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Monday, February 24, 2020 06:08:03 PM
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Universities to observe natural justice

But must act in accordance with law

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(From previous issue) :
24. From a plain reading of the show cause notice, it appears that the show cause notice merely states that an incident took place at the University Campus (wek¦we`¨vjq K¨v¤úvm) without mentioning the exact place of the occurrence. Moreover, the said notice reveals that an attack took place on some teachers and students and some motorcycles and bicycles were burnt. However, there is no mention of the time of the incident nor is there any details or names of the teachers and students, who were alleged to have been injured nor is there any mention of  the extent and nature of the injuries sustained by them. There is also no mention of the number of motorcycle and bicycle that were alleged to have been burnt on that day at the place of occurrence. It is on the basis of such vague, unspecific and indefinite allegations that the show cause notices were issued upon the petitioners.
25. Furthermore, the show cause notice clearly states that an Inquiry Committee conducted the inquiry and submitted a report and thereafter, pursuant to the recommendations of the Committee, the decision to issue the impugned orders of expulsion was taken by the Syndicate. Admittedly, no such report was either annexed with the show cause notice itself nor was it served upon the petitioners to a later stage, thereby preventing them from giving a proper reply to the allegations brought against them, in the show cause notice.
26. The impugned order itself, as evidenced by Annexure E to the writ petition, reads as under:
“অফিস আদেশ
গত ১৩-১২-২০১৩ইং তারিখে ‘চেতনা ৭১’ এ হামলার ঘটনায়, আয়োজিত মানববন্ধনে আক্রমণ ও শিক্ষকদের গাড়ী পুড়িয়ে দেয়ার ঘটনা তদন্ত কমিটি কতর্"ক প্রমাণিত হওয়ায় ও দোষী সাব্যস্ত হওয়ায় শ"ড়খলা বোর্ডের ২৭-২-২০১৪ তারিখের সভার সুপারিশের আলোকে নিম্নোক্ত অভিযুক্ত ১০ (দশ) জন ছাত্রকে এ বিশ্ববিদ্যালয় থেকে আজীবন বহিষ্কার করা হয়েছে। তবে গত ১৩-১২-২০১৩ তারিখের পূর্বে সমাপ্ত পরীক্ষার অর্জিত ডিগ্রী বহাল থাকবে।
গত ২৭-২-২০১৪ তারিখে অনুষ্ঠিত সিন্ডিকেটের ১৮৩ তম সভার অনুমোদনের প্রেক্ষিতে বিশ্ববিদ্যালয় কর্তৃপক্ষের অনুমোদনক্রমে এ আদেশ জারী করা হলো। অবিলম্বে এ আদেশ কার্যকর হবে।”
27. On a perusal of the impugned order dated 16-3-2014, it is apparent that the concerned respondent, in a very mechanical manner, issued the order expelling the petitioners from the University for life. Admittedly, the said order was passed without affording an opportunity of personal hearing to each of the petitioners. This un-assailed position of the case establishes the fact that the petitioners were condemn unheard. That by itself is a gross violation of the principle of natural justice not to mention the non-observance of the due process of law.
28. Let us now refer to the decisions referred to by the learned Advocates of the contending sides.  
29.  In the case of Government of Government of Bangladesh vs Md Tajul Islam, reported in 49 DLR (AD) 177, the Apex Court, while deciding the issue of adequacy of a show cause notice issued in relation to cancellation of a license, observed as under:
"It is well settled that a show cause notice is not a technical requirement or an idle ceremony. The notice must not be vague or in bare language merely repeating the language of the statute."
30. The Court went on to observe as under:
" The principle of a meaningful show cause has been highlighted when a person is called upon to meet explain some charges brought against him."
31. In the case of Bangladesh Muktijoddha Kalyan Trust vs Md Arshad Ali, reported in 14 BLC (AD) 180, the Appellate Division held as under:
"We are of the view in the background of the principle of natural justice or, in other words, in the background of the universal principle that, one should not be condemned     unheard and that also because of the universally accepted concept of transparency and fairness, the authority in imposing punishment on an employee would be required to serve the second show cause notice accompanying the inquiry report to enable the officer or the person against whom the authority is going to take action, which may not be favourable to such officer, or person, to enable him to explain the facts obtained against him in the curse of inquiry and to put forward his case as regard the facts obtained against him in the course of inquiry.
32. In the case referred to above, the Apex Court was deciding a case where, admittedly, the Inquiry Report had not been enclosed with the second show cause notice.
33. Admittedly, in the instant case, no Inquiry Report was ever served upon the petitioners.
34. In the case of Borhanuzzaman vs Ataur Rahman Chowdhury reported in 46 DLR (AD) 94, the Apex Court held as under:
"When the report of the enquiry forms the basis of the allegations against the Managing Committee a copy of the report is an indispensable tool in its hands in giving a suitable reply to the show cause notice, because a report may contain both favourable and adverse matters against the Managing Committee which has every right and justification in relying upon the favourable contents in the report in its reply."
