۩
Introduction:-
Audi Alteram Partem is a principle of Natural Justice whose
English meaning is Hear the other side or both the side must heard or No man
should be condemned unheard. This principle includes two things i.e. Notice and
Hearing. That to say that any order passed without giving notice us against the
principle of Natural Justice is void
ab initio.
But in the case of
Prof. Dr. Yusuf Ali vs. Chancellor of RU. The former President Justice
Shahabuddin Ahmed without any notice and hearing to defend him removed the
former Vice-Chancellor of Rajshahi University Prof. Yusuf Ali in 1997.So; it is
proved that, it was an exception case to the Natural Justice in the eye of Law.
The
Chancellor being satisfied with the overall disturbing condition in the University
and considering the fact that the petitioner being Vice- Chancellor was unable
to run the administration peacefully and properly had exercised his power under
section 16 of the General Clauses Act being the appointing authority for the
greater interest of the highest educational institution of the Division. In a
case like this if show cause notice was issued, it would aggravate the
situation more and more and that is why we are of the view that the Chancellor
had rightly exercised his power, without issuing any show cause notice, for
relieving of the petitioner from the post of Vice- Chancellor.
۩ Fact and Overview of the case:-
In this writ
petition the petitioner describes himself as Vice- Chancellor of Rajshahi
University through the process of section 11 of Rajshahi University Act of 1973
(Act No XXXVI of 1973) as a Member of panel from which the Vice- Chancellor
shall be appointed for a period of 4 years from the said panel. Three persons
are to be nominated by the Senate on such terms and conditions as may be
determined by the Chancellor. In this case, Senate nominated three persons,
namely, the petitioner Dr Md Yusuf Ali (52), Professor AKM Azaharul Islam (51)
and Dr AKM Omar Ali (47). Out of the three nominated persons the petitioner got
the highest number of votes, namely,52 and he was appointed as Vice- Chancellor
of the Rajshahi University by the Chancellor by an order
dated 22-8-94 vide Annexure-B to the writ petition. This order was
communication to the present petitioner by the Registrar of Rajshahi University
by a notice dated 23-8-94 vide Annexure-C to the writ petition.
It is stated
that after he was appointed as Vice- Chancellor of Rajshahi
University the petitioner had been
discharging his duties honestly and sincerely and restored law and order in the
Rajshahi University. To his credit the law and
order situation and academic atmosphere of the University had been improved to
such extent that the university was not closed for a single day excepting the
scheduled vacations. Since he joined as Vice- Chancellor Students were very
serious in their studies, in attending classes and appearing at the
examinations as scheduled. Besides, they could live peacefully in the
residential halls due to improvement of the law and order situation. The other
contestants for nomination were not happy at this and they tried to create
chaos and confusion amongst teachers, students and employees. The petitioner’s
appointment as Vice- Chancellor was not liked by the defeated section of the
teachers who did not like the restoration of law and order situation and
improvement of the academic atmosphere.
It is submitted
by the petitioner that the appointment of the petitioner as Vice- Chancellor
vide Annexure-B and his joining as Vice- Chancellor in terms of the
Notification Vice- Chancellor-C do not contain any condition or term excepting
the tenure of four years with effect from 22-8-94 which will expire on 21-8-98
and, as such, any order suspending, dismissing or relieving him from his post
without allegation, enquiry or show cause is illegal. While the petitioner was
running the administration of the Rajshahi University peacefully, an order of
removal was passed by the Chancellor on 16-2-97 issued through the Ministry of
Education relieving him from his service and posting him in his former position
as professor in the Department of Chemistry and also asking him to hand over
charge to pro- vice-Chancellor Professor Dr Abdul Khaleque. This order is
annexed as Annexure-D which is the impugned order. It is stated that the
impugned order dated 16-2-97 is illegal and without jurisdiction in view of the
fact that section 16 of the General Clauses Act is not applicable because the
Chancellor is not authorized to relieve the petitioner as he had been nominated
by the Senate and appointed by the them Chancellor in accordance with law. It
is further stated that since the Chancellor had no direct power and since there
is no provision in the University Act itself for removal of the petitioner, the
Chancellor had acted without jurisdiction in issuing the impugned order under
section 16 of the General Clauses Act. It is further alleged that since before
issuance of the impugned order no show cause notice was given, the impugned
order offended the principle of natural justice and as such, it is liable to be
struck down.
