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BREAKING NEWS:

Colorable exercise of power unlawful

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18th-Nov-2017       
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High Court Division :
(Special Original Jurisdiction)
Md Rezaul Haque J
Md Khurshid Alam
Sarkar J
Judgment
July 27th, 2016
Mostafiz Khan (Md) ..........Petitioner
vs
Bangladesh and others.......Respondents
Constitution of Bangladesh, 1972
Article 102(2)
It is well settled that a probationer has no right to the post if he is found unsuitable and an order of termination is not improper but it must be termination simplicitor, there is no scope of colorable exercise of power as to stigma in nature.
In the instant case though the probationary period of petitioner was elapsed much earlier and a show cause notice was issued upon him but as per Probidhanmala, 2005 neither any formal departmental proceeding was started nor inquiry was held nor he was not asked to appear before any enquiry committee, nor any second show cause, notice was served upon him but the authority has terminated him from the service with a stigma. So, it is clear that natural justice has been violated .... (16 & 17)
Constitution of Bangladesh, 1972
Article 102(2)
An employer cannot take away the valuable time of the life of a person keeping him as probationer in the service for many years. Human life is short and there is specific age for having a job, so, if any person is kept as a probationer for many years it would be  injustice to that person. It is the duty of the authority to inform the probationer staff as to his performance just after the period of probationary. If there is nothing as to the satisfaction or any other comments in black and white it would be presumed that the probationer has successfully completed his tenure. ....(15)
Nand Shankar vs State of Rajasthan, AIR 1957 Raj 148; Giovandola-Binny Limited vs Industrial Tribunal Calicut, AIR 1969 Ker 313 and Kadamtala Purbo Bashaboo Uchcha Biddalaya vs Hachna Hena Sarker @ Hasna Heba Sarker, 56 DLR (AD) 193 rf.
Md Taherul Islam, Advocate-For the Petitioner.
Masood R Sobhan, with Fadema S Chowdhury and AFM Saiful Karim-For the Respondent.
Judgment
Md Rezaul Haque J : Upon an application under Article 102(2) 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 impugned order contained in Memo No. ev. Rv. Rv. cÖkvt e¨w³MZ/4-wm-87842009-2013/3878 dated 21-6-2010 passed by the respondent NO.2 discharging the petitioner from service shall not be declared to have been passed without any lawful authority and is of no legal effect and/or pass such other or further order or orders as to this court may deem fit and proper.
2. The relevant facts, in this rule, are that the petitioner was appointed as Dispatch Rider on 9-7-2008 under Bangladesh Jatio Jadughar wherein he joined on 9-7-2008 as a probationer for 6 months extendable for a period of further 6 months. After joining in service the petitioner completed his probationary period but all of a sudden a show cause notice was issued on 18-5-2010 upon the petitioner by the respondent No.3, (the Secretary, Bangladesh National Museum) bringing allegation of negligence of duties and askeq the petitioner to submit written reply within 7 days. The petitioner submitted his reply on 23-5-2010 denying the allegations made against him.
3. Thereafter, without initiating any departmental proceeding and issuing charge sheet upon the petitioner, without holding' any enquiry and without serving second Show Cause Notice provided under the provision of the Bangladesh Jatio Jadughar (Karmakarta and Karmachari) Chakuri Probidhan Mala, (hereinafter Probidhanmala 2005), the authority, with malafide intention, most illegally and arbitrarily on the basis of false allegations terminated the petitioner from his service and passed the impugned order dated 21-6-2010 after 2 years of joining in the service. Thereafter the petitioner preferred an appeal to respondent No.1 on 29-7-2010 but the appellate authority did not take any step within two months from the-date of filing of the appeal, having no other alternative the petitioner filed a case before the Administrative Tribunal, Dhaka. The learned Member of the Administrative Tribunal dismissed the case. Being aggrieved by and dissatisfied with the judgment and order passed by the learned Member of the Administrative Tribunal, the petitioner, being appellant preferred appeal before the Administrative Appellate, Tribunal and after hearing the parties and considering the facts and circumstances of the case the appeal was dismissed on the point of maintainability. Having no other alternative the petitioner filed this writ petition under Article 102 of the Constitution of the People's Republic of Bangladesh and obtained the instant Rule.
