Case No: Civil Appeal No. 40 of 1995
Judge: Latifur Rahman ,
Court: Appellate Division ,,
Advocate: AW Bhuiyan,Abdur Rab Choudhury,,
Citation: 49 DLR (AD) (1997) 29
Case Year: 1997
Respondent: Abdul Latif Chokder
Subject: Administrative Law,
Delivery Date: 1996-07-25
Abdul Latif Chokder , 1997,
1 MLR 1996, 393,
49 DLR (AD) (1997) 29
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J and
Bimalendu Bikash Roy Choudhury J
Government of the People’s Republic of Bangladesh, represented by the Comptroller and Auditor General of Bangladesh ………………………….Appellant
Abdul Latif Chokder …………………………Respondent*
July 25, 1996.
Interpretation of Statutes
The Administrative Tribunals Act, 1980 cannot be retrospective as there is no indication in the law itself. Normal interpretation of any enactment is prospective unless, of course the enactment itself indicates a different intention ………….(9)
Administrative Tribunals Act, (VII of 1981)
Section 4 (2)
Proviso— On a reference to rules 16,17,18, and 19 of rules, 1976, it appears that successive appeals which were filed by the respondent were not addressed to the proper appellate authority and those were also filed beyond the period of limitation. Hence the Administrative Tribunal had no jurisdiction to entertain the application.
Managing Director, Rupali Bank Limited and others vs. Tafazal Hossain and others 44 DLR (AD) 260.
AW Bhuiyan, Additional Attorney-General, instructed by B Hossain, Advocate-on-Record—For the Appellant.
Abdur Rob Chowdhury, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record—For the Respondent.
Civil Appeal No. 40 of 1995.
(From the judgment and order dated 10-6-93 passed by the Administrative Appellate Tribunal in Appeal No. 30 of 1992).
Latifur Rahman J.- This appeal by the Government of Bangladesh-appellant is against the judgment and order passed by the Administrative Appellate Tribunal, Dhaka on 10-6-93 in Appeal No. 30 of 1992 setting aside the judgment and order passed by the Administrative Tribunal, Dhaka on 21-3-92 in Administrative Tribunal Case No. 126 of 1987.
The respondent filed the case before the Administrative Tribunal against an order of his removal from service passed by the Comptroller and Auditor General of Bangladesh alleging that he was appointed as an Auditor in 1948 in the local audit department of the office of the then Accountant General, East Pakistan. Subsequently through promotion he became audit and accounts officer in the office of the Director General, Audit and Accounts Training Academy and while working as such the Comptroller and Auditor General drew up a departmental proceeding against him under the Government Servants (Discipline and Appeal) Rules, 1976 on 14-3-78 and issued show cause notice to which he replied denying the charges. On 25-9-78 he was illegally removed from his service. He filed an appeal against the said order to the Ministry of Finance through the Comptroller and Auditor General but instead of forwarding the same the Comptroller and Auditor General returned the appeal saying that the respondent having been removed from service for criminal conviction, there was no provision of appeal. The respondent asserted that at the relevant time he was a Class I Officer and the President was his appointing authority and, as such, he was the only competent authority to remove him from service and no one else.
2. The appellant in its written statement, inter alia, alleged that the respondent is a corrupt officer who was convicted and sentenced by a summary Military Court at Comilla for defalcation of Taka 35,591.00 of the Secondary and Higher Secondary Education Board, Comilla while on deputation here. He was suspended from service since his arrest on 10-4-76. After serving out his sentence he applied for joining the service when a departmental proceeding was drawn up against him and the Establishment Ministry was requested to appoint an inquiry officer but the Ministry informed that as the respondent was convicted on a criminal offence, no show cause was necessary in his case. Thereafter he was removed from service by order dated 25-9-78. Although the respondent’s post was upgraded to a Class I post since 1-7-73, he and other officers of his rank are governed regarding matters of appointment, promotion, etc, by the Auditor General’s Manual Standing Orders since no recruitment rules were made in connection with their service prior to 30-3-83. The Comptroller and Auditor General is the appointing authority of the respondent under paragraph 120 ch. IV of the said Orders and, as such, he was quite competent to remove him from service.
3. The Administrative Tribunal dismissed the case after holding that the Comptroller and Auditor General being the appointing authority was competent to pass the impugned order and that the case was also barred by limitation.
4. Both the findings were reversed by the Administrative Appellate Tribunal by relying on an opinion of the Ministry of Law. It held that the President was the appointing authority of the respondent who was a Class I Officer and, as such, the order of removal passed by the Comptroller and Auditor General was void.
5. The only question that was initially raised in this appeal was, whether the Comptroller and Auditor General of Bangladesh was the competent authority to pass the order of removal of the respondent from service on 25-9-78. In view of this main issue, the learned Additional Attorney-General urged before us two grounds, namely, (1) the case of appointment and promotion to the post of Assistant Accounts Officer, a Class II Gazetted post, which was held by the respondent being governed by the provisions contained in paragraph 120 of the Controller and Auditor General’s Manual Standing Orders in terms of which Comptroller and Auditor General was/is the appointing/promoting authority who in fact promoted the respondent and the authority of the Comptroller and Auditor General not having been withdrawn by or under any law or rule Comptroller and Auditor General retained till authority to remove the respondent from service in spite of the post of Assistant Accounts Officer being redesignated as Audit and Accounts Officer (without change of status) and latter was upgraded to Class I non-cadre post. (2) In terms of the provisions of Schedule III SI No. 74 of the Rules of Business framed by the President the case of appointment the respondent whose scale of pay was below the maximum scale as provided in clause (d) thereof, whose appointment was not required to be submitted to the President under the recruitment rules as provided in clause (e) thereof and the post of Audit and Accounts Officer being a Class I non-cadre post not belonging to a regularly constituted cadre service as provided in clause (f) thereof, the case of appointment and removal of the respondent was not required to be submitted to the President and therefore, the Administrative Appellate Tribunal erred in law in holding that Comptroller and Auditor General’s Manual of Standing Orders has no application in the case and he had no authority to remove the respondent from service. Leave was granted only to consider these two grounds.
