Case No: Civil Appeal No. 161 of 2005
Judge: Amirul Kabir Chowdhury ,
Court: Appellate Division ,,
Advocate: Dr. M. Zahir,,
Citation: 27 BLD (AD) (2007) 145
Case Year: 2007
Appellant: Government of Bangladesh
Respondent: Md. Abdul Razzak
Subject: Administrative Law, Administrative Tribunal,
Delivery Date: 2007-2-7
Syed JR Mudassir Husain CJ
Md. Fazlul Karim J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J
Md. Abdur Razzak and others
February 7, 2007.
Administrative Tribunals Act, 1980
Any person aggrieved by an order or decision of the Administrative Appellate Tribunal may file an appeal within 3 months from date of making of the order or decision………. (para— 13)
The filing of appeal was delayed by more than seven months. Normally an appeal is to be filed within three months under section 6 (2) of the Act. On showing sufficient cause for not preferring the appeal within the aforesaid period of three months, under the provision of sub-section (2A) of the Act, an appeal however could be admitted if filed not later than six months from the date of order or decision complained of……… (para- 15)
Md. Firoz Shah, Advocate-on-Record—For the Appellant
Dr. M Zahir, Senior Advocate, instructed by Nurul Islam Bhuiyan, Advocate-on-Record— For Respondent No.1.
Not represented— Respondent Nos.2 & 3.
Civil Appeal No. 161 of 2005.
(From the judgment and order dated 12-8-2003 passed by the Administrative Appellant Tribunal in AAT Appeal No.147 of 2003).
Amirul Kabir Chowdhury J.
This appeal on leave arises out of the judgment and order dated 12-8-2003 passed by the Administrative Appellate Tribunal in A AT Appeal No. 147 of 2003 arising out of those dated 20-1-2003 in Administrative Tribunal Case No. 224 of 2002 dismissing the appeal summarily.
2. The facts, in short, are that the respondent No. 1 Md. Abdur Razzaque was appointed as MLSS on 22-2-1977 and obtained Selection Grade on 31-11-1987 and was serving as such and that the Deputy Commissioner, Dhaka started departmental proceeding against him under Rules 3(a) and 3(b) of the Government Servants (Discipline and Appeal) Rules 1985 on the allegation of misconduct and corruption. It was alleged that the respondent No.1 was transferred to the office of TNO Dohar on 24-10-2000 and was directed to join the said office and in default he stood released. But he did not join that office and further allegation was that he destroyed volume of record room and tampered with different documents and further he received bribe in the name of different officers for supplying certified copies of documents. It was further alleged that he tampered with his designation in the service book and that the proceeding was thus started against him and he was asked to show cause and so he submitted his reply which was found unsatisfactory and inquiry officer was appointed and inquiry officer submitted report and thereafter charges were brought against him under sections 3(a) and 3(b) of the Government Servants (Special Provisions) Ordinance, 1979 and he was asked to show cause in reply to which he submitted a written statement in his defence denying the allegations and then he was asked to remain present personally on 29-2-2000 for personal hearing and thereafter second show cause notice was served upon him proposing major penalty to which he again submitted his reply pleading innocence and that by order dated 1-6-2000 the appellant was dismissed from service. The respondent No.1 thereafter filed departmental appeal which was also rejected on 16-9-2000.
3. The respondent then filed the aforesaid case before the Administrative Tribunal, Dhaka which was contested by the appellant and others. The Administrative Tribunal by judgment and order dated 20-1-2003 allowed the case.
4. The appellant being aggrieved preferred Appeal No.147 of 2003 before the Administrative Appellate Tribunal. The said Tribunal by the impugned judgment and order dated 12-8-2003 dismissed the appeal summarily.