In this case an
affidavit-in-opposition has been filed on behalf of respondent Nos. 1 and 2 and
another set of affidavit-in-opposition has been filed on behalf of respondent
No. 4. On behalf of respondent Nos. 1 and 2, learned Attorney-General appeared
and on behalf of respondent No. 4 the learned Senior Advocate Mr. SR Paul
appeared and argued the case. In the affidavit-in-opposition filed by
respondent Nos. 1 and 2 it is stated that the petitioner as proctor hopelessly
failed to maintain, not to speak of restoring, law and order on the campus. As
the petitioner was senior in service in the Department of Chemistry, he was by
rotation appointed Chairman of the Department of Chemistry under the provision
of section 29 of the Rajshahi University Act 1973, and not on the basis of the
Academic experience.
It was further
stated in the affidavit that the petitioner had not been discharging his duties
honestly and sincerely. During his tenure of service there was deterioration of
law and order and academic atmosphere of the University. Four students were
killed in the campus. The classes were not held regularly nor were any of the
examinations held according to schedule. There was disturbance in all the
residential halls of the University. In total the classes were suspended for
143 days. The defeated candidates for the office of the Vice- Chancellor
accepted the appointment and it is wrong to say that any of them ever created
any chaos or confusion as alleged or otherwise. The other allegations as made
by the petitioner in the writ petition have been denied by the answering
respondents. It is further stated that in pursuance of the impugned order the
petitioner had already joined his department of Chemistry of the said University.
Respondent No. 4 stated in his affidavit-in-opposition that during the tenure
of the office of the petitioner there was deterioration of law and order and
academic atmosphere. In fact, this Respondent No. 4 denied the allegations made
by the petitioner in the writ petition and also adopts the submissions made by
respondent Nos. 1 and 2. The petitioner filed two sets of affidavit-in-reply to
the two sets of affidavit-in-opposition. In these replies the petitioner in
fact, reiterated his statements as made in the writ petition itself.
Mr. Moudud
Ahmed, the learned Advocate appearing on behalf of the petitioner, has drawn
our attention to sections 9, 10 and 11 of the Rajshahi University Act. Section
9 has provided 19 classes of officers including the Chancellor and
Vice-Chancellor. According to section 9, the Chancellor as well as the
Vice-Chancellor are officers of the University, Section 10 provides that the
President of the People’s Republic of Bangladesh shall be the Chancellor of the
University and shall preside over at the Convocation of the University for
award of academic and honorary degrees, and in his absence the Vice-Chancellor
shall preside at such Convocation. The Chancellor shall have such powers as may
be conferred on him by this Act or the Statutes. Section 11(1) of the aforesaid
Act provides that the Vice-Chancellor shall be appointed by the Chancellor for
a period of four years from a panel of three persons to be nominated by the Seated
on such terms and conditions as may be determined by the Chancellor and shall
be eligible for re-appointment for a further period of four years.
Mr Moudud Ahmed submits that, as stated above,
out of there teachers nominated by the Senate for the post of Vice-Chancellor,
the petitioner got the highest number of votes and the petitioner was appointed
as Vice-Chancellor of the University by the Chancellor for a term of four
years. At the time of appointment no terms and conditions were attached with aids
appointment by the Chancellor. It is the case of Mr. Moudud Ahmed that since
the petitioner was appointed as Vice-Chancellor by the Chancellor of the
Rahshahi University and since no terms of appointment by the Chancellor and
since term of office is for four years from the date of appointment the
petitioner cannot be removed from the post of Vice-Chancellor by the Chancellor
in view of the fact that there is no such provision of removal or discharge or
dismissal from service in the University Act or Statute itself. He further
submits that if the Chancellor wants to remove the Vice-Chancellor, the
necessary amendment of the Act is required to be made in view of the fact that
the University Act does not contain any provision giving any guideline as to
how the Vice-Chancellor will be removed from his post.
