High Court Division :
(Civil Revisional Jurisdiction)
Sharif Uddin
Chaklader J
AKM Shahidul Huq J
Towhidur Rahman (Md) Mandol Plaintiff-Respondent-Petitioner
vs
Principal, Rangpur Model College and others ………….Proforma-Defendant-Respondent Opposite-Parties”
Judgment July 30th, 2013.
Natural Justice
The expression “natural justice” may not be capable of precise definition. But the basic and fundamental requirements of “natural justice” are well known and have been repeatedly affirmed by courts of highest authority. Particular forms of legal procedure may not be necessary, but it is of the very essence of an enquiry and a decision that the person enquiring must be one without bias and should render the decision in a judicial spirit and in accordance with the principles of substantial justice. .. …. (14)
Jumuna Oil Company Ltd. vs SK Dey, 44 (AD) DLR 104; Bangladesh vs Commercial Trust of Bangladesh Ltd. 46 DLR (AD) 89; Mahinuddin vs Dhaka University 45 DLR 292; Professor Golam Azam vs Bangladesh, 45 DLR 423; Ehsanul Hoque vs General Manager, Agrani Bank, 42 DLR 60; Bangladesh vs Professor Golam Azam, 46 DLR (AD) 192; Bangladesh Steamer Agents Association vs Bangladesh, 33 DLR (AD) 177; Abul Hossain Akand (Md) vs Abul Kalam Azad, 49 DLR 257; Rafiqul Alam vs Secretary Ministry of Works, Government of the People’s Republic of Bangladesh, 49 DLR 456; Principal, Chittagong Medical College vs Shahrayar Murshed, 48 DLR (AD) 33; Shahrayar Murshed vs Chittagong Medical College, 48 DLR 482; Chairman, Board of Intermediate and Secondary Education, Jessore vs Md Amir Hossain, 56 DLR (AD) 24 and Md Idrisur Rahman vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 29 BLD 32. = 61 DLR 523 ref.
AJ Mohammad Ali, and MG Mahmud Shahin, Advocates-For the Plaintiff-Respondent-Petitioner.
Habibul Islam Bhuiyan, Advocate-For the Proforma- Defendant- Respondent-Opposite- Parties.
Judgment
Sharif Uddin Chaklader J: This Rule, at the instance of plaintiff, directed against judgment and decree dated 19-6-2011 passed by the learned Special District Judge, 1st Court, Rangpur allowing Title Appeal No. 177 of 2007 thereby dismissing Title Suit No. 27 of 2006 on reversing those dated 24-10-2007 passed by the learned Joint District Judge, 2nd Court, Rangpur, in charge of the Court of Senior Assistant Judge, Sadar, Rangpur.
2. Plaintiff instituted the aforesaid suit praying for decree for declaration that as per decision of governing body of Rangpur Model College, plaintiff having been appointed as vice principal of the aforesaid college is in service as Vice Principal.
3. It is the case of plaintiff, in brief, that, Rangpur Model College was established in 1995 and later on, was affiliated as a Degree College in 1998, of which plaintiff was appointed as the Lecturer of Physics at the time of establishment of the college. The governing body of the college on 8-12-2001 took a resolution to appoint plaintiff as vice-principal of the col1ege, and consequently the appointment letter was issued on 27-12-2001 and plaintiff joined the post of vice-principal on 29-12-2001.
The governing body of the college by resolution dated 17-2-2002 decided to include plaintiff in the scheme of Monthly Pay Order, 1996. The governing body vide its resolution dated 27-7-2002 decided to send relevant papers to the concerned authority to pay salary to the plaintiff as vice-principal. In the meantime plaintiff carried out various duties of the college and put his signature as the vice-principal of the college from 29-12-2001 to 30-12-2004. The plaintiff on many occasions represented the college as the vice principal of the college. Plaintiff observed that his designation on the attendance registrar was penned through and was written as Assistant Professor from 1-10-2004 to 30-12-2004 against which, he raised objection on 4-1-2005. Defendant No.1 did not give any reply to the objection of the plaintiff. Plaintiff on 29-11-2005 filed application to the Chairman of the governing body for redress his grievances but in vain. Plaintiff on 20-12-2005 filed applications for casual leave and also on 21-12-2005 and 22-12-2005 but defendant No.1 warned the plaintiff not to use the designation of vice-principal, against which plaintiff through his learned Advocate sent a legal notice upon the defendants on 26-12-2005 but of no effect, hence the suit.
