CASE COMMENTARY ON Prof. Dr. Yusuf Ali vs. Chancellor of Rajshahi University & others50 DLR (1998) 1

Introduction:

Audi Alteram Partem is a principle of Natural Justice whose English meaning is ‘hear the other side or both the side must heard or no man should be condemned unheard’. This principle includes two things i.e. Notice and Hearing. That to say that any order passed without giving notice us against the principle of Natural Justice is void ab initio.

But in the case of Prof. Dr. Yusuf Ali vs. Chancellor of Rajshahi University& others, the former President Justice Shahabuddin Ahmed without any notice and hearing to defend him, removed the former Vice-Chancellor of Rajshahi University, Prof. Yusuf Ali in 1997. So it is proved that it was an exceptional case to the Natural Justice in the eye of law.

Fact and Overview of the case:

In this writ petition, the petitioner describes himself as Vice-Chancellor of Rajshahi University through the process of section 11 of Rajshahi University Act of 1973 (Act No XXXVI of 1973) as a Member of panel from which the Vice-Chancellor shall be appointed for a period of 4 years from the said panel. Three persons are to be nominated by the Senate on such terms and conditions as may be determined by the Chancellor. In this case, Senate nominated three persons, namely, the petitioner Dr Md Yusuf Ali (52), Professor AKM Azaharul Islam (51) and Dr AKM Omar Ali (47). Out of the three nominated persons the petitioner got the highest number of votes, namely,52 and he was appointed as Vice-Chancellor of the Rajshahi University by the Chancellor by an order dated 22-8-94 vide Annexure-B to the writ petition. This order was communication to the present petitioner by the Registrar of Rajshahi University by a notice dated 23-8-94 vide Annexure-C to the writ petition.

It is stated that after he was appointed as Vice-Chancellor of Rajshahi University, the petitioner had been discharging his duties honestly and sincerely and restored law and order in the Rajshahi University. To his credit, the law and order situation and academic atmosphere of the University had been improved to such extent that the university was not closed for a single day excepting the scheduled vacations. Since he joined as Vice-Chancellor, students were very serious in their studies, in attending classes and appearing at the examinations as scheduled. Besides, they could live peacefully in the residential halls due to improvement of the law and order situation. The other contestants for nomination were not happy at this and they tried to create chaos and confusion amongst teachers, students and employees. The petitioner’s appointment as Vice-Chancellor was not liked by the defeated section of the teachers who did not like the restoration of law and order situation and improvement of the academic atmosphere.

It is submitted by the petitioner that the appointment of the petitioner as Vice-Chancellor vide Annexure-B and his joining as Vice-Chancellor in terms of the Notification, do not contain any condition or term excepting the tenure of four years with effect from 22-8-94and which will expire on 21-8-98. As such, any order suspending, dismissing or relieving him from his post without allegation, enquiry or show cause is illegal.

While the petitioner was running the administration of the Rajshahi University peacefully, an order of removal was passed by the Chancellor on 16-2-97 issued through the Ministry of Education relieving him from his service and posting him in his former position as Professor in the Department of Chemistry and also asking him to hand over charge to Pro-Vice-Chancellor Professor Dr Abdul Khaleque. This order is annexed as Annexure-D which is the impugned order. It is stated that the impugned order dated 16-2-97 is illegal and without jurisdiction in view of the fact that section 16 of the General Clauses Act is not applicable because the Chancellor is not authorized to relieve the petitioner as he had been nominated by the Senate and appointed by the them Chancellor in accordance with law. It is further stated that since the Chancellor had no direct power and since there is no provision in the University Act itself for removal of the petitioner, the Chancellor had acted without jurisdiction in issuing the impugned order under section 16 of the General Clauses Act. It is further alleged that since before issuance of the impugned order no show cause notice was given, the impugned order offended the principle of natural justice and as such, it is liable to be struck down.

In this case an affidavit-in-opposition has been filed on behalf of respondent Nos. 1 and 2 and another set of affidavit-in-opposition has been filed on behalf of respondent No. 4. On behalf of respondent Nos. 1 and 2, learned Attorney-General appeared and on behalf of respondent No. 4 the learned Senior Advocate Mr. SR Paul appeared and argued the case. In the affidavit-in-opposition filed by respondent Nos. 1 and 2 it is stated that the petitioner as proctor hopelessly failed to maintain, not to speak of restoring, law and order on the campus. As the petitioner was senior in service in the Department of Chemistry, he was by rotation appointed Chairman of the Department of Chemistry under the provision of section 29 of the Rajshahi University Act 1973, and not on the basis of the Academic experience.

