IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION C. P. NO.2001 OF 2009

IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

 

 

PRESENT:

              Mr. Justice Md. Muzammel Hossain.

                                                              -Chief Justice.

                             Mr. Justice Surendra Kumar Sinha.

                             Mr. JusticeMd.Abdul Wahhab Miah.

                             Ms. Justice Nazmun Ara Sultana.

                             Mr. Justice Syed Mahmud Hossain.

                             Mr. Justice Muhammad Imman Ali.

                             Mr. Justice Mohammad Mamtaz Uddin Ahmed.

CIVIL PETITION FOR LEAVE TO APPEAL NO.2001 OF 2009.

(From the judgment and order dated 26.07.2009 passed by the Administrative Appellate Tribunal,Dhakain Appeal No.186 of 2003).

Md. Nazimuddin. :  …….Petitioner.

-Versus

Government ofBangladeshand others. : …….Respondents.
For the Petitioner. : Mr. Syed Amirul Islam, Senior Advocate, instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record.

Respondents.:Not represented.

Date of Hearing.:The 25th August,2011.

J U D G M E N T

SYED MAHMUD HOSSAIN, J: This civil petition for leave to appeal is directed against the decision dated 26.07.2009 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.186 of 2003 reversing the decision dated 29.08.2003 passed by the Administrative Tribunal, Bogra in Tribunal Case No.33 of 2002.   

The facts, leading to the filing of this petition, in a nutshell, are as follows :

The petitioner was appointed as “Workmistri” in the Railway Department and at the time of his appointment in service, he declared that his date of birth was 08.04.1952 and in support of his date of birth, he swore an affidavit and the same was accepted by the authority. In recognition of his meritorious service, he was promoted to the post of Sub-Assistant Engineer. When the petitioner was in service as Sub-Assistant Engineer at Kushtia, respondent Nos.7 and 8 visited his office and found that in the service book, his date of birth was written as 23.01.1952 on the basis of an affidavit sworn by him. Thereafter, the authority asked the petitioner to produce his Secondary School Certificate (in short, S.S.C). The Audit and Accounts Department raised objection against the affidavit. On 23.02.1997, the petitioner filed an appeal to respondent No.7 and the matter was delayed in the Established and Audit Department. Respondent No.4 rejected the appeal holding that the date of birth of the petitioner was 08.04.1947 and the same should be recorded instead of 04.08.1952 in his Memo No.St/604/31 dated 24.06.2002. After about 30 years the audit objection is not legal and proper and the petitioner sustained loss and injury because of the objection of the Audit Department.

The respondents filed written objection denying all the material allegations made in the petition before the Administrative Tribunal, contending, inter alia, that the case was not maintainable in its present form and that there was no cause of action and that the case was barred under section 4(2) of the Administrative Tribunal Act. The petitioner, Nazimuddin, was appointed as Workmistri on 04.12.1972 and he wrote his date of birth as 08.04.1952 and swore an affidavit in support of his date of birth and accordingly his date of birth was written in his service book as 08.04.1952 instead of 08.04.1947 which was written in his S. S. C. Certificate. The Railway Audit Department, Paksey raised an objection against the affidavit. Accordingly, the petitioner was directed to submit his S.S.C. certificate but the petitioner could not submit his S.S.C. certificate and filed an application stating that his S.S.C. certificate was lost. After that, D.R.M., Paksey forwarded the petitioner’s application, service book and copy of objection of audit report to the General Manager, Bangladesh Railway, West, Rajshahi to ascertain the correct date of birth of the petitioner. The General Manager after perusing the necessary papers and affidavit came to the conclusion that the petitioner’s date of birth was not 08.04.1952 but 08.04.1947 which was accordingly written in his service book now lying with the office of the C.P.O., West, Rajshahi. After that, the petitioner preferred an appeal to the General Manager, West, Rajshahi for recording his date of birth as 08.04.1952 shown in the affidavit. The General Manager sent it to the C.P.O., West, Rajshahi for proper action but the C.P.O. informed the General Manager on 25.06.2002 that there was no scope for correcting the date of birth against which, the petitioner filed the A.T. Case No.33 of 2002 before the Administrative Tribunal, Bogra, under section 4 of the Administrative Tribunal Act,1980 for declaration that his correct date of birth was 08.04.1952 instead of 08.04.1947.

After hearing, learned Member, Administrative Tribunal, Bogra, allowed the case, vide her decision dated 29.06.2003.

     Being aggrieved by and dissatisfied with the decision dated 29.06.2003 passed by the learned Member, Administrative Tribunal, Bogra, the respondents preferred Appeal No.186 of 2009 before the Administrative Appellate Tribunal, Dhaka. The Administrative Appellate Tribunal, upon hearing the parties, by its decision dated 26.07.2009 allowed the appeal and set aside the decision dated 29.06.2003 passed by the learned Member, Administrative Tribunal, Bogra.

     Against the decision dated 26.07.2009 passed by the Administrative Appellate Tribunal,Dhaka, the petitioner has filed this instant civil petition for leave to appeal before this Division.

     Mr. Syed Amirul Islam, learned Senior Advocate, appearing on behalf of the petitioner, submits that the 3rd proviso to sub-section 2 of section 4 of the Administration Tribunal Act provides that the application shall have to be filed before Administrative Tribunal within 6 months from the date of making or taking the order, decision or action concerned or making the decision by the higher administrative authority as the case may be and that the petitioner has filed the case before the Administrative Tribunal within that period and as such the decision of Administrative Appellate Tribunal should be set aside. He further submits that proviso 2 to sub-section 2 of section 4 has no manner of application on the facts and in the circumstances of the case of the petitioner and that the Administrative Appellate Tribunal relying on the 2nd proviso without taking into consideration the 3rd proviso erroneously allowed the appeal and set aside the decision passed by the Administrative Tribunal.

