Judgement Details

MPO Matter- Alhaj M.M. Israfil Hossain vs. Government of the People's Republic of Bangladesh and Others.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 4909 of 2004

Decided On: 10.06.2008

Appellants: Alhaj M.M. Israfil Hossain Vs. Respondent: Government of the People's Republic of Bangladesh and Ors.

Hon'ble Judges/Coram:
Mir Hashmat Ali and S.M. Emdadul Hoque, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Md. Humayun Kabir, Advocate

For Respondents/Defendant: Md. Mozaammel Hoque, D.A.G., Md. Moslem Uddin and Md. Abdul Khaloque, A.A.Gs.

Subject: Employment Laws

Mentioned IN

Disposition:
Disposed of

Industry: Education

JUDGMENT

Mir Hashmat Ali, J.

1. This Rule was issued calling upon the respondents to show cause as to why the impugned order dated 14.02.2004 issued under the signature of the Director General, Secondary and Higher Secondary Education Directorate, Shikha Bhaban, Ramna Dhaka (Respondent No. 2) as contained in Memo No. OM/352-Ma/2003/371 Ma dated 14.02.2004 refusing to enlist the name of the petitioner in the Monthly Payment Order (M.P.O.) for drawing the salaries and other financial benefits from the Government (Annexure-K) should not be declared to have been passed without lawful authority and is of no legal effect.

2. At the time of issuance of the Rule, the respondent No. 2 was directed to enlist the name of the petitioner in the Monthly Payment Order (M.P.O.) for withdrawing the salary benefits from the Government.

3. The petitioner Alhaj M.M. Israfil Hossain on 01.01.1965 was appointed as the founder Headmaster of Iswaripur A. Sobhan High School and continued to work in the said post till 03.12.1971. But since his name appeared in the list of Thana Peace Committee, he was constrained to leave the school in fear of his life and he made himself hiding till he was discharged from the case of Kaliganj P.S. Case No. 6 dated 08.09.1972 corresponding to G.R. No. 690 of 1972 which was discharged by the Special Tribunal Judge, Khuina vide judgment and order dated 05.01.1976. The petitioner after being discharged from the case on 13.04.1976 requested to the then Chairman of the Managing Committee in writing with a prayer for resuming his duties at school on and from 01.05.1976. But the Managing Committee refused to accept the prayer of the petitioner and informed him on 26.04.1976 stating that he would not be allowed to resume his duties at school as he has been discharged from the service of the school as per resolution of the meeting of the Managing Committee held on 03.05.1972. Against the decision, the petitioner approached to the then Sub-divisional Education Officer, Satkhira, Khulna for his redress. The said officer opined that the petitioner was the confirmed Headmaster of the school and he ought to have been put under suspension before he was finally discharged and that the decision of the Managing Committee was required to be approved by the competent authority, but no such mandatory formalities were observed and hence the petitioner may be reinstated in his former post as a Head Master of the Iswaripur A. Sobhan High School with effect from 04.12.1971 treated the decision of the committee as null and void and the period of his absence from duties from 04.12.1971 to 28.04.1976 be granted leave without pay and forwarded the report to the District Education Officer, Khulna vide Office Memo No. 336 dated 03.11.1978. On receipt of the said memo, the District Education Officer, Khulna forwarded the report to the Deputy Director, Public Instruction, Khulna Division, Barisal for necessary action regarding reinstatement of the petitioner in the service as Headmaster of the said Iswaripur A. Sobhan High School vide Memo No. 987 dated 04.11.1978. The Deputy Director of Public Instruction, Khulna Division, Barisal forwarded the said report of the Sub-divisional Education Officer along with Inspector of Schools, Board of Intermediate and Secondary Education, Jessore for taking necessary action vide Memo No. 7303 dated 08.11.1978. Thereafter the Board of Intermediate and Secondary Education, Jessore approved the recommendation of the Deputy Director of Public Instruction, Khulna Division, Barisal and passed order to reinstate the petitioner in service of the petitioner as Headmaster of Iswaripur A. Sobhan High School. Accordingly the Inspector of Schools, Board of Intermediate and Secondary Education, Jessore directed the Circle Officer (Development), Shyamnagor Police Station and Chairman of the Managing Committee of the Iswaripur A. Sobhan High School to do all the needful for the reinstatement of the petitioner in his service of the said School vide Memo No. B-Aa- 1/427/3(6) dated 17.11.1978. Thereafter the Board of Intermediate and Secondary Education, Jessore approved the recommendation of the Deputy Director of Public Instruction, Khulna Division regarding reinstatement in service of the petitioner as Headmaster of Iswaripur A. Sobhan High School and for implementation of the re-instatement of the petitioner in the service as Headmaster of Iswaripur A. Sobhan High School vide Memo No. B Aa-2/484(5) dated 09.11.1979. The Circle Officer, (Development) was the Chairman of Iswaripur A. Sobhan High School and carry out the direction passed by the Inspector of School, Board of Intermediate and Secondary Education, Jessore. Then again on 19.11.1979 the Chairman of the Managing Committee of Iswaripur A. Sobhan High School was asked to re-instate the petitioner in his service as Headmaster of the said Iswaripur A. Sobhan High School within 3(three) days and to inform his the compliance of the same. Thereafter the Circle Officer, Shyamnagor and Chairman of the Managing Committee, Iswaripur A. Sobhan High School re-instated the petitioner in his service as the Headmaster of the said School vide Memo No. 48 dated 07.02.1980 and the petitioner joined in his post as Headmaster of the said Iswaripur A.Sobhan School. But the then Headmaster of the said school Kamaluddin Ahmed without handing over charge of the school to the petitioner instituted Title Suit No. 80 of 1980 before the Sadar Assistant Judge, Satkhira challenging the direction of the reinstatement order passed by the Board in favour of the petitioner is illegal, collusive and not binding upon the plaintiff. Ultimately the said suit was dismissed as not maintainable. The said Kamaluddin Ahmed preferred Title Appeal No. 214 of 2001 before the Court of District Judge, Satkhira. After hearing, the said appeal was allowed and the suit was remanded back to the Trial Court. Ultimately the said Title Suit No. 80 of 1980 was dismissed for default on 24.06.2004. After disposal of the suit, the petitioner again approached to the Inspector of School, Board of Intermediate and Secondary Education Board, Jessore and the said authority directed the said Headmaster Kamaluddin Ahmed to handover charge in favour of the petitioner vide Memo No. Baa/113/192/7(7) dated 27.01.2003 and consequently the Managing Committee in its meeting held on 30.01.2003 took a decision to reinstate the petitioner in his service and accordingly Mr. GM. Abdul Kashem, the then Headmaster (in charge) of the said school handed over the charge in favour of the petitioner on 30.01.2003. The petitioner joined in his post on 01.02.2003 and since then the petitioner discharged his duties as the Headmaster of Iswaripur A. Sobhan High School with full satisfaction of the authority concerned.