Mr. Moudud Ahmed
has referred to section 16 of the General Clauses Act which runs as follows :
Power to appoint
to include power to suspend or dismiss. Where by any act of Parliament or
Regulation, a power to make any appointment is conferred, and then unless a
different intention appears, the authority having for the time being power to
make the appointment shall also have power to suspend or dismiss any person
appointed whether by itself or any other authority in exercise of that power.
Relying on this
provision Mr Moudud Ahmed submits that this section of the General Clauses Act
is not applicable in the case of that present petitionerview of the fact that
the Chancellor and the Vice-Chancellor shall be guided under the University Act
itself and by no other law. He further submits that even if it is presumed that
section 16 of the General Clauses Act is applicable, even then the order was
not an order of suspension or dismissal from service. Rather it is a removal
from the post of Vice-Chancellor and posting him back to his original post of
professor in the Department of Chemistry of Rajshahi University Such an order
is not contemplated under section 16 of the General Clauses Act.
Mr
K S Nabi, the learned Attorney-General appearing for respondent Nos. 1 and 2,
submits that it is true that there is o separate provision in the University
Act itself for removal of the Vice-Chancellor. But since the General Clauses
Act has empowered the appointing authority to dismiss or suspend, the
Chancellor had rightly issued the impugned order of removal. He submits that
dismissal means severance from service. Relieving from service is also
severance from service. The petitioner was relieved from the service of
Vice-Chancellor and posted back to his original position that is, the professor
of the Department of Chemistry of the Rajshahi University.
Learned Attorney-General submits that this is a liberal and reasonable order in
view of the fact that the Chancellor could have dismissed him from service. But
considering the facts and circumstances of the case the Chancellor took a
liberal view relieving him from the post of the Vice-Chancellor and posting him
back as professor in the Department of Chemistry of Rajshahi University.
Learned
Attorney-General has referred to the case of Dr Syed Mahbubur Rahaman vs.
Bangladesh University of Engineering and Technology, 45 DLR 333. In that case
the Vice-Chancellor passed an order suspending a professor of the University on
probation. Such an order of suspension had been challenged. It was observed by
a Division Bench of this Court in that case that in an emergency the
Vice-Chancellor has the power even to terminate the service of a teacher
appointed on probation before the decision of the syndicate. The Court cannot
enquire into the existence of emergency or propriety of the action taken by the
Vice-Chancellor. It was observed that in view of the provisions of section 16
of the General Clauses Act the appointing authority has inherent power to
suspend the petitioner.
Learned
Attorney-General has also referred to the case of Bangladesh Freedom-Fighters
Welfare Trust Vs. Md Momtajul Hossain, 44 DLR (AD) 273. In the aforesaid case
the Appellate Division held as follows :
It has not been
clearly stated in the relevant provision for termination of service, sub-rule
(1) of rule 7 of the Rules, who is to exercise that power. The High Court
Division correctly held that, in the absence of any specific provision to this
effect, the appointing authority of the employee must be deemed to have been
vested with the power of termination by operation of section 16 of the General
Clauses Act, 1897.
One of the
purposes for the enactment of General Clauses Act, 1897 is to avoid superfluity
of language in statutes whenever it is possible to do so. In Rayarappan Vs.
Madhari Amma, AIR 1950 FC 140 it was held that section 16 of the Act codified
the well-understood general law, that the power to terminate flows naturally
and as a necessary sequence from the power to create. In other words, it is a
necessary adjunct of the power of appointment and is exercised as an incident
to, or consequence of, that power, the authority to call such officer into
being necessarily implies his functions which their exercise is no longer
necessary, or to remove the incumbent for an abuse of these functions or for
other causes shown. Similar Views were re-iterated in Lekhraj Vs. Deputy
Custodian, Bombay AIR 1966 SC 334 (366) and M/s Heekett Engineering Co. Vs.
