An administrative court is a type of court specializing in administrative law, particularly disputes concerning the exercise of public power. Their role is to ascertain that official acts are consistent with the law. Such courts are considered separate from general courts
The subject of Administrative Tribunals in Bangladesh| A Legal Analysis; it sets forth the historical process whereby a legal system has come to be what it is over time.
Bangladesh which emerged as an independent and sovereign state on the 16th December, 1971, has a long political and legal history. In the ancient times it was ruled by the local Hindu rulers who administered justice according to local customary laws based on religion. At the beginning of the 13th century it was invaded by the Muslims who ruled the country up to the middle of the 18th century. They introduced Islamic administration of justice in which reflection of the legal system of the Hindu period could not be ignored .Though the British came to Indian Sub-continent at the beginning of the 17th century. They were able to establish political sovereignty over Bengal and ultimately over the whole of Indian Sub-continent at the middle of the 18th century. They infiltrated their legal system and replaced the earlier one in course of time. The British left the Sub-continent in 1947 giving independence to colony of India by dividing into two independent dominions, India and Pakistan. On independence in 1947, Bangladesh which was previously a part of province of Bengal became a province of Pakistan named as East Pakistan and was ruled by the Pakistani neo-colonial rulers up to 1971 when it emerged as a sovereign state.
So, the roots of the development of legal system of Bangladesh go back to the ancient times of Indian Sub-continent. It passed through various stages and has gradually developed as a continuous historical process. The process of the development can be conveniently divided into the five important periods- Hindu period, the Muslim period, the British period, Pakistan period and the Bangladesh period. The Hindu period extended for nearly 1600 years and after the beginning of the Christian era. Muslim period began with the first major invasion by Muslims in Indian Sub-continent in 1100 A.D. The British period began with the consolidation of their power in 1757 A.D. in India, and lasted for nearly two hundred years. The Bangladesh period has began with the withdrawal of the British colonial rule from the Indian Sub-continent and the establishment of the independent States of India and Pakistan in 1947.
The subordinate courts in Bangladesh are one of the two tiers of the court system in Bangladesh and the other tier is the Supreme Court (which has been discussed earlier).The subordinate courts are located in different districts and metropolitan areas across Bangladesh. All the subordinate courts are under the authority or supervision of the Supreme Court of Bangladesh. That is all the subordinate courts of Bangladesh are subservient or subjugated to the Supreme Court of Bangladesh. There are a wide variety of subordinate courts, such courts are the creatures of statutes. Their powers, Functions and jurisdictions are also determined by the respective statutes. These are the basic courts of development in the system of the judiciary of Bangladesh.
CHAPTER 1
CONCEPT OF THE ADMINISTRATIVE TRIBUNAL
Introduction
apart from the court of law,which are the regular means of resolving conventional dispute, there ara other means of settling contentions of special nature.Administrative tribunal is one of such a means established by law and developed in a
picemeal manner with the advent welfere stats. For, with the increasing growth of welfare stats , more and more hitherto unregulated areas started to be regulated under various enactment passed from time time.These enactments became potential sources of dispute, which the existing courts were not in a position to deal with properly because of the increased number of disputes of special nature. Accordingly, it was keenly felt that a separate forum, Administrative Tribunal, to be established to deal with such a conflict. In fact, its development proliferation are essentially a twentieth century phenomenon.
As the indian supreme court in HARINAGAR SUGAR MILLS LTD. Vs. SHYAM SUNDAR JHUNJHUNWALA OBSERVED:
“Tribunals” means those bodies ogf men who are appointed
to decide controverses arising certain speciasl laws.
In the same vein, the Supreme Court of Bangladesh observe in the case of Bangladesh Vs. Dhirendra Nath Sarker thus:
“tribunals”mean those bodies of mean who are appointed to decide controverses arising under certain special Laws between perties.
A particular authority is required to fulfill the following essential conditions:
- It is established by particular statute,
- It is established as an adjudicating body clothed with a part of the judicial function of the state , and
- It is empowered to resolve disputes of special nature arising between parties under cetrtain special Laws.
The reasons for the development of an Administrative Tribunal may be examined under the head of
(1) Expert knowladge ,
(2) policy- oriented decesion,
(3) Cheapness,
(4) Eccessibility,
(5) Informality
(6) Flexibility
(7) privacy, and
(8) Speedy justice.
Explanation are given bellow:
Exppert knowladge:
Many of the important questions that have to be decide under modern special legistation call for an expert knowladge of matters. Administrative Tribunals is, in actual practice, an adjudicating forum were specially qualified people make decisions as experts of particular subject. Generally it is consider of a chair persons to other non legally qualified people, who have some particular experties in the particular filed over which the Adminiostraive Tribunal has jurisdiction.For example, the labour court establish in Bangladesh to settle industrial disputes composed of alegally qualified chairman, and on representative from the workmen and one person to represent the viwes of the employers. The experts,m therfore, sit on the decision-making board, and are not simply called to give expert evidens, as old be the case in an ordinary Court.
Policy-oriented decision:
Ordinary courts do not decide disputes on the basic of the policy. They look at the strict wording of the legislation.As such, they can not properly resolve many of the disputes of modern times, which require policy-oriented decisions.But, Administrative Tribunals is the only form, which can meet this requirement, as it does not look at the strict wording of the legislation. Rather, it examines the spirit and policy of the legislation so as to ensure that its decisions would give effect to that policy.
