Case No: Civil Appeal No. 35 of 1987
Judge: MH Rahman ,Mustafa Kamal ,
Court: Appellate Division ,,
Citation: 44 DLR (AD) (1992) 111
Case Year: 1992
Appellant: Mujibur Rahman
Respondent: Government of Bangladesh and others
Subject: Administrative Law,
Delivery Date: 1991-11-28
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
Mujibur Rahman (Md)
Government of Bangladesh and others
…………..……….. Respondents [In CA No. 35 of 1987]
Nazmul Hasan and ors
Administrative Appellate Tribunal & ors
……..…………….Respondents [In CA No. 1 of 1991]
Bangladesh Bank and another
Administrative Appellate Tribunal & ors
…….…………....Respondents [In CA No. 4 of 1991]
November 28th, 1991
Conciliation and arbitration Act, 1940
Sections— 29 (I)(b)(c) and 29A
An expression used in a constitutional enactment, whether must not be construed in a narrow or restricted sense— When it is necessary to gather the necessary intendment or manifest intention. Whether the Court will try to gather the same from the language used— Where there is a grant of legislative power by the Constitution, whether the widest meaning must be given.
Cases Referred to-
AKM Ruhul Amin Vs. District Judge 38 DIR (AD) 172; Waterside Workers' Federation of Australia Vs. Alexander Limited (1918) 25 CLR 434; The Attorney‑General of the Commonwealth of Australia Vs. Reginam and the Boilermakers' Society of Australia and others 2 All ER 45; Liyanage Vs. The Queen (1966] 1 All ER 650; Societe United Docks and others Vs. Government of Mauritius 1 All ER 864; Hinds and others Vs. The Queen 976)1 All ER 353; SP Sampath Kumar Vs. Union of India AIR 1987 SC 386; Minerva Mills Ltd. Vs. Union of India AIR 1980 SC, 1789; Bangladesh Vs. Abdur Rab 33 DLR 143, Jamil Huq and eleven others Vs. Bangladesh 34 DLR (AD) 125 and Serajul Islam Vs. The Director of Food 42 DLR (AD) 199; In the matter of Reference by the Parliament of Pakistan 9 DLR (1957) SC 178; Re CP Motor Spirit Act, AIR 1939 Federal Court 1 (5) Quinn Vs. Leathem  AC 495 (506); MB Majumder Vs. Union of India AIR 1990 SC 2263; Royal Aquarium and Summer and Winter Garden Society, Limited Vs. Parkinson  1 QB 431 (446); Shell Company of Australia Vs. Federal Commissioners, (1931) AC 275 (297‑8); M/s. Faridsons Ltd. Vs. Government of Pakistan PLD 1961 SC 537; Re Salomon (1897] AC 38 (1395); High Commissioner for India Vs. IM W, AIR 1948 PC 121; Pakistan Vs. Mrs. AV Issacs 22 DLR (SC) 371; United Provinces Vs. Atiqua Begum AIR 1941 FC 16; JB Chopra Vs. Union of India AIR 1987 SC 357 (Para 2); State of Bihar Vs. Kameshwar Singh, AIR 1952(SC) 252; Chandra Mohan Vs. State of UP, AIR 1966 (SC) 1987; Johri Mal Vs. Director of Consolidation of Holdings, AIR 1967 (SC) 1958); Keshavananda Vs. Kerala, AIR 1973 (SC) 1461 (Paras 1521 and 1920); Bangladesh Vs. Zahangir Hossain, 34 DLR (AD) 173 (184); Hinds and other Vs. The Queen, (1976) 1 All ER 353, Liyanage Vs. Reginam (1966) 1 All ER 650; Stone Vs. The Queen, (1980) 3 All ER 148; Bank of New South Wales Vs. Commonwealth of Australia, (1948) 76 CLR 1; Jumbunna Coal Mine, No Liability Vs. Victorian Coal Miners' Association, (1908) 6 CLR 309 (367, 368); Attorney ‑General for New South Wales Vs. Brewery Employees Union of New South Wales (1908) 6 CLR 469 (611); Juilliard Vs. Greenman, 28 Law Ed. 204 (211); Queen Vs. Burah, (1878) 3 AC 889 (904) ; Bidi, Bidi Leaves and Tobacco Merchants' Association Vs. Bombay State, AIR 1962 (SC) 486 (at para 20); Fenton Vs. Hampton, (1858) 117 RR 32 at p.41: 11 Moo PC 347 & Attorney‑General for Ontario Vs. Attorney General for Canada, 1921 AC 571 (583).
Syed Ishtiaq Ahmed, Senior Advocate, instructed by Md. Aftab Hossain, Advocate‑onRecord‑For the Appellant in CA No. 35 of 1987.
Abdul Wadud Bhuiyan, Additional Attorney-General (Sharifuddin Chaklader, Assistant Attorney‑General, with him), instructed by Md. Nawab Ali Advocate‑on‑Record‑For the Respondents in CA No. 35 of 1987.
TH Khan, Senior Advocate, instructed MH Khondkar, Advocate‑on‑Record ‑For the Appellant in CA No. 1 of 1991.
Moinul Huq, Advocate, instructed by Miah Abdul Gafur, Advocate ‑on ‑Record‑For the Respondent No. 3 in CA No. 1 of 1991.
Not Represented‑ Respondent Nos. 1, 2, 4 and 5 in CA No. 1 of 1991.
M. Zahir, Senior Advocate, instructed by Md. Aftab Hossain, Advocate‑on‑Record‑For the Appellants in CA No. 4 of 1991.
Moinul Huq, Advocate, instructed by Miah Abdul Gafur, Advocate ‑on‑Record‑For the Respondent Nos. 3 in CA No. 4 of 1991.
Not Represented ‑Respondent Nos. 1, 2, 4 to 12 in CA No. 4 of 1991.
Civil Appeal No. 35 of 1987, Civil Appeal Nos. 1 & 4 of 1991.
(From the judgment and order dated 17th June, 1987 passed by the High Court Division in Writ Petition No. 240 of 1987 and from the judgment and order dated 12th December, 1990 passed by the High Court Division Dhaka in Writ Petition No. 773 of 1989).
These three certificated appeals call for determination of a common question whether in view of clause (5) of Article 102 of the Constitution, a writ petition is maintainable against the judgment and order of the Administrative Appellate Tribunal established under section 5 of the Administrative Tribunal Act 1980 (Act VII of 1981). That question may be rephrased in a simpler form: Whether Article 117 of the Constitution applies to the Appellate Tribunal?
2. The appellant in Civil Appeal No. 35 of 1987, Md. Mujibur Rahman, was compulsorily retired from his service as the Collector of Customs. The Administrative Tribunal set aside the order of retirement by its order dated 7th January, 1986. The Administrative Appellate Tribunal by its judgment and order dated 8th March, 1987 set aside the Tribunal's order on the ground that the order passed by the Chief Martial Law Administrator could not be challenged before any court. The High Court Division rejected the appellant's petition summarily as not maintainable under clause (5) of Article 102 of the Constitution, but granted a certificate.
3. In Civil Appeal No. 4 of 1991 respondent No. 3, Md. Atiqullah, an employee of the Bangladesh Bank, filed an application before the Administrative Tribunal for giving him, a promotee, seniority over those who were directly recruited in the grade. His case was dismissed by the Tribunal's order dated 26th September, 1988. On appeal the Appellate Tribunal allowed the employee's prayer. The Bank then filed a Writ Petition No. 773 of 1989. In that petition respondents 4 to 12, the appellants in Civil Appeal No. 1 of 1991, were added as respondents. After finding that Article 117 applies to the Appellate Tribunal as well, the High Court Division by its order dated 12th December, 1990 discharged the Rule issued in the matter, but granted a certificate as the matter involved substantial question of law as to the interpretation Arts. 102 and 117.
4. Civil Appeal No. 35 of 1987 was heard in June, 1990 and when the learned Attorney‑General informed the court that the Government was contemplating whether the decision of the Appellate Tribunal should be brought under the judicial review of the Appellate Division, the last Court in the country the judgment was reserved. On 6th December, 1990 there was a change in the administration. By Act No. 23 of 1991, a new section, section 6A, was inserted in the Act VII of 1981 declaring that the provision of Article 102 of the Constitution shall apply in relation to the Administrative Tribunal as they apply in relation to the High Court Division. Civil Appeal No. 35 of 1987 was ordered to be heard along with two other certificated appeals. The appellants in all three appeals have also filed separate petitions for leave to appeal under section 6A of the Act of 1981.
5. Article 117 of the Constitution reads as follows:
"117(1) Notwithstanding anything hereinbefore contained, Parliament may, by law establish one or more administrative tribunal to exercise jurisdiction in respect of matters relating to or arising out of‑
(a) the terms and conditions of persons in the service of the Republic, including the matters provided for in Part IX and the award of penalties or punishments;
(b) the acquisition, administration management and disposal of any property vested in or managed by the Government by or under any law including the operation and management of, and service in any nationalised enterprise or statutory public authority;
(c) any law to which clause (c) of Article 102 applies.
(2) Where any administrative tribunal is established under this Article, no court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal:
Provided that Parliament may, by law, provide for appeals from, or the review, of, decisions of any such tribunal."
6. The common and main contention of all the appellant is that the expression "such tribunal" in the proviso Article 117(2) is referable only to the Tribunal established under Article 117(1), and hence any other forum like the Appellate Tribunal cannot be regarded as a tribunal established under Article 117; that the Appellate Tribunal is constituted under the plenary legislative power of Parliament as a court subordinate to the Supreme Court; and that the creation of such a court is not in harmony with Article 117, because the tribunal of first instance is not a court subordinate to the High Court Division. It is contended that because of section 6(3) of the Act, as it stood before the amendment by the Act of 1991, the decision of a subordinate court like the Appellate Tribunal cannot be 'final' in the sense of its being immune from being questioned under Article 102. It is also submitted that in the absence of the enabling power to provide for appeal, the Parliament by its plenary legislative power cannot by an ordinary law disturb the finality of the decision of the Tribunal. It is pointed out that the Constitution is absolutely silent as to the appellate forum, its name, composition, and the tenure of office of the persons who will constitute the forum. It is emphasized that in the scheme of Part VI the only forum for appeal under Article 117(2) can be the Supreme Court, and that it is so obvious that the makers of the Constitution thought it redundant to expressly provide for that.
