THE ROLE OF SPEEDY TRIAL TRIBUNAL IN ADMINISTRATION OF JUSTICE, PART 2

Chapter Three

Kinds of Tribunals:

There are two types of tribunals i.e. domestic tribunal and statutory tribunal. There can be other types of Tribunals, but at this stage of our discussion we shall discuss only these two types of tribunals.

Domestic Tribunals:

The tribunals, which are domestic in nature deals only with the internal disciplinary principle of any institution. It is a non-statutory body. It settles the dispute between employer and employee. Court fee is not needed in domestic tribunals. It deals with the private matters rather than public matters. Tribunals of Bangladesh Bar Council, different clubs serve as examples of domestic tribunals. At present there are five tribunals of Bangladesh Bar Council to deal with different disciplinary issues relating to its members.

The domestic tribunal is not a Court to follow procedures of the trial or enquiry according to the Civil Procedure Code, 1908. In appropriate cases, considering the facts and circumstances thereof, such a tribunal may arrive at a decision simply by questioning the accused and considering his explanation.[1]

The Civil Courts have no power to look into the decisions of the domestic tribunal unless there is a breach of principle of natural justice and the decision is an act of bad faith and biased. The civil Court is not competent to sit over the decision of the executive Committee of the respondent Club unless it is proved that it is in a breach of principle of natural justice and the decision is an act of bad faith and biased.

In case of domestic tribunal, the enquiry officer is not to follow the procedure of a trial by a Court, he may, in appropriate cases, arrive at a decision simply by questioning the delinquent officer and considering his explanation.[2]

Statutory Tribunal:

Statutory tribunals are established by the provisions of statutes. For example, in Bangladesh, Labour Appellate Tribunal is a statutory tribunal, which is established under section 38 of the Industrial Relations Ordinance, 1969. Where a special tribunal out of the ordinary course is appointed by an Act to determine questions as to such rights which are the creation of that Act, then, except, so far as otherwise expressly provided or necessarily implied, that tribunal’s jurisdiction to determine those questions is exclusive.[3]

Administrative tribunals are the glaring examples of statutory tribunals. These tribunals deal with the disputes between a govt. employee and the govt. arising out of the rules and regulations relating to the service matter. For example, in India, the Administrative Tribunal formed under the Administrative Tribunals Act, 1985 resolves the disputes between a govt. employee and the govt. arising out of the rules and regulations relating to service matter. In Bangladesh, the Administrative Tribunals established under the Administrative Tribunals Act, 1980 perform similar duties.

Besides there are some special Tribunals like Nan 0 Shishu Nirjatan Damon Tribunal, Acid Oporadh Damon Tribunal, Speedy Trial Tribunal and other Special Tribunal established under the Special Powers Act, 1974. The Nan 0 Shishu Nirjatan Damon Tribunals are established according to the provisions of section 26 of the Nan 0 Shishu Nirjatan Damon Am, 2000 (Act No. VIII of 2000) in every district to try offences committed under the said Act. The Acid Oporadh Damon Tribunals are established as per the provisions of section 23 of the Acid Niyontron Ain, 2002 to try offences under the Act.

When the statutory tribunal (i.e. special tribunal set up under a special statute) has acted beyond the scope of the power vested in it by the statute, the jurisdiction of the Civil Courts to examine into such cases is not taken away even if the statute contains words purporting to exclude such jurisdiction. This certainly is not the same thing as saying that jurisdiction has been made to depend upon the correctness or otherwise of the suitor’s contention as respects the subject matter.[4]

Chapter Four 

Can a Tribunal be Supplementary to or Substitute of a Court?

Article 109 of the Constitution, 1972 says that the HCD shall have superintendence and control over the tribunals subordinate to it.

The tribunals providing an alternative mechanism must be a worthy successor of the High Court in all respect.[5] But there is no command in the Constitution of Bangladesh, 1972 that the Tribunal or the Appellate Tribunal is subordinate or co-equal to the High Court Division. A tribunal cannot be substitute of a Court for a good number of reasons. In the Court of law there are openness, fairness and impartiality. But in the tribunals these things are absent. Tribunals are not supplementary to the civil Courts but it is partly substitute of the civil Courts. The tribunals are not fully supplementary to the civil Court as the equity Courts were supplementary to the common law Courts.

