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Suspension order be period specific, subject to proceedings pending

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23rd-Sep-2017       
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High Court Division :
(Special Original Jurisdiction)
Naima Haider J
Abu Taher Md Saifur Rahman J
Salma Begum ......Petitioner
vs
Government of Bangladesh, represented by the Secretary by the Secretariat, Dhaka and others .... Respondents
Constitution of Bangladesh, 1972
Article 102(2)
An order to be a valid suspension order, the same must contain the period for which the incumbent shall remain suspended and such suspension order can only be issued when a disciplinary proceeding is pending. The suspension order of the petitioner neither stipulates the period for her suspension nor the disciplinary proceeding can be said to be pending. The Board has found in its inquiry that the allegation against the petitioner that led to her suspension had no substantive basis and as a result, it ought to have struck out the decision of the managing committee and require the managing committee to allow the petitioner to join the service. . ..... (18)
Nurun Nabir Sarket vs Secretary, Ministry of Education, 68 DLR 125 anti Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation, [1948] 1 KB 223 ref.
HM Shanjid Siddique, Advocate -For the Petitioner.
Md Mokleshur Rahman, DAG Samarendra Nath Biswas, AAG and Farida Yeasmin, AAG-For the Respondents.
Judgment
Naima Haider J : In this application under Article 102 of the Constitution of the People's Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the inaction of the Respondent No.3 to take necessary measures against the Managing Committee (Adhoc) of the Dhamrai Girls High School, Dhamrai, Dhaka" under Rule 38(2) of the মাধ্যমিক ও উ"চ মাধ্যমিক শিক্ষা বোর্ড, ঢাকা (মাধ্যমিক ও উ"চ মাধ্যমিক স্তরের বেসরকারী শিক্ষা প্রতিষ্ঠানের  গভর্ণিং বডি ও ম্যানেজিং কমিটি) প্রবিধানমালা, 2009, for their failure to comply with the order as contained in Memo No. 239/XvKv/`t/5604 dated 30-10-2016 issued by the Respondent No.3 directing the respondent No. 7 to reinstate the petitioner in her position as the Assistant Teacher of the concerned School within 15 (Fifteen) days of receipt of the letter shall not be declared to be without any lawful authority and is of no legal effect and as to why a direction shall not be issued upon the respondent Nos. 3, 5 and 7 to reinstate the petitioner in the post of Assistant Teacher of the Dhamrai Girls High School, Dhamrai, Dhaka and to pay her full salary or the balance amount of the full payment of the petitioner's salary due from the date of her temporary suspension on 20-6-2015 till joining of the service and/or such other or further order or orders passed as to this Court may seem fit and proper.
2.  The case of the petitioner, as set out in the Writ Petition, in short, is as follows:
The petitioner was appointed as an Assistant Teacher of the Dhamrai Girls High School, Dhamrai, Dhaka on 10-2-1983 and her service was made permanent on 15-12-2010. The petitioner is enlisted for receiving Monthly Pay Order (MPO) having Index No. 158930. As the senior most teacher of the School, she acted as the Assistant Head Mistress prior to her temporarily suspension on 20-6-2015 though the petitioner had earlier lodged a complaint against the Managing Committee of the School to the Board of Intermediate and Secondary Education, Dhaka because she was not promoted to the post of Head Mistress of the school albeit she was the senior most teacher. The Board of Intermediate and Secondary Education in its letter dated 25.05.2014 bearing Memo No. 239/XvKv/`t/3655 had issued a direction to all the Non-Government schools to make appointment to the position of Principal by following the seniority amongst the assistant teachers of the school. The aforesaid complaint filed by the petitioner to the Board, the Managing Committee of the school issued a letter, bearing Memo No. avDevwe`¨v/2015/31 dated 20-6-2015, temporarily suspending her from the position of Assistant Head Mistress on the allegation that “ম্যানেজিং কমিটি সম্পর্কে বিভ্রান্তিমূলক অসত্য তথ্য দিয়ে বিভিন্ন অফিসে ভিত্তিহীন ও কাল্পনিক অভিযোগ করে যা"েছন।” and also issued a show-cause letter. The petitioner provided reply to the show-cause letter, but the proceedings that had been drawn against her came to a halt and the Managing Committee remained surreptitiously silent without taking any further steps.
3. Consequently, the petitioner made representations to the Board on 22-6-2015 and 16-5-2016 seeking redress against her temporary suspension, but the Board did not pay any heed to those representations.
