Administrative Tribunals Act (Vol-2)

Administrative Tribunal Act

Section 2 (aa) -Whether writ petition is maintainable filed by an employee of the Anti-Corruption Commission who challenge his compulsory retirement in writ jurisdiction of the High Court Division by passing the Administrative Tribunals.

The Appellate Division observed that provisions of the section 2 (aa) of the Administrative Tribunals Act that it shall be applicable for all the persons in the service of the Republic. The Act shall also be applicable to the employees of statutory bodies only when it is included in the Schedule to the Act. On careful scrutiny of the Schedule to the Act, it transpires that Anti-Corruption Commission is not included in it. Therefore, it cannot be said that the writ petition was not maintainable, as the Act was not applicable to the writ petitioner. Since, the Act was/is not applicable to the writ petitioner and he had no other equally efficacious remedy available in any other forum, provided by any law, the High Court Division rightly found the writ petition to be maintainable. In such view of the matter, the appeal fails. Accordingly, the appeal is dismissed without any order as to costs. Durnity Daman Commission Vs. Md. Humaiyun Kabir and others (Civil) 17 ALR (AD) 100- 103

Sections 2(aa) and 4

Anti-Corruption Commission is not included in the schedule to the Administrative Tribunal Act–

Provisions of the Act that it shall be applicable for all the persons in the service of the Republic. The Act shall also be applicable to the employees of statutory bodies only when it is included in the Schedule to the Act. On careful scrutiny of the Schedule to the Act, it transpires that Anti-Corruption Commission is not included in it. Therefore, it cannot be said that the writ petition was not maintainable, as the Act was not applicable to the writ petitioner. Since, the Act was/is not applicable to the writ petitioner and he had no other equally efficacious remedy available in any other forum, provided by any law, the High Court Division rightly found the writ petition to be maintainable. The appeal is dismissed without any order as to costs. …Durnity Daman Commission =VS= Humaiyun Kabir(Md), (Civil), 2019 (2) [7 LM (AD) 109]

Section 2, clause (b )

The decision of the Appellate Tribunal like that of the Tribunal is immune from any review under Article 102 because Article 117 also applies to the Appellate Tribunal. Mujibur Rahman vs Bangladesh 44 DLR (AD) 111

Sections 2 and 4

The Administrative Tribunal Act 1980 being a subsequent Act to the Industrial Relations Ordinance, 1969 and Government Servants' (Discipline and Appeal) Rules, 1985 the provisions of Administrative Tribunal Act shall have exclusive jurisdiction to determine the petitioner's application in respect of terms and conditions of his service. Mozibul Huq vs Chairman, 1st Labour Court and others 55 DLR (AD) 911 .

Sections 2(aa) and 4

The transferability or non-transferability of the appellant's service is a condition of his employment and the matter clearly comes within the purview of section 4 of the Administrative Tribunal Act, 1981. The Administrative Tribunal has the full power to give complete relief to an applicant including drawing up of contempt proceeding against an employer refusing to comply with its order. Abdul Mannan Talukder vs Bangladesh House Building Finance Corporation 42 DLR (AD) 104.

Sections 2(aa) and 4

Anti-Corruption Commission is not included in the schedule to the Administrative Tribunal Act–

Section 2, clause (b )

Sections 2 and 4

Sections 2(aa) and 4

Section 2, clause (b)- The decision of the Appellate Tribunal like that of the Tribunal is immune from any review under Article 102 because Article 117 also applies to the Appellate Tribunal. Mujibur Rahman vs Bangladesh 44 DLR (AD) 111.

Sections 2 and 4-The Administrative Tribunal Act 1980 being a subsequent Act to the Industrial Relations Ordinance, 1969 and Government Servants' (Discipline and Appeal) Rules, 1985 the provisions of Administrative Tribunal Act shall have exclusive jurisdiction to determine the petitioner's application in respect of terms and conditions of his service. Mozibul Huq va Chairman, Ist Labour Court and others 55 DLR (AD) 91

Sections 2(aa) and 4-The transferability or non-transferability of the appellant's service is a condition of his employment and the matter clearly comes within the purview of section 4 of the Administrative Tribunal Act, 1981. The Administrative Tribunal has the full power to give complete relief to an applicant including drawing up of contempt proceeding against an employer refusing to comply with its order. Abdul Mannan Talukder vs Bangladesh House Building Finance Corporation 42 DLR (AD) 104.

Sections 3 and 5-There is no command in the Constitution that the Tribunal or the Appellate Tribunal is substitute or co-equal to the High Court Division. It is left to the legislature, after establishing the Tribunals, to make necessary provisions in this regard for the carrying out of the functions of the tribunals. Afujibur Rahman vs Bangladesh 44 DLR (AD) 111

Sections 3 and 5

There is no command in the Constitution that the Tribunal or the Appellate Tribunal is substitute or co-equal to the High Court Division. It is left to the legislature, after establishing the Tribunals, to make necessary provisions in this regard for the carrying out of the functions of the tribunals. Mujibur Rahman vs Bangladesh 44 DLR (AD) 111.

Sections 3 and 5

Section 4

The Writ petition is not maintainable–

The Grameen Bank being in the list of enterprises contained in the schedule to the Administrative Tribunal Act, 1980, matters relating to service of the employees of the Grameen Bank would have to be referred to the Administrative Tribunal. As such any petition under the writ jurisdiction relating to service matters of the Grameen Bank is not maintainable. Challenging the vires of the regulations was merely a ploy to bring the matter within the scope of the writ jurisdiction. As it happens, the writ petitioners challenged the regulation Nos. 13.1 and 13.5 in Chapter-Three of the regulations which are not applicable to their cases. We are of the view that the challenge to the vires of regulations 13.1 and 13.5 of the Bidhimala was totally misconceived and that the Grameen Bank being an enterprise listed within the schedule of the Administrative Tribunal Act, 1980, the writ petitions were not maintainable. …Birendra Nath Ojha =VS= Government of Bangladesh, (Civil), 2019 (2) [7 LM (AD) 358]

Administrative Tribunal Act, 1980

(VII of 1981)

Section 4(2)- There was no judicial or departmental proceedings pending against the petitioner at the time of his retirement; even no proceedings either judicial or department had been initiated against him within a year of his retirement. The action taken by the authority stopping the pay of the pension to the petitioner has no legal basis. Md Sanaullah, (Retired) vs Bangladesh (Civil) 75 DLR (AD) 89

Section 4(2)

Under the second proviso to section 4(2) of the Administrative Tribunal Act, after the expiry of two months from the date of the filing of the departmental appeal it was deemed to have been disallowed, and the limitation period started to run from that date, from which date the A.T. petition had to be filed within six months.

By reading section 4 of the Act, the Appellate Division is left with no doubt that the interpretation of that section as provided by the Administrative Appellate Tribunal was unimpeachable. It thus follows that the Administrative Tribunal fell in error in assuming jurisdiction in the matter. From that point of view, as the Appellate Tribunal rightly found the Tribunal's decision was ultimately correct, as the position would have been the same if it refused to admit jurisdiction. The Appellate Division finds no merit in the leave petition which is accordingly dismissed. Md. Aminur Rahman -Vs.- Government of Bangladesh and others (Civil), 22 ALR (AD) 192

Section 4

The appellants could not controvert the claim of the respondent, the Administrative Tribunal on proper appreciation of the facts arrived at cor- rect findings in this regard.......(17)

Government of Bangladesh vs. Md. Arifuddin (Obaidul Hassana J) (Civil) 20 ADC 285

আপিলকারীরা প্রতিপক্ষের দাবি খণ্ডন করতে পারেনি, প্রশাসনিক ট্রাইব্যুনাল যথাযথভাবে ঘটনা বিবেচনা করে এ বিষয়ে সঠিক সিদ্ধান্তে উপনীত হয়েছে.......(১৭)

বাংলাদেশ সরকার বনাম মোঃ আরিফউদ্দিন (ওবায়দুল হাসান জ) (দেওয়ানী) ২০ এডিসি ২৮৫

Section 4(2) of the Administrative Tribunal Act, 1981: No punishment was awarded against the petitioner pursuant to any departmental proceeding. And, by no means, the audit objection raised by the Audit and Accounts Officer of the Railpath Audit Adhidaptor, can be treated as punishment. More so, as per the own statement of the petitioner. his application for settling the audit objection remained undisposed till the filing of the application before the Tribunal (Para-12, Mr. Justice Md. Abdul Wahhab Miah).

Elahi Box Sardar (Md) Vs. Government of Bangladesh & others: 67 DLR(AD)127

Section 4- If they fail to get proper redress from the appellants, the writ-petitioner will be at liberty to go to the administrative tribunal, which can decide any question relating to the terms and conditions of the service including the question of malafide in preparation of the gradation list. Bangladesh Krishi Bank vs Arun Chandra Banik (Civil) 71 DLR (AD) 1 Section 4-The Grameen Bank being in the list of enterprises contained in the schedule to the Act, matters relating to service of the employees of the Grameen Bank would have to be referred to the Tribunal. Any petition under the writ juris- diction relating to service matters of the Grameen Bank is not maintainable. Challenging the vires of the regulations was merely a ploy to bring the matter within the scope of the writ jurisdiction. Birendra Nath Ojha vs Government of Bangla- desh (Civil) 71 DLR (AD) 381

Sections 4, 6 and 6A of the Administrative Tribunal Act, 1980: Unless the allegations brought against the respondent are inquired into, it is difficult to believe that the allegations brought against him out of a conspiracy at the instance of a vested quarter. Therefore, the censure made by the appellant against the respondent cannot be said to be legal. (Para-11, Mr. Justice Syed Mahmud Hossain). Ref: 1964 AC 40.. Compulsory Retirement from service: Government of Bangladesh, represented by the Secretary Ministry of Establishment, Dhaka Vs. SM Raiz Uddin Ahmed: 68 DLR(AD)154

A departmental proceeding was started for allegation of misconduct against the respondent, a police officer and ultimately by an order dated 10.05.2001 he was compulsorily retired from service. It appears that the order of compulsory retirement of the respondent was passed without supplying a copy of the enquiry report. As such, the Administrative Appellate Tribunal rightly affirmed the judgment and order passed by the Administrative Tribunal, declaring the order of compulsory retirement as illegal while as upheld by the Appellate Division. (Para-2 & 5, Mr. Justice A.B.M. Khairul Haque). Defects in the departmental inquiry and proceedings: Government of Bangladesh & others Vs. Md. Alauddin: 7 ADC 641

In the instant case we find that the allegations against the respondent are very serious in nature. He is alleged to have been part of a group of 3 Constables who were involved in hijacking and extortion.. It is our view that such a serious allegation regarding a member of the disciplined force, who was entrusted with protection of the public and who allegedly himself became the perpetrator against the public, cannot be set at naught for technical defects in the departmental inquiry and proceedings. (Para-8, Mr. Justice Muhammad Imman Ali). Ref: 51 DLR(AD)145: Bangladesh & another Vs. Md. Bazlur Rashid: 6 XP(AD)109

Defence Plea: admitted the guilt

Section 4(1) of the Administrative Tribunals Act, 1980: When the accused admitted his guilt and took the plea that he committed the offence under the order of his superior. Such a defence is not permissible in law. (Para-7, Mr. Justice Shah Abu Nayeem Mominur Rahman): Md. Mominul Islam Vs. The Government of the People's Republic of Bangladesh: 15 MLR(AD)474

Gratuitous relief: Section 4 of the Administrative Tribunal Act, 1981: The Tribunal cannot grant gratuitous relief and if such a relief is granted the same should be construed as relief granted in excess of jurisdiction. The Act has not provided for any such authority to the Tribunal to give such a relief as has been given to the authority in the present case. (Para-12, Hon'ble Chief Justice Mahmudul Amin Chowdhury). Ref: 45 DLR(AD)106: Government of Bangladesh & others Vs. Md. Anwarul Islam: 62 DLR(AD)273-14 MLR(AD)283

Jurisdiction of the Tribunal: Section 4(2) of the Administrative Tribunal Act, 1980: The Administrative Tribunal is vested with the exclusive jurisdiction under Section 4(1) of the Administrative Tribunal Act, 1980 to hear and determine applications made by any person in the service of Republic or statutory public authority as specified in the schedule in respect of the terms and conditions of his service including pension rights or in respect of any action taken in relation to him in the service. (Para-11, Mr. Justice Surendra Kumar Sinha): Government of Bangladesh represented by the Secretary, Ministry of Food & others Vs. A.B.M. Siddique Mia: 15 MLR(AD)460

Section 4- Section 4 2nd proviso to sub-section (2) of section 4 of the Act, 1980 read with the period of limitation as mentioned in the 3rd proviso.

