Bangladesh Vs. Md. Abdul Maleque Miah and others [4 LNJ AD (2015) 182]

Case No: Civil Appeal No. 87-94 of 2001

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Md. Showardi,Mr. Mvi. Md. Wahidullah,,

Citation: 4 LNJ AD (2015) 182

Case Year: 2015

Appellant: Bangladesh

Respondent: Md. Abdul Maleque Miah and others

Subject: Administrative Law, Writ Petition, Administrative Tribunal,

Delivery Date: 2013-09-17


APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
A H M Shamsuddin Choudhury, J


Judgment on
17.09.2013
  Government of Bangladesh
...Appellant (in all appeals)
Versus
Md. Abdul Maleque Miah
. . . Respondent (In C. A. No. 87/2001)
Md. Seralul Islam
. . . Respondent (In C. A. No. 88/2001)
Abu Bakar Siddique
. . . Respondent (In C. A. No. 89/2001)
Md. Shokwat Hossain
. . . Respondent (In C. A. No. 90/2001)
Md. Gholam Shafeque Mia and others
. . . Respondent (In C. A. No. 91/2001)
Md. Gholam Kibria and Md. Nurul Amin and others
. . . Respondent (In C. A. No. 92/2001)
Md. Anis Uddin Miah
. . . Respondent (In C. A. No. 93/2001)
Md. Golam Kibria
. . . Respondent (In C. A. No. 94/2001)
 
Administrative Tribunal Rules, 1982
Rule 7
Execution of the decisions and orders of the Administrative Tribunal is a matter within its exclusive jurisdiction. Administrative Tribunal is the sole arbiter of the procedure with regard to execution of its decisions and orders. . . .(18)

Constitution of Bangladesh, 1972
Article 117
The Administrative Tribunal functions under the constitutional mandate as contained in Article 117 of the Constitution having the power to devise its own method and procedure to execute its decisions and orders. Having considered Rule 7 of the Rules, it appears that the Tribunal is not barred from following any other procedure. The Tribunal will follow the provision of the Code of Civil Procedure relating to the execution of the decree “as far as practicable” but when it is not practicable to do so, the Tribunal is not powerless.  . . . (18)

Constitution of Bangladesh, 1972
Article 102
Administrative Tribunal Act, 1980 (VII of 1981)
Section 8
The decisions and the orders of the Tribunal are not meaningless. Section 8 of the Act says that its decisions and the orders are “binding on the parties”. The High Court Division exercising its jurisdiction under article 102 will not advise the Tribunal as to the procedure for implementation of its decisions and orders. The Tribunal will take decisions itself. If the Tribunal is wrong in its decisions, the Administrative Appellate Tribunal will correct the same, for an appeal lies against “any order or decision of the Tribunal” to the Administrative Appellate Tribunal. The questions and problems relating to execution will have to be resolved by the Administrative Tribunal or the Administrative Appellate Tribunal, as the case may be, within the ambit of the Acts and the Rules framed there under. . . . (18)

Administrative Tribunal Act, 1980 (VII of 1981)
Section 10A
Administrative Tribunal Rules, 1982
Rule 7
Soon after exhausting the procedure laid down in Rule 7, the aggrieved party has a further remedy before the Administrative Appellate Tribunal. What is important to note here is that the Administrative Appellate Tribunal has the power to punish for contempt of its authority and of any Administrative Tribunal as provided in section 10A of the Act. . . . (19)

Penal Code (XLV of 1860)
Section 166
Administrative Tribunal Act, 1980 (VII of 1981)
Section 10A
Administrative Tribunal Rules, 1982
Rule 7
In spite of existence of Rule 7 of the Rules of 1982 and section 10A of the Act, if it is made a practice to additionally file a complaint under section 166 of the Penal Code by the Administrative Tribunal for the purpose of implementing its decisions and orders, then the affected persons will themselves be the ultimate losers. . . . (21)

Administrative Tribunal Act, 1980 (VII of 1981)
Section 10A
The Administrative Tribunal Act, 1980 ought to be interpreted in such a manner that the Act is consistent with the constitutional provisions and legislative intent and may provide for complete and self- sufficient remedy to the affected parties. The Act itself contain a remedy under section 10A of the Act if order made under the Act is not complied with. . . . (24)

Constitution of Bangladesh, 1972
Article 102
The respondents cannot avail themselves of the remedy provided under article 102 of the Constitution for having a direction upon the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The High Court Division has not been entrusted with the power of deciding as to how the decisions and orders of the Administrative Tribunals will be executed. The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal.... (23)

For the Appellant (In all the Appeals): Mr. Md. Shohrowardi, Deputy Attoreny General, instructed by Mr. Ferozur Rahman, Advocate-On-Record.
For the Respondents (In all the Appeals): Mr. Mvi. Md. Wahidullah, Advocate-on-Record.