Cheapness:
Ordinary civil Courts in certain cases charge fees: Tribunals do not. For example, rent tribunals and national insurance Tribunals in the United Kingdom emphasize lack of expense. People appearing before this Tribunals can be represented by persons other then lawers , and this also helps reduce expences. Further , a person who loses an action in the Ttribunal does not have to pay the cost of the other side i.e. opposite party.
Accessibility:
A common characteristic of Administrative Tribunals compare it with ordinary Courts is that the legal profession does not have a monopoly of the rigght of represent those appearing before the Aministrative Tribunals. This fact alone makes the Administrative Tribunals more accessibile to the public then the ordinary courts, since a trade union official, and accountant, a doctor, a social worker or a friend may often present and indivuiduals case effectively.
Informality:
In actual practice, Administrative Tribunal are as informal as is cosistent with an orderly conduct of their affairs. And attend is usually made to created and atmosphere in which people who appeare in Tribunal will not feel ill or nervous. Further, Administrative Tribunals are not bound by such complex rules of procedure or such stringent rules of evidence as prevail in the irdianry courts. They may admit hearsay evidence; they must observe the principles of natural justice, but cross-examination is not essential.
Flexibility:
Although every body of men that has to make decisions evolvs in course of time general working principles , and government depertments tend to follow their own presidents, the new Administrative Tribunals are not hampered by the rigid doctrin of binding precident adhered to by the Courts. They thus have greater freedom to develop new brances of the Law on the basois of the modern social legislation and suitable to the needs of the welfare state.
Privacy:
It is the basic principle of common law that court should be open to the public, so that they may attend at any time. This, indeed, does not always suit the parties who may prefer to havre the matter heard in privat . Administrative Tribunals have this additional flexibility and advantages that they may meet in private in case of necessity.
Speedy justice:
Administrative Tribunal cases come on quickly and are usually dealt with within the day.Many Tribunals even fix the time and the day on which the will be heard. So, those concerned need only to attend for a minimum length of time and are not kept waiting.
CHAPTER 2
ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE TRIBUNALS IN FRANCE AND UNITED KINGDOM
The french and english legal system of Europe have exerted considerable enfluence shaping Administrative Tribunals in the indo-pak- Bnaglades subcontinent and the french system, with certain variations, appears to be in oppearation over the whole of Europe with exeption of the Uinted Kingdom. an attem is theirfore, made in this chapter of examine the origin and development of administrative Tribunals in France and the United Kingdom under the French legal system as well as english legal system respectibly.
- origin and development of Administrative Tribunal in France:
Under the french legal system, their are two sets of judicial bodies, ordinary courts of law and administrative tribunal, independent of each other. The ordinary courts Administrative the ordinar law of the country as between private individuals. The Administrative Tribunals administer the law called
DROIT ADMINISTRATIF AS BETWEEN A PRIVET INDIVIDUALS AND THE STATE.
Presently there are two types of administrative Tribunals:
- Conseil d Etat (1799-to date) and
- Tribunaux Administratif(1953-to date)
Conseil Du Roi:
In the pre-revolutionary France, Conseil du Roi had to perform various function viz,legal, executive and judicial. Among others it avised the king in legal and Administrative matters . It also discharge judicial functions in resolving disputes between great nobles.
Conseil d Etat:
At the beginning, Conseil d Etat was not an independent adjucating body. It was an appendage of the executive. Its men tast was to advice the minister with whom the complaint was to be lodged. In fact the minister was the jugde and the Conseil d Etat administered only advisory justice. It did not have puclic seasons. It had no power to pronounce judgments.
Tribunaux Administratif:
Intially, the object of TRibunaux Administratif was to quicken the proces justice and reduce the work load of conseil d Etat, those the conceil exercise the appellate jurisdiction over the newly created TRibunaux Administrtif. All other matters, which fell beyond the jurisdiction of Tribunaux Administratif, could be brought befor the conseil. Thus, the reform of 1953 conferer a new jurisdiction and a new statute upon these local adjudicating bodies.
Tribunal des Conflicts:
Tribunal des conflicts consists of equal number of ordinary and administrative judges, and is presided over by the minister of justice. It was establish in France in 1871.
ORIGIN AND DEVELOPMENTS OF ADMINISTRATIVE TRIBUNALS IN UNITED KINGDOM :
An important feature of the english legal system is the establishment of various types of Administrative Tribunals mainly in the 20century as a by-product of the welfare sate, although some trace their origin before the 20 century.
But in the year of 1929 the British Parliament appointed a committee on monisters power headed by loard Donoughmore known as Donoughmore committee.
Instead the committee laid stresses on the independence of administrative Tribunals and among others, recommonded that-
- Administrative Tribunals should continue to function and exercise judicial powers.
- the powers of the high court to keep administrative tribunals within limit by prerogative writs should be retained;
- Administratve Tribunals should observe the rules of natural justice. and
- there should be an appeal of the High court on the point of Law
CHAPTER 3
ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE TRIBUNALS IN THE INDO-PAK-BANGLADESH SUBCONTINENT
The origin and development of Asministrative Tribunals in the subcontinent can be traced to the ancient and medieval periods although their extensive developments have been made during the modern period.
