Rahima Begum Vs. Bangladesh and others, 3 LNJ (2014) 327

Case No: Writ Petition No. 7911 of 2012

Judge: Md. Badruzzaman,

Court: High Court Division,,

Advocate: Mr. Zahirul Alam Babar,,

Citation: 3 LNJ (2014) 327

Case Year: 2014

Appellant: Rahima Begum

Respondent: Government of Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2014-03-13


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
M. Moazzam Hussain, J.
   
And
Md. Badruzzaman, J

Judgment on
13.03.2014
  Rahima Begum
. . . Petitioner
-Versus-
Government of Bangladesh, Represented by the Secretary, Ministry of Local Government Rural Development Secretariat Bhaban, Dhaka and others
. . . Respondents
 

Constitution of Bangladesh, 1972
Article 102.
After an MLSS has been set in his/her job and starts to dream a life liveable as human the ruthless and unsparing attitude of the authority to find fault with the academic certificate and to remove the MLSS from his/her job is not in consonance with the purpose of law, justice or public policy.
The petitioner is none but a poor village woman and needs the job to ease her struggle for survival with her family not for making fortune.  If the VIII-pass certificate is so crucial for the job the question of its genuineness ought to have been settled as soon as possible after the completion of recruitment process. After an MLSS has been set in his/her job and starts to dream a life liveable as human the ruthless and unsparing attitude of the authority to find fault with the academic certificate and to remove the MLSS from his/her job is not in consonance with the purpose of law, justice or public policy. The UCCA authority has failed to notice that there is a marked difference between the job needed for survival and of persons holding responsible posts in the hierarchy. And for the precise reason the job of an MLSS, unlike others, is directly linked with his/her bread and butter loss of which directly affects his/her survival as human. . . . (14)

Constitution of Bangladesh, 1972
Article 102.
If the service rendered by the MLSS is otherwise satisfactory and not detrimental to the interest of the institution concerned mere defect/ flaw in his/her academic records, not detected at the entry stage or soon thereafter, should not be the ground for her removal.
The authority is doubtlessly empowered to take action against anyone irrespective of status for the interest of the institution but in case of taking the job of a menial they must of necessity be the slowest and act under only painful necessity where no other alternative is available. If the service rendered by the MLSS is otherwise satisfactory and not detrimental to the interest of the institution concerned mere defect/ flaw of his/her academic records, not detected at the entry stage or soon thereafter, should not be the ground for her removal. . . . (15)
 
Mr. Zahirul Alam Babar, Advocate
---For the Petitioner.

Writ Petition No. 7911 of 2012
 
JUDGMENT
Md. Badruzzaman, J:

On an application under Article 102 of the Constitution this rule nisi was issued calling upon the respondents to show cause as to why the orders of stopping salaries, other benefits and office work bearing Memo No. 982 dated 18.04.2011 (Annexures G and G-1) should not be declared to have been made without any lawful authority and is of no legal effect.

Facts, leading to the issuance of this rule, in short, are that the petitioner was appointed as M.L.S.S of Lohagara Upazila Central Co-operative Association Limited, Narail (shortly ‘UCCA’) under Bangladesh Rural Development Board (shortly ‘BRDB’) by appointment letter dated 10.05.2005 and she was serving in the said post with sincerity and honesty to the satisfaction of the authority concerned and was getting yearly increment with her salary. The petitioner on 23.6.2010 filed an application before Upazila Palli Unnayan Officer for yearly increment of Tk. 100/-. Upon such application the Upazila Palli Unnayan Officer issued a letter on 16.08.2010 asking the petitioner to submit her eight pass testimonial before the authority, though at the time of joining in the post the petitioner submitted eight pass testimonial issued on 12.3.2005 by Amada Maddomik Biddalaya authority. The petitioner gave details about submission of eight pass testimonial by a reply dated 13.02.2011 in response to show cause notice issued by the authority on 14.10.1010. But the respondent No. 4 all on a sudden by office memo No. 982 dated 18.4.2011 (Annexure-G) stopped her salary and restrained  from performing her office work with effect from April 2011 and the same respondent issued another office order under another memo using same memo number and date (i.e memo No. 982 dated 18.4.2011)  informing all concerned that he would not sign the salary sheet and cheque of the petitioner from April, 2011 ( Annexure G-1).

An inquiry was also held regarding the testimonial of the petitioner by forming an inquiry committee by the Amada Maddomik Biddaloya authority and after inquiry the committee found that the testimonial which has been submitted by the petitioner was correct and accordingly the committee  submitted a report on 03.05.2011 before the Head Master of the school and the Headmaster again issued a fresh certificate to the petitioner on the basis of the inquiry report and informed the matter to respondent No. 4 Upazila Palli Unnayan Officer, Lohagora, Narail by a representation dated 12.05.2011. The petitioner filed several representations on 9.5.2011, 11.5.2011 and 15.3.2012 by reference to inquiry report praying for withdrawal of the office orders dated 18.04.2011, payment of salaries and other benefits but the respondents did not pay heed to any of the applications. As a last resort the petitioner served a notice upon the respondents demanding justice through her engaged Advocate requesting them to withdraw /rescind the office orders dated 18.04.2011 but in vain. Having no other efficacious and alternative remedy available to the petitioner, she filed this application before this Division challenging the office orders dated 18.4.2011 and obtained the instant rule.

