Case No: Writ Petition No. 9838 of 2014
Judge: Syed Refaat Ahmed, J.
Court: High Court Division,
Advocate: Mr. M. Belayet Hossain, Advocate, Ms. Kazi Zinat Haque, DAG,
Citation: 2018(1) LNJ 276
Case Year: 2017
Appellant: Nurjahan Ruzi
Respondent: Bangladesh represented by the Secretary, Ministry of Home Affairs, Government of People’s Republic of Bangladesh, Bangladesh Secretariat, Ramna, Dhaka and others
Subject: Constitution of Bangladesh, 1972, Police Academy Manual, 2004, Bengal Police Regulations, 1943
Delivery Date: 2018-06-04
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Syed Refaat Ahmed, J
Md. Salim, J
Bangladesh represented by the Secretary, Ministry of Home Affairs, Government of People’s Republic of Bangladesh, Bangladesh Secretariat, Ramna, Dhaka and others
Constitution of Bangladesh, 1972
Police Academy Manual, 2004
Rules 7 and 63
Bengal Police Regulations, 1943
Upon scrutiny this Court has arrived at the conclusion that there is no mandatory or directory requirement in the applicable law seeking a disclosure of the fact of a divorce or indeed explaining the present status of singlehood arising out of a divorce. It is against such backdrop that the Petitioner, this Court finds, to all intents and purposes was a divorcee on the material dates of not only submitting her application for recruitment but indeed during the entire length of her training period and subsequent discharge. She was, in other words, single at all material times. She was, therefore in this Court’s view, after the fact of divorce a person neither entitled to nor a contributory to a “marital surplus” arising in the context of a subsisting marital relationship and a current and extant matrimonial status on the date she filled her application for a position with the Police Force. In the present case, happily, this Court finds no express exclusion of the right to be heard, thereby, making it all the more incumbent upon the Respondent No. 6 to have extended the Petitioner a due opportunity of being heard prior to arriving at the impugned decision of 23.7.2014. That element of basic fairness is found to be clearly absent in the facts. Such denial of access to fair procedure and subscription to the audi alteram partem rule, this Court finds, amounted in the facts both to a rejection of the first principles of eternal justice and a blatant disregard of the “essentials, of justice”. Such denial in the Court’s view further aggravated the prejudice caused to the Petitioner in the facts and circumstances and is, therefore, duly taken into account by this Court in declaring the impugned Order to have been passed without any lawful authority and, consequentially, to be of no legal effect. . . . (9 and 16)
R.V. Secretary of State for the Environment Vs. Nottinghamshire CC as per Lord Scarman,  1 All ER 199, 202 (HL); R. Vs. Secretary of State for the Environment, ex parte Brent London Borough Council,  3All ER, 321 [QBD]; Razia Sattar Vs. Azizul Huq, (2007) 1 BLC 357; R Vs. Goskin, (1799) 8 Term Rep. 200 and by Lord Campbell CJ in Ex parte Ramsay, (1852) B. 173) and a blatant disregard of the “essentials, of justice” (see, Osgood vs. Nelson reported in (1891) 2 Ch. 84) ref.
Mr. M. Belayet Hossain, Advocate with
Mr. Kamruzzaman Bhuiyan, Advocate and
Mr. M. Mahmudul Hasan, Advocate
. . .For the Petitioner.
Ms. Kazi Zinat Haque, DAG with
Mr. Zakir Hossain Ripon, AAG
. . . For the Respondents
Syed Refaat Ahmed, J: In this Application under Article 102 of the Constitution a Rule Nisi was issued calling upon the Respondents to show cause as to why the impugned Order of discharge dated 23.7.2014 issued by the Respondent No. 6, Principal, Bangladesh Police Academy, Sarda, Rajshahi discharging the Petitioner from her service (Sub-Inspector of Police-External Cadet) in the Bangladesh Police should not be declared to have been passed without any lawful authority and is of no legal effect (Annexure-‘C’) and/or such other or further Order or Orders passed as to this Court may seem fit and proper.