4. The case of defendant No.1 is that, the governing body of the college appointed plaintiff as vice-principal purely on temporary basis, subject to the subsequent appointment as per rules of the National University; the notice for appointment was published in the daily ‘Juger Alo’ on 25-6-2002; 8 candidates including plaintiff filed application for the post of vice-principal; step was taken to have the representative present from National University as per rule; the college inspector vide memo dated 27-7-2003 refused the appointment raising the irregularities of the previous appointment of the plaintiff as Vice Principal; the governing body vide resolution dated 11-9-2004 was compelled to cancel the previous appointment of the plaintiff as vice-principal; the matter was communicated to the plaintiff on 10-11-2004, plaintiff took it normally and used his designation as Assistant Professor on many occasions; plaintiff filed Writ Petition No. 8480 of 2005 as Assistant Professor to get his arrear salary; obtained his salary for the post of Assistant Professor; plaintiff himself prepared the bill in February, 2006 and received the same by using his designation as Assistant Professor.
5. In the suit, plaintiff examined 3 witnesses including himself, on the other hand. defendants examined 1 witness.
6. Learned Joint District Judge, 2nd Court, Rangpur, in charge of Senior Assistant Judge, Sadar, Rangpur by judgment and decree dated 24-10-2007 decreed the suit. Defendant No. 1 moved before the learned District Judge, Rangpur in Other Appeal No. 177 of 2007, which was transferred to the 1st Court of Additional District Judge, Rangpur for hearing, who after hearing, allowed the appeal and dismissed the suit.
7. Mr AJ Mohammad Ali, learned Advocate, appeared for the plaintiff-petitioner, submits that, plaintiff was appointed by the governing body of the said College as Vice Principal on 27-12-2001, he joined in the said post on 29-12-2001 and was working in such post while decision of the governing body of the college was taken on 11-9-2004 removing plaintiff from the post of vice-principal without any show cause notice which violated the principle of natural justice, learned Joint District Judge, 2nd Court, Rangpur committed no illegality in decreeing the suit which court of appeal below failed to consider. Learned Advocate further submits that plaintiff challenged the decision of the governing body making them as defendant No.2 who did not prefer any appeal, but defendant No. 1 filed the appeal who has no locus standi, as such, the appeal ought to be dismissed as the appeal was filed by a totally incompetent person. Learned Advocate further submits that the impugned judgment and decree of the court of appeal below was passed in gross violation of the established principles of law, beyond the pleadings and assessment of evidence resulting in an error in decision occasioning failure of natural justice.
8. Mr Habibul Islam Bhuiyan, learned Advocate, appeared for the defendant-opposite parties, on the other hand, submits that, appointment of plaintiff as vice-principal, being on temporary basis, deserved no show cause notice prior to his removal from the post of vice-principal and reverted to substantive post of the plaintiff as Assistant Professor which, having not been affected, the plaintiff in any manner, which the learned Judge of the appellate court found and dismissed the suit in allowing the appeal and, as such, judgment having passed on consideration of materials on record, including plaint, written statement, exhibits and depositions of the witnesses, calls for no interference.
9. On consideration of the plaint and written statement, the fact related for disposal of the Rule are that plaintiff joined temporarily in the post of Lecturer for Physics on 6-9-1995, the governing body appointed plaintiff as vice principal on 8-12-2001 and issued appointment letter on 27-12-2001, plaintiff joined as vice principal on 29-12-2001, the governing body approved the appointment on 17-12-2002 and from 29-12-2001 to 30-12-2004 plaintiff signed as vice-principal in the daily attendance registrar. Plaintiff noticed in the daily attendance registrar of January, 2005 that his designation as vice-principal was penned, he protested but Principal remained unmoved; on 21-12-2005 Principal asked the plaintiff not to use the designation of vice-principal, hence the suit for declaration that the decision of governing body terminating his service dated 11-9-2004 is illegal and not binding upon him.
10. Defendant’s facts, as put forward, are that, plaintiff was appointed as vice-principal on temporary basis and accordingly he joined on 29-12-2001; on 25-6-2002 College advertised for appointing vice-principal and plaintiff and 8 others applied on 29-9-2002 College, asked National University to send representative.
But National University declined by letter dated 27-7-2003 due to irregularities in the appointment. On 13-7-2003, the governing body decided to appoint vice-principal as per rule. Plaintiff applied for promotion as Assistant Professor from the post of Lecturer on 18-7-2004, plaintiff’s temporary appointment was cancelled by the governing body on 11-9-2004. Plaintiff filed Writ Petition No. 8480 of 2005 stating his designation as Assistant Professor of the college.