It was further stated in the affidavit that the petitioner had not been discharging his duties honestly and sincerely. During his tenure of service there was deterioration of law and order and academic atmosphere of the University. Four students were killed in the campus. The classes were not held regularly nor were any of the examinations held according to schedule. There was disturbance in all the residential halls of the University. In total the classes were suspended for 143 days. The defeated candidates for the office of the Vice-Chancellor accepted the appointment and it is wrong to say that any of them ever created any chaos or confusion as alleged or otherwise. The other allegations as made by the petitioner in the writ petition have been denied by the answering respondents. It is further stated that in pursuance of the impugned order the petitioner had already joined his department of Chemistry of the said University. Respondent No. 4 stated in his affidavit-in-opposition that during the tenure of the office of the petitioner there was deterioration of law and order and academic atmosphere. In fact, this Respondent No. 4 denied the allegations made by the petitioner in the writ petition and also adopts the submissions made by respondent Nos. 1 and 2. The petitioner filed two sets of affidavit-in-reply to the two sets of affidavit-in-opposition. In these replies the petitioner in fact, reiterated his statements as made in the writ petition itself.

Arguments of the both sides and observation of the court:

Mr. Moudud Ahmed, the learned Advocate appearing on behalf of the petitioner, has drawn our attention to sections 9, 10 and 11 of the Rajshahi University Act. Section 9 has provided 19 classes of officers including the Chancellor and Vice-Chancellor. According to section 9, the Chancellor as well as the Vice-Chancellor are officers of the University, Section 10 provides that the President of the People’s Republic of Bangladesh shall be the Chancellor of the University and shall preside over at the Convocation of the University for award of academic and honorary degrees, and in his absence the Vice-Chancellor shall preside at such Convocation. The Chancellor shall have such powers as may be conferred on him by this Act or the Statutes. Section 11(1) of the aforesaid Act provides that the Vice-Chancellor shall be appointed by the Chancellor for a period of four years from a panel of three persons to be nominated by the Seated on such terms and conditions as may be determined by the Chancellor and shall be eligible for re-appointment for a further period of four years.

Mr Moudud Ahmed submits that, as stated above, out of there teachers nominated by the Senate for the post of Vice-Chancellor, the petitioner got the highest number of votes and the petitioner was appointed as Vice-Chancellor of the University by the Chancellor for a term of four years. At the time of appointment no terms and conditions were attached with aids appointment by the Chancellor. It is the case of Mr. Moudud Ahmed that since the petitioner was appointed as Vice-Chancellor by the Chancellor of the Rahshahi University and since no terms of appointment by the Chancellor and since term of office is for four years from the date of appointment the petitioner cannot be removed from the post of Vice-Chancellor by the Chancellor in view of the fact that there is no such provision of removal or discharge or dismissal from service in the University Act or Statute itself. He further submits that if the Chancellor wants to remove the Vice-Chancellor, the necessary amendment of the Act is required to be made in view of the fact that the University Act does not contain any provision giving any guideline as to how the Vice-Chancellor will be removed from his post.

Mr. Moudud Ahmed has referred to section 16 of the General Clauses Act which runs as follows-

Power to appoint to include power to suspend or dismiss:Where by any act of Parliament or Regulation, a power to make any appointment is conferred, and then unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.

Relying on this provision Mr Moudud Ahmed submits that this section of the General Clauses Act is not applicable in the case of that present petitioner view of the fact that the Chancellor and the Vice-Chancellor shall be guided under the University Act itself and by no other law. He further submits that even if it is presumed that section 16 of the General Clauses Act is applicable, even then the order was not an order of suspension or dismissal from service. Rather it is a removal from the post of Vice-Chancellor and posting him back to his original post of professor in the Department of Chemistry of Rajshahi University Such an order is not contemplated under section 16 of the General Clauses Act.

Mr K S Nabi, the learned Attorney-General appearing for respondent Nos. 1 and 2, submits that it is true that there is o separate provision in the University Act itself for removal of the Vice-Chancellor. But since the General Clauses Act has empowered the appointing authority to dismiss or suspend, the Chancellor had rightly issued the impugned order of removal. He submits that dismissal means severance from service. Relieving from service is also severance from service. The petitioner was relieved from the service of Vice-Chancellor and posted back to his original position that is, the professor of the Department of Chemistry of the Rajshahi University. Learned Attorney-General submits that this is a liberal and reasonable order in view of the fact that the Chancellor could have dismissed him from service. But considering the facts and circumstances of the case the Chancellor took a liberal view relieving him from the post of the Vice-Chancellor and posting him back as professor in the Department of Chemistry of Rajshahi University.

