Principle of Natural Justice
Constitution of Bangladesh, 1972
Article 102
The impugned judgment and order with direction passed by the High Court Division without affording any opportunity of hearing to the other side.
Held; Time and again this Division disproved summary disposal of a writ petition or revisional application under section 115 of the Code of Civil Procedure giving whole relief to the petitioner without issuing Rule and thus giving no opportunity to the other side of being heard. [Para-12] [31 BLT (AD) (2023) 23]
Case of the plaintiff that he has been removed from the post of Head Master without serving any notice and that on untrue allegation.
The learned Advocate-on-record failed to point out any infirmity in the judgment of the High Court Division calling for interference by this Court. The admitted position is that the School in question is a Non-Government Private Primary School established by the local people and therein the plaintiff was the Head Master. The terms and conditions of the service of plaintiff in the School was not regulated by any legal instrument, rather his stay in the school as Head Master was dependent on the decision of the Managing Committee formed by the local people who established the School. The service of the plaintiff was terminated upon serving show cause notice, to which he did not reply. Md. Abdul Mazid Shah vs. Md. Abdul Wahab and others (Md. Ruhul Amin J (Civil) 4ADC 514
Responsibility of the High Court as custodian of the Constitution to maintain the social balance- It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good. View that no principle of natural justice was violated in this case. The Syndicate of the University, holding inquiry, reached the right conclusion that admission test had been vitiated by practising unfair means on a mass scale by marketing the question paper before holding examination and the University had every right to cancel the admission test and order that a fresh examination be held. Allow the appeal and set aside the order of the High Court Division and affirm the decision taken by the Syndicate of the Islamic University. .....Islamic University -VS- Farhana Akhter Liza, [5 LM (AD) 34]
Natural Justice
Disciplinary enquiry- Natural justice-Non application of mind- The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non- recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. .......Allahabad Bank VS Krishna Narayan Tewari, [3 LM (SC) 1]
Natural Justice:- When a petition/memo is filed in the wrong jurisdiction or forum- It is common practice to allow a party to file a petition/memo in the proper form when it is observed that the said memo/petition was filed in the incorrect form. In other words where instead of filing an appeal a revision was filed, direction would be given to either convert the revision into an appeal or to file the appeal afresh. In such circumstances, usually the time consumed in proceeding under the wrong jurisdiction or forum is directed to be deducted. Equally when a memo/appeal is filed instead of petition for revision the Court may direct that the appeal be treated as revision. ... Kutub Uddin VS Syed Moinuddin Ahmed, [7 LM (AD) 31]
Natural Justice: When judicial review is permissible- It is only in exceptional cases when the principles of audi alteram partem have not been followed or the affected Judge has not been afforded sufficient opportunity to examine witnesses or cross-examine the witnesses, judicial review against his removal is permissible but otherwise not. .....Idrisur Rahman (Md.) VS Syed Shahidur Rahman, [4 LM (AD) 231]
Principle of Natural Justice-High Court Division made adverse remark against the petitioner without affording her any opportunity to explain her position. Adverse remarks are required to be expunged for ends of justice. Jesmin Anwar vs State, 64 DLR (AD) 49
Over and above, before delisting the name of respondent No. 1 from the list of MPO, no notice for showing cause was served upon her and, as such, the principle of natural justice has been violated. [73 DLR (AD) (2021) 298]
The English Courts even went far enough to state that the principle of 'audi alteram partem means "listen to the other side" or "let the other side be heard as well" one of the two rules of natural justice, had it origin in the heaven as "the first hearing in human history was given in the Garden of Eden. Even God himself did not pass sentence upon Adam, before he was called upon to make his defence. (R vs University of Cambridge 1723 Str 557 per Fortesque,J). [73 DLR (AD) (2021) 298]