Mr. Zahirul Alam Babar, learned Advocate appearing on behalf of the petitioner submits that the impugned orders are ex-facie mala fide, illegal and arbitrary inasmuch as without holding any inquiry regarding the testimonial of the petitioner and without giving any notice of being heard of the petitioner respondent No. 4 Upazila Polli Unnayan Officer stopped payment of salary and other benefits including official works of the petitioner and as such the impugned orders are no orders in the eye of law. Learned Advocate further submits that the impugned order containing in Annexure-A is neither a suspension order nor a dismissal order according to service rules and this type of order is unknown to law. He next submits that till date no departmental proceeding has been initiated against the petitioner nor any formal suspension order is passed. But she has been deprived of the subsistence allowance which she would have been entitled had she been formally suspended.  Learned Advocate finally submits that considering the facts and circumstances of the case this rule should be made absolute with a consequential relief directing the authority to reinstate the petitioner in her service and to pay all arrear salaries and other benefits payable to her  for end of justice.

Respondent No. 4 entered appearance through separate vokalatnama and filed an affidavit-in-opposition denying the allegations made in writ petition in their material particulars but no one appears to oppose the rule at the time of hearing.

 However, we have gone through the affidavit-in-opposition submitted on behalf of respondent No. 4, where it has been asserted, inter alia, that the writ petition is not maintainable as the allegations involve disputed question of fact regarding the genuineness of the academic certificate of the petitioner. His positive case is that writ petitioner at the time of entering in the service as MLSS under BRDB submitted ‘class VIII pass certificate’ from Amada Maddhomik Biddalaya, Lohagora. Thereafter a question of genuineness of the certificate arose   and the respondent No.4 vide Memo. No. 541 dated 16.8.2010 asked for an explanation from the petitioner and the petitioner gave a reply on 13.2.2011 which was not satisfactory.  Moreover, in reply dated 30.10.2010 to letter dated 9.12.2010 sent by respondent No.4,  the Headmaster of   Amada Maddhomik Biddalaya  denied issuance of certificate in favour of the petitioner. Respondent No. 4 also formed  3(three) members inquiry committee on 31.01.2012 to inquire regarding the testimonial of the petitioner issued by Amada Maddomik Biddalaya pursuant to the decision taken by the executive committee of Lohagara U.C.C.A Limited on 26.01.2012. But the said committee submitted a report on 28.2.2012 stating that they were unable to inquire the matter as they faced pressure from various quarters.   
We have heard the learned Advocate for the petitioner and perused the records of the case.

It is admitted that the petitioner joined in the service under BRDB as MLSS in the year 2005 and has been serving as such in the office of UCCA, Lohagora, Narail since the date of joining. It is the case of the petitioner that she was serving in the office of respondent No. 4 with full satisfaction of her higher authority but when she prayed for another increment in the year 2010, the respondent No. 4 for the first time raised the question of genuineness of her VIII pass testimonial filed at the time of joining in her service. The Headmaster of Amada Maddhomik Biddalaya on 30.12.2010 sent a letter to the respondent No.4 stating that there was no information about the petitioner in the school record and the certificate produced before him was not issued by the said school. Nearly four months thereafter, the respondent No. 4 all on a sudden issued the impugned order dated 18.4.2011 stopping payment of salary, other allowances and office duties as aforesaid. Office order dated 18.4.2011 is quoted verbatim below:
“উপজেলা পল্লী উন্নয়ন অফিসারের কার্যালয়
লোহাগড়া, ইউসিসিএ লিঃ
লোহাগড়া, নড়াইল
স্মারক নং- ৯৮২                                 তারিখঃ ১৮-৪-২০১১
অফিস আদেশ
বিগত ১৩/০৪/২০১১ইং তারিখে অনুষ্ঠিত ইউসিসিএ লিঃ এর কার্যনির্বাহী পরিষদের ৬নং আলোচ্য সুচীর আলোচনায় সর্বসম্মত সিদ্ধান্ত মোতাবেক মোসাঃ রহিমা বেগম এম,এল,এস,এস/পিয়ন এর শিক্ষাগত যোগ্যতার সনদপএের বৈধতার বিষয়টি সুরাহা না হওয়া পর্যন্ত লোহাগড়া ইউসিসিএ লিঃ এ কর্মরত মোসাঃ রহিমা বেগম, এম,এল,এস,এস এর যাবতীয় অফিসিয়াল কার্যএ্রম এবং বেতন ভাতাদি স্থগিত থাকবে। এ আদেশ এপ্রিল/২০১১ মাস হতে কার্যকর হবে।  
স্বাক্ষর অম্পষ্ট
উপজেলা পল্লী উন্নয়ন অফিসার
(বিআরডিবি)
লোহাগড়া, ইউসিসিএ লিঃ ”

In the meantime upon an application of the petitioner dated 27.5.2011 the managing committee of  Amada Maddomik Biddalaya decided to inquire about the genuineness of the certificate by forming a three members inquiry committee dated 30.4.2011, who after inquiry found that the petitioner was a student of Amada Maddomik Biddyalaoy and submitted a report on 3.5.2011 to that effect. As per said report the headmaster again issued a fresh testimonial and forwarded a letter to the respondent no.4 on 12.5.2011 explaining as to why he failed to give proper information earlier.

