High Court Division · Special Original Jurisdiction
Md. Amir Hossain v Government of Bangladesh and others
Writ Petition 6549/2011 · Decided 2 July 2026
The petitioner, a security guard at Bangladesh Open University, faced allegations of unauthorised absence and misconduct, for which the University imposed the minor penalty of censure in 2008. It later issued a fresh show cause notice on the same allegations, sent to an old address, suspended him by a Board decision taken before his reply was considered, and, dissatisfied with the first inquiry, appointed a second inquiry officer. He was dismissed on 22.12.2010 without receiving the inquiry report. The High Court Division held that, having imposed censure, the disciplinary authority was functus officio and could not reopen the same charges. Section 38(2) of the Bangladesh Open University Act, 1992 requires a two-week show cause notice, an inquiry by a superior officer within three months and an opportunity of self-defence, and gives no power to appoint a second inquiry officer. The proceedings were mala fide, breached natural justice and were void. The Rule was made absolute and reinstatement, if age permits, with financial benefits from suspension was ordered within 60 days.
- Q1
Whether a university could start fresh disciplinary proceedings and dismiss an employee on the same allegations for which it had already imposed the penalty of censure.
- Q2
Whether the dismissal was vitiated by suspension before considering the show cause reply, appointment of a second inquiry officer, and non-compliance with the time limits in section 38(2) of the Bangladesh Open University Act, 1992.
- Once a disciplinary authority has disposed of allegations by imposing a penalty, here censure, it becomes functus officio and cannot reopen the same charges in fresh proceedings unless the governing law expressly allows it.
- Section 38(2) of the Bangladesh Open University Act, 1992 is mandatory: it requires a two-week show cause notice, an inquiry by a superior officer completed within three months, and an opportunity of self-defence before removal.
- The Act confers no power to appoint a second inquiry officer to conduct a fresh inquiry on the same allegations because the first outcome was unsatisfactory, and doing so is in excess of jurisdiction.
- Suspending an employee on a decision taken before considering his reply to the show cause notice is mala fide, a colourable exercise of power and a breach of audi alteram partem.
- Mala fide action goes to the root of jurisdiction, so the statutory appeal to the Chancellor need not be exhausted, and the employee was entitled to reinstatement, if age permits, with financial benefits from the date of suspension.
a disciplinary authority, after finally disposing of a disciplinary proceeding and imposing a punishment, becomes functus officio in respect of the selfsame charges and cannot revive or re-agitate the matter
In the court’s own words.
Writ Petition 6549/2011, as published by the Supreme Court of Bangladesh. 33 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION
3(SPECIAL ORIGINAL JURISDICTION)
Division Bench of:
4Mr Justice Bhishmadev Chakrabortty
-And-
5Mr Justice Abdur Rahman
6WRIT PETITION NO. 6549 of 2011
7IN THE MATTER OF:
8An application under Article 102 of the
9Constitution of the People's Republic of
10Bangladesh.
-And-
11IN THE MATTER OF:
12Md. Amir Hossain
…. Petitioner
-versus-
13The Government of Bangladesh, represented by the
14Secretary, Ministry of Education and others
…. Respondents
15Mr Md. Salauddin Dolen, Senior Counsel with
16Mr Md. Tofayel Ahmed, Counsel
….for the petitioner
17Mr Akter Rasul, with Ms Dolon Chanpa, Counsel
…for the respondents 2 and 3.
18Date of Hearing: 04.05.2026, 07.06.2026 and
08.06.2026 A.D.
19Date of Judgment: 02.07.2026 A.D.
Thursday, 18 Ashhar, 1433 B.S.
JUDGMENT:
20Abdur Rahman, J:
21This Rule Nisi, at the instance of the petitioner, was issued on an application under Article 102 of the Constitution of the People's Republic of Bangladesh in the following terms:
22"Let a Rule Nisi be issued calling upon the
23respondents to show cause as to why the order of
24temporary suspension dated 27.10.2009, vide memo
25No. বাউিব/ শা-৪ (৪০২) ০৫/৪২৮৪ (Annexure-J), and
26order of dismissal dated 22.12.2010 vide memo No.
27বাউিব/ শা-৪ (৪০২) ০৫/৫৩৫৬ (Annexure-O) should
28not be declared to have been passed without lawful
29authority and is of no legal effect and/or pass such
30other or further order or orders as to this Court may
31seem fit and proper."