Their Workmen AIR 1977 SC 2257 (2261).
Relying on the
aforesaid case the learned Attorney-General submits that the Chancellor is the
appointing authority and since there is no specific provision for removal from
service of the Vice-Chancellor in the Act itself, he had resorted to section 16
of the General Clauses Act.
In this connection
we may refer to the case of Chief Justice of Andhra Prodesh Vs. LVA Dikshitulu,
AIR 1979 (SC) 193. In the relevant law there was no provision for removing the
employees by the Chief Justice of the High Court, but the Chief Justice was the
authority to appoint him. In that case such a question arose as to the power
and scope of appointment. The Supem Court of India in describing the power of
the appointing authority held as follows :
“Now, let us
what is the ambit and scope of the power of “appointment” in Article 229(i). In
the context of Article, 229, and as a whole, this power is of wide amplitude.
The word “appointment” in Article 229(i) is to be construed according to the
axiom that the greater includes to the axiom that the greater includes the
less. This cardinal canon of interpretation underlies section 16 of the General
Clauses Act which has been made applicable by Article 317 (1) of the
Constitution. Construed in the light of this juristic principle, the power of
“appointment” conferred by Article 229(1) includes the power to suspend,
dismiss, and remove or compulsory retirement from service. In short, in regard
to the servants and officers of the High Court, Article 229 makes the power of
appointment, removal, suspension, including in rank, compulsory retirement,
etc, including the power to prescribe of the Chief Justice and no extraneous
executive authority can interfere with the exercise of that power by the Chief
Justice or his nominee, except to a very limited extent indicated in the provisions.
In conferring such exclusive and supreme powers on the Chief Justice, the
object which the Founding Fathers had in view, was to ensure independence of
the High Court.”
Considering the
provision of section 16 of the General Clauses Act and also on consideration of
the judicial pronouncements as mentioned above, we are of the view that the
Chancellor who has got power to appoint has got the power to suspend, although
there is no specific provision in the Act itself for removing the
Vice-Chancellor of the University.
Mr Moudud Ahmed
has referred to section 55 of the University Act and tried to convince us that
in the case of Vice-Chancellor the procedure laid down in section 55(3) should
have been followed as he is one of the officers of the University. We have gone
through the aforesaid provision, but it appears to us that such a provision of
section 55(3) of the aforesaid Act is not attracted in the case of
Vice-Chancellor.
If the Vice-Chancellor is taken as an officer
of the University within the purview of section 55(3) of the Act, then as per
section 9 of the Act the Chancellor is also an officer and he should also be
dealt with under section 55(3) of the Act which is nothing but an absurdity.
So, it appears to us that the Chancellor of the University had rightly
exercised his power under section 16 the General Clauses Act in relieving of
the petitioner from the responsibility to act as Vice-Chancellor and again
posting him to his former post of Professor in the Department of Chemistry in
the University of
Rajshahi.
Mr SR Paul the
learned advocate appearing for the respondent No. 4 submits that if sections
15, 16 and 21 of the General Clauses Act are read together, it appears that the
Chancellor has rightly acted under section 16 of the General Clauses Act. He
submits that power to appoint means power to suspend or dismiss or remove or
compulsory retire. He further submits that section 21 of the General Clauses
Act provides that the person has power includes a power, exercisable in the
like manner and subject to the like sanction and conditions (if any), to add,
amend, vary or rescind any notification, order Rule, or bye-law so issued. His
submission is that in view of the provision of section 15, 16 and 21 of the
General Clauses Act it appears that the Chancellor had acted within the bounds
of law and rightly removed the petitioner from the post of Vice-Chancellor.
Mr Moudud Ahmed
further submits that since he was removed from the post of Vice-Chancellor and
since from the affidavit-in-opposition it appears that some allegations were
made against him, he ought to have been given show-cause notice before removal
from service. Since in the instant case notice had not been issued and he was
not given reasonable opportunity to defend himself the Chancellor had violated
the principle of natural justice and, as such, the impugned order of removal is
liable to be struck down. In support of his contention he has referred to a
dozen of decisions of our country and of Indian Jurisdiction.
