IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 8819 of 2019

IN THE MATTER OF:

An application under Article 102 of the Constitution of the People's Republic of Bangladesh.

AND

IN THE MATTER OF:

Md. Nurul Haque Sarder

….Petitioner Versus

The Government of Bangladesh and others

….Respondents

Mr. K.B Rumy, Advocate

….For the Petitioner Mr. Prince Al Masud, A.A.G with

Mr. Zulfia Akhter, A.A.G with

Miss. Anna Khanom (Koli) A.A.G

........ For the Respondents

Present:

Mr. Justice Md. Jahangir Hossain

And

Mr. Justice S.M. Masud Hossain Dolon

Heard on: 04.01.2024, 13.02.2024, 18.02.2024, 28.02.2024, 29.02.2024. Judgment on: 07.03.2024

S.M. Masud Hossain Dolon, J:

On an application under article 102 of the Constitution, the Rule Nisi has been issued in the following terms:

"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the order contained in Memo No. 4¢S/1453-j/2010/4820/9 a¡¢lMx 10.07.2016 signed by the respondent No. 6 stopping the Monthly Payment Order (MPO) of the petitioner (Annexure-G), should not be declared to be without lawful authority and is of no legal effect and as to why a direction should not be

given upon the respondents to pay the petitioner’s monthly salary with all benefits including arrears from July 2016 and /or pass such other or further order or orders as to this Court may seem fit and proper.”

Facts relevant for disposal of the Rule in short, are that the petitioner was enlisted as an Assistant Teacher (science) in the Monthly Pay Order (MPO) being Index No. 210644. Subsequently he was appointed as the Headmaster of Sonal Bangla Maddhayamik Biddalaya on 01.08.2006 and since then he has been discharging his duties and responsibilities with sincerity and honesty and with full satisfaction of the authority concerned.

On 24.04.2016, an anonymous letter was sent to Bangladesh Mahila Parishod on the allegations of sexual harassment against the petitioner. After receiving the anonymous letter Bangladesh Mahila Parishod transferred the letter to School Inspector of Secondary and Higher Secondary Education, Barisal. Then Inspector of Schools, Board of Secondary and Higher Secondary Education, Barisal requested the Upazila Nirbahi Officer, Uzirpur, Barisal to investigate

the matter and send a report. After receiving the letter, Upazial Nirbahi Officer, Uzirpur, Barisal submitted an inquiry report. Then

the School Inspector by memo No. h¢n­h¡/¢hA/284(2)/2016/680 a¡¢lM 22/05/2016 asked the President, Managing Committee of Sonar Bangla Secondary School, Barisal to inform the board within 7 (seven) days after taking action against the accused headmaster as

per rules. The President of Managing Committee did not take any action against the headmaster. Therefore, the School Inspector removed him from the post of president of the school managing committee by memo no. h¢n­h¡/¢hA/284(2)/2016/1043 a¡¢lM 13 Sm¤¡C, 2016. Then without informing anything or issued any show cause notice upon the petitioner by an order contained in memo no. pÈ¡lL ew 4¢S/1453-j/2010/4820/9, a¡¢lM 10/07/2016 signed by the Assistant Director, Secondary Wing Directorate of Secondary and Higher Education, Dhaka stopped the MPO of the petitioner. Thereafter the petitioner requested the concerned authority on several times to withdraw the order of stopping his monthly payment and release his salary but the authority concerned did not take any step as yet.

Thereafter, having found no other equally efficacious remedy the petitioner filed the instant writ petition and obtained the Rule.

Mr. K.B. Rumy learned Advocate for the petitioner submits that the MPO of the petitioner has been stopped since July 2016 till today though no proceedings has initiated against him or he has not been suspended or dismissed from his service or no inquiry has been done by the authority against him before or after stopping the MPO. Therefore, stopping the MPO of the petitioner is illegal, arbitrary, unreasonable and malafide, should be declared to have been made without lawful authority and is of no legal effect. He further submits that public functionaries must be vigilant, fair and duty bound in

exercising the statutory power with which they are vested in for the public interest, but in the instant case the respondents willfully and deliberately have not acted in accordance with law, which is highly arbitrary and malafide and as such the order of stopping the MPO of the petitioner is utmost illegal, arbitrary, exfacie malafide without lawful authority. Mr. K.B. Rumy also submits that the petitioner need not to file Review Petition, in this regard he referred Ataur Mridha alias Ataur vs State, reported in 73 DLR(AD) 298. Mr. Rumy lastly submits that the Rule may kindly be absolute for the ends of justice.

On the otherhand Mr. Prince Al Masud the learned Assistant Attorney General submits that the allegation brought against the petitioner was proved and then concerned authority rightly stopped the MPO of the petitioner. There were no violation of Rule and Law to stop the decision of MPO’s facilities of the petitioners. Lastly he submits that petitioners wrongly and premature cause and stage filed this Writ Petition before this Court and prayed for discharged the Rule.

We have heard the rival submission of both the parties and also perused the writ petition and all other relevant papers submitted by the petitioner in connection with the contents of this writ petition and also considered affidavit in oppositions filed by the Respondent No. 2, Director General, Directorate of Secondary and Higher Secondary Education. It appears that following an anonymous letter alleging sexual harassment of a female student against the headmaster, the Upazila Nirbahi Officer, Uzirpur made an inquiry report annexure-5(2) by memo No. 05.10.0694.007.01.003.16.299 dated 11.05.2016. On scrutiny of inquire report dated 11.05.2016 annexure-5(2), it appears that the Upazila Nirbahi Officer only considered an application for exemption from charge of the petitioner filed by managing committee, Teachers and employees and students of the school and he observed that the explanation given on behalf of the headmaster in the said application is not true at all. The petitioner on 10.07.2016 filed an application to the Director General of Secondary and Higher Secondary Education and denied any allegation against him is falsified by interest quarter and prayed for released his government portion of money.  Against which instant writ petition was filed on the ground that no proceedings has been initiated against the petitioner and he has not been suspended or dismissed from his service or no inquiry has been done by the authority against him before or after stopping the MPO.