During the periods, the king’s Courts was the highest court appeal as well as original courts in the case of vital importance. In the king’s court, learned Brahmins, judges, ministers,elders, and representative of the trading community advised the king.
During the medieval periods, no vital change concerning Tribunals system were made in the Adminstration of justice.The earlier system, indeed, remained operative until the beginning of the modern period and the advent of the British in this subcontinent.
ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE TRIBUNALS IN INDIA:
In the post-independence era, some new Tribunals have been established in India. Among the Tribunals established, the industrial Tribunal, the copy right board, the rent control Tribunal and the income tax appeallate Tribunal are of vital importance.
A new phase of development of tribunal system began in India with the pasing of its constitution(42 amendment) Act, 1976. The Act, for the first time in the history of India, paved the way for the establishment of Administrative Tribunals to deal with disputes relating to service matters of civil servents.
ADMINISTRATIVE TRIBUNALS IN INDIA:
New phase of development
In 1976, the Indian parliament passed the constitution (42 amendment) Act, 1976. The Act inserted a new Article 323 A in the constitution empowering the parliament to establish by law Administrative Tribunals to deal with disputes relating to service matters of civil servents.
Accordingly the Indian parliament, in pursuance of Article 323A, enacted the Administrative Tribunals Act, 1985. The Act came into force on one july 1985, and an Administrative Tribunals was establish on one november 1985 with its benches in deferent part of the country.
ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE TRIBUNALS IN PAKISTAN:
After the establishment of pukistan in 1947, statutes have established many new tribunals. These are , among others, Labour Court and Labour Appellate Tribunal established under the Industrial relations ordinance, Railway rates Tribunal established under the Pakistan Railways Act, Election Tribunals established under the Representation of people Act, Mines Tribunal established under the Pakistan Mines Act, and the Rent controller appointed under the Rent ristriction Ordinance.
ADMINISTRATIVE TRIBUNAL IN PAKISTAN :
new phase of development
In legal spahere, neither the 1956-constitution nor the 1962-constitution of Pakistan contained any provision for the establishment of Administrative Tribunals pertaining to service matters of civil servents. Fro the first time Article 216 of the pakistan interim constitution 1972, contained provisions for the establishment of Administrative Tribunals to resolve disputes concerning service matters of civil servents. Susquently, the new constitution of pakistan, came into force on 12 April 1973, provided in Article 212 for the establishment of Administrative Courts and Tribunals to excercise exclusive jurisdiction in respect of matters relating to the terms and conditions of services of civil servents, claims arising from tortious acts of Government, or its servents while acting in exescise of their duties, or of any local or other authoraties empowered to levy any tax or cess, or the acquisition, administration and disposal of enemy property under any law.
ORIGIN AND DEVELOPMENT OF ADMINISTRATIVE TRIBUNALS IN BANGLADESH
Apart from the tribunals inherited from paklistan, impotance tribunals, e.g. commissioner of Taxes and Taxes Appellate Tribunals have been established in Bangladesh since its indepency. It should be mentioned here that doing log passed time, disputes arising out of the administrative action both in the p[ublic and private sectors had been subjects of judicaul review in the courts of law. The courts with the growth of population and socio-economic complexity had been crowded with infuex of cases of various natures. The volume of cases on the Administrative sides also increase considerable occupying great chunk of courts time to deal with such cases.
ADMINISTRATIVE TRIBUNALS IN BANGLADESH
New phase of development
A new phase of development of tribunal system began in Bangladesh with the adoption of its new constitution. With regard to the establishment of Administrative Tribunals for dealing with disputes concerning terms and conditions service of civil servents, the constitution of Bangladesh, adopted in November,1972, containes provisions in Article 117. this Article empowers the house of the nation i.e. the parliament, to establish, by law, one or more Administrative Tribunals in Bangladesh.
8 years Later of the enactment and emforcement of the constitution, 6 the parliament of Bangladesh in fulfillment of the constitutional mandate, enact the Administrative tribunals 1980(Act no.7 of 1981) which empowered the Government to establish by notification in the official gazette on or more Administrative Tribunals to deal with matters and disputes spacially pertaining to service matters of civil servents.
CHAPTER 4
ESTABLISHMENT OF TRIBUNALS AND BENCHES THEREOF
Establishment of Administrative Tribunals
(1) The Central Government shall, by notification, establish an Administrative Tribunal, to be known as the Central Administrative Tribunal, to exercise the jurisdiction, powers and authority conferred on the Central Administrative Tribunal by or under this Act.
(2) The Central Government may, on receipt of a request in this behalf from any State Government, establish, by notification, an Administrative Tribunal for the State to be known as the…….(name of the State) Administrative Tribunal to exercise the jurisdiction, powers and authority conferred on the Administrative Tribunal for the State by or under this Act.
(3) Two or more States may, notwithstanding anything contained in sub-section (2) and notwithstanding that any or all of those States has or have Tribunals established under that sub-section, enter into an agreement that the same Administrative Tribunal shall be the Administrative Tribunal for each of the States participating in the agreement, and if the agreement is approved by the Central Government and published in the Gazette of India and the Official Gazette of each of those States, the Central Government may, by notification, establish a Joint Administrative Tribunal to exercise the jurisdiction, powers and authority conferred on the Administrative Tribunals for those States by or under this Act.
