IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 7320 of 2022

IN THE MATTER OF :

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

-And-

IN THE MATTER OF :  Debendra Chandra Baishnob

…… Petitioner -Versus-

Government of People’s Republic of  Bangladesh Represented by the Secretary, Ministry of Education, Bangladesh Secretariat, Ramna, Dhaka

....... Respondents

Mr. ABM Altaf Hossain, Senior Advocate with

Mr. Meah Muhammad Abdullah Zahid, Advocates

                 .....For the petitioner Md. Tusharf Kanti Roy, D. A. G. with

Mr. Md. Salim Azad, A.A.G and

Mr. Anis ul Mawa, AAG

........For respondents

Heard on : 15.11.2023 and  Judgment On : 23.11.2023.

Present:

Mr. Justice Mustafa Zaman Islam

&

Mr. Justice Md. Atabullah

Mustafa Zaman Islam, J; 

In this application under article 102 of the Constitution of People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the approval of the petitioner’s dismissal from service as Headmaster vide office order bearing Memo No.

BCe/¢nh/191/2019-2021/167(3) a¡¢lMx 24.02.2021 ¢MËx o f Chargoali K.Na. A. Multilateral High School, Police Station- Daudkandi, District-Cumilla (Annexure-L) should not be declared to have been without lawful authority and is of no legal effect and why the respondents should not be directed to reinstate the petitioner in the post of Headmaster and/or pass such other or further order or orders as to this Court may seem fit and proper. 

The facts necessary for disposal of the Rule, in brief are: The petitioner is a peace loving and law abiding citizen of Bangladesh and he was the Headmaster of Chargoali K.Na. A. Multilateral High school, Police Station-Daudkandi, Disttrict-Cumilla. The petitioner passed S.S.C examination in the year of 1983; passed H.S.C Examination in the year of 1985; subsequently the petitioner passed B.Com Examination-1990. He passed B.Ed Examination and also passed Bachelor in English Language Teaching (BELT) Examination from the Bangladesh Open University. The petitioner applied for the post of Headmaster, in response to the advertisement published by the concerned authority and they duly constituted selection committee selected the petitioner to be appointed for the post of Headmaster. Subsequently, on 13.12.2010 the respondent no. 10, Chairman, Managing Committee of the said school issued an appointment letter. Pursuant to that letter the petitioner joined the said school on 01.01.2011 and since then he has been discharging his duties honestly, sincerely and with full satisfaction of the authority concerned.

The petitioner was enlisted in the monthly pay order (MPO) being index No. 137588 and since then he has been receiving Government portion of his monthly salary and other financial benefit regularly without any interruption till temporary suspension. Mentioned here that the petitioner, earlier filed a writ petition which was pending for as in-re motion hearing and in the meantime, on 23.08.2020 the Respondent No. 10 submitted an application to the Respondent No. 8, Upazila Nirbahi Officer, Daudkandi, Cumilla to handover the key or Almeria and necessary documents of the schools and also for constituting an inquiry committee and the Respondent No. 8 after receiving the application directed to the Respondent No. 9, the Upazila Secondary Education Officer for taking necessary steps.

It is stated that on 03.09.2020 the Headmaster-in-Charge of Chargoali K.Na. A. Multilateral High school also submitted an application to the Respondent No. 9 for recovering the key of the office room and necessary document from the Headmaster. The Respondent No. 9, after receiving the application issued a letter vide Memo No. DgvwkKv/`vD`/Kzg/2020/172 ZvwiL 06/08/2022 wLªt by which directed the petitioner to handover the key of the office room and necessary paper to the Headmaster (in charge) of Chargoali K.Na.A. Multilateral High School but surprisingly suspended him on 23.08.2020. Be that, the Respondent No. 10 by misusing his power illegally reduced the MPO salary for 4 days of the petitioner in the month of August-2020. The Respondent No. 10 is illegally stopping to payment the allowance which is paid by the petitioner submitted an application to the Respondent No. 10 for payment of all arrear allowance but till date, he did not pay heed any. Thereafter, the petitioner on 30.08.2020 submitted an application to the Respondents thereby, requesting them to withdraw the order of suspension and reinstate him but the respondents has not receipt any reply till date. In the mean time, the Respondent No. 9, issued a letter vide memo dated 26.07.2020 to the Janata Bank Ltd. Daudkandi, Cumilla for inquiry into the fake signature of the President of the said School and on 28.07.2020 submitted a report vide memo dated 27.07.2020 wherein clearly stated that there is no involvement

of the petitioner regarding tempering of the fake signature by which     withdrawn the salary and bill voucher from the Janata Bank.

That being so, the respondent no. 4, issued a letter vide memo dated 24.02.2021 as evident as annexure L to the writ petition approved the proposal of the Managing Committee and also rejecting the application of the petitioner dated 28.09.2020 and thereby approved the dismissal of the petitioner from the service as Headmaster.

