Syed Jahangir Hossain Vs. Md. Moyenuddin and others, 52 DLR (AD) (2000) 140

Case No: Civil Appeal No. 65 of 1999

Judge: Kazi Ebadul Hoque,

Court: Appellate Division ,,

Advocate: Mr. Fazlul Karim,,

Citation: 52 DLR (AD) (2000) 140

Case Year: 2000

Appellant: Syed Jahangir Hossain

Respondent: Md. Moyenuddin and others

Subject: Principles of Natural Justice, Service Rules,

Delivery Date: 2000-4-26

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Latifur Rahman, CJ.
Mahmudul Amin Choudhury, J.
Kazi Ebadul Hoque, J.
 
Syed Jahangir Hossain
………………………….Appellant
Vs.
Md. Moyenuddin and others
………………………… Respondents
 
Judgment:
April 26, 2000.
 
Natural Justice, Service Matter
The order of removal having not been made by following the law and without giving the plaintiff any opportunity to show cause subsequent approval of the same by the Governing Body cannot make it lawful or valid……(11) 
 
Lawyers Involved:
Fazlul Karim, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record—For the Appellant.
Md. Moyenuddin Advocate—For Respondent No. 1
 
Civil Appeal No. 65 of 1999.
(From the judgment and order dated 16-6-1998 passed by the High Court Division in Civil Revision No. 3428 of 1997).
 
JUDGMENT
 
Kazi Ebadul Hoque J.
 
This appeal at the instance of the defendant No. 2 by leave is from judgment and order dated 16-6-1998 passed by a Single Judge of the High Court Division in Civil Revision No. 3428 of 1997 making the Rule absolute and setting aside the judgment and decree dated 8-7-1997 passed by the 2nd Court of Subordinate judge, Barisal in Title Appeal No. 7 of 1997 allowing the appeal and reversing the judgment and decree dated 25-11-1996 passed by the Assistant Judge, Bakergonj in Title Suit No. 80 of 1991.
 
2. Plaintiff-respondent No. 1 Md. Moyenuddin after passing BA (Honours, Examination and appearing in the Masters Examination in Economics for the year 1979 held in 1981 joined on 6-9-8 1 as lecturer in Economics in the Kalashkati Degree College on temporary basis on condition that his appointment would be confirmed after his passing the Masters Examination. Ultimately he passed the Masters Examination held in 1983 obtaining third class. He was allowed to continue in service by the Dhaka University authority on condition of his improvement of result within 3 years and the said period was further extended for 5 years upto 22-6-1997. He along with other teachers of the college made a written complaint against the appellant who is the Principal of that college about his illegal activities and as a result appellant made a complain to the defendant No. 6. Director General of Secondary and Higher Secondary Education Defendant No. 6 asked defendant No. 5, Principal Government Syed Hatem Ali College to hold an enquiry and submit a report and he submitted a report on 6-7-1991 against the plaintiff after making an enquiry. On the basis of that report defendant No. 6 directed the defendant No. 1, Chairman of the College and Thana Nirbahi Officer Bakergonj b Memo dated 31-7-1991 to remove the respondent No. 1 from the post of lecturer. Thereafter by Memo dated 10-8-1991 defendant No. 1 removed the respondent No. 1 from his service. Thereafter respondent No. 1 as plaintiff filed the aforesaid suit for declaring his order of removal as void, illegal collusive, fraudulent and without jurisdiction and also for mandatory injunction on the ground that no notice was served on him and he was not given any opportunity to show cause or defend himself before his removal and the said enquiry was held behind his back and defendant No. 5 submitted a report being unduly influenced by the appellant. His further case is that Governing Body of the College is the competent authority to appoint and remove teachers of the College and the defendant No. 1 has no such authority and the Governing Body of the College made no decision for his removal from the College and defendant No. 6 passed the order to remove the plaintiff without giving him an opportunity to be heard in a most arbitrary manner and he was removed before the expiry of the period for improvement of his result by appearing in the Masters Examination.
 
3. The suit was contested by the appellant by filling a written statement denying the material allegations and stating, inter alia, that the plaintiff was not qualified to be a teacher and got the appointment by deceitful means on temporary basis and he was removed from service on 10-8-1991 and the same was approved by the Governing Body on 20-8-1991 and before his removal an enquiry was made by the defendant No. 5 and on the basis of that enquiry report defendant No. 6 directed the Governing Body of the College to remove the plaintiff from his service.
 
