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Universities to observe natural justice

But must act in accordance with law

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09th-Nov-2019       
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High Court Division :
(Special Original Jurisdiction)

Zubayer Rahman Chowdhury J
Sashanka Shekhar Sarkar J
Shamsujjaman (Md) and others............Petitioners
vs Bangladesh, represented by the Secretary, Ministry of Education, and others...........Respondents
Judgment
November 14th, 2018

Constitution of Bangladesh, 1972
Article 102(2)

The image of the University and the sanctity of the University premises cannot be allowed to be vandalized and perpetrators of such action must be dealt with sternly, without Showing any lenience, even if such perpetrators are the students of the University. However, in doing so, the Authorities must follow the principles of natural justice and conduct the proceeding in accordance with law and only in accordance with law. . ..... (44)
Constitution of Bangladesh, 1972
Article 102(2)

The University, more particularly the Syndicate, being in a position of "loco parentis" is obliged hot only to observe the well-established principle of natural justice, but it must also act in accordance with law. Regrettably, in the instant case, not only did the University Authority fail to observe the due process of law, as guaranteed by our Constitution, but the impugned orders of expulsion were passed in gross violation of the principles of natural justice, which is manifested in the show cause notice itself as well as the final explusion order. Consequently, the same is not tenable in the eye of law..........(45).
Government of Bangladesh vs Md Tajul Islam, 49 DLR (AD) 177; Bangladesh Muktijoddha Kalyan Trust vs Md Arshad Ali, 14 BLC (AD) 180; Borhanuzzaman vs Ataur Rahman Chowdhury, 46 DLR (AD) 94; Bangladesh Agricultural Development Corporation vs Saidul Huq Bhuiyan, 8 BLC (AD) 49; State of Uttar Pradesh vs Md Sharif (dead, through legal representative), AIR 1982 SC 937; UP vs D Kumar, AIR 1991 SC 271; Sawai Singh vs State of Rujasthan, AIR 1986 SC 995; Zakir Ahmed vs University of Dhaka, 16 DLR (SC) 722; Vice-Chancellor, University of Dhaka vs AKM Muid, 69 DLR (AD) 403 ref.
Imran A Siddique Advocate with Md Shishir Monir.
Advocate and Syed Md Raihan Uddin, Advocate-For the petitioner.
M Khaled Ahmed, Advocate-For Respondent Nos. 2 and 3.     
Judgment
Zubayer Rahman Chowdhury J : By an application under Section 102 of the Constitution of the People's Republic of Bangladesh, the petitioners, being 10 in number, have challenged the order of their expulsion from the Shahjalal University of Science and Technology, Sylhet, as contained in Memo No. GKv 98/120(7)/5/1193 dated 16-3-2014, issued by respondent No. 3.
2. Subsequent thereto by order dated 21-10-2014, the petitioners, were allowed to sit for their examination. However, the authorities of Shahjalal University of Science and Technology, Sylhet (hereinafter referred to as the University) were allowed to withhold the examination result till disposal of the Rule.
3. The Rule is being opposed by respondent No. 3 by filing an affidavit-in-opposition. The petitioners, in their turn, have filed affidavit-in-reply as well as two supplementary affidavits.
4. Relevant facts necessary for disposal of the Rule are that petitioner No.1 is a student of Department of Biochemistry and Molecular Biology, School of Life Sciences; who was admitted in 2010-2011 session; petitioner No.2 is a student of Department of Food Engineering and Tea Technology, School of Applied Sciences and Technology, who was admitted in 2008-2009 session; petitioner No. 3 is a student of Department of Social Work, School of Social Sciences having been admitted in 2009-2010 session petitioner No.4 is a student of Department of Social Work, School of Social Sciences, having been admitted in 2009-2010 session; petitioner No. 5 is a student of Department of Bangla, School of Social Sciences, having been admitted in 2009-2010 session; petitioner No.6 is a student of Department of Social Sciences, having been admitted in 2008-2009 session; petitioner No. 7 is a student of Department of Civil and Environmental Engineering, School of Applied Sciences and Technology, having been admitted in 2010-2011 session; petitioner No.8 is a student of Department of Public Administration, School of Social Sciences, having been admitted in 2007-2008 session; petitioner No.9 is a student of Department of English, School of Social Sciences, having been admitted in 2006-2007 session; petitioner No. 10 is a student of Department of Social Work, School of Social Sciences, having been admitted in 2011-2012 session.
