Citation: [2024] 30 ALR (AD) 75
APPELLATE DIVISION
(CIVIL)
Present:
Mr. Justice Syed Mahmud Hossain Chief Justice.
Mr. Justice Hasan Foez Siddique.
Mr. Justice Obaidul Hassan.
Date of hearing:
23.02.2021.
Date of Judgment:
The 24th February, 2021.
Result:
Appeal dismissed.
Ministry of Education, and others.
...Appellants.
-Vs-
Mrs. Kanij Salma, Dhaka and others:
......Respondents.
CIVIL APPEAL NO. 141 OF 2013.
(From the judgment and order dated 06.08.2008 passed by the High Court Division in Writ Petition No. 8475 of 2007).
Audi alteram partem
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-V-University of Cambridge 1723 Str 557 per Fortesque,J).
The Appellate Division is of the view that filing on an appeal is not an efficacious remedy and the present writ petition filed by respondent No. I was maintainable. Over and above, before delisting the name of respondent No. I from the list of M.P.O., no notice for showing cause was served upon her and as such, the principle of natural justice has been violated. 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-V-University of Cambridge 1723 Str 557 per Fortesque, J). In the case of Government of Bangladesh and other vs. Jamaluddin, (2015) 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 M.P.O. nor did they afford any opportunity to educational institutions of being heard. Therefore, the High Court Division rightly declared the action illegal. In the light of the findings made above The Appellate Division is of the view that the High Court Division was perfectly justified in making the Rule absolute. Accordingly, this civil appeal is dismissed.
...(13-17)
ADVOCATES WHO APPEARED IN THIS CASE:
For the Appellants.: Mr. Samarendra Nath Biswas, Deputy Attorney General, instructed by Mr. Haridas Paul, Advocate-on-Recod.
For the Respondent No. 1: Mr. Murad Reza, Senior Advocate, instructed by Mrs. Mahmuda Begum, Advocate-on-record.
Respondent Nos. 2-5: Not represented.
JUDGEMENT
Syed Mahmud Hossain, C.J: This civil appeal, by leave, is directed against the judgment and order dated 06.08.2008 passed by the High Court Division in Writ Petition No. 8475 of 2007 making the Rule Nisi absolute and directing the writ-respondents to include the name of the writ-petitioner (respondent No. I herein) in the M.P.O. list and to release her Government part of salary within 2 (two) weeks from the date of receipt of that order.
02. The facts, leading to the filing of this civil appeal, in a nutshell, are:
The writ-petitioner stated in the writ petition that she was appointed lecturer in the Department of General History of Dhaka Women College on 18.08.1999 and after completion of all formalities her name was included in the list of monthly pay order in May,2001 with effect from January 1, 2001 and since then she had been getting Government part of salary within the said scheme of M.P.O. up to June, 2007. In the meantime, the college authority made her appointment permanent as Lecturer from 01.07.2004. But all on a sudden, writ-respondent No.4 by the impugned memo struck out the name of the writ-petitioner from the M.P.O. list without giving any prior notice on misinterpretation of the Court's order and since then she had been deprived of her legitimate financial benefit which she was enjoying since long. In the writ-petition, it was further stated that one Zakia Khanom, who joined the said college as Lecturer on 30.01.1992, was terminated from her service on 17.03.1996, but subsequently her termination order was declared illegal by the Court and as such, she was reinstated in the college. The writ-petitioner contended that writ-respondent No. 4 on wrong interpretation of the Court's order dropped the name of the writ-petitioner from the M.P.O. list linking her case with Zakia Khanom most erroneously and illegally.
03. Challenging the impugned memo dated 15.07.2007 issued by writ-respondent No. 4 for striking out the name of the writ-petitioner from the list of Monthly Payment Order (M.P.O.), Kaniz Salma as the writ-petitioner filed a writ petition being No. 8475 of 2007 before the High Court Division and obtained Rule Nisi.
04. None appeared on behalf of the writ respondents to contest the Rule Nisi.
05. The learned Judges of the High Court Division upon hearing the Rule Nisi by the judgment and order dated 06.08.2008 made the Rule Nisi absolute with direction.
06. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the writ-respondents as the leave- petitioners filed Civil Petition for Leave to Appeal No. 1981 of 2010 before this Division and obtained leave on 18.11.2013 which resulted in Civil Appeal No.141 of 2013.
