AKM Nurul Alam Vs. Bangladesh

Case No: Civil Appeal Nos. 24 and 82 of 1992 and Civil Petition No. 346 of 1992

Judge: MH Rahman ,

Court: Appellate Division ,,

Advocate: Abdur Rab Choudhury,AJ Mohammad Ali,AY Salehuzzaman,Md. Abdul Quayum,,

Citation: 46 DLR (AD) (1994) 113

Case Year: 1994

Appellant: AKM Nurul Alam

Respondent: Bangladesh

Subject: Administrative Law,

Delivery Date: 1993-07-26

AKM Nurul Alam

Vs.

Bangladesh, 1994,

46 DLR (AD) (1994) 113

Supreme Court
Appellate Division
(Civil)

Present:
MH Rahman J                            
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.

AKM Nurul Alam……………..Appellant
Vs.
Bangladesh ………….Respondent  (in CA No. 24 of 1992)

Mohammad Jahangir Kabir.......................Appellant
Vs.
Government of Bangladesh and Ors …………..Respondents (in CA No. 82 of 1992)

Upendra Nath Talukder .............................Petitioner
Vs.
Secretary Ministry of Communication Roads and High Ways and Ors …Respondent (in CP No. 346 of 1992)

Judgment
July 26th, 1993.
 
Administrative Tribunal Act, 1980 (VII of 1981)
Section 4 (2)
Government Servants (Discipline and Appeal) Rules, 1985
Rule 23

Limitation— Time spent under review proceeding— 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.
 
Lawyers Involved
AJ Mohammad Ali, Advocate instructed by Shamsul Haque Siddique, Advocate-on-Record-For the Appellant.
AY Salehuzzaman, Deputy Attorney-General, instructed by Sharifuddin Chaklader, Advocate -on­-Record‑For the Respondent (in CA No. 24 of 1992).
Abdur Rab Chowdhury, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record-For the Appellant (in CA No. 82 of 1992).
Abdur Rab Chowdhury, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record-For the Respondent Nos. 1 -2 (in CA No. 24 of 1992).
Md. Abdul Quayum, Advocate (appeared with leave of the court) instructed by Aftab Hossain, Advocate-on-Record- For the Petitioner (in CP No. 346 of 1992).
Not represented ‑The Respondent (in CP No. 346 of 1992).

Civil Appeal Nos. 24 and 82 of 1992 and Civil Petition No. 346 of 1992.
(From the Judgments and orders dated March 9, June 15 and June 24, 1992 passed by the Administrative Appellate Tribunal Dhaka in Appeal Nos. 69, 75 and 84 of 1991.)
 

Judgment:
                    MH Rahman J:  The two appeals, CA No. 24 of 1992 and CA No. 82 of 1992 and Civil Petition for leave to appeal No. 346 of 1992 were heard together and are now disposed of by this judgment.

2. In CA No. 24 of 1992 the appellant, as Assistant Judge in the Bangladesh Civil Service (Judicial), was found guilty for antedating the date of the hearing of a proceeding in his court. After a second show cause notice he was dismissed from service by an order under the authority of the President on March 7, 1988. Against that order the appellant filed on August 13, 1988 an application for review which was rejected on January 3, 1989. On April 20, 1989 the appellant filed a case, AT Case No. 115 of 1989, before the Administrative Tribunal.

3. In CA No. 82 of 1992, the appellant, while serving as a Director at the Dhaka Office of the Civil Defence Directorate, was directed to show cause for making a false statement in his bio data that he passed the BA Examination. After inquiry the appellant was compulsorily retired on June 1, 1986 by an order under the authority of the President of the Republic. He preferred an application for review which was rejected on December 24 1986. Thereafter he filed a case, AT case No. 67 of 1987 before the Administrative Tribunal on March 28, 1987.