Learned Attorney-General has referred to the case of Dr Syed Mahbubur Rahaman vs. Bangladesh University of Engineering and Technology, 45 DLR 333. In that case the Vice-Chancellor passed an order suspending a professor of the University on probation. Such an order of suspension had been challenged. It was observed by a Division Bench of this Court in that case that in an emergency the Vice-Chancellor has the power even to terminate the service of a teacher appointed on probation before the decision of the syndicate. The Court cannot enquire into the existence of emergency or propriety of the action taken by the Vice-Chancellor. It was observed that in view of the provisions of section 16 of the General Clauses Act the appointing authority has inherent power to suspend the petitioner.

Learned Attorney-General has also referred to the case of Bangladesh Freedom-Fighters Welfare Trust Vs. Md Momtajul Hossain, 44 DLR (AD) 273. In the aforesaid case the Appellate Division held as follows    :

It has not been clearly stated in the relevant provision for termination of service, sub-rule (1) of rule 7 of the Rules, who is to exercise that power. The High Court Division correctly held that, in the absence of any specific provision to this effect, the appointing authority of the employee must be deemed to have been vested with the power of termination by operation of section 16 of the General Clauses Act, 1897.

One of the purposes for the enactment of General Clauses Act, 1897 is to avoid superfluity of language in statutes whenever it is possible to do so. In Rayarappan Vs. Madhari Amma, AIR 1950 FC 140, it was held that section 16 of the Act codified the well-understood general law, that the power to terminate flows naturally and as a necessary sequence from the power to create. In other words, it is a necessary adjunct of the power of appointment and is exercised as an incident to, or consequence of, that power, the authority to call such officer into being necessarily implies his functions which their exercise is no longer necessary, or to remove the incumbent for an abuse of these functions or for other causes shown. Similar Views were re-iterated in Lekhraj Vs. Deputy Custodian, Bombay AIR 1966 SC 334 (366) and M/s Heekett Engineering Co. Vs. Their Workmen AIR 1977 SC 2257 (2261).

Relying on the aforesaid case the learned Attorney-General submits that the Chancellor is the appointing authority and since there is no specific provision for removal from service of the Vice-Chancellor in the Act itself, he had resorted to section 16 of the General Clauses Act.

In this connection, the case of Chief Justice of Andhra Prodesh Vs. LVA Dikshitulu, AIR 1979 (SC) 193can be referred. In the relevant law there was no provision for removing the employees by the Chief Justice of the High Court, but the Chief Justice was the authority to appoint him. In that case such a question arose as to the power and scope of appointment. The Supem Court of India in describing the power of the appointing authority held as follows:    :

“Now, let us what is the ambit and scope of the power of “appointment” in Article 229(i). In the context of Article, 229, and as a whole, this power is of wide amplitude. The word “appointment” in Article 229(i) is to be construed according to the axiom that the greater includes to the axiom that the greater includes the less. This cardinal canon of interpretation underlies section 16 of the General Clauses Act which has been made applicable by Article 317 (1) of the Constitution. Construed in the light of this juristic principle, the power of “appointment” conferred by Article 229(1) includes the power to suspend, dismiss, and remove or compulsory retirement from service. In short, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, removal, suspension, including in rank, compulsory retirement, etc, including the power to prescribe of the Chief Justice and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent indicated in the provisions. In conferring such exclusive and supreme powers on the Chief Justice, the object which the Founding Fathers had in view, was to ensure independence of the High Court.”

Considering the provision of section 16 of the General Clauses Act and also on consideration of the judicial pronouncements as mentioned above, we are of the view that the Chancellor who has got power to appoint has got the power to suspend, although there is no specific provision in the Act itself for removing the Vice-Chancellor of the University.

Mr Moudud Ahmed has referred to section 55 of the University Act and tried to convince us that in the case of Vice-Chancellor the procedure laid down in section 55(3) should have been followed as he is one of the officers of the University. We have gone through the aforesaid provision, but such a provision of section 55(3) of the aforesaid Act is not attracted in the case of Vice-Chancellor.

If the Vice-Chancellor is taken as an officer of the University within the purview of section 55(3) of the Act, then as per section 9 of the Act the Chancellor is also an officer and he should also be dealt with under section 55(3) of the Act which is nothing but an absurdity. So, it appears to us that the Chancellor of the University had rightly exercised his power under section 16 the General Clauses Act in relieving of the petitioner from the responsibility to act as Vice-Chancellor and again posting him to his former post of Professor in the Department of Chemistry in the University of Rajshahi.

