Case No: Civil Appeal No. 9 of 1996
Judge: ATM Afzal ,
Court: Appellate Division ,,
Advocate: B Hossain,A J Mohammad Ali,,
Citation: II ADC (2005) 850
Case Year: 2005
Appellant: Miss Shaheda Khaturi
Respondent: Administrative Appellate Tribunal, Dhaka and others
Subject: Administrative Law,
Delivery Date: 1998-5-21
Administrative Appellate Tribunal, Dhaka and others, 1998,
II ADC (2005) 850
ATM Afzal CJ
Latifur Rahman J
Muhammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Miss Shaheda Khaturi.......Appellant
Administrative Appellate Tribunal, Dhaka and others..........Respondents
May 21, 1998.
The Administrative Tribunals Act, 1980 (Act No. VII of 1981)
It is true that the Appellate Tribunal is not subordinate to the High Court Division but judicial decorum, propriety and discipline demand that when an interpretation of law is given by the High Court Division all Courts and Tribunals in Bangladesh should abide by such interpretation until such interpretation is set aside or varied by the Appellate Division.
Cases Referred to:
Mujibur Rahman Vs Bangladesh 44 DLR (AD) 111; Taleb Vs. Bangladesh 45 DLR(AD) 45; Ehteshamuddin Vs. Bangladesh 33 DLR (AD) 154; Jamil Huq Vs. Bangladesh 34 DLR(AD) 125; Moshtaque Ahmed Vs. Bangladesh 34 DLR (AD) 222; Helaluddin Ahmed Vs Bangladesh 45 DLR (AD) 1.
A J Mohammad Ali, Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record - For the Appellant.
B. Hossain, Deputy Attorney General, (Sharifuddin Chaklader, Assistant Attorney General with him), instructed by Mvi. Md. Wahidullah, Advocate-on-Record - Respondent Nos. 2-3.
Not Represented - the Respondent.
Civil Appeal No. 9 of 1996.
(From the Judgment and Order dated April 11, 1994 passed by the Administrative Appellate Tribunal in Appeal No. 43 of 1989).
ATM Afzal CJ.- This appeal, among other, raises a very serious and important question, whether a Tribunal established under a law can sit on judgment over a decision of the High Court Division given in the writ jurisdiction interpreting a provision of law. The Tribunal here is the Administrative Appellate Tribunal, Dhaka and the extra-ordinary judgment which has been impugned in this appeal was passed by it on 11.4.94 in Appeal No. 43 of 1989.
2. Facts material for the purpose of disposal of this appeal, briefly, are that the appellant who was a Superintendent of Customs challenged the order of her dismissal from service dated 26.8.87 by filing Administrative Tribunal Case No. 183 of 1988 before the Administrative Tribunal, Dhaka. The Tribunal dismissed the case by its judgment and order dated 21.8.89 whereupon the appellant preferred aforesaid appeal No. 43 of 1989 before the Administrative Appellate Tribunal, Dhaka. The hearing of the appeal started before a duly constituted Appellate Tribunal consisting of the Chairman and two members but subsequently the Chairman could not attend the hearing due to his personal difficulties and the hearing of the appeal continued before the two members of the Tribunal and after conclusion of the hearing judgment was delivered on 7.6.90 dismissing the appeal.
3. The appellant then moved the High Court Division under article 102 of the Constitution against the said judgment of the Appellate Tribunal and a Rule Nisi was issued in writ petition No. 1637 of 1990. A Division Bench of the High Court Division, by its judgment and order dated 6.8.92, made the Rule absolute in the writ petition holding that the judgment and order of the Administrative Appellate Tribunal consisting of two members only were passed without any lawful authority and of no legal effect. The appeal was remanded to the Administrative Appellate Tribunal to be heard and disposed of by a properly constituted Tribunal in accordance with law.
4. The Administrative Appellate Tribunal in the impugned judgment raised the question whether the Appellate Tribunal was amenable to the writ jurisdiction of the High Court Division of the Supreme Court and observed relying on the case of Mujibur Rahman Vs. Bangladesh 44 DLR (AD) 111 that it was not. Then it was noticed that the High Court Division had held in the writ petition that the judgment of the Administrative Appellate Tribunal by two members only was a nullity because the Tribunal was coram non judice and as such the writ petition was maintainable. Then the Tribunal expressed the view that in its opinion the Appellate Tribunal consisting of two members was not coram non judice rendering its judgment a nullity as held by the High Court Division. It then went on to say that the question could have been settled by this Division by taking an appeal under section 6A of the Administrative Tribunals Act, 1980 (Act No. VII of 1981), briefly the Act, which was incorporated by amendment dated 22.7.1991 (By Act No. XXIII of 1991). The Appellate Tribunal took exception to the appellant's continuing with the writ petition (against the judgment of the Appellate Tribunal) even though the decision of this Division in Mujibur Rahman's case had in the meantime been given on 28.11.1991 and the Provision for appeal to this Division was already made on 22.7.1991.