7. Appellant in Civil Appeal No. 35 of 1987 has further urged that the provisions of sections 3 and 5 of the Act as to the composition of the Tribunal and the Appellate Tribunal respectively are ultra vires to the Constitution.
8. An impressive argument is built up in support of the contention that a manifest intention flows from the Constitution that in view of the nature and sweep of its jurisdiction, the Tribunal, now a part of the Judiciary under Part VI of the Constitution, is to be a court, though not a substitute of, yet co‑ordinate to or equally effective as, the High Court Division and it can only be composed of, in the absence of express provision in Article 117 in this regard, a person appointed in the same manner and entitled to the same security of tenure as the judge of the Supreme Court. It is urged that such an intention is to be deduced from the following facts:
(a) that the Tribunal is being vested with a substantial part of the original constitutional jurisdiction of judicial review, which owes its origin to the prerogative writs, of the High Court Division, which was being exercised by similar courts since, at any rate, 1935, and before the Constitution came into operation;
(b) that prior to the establishment of the Tribunal the High Court Division had the original plenary jurisdiction of judicial review under Article 102 in service matters with a right of appeal to the Appellate Division, and that the Civil Court's original jurisdiction under Civil Procedure Code was subject to the appellate and revisional jurisdiction of the High Court Division, and the Appellate Division had an appellate jurisdiction against the decision of the High Court Division;
(c) that the High Court Division continued to exercise till the establishment of the Tribunal under the Act of 1981, not being qualified and limited in any way as it was done under Article 98 of the Pakistan Constitution of 1962, and has the plenitude of jurisdiction to enforce the constitutional limitations in service matters under Part IX of the Constitution; and
(d) that the jurisdiction in clauses (b) & (c) of Article 117(1) read with Article 47 of the Constitution, relating to enforcement of statutory rights and obligation of public authorities and citizens, and to set of laws which have special position in view of absence of any limitation on the legislative competence to enact and enforce such laws on the ground of their inconsistency with guaranteed fundamental rights, can most appropriately be exercised and is still exercised by way of judicial review under Article 102.
9. Disregarding all these aspects of the matter and in violation of the necessary implications from the non‑obstante clause in Article 117(1), it is contended that, the impugned provision of section 3 of the Act has provided for setting up a Tribunal consisting of a District Judge, a Court subordinate to the Supreme Court in view of AKM Ruhul Amin Vs. District Judge 38 DLR (AD) 172.
10. Let us first refer to the decisions, relied on by the appellants, in support of their, above contentions.
11. The Waterside Workers' Federation of Australia vs. Alexander Limited (1918) 28 CLR 434. Section 72 of the Constitution of Commonwealth of Australia requires that every justice of the High Court and every justice of any other Court created by the Parliament of Commonwealth shall, subject to the power of removal contained in that section, be appointed for life. Under section 12(1) of the Commonwealth Court of Conciliation and Arbitration Act 1904‑1915, the President of the Commonwealth Court of Conciliation and Arbitration was appointed for seven years only. As that section was at variance with section 72 read with section 71 of the Constitution, the provision for conferring upon the Court of Conciliation and Arbitration the power to enforce its awards was, therefore, held to be invalid.
12. The Attorney‑General of the Commonwealth of Australia Vs. Reginam and the Boilermakers' Society of Australia and others  2 All ER 45. By the Commonwealth Conciliation and Arbitration Act, 1904‑1952 the Commonwealth Court of Conciliation and Arbitration was set up for the settlement of industrial disputes as a superior court of record and vested in it original jurisdiction, functions of an administrative, arbitral and executive character like altering standard hours of work, basic wages and other matters. By section 29(1)(b)(c) and section 29A of the Conciliation and Arbitration Acts 1904‑1952 judicial powers were conferred on that Court to enable it to order compliance with its awards and to enjoin persons from committing contraventions of its awards and to punish for contempt. Those provisions were declared ultra vires as there was nothing in Chapter III of the Constitution which justified judicial and non‑ judicial functions being united in one body.
13. The case of Liyanage Vs. The Queen  1 All ER 650 is an aftermath of an abortive coup d' etat in Ceylon in January 1962. The ratio in that case is succinctly noted in Societe United Dock and others Vs. Government of Mauritius  1 All ER 864.
"[T]he Parliament of Ceylon passed Acts pursuant to a legislative plan ex-post facto to secure the conviction and enhance the punishment of particular individuals legalizing the imprisonment while they were awaiting trial, making admissible statement which had been inadmissibly obtained, altering lion fundamental rules of evidence so as to facilitate their conviction and altering ex post facto the punishment to be imposed on them. The Board held that the Acts involved the usurpation and infringement by the legislature of judicial powers inconsistent with the written Constitution of Ceylon, which though not in express terms, manifested an intention to secure to the judiciary freedom from political legislative and executive control."
14. In Hinds and others Vs. The Queen 976)1 All ER 353 the five appellants who were convicted by a Resident Magistrate's Division of the Gun Court established under the Gun Court Act, 1974 of Jamaica for unlawful possession of firearms and ammunition, challenged the constitutionality of the provision so to the establishment of the Gun Court sitting in the three Divisions— the Resident Magistrate's Division, the Full Court Division and the Circuit Court Division—, the holding of the trial in camera, and the manner of sentencing under that Act.
15. It was unanimously held that (a) that the provisions as to the Resident Magistrate's Division and the Circuit Court Division of the Gun Court the holding of the proceeding in camera did not contravene the Constitution; (b) that the requirement that persons convicted of firearms offences must be sentenced to be detained at hard labour during the Governor-General’s pleasure, the detention being terminable only on the advice of a non‑ judicial body, the Review Board, established under the Act, was in conflict with the Constitution; and that the provisions of the Act making such sentence mandatory and as to the Full Court Division, its jurisdiction and powers are severable from the rest of the Act.
16. The constitutionality as to the Full Court vision of the Gun Court, which never sat, did not arise from the case, but it was considered for its outstanding public importance. In the majority opinion the provisions of the 1974 Act establishing a full Court Division consisting of three resident magistrates were held to be in conflict with Chapter VII of the Constitution.
17. Lord Diplock, in giving the majority three to two, opinion, observed:
"A written constitution like any other written instrument affecting legal rights or obligations, falls to be construed in the light of its subject matter and of the surrounding circumstances with reference to which it was made……Care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration and reasoning which depended on what though not expressed, is nonetheless a necessary implication from the subject‑ matter and structure of the constitution and the circumstances in which it had been made."
18. Considering the background of the making of the Constitution, it was noted in the majority opinion that as the Jamaican Constitution was in substance an agreement providing for continuity of Government through successor institutions, negotiated as well as drafted by persons nurtured in the English tradition of the common law and familiar with the basic concept of separation of powers as it had been developed in the unwritten constitution of the United Kingdom, a great deal was “left to necessary implication", and it is taken for granted that the basic principle of separation of powers will apply to the exercise of their respective functions by the three organs of the Government. It was held that the Jamaican Constitution being one on the Westminster model it is "implicit in its structure that judicial power, however it be distributed from time to time between various courts, is to continue to be vested in persons appointed to hold judicial office in the manner and on the terms laid down in the chapter dealing with the judicature, even though this is not expressly in the constitution (Liyanage VR)."
19. In the dissenting opinion it was held that 'from a Constitution on the Westminster model, it does not follow that the Parliament of a territory cannot by ordinary enactment, alter the jurisdiction and powers of any court named in the Constitution' and that 'any transfer of the Supreme Court's jurisdiction, other than that conferred by the Constitution, is well founded provided that the character of the Supreme Court as a superior court of record is not destroyed'. It was further observed:
"A written constitution must .... like any other written document. .... be construed to give effect to the intentions of those who made and agreed to it and those intentions are expressed in or to be deduced from the terms of the constitution itself and not from any pre‑conceived ideas as to what such a constitution should or should not contain. It must not be construed as if it was partly written and partly not. ... While we recognise that an inference may be drawn from the express provisions of a constitution (see Attorney‑General for Australia Vs. R and Boilermakers' Society of Australia per Viscount Simonds) we do not agree that on the adoption of a constitution a great deal is left to necessary implication. If this were so, a written constitution would largely fail to achieve its object."
20. In SP Sampath Kumar vs. Union of India AIR 1987 SC 386 the abolition of the jurisdiction of the Supreme Court under Article 32 and that of the High Court under Arts. 226 and 227 in respect of specified service disputes and certain other matters were challenged. After referring to Minerva Mills Ltd. vs. Union of India AIR 1980 SC 1789 where in it was held that "effective alternative institutional mechanisms or arrangements for judicial review" can be made by Parliament, the exclusion of jurisdiction of the High Court by section 28 of the Administrative Tribunal Act, 1985 was upheld. Presumably because sections 14 and 28 took away the jurisdictions of the High Court under Articles 226 and 227 of the Constitution with effect from the date of the coming into force of the administrative Tribunals Act 1985 and the Tribunal is to exercise the powers of the High Court and there being no provision for appeal except one to the Supreme Court, it was held that the Tribunal must be a worthy successor to, and a substitute of the High Court in all respects. The provision for appointment of Secretary to the Government of India as the Chairman of the Tribunal was struck down. Some guidelines as to the composition of Tribunal was commended to the Central Government and it was declared that unless prompt actions were taken within the time granted the constitution of the Tribunal as a substitute of the High Court would be open to challenge.