4. In both the matters the Administrative Tribunal found the departmental proceeding on merit as defective, but dismissed the two cases as time-barred under section 4(2) of the Administrative Tribunal Act, 1980 (Act No. VII of 1981) refusing to exclude the time spent under the review proceeding. Without going into the merit of the matters the Appellate Tribunal upheld the order of the Tribunal on the ground of limitation.

5. Leave was granted to consider whether the tribunals ought to have considered Act No. VII of 1981 and the Government Servants (Discipline and Appeal) Rules, 1985, shortly the Rules, 1985, together and excluded the time spent in pursuing the review application under Rule 23 of the Rules and whether the tribunals failed to consider that the President could have set aside the order under review and that the appellant should not be penalised for pursuing a remedy available under the Rules.

6. The appellants contend that when in a number of earlier cases the appellate tribunal held that the cases filed within six months after the rejection of review were not time‑barred the present appellants cannot be penalised for following the earlier decisions of the Appellate Tribunal.

7. The Appellate Tribunal appeared to have departed from its earlier decision on the ground that the meaning of higher administrative authority was not raised in the earlier cases. It decided the matter on the first proviso to sub‑section (2) of section 4 of the Act, without considering the import of the second proviso.

8. In support of the appellant's contention that Act VII of 1981 and the Rules, 1985 are to be construed harmoniously and beneficially for the Government servants, reliance is placed on Kadir Bux Vs. Province of Sind 1982 SCMR 593. In that case the question arose as to the period off limitation available to a civil servant for filing an appeal under section 4 of the Sind Tribunals Act, 1973 T at section reads as follows:
          "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within twelve months of the establishment of a Tribunal whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter:
Provided that-
          (a) where an appeal, review or representation to a departmental authority is provided under the Sind Civil Servant Act, 1973, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application of representation was so preferred."
     After construing this provision along with Section 23 of the Sind Civil Servant Act, 1973 the Pakistan Supreme Court by a majority decision' three to two, held that in case a departmental authority fails to pass the final order within ninety days, an appeal to the Tribunal was to be filed within 120 days after the institution of the proceeding for seeking departmental remedy. The minority view was that the period of limitation being 30 days and days of statutory prohibition being 90 days, only 120 days from the date of the original order will be available for filing appeal before the Tribunal. On law and facts this case will be of little help, though the report of the case contains an interesting discussion on interpretation of statutes with regard to law of limitation.

9. I would rather refer to FA Khan Vs. Government of Pakistan 16 DLR (SC) 405. The question arose whether the starting point for the limitation for a suit by a State servant to challenge the legality of his order of removal from service should be the date of the original order of dismissal or the date of the order passed by the appellate authority affirming that decision. Kaikaus, J held:
        "There is more than one answer to this question. The appellant could have filed a suit even when the Collector passed the order because the plaintiff was entitled to waive his right of appeal against the decision of the Collector and to say that he will treat it as final. The order of the Collector was not a final order but it was open to the plaintiff to make it a final order by waiving his right of appeal. If he filed a suit at once the suit would not be premature because the plaintiff would say that he had waived his right of appeal. That however does not mean that the order itself was sufficient for a cause of action. It was the order coupled with the waiver that created a cause of action. ....Once it became sub judice a right to sue would arise only when it was decided. Also when it was decided only the order of the appellate tribunal existed, the original order having disappeared and merged in the appellate order which order would then be the basis of a suit."

10. SA Rahman, J concurred and further observed:
        “ I do not see why the State servant, in the circumstances, should not regard the first denial of his right as only tentative, on the ground that it is open to review by the higher authority. He might, if he chooses, treat it as a final order and go to Court, but he is not compelled to do so.........If the appellate order also goes against him, he might then consider it as an absolute denial of his title giving him the final cause of action for a suit. If the matter is looked at from this point of view, there should be no difficulty in holding that the date, when the cause of action arose, coincides with the point of time when the departmental proceedings finally end. The affirmation by the superior authority of the original order should not be regarded as a mere repetition of the first denial of the right of title. The scheme of the departmental rules, read in the light of the constitutional provisions, obviously seems to be that the matter has to be  considered at different levels in the hierarchy of Government before it need be accepted as the final expression of the Government's will."