5. It was argued on behalf of the appellant that notwithstanding the decision in Mujibur Rahman's case, the decision by the Administrative Appellate Tribunal consisting of two members was a nullity, the Tribunal being coram non judice and as such the writ petition was maintainable and the judgment given by the High Court Division directing a re-hearing of the appeal by a properly constituted Tribunal ought to be followed. The Administrative Appellate Tribunal replied to the above contention as follows:
"We are sorry to say that we cannot accept the contention of the learned Advocate for the appellant because-(i) we think that the judgment, dated 6-8-92 passed by the High Court Division in Writ Petition No. 1637/90 is without jurisdiction and (ii) the decision of the Appellate Tribunal holds good unless it is set aside by the Appellate Division of the Supreme Court."
6. It was further held that the Administrative Appellate Tribunal" is in no way amenable to the decision of the High Court Division" and ultimately, without passing any positive order the matter was simply dispossessed of holding that "as the judgment and order of the Appellate Tribunal, dated 7.6.90 still stands, we have nothing to do in this matter."
7. Leave to appeal from the impugned judgment was obtained raising the following grounds-(l) that having regard to the fact that the Appellate Tribunal while passing the judgment and order on 7.6.90 was coram non judice and the said judgment and order were declared to be a nullity by the High Court Division by its judgment and order dated 6.8.92 in writ petition No. 1637 of 1990, the Appellate Tribunal acted illegally in not deciding the appeal on merit on remand; (2) that the Appellate Tribunal upon a myopic view of Mujibur Rahman's case illegally held that the judgment of the High Court Division in the writ petition was passed without jurisdiction; (3) that in view of the decision in the case of Abu Taleb Vs. Bangladesh 45 DLR(AD) 45 which unfortunately could not be placed before the Appellate Tribunal due to inadvertence, the Appellate Tribunal was required to hear the appeal on merit in any case and (4) that having regard to the special facts of the case i.e., the writ petition was filed before section 6A was incorporated in the Act on 22.7.91, the Appellate Tribunal acted illegally in not deciding the appeal on merit upon a wrong view of the writ jurisdiction of the High Court Division.
8. The third contention as above may be disposed of first because Abu Taleb's case has no application in the facts of the present case. In that case during re-hearing of an appeal only two members took part and the Chairman was absent but the judgment was signed by all the three members. That was not a case of coram non judice but it was held that re-hearing of the appeal was to be done by all the three members who had earlier decided the matter.
9. The first important question that falls to be decided in this appeal is whether the Administrative Appellate Tribunal acted legally and properly in holding that the judgment of the High Court Division in writ petition No. 1637 of 1990 was passed without jurisdiction and further that the judgment and order of the Appellate Tribunal dated 7.6.90 remained valid inspite of the judgment of the High Court Division. The core issue, however, is whether the Appellate Tribunal in the facts of the present case could defy the finding of the High Court Division that the two-member Appellate Tribunal was coram non judice and go to the extent of giving its own finding that it was not coram non judice.
10. The Appellate Tribunal relying upon Mujibur Rahman's case correctly held that the Administrative Appellate Tribunal was not amenable to the writ jurisdiction of the High Court Division under article 102 of the Constitution. So far so good, but what it has failed to notice, however, is that Mujibur Rahman's case is not the only case which defines the writ jurisdiction of the High Court Division. We regret to say that the Appellate Tribunal seems to be totally unaware of the settled law that notwithstanding the ouster of jurisdiction of the High Court Division by any legislative provision or even under article 102 itself the High Court Division is yet entitled to exercise its power of judicial review under article 102 if the action complained of before the High Court Division is found to be coram non judice, without jurisdiction or taken malafied. The cases of Ehteshamuddin Vs. Bangladesh, 33 DLR (AD) 154, Jamil Huq Vs. Bangladesh, 34 DLR (AD) 125, Moshtaque Ahmed Vs. Bangladesh, 34 DLR (AD) 222, Helaluddin Ahmed Vs Bangladesh, 45 DLR(AD) 1 illustrate the settled law as refereed to above. The learned Advocates for the parties before us are agreed in their submission that the view taken by the Appellate Tribunal as to the writ jurisdiction of the High Court Division was based upon a partial view of the law (as declared in Mujibur Rahman's case) and ignoring the other decisions extending the writ jurisdiction of the High Court Division inspite of an ouster clause.