According to section 9 of the Code of Civil Procedure, 1908, the tribunals do not come under the umbrella of the civil Courts but the tribunals will come under the definition of civil Courts in three cases and will be questioned by the HCD:

(a)      if the tribunal violates its own law;

(b)     if the fundamental rights of the parties are violated due to the ma/a fide decision of the administrative tribunals.

(c)      if the tribunals do anything ultra vires.

Again, the jurisdiction of the civil Courts cannot be totally ousted because tribunals cannot impose penalty, it can only suspend an employee. If the tribunals are mala fide in their decisions they are not immune to the challenges in the civil Courts.

But the Administrative tribunals which were set up to deal with service matters of the Government employee can be a substitute of Court. The Administrative Tribunals are not like the High Court Division or the Subordinate Court over which the High Court Division exercises both judicial review and superintendence.

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.[6]

Chapter Five

Some important tribunals functioning in Bangladesh:

Administrative Tribunal:

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.[7]

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,[8] 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,[9] 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.[10]

Characteristics of Administrative Tribunal:

The Administrative Tribunals have some distinctive features, which are traced out by the Franks Committee Report, 1957 of UK, are discussed below:

(a)      The administrative tribunal is the creation of a statute and thus, it has a statutory origin;

(b)     It has some of the trappings of a Court but not all;

(c)      An Administrative Tribunal is entrusted with the judicial powers of the state and thus, performs judicial and quasi- judicial functions;

(d)     Even with regard to procedural matters, an Administrative Tribunal possesses powers of a Court e.g. to summons witnesses,’ to administer oath, to compel production of document etc.

(e)      An Administrative Tribunal is not strictly bound by rules of evidence and procedure.

(f)      Administrative Tribunals are independent and they are not subject to any administrative interference in the discharge of their judicial or quasi- judicial functions;

(g)     The prerogative writs of certiorari and prohibition are available against the decision of Administrative Tribunal.

(h)     The decisions of most of the tribunals are in fact judicial rather than administrative as they have to record finding of facts. They can apply discretion but their discretionary power is to be exercised judicially.

The Distinctions between Administrative Tribunal and Court:

There are many similarities between an Administrative Tribunal and a Court in certain aspects. We get the truth behind the statement in an English Case i.e. Pickering vs. Liverpool Daily Post and Echo Newspaper,[11] Both of the Administrative Tribunal and Court are constituted by the state, invested with judicial powers and have a permanent existence. Thus, they are adjudicating bodies. In Associated Cement Companies Ltd. vs. P.N. Sharma,[12] the Indian Supreme Court held that the basic and fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial power vested to them by a sovereign state. If the precise decision between tribunals and Courts is a matter of uncertainty, what is certain is that tribunals are inferior to the normal Courts. However, the distinctions between these two are comprehensively laid down by C.K. Takwani as follows:

  1. A Court of law is a part of the traditional judicial system. A Tribunal is a body created by a statute and invested with judicial powers. Primarily and essentially it is a part and parcel of the Executive Branch of the state, exercising executive and judicial functions. As Lord Greene states Administrative Tribunal perform “hybrid functions”.[13]
  2. Judges of the ordinary Courts of law are independent of the executive in respect of their tenure, terms and conditions of their services. On the other hand, members of administrative tribunal are entirely in the hands of the Govt. in respect of same.
  3. In a Court of law, the presiding officer, i.e. the judge is trained in law but the member of tribunal may not be trained in law as well.
  4. In a Court of law, the judges must be an impartial arbiter and he cannot decide a matter in which he is interested. But a member of the Administrative Tribunal may be party to the dispute to be decided by it.
  5. A Court of law is bound by all the rules of evidence and procedure but not Administrative Tribunal unless the statute imposes such an obligation.
  6. While the court of law is bound by precedents, principles of resjudicata and estopple, an administrative tribunal is not strictly bound by them.
  7. A Court can decide the “vires” i.e. the power and authority etc. of legislation while an Administrative Tribunal cannot do so.[14]
  8. A Court must decide all the questions objectively on the basis of evidence and materials produced before it. But an Administrative Tribunal may decide the questions taking into account the departmental policy or expediency and in that sense, the decision may be subjective rather than objective.

