Abdul Hakim vs Government of Bangladesh and Others
Citation: 67 DLR (2015) 83
Jurisdiction : Bangladesh
Petitioner: Abdul Hakim
Respondents: Government of Bangladesh and Others
Facts :
The Petitioner, Abdul Hakim, served as the Superintendent of a non-government Madrasah. His tenure was marked by two distinct legal episodes. In 2004, he was dismissed following an authorized disciplinary process. However, following a criminal acquittal, he was officially reinstated in 2009 by the Managing Committee. In February 2011, the Chairman of the Managing Committee (Respondent No. 10) issued a new dismissal order. This order was issued unilaterally by the Chairman without a fresh resolution or notice from the Managing Committee and without the mandatory prior approval of the Madrasah Education Board. The Chairman attempted to justify this new dismissal by relying on the “exhausted” Board approval from 2004. Consequently, the petitioner filed a writ petition under article 102 of the constitution.
Issues :
1. Whether the High Court Division has jurisdiction under Article 102 of the Constitution to review the actions of a Non-Government Madrasah Managing Committee.
2. Whether a Madrasah Chairman despite the institution’s designation as a Non-Government or Private entity performs functions “in connection with the affairs of the Republic” within the meaning of Article 102 of the Constitution.
3. Whether the 2011 dismissal was legally valid, given that it lacked fresh approval from the Madrasah Education Board?
Arguments :
Petitioner’s Arguments:
Counsel for the Petitioner established a compelling case for judicial review by arguing that the Functional and Public Element of education is a State responsibility under Articles 15(a) and 17 which renders the Madrasah’s actions reviewable regardless of its private source. This “In Connection with the Affairs of the Republic” argument was substantiated by the Ex-Exchequer Link, noting that since teachers are paid via the MPO system from the Republic’s treasury, their dismissal is a public matter rather than a private one. They mentioned the Datafin case’s functional test to strengthening the argument. Furthermore, as a Statutory Delegate operating under the 1978 Ordinance, the Madrasah is “woven into the fabric of the State,” a status reinforced by Section 30, which legally deems the Chairman a “Public Servant” incapable of performing purely private acts in his official capacity.
Respondent’s Arguments:
The Respondents argued that the Madrasah is a private entity. The relationship is a private contract of service, not a statutory one. They contended that a Writ does not lie against a private body. The Petitioner’s only remedy was a civil suit for damages. They argued the 2011 order was a valid continuation of the 2004 dispute, claiming the original Board sanction was still active and enforceable.
Decisions :
The Court adopted the “Functional Test” from the English precedent R v Panel on Take-overs and Mergers, ex parte Datafin plc (1987) rather than source test. Under this test, the court examines the nature of the functions performed, not the source of power. Even if a body is non-statutory or private, it will be amenable to judicial review if it performs public law functions. It held that if a body exercises public law functions or has a public law element, it is amenable to judicial review.
The Court explicitly linked the Madrasah’s functions to Article 102(2), finding that:
1. The Chairman performs functions in connection with the affairs of the Republic because education is a fundamental State duty.
2. The Chairman is a “person” as defined by the Constitution because the office is a repository of power granted by a State Ordinance.
The Court found the 2011 dismissal was marred by arbitrariness. The 2009 reinstatement acted as a supervening development that rendered the 2004 approval functus officio (expired). By skipping the mandatory, a committee resolution and Board approval, the Chairman acted without lawful authority. The dismissal order of 12.02.2011 was declared to have no legal effect. The Petitioner was ordered to be reinstated as Superintendent immediately “without let or hindrance.” The Madrasah Education Board was directed to revisit the facts and reach a fresh, lawful decision within 3 months. The Rule was disposed of with these mandatory directions.
Relevant Legal Principle:
Functional Test: The functional test focuses on the nature of the function performed, not the source of power. If a body performs public or governmental functions, it is subject to judicial review, even if it is non-statutory or private. Developed in R v Panel on Take-overs and Mergers, ex parte Datafin (1987).
Source Test: The source test determines amenability to judicial review based on the origin of the power exercised by a body. If the power comes from statute, Constitution, or prerogative, the body is subject to judicial review. If the power arises from private contract or consent, judicial review does not apply.
Relevant Laws:
- The Constitution of the People’s Republic of Bangladesh
- Article: 15(a), 17, 102(2)
Author :
1. Saraf Al Sakif
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