P L D 1966 Dacca 565 (PLP)

SALAHUDDIN AHMED, J.‑In this Rule Nisi the petitioner has challenged an order dated the 28th of September 1964, issued under the signature of respondent No. 2 removing the petitioner from service. The petitioner was appointed a Lecturer in the Department of Microbiology and Hygiene in the East Pakistan Agricultural University (respondent No. 1) by certain resolutions of the Syndicate dated the 21st of December 1963. The petitioner has stated that he discharged his duties to the satisfaction of the University authorities. On the 29th of September 1964, however, the petitioner to his utter surprise received the impugned order removing him from service, purported to have been made under Article 3 (e) read with proviso to Article 5 of the Second Statutes of the University known as the East Pakistan Agricultural University Employees (Efficiency and Discipline) Statutes. The reason for petitioner's removal from service as stated in the impugned order was that the petitioner was found engaged in subversive activities detrimental to the interest of the University and to the security of the University and Pakistan at large. The petitioner has denied having ever engaged himself in any such activities as mentioned in the impugned order. The petitioner has, therefore, challenged the impugned order on several grounds. The petitioner has categorically asserted that no opportunity was ever given to him to show cause why he should not be removed from service. On behalf of the respondents. Muhammad Abdul Mannan Khan, Registrar of the East Pakistan Agricultural University has filed an affidavit in opposition wherein we do not ‑ find any denial of the petitioner's assertion that the petitioner has not been given any opportunity to show cause against the order of removal from service. In this affidavit it has been stated on behalf of the respondents that the petitioner was removed from service under Statute 3 (e) read with proviso to Statute 5 (1) of the East Pakistan Agricultural University (Amendment) Ordinance, 1962. Mr. Pal appearing on behalf of the petitioner has contended that inasmuch as, no notice to show cause against the proposed punishment having been ever issued to the petitioner, the impugned order removing the petitioner from service is illegal. It is desirable to quote the impugned order at this stage which is as follows:‑

"Iii the opinion of the University Authorities you are found engaged in subversive activities detrimental to the interest of the University and your retention in service is, therefore, considered prejudicial to the interest of the University. Chancellor is, therefore, satisfied that in the interest and security of the University and Pakistan at large, you should not be in service‑in this University. You are, therefore, removed from the service by virtue of statute 3 (e) read with proviso to Statute 5 of the Second Statutes of the University (Efficiency and Discipline) with immediate effect," (Sd.) (Illegible) Vice‑Chancellor, E. P. Agricultural University, Mymensintgh 28‑9-64 As is evident from the impugned letter quoted above, action was taken against the petitioner under Statute 3 (e) read with proviso to Statute 5 (c) of the Second Statute of the University. These Statutes are framed under sections 22 and 23 of the East Pakistan Agricultural University Ordinance (East Pakistan Ordinance No. XXVIII of 1961). Statute 3 (e) reads as follows :‑ "Where an employee of the University, in the opinion of the authority‑ (a)

(b)

(c)

(d)

(e) is engaged or is reasonably suspected of being engaged in subversive activities or activities detrimental to the interest of the, University, or to the State or is reasonably suspected of being associated with others engaged in such activities, and whose retention in service is therefore considered prejudicial to the interest of the University or national security;" Provisions of Statute 5 are as follows :‑

(1) When an employee of the University is to be proceeded against under clause (e) of Statute 3, the authority‑ (a) may by order in writing require the employee concerned to proceed on such leave as may be admissible to him and from such date as may be specified in the order, (b) shall, by order in writing inform him of the action proposed to be taken in regard to him and the grounds of that action, and (c) shall give him a reasonable opportunity of showing cause against that action before an enquiry committee to be constituted under paragraph (2) to inquire into the charges; Provided that no such opportunity shall be given, where the Chancellor is satisfied that in the interest of the security of Pakistan, or any part thereof, it is not expedient to give such opportunity. (2) (a) For the purposes of clause (c) of paragraph (1), an inquiry Committee consisting of three persons shall be constituted by the Chancellor. (b) The Inquiry Committee shall inquire into the charge and submit its findings to the Chancellor. (c) The Chancellor may pass such orders as he thinks fit on the findings of the Inquiry Committee and the authority shall forthwith give effect to such orders. The Chancellor shall not be required to consult the authority ‑ before passing any such orders. (d) Notwithstanding anything contained elsewhere in these Statutes, no appeal shall lie against an order made by the Chancellor under this Statute, provided, however, the Chancellor may, on the application of the aggrieved employee made within one month of the date on which he was informed of the order, review such order. (e) Nothing in this Statute shall operate to deprive an employee of the University from exercising his right to submitting a petition or memorial to the Chancellor." Statute 4 prescribes the penalties which may be awarded to the delinquent. Penalties have been classified into minor penalties and major penalties. Among the major penalties is "removal from service". Statute 8 provides that when an employee of the University is charged with an offence meriting removal from service, the procedure outlined in Statute 7 shall be applied. There is a proviso to Statute 8 which says:

