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Star law report

Even a temporary worker must be heard before termination
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.R 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) thatthe 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 ourconclusion 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 Appel I ants.
Mr Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr AS M Khalequzzaman, Advocate-on-Record, for Respondent.