32The core of the facts (i.e., nucleus factorum) leading to the issuance of this Rule Nisi in brief are that the Bangladesh Open University, which is a statutory body, advertised inviting applications for the post of security
guard, in "The Daily Star" on 23.07.2005, and the present petitioner accordingly applied for the same for one of the security guard posts. The authority conducted his interview for the post on 14.11.2005, and he duly qualified. As such, he was issued an appointment letter on 30.11.2005 and joined the Bangladesh Open University on 04.01.2006, which the University duly accepted on that date.
33Thereafter, all of a sudden, Respondent 3 issued a notice to the petitioner on 17.05.2007, making vague, baseless, and false allegations without any reference to any complaint from anyone, and asked the petitioner to show cause within two weeks. The petitioner filed a reply to the show-cause notice.
34Thereafter, by office order dated 13.11.2007, respondent 3 issued a notice temporarily suspending the petitioner pursuant to regulation 5 of the 39th meeting of the Board of Governors.
35Thereafter, it was found that the Director of the Administration Department (General Administration) was
appointed as an inquiry officer regarding the allegations against the petitioner, and the petitioner filed a written statement before the inquiry officer on 08.01.2008.
36Hereinafter, as the petitioner was threatened, he prayed to respondent 3 through applications dated 23.03.2008 and 06.04.2008, and also prayed to the Regional Director, Chittagong, vide application dated 24.03.2008, to transfer him from the Bandarban coordinating office.
37Afterwards, upon perusal of the inquiry report, the Bangladesh Open University authority withdrew the petitioner's temporary suspension order, vide office order dated 25.06.2008, as per the decision of the Board of Governors.
38Thereafter, the petitioner was transferred from the Bandarban coordinating office to the Pirojpur coordinating office vide office order dated 05.08.2008. The petitioner was released on 14.08.2008 by the coordinating officer, Bandarban, and by the Regional Director, vide two
separate release letters dated 14.08.2008, and the petitioner joined the Pirojpur office.
39Thereafter, the petitioner was issued a show cause notice on 13.08.2008 by respondent 3, asking him to show cause as to why action would not be taken against him under Order 38(2) of the Bangladesh Open University Act, 1992, and the petitioner filed a written reply to it on 19.09.2008.
40Thereafter, unexpectedly, the petitioner was temporarily suspended on 27.10.2009, and Mr Md. Hemayet Miah, Deputy Administrator, was appointed as an inquiry officer, and a charge of complaint was framed on 27.10.2009. The inquiry officer issued a notice on 04.11.2009, asking the petitioner to appear on 13.11.2009 at the coordinating office in Pirojpur for the inquiry.
41Thereafter, the petitioner replied to the charges brought against him vide letter dated 13.11.2009. The petitioner also appeared before the inquiry officer on the date fixed for the inquiry and submitted a written reply, but the inquiry officer neither took nor recorded the
petitioner's statements, nor did he take the deposition of any witness.
42Thereafter, the respondents did not supply any copy of the inquiry report to the petitioner, but respondent 3 demanded a final reply from the petitioner, stating that the charges were prima facie proved against the petitioner vide his letters dated 27.04.2010 and 20.05.2010.
43Thereafter, Mr Md. Abul Kashem Sikder, Joint Director, Information and Public Relations Department of the said University, issued a notice to the petitioner on 08.06.2010 to appear before the coordinating officer, Pirojpur, on 15.06.2010 for an inquiry and to give his statement, both orally and in writing, in response to the allegations.
44Thereafter, the petitioner appeared before the inquiry officer on the fixed date and time. He submitted his written reply vide 15.06.2010, but his statements were not recorded, no one's deposition was taken, and no copy of the inquiry report was supplied to the petitioner.
45Thereafter, without supplying a copy of the inquiry officer's report, respondent 3 issued an order dismissing the petitioner from his service vide office order dated 22.12.2010, with memo No. বাউিব/ শা-৪(৪০২)০৫/৫৩৫৬, and the said dismissal order is the impugned order.
46Thereafter, the petitioner filed an appeal before the Honourable Chancellor against the impugned dismissal order on 19.01.2011, as per section 44 of the Bangladesh Open University Act, through respondent 3, but received no reply.
47Thereafter, the petitioner, being aggrieved by and dissatisfied with the dismissal order as stated above, invokes this forum. Later, the petitioner filed supplementary affidavits with Annexures, which shall be considered part of the original petition.
