IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Hasan Foez Siddique

  -Chief Justice Mr. Justice Md. Nuruzzaman

Mr. Justice Borhanuddin

Mr. Justice M. Enayetur Rahim

CIVIL PETITION FOR LEAVE TO APPEAL NO.1347 of 2017.

(From the judgment and order dated 28.07.2016 passed by the High Court Division in Writ Petition No.5452 of 2015).

Md. Montaj Uddin. :  ......Petitioner.

-Versus-

Ministry of Public Administration :  .....Respondents. and others.

For the Petitioner. : Mr. Salahuddin Dolon, Senior

Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record.

For the Respondents. : Mrs. Tania Amir, Senior Advocate,

instructed by Mrs. Shirin Afroz, Advocate-on-Record.

Date of Hearing  : The 7th April, 2022.

J U D G M E N T

Borhanuddin, J: This civil petition for leave to appeal

under Article 103 of the constitution is directed against the judgment and order dated 28.07.2016 passed by the High Court Division in Writ Petition No.5452 of 2015.

Brief facts as gathered from the writ petition are that the petitioner being an Assistant Professor of the Bhandaria Government College, Pirojpur, was made a room

invigilator of an examination hall at the said college for the Higher Secondary Certificate examination of 2015 under the Board of Intermediate and Secondary Education, Barishal; Being on duty during the said examination of Higher Secondary English First Paper on 09.04.2015, the petitioner was severely humiliated by the writ-respondent no.6 Ashraful Islam, Assistant Commissioner (Land) and Executive Magistrate, Bhandaria, writ-respondent no.7 M Monir Hossain, Upazila Nirbahi Officer, Bhandaria and ABM Fokhruzzaman, Principal of the Bhandaria Government College for not being able instantaneously react to an order of the writ-respondent no.6 in rearranging the seating position of two examinees who were allegedly sitting closely to each other during the said examination; The petitioner was humiliated simply because he wanted to know the identity of the respondent no.6 who entered the said examination hall without any prior notice or voluntarily refrained from disclosing his identity who was later identified as a junior BCS officer; The said humiliation was so gross that the petitioner was literally forced to extend his apology by way of touching the feet of the respondent no.6 upon instigation of the respondent nos.7 and 8 at the office of the respondent no.8; The respondent nos.6, 7 and 8 did not stop there, they further incited reporters of local daily newspapers that were brought alongwith respondent nos.6 and 7 in taking photographs of such disturbing and distasteful incident, which was purposefully published on the following day by many daily newspapers and social media websites to publicly humiliate the petitioner; Due to such inhuman and degrading treatment by the respondent nos. 6, 7 and 8, the petitioner almost went to the verge of committing suicide; For such heinous and degrading act of the respondents, the BCS General Education Association demonstrated procession throughout the country but did not get appropriate response from the concern authorities and as such the petitioner is constrained to file writ petition.

Upon hearing the petitioner, a Division Bench of the High Court Division issued a  Rule Nisi upon the respondents to show cause and directed the Chief Judicial Magistrate, Pirojpur, to conduct an inquiry with regard to the alleged occurrence and submit the report to the Attorney General Office by 15.06.2015 and also directed the respondent no.6 Ashraful Islam, Assistant Commissioner (Land) and Executive Magistrate, Bhandaria Upazila to appear in person before the court on 15.06.2015 alongwith his statement with regard to the show cause notice and on the same day the petitioner was also directed to be present in person before the court vide order dated 25.05.2015.

