HIGH COURT DIVISION
Special Original Jurisdiction)
Quazi Reza-ul Hoque J
ABM Altaf Hossain J
Durjoy Dev …………
…………Petitioner
vs
Khulna University of Engineering & Technology, Khulna and others ………….Respondents
Judgment
September 8th, 2013
Constitution of Bangladesh, 1972
Article 102(2)(a)(ii)
University should have afforded an opportunity to the petitioner to get a copy of inquiry report and should have afforded him with the opportunity to appear before the inquiry committee to defend himself and/or controvert the allegation as raised by the University. University have seriously failed to maintain the minimum requirement of fairness before such action taken against the petitioner.
It is our concern that when a person’s good name, reputation, honour, or dignity is at wager because of what the University is doing to him, the minimum requirement of the law must be satisfied. It hardly need to be said that if a student, as a result of a day’s suspension, suffers a blow to his self-esteem or identical psychological harms will flow from many others routine, Before taking any detrimental decision against the petitioner, the authority should have dealt with the mater very sparingly.
University of Dhaka vs Zakir Hossain, 16 DLR (SC) 722 and Kanda vs Government of Malaya (1962) AC 322, ref.
Subrata Choudhury with Md Nasim Islam, Advocates-For the Petitioner:
Biswojit Roy. DAG with Md Jahangir Alam, AAG and Swarup Kanti Deb, AAG-For the Respondents.
Judgment
ABM Altaf Hossain .1: The Rule under adjudication, was issued on 4-3-2012 calling upon the respondents to show cause as to why the impugned decision of the Khulna University Engineering and Technology, Khulna in the 36th Emergency Meeting of its Academic Council held on 22-2-2012 circulated under the signature of its Registrar, respondent No.3, though the notification contained in memo No. LycÖwe/2803/35 dated 23-2-2012 (annexure-E), upholding/ approving the disciplinary action of student Discipline Committee, headed by the Vice-Chancellor, respondent No.2, and issued under the signature of its member-secretary, respondent No.4 vide memo No. LycÖwe/wWGmWweD/2012/1116(8) dated 8-2-2012 (annexure-C), expulsion of the petitioner from the university for a period of one year should not be declared to have been done without lawful authority and of no legal effect and/or pass such other or further order or orders as to this court may seem fit and proper.
The averments figured in the petition are as follows:
The Petitioner is a student of having a good academic background. He passed his School Certificate Examination in 2005 and Higher Secondary Certificate Examination in 2007 from Fauzdarhat Cadet College, Chittagong under the Secondary and Higher Secondary Education Board, Chittagong in Science Group securing grade point average 5,00 out of 5. He took admission into BSC Engineering Course on 7-2-2008 in Electrical and Electronic Engineering Department of the Khulna University of Engineering and Technology Khulna and successfully passed 7 terms obtaining CGPA 3.73 out of 4.00 each comprising 6 months covering 4 years and now he is studying in 4th year (2nd term). He is a student of good culture and is in association with the progressive student movement of the country. Respondent No.4 all on a sudden called explanation of the petitioner on 3-2-2012 on the allegation of unpleasant and undesired incident dated 1-1-2012 and 2-12012 in the university premises. The petitioner in response to the said allegations has been given reply to the respondent No.4 on 7-2-2012, denying all the allegations.
3. The Student Disciplinary Committee of the University of Khulna Engineering and Technology Khulna conducted investigations into the allegations, and in the absence of petitioner and without hearing him most arbitrarily arrived at a decision and communicated the decision to the petitioner on 8-2-2012.
4. The petitioner being aggrieved by the punishment, preferred Review Petition before respondent No.2 through Head of the Department, Electrical and Electronic Engineering Department on 13-2-2012 forwarded by the Student Advisers. The Academic Council of the said University in an Emergency Meeting dated 22-2-2012 took up the Review Petition of the aggrieved student and accorded decision contained in serial No.6 to 20 that included the petitioner in serial No.10, passed order and communicated the same to the petitioner on 23-2-2012 by the respondent No.3.
5. The Vice Chancellor without consulting the relevant students Disciplinary Committee under section II (3) of the Khulna University of Engineering and Technology Act, 2003 at his own. initiative constituted 5 (five) members committee making the respondent No.4 as President to investigate into the allegations against the indisciplined students responsible for unpleasant occurrence on 1-1-2012 and 2-1-2012, on the occasion of Annual Dinner at Amar Ekushey Hall in the University causing damage to the residence of the Vice Chancellor and two transport vehicles of the Vice Chancellor creating threatening situation for the family members with the instruction to give report with recommendation.
6. Being aggrieved with and dissatisfied by the order of respondents, the petitioner preferred the instant writ petition and obtained present Rule.
7. M. Subrata Choudhury, the learned Advocate appearing on behalf of the petitioner submits that the impugned awarded punishment has been operating upon the petitioner who is a final year student most harshly and his education career has been closed for 1 year, totaling 2 terms with current term and his future prospects in life has also been sealed off. He also submitted that punishment awarded is quite excessive against offence and decision taken against the petitioner is not covered by the statute and without due process of law and, as such, petitioner deserves protection guaranteed to him under Article 27 and 31 of the Constitution of Bangladesh.
8. Mr Choudhury further submits that there is no consistency between the allegations and charge framed in the show cause notice and allegations against the petitioner shown before the inquiry committee and awarded punishment without any specific allegations against him and, as such, the impugned decision is liable to be declared unlawful.