Civil Appeal No. 87-94 of  2001
 
JUDGMENT
 Md. Muzammel Hossain, CJ:

Civil Appeal Nos.87-94 of 2001, by leave, at the instance of the writ-respondents-appellants are directed against the Judgment and order dated 08.11.2000 passed by a Division Bench of the High Court Division in Writ Petition Nos. 2295, 2508, 2509, 3559, 3804, 4343, 4222 and 4107 of 2000 making the Rules absolute.

These appeals have been heard together and are being disposed of by this common Judgment as they do involve common questions of laws and facts. Respondent No. 1 of all these appeals filed 8 writ petitions seeking certain directions upon the present appellant to implement the decisions and orders passed by the administrative Tribunal in favour of present respondent No. 1 in their respective cases. For the sake of brevity, we would like to state the facts of Civil Appeal No.87 of 2001 corresponding to Civil Petition for Leave to Appeal No.1145 of 2000 arising out of Writ Petition No.2295 of 2000.

The facts leading to this appeal, in short, are that the respondent No.1 as the petitioner filed writ petition No.2295 of 2000 before the High Court Division impleading this appellant as respondent No.1 and the respondent Nos.2 to 4 as the respondent Nos. 2 to 4 for a direction upon the respondents for immediate implem-entation of the judgment dated 22.09.1998 passed by the learned Member, Administrative Tribunal, Dhaka in Administrative Tribunal Case No.203 of 1992.

Background of the Administrative Tribunal Case No.203 of 1992 was that the Bangladesh Public Service (First) Commission through its notification 4 dated 23.06.1972 published in the Official Gazette dated 06.07.1972 invited applications from freedom fighters for recruitment of 350 officers through Special Superior Service Examinations. The petitioner’s Roll No. was 151. He stood 154th in the combined merit list and was appointed in the IMS Cadre where he joined on 31.07.1973. He was trained at home and abroad and passed the prescribed examination after which he was confirmed in the service on 31.07.1975 through notification published in the Official Gazette dated 28.04.1977. He was posted in the Bangladesh Steel and Engineering Corporation on deputation and he was working there. In order to meet the requirement of good number of trained and experienced officers the Government abolished the IMS Cadre and absorbed majority of its members in the BCS (Admn) Cadre in 1982. The Government, in consultation with the public service commission amended the BCS Recruitment Rules,1981 and promulgated the Industrial Management Service (Abolition, Absorption and Fixation of Seniority) Rules,1982 and then absorbed 150 officers of the said abolished IMS Cadre in the BCS (Admn) Cadre vide Notification dated 04.11.1982. In the same way 8 officers of the abolished IMS were absorbed in the BCS (police), 3 in BCS (Railway), 2 in BCS(Foreign), 5 in BCS(Secretariat) and 16 in BCS (Postal). Later on the Government amended the Industrial Management Service (Abolition, Absorption and Fixation of Seniority) Rules, 1982. The Government issued notification dated 26.12.1981 to award time scale to those officers who were eligible for promotion but could not be awarded promotion concomitantly. Accordingly considering him eligible for promotion, the Government awarded him time scale and placed him in MNS-VI (Tk.1400-2225) vide order dated 20.10.1983. The Government posted him as Thana Nirbahi Officer of Pirojpur vide notification dated 14.07.1983, where he joined on 24.07.1983. Thereafter he was successively appointed as ADC and ADM by the Government. While he was working as ADM at Bogra the Government vide notification dated 14.03.1990 awarded promotion to 76 officers of BCS (Admn) Cadre to MNS-V (Tk.3700-4825/-) wherein his case was not considered and thus he was superseded by 2 officers who were junior to him. Then he submitted a grievance petition on 29.08.1990 to the Cabinet Secretary and the Secretary, Ministry of Establishment praying for redress. During the pendency of the said petition the Government awarded promotion to 21 officers of BCS (Admn) Cadre to MNS-V (3700-4825/- whereby he was illegally superseded vide notification dated 28.08.1990 without disposing of his grievance petition. The Government vide notification dated 08.02.1992 awarded promotion to 277 officers of BCS (Admn) Cadre to the post of Deputy Secretary, some of whom being junior to him superseded him. Thereafter the Government vide notification dated 18.02.1992 awarded promotion to 1 officer of the BCS (Admn) Cadre to the post of Deputy Secretary superseding him again. Being aggrieved by the aforesaid supersession he submitted a grievance petition to the Government on 27.02.1992 through proper channel. But without disposing of the said petition the Government vide notifications dated 16.03.1992 and 29.09.1992 awarded promotion to some of the officers to the post of Deputy Secretary, superseding him illegally. By way of the said supersession he was turned junior to those who were, in fact, junior to him and thus his seniority was adversely affected. Since the aforesaid promotion orders were made adversely affecting his seniority, without consulting the Public Service Commission as required under article 140(2)(c) he was compelled to challenge the aforesaid impugned orders before the Court. Being superseded illegally again and failing to get justice from the Government he had no other alternative than to take shelter of the judiciary by filing A.T. Case No.203 of 1992. Thereafter, the Government awarded him promotion vide notification dated 09.19.1995 to the post of Deputy Secretary, without giving seniority with retrospective effect and awarded promotion to a junior officer vide notification dated 23.07.1998 to the post of Joint Secretary. The petitioner also challenged the aforesaid two promotion orders dated 09.10.1995 and 23.07.1998 by making amendment of the application.