2. The Petitioner comes before this Court as one who, upon completion of all preliminary requirements and qualifying tests, joined the Bangladesh Police as Sub-Inspector (External Cadet) on 23.11.2013. During the Petitioner’s training period one Md. Nasir Uddin Khan, son of Md. Emar Uddin Khan (Zelukha) of Tangail lodged a complaint with the Respondent No. 6, Principal, Bangladesh Police Academy stating that the Petitioner had concealed her marital status in her application for the post she holds. The Petitioner asserts that the Respondent No. 6, resultantly, after conducting an investigation issued an Official Order dated 23.7.2014 discharging her from the “Basic Training Program” purportedly under Rules 7(b)(i) and 63 of the Police Academy Manual, 2004 [“the Manual”] and Article 741(3)(b)(iii) of the Bengal Police Regulations, 1943 [“the Regulations”] on the ground of concealing her marital status at the material time. The cited Rules read thus:
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wk¶vbwem mnKvix cywjk mycvi e¨ZxZ Ab¨ †h‡Kvb cÖwk¶Yv_©x‡K wZwb GKv‡Wgx †_‡K ewn¯‹vl A_ev eiLv¯’ wKsev PvKwiPy¨Z A_ev AcmviY Kwi‡Z cvwi‡eb|ÕÕ
ÔÔ63z A‡hvM¨ K¨v‡WU‡`i PvKzix nB‡Z Ae¨nwZt wcÖw›mc¨vj hw` GB g‡g© wbwðZ nb †h, †Kvb K¨v‡WU `¶ cywjk Awdmvi nB‡Z cvwi‡e bv Zvn‡j wZwb Zv‡K GKv‡Wgx‡Z _vKvKvjxb †h †Kvb mg‡q PvKzix nB‡Z Ae¨nwZ w`‡Z cvwi‡eb| kvixwiK ev gvbwmK A‡hvM¨Zvq †h †Kvb K¨v‡WU‡K PvKzix nB‡Z Ae¨nwZ cÖ`v‡bi c~‡e© wcÖw›mc¨vj hw` cÖ‡qvRb g‡b K‡ib Zvnv nB‡j Zvnv‡K ¯^v¯’¨MZ cix¶v KivB‡Z cvwi‡eb| GB ai‡Yi Ae¨nwZ cÖ`v‡bi Av‡`‡ki wei“‡× †Kvb Avwcj Kiv hvB‡e bv|ÕÕ
The relevant provisions of Article 741 are quoted herein below:
“741. Appointment of Sub-Inspectors, Government of India Act, 1935, and 2, Act V 1861 read with 243 of the Government of India Act. 1935- …
(III) Period of probation, confirmation, discharge or reversion.
Confirmation or discharge or reversion.-
(iii) The Principal, Police Training College may at any time discharge a directly appointed cadet under training at the college, if he is satisfied that such cadet is not likely to make a satisfactory police-officer”
It is submitted that the impugned Order of Discharge was issued without giving any notice to the Petitioner or extending her an opportunity to be heard.
3. Asserting further that she did not conceal anything from the concerned authorities about her personal details at any material date, the Petitioner brings the following facts before this Court. She states that on 4.4.2002, while still a minor, she was forced into a marriage with one Mr. Md. Alamgir Hossen Sarker from Comilla. Subsequently, upon attaining majority, and due to her husband’s maltreatment and ill-behavior she divorced him [Talaq-e-Tawfidh] on 2.3.2003 by swearing an Affidavit. It is submitted that notices of Divorce were duly served on Mr. Sarkar. Since then the Petitioner has been living as a single person and it is predicated on these facts that the Petitioner declared her status as “unmarried” in her job application. It is emphasized that as the Petitioner divorced her husband a long time ago, the Petitioner genuinely believed that the word ÔÔAweevwnZÕÕ or “unmarried” would suffice to explain her status as a person who was not in a current state of matrimony on the date of her application for the post, that is, she not being in wedlock at the relevant time, a case of concealment, therefore, could not conceivably arise in the facts. Conversely, it is submitted, concealment could plausibly have been pleaded by the Respondents had she actually been in wedlock at the material time. It is emphasized that the Petitioner after a brief period of marriage divorced her husband in 2003, i.e., more than six years before filing of the application for the post of External Cadet Sub-inspector.
4. It is submitted further that the Order of Discharge was issued without issuing any notice to show cause to the Petitioner, thereby, denying her an opportunity to present and defend her case before the investigating Officer. The impugned Order, therefore, being issued in contravention of an essential principle of natural justice i.e., audi alteram partem is submitted to be without jurisdiction and hence void.
