THE ADMINISTRATIVE TRIBUNALS ACT, 1980
5. (1) The Government shall, by notification in the official Gazette, establish an Administrative Appellate Tribunal for the purpose of this Act.
[ (2) The Administrative Appellate Tribunal shall consist of one Chairman and two other members who shall be appointed by the Government.
(3) The Chairman shall be a person who is, or has been, or is qualified to be a Judge of the Supreme Court, and of the two other members, one shall be a person who is or has been an officer in the service of the Republic not below the rank of Joint Secretary to the Government and the other a person who is or has been a District Judge.
(4) The Chairman or any other member of the Administrative Appellate Tribunal shall hold office on such terms and conditions as the Government may determine.]
6. (1) The Administrative Appellate Tribunal shall have jurisdiction to hear and determine appeals from any order or decision of an Administrative Tribunal.
(2) Any person aggrieved by an order or decision of an Administrative Tribunal may, within three months from the date of making of the order or decision, prefer an appeal to the Administrative Appellate Tribunal.
(2A) Notwithstanding the provisions of sub-section (2), an appeal may be admitted after the period of three months specified in that sub-section but not later than six months, if the appellant satisfies the Administrative Appellate Tribunal that he had sufficient cause for not preferring the appeal within three months
(3) The Administrative Appellate Tribunal may, on appeal, confirm, set aside, vary or modify any order or decision of an Administrative Tribunal, and the decision of the Administrative appellate Tribunal in an appeal [shall, subject to section 6A, be final].
Status of Administrative Appellate Tribunal in Relation to the High Court Division:Administrative Appellate Tribunal is not under the subordination of the HCD. It is totally a separate judicial body. This body deals with appeals only in cases of the tribunal matters.
There are certain common powers which are enjoyed by both the HCD and the Administrative Appellate Tribunal. Article 102(a) (i) of the Bangladesh Constitution, 1972 empowers of the HCD to issue certain order and directions. The provision says that the HCD may, if satisfied that no other equally officious remedy is provided by law, on the application of any person aggrieved direct any person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted to do by law or to do that which he is required by law to do.
The HCD is authorized to interpret the Constitution of the People’s Republic of Bangladesh. It is also true that the Administrative Appellate Tribunal has the power to interpret the provisions of Articles 133, 134, 135 of the Constitution in deciding service disputes. Like the HCD, the Administrative Appellate Tribunal can transfer a case from one Administrative tribunal to another. Like HCD, one has to come before the Administrative Appellate Tribunal after exhausting all the available remedies.
Justice Mostafa Kamal had decidedly argued in the case of Mujibur Rahman vs. Bangladesh, After referring the case Shell Company of Australia Vs. Federal Commissioner, Learned Justice Mostafa Kamal held that “There is no command in the Constitution that the tribunals or the co-equal to the HCD”. The logic behind stating in this way was that the terms and tenure of the service of the Judges have been expressly laid down in Chapter 1 and part VI but no similar provisions are made in the Constitution with regard to the terms and tenure of the persons who will sit on the tribunals.
If we take into account the provisions of section 6A of the Administrative Tribunals Act, 1980 it may appear that the Administrative Appellate Tribunal is on the same footing as that of the High Court Division. Section 6A provides that it is hereby declared that the provisions of article 103 of the Constitution shall apply in relation to the Administrative Appellate Tribunal as they apply in relation to the High Court Division.
The Administrative Appellate Tribunal, which is the highest appellate forum against the decision of the Administrative Tribunal, is not, in fact, on the same footing of the High Court Division.
A person is entitled to file an application for enforcement of any of the fundamental rights (in the HCD) only when he is aggrieved by an order or proceeding taken against him by an authority or person performing any function in connection with the affairs of the Republic or of a local authority.
Even in the presence of an alternative remedy, a person, instead of going to the Administrative Tribunal can come before the HCD for the protection of his fundamental rights of equality of opportunity in the service of the republic.
If one Branch of the Department of the Govt. is not following the lawful order of the hierarchy of the governmental authority, definitely the person who is aggrieved can come before the HCD and pray for direction or declaration to implement, fulfill or obey the lawful order of the govt., which the Administrative tribunal is not competent to do.
The syndicate being an executive authority of the University made nomination for selection board with lawful authority. The University orders having provided remedy by way of appeal from the syndicate’s order the writ petition in this reason is not maintainable due to the doctrine of exhaustion.
Under the Indian Administrative Tribunals Act, 1985, the Administrative Tribunals are equal and substitute of the High Courts having exclusive jurisdiction in all service matters of the Government Servants and that of the statutory bodies. Unlike the Indian law, the Administrative Tribunals Act, 1980 of Bangladesh have been enacted in retrogression of the concept as is contemplated in Article 117 of our Constitution. Although the Administrative Tribunals have jurisdiction in all service matters relating to the persons in the service of the Republic of Bangladesh and statutory bodies specified in the schedule of the Act, these tribunals are not equal or substitute of the High Court Division of the Supreme Court.
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.
The Constitution provides that the President of Bangladesh shall have the power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority.
There are other tribunals in Bangladesh of which Labour Appellate Tribunals, Tax Appellate Tribunal and Election Tribunal deserve special attention.
Tax Appellate Tribunal:
The Tax Appellate Tribunal is set up in accordance with the provisions of Chapter III (sections 11- 15) of the Income Tax Ordinance, 1984.
Composition of the Tribunal:
There is no specific reference in the Ordinance as to the number of judges in the Tribunal Section 11 of the Ordinance, 1984 states that the Government shall establish a Taxes Appellate Tribunal consisting of a President who shall be a judicial member appointed by the Government and such other members as the Government may, from time to time, appoint.
Qualifications to be a Member of the Tribunal:
The Ordinance was silent as to the qualifications of the members of the tribunal. In 2002, by section 28 of the Finance Act, 2002 an amendment was made to this Ordinance which prescribes the qualification without which a person can not be a member of the tribunal. Now, a person shall not be appointed as a member of the Taxes Appellate Tribunal unless¬
(i) he was a member of the National Board of Revenue; or
(ii) he was a Commissioner of Taxes; or
(iii) he is a Commissioner of Taxes; or
(iv) he is a chartered accountant and practiced professionally for a period not less than eight years; or
(v) he is a cost and management accountant and practiced professionally for a period not less than eight years; or
(vi) he is an income tax practitioner and practiced professionally for not less than twenty years; or
(vii) he is a professional legislative expert having not less than eight years experience in the process of drafting and making financial and tax laws; or
(viii) he is an advocate and practiced professionally for not less than ten years in any income tax office.
Rules of Procedure of the Tax Tribunal:
The powers and functions of the Appellate tribunal are performed by Benches to be constituted by the President of the tribunal. The decision of a Bench (usually consists of two or more persons as the President thinks proper) in any case or on any point shall be given in accordance with the opinion of the majority of its members. Where there are only two members of the Appellate Tribunal and they differ in any case, the Government may appoint an additional member of the Appellate Tribunal for the purpose of hearing the case; and the decision of the case shall be given in accordance with the opinion of the majority of the members of the Appellate Tribunal as constituted with such additional member.