48Respondents 2 and 3 oppose the Rule by filing an affidavit-in-opposition, contending, inter alia, that the petitioner was appointed as a security guard at the Bangladesh Open University on 04.01.2006, and thereafter, the Co-Ordinating Officer, namely Md. Motiar Rahman
filed two complaints against the petitioner. Pursuant to that, the first show-cause notice was issued on 17.05.2007. The petitioner replied to the same. Since the petitioner's reply was not satisfactory, the petitioner was temporarily suspended on 27.10.2009. The first Inquiry Officer, namely Md. Hemayet Mia was appointed by the Board of Governors, and after proper inquiry, a report was submitted on 24.01.2010, in which the petitioner was found guilty. The report was duly accepted at the meeting of the Board of Governors (BOG). Thereafter, a second and final show-cause notice was issued by the authority on 27.04.2010. A second Inquiry Committee was formed, and after due inquiry, a report was submitted on 15.06.2010, in which the petitioner was again found guilty. The petitioner was then dismissed by the authority.
49Mr. Md. Salauddin Dolan, the learned Senior Counsel, assisted by Mr Mohammad Tofayel Ahmed and Ms Amina Akter Lovely, learned Counsels, appearing for the petitioner, submitted that the petitioner was first temporally suspended on 13.11.2007 vide ANNEXURE-"D"
50and after inquiry and the cause shown by petitioner his temporary suspension order was withdrawn on 25.06.2008 vide ANNEXURE-"G", but again he was asked to show cause on the plea of said allegation on 13.08.2008 vide ANNEXURE- "I" and he was again temporarily suspended on 27.10.2009 vide ANNEXURE-"J" and ultimately he was dismissed by impugned order on the same allegation and once allegation was not proved and temporary suspension was withdrawn subsequent proceeding and punishment for the same offence is against the provisions of Article 35 (2) of the Constitution of the People's Republic as of Bangladesh and such subsequent proceeding and punishment by impugned order has been done without lawful authority and is of no legal effect.
51Learned Counsel has further submitted that the inquiry report was not supply to the petitioner and chargesheet against petitioner was drawn on 27.10.2009 and petitioner duly appeared before inquiry officers though they did not record his statement and evidences given by petitioner and inquiry officers did not file inquiry report
within statutory three months as per provision of section 38(2) of Bangladesh Open University Act, 1992, as such impugned proceeding and punishment is illegal without jurisdiction and of no legal effect.
52Learned Counsel has further submitted that no copy of the inquiry report was supplied to the petitioner, as is evident from ANNEXURE-"M"; that the petitioner was not supplied with the allegations and contents of the inquiry report and proceedings; and that the impugned punishment is against natural justice.
53Learned Counsel has further submitted that the charge sheet was framed on 27.10.2009 vide ANNEXURE- "J(2)" and the inquiry officer issued the last notice on 08.06.2010 vide ANNEXURE-"N" to appear before him on 15.06.2010, i.e., after about eight months, which is a clear violation of section 38(2) of the Bangladesh Open University Act.
54Learned Counsel has further submitted that there was an inquiry against the petitioner as per law, and the impugned proceeding and punishment are in violation of
the provisions of Articles 27, 31 and 35 of the Constitution of the People's Republic of Bangladesh, and as such, the impugned order of punishment is not legally tenable.
55Learned Counsel has further submitted that the impugned order of dismissal of the petitioner from his service is arbitrary, discriminatory, without jurisdiction, a violation of service rules and has been done without lawful authority and is of no legal effect.
56Conversely, “Mr. Akter Rasul’’, learned Advocate, appearing together with Mr Mohammad Abdul Hamid on behalf of Respondent 3, has strenuously contended that the writ petition is wholly devoid of substance, inasmuch as the alleged cause of action sought to be projected by the petitioner is misleading, misconceived, and founded upon an erroneous appreciation of the factual as well as legal position. It has been submitted that the petitioner has deliberately attempted to create an artificial cause of action by suppressing material facts and by placing the relevant events out of their proper factual and
chronological context. As such, the Rule, having been obtained without any legal basis, is liable to be discharged.
