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Colorable exercise of power unlawful

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25th-Nov-2017       
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(From previous issue)
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. Rv.Rv.cÖkvt/e¨w³MZ/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.
(Concluded)

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