Tuesday, November 13, 2018 | ePaper

Wrong-doers be asked to explain first

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Appellate Division (Civil) :
Md Abdul Wahhab Miah J
Syed Mahmud Hossain J
Md Imman Ali J
Hasan Foez Siddique J
Mirza Hussain Haider J
Government of Bangladesh and others.....Pettioners
vs
Md Babul Howlader and others.........Respondents
Judgment
October 4th, 2017
Constitution of Bangladesh, 1972
Article 102(2)
The authority is bound to identify any wrong doing on the part of any individual and to seek his explanation before cancelling appointment letter.
The High Court Division rightly observed that the authority is always at liberty to take action against any individual who either suppressed any material information and/or took recourse to fraud or forgery in obtaining the appointment. We are fully in agreement with such observation and would not wish to condone any fraudulent or illegal activity on the part of the writ petitioners in obtaining their appointment. However, the authority is bound to identify any wrong doing on the part of any individual and to seek his explanation before cancelling his appointment letter. . ..... (11)
University of Dhaka vs Zakir Ahmed, 16 DLR (SC) 722 ref.
Ekramul Haque Deputy Attorney-General instructed by Haridas Paul Advocate-on- Record-For the Petitioners.
Mahbub Ali Senior Advocate. instructed by Syed Mahbubar Rahman     Advocate-on-Record-For Respondent No.2.
None Represented -Respondent Nos. 1, 3-215.
Judgment
Md Imman Ali J : This civil petition for leave to appeal is directed against the judgement and order dated 22-8-2016 passed by the High Court Division in Writ Petition No, 1363 of 2016 disposing of the Rule.
2. The facts of the case, in brief, are that all the writ petitioners came out successful in the recruitment of 3rd and 4th class employees of Sher-e-Bangla Medical College and Hospital, Barisal and upon appointment by the Medical College, joined and are performing their functions under the authority concerned in different posts. They were recruited vide appointment letters dated 1-12-015, 9-12-2015 and 10-12-2015 respectively. Writ petitioner No. 1 joined as Stenographer-cum-Computer Operator, writ petitioner No. 2 joined as Steno Typist-cum-Computer Operator, writ petitioner No. 3 joined as Photographer, writ petitioner No.4 joined as Instrument Technician, writ petitioner Nos. 5 and 6 joined as Medical Record Keeper, writ petitioner Nos. 7 and 8 joined as Telephone Operator, writ, petitioner No. 9 joined as Instrument Caretaker (ICT), writ petitioner No. 10 joined as Driver, writ petitioner Nos. 11-15 joined as Office Assistant (MLSS) Computer Operator, writ petitioner Nos. 16-20 joined as Electrician/Liftman/Mechanic, writ petitioner Nos. 21-124 joined as Office Assistant (MLSS), writ petitioner Nos. 125-128 joined as Security Guard, writ petitioner Nos. 129-143 joined as Cook and writ petitioner Nos. 144-2 15 joined as Cleaner under respondent No.4 and pursuant to their joining report, they have been discharging their duties with the satisfaction of the authority concerned. The Senior Assistant Secretary, Ministry of Health and Family Welfare writ respondent No.3, issued a circular on 21-5-2013 to recruit 172 (one hundred and seventy two)3rd and 4th class employees in the Sher-e-Bangla Medical College and Hospital, Barisal for different posts namely Stenographer-cum Computer Operator, Stenotypist-cum-Computer Operator, Photographer, Instrument Technician. Office Assistant-cum-Computer Typist, Medical Record Keeper, Telephone Operator, Driver. Electrician, Instrument Caretaker (lCT), Office Assistant (MLSS), Guard, Cleaner and Cook. Later on, the time limit for recruitment of the said 172 posts was extended several) times on 21-4-2014, 21-9-2014, 6-11-2014, 12-5-2015 and lastly on 12-11-2015. The said recruitment circular was also published in the Daily Samakal on 22-9-2014 and in the Financial Express on 23-9-2014 (annexure-A, A-I, A-2, A-3, A-4, A-5, A-6, and A-7). In addition to the above stated 172 sanctioned posts, the Deputy Secretary (Administration). Ministry of Health and Family Welfare supplemented the said recruitment circular on 27-4-2015 and proposed to recruit a further 54 (fifty four) 3rd and. 4th Class employees in the post of Office Assistant, Cook, Cleaner and Security Guard on top of the earlier 172 posts in the Shcr-e-Bangla Medical College and Hospital and after this circular, the total number of posts to be recruited was increased to 226. (annexure-B). All writ petitioners applied against their respective posts and submitted their applications to the concerned authorities within the time frame as stipulated in the said recruitment circular. Thereafter, the applicants sat the written tests and attended the viva voce as necessary and in due course they received their appointment letters and all the writ petitioners joined in their respective posts by respective joining reports to writ respondent No.5 within the time frame set in the appointment letters (annexure-G Series). All the writ petitioners were appointed after complying all the necessary formalities and after joining, they have been discharging their duties and responsibilities with due diligence and to the satisfaction of the authority and they have been signing in their daily registrar as per Service Rules (annexure-II Series). While the writ petitioners were working in their respective posts, suddenly, the Deputy Secretary, Par-2, Ministry of Health and Family Welfare, writ respondent No. 2, issued a letter to the Director and Chairman, Recruitment Committee, writ respondent No. 5, on 18-1-2016 stating that from different sources and, on a preliminary inquiry, it was revealed that there was corruption in the recruitment of 3rd and 4th class employees who joined against the said circular and asked the Notice recipient No. 3 to stop giving financial benefits to the employees who joined against the said recruitment circular and further asked to stop receiving appointment letter of any employees who are yet to join against the said recruitment.