57The learned Counsel has further submitted that the petitioner was initially appointed as a Security Guard of the Bangladesh Open University on 04.01.2006. Thereafter, on 31.03.2008, the Co-ordinating Officer of the University, namely Md. Motiar Rahman lodged two separate complaints against the petitioner alleging serious misconduct and dereliction of duty. Acting upon the said complaints, the competent authority initiated departmental proceedings in accordance with the applicable service rules and, in the first instance, issued a show-cause notice dated 13.08.2008 calling upon the petitioner to explain his conduct. The petitioner eventually submitted his written explanation on 19.09.2009. However, upon careful consideration of the explanation so furnished, the authority found the same to be wholly unsatisfactory and insufficient to dispel the allegations levelled against him. Consequently, in the interest of ensuring a fair and unhindered departmental inquiry, the
petitioner was placed under temporary suspension by an order dated 27.10.2009.
58It has further been submitted that thereafter the Board of Governors (BOG), being the competent disciplinary authority, on 27.10.2009, appointed Mr Md. Hemayet Mia, as the first Inquiry Officer to conduct a comprehensive inquiry into the allegations brought against the petitioner. The Inquiry Officer, after affording the petitioner due opportunity of participation and after examining the relevant records, documentary evidence and other materials available on record, completed the inquiry and submitted his report on 24.01.2010. The Inquiry Officer unequivocally found the charges brought against the petitioner to have been duly established. The said inquiry report was subsequently placed before the Board of Governors, which, upon due deliberation, accepted the findings recorded therein.
59The learned Counsel has next submitted that, in consonance with the principles of natural justice and to afford the petitioner a further opportunity of defence
before imposition of any major penalty, the competent authority issued a second and final show-cause notice on 27.04.2010. Thereafter, as an additional measure of fairness and transparency, a second Inquiry Committee was constituted to independently examine the matter afresh. Upon conducting a detailed inquiry and evaluating the evidence on record, the second Inquiry Committee submitted its report on 15.06.2010, wherein it likewise arrived at the categorical conclusion that the charges levelled against the petitioner stood proved beyond any reasonable doubt. Thus, both independent inquiries consistently reached the same conclusion regarding the petitioner's misconduct.
60It has, therefore, been argued that the disciplinary authority, having meticulously complied with the prescribed statutory procedure, the applicable service rules, and the well-established principles of natural justice at every stage of the disciplinary proceedings, lawfully passed the order dismissing the petitioner from service. The impugned order, being the outcome of a valid
departmental proceeding conducted in accordance with law and founded upon concurrent findings of fact recorded by two separate inquiry bodies, does not suffer from any procedural irregularity, jurisdictional infirmity, perversity, or violation of any fundamental principle warranting interference by this Court in the exercise of its extraordinary writ jurisdiction. It is a settled proposition of law that this Court, while exercising jurisdiction under Article 102 of the Constitution, does not ordinarily sit as a Court of appeal over the findings recorded in departmental proceedings, nor does it reappraise or reassess the evidence unless the decision-making process is shown to be tainted by mala fides, arbitrariness, patent illegality, or violation of the principles of natural justice. Since none of these exceptional circumstances is present in the instant case, the writ petition is wholly misconceived and devoid of merit. Consequently, the Rule is liable to be discharged.
61We have heard the learned Counsel for both parties with careful attention. We also perused the writ petition,
the affidavit-in-opposition, and the documents appended thereto. It is evident from the Annexure-I that the authority issued 1st show cause notice on 13.08.2008, giving the petitioner an opportunity to reply within 2(two) Weeks as per the provisions of Section 38(2) of the evsjv‡`k Db¥y³ wek^we`¨vjq AvBb, 1992, mentioning the address of the petitioner at Bandarban, though he was in service of Pirojpur Co-ordinating Office, and the same reached to the petitioner after a long time, thus he replied upon the said show cause notice on 19.09.2008, thus the Annexure-J revealed that the suspension has been imposed upon the petitioner by the decision of the Board of Governors' resolution dated 03.09.2009, which created doubt as to how become the Board of Governors being dissatisfied without having reply of the show cause notice. This is nothing but the mala fide and colourable exercise of power by the Respondents, in violation of the principle of natural justice.
