Mujibur Rahman, Ex-Collector of Customs
Vs.
Government of Bangladesh
Supreme Court
Appellate Division
(Civil)
JUSTICES
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
Judgment : December 10th, 1992.
Lawyers :
Moinul Hoque, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record-For A Petitioners
Aminul Huq, Attorney-General (AW Bhuiyan, Additional Attorney-General, with him) instructed by Md. Nowab Ali, Advocate-on-Record-For the Respondents.
Civil Review Petition No. 1 of 1992
(From the Judgment and order dated 17?12?1 passed by this Court in CPLA No. 292 of 1991).
JUDGEMENT
ATM Afzal J: Petitioner seeks for review of the order dated 17 December, 1991 dismissing his petition for leave to appeal No. 292 of 1991.
2. The petitioner who was a Collector of Customs and Excise at Khulna upon conviction by a Special Martial Law Court was compulsorily retired from service by notification dated 4.8.93 under Rule 4(3) (b) of the Government Servants (Discipline and Appeal) Rules, 1976, hereafter referred to as the Rules. The order was passed by the Chief Martial Law Administrator.
3. The notification was impugned before the Administrative Tribunal in Case No. 148 of 1985 which declared the notification to be void and without jurisdiction, inter alia, on the ground that the CMLA was not competent under the Rules to pass the order of compulsory retirement. The Appellate Tribunal, however, held that the legal dispensation under which the CMLA was running the country and the administration provided unlimited power to him; nothing was beyond his jurisdiction and further no court could declare his order to be without jurisdiction. Accordingly the decision of the Tribunal was set aside.
4. Leave to appeal from the Judgment of the Appellate Tribunal was refused by the impugned order.
5. It was argued at the hearing of the leave petition that the Rules and the Proclamation Order No.1 of 1982 dated 11 April, 1982 read together would show that the jurisdiction of the CMLA was completely ousted in respect of matters coming under the Rules.
6. In rejecting the said contention, it was inter alia, held that “Mr. Ahmed (learned Advocate for the petitioner) has not been able to show any authority for the proposition that in such circumstances an order passed by the delegator instead of the delegatee will be wholly without jurisdiction, more so, when 11cdclevator wields absolute power and the delegate in his nominee.”
7. Mr. Moinul Huq, learned Advocate for the petitioner, now submits that a relevant authority, i.e. a Full Bench decision in the case of Mrs. Jamila Multalib Ys. Bangladesh reported in 1 BCR (1981) RCD page 91, which has laid down that once the delegator has abdicated himself wholly of his powers the same can no longer be shared with the delegatee unless the authority of the delegatee is cancelled and it is duly published in the official gazette, escaped the notice of the learned Advocate concerned and so it could not be placed for consideration at the leave stage. He, therefore, prays for review of the impugned order upon consideration of the said decision.
8. We have considered the decision of the Full Bench and thought it advisable not to express any opinion as to the soundness of the proposition laid down therein in that the facts of the present case tire so much materially different that the said proposition has no bearing at all in this case. It may, however, be necessary to examine the said decision on an appropriate occasion.
9. In the Full Bench Case, the Government in exercise of its powers under section 3 of the Emergency Powers Ordinance 1974 (Ord. No. XXVII of 1974) directed that the powers conferred upon the Government under sub?rule (1)(a)(d)(c)(f) and (g), sub?rules (4) and (5) of Rule 5 of the Emergency Powers Rules 1975 may be exercised “also by a District Magistrate and an Additional District Magistrate ……………”. The detention order was passed by the Additional District Magistrate and at a later stage he decided that the order should be rescinded and accordingly he made a recommendation to the Government for release of the detenu. TheGovernment, however, in the meantime itself passed an order maintaining the detention. The question referred to the Full Bench was in these terms:
“the functions which have been delegated to the delegatee cannot be shared by the delegator and if the delegatee has acted in the delegated share interference by the delegator will be illegal.”
The answer was given in the affirmative.
10. In the present case, there is no delegation of authority in that sense by one to the other under the provisions of a Statute. Here the law?giver, namely, the CMLA who is the source of all authority, directs that the President will perform certain functions as assigned to him “by me.” Having regard to the comprehensive nature of the Proclamation dated 24 March, 1982 nothing could be beyond the CMLA. Indeed, here the question falls to be determined more on consideration of jurisdiction rather than on delegation of power. The CMLA did not lack any authority to pass any order and further under the Constitution (Seventh Amendment) Act, 1986 all orders, etc. of the CMLA made or purported to have been 4nade in exercise or purported exercise of the powers derived from the Proclamations shall be deemed to have been validly made and shall not be questioned in or before any Court on any ground whatsoever,
The petition is dismissed.
Ed.
Source : 45 DLR (AD) (1993) 98