IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION
PRESENT:
Mr. Justice Md. Nuruzzaman
Mr. Justice Borhanuddin
Mr. Justice Md. Abu Zafor Siddique

CIVIL PETITION FOR LEAVE TO APPEAL NO.2413 OF 2022.

(From the judgment and order dated 08.09.2021 passed by the
High Court Division in Writ Petition No.10952 of 2019).
Director General, Bangladesh Agricultural : ..Petitioner.
Research Institute (BARI), Joydebpur, Gazipur.
-Versus-
Md. Mustafizur Rahman, Joint Director : ..Respondents.
(Administration)(current charge), (Dismissed),
Bangladesh Agricultural Research Institute
(BARI), Joydebpur, Gazipur and attached to
Bangladesh Agricultural Research Council
(BARC), Farmgate, Dhaka and others.

For the Petitioner. : Mr. A. M. Amin Uddin, Senior Advocate

(with Mr. Foyej Ahmed, Advocate)
instructed by Mr. Syed Mahbubar
Rahman, Advocate-on-Record.
For Respondent No.1. : Mr. Md. Khurshid Alam Khan, Senior
Advocate instructed by Ms.
Madhumalati Chowdhury Barua,
Advocate-on-record.
For Respondent Nos.2-6. : Not represented.
Date of Hearing. : The 21st May, 2023.
Date of Judgment. : The 21st May, 2023.

J U D G M E N T

Borhanuddin,J: This civil petition for leave to appeal is

directed against the judgment and order dated 08.09.2021

passed by the High Court Division in Writ Petition

No.10952 of 2019 making the Rule absolute with direction.

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Background of the civil petition is that the

respondent no.1 herein as petitioner preferred Writ

Petition No.10952 of 2019 impleading the petitioner and

proforma respondents herein as writ-respondents impugning

office order contained in ¯§viK bs-2A-779/2017/cÖkvmb/wWwc bs-345/13851

dated 28.06.2018 issued under the signature of the writ-

respondent no.2 Director General, Bangladesh Agricultural

Research Institute (BARI), Joydebpur, Gazipur dismissing

the petitioner from the service of Bangladesh

Agricultural Research Institute (BARI), Joydebpur,

Gazipur as Joint Director (Administration)(current

charge) according to the provisions of Regulation No.38(1)

Gi (L)(C) of Bangladesh Agricultural Research Institute

(Officer and Employee) Service Regulations, 2011

(hereinafter stated as ‘the Service Regulations, 2011’)

for negligence of duty and misappropriation of money

And also

Office order contained in ¯§viK bs-12.00.0000.062.04.006.19.352 dated

27.08.2019 issued by the respondent no.1 Secretary,

Ministry of Agriculture rejecting application of the

petitioner filed under Regulation 46 of the Service

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Regulations, 2011 and thereby maintained the office order

contained in Memo No.13851 dated 28.06.2018 issued by the

writ-respondent no.2.

Brief facts are that the writ-petitioner was

appointed as an Assistant Director and subsequently

promoted to the post of Senior Assistant Director

(Administration) and Deputy Director (Administration) and

lastly as Joint Director (Administration)(current charge)

of the BARI; Since 06.09.2015 the petitioner have been

performing the function as Joint Director in Bangladesh

Agricultural Research Council (BARC) but have been

drawing his monthly salary and other allowances from

BARI; After preparing draft of uniform Service Rules for

National Agricultural Research System (NARS) under the

Ministry of Agriculture and submitting the same to the

Executive Chairman, BARC, by a forwarding letter dated

10.02.2016, the petitioner filed an application to the

Secretary, Ministry of Agriculture with a prayer to

return him back from BARC to his parent organization BARI

as Joint Director (Administration)(current charge) by

cancelling the office order dated 03.09.2015; Thereafter

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the petitioner also submitted many applications to the

Secretary, Ministry of Agriculture, requesting to return

him back but without any response; In the financial year

2014-2015 and 2015-2016, the BARI authority according to

the decision of it’s Board of Management sanctioned money

for development work of Breeder Seed Production Centre

(BSPC), Debigonj, Panchaghar through Request for

Quotation (RFQ) under BARI; Mr. Abid Hossain, Chief

Scientific Officer was in-charge of BSPC, Debigonj,

Panchaghar and the development works were performed under

the management and supervision of said Abid Hossain;