4. Thereafter the Managing Committee of the said school took a decision on 02.07.2003 for taking all the positive steps for withdrawal of the salaries along with other benefits of the petitioner. Thereafter the petitioner approached to the Director General, Secondary and Higher Education Directorate, Dhaka and prayed for enlistment him name in the Monthly Payment Order (M.P.O.) along with a prayer for releasing his all arrear salaries and dues. The Director general, Secondary and Higher Education Directorate, Dhaka asked the District Education Officer, Satkhira to make inquiry in to the matter vide Memo No. OM/323-Ma/2003-11185/MA dated 04.06.2003. The District Education Officer, Satkhira inquired into the matter physically and forwarded the report to the Director General, Secondary and Higher Education Directorate, Dhaka with positive finding in favour of the petitioner vide Memo No. 1057 dated 16.07.2003. But the enlistment of the petitioner in the Monthly Payment Order (M.P.O.) unattended for months together, consequently the petitioner again approached to the Director General, Secondary and Higher Education Directorate, Dhaka praying for necessary order for enlistment of the petitioner's name in the Monthly Payment Order (M.P.O.). The Director General on receipt of the said application refused to enlist the name of the petitioner in the list of Monthly Payment Order vide Memo No. O.M/352-Ma/2003/371 Ma dated 14.02.2004 on the ground that the suit is pending against the petitioner. In the meantime, the Title Suit No. 80 of 1980 was dismissed for default for none appearance of the plaintiff vide Order No. 48 dated 24.06.2004. consequently, the petitioner again on 03.07.2004 approached to the Respondent No. 2 in writing stating that Title Suit No. 80 of 1980 has already been dismissed for default vide order dated 24.06.2004 and requested the respondent No. 2 to enlist the name of the petitioner in the Monthly Payment Order (M.P.O.). But no order was passed. Finding no other alternative; the petitioner on 12.08.2004 served a notice of demand for justice to the respondent No. 2 through his learned Advocate demanding him to pass necessary order for teamed Advocate demanding him to pass necessary order for enlistment of the petitioner's name in the Monthly Payment Order (M.P.O.). But no reply was given, consequently the petitioner filed instant writ petition and obtained Rule.