11. On the aforesaid factum of the instant case, question calls for determination is whether provision of natural justice has been violated in removing the plaintiff from the post of vice-principal by not issuing any show cause notice to the plaintiff.
12. To decide the question, let us refer to the appointment letter of the plaintiff as vice principal. Plaintiff was appointed as vice-principal of the college by memo dated 27-12-2001, although it appears that his appointment was temporary, but with certain conditions. The conditions are as follows:-
Ò1| miKvix †eZb †¯‹‡j wZwb miKvi †NvwlZ ZvwiL n‡Z †eZb cÖvß n‡eb|
2| `ÿZvi cÖgvb mv‡c‡ÿ wZwb PvKzix‡Z ¯’vwqZ¡ jvf Ki‡Z cvi‡eb|
3| wek¦we`¨vjq, wkÿv‡evW©, gš¿bvjq I K‡jR KZ©…K RvwiK…Z mKj Av‡`k wb‡la Zv‡K h_vh_fv‡e †g‡b Pj‡Z n‡e|
4| Kgc‡ÿ 5 (cvuP) erm‡ii c~‡e© wZwb PvKzwi n‡Z B¯Ídv w`‡Z cvi‡eb bv|
5| K‡j‡Ri ¯^v‡_©i cwicwš’ †Kvb Kvh© Zvi weiæ‡× Kvh© e‡j we‡ewPZ n‡e Ges K‡jR KZ©…cÿ AvBbvbyM e¨e¯’v MÖnb Ki‡Z cvi‡eb|Ó
(To be continued)
13. Condition No.4 shows that appointment is temporary, but such temporary basis is for 5 years from his date of appointment as vice-principal as he cannot resign from his post, that means, his service is from 27-12-2001 to 27-12-2006. It gives burden upon the governing body that if plaintiff be removed before this 5 years period, he is entitled, at least for a show cause notice and also there must be an enquiry to find whether he performed his service/duty satisfactorily. If he performed his service satisfactorily then he has legitimate expectation for being appointed on permanent basis as vice principal. If this has not been done then the principal of natural justice has been violated.
14. Natural justice has no definition but is inferred from the circumstances offending morality as violation of natural justice. Natural Justice is founded in equity, in honestly and right i.e. before guillotining a person whether such person was given all opportunity to defend his case. The act must not be capricious, arbitrary, malafide and unlawful. It may be mentioned that the rules of natural justice vary with varying constitutions of statutory bodies, and the rules, prescribed by the Legislature under which they have to function, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion but in the light of the provisions of the relevant Act. The expression “Natural justice” may not be capable of precise definition. But the basic and fundamental requirements of “natural justice” are well known and have been repeatedly affirmed by courts of highest authority. Particular forms of legal procedure may not be necessary, but it is of the very essence of an enquiry and a decision that the person enquiring must be one without bias and should render the decision in a judicial spirit and in accordance with the principles of substantial justice.
15. In the case of Jamuna Oil Company Ltd. vs Sk Dey & another, 44 (AD) DLR 104 it is held that “Natural justice in a case of disciplinary proceeding against employee, in the absence of statutory rules, the employee must be given prior notice of the employee of the proceeding so that he gets an adequate opportunity to defend himself. In the case of Bangladesh vs Commercial Trust of Bangladesh Ltd. 46 DLR (AD) 89 it is held that “The contention that the respondent was given during on-the-spot enquiry by the Deputy Land Reforms Commissioner will not be a sufficient compliance of the principle of natural justice, because the impugned order of derequisition was passed not by the Deputy land Commissioner but by the Ministry.” In the case of Mahinuddin vs Dhaka University 45 DLR 292 it is held that “The maxim Audi Alteram Pattern; no man shall be condemned unheard, applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute.” In the case of Professor Golam Azam vs Bangladesh, 45 DLR 423 it is held that “Natural justice is nothing but a procedural justice; being procedural it cannot be said it is not vested. In one of those situation where Natural justice clause is invoked there existed any legal right for such an asking but the matter involves what the Court often calls a legitimate expectation of procedural justice. When that is not specifically ousted by the law itself, the Court would read into the law such a clause.” In the case of Ehsanul Hoque vs General Manager, Agrani Bank, 42 DLR 60 it is held that “In a case where there are no rules and regulations for conducting enquiry, the principle of natural justice is to be followed.” In the case of Bangladesh vs Professor Golam Azam, 46 DLR (AD) 192 it is held that “A person who is deemed to be a citizen of Bangladesh under Article 2 is not required to take any oath of allegation unless he is elected or appointed to any office mentioned in the Third Schedule of the Constitution.” In the case of Bangladesh Steamer Agents Association vs Bangladesh and others, 33 DLR (AD) 177 it is held that “it is inconcelivable that when a citizen is deprived of a right vested in the person, he can be deprived of that right by a capricious