Even
a temporary worker must be heard before termination
Appellate
Division (Civil Jurisdiction)
Civil Appeal No. 206 of 2000
Government of Bangladesh
Vs
Md Salim Reza
Before Mr. Mainur Reza Chowdhury C J; Mr. Justice
Mohammad Fazlul Karim, Mr. Justice Syed J R Mudassir
Husain and Mr. Justice Abu Sayeed Ahammed
Date of Judgement: 29.01.2003
Result: Appeal dismissed
Background
Mohammad Fazlul Karim, J: This appeal by leave arises out of judgement
and order dated 7th May 2000 passed by the High Court Division in Writ
Petition No 4753 of 1999 making the rule absolute.
The
respondent filed the writ petition stating, inter-alia, that appellant
no. 1 Government of Bangladesh in 1994-1995 decided to raise and upgrade
the Government General Hospital, Jessore from 100 beds to 250 beds,
sanctioned initially Tk 10 crores and the Civil Surgeon Jessore was
appointed as Project Director. The appellant nos. 1 to 6 decided to
recruit manpower for opening the Hospital and accordingly created 142
gazetted and non-gazetted post. The order was issued for appointment
under order of appellant no 3 with the approval of the Government. The
respondent also alleges in the writ petition that the Government constituted
appointment committee with 6 members. The respondent alleges that he
applied for the post of Steriliser and was appointed and as such he
worked for long period as Steriliser.
The
appellants contested the rule filing affidavit-in-opposition stating
that the authority illegally appointed person including the respondent
and after detection of the irregularities and bungling in the appointments
the appointment orders were cancelled.
The
rule was made absolute. Leave was granted on additional grounds submitted
by the learned Additional Attorney General for the appellant.
The
learned Additional Attorney General appearing for the appellant has
submitted that the impugned order having been passed after investigation
and the Government having found the appointment as illegal, cancelled
it. The High Court Division was wrong in holding that the impugned order
is illegal as same has been passed without hearing the writ petitioner.
He further submitted that the writ petitioner's appointment having been
made in violation of the procedure and system of recruitment. As such
the Government cancelled the recruitment and for such cancellation no
notice of show cause is required. Hence, the judgement of the High Court
Division is not proper.
The
learned Counsel appearing for the respondent has submitted that the
respondent has been appointed in accordance with law and after his appointment
he has joined in his post and his joining report was duly accepted after
necessary formalities. He is continuing in his post and working and
signing his attendance register and his service cannot under any circumstances
be taken away without due process of law. As such the impugned order
is devoid of natural justice. The learned Counsel further submitted
that while issuing the impugned order no proceedings as contemplated
under Government Servant (Discipline and Appeal) Rules 1985 has been
initiated and no show cause notice as required under law was ever issued.
The respondent is condemned unheard of the impugned order issued by
appellant Nos 2-3 cancelling all appointments, dismissing the respondent
and other 3rd and 4th grade employees from their respective jobs is
illegal, bad, void, malafide and passed without any lawful authority
and is of no legal effect. The alleged report being confidential, suffers
from due process of law, the actions taken on the basis of the malafide
report, is also illegal, bad, malafide and is of no legal consequence
and is liable to be cancelled.
Deliberation
It was in this context argued for the respondent that the employer in
the present case had given ample opportunity to the employee by giving
him warnings, asking him to improve and even extended his probation
twice and this was not a case of unfairness and this Court should not
interfere. It is true that where the employee had been given suitable
warnings, requested to improve, or where he was given a long rope by
way of extension of probation, this Court has said that the termination
orders cannot be held to be punitive.
The
learned Additional Attorney General contended that the temporary appointments
of the writ petitioner could be terminated at will at any time without
assigning reasons. He further submits that the appointment of the respondent
being purely temporary and for the project the appellants is not required
to issue a notice to show cause upon the respondent. The learned Additional
Attorney General further submitted that the Court is not to see as to
whether the process as to termination has been complied with in the
instant case in view of the fact that the respondent's appointment was
purely temporary and for a limited period of the project and there being
no final sanction beyond project period and that the termination was
in consequence through enquiry the same did not suffer from any illegality.
In
the case of Md. Abdur Rasheed Vs. Government of Bangladesh reported
in 30 DLR 231 it has been observed that:
"But
when the order of termination of service, even of a temporary employee,
casts an aspersion or puts any blame or contains any statement that
may adversely affect the employee's career, the employer is obliged
to give an opportunity to the employee to place his case. In this regard
provision for giving reasonable opportunity is beneficial both to employee
as well as to employer and conducive to the cause of justice. The employee
gets an opportunity to explain his position and the employer also gets
a chance to consider the employees' point of view that might have escaped
his notice or was withheld from him."
