Abu Taleb Vs. Government of Bangladesh and others

Case No: Civil Appeal No. 25 of 1992

Judge: MH Rahman ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,AW Bhuiyan,,

Citation: 45 DLR (AD) (1993) 45

Case Year: 1993

Appellant: Abu Taleb

Respondent: Government of Bangladesh and others

Subject: Administrative Law,

Delivery Date: 1993-01-31

Abu Taleb

Vs.

Government of Bangladesh and others, 1993,

45 DLR (AD) (1993) 45

Supreme Court

Appellate Division

(Civil)


Present:

MH Rahman J

ATM Afzal J

Mustafa Kamal J

Latifur Rahman J.


Abu Taleb ............Appellant

Vs.

Government of Bangladesh and others..............Respondents


Judgment

January 31st, 1993. 

 

Administrative Tribunal Rules, 1982

Rule 6(9)

Decision given by the Appellate Tribunal having not been made as per the Rule it did not reach finality and the Tribunal did not become functus officio— it had jurisdiction as an adjudicating body to recall the decision and order rehearing ……(16

 

Words & Phrases

Rehearing 

A rehearing is a new proceeding and it implies the hearing by the same tribunal which heard the matter before.


Cases Referred to-

Project in Charge Vs. Abdur Rahman 31 DLR 124 and General Manager, Jamuna Oil Company Vs. Golam Rahman & another 34 DLR (AD) 166; Beni Madho Prasad Singh Vs. Adit and others AIR 1953 Allahabad 416, Surendra Singh Vs. State of Uttar Pradesh AIR 1954 (SC) 194 at P 197, Faulad and another Vs. State AIR 1961 Allahabad P 326, Rukan Din Vs. Hafiz-ud-Din PLD 1962 Lahore 161, Sangam Lal Vs. Rent Control and Eviction Officer, AIR 1966 Allahabad (FB) 221; Jai Karan Vs. Panchaiti Akhara, Choto Nayan Udasi Nanak  Shahi AIR 1933 Allahabad 49 (J); Mohd. Fazlur Rahman Vs. Custodian of Evacuee Property AIR 1956 (FB) Hyderabad, 91.


Lawyers Involved:

Syed Ishtiaq Ahmed, Senior Advocate, instructed by Serajuddin Ahmed, Advocate-on- Record - For the Appellant.

AW Bhuiyan, Additional Attorney‑General, (B. Hossain, Deputy Attorney-General, with him), instructed by Zinnur Ahmed, Advocate-on -Record -For the Respondent No. 1.

Miah Abdul Gafur, Advocate-on-Record -For the Respondent No. 2.

Civil Appeal No. 25 of 1992.

(From the judgment and order dated June 19, 1991 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No. 34 of 1988).


Judgment:

               MH Rahman J.- On April 15, 1960 the appellant was appointed as an Assistant Communication Engineer in the Civil Aviation Department. The Government of Bangladesh formed a corporate body, namely, Civil Aviation Authority of Bangladesh by Civil Aviation Authority Ordinance, 1985 (Ordinance No. XXXVIII of 1985). The employees of the Civil Aviation Department, hitherto enjoying the terms and conditions of the Government servants, refused to be governed by the new Service Rules and Regulations framed under the Ordinance No. LI of 1985. Some of them went on strike with effect from February 19, 1987.

2. The Government set up an Inquiry Committee on March 1, 1987. The Committee submitted a report to the Government. On the basis of that report the appellant was compulsorily retired from service under the Public Servants Retirement Act, 1974 by an order of the President of Bangladesh dated January 2, 1988.

3. The appellant challenged that order before the Administrative Tribunal in AT Case No. 22 of 1988. The Tribunal upheld the order. The appellant filed an appeal before the Administrative Appellate Tribunal, being Appeal No. 34 of 1988.

4. On June 12, 1989 the Administrative Appellate Tribunal pronounced the judgment in open court in presence of the learned Advocates for the appellant and respondent No. 2 and allowed the appeal. It was noted in the order sheet that the judgment would be in a separate sheet.

5. On June 15, 1989 on the submission of the learned Advocate of respondent No. 1, the Government, the decision dated June 12, 1989 was recalled and the appeal was fixed for re-hearing on June 19, 1989. On June 19, 1989, the Chairman of the Administrative Tribunal was absent, the appeal was heard by two Members of the Tribunal. The Judgment of the Tribunal allowing the appeal was, however, signed by the Chairman and the two Members.

6. The appellant contends that after pronouncing the decision on June 12, 1989 the Appellate Tribunal became functus officio and had no jurisdiction to review its judgment and that the Appellate Tribunal, not being a civil Court, had no jurisdiction to recall the decision announced on June 19, 1989 on alleged consent of the learned Advocate for the appellant.

7. It is further contended that when the appeal was allowed on re‑hearing the Appellate Tribunal was coram non judice because section 7 (3B) of the Administrative Tribunal Act, 1980 implies that the Chairman and two Members were required to be present in the beginning of the re‑hearing of the appeal.