11. Sub-section (2) of section 4 of the Act No. VII of 1981 reads as follows:
"(2) A person in the service of the Republic may make an application to an Administrative Tribunal under sub‑section (1), if he is aggrieved by an order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic:
          Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic or the discipline of that service can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter.
       Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be."

12. It is clear from the above that the first proviso to sub‑section (2) of section 4 of the Act is not attracted in this case.
         In these matters the Government servants were dismissed by orders under authority of the President, the appointing authority. The Rules do no provide for an appeal against the order of the President. Rule 23 provides for a review:
     "23. Review: (1) Where an order by which a Government servant is aggrieved was made by the President, the Government servant may apply to the President for review of the order.
     (2) No application for review shall be entertained unless it is submitted within three months of the date on which the applicant was informed of the order by which he is aggrieved.  
     Provided that the President may entertain an application for review within three months after the expiry of the above period if he is satisfied that the applicant had sufficient cause for not submitting the application in time.
     (3) Every person submitting an application for review shall do so separately and in his own name.
     (4) Every application for review shall be submitted to the President through the head of the office in which the applicant serves or, if he is not in service, the head of the office in which he served last.
     (5) The President may pass such orders on an application for review as he deems fit."

13. The respondents contend that when a Government Servant elects for review he will not be entitled to exclude the time spent in review to foil the period of limitation of six months from the date of the adverse order. We do not find any substance in this contention. In a case like that of the appellants where there is no provision for appeal, and where under review the President has extensive power to make any order as he deems fit, a Government servant will be entitled to the remedy available to him under the Rule 23. The Act and the Rules deal with the terms and conditions of the service in the Republic and they arc complementary to each other. They are to be construed together and each provision of the laws is to be saved, in the absence of a manifest contrary intention. A litigant is entitled to beneficial construction of a provision of law when it saves his right, given under a different provision of law, but not expressly taken away if such construction can be given without straining or violating either the language or the intended meaning of the law.

14. To any aggrieved person an adverse order passed against him, either subject to appeal or review, is tentative till it reaches finality on appeal or review. In case of an order subject to appeal the Government Servant cannot go to the tribunal before the higher administrative authority takes a decision in the matter as an appellate authority. The Government servant may file a case before the Tribunal within six months from the date of the appellate authority's decision. In case of an order subject to review, unlike the one subject to appeal, there is no such provision that the remedy by way of review is to be exhausted or that one is to go to the Tribunal after expiry of six months from the decision made in review. When the President passes the order of dismissal he, being the highest constitutional functionary, cannot be termed or deemed as the higher authority when he reviews his own order. The second proviso indicates that a Government Servant may come to the Tribunal within six months from the date of an order, decision, or action made or taken against him where there is no provision for appeal. He can also come straight to the Tribunal against an order which is reviewable by the President within six months of the date of the impugned order. Those who will prefer review can file an application before the Administrative Tribunal within six months of the order, passed on review. In their case the date on which the order is passed on review will be treated as the date of making or taking of the order, decision or action concerned. The time spent in pursuing a time-barred application for review will not be excluded to foil the period of six months for coming to the Tribunal, because the President may or may not entertain a time‑barred application for review.

15. Considering the generally accepted principles of pendency of a proceeding and considering that there is nothing in the second proviso to section 4(2) of the Act, that prevents a Government servant from prosecuting his right of review under the Rules I have arrived at the above conclusions.

16. In Civil Petition for leave to appeal No. 346 of 1992 after a departmental proceeding the petitioner's promotion was suspended for two years and the period of suspension during the proceeding was directed to be treated as period of leave without pay. The order was passed on October 20, 1985. The petitioner's appeal before the higher authority was rejected and he was informed on August 10, 1986. On November 6, 1986 he filed an application for review which was rejected and he was informed on July 18, 1987. He came before the Tribunal on January 4, 1988. The Tribunal as well as the Appellate Tribunal found his case as time‑barred. We find no reason to interfere in this case.