07. Mr. Samarendra Nath Biswas, learned Deputy Attorney General, appearing on behalf of the appellants, submits that Zakia Khanom was senior to writ-petitioner Kaniz Salma and joined the college earlier and according to the provision of "Janabol Kathamo" Zakia Khanom was entitled to be included in the M.P.O. scheme and as such, the impugned judgment and order of the High Court Division should be set aside. He further submits that two teachers of the Department of General History of this college who have been included in the M.P.O. are senior to respondent No.1, therefore, respondent No.1 could not get any salary from the Government part within the M.P.O. scheme according to the provision of "Janabol Kathamo" which provides that only two teachers of one department can be included in the M.P.O. scheme and is entitled to Government part of the salary and as such, interference is called for. He then submits that termination of Zakia khanom was declared illegal by the Court of law and subsequently she was not only reinstated but was also placed in her previous position and as such, respondent No. 1, who was the third teacher of the department cannot be included within the M.P.O. scheme. The learned Deputy Attorney General lastly submits that respondent No. I who could have filed an appeal against the decision of stoppage of her M.P.O. to the appropriate authority, having not availed of that equal and efficacious remedy, the writ petition is premature and not maintainable before the High Court Division.
08. Mr. Murad Reza, learned Senior Advocate, appearing on behalf of respondent No. 1, on the other hand, supported the impugned judgment and order delivered by the High Court Division.
09. We have considered the submissions of the learned Deputy Attorney General for the appellants and the learned Senior Advocate for respondent No. 1, perused the impugned judgment and the materials on record.
10. Admittedly, Zakia Khanom filed Title Suit No. 62 of 1996 challenging the order of her termination and ultimately obtained a decree in her favour with a comment "termination of the plaintiff from the post of teacher of General History in Dhaka Women College on 17.03.1996 is illegal, void, inoperative and not binding upon the respondent and she is still in service in that post with salary and other benefits permissible to her" and the said decree was upheld up to this Division.
11. The High Court Division came to the finding that writ-respondent No. 4 out of wrong interpretation of Court's order has termed the respondent No. 1 to be out of pattern lecturer illegally and dropped her name from the M.P.O. list. The High Court Division further held that there was no proceeding against respondent No.1 and that there was no report against her as well. The High Court Division came to a finding that there was no nexus between respondent No. 1 and Zakia Khanom in this context.
12. Having gone through the record, we find that Zakia Khanom was terminated from service on 17.03.1996. Admittedly, respondent No. 1 Kaniz Salma joined the Department of History of Dhaka Women College 18.08.1999 on the basis of letter of appointment dated 11.08.1999. After completion of all formalities her name was included in the monthly payment order in May, 2001 with effect from 1" January, 2001, Zaika Khanom was terminated form service on 17.03.1996 prior to affiliation of Dhaka Women College, Uttara, Dhaka. The said college was affiliated with the National University on 19.10.1996. Over and above, the college was included in the M.P.O. list in the higher secondary school level on 01.06.1997 and in the degree level on 01.06.1998.
13. In such view of the matter, we find that there is no nexus between respondent No. 1, Kaniz Salma and Zakia Khanom, who was terminated from service on 17.03.1996 prior to affiliation of the college with the Government on 09.06.1996. It is contended that respondent No. 1 could avail the opportunity of filing of an appeal before appropriate authority for listing her name in the M.P.O. Having given our anxious consideration to the facts and circumstances of the case, we are of the view that filing on an appeal is not an efficacious remedy and the present writ petition filed by respondent No. 1 was maintainable.
14. Over and above, before delisting the name of respondent No.1 from the list of M.P.O., no notice for showing cause was served upon her and as such, the principle of natural justice has been violated.
15. 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-V-University of Cambridge 1723 Str per Fortesque, J). 557
16. In the case of Government of Bangladesh and other vs. Jamaluddin, (2015) 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 M.P.O. nor did they afford any opportunity to educational institutions of being heard. Therefore, the High Court Division rightly declared the action illegal.
17. In the light of the findings made above we are of the view that the High Court Division was perfectly justified in making the Rule absolute. Accordingly, this civil appeal is dismissed without any order as to costs. Ed.
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"1. This judgment reported in 19 ALR (AD) 98"
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