Case No: Civil Appeal No 36 of 1979
Court: Appellate Division ,,
Advocate: MR. SR Pal,Mr. K. A. Bakr,,
Citation: 33 DLR (AD) (1981) 177
Case Year: 1981
Appellant: Bangladesh Steamer Agents Association
Respondent: Government of Bangladesh and others
Subject: Principles of Natural Justice, Words and Phrases,
Delivery Date: 1979-5-31
Kemaluddin Hossain CJ
Fazle Munim J
Badrul Haider Chowdhury J
Bangladesh Steamer Agents Association
Bangladesh & ors
May 31, 1979.
The concept of natural justice cannot be confined to any precise definition. It is not justice in the abstract or moral sense and is not even justice according to natural law. The essential feature of the principle of natural justice in simply that no person shall be deprived of any order judicial or otherwise without a hearing before an independent authority, not interested in the proceeding or in any party to the proceeding. ….. (11)
Hamidul Huq Chowdhury, with Asrarul Hussain, Senior Advocates, Md. Khalilur Rahman, Advocate, instructed by M. R. Khan, Advocate-on-Record.—For the Appellant.
K.A, Bakr, Attorney-General, with A.W. Bhuiyan, Assistant Attorney-General, instructed by S. S. Huda, Advocate-on-Record.-For the Respondent Nos. 1 & 2.
S. R, Pal, Senior Advocate, with S. C. Das, Advocate, Instructed by A. Rab-II, Advocate-on- Record.—For the Respondent Nos. 3 & 4.
Civil Appeal No 36 of 1979
(From the Judgment and order dated 23.2.79 passed by the High Court Division in Writ Petition No. 1003 of 1978.)
K. M. Sobhan J.
This appeal by special leave is from the judgment and order of the High Court Division passed in Writ petition No. 1003 of 1978.
2. The appellant is an association sponsored by certain persons interested in trade and was registered as an Association under section 26 of the Companies Act read with Section 3 of the Trade Organization Ordinance, 1961 (Ordinance No. XLV of 1961) hereinafter called the Ordinance as a nonprofit making concern having the main object of doing the business of weighment / measurement of various articles of import and export by private individuals. The Government granted the license required under section 3 of the Ordinance on due approval of the Memorandum of Articles of Association of appellant. The Association, which were amended several times at the instance of the Government before the licence was granted. The chief business of the Association is weighment and measurement on all country basis, which is fully described this service being required essentially by the Steamers and Shipping agents, in Clause 3(36) of the Memorandum and is known as Licenced Measurers Department. The appellant started its business at Chittagong and Khulna. By this only earning business, the appellant maintains all its charitable objects as mentioned in the Memorandum. These objects are non-profit making public welfare objects.
3. This service, known as Licensed Measurers Department, is required for measurement/ weighment of various import and export of cargo and for the issuance of certificates showing actual measurement/weighment/figures of import and export accurately and promptly. On the bails of these certificates, the shipping agents charge freight and shippers get price of their export cargo from foreign buyers and the foreign exchange is earned- by the country. Licensed Measurers Department is vital to the business of the Steamer and Shipping agents, as well as the country's and international shipping business.
4. There are a number of other organizations viz. Chittagong and Khulna Chambers of Commerce and Industry who were also carrying on the same business of weighment and measurement on local territorial basis.
5. The appellant has been discharging the duties connected with Licensed Measurers Department service to the satisfaction of all and maintains a high standard. Suddenly the appellant was directed by an order dated 16-9-78 to discontinue the famines of Licensed Measurers Department work and also to delete Clause 3(36) of the Memorandum. This order was passed by the Ministry of Commerce without any notice to the appellant.
6. The appellant unsuccessfully challenged the said order dated 16-9-78 by an application under Article 102 of the Constitution. The Division Bench, of the High Court Division while discharging the Rule issued earlier held that the appellant did not acquire any vested right to run the Licensed Measurers Department business because of the clause in the Memorandum of Association. The learned Judges further held that stoppage of Licensed Measurers Department service does not affect the main business of the appellant, which is to act as agent of Steamer and Vessels. The learned Judges also held that the appellant has not been penalized for any misconduct and even If by the impugned order the appellant "was penalized yet the principles of natural Justice would not be applicable in this forum as the impugned order has been pasted in accordance with a condition subject to which license was granted."
The appellant obtained leave to appeal against the said judgment and order patted by the High Court Division to examine whether the Impugned order is violation of the principles of natural Justice.
7. Mr. Hamidul Huq Chowdhury, the learned Counsel appearing for the appellant has submitted that the appellant is a non-profit making organization having the main business rather, the only business, as has been mentioned in clause 3(36) by which the appellant earns to run the organization as a non-profit making public welfare organization. This clause has been ordered to be deleted without any notice to the appellant and accordingly the principle of natural justice is violated.
