Kamrul Hasan Vs. Bangladesh and others

Case No: Civil Petition for Leave to Appeal No. 509 of 1995

Judge: Mohammad Abdur Rouf ,

Court: Appellate Division ,,

Advocate: Md. Awlad Ali,,

Citation: 49 DLR (AD) (1997) 44

Case Year: 1997

Appellant: Kamrul Hasan

Respondent: Bangladesh and others

Subject: Administrative Law,

Delivery Date: 1995-11-15

Kamrul Hasan

Vs.

Bangladesh and others, 1997,

49 DLR (AD) (1997) 44

 

 

 

Supreme Court
Appellate Division

(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Md. Abdur Rouf J
Md. Ismailuddin Sarker J   
 
Kamrul Hasan …………………………………..Petitioner

vs.

Bangladesh and others…….………………..Respondent 
 
Judgment
15th, November 1995

Administrative Tribunals Act (VII of 1981)

Section 7
The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication.
 
Lawyers Involved:
Md. Awlad Ali Senior Advocate, instructed Md. Sajjadul Huq, Advocate-on Record—For the Petitioner.
Respondents—Not represented.
Civil Petition for Leave to Appeal No.  509 of 1995. 
 
Judgment:
                     Md. Abdur Rouf J: Petitioner, an ex- Economic Councilor for Bangladesh, posted at Bangladesh Embassy in Stockholm has sought leave to appeal from the judgment and order passed on August 3 1995 by the Administrative Appellate Tribunal in Misc. Appeal No, 3 of 1995 by the Administrative Tribunal Dhaka in AT Case No.  310 of 1994 rejecting the petitioner’s prayer to stay operation of memo No.  ERD/ Ba-5 (153) Misc. 34 dated 28.9.94 pending disposal of the said AT Case, whereby he has been directed by the respondent to repay certain amount of money.

2. Petitioner’s case in short, is that he is the Director (Finance), Mukti Joddhya Kalyan Trust. On June 1994 by Order of the President, he was appointed as Economic Councilor at Economic Wing of Bangladesh Embassy at Stockholm. Under the terms and conditions of his appointment, in order to meet the traveling and other expenses, he was given in advance a sum of Taka 4, 73,360 on June 24:1994. He spent major portion of that amount in purchasing essential house-hold articles for his new establishment. But his appointment was cancelled by an order dated. 18.8.94 issued by the Ministry of Finance. On August 20, 1994 he was asked to deposit the money advanced to him and thereby he deposited by challan a sum of Taka 1,97,780, which was given to him on account of traveling expenses. Thereafter, by the above mentioned Memo he was further directed to deposit the rest of the money in Bangladesh Bank. He was unsuccessful in the review preferred to the President. Thereafter he filed the above mentioned case in the Administrative Tribunal and filed an application, with a prayer to stay the operation of the impugned Notification pending disposal of that case and the same was rejected on January 28,1995, against which he preferred the above mentioned Misc. Appeal before the Administrative Appellate Tribunal which has been dismissed by the impugned judgment and order upon holding, inter alia, that the Administrative Tribunal Act 1980 does not empower them to grant any interim relief as has been sought for. 

3. Mr. Awlad Ali, the learned Advocate appearing for the petitioner submitted that Administrative Appellate Tribunal has committed an error of law in not holding that the Administrative Tribunal acted illegally in refusing to stay operation of the impugned Memo in the interest of justice pending disposal of the case. The learned Advocate further submitted that the Administrative Tribunal by virtue of its authority, contemplated under Article 117 of the Constitution for deciding service matters and in view of the provision of section 4 and 6 of the Administrative Tribunal Act 1980 has an inherent authority to grant such stay of the order complained against, pending final adjudication in the matter. 

4. The submission of the learned Advocate does not hold good in view of the fact that Article 117(1) authorises the Parliament to make law for the establishment of Administrative Tribunals for the purpose mentioned therein. Thus, the Administrative Tribunal being the creature of the Administrative Tribunal Act of 1980, for the purpose of exercising its jurisdiction within the frame work of that Act, cannot act beyond the scope of section 7(1) thereof so far exercising its authorities under the Code of Civil Procedure only in respect of the matters expressly provided therein. 

5. It has been held by this Division in a number of cases that Administrative Tribunal has, no doubt, all the trappings of a court but it is not a Court proper, which exercises all the judicial powers of the Court provided under the Code of Civil Procedure. Reference may be made of the cases of Mujibur Rahman vs. Government al Bangladesh & Others 44 DLR (AD) III; Kazi Nazrul Islam vs. Bangladesh House Building Finance Corporation, 45 DLR (AD) 106. Moreover recently this Division has dismissed CP No. 573 of 1995 AKM Mohosin vs. Bangladesh and others holding the same view that Administrative Tribunal or the Administrative Appellate Tribunal are not Courts proper for the purpose of exercising all the powers and authorities exercisable by the civil Court under the Code of Civil Procedure. Mr. Awlad Ali’s next submission regarding the implications of the provisions of sections 4 and 6 of the Act is also not acceptable in view of the fact that the jurisdiction provided in section 4 of the Administrative Tribunal and that of the Appellate Tribunal in section 6 do not contain in express terms that those Tribunals may grant any interim relief in respect of a lis pending before it for final adjudication.

6. The learned Advocate could also not show from any rules framed under the Act that the aforesaid tribunals have been authorized thereunder to stay by way of granting interim relief as has been sought for in the instant case. 

Thus the points raised having already been decided by this Division, the petition does not merit consideration and accordingly, it is dismissed.
Ed.