Case No: Civil Appeal No. 95 of 1997
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: Dr. Kamal Hossain,Abdul Wadud Bhuiyan,,
Citation: 50 DLR (AD) (1998) 154
Case Year: 1998
Respondent: Mahbubuddin Ahmed
Subject: Administrative Law,
Delivery Date: 1998-02-02
Mahbubuddin Ahmed, 1998,
50 DLR (AD) (1998) 154
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md. Abdur Rouf J
Bimalendu Bikash Roy Chowdhury J
Bangladesh, represented by Secretary, Establishment Division and others……………… Appellants
February 2, 1998.
The Constitution of Bangladesh, 1972,
(i) Whether an order of dismissal from service under MLO No. 9 was effective or not for non-communication of the same on the affected person can be decided by the Administrative Tribunal and for this exercise judicial review was not necessary. Indeed the matter being one relating to the terms and conditions of service, the jurisdiction of the High Court Division is excluded. The matter was fully cognizable by the Administrative Tribunal………….(22)
(ii) the High Court Division clearly acted without jurisdiction in passing the order as to salary, increment, promotion, etc. It was a gratuitous order not covered by any law nor justified in the facts of the case…………….(24)
(iii) An order to be effective must at least be communicated to the person concerned and the date of actual communication is not material for the said purpose. There was no actual communication of the order of dismissal before the repeal of the MLO No.9 when the light gone had out of the order. Therefore the order of dismissal of the respondent communicated to him after light had gone out of it could not be effective against him at any time………………(32)
Cases Referred to:
Mujibur Rahman vs Bangladesh 44 DLR (AD) 111; Abul Bashar vs. Bangladesh 1 BLC (AD) 77; Collector, Central Excise and Land Customs PLD 1985 (SC) 82; Bangladesh Bank vs. Appellate Tribunal 44 DLR (AD) 239; Asma Jalani vs. Government of Punjab PLD 1972 (SC) 139; Khandaker Ehteshamuddin Ahmed @ lqbal vs. Bangladesh 33 DLR (AD) 154; Helaluddin Ahmed vs. Bangladesh 45 DLR (AD) 1; State vs. Zia-ur-Rahman PLD 1973 (SC) 49; Federation of Pakistan vs. Saeed Ahmed PLD 1974 (SC) 151; Pakistan vs. AV Issacs 11 DLR (SC) 371; Jeevaratnam vs. State of Madras AIR 1966 (SC) 951 and Fauzi Foundation vs. Shamimur Rahman PLD 1983 (SC) 457.
Abdul Wadud Bhuiyan, Additional Attorney- General (M Farooq, Deputy Attorney-General with him), instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Appellants.
Dr. Kamal Hossain, Senior Advocate, (Amirul Islam and Shafique Ahmed, Senior Advocates with him) instructed by Md Nawab Ali, Advocate-on-Record—For the Respondent.
Civil Appeal No. 95 of 1997.
ATM Afzal CJ.- This appeal, by leave, at the instance of the Government, is from judgment and order dated 12 May, 1997 passed by a Writ Bench of the High Court Division making the Rule Nisi absolute in Writ Petition No. 1870 of 1991.
2. The respondent as writ-petitioner filed the said writ petition on the averments, inter alia, that he qualified in the Central Superior Service and joined the Police service of Pakistan in 1967. He joined the liberation war in 1971 when he was posted as Sub-Divisional Police Officer at Jhenidah. Because of his gallantry and heroic performances in the liberation war he was decorated with the award “Bir Bikram”. After liberation he served in various posts and while acting as Superintendent of Police of Dhaka District his service was transferred on 28-7-75 from Police service to civil service cadre and he was appointed as District Magistrate Dhaka. After promulgation of Martial Law in 1975 the respondent was detained under the Special Powers, Act, 1974 in the Dhaka Central Jail. Upon a writ petition filed on his behalf he was set free from detention by the High Court Division. He was also exonerated from various criminal cases instituted against him for want of evidence. After his release from Dhaka Central Jail on 18-8-77 he reported his joining at the Establishment Division but he was not allowed to join and was informed by the Ministry that he was suspended from service by a Memo. dated 20-3-76 which was unknown hithertofore. No departmental proceeding was drawn up against him. On 4-1-87 a Memo. under the signature of Deputy Secretary, Establishment Division (appellant No.2 herein) was served on him wherein a true copy of the order dated 8-11-86 passed by Mr. HM Ershad, Chief Martial Law Administrator was quoted showing that he was dismissed from service under Martial Law Order No.9 of 1982 in the interest of Government with immediate effect.