In the case of Government of Bangladesh and other vs Jamaluddin, 20 BLC (AD) 135 it has been held that admittedly, the authority concerned did not assign any reason for excluding the names of the educational institutions from the list of MPO nor did they afford any opportunity to educational institutions of being heard. Therefore, the High Court Division rightly declared the action illegal. [73 DLR (AD) (2021) 298]
We have also considered the report of the enquiry committee constituted by BMET as quoted in the judgment. We do not find any misreading of the annexures to dislodge the findings of the High Court Division that before passing the im- pugned order, inquiry was held which found the petitioner guilty of practising fraud upon respondent No.5 and annex- ure-'G' and 'H' together showed that there was substantial compliance of the prin- ciple of Audi Alteram Partem. Rahmania Travels Limited vs. Bangladesh (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 187
Whether the provision of section 20 of the Family Court Ordinance-1985, by which provisions of Evidence Act-1872 have been made totally inapplicable to the proceedings of the Family Courts and only a few provisions of the Code of Civil Procedure in certain cases have been made applicable to the proceedings of the family courts, thus be ultra virus. violative of the Article 27 and 31 of the Constitution of People's Republic of Bangladesh or not. The High Court Division finds that the petitioner has not been discriminated and his fundamental rights, as guaranteed under Article 26, 27 and 31 of the Constitution, has not been infringed or violated. Article 27 of the Constitution clearly states all citizens are equal before law and are entitled to equal protection of law and Article 31 stipulates that it is the inalienable right of every citizen to be treated "in accordance with law and only in accordance with law and that no action that is detrimental to one's life, liberty or property shall be taken except in accordance with law. The mandate of Article 31 is further reinforced by Article 32 of the Constitution, which lays down that person shall not be deprived of his "personal liberty" save "in accordance with law". Rule of natural justice has become a part and parcel of the law, as well as procedure. Its aim is to ensure the delivery of justice to the parties and prevent arbitrariness. Rules of natural justice serve as a hedge against any blatant discrimination against the rights of individuals. These rules can operate only in arcas not covered by any law validly made and it should be applied depends on the facts and circumstances of each case. In the present case, the law is clear and it is equally applicable to all. It is to be noted that the petitioner also failed to show as to how and to what extent the aforesaid law is inconsistent with the provisions of Part III of the Constitution. Muhammad Shahidullah -Vs.- Bangladesh, re- presssssented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat, Police Station- Shahbagh, District-Dhaka, and others (Spl.Original) 18 ALR (HCD) 164-168
Violation of Universal Declaration of Human Right as recognized under Article 13 of the Universal Declaration of Human Rights and also on violation of principle of natural justice and on mala fide. Hussain Muhammad Ershad vs. Bangladesh and others. (Latifur Rahman CJ)(Civil) 4ADC 389
In case of malafide the matter of non-disclosure will be justifiable one. But for the clear constitutional sanction a non-disclosure of fact that was considered to the prejudice of the detenu ought to be regarded as a violation of basic principle of natural justice.
The detenu cannot also ask as a matter of right to the detaining authority the facts not disclosed on the plea of public interest. This is the privilege of the State and this privilege the State can always claim against the detenu. Further, when the liberty of a citizen is at stake and when constitutional protection is sought for, it is the Court alone which can very well look into all the materials including the materials to which privilege is claimed by the detaining authority. If, in fact, a privilege is claimed in respect of any material, it is the High Court Division alone that would finally decide as to whether the document is really a privileged one or not. Under proviso to Article 33(5) of the Constitution, the authority has got a constitutional protection not to disclose any- thing in public interest and it is the constitutional Court alone which can look into the materials pertaining to the detention of the detenu as con- templated in the Constitution for its satisfaction alone. The privilege given to the State in the interest of the State, people or community cannot be asked for as a matter of right. Habiba Mahmud vs Bangladesh 45 DLR (AD) 89.