(4) An agreement under sub-section (3) shall contain provisions as to the name of the Joint Administrative Tribunal, the manner in which the participating States may be associated in the selection of the Chairman, Vice-Chairman and other Members of the Joint Administrative Tribunal, the places at which the Bench or Benches of the Tribunal shall sit, the apportionment among the participating States of the expenditure in connection with the Joint Administrative Tribunal and may also contain such other supplemental, incidental and consequential provisions not inconsistent with this Act as may be deemed necessary or expedient for giving effect to the agreement.
(5) Notwithstanding anything contained in the foregoing provisions of this section or sub-section (1) of section 5, the Central Government may,–
(a) with the concurrence of any State Government, designate, by notification, all or any of the Members of the Bench or Benches of the State Administrative Tribunal established for that State under sub-section (2) as Members of the Bench or Benches of the Central Administrative Tribunal in respect of that State and the same shall exercise the jurisdiction, powers and authority conferred on the Central Administrative Tribunal by or under this Act;
(b) on receipt of a request in this behalf from any State Government, designate, by notification, all or any of the Members of the Bench or Benches of the Central Administrative Tribunal functioning in that State as the Members of the Bench or Benches of the State Administrative Tribunal for that State and the same shall exercise the jurisdiction, powers and authority conferred on the Administrative Tribunal for that State by or under this Act, and upon such designation, the Bench or Benches of the State Administrative Tribunal or, as the case may be, the Bench or Benches of the Central Administrative Tribunal shall be deemed, in all respects, to be the Central Administrative Tribunal, or the State Administrative Tribunal for that State established under the provisions of article 323A of the Constitution and this Act. (6) Every notification under sub-section (5) shall also provide for the apportionment between the State concerned and the Central Government of the expenditure in connection with the Members common to the Central Administrative Tribunal and the State Administrative Tribunal and such other incidental and consequential provisions not inconsistent with this Act as may be deemed necessary or expedient.]
Composition of Tribunals and Benches thereof.
(1) Each Tribunal shall consist of a Chairman and such number of Vice-Chairman and Judicial and Administrative Members] as the appropriate Government may deem fit and, subject to the other provisions of this Act, the jurisdiction, powers and authority of the Tribunal may be exercised by Benches thereof.
(2) Subject to the other provisions of this Act, a Bench shall consist of one Judicial Member and one Administrative Member.
3* * * * *
(4) Notwithstanding anything contained in sub-section (1), the Chairman—
(a) may, in addition to discharging the functions of the Judicial Member or the Administrative Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Administrative Member, of any other Bench;
(b) may transfer the Vice-Chairman or other Member from one Bench to another Bench;
‘(c) may authorise the Vice-Chairman or the Judicial Member or the Administrative Member appointed to one Bench to discharge also the functions of the Vice-Chairman or, as the case may be, the Judicial Member or the Administrative Member of another Bench; and
(d) may, for the purpose of securing that any case or cases which, having regard to the nature of the questions involved, requires or require, in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than [two members], issue such general or special orders, as he may deem fit. [Provided that every Bench constituted in pursuance of this clause shall include at least one Judicial Member and one Administrative Member.]
Notwithstanding anything contained in the foregoing provisions of this section, it shall be competent for the Chairman or any other Member authorised by the Chairman in this behalf to function as [a Bench] consisting of a single Member and exercise the jurisdiction, powers and authority of the Tribunal in respect of such classes of cases or such matters pertaining to such classes of cases as the Chairman may by general or special order specify: Provided that if at any stage of the hearing of any such case or matter it appears to the Chairman or such Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of [two members], the case or matter may be transferred by the Chairman or, as the case may be, referred to him for transfer to, such Bench as the Chairman may deem fit.
Subject to the other provisions of this Act, the Benches of the Central Administrative Tribunal shall ordinarily sit at New Delhi (which shall be known as the principal Bench), Allahabad, Calcutta, Madras, New Bombay and at such other places as the Central Government may, by notification, specify. Subject to the other provisions of this Act, the places at which the principal Bench and other Benches of a State Administrative Tribunal shall ordinarily sit shall be such as the State Government may, by notification, specify.”.
Qualifications for appointment as Chairman, Vice-Chairman or other Member.
(1) A person shall not be qualified for appointment as the Chairman unless——–
(a) is, or has been, a Judge of a High Court; or
(b) has, for at least two years, held the office of Vice- Chairman,
(2) A person shall not be qualified for appointment as the Vice- Chairman unless he—
(3) ***
(a) is, or has been, or is qualified to be, a Judge of a High Court-
- has, for at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or
has, for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or has, for a period of not less than three years, held office as a Judicial member or an Administrative Member. A person shall not be qualified for appointment as a Judicial Member unless he—
(a) is, or has been, or is qualified to be, a Judge of a High Court; or
(b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years. (3A) A person shall not be qualified for appointment as an Administrative Member unless he– has, for at least two years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or has, for at least three years, held the post of a Joint Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, and shall, in either case, have adequate administrative experience.
Subject to the provisions of sub-section (7), the Chairman, Vice-Chairman and every other Member of an Administrative Tribunal for a State shall be appointed by the President after consultation with the Governor of the concerned State.
(6) The Chairman, Vice-Chairman and every other Member of a Joint Administrative Tribunal shall, subject to the terms of the agreement between the participating State Governments published under sub- section (3) of section 4, and subject to the provisions of sub- section (7) be appointed by the President after consultation with the Governors of the concerned States.