17. In the result, the two appeals, CA Nos. 24 and 82 of 1992 are allowed and the matters are remanded to the Appellate Tribunal for disposal according to law. No cost. Civil Petition for leave to appeal No. 346 of 1992 is dismissed.
              ATM Afzal J: I have had the benefit of reading the judgment prepared by my learned brothers. The benefit, however, does not prove to be very beneficial, for, I have to express my agreement with one of the other judgments which is quite an exercise, I have found in the ultimate analysis that the judgment written by Mustafa Kamal, J is fully in accord with the views I hold on the matters in issue. I therefore agree with his judgment and the final order passed by MH Rahman J.
           Mustafa Kamal J : I have gone through the judgments proposed to be delivered by my learned brothers MH Rahman and Latifur Rahman, JJ and while I concur with the ultimate order passed by both of them, I am unable, with regret, to agree with the reasonings given by Latifur Rahman, J. and would like to concur generally with the reasonings given by MH Rahman, J with my following added observations.

18. Rule 17 of the Government Servants (Discipline and Appeal) Rules, 1985, shortly the Rules, 1985, provides that a Government servant “may appeal" against several kinds of orders to certain authorities. But Rule 16 provides that no appeal "shall lie" against any order made by the President. In both the Appeals, the order of dismissal from service in one and the order of compulsory retirement from service in the other, were passed by orders made under the authority of the President. Rule 23 provides that where an order by which a Government servant is aggrieved was made by the President the Government servant "may apply to the President for review" of the order within 3 months of receipt of the order in question the President having the power to entertain a review application 3 months after the expiry of the above period on his satisfaction of "sufficient cause."

19. The point to note is that if only the Rules, 1985 are taken into consideration, both appeal and review are optional to the Government servant. He "may appeal" or he "may apply to the President for review." The choice in each case lies with the Government servant. He can in each case forego either of them. No one can force an appeal or review on him. If the Administrative Tribunal Act. 1980, shortly the Act, was not there and if the Government servant had the choice of instituting a civil suit, he could have challenged the order by which he was aggrieved without preferring an appeal or review. Alternatively, he could have preferred an appeal or review and could have challenged the appellate order or the order passed on review if it went against him, in a suit.

20. But the Act has made a difference. A Government servant can no longer file a civil suit "in respect of the terms and conditions of his service including pension rights or in respect of any action taken in relation to him as a person in the service of the Republic. He has to make an application to the Administrative Tribunal. The first proviso to section 4(2) of the Act provides that "a higher administrative authority" which can "set aside, vary or modify" the "decision or action" must take a decision in the matter, or else, no application to the Administrative Tribunal "can be made". The proviso does not specifically mention an appeal, but there is no doubt that when applied to the Rules, 1985 an appeal is contemplated in the first proviso, because Rule 17 of the Rules, 1985, provides for appeal "to the authority specified in this behalf by a general or special order made by the Government or, where no authority is specified, to the authority to which the authority making the order is immediately subordinate or where the order is made by an authority subordinate to the appointing authority, the appointing authority". Clearly the Act has made an appeal compulsory, if the Government servant wants to avail of the remedy of the Administrative Tribunal. When his choice of a civil suit was there, an appeal was only optional for him. Now the Act and the Rules, read together, make an appeal compulsory, if a Government servant wishes to seek a remedy outside the department.

21. Clearly also, in respect of the Rules, 1985 the first proviso to section 4(2) is confined to appeals and does not extend to review. For, a review under the Rules, 1985 does not lie to a "higher administrative authority". The President himself reviews his own orders. A journey from President to President is no journey from a subordinate authority to a higher administrative authority. It is review of a decision or action by the same authority. Notionally too the President does not exercise a higher authority on review. The Administrative Appellate Tribunal is correct in saying that a review under the Rules, 1985, does not lie to a higher administrative authority. The first proviso to section 4(2) is not attracted in these two appeals.