or arbitrary executive fiat without being challenged as being violative of the principles of natural justice. All that this decision appears to have decided is that before a right of individual is terminated he must be heard.” In the case of Abul Hossain Akand (Md) vs Abul Kalam Azad, 49 DLR 257 it is held that “The principle that no man should be condemend unheard is applicable to judicial as well as administrative bodies.” In the case of Rafiqul Alam vs Secretary Ministry of Works, Government of the People’s Republic of Bangladesh, 49 DLR 456 it is held that “The principle of natural justice ought to have been complied with. Because principle of natural justice is also applicable in administrative matters as natural justice he should know the allegations against him and, as such, he should be given an opportunity of explaining his position in the matter.” In the case of Principal, Chittagong Medical College vs Shahrayar Murshed, 48 DLR (AD) 33 it is held that “Fair compliance of the rule of natural justice-the first requirement of the rule is that the person to be proceeded against must be made aware of the allegations against him the right to have notice of the charges.” In the case of Shahrayar Murshed vs Chittagong Medical College, 48 DLR 482 it is held that “In order to ensure the elementary and essential principles of fairness “as a matter of necessary implication the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to made any relevant statement putting forward his own case” and the authority is to give an opportunity to the person sought to be affected to correct or contradict any relevant statement prejudice to him. In order to act justly and to reach just ends by just means the Courts insist that the person or authority should have adopted the “elementary and essential principles” unless the same had been expressly excluded by the enactment empowering him to so act.” In the case of Chairman, Board of Intermediate and Secondary Education, Jessore vs Md Amir Hossain, 56 DLR (AD) 24 it is held that “Even where provision for show cause notice and opportunity of personal hearing are not available, the principle of natural justice shall be applied unless it is specifically barred.”
16. The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. These principles are four in number:-
(1) that every person whose civil rights are affected must have a reasonable notice of the case he has to meet.
(2) that he must have reasonable opportunity of being heard in his defence.
(3) that the hearing must be by an impartial tribunal, i.e. a person who is neither directly nor indirectly a party to the case or is already biased against the party concerned.
(4) that the authority must act in good faith, and not arbitrarily but reasonably.
17. It is seen that temporary appointment was given, as per clause 4 of the appointment letter for 5 years from 27-12-2001 to 27-12-2006 but it is seen that Principal of the College, defendant No.1 on 1-10-2004 requested him not to use his disquisition as vice-principal which being made within the 5 years period, plaintiff is entitled for a show cause notice as the plaintiff was at that moment of legitimate expectation of being appointed permanently. Legitimate expectation means which shall be protected must be ‘legitimate’. It may not be out of place to refer the case of Md Idrisur Rahman vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 29 BLD 32 = 61 DLR 523, affirmed by the Appellate Division that the Justices who were appointed for 2 years, and having in know of such term, after expiry of 2 years period, when they were not confirmed, they were appointed on the ground of Legitimate expectation. This case is on better footing as the plaintiff was removed before the term of his initial appointment is over.
18. We have seen that appeal was preferred by incompetent person as the plaintiff challenged the decision of the governing body of the college, defendant No.2, but appeal was preferred by the principal of the college shows that principal taken special interest over matter which expressed his bloodthirstiness against the plaintiff exposes his bias, malafide and killing instant.
19. From the aforesaid factum of the case we are satisfied that provision of natural justice having been violated in the name of Government by the principal of the college, judgment passed by the learned Special District Judge, 1st Court, Rangpur, in Title Appeal No. 177 of 2007 was passed illegally.
20. In the result, the Rule is made absolute without any order as to costs.
21. The judgment and decree dated 19-6-2011 passed by the learned Special District Judge, 1st Court, Rangpur allowing Title Appeal No. 177 of 2007 thereby dismissing Title Suit No. 27 of 2006 on reversing those dated 24-10-2007 passed by the learned Joint District Judge, 2nd Court, Rangpur, in charge of the Court of Senior Assistant Judge, Sadar, Rangpur is setaside. Other Suit No. 27 of 2006 is decreed.
Send down the lower court records.
Communicate this order at once.