21. The respondents contend that clause (5) of Article 102 relating to the exclusion of the jurisdiction of the High Court Division has been upheld by this Court in Bangladesh Vs. Abdur Rab 33 DLR (AD) 143, Jamil Huq and eleven others Vs. Bangladesh 34 DLR (AD) 125 and Serajul Islam Vs. The Director of Food 42 DLR (AD) 199. In support of their contention that the Constitution is to be strictly construed reliance is placed on In the matter of Reference by the Parliament of Pakistan 9 DLR (1957) SC 178. After considering a number of decisions and passages from Maxwell's. The Interpretation of Statutes, Cruise on Statute Law and Odger's Construction of Deeds, the Pakistan Supreme Court reiterated the ancient rule of construction of documents that 'whether they are constitutional characters or ordinary statutes or other documents, the first object of the court is to discover the intention of the author and that such intention is to be gathered from the words used in the statute or document.'
22. It is contended that the decisions cited by the appellants are wide off the mark. Our attention is drawn to the following observation of Gwyer CJ in Re CP Motor Spirit Act, AIR 1939 Federal Court 1 (5) with regard to the decisions of foreign Courts:
“Where they are relevant, they will always be listened to in this Court with attention and respect, as the judgments of eminent men accustomed to expound and illumine the principles of jurisprudence similar to our own; and if this Court is so fortunate as to find itself in agreement with them, it will deem its own opinion to be strengthened and confirmed. But in the last analysis the decision must depend upon the words of the Constitution which the court is interpreting and since no two Constitutions are in identical terms, it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. This may be so even where the words or expressions used are the same in both cases; for a word or a phrase may take a colour from its context and bear different senses it accordingly."
23. Cases on all fours are, in any case, very rare. Citations from different jurisdictions may have enriching acculturation effect and are always welcome unless they are vexatiously irrelevant. The contentions in these matters have never been squarely raised earlier. We appreciate the assistance we have received from the learned Counsels of the parties. Appellant's citations, invigoratingly interesting though they are, have got little relevance in view of the specific provisions of Chapter III in Part VI, particularly the non‑obstante clause in Article 117(1), in our Constitution, similar provisions being absent in the Constitutions of Australia, India or Jamaica. Lord Halsbury LC observed in Quinn vs. Leathem  AC 495 (506):
“That every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found."
24. Unlike in the two Australian cases, in the instant matters, because of the non‑obstante clause in Article 117(1), there can be no grievance on the ground there has been an amalgamation of judicial and non‑judicial functions or conferral of judicial function on a non‑judicial body in violation of the provisions as to the judiciary in the Constitution.
25. Like Liyanage's case the question of separation of powers or usurpation of judicial powers by the legislature is not involved in these matters.
26. In Hinds' case the establishment of a subordinate court in exercise of ordinary legislative power and conferral on that subordinate court of a jurisdiction, exercisable under Part VII of the Jamaican Constitution only by a person qualified and appointed as a Judge of the Supreme Court, came up for consideration. In our case the tribunals are established not as a subordinate court under Article 114 but as a distinct and independent forum, in exercise of the power conferred by Article 117, with an enumerated jurisdiction which was never the exclusive domain of the High Court Division and, as there is no question of violation of an entrenched provision in the Constitution, and hence Article 7, a provision similar to section 2 of the Jamaican Constitution is not attracted.
27. There was no provision in the Indian Constitution on the date of its commencement for establishment of Administrative Tribunals. In exercise of the power conferred by clause (2) (d) of Article 323A, inserted in the Indian Constitution for the first time by the Constitution (Forty Second Amendment) Act 1976, the Parliament enacted section 14 of the Administrative Tribunal Act, 1985 which provided that the Central Administrative Tribunal would exercise all the jurisdiction exercisable by all courts except the Supreme Court under Article 136 of the Constitution in relation to service matters. Section 28, as amended by the Administrative Tribunal (Amendment) Act, 1986, excluded the jurisdiction of all courts except that of the Supreme Court. Is it because of general reluctance of Courts to regard the function of a tribunal as judicial function, the provisions for administrative tribunals in India, Article 323A and 323B were inserted, not in the chapters relating to the, Union judiciary or State judiciary, but separately in Part XIV A after Part XIV relating to services under the Union and the States? In our Constitution Article 102(5) and Article 117 were enacted in the original Constitution. It appears the Constitution makers deliberately made a departure from the principle of strict distinctions between judicial function of Courts, and quasi‑judicial and arbitral functions of tribunals. Like Sampath's case none of the Tribunals in our case is presided by an executive officer.
28. The interpretation given in Sampath on the question of status of the Administrative Tribunal came up for consideration in MB Majumder Vs. Union of India AIR 1990 SC 2263. In that case it was contended that as the decision in Sampath Kumar's case equates the Central Administrative Tribunal with the High Court its Chairman is to be equated with the Chief Justice of a High Court and the Vice‑Chairman and Members must be equated with the sitting Judges of the High Court in all respects in their pay, age of superannuation and other conditions of service. The Indian Supreme Court observed:
"Article 323A itself clearly contemplates that the Administrative Tribunals constituted thereunder are distinct from the Courts. It is, therefore, not possible for the Administrative Tribunal to shed off or abandon its heritage and substitute its genes with those of its choice of a different heritage. Apart from the obvious fallacy already indicated, the petitioner's claim, if accepted, would result in appointment of some deemed High Court Judges contrary to the express provision made in the Constitution for appointment of High Court Judge."
"During the course of hearing, it was pointed out that mere substitution of a different forum for adjudication of a dispute does not result in conferring on the new forum the status of the substituted forum for purposes other than the jurisdiction and power to adjudicate that dispute unless their status be otherwise equal. To illustrate, section 115 CPC, by amendment in some States empowers the District Courts instead of the High Court to decide revisions thereunder, but that does not equate the District Court with the High Court. No attempt was made on behalf of the petitioner to answer this."
29. In 1892 in Royal Aquarium and Summer and Winter Garden Society, Limited Vs. Parkinson  1 QB 431 (446) Fry, LJ observed that the term 'tribunal' "has not, like the word 'court', an ascertainable meaning in English Law". About four decades later in Shell Company of Australia vs. Federal Commissioners, (1931) AC 275 (297‑8) Lord Sankey LC observed:
"The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not courts in the strict sense of exercising judicial power. ... In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred by another body.
An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called. "
30. Both the Bench and the Bar in the countries where English common law system had an abiding influence had always looked askance to the word 'tribunal'. However, for the failings of the formal Court in giving speedy and inexpensive remedies in numerous problems of law and administration, tribunals, freed from forms and formalities, sometimes with a special expertise, and sometimes armed with provisions of rough and ready justice, have been steadily growing in the limbo of legal system as an alternate dispute resolution mechanism. Criticism against the growing tribunalisation in England, among other reasons, led to the setting up of a Committee on Administrative Tribunals and Inquiries under the Chairmanship of Sir Oliver Franks. Soon after the publication of the Report of the Franks Committee the Tribunals and Inquiries Act 1958 was passed in England. That statute was reenacted in 1971 with certain amendments and additions. The Franks Committee decided both against the setting up of an entirely separate system of Administrative Courts and the Establishment of an Administrative Appellate Court or an Administration Division of the High Court However, a persistent lobby among the English lawyers for the establishment of an Administrative Division of the High Court has led to the setting up in 1982 of a special panel of judges of the Queen's Bench Division for hearing any case involving administrative law.
31. About four years after the Report of the Franks Committee, in M/s. Faridsons Ltd. Vs. Government of Pakistan PLD 1961 SC 537 Cornelius, CJ regretted absence of any procedure similar to that of French Administrative Law which with variations appears to be in operation over the whole of Europe with the exception of the United Kingdom, or to a system of Administrative Courts which prevails in the United States.
32. In the Report of the Law Reform Commission, 1969‑70 of Pakistan it was observed:
"The setting up of administrative tribunals, without curtailing the existing jurisdiction of the High Courts would mean only an additional forum and hence extra‑expenditure of the litigant. We already have such forums under various laws. No one appears to be satisfied with decisions of these special tribunals as the dispute is ultimately taken to the High Court under Article 98."
After examining the feasibility of setting up of administrative tribunals, the Commission opined that it would not be desirable to depart from the existing system as it would neither expedite the disposed of matters nor inspire confidence.
"In so far as service matters are concerned," the Commission noted, "there is, however, a genuine feeling that the High Courts are sometimes not in a position to grant appropriate relief to the aggrieved public servant under Article 98 in view of the limitations contained therein which prevent them from going into the facts of the case, questions relating to seniority and promotion and other terms and conditions of service not specifically guaranteed by the Constitution itself." It was recommended that the Government should set up an Administrative Tribunal to deal with service matters but the High Court's jurisdiction under Article 98 of the Constitution of 1962 should remain intact and that the Administrative Tribunal should be presided over by a retired judge of the Supreme Court or the High Court, who should have the same security of office as a serving Judge.
33. Delay in formal court proceedings has recently given rise to a new concept of multitiered court‑house consisting of the formal court system as well as the alternative dispute resolution mechanisms like conciliation, arbitration and mediation boards. This recent trend apart, all other ideas referred to above that were advanced, considered, criticised or rejected were known to the draftsmen of our Constitution. The Constitution made provisions in Article 117 for conferring State’s judicial powers on some tribunals and integrating them in the judiciary, and enabled the Parliament to make necessary legislation for evolving a system that may in future cumulate some of the attribution which are divided between the formal court system and the growing practice of adjudication of disputes by tribunals.
34. We have noticed in Hinds' case, the kin spin in the appellants' citations, how two different views on the interpretation of Constitution—an emphasis on the principle of necessary intendment drawn from the history of the making of the Constitution and an insistence on expressed words, not excluding necessary inference from expressed words, used in the Constitution— resulted in two different opinions. In Re Salomon  AC 38 (1395) Lord Watson observed:
"Intention of the legislature" is a common but very slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication."
35. The background of the making of the Constitution may be of considerable help in understanding the minds of the makers of the constitution as it will reveal what was intended and what was not intended, what was intended to be retained or modified, and what innovations were intended to be introduced. With regard to the history of jurisdiction of the High Court, exercised before 1972, let there be no confusion that the High Court never had any exclusive jurisdiction in service matters. Numerous reported decisions on service matters, to name the two leading cases the High Commissioner for India Vs. IM Lall, AIR 1948 PC 121 on the question of second second show cause notice, and Pakistan Vs. Mrs. AV Issacs 22 DLR (SC) 371 on the question whether the theory of bounty is applicable to a civil servant's right to arrear salary, originated in a suit and not in a proceeding of original jurisdiction in the High Court. In the instant matters the past history can hardly be used against the constitutionality of the law Parliament is empowered in the Constitution to make. Rather, it will sustain the presumption of the constitutionality of the Act for the simple reason that the makers of the Constitution knowing the state of things obtaining before the framing of the Constitution deliberately chose to provide what is provided in Article 117.