(7) No appointment of a person possessing the qualifications specified in this section as the Chairman, a Vice-Chairman or a Member shall be made except after consultation with the Chief Justice of India]. Explanation.–In computing, for the purposes of this section, the period during which a person has held any post under the Central or a State Government, there shall be included the period during which he has held any other post under the Central or a State Government (including an office under this Act carrying the same scale of pay as that of the first mentioned post or a higher scale of pay. Vice-Chairman to act as Chairman or to discharge his functions incertain circumstances. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances.
(a) In the event of the occurrance of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the Vice-Chairman or, as the case may be, such one of the Vice-Chairman as the appropriate Government may, by notification, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Act to fill such vacancy enters upon his office. When the Chairman is unable to discharge his functions owing to absence, illness or any other cause, the Vice-Chairman or, as the case may be, such one of the Vice-Chairmen as the appropriate Government may, by notification, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties.
( 8). Term of office.
The Chairman, Vice-Chairman or other Member shall hold office as such for a term of five years from the date on which he enters upon his office, but shall be eligible for re- appointment for another term of five years: Provided that no Chairman, Vice-Chairman or other Member shall hold office as such after he has attained,–
(a) in the case of the Chairman or Vice-Chairman, the age of sixty-five years, and
(b) in the case of any other Member, the age of sixty-two years.
- Resignation and removal.
(1) The Chairman, Vice-Chairman or other Member may, by notice in writing under his hand addressed to the President, resign his office: Provided that the Chairman, Vice-Chairman or other Member shall, unless he is permitted by the President to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest.
(2) The Chairman, Vice-Chairman or any other Member shall not be removed from his office except by an order made by the President on the ground of proved misbehaviour or incapacity after an inquiry made by a Judge of the Supreme Court in which such Chairman, Vice-Chairman or other Member had been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charge.
(3) The Central Government may, by rules, regulate the procedure for the investigation of misbehaviour or incapacity of the Chairman, Vice-Chairman or other Member referred to in sub-section (2).
- Salaries and allowances and other terms and conditions of service ofChairman, Vice-Chairman and other Members
The salaries and allowances payable to, and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Chairman, Vice-Chairman and other Members shall be such as may be prescribed by the Central Government: Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman, Vice-Chairman or other Member shall be varied to his disadvantage after his appointment.
(11). Provision as to the holding of offices by Chairman, etc., on ceasingtobe such Chairman, etc..
On ceasing to hold office,–
(a) the Chairman of the Central Administrative Tribunal shall be ineligible for further employment either under the Government of India or under the Government of a State;
(b) the Chairman of a State Administrative Tribunal or a Joint Administrative Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman or Vice-Chairman or any other Member of the Central Administrative Tribunal or as the Chairman of any other State Administrative Tribunal or Joint Administrative Tribunal, but not for any other employment either under the Government of India or under the Government of a State;
(c) the Vice-Chairman of the Central Administrative Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman of that Tribunal or as the Chairman or Vice-Chairman of any State Administrative Tribunal or Joint Administrative Tribunal, but not for any other employment either under the Government of India or under the Government of a State;
(d) the Vice-Chairman of a State Administrative Tribunal or a Joint Administrative Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman of that Tribunal or as the Chairman or Vice-Chairman of the Central Administrative Tribunal or of any other State Administrative Tribunal or Joint Administrative Tribunal, but not for any other employment either under the Government of India or under the Government of a State;
(e) a Member (other than the Chairman or Vice-Chairman) of any Tribunal shall, subject to the other provisions of this Act, be eligible for appointment as the Chairman or Vice-Chairman of such Tribunal or as the Chairman, Vice-Chairman or other Member of any other Tribunal, but not for any other employment either under the Government of India or under the Government of a State;
(f) the Chairman, Vice-Chairman or other Member shall not appear, act or plead before any Tribunal of which he was the Chairman, Vice- Chairman or other Member. Explanation.–For the purposes of this section, employment under the Government of India or under the Government of a State includes employment under any local or other authority within the territory of India or under the control of the Government of India or under any corporation 1*[or society] owned or controlled by the Government.
( 12). Financial and administrative powers of the Chairman.
The Chairman shall exercise such financial and administrative powers over Benches as may be vested in him under the rules made by the appropriate Government: Provided that the Chairman shall have authority to delegate such of his financial and administrative powers as he may think fit to [the Vice-Chairman or any officer of the Tribunal, subject to the condition that the Vice-Chairman or such officer] shall, while exercising such delegated powers, continue to act under the direction, control and supervision of the Chairman.
( 13). Staff of the Tribunal.
(1) The appropriate Government shall determine the nature and categories of the officers and other employees required to assist a Tribunal in the discharge of its functions and provide the Tribunal with such officers and other employees as it may think fit.
(1A) The officers and other employees of a Tribunal shall discharge their functions under the general superintendence of the Chairman.
(2) The salaries and allowances and conditions of service of the officers and other employees of a Tribunal shall be such as may be specified by rules made by the appropriate Government.