8. The records of the case show that the Ministry of Commerce took more than two year to issue the licence under section 3 of the Ordinance required for the registration of the Association under Section 26 of the Companies Act. The letter by the appellant requesting the granting of the said licence is dated 9.2.76 and the licence was issued on 6.3.78. Clause (b) of the licence is phrased thus; “The conditions and regulations contained in the Memorandum and Articles of Association of the said Association, a copy of which is hereto annexed to the extent such condition and regulations are not inconsistent with the said Ordinance". This clause makes it patently clear that the authority was fully aware of the clause of the Memorandum and Articles of Association. The impugned order directed the "Association to discontinue L.M.D. work; forthwith and to delete Clause No. 3(36) of the Memorandum of Association of Bangladesh Steamer Agents Association". The order has been issued under Section 8(1) (b) of the Ordinance which is as follows;—
(b) The (Appropriate Government) may whenever it considers expedient to do so, by order in writing direct any such trade organization to rescind, amend or otherwise modify it articles, memorandum rules or bye-laws or to make any rule or byelaw in such manner and within such period as may be specified in the order”.
9. Relying upon the language of this provision of law Mr. Bakr, the learned Attorney-General appearing for the Government submitted that (a) the principles of natural justice may be excluded by necessary implication or Intendment: (b) If In certain provisions of a statute principle of natural justice is provided it is implied that where in the statute it is not so provided, the principle is excluded by implication: (c) If the order complained of is an administrative order the principle is not attracted and lastly, (d) Since the licence was issued subject to conditions it did not create any interest in the licence itself.
10. The deletion of Clause 3(36) obviously implies stopping of the L.M.D. service also. It has been very plainly submitted on behalf of the appellant that the L.M.D. service is the only business by which the appellant earns and applies this earning to the maintenance of its non-profit making public welfare objects. The learned Attorney-General has not attempted to argue that the stoppage of this business does not adversely affect the business of object clause of the Association. What is contended in this regard in that the impugned order is an administrative order and as such the principles of natural Justice are not attracted. The learned Judges in this regard held that since the licence was issued subject to condition the principles of natural Justice are not attracted to the order even if the effect of the order is to penalties the appellant.
11. The concept of natural justice cannot be confined to any precise definition. It is not justice in the abstract or moral sense and is not even Justice according to natural law. The essential feature of the principle of natural justice is simply that no person shall be deprived of any vested right by any order judicial or otherwise without a hearing before an independent authority, not interested in the proceedings or in any party to the proceeding. The frontier of natural justice with the progress of rule of law and establishment of human rights is constantly expanding. The purpose of invoking the principle of natural Justice is, to put it negatively, to prevent miscarriage of justice and to secure justice.
12. The principles are attracted to fields not covered by any stale. The precise purpose of invoking the principles of natural justice is to supplement the statute and not to supplant it. It is inconceivable that when a citizen is deprived of a right vested in the person, he can be deprived of that right by a capricious or arbitrary executive fiat, without being challenged as being violative of the principles of natural justice. An unjust decision of an administrative authority affecting adversely the right of a person can be scrutinized in the light of the principles of natural justice. The principles are not embodied written rules and what principle shall apply to a given case is dependent upon the facts and circumstances of that case. When allegation is lodged that some principles of natural justice have been contravened in the passing of an order effecting the vested right of a citizen, the Court in obliged to decide whether the observance of toe principles was necessary for a just decision, in the facts and circumstances of the case. The High Court was wrong in holding that just because the licence was subject to condition the licence could be penalized without giving an opportunity of placing his version on the effects of the Impugned order. In this view the last two considerations of the learned Attorney-General fail.
13. In support of hit second contention the learned Attorney-General has referred to section 10 of the Ordinance which provides for notifying and hearing the Executive Committee before its suppression. The provision has been incorporated in the statute itself and there is nothing in section 8 (1) (b) or the order granting licence which curbs or prohibits the importation of the principles.
14. In the case of Abul Alla Moududi vs. Govt. of West Pakistan (1965) 17 D.L.R (SC) 209=PLD 1964 S.C. 673. S. A. Rahman, J. observed on review of a number of decisions of the Pakistan Supreme Court "that the principle of natural justice requiring hearing to be granted to a person before being condemned applies not only to judicial or quasi judicial proceedings but also to administrative proceedings provided the relevant statute does not exclude its application end requires the administrative authority concerned to base its decision on an objective determination of facts".
15. In the case of Abdur Rahman vs. Collector and Deputy Commissioner (1964) 16 D.L.R (S.G) 470=PLD 1964 S.C. 461 It was held that "principles of natural justice" are to be read in every enactment In the absence of a provision to the contrary.
16. The House of Lords in the case of Ridge vs. Baldwin and others (1963) 2 All. E.R 66 considered the application of the principle of natural justice to administrative proceedings. Lord Reid observed; ''I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first letting him what is alleged against him and having his defence or explanation." (Page 72).
The contention of the learned Attorney-General thus fall.
The appeal is accordingly allowed with costs and judgment of the High Court Division in set aside and the impugned order is set aside as having been passed without any lawful authority.