9. He also submits that the petitioner has been awarded punishment on the basis of Khulna University of Engineering and Technology Rules, 2004, which is a self developed Rules without any support of law and the petitioner has been given punishment without affording him any opportunity to appear before the inquiry committee for self-defence denying natural justice, and, as such, impugned decision is liable to be declared unlawful.
10. He also submits that the Khulna University of Engineering and Technology standing in the capacity of loco parents with the students is not expected to award harsh punishment to its wards that closed promising education career of petitioner for 1 year (2 terms) with current term leading to University; for the rest of life· and, as such, impugned decision under is liable to be declared unlawful.
11. He further submits that it is a norm of universal justice system that none should be condemned unheard. The petitioner is not involved in the charge of subversive state of activities or of discipline and he has been awarded punishment keeping the inquiry report secret and without allowing him to appear before the inquiry committee for self-defence denying natural justice and, as such, impugned decision is liable to be declared unlawful and with of no legal effect.
12. None appears for the University.
13. We have heard the learned Counsel for the petitioner, perused the substantive application and other materials of record in order to attain a proper decision.
14. On the basis of the submission of the learned Counsel for the petitioner we were traveled on annexure-“C” to the writ petition. It appears from this annexure that the respondent did not give petitioner any opportunity to present before the disciplinary committee in order to defend himself. Subsequently, the University Authority published notification of the same by issuing annexure-“E”. It has become from the annexures that none of the annexure contains evidence of personal hearing of the petitioner.
15. It appears from the impugned letter that an inquiry had been held without hearing the petitioner. It may be noted that the inquiry report does not disclose before making decision against the petitioner. The action was taken on the basis of inquiry report and – answer of the show cause notice. The petitioner was charged in the show cause notice for the occurrence dated 1st January 2012· and 2 January 2012 designing unpleasant and unexpected incident. But the inquiry committee was formed to investigating into the matter concerning an incident of annual dinner at Omor Ekushay Hall, dated 1st January 2012, and subsequent unpleasant incident on 2 January 2012. There is a divergency between two incidents. It can be said that the petitioner awarded punishment without any specific allegation, so far the impugned order in concerned.
16. The case in hand reminds us of the land mark case of University of Dhaka vs Zakir Hossain, reported in 16 DLR (SC) 722, wherein, it was held that:
“in all proceedings by whosoever held, whether judicial or administrative the principle of natural justice must be observed if the proceedings· might result in consequences affecting” the person or property or other right of the parties concerned”. This rule applies· even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceeding.”
17. It is also further held in the Zakir Hossain’s case that:
“The person, body or authority concerned must act in good faith. But it would appear that it is not bound to treat the matter as if it was a trail or administer oath or examine witnesses in the present of the person accused or give him facility for cross-examining the witnesses against him or ever to serve a formal charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him.”
18. In the case of Kanda vs Government of Malaya, reported in (1962) AC 322, Lord Denning said that:
“If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given a fair opportunity to correct or contradict them.”
19. It can be said from the above extracted principle that notice and hearing are to be given before the decision is taken in compliance the principle of “audi alteram partem”. Fairness demands an opportunity of hearing where the preliminary steps produce immediate legal consequences to the disadvantage of the person proceeded against. It may be argued that the principle of natural justice is the part of the procedural due process granted by Articles 31 and 32 of the Constitution. It is pertinent to be mentioned here that the university has carried out an inquiry, but did not ask the petitioner to appear before the inquiry committee in order to defend himself. It is lucid that the University Authority has utterly failed to follow the trend of principle of natural justice for wanting personal hearing and keeping the inquiry report undisclosed.
20. It is our concern that when a person’s good name, reputation, honour, or dignity is at wager because of what the University is doing to him, the minimum requirement of the law must be satisfied. It hardly need to be said that if a student, as a result of a day’s suspension, suffers a blow to his self-esteem or identical psychological harms will flow from many others routine. Before taking any detrimental decision against the petitioner, the authority should have dealt with the matter very sparingly.
21. We are not against retaining the set of discipline of the University, however, we are concerned in respect of the proceedings they have carried out against the petitioner. The University should have afforded an opportunity to the petitioner to get a copy of inquiry report and showed have afforded him with the opportunity to appear before the inquiry committee to defend himself and/or controvert the allegation as raised by the University. It is apparent that both the inquiry committee and the review committee concealed the inquiry report and also did not feel bothered to follow the principle of natural justice. Therefore, we are of the view that the University have seriously failed to maintain the minimum requirement of fairness before such action taken against the petitioner. The reasons stated above the Rule deserve to be made absolute.
22. In the result, the Rule is made absolute.
23. Hence, the impugned decision of the Khulna University Engineering and Technology, Khulna passed in the 36th Emergency Meeting of its Academic Council held on 22-2-2012 circulated under the signature of its Registrar, respondent No.3, though the notification containing memo No. LycÖwe/2803/35 dated. 23-2-2012 (annexure-E), upholding/approving the disciplinary action of student Discipline Committee, headed by the Vice-Chancellor, respondent No.2, and issued under the signature of its member- secretary, respondent No.4 vide memo No. LycÖwe/ wWGm WweD/ 2012-1116(4) dated 8-2-2012 (Annexure-C), expulsion of the petitioner from the university for a period of one year be declared to have been done without lawful authority and to be of no legal effect.