After completion of the development works though RFQ, the

BARI authority brought the charge of allegations for

misconduct, negligence of duty and misappropriation of

money against Abid Hossain and the BARI authority made

inquiry by constituting inquiry committee; After holding

inquiry, the inquiry committee submitted a report to the

Director General, BARI and on the basis of inquiry report

BARI authority initiated departmental proceedings against

Abid Hossain and finally dismissed him from the service

of BARI as Chief Scientific Officer with a direction to

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deposit defalcated amount of Tk.1,91,34,189/- in the

Finance and Accounts Section of BARI; Against the

dismissal order said Abid Hossain filed Writ Petition

No.17332 of 2017 before the High Court Division and

obtained Rule Nisi alongwith an order of stay and the

writ petition is still pending for disposal; After a long

lapse of time, BARI authority brought same allegations

against the petitioner for misappropriation of money as

regards the work performed through 13 RFQ in BSPC,

Debigonj, Panchaghar; BARI authority by office order

dated 06.02.2017 constituted an inquiry committee

regarding the allegations of misappropriation of money

but the committee without any notice, inquiry or hearing

submitted a report to the Director General, BARI

recommending that the petitioner was involved with the

misappropriation of money at the development work; Writ-

respondent no.2 Director General, BARI by notice dated

03.08.2017 asked the petitioner to submit reply within 10

working days and accordingly the petitioner submitted

reply to the show cause notice on 24.08.2017 denying the

allegations and stating that he had no involvement with

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the misappropriation of money at the work performed in

the financial year 2014-2015 and 2015-2016 because at

that time he was not an officer of BSPC, Debigonj,

Panchaghar and he only performed his functions as

delegated by the Director General, BARI and the

allegations are totally false and baseless; Thereafter,

the BARI authority constituted another inquiry committee

for further inquiry and the inquiry officer by notice

dated 08.10.2017 asked the petitioner to appear before

the inquiry officer at his office by 11 A.M. of

12.10.2017 to make statement and accordingly, the

petitioner appeared and made his statement; Then the BARI

authority issued a notice under memo dated 27.11.2017

asking the petitioner to submit satisfactory reply within

7(seven) working days; The petitioner submitted reply on

06.12.2017 but the BARI authority without considering the

reply initiated departmental proceedings against him and

issued a statement of allegation vide office order dated

21.12.2017 asking the petitioner to submit written reply

within 10(ten) working days; The petitioner submitted

reply on 04.02.2018 to the Director General, BARI denying

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the allegations and prayed for discharging him from the

allegations; The BARI authority by office order dated

11.02.2018 appointed Dr. Madan Gopal Saha, Chief

Scientific Officer, Fruits Division, Horticulture

Research Centre, BARI, Joydebpur, Gazipur as an inquiry

officer who asked the petitioner to appear before him on

08.04.2018 and accordingly the petitioner appeared before

the inquiry officer; The inquiry officer asked the

question in writing regarding the allegations and the

petitioner answered to the question in writing; The BARI

authority issued second show cause notice on 25.04.2018

asking the petitioner to submit explanation within

7(seven) working days as to why major penalty should not

be imposed on him; The petitioner submitted reply on

28.05.208 denying the allegations and prayed for personal

hearing and the BARI authority heard him personally; The

BARI authority by office order dated 28.06.2018 under the

signature of respondent no.2 Director General, BARI,

dismissed the petitioner from the service of BARI,

Joydebpur, Gazipur as Joint Director (Administration)

(current charge) and presently attached to BARC,

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Farmgate, Dhaka according to the provisions of Regulation

38(1) Gi (L)(C) of the Service Regulations, 2011 for negligence

of duty and misappropriation of money which was served

upon the petitioner on 04.07.2018.