(Civil Revisional Jurisdiction)
Sharif Uddin
Chaklader J
AKM Shahidul Huq J
Towhidur Rahman (Md) Mandol Plaintiff-Respondent-Petitioner
vs
Principal, Rangpur Model College and others ………….Proforma-Defendant-Respondent Opposite-Parties”
Judgment July 30th, 2013.
Natural Justice
The expression “natural justice” may not be capable of precise definition. But the basic and fundamental requirements of “natural justice” are well known and have been repeatedly affirmed by courts of highest authority. Particular forms of legal procedure may not be necessary, but it is of the very essence of an enquiry and a decision that the person enquiring must be one without bias and should render the decision in a judicial spirit and in accordance with the principles of substantial justice. .. …. (14)
Jumuna Oil Company Ltd. vs SK Dey, 44 (AD) DLR 104; Bangladesh vs Commercial Trust of Bangladesh Ltd. 46 DLR (AD) 89; Mahinuddin vs Dhaka University 45 DLR 292; Professor Golam Azam vs Bangladesh, 45 DLR 423; Ehsanul Hoque vs General Manager, Agrani Bank, 42 DLR 60; Bangladesh vs Professor Golam Azam, 46 DLR (AD) 192; Bangladesh Steamer Agents Association vs Bangladesh, 33 DLR (AD) 177; Abul Hossain Akand (Md) vs Abul Kalam Azad, 49 DLR 257; Rafiqul Alam vs Secretary Ministry of Works, Government of the People’s Republic of Bangladesh, 49 DLR 456; Principal, Chittagong Medical College vs Shahrayar Murshed, 48 DLR (AD) 33; Shahrayar Murshed vs Chittagong Medical College, 48 DLR 482; Chairman, Board of Intermediate and Secondary Education, Jessore vs Md Amir Hossain, 56 DLR (AD) 24 and Md Idrisur Rahman vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 29 BLD 32. = 61 DLR 523 ref.
AJ Mohammad Ali, and MG Mahmud Shahin, Advocates-For the Plaintiff-Respondent-Petitioner.
Habibul Islam Bhuiyan, Advocate-For the Proforma- Defendant- Respondent-Opposite- Parties.
Judgment
Sharif Uddin Chaklader J: This Rule, at the instance of plaintiff, directed against judgment and decree dated 19-6-2011 passed by the learned Special District Judge, 1st Court, Rangpur allowing Title Appeal No. 177 of 2007 thereby dismissing Title Suit No. 27 of 2006 on reversing those dated 24-10-2007 passed by the learned Joint District Judge, 2nd Court, Rangpur, in charge of the Court of Senior Assistant Judge, Sadar, Rangpur.
2. Plaintiff instituted the aforesaid suit praying for decree for declaration that as per decision of governing body of Rangpur Model College, plaintiff having been appointed as vice principal of the aforesaid college is in service as Vice Principal.
3. It is the case of plaintiff, in brief, that, Rangpur Model College was established in 1995 and later on, was affiliated as a Degree College in 1998, of which plaintiff was appointed as the Lecturer of Physics at the time of establishment of the college. The governing body of the college on 8-12-2001 took a resolution to appoint plaintiff as vice-principal of the col1ege, and consequently the appointment letter was issued on 27-12-2001 and plaintiff joined the post of vice-principal on 29-12-2001.
The governing body of the college by resolution dated 17-2-2002 decided to include plaintiff in the scheme of Monthly Pay Order, 1996. The governing body vide its resolution dated 27-7-2002 decided to send relevant papers to the concerned authority to pay salary to the plaintiff as vice-principal. In the meantime plaintiff carried out various duties of the college and put his signature as the vice-principal of the college from 29-12-2001 to 30-12-2004. The plaintiff on many occasions represented the college as the vice principal of the college. Plaintiff observed that his designation on the attendance registrar was penned through and was written as Assistant Professor from 1-10-2004 to 30-12-2004 against which, he raised objection on 4-1-2005. Defendant No.1 did not give any reply to the objection of the plaintiff. Plaintiff on 29-11-2005 filed application to the Chairman of the governing body for redress his grievances but in vain. Plaintiff on 20-12-2005 filed applications for casual leave and also on 21-12-2005 and 22-12-2005 but defendant No.1 warned the plaintiff not to use the designation of vice-principal, against which plaintiff through his learned Advocate sent a legal notice upon the defendants on 26-12-2005 but of no effect, hence the suit.