4. Mr Md Taherul Islam, the learned Advocate appearing on behalf of the petitioner submits that the authority did not terminate the petitioner from service during his probationary period rather after expiry of probationary period, the petitioner was terminated from service without giving any opportunity of being heard and without any departmental proceeding. Mr Islam contends that
the petitioner was neither terminated from service within the probationary period of 6 months nor after the extended period of further 6 months rather he was allowed to serve in the office one year more from the date of extended probationary period. Learned Advocate further submits that the activities of the authority proves that service of the petitioner has been confirmed, as such, the authority ought to have heard him or ought to have given a chance to him to face the proceeding as Per Service Rules of Bangladesh National Museum.
5. Mr Taherul Islam contends that as per Probidhanmala, 2005 the petitioner joined in service on 13-7-2008 and completed probationary period successfully with entire satisfaction of the authority (without any extension of the probationary period) as·.5uch the impugned order is liable to be declared to have been passed without any lawful authority and is of no legal effect. Mr Islam further submits that the order of termination of the service of the petitioner after 2 (two) years from the date of joining without issuing any second show cause notice informing about the proposed penalty as per provision of Rule 42(6) of the Probidhanmala 2005. is not only violative of the said Rules [42(6) of (Probidhanmala) 2005] but also violative of Article 135 of the Constitution of the People's Republic of Bangladesh. Accordingly, he has prayed for making the Rule absolute.
6. On the contra, Mr AFM Saiful Karim. the learned Advocate appearing on behalf of the Respondents No. 2 and 3 submits that the petitioner was temporarily appointed in the post of Dispatch Rider on 9-7-2008 and he joined to the said post on 13-7-2008, his main task was to deliver letters, cards, notices to the respective authorities within time and after his joining he did not perform his job properly and regularly, disobeyed the direction given to him. Learned Advocate further submits that on 29-4-2010, he was instructed to perform his duties in the meeting of the Board of Trustees of National Museum to be held on 30-4-20 I 0 but he did not come on the following day to perform his assigned duties in the meeting of the Board of Trustees, as such, the authority terminated him from his service (without giving any opportunity of hearing) as per Rules 53( 1) short Probidhanmala 2005 as he was not confirmed in his post, as such, according to him the contention of the petitioner has no basis at all and accordingly he has prayed for discharging the Rule.
 (To be continued)
7. We have heard the learned Advocates for both the parties, perused the writ petition, its annexures, affidavit-in-opposition and other materials on record.
8. Let us first discuss whether the writ petition is maintainable or not. It is clear that the petitioner was an employee of Bangladesh National Museum (Jatio Jadughar) which is a statutory public authority constituted under Jatio Jadughar Ordinance, 1983.
9. In the judgment of the Administrative Appellate Tribunal it is rightly observed that the petitioner was not in the service of any statutory public authority specified in the schedule of the Act, as such, the petitioner was not entitled to go to the Administrative Tribunal to redress his grievance, thus, his remedy lies with this division, as such, the application under Article 102 of the Constitution of the People's Republic of Bangladesh is tenable in the eye of law. Earlier the petitioner went to the wrong forum.
10. It appears from the record that the petitioner was appointed as Dispatch Rider on 9-7-2008 under the Bangladesh Jatio Jadughar wherein he joined with a condition of 6 months probationary period which may be extended for a period of further 6 months. It appears from the record that the show cause notice dated 18-5-2010 was served upon the writ petitioner bringing allegations of committing negligence of duty and misconduct, the petitioner submitted his written reply to the show cause notice, but the authority terminated him from service as per Rule 53(I) of the Probidhanmala 2005, treating him as a probationer in the service.
II. It appears from the appointment letter that the petitioner was appointed in the post of Dispatch Rider of National Museum. As per appointment letter probationary period was for 6 months from the date of joining in the service, which could be extended by the authority for further period of 6 months showing reasons in writing. The petitioner joined in his office on 13-7-2008 and was terminated from the service on 21-6-2010 which is not within the probationary period. The respondent could not show any scrap of paper to prove that the probationary period of 6 months of the petitioner was extended. The authority allowed the petitioner to continue with the service. For argument sake if we consider that the period of probationary was extended for a period of further 6 (six) months but it appears that the petitioner was terminated from service after expiry of I (one) year from the date of his joining i.e. after the period of extended probationary period. Though it appears from the record that the petitioner was terminated from the service on some allegations with stigma but without any formal proceeding as per rule 43 of the Probidhanmala, 2005.