CHAPTER 5
APPLICATION TO TRIBUNALS
(1) Subject to the other provisions of this Act, a person aggrieved by any order pertaining to any matter within the jurisdiction of a Tribunal may make an application to the Tribunal for the redressal of his grievance. Explanation.–For the purposes of this sub-section, “order” means an order made—
(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India on by any corporation 3*[or society] owned or controlled by the Government; or
(b) by an officer, committee or other body or agency of the Government or a local or other authority or corporation [or society] referred to in clause (a).
(2) Every application under sub-section (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) [in respect of the filing of such application and by such other fees for the service or execution of processes, as may be prescribed by the Central Government.]
(1) On receipt of an application under sub-section (1), the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.
Applications not to be admitted unless other remedies exhausted.
(1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(1) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances,–
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(2) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be of one of the remedies which are available unless the applicant had elected to submit such memorial.
Limitation:
(1) A Tribunal shall not admit an application,–
(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;
(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in sub-section (1), where- –
(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates; and
(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.
(3) Notwithstanding anything contained in sub-section (1) or sub- section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case 58 may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.
Procedure and powers of Tribunals.
(1) A Tribunal shall not be bound by the procedure laid down in the Code of Civil Procedure, 1908, (5 of 1908.) but shall be guided by the principles of natural justice and subject to the other provisions of this Act and of any rules made by the Central Government, the Tribunal shall have power to regulate its own procedure including the fixing of places and times of its inquiry and deciding whether to sit in public or in private.
(2) A Tribunal shall decide every application made to it as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents and written representations and 1*[after hearing such oral arguments as may be advanced”].
(3) A Tribunal shall have, for the purposes of 1*[discharging its functions under this Act], the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, (5 of 1908.) while trying a suit, in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872.) requisitioning any public record or document or copy of such record or document from any office;
(e) issuing commissions for the examination of witness or documents;
(f) reviewing its decisions;
(g) dismissing a representation for default or deciding it ex parte;
(h) setting aside any order of dismissal of any representation for default or any order passed by it ex parte; and
(i) any other matter which may be prescribed by the Central Government. 23. Right of applicant to take assistance of legal practitioner and ofGovernment, etc., to appoint presenting officers.23. Right of applicant to take assistance of legal practitioner and of Government, etc., to appoint presenting officers.(1) A person making an application to a Tribunal under this Act may either appear in person or take the assistance of a legal practitioner of his choice to present his case before the Tribunal. (2) The Central Government or a State Government or a local or other authority or corporation 2*[or society], to which the provisions of sub-section (3) of section 14 or sub-section (3) of section 15 apply, 3*[may authorise one or more legal practitioners or any of its officers to act as presenting officers and every person so authorised by it may present its case with respect to any application before a Tribunal”
Conditions as to making of interim orders.
Conditions as to making of interim orders. Notwithstanding anything contained in any other provisions of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceedings relating to, an application unless—
(a) copies of such application and of all documents in support of the plea for such interim order are furnished to the party against whom such application is made or proposed to be made; and
(b) opportunity is given to such party to be heard in the matter: Provided that a Tribunal may dispense with the requirements of clauses (a) and (b) and make an interim order as an exceptional measure if it is satisfied, for reasons to be recorded in writing, that it is necessary so to do for preventing any loss being caused to the applicant which cannot be adequately compensated in money but any such interim order shall, if it is not sooner vacated, cease to have effect on the expiry of a period of fourteen days from the date on which it is made unless the said requirements have been complied with before the expiry of that period and the Tribunal has continued the operation of the interim order.
Power of Chairman to transfer cases from one Bench to another. On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to any other Bench.
Decision to be by majority
If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Tribunal who have heard the case, including those who first heard it.”]
Execution of orders of gtga Tribunal
Subject to the other provisions of this Act and the rules, 2*[the order of a Tribunal finally disposing of an application or an appeal shall be final and shall not be called in question in any court (including a High Court) and such order”] shall be executed in the same manner in which any final order of the nature referred to in clause (a) of sub-section (2) of section 20 (whether or not such final order had actually been made) in respect of the grievance to which the application relates would have been executed.
CHAPTER 6
JURISDICTION, POWERS AND AUTHORITY OF TRIBUNALS
Jurisdiction, powers and authority of the Central Administrative Tribunal:
Jurisdiction, powers and authority of the Central Administrative Tribunal:
(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court in relation to—
(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post filled by a civilian;
(b) all service matters concerning—
(i) a member of any All-India Service; or
(ii) a person [not being a member of an All-India Service or a person referred to in clause
(iii) a civilian [not being a member of an All-India Service or a person referred to in clause
(c) appointed to any defence, services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government; —
all service matters pertaining to service in connection with the affairs of the Union concerning a person appointed to any service or post referred to in sub-clause
(ii) or sub-clause
(iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.
[Explanation.–For the removal of doubts, it is hereby declared that references to “Union” in this sub-section shall be construed as including references also to a Union territory.]
(2) The Central Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities within the territory of India or under the control of the Government of India and to corporations 1[or societies] owned or controlled by Government, not being a local or other authority or corporation 1[or society] controlled or owned by a State Government: Provided that if the Central Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations 1[or societies].
Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation 1[or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court in relation to—
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation 1[or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (a) or clause (b) of sub-section (1)] appointed to any service or post in connection with the affairs of such local or other authority or corporation 1[or society] and pertaining to the service of such person in connection with such affairs.
Jurisdiction, powers and authority of State Administrative Tribunals.