It is true that the limitation is a mixed question of fact and law and that should be taken in the Court of first instance, but there may be cases in which no fact need be gone into and if it is found from the facts stated by the petitioner that a case is filed beyond the period of limitation, particularly in a case under the special statute like the instant one, then there is no any legal bar to raise the point of limitation even at the appellate stage.

The Appellate Division in a number of cases earlier decided that it is the 2nd proviso to sub-section (2) of section 4 of the Act, 1980 read with the period of limitation as mentioned in the 3rd proviso, i.e. two months plus six months which shall govern the period of limitation in filing an application before the Administrative Tribunal and a case filed before the Administrative Tribunal after the expiry of the said period (two months + six months) shall be barred by limitation. The Appellate Division does not see any reason to review the said decision of the Appellate Division. Therefore, the Appellate Division finds nothing wrong with the view taken by the Appellate Tribunal in holding that the case filed before the Administrative Tribunal was barred by limitation. Mr. Sirajul Haque also tried to argue another point that limitation is a mixed question of fact and law. The opposite parties (before the Ad- ministrative Tribunal) did not raise any objection before the Administrative Tribunal about the limitation in filing the case before it, therefore, at the appellate stage, they were not entitled to take the said point. It is true that the limitation is a mixed question of fact and law and that should be taken in the Court of first instance, but there may be cases in which no fact need be gone into and if it is found from the facts stated by the petitioner that a case is filed beyond the period of limitation, particularly in a case under the special statute like the instant one, then The Appellate Division does not find any legal bar to raise the point of limitation even at the appellate stage. When admittedly the case in hand was filed before the Administrative Tribunal long after the period of six months after the expiry of the period of two months from the date of filing the departmental appeal as provided in the second proviso to sub-section (2) of section 4 of the Act, the opposite parties appellant could very much raise the point of limitation in the appeal and the Appellate Tribunal rightly entertained the same and decided the point against the petitioner. In view of the above, the Appellate Division finds no merit in the leave petitions and accordingly, both the petitions are dismissed. A.K.M. Jalaluddin Ahmed -Vs- Bangladesh, represented by the Secretary, Ministry of Education and others (Civil) 18 ALR (AD) 86-86

Section 4 read with Limitation Act [IX of 1908] Sections 14 and 29 (2) -While computing the period of limitation in filing an application before the Administrative Tribunal a person can not have the benefit of Section 14 of the Limitation Act. The Appellate Division held that the limitation in regard to cases under Administrative Tribunals Act, 1980 has to be calculated applying the procedures described in the Act itself and there is very little scope, if not no scope, to deviate from the strict rule of limitation embodied in the Act while dealing with Administrative Tribunals cases. Md. Sirajul Islam Khan. Vs.- Bangladesh Bank, Dhaka and others (Civil) 17 ALR (AD) 65-68 Section 4 (2) - The case before Administrative Tribunal must be presented within six months of the decision of the appellate authority, and if the authority does not make a decision on the employee's appeal within two months of the appeal being filed, it will be deemed to have been disallowed and the case before the Administrative Tribunal must be filed within a period of six months therefrom, i.e. within eight months from the date of filing the appeal. The Appellate Division observed that in the facts of the instant case, it appears that the appellant filed his appeal before the appellate authority therefore, on 13.12.1998 his appeal would be deemed to have been disallowed and the appellant was required by law to file his case before the Administrative Tribunal by 12.06.1999. The records show that the appellant filed the case before the Administrative Tribunal on 08.02.2000 which is beyond the period of limitation provided by the Act, 1980. Anwar Hossain Biswas -Vs. Government of Bangladesh and others (Civil) 16 ALR (AD) 121-125 Section 4(2) - Under the second proviso section to 4(2) of the Administrative Tribunal Act, after the expiry of two months from the date of the filing of the departmental appeal it was deemed to have been disallowed, and the limitation period started to run from that date, from which date the A.T. petition had to be filed within six months. By reading section 4 of the Act, the Appellate Division is left with no doubt that the interpretation of that section as provided by the Administrative Appellate Tribunal was unimpeachable. It thus follows that the Administrative Tribunal fell in error in assuming jurisdiction in the matter. From that point of view, as the Appellate Tribunal rightly found the Tribunal's decision was ultimately correct, as the position would have been the same if it refused to admit jurisdiction. The Appellate Division finds no merit in the leave petition which is accordingly dismissed. Md. Aminur Rahman -Vs.- Government of Bangladesh and others (Civil) 22 ALR (AD) 192 Section 4(2) -The Appellate Division held that the contents in the body of the absorption letter clearly show that the Chief Inspector (current charge) of Factories and Establishment issued the letter of absorption to the appellant pursuant to the Memorandum issued by the Ministry of Establishment and the Ministry of Labour and Employment and surely there was no such condition in the Memorandum issued by the Ministries and had there been any such thing in the Memorandum that would have been mentioned or reflected in the body of the absorption letter. The condition that the seniority of the petitioner would be counted from the date of joining the absorbed post of Labour Inspector (General) was mentioned at serial No. 10 under the head "অনুলিপি অবগতি ও প্রয়োজনীয় ব্যবস্থা গ্রহণের জন্য প্রেরণ করা হইল:-" and that condition reads as follows. ১.--- ২.----- ৩.---- 8.----- ৫.---- ৬—-- ৭.----- ৮-৯.----- ১০। জনাব মোঃ মাহমুদুল হক, ৫৮/এ, আজিমপুর সরকারী আবাসন, ঢাকা-১২০৫। জনশক্তি পরিকল্পনা কেন্দ্রে তাহার চাকুরী নন গেজেটেড পদে ছিল বিধায় শ্রম পরিদর্শক (সাধারণ গেজেটেড) পদে যে দিন, তারিখ হইতে তাহার বর্তমান পদে জ্যেষ্ঠতা গন্য করা হইবে। তাহার পূর্বগণের চাকুরীর নথি, জীবন ইত্যাদি সত্ত্বর এই দপ্তরে দাখিল করার জন্য নির্দেশ দেওয়া হইল।" So, the condition that the seniority of the appellant would be counted from the date of his joining the absorbed post could in no way be accepted or read as a term of the absorption. Reading the absorption letter as a whole, it prima-facie appears to the Appellate Division that the condition as mentioned at serial No. 10 quoted above was nothing but the fanciful desire of the Inspector of Factories and Establishment having no backing of law. The Appellate Division has looked into the provisions of the Ordinance, 1985, but the Appellate Division could not find anything there to put a condition in the absorption letter as quoted hereinbefore. The learned Deputy Attorney General also failed to locate any provision of law which authorized the Chief Inspector (current charge), Factories and Establishment to incorporate or add such a condition in the absorption letter. The Appellate Division is further obliged to state that the condition that the seniority of the appellant would be counted from the date of his joining the absorbed post was totally against the provision of the Ordinance, 1985 and the Memorandum issued by the Establishment Division, Cabinet Secretariat and the Memorandum issued by the Ministry of Establishment dated 20.03.1979 and 16.06.1996 respectively. Md. Mahmudul Haque -Vs.- Government of Bangladesh and others (Civil) 20 ALR (AD) 109-118

Section 4

We note that the Appellate Tribunal found that there was no dispute that the petitioner (respondent herein) cross-examined some other P.Ws. We also note from the papers that the respondent was given personal hearing as requested by him and he was given the opportunity to respond to the allegations against him. It appears that the Appellate Tribunal shifted the burden on to the appellant to prove that the respondent was given the opportunity to cross-examine those witnesses whose evidence led to his finding of guilt. When the delinquent employee alleges any defect in the proceeding then it is his burden to prove such allegation. In the face of admission that some of the P.Ws were cross-examined, we cannot accept that the respondent did not get the opportunity to cross-examine the other P.Ws. The respondent was compulsorily retired, which means that he will get all his employment benefits up to the date of the order of his retirement. We find that the decision of the Appellate Tribunal is not sustainable. Accordingly, the appeal is allowed, without, however, any order as to costs. The impugned order of the Administrative Appellate Tribunal is set aside. The order of the Administrative Tribunal is restored. .....Government of Bangladesh =VS= Abdul Isa Md. Nizamul Islam, (Civil), 2018 (2) [5 LM (AD) 70]

Section 4(2), 13

Prayed for a declaration that the orders dated 16-2-79 and 21-12-81. are void, illegal, without jurisdiction, mala fide, inoperative and without lawful authority and that the plaintiff (appellant) is still in service in the eye of law. It is obvious that section 13 of Act No. VII of 1981 has no manner of application of the facts and circumstances of the present case. The decree of the Civil Court having already been executed after the appellant was re-instated in his service, his subsequent prayer for promotion, status, scale of pay, arrear pay and other benefits do not fall in the category of any pending suit, case, application and appeal pending immediately before the commencement of Act No. VII of 1981. There are new causes of action and the appellant has correctly invoked the jurisdiction of the Administrative Tribunal for obtaining relief in the matters prayed for. The two Tribunals apparently took a wrong view that these reliefs are anciliary and consequential reliefs emanting from the decree of the Civil Court and have wrongly refrained from exercising their jurisdiction in the matter. The Administrative Tribunal will now hear the appellant's petition on merit.

Khandaker Golam Najib vs. Chairman, Board of Directors, Agrani Bank, Head Office, Dhaka and others (Mustafa Kamal J) (Civil) 4 ADC 317

Section 4(2), (92)

Section 4(2) of the Administrative Tribunals Act says that a persons may make an application to the Tribunal if he is aggrieved by any order, decision or action of the authority, and the second proviso thereto prescribes a period of 6 months from the date of such order decision for action to file such an application. Md. Badsha Miah vs Sonali Bank (Syed J. R. Mudassir Husain CJ)(Civil) 2 ADC 41

Section 4(2)

Whereas the case filed by the respondent before the Administrative Tribunal on 28.9.1997. So, the question that the case was barred because the respondent did not file any review before the President in respect of the order of his dismissal from service does not arise. Banlgadesh vs Dr. Md. Tofajjel Hossain (Md. Hamidul Haque J)(Civil) 2ADC 215

Section 4(2), 13

The decree of the civil court having already been executed after the appellant was re-instated in his service, his subsequent prayer for promotion, status, scale of pay, arrear pay and other benefits do not fall in the category of any pending suit, case, application and appeal pending immediately before the commencement of the said Act. Khandaker Golam Najib vs Chairman, Agrani Bank (Mustafa Kamal J)(Civil) 2 ADC 323

AAT was in Serious error in modifying the order of dismissal in the manner as stated hereinbefore upon importing the concept of proportionality which has no application in the instant case Agrani Bank represented by the Chairman. Board of Director Agrani Bank vs Khandaker Badurdduza (Md. Ruhul Amin J) (Civil) IADC 81

Administrative Tribunal

Additional charge in a departmental proceeding

14 MLR(AD)298-20 BLT(AD)68: Bangladesh Krishi Bank & others Vs. Md. Saidul Haque: Regulation 47 of the Bangladesh Krishi Bank Employees Service Regulations, 1988: In'a departmental proceeding when additional charge are brought, the accused must be given opportunity to show cause against those charge. Otherwise the enquiry proceedings shall be vitiated (দূষিত) and the penalty imposed therein shall be illegal. When criminal case and departmental proceedings are started on the selfsame matter, the imposition of penalty in the departmental proceedings shall be held up till disposal of the criminal case. In the instant case there had been gross violation of the mandatory requirement of law which rendered the penalty of dismissal from service not sustainable in the eye of law. (Para-7, Mr. Justice Md. Tafazzul Islam). Ref: 27 DLR 428.