12. As it appears from the record that the probationary period was for 6 months if the authority is not satisfied in that case the period for probationary may be extended for a further period of 6 months but after that there is no scope to extend the period of a probationer as per the Probidhanmala, 2005. In the case in hand, maximum period of probationary was I year which elapsed much earlier than that of the date of issuance of show cause notice. So, it is clear· that the authority by its activities has proved that the petitioner has successfully overcome the probationary period. There is nothing specific in the appointment letter as to that after the period of probationary it can be extended further. So, it is presumed that the service of the petitioner has been confirmed, otherwise, the authority must  inform him as to that he has not been able to complete his period of probationary successfully. But the silence of the authority has proved that the period of probationary has been over.
13. In the case of Nand Shankar vs State of Rajasthan reported in AIR 1957 Raj 148, Probation has been defined as under-
"A probationer holds only a temporary appointment till he has proved himself to be fit to fill the permanent appointment. A servant on probation is on trial during the period he is on probation and he passed into permanent service only after the lapse of the period during which he is on probation"
14. In the case of Giovandola-Binny Limited vs Industrial Tribunal Calicut, reported in AIR 1969 Ker 313, reverse view is also taken, which runs as follows-
"A person who continues in service after the expiry of the period of probation will not ordinarily get automatic confirmation in service on the expiry of the stipulated probationary period."
15. But our considered view is that if there is nothing as to extension of the period of probation it would be deemed that the person· has successfully overcome the period of probation. The intention of the employer to appoint a person as a probationer is only to testing his capacity; conduct or character before he is appointed to regular employment. This test cannot be continued for years together, There is certain age for obtaining a job. An employer cannot take away the valuable time of the life of a person keeping him as probationer in the service for many years. Human life is short and there is specific age for having a job, so, if any person is kept as a probationer for many years it would be injustice to that person. It is the duty of the authority to inform the probationer staff as to his performance just after the period of probationary. If there is nothing as to the satisfaction or any other comments in black and white it would be presumed that the probationer has successfully completed his tenure. In the case of Kadamtala Purbo Bashaboo Uchcha Biddalaya vs Hachna Hcno Sarkcr @ Hosllo JIcbo Sorkcl; reported in 56 DLR (AD) 193, it is held that the respondent was appointed as a temporary Junior teacher and her probationary period was two years and she was allowed to continue in service for two and a half years, it amounts to her confirmation in service. So, our view is that the petitioner in the instant case has automatically been confirmed in his service, as such, he is entitled to get protection of Article 135 of the Constitution of the People's Republic of Bangladesh.
16. It is well settled that a probationer has no right to the post if he is found unsuitable and an order of termination is not improper but it must be termination simplicitor, there is no scope of colorable exercise of power as to stigma in nature.
17. In the instant case though the probationary period of petitioner was elapsed much earlier and a show cause notice was issued upon him but as per Probidhanmala, 2005 neither any formal departmental proceeding was started nor inquiry was held or he was not asked to appear before any enquiry committee, nor any second show cause, notice was served upon him but the authority has terminated him from the service with an stigma. So, it is clear that natural justice has been violated.
18. From the facts as stated in the writ petition it appears to us that the period of probationary of the petitioner was over but he was terminated from service with stigma without giving him any opportunity of self defence, so, it is clear that natural justice has been denied, which calls for our interference. Thus, we find substance in the instant Rule. Accordingly, the Rule succeeds.
19. In the result, the Rule is made absolute.
20. There will be no order as to costs.
21. The impugned memo No. ev. জা.জা.প্রশাঃ/ব্যক্তিMZ/4-wm-874/2009-2013/3878 dated 21-6-2010 as evident by annexure-'C' is declared to have been issued without lawful authority and is of no legal effect.
The concerned respondents are directed to reinstate the petitioner in service forthwith. The respondents are further directed to pay the arrear salaries and other benefits to the petitioner on and from 28-6-2015 ie on the date of issuance of Rule. The period from the date of illegal termination to the date of issuance of will be treated as leave without pay but the said period should be counted for all the benefit in service but not for any arrear of pay.

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