(1) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court 4*** in relation to—
(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;
(b) all service matters concerning a person [not being a person referred to in clause
(c) of this sub-section or a member, person or civilian referred to in clause (b) of sub-section (1) of section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation owned 5*[or society] or controlled by the State Government; (c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose service have —–55 been placed by any such local or other authority or corporation 1*[or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.
(2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section.
(3) to local or other authorities and corporations 1*[or societies] controlled or owned by the State Government: Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations. Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this sub-section apply to any local or other authority or corporation [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court 2*** in relation to—
(a) recruitment, and matters concerning recruitment, to any service or post in connection with the affairs of such local or other authority or corporation 1*[or society]; and
(b) all service matters concerning a person [other than a person referred to in clause (b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of sub-section (1) of section appointed to any service or post in connection with the affairs of such local or other authority or corporation 1*[or society] and pertaining to the service of such person in connection with such affairs
(4).For the removal of doubts, it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.
Jurisdiction, powers and authority of a Joint Administrative Tribunal.
A Joint Administrative Tribunal for two or more States shall exercise all the jurisdiction, powers and authority exercisable by the Administrative Tribunals for such States. Power to punish for contempt. A Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has and may exercise and, for this purpose, the provisions of the Contempt of Courts Act, 1971, (70 of 1971.) shall have effect subject to the modifications that—
(a) the reference therein to a High Court shall be construed as including a reference to such Tribunal;
(b) the references to the Advocate-General in section 15 of the said Act shall be construed,–
(i) in relation to the Central Administrative Tribunal, as a reference to the Attorney-General or the Solicitor- General or the Additional Solicitor-General; and
(ii) in relation to an Administrative Tribunal for a State or a Joint Administrative Tribunal for two or more States, as a reference to the Advocate-General of the State or any of the States for which such Tribunal has been established. 18.
Distribution of business amongst the Benches.
(1) Where 1*[any Benches of a Tribunal are constituted], the appropriate Government may, from time to time, by notification, make provisions as to the distribution of the business of the Tribunal amongst the 2*** Benches and specify the matters which may be dealt with by each Bench.
(2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench of a Tribunal, the decision of the Chairman thereon shall be final. Explanation.–For the removal of doubts, it is hereby declared that the expression “matters” includes applications under section 19.
Applications to tribunals. (1) Subject to the other provisions of thi
CHAPTER 7
APPLEAL AGAINST THE DECISIONS OF ADMINISTRATIVE TRIBUNALS IN BANGLADESH
The relevent provisions concerning appeal against theborders or decision of Administrative Tribunals in Bangladesh have been laid down in section 6(1)of the Administrative TribunalsAct,1980. According to Section 6 (1) of the Administrative Tribunals Acts,1980,the jurisdiction to hear and determine appeal against the orders or decision of Administrative Tribunals under section 4 (1) is vested in the Administrative Appellate Tribunals. Section 6 (1) reads as under:
The Administrative Appellate Tribunals shall have jurisdiction to hear and determine appeals from any order or decision an Administrative Tribunal.
Thus,it appears that the Administrative Appellate Tribunal has not been given original jurisdiction; its jurisdiction is of appellate nature. It hears and determines; appeal against any order or decision of the Administrative Tribunal. Unlike in india, where only the supreme court of India has been given the jurisdiction of appeal against the decision of the Administrative Tribunals ( on the ground of, as case law suggests, illegality, error of law and violation of principles of natural justice), the supreme court of Bangladesh has not been vested with the power to exercise the appellate jurisdiction over the Administrative Tribunal. Even the example of pakistan has not been followed in this regard.Although the Service Tribunals Act, 1973 does not provide for regular appeal
to the supreme court against its decision lies to the Supreme Court subject to grant of leave only on a substantial question of law of public importance.Neither the Administrative Tribunals Rules, 1982, provides for as to Which of the orders are appealable. Since the code of civil procedure,1908, has been made appealable to the proceedings before the Administrative Appellate Tribunals, it may be argued that all order are not appealable. For ,all Orders under the code of Civil Procedure, 1908, are not appealable and the list of appealable order are to be found in order 43 of the First Schedule to the code of civil procedure.
TIME LIMIT FOR APPEAL:
Regarding time limit for appleal , sub- section (2) of section 6 of the Administrative Tribunals Act, 1980, as originally enacted, provides that:
any person aggrieved by order or decision of an Administrative Tribunal may, within tow months from the date of making of the order or decision, prefer an appeal to the Administrative Appellate Tribunal.
But this period of two months for preferring appeal before the Administrative Appellate Tribunal has been extended to theree months by amanding Sub- section (2) of section 6 by the Administrative Tribunals (Amendment) Act , 1997. Besides, Sub-section (2A), added to Section 6 by this Amendment provides that if the Administrative Appellate Tribunal is satisfied on showing of sufficient cause of order of the Administrative Tribunal within six months from the date of the decision or order and not latre than that.
BINDING EFFECT OF THE DECISION OF ADMINISTRATIVE TRIBUNALS AND ADMINISTRATIVE APPELLATE TRIBUNAL:
Regarding binding effect of Tribunals decision and order, Section 8 of the Administrative Tribunals Act, 1980, as originally enacted , provides that-
(1) All decision and order of the Administrative Appellate Tribunal shall be binding upon the Administrative Tribunals and the partices concerned.