The writ-respondent no.6 contested the rule by filing an affidavit-in-opposition denying the allegations made in the writ petition stating interalia that on 29.03.2015 the District Magistrate, Pirojpur, assigned the respondent to create an environment free from copying and maintain law and order situation of the examination centers used for Higher Secondary Certificate examination 2015; As a part of his duty the respondent went to the Bhandaria Government College on 09.04.2015 for a regular inspection; After entering hall no.2 he noticed that two examinees were sitting very closely and talking to each other; Respondent quietly requested the petitioner to separate them at a distance but the petitioner did not pay heed and as such the respondent again requested him very politely but the petitioner being furious misbehaved with the respondent and questioned the authority of the respondent and asked him to leave the examination hall; Being insulted, the respondent went to the Principal’s room and informed the matter to the respondent no.7 Upazila Nirbahi Officer over phone; After hearing the matter, the respondent no.8 Principal requested the petitioner to come at his room; While the respondent was going to lodge a complain under lawful authority, the petitioner started to seek apology and wanted to reach his feet in front of the respondent nos.7, 8 and others. But the respondent stopped the petitioner from touching his feet and take him to sit by his side cordially accepting his apology; On 23.04.2015 the Ministry of Education constituted an investigation committee to investigate the incident by Mr. Ashok Kumar Biswas, Additional Secretary, Ministry of Education, Dr. Molla Jalal Uddin, Joint Secretary (College), Ministry of Education and Mr. Md. Imam Hossain, Principal, Government

The respondent no.7 M. Monir Hossain, Upazila Nirbahi Officer, Bhandaria filed a separate affidavit-in- opposition supporting the contention of the respondent no.6.

The respondent no.8 ABM Fakhruzzaman the then Principal of the Bhandaria Government College also filed separate affidavit-in-opposition contending interalia that on the following day of the incident as stated in the writ petition 17 teachers of the college alongwith petitioner assembled in a meeting and condemned the heinous role of the respondent nos.6 and 7 which they played during the Higher Secondary Certificate examination and a resolution was adopted on that day in the meeting condemning the role of the Magistrate and UNO but not a single word was uttered by any person against the Principal, respondent no.8; Allegation against the respondent Principal is unfounded, after thought with malafide intension.

As per direction of the High Court Division at the time of the issuance of the Rule, the Chief Judicial Magistrate, Pirojpur, conducted the inquiry and after taking evidence of the parties and other witnesses

arrived at a finding:

“mv¶¨ chv©‡jvPbv A‡š ÍgZvgZ:

Avgvi Z ‡š Ímv¶x‡ i †gŠwLK I vwjwjK mv¶¨ cÖgv‡Yi wfwˇZ G K_v ejv hvq †h, ixUKvix Rbve †gvt †gvbZvR DwÏb Ges G.wm (j¨vÛ) fvÛvwiqv Dc‡Rjv f~wg Awdm I wbev©nx g¨vwR‡÷«U Rbve †gvt Akªvdzj Bmjvg fvÛvwiqv miKvix K‡jR cix¶v †K‡› ªi 02bs K‡¶ GKwU †e‡Âi yBRb †g‡q‡K miv‡bvi NUbv‡K †K› ª K‡i evK weZÛvq RwoZ nevi ci cix¶vi n‡ji g ‡a¨ †gvevBj †dv‡b G.wm (j¨vÛ) K_v ejvi KviY ‡ wL‡q Zv‡K ixUKvwi cix¶vi nj †_‡K †ei K‡i † b g‡g© NUbvi cÖv_wgK mZ¨Zv cvIqv hvq|

cieZx©‡Z fvÛvwiqv miKvix K‡j ‡Ri Aa¨‡¶i K‡¶ Dc‡Rjv wbev©nx Awdmvi fvÛvwiqv, G.wm (j¨vÛ) I ixUKvix †gvt †gvbZvR DwÏb Gi e³ e¨ ï‡b ixUKvix‡K †gvevBj †Kv‡U©i gva¨‡g mvRv cÖ v‡bi K_v D‡jøLmn Zvi PvKwi n‡Z Ae¨vnwZ, Zvi d¨vwgwj, mšÍvb BZ¨vw  K_v D‡jøL Kivq K‡j ‡Ri Aa¨¶ ix‡Ui 08bs cÖwZc¶ Av‡cvl wggvsmvi D‡ ¨vM †bb| AZtci Aa¨ ‡¶i Dcw¯’wZ‡Z BD.Gb.I fvÛvwiqv ixUKvix‡K G.wm (j¨vÛ) Gi nvZ a‡i ¶gv PvB‡j n‡ebv, cv‡q a‡i ¶gv PvB‡Z n‡e