36. From the first four words, the non obstante clause, in Article 117, it follows that the Constitution has not only granted power to the Parliament to make a law like the Act of 1981, it has also emancipated such grant of power from any restrictive provisions in Chapters 1 and 2 of Part VI. The tribunals are not meant to be like the High Court Division or the subordinate court over which the High Court Division of the Supreme Court exercises both judicial review and superintendence. The tribunals are not in addition to the Courts described in Chapters I and III. They are set apart, as sui generis, in a separate chapter. The situational argument that for about ten years when no tribunal was set up the Civil Courts and the High Court Division exercised the functions of the tribunals delineated in Article 117(1), and will, in future exercise the same jurisdiction if the Act of 1981 is repealed is hardly relevant for interpreting the Constitution which is supposed to endure till it runs out its fortune of survivance. So far only one tribunal has been created for matters relating or arising out of sub‑ clause (a) of Article 117(1). This does not mean that Parliament's power to create tribunals has been exhausted and it will be precluded in future from creating some more tribunals for matters relating to sub‑ clauses (b) and (c) of Article 117(1).
37. We do not also find any substance in the contention that the Tribunal has been set up by Parliament on the enabling power given to it in clause (1) of Article 117 and the Appellate Tribunal has been set up by its legislative power under Article 65 of the Constitution. Both the Tribunal and the Appellate Tribunal have been set up by Parliament in the exercise of its legislative power—in one case by an express grant in clause (1) and in the other by necessary implication following from the proviso to clause (2) of Article 117. The distinction between a law made by Parliament by an enabling power in the Constitution and the one by the plenary power under Article 65 may only be relevant in a case where the former is made in excess of the enabling power. There is nothing in the Act of 1981 that is exceptionable.
38. There is neither command nor any necessary intendment in the Constitution that the Tribunal or the Appellate Tribunal is to be construed as a forum substitute, alternate or co‑equal to the High Court Division. The terms and tenure of service of the Judges of the Supreme Court have been expressly provided in Chapter 1 and Part VI, but no similar provisions are made in the Constitution with regard to the terms and tenure of the persons who' will man the tribunals. It is left to the legislature, after establishing the tribunals, to make necessary provisions in this regard for the carrying out of the functions of the tribunals.
39. Section 3 of the Act of 1981 provides for the composition of the Tribunal with a person who is or has been District Judge, the highest post in the judicial service, as defined in Article 152. Section 5 provides that the Chairman of the Appellate Tribunal shall be a person who is or has been or is qualified to be a Judge of the Supreme Court. Sections 3 and 5 are unexceptionable and they are read down.
40. It is a settled principle of interpretation that an expression used in a constitutional enactment conferring legislative powers must be construed not in any narrow or restricted sense, but in a sense beneficial to the widest possible amplitude of the powers: see United Provinces vs. Atiqua Begum AIR 1941 FC 16. It is observed in Craies on Statute Law, Seventh Edition, Page 258:
"One of the first principles of law with regard to the effect of an enabling Act is that if the legislature enables something to be done, it gives power at the same time, by necessary implication, to do everything which is indispensable for the purpose of carrying out the purpose in view ........”
41. The Court may draw necessary inferences from written words for giving effect to the intention of the makers of the Constitution. Some inferences may easily be drawn from inclusion of chapter III in Part VI of the Constitution. If the Tribunal or the Appellate Tribunal is to have a rightful place in the judiciary, then the minimum requirement is that it is to be presided by a person having knowledge of law and skill in adjudication. There may be one or more tribunals for exercising jurisdictions in respect of matters mentioned in sub‑ clauses of clause (2) of Article 117. That in furtherance of one of the basic principles of jurisprudence there is to be a provision for appeal and the Constitution has made a provision for that. The power to provide appeals necessarily implies a further power to establish an appellate forum or confer appellate power on an existing forum with, however, no necessary implication that such power can only be exercised in either of the two manners or once it is exercised it is exhausted, The tribunals are to be empowered to punish any person who without lawful excuse obstructs it in the performance of its functions. There should be prescribed rules for the terms and conditions of service of the persons who will perform the functions as member or chairman of a tribunal.
42. There could have been an arguable case of necessary intendment, before the insertion of section 6A by the amendment in 1990, that as Chapter III is in Part VI dealing with the exercise of judicial powers of the State the apex court of the country must have the last say in laying down the laws relating to matters described in the sub‑ clauses of clause (2) of Article 117. By insertion of section 6A the Parliament has made the declaration as per clause (4) of Article 103. The Act VII of 1981 has now provided all the necessary requirements for adjudication by the Tribunals in service matters.
43. So that litigants may not come to the High Court Division even after establishment of Administrative Tribunals, such a likelihood was apprehended in the Law Commission's Report, a bolt of a privative clause has been provided in Article 102. In USA because of due process clause in the Fifth Amendment, administrative tribunals are subject to curial review. In our Constitution, despite the analogue of the US due process in our Article 31, the judicial review by the High Court Division has been deliberately excluded by clause (5) in Article 102.
44. The decision of the Appellate Tribunal like that of the Tribunal is immune from any review under Article 102 not because of the principle that the appeal is a continuation of the proceeding from which the appeal lies, as suggested by the respondents, but because Article 117 also applies to the Appellate Tribunal. Clause (2) of Article 117 cannot be read without its proviso which brings the appellate forum within its ambit. If it is construed as a whole, as is required by the accepted principle of construction, with its proviso the intent of the framers of the Constitution becomes clear that the decision of the Appellate forum is not amendable to judicial review under Article 102 of the Constitution. The Chapter III, headed as Administrative Tribunals, provided in a single article for the setting up of both the Tribunal of first instance as well as the Appellate Tribunal, one expressly in clause (1) and another, by necessary implication in proviso to clause (2), and both are to exercise their jurisdiction in relation to the same matters. The Appellate Tribunal may confirm or set aside, vary or modify any order or decision of the Tribunal. The definition of the term "Tribunal' in clause (b) of section 2 of the Act has only made it obvious what is impliedly there in Article 117.
45. The word 'tribunal' is not used in Article 117 within the meaning of the term 'Court', as defined in Article 152 of the Constitution. The provision for appointment of the member of the Tribunal from among persons who are or have been District Judges will neither make the member a persona designata District Judge nor a Court. The controversy that, arose and was settled in AKM Robot Amin Vs. District Judge 38 DLR (AD) 172 is not at all attracted in this case in view of the distinctive set up of the Tribunal under Article 117.
46. Appellant in Civil Appeal No. 35 of 1987 contended that when he challenged the impugned order of compulsory retirement on the ground of violation of fundamental rights guaranteed under Articles 27 and 29 of the Constitution, the High Court Division ought to have exercised its jurisdiction under clause (1) of Article 102. It appears that no case of violation of any fundamental right was made out before the High Court Division nor any certificate was given in this regard. In Serajul Islam Vs. The Director General of Food, 42 DLR (AD) 19, this Court, in rejection the petitioner's contention that the Tribunal had no jurisdiction to give necessary relief when the fundamental right against a double jeopardy was invoked, observed:
"We do not think so, for, if the petitioner can establish a case of double jeopardy on facts he can invoke the law under which he is proceeded against which cannot be opposed to fundamental rights and the Tribunal is competent to enforce the statute. The matte arising from a departmental proceeding relating to terms and conditions of service of the petitioner the High Court Division rightly found a bar to its jurisdiction under Article 102 of the Constitution."
47. The learned Additional Attorney-General who brought that decision to our notice on his own referred to Article 44(1) of the Constitution that guarantees the right to move the High Court in accordance with clause (1) of Article 102 for the enforcement of the rights conferred by the Part III of the Constitution.
48. Within its jurisdiction the Tribunal can strike down an order for violation of principles of natural justice as well as for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising of sub‑ clause (a), but such tribunals cannot, like the Indian Administrative Tribunals, in exercise of a more comprehensive jurisdiction under Article 323A (see SP Sampath Kumar Vs. Union of India, AIR 1937 SC 386 (Para 16) and JB Chopra Vs. Union of India AIR 1987 SC 357 (Para 2), strike down any law or rule on the ground of its constitutionality. A person in the service of the Republic who intends to invoke fundamental right for challenging the vires of a law, will seek his remedy under Article 102(1), but in all other cases he will be required to seek remedy under Article 117 (2).
An aggrieved person may, out of desperation or just for taking a sportive chance in the summary writ jurisdiction, allege contravention of some fundamental right which may turn out to be frivolous or vexatious or not even remotely attracted in his case. The Court is, however, to be on guard so the great value of the right given under Article 102(1) is not frittered away or misused as a substitute for more appropriate remedy available for an unlawful action involving no infringement of any fundamental right.
49. The appeals are dismissed without any order as to cost. The petitioners are directed to take necessary steps for completing their respective petitions for hearing within one week.
Mustafa Kamal, J:
In concurring with the decision of my learned brother MH Rahman, J. I would like to express my viewpoints in these appeals. As I see it, what was argued and disposed of in the High Court Division in the writ petitions was a single point, namely, whether a writ application under Article 102(2) of the Constitution lies against a decision of the Administrative Appellate Tribunal. The High Court Division answered the question in the negative. Now in these certificated appeals, some new points have been argued on a broader and wider canvass, points which were never raised before the High Court Division.
2. Part VI of our Constitution—The Judiciary—contains three Chapters. Chapter I (Article 94 to Article 113) deals with the Supreme Court, Chapter II (Article 114 to Article 116A) deals with Subordinate Courts and Chapter III (Article 117) deals with Administrative Tribunals.