5. The learned Advocate for the Petitioner, Mr. M. Belayet Hossain submits at the outset that the impugned Order lacks any nexus between the alleged disqualification and the impugned decision. He submits that it was necessary for the Respondent No. 6, Principal, Bangladesh Police Academy to arrive at a decision only after taking into account the fundamental and collateral facts and ascertaining the same objectively upon granting the Petitioner an opportunity of presenting her case. This, in the facts, was not done leading the concerned authority to whimsically, peremptorily and in a draconian fashion discharge the Petitioner from the “Basic Training Programme” as well as from service. Mr. Hossain argues that the all facts point at the Respondent No. 6 having issued the impugned Order of Discharge for a purpose other than intended by the legislature, thereby, making the impugned Order an absolute nullity.
6. The Respondent No. 3, Inspector General of Police (“IGP”), Bangladesh Police, Police Headquarters, Dhaka upon filing an Affidavit-in-Opposition states that one of the conditions for filing an application for the post of Sub-Inspector was that the applicant should be unmarried but at the time of filing such application the Petitioner concealed the information about her marital status and that she was, consequentially, lawfully discharged on 23.7.2014.
7. The learned Assistant Attorney General, Mr. Zakir Hossain Ripon submits that in Article 750 of the Regulations it is stated that if the results of verification into an allegation are unsatisfactory and the statement of any candidate is found to be false, his/her name shall be struck off the employment register. Moreover the clear requirement, the learned AAG asserts, of singlehood is laid down in Article 741(g)(iv) of the Regulations to the effect that a probationer shall be unmarried and shall remain so till completion of training. The learned AAG in that context presses the point that the Petitioner violated the recruitment rules by providing a statement on her marital status that was found to be false upon inquiry, thereby, justifying her discharge from the training programme under Article 741 read with Rules 7(b)(i) and 63 of the Manual. He rationalizes the Respondents’ position by highlighting that the Bangladesh Police as a disciplinary force as well as a law-enforcing agency requires of its recruits a high- degree of integrity, honesty and strength of character that the Petitioner is found to have lacking given her attempt at suppressing her personal information and as a result of such failure at disclosure of essential facts she was aptly discharged from the training programme.
8. It must be emphasized at the outset that by the very nature of the Rule Nisi issued predicated on the facts above, this Court is asked to delve not only into the merits or demerits of the impugned decision but also the adequacy and sufficiency of the process through which such decision was arrived at. It is here that this Court finds satisfaction in Mr. Belayet Hossain’s reliance on the core notion of “accountability” in a decision making process within a constitutional régime. Indeed, as this Court appreciates, within our constitutional dispensation accountability of action and decision is to be recognized as an essential democratic norm. In this regard, this Court wholly subscribes to the ratio in Bangalore Medical Trust vs. B.S. Muddappa and others reported in AIR 1991 SC 1902 that in a democratic set-up the people or a community being sovereign the exercise of discretion must be guided by the notion of accountability. In identifying “accountability” as a core democratic norm, the Indian Supreme Court drew in turn on the notion of “sovereignty of citizen” in the Bangalore Medical Trust Case thus at para 47, page 1921:
“The executive or the administrative authority must not be oblivious that in a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exercise of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if computing interests of members of society is involved.”
It is evident from the impugned Order and the cited provisions of the Regulations and the Manual that a discretion has indeed been reposed in the Respondent No. 6 to arrive at a considered finding and it is for this Court now to examine how that discretion may have been exercised. In doing so, this Court also finds that the notion of “accountability” is in turn inherent in the concept of due process encapsulated, in particular, in Article 31 of the Constitution the application of which goes to the very core of the Petitioner’s case before us. Article 31, as this Court understands it, has two essential components, i.e., procedural and substantive due process. Accordingly, it is for this Court to examine whether in the exercise of the discretion reposed in the Respondent No. 6 standards of procedural and substantive fairness were adhered to as would have led the concerned decision-maker to appreciate the balancing act needed to be undertaken by him and/or at his behest to weigh and appreciate the inconvenience of the alleged non-compliance by the Petitioner and indeed prejudice, caused to the Respondents vis-à-vis the inconvenience, and indeed prejudice, caused to the Petitioner through the impugned Order otherwise reflecting an overly rigid, and in all likelihood, a misconceived application of the governing provisions of the law.