It is universally established principle if a
man is condemned and if there is severance of service of a person for some
allegations or by giving him bad name, he must be given an opportunity of being
heard and the allegations should also be given to him so that he could give and
defend himself.
Mr Moudud Ahmed
has referred to the affidavit-in-opposition filed on behalf of respondent Nos.
1 and 2 stated that these answering respondents have made categorieal statement
in the affidavit-in-opposition that the petitioner had not been discharging his
duties honestly and sincerely, he failed to restore law and order in the
university. Four students were killed in the campus. The classes were not held
regularly nor were any of the examinations held according to schedule. There were
disturbances in all the residential halls. In total the classes of the
university remained suspended for 143 days. Relying upon the above statements
Mr Moudud Ahmed submits that all these are allegations made against the
petitioner as Vice-Chancellor and as such, he should be given an opportunity of
being heard and also he should have been given an opportunity to reply to these
allegations. Since he was removed without affording him an opportunity of being
heard, it offends the principle of natural justive. Since this principle of
natural justice has been accepted university, we need not refer to the cases as
cited by Mr Moudud Ahmed. Now let us see whether the principle of natural
justice has been violated in the instant case or not.
On the pont of
principle of natural justice the learned Attorney-General submits that at the
relevant time the academic atmosphere of the Rajshahi University
was worst and circumstances were beyond control. There were disturbances in the
university in between different sections of students as well as different
groups of the teachers of the Chancellor had no alternative but to remove the
Vice-Chancellor immediately in the greater interest the institution.
Mr
attorney-general submits that if in the instant case the show cause notice was
issued upon the Vice-Chancellor it would create more trouble which would
deteriorate the overall situation and law and order condition of the university
area. Four students were killed in the campus and there was continuous
disturbance in different halls amogst the students of different groups having
different political bias. In such a situation the Chancellor had to take
immediate action and as such, the question of issuing show cause notice did not
arise at all. We find substances in the aforesaid contention of the learned
Attorney-General.
The President is
the Chancellor of the University and it appears that he being satisfied with
the overall disturbing condition in the petitioner being Vice-Chancellor was
unable to run the administration peacefully and properly had exercised his
power under section 16 of the General Clauses Act, being the appointing
authority, for the greater interest of the highest educational institution of
the Division. In a case like this if show cause notice was issued, it would
aggravate the situation more and more and that is why we are of the view that
the Chancellor had rightly exercised his power, without issuing any show cause
notice, for relieving of the petitioner from the post of Vice-Chancellor and
again posting him to his parent Department as professor, namely, Department of
Chemistry.
Mr
Attorney-General further submits that by the impugned notification the
petitioner was relieved of his duties as Vice-Chancellor of the University of Rajshahi and at the same time he was
re-posted to his parent Department, namely, Department of Chemistry of the
university as professor. A person is aggrieved when there is severance of
service. In the instant case it appears that there is no total severance of
service by way of dismissal or removal or discharge, rather he was relieved of
his duties as Vice-Chancellor and posted back to his original Department as
professor. Service of a person is a property to him and when there is severance
of service of a person, the question of show cause notice will arise. But in
the instant case learned Attorney-General submits that there is no severance of
service altogether but he was relieved of his duties as Vice-Chancellor of the
University and posted back to his original post of Professor of the Department
of Chemistry of the University.
We also find
force in the above contention of the learned Attorney-General in view of the
fact that by the impugned order the petitioner was relieved from the post of
Vice-Chancellor and his service was not severed as a whole and he was not made
destitute and jobless in any manner whatsoever. Since for unavoidable
circumstances, for law and order situation of the university concerned, since
his service was not totally severed and he was not made destitute by such
severance and since he was re-posted as the professor of the Department of
Chemistry and since the impugned order was passed for greater interest of the
Institution itself, we are of the view that the show cause notice as argued by
Mr Moudud Ahmed was not necessary in the facts and circumstances of the present
case. As such, we do not find any substances in the contentions of Mr Moudud
Ahmed.