3. Chapter I establishes a Supreme Court for Bangladesh comprising the Appellate Division and the High Court Division. Judges are appointed from among persons of certain qualification and experience and they are given security of tenure. Article 102(2) of the Constitution confers the power of judicial review on the High Court Division exercisable upon "a person performing any functions in connection with the affairs of the Republic or of a local authority". The word "person" undergoes an inclusive and exclusive definition in Article 102(5) as follows:
"(5) In this Article, unless the context otherwise requires, "person" includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence service of Bangladesh or any disciplined force or a tribunal to which Article 117 applies."
4. Chapter II authorises the Parliament to establish by law in addition to the Supreme Court courts subordinate thereto. Appointments to and control and discipline of persons in the judicial service shall be made by and vested in the President. According to Article 152, the District Judge is at the apex of the judicial service which means a service comprising persons holding judicial posts.
5. Chapter III dealing with Administrative Tribunals— contains only one Article, Article 117, as follows:—
"117. (1) Notwithstanding anything hereinbefore contained, Parliament may by law establish one or more administrative tribunals to exercise jurisdiction in respect of matters relating to or arising out of—
(a) The terms and conditions of persons in the service of the Republic, including the matters provided for in Part IX and the award of penalties or punishments;
(b) the acquisition, administration, management and disposal of any property vested in or managed by the Government by or under any law, including the operation and management of, and service in any nationalised enterprise or statutory public authority;
(c) any law to which clause (3) of Article 102 applies.
(2) Where any administrative tribunal is established under this Article, no court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal:
Provided that parliament may, by law, provide for appeals from, or the review of, decisions of any such tribunal."
6. The Constitution of Bangladesh came into force on 16.12.72.
7. For 9 years, the Parliament did not pass any law establishing any administrative tribunal as envisaged in Article 117. As the exclusionary definition of 'person' in Article 102(5) did not come into force, the High Court Division exercised the power of judicial review over service matters for about 10 years until the passing of the Administrative Tribunals Act of 1980 (Act VII of 1981), shortly the Act, which came into effect on 1.2.82. The Act established not only an Administrative Tribunal (in respect of the terms and conditions of service including pension rights or of any action taken in relation, to a person in the service of the Republic or of any statutory local authority) but also an Administrative Appellate Tribunal (to hear and determine appeals from any order or decision of an Administrative Tribunal). Section 3(3) of the Act provides that "an Administrative Tribunal shall consist of one member who shall be appointed by the Government from any persons who are or have been District Judges" and section 3(4) provides that the member shall bold office on such terms and conditions as the Government may determine. The Administrative Appellate Tribunal shall consist of one Chairman who is, or has been, or is qualified to be a Judge of the Supreme Court or is or has been an Officer in the service of the Republic not below the rank of Additional Secretary to the Government, and two other members, one who is or has been an officer in the service of the Republic not below the rank of joint Secretary to the Government and the other a person who is or has been a District Judge. Their terms and conditions of service shall be determined by the Government. Section 6 (3) of the Act provided that the decision of the Administrative Appellate Tribunal in an appeal shall be final, which has been amended, to which I shall revert in the paragraph following next.
These appeals and introduction of section 6A to Act VII of 1981
8. These appeals were once heard by the Full Court of this Division on 18.6.90, 19.6.90, 20.6.90 and 21.6.90. The hearing was completed and the judgment was reserved. The then learned Attorney-General gave an assurance that in the light of what transpired during the hearing, the Government might think of providing the Supreme Court with a last say in service matters. We refrained from passing the judgment in view of the assurance.
9. On 22.7.91, when judgment stood reserved in these appeals, came Administrative Tribunals (Amendment) Act, 1991, Act No. XXIII of 1991. Section 6A was introduced to the Act, as follows:
"6A. Application of Article 103 of the Constitution. It is hereby declared that the provisions of Article 103 of the Constitution shall apply in relation to the Administrative Appellate Tribunal as they apply in relation to the High Court Division."
Shortly stated, the effect of the amendment is that persons aggrieved by the decision of the Administrative Appellate Tribunal can now prefer a petition for leave to appeal before the Appellate Division. Section 6(3) of the Act was also amended, so as to make the decision of the Administrative Appellate Tribunal, subject to section 6A, final.
10. The learned Counsels for the appellants still wanted us to proceed to judgment. The Full Court could not, as it was then constituted, proceed to judgment. So the four of us heard the appeals afresh for a number of days.
11. The massive arguments took on the shape of a broadside on the vires of the Administrative Tribunals Act, 1980, spear-headed by Syed Ishtiaq Ahmed, learned Counsel for the appellant in CA No. 35 of 1987. He was joined by MR. TH Khan and Dr. M Zahir, albeit on a limited ground, and it fell on the learned Additional Attorney‑ General and MT. Moinul Huq to resist the avalanche.
The Appellants’ submissions
12. Syed Ishtiaq Ahmed's first broad submission is that section 3(3) of the Act providing that the one‑member Administrative Tribunal shall be from among Persons who are or have been District Judges, is void, being in conflict with Article 117 and Part VI of the Constitution.
13. The gist of his argument is that prior to the establishment of the Administrative Tribunal, shortly the Tribunal, and even prior to the coming into force of the Constitution the High Court Division had the original plenary constitutional jurisdiction of judicial review under Article 102(1) and also appellate and revisional jurisdiction over the civil courts in service matters, culminating either in a right of appeal or in a right to prefer a petition for leave to appeal to the Appellate Division. All that jurisdiction is lost after about a decade by the establishment of the Tribunal. Section 13 of the Act denudes the civil courts and the Supreme Court even from the jurisdiction to try pending cases. The Tribunal now combines in itself the entire bundle of powers which the High Court Division and the civil courts enjoyed prior to its establishment, including the power to administer constitutional guarantees given to a person in the service of the Republic under Part IX of the Constitution. As the Constitution itself does not expressly state the status and qualification of the Tribunal's incumbents, those are to be deduced from both Article 117 and Part VI as its necessary intendment. The non‑obstante clause in Article 117(1)—"Notwithstanding anything hereinbefore contained" —enables the Parliament to establish one or more Tribunals which are not subordinate courts, but which are part of the "Judiciary" under Part VI. The Tribunals wield the judicial power of the state. The broad sweep of the Tribunal's jurisdiction in Article 117(1)(a), (b) and (c) is such that though not a substitute, it must at least be co‑ordinate to or equally effective as the High Court Division. As such, the Tribunal can only be composed of a person appointed in the same manner and entitled to the same security of tenure as the holder of the Superior Courts named in Chapter I of Part VI. The District Judge is the seniormost post in the judicial service which comprises of persons holding judicial posts and who do not enjoy the same security of tenure as Supreme Court Judges. By designating a District Judge as Chairman of a Tribunal section 3(3) of the Act in effect has established a court subordinate to the Supreme Court which the Parliament had no power to do. Section 3(3) of the Act is thus in conflict with Article 117 and Part VI of the Constitution and is accordingly void.
14. Mr. Ahmed's next submission is that section 5 of the Act establishing the Administrative Appellate Tribunal, shortly the Appellate Tribunal, is also void, being in conflict with Article 117 and Part VI of the Constitution.
15. His arguments are that Articles 102(5) and 117(2) of the Constitution attach a finality to the decision of the Tribunal and bar a judicial review. The proviso to Article 117(2) enables the Parliament to provide for appeal against the decision of the Tribunal and the raison d’etre of the proviso is that in its absence the Parliament could not have by ordinary law disturbed the finality of the Tribunal's decision. The expression "such Tribunal" in Article 117(2) leaves no room for doubt that it is referable to the Tribunal established under Article 117(1). Mr. Ahmed strongly disputes the opinion of the High Court Division that the power to provide for appeal includes also the power to create a forum for appeal. This inference has no basis in law or constitution, nor is there any such doctrine in legal or constitutional jurisprudence, he claims. The Appellate Tribunal is not a tribunal established under Article 117, but is one established under the plenary legislative power of the Parliament under Article 65. Such a tribunal can only be established under Article 114 as a Subordinate Court. Its decision cannot have finality as unamended section 6 of the Act sought to give it, and cannot remain immune from judicial review by the High Court Division under Article 102(1). Consistent with the finality of the Tribunal's decision and in the scheme of Part VI the only forum for Appeal under Article 117(2) can be the Supreme Court. There is no other option. It was redundant to expressly say so in the proviso itself. The enabling power to provide for appeal in Article 103(4) was not enough to disturb the finality of the decisions of the Tribunal. Hence the proviso, It is only when either Division of the Supreme Court is made the forum for appeal that the interpretation will be in full harmony with the manifest intention, deduced from Article 117 and Article 103(4).
16. The cases Mr. Ahmed cites and the replies of the learned Additional Attorney‑ General and Mr. Moinul Huq thereto will be adverted to in appropriate places, but as I reflect upon Mr, Ahmed's submissions, I find he has (a) challenged the vires of a statute on the ground of unconstitutionality (b) rested his arguments not on the ground of violation of a particular Article or Articles of the Constitution but on the manifest intention or necessary intendment of the Constitution to be derived from Part VI and Article 117, (c) urged that it is imperative to consider the pre‑existing legal and judicial order prevalent under the law and the Constitution, while determining the status and composition of the Tribunal, (d) argued by a strict interpretation of the words "provide for appeal" occurring in the proviso to Article 117(2) and submitted that the Supreme Court could be the only forum for appeal consistent with the finality of the Tribunal's decision and in the scheme of Part VI and that the Appellate Tribunal was created under the plenary legislative power of the Parliament as a subordinate court and hence its decisions are open to judicial review.
Presumption of validity of statutes
17. With regard to his challenge of the vires of sections 3(3) and 5 of the Act as at (a) above, it is a settled rule of construction of statutes that there is a presumption of validity of legislative statutes, The maxim Utres magis valeat quam pareat (it is better for a thing to have effect than to be made void) applies even more liberally in the case of a Constitution regard being had to the nature of the instrument. As Gwyer, CJ said in In re CP Motor Spirit Taxation Act, AIR 1939 (FC) 1,
"A Constitution of Government is a living and organic thing, which of all instruments has the greatest claim to be construed Utres magis valeat quam pareat."