4. The case of defendant No.1 is that, the governing body of the college appointed plaintiff as vice-principal purely on temporary basis, subject to the subsequent appointment as per rules of the National University; the notice for appointment was published in the daily ‘Juger Alo’ on 25-6-2002; 8 candidates including plaintiff filed application for the post of vice-principal; step was taken to have the representative present from National University as per rule; the college inspector vide memo dated 27-7-2003 refused the appointment raising the irregularities of the previous appointment of the plaintiff as Vice Principal; the governing body vide resolution dated 11-9-2004 was compelled to cancel the previous appointment of the plaintiff as vice-principal; the matter was communicated to the plaintiff on 10-11-2004, plaintiff took it normally and used his designation as Assistant Professor on many occasions; plaintiff filed Writ Petition No. 8480 of 2005 as Assistant Professor to get his arrear salary; obtained his salary for the post of Assistant Professor; plaintiff himself prepared the bill in February, 2006 and received the same by using his designation as Assistant Professor.
5. In the suit, plaintiff examined 3 witnesses including himself, on the other hand. defendants examined 1 witness.
6. Learned Joint District Judge, 2nd Court, Rangpur, in charge of Senior Assistant Judge, Sadar, Rangpur by judgment and decree dated 24-10-2007 decreed the suit. Defendant No. 1 moved before the learned District Judge, Rangpur in Other Appeal No. 177 of 2007, which was transferred to the 1st Court of Additional District Judge, Rangpur for hearing, who after hearing, allowed the appeal and dismissed the suit.
7. Mr AJ Mohammad Ali, learned Advocate, appeared for the plaintiff-petitioner, submits that, plaintiff was appointed by the governing body of the said College as Vice Principal on 27-12-2001, he joined in the said post on 29-12-2001 and was working in such post while decision of the governing body of the college was taken on 11-9-2004 removing plaintiff from the post of vice-principal without any show cause notice which violated the principle of natural justice, learned Joint District Judge, 2nd Court, Rangpur committed no illegality in decreeing the suit which court of appeal below failed to consider. Learned Advocate further submits that plaintiff challenged the decision of the governing body making them as defendant No.2 who did not prefer any appeal, but defendant No. 1 filed the appeal who has no locus standi, as such, the appeal ought to be dismissed as the appeal was filed by a totally incompetent person. Learned Advocate further submits that the impugned judgment and decree of the court of appeal below was passed in gross violation of the established principles of law, beyond the pleadings and assessment of evidence resulting in an error in decision occasioning failure of natural justice.
8. Mr Habibul Islam Bhuiyan, learned Advocate, appeared for the defendant-opposite parties, on the other hand, submits that, appointment of plaintiff as vice-principal, being on temporary basis, deserved no show cause notice prior to his removal from the post of vice-principal and reverted to substantive post of the plaintiff as Assistant Professor which, having not been affected, the plaintiff in any manner, which the learned Judge of the appellate court found and dismissed the suit in allowing the appeal and, as such, judgment having passed on consideration of materials on record, including plaint, written statement, exhibits and depositions of the witnesses, calls for no interference.
9. On consideration of the plaint and written statement, the fact related for disposal of the Rule are that plaintiff joined temporarily in the post of Lecturer for Physics on 6-9-1995, the governing body appointed plaintiff as vice principal on 8-12-2001 and issued appointment letter on 27-12-2001, plaintiff joined as vice principal on 29-12-2001, the governing body approved the appointment on 17-12-2002 and from 29-12-2001 to 30-12-2004 plaintiff signed as vice-principal in the daily attendance registrar. Plaintiff noticed in the daily attendance registrar of January, 2005 that his designation as vice-principal was penned, he protested but Principal remained unmoved; on 21-12-2005 Principal asked the plaintiff not to use the designation of vice-principal, hence the suit for declaration that the decision of governing body terminating his service dated 11-9-2004 is illegal and not binding upon him.
10. Defendant’s facts, as put forward, are that, plaintiff was appointed as vice-principal on temporary basis and accordingly he joined on 29-12-2001; on 25-6-2002 College advertised for appointing vice-principal and plaintiff and 8 others applied on 29-9-2002 College, asked National University to send representative.
But National University declined by letter dated 27-7-2003 due to irregularities in the appointment. On 13-7-2003, the governing body decided to appoint vice-principal as per rule. Plaintiff applied for promotion as Assistant Professor from the post of Lecturer on 18-7-2004, plaintiff’s temporary appointment was cancelled by the governing body on 11-9-2004. Plaintiff filed Writ Petition No. 8480 of 2005 stating his designation as Assistant Professor of the college.