4. Thereafter, the petitioner filed a writ petition, being Writ Petition No. 7495 of 2016, before this Court challenging the inaction of the respondent Nos. 3-5 to take necessary steps for withdrawal of the temporary suspension of the petitioner from the post of Assistant Head Mistress (Acting) at the Dhamrai Girls High School, Dhamrai, Dhaka on the basis of her representations dated 16-5-2016. On 14-6-2016, a Division Bench of this Court dispose of the said writ petition by directing respondent No.3 (The Chairman, Secondary and Higher Secondary Education Board, Dhaka), to take up and dispose of the petitioner's application dated 16-5-2016, as evidenced by Annexure- J, within a period of 60 (sixty) days from the date of receipt of the certified copy of the order passed today, in accordance with law.
5. Pursuant to the said order dated 14-6-2016, respondent No.3 conducted an inquiry on 9-10-2016. The inquiry officer found veracity in the complaint lodged by the petitioner against the managing committee of the School. Thereafter, the Board under the signature of the respondent No.5, issued the Memo dated 30-10-2016, directing the managing committee to reinstate the petitioner in her position as the Assistant Teacher of the concerned School within 15 (Fifteen) days of receipt of the letter. However, the managing committee did not allow the petitioner to join the service disregarding the direction given by the Board.
6. Finding no other alternative efficacious remedy, the petitioner has moved this Court and obtained the instant Rule Nisi.
7. The respondents did not enter appearance by filing affidavit in opposition, however, learned Deputy Attorney General made oral submission against this Rule.
8. Mr HM Shanjid Siddique, learned Advocate appearing on behalf of the petitioner submits that the petitioner had been serving as the Assistant Teacher of the Dhamrai Girls High School for the last 34 years since the year 1983. During this long tenure of her service, there had been no allegations of misconduct against her. She acted as the Assistant Head Mistress prior to her order of temporary suspension. Although she is the senior-most teacher, the managing committee of the school gave appointment as Head Mistress to a teacher who was less experienced then her in violation of a notification dated 25-5-2014 issued by the Board.
The petitioner thus lodged a complaint against the managing committee to the Board and the managing committee of the School as a punitive measure temporarily suspended her on 20-6-2015. The petitioner has been subjected to temporary suspension for the last 19 (nineteen) months and the purported departmental proceedings drawn against her have come to a halt. The said conduct of the respondent No. 7-8 is tantamount to rendering her to a punishment for an indefinite period.
9. Mr Siddique further submits that it has been settled by this Hon'ble Court that a person cannot be kept under temporary suspension for more than 60 (sixty) days which is already decided on the decision of Nurun Nabir Sarker vs Secretary, Ministry of Education, reported in 68 DLR 125.
10. He further contends that the petitioner had sought redress from the respondent No.3 (i.e. the Board) and its inaction to draw proceedings against the managing committee of the concerned School under Rule 38(1) of the মাধ্যমিক ও উ"চ মাধ্যমিক শিক্ষা বোর্ড, ঢাকা (মাধ্যমিক ও উ"চ মাধ্যমিক স্তরের বেসরকারী শিক্ষা প্রতিষ্ঠানের  গভর্ণিং বডি ও ম্যানেজিং কমিটি) প্রবিধানমালা, 2009, 2009 is ex-facie and arbitrary inasmuch that the provisions of the said Probidhanmala clearly directs the Managing Committee of a Non-Government School to strictly adhere to the orders issued by the Board from time to time and in case of default the managing committee of the school is susceptible and liable to the consequences as laid down in Rule 38(1).
11. We have perused the writ petition, its annexures, and others materials on record.
12. On perusal of the impugned order of temporary suspension it appears that the allegation brought against the petitioner is ambiguous and vague. The letter does not adequately set out the case against the petitioner and only states that “ম্যানেজিং কমিটি সম্পর্কে বিভ্রান্তিমূলক অসত্য তথ্য দিয়ে বিভিন্ন অফিসে ভিত্তিহীন ও কাল্পনিক অভিযোগ করে যা"েছন।” The letter does not speak and does not reveal as to what was the compliant lodged by the petitioner to different offices against the managing committee and how it amounted to a misconduct provided that the petitioner as a teacher has a legitimate right to approach to the Board for redress if she has been prejudiced by a decision of the managing committee.
13. It was brought to our notice that the disciplinary proceedings that have been initiated against the petitioner on 20-6-2015 which did not proceed any further. In addition, the Board has conducted an inquiry pursuant to an order of this Court in which it found that the allegation that led to the disciplinary proceeding against the petitioner was groundless. Consequently, the Board had directed the managing committee to allow the petitioner to join within 15 days vide a letter dated 30-10-2016, but the managing committee did not pay any heed to it.