(2) All decision and order of an Administrative Tribunal shall, subject to the decisions and orders of the Administrative Appellate Tribunal, be binding on the partice concerned.
Thus the decisions and orders of the Administrative Appellate Tribunal in Bangladesh are binding upon the Administrative Tribunals and the parties concerned, and decisions and orders of the Administrative Tribunal unless appealed against and interfered with by the Administrative Appellate Tribunal are binding upon the partice concerned . Ten years later in 1991, the Administrative Tribunals (Amendment) Act, 1991,by amending section 8, provides that the decision and orders of the Administrative Appellate Tribunal shall, subject to the decision and orders of the Appellate Division, be binding upon the Administrative Tribunals and parties concerned.
COMPOSITION OF THE ADMINISTRATIVE APPELLATE TRIBUNAL:
Originally, sub-sections (2) and (3) of the Administrative Tribunals Act , 1980 provided for the following composition of the Administrative Appellate Tribunal:
(2) An Administrative Appellate Tribunal shall consist of one Chairman and two other members who shall be apponited Government.
(3) The Chairman shall be a person who is, or has been, or is qualified to be a judge of the supreme court or is qualified to be a judge of the Supreme court or is or has been an officer in the service of the republic not below the rank of Additional Secretary to the Government 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 person who is or has been a District judge.
Thus if a judge of the Supreme court was appointed as the chairman of the Administrative Appellate Tribunal then the majority of its members (two out of three) were from the judiciary. Thus provision was made for the inclusion of judge of the highest court of Bangladesh and a chief judicial officer at the district leval into the Administrative Appellate Tribunals to examine the correctness of the decision or order given by the Administrative Tribunal. But sub-section 3 of section 5 also provided for the appointing a civil servant not below the rank of Additional Secretary to the Government as the Chairman of the Administrative Appellate Tribunal.
CHAPTER 8
ADMINISTRATIVE TRIBUNAL IN BANGLADESH UNDER MARTIAL LAWGOVERNMENT
Matrial Law was declared throughout the country for the sceond time in its history on 24 March 1982 after usurpation of power in a stereotyped coup d Etat. The head of the state was removed. cabinet and parliament were dissolved. The 1972 constitution was suspended and all state powers were concerntrated in the executive controlled by the chief Martial law Administrator. All legislative powers were vested in him. courts / Tribunals jurisdiction was largely curtailed. Massive removal/ dismissal or compulsory retierment of civil servents amounting to purging took place. All orders made, acts and things done , and actions taken by the Chief Martial Law Administrator were made immune from being challenged in or before any court or Tribunal on any ground whatsoever.
In the case of Md. Mujibur Rahman Vs. Goverment of Bangladesh, it is found that custom collector Mujibur Rahman was compulsorial retired on 4-8-83 by an order of the Chief Martial Law Administrator.Thereafter ,Mr. Mujibur Rahman, being aggrieved, field this case before the Administrative Tribunal Challenging the impugned order of the Chief Martial Law Administrator as illegal. The learned Member of the Administrative Tribunal, in effect, accepted the case on merit, and set aside the impugned order of the Government as illegal and vires.
But, on appeal, the Administrativ Appellate Tribunal set the decision of the Administrative Tribunal aside only on the ground that the jurisdiction of the Chief Martial Law Administrator was unlimited, and his any order, therefore, could not be held illegal and ultra vires. No Court or Tribunal has jurisdiction to call in question the validity of any order of the Chief Martial Law Administrator on any ground whatsover. All order made, actions taken by the Chief Martial Law Administrator were indeed immune from being challenged in or before any Court or Tribunal.
The Administrative Appellate Tribunal in Ramkrishno Banerjee vs. Secretary, Labour and Man power Ministry has given similar decision. In the appeal, it is found that the appellant petition, ramkrishno Banerjee was compulsorily retired by the authority as per order of the Chief Martial Law Administrator.Being aggrieved, he filed the case, before the Administrator Tribunal Challenging the impugned order of compulsory retirement as illegal and void. The learned Member of the Administrative tribunal , in effect , dismissed the petition of the appellant petitioner, Ramkrishno Banerjee, on the ground that it was barred by limitation.
But the Administrative Appellate Tribunal set aside the decision of the Administrative Tribunal on appeal and held that:
1.The jurisdiction of the chief Martial Law Administrator is unlimited and hiss order. therefore, cannot be held illegal and ultra vires. No court or Tribunal has jurisdiction to call in question the validity of any order of the Chief Martial Law Administrator on any ground whatsover. All order made , acts or things done , actions taken by the Chief Martial Law Administrator are, indeed, exampted from being challenged in or before any court of Tribunal,
2.since the impugned order of compulsory retirement of Ramkrishno Banerjee was issued as per order of the Chief Martial Law Administrator, the lerned member of the Administrative Tribunal, therefore, acted beyond power by entertaning the petition and rejecting the same on the ground that it was barred by limitation .
Thus it is evident that the 1982 Martial Law Administration, which continued up to 11 November 1986, curtailed the powers of the Administrative Tribunal to resolve disputes concerning term and conditions of service of civil servants. the jurisdiction of the Administrative Tribunal was ousted to try any case filed against the order/ decision of the Chief Martial Law Administrator, which was reiterated by the Administrative Appellate Tribunal in a number of cases.