5. Mr. Md. Humayun Kabir, the learned Advocate appearing for the petitioner submits that since the petitioner discharged from the Kaliganj P S. Case No. 6 dated 08.09.1972 corresponding to G.R. No. 690 of 1972 initiated under Collaborators Order (P.O. No. 8 of 1972) on 05.01.1976 and since he was reinstated in his service as Headmaster of Iswaripur A. Sobhan High School with effect from 04.12.1971 and that since Title Suit No. 80 of 1980 having been dismissed and since his absence from 04.12.1971 to 28.04.1976 was granted as leave without pay the petitioner is entitled to benefit of his salaries and other dues in accordance with law and that the petitioner is also entitled to Monthly Payment Order (M.P.O.). He further submits that the Managing Committee of the said School and other authorities also recommended for enlistment the name of the petitioner in the Monthly Payment Order. He further submits that the petitioner was duly appointed and reinstated in his service in accordance with law by the competent authority complying with all the legal formalities and he has continued and discharged his dues efficiently with full satisfaction to the authority concern. The petitioner legitimately expect to his salaries and other financial benefits from the authority as well as from the Government. He further submits that except the respondent No. 2 all the authorities taken their decision positively in favour of the petitioner in respect of the Monthly Payment Order and other financial benefits to the petitioner. He further submits that the plea taken by the respondent No. 2 that the suit is pending against the petitioner was not correct, the facts remains that the said Title Suit No. 80 of 1980 has already been dismissed for default and no restoration of the said suit has been made. He further submits that after dismissal of the suit petitioner again applied to the respondent No. 2 but in vain. He further submits that the petitioner has fulfilled all the requirement of Section 5 of

for obtaining Portion of the Government Monthly Payment Order and other financial benefits from the Government. He further submits that there is no situation for suspending curtailing or cancelling the Government Portion Salary (M.P.O) as laid down in Section 18 of the said Regulation. He further submits that the Act of Respondent No. 2 appears to be malafide, arbitrary and without any lawful authority. He further submits that the petitioner served in the said Iswaripur A. Sobhan High School with most honestly, sincerity with full satisfaction to the authority and as such the petitioner acquired his vested right of the salaries and other financial benefits from the authorities as well as from the Government Portion Salaries (M.P.O.). But the activities of the respondents No. 2 is violative of natural justice and also the financial Rules. He further submits that after issuance of the Rule and the ad-interim order the authority concerned has already paid the Government Portion Salaries (M.P.O.) to the petitioner. Which he is entitled to till the date of retirement on 19.10.2006 and prayed for dispose of the Rule with observations.

6. Mr. Md. Mozammel Hoque, the learned Deputy Attorney General appearing with Mr. Md. Moslemuddin, the learned Assistant Attorney General and Mr. Md. Abdul Khaleque, the learned Assistant Attorney General for the Respondents submits that the facts as disclosed in the writ petition Salaries in accordance with law, which has already been given to the petitioner by the ad-interim order issued by this Court on 22.08.2004 by this Court and that the writ petitioner has already retired from his service and as such the Rule may be disposed of in accordance with law.

7. We have heard the learned Advocates of both the parties at length and perused the writ Petitioner, supplementary affidavit and annexures thereof. The respondents did not file any affidavit-in-opposition to controvert the statements made in the writ petitioner.