The Purpose of Establishment of Administrative Tribunals in

Bangladesh:

The Administrative tribunals were established in Bangladesh to exercise jurisdiction in respect of matters relating to or arising out of the terms and conditions of persons in the services of the Republic or of any statutory public authority.78 The Schedule to the Administrative Tribunals Act, 1980 (Act No. VII of 1981) includes the following bodies as the statutory public authority-

(a)      Sonali Bank, Agrani Bank and Janata Bank constituted under theBangladesh Banks (Nationalisation) Order, 1972.

(b)     Bangladesh Bank established under the Bangladesh Bank Order, 1972.

(c)      Bangladesh Shilpa Rin Sangstha established under the Bangladesh Shilpa Ritz Sangstha Order, 1972.

(d)     Bangladesh Shilpa Bank established under the Bangladesh Shilpa Bank Order, 1972.

(e)      Bangladesh House Building Finance Corporation established under the Bangladesh House Building Finance Corporation Order, 1973.

(f)      Bangladesh Krishi Bank established under the Bangladesh Krishi Bank Order, 1973.

(g)     Investment Corporation of Bangladesh established under the Investment Corporation of Bangladesh Ordinance, 1976.

(h)     Grameen Bank established under the Grameen Bank Ordinance, 1983.

Administrative Tribunals are creation of the Constitution. For deciding any dispute arising out of the terms and conditions of their service, the judicial officers shall be amenable to the jurisdiction of the Administrative Tribunal.

Establishment of Administrative Tribunal:

The provisions of the Administrative Tribunals Act, 1980 empower the Government to establish one or more Administrative Tribunals. Initially, by SRO 58-L/82-JIV/IT-1/81, one Administrative Tribunal located at Dhaka was established for the whole of Bangladesh. Subsequently territorial jurisdiction of the Tribunal was restructured by SRO NO. 11 9-L/92/249/J-4/5C-5/89 dated 30th May, 1992. Another Administrative Tribunal was set up in Bogra.

Now, the Administrative Tribunal of Dhaka shall determine disputes arising out of the terms and conditions of persons in the services of Republic in the 38 districts including Dhaka, Narayangonj, Munshigonj, Manikgonj, Gajipur, Norshingdi, Faridpur, Gopalgonj, Madaripur, Shariatpur, Rajbari, Mymensing, Kishorgonj, Netrokona, Tangail, Jamalpur, Sherpur, Khulna, Bagerhat, Satkhira, Barishal, Pirujpur, Jhalokathi, Bhola, Patuakhali, Borguna, Chittagong, Cox’s Bazar, Noakhali, Feni, Laxmizpur, Comilla, Chadpur, Brahmanbaria, Sylhet, Moulvibazar, Habigonj and Sunamgonj. The Administrative Tribunal of Bogra shall determine disputes arising out of the terms and conditions of persons in the services of Republic in the 23 districts including Bogra, Joypurhat, Pabna, Sirajgonj Dinajpur, Thakurgaon, Panchghar, Kurigram, Rangpur, Lalmonirhat, Gaibandha, Nilphamary, Rajshahi, Chapainababgonj, Noagaon, Natore, Jessore, Jhinaidah, Magura, Norail, Kustia, Chuadanga and Meharpur.

Jurisdiction of the Administrative Tribunal:

The Administrative Tribunal has the exclusive jurisdiction to hear and determine applications made by a person in the service of the ‘Republic or of any statutory public authority in respect of the terms and conditions of his service.[15] So, the Administrative Tribunal has no jurisdiction to entertain any application filed by a person who is or who has not been in the service of the Republic or of any statutory authority specified in the schedule to the Act.

In the case of Quazi Nazrul Islam Vs. Bangladesh House Building Finance Corporation,[16] it was held that the Administrative Tribunal and the Administrative Appellate Tribunal has been established with limited jurisdictions and limited power. The Tribunal gratuitously granting relief acts in excess of its jurisdiction.