When two constructions are possible, one invalidating a statute and the other upholding it, the Court is inclined to adopt that which will remove the statute furthest from constitutional infirmity (See State of Bihar Vs. Kameshwar Singh, AIR 1952 (SC 252, Chandra Mohan Vs. State of UP, AIR 1966 (SC) 1987, Johri Mal Vs. Director of Consolidation of Holdings, AIR 1967 (SC) 1958). I shall see later if upon a construction according to well ‑established principles of construction the vires of sections 3(3) and 5 of the Act can be preserved or not.
When and how to gather necessary intendment or manifest intention of a written constitution?
18. Now as to (b), (c) and (d) above, necessary intendment or manifest intention of a Constitution need not be gathered at all when the Constitution expresses itself in adequate words. When it is necessary to gather the necessary intendment or manifest intention, a Court of law will try to gather the same primarily from the language used which must be construed according to well‑ established rules of interpretation. If the language fails or is inadequate, then as a secondary source, matters outside the language used may be looked into to gather the necessary intendment or manifest intention of a written Constitution.
19. I have grave doubts if in the present appeals it is necessary to look into the intendments of the Constitution at all. Part VI affords a complete answer to the question raised by Mr. Ahmed. Part VI of the Constitution is about Judiciary. In Chapter I, a Supreme Court with two Divisions is established. The Judges are to possess a certain qualification and experience. They are given a security of tenure. Their respective jurisdictions are stated. In Chapter II, subordinate Courts are provided for. The members of & subordinate Judiciary are executive appointees under executive service discipline and they do not enjoy such security of tenure as are enjoyed by the Judges of the Supreme Court. Then in Chapter III there is a special grant of an enabling legislative power to the Parliament to establish one or more Administrative Tribunals to exercise jurisdiction over matters specified in clauses (a), (b) & (c) of Article 117(1). This grant of power is preceded by a non‑ obstante clause "Notwithstanding anything hereinbefore contained". It is clear that the non‑ obstante clause applies to all that preceded before in Part VI i.e., to the whole of Chapter I and Chapter II.
The effect of non‑obstante clause in Article 117(1)
20. The non‑obstante clause is to be given full force and effect. How to construe a non‑obstante clause?
"The proper way to construe a non‑obstante clause is first to ascertain the meaning of the enacting part of the section on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non‑obstante clause. "(Interpretation of Statutes, Bindhra, 6th Edition, p.949).
The learned Additional Attorney‑General has cited the case of Keshavananda Vs. Kerala, AIR 1973 (SC) 1461 (Paras-1521 and 1920) where the non‑obstante clause has been interpreted to mean 'not subject to other provisions of the Constitution' and also as 'emancipating the grant from the restrictive provisions'. This is another way of looking at the non‑obstante clause.
21. Chapter III, because of the non‑obstante clause, is liberated completely from Chapters I and II. In Chapter III, the Parliament was granted the legislative power to establish one or more Administrative Tribunals, not Courts. Chapter I and Chapter II of Part VI deal with settlement of disputes through Courts, Chapter III with administrative justice, i.e., settlement of disputes through the mechanism of administrative tribunals. A Tribunal has all the trappings of a Court, but it is not a Court proper. This Court observed the distinction between a Court and a Tribunal in the case of Bangladesh Vs. Zahangir Hossain, 34 DLR (AD) 173 (184) as follows:—
"It is also to be remembered that there is a distinction between a Court and a tribunal. The Court has a clear and distinct connotation whereas a tribunal assumes wide range of character. It may be a judicial tribunal or it may be a domestic tribunal and in between there are various ranges of adjudicating authority which are more often called administrative tribunals. But there is a common element, the authority may be judicial or administrative, but the authority is to decide either a dispute or an offence and it is to decide on fact and apply the rules to them, without considering executive policy."
Parliament has been absolved from the duty of setting up a court proper in Chapter III and that is an important point to remember.
Judicial Power of the State. where does it lie in our Constitution?
22. It has been argued that since an Administrative Tribunal has its habitat in the Constitution in the Part on Judiciary, it wields, like the Supreme Court and the subordinate Courts, the judicial power of the State. It has further been argued that a Tribunal has to be composed of a person who holds high constitutional judicial office, to prevent it from degeneration into a subordinate Court and its incumbent has to possess judicial independence in the form of security of tenure. I think that the non‑obstante clause in the beginning of Article 117 (1) excludes this interpretation. Also I think that it was necessary to expressly confer judicial power on the Administrative Tribunals. Article 65 of our Constitution vests the legislative powers of the Republic in the Parliament in express terms and Article 55(2), after the 12th Amendment, provides that "the executive power of the Republic shall, in accordance with this Constitution, be exercised by or on the authority of the Prime Minister". There is no express vesting of judicial power in the Judiciary in our Constitution. Lord Diplock, expressing the majority view in Hinds and others Vs. The Queen, (1976) 1 All ER 353, says,
"As respects the judicature, particularly if it is intended that the previously existing courts shall continue to function, the Constitution itself may even omit any express provision conferring judicial power on the judicature. Nevertheless, it is well established as a rule of construction applicable to constitutional instruments under which the governmental structure is adopted that the absence of express words to that effect does not prevent the legislative, the executive and the judicial powers of the now state being exercisable by the legislature, by the executive and by the judicature respectively." (Underlines are mine).
I respectfully agree with this rule of construction. If applied to our Constitution it produces a different result than that submitted by Mr. Ahmed. Our Constitution expressly provides in paragraph 6 of the Fourth Schedule the continuity of the incumbent Chief Justice and the Judges of the erstwhile High Court of Bangladesh in the new dispensation and the transfer of legal proceedings from the previous Courts to the two Divisions of the Supreme Court. Until the provisions of Chapter II of Part VI are implemented, the Constitution provides that the matters provided for therein shall be regulated in the manner in which they were regulated immediately before the commencement of the Constitution. Our Constitution, therefore, expressly intended that the previously existing superior Courts shall continue to function, albeit in a new dispensation, and the subordinate Courts too shall continue to function. Although the Constitution itself omitted to confer judicial power on the Supreme Court and the subordinate Courts by any express provision, there can be no doubt whatsoever that the Supreme Court and the subordinate Courts are the repository of judicial power of the State, because they have been previously existing and the Constitution allows them to function, although in a new form. But the Tribunals are not pre‑existing adjudicative machineries. They are a new creation. Mere placing them in the Part on Judiciary in the Constitution will not make them wielders of judicial power of the State. In their case, there must be an express conferment of judicial power, more so because they are not Courts, but tribunals. Since there is none in our Constitution, I hold that Administrative Tribunals do not exercise the judicial power of the State.
23. Consequently, the Parliament has relatively free hand in the selection of person/s for manning the Tribunals. The Chairman of Tribunals in England, under the Tribunals and Inquiries Act, 1971, are selected by the "appropriate authority" i.e., the Minister, from a panel of persons appointed by the Lord Chancellor. Members of panels hold and vacate office under the terms of the instruments under which they are appointed. The supremacy of Parliament and the rule of law are preserved by providing for appeals to the High Court from the decisions of some tribunals and by preserving the power of judicial review of the High Court in respect of others.
24. The cases, cited by Syed Ishtiaq Ahmed. Hinds and other Vs. The Queen, (1976) 1 All ER 353, Liyanage Vs. Reginam (1966)1 All ER 650 and the cases cited by Dr. Zahir, The Waterside Workers' Federation of Australia Vs. JW Alexander Ltd. (1918) 25 CLR 434 and Attorney General for Australia Vs. R and Boilermakers' Society of Australia, (1957) 2 ALL ER 45, are all cases where Courts, not tribunals, were established and those Courts exercised the judicial power of the State and their incumbents were appointed on terms less favourable than the Judges of the Superior Courts. There was no difficulty in holding therein that the method of appointment and the security of tenure of the incumbents thereof must conform to the requirements of the Constitution applicable to Judges exercising judicial power. That interpretation is unavailable in the present appeals. In our Constitution Chapter III does not empower the Parliament to establish Courts at all and the Tribunals do not exercise the judicial power of the State.
Pre‑existing legal and constitutional order
(a) Hind's Case and its applicability to our Constitution.
25. Hind's case (Supra) was also decided on the basis of pre‑existing legal and constitutional order and Mr. Ahmed's reliance on this case is also based on this ground. The Constitution of Jamaica came into effect on 25.7.62. Without amending the Constitution, the Jamaican Parliament passed the Gun Court Act, 1974, establishing, inter alia, a 'Full Court Division' of the Gun Court, comprising three resident magistrates who belong to the subordinate judiciary and who do not enjoy the same security of tenure as Judges of the Supreme Court and of the Court of Appeal. The jurisdiction conferred on a Full Court Division extended to all non‑capital firearm offences which were previously triable only on indictment before a Supreme Court Judge exercising the jurisdiction of a circuit court of the Supreme Court. This 'Full Court Division' was held to be unconstitutional by the Privy Council by a majority judgment in Hind's case (Supra) because the Jamaican Act without amending the Constitution transferred to a Court composed of members of lower judiciary jurisdiction which, at the time the Constitution came into force, was partly exercisable only by a Court composed of members of the higher judiciary. If the nature of the jurisdiction, not the mere form, is such that it was exercised by the members of the higher judiciary, then the method of appointment and security of tenure of the members of the new Court must conform to the entrenched provisions of the Constitution, the Privy Council held. After the judgment of the Privy Council, the Gun Court Act, 1974, was suitably amended, and the amendment was noticed valid by the Privy Council in a subsequent case, Stone Vs. The Queen, (1980) 3 All ER 148.
26. Hind's Case (Supra) may be considered in our situation if (a) in exercise of the enabling power under Article 114, a subordinate Court is established and (b) if the new subordinate Court is given even part of the jurisdiction which the High Court Division exercised on the date of coming into force of our Constitution.