4. After considering the evidence both oral and documentary and the law involved learned Assistant Judge by judgment dated 25 1-1996 decreed the suit holding, inter alia, that the procedure laid down under rules 15 and 16 of the Service Rules for the Non-Government College Teachers was not followed by the defendants in removing the plaintiff from service. Being aggrieved by the same appellant preferred Title Appeal No. 7 of 1997 and by judgment dated 8-7- 1997 the appeal was allowed by the Subordinate Judge who heard the same holding that removal of plaintiff from service was hot illegal and, as such, set aside the judgment and decree of the trial Court. Being aggrieved by the same respondent No. 1 moved the High Court Division in Civil Revision No, 3428 of 1997 and by the impugned judgment dated 16-6-1998 the Rule was made absolute and judgment and decree of the Court of appeal below was reversed and those of the trial Court restored.
 
5. Leave to appeal was granted to consider the following submissions:
 
“That the learned Single Judge of the High Court Division acted illegally in not holding that the suit is not maintainable and that the plaintiff is not entitled to a declaration of reinstatement in service as the plaintiff has failed to obtain requisite qualification for valid appointment as a Lecturer in Economics in the said College.”
 
“That the learned Single Judge of the High Court Division acted wrongly in setting aside the judgment of the lower appellate Court which arrived at findings on fact and law after consideration of the oral and documentary evidences on record.”
 
“That the learned Single Judge of the High Court Division acted illegally in holding that the defendants did not comply with the provision of Rules 15 and 16 of the terms and conditions governing the appointment and termination of College Teachers as provided in respect of Colleges affiliated to the University.”
 
6. Trial Court found that appointment of the plaintiff cannot be said to have been made illegally University having granted him time to improve his result upto 22-6-97 his removal from service before that date was not justified and removal of the plaintiff by defendant No. 1 under the direction of defendant No. 6 without following the procedure laid down under rules 15 and 16 of the Terms and Conditions of Service of Teachers of Non- Government Colleges by the Governing Body is wholly illegal. On the other hand, Court of appeal below found that the plaintiff failed to prove under the provisions of which law he got appointment as teacher of Kalashkati Degree College; that he having failed to improve his result upto the extended time on 22-6-97 his suit was not maintainable and that the Government of Bangladesh having not been impleaded the suit was bad for defect of parties. High Court Division found that Court of appeal below did not reverse the finding of the trial Court on the question of law referring to the relevant provisions of the Rules and there is no finding as to whether any notice was issued upon the plaintiff asking him to show cause nor there is any finding whether inquiry was held in accordance with the provisions of the Rules and that the Court of appeal below did not correctly assess the evidence and the findings have been made on irrelevant evidence. Considering the statute 32 of the First Statutes of the Dhaka University Order 1973 regarding power and functions of the Governing Body of the affiliated Colleges High Court Division found that no opportunity was given to the plaintiff to defend himself against the allegation leveled against him and considering Rule 16 of the Terms and Conditions of Services of Teachers of Non-Government Colleges Affiliated to the University, High Court Division further found that the provisions of Rule 16 was not followed though allegation brought against the plaintiff amounts to misconduct and without complying with the said provision no action could validly be taken against the plaintiff as a teacher.
 
7. Learned Advocate for the appellant contends that the respondent No. 1 is not qualified to be appointed as a lecturer of the College and he having failed to improve his result within the extended period High Court Division acted illegally in not holding that the suit was not maintainable and plaintiff was not entitled to a declaration of reinstatement in service.
 
8. There is no dispute that the respondent No. 1 was appointed as lecturer of Kalashkati Degree College on 6-9-1981 even before result of his MSS Examination was published and he was allowed to continue in service for 10 years though he failed to get Second Class in his MSS Examination. This shows that in a Mufassil College like Kalashkati Degree. College a better qualified teacher was not available. There is also no dispute that Dhaka University allowed 3 years time from 22-6-1989 to improve the result of those teachers who had failed to obtain Second Class in Masters Examination. Subsequently by memo dated 20-2- 1991 further five years time was allowed to such teachers to improve their results. Thus respondent No. 1 was required to improve his result by 22-6-97 as found by the trial Court as well as the Court of appeal below. Admittedly no notice was given to the respondent No. 1 before he was removed by the defendant No. 1 by memo dated 10-8-1991 in pursuance of memo dated 31-7-1991 sent to him by the defendant No. 6 informing defendant No. 1 to remove the respondent No. 1 from service as he was illegally appointed. Had any notice been served on him then respondent No. 1 could have shown that he was not illegally appointed and he had still time to improve his result upto 22-6-97.
 