g‡g© ejvi ci ixUKvix Rbve †gvt †gvbZvR DwÏb †gvevBj †Kv‡U©i mvRv ‡_‡K evuPvi Rb¨ wbiæcvq n‡q G.wm (j¨vÛ) Gi cv a‡i ¶gv cÖv_©bv K‡ib g‡g© mv¶x‡ i e³ e¨

n‡Z NUbvi cÖv_wgK mZ¨Zv cvIqv hvq|

cieZx©‡Z G.wm (j¨vÛ) Rbve †gvt Avkªvdzj Bmjvg cv aiv‡ZI mš‘ó bv †_‡K 02bs K‡¶ wM‡q ch©‡e¶K ixUKvix Rbve †gvt †gvbZvR DwÏb‡K QvÎx‡ i m¤§y‡L G.wm (j¨vÛ) Gi wbKU fyj ¯^xKvi K‡i ¶gv cÖv_©bv Ki‡Z eva¨ K‡ib g‡g©I mv¶x‡ i e³ e¨ nB‡Z D³ NUbvi cÖv_wgK mZ¨Zv cvIqv hvq|”

This investigation report was signed by the Chief Judicial Magistrate, Pirojpur, on 11.06.2015.

Upon hearing the parties a Division Bench of the High Court Division has been pleased to discharge the Rule for suppressing the fact that before issuing the Rule Nisi a High Powered Committee was formed by the Ministry of Education and they hold an inquiry examining all the concern persons and submit report within a short period but the petitioner did not mention this matter in the writ petition. The operative portion of the judgment is quoted below:

“We are of the view that the government should be allowed to do the needful on the basis of the report submitted by the High Powered Committee formed by the Ministry of Education. It appears that this report was submitted on 04.05.2015 and the Rule was obtained on 25.05.2015, just after 20 days of submission of the report. The petitioner should have waited for the action of the government on the basis of the report submitted by the High Powered Committee. Since, we have already held that by suppressing material fact the petitioner obtained the Rule, he cannot get any relief from the Court. The petitioner has not come before us with clean hands. The government is still in a position to take appropriate measures against the perpetrators.”

Feeling aggrieved, the petitioner filed instant civil petition for leave to appeal under Article 103 of the constitution.

Mr. Salahuddin Dolon, learned Senior Advocate appearing for the petitioner drew our attention to the investigation reports submitted by the Chief Judicial Magistrate, Pirojpur, at the instance of the High Court Division as well as High Powered Committee formed by the Ministry of Education and submits that though the Chief Judicial Magistrate and High Powered Committee formed by the Ministry found truthfulness of the allegation but no action has been taken till today. He also submits that the High Court Division though discharged the rule but observed that the government is still in a position to take appropriate measures against the perpetrators.

But no action has been taken till this day.

On the other hand Ms. Tania Amir, learned Senior

Advocate appearing on behalf of the respondents submits that the petitioner filed the writ petition with a prayer to issue Rule Nisi upon the respondents to show cause as to why they shall not be directed to conduct inquiry and punishment, as stated under section 5 of the Government Servants (Special Provisions) Ordinance, 1979 against respondent nos.6, 7 and 8 for wilfully humiliating the petitioner by the respondent no.6, by touching the feet of respondent no.6.

Accordingly a High Powered Committee was formed by the Ministry of Education who after investigation submitted its report with recommendation.

Heard the learned Advocate for the parties. Perused the papers/documents contained in the paper book.

We have gone through the investigation report submitted by the Chief Judicial Magistrate, Pirojpur, at the instance of the High Court Division as well as the report submitted by the High Powered Committee formed by the Ministry of Education. In both the reports the allegation of compelling the petitioner to seek apology by touching the feet of the AC (Land) prima-facie found true.