27. Apparently, the Tribunals in our country have been constituted under vastly dissimilar circumstances. It is not the case here that the Constitution makes no provision for establishing Administrative Tribunals at all and the Parliament, without amending the Constitution, has set up a Tribunal in exercise of its plenary legislative power under Article 65 and vested in it some jurisdiction of the High Court Division. Hind's Case (Supra) on terms does not apply in our situation. Our own constitutional scheme militates against the ultimate decision in that case, although some of the views expressed therein may be of general acceptance, and in fact, I have no hesitation in accepting, with respect, quite a few of them.
(b) Administrative Tribunals and Judicial Review in India and Bangladesh.
28. I do not think that the Tribunals have been vested with the power of judicial review in our Constitution. What is "Judicial review" in our Constitution? It is the power of the High Court Division under Article 102 of the Constitution to issue certain orders, directions, etc. upon a person performing any function with the affairs of the Republic or of a local authority, While the right to move the High Court Division in accordance with Article 102(1) for the enforcement of the fundamental rights conferred by Part III is itself a fundamental right and is guaranteed by Article 44(1), the right of judicial review under Article 102(1) is neither a fundamental right nor a guaranteed one. And the right of judicial review is neither an all‑ weather remedy nor a remedy for all wrongs. It is available only when "no other equally efficacious remedy is provided by law". Delay will defeat this remedy. Directions etc. will ensue only from undisputed facts. Disputed questions of fact will not be entered into. It does not lie to enforce mere technicalities. It is not a substitute for money relief. Nor can all wrongs be remedied by judicial review. See Article 103(3) barring any interim or other order in relation to any law to which Article 47 applies. The laws referred to in Article 47 embrace a wide variety of property rights, professional, occupational, trade and business rights, almost all‑ embracing in sweep and depth. Some notice is to be given and some considerations need be given while passing an interim order in judicial review (Article 102(4)). Article 102(5) excludes from the purview of judicial review a Court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force (comparable, but not alike, to Articles 33 and 227(4) of the Indian Constitution) or a tribunal to which Article 117 applies. This power of judicial review, i.e., power to issue some directions etc. upon some persons, with all its attendant technicalities, was never conferred upon the Tribunals under clauses (a), (b) and (c) of Article 117 of our Constitution. This power is the exclusive preserve of the High Court Division under Article 102(1).
29. There was no provision originally in the Indian Constitution for exclusion of judicial review in service matters. In 1976 the 42nd amendment of the Indian Constitution took place, a new Part XIV A with the heading "Tribunals", after Part XIV, "Services under the Union and the States" was enacted, and the Parliament was given the enabling power by Article 323A to establish by low Administrative Tribunals in regard to civil servants which may "exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136" (petition for leave to appeal), Accordingly the Administrative Tribunals Act, 1985 was passed in India. The High Courts' power of judicial review under Articles 226 and 227 of the Constitution was excluded under section 25 thereof. The Indian Supreme Court therefore rightly tool; note of the pre‑existing legal and constitutional order and held in Sampath Kumar Vs. Union of India AIR 1987 (SC) 386 that this was a case where Parliament amended the Constitution and substituted in place of the High Courts as alternative institutional mechanism or arrangement for judicial review arid this new dispensation will not be violative of the basic structure doctrine if the new mechanism is no less effective than the High Court. The Administrative Tribunal was clearly found by the Supreme Court of India to be a substitute of High Courts in exercising the power of judicial review, in view of subsequent withdrawal from the High Courts their powers under Articles 226 and 227 of the Constitution. Accordingly, it was held that clause (c) of section 6(1) of the India Act providing that a Chairman of a Tribunal may be a Secretary to the Government of India or an equivalent post was struck down as invalid, as a Secretary has no legal or judicial experience, he will fail to inspire confidence in the Tribunal and it will be a much less effective and efficacious mechanism than the High Court. The Chairman may be, as provided in clause (a) of section 6, a person who is or has been a Judge of a High Court, but the Chairman, Vice‑ Chairman and members can he appointed by the Government only after consultation with the Chief Justice of India. These observations of the Supreme Court were given full effect to by the Administrative Tribunals (Amendment) Act, 1987.
30. Our situation is vastly dissimilar. Article 102(5) of the Constitution of 1972 originally excluded judicial review to a tribunal to which Article 117 applies' and original Article 117 enables Parliament by law to establish Administrative Tribunals to exercise jurisdictions mentioned in clauses (a), (b) and (c) thereof. If the Tribunals had been established contemporaneously with the commencement of the Constitution, could it be argued at all that the Tribunals took away the power of judicial review of the High Court Division? The fact that the High Court Division had been exercise power of judicial review over service matters for at least one decade is, as Mr. Moinul Huq aptly put it, situational. It was rightly contended by him that such situational or circumstantial arguments are impermissible in the interpretation of a written Constitution.
31. Syed Ishtiaq Ahmed submits that the bar of judicial review over service matters in our Constitution is not as absolute as that contained in Article 98 of the Constitution of Pakistan, 1962. If the Parliament does not legislate, the judicial review remains. If Tribunals are abolished judicial review reverts back to the High Court Division. The High Court Division, therefore, has the interest of a "reversionary legatee" as far as service matters are concerned. The Tribunal, therefore, has to be at least co‑ordinate to or as effective as the High Court Division, he submits. In my view, the argument does not hold good. It really does not matter whether the bar of judicial review over service matters in our Constitution is absolute or qualified. It is a bar nevertheless. The High Court Division's power of judicial review over service matters can at best be termed as '' ad hoc. It comes and goes, according as the Tribunal exists or not. Service matters, in the original scheme of our Constitution, do not have their normal, ordinary and permanent habitat in the power of judicial review of the High Court Division. Chapter III of Part VI of the Constitution builds a special habitat for them and in its absence or abolition; the judicial review remains only a tentative remedy. Chapter III of Part VI of the Constitution cannot be viewed as a sleeping volcano, erupting from time to time. The Administrative Tribunal has not stepped into the shoes of the High Court Division and it was not established at the cost of the High Court Division, as in India. The High Court Division did not lose anything which was constitutionally its own. The Administrative Tribunal is not exercising the jurisdiction of the High Court Division as its constitutional successor. It is exercising a jurisdiction of its own in its own right, not by taking away of the High Court's pre‑existing jurisdiction by a constitutional amendment. Its jurisdiction is laid down in the original Constitution itself. And it does not possess the power of judicial review at all. It has no powers analogous to Article 102 of the Constitution. The non‑obstante clause in the beginning of Article 117 emancipates the Parliament from the restrictions, if any, contained in the earlier Articles of Part VI. The Parliament is not fettered in its choice of persons to man the Administrative Tribunal. It is emancipated from all considerations which limit the choice of Judges of the Supreme Court to persons of a certain qualification and experience. The Parliament is also not obliged to provide the incumbent with a security of tenure. Its hands have been released from the binding knots of Articles 94 to Article 116A and it has to act without the compulsion of establishing either a substitute High Court Division or a body co‑ordinate to or as effective as the High Court Division. Chapter III is supplemental to Chapters I and II, unlike Article 323A of the Indian Constitution which is a substitute of Articles 226 and 227. The Parliament is required to create a body supplemental to the Supreme Court and the subordinate Courts and unless its choice of personnel is devoid of all rationale or is wholly unsuited to a judicial dispute‑ resolving mechanism, the Court will not interfere. Section 3(3) of the Act providing for nomination of those who are or have been District Judges as Chairman of the Administrative Tribunal can hardly be questioned. A great majority of cases involving service matters originated not in judicial review but in suits. The Tribunal's basic function is to deal with matters in the nature of suits. It was, therefore, necessary to choose someone with a trial experience to preside over these Tribunals. A District Judge is eminently suited to discharge this function. He will be the judge of facts, whether disputed or undisputed, and of law. By his nomination, no subordinate Court has been created, as urged, and the case of AKM Ruhul Amin vs. District Judge, 38 DLR (AD) 271 is no authority on Administrative Tribunal matters. The Tribunal will, of course, administer the constitutional guarantees given to a person in the service of the Republic in Part IX of the Constitution, but that power had always been exercised by the civil courts and it cannot be said that a District Judge is unsuitable to exercise that power. We would have looked askance at the Tribunal if a Secretary to the Government or a holder of an administrative post would have been appointed as its Chairman, for he is eminently unsuitable to discharge a judicial dispute‑ resolving function and there would have been no public confidence on the Tribunal if such a provision was there, but the choice of a District Judge cannot be taken exception to on the ground that he had never exercised the power of judicial review, because judicial review as provided in Article 102 of our Constitution, is not his function. There is thus no unconstitutionality in section 3(3) of the Act.
"Provide for appeals" include creation of appellate forum, (a) Rule of strict interpretation, ordinary law and constitutional provisions interpreted differently.
32. The proviso to Article 117(2) says that "Parliament may, by law, provide for appeals from, or the review of, decisions of any such tribunal" and it has been urged that the words "Provide for appeals" do not embrace the power to create a forum for appeal. In other words, we have been urged to interpret a constitutional provision strictly.
33. The principle of strict construction of ordinary law, especially of a penal and statute law has no application to the interpretation of a written Constitution. In Hind's Case (Supra) Lord Diplock states the rule as follows:
"To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal and civil law would, in their Lordships' view, be misleading particularly those applicable to taxing statutes as to which it is a well‑ established principle that express words are needed to impose a charge on the subject." (P. 360)
(b) Grant of legislative power, widest meaning to be attached.
34. In the case of ordinary law there is a presumption that the legislature does not intend that what it has not clearly expressed. No such presumption applies to a grant of legislative power by a written Constitution. Where there is a grant of legislative power by the Constitution the widest meaning must be given to the words used. To do otherwise will be to define and delimit the words which the Constitution has not defined or delimited. In the High Court of Australia case of Bank of New South Wales Vs. Commonwealth of Australia,(1948) 76 CLR 1 Dixon, J has discussed this principle with reference to Australian and American Constitutions in such lucid details that I cannot resist the temptation of quoting it at some length:—
"To my mind the argument is answered by the principles of constitutional interpretation which this Court adopted early in its history and from which, I believe, it has never intentionally departed.