22. The second proviso to section 4(2) presents a paradox and in the two appeals before us, we are called upon to solve them. I may as well reproduce the second proviso:
        "Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be. (underlines are mine).

23. So the limitation of six months is to be counted from only two dates, as the words "as the case may be" clearly suggests. They are, either-
     (i) from the date of making or taking of the order, decision or action concerned, or
     (ii) from the date of making of the decision on the matter by the higher administrative authority.

24. The appellants are clearly not covered by the second set of starting point of limitation, because the President in exercising the power of review does not function as a higher administrative authority. The Appellate Tribunal therefore was of the opinion that a Government Servant who has no remedy of appeal but has a remedy of review, should forego his remedy of review and file his application to the Administrative Tribunal within six months of the order concerned, or else his application will be time‑barred.

25. If this interpretation of the second proviso to section 4(2) given by the Appellate Tribunal is correct, then one set of, Government servants has to compulsorily prefer an appeal and another set of Government servants has to compulsorily forego that remedy of review (their only remedy) if they are to maintain an application before the Administrative Tribunal.

26. Both the Act and the Rules, in so far as Government servants are concerned, have their origin and sanctity in the Constitution itself. The Act was enacted in pursuance of Article 117 of the Constitution and the Rules, 1985 owe its origin to Article, 133 of the Constitution. The remedies provided in the Act and the Rules are not merely statutory remedies, but also have a constitutional basis. The remedy of review in the Rules and the remedy of taking a decision or action to the Administrative Tribunal are both entrenched remedies, incapable of being whittled down, curtailed or made inoperative by any interpretation of statutes. A Government servant, who has no right of appeal but a remedy of review, cannot be asked to forego his remedy of review before he avails of the forum provided by the Administrative Tribunal. His remedy of review, although optional, is a right nevertheless, and his right to go to the Administrative Tribunal is also a right implicit in Article 117(1)(a) of the Constitution. Both must co‑exist at the same time, and no single right can be excluded for enjoyment of the other. A Government servant can make an application to the Administrative Tribunal if he wishes not to exercise his right of review. He can do the same also if he prefers a review. In the first case, he must come within six months of the date of the order, decision or action concerned and in the second case, he must come Within six months of the order passed on review, because the order passed on review will be treated as attracting the first set of limitation in the second proviso to section 4(2), namely "the date of making or taking of the order, decision or action concerned." There is nothing in the Act which can justify a conclusion that without exhausting the remedy of review a Government servant cannot make an application to the Administrative Tribunal. The Act has made an appeal mandatory, but not a review. To make a review mandatory in my opinion will be legislation, pure and simple, which the Parliament is competent to do, but not ourselves, in the given situation. When it is possible to achieve the same result by giving an extended meaning to the words "the date of making or taking of the order, decision or action concerned" it will be inappropriate, in my view, to resort to legislation by court to achieve the same object.

27. As we have been called upon to solve a paradox in the case of those Government servants who have no right of appeal, but a remedy of review, it is also appropriate, in the interest of setting the point of limitation, that we say what will happen if the review is not filed within the time‑limit of three months, for we cannot leave this important issue unresolved for a future litigation at the cost of making our present decision tentative. If a time-barred application for review has not been entertained by the President or, if after entertaining a time‑barred application the President rejects the review petition and if in either case the applicant has not filed an application before the Administrative Tribunal within six months of the original order, I do not think he ought to be given a chance to file his application before the Tribunal thereafter. He loses both. But if a time‑barred application for review has been entertained by the President and the applicant has also filed an application before the Administrative Tribunal, it will be totally inappropriate for the applicant to pursue his remedies in two forums, either in suppression of such facts or within full knowledge of the two forums.
With these observations, I concur with these reasonings given by my learned brother MH Rahman J and with the order passed by him and Latifur Rahman J.
 
                 Latifur Rahman J : Agreeing with the ultimate order of my brother MH Rahman J, that both appeals should be allowed and remanded to the Administrative Appellate Tribunal and the Civil Petition be dismissed, I like to add my own reasons for supporting the conclusion of the judgment.