5. On account of an incident that took place on 13-12-2013, the Authorities issued the order of expulsion of the petitioners from the University. On that day, a human chain was formed by the teachers and students of the University condemning the heinous attack on the monument of the University, named Ò†PZbv 71Ó. Some miscreants attacked the teachers and students forming the human chain, causing injury to some. The said incident was published in both the national and local dailies. Following the incident, an inquiry committee was formed headed by one Professor Jahir Bin Alom. After conducting the inquiry, the Committee submitted its report to the Proctor, being the Member Secretary of the Committee, recommending action against certain students of the University, including the petitioners.
6. In pursuance of the report and recommendation of the Committee, the University Authority issued show cause letters, all dated 2-2-2014, upon the petitioners, asking them to submit reply within 15 days of receiving the said notice.
7. Earlier on 26-12-2013, the Inquiry Committee issued letters to petitioner Nos. 1 and 2 only, asking them to appear before the Committee on 30-12-2013. However, the petitioners refrained from appearing before the Committee.
8. Subsequent thereto, on 27-2-2014, at its 183rd Meeting, the Syndicate of the University took a decision approving the temporary suspension order of the petitioners. However, on the very same day; the Syndicate also passed the order of expulsion of the petitioners. Accordingly, in pursuance of the decision of the Syndicate, the impugned letters dated l6-3-2014 were issued to all the petitioners, communicating the orders of their expulsion from the University.
9. The petitioners filed applications before the Vice-Chancellor of the University with a prayer for cancelling the suspension order. However, there was no response from the other end. The petitioners issued a Notice Demanding Justice requesting the concerned respondents to cancel the expulsion order. However, no steps were taken by the respondents in that regard. Being constrained, the petitioners moved this Court and obtained the instant Rule.     
10. Mr Imran A Siddique, Mr Mohd Shishir Monir and Mr Syed Raihan Uddin, the learned Advocates appear on behalf of the petitioners, while contesting respondent Nos. 2 and 3 are being represented by Mr M Khaled Ahmed, the learned Advocate.
11. Having placed the instant application as well as the various documents annexed thereto Mr Siddique submits that the issue involved in the instant writ petition concerns the violation of the principle of natural justice as well as the denial of the due process of laws to the petitioners, as guaranteed under the Constitution. Elaborating his submission, Mr Siddique submits that from a plain reading of the show cause notices dated 2-2-2014, as evidenced by Annexure B series, it is evident that save and except mentioning the date of occurrence, the notice does not specify the time, place and manner of occurrence, nor does it disclose the extent of damage or the number of persons who suffered injuries on account of such incident, which indicates a gross non-application of mind on the part of the respondents. He submits that on the basis of some vague and unspecified allegations, the University Authorities issued the show cause notice upon the petitioners, which prevented them from giving a proper of reply to the same.     
12. Mr Siddique Submits that it is now well settled that mere issuance of a show cause notice will not amount to fulfillment of the legal requirement of issuance of such notice. He submits that such a notice must contain the specification as to the time, place and manner of  occurrence as well as the specific allegations against the persons to whom the notice was issued, so as to enable him to give an effective reply to the same: He further submits that although the said show cause notice makes a reference to a report prepared by the Inquiry Committee on the basis of which the show cause notice was issued, the copy of the said report was never provided the petitioners.            
13. Referring to Annexure E series being the impugned order, dated 16-3-2014 Mr Siddique submits that the said order was passed expelling the petitioners for life (AvRxeb ewn®‹vi) from the University, without giving them any opportunity of a personal hearing. The learned Advocate forcefully submits that these aspects of the case, i.e., the vague and unspecific show cause notice, the non-service of the inquiry report to the petitioners and the admitted failure of the University Authority to give personal hearing to the petitioners before passing the impugned order tantamount to a gross violation of the principle of natural justice and on that count alone, the Rule is liable to be made absolute.
14. In support of his contention, Mr Siddique has referred to a number of decisions, to which we shall advert in due course.