62However, the contents of Annexures J, J1, and J2 reveal that Respondent 3 issued a suspension order,
appointed an Inquiry Officer, and served a Charge Sheet on 27.10.2009. It is also evident from the 1st show cause notice (Annexure-I) that, “ যেহত আপিন গত ২১-০১-২০০৮ হেত ২৫- ০১-২০০৮, ০৮-০৩-২০০৮ হেত ১১-০৩-২০০৮ এবং ২১-০৩-২ ২০০৮ হেত ২৬- ০৩-২০০৮ তািরখ পয অননুেমািদতভােব কম'েল অনুপি'ত িছেলন যা অিফস শৃ-লা পিরপি.। এবং দািয়1 ও কতব3 পালেন অবেহলা বেট। যেহত আপিন অিফেস অননুেমািদতভােব অনুপি'ত থাকার পর ২৭-০৩-২০০৮ তািরেখ অিফেস উপি'ত হেয় আপনার িনয়7ণকারী কমকতার সােথ উে:;জত হেয় অকথ3 ভাষায় গািল গালাজ কেরন ও হত3ার >মিক দান কের কমকতার িদেক তেড় আেসন এবং িন@মান সহকারীর িনকট রিAত কমচারীেদর হা;জরা খাতা বািহের িনেয় যাওয়ার চCা কেরন যা স7াস ও অসদাচরণ বেট; যেহত আপিন অিফেস উপি'ত হওয়ার পর হা;জরা খাতায় DাAর কের িনয়7ণকারী কমকতােক কান কার অবিহত না কেরই অিফেসর বািহের চেল যান যা FনিতকGলন এবং চরম অবাধ3তার সািমলI”
63Similarly, the charge sheet (Annexure-J2) exposes that, “গত ১৩-০৮-২০০৮ তািরেখর বাউিব/ শা-৪ (৪০২)/০৫/৪০৭৫ সংখ3ক Iরেক আপনার িবJেK Fকিফয়ৎ তলব পM জারী করা হেল স িAেত আপনার ১৯-০৯-২০০৮ তািরেখ দ: জবাব ০৩-০৯-২০০৯ তািরেখ অনুOPত বাড অব গভনস-এর ১১১তম সভার িসKাে (িসKা নং-৩৫) সে াষজনক িবেবিচত হয়িন িবধায় বাংলােদশ উRুS িবTিবদ3ালয় আইন ১৯৯২ এবং সংেশাধনী ২০০৯ এর ৩৮(২) ধারার িবধান অনুযায়ী আপনােক ২৭-১০-২০০৯ তািরেখর বাউিব/ শা-৪ (৪০২)/০৫/৪২৮৪ সংখ3ক Iারেক সামিয়কভােব বরখাU করা হয় এবং সমত আপনার িবJেK িনে@াS অিভেযাগনামা গঠন করা হেলাঃ যেহত আপিন চXYাম আZিলক ক[াধীন বা\রবান কা-অিডেনOটং অিফেস
কমরত থাকাকালীন সমেয় গত ২১-১১-২০০৮ হেত ২৫-০১-২০০৮, ০৮-০৩- ২০০৮ হেত ১১-০৩-২০০৮ এবং ২১-০৩-২০০৮ হেত ২৬-০৩-২০০৮ তািরখ পয অননুেমািদতভােব কম'েল অনুপি'ত িছেলন, যা অিফস শৃ-লা পিরপি. এবং দািয়1 ও কতব3 পালেন অবেহলা বেট;
64যেহত আপিন অিফেস অননুেমািদতভােব অনুপি'ত থাকার পর ২৭- ০৩-২০০৮ তািরেখ অিফেস উপি'ত হেয় আপনার তৎকালীন িনয়7ণকারী কমকতার সােথ উে:;জত হেয় অকথ3 ভাষায় গািল গালাজ কেরন ও হত3ার >মিক দান কের কমকতার িদেক তেড় আেসন এবং িন@মান সহকারীর িনকট রিAত কমচারীেদর হা;জরা খাতা বািহের িনেয় যাওয়ার চCা কেরন যা, স7াস ও অসদাচরণ বেট।
65যেহত আপিন অিফেস উপি'ত হওয়ার পর হা;জরা খাতায় DাAর কের িনয়7ণকারী কমকতােক কান কার অবিহত না কেরই অিফেসর বািহের চেল যান যা, Fনিতক ]লন ও চরম অবাধ3তার সািমলI”
66More so, it is found that the Respondents earlier have imposed minor punishment (censure) upon the said offence, which manifested from the charge sheet mentioning as, “ যেহত ২৫-০৬-২০০৮ তািরেখর বাউিব/ শা-৪ (৪০২)/০৫/৩২৪৪ ২২Gক Iারেক আপনার িবJেK আনীত স7াস, অসদাচরণ, দা^িরক শৃ-লা ভ_ ও কতব3 অবেহলার অিভেযাগ মািণত হওয়ায় ২১-০৪- ২০০৮ তািরেখ অনুOPত বাড অব গভনস-এর ১০১তম সভায় গৃহীত িসKা মাতােবক সামিয়ক বরখাU আেদশ ত3াহার কের িতর`ার করা হয় এবং ভিবষ3েত এ ধরেণর আচরণ থেক িবরত থাকার অন3 কেঠারভােব সতক করা হেলও আপনার Dভােবর কান পিরবতন না হওয়ায় িতয়মান হয় য, এ ধরেণর আচরণ আপনার মaাগত Dভােব পিরণত হেয়েছI”
However, upon sifting the contents of Annexure-N, it is presumed that, without being satisfied with the report of the 1st Inquiry Officer, the petitioner's authority appointed the 2nd Inquiry Officer on 27.04.2010. For reasons of necessity, we need to examine the provisions of Section 38(2) of evsjv‡`k Db¥y³ wek^we`¨vjq AvBb, 1992 (ms‡kvwaZ 2009), which reads as under:
Ó38| (1) wek¦we`¨vj‡qi
†eZbfz³ mKj wkÿK, Kg©KZ©v I Kg©Pvix
wjwLZ Pzw³i wfwˇZ wbhy³ nB‡eb, Pzw³wU
wek¦we`¨vj‡qi †iwR÷ªv‡ii wbKU Mw”QZ
_vwK‡e Ges cÖ‡Z¨K mswkøó wkÿK,
Kg©KZ©v ev Kg©Pvix‡K Dnvi GKwU Abywjwc