9. Statute 32(2) (e) of the First Statutes of the Dhaka University Order, 1973 is as follows:
 
“Act according to the service rules and regulations in the matters of appointment, leave, disciplinary measure, scale of pay, allowances, pension, gratuity, etc. of staff of various categories as approved by the University:
Provided that the power of removal of teachers of affiliated non-government colleges by suspending, discharging or dismissing them shall vest in the Governing Body of the college concerned. Before any action is taken an opportunity should be given to the offending teacher to meet the charge against him.”
 
10. Relying on the aforesaid provisions of the said Statutes High Court Division correctly held that no opportunity was given to the plaintiff to defend himself as to the allegation leveled against him.
 
11. Thus it appears that the respondent No. 1 was removed from service on the ground that his appointment was illegal as he failed to obtain Second Class in the Masters Examination without giving him any opportunity to show cause against the allegation in violation of the provision of Statute 32(2)(e) of the First Statutes of the Dhaka University Order, 1973. It further appears that instead of the Governing Body respondent No. 1 was removed by the defendant No. 1, Chairman of the College Governing Body under the direction of the defendant No. 6, Director General of Secondary and Higher Secondary Education who was neither appointing nor removing authority of Non-Government College teachers. It is true that the order of removal of the respondent No. 1 by the defendant No. 1 was subsequently approved by the Governing Body in its meeting held on 20-8-1991. Had the plaintiff respondent No. 1 has been removed from service by following the procedure laid down in the said Statute and Rules 15 and 16 of the Terms and Conditions of Services of Teachers of Non-Government College Affiliated to the University then subsequent approval by the Governing Body of the order of removal of the plaintiff by the defendant No. 1 could have been cured. But the impugned order of removal having not been made by following the law and without giving the plaintiff any opportunity to show cause subsequent approval of the same by the Governing Body cannot make it lawful or valid. High Court Division committed no illegality in reversing the decree of the Court of appeal below and restoring the decree of the trial Court by the impugned judgment holding that the plaintiff is entitled to be reinstated in service as he was removed from service without giving him an opportunity to defend himself and complying with the provisions of Rule 16.
 
12. Next contention of the learned Advocate for the appellant is that in the meantime time allowed to the plaintiff to improve his result having expired on 22-6-1997 and he having not improved his result of Masters Degree he should not be thrust - upon the College to the detriment of the interest of the students to maintain better quality of education. In this connection respondent No. 1 has filed a Photostat copy of Memo No. 10-41/91/248 Education dated 22-4-92 sent by the Senior Assistant Secretary, Ministry of Education to the Director General, Secondary and Higher Secondary Education. From the said memo it appears that teachers having Third Class Masters Degree appointed in the Non-Government Colleges before 1-1-1982 and continuously serving for 12 years would be exempted from the condition of improvement of their result. Plaintiff having been appointed in 1981 before 1-1-1983 and he having served for more than 12 years from the date of his appointment (since order of his removal has been declared illegal up to the High Court Division) he is not required to improve the result of his masters examination. So we find no merit in this contention also.
 
13. From letter dated 29-10-98 sent by the appellant to the defendant No. 6 filed by the respondent No. 1 at the time of hearing of this appeal it appears that after the judgment of the High Court Division Governing Body of the College in its meeting held on 22-10-98 decided to reinstate the respondent No. 1 in service with salary and that no appeal would -be preferred against the said judgment. In spite of the same appellant preferred this appeal. It further appears from Memo No. 29586 dated 22-12-98 also filed by the respondent No. 1 at the time of hearing of this appeal that defendant No. 6 directed the defendant No. 1 to implement the judgment of the High Court Division.
 
14. In the above facts and circumstances and discussion made above we find no merit in this appeal.
 
In the result the appeal is dismissed without any order as to cost.
 
Ed.