ALIMUZZAMAN CHOWDHURY VS STATE 32 BLD HCD 228

 

Analysis of the Fact:

In this case when Civil Petition for Leave to Appeal No. 120 of 2011 was pending before the Appellate Division along with the application for vacating the order of stay of transfer filed by the petitioner an order of suspension was issued against the petitioner. When the said matter was sub judice before the Appellate Division Respondent no.1 had suspended the petitioner temporarily on 28.02.2001 under rule11 of the Government Servant (Discipline and Appeal) Rules,1985.

Issue:

Whether the impugned letter dated 28.02.2011 purported to suspend the petitioner from service temporarily have been declared under lawful authority or not?

Argument from the Petitioner:

It was argued that the order of transfer of the petitioner had been stayed by this Honorable court in connection with writ petition No.174 of 2011 which was subsequently stayed by the learned Judge in Chamber of the Appellate Division on 23.01.2011.On 23. 02.2011 The Appellate Division ordered to hear the application of the petitioner along with CPLA No.120 of 2011 on

27.02.2011. During the pendency of the hearing of the matter the petitioner was suspended on

28.02.2011 in a most unprecedented manner demonstrating a glaring instance of abuse of power by the respondents in order to satisfy the interest of some vested quarter. So, the impugned order was tainted with malice in law as well smacks Malafide intention on the part of the respondent government and the respondent no.02.

Argument from the Respondent:

It was argued that this Rule was not maintainable. The petitioner being a government servant had challenged the suspension order touching the terms and conditions of service. Hence, his forum lay before the Administrative Tribunal constituted under Article 117 of the Constitution. In this regard the ratio of the case Mujibur Rahman vs Government of Bangladesh 44 DLR AD 111 was referred that the Administrative tribunal has the jurisdiction to struck down the order for violation of the principle of natural justice as well as for infringement of fundamental rights as guaranteed by the Constitution or of any other law in respect of matter relating to or arising out of sub clause (a) and such a person in the service of the Republic who tends to invoke fundamental rights for challenging the vires of law would be liable to seek remedy under Article 117(2) of the Constitution. It was also argued that Transferability was a condition of the service. In spite of the fact that the order of transfer was in force the petitioner did not join the respective post which tan amounted to misconduct and as such the respondent no.01 in exercise of power as provided under rule 11 of the Government Servant ( Discipline and Appeal) Rules,1985 had rightly suspended the petitioner on 28.02.2011. 

Decision and Reasoning behind the decision:

The suspension order purported to suspend the petitioner temporarily from service issued by the Respondent no.01 along with the Departmental proceedings had been made without any lawful authority because pendency of the application for vacating the order of stay of transfer before the Appellate Division was within the knowledge of the Respondent no.1 and 2. In spite of that the petitioner had been suspended on 28.02.2011 on the allegation inter alia that the petitioner did not join in the service which was a glaring instance of malice in law on the part of the respondents concern and also an instance of abuse of power, the power which was being exercised by the respondents entrusted to exercise for protecting and upholding the fundamental rights of every citizen of the country including the petitioner as guaranteed particularly under Article 31 of the Constitution that is to be treated in accordance with law and only in accordance with law. Since the action of the respondents was found to have been taken Malafide tainted with malice in law as such alternative remedy provided under article 117 of the Constitution would not be a bar in invoking forum under article 102 of the Constitution.

Principle:

 If an action is found to have been taken Malafide tainted with malice in law then the alternative remedy provided under article 117 of the Constitution will not be a bar in invoking forum under Article 102 of the Constitution.

Importance of this case:

Through this case the jurisdictions of Administrative Tribunal under Article 117 and High Court Division under Article 102 clearly came out. Through  this case it can be under stood that  though the matters relating to the  terms and conditions of persons in the service of the republic are to be adjudicated as per the provision of the article 117 under the jurisdiction of the  Administrative Tribunal but where the action concerned is found to be taken Malafide tainted with malice in law forum under Article 102 of the Constitution can be obviously invoked.