The said letter has not been forwarded to the writ petitioners, rather the writ petitioners obtained a copy of the same from the official of writ respondent No. 4. The said order is impugned in the instant writ petition. It is, stated that before passing the impugned order, no notice was ever been served upon the writ petitioners and they were never heard and no inquiry was held, thus the order is violative of the principle of natural justice. The writ petitioners having joined pursuant, to the appointment letters have a legitimate expectation that they will be allowed to work in their appointed posts.
3. Writ respondent No. 2 contested the Rule by filing affidavit-in-opposition contending, inter alia that after getting' information, from writ respondent No.1 regarding fraud and irregularity in connection with the appointment of 3rd and 4th class employees of Sher-e-Bangla Medical College Hospital, Barisal, the concerned Ministry formed a 3 member Enquiry Committee, headed by a Joint Secretary for holding enquiry. The said Enquiry Committee submitted a report on 12-1-2016 stating that a gigantic, fraud/irregularity had been committed by the appointing authority and accordingly writ respondent No. 2 stayed the appointment procedure by the impugned Memo No. 45.143. 027.00.00.001.2015-60 dated 18-1-2016. It is stated that as per the report of the said enquiry committee the concerned authority has started departmental preceding against the persons who were involved with the said fraud/irregularity in connection with appointment procedure.
4. In due course after hearing both the parties, by the impugned judgement and order the said Rule Nisi issued, by the High Court Division was disposed of declaring the impugned memos to have been made without lawful authority and of no legal effect.
Hence, the writ respondents are now before us having, filed the instant civil petition for leave to appeal.
 (To be continued)
5. Mr, Ekrarnul Haque, learned Deputy Attorney-General appearing on behalf of the petitioners submitted that the appointing authority from, the very beginning has been committing fraud/irregularities. with the appointment process of the Sher-e-Bangla Medical College Hospital Barisal and those were proved by the Enquiry Committee and writ respondent No. 1 as per Article 18 of the appointment Circular, issued the impugned Memo No. 45.143.027.00.001.2015-60 dated 18-1-2016 and as such the issuance of the said Memo is absolutely legal and lawful and the High Court Division without considering the same passed the impugned judgment and order which is liable to be set aside. He further submitted that after scrutiny of the said enquiry report it is clear that a gigantic fraud/irregularity has been committed by the appointing authority and accordingly writ respondent No. 2 stayed the appointment procedure by the impugned Memo No. 45.143.027.00.00.001.2015-60 dated 18-1-2016 and the High Court Division without considering the same passed the impugned judgement and order which is liable to be set aside. He submitted that after getting information from writ respondent No. 1 regarding fraud and irregularity in connection with appointment of 3rd and 4th class employees of Sher-e-Bangla Medical College Hospital, Barisal, the concerned Ministry framed a 3 member enquiry committee for holding enquiry. The said enquiry committee visited the said hospital and collected evidence from the appointment committee and scrutinized all the papers/documents, oral evidence and submitted a report on 12-1-2016 and the allegations having been proved beyond reasonable doubt the appropriate authority passed the impugned Memo but the High Court Division without considering the same disposed of the writ petition which being not maintainable the impugned judgment is liable to be set aside.
6. Mr Mahbub Ali, learned Senior Advocate appearing for the respondent No. 2 made submission in support of the impugned judgement and order· of the High Court Division.
7. We have considered the submissions of the learned Advocate appearing for the parties concerned, perused the impugned judgement of the High Court Division and other connected papers on record.
8. The writ petitioners in response to advertisement applied for the jobs advertised and having gone through the process of application, after sitting in written examination/viva voce interview they were issued appointment letters and many of them commenced working after submitting joining letters. Admittedly, the impugned memo was issued preventing those who had not yet joined from joining and those who had joined from continuing their service. It is also apparent that no opportunity was given to any of the writ petitioners to be heard.
9. The High Court Division observed that no show cause notice was issued against the allegations made against the writ petitioners although the inquiry report mentioned that there were serious allegations against some of them. Referring to the decision in the case of University of Dhaka vs Zakir Ahmed reported in 16 DLR (SC) 722, the High Court Division observed that the writ petitioners have every right to be heard.
10. Our considered view is that the writ petitioners having been issued appointment letters could not be whimsically deprived of their hard-earned opportunity of earning a livelihood without being told the reason for the cancellation of their appointment letters.
11. The High Court Division· rightly observed that the authority is always at liberty to take action against any individual who either suppressed any material information and/or took recourse to fraud or forgery in obtaining the appointment. We are fully in agreement with such observation and would not wish to condone any fraudulent or illegal activity on the part of the writ petitioners in obtaining their appointment. However, the authority is bound to identify any wrong doing on the part of any individual and to seek his explanation before cancelling his appointment letter.
12. In view of the discussion above, we do not find any illegality or impropriety in the impugned judgement and order of the High Court Division.
Accordingly, the civil petition for leave to appeal is dismissed.

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