15. On the other hand, Mr M Khaled Ahmed, the learned Advocate appearing on behalf contesting respondent Nos. 2 and 3 submits that the University Authorities took the action of expelling the petitioners from University following a heinous attack that took place on the campus on 13-12-2013. He submits that in order to maintain discipline in the University and to ensure the security and safety of the teachers, students and staff of the University the authorities took the decision to expel the petitioners as their involvement with the incident in question was proved through the investigation conducted by the Inquiry Committee.
16. Mr Ahmed submits that the contention of Mr Siddique with regard to the show cause notices being vague and unspecific is not correct in view of the fact that the petitioners submitted detailed replies to the show cause notice. Therefore, accepting, but not conceding that there may have been lack of some material particulars in the said show cause notice, that was not sufficient to prevent the petitioners from submitting a detailed reply to the same. He submits that the University Authorities considered the replies of the petitioners and found the same to be unsatisfactory, following which the orders of expulsion was passed by the highest body of the University, namely the Syndicate.
17. Mr Ahmed further submits that the Rules of the University do not provide for issuance of a show case notice. Nevertheless, the University Authority issued the show cause notice to the petitioners and therefore, according to Mr Ahmed, there was compliance with the principles of natural justice. On being asked as to whether the Inquiry Report had been furnished to the petitioners, Mr Ahmed replied in the negative.
18. The moot question that requires to be answered in this writ petition relates to the legality or otherwise of the expulsion order of the petitioners, issued by the University.
19. On account of an incident which took place on 13.12.2013 at the campus of the University, which was widely reported in the national and local dailies, the University formed an Inquiry Committee. Upon conducting an investigation, the Committee prepared a report and submitted the same to the Proctor. On the basis of the said report, each of the petitioner was issued with a show cause notice, to which they replied. However, after considering their respective, replies, the Syndicate passed the impugned expulsion orders on 16-3-2014.
20. Let us now refer to the show cause notice, dated 2-2-2014, issued to petitioner No.1, which reads as under :
“প্রাপক
তারিখ ঃ ২-২-২০১৪
নাম ঃ মোঃ সামসুজ্জামান
বিভাগঃ বিএমবি
রেজিঃ ২০১০৪৩৩০৪৩
শাবিপ্রবি, সিলেট।
গত ১৩-১২-২০১৩ইং তারিখে বিশ্ববিদ্যালয় ক্যাম্পাসে ছাত্র ও শিক্ষকদের উপর হামলা এবং মোটর সাইকেল ও বাইসাইকেল পোড়ানো ঘটনার জন্য গঠিত তদন্ত কমিটির প্রতিবেদন ও সুপারিশ এর ভিত্তি করে গত ৩০-১-২০১৪ইং তারিখে শৃঙ্খলা বোর্ডের সভায় নিম্নলিখিত সিদ্ধান্ত গৃহীত হয়।
১। আপনার বিরুদ্ধে এর সত্যতা মেলায় বিশ্ববিদ্যালয় থেকে আপনাকে সাময়িক ভাবে বহিষ্কার করা হয়েছে। আপনাকে কেন ¯'ায়ী ভাবে বহিষ্কার করা হবে না এ ব্যাপারে আপনার লিখিত বক্তব্য ১৫ (পনের) দিনের মধ্যে নিম্ন স্বাক্ষরকারীর নিকট জমা দিতে হবে।
২। নির্ধারিত সময়ের মধ্যে লিখিত বক্তব্য জমা না দিলে বিশ্বদ্যিালয় বিধি মোতাবেক যথাযথ ব্যব¯'া গ্রহণ করা হবে।
ধন্যবাদান্তে,
প্রক্টর ও সদস্য সচিব, শৃঙ্খলা বোর্ড
শাবিপ্রবি, সিলেট।”
21. It is to be noted that the other nine petitioners were also issued with an identical show cause notice.
22. From a plain reading of the show cause notice, quoted above, is apparent that the said notice is anything but satisfactory. To begin with, the show cause notice was the first step in the initiation of a proceeding which would culminate with the expulsion of the petitioners from the University, and that too for the rest of their life. Therefore, he said process would tantamount to causing an academic death to the respective petitioners, not to speak of their future career. The Syndicate, being the highest Administrative body of the University, in issuing the expulsion orders of the petitioners, was also acting as a quasi judicial body. It was, therefore, imperative for the Authorities to comply with the requirements of the principles of natural justice, This is also the dictate of our Constitution, as enshrined in Article 31, relating to the concept of the due process of law.
23. This concept of "administrative fairness" requires that an Authority, while taking a decision which affects a person's right prejudicially, must act fairly and in accordance with law. We note, albeit with utmost regret and disappointment, that in the instant case, there has been a gross violation of the well-settled principles of natural justice, and that too by the Syndicate. In our view, failure to comply with the principles of natural justice leads to arbitrariness, which in turn, vitiates the impugned order.
 (To be continued)  

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