3. The respondent challenged the said order in Case No. 151 of 1987 before the Administrative Tribunal, Dhaka but by judgment and order dated 15-11-89 the case was dismissed on the short ground that the Martial Law Order (MLO) was outside the jurisdiction of adjudication by the Administrative Tribunal. The respondent preferred Administrative Appellate Tribunal Appeal No. 74 of 1989 but the same was also dismissed by judgment and order dated 18-11-90 on the ground that the order of the Chief Martial Law Administrator dated 8-11-86 came into effect immediately and the Memo. dated 4-1-87, although passed after the withdrawal of Martial Law, was only a communication of the order of the Chief Martial Law Administrator passed during the currency of Martial Law. As such, the Appellate Tribunal endorsed the decision of the Administrative Tribunal.
4. The respondent thereafter filed the instant writ petition challenging Martial Law Order dated 8-11-86 communicated vide notification No. ShMa/UNI-1-1911/75-6 dated 4-1-87 dismissing the respondent from service.
5. The Government in its affidavit-in- opposition contended that the order dated 8-11-86 was passed in accordance with law and mere communication of the said order on 4-1-87 will not make it illegal.
6. In making the Rule Nisi absolute the High Court Division held that MLO No.9 of 1982 stood repealed with effect from 10-11-86 by an enactment namely, the Constitution (7th Amendment) Act, 1986 whereby the Martial Law was lifted (which is wrong) and the Constitution of Bangladesh was restored. No order passed under MLO No. 9 of 1982 could have any legal effect on and from 10-11-86. As such, the impugned order which was made effective after the lifting of MLO No.9 of 1982 must be held to be ex facie illegal and cannot be deemed to be an order under MLO No.9 of 1982. As the order passed under MLO No.9 of 1982 can not be considered to be an order passed under the said MLO, the High Court Division has jurisdiction to consider the legality of the impugned order which was not protected by Paragraph 19 of the Fourth-Schedule to the Constitution which was add l6Oed by the Constitution (7th Amendment) Act, 1986. The High Court Division also held that it is not unlikely that the respondent may have service enemies who earned blessings of the then Government to put him to trouble after change of Government. The Rule Nisi was made absolute and the appellants were directed to allow the respondent to join his service and to give him all back salaries with seniority, increments, promotion with all attending benefits to which he is entitled within 60 days.
7. Leave was granted mainly to consider the submission of the appellants that the dismissal of the respondent being a term and condition of service, the writ-petition was barred under Article 117 of the Constitution and further, that the respondent having already had rightly exhausted the forum of Administrative Tribunal the writ petition for the same relief was in any case not maintainable.
8. It was contended that the impugned judgment was passed not only without jurisdiction but it gave rise to two conflicting decisions—the High Court Division allowing the respondent’s case while the Administrative Tribunal dismissed the same, which caused embarrassment to the Government.
9. Next, it was contended that the respondent was not entitled to any relief whatsoever because he lost his identity as a civil servant by contesting in the Parliamentary elections in 1991 and 1996.
10. Lastly, it was submitted that the Court Division in any view of the matter exceeded its jurisdiction by directing the Government- appellant to allow the respondent to join his service and to give him all back salaries with seniority, increments, promotion with all attending benefits to which he is entitled within 60 days because it was neither covered by any law nor the facts of the case justified the same.
11. The learned Additional Attorney-General developed his main submission that the writ petition was not maintainable in view of Article 117 of the Constitution. In support of his submission he relied on Mujibur Rahman vs. Bangladesh 44 DLR (AD) 111; Abul Bashar vs. Bangladesh 1 BLC (AD) 77, The Collector, Central Excise and Land Customs PLD 1985 (SC) 82 and many other cases.
12. The learned Additional Attorney-General submitted that the respondent had advisedly moved the Administrative Tribunal against the order of his dismissal from service and having been refused by the Tribunal and the Appellate Tribunal, the matter was closed. His writ petition for the same relief was for all practical purposes an appeal against the decision of the said Tribunals which evidently did not lie in view of sub-article (5) of Article 102. He submitted that the writ petition was filed on 29 September, 1991. The Administrative Tribunals Act, 1980 (Act No. VII of 1981) was amended on 22 July, 1991 adding section 6A by which Article 103 of the Constitution was made applicable in relation to the Administrative Appellate Tribunal. In other words, the decision of the Administrative Appellate Tribunal was made appealable to the Appellate Division of the Supreme Court. The learned Additional Attorney-General argued that in view of the decision in Bangladesh Bank vs. Administrative Appellate Tribunal, 44 DLR (AD) 239 the respondent could take an appeal to this Division from the judgment of the Administrative Appellate Tribunal, if he was aggrieved, even though it was passed long before the aforesaid amendment. But instead he filed the writ petition which was thus liable to be dismissed.