The appellant-Government as the respondent No.1 and the writ respondent Nos.17, 44, 63 and 92 contested the Administrative Tribunal Case by filing two separate written statements denying all the material allegations made in the application stating that the case is barred by limitation and defect of parties and as such not maintainable in the eye of law; that as per existing provisions of law the condition of five years experience in the senior scale with ten years service had to be fulfilled for promotion to MNS-V and to the post of Deputy Secretary which the petitioner-respondent did not fulfill at that time and as such petitioner’s case should not be considered for promotion at that time. When he was found to be suitable he was awarded promotion. So article 29 of the Constitution has not been violated in the case of the petitioner-respondent. However, the respondent No.1 was absorbed in the BCS (Administration) Cadre Service after ten years. The appellant-Government committed no illegality by promoting the opposite parties of the A.T. Case. The respondent No.1 filed the instant case on false allegations which is liable to be dismissed.

The Administrative Tribunal by judgment and order dated 22.09.1998 allowed the case and declared that the respondent No.1 is entitled to be promoted to MNS-V on 14.03.1990 to the post of Deputy Secretary on 08.02.1992 and to the post of Joint Secretary on 23.07.1998 on which date the petitioner’s junior Mr. Md. Tazul Islam was promoted to those posts.

Some junior colleagues who were opposite parties in A.T. Case No.203 of 1992 simply filed a time barred appeal being A.A.T. Case No.72 of 1999 on 19.07.1999 before the Administrative Appellate Tribunal long after nine months with malafide intention to keep the whole matter pending for an indefinite period. The Administrative Appellate Tribunal after hearing both the parties by the judgment and order dated 19.03.2000 rejected the memorandum of appeal.

After the judgment of the Tribunal the respondent No.1’s Advocate Mr. S.A.M. Mahbub Elahi, Advocate, Supreme Court of Bangladesh on 28.03.2000 issued a notice demanding justice to the respondent No.1 (appellant herein) with a request to do justice in implementing the judgment and order dated 22.09.1998 in A.T. Case No.203 of 1992. But no action was taken as yet in this behalf.

Thereafter the present respondent No.1 of all these appeals preferred 8 writ petitions before the High Court Division seeking direction upon the respondent-appellant to implement the judgment and order passed by the Administrative Tribunal in favour of the petitioners-respondents in their respective cases. A Division Bench of the High Court Division by judgment and order dated 08.11.2000 made the Rules absolute and directed the writ petitioner-respondent No.1 to file application to the Administrative Tribunal for making a complaint under section 166 of the Penal Code against the officers who failed to implement the Tribunal’s order or orders in question and forwarding the same to a Magistrate having jurisdiction to try the offences.

Being aggrieved by the judgment and order passed by the High Court Division in 8 writ-petitions the writ respondents-appellants preferred 8 appeals being Appeal Nos.87-94 of 2001 with leave of the court before the Appellate Division.