It also appears from the report of the inquiry committee dated 28.2.2012(Annexure-Uma) that after lapse of nine months from passing the impugn order the respondent No.4 formed a three- member inquiry committee on 31.1.2012 to inquire about the genuineness of the certificate of the petitioner but the said inquiry committee failed to submit any report stating that they had embarrassment to inquire into the matter and recommended to inquire by high officials of the department. But the respondent No.4 did not form any such inquiry committee till date.

A glance on the successive facts right from asking the petitioner to submit testimonial before paying increment down to the 28th day of February, 2010 i.e nine months from passing the impugned order suggests to our mind a number of landmarks in this case, namely, asking for filing “VIII-Pass Certificate” after five years of undeniably  satisfactory service; her written statement  that at the time of entry into service she submitted it;  at the instance of the respondents the petitioner’s school although primarily gave a negative reply but after thorough inquiry admitted the genuine-ness of the petitioner’s certificate and the headmaster also informed the respondent No.4 about the development expressing regret for the earlier negative report; several written requests thereafter made by the petitioner for withdrawal of the order stopping her salary etc.; merciless and unsparing attitude of the authority  to the requests; unanimous decision of the of  UCCA-Executive Committee to stop her salary and allowances;  formation  of a  three-member committee to inquire into the matter which, however, felt embarrassed; proposal for forming high power inquiry committee  and keeping the issue still alive, as appears from the affidavit-in-opposition.

The affidavit-in-opposition does not suggest that the UCCA and BRDB are corruption-free or effectively eradicated all sorts of corruption and misuse of official powers at higher levels and now taken up the agenda to clean up the bottom. Where unbridled corruption at the hierarchy has eaten up all our important state institutions and no effective measures could be taken against the evil we find no logic in declaring crusade against an MLSS who needs the job for bare survival not for pomp and grandeur in life  raising the trifling question of genuineness of her VIII-pass Certificate.

As the story goes, the petitioner entered the job producing all necessary papers including her ‘VIII- pass Certificate’ issued from a local school. Meanwhile five years of her satisfactory service had been completed.  After the question was raised, the headmaster informed the authority about the genuineness and issued a fresh certificate for the petitioner although primarily his sound was negative. Still the authority was not satisfied and seemingly could never be satisfied till her complete removal from the post. 

The petitioner is none but a poor village woman and needs the job to ease her struggle for survival with her family not for making fortune.  If the VIII-pass certificate is so crucial for the job the question of its genuineness ought to have been settled as soon as possible after the completion of recruitment process. After an MLSS has been set in his/her job and starts to dream a life liveable as human the ruthless and unsparing attitude of the authority to find fault with the academic certificate and to remove the MLSS from his/her job is not in consonance with the purpose of law, justice or public policy. The UCCA authority has failed to notice that there is a marked difference between the job needed for survival and of persons holding responsible posts in the hierarchy. And for the precise reason the job of an MLSS, unlike others, is directly linked with his/her bread and butter loss of which directly affects his/her survival as human.

The authority is doubtlessly empowered to take action against anyone irrespective of status for the interest of the institution but in case of taking the job of a menial they must of necessity be the slowest and act under only painful necessity where no other alternative is available. If the service rendered by the MLSS is otherwise satisfactory and not detrimental to the interest of the institution concerned mere defect/ flaw of his/her academic records, not detected at the entry stage or soon thereafter, should not be the ground for her removal.

Back to the formal issue, it appears that the action taken by the authority is too harsh and drastic. More so, the nature of order stopping salary, allowances and keeping off the indicted employee from duty is unheard of and not known to law. Law provides entitlement of allowance to the   public servants or employees of other public bodies under suspension. Here the poor lady was deprived of everything. No norm of disciplinary action in passing the order has been followed.

Given the facts and circumstances of the case, we are of the view that respondents trave-lled far beyond their jurisdiction in issuing the impugned orders dated 18.4.2011 (Annexure -G and G-1).

This rule merits consideration which should be made absolute with consequential relief.

In the result, the rule is made absolute, however, without any order as to costs. The two office orders bearing same memo No. 982 dated 18.4.2011 (Annexure-G and G-1) are declared to have been passed and issued without lawful authority and are of no legal effect. The respondents are directed to re-instate the petitioner in her service and to pay all arrear salaries and other service benefits from April 2011, within 2(two) weeks from the date of receipt of this judgment.

Communicate copies of the judgment at once.

        Ed.