Against the order, the petitioner preferred Writ

Petition No.8898 of 2018 and obtained Rule Nisi but the

BARI being a corporate body having its own Regulation,

some of the well wishers advised the petitioner to prefer

appeal to the Secretary, Ministry of Agriculture as

appellate authority under Regulation 46 of the Service

Regulations, 2011 and upon the prayer of the petitioner

the Rule was discharged for non-prosecution vide order

dated 04.09.2018. The appeal filed by the petitioner was

returned back with endorsement “cÖvcK MÖnY bv Kivq cÎ †diZ”; Under

the compelling situation the petitioner again filed Writ

Petition No.15267 of 2018 before the High Court Division

challenging the order of dismissal and a Division Bench

of the High Court Division without issuing any Rule

disposed of the writ petition directing the respondent

no.1 Secretary, Ministry of Agriculture to dispose of the

appeal filed by the petitioner within 60(sixty) days from

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the date of receipt of the order dated 26.02.2019; After

obtaining the certified copy of the order passed in the

writ petition the petitioner submitted the same to the

writ-respondent no.1 but the respondent no.1 did not take

any step to dispose of the appeal filed by the petitioner

within the time prescribed by the High Court Division;

However, vide letter dated 25.07.2019 the writ-respondent

no.1 asked the petitioner to appear before him for

disposal of the appeal being numbered as Departmental

Appeal No.02 of 2019 and accordingly the petitioner

appeared by submitting written statement alongwith

related papers but the respondent no.1 rejected the

appeal by maintaining the order of dismissal.

Having aggrieved by and dissatisfied with the order,

the writ-petitioner filed instant writ petition and

obtained a Rule Nisi issued upon the writ-respondents to

show cause.

Writ-respondent no.2 Director General, BARI contested

the Rule by filing affidavit-in-opposition, stating

interalia, that after observing all the legal formalities

the petitioner was dismissed from service and after due

 10

consideration his appeal has been rejected maintaining

the order of dismissal as such the Rule is liable to be

discharged.

After contested hearing, a Division Bench of the High

Court Division on perusal of the relevant papers/

documents and applicable laws made the Rule absolute vide

judgment and order dated 08.09.2021, holding that:

“It also appears from Section 7 of the Act

that there are 11 members other than the
directors of the institute but the impugned
decision of the dismissal order was taken by
4 directors of the institute. It also
appears that under Section 9(3) of the Act
the quorum of the Board is at least 50% of
the board members.

Therefore, the decision taken by the Board

of Directors cannot be treated as board
decision due to quorum non-judice. Hence, we
are of the view that the impugned order of
dismissal was not issued by the appointing
authority.

It appears from the inquiry report that the

inquiry officer stated in his report that he
took some evidence of some officers of the
institute but nowhere in that report it was
mentioned that the examination of those
persons was held in presence of the
petitioner or the petitioner was given any
opportunity to cross-examine them. It is a
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settled principle of law that if any witness

is examined against the accused persons, it
must be held in presence of the delinquent
person and he has to be given the chance to
cross-examine those witnesses.

Therefore, the inquiry report cannot be said

to be an impartial inquiry report and since
the order of dismissal of the petitioner was
issued on the basis of that inquiry report,
it cannot be said to be a legal order of
dismissal.

Since the order of dismissal was not issued

after observing all legal formalities, the
order of the appellate authority’s decision
also cannot be sustained in the eye of law.

Considering the facts and circumstances of

the case, we find merit in the Rule.”
(Sic)

After above findings and observations, the High Court

Division directed the respondents in the following manner:

“The respondents are directed to reinstate

the petitioner to his original post as the
Deputy Director (Administration) in the
Bangladesh Agricultural Research Institute,
Joydebpur, Gazipur with continuity of
service and arrear salary and allowances.”

Having aggrieved, the writ-respondent no.2 as

petitioner preferred instant civil petition for leave to

appeal invoking Article 103 of the Constitution.

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Mr. A. M. Amin Uddin, learned Advocate submits that

the High Court Division erred in law in making a 3rd case

by holding that the writ-petitioner was not given chance

to cross-examine the witnesses during inquiry without

considering the fact that the writ-petitioner never asked

for cross-examine the witnesses and hence the judgment

and order is liable to be set-aside. He also submits that

the High Court Division erred in law as well as in facts

in not considering that allegations brought against the

writ-petitioner having been proved and as such he was

dismissed from service. He lastly submits that the

direction of the High Court Division to reinstate the

petitioner to his original post with continuity of

service and arrear salary and allowances as Deputy

Director (Administration) of BARI is against the principle

settled by this Division in various cases.