Article 40- Right to livelihood- Admittedly the writ petitioner-respondent after getting the work order started his work as per schedule and continued the same till he was suddenly directed to stop all works without assigning any reason as it appears from the impugned suspension orders as well as from the subsequent show cause notice. It is also admitted that his entire bill has not been paid even on repeated demands instead he was debarred from participating in any of the REB's bids without assigning any reason. Such action of the present appellant appears to be arbitrary, malafide and beyond the principle of natural justice. ..... Chief Engineer, REB VS Biswajit Ganguly, [3 LM (AD) 192
Over and above, before delisting the name of respondent No. 1 from the list of MPO, no notice for showing cause was served upon her and, as such, the principle of natural justice has been violated. [73 DLR (AD) (2021) 298]
The English Courts even went far enough to state that the principle of 'audi alteram partem means "listen to the other side" or "let the other side be heard as well" one of the two rules of natural justice, had it origin in the heaven as "the first hearing in human history was given in the Garden of Eden. Even God himself did not pass sentence upon Adam, before he was called upon to make his defence. (R vs University of Cambridge 1723 Str 557 per Fortesque,J). [73 DLR (AD) (2021) 298]
Since all the terminated employees ex- cept the petitioner have been reinstated in their respective posts pursuant to the directions given by the High Court Di- vision in other writ petitions, we do not see any valid reason on the part of the appellants to pursue this appeal and consequently, we are not inclined to dwell upon the points in detail on which leave was granted except reiterating the statement of law that (a) termination is a recognized method of dispensing with the services of an employee/worker by an employer after fulfilling certain con- ditions, such as, by providing termina- tion benefits, (b) termination simpliciter without giving any stigma or making any accusation is not a punishment and in passing such order no reason is re- quired to be assigned, (c) An employer is always free to take recourse to a sim- ple order of termination in order to avoid the complex disciplinary action or in other words it is open to the employer not to have recourse to any disciplinary action but to terminate the services of an employee by notice in accordance with the conditions of his employment without show case, that is, the principle of natural justice has got no manner of application in case of termination sim- pliciter, (d) An order of termination sim- pliciter is a valid order and cannot be interfered with in judicial review pro- vided that the intended action is not taken with a view to victimize the em- ployer/ worker for trade union activities. Biman Bangladesh Airlines vs. Md. Moniruzzaman (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 304
We find merit in the submissions of the learned advocate for the petitioners and are inclined to grant leave in both the petitions on the following grounds:
I. Whether the High Court Division il- legally declared Rule 6 of the জাতীয় বিশ্ববিদ্যালয় (অধিভুক্ত কলেজ/শিক্ষা প্রতিষ্ঠান সমূহের গভর্নিং বডি) সংশোধন সংবিধি ১৯৯৮ to be ultra- vires since no Rule was issued to exam- ine the vires of the said Rule 6.
II. Whether the Rule 6 of the জাতীয় বিশ্ববিদ্যালয় (অধিভুক্ত কলেজ/শিক্ষা প্রতিষ্ঠান সমূহের গভর্নিং বডি) সংশোধন সংবিধি ১৯৯৮ infringes the principle of natural justice by giving the National University which nomi- nates the President of the Governing Body, unfettered power to withdraw the said nomination at any time. Mirza Ash- faque Hossain vs. Md. Ashraful Alam (Muhammad Imman Ali J) (Civil) 8 ADC 831
At the risk of repetition, I say that in the Rule issuing order, the District Magistrate and Deputy Commissioner was not, at all, asked to 70 show cause as to why fatwas including the instant one should not be declared unauthorized and illegal and thus he was not given any chance of hearing on the subject or the point or the issue. It may be stated that the Rule was issued only upon the District Magistrate and Deputy Commissioner, Naogaon. I failed to understand how the High Court Division could merrily exercise its jurisdiction under article 102 and hold all the fatwas including the instant one as unauthorized and illegal without giving the sole respondent any chance of hearing. It was clearly a violation of the principles of natural justice. I could not lay my hands on any decision either under writ jurisdiction or under the civil jurisdiction by this Court or any other superior Court approving such kind of exercise of power by the High Court Division. I am afraid that if this kind of exercise of power by the High Court Division is approved or sanctioned, then the High Court Division shall be on the spree of disposing of the Rule, in exercising jurisdiction under article 102, giving relief to a party at its own whims and sweet will beyond the pleadings and the prayer and without caring the right of hearing of the other side. And in the process, it will give rise to judicial anarchy. It also needs to be mentioned that the language used in the Rule issuing order "and/or pass such other or further order or orders as this Court may deem fit and proper", in no way, gives a Court jurisdiction to give relief to a party or to hold something or to make any declaration or to make observations and recommendations beyond the Rule issuing order, such a language gives jurisdiction to a Court or authorises a Court to give only the ancillary or consequential relief that may follow from the Rule issuing order. Therefore, I am constrained to hold that the High Court Division exceeded its jurisdiction as well in making the Rule absolute in the terms as indicated hereinbefore. (Md. Abdul Wahhab Miah, J). Mohammad Tayeeb VS Ministry of Religious Affairs. [5 LM (AD) 461]