The person affected by the decision of the higher authority must make an application before the higher authority. After having the decision of the higher administrative authority under any law enforced for the time being any person aggrieved may make an application to the Administrative Tribunal within six months of the decision of the higher authority. It should be borne in mind that the person making such application shall wait for only two months for the decision of the higher authority. If he does not get the decision within two months then he may go to the Administrative Tribunal. In the case of Abul Bashar Vs. Investment Corporation of Bangladesh and another,[17] it was held that the petitioner cannot have the benefit of section 14 of the Limitation Act while computing the period of limitation in filing application before the Administrative Tribunal.

In case of dismissal, the financial benefit during the period of dismissal cannot be claimed as a matter of right when such dismissal is set aside on the procedural defect as to show cause notice.83 Question of payment of subsistence to the government servant during suspension, relates to terms and conditions of service within the jurisdiction of the Administrative Tribunal The remedy against the orders to transfer lies before the Administrative Tribunal and not under Article 102 of the Constitution.85

In the case of DGM, Rupali Bank vs. Shah Jalal,[18] it was held that the Tribunal shall have no power to entertain an application unless it is filed within six months of the impugned order. In the instant suit the impugned order was made 4 years earlier than the date of incorporation of the petitioner bank in the schedule to the Act. Consequently the cause is beyond the jurisdiction of the Tribunal. That being so, the suit does not come within the mischief of Article 117.

For legal remedies in service matters civilian employees in Defence Services can well invoke the jurisdiction of the Administrative Tribunal.[19]

In abovementioned matters i.e. to hear and determine applications made by a person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service, the civil courts have no jurisdiction. The jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of’ special statute the jurisdiction of civil court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.[20]

All decisions of the Administrative Appellate Tribunal shall be binding on the Administrative tribunals and the parties concerned; subject to the decision of the Administrative Appellate Tribunal the decision of the Administrative tribunals shall be binding on the parties.[21]

Besides, the Administrative Tribunals have powers to impose imprisonment for the obstruction of duties of the Administrative tribunals which may extend to one month or fine which may extend to five hundred taka.

The Administrative Tribunal can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of Court is to see the right given under Article 102(1) is not frittered away or misused.[22]

Such Tribunal cannot entertain any application by the aggrieved party unless his appeal before the competent authority is disposed of. This legal bar cannot be overcome unless the appeal pending before the Government is disposed of. It is not known why Government respondent is shockingly slow in the matter of taking decision in the petitioner’s appeal. The Rule upon the government is therefore made absolute with the direction to dispose of the appeal within 30 days.[23]

The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication.[24]

Appellant was reinstated in service in pursuance of a civil Court’s decree passed before the commencement of the Administrative Tribunals Act, 1980. The subsequent claim for arrear pay and seniority etc. is not a claim arising out of the cause of action of the civil Court decree. Such claim arises out of a fresh cause of action after the Administrative Tribunals Act came into force and for that jurisdiction of Administrative Tribunal can well be invoked.[25]

Administrative Tribunal has exclusive jurisdiction to decide disputes relating to the terms and conditions of service including seniority and promotion of the person in the service of the Republic. When the dispute involves determination of the constitutionality of any law or any notification the jurisdiction of the tribunal is ousted. In such a case this mixed question of dispute can well be decided by the High Court Division in its writ jurisdiction under article 102 of the Constitution.[26]

Promotion being part of the terms and conditions of the service a grievance in respect of the same undoubtedly falls within the exclusive jurisdiction of the Administrative Tribunal.[27]

When the first departmental proceeding ended merely on technical ground, subsequent proceeding on self-same or fresh additional charge is not barred in law and such a proceeding does not amount to double jeopardy.[28]

When an Administrative Tribunal is set up no Court shall entertain any proceeding or make any order in respect of any matter falling within the jurisdiction of such Tribunal. When by a statute authority is vested in another Tribunal with exclusive power over any subject matter, a civil Court, ceases to have any jurisdiction to try such suit having jurisdiction.[29]

Again, to implement the judgment of the Appellate Division, one cannot go to the Administrative Tribunal or the Administrative Appellate Tribunal.[30]

The term “person aggrieved” as used in our Administrative Tribunals Act, 1980 has narrower connotation than that of the similar term used in the counter part enactment of the Indian Jurisdiction. The legal heirs of the deceased servant thus cannot maintain an application before the Administrative Tribunal.