11. On the aforesaid factum of the instant case, question calls for determination is whether provision of natural justice has been violated in removing the plaintiff from the post of vice-principal by not issuing any show cause notice to the plaintiff.
12. To decide the question, let us refer to the appointment letter of the plaintiff as vice principal. Plaintiff was appointed as vice-principal of the college by memo dated 27-12-2001, although it appears that his appointment was temporary, but with certain conditions. The conditions are as follows:-
Ò1| miKvix †eZb †¯‹‡j wZwb miKvi †NvwlZ ZvwiL n‡Z †eZb cÖvß n‡eb|
2| `ÿZvi cÖgvb mv‡c‡ÿ wZwb PvKzix‡Z ¯’vwqZ¡ jvf Ki‡Z cvi‡eb|
3| wek¦we`¨vjq, wkÿv‡evW©, gš¿bvjq I K‡jR KZ©…K RvwiK…Z mKj Av‡`k wb‡la Zv‡K h_vh_fv‡e †g‡b Pj‡Z n‡e|
4| Kgc‡ÿ 5 (cvuP) erm‡ii c~‡e© wZwb PvKzwi n‡Z B¯Ídv w`‡Z cvi‡eb bv|
5| K‡j‡Ri ¯^v‡_©i cwicwš’ †Kvb Kvh© Zvi weiæ‡× Kvh© e‡j we‡ewPZ n‡e Ges K‡jR KZ©…cÿ AvBbvbyM e¨e¯’v MÖnb Ki‡Z cvi‡eb|Ó
(To be continued)
13. Condition No.4 shows that appointment is temporary, but such temporary basis is for 5 years from his date of appointment as vice-principal as he cannot resign from his post, that means, his service is from 27-12-2001 to 27-12-2006. It gives burden upon the governing body that if plaintiff be removed before this 5 years period, he is entitled, at least for a show cause notice and also there must be an enquiry to find whether he performed his service/duty satisfactorily. If he performed his service satisfactorily then he has legitimate expectation for being appointed on permanent basis as vice principal. If this has not been done then the principal of natural justice has been violated.
14. Natural justice has no definition but is inferred from the circumstances offending morality as violation of natural justice. Natural Justice is founded in equity, in honestly and right i.e. before guillotining a person whether such person was given all opportunity to defend his case. The act must not be capricious, arbitrary, malafide and unlawful. It may be mentioned that the rules of natural justice vary with varying constitutions of statutory bodies, and the rules, prescribed by the Legislature under which they have to function, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion but in the light of the provisions of the relevant Act. The expression “Natural justice” may not be capable of precise definition. But the basic and fundamental requirements of “natural justice” are well known and have been repeatedly affirmed by courts of highest authority. Particular forms of legal procedure may not be necessary, but it is of the very essence of an enquiry and a decision that the person enquiring must be one without bias and should render the decision in a judicial spirit and in accordance with the principles of substantial justice.
15. In the case of Jamuna Oil Company Ltd. vs Sk Dey & another, 44 (AD) DLR 104 it is held that “Natural justice in a case of disciplinary proceeding against employee, in the absence of statutory rules, the employee must be given prior notice of the employee of the proceeding so that he gets an adequate opportunity to defend himself. In the case of Bangladesh vs Commercial Trust of Bangladesh Ltd. 46 DLR (AD) 89 it is held that “The contention that the respondent was given during on-the-spot enquiry by the Deputy Land Reforms Commissioner will not be a sufficient compliance of the principle of natural justice, because the impugned order of derequisition was passed not by the Deputy land Commissioner but by the Ministry.” In the case of Mahinuddin vs Dhaka University 45 DLR 292 it is held that “The maxim Audi Alteram Pattern; no man shall be condemned unheard, applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute.” In the case of Professor Golam Azam vs Bangladesh, 45 DLR 423 it is held that “Natural justice is nothing but a procedural justice; being procedural it cannot be said it is not vested. In one of those situation where Natural justice clause is invoked there existed any legal right for such an asking but the matter involves what the Court often calls a legitimate expectation of procedural justice. When that is not specifically ousted by the law itself, the Court would read into the law such a clause.” In the case of Ehsanul Hoque vs General Manager, Agrani Bank, 42 DLR 60 it is held that “In a case where there are no rules and regulations for conducting enquiry, the principle of natural justice is to be followed.” In the case of Bangladesh vs Professor Golam Azam, 46 DLR (AD) 192 it is held that “A person who is deemed to be a citizen of Bangladesh under Article 2 is not required to take any oath of allegation unless he is elected or appointed to any office mentioned in the Third Schedule of the Constitution.” In the case of Bangladesh Steamer Agents Association vs Bangladesh and others, 33 DLR (AD) 177 it is held that “it is inconcelivable that when a citizen is deprived of a right vested in the person, he can be deprived of that right by a capricious