Principle of natural justice- We are of the view that the High Court Division has correctly decided that in the facts and circumstances of this case the principle of justice has not been violated. Clearly, the petitioner did not feel sufficiently aggrieved by the lack of opportunity given him by way of show cause notice or opportunity of being heard. He did not immediately rush to the High Court Division challenging the violation of the principle of natural justice. On the contrary, he took the decision to make himself be heard by the authority concerned by making representations and by supplying other supporting evidence. .....Amzad Hussain VS Bangladesh Bank, [4 LM (AD) 33]
We have gone through the judgment and order of this Division. We found that this Division answered the point raised by Mr Fida M. Kamal in its judgment. Moreover, since land, in question, was allotted to the writ petitioner on 15-7-2001 who deposited 25% of the price money fixed by the authority concerned and thereafter, without serving any notice to him that allotment was cancelled and the said land was allotted to the review petitioner on 4-12- 2004 which clearly shows that the right of the writ petitioner in the disputed land has been infringed due to cancellation of the allotment so he have locus standi to challenge the order of cancellation and subsequent allotment to the review petitioner. This Division also found that admittedly before such cancellation no notice was served to the respondent No.1. That is such order of cancellation of his plot was passed violating the principles of natural justice. This Division also held that the writ petition was maintainable since the same was filed before filing the Title Suit. AB Siddique (Engineer) VS Kazi Akramuddin Ahmed, [8 LM (AD) 350]
Constitution of Bangladesh Article 102-The principle of "Audi Alteram Partem"
The High Court Division held that the principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrariness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man can not be condemned unheard (audi alteram partem) and (ii) a man can not be the judge in his own cause (nemo debet esse judex in propria causa), The contents of these principles vary with the varying circumstances and those can not be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application. Mainul Hossain and another - Vs. Ministry of Land (Spl.Original) 21 ALR (HCD) 298-302
Natural justice violation- The judicial functions cannot be evaluated by the Administrative Authority- It is well settled principle of natural justice that no one should be condemned unheard. In addition, strictures or scathing language should not be used by the higher Courts in exercise of their appellate or supervisory jurisdiction against the Judges of the lower Courts. Errors of the judgments should be corrected by reasons of law.
Comments were made without hearing the learned Judge and, as such, the principles of natural justice were violated..... Sharif Hossain Hyder VS Sonali Bank & others, [1 LM (AD) 102]
We have gone through the judgment and order of this Division. We found that this Division answered the point raised by Mr Fida M. Kamal in its judgment. Moreover, since land, in question, was allotted to the writ petitioner on 15-7-2001 who deposited 25% of the price money fixed by the authority concerned and thereafter, without serving any notice to him that allotment was cancelled and the said land was allotted to the review petitioner on 4-12- 2004 which clearly shows that the right of the writ petitioner in the disputed land has been infringed due to cancellation of the allotment so he have locus standi to challenge the order of cancellation and subsequent allotment to the review petitioner. This Division also found that admittedly before such cancellation no notice was served to the respondent No.1. That is such order of cancellation of his plot was passed violating the principles of natural justice. This Division also held that the writ petition was maintainable since the same was filed before filing the Title Suit. AB Siddique (Engineer) VS Kazi Akramuddin Ahmed, [8 LM (AD) 350]
Since the students, who have given O Level and A Level Examination and obtained required grades, are permitted to sit for the admission tests for entry in the 1st year Honours Course in the University as such, the authority concern of the University may give active consideration to include English version of the question papers as well for convenience of those students.