A person who died while in service cannot be dismissed or discharged or removed from service. Therefore the legal heirs of the deceased servant who are legally entitled to the pensionary benefits can seek their remedies in the writ jurisdiction of the High Court Division.[31]

Administrative Appellate Tribunal:

In August 1983, by SRO No. 329/L/83/502-1/IV Administrative Appellate Tribunal was established. The Appellate Tribunal shall consist of three members of whom be one who is or has been the Judge of the Supreme Court. One shall be a person who is or has been a Joint Secretary or a District Judge.

Jurisdiction and Power of the Administrative Appellate

Tribunal:

The Administrative Appellate Tribunal does not have any original jurisdiction except in the case of contempt of it. In brief, the Administrative Appellate Tribunal has the following powers and authority-

(a) It shall hear the appeal arising from any order or decision of the Administrative Tribunal.

(b)     An application for an appeal must be made to the Administrative Appellate Tribunal within 90 days from the date of making of the order by the Administrative Tribunal. The time may be extended for another 90 days on the satisfaction of the Court on reasonable grounds.

(c)      The Administrative Appellate Tribunal may confirm, set aside, or modify the decision of the Administrative Tribunal.

(d)     .The Administrative Appellate Tribunal may transfer cases from one Administrative Tribunal to another.

The decision of the Administrative Appellate Tribunal shall be final. But by the insertion of section 6A by the Administrative Tribunal (Amendment) Act, 1991, it has been incorporated that the decision of the Administrative Appellate Tribunal shall be final subject to the judicial review of the Appellate Division of the Supreme Court.

In a case like the present one where there is no provision for appeal and where under review the President has power to make any order as he deems fit, a Government servant will be entitled to the remedy under Rule 23.102

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,[32] 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.[33]

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.[34]

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.[35]

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.[36]

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.[37]

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.[38]

Other Tribunals:

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.

Election Tribunal:

For the settlement of all disputes regarding election, Article 53 of the Representation of the People Order, 1972 provides for the establishment of Election Tribunal which shall be consisted of a person who is or has been a District and Sessions Judge or an Additional District and Sessions Judge. According to Article 59(1), the Tribunal shall have powers of a Civil Court trying a suit under the Code of Civil Procedure. Article 53 (1) of the Representation of the People Order, 1972 provides that for the trial of election petitions the Election Commission shall appoint as many Election Tribunals as may be necessary. It also says that a Tribunal shall consist of a person who is or has been a District and Sessions Judge.

Under section 27(1) of the Local Government (Union Parishads) Ordinance, 1983 the Election Commission shall appoint a judicial officer to be an Election Tribunal for the trial of election petitions for any specified areas, as specified in the gazette notification.

Under section 28, the Election Commissioner, may at any stage of the proceeding transfer an election petition from one Election Tribunal to another in case of necessity. The Tribunal where the petition is transferred may recall and examine any of the witnesses who are already examined. After the decision of any Election Tribunal, if any election, appeal is preferred in the District Judge Court, the District Judge shall also have the authority to transfer any election appeal from one Court to another.[39]

Procedure followed in Election Petition:

The procedure to be followed in Election petition is mentioned in section 29 of the Local Government (Union Parishads) Ordinance, 1983. The Election Tribunal after receiving an election petition shall give notice to all contesting candidates at the election to which the petition relates. Then the Election Tribunal shall take the evidence and examine the contesting candidates and then the Tribunal shall pronounce order, which shall be final.[40]

Any person aggrieved by the decision of the Election Tribunal may, within thirty days of the announcement of the decision of the Tribunal, prefer an appeal to the District Judge within whose jurisdiction the election in dispute was held and the decision of the District Judge on such appeal shall be final.118 An order disposing of the election petition is appealable, but an order for recounting of ballots by the tribunal is not appealable.[41]

The District Judge when acting as an Appellate Court in Election petitions is under the High Court Division. Though the Election Tribunal is not a civil Court but when the District Judge hears the appeal of such election petitions then he shall follow the procedure to be followed in the civil Courts as mentioned in the Code of Civil Procedure, 1908 and in Rules 47 and 48 of the Union Parishad Election Rules, 1983.