In
the case of Kumari Shrilekha Vidyarthi V State of UP and others reported
in AIR 1991 Supreme Court 537 wherein the legality of termination of
appointments of all Government Counsel in all the districts of the State
of U.P. by a circular G.O. No. D-284-Seven-Law-Ministry dated 6.2.1990
terminating all the existing appointments with effect from 28.2.1990
irrespective of the fact whether the terms of the incumbent had expired
or subsisting came up for consideration. The validity of this State
action was challenged in these matters after the challenge was rejected
by the Allahabad High Court which it was observed:
"This,
however, does not necessarily mean that a person who is not a government
servant holding a post under the Government does not hold any public
office and the engagement is purely private with no public element attaching
to it. The expression 'at any time' merely means that the termination
may be made even during the subsistence of the term of appointment and
'without assigning any cause' means without communicating any cause
to the appointee whose appointment is terminated. However, 'without
assigning any cause' is not to be equated with 'without existence of
any cause'. It merely means that the reason for which the termination
is made need to be assigned or communicated to the appointee. It was
held in Liberty Oil Mills v. Union of India (1984)3 SCC465; (AIR1984
SC 1271) that the expression 'without assigning any reason' implies
that the decision has to be communicated, but reasons for the decision
have not to be stated; but the reasons must exist, otherwise, the decision
would be arbitrary."
The learned Counsel for the respondent has submitted that the order
of appointment created a vested right and that termination without following
the principle of natural justice makes the order void and has referred
to a decision in the case of Shridhar V Nagar Palika, Jaunpur reported
in AIR 1990 Supreme Court 307 which arose out of the fact that the Jaunpur
Municipal Board issued an advertisement inviting applications for appointment
to the post of Tax Inspector stating eligibility of the existing employees
along with outsiders. One Hari Mohan, a senior most Tax Collector, was
called for interview but he refused to appear at the interview on the
plea that the post should be filled in by promotion without considering
outsiders. The board ignored the plea and appointed the appellant ignoring
the government order dated 10.4.1950 entitling to be promoted to the
post wherein it has been held in the light of the aforesaid case that
the High Court committed serious error in upholding the order of the
government dated 18.2.1980 in setting aside the appellant's appointment
without giving any notice or opportunity to him.
It
is an elementary principle of natural justice that no person should
be condemned without hearing. The order of appointment conferred a vested
right in the appellant to hold the post of Tax Inspector, that right
could not be taken away without affording opportunity of hearing to
him. Any order passed in violation of principles of natural justice
is rendered void. There is no dispute that the Commissioners order had
been passed without affording any opportunity of hearing to the appellant,
therefore the order was illegal and void. The High Court Division committed
serious error in upholding the Commissioner's Order setting aside the
appellant's appointment. In this view, orders of the High Court and
the Commissioner are not sustainable in law.
Our
courts as well consistently followed the aforesaid principle of law
since the case of Zakir Ahmed Vs. The University of Dacca 16 DLR361
wherein the petitioner, a student of Dhaka University was found guilty
of serious breach of discipline by the authority on the occasion of
the convocation in March 1964 and was expelled from the university for
a period of 2 years. He challenged the expulsion order on the grounds
that the University had no power to pass it and further that he was
not given any opportunity to show cause before the decision to expel
him was taken. It was held therein that there is no reason for holding
that in case of discipline, the principle of natural justice can have
no application and further held that
"Even
... however, we have already indicated our conclusion that having regard
to the nature of act that Dhaka University was called upon to perform
under section 8 of the University Ordinances, it has a quasi judicial
act and any inquiry that is conducted therein before action is taken
must be conducted with due regard to the rights accorded by the principles
of natural justice."
The
argument of the learned Additional Attorney General is not tenable in
view of the fact that the respondent is not employed in any project
like building of a house or a bridge whose purpose has been fulfilled
or the project came to an end with the completion of the work but has
been engaged in the modernisation of the hospital and the nature of
job of the respondent for rendering medical assistance in the matter
of providing sterilise attached to O.T. Division and the project being
a continuing one the employees services are liable to be regularised
under the terms of the advertisement for the post.
Although
the project period has been termed to be temporary but the Government
Servant Discipline Rules have been made to apply as to their service
and they would not be terminated as such without following the principle
of natural justice. In the instant case any order setting aside the
impugned order would lead to the reinstatement and back wages of the
terminated employees.
Decision
In that view of the matter, the appeal is dismissed without any order
as to costs.
Mr
A J Mohammad Ali, Additional Attorney General, instructed by Mr Md Sajjadul
Huq, Advocate-on-Record for the Appellants.
Mr Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr A S M Khalequzzaman,
Advocate-on-Record, for Respondent.