11. The High Court Division having held that the decision of the two-member Tribunal was a nullity because the Tribunal was coram non judice, it was clear that the writ jurisdiction of High Court Division was attracted and it was not anymore open for the Appellate Tribunal to pronounce that the judgment of the High Court Division was passed without jurisdiction. The question of maintainability was also raised in the writ petition and the learned Deputy Attorney General who was representing the respondents fairly conceded the settled position of law as referred to above. Not only that the learned Deputy Attorney General supported the contention of the appellant that the judgment passed in the absence of a member of the Appellate Tribunal will be a judgment of individuals and not of the Tribunal and as such it will be a nullity, the Tribunal being coram non judice. it is will be deprecated, mere regretting is not enough, that the Appellate Tribunal has not at all considered the reasons given in the judgment of the High Court Division and in an over-bearing manner bluntly declared that it did not agree that the Appellate Tribunal with two members was coram non judice.
12. The High Court Division in the facts of the case having correctly exercised its power of judicial review and pronounced upon the incompetence of the Appellate Tribunal, it was not at all legal and proper on the part of the Appellate Tribunal to hold and find that the view taken by the High Court Division was wrong. It is true that the Appellate Tribunal is not subordinate to the High Court Division but judicial decorum, propriety and discipline demand that when an interpretation of law is given by the High Court Division all Courts and Tribunals in Bangladesh should abide by such interpretation until such interpretation is set aside or varied by the Appellate Division. It will give rise to anarchical situation if a Tribunal were to give its own interpretation of law when the matter is settled by a decision. The Tribunal has no authority to sit on judgment over the decision of the High Court Division in such matters. It may express its own opinion but will be always obliged to follow the decision of the High Court Division in the absence of any contrary opinion of the Appellate Division on the subject.
13. If the respondents were aggrieved by the judgment of the High Court Division, they could move this Division with a petition for leave to appeal from the said judgment. But the respondents did not take any objection to the said judgment, rather it has been noticed that they supported the view taken by the High Court Division and, in our opinion, rightly. The decision in Mujibur Rahman's case was correct because of the provisions of article 102(5) read with article 117 of the Constitution. But that decision has nothing to do in the facts of the present case because the High Court Division exercised its jurisdiction on the premise that the Appellate Tribunal had acted coram non judice. Further the writ petition was filed before section 6A was added to the Act on 22.7.91. The Appellate Tribunal has been needlessly presumptuous in observing that the appellant ought to have withdrawn his writ petition after the introduction of section 6A and filed appeal' before this Division because the writ petition was still maintainable on the ground raised i.e., of coram non judice. The Tribunal went on to surmise that Mujibur Rahman's decision was not brought to the notice of the High Court Division and the judgment was obtained, as if, surreptitiously. The learned Advocate for the appellant who himself appeared in the High Court Division submitted that the observation of the Appellate Tribunal is incorrect because the High Court Division was quite aware of the said decision and was initially reluctant to interfere but ultimately did interfere being persuaded that the Appellate Tribunal had acted without jurisdiction by giving a two-member judgment and the learned Deputy Attorney General appearing for the Govt. also supported the stand taken by the appellant. In the circumstances of the case it must be observed that the Appellate Tribunal quite gratuitously and unwarrantedly opened the question of maintainability of the writ petition, manifested a lack of understanding of the writ jurisdiction and made improper observation on the judgment of the High Court Division. The height of impropriety was solicitous finding that the High Court Division acted without jurisdiction which is strongly disapproved.
14. We have already held that the High Court Division in the facts of the present case acted fully within its competence and it was the plain duty of the Appellate Tribunal to" abide by the decision of the High Court Division and to dispose of the appeal on merit.
15. The Appellate Tribunal expressed the view contrary to that taken by the High Court Division that if two members of the Tribunal pronounce a judgment it would not be a case of coram non judice. We would have examined this view if there was an appeal by the respondents from the judgment of the High Court Division in the writ petition. But since there is no appeal from that decision before us, we shall dispose of this appeal on the basis that it was not for the Appellate Tribunal to question the correctness of the decision of the High Court Division given in its constitutional jurisdiction. It was plainly and completely obligatory on the part of the Appellate Tribunal to act in accordance with the law declared by the High Court Division. The letters of article 111 of the Constitution may not apply in terms to the Tribunal but the spirit behind them, we have no hesitation to hold, clearly requires that the decision given by the High Court Division must be followed by Tribunal.