This Act also provides that any person aggrieved of a decision where the decision relating to Election was announced before the commencement of the Local Government (Union Parishads) Ordinance, 1984 may also prefer an appeal within thirty days.

Though section 29(4) of the Ordinance, 1983, says that the decision of the District Judge is final, but this section does not oust the right of the aggrieved parties to move before the HCD for revision and the parties can also go to the HCD with a writ.[42]

Powers of the Election Tribunal:

An Election Tribunal has all the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, for the purpose of trying the election dispute.

  1. The Election Tribunal can order for the recount of the votes in appropriate cases.
  2. The Tribunal can allow the amendment of the election petition.
  3. The Election Tribunal cannot grant injunction.
  4. The Election Tribunal cannot act arbitrarily and whimsically.
  5. The Election Tribunal can proceed exparte if the Respondents do not file written objection or appear before it to contest the election petition.
  6. An Election Tribunal may declare the election of some centers void and direct fresh polling in those centers.
  7. The Election Tribunal can interfere if there has been contravention of the provisions of the Act and if the result of the election has been materially affected due to the contravening.
  8. When both the candidate got equal votes, the Election Tribunal is competent to draw a lottery and declare winner elected, though there is no express provision.
  9. The Election Tribunal should not set aside the Election result unless law demands it.
  10. The Election Tribunal has the power to decide whether a ballot paper is to be accepted or rejected.

 

[1] Bashir Ahmed vs. BJMC. 44 DLR(AD) 267

[2] Director T & T Board, Dhaka vs. Hasan Ahmed Bhuiyan and another 47 DLR (AD) 143.

[3] Mian Sultan Ali Nanghian vs. Mian Nur Hussain, 1949, PLD, Lah. 301

[4] Province of East Pakistan vs. Dewan Abdul Alim, (1957) 9 DLR 26

[5] S.P. Sampath Kumar vs. Union of India (1987) 1 S.C.C. 124

[6] Mujibur Rahman vs. Bangladesh, 44 DLR (AD) 111.

[7] Opcit. 10. pp. 905-907

[8] 6 BLC

[9] Opcit 20.

[10] Nurul Islam vs. Bangladesh, 201 BLD.

[11] 1991, 2 WLR 513, CA

[12] AIR 1965 SC 1595(1599)

[13] Johnson vs. Minister of Health, (1947) 2 All ER 395 (400).

[14] Bharat Bank Ltd. vs. Empyoees, AIR 1950 SC 188

[15] Section 4, the Administrative Tribunals Act, 1980.

[16]  45 DLR (AD) 106.

[17] 52 DLR (AD) 178.

[18] 43 DLR 193

[19] 51 DLR (AD) 144.

[20] Monsur Ali vs. Janata Bank, 43 DLR 394

[21] Section 8, the Administrative Tribunals Act, 1980.

[22] Opcit 20.

[23] 44 DLR 195.

[24] 49 DLR (AD) 44.

[25] 2 MLR (AD) 20.

[26] Opcit. 39. P.257.

[27] 50 DLR 39.

[28] Opcit. 39 P. 322.

[29] 7 BLD (HCD) 23.

[30] 49 DLR (AD) 147.

[31] 2 MLR (HC) 83.

[32] Opcit. 20.

[33] 50 DLR 496

[34] ibid, p.407.

[35] ibid, p.357

[36] Bakar, Khondakar Md. Abu; The Laws on Service in Bangladesh, Second Edition, p. 20.

[37] Opcit. P.20.

[38] Article 49, the constitution of the People’s Republic of Bangladesh

[39] 10 BLD (AD) 58.

[40] 42 DLR 27

[41] 39 DLR (AD) 140.

[42] 38 DLR (AD) 172.

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