Appointment of Inquiry Officer

6 ADC 541: Sonali Bank Limited & another Vs. Md. Abdul Aziz & another: Section 4(2) & 6(2) of the Administrative Tribunals Act, 1980 read with Regulations 11 & 13 of the Sonali Bank (Employees) Service Regulations, 1981: The departmental proceeding of the Bank being held in violation of the provision of the Service Regulations of the Sonali Bank cannot be treated as legal or valid, inasmuch as (যেহেতু) the respondent employee in the instant case has been denied his right to raise any objection against the appointment of the inquiry officer, and that the show cause notice as framed and issued and the appointment of inquiry officer as made, were not in accordance with the provisions of Regulation Nos. 11 and 13 of the Service Regulations of the Bank and that the Bank could not place any material, either before the Tribunal or the Appellate Tribunal to show that the appointment of the inquiry officer was made following the provision of Regulation 13 of the Service Regulations, 1981. (Para-5, Mr. Justice Shah Abu Nayeem Mominur Rahman).

Section 4(2),

The appellant's submission that the plea of defect of party was taken after 6 years at the appellate stage does not hold good. The respondents took this objection at the first available opportunity. It is therefore difficult to say that the conduct of the respondents was such that the appellant deserves a differential treatment. On going through the said Concise Statement, on the other hand, our view is otherwise. The conduct of the appellant himself appears to depressing. He paid no heed on the respondents' written Mohammed Abdul Naim Chairman, Sonali statement, vs The Bank, Dhaka (Mustafa Kamal J) (Civil) 2 ADC 369

Section 4(2)

Promotion–

The Tribunal also declared that the appellant was entitled to his seniority on the basis of his past service with all “attendant benefits towards promotion from the date of which his juniors” were promoted along with increments, time scale, fixation of pay etc with arrears. Against the decision of the Administrative Tribunal.

We are constrained to hold that the Administrative Appellate Tribunal acted illegally in allowing the appeal, setting aside those of the Administrative Tribunal and we find merit in the appeal and accordingly, the same is allowed. The decision of the Administrative Appellate Tribunal is set aside and those of the Administrative Tribunal are restored. .....Md. Mahmudul Haque =VS= Government of Bangladesh & others, (Civil), 2016-[1 LM (AD) 123]

Section 4(2)

The Administrative Appellate Tribunal came into a finding that while passing the impugned decision the Administrative Tribunal failed to consider that the departmental proceeding against respondent No.1 was not initiated and disposed of legally and that the Administrative Tribunal arrived at a wrong finding in disallowing the case causing serious miscarriage of justice. The findings arrived at and the decision made by the Administrative Appellate Tribunal having been based on proper appreciation of law and fact do not call for interference. .....Janata Bank & another =VS= Md. Minhaj Uddin Ahmed & another, (Civil), 2016-[1 LM (AD) 178]

Section 4(2)

The termination of the appellant was a “termination simpliciter” without attaching any stigma and that in fact no departmental proceedings were brought against the appellant in spite of serious allegations against him. In such a situation it would be illogical to sustain the order of the Administrative Tribunal thereby reinstating the appellant in service on an unwilling employer. Admittedly, the appellant was entitled to get 3 months’ salary in lieu of notice. The Administrative Appellate Tribunal, therefore, rightly allowed the appeal in part setting aside the judgement of the Administrative Tribunal. The respondent Grameen Bank is hereby directed to pay the appellant Md. Azizul Haque salary for two years at the rate which was paid to him as on the date of his termination of service. With the above direction, the appeal is disposed of, without, however, any order as to costs. .....Azizul Haque(Md.) =VS= Grameen Bank, (Civil), 2018 (2) [5 LM (AD) 51]

Administrative Appellate Tribunal relied on a document which had no evidentiary value in the eye of law Secretary, Ministry of Defence & ors. vs Abdul Mannan Lasker (Md. Tafazzul Islam J) (Civil) I ADC 555

Section 4(2)

Inspite of some amount of dubiousness on the part of the Government as regards the absorption of the respondent we have thought it just and proper to extend the benefit of doubt in favour of the respondent, for otherwise it will amount to endorsing a double standard on the part of executive Government giving a benefit to a particular person and denying the same to another although they are otherwise equal. The Director General, NSI vs Sultan Ahmed (A.T.M. Afzal CJ) 1 ADC 596

Section 4(1)

Thereupon in making the order for the reinstatement of the respondent the Tribunal did not commit any illegality as it was within the jurisdiction of the Tribunals to see the proportionality of the sentence in the given facts of the instant case. Govt. BSMD Ganabhaban Comples, Sher-E-Bangla Nagar, Dhaka Md. Afzal Hossain Ansari (Md Ruhul Amin J) (Civil) 1 ADC 492

Section 4(2), 6

Limitation–

The finding of the Administrative Tribunal in respect of limitation in filing the cases is wrong and contrary to the provision of the 2nd proviso to section 4(2) of the Act. The respondents were dismissed from service following the procedures as contained in Government Servants (Discipline and Appeal) Rules, 1985 and as such the Administrative Appellate Tribunal erred in law in dismissing the appeals, which, however, did not consider the question of limitation at all. We find substance in all the appeals. Accordingly, these appeals are allowed and impugned decision made by the Administrative Appellate Tribunal affirming the decision of the Administrative Tribunal is set aside. .....Ministry of Finance =VS= Md. Mominur Rahman, (Civil), 2018 (2) [5 LM (AD) 335]

Section 4

Considering the legal position the Administrative:Tribunal found that the case was filed well within time. The Administrative Appellate Tribunal also came to the finding that the respondent had option to move the Director-General under Rule 1725 of the Railway Establishment Code which has been accordingly done and the case has been filed within six months from the order passed by the Director-General. No illegality and wrong has been committed by the Tribunals below. Director-General/ Secretary, Railway Division and others vs Md Elahi Baksha 6 BLC (AD) 94.

Section 4

Transfer of a trade union leader—Plea of, protection by a person in the service of a statutory public authority—Provisions of I.R.O. empowering Labour Court to give protection to a trade union leader against his harassment by transfer are not applicable to those leaders who are working in statutory public authorities like the H.B.F.C.—The basic status of the appellant (trade union leader) is that he is a worker of the Corporation and transferability or non-transferability of his service is a condition of his employment and the matter clearly comes within the purview of the Administrative Tribunal which has the full power to give complete relief to applicant. The right of a trade union leader in such a case must yield to the supervening provision of the Constitution—Industrial Relations Ordinance, 1969 (XXIIII of 1969) S. 47B Constitution of Bangladesh, 1972, Article 117(2). Abdul Mannan Talukder Vs. Bangladesh House Building Finance Corporation and another; 10 BLD (AD) 71.

Section 4(1)

Mr. Mahbubey Alam, learned Attorney General appearing for the petitioners, has taken us to the judgments and argued that since the appeals had arisen out of the same judgment, it was incumbent upon the Administrative Appellate Tribunal to hear and dispose of both the appeals analogously in order to avoid conflicting decisions, and as a matter of fact, it had delivered two conflicting judgments, which escaped the notice of this Division while disposing of the leave petitions and the same is an error of law apparent on the face of the record. It is further contended that the Administrative Tribunal while maintaining the punishment of the respondent came to a definite finding that some of the charges brought against the respondent had been satisfactorily proved but the Administrative Appellate Tribunal without reversing those findings allowed the appeal preferred by the respondent mechanically. In view of the above, it is contended that the judgments of this Division deserve reconsideration for ends of justice. Government vs. Md Masud Miah (S.K. Sin ha J) (Civil) 10 ADC 60

Government vs. Md Masud Miah 10 ADC 60

Section 4(1)

Mr. Mahbubcy Alam, learned Attorney General appearing for the petitioners, has taken us to the judgments and argued that since the appeals had arisen out of the same judgment, it was incumbent upon the Administrative Appellate Tribunal to hear and dispose of both the appeals analogously in order to avoid conflicting decisions, and as a matter of fact, it had delivered two conflicting judgments, which escaped the notice of this Division while disposing of the leave petitions and the same is an error of law apparent on the face of the record. It is further contended that the Administrative Tribunal while maintaining the punishment of the respondent came to a definite finding that some of the charges brought against the respondent had been satisfactorily proved but the Administrative Appellate Tribunal without reversing those findings allowed the appeal preferred by the respondent mechanically. In view of the above, it is contended that the judgments of this Division deserve reconsideration for ends of justice. Government vs. Md Masud Miah (S.K. Sin ha J) (Civil) 10 ADC 60

Section 4(2)

The Code of Civil Procedure

Order XXI Rule 37 and 38 r/w

Administrative Tribunal Act, 1980

Section 4(2)

Compulsory retirement with giving all the due service benefits–– Since the Agrani Bank was not complying with the order of the Administrative Appellate Tribunal, the respondent filed Miscellaneous A.T. Case No. 8 of 2008 (Execution) under order XXI Rule 37 and 38 of the Code of Civil Procedure. Upon hearing the parties the application was allowed by order dated 17.01.2012 directing the [07]concerned authorities to pay all the dues to the respondent up to 26.10.2008, the date on which he was reinstated. This order was upheld by the Administrative Appellate Tribunal by the impugned judgement dated 12.02.2013. ––It is patently clear that Agrani Bank Limited has not complied with the earlier order passed by the Administrative Tribunal which was upheld by the Administrative Appellate Tribunal. That order, having not been challenged, is binding upon the Agrani Bank Limited. .....Agrani Bank Limited =VS= Md. Salek Uddin, (Civil), 2023(1) [14 LM (AD) 179]

Section 4

Petitioners have not been given· any right· under the Act to move the Tribunal to implement the judgment of the Appellate Division and the Administrative Appellate Tribunal given in respect of a different person who filed cases not in a representative capacity or in the nature of a group or class action but as an individual applicant. Hajizuddin (Md) and three others vs Bangladesh Bank, represented by Governor and others 49 DLR (AD) 147.

Section 4

In altering the punishment of compulsory retirement to stoppage of 3 annual increments for 3 years under sub-rule 2(c) of rule 4 of the Rules and thereupon in making the order for the reinstatement of the respondent the Tribunals did not commit any illegality as it was within the jurisdiction of the Tribunals to see the proportionality of the sentence in the given facts of the case. Government of Bangladesh and others vs Md Afzal Hossain Ansari 55 DLR (AD) 65.

Section 4(2)

Constitution of Bangladesh, 1972

Article 117(1), 117(2)

Administrative Tribunal Act, 1980

Section 4(2)

The Administrative Tribunal cannot direct the Government to amend the law as well as it cannot direct the Government to give promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer because the promotion is not a right–– It appears from words used in the order of the High Court Division that the Administrative Tribunal by its decision directed the concerned authority to take steps by amending respective “Bidhimala” for giving promotion of the writ petitioners in the post of Kanungo/ Sub-Assistant Settlement Officer. In fact, by the impugned order, the Administrative Tribunal directed to amend the law in giving positive relief of the writ petitioners which can not be allowed. The Administrative Tribunal cannot direct the Government to amend the law as well as it cannot direct the Government to give promotion of the writ petitioners in the post of Kanungo/ Sub- Assistant Settlement Officer because the promotion is not a right.–– The writ respondents may consider the case of writ petitioners following the provisions of law, if they are at all entitled. .....Rabiul Karim(Md.) =VS= Golam Morshed Khan, (Civil), 2022(2) [13 LM (AD) 272]

Section 4

Period of limitation in filing an application before the Administrative Tribunal– This Court in a number of cases earlier decided that it is the 2nd proviso to sub-section (2) of section 4 of the Act, 1980 read with the period of limitation as mentioned in the 3rd proviso, i.e. two months plus six months which shall govern the period of limitation in filing an application before the Administrative Tribunal and a case filed before the Administrative Tribunal after the expiry of the said period (two months + six months) shall be barred by limitation.

We find nothing wrong with the view taken by the Appellate Tribunal that the case filed before the Administrative Tribunal was barred by limitation.