The High Court Division observed that it is the established principles of law that the authority concern is entitled to make pragmatic adjustments and policy decision which may become necessary or called for under the prevalent circumstances. This Court cannot strike down a policy decision of the University merely because the petitioners feel that the earlier practice was proper. Since the impugned decision of the University is not actuated with any malice and is not the outcome of an arbitrary act, rather in the given context taking such decision by the University is found justifiable; as such, question of offending the fundamental rights of the petitioners as guaranteed under the Constitution does not arise at all. Further, the earlier practice was creating scope of unequal competition treatment amongst the respective students and was leaving a large number of seats being blocked for the next 4 (four) years. Hence giving prior information to those applicants, who have already appeared for the entry level admission tests of 2014- 2015 academic session, before the taking impugned decision is not at all required. Thus, the allegation of violation of the principles of natural justice is not attracted in the present facts and circumstances. However, before the High Court Division part it will not be out of place to observe that since the students, who have given O Level and A Level Examination and obtained required grades, are permitted to sit for the admission tests for entry in the 1st year Honours Course in the University as such, the authority concern of the University may give active consideration to include English version of the question papers as well for convenience of those students. Be that as it may, the High Court Division finds no substance for interference in the matter in question under Article 102 of the Constitution of the People's Republic of Bangladesh. In the result, this Rule is discharged. Minara Begum and others. -Vs- The Vice-Chancellor, University of Dhaka and others (Spl. Original) 19 ALR (HCD) 78-83
Since contract has been made between two private parties and it is a pure and simple contract, such a private contact cannot be enforced by a summary proceeding. Further, the concerned authority terminated the petitioners following the terms laid down in the appointment letter and in this case show cause or personal hearing was not required. Thus, the question of violation of natural justice does not arise at all. The High Court Division held that the concerned authority shall henceforth ensure fairness and avoid arbitrary action. Indeed, it shall be incumbent on the part of the appointing authority to fix criteria for eva- luating candidates who have applied for the respective posts by following established procedure and bring appointees under applicable rules and ensuring thereby an appointment process as is impartial and protective of every one's rights. Further, considering the miserable and dis- advantageous position of the temporary employees it would be proper that i) the service of the 3rd and 4th class temporary employee shall not be continued for any indefinite period allowing preferably for a cut-off time but not exceeding two years. If for any reason, it is more than two years, the appointing authority shall consider any given case for regularization based on eligibility and qualifications mandated by the applicable rules; ii) temporary em- ployees engaged without following the regular recruitment procedure should benefit from an early and due consideration to bring them into the folds of appropriate service rules and regulations preferably within 6 months from their recruitment; iii) the authority shall neither release any temporary employee nor replace such employee by another temporary or ad hoc employee against the existing post; and iv) the temporary employee shall be entitled to have equal wages for equal work and entitled to any other benefit as other employees during his temporary service. Md. Shah Alam (M.S Alam) and others - Vs.- Ministry of Defence and others (Spl. Original) 15 ALR (HCD) 205-210
Let a Rule Nisi be the High Court Division issued Rule Nisi calling upon the respondents to show cause as to why they should not be directed to absorb the petitioners under the revenue budget with continuity of service and other benefits in their respective/equivalent posts and/or such other or further order or orders passed as to this Court may seem fit and proper.