Mr SR Paul the learned advocate appearing for the respondent No. 4 submits that if sections 15, 16 and 21 of the General Clauses Act are read together, it appears that the Chancellor has rightly acted under section 16 of the General Clauses Act. He submits that power to appoint means power to suspend or dismiss or remove or compulsory retire. He further submits that section 21 of the General Clauses Act provides that the person has power includes a power, exercisable in the like manner and subject to the like sanction and conditions, to add, amend, vary or rescind any notification, order Rule, or bye-law so issued. His submission is that in view of the provision of section 15, 16 and 21 of the General Clauses Act it appears that the Chancellor had acted within the bounds of law and rightly removed the petitioner from the post of Vice-Chancellor.

Mr Moudud Ahmed further submits that since he was removed from the post of Vice-Chancellor and since from the affidavit-in-opposition it appears that some allegations were made against him, he ought to have been given show-cause notice before removal from service. Since in the instant case notice had not been issued and he was not given reasonable opportunity to defend himself the Chancellor had violated the principle of natural justice and, as such, the impugned order of removal is liable to be struck down. In support of his contention he has referred to a dozen of decisions of our country and of Indian Jurisdiction.

It is universally established principle if a man is condemned and if there is severance of service of a person for some allegations or by giving him bad name, he must be given an opportunity of being heard and the allegations should also be given to him so that he could give and defend himself.

Mr Moudud Ahmed has referred to the affidavit-in-opposition filed on behalf of respondent Nos. 1 and 2 stated that these answering respondents have made categorial statement in the affidavit-in-opposition that the petitioner had not been discharging his duties honestly and sincerely, he failed to restore law and order in the university. Four students were killed in the campus. The classes were not held regularly nor were any of the examinations held according to schedule. There were disturbances in all the residential halls. In total the classes of the university remained suspended for 143 days. Relying upon the above statements Mr Moudud Ahmed submits that all these are allegations made against the petitioner as Vice-Chancellor and as such, he should be given an opportunity of being heard and also he should have been given an opportunity to reply to these allegations. Since he was removed without affording him an opportunity of being heard, it offends the principle of natural justice. Since this principle of natural justice has been accepted university, we need not refer to the cases as cited by Mr Moudud Ahmed. Now let us see whether the principle of natural justice has been violated in the instant case or not.

On the point of principle of natural justice the learned Attorney-General submits that at the relevant time the academic atmosphere of the Rajshahi University was worst and circumstances were beyond control. There were disturbances in the university in between different sections of students as well as different groups of the teachers of the Chancellor had no alternative but to remove the Vice-Chancellor immediately in the greater interest the institution.

Mr attorney-general submits that if in the instant case the show cause notice was issued upon the Vice-Chancellor it would create more trouble which would deteriorate the overall situation and law and order condition of the university area. Four students were killed in the campus and there was continuous disturbance in different halls amogst the students of different groups having different political bias. In such a situation the Chancellor had to take immediate action and as such, the question of issuing show cause notice did not arise at all. We find substances in the aforesaid contention of the learned Attorney-General.

The President is the Chancellor of the University and it appears that he being satisfied with the overall disturbing condition in the petitioner being Vice-Chancellor was unable to run the administration peacefully and properly had exercised his power under section 16 of the General Clauses Act, being the appointing authority, for the greater interest of the highest educational institution of the Division. In a case like this if show cause notice was issued, it would aggravate the situation more and more and that is why we are of the view that the Chancellor had rightly exercised his power, without issuing any show cause notice, for relieving of the petitioner from the post of Vice-Chancellor and again posting him to his parent Department as professor, namely, Department of Chemistry.

Mr Attorney-General further submits that by the impugned notification the petitioner was relieved of his duties as Vice-Chancellor of the University of Rajshahi and at the same time he was re-posted to his parent Department, namely, Department of Chemistry of the university as professor. A person is aggrieved when there is severance of service. In the instant case it appears that there is no total severance of service by way of dismissal or removal or discharge, rather he was relieved of his duties as Vice-Chancellor and posted back to his original Department as professor. Service of a person is a property to him and when there is severance of service of a person, the question of show cause notice will arise. But in the instant case learned Attorney-General submits that there is no severance of service altogether but he was relieved of his duties as Vice-Chancellor of the University and posted back to his original post of Professor of the Department of Chemistry of the University.