When admittedly, the case in hand was filed before the Administrative Tribunal long after the period of six months after the expiry of the period of two months from the date of filing the departmental appeal as provided in the second proviso to sub-section (2) of section 4 of the Act, the opposite parties appellant could very much raise the point of limitation in the appeal and the Appellate Tribunal rightly entertained the same, and decided the point against the petitioner. We find no merit in the leave petitions and accordingly, both the petitions are dismissed. …AKM Jalaluddin Ahmed =VS= Ministry of Education, BD, (Civil), 2020 (1) [8 LM (AD) 335]

Section 4(1) and 4(2)

The Administrative Tribunal is vested with the exclusive jurisdiction under section 4(1) of the Administrative Tribunal Act, 1980 to hear and determine applications made by any person in the service of Republic or statutory public authority as specified in the schedule in respect of the terms and conditions of his service including pension rights or in respect of any action taken in relation to him in the service as aforesaid. The proviso to sub section (2) of section 4 provides that "no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being inforce relating to the terms and conditions of the service of the Republic or of any statutory public authority or the discipline of that service could be made to the Administrative Tribunal until such higher authority has taken a decision on the matter". The applicant must be an aggrieved person by any order or decision or action taken by the authority which confers the powers and jurisdiction of the higher Administrative Tribunal subject to fulfilment of two conditions as provided in the proviso.

The Administrative Tribunal has no power to entertain an application unless it is filed within 6(six) months of making a decision by the higher Administrative authority. Since no decision was given by the higher authority the application under section 4(2) of the Administrative Tribunal Act was not maintainable. …Ministry of Food, Bangladesh =VS= A.B.M. Siddique Mia, (Civil), 2020 (1) [8 LM (AD) 240]

Sections 4(2), 6(2A)

The case before Administrative Tribunal must be presented within six months of the decision of the appellate authority, and if the authority does not make a decision on the employee's appeal within two months of the appeal being filed, it will be deemed to have been disallowed and the case before the Administrative Tribunal must be filed within a period of six months therefrom, i.e. within eight months from the date of filing the appeal– By the order of the authority dated 06.10.1998 the appellant was demoted to his lower rank for a period of two years, against which he filed appeal before the authority, namely the Government, on 13.10.1998. The appellate authority by order dated 12.08.1999 demoted the appellant to his lower rank for ever.. The appellant then filed a case before the Administrative Tribunal on 08.02.2000 challenging both the orders dated 06.10.1998 and 12.08.1999. However, the requirement of the law as enunciated in the second proviso to section 4(2)of the Act, 1980 is that the case before Administrative Tribunal must be presented within six months of the decision of the appellate authority, and if the authority does not make a decision on the employee's appeal within two months of the appeal being filed, it will be deemed to have been disallowed and the case before the Administrative Tribunal must be filed within a period of six months therefrom, i.e. within eight months from the date of filing the appeal.

The point of limitation was elaborately discussed in the case of Md. Nazimuddin vs Government of Bangladesh and ors reported in 17 BLC (AD)10.

The decision of the Administrative Tribunal was dated 12.10.2002 and the appeal before the Administrative Appellate Tribunal was filed on 23.4.2003 which is beyond the period of six months stipulated in section 6(2A) of the Act, 1980.

Section 4(3)

Administrative tribunal has the exclusive jurisdiction to deal with the matters when a person in the service of the Republic is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic. In the present case, the writ-petitioner-respondent No.1 is a person in the service of the Republic as per the provision of section 4(3) of the Administrative Tribunal Act, 1980 and as such the Tribunal has the exclusive jurisdiction to deal with the matter regarding the terms and conditions of the service of the writ petitioner-respondent No.1. ...Secretary, Posts & Telecom Div. & anr Vs. Shudangshu Shekhar & ors, (Civil), 18 SCOB [2023] AD 11

Sections 4, 6(2)

The case was filed prematurely and on such view the Administrative Appellate Tribunal dismissed the case– The Appellate Tribunal observed that from the amended prayers it appeared that cause of action for filing the petition before the Administrative Tribunal arose on 13.08.2003 whereas the petition was filed on 15.07.2002. So the case was filed prematurely and on such view the Administrative Appellate Tribunal dismissed the case. It further appears that while the case was filed the departmental proceeding against the petitioner was pending, therefore, he had no cause of action to file the case. But the Tribunal failed to consider this factual aspect of the case, when it was not proper for the Tribunal to pass any order directing reinstatement of the petitioner. In view of the above Administrative Appellate Tribunal allowed the appeal by the impugned decision which was done legally. This civil petition for leave to appeal is dismissed. ...Jalal(Md.) =VS= Bangladesh, (Civil), 2021(2) [11 LM (AD) 86]

Paragraph 24 of 71 DLR (AD) 319 is a per incuriam decision:

We are of the view that the part of the judgment reported in 71 DLR (AD) 319 particularly in paragraph 24 regarding maintainability of the writ petition was passed without considering the latest provision of law and, as such, the part of the said judgment regarding maintainability of the writ petition filed by a retired public servant is a per incuriam decision. (Para 12)

Any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam:

Per incuriam, literally translated as “through lack of care” is a device within the common law system of judicial precedent. A finding of per incuriam means that a previous Court judgment has failed to pay attention to relevant statutory provision or precedents. The significance of a judgment having been decided per incuriam is that it need not be followed by any equivalent Court. Ordinarily, the rationes of a judgment is binding upon all sub-ordinate Courts in similar cases. However, any Court equivalent to the Court which pronounced the judgment per incuriam is free to depart from a decision of that Court where that earlier judgment was decided per incuriam. (Para 13)

Article 111 of the Constitution:

If any judgment pronounced by the Appellate Division, as per provision of Article 111 of the Constitution the High Court Division is not competent to say the judgment is per incuriam. Primarily the High Court Division must follow the judgment in toto, however, in such a situation the High Court Division may draw attention of the Hon’ble Chief Justice regarding the matter. On the other hand even if any judgment is pronounced by

the High Court Division, the subordinate Courts have no jurisdiction to raise any question regarding the legality of the judgment on the point of per imcuriam. Parties may get remedy on preferring appeal. (Para 24) 18 SCOB (2023) AD 11

Section 4

The Writ petition is not maintainable–

Serious scandal of corruption in connection with judicial functions

6 ADC 828: Md. Jahangir Kabir Vs. Bangladesh & others: Article 4(2) of the Administrative Tribunals Act, 1980: It is provided that where an appeal has been preferred, if not responded within 2(two) months, then the administrative Tribunal may made within 6(six) months from the said date, accordingly the case has been filed in time. (Para-3, Mr. Justice Shah Abu Nayeem Mominur Rahman).

Misconduct and Courruption

6 ALR(AD)(2)31-67 DLR(AD)381: Md. Aynul Haque being dead his heirs Begum Mahmuda Haq & others Vs. Government of Bangladesh: Rule 3(b) of the Government Servants (Discipline and Appeal) Rules, 1985: The reputation of being corrupt would gather thick and unshakeable clouds around the conduct of an officer and gain notoriety (কুখ্যাতি) must faster than the smoke. Sometimes there may not be concrete or material evidence to establish the same beyond all reasonable doubt. Judicial service is not a service in the sense of an employment as is commonly understood. Judges are discharging their functions. Members of the judicial service, exercising judicial functions, are distinct from the members of other services. Therein honesty and integrity is their judicial junctions (সংযোগ) and their overall reputations. There is no manner of doubt that nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity (সাধুতা), Dishonesty is the stark (সম্পূর্ণ) antitheses (বিপরীত বস্তু) of judicial polity (প্রক্রিয়া), (Para-6, Mr. Justice Hasan Foez Siddique).

Natural Justice

68 DLR(AD)154: Government of Bangladesh, represented by the Secretary Ministry of Establishment, Dhaka Vs. SM Raiz Uddin Ahmed: Sections 4, 6 and 6A of the Administrative Tribunal Act, 1980: It is not permissible to take disciplinary action against a person solely on the basis of adverse remarks made by a Tribunal in a criminal case unless the allegations imputed in the adverse remarks are proved in disciplinary proceeding. (Para-14, Mr. Justice Syed Mahmud Hossain). Ref: 1964 AC 40.

Section 4

Jurisdiction to file AT case– The Administrative Tribunals Act, 1980 along with the schedule annexed thereto it appears that the Anti-Corruption Commission has not been included therein and, as such, the decision referred to above squarely applies in this case. Again the Anti-Corruption Commission being creature of statute and unless that statutory body is included in the schedule to the Act, 1980, there arises no question of availability of the jurisdiction before the Administrative Tribunal.

The Administrative Tribunals Act, 1980 is applicable to all persons in the service of the Republic as well as to the employees of statutory bodies which have been included in the schedule to the said Act, 1980. Since the Act is not applicable in the case of the writ petitioner and since he had no other equally efficacious alternative remedy available in any other forum provide by any law, the writ petition is maintainable. Civil appeal is dismissed without any order as to costs. ...Anti Corruption Commission =VS= Ahsan Ali(Md), (Civil), 2021(1) [10 LM (AD) 113]

Section 4

Negligence of duty: Major punishment should not be imposed

4 CLR(AD)67: Janata Bank Ltd. & another Vs. Syed Md. Abu Taher & another: Regulation 38 of the Janata Bank Employees Service Regulations, 1995: It appears from the judgment and order that the Administrative Appellate Tribunal has scrutinized the enquiry report and the evidence of the witnesses and observed that respondent No.1 was a simple and honest man and any act of misappropriation of bank money was not expected of him. It was further observed that respondent No.1 signed the disputed voucher in good faith at the dictation and instruction of the Chief Cashier and that although this was a dangerous precedent it was almost common practice in the bank. Lastly, it was observed that the charge framed against the petitioner did not indict him directly of misappropriation but held him responsible for abetment of the offence committed by the Chief Cashier. The Administrative Appellate Tribunal concluded that the case against respondent No.1 was not a case of misappropriation of bank money by him, but at best it was a case of negligence of duty. (Para-16, Mr. Justice Muhammad Imman Ali). Ref: 14 BLD(AD)171.

Power of the Administrative Appellate Tribunal to modify the penalty 15 MLR(AD)494: Managing Director, Bangladesh Krishi Bank & another Vs. Gopal Chandra Nath & others: Section 4(2) of the Administrative Tribunals Act, 1980: It appears that the Administrative Appellate Tribunal took a lenient (উদার) view and modified the order of dismissal into compulsory retirement of the respondent and allowed him to get the arrear benefits. (Para-7, Mr. Justice Md. Abdul Matin).

Procedural defect in the proceedings

14 MLR(AD)217: Janata Bank & another Vs. Mr. Fazlul Hoq & another: Section 6 of the Administrative Tribunals Act, 1980 read with Regulation 38 of the Janata Bank Employees Service Regulation, 1995: The Administrative Appellate Tribunal found procedural defect in not following the provision of Rule 29 of the Fundamental Rules during the enquiry proceedings and held that the accused-respondent cannot be deprived of the benefit of the procedural defect and as such directed his reinstatement although the charges are found true. The apex Court concurred with the findings of the Administrative Appellate Tribunal and dismissed the appeal. (Para-5, Hon'ble Chief Justice MM Ruhul Amin).

Promotion of juniors before senior

17 BLT(AD)211: Md. Nurul Hoque Miah Vs. Government of Bangladesh & others: Article 29, 135(2) & 140(2) (c) of the Constitution of Bangladesh: Though the promotion could not be claimed as of right but the case of the appellant was to considered when his juniors were awarded promotion, more so, when the appellant was not found to be unfit for promotion. This the authority had acted illegally and without lawful authority in not considering the appellant's case of promotion though he was not found to be unfit for the purpose. We direct to treat him promoted as the Commissioner of Taxes with effect from 07.09.1995 but will not be entitled to any financial benefit for the said period until going on LPR as a Commissioner of Taxes and consequent retirement with effect from 30.123.1997 but would get his pension calculated at the rate of basic pay for the scale at Tk. 7800-200 X 6-9000/- as amended by new scale 11,700-3 X 6-13500/- w.e.f. 1.7.1997 per month treating the appellant deemed to have been promoted to the said post of Commissioner of Taxes. (Para-17 & 19, Mr. Justice Mohammad Fazlul Karim). Ref: 1982 BLD 144.

Promotion/Demotion

19 MLR(AD)215: Government of Bangladesh & others Vs. Md. Abul Kashem: Rule 64 of the Police Training College Manual Part- III(A): Once promotion is given and there cannot be any demotion without given a second chance or given any notice of his impending (আসন্ন) demotion or any starting departmental proceeding leading to a punishment, or any lac of available post. (Para-7, Mr. Justice Muhammad Imman Ali).