"Provided that the officer competent to pass the order of discharge may dispense with the departmental inquiry and may make an inquiry in any manner deemed proper by him, recording his considered opinion before passing the older of discharge. When a departmental inquiry is dispensed with and if therefore, the employee asks to be heard in "person, the officer competent to pass order of discharge shall grant a personal interview." Statute 7 prescribes the procedure when an employee of the University is charged with an offence involving major penalties of dismissal and removal. Statute 7 gives a detailed procedure as to how a charge sheet shall be given to the delinquent and how the delinquent shall be asked to submit a written explanation and how the explanation is to be considered and how the delinquent is to be heard in person and as to when a departmental inquiry is to be held. This Statute also provides that the result of the departmental inquiry with the recommendation of the officer or the Committee holding the inquiry shall be placed before the authority competent to pass an order of dismissal or of removal who shall thereupon pass such orders as he thinks fit. The Statute also provides that in certain circumstances the formal inquiry may be dispensed with. These circumstances, however, do not apply to the present case. It will thus be seen from what has been stated above that the East Pakistan Agricultural University Employees (Efficiency and Discipline) Statutes have prescribed detailed procedure which must be, followed before a delinquent can be removed from service. Statute 5 (1) (b) makes it, obligatory upon the authority to inform the delinquent by an order in writing the action proposed to be taken in regard to him and the grounds of that action. Admittedly no such order was ever made in the present case. Statute 5 (1) (b) is in consonance with Article 177 (1) (b) of the Constitution which again is in keeping with the principle of natural justice, audi alteram partem. None of the procedure prescribed by the said Statutes, and mentioned above, has been followed in the present case. In any event the provisions of the said Statute 5 (1) (b) is mandatory and its contravention amounts to contravention not only of the Provisions of Article 177 (1) (b) of the Constitution but also of principle of natural justice, audi alterm partm. Mr. Jani Alam who has appeared on behalf of the respondents has contended that under the aforesaid statutes no such opportunity is required to be given where the Chancellor is satisfied that in the interest of security of Pakistan it is not expedient to give such opportunity. In support of his contention Mr. Jani Alam has relied on Statute (5) (1) proviso to clause (c). The entire Statute 5 has already been quoted above and it shows that Mr. Jani Alam's contention suffers from misconception. The proviso on which he relies applies to Statute (5) (1) (c) and to no other clauses of Statute 5 (1). The said clause (c) together with the proviso runs as follows :‑ "(c) shall give him a reasonable opportunity of showing cause against that action before an enquiry committee to be constituted under paragraph (2) to inquire into the charges Provided that no such opportunity shall be given, where the Chancellor is satisfied that in the interest of the security of Pakistan, or any part thereof, it is not expedient to give such opportunity." Obviously "such opportunity" in the proviso refers to "a reasonable opportunity of showing cause against that action before an Inquiry Committee . . . " occurring in clause (c) above. Neither in clause (a) nor in clause (b) of Statute 5 (1) is there mention of any "opportunity". That being so, all that is said‑ in clause (c) read with the proviso is that before an enquiry committee to be constituted under paragraph 2 of Statute 5, the delinquent must be given reasonable opportunity of showing cause against the proposed action against the delinquent, and the proviso says that if the Chancellor is satisfied' that in the interest of security of Pakistan it is not expedient to give such opportunity then no such opportunity shall be given. This proviso does not govern clause (b) of Statute 5 (1) and therefore, the authority is bound to inform the delinquent by an order in writing of the action proposed to be taken in regard to him and the grounds of that action. This not having been done, the impugned order cannot be maintained as a valid one. Relying on the impugned order it has also been contended that Article 177 (1) (b) is subject to Article 177 (2) (b) which says that paragraph (b) of clause (1) of this Article shall not apply where the competent authority considers that in the cir cumstances of the case it is not practicable to give to the person an opportunity of showing cause or that it would be prejudicial to the security of Pakistan for the person to be given such an opportunity. The short answer to this is that there is nothing on record to show that the authority in the present case ever considered that it was not practicable or that it would be prejudicial to the security of Pakistan to give such opportunity. Mr. Jani Alam frankly admits that no opportunity was ever given to the petitioner to show cause against the proposed order of removal. Furthermore, there is nothing to show that the Chancellor ever considered that in the circumstances it was not practicable or that it would be pre-judicial to the security of Pakistan to give the petitioner an opportunity to show cause. In these circumstances, the impugned order of removal contravenes not only a Constitutional provision but also the rules of natural justice. Mr. Jani Alam has next contended that under the said Statute 5, paragraph (2), clause (e), the delinquent is entitled to submit a petition or memorial to the Chancellor, and, therefore, until he has submitted such a petition or memorial, the petitioner's application is not maintainable under Article 98 of the Constitution. The impugned order (Annexure B to the petition) itself shows that the order of removal was passed at the instance of the Chancellor. That being so, it is difficult to say that a petition or memorial to the Chancellor is an equally adequate, effective and speedy remedy such as is available under Article 98 of the Constitution. We do not think, therefore, there is any substance in this contention of Mr. Jani Alam as well. For the reasons stated above, we make the Rule absolute and declare that the impugned order has been passed without lawful authority and is of no legal effect. Having regard to the facts and circumstances of the case, we make no order as to costs. A. M. SAYEM, J.‑I agree. K.B.A. Rule made absolute.