     We have considered the impugned decision and other papers on record. The Administrative Appellate Tribunal noticed that the petitioner filed an application/appeal to the higher authority on 23.02.1997 which was rejected on 25.06.2002 and that accordingly, the petitioner filed Administrative Tribunal Case on 04.08.2002 before the Administrative Tribunal, Bogra under section 4 of the Administrative Tribunal Act,1980 against the order dated 27.11.1996 passed by the Audit Department for declaration that his correct date of birth was 08.04.1952 instead of 08.04.1947. The Administrative Appellate Tribunal also noticed that the 2nd proviso to section 4(2) of the Administrative Tribunal Act came into force on 19.11.1997 when the petitioner’s appeal was pending before the authority and that according to the amended proviso, the appeal pending before the authority shall be deemed to have been rejected after expiry of 2 months from 19.11.1997 as the amended proviso came into force on that date. Therefore, the Administrative Appellate Tribunal came to a finding that after calculation, it appeared that the appeal be deemed to have been rejected on 19.11.1998 and that he would have to file the A. T. Case within 6 months from 19.11.1998, that is, on or before 19.07.1998, and that the petitioner filed the A. T. Case on 28.09.1998 long after the period of limitation.

     The Administrative Appellate Tribunal also came to a finding that the petitioner could not submit his S.S.C. certificate as directed by the authority and that ultimately after perusing the necessary papers and the disputed affidavit, the authority finalized the petitioner’s date of birth as 09.08.1947.

     The findings of the Administrative Appellate Tribunal are based on proper appreciation of law and fact.

We would like to give more explicit reply to the questions raised by the learned Advocate 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 administrative authority having the power to set aside, vary or modify an order, decision or action to be challenged before the Administrative Tribunal, the Administrative Tribunal shall not entertain a case until such higher authority takes a decision on the matter.

     The 2nd proviso, in essence, provides that if the appellate authority does not take any decision on an appeal or application for review in respect of any order, decision or action referred to in the 1st proviso within 2 months, the appeal or application for review shall be deemed to have been disallowed after expiry of that period.

     The 3rd proviso, in essence, provides that the Administrative Tribunal shall not entertain a case unless it is made within 6 months from the date of making or taking of the order, decision or action or making the decision on the matter by the higher administrative authority as the case may be.

     It is the cardinal rules of interpretation that interpretation of any provision in isolation without taking into consideration the allied provisions is not permissible.

     If the 3rd proviso is considered in isolation then the 2nd proviso becomes redundant. It was never the intention of the legislature to incorporate a redundant proviso by amendment when the 3rd proviso was in existence. According to the 3rd proviso if an appeal or application for review is filed to higher administrative authority and if such authority passes an order on such appeal or application for review after a long lapse of time, that is, even beyond two months then the case before the Administrative Tribunal can be filed within 6 months from the date of passing of that order.

     According to the 2nd proviso, if an appeal or application for review is filed and if the higher administrative authority does not take any decision on such appeal or application for review within two months then such appeal or application for review shall be deemed to have been disallowed after expiry of that period. If the word “disallowed” as mentioned in the 2nd proviso is construed as a decision or order by higher authority as contemplated under the 3rd proviso then there exists a harmonious construction between the 2nd and 3rd provisos and in fact, the legislature intended as such. In that event, the period of computation of limitation of six months as contained in the 3rd proviso will start running from the date when an appeal or application for review shall be deemed to have been disallowed as completed under the 2nd proviso. The legislature also intended to see that the 2nd and the 3rd provisos are complementary to each other otherwise the 2nd proviso would not have been added before the 3rd proviso by subsequent amendment. Having considered all the 3 provisos, in general, and the provisos 2 and 3, in particular, we find that there is no conflict between the 2nd and the 3rd provisos; rather both the provisos are complementary to each other.

            According to Maxwell, “when possible, a construction should be adopted which will facilitate the smooth working of the scheme of legislation”- Interpretation of Statutes, 12th Edition at page 201.

     In the case of Canada Sugar Refining Co V.R (1898) AC 735, Lord Davy observed as under:

“Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter”.

In the case of “Sultana Begum V”. Prim Chand, AIR 1997 SC 1006 the Supreme Court of India held as under:

This rule of construction which is also spoken of as “ex visceribus actus” helps in avoiding any inconsistency either within a Section or between two different Sections or provisions of the same statute.

On a conspectus of the case law indicated above, the following principles are clearly discernible:

(1)  It is the duty of the Courts to avoid a head-on clash between two Sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them.

(2)  The provisions of one Section of a statute cannot be used to defeat the other provisions unless the Court, in spite of its efforts, finds it impossible to effect reconciliation between them.

(3)  It has to be borne in mind by all the Courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, is possible, effect should be given to both. This is the essence of the rule of “harmonious construction”.

(4)  The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a “dead letter” or “useless lumber” is not harmonious construction”.

(5)  To harmonise is not to destroy any statutory provision or to render it otiose.

The principles expounded in the cases referred to above apply to the facts and circumstances of the present case.

Therefore, the petitioner should have approached the Administrative Tribunal within 6 months from the date of decision on his appeal which would be deemed to have been disallowed by the higher authority after two months of its filing as contemplated under the 2nd proviso and the period of limitation of 6 months as mentioned in the 3rd proviso would be reckoned from the expiry of two months as provided under the 2nd proviso. But the petitioner failed to do so. Consequently, the Administrative Appellate Tribunal rightly came to the finding that the case before the Administrative Tribunal was barred by limitation.

Accordingly this petition for leave to appeal is dismissed.

CJ. 

J.

J.

J.

J.

J.

J.

 

25th August,2011.

  /Rezaul/