Show cause notice is a must before dismissal from service

3 CLR(AD)185: The Government of the People's Republic of Bangladesh Vs. Abdul Halim: Rule 11(3) of the Government Servant (Discipline and Appeal) Rules, 1985: The order of punishment cannot be said to be legal as, admittedly, no second show cause notice as per requirement of law was served upon the delinquent employee-respondent before imposition of this punishment. (Para-6, Ms. Justice Nazmun Ara Sulana).

Stay the departmental proceeding

66 DLR(AD)251: Government of Bangladesh & others Vs. Md. Abdul Karim: Rule 25(1) of the Government Servants (Discipline and Appeal) Rules, 1985: Imposition of punishment in the departmental proceeding will remain stayed only until disposal of the criminal case. After disposal of the criminal case the authority will have no bar in imposing any punishment on the delinquent employee in the departmental proceeding. (Para-6, Ms. Justice Nazmun Ara Sultana).

Substitution

Heirs of the deceased-employee can be substituted in the pending proceeding.

21 BLC 511: Shirin Akhter Vs. Secretary, Ministry of Education & others: Article 102(2) of the Constitution of Bangladesh read with Section 7A of the Administrative Tribunal Act, 1981: It has been provided in Section 7A that when an application against any order, decision, dismissal or removal from service is pending before the Administrative Tribunal, if the employee or servant of the Republic dies, than his/her heirs can be substituted in the pending proceeding as heirs of the deceased and right to so survive. (Para-7, Mr. Justice Jahangir Hossain). Ref: 2 BLC 569.

Without passing the decision by the higher authority petition not maintainable

63. 63 DLR(AD)15: Bangladesh & others Vs. ABM Siddique Mia:

Section 4(2) of the Administrative Tribunal Act, 1981: Admittedly the higher authority in the department did not give any decision in respect of the terms and conditions of the respondent's service. The Administrative Tribunal has no power to entertain an application unless it is filed within 6(six) months of making a decision by the higher Administrative authority, Since no decision was given by the higher authority the application under Section 4(2) of the Administrative Tribunal Act was not maintainable, and both the Administrative Appellate Tribunal and the Administrative Tribunal overlooking this provision given the respondent gratuitous relief in excess of its jurisdiction. More so, the respondent though sought for a declaration of the memo dated 31" December, 1996 as had been passed or made without lawful authority, the Administrative Tribunal directed the appellants to give the respondent the attendant service benefit which was beyond the relief claimed in the petition, and the Administrative Appellate Tribunal without application of its judicial mind maintained the said direction. Therefore, we find that the Administrative Appellate Tribunal erred in law in not interfering with the judgment and order of the Administrative Tribunal. There is, therefore, merit in this appeal. (Para-11, Mr. Justice Surendra Kumar Sinha).

Section 4(2)

Promotion–

Section 4(2)

Section 4(2), 6

Limitation–

Section 4

Section 4, 65

So law is now settled that except on the limited scope a writ petition involving question of determination of the question of the matters relating to term and condition of service of a person in the service of the Republic is not entertainable untreatable by the High Court Division under Article 102 of the Constitution Khalilur Rahman A. S. P. S. B vs Md. Kamrul Ahsan (Md. Ruhul Amin J) (Civil)3 ADC 18

Section 4

The Mill authority was of the view that it was within their competence and jurisdiction to allow selection grade scale of Tk.625-45-1315 to the petitioner and they were also of the view that the audit objection raised in this respect should be waived and ignored. It may be mentioned that the relevant Mill authority without taking any instruction from BJMC was competent to take the decision in question i.e. giving selection grade to an employee of the Mill. There is no allegation that the petitioner played any deceptive role in the matter or granting selection grade of scale to him. Md. Sadequr Rahman vs Munawar Jute Mills Ltd. (M. M. Ruhul Amin J) (Civil) 3 ADC 609

"Because the employees of the Rajshahi Krishi Unnayan Bank are subject to the Administrative Tribunal Act, 1981, the writ petition is not maintainable at their instance and High Court Division erred in not deciding the question though the ground was specifically taken in the affidavit-in-opposition and argued at the hearing of the writ petition. Because the Board of Directors of the Bank in their meeting dated 14.6.2004 (263rd meeting) kept their decision open for the Chairman's consideration and, as such, it was not final and the Chairman having disagreed with the Board on the ground that the Boards traveled beyond the Padannoti Nitimala in the matter of marking on Field Experience (which is violation of the Nitimala dated 17.4.2004) High Court Division erred in deciding the question. The Chairman, Board vs Md. Abdul Motaleb (Amirul Kabir Chowdhury. J)(Civil) 3 ADC 629

Section 4 (2)

Against an order of his removal from service passed by the Comptroller and Auditor General of Bangladesh alleging illegally removed from his service. Whether the comptroller and Auditor General of Bangladesh was the competent authority to pass the order of removal of the respondent from service. Government of the People's Republic of Bangladesh vs Abdul Latif Chokder (Latifur Rahman J)(Civil) 3 AD 673

Challenging that the promotion alleged to have been given on the basis of seniority to the respondents with retrospective effect. The Administrative Tribunal has jurisdiction and power to give any consequential relief as to seniority and promotion.Md. Sarwar-vs-Bangladesh represented by the Secretary, Ministry of Establishment (Amirul Kabir Chowdhury J) (Civil) 3 ADC 874

Section 4, 6

Law is now settled that except on the limited scope a writ petition involving question of determination of the question of the matters relating to term and condition of service of a person in the service of the Republic is not entertainable by the High Court Division under Article 102 of the Constitution. Khalilur Rahman A. S. P. S. B vs Md. Kamru Ahsan (Md. Ruhul Amin J) (Civil) 2 ADC 803

Section 4(1)

Section 4(2)

The Code of Civil Procedure

Order XXI Rule 37 and 38 r/w

Administrative Tribunal Act, 1980

Section 4(2)

Section 4

Section 4(2)

Constitution of Bangladesh, 1972

Article 117(1), 117(2)

Administrative Tribunal Act, 1980

Section 4(2)

Even though the petitioner conspicu- ously kept silent as to on which exact date his aforesaid appeal was rejected by the respondent No.2 but he, in his representation dated 21.07.92 addressed to the respondent No.3 property for re- instating him in service, at para 11 men- tioned that "পুলিশ সুপার কর্তৃক চাকুরী হইতে অপসারন করার পর ডি,আই, জি অব পুলিশের নিকট আপীল করিয়াও কোন সুফল পাইনি" which indi- cates that his aforesaid departmental ap- peal dated 26.05.82 has already been rejected and further even if it is con- ceded that such appeal was not rejected then in the absence of any decision of the higher administrative authority on the departmental appeal filed by the pe- titioner, the filling of Administrative Tribunal Case No.50 of 1993 before the Administrative Tribunal was premature and further the respondent No. 1, at para 11 of his written statement filed before the Administrative Tribunal, stated that "অভিযুক্ত এস, আইকে বিধি মোতাবেক ১৮-৫-৮২ তারিখ হইতে চাকুরী হইতে অপসারণ করা হয়। তাহার। বিরুদ্ধে আনীত অভিযোগ তদন্তে প্রমানিত হওয়ায়। তৎকালীন উপ মহাপুলিশ পরিদর্শক খুলনা রেঞ্চ, খুলনা মহোদয় অভিযুক্ত প্রাক্তন এস,আই, আনোয়ার হোসেন এর আপীল আবেদন নাকচ করেন যাহার আদেশ নং- ৬৬৮৭ তারিখ ৮/১১/৮২ ইং।" Md. Anwar Hos sain vs. Superintendent of Police (Md. Tafazzul Islam J) (Civil) 6 ADC 780

Section 4(2)

Admittedly the petitioner went on LPR on 15th May, 1998 and he instituted the petition just four days prior to that date. The Administrative Appellate Tribunal on consideration of the materials on record observed that the cause of action for filing the petition arose on 23rd De- cember, 1997 when the petitioner's prayer for promotion was rejected but he did not prefer any appeal against non-action of his representation and therefore, the petition is barred under the proviso to section 4(2) of the Ad- ministrative Appellate Tribunal. A.M. Nurunnabi VS. Government of Bangladesh (S.K. Sinha J) (Civil) 8 ADC 750

Section 4(2)

On careful scrutiny of the record, the Appellate Tribunal found that the au- thority illegally and arbitrarily removed the respondent from service by order dated 16.11.1974 passed by the sub-Di- visional Selection Committee which had no legal authority to do so, on the plea that he had no requisite qualifica- tion to be the Headmaster of the school and admittedly he had sufficient qualifi- cation to be an Assistant Teacher of the school, but the authority without giving him that the opportunity in a summary manner threw him out of service/whim- sically and illegally causing untold suf- ferings to him; Ministry of Education Sri Radhika Ranjan Shil (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 193

Administrative Appellate Tribunal, Dhaka

Allegations of misconduct, a depart- mental proceeding was started against the respondent, a police officer and ul- timately by an order dated 10.05.2001, he was compulsorily retired from serv- ice. Government of Bangladesh vs. Md. Alauddin (A.B.M. Khairul Haque J) (Civil) 7 ADC 641

Administrative Tribunal Act, 1980, Dismissal from Service

In the departmental proceeding the main allegation brought against the petitioner was that he kidnapped a school teacher who was wife of another man and mother of two children and forcibly compelled her to divorce her husband and thereafter married her forcibly against her will. Md. Kabir Hossain vs. Government of the People's (Nazmun Ara Sultana J)(Civil) 9 ADC 418

Section 4

The learned member of the Administra- tive Tribunal allowed the case of the pe titioner with the observation that the S.P., Bogra was not a proper authority to draw up the departmental procceding against the petitioner as, during that pe- riod, the petitioner was not working under him. The Government vs. Bemal Kumar Chaki (Nazmun Ara Sultana J) (Civil) 9 ADC 691

Section 4(1)

Mr. Mahbubey Alam, learned Attorney General appearing for the petitioners, has taken us to the judgments and ar- gued that since the appeals had arisen out of the same judgment, it was incum- bent upon the Administrative Appellate Tribunal to hear and dispose of both the appeals analogously in order to avoid conflicting decisions, and as a matter of fact, it had delivered two conflicting judgments, which escaped the notice of this Division while disposing of the leave petitions and the same is an error of law apparent on the face of the record. It is further contended that the Administrative Tribunal while main- taining the punishment of the respon- dent came to a definite finding that some of the charges brought against the respondent had been satisfactorily proved but the Administrative Appellate Tribunal without reversing those find- ings allowed the appeal preferred by the respondent mechanically. In view of the above, it is contended that the judg- ments of this Division deserve reconsid- eration for ends of justice. Government vs. Md Masud Miah (S.K. Sinha J) (Civil) 10 ADC 60

Section 4(2)

Petitioner was appointed as the Postal Operator in Letter Packet Section in Chittagong Foreign Post Office. He worked there till his forced retirement under the order dated 15.07.1998. The petitioner was suspended on 01.08.1995 and a departmental proceeding was started against him. Kamol Krishna Das vs. Government (Syed Mahmud Hossain J) (Civil) 9 ADC 968

Section 4 and 6

It is argued on behalf of the petitioner that the petitioner was appointed as electrician in 1991 and thereafter, he was transferred to the post of mechanic in 1998, and the scale of pay of electri- cian being equal to the post of me- chanic. Md. Ashraf Uddin Khan vs. Md. Rafiqul Islam (S.K. Sinha J) (Civil) 9 ADC 851

Section 4 and 6

That the respondent was appointed as MLSS in the Bangladesh Civil Service, Administration Academy in 1987. Sub. sequently he was promoted to the post of library assistant-cum-typist on 19th February, 1989. In May, 1992 an objec tion was raised in his pay bill on the ground that his promotion was made not in accordance with law. Thereafter, he was reverted to the post of MLSS after taking opinion from the Ministry of Law. He unsuccessfully preferred a de- partmental appeal and then a petition before the Administrative Tribunal for redress. Government of Bangladesh vs. Md. Ismail (S.K. Sinha J) (Civil) 9 ADC 640

Section 4(2)