†`Iqv nB‡e|
(2) fvBm-P¨v‡Ýji, †cÖv-fvBm-
P¨v‡Ýji I †Kvlva¨ÿ PvKzixi kZ©vejx
Abyhvqx PvKzix‡Z envj _vwK‡eb ev
AcmvwiZ nB‡eb| wek¦we`¨vj‡qi
†eZbfz³ wkÿK, Kg©Pvix ev Dc‡iv³
wZbRb Kg©KZ©v ev‡` Ab¨ Kg©KZ©vMY‡K
Zvnvi KZ©‡e¨ Ae‡njv, Am`vPiY, ˆbwZK
67öjb, A_© AvZ¥mvr, mš¿vm, RvwjqvwZ ev A`ÿZvi Kvi‡b PvKzix nB‡Z AcmviY Kiv hvB‡e;
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From a careful reading of the section, it is ostensible that a mandatory duty has been cast upon the authorities to take due course and issue a show-cause notice with two weeks' notice before taking any disciplinary measure against the person concerned. If the reply to the show cause notice is not satisfactory, an enquiry committee has to be formed with a person holding a superior rank to that of the person, and the said enquiry has to be concluded within three months. Again, the authority has to allow self-defence. After completing all legal formalities, the authority can endorse the safe navigation to remove the person concerned from his service. But, nowhere in the aforesaid provisions is there any endorsement to appoint a 2nd Inquiry Officer.
69A careful examination of the materials brought on record, particularly Annexures-1 to 3 appended to the Affidavit-in-Opposition, reveals that one and only Mr Md. Motiar Rahman initially levelled certain allegations against
the petitioner by way of a complaint dated 09.04.2007. Thereafter, he submitted a report dated 25.03.2008 alleging the petitioner's absence from office and subsequently furnished another report on 31.03.2008 concerning the alleged acts of misconduct attributed to the petitioner. It further transpires from the records that the competent authority, having considered the said allegations and the materials placed before it, concluded the disciplinary proceedings by imposing upon the petitioner the minor penalty of "Censure."
70We observed that once the disciplinary authority had examined the allegations on their merits and awarded the aforesaid penalty, the matter stood finally concluded and attained its logical culmination. The respondents, having consciously exercised their disciplinary jurisdiction and exhausted the same by inflicting the penalty of censure, were thereafter precluded from reopening the very same allegations or initiating a fresh round of disciplinary proceedings founded upon the identical set of facts and accusations. To permit such a course would not
only offend the settled principles governing disciplinary jurisprudence but would also expose a delinquent employee to repeated harassment for the same cause of action.
71It is a well-recognized principle of service law that, unless expressly authorised by the governing statute or service rules, a disciplinary authority, after finally disposing of a disciplinary proceeding and imposing a punishment, becomes functus officio in respect of the selfsame charges and cannot revive or re-agitate the matter merely because it has become dissatisfied with the nature or extent of the punishment already imposed. Any subsequent proceeding initiated on the basis of the very allegations which have already been adjudicated upon and culminated in the imposition of a penalty is devoid of legal foundation and is liable to be struck down as being without lawful authority.
