Dhaka University Order, 1973
Article 4 & 25- Admission of Student decision involving policy- It is now settled that the court will not interfere with policy decision merely because it feels that another policy decision could have been fairer or wiser or more scientific or logical (Balco Employees Union V. India, 2002 (2) SCC 3330). This court accepted the views taken in that case and we find no cogent reason to differ from the same. Same principle is applicable in case of admission of students, inasmuch as, it is the policy decision of the University authority. Every organ of the State should be allowed to perform its onerous responsibility in accordance with their respective laws. If the court interferes with their internal administration and the eligibility of admission of students in any University, this will tantamount to exercise of a power not vested in law. The court should refrain itself from interfering with the internal administration of an authority if such authority does not contravene the law. VC, University of Dhaka =VS= A.K.M. Muid, [3 LM (AD) 470]
Article 20, 46 (17), 52
When any election is held in accordance with the provision of any statute that election can be questioned only under the provision of that statute. But when the election is held in violation of the provision of law such election can be questioned in any other forum and not in the forum as provided in that law. Dhaka University represented vs Mr Giasuddin Ahmied Chowdhury @ Gias kamal Chowdhury (Mahmudul A ruin Choudhury C. J.) (Civil) 1 ADC 71
যখন কোনও নির্বাচন অনুষ্ঠিত হয় কোনও বিধানের বিধান অনুযায়ী, তখন সেই নির্বাচন কেবল সেই বিধানের বিধান অনুযায়ী প্রশ্নবিদ্ধ করা যায়। কিন্তু যখন নির্বাচন অনুষ্ঠিত হয় আইনের বিধান লঙ্ঘন করে, তখন সেই নির্বাচন যেকোনও অন্য ফোরামে প্রশ্নবিদ্ধ করা যায়, সেই আইনে বর্ণিত ফোরামে নয়। ঢাকা বিশ্ববিদ্যালয় প্রতিনিধিত্ব বনাম জনাব গিয়াসউদ্দিন আহমেদ চৌধুরী @ গিয়াস কামাল চৌধুরী (মাহমুদুল আলম চৌধুরী সি। জে।) (সিভিল) ১ এডিসি ৭১
Editors’ Note:
This writ petition was filed by one Associate Professor of the department of Mass Communication and Journalism of Dhaka University when the University Syndicate demoted her to the post of Assistant Professor for a period of two years on the basis of report of the tribunal formed to enquire the allegations of plagiarism against her. The tribunal did not categorically find the petitioner to have adopted plagiarism, but found that the published article lacks quality. The tribunal did not recommend to award her relegation. But the syndicate arriving at the decision that the petitioner resorted to plagiarism handed her the above punishment. The petitioner claimed that without following the due process of law and violating natural justice most illegally she was punished. On the other hand, respondent claimed that the petition was not maintainable as it involved resolution of disputed questions of facts and the petitioner failed to exhaust the alternative remedy of appeal before the Hon’ble Chancellor of the University. The High Court Division held that the matter of copying being a question of fact cannot be decided in the Writ Jurisdiction but the authority concerned should have acted in accordance with law giving the petitioner adequate opportunity of being heard before awarding punishment. Moreover, considering plagiarism as intellectual crime the court has expressed frustration and held that the tendency of plagiarism among the University teacher is alarming and shocking for the nation. Finally, the High Court Division declared the decision of the Syndicate demoting the petitioner as illegal.