A departmental proceeding was initiated against the respondent for misappropri- ation of 339 mds 12 seers of rice and 668 mds 29 seers of wheat in or around mid 1971. The respondent thereupon without defending the charges tendered resignation from his service on 18th Oc- tober, 1971. Government of Bangladesh vs. A.B.M. Siddique Mia (S.K. Sinha J)(Civil) 9 ADC 201

Section 4

We would like to give more explicit reply to the questions raised by the learned Advocate-on-Record for the petitioner. It is important to note that amended proviso 2 was added before the original 2nd proviso and as a result, the 2nd proviso was relegated to the 3rd proviso. The 1st proviso, in essence, provides that where there is a higher ad- ministrative authority having the power to set aside, vary or modify an order, de- cision or action to be challenged before the Administrative Tribunal, the Admin- istrative Tribunal shall not entertain a case until such higher authority takes a decision on the matter. Md. Shahjahan Atmasder VS. Government of Bangladesh (Syed Mahmud Hossain J) (Civil) 9 ADC 237

The Administrative Tribunal Act, 1980, Dismissal from service

The learned Advocate for the petitioner has argued before us to the effect that the contesting respondent did not raise any question of defect of party in the original Administrative Tribunal Case and as such the Administrative Appel- late Tribunal was not justified and cor- rect at all to dismiss the case on the ground of defect of party. Z. M. Mostafa Kamal vs. Secretary, Ministry of Fi nance Bangladesh (Nazmun Ara Sul tana J) (Civil) 9 ADC 41

Section 4(2)

As a Deputy Magistrate and Deputy Collector and was granted Senior Sca on 15.07.1981; that on 04.02.1982 he joined on promotion as Additional Deputy Commissioner. By an order dated 22.05.1983, however, he was compulsorily retired from service under Martial Law Order No.9; that in view of the representation made by him from time to time against the said order of punishment, the Review Forum constituted under Article IA of the Martial Law Order No.9 for consideration of the representations, made a recommendation on 12.10.1992 "for setting aside the order of retirement dated, 22.05.1982 and for his reinstatement in service maintaining his seniority and continuity of service and treating the period of ab- sence from duty as on leave without pay"; that thereupon the Government by the impugned order dated 23.01.1994 reinstated him in service although ille- gally directing in paragraph No.3 thereof that the period of his absence would be treated as on leave without pay; that on receipt of the said order dated 23.01.1994 i.e. on that very day he submitted his joining report and has been serving as such. But on 20.07.1994 submitted a representation to the Hon'ble President for payment of his ar- rear salary and allowance; that the rep- resentation was rejected by an order dated 08.10.1995. The Government of Bangladesh vs. Abul Hashem Khan (Mohammad Fazlul Karim J) (Civil) 8 ADC 271

Administrative Tribunal Act, 1980

Section 4(2)

Section 4(2) of the Administrative Tri- bunal Act before the Administrative Tri- bunal, Dhaka being Administrative Tribunal Case No. 145 of 2006 claiming pension benefits. According to him after completion of 57 years in service, he went on LPR with effect from 19th Jan- uary, 2005 and thereafter, he retired from the service. After expiry of one year, the authority did not pay his serv- ice benefits on some baseless allega- tions. Government of Bangladesh vs. Ansarul Huq (S.K. Sinha J) (Civil) 8 ADC 434

Section 4(1)

Mr. Mahbubey Alam, learned Attorney General appearing for the petitioners, has taken us to the judgments and ar- gued that since the appeals had arisen out of the same judgment, it was incum- bent upon the Administrative Appellate Tribunal to hear and dispose of both the appeals analogously in order to avoid conflicting decisions, and as a matter of I fact, it had delivered two conflicting judgments, which escaped the notice of this Division while disposing of the leave petitions and the same is an error of law apparent on the face of the record. It is further contended that the Administrative Tribunal while maintaining the punishment of the respon- dent came to a definite finding that some of the charges brought against the respondent had been satisfactorily proved but the Administrative Appellate Tribunal without reversing those find- ings allowed the appeal preferred by the respondent mechanically. In view of the above, it is contended that the juag- ments of this Division deserve reconsid- eration for ends of justice. Government vs. Md Masud Miah (S.K. Sinha J) (Civil) 10 ADC 60

Article 4(2)

Administrative Appellate Tribunal Case The petitioner hereof as Teacher, Exper- imental School, filed Administrative Tribunal Case No.293 of 1999 praying for a direction upon the opposite party to upgrade the position of the petitioner to Class-1 Gazetted (non-cadre) post like Instructors of Primary Training In- stitute. Md. Jahangir Kabir vs. Bangladesh, represented by the Secre- ary (Shah Abu Nayeem Mominur Rah- nan J) (Civil) 6 ADC 828

Administrative Tribunals Act, 1980

It is, however, true that the petitioner was suspended from service by an order dated 02.08.2000 and that he was dis- missed from service by an order dated 06.06.2001 giving retrospective from 02.08.2000. Final order of dismissal dated 06.06.2001 could not have any retrospective effect and it was to be ef- fective from the date of final order of dismissal, that is, 06.06.2001. There- fore, the petitioner shall be deemed to have been dismissed from service on and from 06.06.2001 and not from 02.02.2000. Mir Abdul Qaium vs. Gov- ernment of Bangladesh (Syed Mahmud Hossain J) (Civil) 10 ADC 407

Section 4(2)

Praying for an order setting aside the order of demotion of the petitioner ...(2) It appears that the Administrative Ap- pellate Tribunal considered the provi- sion of Section 4(2) of the Administrative Tribunals Act, 1980 and held that the application before the tri- bunal was barred by limitation and set aside the judgment of the Administra- tive Tribunal. S. M. Mosharaf Hossain vs. Sonali Bank (Md. Abdul Matin J) (Civil) 6 ADC 879

The Administrative Appellate Tribunal held that the Divisional Electrical Engi- neer Office issued a letter on 29.01.2001 requesting 11 subordinate offices to inform about the demands of the petitioner and out of 11 offices only Sub Assistant Engineer (Electrical) gave clearance and the office of the Financial Adviser, Rajshahi gave no objections and no clearance certificate was pro- duced by other offices. The Administra- tive Appellate Tribunal accordingly held that, therefore, it cannot be claimed that "No Demand certificate" was submitted as required by the authority for finaliz- ing the pension and gratuity of the peti- tioner before the tribunal and the Administrative Appellate Tribunal al- lowed the appeal in part with modifica- tions. Government of Bangladesh vs. Md. Jillur Rahman (M. M. Ruhul Amin CJ) (Civil) 7 ADC67

Section 4

We find nothing wrong with the view taken by the Appellate Tribunal that the case filed before the Administrative Tribunal was barred by limitation.

The result the appeal is disposed of. The order of the Administrative Tribunal as well as the judgement and order of the Administrative Appellate Tribunal are set aside. The order passed by the Government, being the appellate authority, is hereby held as not valid in law and is of no legal effect. The order of the concerned departmental authority sentencing the appellant to a lower rank for a period of two years is upheld. The appellant will receive all the service benefits that accrued to him, apart from the period of two years of punishment ordered by the departmental authority. …Anwar Hossain Biswas =VS= Government of Bangladesh, (Civil), 2020 (1) [8 LM (AD) 46]

Section 4(3)

Sections 4, 6(2)

Section 4-The transfer of respondent No. 2 being a matter relating to the terms and conditions of service, the legality or otherwise of the order of transfer of the respondent No. 2' is exclusively triable by the Administrative Tribunal. Bangladesh House Building Finance Corporation vs Chairman, Labour Court 41 DLR 341.

Section 4-Impugned order of transfer relating to the appellant's service can only be agitated before the Administrative Tribunal. Abdul Mannan Talukder vs Bangladesh House Building Finance Corporation 42 DLR (AD) 104.

Section 4 Promotion being part of the terms and conditions of the service a grievance in respect of the same undoubtedly falls within the exclusive jurisdiction of the Administrative Tribunal. Junnur Rahman vs Bangladesh Shilpa Rin Sangstha (BSRS) and others 50 DLR 39.

Section 4-If one Branch of the Department of the Government is not following the lawful order of the hierarchy of the Governmental authority, definitely the person who is aggrieved can come before this Court and pray for direction or declaration to implement, fulfil or obey the lawful order of the Government which the Administrative Tribunal is not competent to do. Matiur Rahman (Md) vs Bangladesh, through the Secretary, Ministry of Establishment of the Government of the People's Republic of Bangladesh & ors. 50 DLR 357.

Section 4- Petitioners have not been given any right under the Act to move the Tribunal to implement the judgment of the Appellate Division and the Administrative Appellate Tribunal given in respect of a different person who filed cases not in a representative capacity or in the nature of a group or class action but as an individual applicant. Hafizuddin (Md) and three others vs Bangladesh Bank, represented by Governor and others 49 DLR (AD) 147.

Section 4- Return of plaint in a matter relating to persons in the service of the Republic-Amendment replacing a cause of action, after it had ceased to exist, by a new cause of action so as to change the nature of the suit and the cause of action will not be allowed, and if allowed, cannot relate back to the date of filing the suit. Furthermore, the jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of special statute the jurisdiction of civil Court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction. Monsur Ali vs Janata Bank 43 DLR 394.

Section 4-Jurisdiction of Administrative Tribunal-It can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of court is to see the right given under Article 102(1) is not frittered away or misused. Mujibur Rahman vs Bangladesh 44 DLR (AD) 111.

Section 4- For legal remedies in service matters civilian employees in Defence Services can well invoke the jurisdiction of the Administrative Tribunal. Ishaquddin Ahmed@ Md Ishaquddin Ahmed vs Commandant, School of Armour and Centre, Bogra Cantonment, Bogra and others 51 DLR (AD) 144.

Section 4-The financial benefit during the period of dismissal cannot be claimed as a matter of right when such dismissal is set aside on the procedural defect as to show cause notice. Sujit Kumar Majumdar vs Ministry of Local Government and Rural Development and others 51 DLR (AD) 145.

Section 4- Question of payment of subsistence to the government servant during suspension, relates to terms and conditions of service within the jurisdiction of the Administrative Tribunal. Sheikh Abdul Hakim vs Government of the People's Republic of Bangladesh and others 52 DLR 333.

Section 4- Unless a final decision is made by higher Administrative Authority after the conclusion of the proceeding under challenge an application cannot be entertained by the Administrative Tribunal, but before such decision to be made by the authority, the right of the petitioner in the service of the Republic and his remuneration, cannot be curtailed by the respondent who had no legal authority to do so. Therefore, the departmental proceeding is held to be without any jurisdiction and it must be perished under the wheel of judicial review. Shahjahan Howlader (Md) va Bazlur Rahman & another 52 DLR 358.

Section 4-Order passed by the Tribunal is declaratory in nature and there was no direction for reinstatement of the petitioner and as such order passed by the Tribunal is not executable. AKM Ali Imam vs DG, Bangladesh Agricultural Research Institute, & another 54 DLR (AD) 5.

Section 4- The Subordinate Judge could have split up the suit for trying the second cause which is for damages for defamatory statement and for implicating the plaintiff in a false case The claim on account of tort committed by the defendant can be tried by the civil Court. Khandkar Abul Hussain vs Government of the People's Republic of Bangladesh and others 54 DLR 467.

Section 4- In altering the punishment of compulsory retirement to stoppage of 3 annual increments for 3 years under sub-rule 2(c) of rule 4 of the Rules and thereupon in making the order for the reinstatement of the respondent the Tribunals did not commit any illegality as it was within the jurisdiction of the Tribunals to see the proportionality of the sentence in the given facts

of the case. Government of Bangladesh and others vs Md Afzal Hossain Ansari 55 DLR (AD) 65

Section 4-The authority imparting any punishment upon a delinquent staff has a duty to see that he has been dealt with in accordance with law and following the principles of natural justice. Government of Bangladesh represented by the Secretary, Ministry of Post, Telegraph and Telecommunication vs Abul Khair 56 DLR (AD) 183.

Sections 4 and 6-Jurisdiction-The Administrative Tribunal and the Administrative Appellate Tribunal have been established with limited jurisdictions and limited power. The Tribunal gratuitously granting relief acts in excess of its jurisdiction. Quazi Nazrul Islam vs Bangladesh House Building Finance Corporation 45 DLR (AD) 106

Section 4(1)-The remedy against the orders of transfer lies before the Administrative Tribunal and not under Article 102 of the Constitution. Shamsul Haque (Md) vs Bangladesh and others 49 DLR 62.