In the premises stated here in above, the petitioner having no other alternative and efficacious remedy filed the instant writ petition and obtained the Rule.

Mr. ABM Altab Hossain, the Senior Advocate appearing for the petitioner having placed the petition along with documents annexed hereto, and  first  up all submits that  the  petitioner  was  the Headmaster of the Chargoali K. Na. A. Multilateral High School, Daudkandi, Cumilla, he was appointed in the said post after compliance of all formalities and procedure

as required by the Rules and regulations. He submits that he has been receiving the Government portion of salary and other financial benefits regularly, without any interruption, till temporary suspension. But without compliance with the provisions of Rules and regulations and terms and condition of service regulation 1979, the petitioner was suspended by the

Managing Committee on 23.08.2020 with a malafide intention. But they

have not initiated any departmental proceeding against the petitioner by

way of any show case notice, although the petitioner has been kept under suspension till dismissing from the service as Headmaster without apprising him as to what was him fault and without bringing any allegation

against him by issuing show cause notice, as required by regulations 11 and

12 of the above mentioned Regulations. He submits that the petitioner on 30.08.2020 submitted an application to the respondents and thereby requesting them to withdraw the order by illegal suspension and reinstate

him but without disposing the petitioner’s representation, the Respondent

No. 4 issued a letter vide memo dated 24.02.2021 approved the proposal of

the Managing Committee and also rejecting the application by the petitioner and thereby approved the dismissal from the service as Headmaster.

He further submits that the petitioner has been penalized its utter violation of the said regulation 13 and 14 j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡ ®h¡®XÑl ®hplL¡l£ ú¥m ¢nrL­cl Q¡L¥l£l AhÙq¡ J naÑ¡ha£, 1979 but the Appeal and Arbitration Committee did not scrutinize the matter and as such the decision of the Appeal and Arbitration Committee is illegal, arbitrary, unlawful, and has been done without lawful authority and as such the rule

is made absolute.

Mr. Tushar Kanti Roy, the learned Deputy Attorney General and

Md. Md. Salim Azad, the learned Assistant Attorney General on behalf of respondents, has found in the difficult to show that there is a approval by

the Board as per law.

 We have considered the submissions of the learned Advocates both the side and perused the application with annexure, supplementary affidavit and other materials on record.

Before dealing with the rival contentions of the parties, (Board of Intermediate and secondary) as the action as impugned is under Regulations 11, 12 13 and 14 of Terms and Condition of service Regulation, 1979 with Probidhanmala of Managing Committee Probidhanmala- 2009, it would be appropriate to set out the said Regulations which reads as under-

Regulation 11. Punishment- A teacher who commits a breach of the provisions of these regulations or who is guilty of negligence of duty, inefficiency or corruption or who knowingly does anything detrimental to the interest of the school or is guilty of professional misconduct shall liable to all or any of following penalties namely-

1. Censure,
2. Withholding of increment for specified period
3. Recovery from pay of the whole or part of any pecuniary loss caused to the school by negligence of duty.
4. Removal from service and
5. Dismissal from service.

Explanation:- ...........................................................................

12. Power to empower penalty:- ...................................................
13. Suspension:-

1.   A teacher may be placed under suspension pending inquiry. The

power of suspending a teacher pending inquiry shall vest in the appointing authority.

2.    During suspension, a teacher shall be entitled to a subsistence

allowance at the rate of one half of his pay. While under suspension the employee shall not leave the place where be ordinarily resides to perform his duties on teacher without prior permission of the authority competent to suspend him.

14. Procedure for drawing proceedings- ..........................................

It appears from the above Regulations that the Respondent No. 4, under the Regulations 11, 12, 13 and 14 of the Service Regulations-1979 the Respondent. Appeal and Arbitration Committee approved the dismissal order of the petitioner by colorable exercise of the power, violation of the petitioner’s fundamental right. The provision of regulations 11, 12, 13 and 14 of Regulation-1979 relates to the punishment, power to impose penalty and suspension of the teachers, we have meticulously gone through each and every relevant Rules and Regulations as it has been mentioned above in this respect. In consideration of the submissions of the learned Advocate for the petitioner and relevant Rules and Regulations, it appears that section 13 of the said Regulation in the suspension of the teacher. As could be seen that proceeding  regarding temporary  suspension and dismissal of Head Master Mr. Debendra Chandra Baishnob have not been completed as per teachers employment Rules-1979. It appears that in the Board’s the Appeal and Arbitration committee’s meeting held on 21.01.2021, the dismissal of the Headmaster of the said School was approved, but the board was not

approved by the same as required by law. The appeal and Arbitration

Committee had no jurisdiction or power to dismissal of the petitioner from

the service as Headmaster without approval of the Board. No personal

hearing of the petitioner was conducted by the inquiry committee, most

illegally approved the resolution of the Managing Committee of the School

under the signature of the Secretary, Secondary and Higher Secondary

Education Board, Cumilla by order of the Chairman, which is arbitrary,

which and mechanical one.