6. At the time of hearing of the appeal additional ground was urged by filing an application by the learned Additional Attorney-General as to the maintainability of this application before the Tribunal itself. The said ground being related to the jurisdiction of the Administrative Tribunal in entertaining the application was allowed. The ground of maintainability was formulated as under:
“For that the respondent not having preferred any appeal to the President within the period of six months from the date on which the respondent was informed of the order of removal from service and the period to file appeal having expired long before the coming into force of Administrative Tribunal Act, 1980 on 1-4-82 and the remedy under the said Act not being available to the respondent at the time when the order of removal was passed he was not entitled to the remedy under the said Act which is prospective in operation and, as such, the application before the Administrative Tribunal under the said Act was incompetent and hence the judgment and order of the Administrative Appellate Tribunal is without jurisdiction.”
We We refrained ourselves from entering into the merits of the case and heard the learned Advocates of the parties on the last question as to the maintainability of the application before the Administrative Tribunal.
7. The respondent was removed from his service by the Comptroller and Auditor General of Bangladesh on 25-9-78. As per rule 17 of the Government Servants (Discipline and Appeal) Rules, 1976, briefly, the Rules, 1976, an appeal is to be filed to the President of the Republic within six months as provided in the Rules. The respondent preferred an appeal addressed to the Secretary, Ministry of Finance through C& AG on 8-12-78. The appeal was not addressed to the President who is the proper authority to entertain the appeal as per rule 18 of the Rules, 1976. The appeal was addressed to the Secretary, Ministry of Finance who was not the appellate authority in respect of the punishment imposed by the Comptroller and Auditor General. The appeal of the respondent dated 8-12-78 could not be forwarded and it was sent back to the respondent who received it on 23-9-79. The respondent again submitted an appeal direct to the Secretary, Ministry of Finance on 5-4-79. This appeal was barred by limitation and was also not made to the proper authority. The respondent again submitted another appeal to the Chief Martial Law Administrator through Secretary of Finance on 21-11-83. The rejection order of the then Chief Martial Law Administrator was communicated vide Letter No. 1597 dated 20-12-83. The respondent having been removed on 25-9-78 the period of six months from the date of removal expired on 24-3-79. The Administrative Tribunal Act, 1980 came into force on 1-4-82. Thereafter the Administrative Tribunal case was filed by the respondent on 10-6-87.
8. Mr. Abdur Rob Chowdhury, learned Advocate appearing for the respondent, submits that Letter No. 1597 dated 20- 12-83 of CMLS Secretariat is misconceived. In utter disappointment and helplessness the respondent filed an application on 20-11-83. The Secretariat of the CMLA rejected the petition on the ground of the conviction of the respondent by a court of law and the same could not be considered as a final decision of his service appeal made on 8- 12-78.
9. It is not disputed before us that the respondent was removed from his service on 25-9-78 and the petition was filed before the Administrative Tribunal by the respondent on 10-6-87, long after nine years. It is also not disputed that when the respondent was removed from his service the Administrative Tribunal Act was not enacted. Hence the respondent’s application before the Administrative Tribunal was incompetent as he had remedies at that time under the law either by filing a civil suit or by writ petition before the High Court Division. The Administrative Tribunals Act, 1980 which came into force on 1-4-82 was prospective in operation and this enactment cannot be retrospective as there is no indication in the law itself. Normal interpretation of any enactment is prospective unless, of course, the enactment itself indicates a different intention.
10. Proviso to section 4(2) of the Administrative Tribunals Act, 1980 provides that an application can be filed before the Administrative Tribunal within six months from the date of making of the decision on the matter by the higher Administrative Authority. Under the law one appeal is provided and after the disposal of the appeal within six months the case before the Tribunal is to be filed. On a reference to Rules 16, 17, 18 and 19 of Rules, 1976, it appears that successive appeals which were filed by the respondent were not addressed to the proper appellate authority and those were also filed beyond the period of limitation. Hence the Administrative Tribunal had no jurisdiction to entertain the application.
11. In the case of Managing Director, Rupali Bank Limited and others vs. Tafazal Hossain and others reported in 44 DLR (AD) 260, it has been clearly held that the respondent who was in the service in the appellant’s bank could not file the case before the Administrative Tribunal as because he was terminated in 1981 and Rupali Bank Limited was brought into the ambit of section 4 of the Act from 25th September, 1984. In that case the order of termination was challenged in suit and the respondent spent about six years’ time seeking remedies before persons or other authorities not contemplated in sub-section (2) of section 4 of the Act. In that decision it has further been held in paragraph 12 as follows:
“Jurisdiction of a court goes to the very root of a matter brought before it, and if the court got no jurisdiction, everything shall fall through. We are surprised to find that the learned Single Judge in this case held that the court’s jurisdiction is a mere technicality and that it is the merit of a case that matters. The court which got no jurisdiction over a matter shall not go into the merit of the matter.”
12. In view of our finding on the question of maintainability of the case itself, it is not at all necessary to enter into the grounds on which initially leave was granted.
Accordingly, the appeal is allowed without any order as to costs.