Section 4(2)- When the first proceeding under the Government Servants (Discipline and Appeal) Rules 1985 ended inconclusively due to expiry of time limit and merely on technical ground, subsequent proceeding on the self-same or fresh additional charge is not unauthorised by law and such a proceeding does not amount to double jeopardy nor it is incompetent in law. Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Post and Telegraph, Bangladesh Secretariat. Dhaka vs AKM Yousuf Mia & others 50 DLR (AD) 200.

Section 4(2)- When the charges against a Government servant are found established and he is given reasonable opportunity of defence and dismissed with the approval of the President, the omission to express the order in the name of the President being mere technicality, the order of dismissal does not call for interference. Shahinur Alam (Md) vs People's Republic of Bangladesh and others 50 DLR (AD) 211.

Section 4(2)-Time spent on review before the President under the Government Servants (Discipline & Appeal) Rules 1985 was to be excluded in the computation of the period of limitation. Jahangir Kabir (Md) vs Bangladesh 48 DLR (AD) 156.

Section 4(2) For the purpose of limitation of moving the Administrative Tribunal against the order of punishment the respondent was entitled to avail of the benefit of the date of the Memo communicating result of the appeal. Government of Bangladesh vs Md Abdul Karim 47 DLR (AD) 146.

Section 4(2)- The Administrative Appellate Tribunal was therefore patently wrong in holding that the limitation could not be counted from 14- 9-1989 when the Secretary, Ministry of Home Affairs rejected the appellant's application preferred against the appellate order passed by the Inspector General of Police on 21-10-1988. It seems that the Appellate Tribunal being unaware of the aforesaid Ordinance and under some misconception of the provisos above committed error in deciding the point of limitation. Shaikh Mustainul Haque vs Inspector General of Police and others 47 DLR (AD) 157.

Section 4(2)- Proviso On a reference to Rules 16, 17, 18 and 19 of Rules, 1976, it appears that successive appeals which were filed by the respondent were not addressed to the proper appellate authority and those were also filed beyond the period of limitation. Hence the Administrative Tribunal had no jurisdiction to entertain the application. Government of the People's Republic of Bangladesh, represented by the Comptroller and Auditor General of Bangladesh vs Abdul Latif Chokder 49 DLR (AD) 29.

Section 4(2)- Limitation-Time spent under review proceeding-In a case like the present one where there is no provision for appeal and where under review the President has power to make any order as he deems fit, a Government servant will be entitled to the remedy under Rule 23. AKM Nurul Alam vs Bangladesh 46 DLR (AD) 113.

Section 4(2)- Jurisdiction of Adminis- trative Tribunal Tribunal shall have no power to entertain an application unless it is filed within six months of the impugned order. In the instant suit the impugned order was made 4 years earlier than the date of incorporation of the petitioner bank in the schedule of the Act. Consequently the cause is beyond the jurisdiction of the Tribunal. That being so, the suit does not come within the mischief of Article 117. DGM, Rupali Bank vs Shah Jalal 43 DLR 193.

Section 4(2)-Proviso Jurisdiction of Administrative Tribunal Such Tribunal cannot entertain any application by the aggrieved party unless his appeal before the competent authority is disposed of. This legal bar cannot be overcome unless the appeal pending before the Government is disposed of. It is not known why Government- respondent is shockingly slow in the matter of taking decision in the petitioner's appeal. The Rule upon the government is therefore made absolute with the direction to dispose of the appeal within 30 days. Moulvi Gholam Moula vs Bangladesh 44 DLR 195.

Section 4(2)-The Rules of the Janata Bank only provide for certain benefits as are admissible to a Government servant. Rule 389 of BSR Part 1 provides that there is no bar to the re-employment of an officer after regaining his health after invalid pension. But the Rule has no legal application to Janata Bank employees. General Manager, Janata Bank vs Md Shah Alam Sarker 51 DLR (AD) 138.

Section 4(2)- The petitioner cannot have the benefit of section 14 of the Limitation Act while computing the period of limitation in filing application before the Administrative Tribunal, Abul Bashar vs Investment Corporation of Bangladesh and another 52 DLR (AD) 178.

Section 4(2)-The representation of respondent having been turned down by the National Board of Revenue, the higher administrative authority in his case, the question of preferring any further appeal does not arise. Government of Bangladesh vs Nurul Haque Miah and another 53 DLR (AD) 59.

Sections 4(2) and 13-Decree of Civil Court having already been executed after the appellant was reinstated in service, his subsequent prayer for other benefits do not fall in the category of any pending suit, case, application and appeal. The Tribunals took a wrong view that the other reliefs are ancillary and consequential reliefs emanating from the decree of the Civil Court and wrongly refrained from exercising jurisdiction in the matter. Khandaker Golam Najib vs Chairman, Board of Directors, Agrani Bank and others 49 DLR (AD) 109.

Section 4(3)-Civilian employees in the defence services-Administrative Tribunal was not correct in holding that they belonged to the defence services. Against the mistaken orders the petitioners were at liberty to prefer appeals before the Administrative Appellate Tribunal. Their applications under the writ jurisdiction are not maintainable. Abdul Latif vs Bangladesh 43 DLR 446

Sections 5 and 3-There is no command in the Constitution that the Tribunal or the Appellate Tribunal is substitute or co-equal to the High Court Division. It is left to the legislature, after establishing the Tribunals, to make necessary provisions in this regard for the carrying out of the functions of the tribunals. Mujibur Rahman vs Bangladesh 44 DLR 111

Sections 5, 6 and 12

Government Servants (Discipline and Appeal) Rules, 1985

Rule 4(6), 7(2)(c) r/w

Constitution of Bangladesh, 1972

Article 135(2)

Administrative Tribunal Rules, 1982

Rules 6, 6(7), 11

Administrative Tribunals Act, 1980

Sections 5, 6 and 12

Dismissing the appeal for default–– Appellate Division found that the appeal was filed back in the year 2003 before the Administrative Appellate Tribunal. But after long laps of time when the matter was fixed for hearing on 26.02.2008 none appeared for appellants. So, it is apparent that the appellant had lost his interest to proceed with the appeal. Consequently, the appeal was dismissed for default. Subsequently, on an application for restoration of the appeal the same was also disallowed as the Administrative Appellate Tribunal did not believe the plea of the learned Counsel of the appellant to have lost his personal case diary to be an acceptable extenuating circumstance.

The above discussions it is abundantly clear that the Administrative Appellate Tribunal rightly disallowed the said application for restoration following the provisions of the Administrative Tribunal Act and Rules. .....Ministry of Forest, Bangladesh =VS= Kiran Sankar Sarker, (Civil), 2023(2) [15 LM (AD) 447]

Section 6(2) - Cause of action for filing the petition before the Administrative Tribunal arose on 13.08.2003 whereas the petition was filed on 15.07.2002. So the case was filed prematurely and on such view the Administrative Appellate Tribunal dismissed the case. The Appellate Division observed that it further appears that while the case was filed the departmental proceeding against the petitioner was pending, therefore, he had no cause of action to file the case. But the Tribunal failed to consider this factual aspect of the case, when it was not proper for the Tribunal to pass any order directing reinstatement of the petitioner. In view of the above Administrative Appellate Tribunal allowed the appeal by the impugned decision which was done legally. Thus the Appellate Division finds no merit in the petition. Accordingly, this civil petition for leave to appeal is dismissed. Md. Jalal Vs.- Bangladesh and others. (Civil) 20 ALR (AD) 67-68

Section 6 (2) and 6 (2A)-According to section 6 (2) and 6 (2A) of the Administrative Tribunals Act, 1980, appeal against the impugned judgement, order or decision passed by the Administrative Tribunal must be filed in all circumstances not later than 6 months from the date of the impugned order or judgement.

The Appellate Division held that the appeal before the Administrative Appellate Tribunal was beyond the period of limitation, and was, therefore, barred. In the facts and circumstances discussed above, the Appellate Division concludes that the judgement of the Administrative Appellate Tribunal requires interference, as being barred by limitation. The application before the Administrative Tribunal was also barred by limitation. The decision of the appellate authority being out of time is not valid in law and is of no legal effect. The order of punishment of reduction in rank of the appellant passed by the departmental authority, therefore, stands, Since the application before the Administrative Tribunal was not within time, the point regarding lack of consultation with the Public Service Commission before passing the impugned order of reduction to a lower rank cannot be agitated at this juncture. In the result the appeal is disposed of. The order of the Administrative Tribunal as well as the judgement and order of the Administrative Appellate Tribunal are set aside. The order passed by the Government, being the appellate authority, is hereby held as not valid in law and is of no legal effect. The order of the concerned departmental authority sentencing the appellant to a lower rank for a period of two years is upheld. Anwar Hossain Biswas -Vs.- Government of Bangladesh and others (Civil) 16 ALR (AD) 121-125

Section 6(2A)

The present petitioners filed the above mentioned Administrative Appellate Tribunal Appeal against the judgment and order dated 12.08.2008 passed by the Administrative Tribunal No.1. Dhaka in Administrative Tribunal Case No.131 of 2005 with an application under section 6(2A) of the Administrative Tribunal Act, 1980 praying for con- donation of delay of 2 (two) months and 6 (six) days in filing the appeal. Go ernment of the People's vs. Md. Mizanur Rahman (Nazmun Ara Sultana J) (Civil) 9 ADC 846

Section 6A

It is true that the Appellate Tribunal is not subordinate to the High Court Division but judicial decorum, propriety and discipline demand that when an interpretation of law is given by the High Court Division all Courts and Tribunals in Bangladesh should abide by such interpretation until such interpretion is set aside or varied by the Appellate Division. Miss Shaheda Khatun vs Administrative Appellate Tribunal, Dhaka (A.T.M. Afzal C J) 2 ADC 850

19 MLR(AD)225: Government of Bangladesh Vs. Md. Khan Harun being dead his heirs Mrs. Anowara Begum alias Maina & others: Section 6(2A) of the Administrative Tribunal Act, 1980: Appeal against an order or decision of an Administrative Tribunal may within 3 (three) months from the making the order or decision can be filed and Sub-section (2A) of Section 6 by Act XXIV has further provided that an appeal may be admitted after the period of 3 (three) months specified in that Sub-section but obviously not later than 6 (six) months, if the Appellant can satisfy the Administrative Appellate Tribunal. (Para-11, Mr. Justice Md. Abdul Wahhab Miah). Ref: 51 DLR(AD)253.