8. It appears that the petitioner was appointed was founder Headmaster of Iswaripur A. Sobhan High School on 01.01.1965. Since them he continued to work in the said post of the said High School till 03.12.1971. Unfortunately he was put in a Collaborator case under P.O.8 of 1972 vide Kaliganj P.S. Case No. 6 dated 08.09.1972 corresponding to G.R. No. 690 of 1972. The said case came up for trial before the learned Assistant Judge and Special Tribunal, Khulna. Ultimately the said case was discharged and filed vide judgment and order dated 05.01.1976. During the period the petitioner kept himself hiding. After discharge from the collaborator case the petitioner on 13.04.1976 approached to the Chairman of the Managing Committee of the said Iswaripur A. Sobhan High School for resuming his duties as Headmaster of Iswaripur A. Sobhan High School from 01.05.1976. But the Managing Committee of the said school refused to accept the prayer of the petitioner and informed the matter on 26.04.1976 to the petitioner in writing stating that he has been discharged from the service of the school as per resolution of the meeting of the Managing Committee held on 03.05.1972. The petitioner approached to the then Sub-divisional Education Officer, Satkhira, Khulna and after enquiry he found that the petitioner was a confirmed Headmaster of the school and he ought to have been put under suspension before he was finally discharged from the service and that the decision of the Managing Committee dated 03.05.1972 was required to be approved under the law by the competent authority, but no such mandatory provisions were fulfilled and as such the petitioner is entitled to be reinstated in his former post of Head Master of the Iswaripur A. Sobhan High School with effect from 04.12.1971 and treated the decision of the Managing Committee as null and void and that the absence from duties from 04.12.1971 to 28.04.1976 was granted leave without pay and forwarded the report to the District Education Officer, Khulna vide Office Memo No. 336 dated 03.11.1978 (Annexure-'A' to the writ petition). On receipt of the said report, the District Education Officer, Khulna forwarded the same to the Deputy Director, Public Instruction, Khulna Division, Barisal for necessary action regarding reinstatement of the petitioner in the service as Headmaster of the said Iswqripur A. Sobhan High School vide Memo No. 987 dated 04.11.1978. The Deputy Director of Public Instruction, Khulna Division, Barisal forwarded the said report of the Sub-divisional Education Officer and to the Inspector of School, Board of Intermediate and Secondary Education, Jessore for taking necessary action vide Memo No. 7303 dated 08.11.1978 (Annexure-'C). Thereafter the Board of Intermediate and Secondary Education, Jessore approved the recommendation of the Deputy Director of Public Instruction, Barisal directing the Circle Officer (Development) Shyamnagor and the Chairman of the Managing Committee Iswaripur A. Sobhan High School to take all necessary steps for re-instatement of the petitioner in his service as Headmaster of the said school vide Memo No. B-Aa-1/427/3(6) dated 17.11.1978 (Annexure-'D'). Thereafter the Board of Intermediate and Secondary Education, Jessore approved the recommendation of the Deputy Director, Public Instruction, Khulna Division directing the Circle Officer (Development) Shyamnagor and Chairman of the Managing Committee of the School for reinstatement of the petitioner in service as Headmaster of Iswaripur A. Sobhan High School. The Circle Officer (Development) and the Chairman of the Managing Committee of the school failed to carry cut the direction passed by the Inspector of the School, Board of Intermediate and Secondary Education, Jessore, Consequently, Inspector of School, Board of intermediate and Secondary Education, Jessore again on 19.11.1979asked the Chairman of the Managing Committee Iswaripur A. Sobhan High School to reinstate the petitioner in his service as Headmaster of the said Iswaripur A, Sobhan High School within 3(three) days and to inform him compliance thereof vide Memo No. B Aa-2/484(5)/5 dated 09.11.1979 (Annexure-'G' to the writ petition). It further appears that the Chairman of the Managing Committee, Iswaripur A. Sobhan High School reinstated the petitioner in his service as the Headmaster of the said School with immediate effect vide Memo No. 48 dated 07.02.1980 and the petitioner Joined in his post as Headmaster of the said Iswaripur A. Sobhan High School. After joining in the School the then wording Headmaster kamaluddin Ahaed without handing over the charge to the petitioner, filed Title Suit No. 80 of 1980 before the Sadar Assistant Judge, Sathira praying that the direction of reinstatement of the petitioner passed by the Board is illegal, collusive and not binding upon the plaintiff. Ultimately, the said suit was dismissed as not maintainable vide order No. 34 dated 04.09.2001. It further appears that against the said decision, the plaintiff Kamaluddin Ahmed filed Title Appeal No. 214 of 2001 before