9. It is this Court’s finding that such balance was indeed not struck in the facts by the Respondent No. 6 and this stemmed from not only a misconceived requirement of disclosure of personal status by the applicant-Petitioner but also a misdirected inquiry into the primacy of her marital status in the facts. It is here that this Court finds that the requirement under the law is of a disclosure of marital status current and extant as evident from an existing state of wedlock at the material time i.e., on the date of submission of the application of External Cadet Sub-Inspector. Upon a closer scrutiny it is evident to this Court that the inquiry report and the impugned Order acknowledge the fact of such marital status having long been terminated by an act of divorce several years prior to the date of application and presumably the date on which any legal obligation attached to the Petitioner to disclose here marital status. In the facts, the question more aptly posed to this Court is whether on the material date of application the material issue was indeed not only a requirement under the law of disclosure of a subsisting marriage but additionally also of a status of singlehood stemming from a divorce already having taken place. It appears to this Court that the Respondents have veered towards an unauthorized scrutiny on that latter circumstance, thereby, unduly, unreasonably and unfairly burdening the Petitioner with an obligation of disclosure not sanctioned or required in law. In other words, the Respondents’ actions have constrained this Court to consider whether there was a legal compulsion on the Petitioner on any material date to disclose that she is a divorcee. Upon scrutiny this Court has arrived at the conclusion that there is no mandatory or directory requirement in the applicable law seeking a disclosure of the fact of a divorce or indeed explaining the present status of singlehood arising out of a divorce. It is against such backdrop that the Petitioner, this Court finds, to all intents and purposes was a divorcee on the material dates of not only submitting her application for recruitment but indeed during the entire length of her training period and subsequent discharge. She was, in other words, single at all material times. It is found by this Court that the nexus ostensibly sought to be drawn by the Respondent No. 6, Principal, Bangladesh Police Academy between the Petitioner’s earlier state of matrimony and the Order of Discharge was in the facts irreversibly disrupted and severed by the acknowledged fact of divorce as a significant supervening act with equally significant substantive consequences affecting the personal status of the Petitioner. She was, therefore in this Court’s view, after the fact of divorce a person neither entitled to nor a contributory to a “marital surplus” arising in the context of a subsisting marital relationship and a current and extant matrimonial status on the date she filled her application for a position with the Police Force.
10. Eric A. Posner in “Law and Social Norms” (New Delhi: University law Publishing Co. Pvt. Ltd, 2000) defines “marital status” generally as a “cluster of goods” and, in particular, as “the goods and services that a person obtains by entering a long-term, exclusive intimate relationship…. The marital surplus consists of the benefits from having children, the emotional benefits from companionship and sexual intimacy, mutual aid, and many other valuable goods and services”. Posner, significantly, draws a nexus between “marital surplus” and “marital obligations”. A notable component of such obligations in a “modern” family is that both the husband and the wife are seen, and indeed expected, to engage in market labour and contribute to the household. In that context both husband and wife contribute to the “marital surplus” and are the consumers thereof in a matrimonial setting.
11. In the facts, this Court finds in the Petitioner’s status of singlehood resulting from her divorce a condition of being unattached from any relationship that would obligate her even remotely both to contribute to and partake of anything akin to a “marital surplus”. If the Respondents’ argument is that the demand of the position applied for of singlehood is predicated on a freedom from marital obligations as otherwise may detract and distract from a single-minded focus and commitment to public service, then in this Court’s view, they could not have found anyone better suited than the Petitioner to satisfy that criterion.
12. Premised on the above, it is found that it was incumbent upon the Respondent No. 6, upon a proper inquiry, to be apprised that the Petitioner was not after the fact of divorce a person to whom any matrimonial status attached on any material date. In other words, she was not on any date material to the concerned Respondents who presided over her employment affairs a person who was in a subsisting wedlock manifested in a long-term exclusive and intimate relationship with another person. There is nothing in this case as submitted by and on behalf of the Respondent Nos. 3 and 6 IGP and Principal respectively that indicates that at any material date and time the Petitioner remained a beneficiary of the marital surplus in the form of a capacity to have children from an existing matrimonial status or otherwise benefit from such marital status or was indeed in a mutually dependent and legally sanctioned intimate relationship with any other person or indeed the individual identified as her former husband Mr. Md. Alamgir Hossen Sarkar.
