Sunday, December 16, 2018 | ePaper

Upholding the rule of natural justice

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Appellate Division :
 (Civil)
Md. Abdul Wahhab Miah  J
Md Imman Ali   J
AHM Shamsuddin Choudhury  J
Chairman, Rural Electrification Board at present (Bangladesh Rural electrification Board) Dhaka-----------Petitioner
                           Vs
Maziruddin Ahmed Khan and other ………………..Respondents*    
Judgment
 April 1st, 2015
Principle of natural justice
Justice must not only be done but also be seen to be definitely and manifestly done.
This was in serious breach of the first rule of natural justice. which is that no man shall be the judge of his own cause (nemo Judex in re sua). On the same account the House of Lords set aside even a decision by none other than the Lord High Chancellor of England (Dimes vs Grand Junction Canal, 1352 3 HLC 759)………….(15 & 14)
Cooper vs Wandsworth Board of Works. 1863 14CB (NS)180; R vs University of Cambridge, (1723 I str. 557); Ridge vs Baldwin [1964] AC 40; (Dimes vs Grand Junction Canal, 1352 3 HLC 759) and R vs Sussex Justices, ex-parte Mac art cartney, (1924 I KB 256) ref.
Sufia Khatun, Advocate-on-Record---For the Petitioner.
Abul Kalam Main uddin, Advocate. instructed by Zianul Abedin, Advocate-on-Record---For Respondent No. 1
Judgment
Md Imman Ali J: This civil petition for leave to appeal is directed against the judgement and order dated 5-3-2014 passed by the High Court Division in Writ Petition No.798 of 2013.
2. Facts as emerge from writ petition in brief are as follows:
The petitioner before us, an engineering graduate, also having an MBA degree, joined the Rural Electrification Board (REB) as a General Manager on 16-9-1989. On 4-102012, he was taken, by surprise when he received a show cause notice, which, according to him, contained irrelevant and concocted allegations, but he replied to it on 17-10-2012.
3. A Committee set up to inquire into the allegations, submitted its report on 23-8-2012.
4.     The Writ petitioner asserts that he was dismissed on 7-11-2012, without being given an opportunity of personal heating and without serving on him a second show cause notice. He preferred an appeal on 20-11-2012, but the appellate body summarily dismissed his appeal without considering the averments made in the memo of appeal and the order of the appellate body was a non-speaking one.
5.  In making the Rule absolute, the High Court Division observed that respondent No. 5 who actually issued the show cause notice also initiated the appeal process with negative recommendation to the appellate forum, as is revealed by the relevant documents. It went on to state that the writ respondents did not consider the memo of appeal and never provided an opportunity to the writ petitioner to defend his case by way of written statement or personal hearing, adding that the alleged inquiry was concluded some 76 days after the expiry of the statutory time limit, which is 30 days whereas rule 40 of REB's Service Rules provides that it is incumbent to dispose of such an appeal within 30 days. Again respondent No.5, who issued the show cause notice, also affixed his signature on the appellate order. The High Court Division iterated that the principle "audi alteram partem" was fully ignored in that the writ petitioner was not allowed to appear before the inquiry committee, adding that the respondents utterly failed to follow their own service Rules.
6. As we took the leave petition for hearing, Mrs. Sufia Khatun, the learned Advocate on Record, argued for the leave petitioner that the inquiry committee conducted inquiry fully in accord with REB Rules, which contains no provision for personal appearance. She added that the writ petitioner was given all opportunities to defend himself, so there was no breach of the principles of natural justice. She continued to submit that the inquiry was concluded within the stipulated period.
7.  Mr Abul Kalam Mainudin, the learned Advocate for the respondents before us, on the other hand, submitted that all the documents show that the principles of natural justice were violated.
8.  We have perused the judgement of the High Court Division and considered the connected papers as well as the submission of the learned Advocates appearing for the parties concerned.
9.  The fact that the leave petitioner conducted the inquiry without allowing the respondent before us to appear before the committee personally stands vindicated by the fact that REB's learned Advocate, submitted before the High Court Division and before us that REB Rules do not warrant personal appearance.
10.     Whether REB Rules so provide or not, the principles of fairness and natural justice demand this requirement, and as Byles, J. observed in Cooper vs Wandsworth Board of Works (1863 14CB (NS) 180). such provisions shall be implied, even if not expressed, unless expressly excluded by the concerned statute, because "justice of the common law will supply the mission of the legislature".
11.     Similarly in the classic. case of R vs University of Cambridge. (1723 1 stl: 557), i.e. Dr. Bentleys case, the Kings Bench gave a sermon that right to be heard is required by "the laws of God and man", establishing the theme that even if there are no positive words in a statute, requiring right to be heard, yet that provision shall be read into the statute. These observations were approved by the House of Lords in Ridge vs Baldwin [1964) AC 40.
12.  As the High Court Division rightly expressed, Articles 31 and 32 of our Constitution demand such rights.
13. The decision of the leave petitioner is also vitiated by the fact that the same person, i.e. respondent No.5, who issued the show cause notice also initiated the appeal process transmitting a negative message and also affixed his signature on the appellate decision.
14. This was in serious breach of the first rule of natural justice, which is that no man shall be the judge of his own cause (nemo Judex in re sua). On the same account the House of Lords set aside even a decision by none other than the Lord High Chancellor of England (Dimes vs Grand Junction Canal, 1852 3 HLC 759).
15. As was stated in R vs Sussex Justices, exparte Mac Cartney (1924 lKB 256) in respect to this principle, "Justice must not only be done but also be seen to be definite by and manifestly done".
16. The leave petitioners, thus have been in breach of both the principles of natural justice, wherefor its decision cannot pass the test of legality.
The leave petition is accordingly. Dismissed.

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