The High Powered Committee formed by the Ministry after investigation found that:

“mvwe©K gšÍe¨:

wc‡ivRcyi †Rjvi fvÛvwiqv miKvwi K‡j ‡R 2015 mv‡ji GBPGmwm cix¶v PjvKv‡j MZ 09 GwcÖj 2015 Zvwi‡L D™¢~Z Abwf‡cÖZ NUbvi †cÖ¶vc‡U K‡j ‡Ri mnKvix Aa¨vcK Rbve †gvt †gvbZvR DwÏb Gi ¶gv PvIq i chv©‡q cv aivi welqwU wbZvšBÍ Abwf‡cÖZ I ytLRbK| cix¶v †K‡› ª D™¢~Z Abwf‡cÖZ NUbvi wb®úwË wn‡m‡e †Kvb we‡ePbv‡ZB G NUbv MÖnYxq bq|”

The Chief Judicia Magistrate also found that:

“AZtci Aa¨‡¶i Dcw¯’wZ‡Z BD.Gb.I fvÛvwiqv ixUKvix‡ G.wm (j¨vÛ) Gi nvZ a‡i ¶gv PvB‡j n‡ebv, cv‡q a‡i ¶gv PvB‡Z n‡e g‡g© ejvi ci ixUKvix Rbve †gvt †gvbZvR DwÏb †gvevBj †Kv‡U©i mvRv ‡_‡K evuPvi Rb¨ wbiæcvq n‡q G.wm (j¨vÛ)

Gi cv a‡i ¶gv cÖv_©bv K‡ib g‡g© mv¶x‡ i e³ e¨ n‡Z NUbvi cÖv_wgK mZ¨Zv cvIqv hvq|”

From the investigation report of the High Powered

Committee formed by the Ministry of Education it appears that in the report dated 04.05.2015 the committee made a recommendation which runs as follows:

“10.1 chv©‡jvPbvi Av‡jv‡K D™¢~Z Abwf‡cÖZ NUbvi mswkøóZvq AmwnòzZv I Acwic°Zvi cwiPq † qvq Dc‡Rjv wbev©nx Kg©KZv© I mnKvix Kwgkbvi (f~wg)-†K Awej‡¤¦ Ab¨Î e jx/cÖZ¨vnvi Kiv †h‡Z cv‡i| GKB Kvi‡Y K‡j ‡Ri Aa¨¶ I

mswkøó mnKvix Aa¨vcK Rbve †gvt †gvbZvR DwÏb‡K Ab¨Î e jx/cÖZ¨vnvi Kiv

†h‡Z cv‡i| GQvov Abwf‡cÖZ NUbvq mswkøó‡ i m¤ú„³ Zvi ¸iæZ¡ we‡ePbvµ‡g

miKvi AvBbvbyM e¨e¯’v MÖnY Ki‡Z cv‡i|”

It need not be mentioned that teaching is one of the noblest profession and at the time of the occurrence the petitioner was performing as an Assistant Professor of Islamic History and Culture at the Bhandaria Government College, Pirojpur. The petitioner qualified in the BCS examination (In Education Cadre) in the year 2005.

The High Powered Committee formed by the Ministry of Education in its recommendation after investigation stated that:

“GQvov Abwf‡cÖZ NUbvq mswkøó‡ i m¤ú„³ Zvi ¸iæZ¡ we‡ePbvµ‡g miKvi AvBbvbyM e¨e¯’v MÖnY Ki‡Z cv‡i|”

Even High Court Division though discharged the Rule

for the reasons stated therein but observed that:

“The government is still in a position to take appropriate measures against the perpetrators.”

The high handedness of the respondent nos.6 and 7 is reflected from the investigation report submitted by the Chief Judicial Magistrate as well as High Powered Committee formed by the Ministry of Education. The High Powered Committee submitted its report on 04.05.2015 and the High Court Division passed the impugned judgment and order with the observation on 28.07.2016. Thereafter, almost 6 years have been elapsed but no action has been taken as per recommendation of the High Powered Committee as well as observation of the High Court Division.

It appears that the inquiry held by the High Powered Committee by the Ministry of Education found prima-facie truthfulness of the allegation. We are of the view that the Government may proceed on the basis of that investigation report without further delay.

Accordingly the civil petition for leave to appeal is disposed of with the above observation.

Communicate a copy of this order to the respondent nos.1 and 2 at once.

CJ. J. J. J.

The 7th April,2022.

Jamal / B.R./ Words-*2312*