13. It is in this context that this Court reiterates its finding that the Respondent No. 6 wittingly or unwittingly misread the requirement in the law and resultantly misdirected himself, and fatally so, on the significance attached to that misconstrued requirement of law that has unavoidably resulted in seriously prejudice caused to the Petitioner. It is here that a question arises of the objective tools of exercise of discretion that are presumed to be available to a decision-maker as the Respondent No. 6 in arriving at a decision. The fundamental requirement of fairness is that the Principal’s satisfaction or opinion had to be based on objectively determined reasonable grounds. It was never open to him to simply fancy something as being mandated in law and form an opinion without reference to identifiable objectives standards. But the said Respondent No. 6, Principal having proceeded to act whimsically, the question aptly arising for this Court is of gauging the sufficiency of that opinion against what is known as the “absurdity test” (R.V. Secretary of State for the Environment vs. Nottignhamshire CC as per Lord Scarman reported in  1 All ER 199, 202 (HL). Moreover in R. vs. Secretary of State for the Environment, ex parte Brent London Borough Council reported in  3All ER, 321 [QBD] the Court warned against a too mechanical and impersonal attitude in the executive’s dealing with any given citizen. Fundamental to the ratio of that Queen’s Bench Division case, as this Court reads it, is that adherence to overly-rigid policies without consideration of special circumstances is bad in law and any act predicated on such inflexibility is open to judicial review. The message sent out by that decision to any administrative authority as the Respondent Nos. 3 and 6 in the present instance is to treat a citizen with personal consideration. An inflexible attitude resulting in a peremptory decision necessary, as is true of the impugned Order of the Petitioner’s discharge, in the Court’s view, negates the opportunity for such personal consideration.
14. In this context this Court finds that the statements of the Respondent No. 3 IGP in the Affidavit-in-Opposition that the contended or alleged suppression by the Petitioner of her marital status bears a direct causal link to this country’s peace and security fails the absurdity test. It is not understood by this Court, even if the specific requirement of the law was also of an applicant divulging her status of singlehood brought on by the act of divorce, how any act of concealment of information of a highly private act of divorce long ago would have a direct bearing on current national security interests. That argument by the IGP is, therefore, far-fetched, defies common sense and comprehension and fails the reasonableness test in arriving at a coherent and fair decision. In that case, it can very well be argued that the significance of the balancing and weighing exercise that any decision-maker must undertake under a constitutional régime between the prejudice caused to an individual against that caused to the larger community was completely lost on the Respondent No. 6, Principal in the facts, thereby, fatally eroding the legality of his process of inquiry and the impugned outcome thereof.
15. Predicated on the above, this Court finds that at no material date in this case was the Petitioner negotiating with a spouse, society or employers as a married woman for her share of the marital surplus in her matrimonial home either as a contributory or a beneficiary. Rather, she had long freed herself of all trappings and incidences of wedlock in favour of a single-minded pursuit of her career within the Police Force. In this she was waylaid by the misdirected probe by the Respondent No. 6 into her credibility and suitability for service. Resultantly, her career prospects were unduly and illegally snuffed out by a peremptory Order of Discharge. It is found that there is no discretion or authority reserved to the Respondent No. 6 under the above cited provisions of the Manual and the Regulations to so nip the Petitioner’s employment prospects in the bud. Accordingly, the impugned Order of 23.7.2014 must be struck down as being wholly arbitrary and of no legal effect.
16. There is of course the other aspect to the Petitioner’s case of she being denied any reasonable opportunity to present her side of the case prior to the impugned decision being arrived at. It is to be noted that the Petitioner here draws on the element of procedural due process inherent in Article 31 of the Constitution and which provision, in this Court’s view, forms the bedrock of the Petitioner’s case and indeed the maintainability of this Writ Petition. The Court is reminded here of the legal truism that the right to due process is conferred not by legislative grace, but by constitutional guarantee (Cleveland Board of Education vs. Loudermill reported in (1985) 470 US 532). That guarantee, it is found, is an essential constituent of the right to protection of law guaranteed under Article 31 of our Constitution. In applying that principle to the present case it is noted that the cited provisions of the Manual and Regulations do not expressly exclude the Petitioner’s right to be heard under the circumstances. It is noted, however, that even in an extreme hypothetical scenario of the principle of natural justice being wholly excluded by statute, our Courts