13. The learned Additional Attorney-General submitted that it cannot be disputed that the decision of the Tribunal was given having full jurisdiction. If the impugned decision of the High Court Division also remained, it would mean co-existence of conflicting decisions which will not be countenanced by this Court. He, therefore, submitted that in any case the impugned judgment should not be allowed to survive.
14. Dr. Kamal Hossain, learned Counsel, appearing for the respondent, submitted that if it were a question of ordinary dismissal from service under ordinary law in normal times then the bar under Article 117(2) to the writ petition was complete and no court except an Administrative Tribunal could take cognizance of such matter. But in the instant case it was an order passed under Martial Law Order No. 9 of 1982 and paragraph 19 (2) of the Fourth Schedule to the Constitution put an embargo upon the Court to question such order on any ground whatsoever. Dr Hossain pointed out that the Administrative Tribunals dismissed the respondent’s case because of the aforesaid bar and rightly so, because the Tribunals being created under ordinary statute could not afford to ignore the mandate of the Constitution. But the power of judicial review of the High Court Division under Article 102 is a power derived from the Constitution and in exercise of its judicial power, the High Court Division was competent to examine the outside limits of the bar created under aforesaid paragraph 19(2), Dr Hossain argued that martial law regimes are periods of transgression and when the Constitution is revived, the court in exercise of its judicial power will examine each act complained of and may condone the same on the principle of necessity or for any other good reason notwithstanding the bar created for such examination. This power of condonation and interpretation of the Constitution belongs to the High Court Division and the order impugned in the writ petition being a Martial Law Order, the writ petition was maintainable.
15. In support of his submission Dr. Hossain read out several passages from the case of Asma Jalani vs. Government of Punjab PLD 1972 (SC) 139 and the book Constitutions in Crisis by John E. Finn.
16. Dr. Hossain criticized the impugned order of dismissal on various grounds. He submitted that it was ex facie an illegal order because it was served upon the respondent at a time when Martial Law Order No. 9 of 1982 had ceased to exist. It was an inchoate order, in that there was no time for review of the same as available under clause IA of the said MLO No. 9 of 1982. The order was said to have been passed in the interest of the Government but the said Martial Law Government was to survive for one more day and, as such, the order was passed for a collateral purpose, Dr Hossain submitted.
17. Dr. Hossain drew our attention to an unreported case, Md. Abdul Baten vs. The Principal Secretary, Writ Petition No. 1616 of 1990, in which a similar order passed by the Chief Martial Law Administrator was declared to have been made without any lawful authority.
18. It will not be necessary for the purpose of this case to enter into the larger question of the extent of judicial power but it may be observed that the power of judicial review in respect of Martial Law Orders has by now crystallized by the decisions of this Court. The position in law is that paragraph 19(2) does not totally debar the Court and it will be competent for the Court to review acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were malafide vide Khandaker Ehteshamuddin Ahmed @ Iqbal vs. Bangladesh 33 DLR (AD) 154; Helaluddin Ahmed vs. Bangladesh 45 DLR (AD) 1.
19. The learned Additional Attorney-General submitted that there is a difference between judicial power and jurisdiction and the judicial power cannot be invoked where the jurisdiction has been specifically ousted by the Constitution. In this connection, he referred to State vs. Zia-ur-Rahman PLD 1973 (SC) 49; Federation of Pakistan vs. Saeed Ahmed PLD 1974 (SC) 151 and Fauji Foundation and another vs. Shamimur Rahman PLD 1983 SC 457. The learned Additional Attorney-General, however, has not disputed the view taken by this Court in the case of Khandaker Ehteshamuddin Ahmed @ Iqbal and Helaluddin Ahmed referred to above.