In this stage the learned Assistant Attorney General Mr. Prince Al Masud vehemently argued that the petitioner had challenged the order dated 10.07.2016, Annexure G, which had been required to issue show cause notice to the petitioner as to why his government portion of money should not be permanently stopped and also required investigation of the sexual harassment by the petitioner. Mr. Prince Al Masud abundantly submits that the investigation has not been completed due to petitioner filed the instant writ petition. On scrutiny, we found the impugned order was issued on July 10, 2016 and the petitioner filed the writ petition on August 4, 2019, while the petitioner filed the instant writ petition after 3(three) years and 1(one) month was stopping his MPO. The Respondents could not investigate the offence of sexual harassment against the petitioner more than 3 years therefore Mr. Prince Al Masud, the learned Assistant Attorney General’s submissions cannot be acceptable in this regard.

It is also required to adjudicate when the authority concern

can stop MPO, we therefore considered the Regulation 18 of the

­hplL¡l£ ¢nr¡ fË¢aù¡­el (ØL¥m J L­mS) SehmL¡W¡­j¡ J Hj,¢f,J e£¢aj¡m¡- 2021 which runs as follows:-

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fË¢af¡me  e¡  Ll­m  pw¢nÔø  ¢nrL-LjÑQ¡l£  Hhw  fË¢aù¡e  fÊd¡­el ®hae-i¡a¡¢c Øq¢Na/h¡¢am Ll¡ q­hz

On scrutiny, the Regulation 18.1 of the ­hplL¡l£ ¢nr ¡ f¢Ëaù¡­el (ØL¥m J L­mS) SehmL¡W¡­j¡ J Hj,¢f,J e£¢aj¡m¡-2021, it appears that the MPO of a teacher can be withdraw/stopped, curtailed, cancelled when furnishing of false information, recruitment of illegal teachers, display  of  fake  branch/false  studentship,  malpractice  in  public examination  and  the  decision  of  the  Appeal  and  Arbitration Committee  of  Secondary  and  Higher  Education,  Ministry  of Education/ Department/Board has not complied with, then only the authority may suspend/cancel the MPO of the teacher concerned. But it is crystal clear that none of the events mentioned in the nethimala has taken place in the present case.

The learned Assistant Attorney General Mr. Prince Al Masud raised another question that the petitioner wrongly and premature cause and stage filed this Writ Petition before this Division. In this case the petitioner had filed representation on 10.06.2016 to the Director  General  for  released  his  MPO  before  he  filed  this  writ petition, it is tantamount to be filed review petition.

It is also required to adjudicate when the teacher/employee of

the non-government school can suspend them, in this circumstance

we considered clause 19 of the  ­hplL¡l£ ¢nr¡ fË¢aù¡­el (ØL¥m J L­mS) SehmL¡W¡­j¡ J Hj,¢f,J e£¢aj¡m¡-2021

Nqª£a

In the present case, it appears that one Md. Aminul Islam, Additional Chief Judicial Magistrate filed Miscellaneous Case No. 1 of

2020 (Uzirpur) before Chief Judicial Magistrate, Barishal. Thereafter

the case was transferred to the learned Senior Judicial Magistrate,

3rd Court, Barishal for hearing. The learned Court framed Charge

against the petitioner under section 354 of the Penal Code. The

learned Senior Judicial Magistrate by Judgment and Order  dated 19.07.2023  acquitted  the  petitioner  from  charge.  On  scrutiny  of

clause 19 of the ­hplL¡l£ ¢nr¡ fË¢aù¡­el (ØL¥m J L­mS) SehmL¡W¡­j¡ J Hj,¢f,J e£¢aj¡m¡-2021 it appears that in private cases not related to

MPO, if a teacher is found innocent by court of law, the Department

of  Secondary  and  Higher  Education,  Ministry  of  Education  will consider  the  matter  legally.  Therefore,  it  appears  that  no impediment  to  pay  the  government  portion  of  money  to  the petitioner.

So,  In  view  of  the  above  discussion  the  petitioner  filed representation  to  the  Director  General,  Secondary  and  Higher Secondary  Education,  Dhaka  as such  the  present writ  petition  is maintainable. Since the Respondents were not investigated sexual

harassment to a female student by the petitioner within 03(three) years of the alleged sexual harassment and no departmental proceeding was taken place against the petitioner and the petitioner was acquitted the offence under section 354 of the Penal Code before a competent court and respondent did not duly comply with all requirement of law therefore stopped the MPO of the petitioner, annexure-G is without lawful authority and is of no legal effect.

In view of the above facts and circumstances and the provision of law quoted above, we find substances in the submission of the learned Advocate for the petitioner.

Thus, we find merit in this Rule.

Accordingly, the Rule is made absolute. The Respondents are directed to pay the MPO of the petitioner and also pay his all arrear salaries within 60(sixty) days from the date of the receipt of this judgment.

However, there would be no order as to costs. Md. Jahangir Hossain, J:

I agree.

Asad/B.O