Broadly speaking, the term, ‘administrative’ refers to broad areas of governmental activities in which repositories of power may exercise every class of statutory function.65 The word ‘tribunal’ has been defined earlier. The administrative tribunals are those tribunals, which deal with administrative affairs.
Administrative Tribunals have their roots traced from French system of Administrative Tribunals. In France, the control of the Judicial Courts over the Administration was lifted under Article 12 of the Law of 1790, which is in force even today. Napoleon also decided to build up solid governmental machinery on the ruins of French Revolution so that it could function effectively. The French Constitution of 1799 established the Council d’Etat. This was the beginning of the system of Administrative Tribunals.
The Administrative Tribunal is the third type of judicial body as mentioned in the Constitution of Bangladesh, 1972 in Part VI (Article 117).
Administrative Tribunal and Bangladesh Constitution:
A Government Servant during the British rule in India held the office during the pleasure of the Crown. It was for the first time in 1919 certain constitutional protections were provided for the Government servants by the insertion of section 96B in the Government of India Act, 1915. This section was incorporated in the Government of India Act, 1935 and in the Pakistan Constitution. During the adoption of Bangladesh Constitution, 1972, the framers of the Constitution included the provision in Article 117.
Article 117(1) of Bangladesh Constitution, 1972 empowers the Parliament to establish one or more Administrative Tribunals against whose decisions no writ will lie in view of the provision of Article 102(5).
Such tribunals may be established to deal with matters relating to-
(a) the terms and conditions of persons in the service of the Republic including matters provided for in Part IX and award of penalties or punishment;
(b) the acquisition, administration, management and disposal of any property vested in or managed by the govt. by any law, including the operation and management of, and services in any nationalized enterprise or statutory public authority;.
(c) any law to which article 102 (3) applies.
Article 102 (3) of the Constitution of Bangladesh, 1972 provides that notwithstanding anything contained in article 102 (1) and article 102 (2), the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.
Article 47(1) provides that no law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part-
(a) the compulsory acquisition, nationalisation or requisition of any property, or the control or management thereof whether temporarily or permanently;
(b) the compulsory amalgamation of bodies carrying on commercial or other undertakings;
(c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein;
(d) the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil;
(e) the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons; or
(f) the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking; if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution.
Article 47(2) provides that notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution;
Provided that nothing in this article shall prevent amendment, modification or repeal of any such law.
Article 47(2) provides that notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution. ‘Court’ as defined in Article 152 includes Supreme Court and hence the HCD cannot entertain any writ petition in respect of any matter falling within the jurisdiction of an Administrative Tribunal. So, it is clear that the Supreme Court shall not entertain any proceedings or make any matter falling within the jurisdiction of an Administrative Tribunal.
But the HCD sometimes entertains writ petition on the ground that the remedy provided by the Administrative Tribunal is not efficacious; in Abdul Awal Munshi vs. B. IV. D. Board, it is submitted that when the HCD has jurisdiction it may refuse to exercise that on the ground of non-exhaustion of efficacious remedy. But when the HCD’s jurisdiction is ousted by the Constitution then it cannot apply it except on the ground of violation of fundamental rights.
No proceedings, order or decision of a tribunal shall be liable to be challenged, reviewed, quashed and called in question in any Court. 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.
In case of Mujibur Rahman vs. Bangladesh, the question arose whether a writ petition would be maintainable against the decision of the Administrative Appellate Tribunal. The combined effect of art.102 (5) and art.117 (2) is that no writ petition is maintainable against the decision of Administrative Tribunal. The Constitution is silent about the Administrative Appellate Tribunal. Again, when what is challenged is not the service rule, but administrative interpretation of a service rule, writ petition is not maintainable.