the Court of District Judge, Satkhira. After hearing, the said appeal was allowed and the suit was remanded to the Trial Court. Ultimately the said Title Suit No. 80 of 1980 was dismissed for default on 24.06.2004. After disposal of the suit, the petitioner again approached to the Inspector of School, board of Intermediate and Secondary Education Board Jessore and the said authority asked the said Headmaster kamaluddin Ahmed to hand over charge in favour of the petitioner vide Memo No. Baa/113/192/7(7) dated 27.01.2003 and consequently the Managing Committee in its meeting held on 30.01.2003 took a decision to reinstate in his service and accordingly Mr. G M. Abdul Kashem, the then Headmaster (in charge) of the said school handed over charge in favour of the petitioner on 30.01.2003. The petitioner joined in his post on 01.02.2003 (Annexures- H', 'H-1', 'H-2', and 'H-3'). Ultimately Title Suit No. 80 of 1980 was dismissed for default for non appearance of the plaintiff vide order No. 48 dated 24.06.2004. It appears that the Managing Committee of the said school took a decision on 02.07.2003 decided to take all the positive steps for withdrawal of the petitioner's salaries along with other benefits from the Government. Thereafter the petitioner approached to the Director General, Secondary and Higher Education Directorate, Dhaka for enlistment the name of the petitioner in the Monthly Payment Order (M.P.O.) along with a prayer for realising his all arrear salaries and dues. The Director General, Secondary and Higher Education Directorate, Dhaka asked to the District Education Officer, Satkhira for inquiry in to the matter vide Memo No. OM/323-Ma/2003-11l85/MA dated 04.06.2003. The District Education Officer, Satkhira inquired into the matter physically and forwarded a report to the Director General, Secondary and Higher Secondary Education Directorate, Dhaka with positive finding in favour of the petitioner vide Memo No. 1057 dated 16.07.2003. After receipt of the said memo, the Director General, Secondary and High Secondary Education Directorate, Dhaka (Respondent No. 2) took no steps. Consequently, the petitioner again approached the Director General, Secondary and Higher Secondary Education Directorate, Dhaka praying for necessary order for enlistment of the petitioner's name in the Monthly Payment Order (M.P.O.). But the Director General, Secondary and Higher Secondary Education Directorate, Dhaka on receipt of the said application refused to enlist the name of the petitioner in the list of Monthly Payment Order vide memo No. O.M/352-Ma/2003/371 Ma dated 14.02.2004 on the ground that the suit is pending against him. In the meantime, the Title Suit No. 80 of 1980 was dismissed for default for none appearance of the plaintiff vide order No. 48 dated 24.06.2004. Consequently, the petitioner again on 03.07.04 approached to the Respondent No. 2 in writing stating inter alia that Title Suit No. 80 of 1980 has already been dismissed for default vide order dated 24.06.2004 and requested the respondent No. 2 to enlist his name in the Monthly Payment Order (M.P.O.). But no order was passed. Finding no other alternative; the petitioner on 12.08.2004 served a notice for demand of justice to the Respondent No. 2 through his learned Advocate demanding him to pass necessary order for enlistment of the petitioner's name in the Monthly Payment Order (M.P.O.) But no reply was given, consequently the petitioner filed instant writ petition and obtained Rule on 22.08.2004 and also obtained an ad-interim order directing the respondent No. 2 to enlist the name of the petitioner in the Monthly Payment Order. Accordingly, the Respondent No. 2 enlisted the name of the petitioner in the Monthly Payment Order (M.P.O.) from September, 2005 and the petitioner enjoyed the Government Portion Salaries (M.P.O.) without any interruption from any quarter from that date.

9. It appears that the teachers and educational staffs of the School are entitled to Government Portion Salaries Monthly Payment Order (M.P.O) under Rule 5 of the Circular dated 24.10.1995,  which runs thus:-

10. In the instant writ petition, the respondents could not show that the petitioner or his school has not fulfilled the above requirement of the Rule 5 of the circular of

and as such we find that the petitioner is entitled to the Government Portion Salary and other benefits under the Rule from the date of his rejoining dated 01.02.2003 till the date of retirement on 19.10.2006.

11. Considering the facts and circumstances of the case, we find substance in the instant Rule. But since the petitioner has already been retired, we feel justice will be met, if we dispose of the case with the above observation.

12. Accordingly, the Rule is disposed of without any order as to the cost.

13. The petitioner Alhaj M. M. Israfil Hossain is entitled to Government Portion Salaries (M.P.O.) since from joining dated 01.02.2003 till his date of retirement dated 01.02.2003 till his date of retirement dated 19.10.2006.

S.M. Emdadul Hoque, J.

I agree.