35. The contention of Mr Ahmed, the learned Advocate appearing for the University, that the Rules do not provide for issuance of show case notice annexing the Inquiry Report has been answered by the Apex Court in the case of Bangladesh Agricultural Development Corporation vs Saidul Huq Bhuiyan, reported in 8 BLC (AD) 49. While dealing with a similar issue, the Apex Court held that even though the Regulations of the Corporation did not make any provision for supplying the inquiry report along with the show cause notice, the Corporation was still required to supply the inquiry report, without which the concerned official was being "seriously handicapped" in making an effective reply to the second show cause notice.
36. Let us now refer to some decisions from out neighboring' jurisdiction, cited by Mr Siddique.
37. In the case of State of Uttar Pradesh vs Md Sharif (dead, through legal representative) reported in AIR 1982 SC 937, the Court held that the absence of the particulars as to date and time of the alleged misconduct having not been mentioned in the chargesheet, the person concerned was prejudiced by such omission in the matter of his defense at the inquiry.
38. In the case of Board of Technical Education, UP vs D Kumar, reported in AIR 1991 SC 271, the Court held:
"notices served on the students were so vague and imprecise that they could not effectively defense themselves in the inquiries."
39. In the instant case, the petitioners are on a much better footing in as much as they were never given an opportunity to appear before the Inquiry Committee.
40. In the case of Sawai Singh vs State of Rajasthan, reported in AIR 1986 SC 995, the Court held as under:
"But a departmental enquiry entailing consequences like loss of job which now-a-days means loss of livelihood, there must be fair play in action in respect of an order involving adverse or penal consequences. against an employee, there must be investigation to the charges consistent with the requirement of the situation in accordance with the principles of natural justice in so far as these are applicable in a particular situation.
41. In his turn, Mr Ahmed has referred, to two decisions from our own jurisdiction; the first being the celebrated case of Zakir Ahmed vs University of Dhaka, reported in 16 DLR (SC) 722 on the point that the Rules do not provide for issuance of any show cause notice before, any disciplinary proceeding against a delinquent student. However, the reliance of Mr Ahmed on Zakir Ahmed's case appears to be misplaced in view of the following observation made by the Court:
"We are not impressed by the argument that such interference by Courts of law with orders passed by educational institutions in the interest of maintenance of discipline would defeat the very purpose for which  these institutions exist or that it would stultify the powers of the authorities, in charge of educational institutions or prevent them from taking any action against students' misconduct. The Universities and educational institutions generally are armed with abundant powers of disciplinary action against the recalcitrant students and the Court are, in no way, minded to deprive them of their powers but all that they are entitled to instant upon in the interest of fairness is that the minimum requirements of fairness must be observed by them before such action is taken, for, it is equally important to remember that unfair action may cause greater harm to the prestige of the heads of educational  institutions who are expected to be in loco  parentis to the students and may seriously undermine the authority which they claim to possess over the students place in their charge.
42. Mr Ahmed has next referred to the case of Vice Chancellor, University of Dhaka vs AKM Muid, reported in 69 DLR(AD) 403 with regard to judicial (review of the administrative decisions taken by the University. Mr Ahmed, relied on paragraph 27 of the judgment which reads as under:
"The court should refrain itself from interfering with the internal administration of authority if such authority does not contravene the law and it can interfere only in those cases where there is infraction of law in  taking decision affecting the right of a citizen. The court shall always keep in mind while exercising its power of judicial review that it has not transgressed the jurisdiction in any authority transacting its business."
43. Once again, we are of the view that this observation does not come to the aid of Mr Ahmed; rather it goes to substantiate the petitioner's case.
44. We are conscious of the fact that, 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.
45. The University, more particularly the Syndicate, being in a position of loco parentis is obliged not 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 expulsion order. Consequently, the same is not tenable in the eye of law.
46. In view of the discussion made above, we are inclined to hold that the instant Rule merits positive consideration.
47.    In the result, the Rule is made absolute
48.    The, impugned order of expulsion of the petitioners, as contained in Memo No. GKv 98/120(7)/5/1193  dated 16-3-2014 issued by respondent No. 3 is declared to have been made without lawful authority and to be of no legal effect.
49. The University Authorities are directed to publish the result and also issue the certificate to the successful, candidates.     
50. There will be no order as to cost. The office is directed to communicate the order.

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