28. In these two appeals the main question for consideration is the calculation of the period of limitation provided in sub‑section (2) of section 4 of Administrative Tribunals act, 1980 briefly the act, which provides for excluding the time spent in pursuing the remedies provided under any law for the time being in force before the higher administrative authority.

29. In both the appeals the punishments were imposed by the President of the Republic under the Government Servants (Discipline and Appeal) Rules, 1985, briefly the Rules. The Tribunal held that both the orders were bad but the cases were dismissed as time‑barred under the Act and refused to exclude the time spent under the Review Proceeding before the President of the Republic.

30. The Administrative Appellate Tribunal without entering into the merit of the case upheld the order of the Administrative Tribunal that the cases were barred by limitation.

31. In these cases the orders of punishment were passed by the President of the Republic. Rule 16 of the Rules speaks that the order made by the President is not appealable. Hence the appellants filed a Review under Rule 23 of the Rules as they were aggrieved by the order of the President. The applications for review were filed within 3 (three) months as contemplated under sub-section (2) of Rule 23 of the Rules. After disposal of the Review by the President the appellants filed the cases before the Administrative Tribunal within 6 months as provided under the Act. It is needless to say that the President of the Republic is the highest constitutional functionary of the State and under the Rules the review is to be filed before the President. Under the Rules the review is provided as the only next remedy in the departmental side for the appellants and in due Lime they applied for review and after exhausting the procedure of review they filed the cases before the Administrative Tribunal within 6 months from the date of review. Review having been provided under the Rules the aggrieved person must exhaust the remedy provided under the Rules before filing an application before the Administrative Tribunal. In review, the President can set aside, vary or modify the order, decision or action taken by him. In other words, the original order imposing the punishment will be made final subject to review. I am of the view that without exhausting this procedure of review as provided under the Rules no one can straight go before the Administrative Tribunal as review is provided under the existing law for the time, in force. Admittedly in these appeals review was filed within 3 months as contemplated under sub‑rule (2) of Rule 23 of the Rules and subsequent thereto these cases were filed in time before the Tribunal. In these cases we are not called upon to decide to what will be the fate of a time barred application for review before the President and its subsequent filing of the same before the Administrative Tribunal Within 6 months after the disposal of the time‑barred application for review by the President. Proviso 2 of section 23 of the Rules speaks that, "provided that the President may entertain an application for review within 3 months after the expiry of above period if he is satisfied that the applicant has sufficient cause for not submitting the application in time." The President may or may not entertain a time‑barred application for review. What will be the effect of disposal of such a time ­barred review petition by the President and filing of the same thereafter before the Administrative Tribunal is not squarely in issue in these appeals. Further, if the President accepts a time‑barred review and gives relief and the same person without waiting for the result in review files a case before the Tribunal, which ultimately rejects the same on the ground of limitation; then an anomaly will be created. President gives relief in a time‑barred review petition and the same is rejected by the Tribunal. So I refrain from giving my opinion in this regard. In a proper case the matter can be considered. I may quote the observation of the Administrative Appellate Tribunal in respect of higher administrative authority which is as follows :

“বর্তমানক্ষেত্রে যেহেতু তর্কিত আদেশটি রাষ্ট্রপতি কর্তৃক অনুমোদিত উহা রাষ্ট্রপতির আদেশ বলিয়া গণ্য হইবে এবং যেহেতু রাষ্ট্রপতি অপেক্ষা কোন উচ্চতর প্রশাসনিক কতৃপক্ষ নাই এজন্য উক্ত আদেশের বিরুদ্ধে কোন উচ্চতর কতৃপক্ষে্র নিকট আবেদন করার কোন অবকাশ নাই। প্রার্থী আপীলকারী তর্কিত দন্ডাদেশের বিরদ্ধে সরাসরি প্রসাশনিক ট্রাইবুনালে মামলা দায়ের করিতেন ৬ মাস সময়সীমার মধ্যে”
 