On the other hand Mr. Md. Khurshid Alam Khan, learned

Advocate supports the impugned judgment and order.

Regarding direction of the High Court Division, learned

Advocate submits that the writ-petitioner had already

retired from his service and as such there is no scope to

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reinstate him in the service. Under the present

circumstances he prays to modify the direction of the

High Court Division in the impugned judgment and order.

Heard the learned Advocate for the respective

parties. Perused the impugned judgment and order as well

as papers/documents contained in the paper book.

It appears that the service of the petitioner is

regulated by the evsjv‡`k K…wl M‡elYv Bbw÷wUDU (evwi) AvBb, 2017 and evsjv‡`k K…wl

M‡elYv Bbw÷wUDU (Kg©KZ©v I Kg©Pvix) PvKzwi cÖweavbgvjv, 2011. As per section 12 of

the Act, 2017 the provision for employment of BARI is

stated as under:

Ò12| Kg©Pvix wb‡qvM|- (1) Bbw÷wUDU Dnvi `vwqZ¡ myôzfv‡e m¤úv`‡bi Rb¨,
miKvi KZ…©K Aby‡gvw`Z mvsMVwbK KvVv‡gv mv‡c‡ÿ, cÖ‡qvRbxq msL¨K Kg©Pvix
wb‡qvM Kwi‡Z cvwi‡e|

(2) Kg©Pvix‡`i wb‡qvM Ges PvKwii kZ©vejx cÖweavb Øviv wba©vwiZ nB‡e|Ó

Under Regulation 2(10) of evsjv‡`k K…wl M‡elYv Bbw÷wUDU (Kg©KZ©v I

Kg©Pvix) PvKzwi cÖweavbgvjv, 2011 appointing authority means ‘Board’ or

the persons empowered by the ‘Board’ to appoint any

person to certain post. Section 7 of the Act, 2017

stipulates constitution of the ‘Board’ with total 11

members. But the decision of the dismissal order of the

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petitioner was taken by 4(four) members of the ‘Board’

though Section 9(3) of the Act, 2017 provides:

“9(3)| †ev‡W©i mfvi †Kviv‡gi Rb¨ Dnvi †gvU m`m¨ msL¨vi Ab~¨b A‡a©K m`‡m¨i
Dcw¯’wZi cÖ‡qvRb nB‡e, Z‡e g~jZwe mfvi †ÿ‡Î †Kvb †Kviv‡gi cÖ‡qvRb nB‡e
bv|”

So, we are in agreement with the findings of the High

Court Division that the impugned order of dismissal

cannot be treated as ‘Board’ decision due to quorum non-

judice.

The High Court Division also found from record that

the inquiry officer stated in his report that he took

some evidence of some officers of the institute but

nowhere in that report it was mentioned that the

examination of those persons was held in presence of the

petitioner or the petitioner was given any opportunity to

cross-examine them.

However in view of the present circumstances i.e. the

writ-petitioner had already retired from service, we find

rationality in the prayer of the learned Advocate for the

respondent no.1 regarding modification of the direction

in the impugned judgment and order.

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Accordingly, direction given by the High Court

Division vide impugned judgment and order dated

08.09.2021 is modified by deleting the following

sentences:

“The respondents are directed to reinstate

the petitioner to his original post as the
Deputy Director (Administration) in the
Bangladesh Agricultural Research Institute,
Joydebpur, Gazipur with continuity of
service and arrear salary and allowances.”

And replacing the same by inserting sentences quoted

hereinunder:

“The respondents are directed to pay the

petitioner’s arrear salary and allowances as
the Deputy Director (Administration) in the
Bangladesh Agricultural Research Institute,
Joydebpur, Gazipur in accordance with the
service Rule of the Bangladesh Agricultural
Research Institute (Officer and Employee)
Service Regulations, 2011 within 3(three)
months from the date of receipt a copy of
this judgment and order.”

All other portions of the impugned judgment and order

dated 08.09.2021 passed by the High Court Division in Writ

Petition No.10952 of 2019 shall remain as it is except the

above modification.
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Accordingly, the civil petition for leave to appeal

is disposed of.

No order as to costs.
J.

J.

J.
The 21st May, 2023.
Jamal/B.R./Words-*2644*