16. The discussion made so far answers the issue raised in this appeal but we would like to observe that the Appellate Tribunal also laboured under a misconception in holding that section (3B) of the Act permitted a judgment to be delivered by the Appellate Tribunal even with two members. It has been noticed that the Appellate Tribunal did not at all appreciate the weighty and substantial reasons given by the High Court Division for its view that it would be a case of coram non judice, we, however, find great force in the reasons given by the High Court Division for the view it has taken.
17. It is true that the word 'hearing' in the context of certain enactments has been interpreted in a broad sense to cover the entire stage of trial and not in the restricted sense of only a particular stage beginning with the examination of parties and ending with the arguments in the case. There are, however, contrary views where it has been held that trial does not include the stage of judgment and the word 'hearing' denotes a stage before the
stage of judgment or order. But those decisions are not relevant for our purpose because the word 'hearing' as used in section (3B) of the Act has to be interpreted in the context of the Act itself.
18. It is provided in section 6(1) that the Administrative Appellate Tribunal shall have jurisdiction to hear and determine appeals.............(emphasis added). Hearing and determination are undisputedly attributes of judicial function and are requirements for disposal of an appeal. Since the legislature has expressed the two functions separately in section 6, it will be in consonance with the principle of interpretation of law that this separation should be kept in view while construing the other provisions of the Act. Read in this light section (3B) cannot be construed to mean that when continuation of hearing has been made permissible before two members only, it also includes permission for pronouncing judgment by two members as well. Continuation of hearing by two members only has been provided for apparently to overcome the contingency of sudden absence of a member to attend any particular sitting or sittings of the Tribunal, but when it comes to determination or giving judgment it must be participated by all the three members and all of them must be parties to the judgment. The absurdity of the view of the Appellate Tribunal that two members can also validly pronounce a judgment will be apparent if the provisions of section (3A) are noticed which provide that in the event of a difference of opinion amongst the members of the Appellate Tribunal, opinion of the majority shall prevail. Evidently the question of majority can arise only when more than two members are parties to a decision. The view expressed by the Appellate Tribunal is therefore in direct conflict with the provision of section (3A). It is not necessary to repeat the other substantial reasons given by the High Court Division in support of the view that the decision of two members is a decision of individuals and not of the Tribunal and therefore is a decision of individuals and not of the Tribunal and therefore it is a case of coram non judice. It has already been held that since there was no appeal against the judgment of the High Court Division, the interpretation given by it must prevail.
19. Mr. B. Hossain, learned Deputy Attorney General, upon drawing our attention to the earlier judgment of the Appellate Tribunal (dated 7.6.90 passed by two members) has submitted that may be it was coram non judice but it was an excellent judgment on merit and the appellant does not and cannot have any valid ground to complain about it. The misconduct committed by the appellant was found to be well-proved and the punishment awarded was found to be fully justified and not liable to be reduced even. Therefore even if the appeal was not disposed of on merit on remand by the High Court Division, there was no failure of justice. For the same reason, the learned Deputy Attorney General submits, there need not be a remand again because it will serve no useful purpose.
20. We shall refrain from saying anything on the merit of the appellant's case but we shall interfere with the impugned judgment because of its appalling nature. The appeal should be heard and decided again, for, justice should be seen to have been done.
21. For the reasons, this appeal is allowed and the impugned judgment and order are set aside. The appeal is remanded to the Appellate Tribunal for disposal on merit. There will be no order as to costs.
Bimalendu Bikahs Roy Choudhury J.- I have gone through the proposed judgment of my Lord the Chief Justice. I fully concur with his decision and the reasonings. I would, however, like to make a small observation about the construction of section 7 (3B) of the Administrative Tribunals Act, 1980, which reads as follows:
"If, in the course of a hearing. the Chairman or any other member of the Administrative Appellate Tribunal is, for any reason, unable to attend any sitting thereof, the hearing may continue before the other two members". (Emphasis supplied)
23. To me it appears that absence of the Chairman or any other member is conceived in a situation where in the midst of a hearing by all the three members one departs temporarily for any reason so that he remains a party to the deliberations and, therefore, competent to sign the judgment.