8. The respondents have not joined issues with the appellant's contentions that the Tribunal is not a civil Court and that it has no power to review. They have, however, contended that when the order was recalled the Appellate Tribunal was in seisin of the matter and not functus officio and appellant's contention that the Tribunal as a body ought to have re‑heard the appeal is not correct in view of the provision of section 7(3B) of the Act. In this regard reliance is placed on Project in Charge Vs. Abdur Rahman, 31 DLR 124 and General Manager, Jamuna Oil Company Vs. Golam Rahman & another, 34 DLR (AD) 166.

9. It is submitted that the Tribunal, as an adjudicating body, has power to alter, modify or change its judgment before it is signed and scaled. Reliance is placed on Beni Madho Prasad Singh Vs. Adit and others AIR 1953 Allahabad 416, Surendra Singh Vs. State of Uttar Pradesh AIR 1954 (SC) 194 at P 197, Faulad and another Vs. State AIR 1961 Allahabad P 326, Rukan Din Vs. Hafiz‑ud‑Din PLD 1962 Lahore 161, Sangam Lal Vs. Rent Control and Eviction Officer, AIR 1966 Allahabad (FB) 221.

10. In Jai Karan Vs. Panchaiti Akhara, Choto Nayan Udasi Nanak Shahi AIR 1933 Allahabad 49 (J), after hearing the arguments the learned Chief Justice dictated an order in the open Court. But immediately thereafter a request by one of the counsels of the parties that the judgment might not be signed so that the question of limitation arising in the case might further be considered was acceded to by the Court. The transcript of the judgment was, however, signed by inadvertence. Sulaiman, CJ set aside the order and reheard the matter. This was a case where a mistake committed by a functionary of the Court itself was later set right by the Court in its inherent jurisdiction.

11. In AIR1953 Allahabad p. 416 was held that "by reason of the provisions contained in r. 3 of Or. 20 of the CPC, jurisdiction of the Court to reconsider and rehear a case will cease only when a judgment has been signed. After it has been signed, the judgment cannot be altered or added to except as provided by section 152 Civil PC or on review."

12. In Full Bench case the Allahabad High Court in AIR 1966 Allahabad p. 221 after considering AIR 1954 (SC) p. 194 and AIR 1961 Allahabad 326 held "a judgment which has been orally dictated in open Court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard before the change is made."

13. Finding these decisions are of the civil Court and that the Administrative Tribunal is not a civil Court the respondents alternatively have urged that where an Act confers a jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution. Reliance is placed on Mohd. Fazlur Rahman Vs. Custodian of Evacuee Property AIR 1956 (FB) Hyderabad, 91.

14. Our attention is also drawn to the following observation made in Craies on Statute Law, Seventh Edition, Page‑111.

  “If a statute is passed for the purpose of enabling something to be done, but omits to mention in terms some detail which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the courts are at liberty to infer that the statute by implication empowers that detail to be carried out."

15. The respondents further contend that there is no provision in rules for announcing the judgment and the earlier order was not passed under its sub‑rule 9 of Rule 6 of the Administrative Tribunal Rules, 1982 which reads as follows:

"(9) The Tribunal shall, after the application has been heard, give its decision in writing with reasons therefore, at once or on some future day of which notice shall be given to the parties, and make an order accordingly."

16. Appellant in reply contends that in any case the Appellate Tribunal passed an order on June 12,1989 which cannot be recalled or modified in view of the following sub‑rule 10 of rule 6 of the Administrative Tribunals Rules, 1982:

  "(10) The decision or order once given or made shall not afterwards be altered or modified, save for the purpose of correcting a clerical or arithmetical mistake or any error arising from any accidental slip or omission."

As the decision pronounced on June 12, 1989 was not made as per sub-rule (9) of rule 6 of the Rules it did not reach any finality. The Appellate Tribunal did not become functus officio on that date and it had the jurisdiction as an adjudicating body to recall that decision subsequently and order for rehearing.

17. In James A Ballentine's Law Dictionary the entry on rehearing reads as follows:

             “Strictly speaking, a rehearing is simply a new hearing and a new consideration of the case by the Court in which the suit was originally held, and upon the pleadings and depositions already in the case. See Read 6 Am. St. Rep. 877, 10 At 1. Rep. 385."

18. In Stroud's Judicial Dictionary (1974) it is stated a "rehearing" is a new trial, and is not satisfied by merely reading the transcript of the first trial (R V Syme, Ex p. Page [197] WAR 1953).

19. The word ‘rehearing’ means hearing again. A rehearing is a new proceeding and it implies the hearing by the same tribunal which heard the matter before. Apart from the construction that I have given to the word 'rehearing' I like to point out that it is an accepted principle of procedure that prior notice for rehearing is to be given to the parties who were present at the time of the hearing of the matter earlier. This principle is in consonance with justice and is to be extended to the constitution of the adjudicating body when it comprises of more than one person. When the matter was heard earlier by all the members of the Tribunal rehearing ought to have been done by all of them, more so, when the decision announced earlier was reversed on rehearing. The same body of the Tribunal comprising the Chairman and two Members ought to have heard the matter. The decision cited in 31 DLR 124 and 34 DLR (AD) 166 can hardly be applied in the instant case.

In view of the above, the appeal is allowed and the matter is sent back to the Appellate Administrative Tribunal for rehearing by its Chairman and two Members. No costs.

Ed.