Section 6 (3)

In view of the provisions of section 6 (3) as quoted above it was within the jurisdiction in the Administrative Appellate Tribunal in altering the major penalty of dismissal from service to the reduction in rank of the respondent...... (13). Bangladesh vs Md. Idrish Miah (Md. Ruhul Amin J) (Civil) 2 ADC 905

It is by now well settled that consent or waiver cannot give jurisdiction where there is inherent lack or absence of it and in that case the order is a nullity. Bangladesh vs Md. Shafiuddin, son of late Md. Asuruddin (Mainur Reza Chowdhury J)(Civil) 2 ADC 953

Application under Order 7 Rule 11 of the Code of Civil Procedure

That the petitioner having filed the plaint showing cause of action on the basis of facts alleged, the truth of which is to be determined on evidence to be adduced during trial, the High Court Division committed error in not holding that the trial court was wrong in rejecting the plaint. He thereafter submits that the High Court Division was in error in dismissing the appeal upon an erroneous view that there is no scope for amendment of letter of credit. Messrs Al-Haj Oil Mills Ltd. vs. Willmer Trading (Pvt.) Ltd. & Ors. (Amirul Kabir Chowdhury J(Civil) 3 ADC 953

The Application under order 39 rules 1,2,5(A)3, Section 151

Revisional application by staying operation of the order.......(1) to now- That he is a sub-lessee under the company, the authorized leaseholder, and that the period of the lease of the defendant No.1 being upto 31st December, 2007, will expire shortly, directed the learned District Judge, to hear and dispose of the appeal on priority basis taking all the material points into consideration and till disposal of the appeal stayed the operation of the above order dated 26.11.2006......(5) Hefazatur Rahman Tipu vs. Forkanul Islam and others (Md. Tafazzul Islam J) (Civil) 5ADC 483

Appellate Court can modify past decree

High Court Division committed no error in placing the plot Nos. 209/3, 214 and 215 in the residuary saham list as because the appellante Court passed decree modifying the trial Court's decree to the extent that the plot Nos. 209/3, 214 and 215 are left out of partition and that these plots were not expunged from the schedule of the plaint. Abdul Jabbar & others vs Surjaban Bibi & others (Mohammad Fazlul Karim J) (Civil) 2ADC 907

Section 6(2), 6(2A)

The appeal so filed was barred by time and as such an application for condonation of delay was filed. Government of Bangladesh vs. Md. Shahin Reza (Md. Ruhul Amin CJ) (Civil) 5 ADC 592

Section 6(2), 6(2A)

An application for condonation of delay of 6 months and 12 days but the said application was rejected...(2) Government of Bangladesh vs. Md. Amdadul Huq (Mohammad Fazlul Karim J) (Civil) 5 ADC 657

We have noticed on previous occasions that the learned judge of the High Court Division dispose of the case in the man- ner,as the instant one, which can in no way be considered as the accepted way of disposal of the case by the Court of the kind the learned judge is a judge The accepted and settled principle is that a Court either appellate or revision- al is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the Courts below or to sel aside the judgment of the Courts below. The learned judge in disposing of the instant case has not given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set aside the judgment of the Courts below. We hope in future the learned would dispose of the case in the accepted manner i.e. upon discussion of the materials on record and thereupon assigning reason in support of his judgment. Mosammat Ashrafee Begum vs. Md. Siddiqur Rahman Patwari (Md. Ruhul Amin J) (Civil) 5 ADC 659

For a declaration that the wasiatnama dated 25.10.1976 executed by Namiran Nessa is illegal, void,inoperative,fraudulent and not binding upon the plain- tiffs...(2) Mosammat Namiran Nessa vs. Aftaruddin & others (M.M.Ruhul Amin J) (Civil) 5 ADC 662

The appellate Court held that the deed of exchange in question was entered into only to deprive the plaintiff of his right of preemption and the property of exchange was not equal in value. The areas of the properties exchanged are not same although both the properties are situated within the Municipal area. Md. Iftekher Uddin Bhuiyan vs Ranjit Kumar Paul (M.M. Ruhul Amin J) (Civil) 5 ADC 665

Rejecting the application for condonation of delay of 1529 days in filling civil revisional application ..(1) Government of the Peoples' VS. Manindra Kumar Paul (Md. Tafazzul Islam J)(Civil) 5 ADC 667

Section 6,7,12

Against the order of the Administrative Tribunal the present petitioners filed Appeal No.43 of 2005 before the Ad- ministrative Appellate Tribunal, Dhaka. The appeal was dismissed for default on 19.01.2001 as none appeared for the ap- pellants when the same was called on for hearing. The petitioners filed an ap- plication before the Administrative Appellate Tribunal, Dhaka for restoration of the appeal after setting aside the order of default. The Appellate Tribunal by the impugned order rejected the ap- plication on the ground that the same was filed out of time by 7 days. The Ap- pellate Tribunal further observed that the appeal being under special statute, it had no power to condone the delay; hence, this petition for leave to appeal. Government of Bangladesh vs. Md. Abdul Karim (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 589

Section 6(1)

It is seen from the provision of section 6(1) of the Administrative Tribunal Act that an appeal lies from an order of the Administrative Tribunal. In the instant case the Administrative Tribunal refused the prayer for ad-interim order restraining the authority from granting promotion to the respondents. So the respondent Nos. 1-11 herein if were aggrieved by the order so passed by the Administrative Tribunal they were required as per provision of section 6(1) of the Administrative Tribunal Act to file appeal, if any, they would have thought fit. But instead of doing that they were not well advised to file the writ petition seeking the relief identical to the relief sought in the Administrative Tribunal case with the sole object of having an ad-interim order restraining the authority from taking steps for the promotion of the Assistant Superintendent of Police to the post of Additional Superintendent of Police.

Khalilur Rahman, ASP SB, Dhaka vs Md Kamrul Ahsan 10 BLC (AD) 193.

Section 6A

In the instant case PSC recommended for regularisation of the opposite parties No. 3-86 on 28-1-1998 and thereupon the said opposite parties became the members of the Bangladesh Civil Service (Enforcement: Police Cadre) and that being so in law they can only claim seniority in the Cadre Service on and from 28-1-1998 and no other date. Khalilur Rahman (Md) PPM and others vs Md Kamrul Ahsan and others 8 BLC (AD) 80.

Section 6(2)

Aggrieved person and necessary parties

There appears to be no guidance either in the Act or in the Rules framed thereunder to determine the question of necessary parties. The provisions of the Code of Civil Procedure, including those of Order 1. Except as referred to in the Act and the Rules do not seem to. apply to the Tribunal. But still then as a general rule it cannot be disputed that all necessary parties must be impleaded in a case so that a tribunal may effectually adjudicate on all matters before it. As the appellants are claiming their confirmation in the post of A.S.Ps. and they are seeking relief against the Government alone it is for the Government to refute the same and to protect the interest of other employees and as such it cannot be said that the case is bad for defect of parties for not impleading respondent Nos. 1 — 15. Respondent Nos. 1—15 nevertheless are aggrieved’ person within the meaning of section 6(2) of the Act in that the order of the Tribunal was likely to be prejudicial to them in the matter of seniority. Their right of appeal cannot, therefore, be denied. Md. Abdul Mannan and ors Vs. Mr. Hasan Mahmud Khondker and others, 16 BLD (AD) 147

Section 6(2A)

The present petitioners filed the above mentioned Administrative Appellate Tribunal Appeal against the judgment and order dated 12.08.2008 passed by the Administrative Tribunal No.l, Dhaka in Administrative Tribunal Case No.l31 of 2005 with an application under section 6(2A) of the Administrative Tribunal Act, 1980 praying for condonation of delay of 2 (two) months and 6 (six) days in filing the appeal. Government of the People's Republic of Bangladesh vs. Md. Mizan ur-Rahman (Nazmun Ara Sultana J) (Civil) 9 ADC 846

Section 6(2)

Appeal must be filed in 3 months.

The aggrieved person may prefer an appeal within 3(three) months from the date of order or decision before the Administrative Appellate Tribunal. Tribunal has no power to extend the period of Limitation.

Government of Bangladesh -Vs.- Ansarul Huq 3 ALR(2014)(1)(AD) 209

Section 6(2A)

The present petitioners filed the above mentioned Administrative Appellate Tribunal Appeal against the judgment and order dated 12.08.2008 passed by the Administrative Tribunal No.l, Dhaka in Administrative Tribunal Case No.l31 of 2005 with an application under section 6(2A) of the Administrative Tribunal Act, 1980 praying for condonation of delay of 2 (two) months and 6 (six) days in filing the appeal. Government of the People's Republic of Bangladesh vs. Md. Mizan ur-Rahman (Nazmun Ara Sultana J) (Civil) 9 ADC 846

Section 6(2)

Appeal must be filed in 3 months.

Government of Bangladesh -Vs.- Ansarul Huq 3 ALR(2014)(1)(AD) 209

Section 6, Sub Section 2 and 2 (A)

The defendant though claimed that they were on permissive possession in the suit land from Seroogi, the original owner of the suit land since 1936 but could not produce any material document or rent receipt to substantiate their claim of permissive possession of original owner Seroogi. The plaintiff filed the suit for declaration of title and recovery of possession and under the circumstances they could get a declaration of title against the defendant on the basis of their documents. The plaintiff having filed all the material documents showing the title to the suit land includ- ing the Khatian being an evidence of possession as well as collateral evidence of title, was entitled to recovery of pos- session from the defendant, who under the circumstances, go to show that was in permissive possession in the suit land as asserted by the plaintiff. Kazi Muhammad Khokon VS. Deputy Secretary (Registration) Ministry of Law (Md. Ruhul Amin J) (Civil) 4 ADC 228

Section 6-When the petitioner contested. the case before the Tribunal and has not preferred any appeal and when he had a remedy before the Administrative Appellate Tribunal writ petition. was rightly rejected. Government of Bangladesh vs Member, Administrative Tribunal, Dhaka and others 53 DLR (AD) 112

Section 6A-Under the new dispensation that Article 103 of the Constitution shall apply in relation to Administrative Appellate Tribunal the petitioners have only the right to seek leave for appeal. The Court's power under clause (3) of Article 103 is very wide-question of retrospectivity or prospectivity of section 6A of the Act of 1981 has got no relevance. Bangladesh Bank and another vs Administrative Appellate Tribunal 44 DLR (AD) 239.

Section 7-The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication. Kamrul Hasan vs Bangladesh and others 49 DLR (AD) 44.

Section 7

Powers and Procedure of Tribunals

Although the Administrative Tribunal has all the trappings of a Court and the Code of Civil Procedure has been made applicable for specified purposes to the proceedings before it, yet it is not a Court proper and it does not possess all the powers of a court provided under the Code of Civil Procedure. The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication. Kamrul Hasan vs. Bangladesh and others, 16 BLD (AD) 35

Section 7

Powers and Procedure of Tribunals

Sections 10-12

Judicial powers of the Tribunals have been laid down in sections 10-12.

Section 10 provides that subject to this Act, no ·proceedings, order or decision of a Tribunal shall be liable to be challenged, reviewed, quashed or called in question in any Court. Section 11 provides that the provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. Section 12 gives the Government the power to make rules for carrying out the purposes of this Act. In exercise of the powers under section 12, the Government has in fact made the Administrative Tribunals Rules, 1982, by Notification No. SRO 92-L/82-JIV /IT-3/81 dated 12-3-1982, which have been published in the Bangladesh Gazette Extraordinary on 12-3-1982. Saifur Rahman vs Secretary, Ministry of Agriculture 41 DLR 538.

Section 10A

Administrative Tribunal Act, 1980

Section 10A r/w

Administrative Appellate Tribunals Rules, 1982

Section 7

Constitution of Bangladesh, 1972

Article 102

Penal Code, 1860

Section 166

The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal–Appellate Division is of the opinion that the respondents cannot avail themselves of the remedy provided under article 102 of the Constitution for having a direction upon the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The High Court Division has not been entrusted with the power of deciding as to how the decisions and orders of the Administrative Tribunals will be executed. The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal. The Administrative Tribunal is quite competent to come to a decision about the mode of implementation of its own decisions and orders. In case of failure, the said writ-petitioner-respondent has been given further remedy under section 10A of the Act. ...Government of Bangladesh =VS= Md. Abdul Maleque Miah, (Civil), 2021(2) [11 LM (AD) 12]

Sections 10-12

Judicial powers of the Tribunals have been laid down in sections 10-12.

Section 10A

Administrative Tribunal Act, 1980

Section 10A r/w

Administrative Appellate Tribunals Rules, 1982

Section 7

Constitution of Bangladesh, 1972

Article 102

Penal Code, 1860

Section 166

Sections 10-12-Judicial powers of the Tribunals have been laid down in sections 10-12.

Section 10 provides that subject to this Act, no proceedings, order or decision of a Tribunal shall be liable to be challenged, reviewed, quashed or called in question in any Court. Section 11 provides that the provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. Section 12 gives the Government the power to make rules for carrying out the purposes of this Act. In exercise of the powers under section 12, the Government has in fact made the Administrative Tribunals Rules, 1982, by Notification No. SRO 92-L/82-JIV/IT-3/81 dated 12-3-1982, which have been published in the Bangladesh Gazette Extraordinary on 12-3-1982. Saifur Rahman vs Secretary, Ministry of Agriculture 41 DLR 538.

Section 10A-Order given by Administrative Appellate Tribunal-Maintainability of writ petition for enforcement of such order-The Administrative Tribunal can execute, functioning as an executing Court, its own decisions or orders and also the decisions and orders of the Administrative Appellate Tribunal following the provisions of Civil Procedure Code relating to execution of a decree. The petitioner has been given a further remedy by way of punishment for contempt of the Tribunal's authority. The petitioner having failed to exhaust such remedies his writ petition is not maintainable. Munshi Mozammel Hossain vs Post Master, Faridpur 43 DLR 415.

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Administrative Tribunal Act

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