Mr SR Paul, the
learned Advocate representing respondent No. 4, submits that the Chancellor of
Rahshahi University is the President of Bangladesh and President acted under
Article 48 of the Constitution. He submits that the President shall exercise
the power and perform the duties conferred and imposed on him by the
Constitution and by other law and in performing of his duties excepting the
Article 56(3) and Article 95(1) of the
Constitution the President shall act in accordance with the advice of the Prime
Minister. Mr Paul submits that since the President acted under the University
Ordinance and as President acted in accordance with the advice of the Prime
Minister, the question of show cause notice does not arise at all. We are
reluctant to accept the above contention of Mr SR Paul in view of the fact that
in the present case the President had not acted as President under Constitution
or any other law, rather the President being Chancellor of the Rajshahi University had acted under the
provisions of law. So in our opinion, such an argument of Mr Paul is fallacious
.
Mr Moudud Ahmed
further submits that the power exercised by the Chancellor was not judiciously
done. Rather the Chancellor had exercised his power injudiciously, arbitrarily
and in a malafide manner. Since the power exercised by the Chancellor of the
University is injudicious exercise and since with malafide intention to remove
the petitioner the discretionary power has been exercised by him, the impugned
order is absolutely malafide and, as such, the said order is liable to be
struck down. In support of such malafide exercise of power Mr Moudud Ahmed has
referred to the cases of Khandkar Mustaque Ahmed Vs. Moulvi Mainuddin Ahmed 39
DLR (AD), 1. It is his case that the Government has been changed in 1996 and
being influenced by the party in power the President had issued the impugned
order of removal of the petitioner from service. The Chancellor had not applied
his independent mind before passing the impugned order and, as such, this order
is absolutely illegal and without jurisdiction.
۩ Judgment:-
We have heard
the learned Advocates of both sides and perused the relevant papers and
documents placed before us. It is easy to allege malafide, but it is difficult
to prove the same. In the instant case though Mr Moudud Ahmed argued at length
on the ground of malafide, yet we find that such an allegation could not be
proved by any materials on record and, as such, it is difficult to accept the
above contention to Mr Moudud Ahmed. The Chancellor is the President of this
country and this President was the Chief Justice of the Supreme Court for
several years and he was also Acting President for about one year. Unless and
until the malafide could be proved by material evidence on record, it is
difficult to accept such a contention of malafide.
In view of the facts and circumstances of the
case we find that the petitioner failed to establish the allegation of malafide
and, as such, the contention of Mr Moudud Ahmed as regards exercising power
injudiciously, arbitrarily and in malafide way by the Chancellor of the
University cannot be accepted at all. Considering the facts and circumstances
of the case and the provisions of law as discussed above and also considering
the judicial pronouncement as referred to above, we are of the view that the
Chancellor of the University had acted in accordance with law and there is no
malafide intention in passing the impugned order of relieving of the present
petitioner from the post of Vice-Chancellor of the Rahshahi University. Since
it appears to us the Chancellor of the University had acted within his
jurisdiction, the impugned order does not call for any interference by this
Court. In the result this Rule is discharged. But in the facts and
circumstances of the case we pass no order as to cost.
۩
Conclusion:-
The Appointing
Authority has power under section 16 of the General Clauses Act to suspend,
dismiss and remover the Vice-Chancellor, although there is no specific
provision in the Rajshahi University Act it for removing the Vice-Chancellor of
the University. The procedure laid down in section 5(3) of the Rajshahi
University Act 1973 is not applicable to the Vice-Chancellor for if he is taken
to be an officer of the University then as per section 9 of the said Act the
Chancellor should also be deemed to be an officer of the University to be dealt
with in accordance with the procedure laid down in section 55(3) of the same
Act which is nothing but an absurdity.
Four students
were killed in the campus and there was continuous disturbance in different
halls amongst the students of different groups having different political bias.
In such a situation the Chancellor had to take immediate action and, as such,
the question of issuing show cause notice did not arise at all.
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