Leave was granted to consider the following submissions of the learned Advocates for the petitioners:
  1. “That having regard to the admitted fact that no attempt was made for implementation of the decision by applying before the Tribunal as provided under the Administrative Tribunals Act,1981, the High Court Division erred in holding without any basis, “Therefore, we hold that neither Rule 7 of the Administrative Tribunals Rules read with Order 21 Rule 32 of the Code Civil Procedure nor the aforesaid power of the Administrative Appellate Tribunal to punish for contempt is sufficient for effective relief to get the orders of the Administrative Tribunal executed within a reasonable time.” Having regard to the decision reported 44 DLR (AD) 111 in the case of Majibur Rahman vs. Bangladesh, declaring bar of jurisdiction in respect of terms and conditions of service of persons in the service of the Republic by way of writ-petition and the decision reported in 41 DLR 538 on the exact point of implementation of the decision of the Administrative Tribunal also clearly holding that writ for such remedy was not maintainable, the High Court Division erred in entertaining the writ petition as the same amounts to uncertainly in respect of law relating to persons in the service of the Republic causing chaos and confusion.”
  2. “That there being specific provision for implementation of the decision of the Administrative Tribunal, the High Court Division erred in law in passing an order for implementation of the decision of the Administrative Tribunal in exercising its writ jurisdiction. The judgment and order directing the writ-petitioner to make a complaint under section 166 of the Penal Code against the Government officials is unwarranted in the facts and circumstances of the case.”
The issue involved in all the civil appeals is whether the High Court Division correctly directed the writ-petitioners-respondents individually to file an application before the Administrative Tribunal for making a complaint under section 166 of the Penal code against the officer/officers of the Government who failed to implement the decisions of the Tribunal and whether a direction could be given for forwarding a complaint to a Magistrate having jurisdiction to try the offence.

Mr. Md. Shohrowardi, learned Deputy Attorney General appearing on behalf  of the appellant in all the appeals, submits that the Administrative Tribunals Rules provides for a specific provision in rule 7 read with Order XXI Rule 32 of the Code of Civil Procedure for implementation of Administrative Tribunal’s decision and that in case  of failure of the Administrative Tribunal, the Administrative Appellate Tribunal has the power to implement the decision of the Administrative Tribunal by resorting to the provision of contempt contained in section  10A of the Act and as such, there is no scope for filing any criminal case for imple-mentation of the decision of the Administrative Tribunal. He further submits that where there is a specific provision for implementation of the decision of the Administrative Tribunal, the High Court Division erred in law in passing an order for implementation of the decision of the Administrative Tribunal in exercise of its writ jurisdiction directing the Administrative Tribunal to make a complaint   under section 166 of the penal code against the Government officials and as such, the impugned judgment and order not being tenable in law is liable to be set aside.

Before addressing the issue raised in these appeals, it is necessary to go through Rule 7 of the Administrative Tribunals Rules,1982 which runs as follows:

“7. Execution of decisions and orders of a Tribunal-A Tribunal shall, for the purpose of execution of its decisions and orders follows, as far as practicable, the provisions of the Code of Civil Procedure,1908 (V of 1908), relating to the execution of a decree.”

It is also pertinent to quote section 10A of the Administrative Tribunals Act which is in the following terms:

“10A.   Contempt of Tribunals-(1) The Administrative Appellate Tribunal shall have power to punish for contempt of its authority or that of any Administrative Tribunal, as if it were the High Court Division of the Supreme Court.”

The salient findings of the High Court Division are quoted below:

“There is no doubt that the orders of the Administrative Tribunal must be executed immediately to remedy the grievances of the service-holders so that they can do their job efficiently having no injured feeling. Delay in formal Court proceedings has given rise to a new concept of alternative dispute resolution mechanism. Accepting this principle our Constitution has made provision for Administrative Tribunals in Article 117. Therefore, we hold that neither Rule 7 of the Administrative Tribunals Rules read with Order 21 Rule 32 of the Code of Civil Procedure nor the aforesaid power of the Administrative Tribunal to punish for contempt is sufficient or effective to get the orders of the Administrative Tribunal executed within a reasonable time. For example, it will be a long process for a peon to execute the order of the Administrative Tribunal setting aside the order of his dismissal from service passed by the Deputy Commissioner of a district and further it will be hazardous for the peon to put the Deputy Commissioner into the civil prison. And who is to bear the cost? The answer is that poor peon.
Therefore, it is not difficult to conclude that the aforesaid process for the execution of the orders of the Administrative Tribunal are not sufficient so as to hold that these writ-petition are not maintainable. The cited decision did not consider this aspect and as such it has not binding effect.”

