Bangladesh Vs. Dr. Md. Tofajjal Hossain

Case No: Civil Appeal No. 584 of 2001

Judge: Md. Hamidul Haque,

Court: Appellate Division ,,

Advocate: AJ Mohammad Ali,Mr. Mahmudul Islam,,

Citation: 14 BLT 2006 (AD)18

Case Year: 2006

Appellant: Bangladesh

Respondent: Dr. Md. Tofajjal Hossain

Subject: Administrative Law,

Delivery Date: 2003-11-10

Bangladesh

 Vs.

Dr. Md. Tofajjal Hossain, (AD)

14 BLT 2006 (AD)18

 
Supreme Court
Appellate Division
(Civil) 
 
Present:
Mohammad Fazlul Karim J
Md. Hamidul Haque J
Md. Tafazzul Islam J 
 
The Government of Bangladesh, represented by the Secretary, Ministry of Shipping, Bangladesh Secretariat, Dhaka and others…………......Appellants.

Vs.

Dr. Md. Tofajjel Hossain….......Respondent. 
 
Judgment
10th November 2003
 
Administrative Tribunals Act, 1980
(as amended by Act 24 of 1997)

Section – 4(2)
Maintainable- we find that actually the second proviso to sub-section (2) of section 4 of the Administrative Tribunal Act came into force on 19.11.1997 whereas the case was filed by the respondent before the Administrative Tribunal on 28.9.1997. So, the question that the case was barred because the respondent did not file any review before the President in respect of order of his dismissal from service does not arise.  [ Para-5]
 
Lawyers Involved: 
A. J. Mohammad Ali, Additional Attorney-General, instructed by A.K.M. Shahidul Huq, Advocate-On-Record- For the Appellants. 
Mahmudul Islam, Senior Advocate, instructed by Amir Hossain Chowdhury, Advocate -On –Record- For the Respondent.

Civil Appeal No. 584 of 2001. 
 
Judgment:           
                  Md. Hamidul Haque, J : This appeal has been preferred against the judgment and order passed by the Administrative Appellate Tribunal in Appeal No. 43 of 1998 after obtaining leave from this Court on 28th November, 2001. 

2. The respondent Dr. Md. Tofajjel Hossain filed a case under section 4 of the Administrative Tribunal Act, 1980 before the Administrative Tribunal, Dhaka on 28.9.1997 for setting aside an order dated 8.7.1997 of the Joint Secretary (Administrative) Ministry of Shipping, dismissing him from service. The Administrative Tribunal set aside the order of dismissal. Then the above appeal was preferred before the Administrative Appellate Tribunal. The question of maintainability of the case was agitated both before the Tribunal and the Appellate Tribunal. Of the three members, one of the members of the Administrative Appellate Tribunal held the view that the case was not maintainable but the other two members including the chairman held that the case was maintainable. The question of maintainability arose in view of provisions of section 4(2) of the Administrative Tribunal Act, 1980 as amended by Act 24 of 1997. It was alleged on behalf of the present appellants that no review was filed before the President far review of the order of dismissal and as such the case was hit by second proviso to sub-section (2) of section 4 of the Administrative Tribunal Act, 1980. We find that actually leave was also granted to consider this question. 

3. Mr. A. J. Mohammad Ali, the learned Additional Attorney-General appeared on behalf of the appellant. At the very out set he has conceded that the second proviso to sub-section (2) of section 4 of the Administrative Tribunal Act was added by Act 24 of 1997 which came into force on  19.11.1997, but the case was filed earlier before the Administrative Tribunal.  So, he has agreed that the above second proviso cannot be a bar in the case of the respondent who filed the case before the Administrative Tribunal. 

4. Mr. Mahmudul Islam, the learned Senior Counsel appeared on behalf of the respondent.  He has also submitted that the amendment having been made on 19.11.1997 is not applicable as the respondent filed the case before Administrative Tribunal on 28.9.1997. 

5. On perusal of the judgment of both the Tribunals, we find that actually the second   proviso to sub-section (2) of section 4 of the Administrative Tribunal Act came into force on 19.11.1997 whereas the case was filed by the respondent before the Administrative Tribunal on 28.9.1997. So, the question that the case was barred because the respondent did not file any review before the President in respect of the order of his dismissal from service does not arise. It is obvious that the President was the appointing authority and   the order of appointment was issued by the Secretary of the Ministry concerned in accordance with provisions of article 55(4) of the constitution. It is true that the respondent was dismissed in a departmental proceeding under provisions of the Government Servants (Discipline and Appeal) Rules, 1985. Under Rule 23 of these Rules, review lies to the President but the bar that was imposed by the second proviso to sub­-section (2) of section 4 of  the Administrative Tribunal Act  was not there when the respondent filed the case. So, the case was not barred though the respondent did not file any review before the President. Leave was granted to consider whether the case was maintainable, as we now find that the case was maintainable, the appeal is liable to be dismissed. 

In the result, the appeal is dismissed without any order as to costs.  
Ed.