By the impugned order, the petitioner was relieved from the post of Vice-Chancellor and his service was not severed as a whole and he was not made destitute and jobless in any manner whatsoever. Since for unavoidable circumstances, for law and order situation of the university concerned, since his service was not totally severed and he was not made destitute by such severance and since he was re-posted as the professor of the Department of Chemistry and since the impugned order was passed for greater interest of the Institution itself, we are of the view that the show cause notice as argued by Mr Moudud Ahmed was not necessary in the facts and circumstances of the present case. As such, we do not find any substances in the contentions of Mr Moudud Ahmed.

Mr SR Paul, the learned Advocate representing respondent No. 4, submits that the Chancellor of Rahshahi University is the President of Bangladesh and President acted under Article 48 of the Constitution. He submits that the President shall exercise the power and perform the duties conferred and imposed on him by the Constitution and by other law and in performing of his duties excepting the Article 56(3) and  Article 95(1) of the Constitution the President shall act in accordance with the advice of the Prime Minister. Mr Paul submits that since the President acted under the University Ordinance and as President acted in accordance with the advice of the Prime Minister, the question of show cause notice does not arise at all. We are reluctant to accept the above contention of Mr SR Paul in view of the fact that in the present case the President had not acted as President under Constitution or any other law, rather the President being Chancellor of the Rajshahi University had acted under the provisions of law. So, such an argument of Mr Paul is fallacious .

Mr Moudud Ahmed further submits that the power exercised by the Chancellor was not judiciously done. Rather the Chancellor had exercised his power injudiciously, arbitrarily and in a malafide manner. Since the power exercised by the Chancellor of the University is injudicious exercise and since with malafide intention to remove the petitioner the discretionary power has been exercised by him, the impugned order is absolutely malafide and, as such, the said order is liable to be struck down. In support of such malafide exercise of power Mr Moudud Ahmed has referred to the cases of Khandkar Mustaque Ahmed Vs. Moulvi Mainuddin Ahmed 39 DLR (AD), 1. It is his case that the Government has been changed in 1996 and being influenced by the party in power the President had issued the impugned order of removal of the petitioner from service. The Chancellor had not applied his independent mind before passing the impugned order and, as such, this order is absolutely illegal and without jurisdiction.

Judgment:

The court has heard the learned Advocates of both sides and perused the relevant papers and documents placed before us. It is easy to allege malafide, but it is difficult to prove the same. In the instant case though Mr Moudud Ahmed argued at length on the ground of malafide, yet it is found that such an allegation could not be proved by any materials on record and, as such, it is difficult to accept the above contention to Mr Moudud Ahmed. The Chancellor is the President of this country and this President was the Chief Justice of the Supreme Court for several years and he was also Acting President for about one year. Unless and until the malafide could be proved by material evidence on record, it is difficult to accept such a contention of malafide.

In view of the facts and circumstances of the case we find that the petitioner failed to establish the allegation of malafide and, as such, the contention of Mr Moudud Ahmed as regards exercising power injudiciously, arbitrarily and in malafide way by the Chancellor of the University cannot be accepted at all. Considering the facts and circumstances of the case and the provisions of law as discussed above and also considering the judicial pronouncement as referred to above, the court was of the view that the Chancellor of the University had acted in accordance with law and there is no malafide intention in passing the impugned order of relieving of the present petitioner from the post of Vice-Chancellor of the Rahshahi University. Since it appears to the court that the Chancellor of the University had acted within his jurisdiction, the impugned order does not call for any interference by this court. Inresult, this rule is discharged. But in the facts and circumstances of the case, the court passed no order as to cost.

Conclusion:

The Appointing Authority has power under section 16 of the General Clauses Act to suspend, dismiss and remover the Vice-Chancellor, although there is no specific provision in the Rajshahi University Act for removing the Vice-Chancellor of the University. The procedure laid down in section 5(3) of the Rajshahi University Act 1973 is not applicable to the Vice-Chancellor for if he is taken to be an officer of the University then as per section 9 of the said Act the Chancellor should also be deemed to be an officer of the University to be dealt with in accordance with the procedure laid down in section 55(3) of the same Act which is nothing but an absurdity.

Four students were killed in the campus and there was continuous disturbance in different halls amongst the students of different groups having different political bias. In such a situation the Chancellor had to take immediate action and, as such, the question of issuing show cause notice did not arise at all.

Writer : Md. Shawkat Alam Faisal; Student, Department of Law, University of Rajshahi