20. The real question for consideration in this case is, whether the respondent prayed for relief on such ground/grounds as were beyond the competence of the Administrative Tribunal and whether it was the High Court Division alone in exercise of its power of judicial review which could interfere in the matter. There is no dispute that both before the Tribunal and in the writ petition the respondent impugned CMLA’s order dated 8-11-86 as communicated to him subsequently on 4-1-87 dismissing him from service. The main ground for attack in both the forums was that MLO No.9 having been repealed on and from 10-11-86 and the order dated 8-11-86 under the said MLO having not been communicated to the respondent until 4-1-87, the order dated 8-11-86 was neither effective nor valid as far as the respondent was concerned. For him there was no order under MLO No. 9. The other argument was that his colleagues in service had conspired against the respondent and caused the ante-dated order of dismissal to be passed after the lifting of Martial Law on 10-11-86 in order that the respondent might not have any relief in any Court.
21. It will be seen that the Administrative Appellate Tribunal took the view that although the communication of the order was made subsequent to the repeal of MLO No. 9 but that would not invalidate the order dated 8-11-86 as the order itself showed that it was to take effect immediately. As regards the other point it seems that it was not pressed in the absence of any supporting material. The High Court Division, however, took the view that inasmuch as the order dated 8-11-86 was not communicated before the repeal of MLO No.9 of 1982 the same could have no legal effect and could not be treated as an order under MLO No.9 affecting the respondent. With regard to the second ground also the High Court Division found substance and observed that the service enemies of the respondent might have caused all the troubles to the respondents.
22. It is clear that the grounds upon which the order of dismissal was being challenged were not such as were outside the purview of the Administrative Tribunal and that they needed the power of Judicial review of the High Court Division to be invoked. The simple case of the respondent has all along been that the order of dismissal having been communicated to him before repeal of MLO No. 9 it was not an order under the said MLO affecting him in any way. Therefore, the question raised is one of construction of the order dated 8-11-86 and not of examining the validity of any MLO or any order made there under. If the order dated 8-11-86 was ineffective because of non-communication before 10-11-86, as held by the High Court Division then the same could not be said to be an order under MLO No.9 and therefore there was no question of any bar as laid down in paragraph 19(2) of the Fourth Schedule. Whereas the Tribunal held that the order became effective from the date it was passed, the High Court Division held that it did not become effective because of non communication. For this exercise the power of judicial review was not necessary. The Tribunal was fully competent to decide the issue raised but its decision might have been wrong. Indeed the matter being one relating to the terms and conditions of service, the jurisdiction of the High Court Division is excluded. In the facts and circumstances of the case, we are absolutely clear in our mind that the grounds of challenge to the impugned dismissal order were such as were fully cognizable by the Administrative Tribunal and the writ petition for the same relief on the self same grounds was clearly not maintainable.
23. The view taken above by us is to dispose of this appeal but we should something about the order of the High Court Division directing the appellants to allow the respondent to join his service and to give him all back salaries with seniority, increment, promotion etc. The High Court Division acting under 102(2)(a)(ii) can only make a declaratory order and nothing more and unless it is required by law to do it cannot direct any authority to do a particular thing. We asked Dr. Kamal Hossain as to under what authority these reliefs were granted by the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution. Dr. Hossain found it difficult to give any direct answer but only referred to the case of Pakistan vs. AV Issacs 11 DLR (SC) 371 where the Supreme Court of Pakistan disagreed with the view of the Judicial Committee of Privy Council in IM Lail’s case PLD 1948 PC 150 as to the theory of the bounty of the State and observed that if an order of dismissal was wrongful and the person was treated to be in service by virtue of a declaration given then there was no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. That principle has been followed in Executive Engineer Vs. Mohammad Ali & others 41 DLR (AD) 64.
24. In the first place, the observation of the Supreme Court of Pakistan has been made in a suit, inter alia, for realisation of salary, etc. and it is headged by certain conditions, namely, that a person cannot be allowed to reap a double advantage. These are matters which need evidence to be taken and surely cannot be granted in the summary jurisdiction under Article 102. Then again, in the present case the respondent was admittedly under an order of suspension for more than 10 years when the impugned order was passed. He did not make out any case even for the said reliefs in his writ petition. It is plainly difficult to appreciate how the High Court Division was justified in passing the tall order for salary, increment, promotion, etc. which Dr. Hossain has apparently found difficult to justify. It must be said that the High Court Division clearly acted without jurisdiction in passing the order as to salary, increment, promotion, etc. It was a gratuitous order not covered by any law nor justified in the facts of the case.
25. Dr. Kamal Hossain lastly, submitted that the matter being now in seisin of this Division, it can treat this appeal as an appeal against the decision of the Administrative Appellate Tribunal and decide whether the view taken by the tribunal with regard to the impugned order of dismissal dated 8-11-86 was correct.