or arbitrary executive fiat without being challenged as being violative of the principles of natural justice. All that this decision appears to have decided is that before a right of individual is terminated he must be heard.” In the case of Abul Hossain Akand (Md) vs Abul Kalam Azad, 49 DLR 257 it is held that “The principle that no man should be condemend unheard is applicable to judicial as well as administrative bodies.” In the case of Rafiqul Alam vs Secretary Ministry of Works, Government of the People’s Republic of Bangladesh, 49 DLR 456 it is held that “The principle of natural justice ought to have been complied with. Because principle of natural justice is also applicable in administrative matters as natural justice he should know the allegations against him and, as such, he should be given an opportunity of explaining his position in the matter.” In the case of Principal, Chittagong Medical College vs Shahrayar Murshed, 48 DLR (AD) 33 it is held that “Fair compliance of the rule of natural justice-the first requirement of the rule is that the person to be proceeded against must be made aware of the allegations against him the right to have notice of the charges.” In the case of Shahrayar Murshed vs Chittagong Medical College, 48 DLR 482 it is held that “In order to ensure the elementary and essential principles of fairness “as a matter of necessary implication the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to made any relevant statement putting forward his own case” and the authority is to give an opportunity to the person sought to be affected to correct or contradict any relevant statement prejudice to him. In order to act justly and to reach just ends by just means the Courts insist that the person or authority should have adopted the “elementary and essential principles” unless the same had been expressly excluded by the enactment empowering him to so act.” In the case of Chairman, Board of Intermediate and Secondary Education, Jessore vs Md Amir Hossain, 56 DLR (AD) 24 it is held that “Even where provision for show cause notice and opportunity of personal hearing are not available, the principle of natural justice shall be applied unless it is specifically barred.”
16. The principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. These principles are four in number:-
(1) that every person whose civil rights are affected must have a reasonable notice of the case he has to meet.
(2) that he must have reasonable opportunity of being heard in his defence.
(3) that the hearing must be by an impartial tribunal, i.e. a person who is neither directly nor indirectly a party to the case or is already biased against the party concerned.
(4) that the authority must act in good faith, and not arbitrarily but reasonably.
17. It is seen that temporary appointment was given, as per clause 4 of the appointment letter for 5 years from 27-12-2001 to 27-12-2006 but it is seen that Principal of the College, defendant No.1 on 1-10-2004 requested him not to use his disquisition as vice-principal which being made within the 5 years period, plaintiff is entitled for a show cause notice as the plaintiff was at that moment of legitimate expectation of being appointed permanently. Legitimate expectation means which shall be protected must be ‘legitimate’. It may not be out of place to refer the case of Md Idrisur Rahman vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 29 BLD 32 = 61 DLR 523, affirmed by the Appellate Division that the Justices who were appointed for 2 years, and having in know of such term, after expiry of 2 years period, when they were not confirmed, they were appointed on the ground of Legitimate expectation. This case is on better footing as the plaintiff was removed before the term of his initial appointment is over.
18. We have seen that appeal was preferred by incompetent person as the plaintiff challenged the decision of the governing body of the college, defendant No.2, but appeal was preferred by the principal of the college shows that principal taken special interest over matter which expressed his bloodthirstiness against the plaintiff exposes his bias, malafide and killing instant.
19. From the aforesaid factum of the case we are satisfied that provision of natural justice having been violated in the name of Government by the principal of the college, judgment passed by the learned Special District Judge, 1st Court, Rangpur, in Title Appeal No. 177 of 2007 was passed illegally.
20. In the result, the Rule is made absolute without any order as to costs.
21. The judgment and decree dated 19-6-2011 passed by the learned Special District Judge, 1st Court, Rangpur allowing Title Appeal No. 177 of 2007 thereby dismissing Title Suit No. 27 of 2006 on reversing those dated 24-10-2007 passed by the learned Joint District Judge, 2nd Court, Rangpur, in charge of the Court of Senior Assistant Judge, Sadar, Rangpur is setaside. Other Suit No. 27 of 2006 is decreed.
Send down the lower court records.
Communicate this order at once.