5. Hence is this appeal.
6. Leave was granted to consider the submissions made on behalf of the appellant that the Administrative Appellate Tribunal failed to consider that sub-section (2) of section 6 of the Administrative Tribunals Act 1980, in short, the Act provides a right to prefer appeal before the Administrative Appellate Tribunal within three months against an order or decision passed by the Administrative Tribunal but sub-section (2A) of said section 6 confers power upon the Administrative Appellate Tribunal to admit an appeal if preferred within a period of six months after the period of three months specified in sub-section (2) of section 6 and that the Administrative Appellate Tribunal erred in law in not holding that the delay may be condoned if it is not more than six months beyond the usual period of limitation and that on such misconception the Administrative Appellate Tribunal dismissed the appeal as being barred by limitation.
7. Mr. Md. Firoz Shah, learned Advocate-on-Record appearing in support of the appeal has taken us through the impugned judgment and order of the Administrative Appellate Tribunal and reiterates the submissions made earlier on behalf of the appellant.
8. Thereafter he submits that the judgment and order of the Administrative Tribunal was passed on 28-1-2003 and the certified copy was delivered on 1-2-2003 and after completing official formalities the appeal was filed on 7-8-2003 and thereby the appeal was filed out of time by three months and fifteen days but in view of section 6(2A) of the Act there being provision for admitting such an appeal after six months of the period of three months specified under section 6(2) of the Act and in the instant appeal the appeal being filed on 7-8-2003 was therefore within the time allowed under subsection (2A) of section 6 of the Act.
9. Dr. M Zahir, learned Counsel appearing on behalf of the respondents, opposes the appeal contending, inter alia, that admittedly the judgment of the Administrative Tribunal was passed on 28-1-2003 and certified copy was delivered on 1-2-2003 and therefore the appellant was entitled to get period of three months plus four days to prefer the appeal and under sub-section (2A) of section 6 an appeal could be admitted if filed not later than six months, in case of sufficient cause explained for the delay.
10. In the instant case, according to the learned Counsel, the appeal was not filed within the time as mentioned above and so the appeal should be dismissed.
11. We have considered the submissions and perused the materials on record.
12.Section 6 of the Act reads as under:
(2) Any person aggrieved by an order or decision of an Administrative Tribunal may, within three months from the date of making of the order or decision, prefer an appeal to the Administrative Appellate Tribunal.
(2A) Notwithstanding the provisions of sub-section (2), an appeal may be admitted after the period of three months specified in that sub-section but not later than six months, if the appellant satisfies the Administrative Appellate Tribunal that he had sufficient cause for not preferring the appeal within three months.
(3) The Administrative Appellate Tribunal may, on appeal, confirm, set aside, vary or modify any order or decision of an Administrative Tribunal, and the decision of the Administrative Appellate Tribunal in an appeal shall subject to section 6A, be final."
13. On perusal of the aforesaid provisions of law it appears that any person aggrieved by an order or decision of the Administrative Tribunal may file an appeal within 3 months from date of making of the order or decision.
14. It appears that the appellant filed the application for certified copy on 28-1-2003 and received the same on 1-2-2003 and thus is entitled to get maximum four days plus three months under section 6(2) of the Act to prefer the appeal. In the instant case admittedly, no appeal was preferred within this period.
15. The appeal appears to have been filed on 7-8-2003 i.e. it was delayed by more than seven months. Normally, an appeal is to be filed within three months under sub-section (2) of section 6 of the Act. On showing sufficient cause for not preferring the appeal within the aforesaid period of three months, under the provision of sub-section (2A) of the Act, an appeal however, could be admitted if filed not later than six months from the date of order or decision complained of.
16.The argument of the learned Advocate-on-Record appearing for the appellant that the appeal could be admitted within a period of six months after the period of three months prescribed in subsection (2) of section 6 is thus without any substance.
17. In consideration of the provisions of law we are of the clear view that an appeal, if not preferred within three months as mentioned in aforesaid section 6(2) of the Act, may be admitted under sub-section (2A) of section 6 of the Act if filed thereafter but not later than six months of the date of decision/order, sufficient cause being shown. But it does not mean that the period of six months shall start to commence after the expiry of three months as mentioned in section 6(2) of the Act.
18. In view of the discussion made above, we do not find any grounds to interfere with the impugned judgement and order.
19. The appeal is dismissed without any order as to cost.