The High Court Division taking in to consideration the judgment of the Appellate Division reported in 18 MLR (AD) 372 where in the Appellate Division disposed of the leave-petition with the following observations: "(a) The leave-petitioners are directed to absorb the writ-petitioners- respondents under the revenue budget subject to availability of same/ equivalent posts under the Bureau of Manpower Employment and Training provided that they have the requisite qualification. (b) In the event of non availability of adequate vacant posts to absorb the writ-petitioners- respondents, the authority shall not make any recruitment in BMET in future until the writ-petitioners are absorbed provided that they have requisite qualification. (c) The writ-petitioners-respondents are entitled to salaries and other benefits only for the period of rendition of their service and observed that the ratio laid in down in 18 MLR (AD) 372 also applies to the facts and circumstances of all the cases and hence, the High Court Division finds that the petitioners have legitimate expectation that they would be absorbed in the revenue set up against the permanent posts subject to availability of those. Our conclusions are as follows: All the cases of the petitioners are covered by the principle of natural justice and the decision reported in 18 MLR (AD) 372. Accordingly, the concerned authorities are directed to regularize/ absorb the petitioners under the revenue budget with continuity of service and other benefits under the Ministry of Health and Family Welfare of the Government in accordance with law provided that they have requisite qualifications subject to availability of the same/equivalent posts as admissible in law as expeditiously as possible. With the above observations and directions, all the Rules are disposed of. Sagar Sen and others -Vs.- Government of Bangladesh and others (Spl. Original) 20 ALR (HCD) 9-12
Principle of natural justice has been followed
It is not the case of the petitioners that they were not given an opportunity of being heard. But their case is, the opportunity was not adequate as the notices did not reflect the allegations and the time and place of incidents. Here, the practical scenario is that certain incidents took place, which are criminal in nature. The inquiry committee called all the relevant witnesses, victims and also took statements from the petitioners, who appeared before the inquiry committee. As such, the petitioners are all well conversant with the allegations and facts involved with the alleged incidents. Therefore, due to nonmentioning of the allegations and the time and place in the subsequent notices to show cause, did not materially prejudice the petitioners in submitting their self-defence in terms of “being heard by ample opportunity” and as such we are of the view that the principles of natural justice have not been violated, in other words, the cited cases are not applicable in view of different facts and circumstances of the present cases. (Para-36,37)
The Enquiry reports show that several incidents in the name of Ragging had been taken place for a certain period of time by different incidents on different times. Considering those inquiry reports, the University Authority has imposed the punishment in question to the petitioners and therefore, it cannot be said that for the selfsame offences they have been punished for the second time or third time. From the above discussions, it appears to us that although the incidents have been branded with the word “Ragging” but the allegations clearly fall within the ambit of section 5(a) of the Disciplinary Ordinance under the terms of misconduct and breach of discipline. Therefore, we hold that, the University Authority issued the impugned orders following the provisions of laws incorporated in the Disciplinary Ordinance. (Para 43 & 44) [18 SCOB [2023] HCD 33]
It is a well established principle that fraud vitiates everything. Legal maxim Nullus commodum capere potest de injuria sua propria' has a clear mandate of law that, a person who by manipula- tion of a process frustrates the legal rights of others, should not be permit- ted to take advantage of his wrong or manipulations. Fraud and justice never dwell together. (Franc et jus nunquam cohabitant) is a pristine maxim which has never lost its temper over all these centuries. No judgment of Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything ....(12)
Principles of natural justice are not inflexible and may differ in different circumstances. It varies with varying constitution or circumstances because the principle of natural justice has no fixed content. Observance of the rule of natural justice is definitely an indispen- sable rule of proactive whenever a decision is taken affecting a person's rights but such rule can not have appli- cation where the person has acquired no right to the office. .....(15)
The Registrar, BMOC vs. Shah Md. Arman (Md. Nuruzzaman J) (Civil) 20 ADC 248
Article 102(2)
Before putting stigma principle of natural justice demands an opportunity of being heard to be given of the writ-petitioner. In order to satisfy the authority about the performance in the service, although writ- petitioner made reply stating all facts but the authority could not show any material as to substantiating the allegation of dissatisfaction with the service of the writ-petitioner. and, as such, mere mentioning of dissatisfaction or inefficiency in the order of removal is nothing but remains a disputed question of arbitrariness on the part of the authority which is not sustainable in law......(24)
29 BLC (AD) (2024) 64