72Accordingly, the subsequent disciplinary proceedings initiated against the petitioner on the basis of the identical allegations, which had already been considered and exhausted by the imposition of the penalty of censure,
stand bereft of any legal footing and are, therefore, patently unsustainable in law, having been undertaken without jurisdiction and in derogation of the settled principles of fairness, finality, and certainty governing disciplinary proceedings.
73However, in respect of the provision of Section 38(2) of the evsjv‡k Db¥y³ wek^we¨vjq AvBb, 1992, we may refer to a similar footing decision of this jurisdiction where their Lordships, Mr. Justice Zubayer Rahman Chowdhury and Mr. Justice Sashanka Shekhar Sarkar, in Writ Petition No. 5506 of 2010 (Md. Rawshan Ali Vs Bangladesh Open University, et al.), vide judgment and order dated 12.03.2019, opined that,
74"In the instant case, the order of suspension was
75issued on 31.05.2010, but the show cause notice was
76issued on 20.06.2010, as evidenced by Annexure D.
77Therefore, admittedly, the order of the suspension
78was issued at an earlier point of time. This is where
79the respondents went wrong. In other words, the cart
80was put before the horse.”
Similarly, the case at hand shows that the suspension was issued before the show-cause notice was served upon the petitioner. Upon a meticulous perusal of Annexure-I, it transpires that the concerned authority issued the first show cause notice on 13.08.2008, calling upon the petitioner to submit his explanation within two (2) weeks in accordance with the provisions of Section 38(2) of the evsjv‡`k Db¥y³ wek^we¨vjq AvBb, 1992. It further appears that the said show-cause notice was dispatched to the petitioner's address in Bandarban, notwithstanding the undisputed fact that at the relevant time he was serving at the Pirojpur Co-ordinating Office. Consequently, owing to the erroneous address of the notice, it reached the petitioner after considerable delay, and he ultimately submitted his reply thereto on 19.09.2008.
81Be that as it may, Annexure-J discloses that, pursuant to the resolution of the Board of Governors dated 03.09.2009, the petitioner was placed under suspension. The sequence of events, as borne out by the records, gives rise to a serious and legitimate doubt as to how the Board
of Governors could have reached its purported satisfaction and proceeded to take an adverse decision against the petitioner before duly considering his explanation submitted in response to the show-cause notice. Such conduct clearly indicates that the decision-making process was predetermined and that the opportunity afforded to the petitioner to submit his explanation was nothing more than a mere formality, and this kind of act has no sanction to establish the foundation for imposing the highest penalty in any sort of service.
82In the circumstances, the action of the respondents unmistakably bears the imprint of mala fide intention and constitutes a colourable exercise of statutory power, undertaken in flagrant disregard of the cardinal principles of natural justice, particularly the rule of audi alteram partem, which mandates that no person shall be condemned without being afforded a fair and meaningful opportunity of being heard. Consequently, the impugned action stands vitiated, not only for procedural impropriety
but also for having been taken in a manner that defeats the very object of fair administrative decision-making.
83The aforementioned legal position clearly indicates that the authority was tactful in issuing a two-week showcause notice before suspending the petitioner and concomitantly violated the principle of natural justice. But we wish to be more certain of reaching any result. It is evident from a careful scrutiny of the contents of Annexure-N that the competent authority, being dissatisfied with the findings and recommendations of the first Inquiry Officer, appointed a second Inquiry Officer by order dated 27.04.2010 to investigate the same allegations against the petitioner. Such a course of action unmistakably suggests that the authority sought to reopen or recommence the disciplinary inquiry merely because the outcome of the first inquiry did not conform to its expectations.
84However, a plain reading of the relevant provisions of the governing University Act reveals that no statutory authority has been conferred upon the respondents to
appoint an Inquiry Officer and thereafter to appoint another Inquiry Officer to conduct a de novo inquiry into the very same allegations. In the absence of any express or implied provision empowering the disciplinary authority to adopt such a procedure, the appointment of the second Inquiry Officer is manifestly dehors the statutory framework and, therefore, without lawful authority.
85It is a settled principle of administrative law that a statutory authority must act strictly within the four corners of the powers conferred upon it by the governing statute of its own, and cannot assume jurisdiction or exercise powers which the legislature has not expressly or impliedly vested in it. Consequently, the appointment of the second Inquiry Officer, having been made without any sanction of their own law, cannot but be regarded as an action taken in excess of jurisdiction and in colourable exercise of statutory power, thereby rendering the subsequent disciplinary proceedings legally unsustainable. These types of manipulation by respondents indicated that they sowed the seeds of mala fides in their own domain.