 
The question of higher administrative authority under any law for the time being in force is not of much significance as has been observed above by the Administrative Appellate Tribunal. Proviso 1 of sub-section (2) of section 4 of the said Act speaks that no application in respect of an order, decision or action can be challenged until a higher administrative authority has taken a decision in the matter. Thus there is a clear embargo in filing the application before the Administrative Tribunal before exhausting all the remedies provided under any law for the time being in force. When the law permits of filing a review of, the order of the President before the President himself, notionally, law contemplates the President for the purpose of review to be the higher authority for giving the reliefs as contemplated in sub‑section (5), section 23 of the Rules. If the reasonings given by the Administrative Appellate Tribunal that there is no higher authority above the President and hence there is no scope to file any review against the order of the President is accepted, then the provision of review as contemplated under the Rules will become simply nugatory and without availing this procedure for review an aggrieved person may move the Administrative Tribunal which is not contemplated under section 4 of the said Act. Section 4 of the Act gives exclusive jurisdiction to the Administrative Tribunal to hear and determine matters in respect of the terms and conditions of the service of any person in the service of Republic or of any statutory public authority. Sub‑section (2) of section 4 of speaks of filing application by an aggrieved person, and First proviso speaks that no application can be made before the Administrative Tribunal until a decision has been given by the higher Administrative Authority under any law for the time being in force. Last proviso of sub‑section (2) speaks that no such application shall be entertained unless it is made within 6 months from the date of taking any decision in the matter by the higher Administrative authority. Hence, the applicant must satisfy two conditions before filing of the application before the Tribunal. First, it should be a decision by the higher Administrative Authority and next such application must be made within 6 months from the decision of that higher administrative authority. In these appeals we are really concerned with both the provisos as because the higher administrative authority must pass a final order on the departmental side and that order must be challenged before the Administrative Tribunal within 6 months from the decision by the higher administrative authority. I may quote the version of Bengali of 2nd proviso of section 4(2) of the Act which will throw light on the issue in controversy. The Bengali version reads as follows –
 
“তবে আরও শর্ত থাকে যে, কোন আবেদনই প্রশাসনিক ট্রাইবুনাল কর্তৃক গ্রাহ্য (গৃহীত) হইবে না যদি না ক্ষেত্রমত সংশ্লিষ্ট আদেশ, সিদ্ধান্ত বা ব্যবস্হা প্রদান গ্রহণের কিংবা উচ্চতর প্রশাসনিক কতৃপক্ষ কর্তৃক উক্ত বিষয়ের উপর সিদ্ধান্ত গ্রহণের তারিখ হইতে ছয় মাসের মধ্যে ইহা করা হয়৷”

32. In the present cases, the higher administrative authority is the President who sits at the apex and he is capable of giving full relief to the appellants. If an aggrieved person can get relief from the President on review, then he will have no cause of action to move the Administrative Tribunal for the same relief. Administrative Tribunal was set up by the Government to exercise exclusive jurisdiction in respect of matters relating to or arising out of the terms and conditions of service of persons in the service of the Republic or any statutory public authority. Reading the existing service Rules, namely the Government Servants (Discipline and Appeal) Rules, 1985 and the Administrative Tribunals Act, 1980. 1 am of the view that the procedure of review must be followed by an aggrieved person before going to the Tribunal. The word final has not been used in section 4 of the Act, but reading sub-section (2) of section 4 of the Act, I hold that all normal and available remedies guiding the departmental procedure must be followed before attracting jurisdiction of Administrative Tribunal. Both the provisions of the Statutes must be construed harmoniously and beneficial construction must be given as there is no apparent inconsistency in these provisions of law.

33. It maybe stated here that Administrative Tribunal Act is a Special Act providing special period of limitation for 6 months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher Administrative authority. There being nothing to extend the period of limitation within the Act itself it is to be strictly followed.
With the above observations. I agree with the ultimate order of my learned brother.
Ed.