14. In these premises, the only plausible conclusion we can draw is that the disciplinary proceedings against the petitioner was premotivated out of vengeance for standing against the decision of the managing committee and tailored to harass and humiliate her. The action of the managing committee against the petitioner is arbitrary, vindictive and amounts to colourable exercise of power.
15. We further take in to account that the Board of Intermediate and Secondary Education, Dhaka is empowered under Rule 38(1) of the gva¨wgK I D"P gva¨wgK wkÿv †evW©, XvKv (gva¨wgK I D"P gva¨wgK ¯Í‡ii †emiKvix wkÿv cÖwZôv‡bi  MfwY©s ewW I g¨v‡bwRs KwgwU) cÖweavbgvjv, 2009, to proceed against the managing committee of a school on the ground of non-compliance with the law, inefficiency, mismanagement and financial irregularity. A statutory body vested with the regulatory power cannot sit idle otherwise the purpose for which the power had been conferred would be futile. The Board as the controlling authority of the Non-Government schools shall scrutinise any decisions of the managing committee if it comes to their attention that it was taken in violation of law, mala fide or without following of the proper procedure under Section 38(2) of the said Probidhanmala.
16. Moreover, if an inactivity on the part of an executive body without a lawful cause is prejudicial to the citizens, this Court by way of judicial review, speciafically under the writ of mandamus under Article 102(2) (a) (i) of the Constitution, can require the executive authority to do what it is legally required to do. Inaction or inactivity on the part of executive authority can be 'unreasonable' in the terms of Associated Provincial Picture Houses Ltd. vs Wednesbury Corporation [1948] 1 KB 223 if it has the consequence of affecting the livelihood or liberty of the individual being aggrieved by such inaction.
17. Reverting back to the case before us, it is stated in the substantive writ petition that the petitioner will retire on 2-6-2017 having served in the School as the Assistant Teacher for 33 years. She had been kept under temporary suspension for about 2 years and her suspension for such a prolonged period had affect on her livelihood. The law as it now stands is that no person shall be kept under suspension beyond 60 (sixty) days from the date of his/her suspension and we find no reason to depart from this principle in the case before us. In support of this, the learned Advocate for the petitioner referred us to a decision of Nurun Nabir Sarker vs Secretary, Ministry of Education, reported in 68 DLR 125, in which the Hon'ble High Court Division held that:
"In the absence of any law providing otherwise, no person shall be kept under suspension beyond 60 (sixty) days from the date of his/her suspension. If the suspension continues for further period, exceeding 60 (sixty) days, then the person suspended shall be entitled to receive full pay, insistence of subsistence allowance, till the suspension order /letter ends up in a final order."
18. Thus an order to be a valid suspension order, the same must contain the period for which the incumbent shall remain suspended and such suspension order can only be issued when a disciplinary proceeding is pending. The suspension order of the petitioner neither stipulates the period for her suspension nor the disciplinary proceeding can be said to be pending. Moreover, the Board has found in its inquiry that the allegation against the petitioner that led to her suspensior had no substantive basis and as a result, it ought to have struck out the decision of the managing committee and require the managing committee to allow the petitioner to join the service.
19. In view of the above discussions made hereinbefore, we find merit in this Rule.
20. Accordingly, the Rule is made absolute.
21. The inaction of the Respondent No.3 to take necessary measures against the Managing Committee (Adhoc) of the Dhamrai Girls High School, Dhamrai, Dhaka under Rule 38(2) of the gva¨wgK I D"P gva¨wgK wkÿv †evW©, XvKv (gva¨wgK I D"P gva¨wgK ¯Í‡ii †emiKvix wkÿv cÖwZôv‡bi  MfwY©s ewW I g¨v‡bwRs KwgwU) cÖweavbgvjv, 2009, 2009 for their failure to comply with the order as contained in Memo No. 239/XvKv/`t/5604 dated 30-10-2016 issued by the Respondent No.3 is declared to be without any lawful authority and is of no legal effect.
The respondent Nos. 3, 5 and 7 are directed to allow the petitioner to join in the post of Assistant Teacher of the Dhamrai Girls High School, Dhamrai, Dhaka and to ensure payment of her full salary or the balance amount of the full payment of the petitioner's salary due from the date of her temporary suspension on 20-6-2015 till joining of the service within 15 (fifteen) days of receipt of the copy of this judgment and order.

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