Facts of the Case
1.Employment Background: Farzana Khatun was recruited on 20.009.2015 as a steno typist cum computer operator in the Ministry of Liberation War Affairs, where she served diligently. Her service was confirmed as permanent in 2016 based on her unblemished record.

2. Personal Circumstances: In 2018, following the birth of her child, the petitioner faced significant personal hardships. Her child developed health complications, and subsequently, in 2020, the child tragically died in an accident. This loss, coupled with her own deteriorating health, led to extended periods of absence from work.

3. Leave Application: Due to these personal and medical issues, the petitioner applied for leave without pay for three months in 2018, which was granted. However, her recovery took longer, resulting in her inability to return to work in the anticipated timeframe. 27 | P a g e

4. Departmental Actions: In September 2020, the Ministry issued a complaint memo alleging ‘misconduct’ and ‘absconding’ without permission. Despite providing explanations and medical documentation, her responses were deemed unsatisfactory. A departmental inquiry was initiated, and a show-cause notice was issued.

5. Dismissal from Service: Based on the findings of the departmental inquiry, the petitioner was dismissed from service in December 2020 under Rule 7(11) of the Government Servants (Discipline & Appeal) Rules, 2018, on the ground of desertion.

6. Application for Revocation: After recovering from her illness and psychological distress, the petitioner applied for a review of her dismissal in September 2023, citing humanitarian grounds. This application was dismissed without consideration, leading the petitioner to file a writ petition under Article 102 of the Constitution of Bangladesh, challenging the dismissal.

Legal Issues:

1. Procedural Fairness: The primary legal issue centers around whether the dismissal procedure complied with the principles of natural justice and procedural fairness. The petitioner contends that the departmental proceedings did not afford her an adequate opportunity to defend herself, particularly given her medical condition and personal hardships.

2. Violation of Constitutional Rights: The petitioner asserts that the dismissal violated her fundamental rights under Articles 27, 31, and 42 of the Constitution of Bangladesh, which guarantee equality before the law, protection of law, and the right to property.

3. Humanitarian Considerations: The petitioner’s case raises the question of whether humanitarian considerations, such as family tragedy and personal illness, were adequately factored into the disciplinary process.

Relevant Legal Precedents:

1. Principles of Natural Justice: In Md. Shafiqur Rahman vs Bangladesh, the Supreme Court of Bangladesh emphasized that disciplinary proceedings must be conducted in compliance with the principles of natural justice. The accused must be given a fair opportunity to respond to charges, and decisions must be made impartially.

2. Right to Fair Treatment: In Abdul Halim vs. Government of Bangladesh, the court held that arbitrary dismissal without fair consideration of the employee’s explanation constitutes a violation of the right to fair treatment and protection of law under Article 31 of the Constitution.

3. Burden of Proof in Desertion Cases: In Md. Azim vs. Ministry of Home Affairs, the court highlighted that the burden of proof lies with the employer to establish that the employee willfully absented themselves from duty without sufficient cause or notice, especially in cases involving desertion charges.

Relevant Statutes and Circulars:

1 .The Government Servants (Discipline & Appeal) Rules, 2018:

•  Rule 2(D): Defines desertion as unauthorized absence from duty without sufficient cause or notice.
• Rule 7(11): Allows for dismissal in cases where desertion is established.

2. Article 102 of the Constitution of Bangladesh: Provides for judicial review of administrative actions, including those affecting fundamental rights such as the right to property and protection from arbitrary administrative decisions.

3. Ministry of Finance Circular on Government Service Regulations (2020): This circular reinforces the need for due process in disciplinary proceedings, emphasizing the need for humanitarian consideration in cases involving personal hardship.

Analysis:

1. Lack of Procedural Fairness: The petitioner’s dismissal appears to have been carried out without adequately considering her personal circumstances. The departmental inquiry may have violated the principles of natural justice by not giving her sufficient opportunity to defend herself, especially in light of her documented health issues and personal tragedies.

2. Humanitarian Grounds: Courts have consistently recognized that disciplinary authorities must consider extenuating circumstances when making decisions that could lead to dismissal. In this case, the Ministry’s failure to take into account the petitioner’s medical and family situation could be deemed arbitrary and unjust.

3. Violation of Constitutional Rights: The petitioner’s dismissal without a proper and fair trial could be seen as a violation of her constitutional rights under Articles 27, 31, and 42. The court may consider whether the dismissal was discriminatory and whether it unfairly deprived her of her right to livelihood and property.

Conclusion:

The petitioner has a strong case for seeking judicial review of her dismissal under Article 102 of the Constitution. The disciplinary proceedings appear to have been flawed in terms of procedural fairness, and the Ministry’s failure to consider her personal circumstances may constitute a violation of her constitutional rights. The court is likely to assess whether the principles of natural justice were adhered to and whether the dismissal was arbitrary and without lawful authority.

Potential Outcome:

If the court finds that the dismissal was arbitrary and in violation of the petitioner’s constitutional rights, it may issue a writ quashing the dismissal order and directing the Ministry to reinstate the petitioner. The court may also provide guidelines on how to handle similar cases involving humanitarian considerations in future disciplinary proceedings.

Recommendations:

1. Reinstatement: The petitioner may be reinstated to her position, subject to appropriate considerations of her current health and ability to perform her duties.

2. Amendment of Disciplinary Procedures: The Government may consider amending the Government Servants (Discipline & Appeal) Rules, 2018, to include explicit provisions for humanitarian grounds in cases of dismissal and desertion charges.

3. Training for Disciplinary Authorities: Regular training on the principles of natural justice and procedural fairness should be provided to ensure that future disciplinary proceedings are conducted in compliance with legal and constitutional safeguards.