86The authority vested with the power to show cause, take evidence, make inquiry, grant self-defence, and examine witnesses in any proceeding leading to the imposition of punishment or acquittal upon the employees concerned is consonant with a quasi-judicial act. So, the authority has to go through the mandates of law with due care and diligence, extending the proceedings to the periphery, showering equal justice under the principle of "Actus legis nemini facit injurium,” i.e., the act of the law does injury to none.
87The learned Counsel for the respondents vehemently sought the attention of this Court, stating that the petitioner had been absent from the workplace for an extended period. If so be that it's our contention whether the authority had created any situation to make presence of the petitioner from the part of the authority concerned, thus record displayed that the respondents did not provide the enquiry report of the alleged allegation within mandatory period, which stands that the authority did not act fairly and judicially, as well as the said disciplinary authority failed adhere to the principle of natural justice,
and accordingly, all the subsequent events will be treated as frustrating and unreasonable attribution toward the legal accountability.
88The principle of audi alteram partem is now universally established: whenever an individual's right, liberty, or protection of the law is deliberately affected by the exercise of a decision-maker's power, the person so affected must have an opportunity to be heard. Article 27 of the Constitution of the People's Republic of Bangladesh endorsed the inalienable fundamental right of the citizens, i.e., the entitlement to "equal protection of the law," and Article 31 significantly declared the right "to be treated in accordance with law," and these moulded our legal system as a basic part of "natural justice."
89However, we noticed that the petitioner availed the opportunity to appeal to the Chancellor of the Bangladesh Open University under section 44 of the evsjv‡`k Db¥y³ wek^we`¨vjq AvBb, 1992 (ms‡kvwaZ 2009), but did not receive any decision. Upon perusal, it can be observed that the
contents of the said section indicate a directory provision rather than a mere formality.
90Nevertheless, we find the whole proceedings against the petitioner stand upon a rootless tree, because of the patent violation of the mandatory provisions of section 38(2) of the evsjv‡`k Db¥y³ wek^we`¨vjq AvBb, 1992 (ms‡kvwaZ 2009), so far it relates to the show cause notice and enquiry report having a mandatory nature of stipulated time, not being complied with, and thus culminating the impugned proceedings into the scale of void ab initio. All the more, it is the established principle of law that a mala fide act is an act without jurisdiction, and no legislature grants power for the mala fide exercise of it; coherently, mala fide goes to the root of jurisdiction, and if the impugned action is mala fide, the alternative remedy provided by statute need not be availed of.
91In view of the above facts, circumstances, and applicable laws, we are of the view that the facts do not accord with the affidavit-in-opposition, and the submissions of the learned Counsel for the respondent 3
have no substance and are barren of merit in the case; thus, the challenged dismissal order issued vide Memo No. evDwe/cÖkv-4(402)/05/5356, ZvwiL: 22-12-2010 wLª. (Annexure- O) stands on no legal footing; consequently, no legal effect.
92Be that as it may, the Bangladesh Open University failed to receive proper contributions from a prospective employee due to the respondents' arbitrary and mala fide conduct.
93Our considered view is that the petitioner has the right to be reinstated in his service, if his retirement age permits, and to receive all financial benefits up to the age of retirement from the date of suspension, in accordance with the conditions of his service. The respondents have the duty to provide all the service benefits to the petitioner within 60 (Sixty) days from the date of receipt of the copy of this judgment, failing which, the respondents in position respectively shall have to bear the consequence of personal liabilities of indiscipline, negligence, mala fide, and the violation of the rule of justice.
In the light of the above, and having found merit in
94the writ petition and substance in the Rule Nisi, the Rule is
95hereby made absolute, subject to the observations and
96directions above.
In view of the facts and circumstances of the case,
97and having regard to the issues involved, this Court is of
98the opinion that no order as to costs is called for.
99Accordingly, there shall be no order as to costs.
Communicate this judgment to the Respondents 2 &
1003, so they can take the necessary steps as per the above
101decision expeditiously or within the stipulated time.
Before parting with the case, this Court duly
102acknowledges and appreciates the efforts of the learned
103counsels representing both parties.
( Abdur Rahman, J )
104Bhishmadev Chakrabortty, J:
I agree.
(Bhishmadev Chakrabortty, J)
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