether the Regulation empowering the authority to terminate an employee form service can be exercised without any guideline.
 
23. For proper appreciation, it is pertinent to quote Regulation 54(2) of the Bangladesh Sangbad Sangtha Karmachari Regulation,1995 which is as under:
 
“৫৪(২) এই প্রবিধানমালায় ভিন্নরুপ যাহা কিছুই থাকুক না কেন, কর্তৃপক্ষ কোন কারণ প্রদর্শন ব্যতিরেকে ৩ (তিন) মাসের আগাম নোটিশ দিয়া অথবা তৎপরিবর্তে ৩ (তিন) মাসের মূল বেতনের সমপরিমান অর্থ পরিশোধ করিয়া যে কোন কর্মচারীর চাকুরীর অবসান ঘটাইতে পারিবে।”
 
24. It is also necessary to quote Regulation 55(2) of the Chittagong Port Authority Employees’ Service Regulations,1991:
 
“৫৫(২) এই প্রবিধানমালায় ভিন্নর্রপ যাহা কিছুই থাকুক না কেন উপযুও্র কর্তৃপক্ষ কোন কারণ না দর্শাইয়াই কোন কর্মচারীকে নব্বই দিনের নোটিশ দান করিয়া অথবা নব্বই দিনের বেতন নগদ পরিশোধ করিয়া তাহাকে চাকুরী হইতে অপসারণ করিতে পারিবেন।”
 
25. The identical regulation of Chittagong Port Authority Employees’ Service Regulations, 1991 and Bangladesh Sangbad Sangtha Karmachari Regulation, 1995 states that notwithstanding anything in the regulations, the authority without showing any case may terminate the service of any employee by giving him three months’ notice or in lieu  thereof to pay him three months’ salary in cash. 
 
26. Admittedly, the order of termination was exercised without formulating any guideline for exercising the power of termination as referred to above.
 
27. In this connection reliance may be placed on the case of Dr. Nurul Islam vs. Bangladesh, represented by the Secretary, Ministry of Health and Population Control and others, 1981 33 DLR (AD)201. In this case, it has been held that since neither the impugned section 9(2) of the Public Servants Retirement Act nor the Rules provide for any principle or guideline for the exercise of discretion by the Government when it proposes to retire a Government servant from amongst a group of Government servants similarly situated and holding similar jobs, there invariably exists the scope for arbitrary exercise of such discretion.  
 
28. It has further been held that if either the impugned Act or the rules made thereunder provided such principle, the minimum requirement of law as showing the existence of some guideline for the exercise of discretion in retiring a government servant who has completed 25 years of service would, I think, be satisfied, thus making it immune from any challenge on the ground of discrimination violative of Articles 27 and 29 of the Constitution. I am of the opinion, therefore, that in the absence of such a guideline either in the Act or the rules framed thereunder, section 9(2) of the Public Servants (Retirement) Act (XII of 1974) suffers from unconstitutionality and the impugned action based on it is open to the challenge of being discriminatory and in violation of the equality provisions of the Constitution.
 
29. The Appellate Division, however, did not declare section 9(2) of the Public Servants (Retirement) Act, 1974 unconstitutional but the order of termination was declared to be void.
 
30. After pronouncement of the judgment of the case of Dr. Nurul Islam vs. Bangladesh, represented by the Secretary, Ministry of Health and Population Control and others, 1981 33 DLR (AD) 201, sub-section (2) of section 9 of the Public Servants (Retirement) Act, 1974 was amended by Ordinance No.I of 1983 by inserting the words “if it considers necessary in public interest to do so”. Therefore, section 9(2) of the Public Servants (Retirement) Act, 1974 now is a valid legislation.       
 
31. From the judgment referred to above, it appears that the discretion in terminating the employees of the aforesaid two organizations in the absence of any guideline suffered from unconstitutionality and the impugned actions based on it is open to the challenge of being discriminatory and in violation of equality provisions of the Constitution.
 
32. In this connection, reliance may also be placed on the case of Shri Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and others AIR 1958 (SC) 538. In that case, it has been held as under:
 
“A statute may not make a classification of the persons or things to whom their provisions are intended to apply and leave it to the discretion of the Government to select or classify the persons or things for applying those provisions according to the policy or the principle laid down by the statute itself for guidance of the exercise of discretion by the Government in the matter of such selection or classification.”

“If the Government in making the selection or classification does not proceed on or follow such policy or principle, it has been held by this Court, e.g. in Kathi Raning Rawat v. The State of Saurashtra (E) (supra) that in such a case the executive action but not the statute should be condemned as unconstitutional.”  
 