26. We shall not accede to this prayer for two reasons. The respondent could have filed appeal even before filing the writ petition on 29-8-91 and after withdrawing the writ petition as was done in many cases following our decision (44 DLR (AD) 239). The respondent did neither, nor any formal leave petition has been filed even now except making an oral prayer at the fag end of the hearing.
27. Secondly, it has not been denied by the respondent that since his dismissal from service, he contested parliamentary elections from his constituency in 1991 and in 1996. It has been argued on behalf of the Government-appellant that the respondent on his own motion has given up the character of a civil servant and, as such, the Court should not exercise any discretion in his favour for granting any relief as a civil servant. The learned Additional Attorney-General drew our attention to Article 66(2)(d) of the Constitution which provides for disqualification for election as or for being a member of parliament if one holds any office of profit in the service of the Republic other than an office which is declared by law not to disqualify its holders. It has been argued that by seeking election to Parliament the respondent has accepted the order of dismissal which terminates his relationship with the office of profit in the service of the Republic. We think there is much force in the submission of the learned Additional Attorney-General. It is significant that the respondent after having lost in the Tribunals in 1989-90 perhaps took his dismissal as a fait accompli and decided on a new course of life, i.e., that of a people’s representative and therefore joined the hustings in 1991. The filing of the writ petition later on in 1991, however, seems to be more of a speculative venture as the respondent showed no interest in the intervening years until it was heard in 1997 when the Government which lost power in 1975 came back into office after the election of 12 June, 1996. But the Government has preferred this appeal. Be that as it may, we do not consider it proper to permit the respondent to seek for leave to appeal from the decision of the Administrative Appellate Tribunal after more than seven years.
28. After all said and done, we think we should not leave the matter without expressing our own view on the impugned order of dismissal on which considerable argument has been heard from both sides and a question of principle is involved. Dr. Kamal Hossain frankly submitted that the purpose of filing the writ petition was really not to get back the job, salary, promotion, etc. but to vindicate the honour of the respondent, who was a valiant freedom-fighter, which was tarnished by making an order of dismissal under MLO No. 9 just one day before the repeal of the said MLO which was apparently done with an ulterior motive.
29. The order of dismissal was passed by the CMLA, as it shows, on 8-11-86 under MLO No.9 of 1982. The MLO was repealed on 10-11-86 under the Proclamation of Withdrawal of Martial Law of the same date. Admittedly the respondent was not communicated with the order of .dismissal until 4-1-87 when a Notification was issued by the Ministry of Establishment saying that the respondent was dismissed on 8-11-86 under MLO No.9 and served upon the respondent with a copy of the said order. The learned Additional Attorney- General submitted that the fact of communication of the order after repeal of MLO No.9 was immaterial because the order of dismissal was passed “with immediate effect” and so it was and would operate as a valid order under MLO No.9. The learned Additional Attorney-General, however, has not been able to support his proposition by any credible authority. He referred to two decisions, Jeevaratnam vs. State of Madras AIR 1966 (SC) 951 and Fauzi Foundation vs. Shamimur Rahman PLD 1983 (SC) 457 which are not quite relevant in the facts of the present case because in none of those cases the effect of non-communication of an order was at issue.
30. We find it well nigh impossible to accept, rather physically impossible to accept the proposition that an order affecting a person would be effective as against that person without even informing him about the order by merely giving the order an immediate effect. It were to be so, then an absurd situation will arise; for example, if an order of dismissal is passed with immediate effect and kept under the pillow of the maker, then the dismissed person cannot attend office from the next day because it has become effective as soon as the order was passed.
Nothing can be more offensive to common sense than to suggest that the order will be operative without the person knowing that an order was passed against him.
31. The Indian Supreme Court was considering in the case of State of Punjab vs. Khermi Ram AIR 1970 (SC) 214 whether an order of suspension passed against a Government servant takes effect when it is made or when it is actually served on and received by him. In that case, the order was upheld but it was observed upon noticing a number of decisions that “in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective.”
32. We think it is a sound proposition that an order to be effective must at least be communicated to the person concerned and the date of actual receipt is not material for the said purpose. In the present case, it is apparent that there was no communication of the order of dismissal until 4-1-87 MLO No.9 having been repealed in the meantime, the light gone had out of the order. The order was not communicated to the respondent when there was light in it. The respondent was communicated about the order at a time when no light could be put order. Therefore, the order of dismissal qua the respondent was not an order under the MLO. It could not be effective against him at any time.
For the reasons, however, this appeal is allowed without any order as to costs.