The High Court Division concluded that the appellants had committed an offence punishable under section 166 of the Penal Code.

Record reveals that no effort was made before the Administrative Tribunal for implementing its decisions and orders by resorting to the provision of Rule 7 of the Administrative Tribunals Rules. Execution of the decisions and orders of the Administrative Tribunal is a matter within its exclusive jurisdiction. Administrative Tribunal is the sole arbiter of the procedure with regard to execution of its decisions and orders. The Administrative Tribunal functions under the constitutional mandate as contained in Article 117 of the Constitution having the power to devise its own method and procedure to execute its decisions and orders. Having considered Rule 7 of the Rules, it appears that the Tribunal is not barred from following any other procedure. The Tribunal will follow the provision of the Code of Civil Procedure relating to the execution of the decree “as far as practicable” but when it is not practicable to do so, the Tribunal is not powerless. The decisions and the orders of the Tribunal are not meaningless. Section 8 of the Act says that its decisions and the orders are “binding on the parties”. The High Court Division exercising its jurisdiction under article 102 will not advise the Tribunal as to the procedure for implementation of its decisions and orders. The Tribunal will take decisions itself. If the Tribunal is wrong in its decisions, the Administrative Appellate Tribunal will correct the same, for an appeal lies against “any order or decision of the Tribunal” to the Administrative Appellate Tribunal. The questions and problems relating to execution will have to be resolved by the Administrative Tribunal or the Administrative Appellate Tribunal, as the case may be, within the ambit of the Acts and the Rules framed thereunder.

Soon after exhausting the procedure laid down in Rule 7, the aggrieved party has a further remedy before the Administrative Appellate Tribunal. What is important to note here is that the Administrative Appellate Tribunal has the power to punish for contempt of its authority and of any Administrative Tribunal as provided in section 10A of the Act.

In the case of Saifur Rahman vs. Bangladesh through the Secretary, Ministry of Agriculture and others, (1989) 41 DLR 538 the High Court Division observed, “As of today, the Administrative Tribunals Act,1980 is a self-contained and composite legislation. Both the execution of the decisions and orders of a Tribunal and violation thereof are well taken care of by the legislation. It does not need the additional umbrella of this Court’s jurisdiction under Article 102 of the Constitution for implementation of the decisions and orders of the Administrative Tribunal.”

In spite of existence of Rule 7 of the Rules and section 10A of the Act, if it is made a practice to additionally file a complaint under section 166 of the Penal Code by the Administrative Tribunal for the purpose of implementing its decisions and orders, then the affected persons will themselves be the ultimate losers. In such a situation, the government officials against whom an adverse order has been passed by the Administrative Tribunal will not care to execute the Tribunal’s decisions and the order until the High Court Division directs the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The Government officials may wait till such a direction is given by the High Court Division and such a practice will render the Administrative Tribunal an ineffective and useless body.

We are of the view that the Administrative Tribunal Act, 1980 ought to be interpreted in such a manner that the Act is consistent with the constitutional provisions and legislative intent and may provide for complete and self- sufficient remedy to the affected parties. 

We are of the opinion that the respondents cannot avail themselves of the remedy provided under article 102 of the Constitution for having a direction upon the Administrative Tribunal to file a complaint under section 166 of the Penal Code. The High Court Division has not been entrusted with the power of deciding as to how the decisions and orders of the Administrative Tribunals will be executed. The execution of the decisions and the orders of the Administrative Tribunal primarily lies with the Tribunal itself and thereafter, with the Administrative Appellate Tribunal.

If not otherwise barred, writ-petitioner-respondent No.1 of all the appeals can still go to the Administrative Tribunal for execution of its decisions and orders. The Administrative Tribunal is quite competent to come to a decision about the mode of implementation of its own decisions and orders. In case of failure, the said writ-petitioner-respondent has been given further remedy under section 10A of the Act.

In the light of the findings made above, the judgment and order delivered by the High Court Division cannot sustain. Accordingly, all the appeals are allowed and the impugned judgment and order is set aside with the observations made in the body of the judgment.
Ed.