Mandatory requirements to initiate a departmental proceeding: It appears that framing charge as well as specification of penalty proposed to be imposed by the Syndicate upon the petitioner are mandatory requirements to initiate a departmental proceeding. Upon receiving the reference from the Syndicate the Enquiry Committee shall communicate the charge to the concerned accused together with the statements of allegations and request him/her to submit, within 7(seven) days from the day the charge is communicated to him/her, a written statement of his/her defense and to show cause at the same time why the penalty proposed should not be imposed on him/her and also states whether he/she desires to be heard in person or not. After framing the charge by the Syndicate the Tribunal shall take into consideration of the charges framed, the evidence on record, both oral and documentary, including the additional evidence, if any, accepted by it and recommend such action against the accused as it may deem fit. In the case in hand, admittedly no formal charge was framed which is sine quo non to start a formal departmental proceeding. (Paras 26 and 27)
Regulation No. 7 of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980; section 45(5) of the First Statute of the University of Dhaka and Article 52 of the Dhaka University Order, 1973: In the instant case, prior to referring the allegations to the Enquiry Committee set up by the Syndicate for enquiry into the allegations brought against the petitioner, the Syndicate omitted to frame a formal charge against the petitioner with a statement of the allegations on which the charge is based and also specifying therein the penalty proposed to be imposed in terms of Regulation No. 7 of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980 and hence, the entire exercise by the respondent No. 2 University of Dhaka and its officials leading up to the purported demotion of the petitioner in service by the Syndicate is void ab-initio and, as such, nonest in the eye of law, rendering the said purported demotion to be without lawful authority and is of no legal effect. Moreover, under section 45(5) of the First Statute of the University of Dhaka only those orders of the Syndicate which are passed on the recommendation of the Tribunal are appealable, whereas, in the instant case, since the impugned order of demotion of the petitioner in service was passed by the Syndicate without any recommendation of the Tribunal, there is no appealable order from the Syndicate and, hence, no question of preferring any appeal under Article 52 of the Dhaka University Order, 1973 arises and, thus, there is no applicability of the decision reported in 44 DLR (AD) 305 in the facts and circumstances of the case in hand. (Para-29)
The Tribunal categorically found that the petitioner cannot be made accused for direct plagiarism, but the Syndicate demoted the petitioner for plagiarism which is absolutely baseless and whimsical inasmuch as the Syndicate can only punish someone based on the findings of facts arrived at by the Tribunal. (Para 30)
Admittedly, the petitioner was not provided with any of the reports of either the Enquiry Committee or the Tribunal and, as such, the petitioner was not given an effective opportunity to prefer an appeal against the Syndicate’s decision to demote her which is also a grave violation of the principles of natural justice and, thus, in our view there is no bar in filing a writ petition under Article 102 of the Constitution against such decision of the Syndicate. (Para 31)
The observance of the principles of natural justice is not an idle formality. A meaningful opportunity to defend oneself must be given under any circumstances to its truest sense and, in the instant case, the respondents sought to show ceremonial observance of the principles of the natural justice as an eye wash for an ulterior purpose without affording any real opportunity to the petitioner to defend herself by not furnishing the enquiry report as well as the report of the Tribunal. It appears that the impugned decision of the Syndicate is vitiated by bias and malafide inasmuch as while the petitioner was awarded with a major punishment with the stigma of plagiarism but despite repeated requests, she was not given a copy of the enquiry report. The Syndicate did not care to consider the long delay in completing the enquiry. (Para 32) [17 SCOB [2023] HCD 182]
Section 52- Technical ground cannot be any reason for not entertaining the writ- petition- The writ-petitioner did not avail the efficacious remedy as provided under section 52 of the University of Dhaka Order, 1973 which provides for an appeal to the Chancellor and found out that the writ-petitioner filed an appeal against the impugned order addressing the Vice- Chancellor which was rejected. The High Court Division, considering the facts and circumstances, found that the said appeal was preferred by the writ-petitioner under the provision of section 52 of the Dhaka University Order, 1973 which could have been and should have been forwarded to the Chancellor by the Vice-Chancellor of the Dhaka University. The High Court Division found that the writ-petitioner exhausted the provision of section 52 of the Dhaka University Order, 1973 by preferring an appeal against the impugned order and, therefore, the writ-petition was maintainable.
We are of the opinion that where it has been found that the writ-petitioner inspite of being innocent, was harassed so much by the Dhaka University authority, this technical ground cannot be any reason for not entertaining the writ-petition. That there is no merit in this appeal and hence this appeal be dismissed on contest without any order as to cost. ... University of Dhaka =VS= Ahmed Ar Razi, [10 LM (AD) 682]
The Dhaka University Order, 1973
Article 56(3)
In response to an advertisement made by the Dhaka University he applied for the post of Lecturer in the Department of Islamic History and Culture; out of 10 applicants the relevant committee recommended the names of 3 applicants including the respondent for the said post. At that time one Dr. Ibrahim, As- sociate Professor of Department of Is- lamic History, made a frivolous objection regarding the respondent No.1 on appointment. Thereafter, the selec- tion committee on the basis of C and D Committee selected the respondent No.1 in the post of Lecturer and referred the matter to the Syndicate for taking final decision regarding his appointment in view of the complaint made by an Associate Professor. University of Dhaka vs. Hafej Mohammad Jalal Uddin Chowdhury (Mohammad Fazlul Karim J) (Civil) 8 ADC 288