The dismissal of the petitioner was never placed before the Board to

be constituted pursuant to section 12 of the “1961 p¡­ml Y¡L¡ j¡dÉ¢jL J EµQ

j¡dÉ¢jL ¢nr¡ ®h¡­XÑl ®hplL¡l£ ú¥m ¢nrL­cl Q¡L¥l£l AhÙÛ¡ J na¡Ñhm£ (Ordinance 33 of

1961)”. It is apt to here that on the face of the impugned memo dated

24.02.2021, it is evident that there is no mentioned of the Board meeting

held pursuant to section 12 of the ordinance 1961 for the purpose of

dismissal of the petitioner which is mandatory required of the said

ordinance. As such the dismissal order of the instant petitioner is ex-facie,

malafide and without lawful authority.

Now, we deal with the impugned order dated 24.02.2021, we would

like to reproduce the relevant portion of the impugned order which records

as follows:-

“Efk¤Ñš² ¢hou J p¤­œl f¢l­fТr­a S¡e¡­e¡ k¡­µR ®k, p¤­œ¡š² B­hc­el hÉ¡f¡­l Na 21-01-2021 a¡¢l­M Ae¤¢ùa ®h¡­XlÑ B¢fm Hä Bl¢h­VÊne L¢j¢Vl pi¡u Ql ®N¡u¡m£ M¾cL¡l e¡¢Sl Bq­jc EµQ ¢hcÉ¡m­ul jÉ¡­e¢Sw L¢j¢V J fÐd¡e ¢nrL ®c­h¾cÐ Q¾cÐ ¯ho·­hl hš²hÉ Hhw a¡­cyl c¡¢MmLa« L¡NSfœ¡¢c fk¡Ñ­m¡Qe¡u ®cM¡ ¢N­u­R ®k, fÐd¡e ¢nr L Se¡h ®c­h¾cÐ

¯ho·­hl p¡j¢uL hlM¡Ù¹ J hlM¡­Ù¹l fÐÙ¹¡h NqÊZ pwœ²¡¿¹ L¡kÑœ²j ¢nr L

Q¡L¤¢l¢h¢d, 1979 ®j¡a¡­hL pÇfæ Ll¡ q­u­Rz p¡j¢uL hlM¡Ù¹LlZ J hlM¡­Ù¹l fÙй¡h NËqZ pwœ²¡¿¹ L¡kÑœ²­j ®L¡e œ¦¢V f¢lm¢r a qu ¢ez

Hja¡hÙÛ¡u, B¢fm Hä Bl¢h­VnÊe L¢j¢Vl ¢pÜ¡¿¹ ®j¡a¡­hL Ql ®N¡u¡m£

M¾cL¡l e¡¢Sl Bq­jc EµQ ¢hcÉ¡m­ul fdСe ¢nr L Se¡h ®c­h¾cÐQ¾cаho·­hl

p¡j¢uL hlM¡­Ù¹l ¢hl¦­Ü Se¡h ®c­h¾cÐ Q¾cÐ °ho·­hl c¡­ulL«a 28-09-2020 a¡¢l­Ml B­hce e¡ j”¤l Ll¡ q­m¡ Hhw Eš² fdСe ¢nr ­Ll hlM¡­Ù¹l ¢ho­u

jÉ¡­e¢Sw L¢j¢Vl fÐÙ¹¡h Ae¤­j¡ce ®cu¡ ®N­m” ¡z

From the above impugned order, it appears that the Respondents

without following the Rules and Regulations and without holding proper

inquiry temporary suspended the petitioner and thereafter the petitioner has

been dismissal from the service as Headmaster its utter violation by the

said Regulations 13 and 14 of the ordinance 1979.  At the case in hand, the

appeal and Arbitration Committee did scrutinize the matter as well as

approved the regulation of the Managing Committee which is illegal and

arbitrary.    

In view of the aforesaid observations and discussions made

hereinabove, we are constrained to hold that the Rule has substance and is

bound to succeed.

In the result, the Rule is made absolute.

The impugned memo dated 24.02.2021, the approval of the

petitioner’s dismissal from service as Headmaster vide Memo No. BCe/¢nh/191/2019-2021/167(3) a¡¢lMx 24.02.2021 ¢MËx o f Chargoali K.Na. A.

Multilateral High School, Police Station- Daudkandi, District-Cumilla

(Annexure-L) is declared to have been without lawful authority and is of no legal effect.

The Respondents are directed to reinstate the petitioner in his service and give him all service benefits from the date of his suspension dated 23.08.2020 within 60 days from the date of receipt of the copy of this judgment in accordance with law.

However, there is no order as to costs.

Communicate the Judgment and Order at once.

Md. Atabullah, J:

                              I agree.