33. Reliance may be placed on the case of Central Inland Water Transport Corporation Ltd. and another vs. Brojo Nath Ganguly and another AIR 1986 (SC)1571. In that case, it has been stated that Rule 9(1) of the Service, Discipline and Appeal Rules, 1979 confers upon the Corporation, the power to terminate the service of the permanent employee by giving him three months’ notice in writing or in lieu thereof to pay him the equivalent of three months’ basic pay and dearness allowance. The Supreme Court of India held that such power may be termed as the Henry VIII Clause which is a provision occasionally found in legislation conferring delegated legislative power, giving the delegate the power to amend the delegating Act in order to bring that Act into full operation or otherwise by Order to remove any difficulty and at times giving power to modify the provision of other Acts also. Such a provision had been nick named “The Henry VIII Clause” because “that King is regarded popularly as the impersonation of executive autocracy.” The Supreme Court, therefore, concluded that such a clause is opposed to public policy and being opposed to public policy it is void under section 23 of the Contract Act.
 
34. Reliance may also be placed on the case of West Bengal State Electricity Board and others vs. Desh Bandhu Ghosh and others, AIR 1985 (SC) 722. In the above case, the Deputy Secretary was terminated form service under Regulation 34 of the W.B. State Electricity Board’s Regulations. The Regulation enabling Board to terminate services of permanent employee ‘by giving three months’ notice or payment of salary for the corresponding period in lieu thereof’. In the said case, it has been held that the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination. It is a naked ‘hire and fire’ rule and its only parallel is to be found in the Henry VIII Clause so familiar to administrative lawyers.   
 
35. Having considered the cases cited above, it appears that a legislation which does not contain any provision which is directly discriminatory may be yet offend against guarantee of equal protection if it confers upon the executive or administrative authority an unguided or uncontrolled discretionary power in the matter of application of the law.
 
36. Therefore, we are of the view that the power exercised under Regulation 55(2) of the Chittagong Port Authority Employees’ Service Regulations, 1991 and Bangladesh Sangbad Sangstha Employees Service Regulations, 1995 was illegal as there was no guideline formulated for exercise of such power. Consequently, the order of termination made under those provisions of law cannot be sustained in law.
 
37. In Civil Appeal No. 506 of 2009, it is on record that though initially a departmental proceeding was initiated against the appellants and they were put under suspension pending inquiry, charge sheet-cum-show cause notices were served upon them to which the appellants gave reply denying the allegations brought against them. An inquiry committee was formed behind the back of the appellants and the said committee without following the procedure laid down in the Service Regulation, 1995 and without affording the appellants effective opportunity of hearing arbitrarily prepared a report which was never brought to the notice of the appellants. The order of termination dated 09.09.2003 was made under Regulation No.54(2) of the said Service Regulations, 1995. The employer having passed an order of termination simpliciter without any stigma and that the order having been challenged in a writ petition in the Court on the ground of mala fide and arbitrariness, the employer cannot be allowed to take a plea in the writ proceeding to the effect that in fact, the appellants were found guilty but the authority as an act of grace without inflicting punishment of dismissal awarded order of termination simpliciter.
 
38. Sitting in writ jurisdiction in the nature of certiorari over an order of termination simpliciter without stigma, the High Court Division was wrong in finding the appellants guilty of misconduct placing itself into the role of domestic Tribunal more particularly where admittedly the proceeding initiated was not concluded by service of second show cause notice with proposed punishment and by receiving reply thereof.
 
39. Although the employer passed the order of termination under Regulation 54(2) of the B.S.S. Service Regulations, 1995 in view of the impugned judgment of the High Court Division, the termination of services of the appellants is no longer termination simpliciter but has been converted into order of dismissal with stigma inflicted by the High Court Division.
 
40. Regulation 54(2) of the Bangladesh Sangbad Sangstha Employees Service Regulations, 1995 does not provide for any guideline for exercise of power of termination under this Regulation and as such, it is prone to and permits the authority its abuse and arbitrary and discriminatory exercise under this Regulation which renders Regulation 54(2) being violative of fundamental right guaranteed by Article 27 of the Constitution.
 
41. In respect of Civil Appeal No. 98 of 2011, the Chittagong Port Authority Employees’ Service Regulations, 1991 having not provided any guideline for exercise of the power of termination of the employees without assigning any reason is violative of fundamental right guaranteed by Article 27 of the Constitution. Regulation 55(2) of the Chittagong Port Authority Employees’ Service Regulations, 1991 has been resorted to in a manner and for the purpose and not intended by the legislature and as such, mala fide and arbitrariness of the respondents are apparent on the face of the record. The orders of termination of the appellants by the respondents have been made in abuse of Regulation 55(2) of the Chittagong Port Authority Employees’ Service Regulations, 1991 and as such, the same are dismissal in the garb of termination simpliciter and the High Court Division was wrong in discharging the Rule.
 
42. In Civil Appeal No. 506 of 2009, the authority will, however, be at liberty to initiate the departmental proceeding afresh against the appellants if it wants to do so.
 
43. In the light of the findings made before, both the appeals are allowed and the impugned judgments delivered by the High Court Division are set aside and the orders of termination impugned before the High Court Division are declared to have been passed without lawful authority and are of no legal effect.
 
Ed.