They are well expressed in a passage from the judgment of O'Connor J in the Jumbunna Coal Mine, No Liability Vs. Victorian Coal Miners' Association, (1908) 6 CLR 309 (367, 368), which I shall quote :— "Where it becomes a question of construing words used in conferring a power of that kind on the Commonwealth Parliament, it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community Must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should, in my opinion, always lean to the broader interpretation unless there is something in context or in the rest of the Constitution indicate that the narrower interpretation will best carry out its object and purpose.’’
The foundation of these principles is expressed by Higgins J. in Attorney‑ General for New South Wales Vs. Brewery Employees Union of New South Wales (1908) 6 CLR 469 (611), where he says, "although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that wean interpreting—to remember that is a Constitution. a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be," His Honour proceeds to quote from Story, Commentaries, 2nd ed., s.455 : "While, then, we may well resort to the meaning of single words to assist our inquiries, we should never forget. that it is an instrument of government that we are to construe.”
The purpose of the enumeration of powers in S.51 is not to define or delimit the description of law that the Parliament may make upon any of the subjects assigned to it. Speaking generally, the legislative power so given is plenary in its quality. The purpose of the enumeration is to name a subject for the purpose of assigning it to that power. The names or descriptions employed are usually of the briefest kind...................
To borrow the words of Gray J. delivering the opinion of the Supreme Court in Juilliard Vs. Greenman, 28 Law Ed. 204 (211),:-
‘‘the Constitution…….. by apt words of designation or general description, marks the outlines of the powers granted to the National Legislature: but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of those powers, or to specify all the means by which they may be carried into execution." (Underlines are mine) pp. 332‑333
35. The grant of legislative power in the proviso to Article 117(2) is plenary in nature. Anyone denying a particular power, or alleging a limitation on a power, must show that the power does not exist or the Constitution expressly or by necessary implications limits the power. There can be no presumption by a Court of a limited grant of jurisdiction of the Congress has received its full legislative power, because to limit the grant of amplitude by a plethora of decisions of US Supreme legislative power is a constituent and not a judicial Court by the application of the doctrine of implied function. Lord Selbourne's famous dictum in Queen Vs .Burah, (1878) 3 AC 889 (904) in the Privy Council is now a legend:
‘‘The Indian legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessary determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation. within the general scope the affirmative words which give the power. and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further. or to enlarge constructively those conditions and restrictions," (Underlines are mine)
The soundness of the above dictum has not been doubted by the Privy Council in any of its subsequent decisions and it has been accepted by the majority of the Indian Supreme Court in Kashawanda Vs. Kerala, AIR 1973 (SC) 1461.
(c) The doctrine of implied powers
36. In the interpretation of a Constitution, a doctrine called the doctrine of implied powers can be invoked where without the said power the material provision of the Constitution would become impossible of enforcement. Only 17 entries are there in the US Constitution granting specific powers of legislation to the US Congress. The legislative jurisdiction of the congress has received its full amplitude by a plethora of doctrine of implied powers decision of US Supreme Court has amplified this doctrine in Bidi, Bidi Leaves and Tobacco Merchants' Association Vs. Bombay State, AIR 1962 (SC) 486 (at para 20) as follows :
(20) "One of the first principles of law with regard to the effect of an enabling act", observes Craies, "is that a Legislature enables something to be done, it gives power at the same time by necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view" (Craies on Statute Law, p.239). The principle on which this doctrine is based is contained in the legal maxim "Quando lex aliquid concedit concedere videtur ut illid sane quo res ipsa ease non potest’’. This maxim has been translated by Broom thus: "whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect." Dealing with this doctrine Pollock, CB, observed in Fenton vs. Hampton, (1858) 117 RR 32 at p. 41: 11 Moo PC 347 "it becomes, therefore, all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bestow, I take the matter to stand thus Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment." This doctrine can be invoked in cases “where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution'. (Maxwell on interpretation of Statutes, 10th Edn., p.361). In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is ' further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental power is assumed to exist. In such a case, in the absence of an implied power the statute itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead‑letter and cannot be implied.
(d) The doctrine of incidental and ancillary powers.
37. There is also a doctrine called the doctrine of incidental and ancillary powers. Some Constitutions specifically give their Parliaments the power of incidental legislation. Thus clause 16 of Article 1 section 8 of the US Constitution empowers the Congress to make law which shall be necessary and proper for causing into execution the power given in 17 entries. Article 323 (2) (g) of the Indian Constitution while granting power to the Parliament to legislate on the establishment of Administrative Tribunals, expressly gave the following power:
323(2)(g). "Contain such supplemental incidental and consequential provisions (including provisions as to fees) as Parliament my deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals."
Similar provisions are there in Article 323 B (2) (f). But even in those cases where the Constitution does not specifically vest incidental and ancillary power in the Parliament, the Parliament must of necessity be deemed to possess inherent incidental and ancillary powers to make the legislation with respect to enumerated powers effective and functional. These powers are termed in the United States as "necessary and proper", in Australia as powers "incidental to the execution" of that power. The rule is based on the principle that in interpreting a Constitution or organic statute, the construction which is most beneficial to the widest amplitude of its powers must be adopted. As Lord Loreburn said in the case of Attorney‑General for Ontario Vs. Attorney General for Canada, 1921 AC 571 (583),:
"Again, if the text says nothing expressly, then it is not to be presumed that Constitution withholds the power altogether, On the contrary it is to be taken for granted that the power is bestowed in some quarter unless it be extraneous to the statute itself (……) or otherwise is clearly repugnant to its sense.’’
38. The cases in which these two doctrines have been applied are far too numerous to mention, but the bulk of application in India, USA and Australia has taken place while interpreting the Federal and State lists.
39. The fact that the proviso to Article 117(2) enables the Parliament to "provide for appeals", does not mean that the Constitution withholds the power to create an appellate forum under this proviso altogether. Quite contrarily, the power is bestowed in Article 117(2) itself. It is not extraneous to the Constitution nor is it repugnant to its sense. A provision for appeal will be impossible of enforcement without creating a forum for appeal. The power to create a forum for appeal is inherently incidental and ancillary to the power to provide for an appeal. Both the doctrines of implied power and of incidental and ancillary powers are attracted to the case. There can be no doubt that the proviso to Article 117(2) is impliedly and inherently a grant of legislative power to create an appellate forum.
Appeal can be an appeal to an appellate Tribunal, meaning of proviso,
40. I find it to be absolutely unacceptable that the only forum for appeal in the scheme of Part VI can be to the Supreme Court. This conclusion militates against the very language of Article 117(2). The plain meaning of that Article is that when any tribunal is established under Article 117, there will be a bar of jurisdiction of three kinds, (a) institutionwise the bar is against a Court (meaning any Court of law including Supreme Court), (b) actionwise no proceedings can be entertained and no order can be made and (c) subjectmatterwise, the bar is in respect of any matter falling within the Jurisdiction of the Tribunal, i.e., those mentioned in clauses (a), (b) and (c) of Article 117. There is also an assumption in Article 117(2), namely, with all the three kinds of bar operating, the decision of the Tribunal is final. A proviso is traditionally an exception to the main clause. So, if an appellate forum is created the three kinds of bar will not be operative and the assumption of finality mentioned above will also not be there. There is nothing in Article 117 as a whole to suggest that the appellate forum cannot be another Tribunal at all, that it must be either Division of the Supreme Court. On the contrary, the proviso gives the Parliament a choice. It can establish either an Appellate Court or an Appellate Tribunal. The effect of the proviso is that when it establishes an appellate forum, all the three kinds of bar and the assumption of the main clause will cease to apply to the appellate forum. That is the plain meaning of the proviso.
41. There was thus no compelling constitutional requirement that an appellate forum must of necessity be either Division of the Supreme Court. The Parliament could not possibly have provided for a first appeal to the Appellate Division, because under Article 103(2) of the Constitution a right of appeal lies to the Appellate Division only on three specified matters and if persons in the service of the Republic were given by a statute an automatic right of appeal to the Appellate Division both on facts and law they would have enjoyed a right not even constitutionally enjoyed by other litigants. An appeal to the High Court Division on both facts and law would have meant an unwelcome addition to the High Court Division's stockpile of cases from which Articles 102(5) and 117(2) devised riddance. Shedding a lighter burden of judicial review and then overburdening the High Court Division with appeal on facts and law would have been a curious intention of the Constitution indeed. Administrative Tribunals have been established all over the common law countries primarily to relieve the High Courts from the congestion of cases. As for finality of the decision of the Tribunal. I have indicated above that the proviso to Article 117(2) relieves the Tribunal from the assumption of finality and attaches the finality to the appellate forum, be it a Court or a Tribunal. The unamended section 6(3) of the Act was constitutionally sound.
No writ against the decision of Appellate Tribunal,
42. It is, therefore, clear that the power to create an appellate forum can be found from the proviso to Article 117(2) itself and that the Supreme Court was not the only appellate forum intended to be established by Part VI of the Constitution. The appellate Tribunal was validly established by the Parliament in exercise of the special grant of legislative power under the proviso to Article 117(2) and section 5 of the Act is not ultra vires the Constitution. Consequently, the bar of Article 102 (5) applies to Appellate Tribunal, because it is "a tribunal to which Article 117 applies."
I share the lamentation and reiterate‑the Supreme Court is the ultimate in the pronouncement of law.
43. It was lamented from the bar that outside the framework of the Supreme Court, the highest judiciary of the country, the entire bundle of Service Jurisprudence has been parceled out between the Tribunal and the Appellate Tribunal. Before, 1‑2‑82, when the Act came into operation, the Superior Courts of undivided India, later Pakistan and Bangladesh, developed an impressive bunch of case‑laws on that branch of law and now nobody knows how the law is developing in the hands of the Tribunal and the Appellate Tribunal. It was forcefully argued that in our scheme of the Constitution, the ultimate law on any matter must come from one source, i.e., the Supreme Court which is the repository of judicial power of the State. It is only the Supreme Court which is constitutionally vested with the jurisdiction of pronouncing upon the ultimate law on any subject, it has been submitted.
44. I share the lamentation. But I think that the Constitution was not unmindful of it. In the proviso to Article 117(2), the Constitution provided that "Parliament may, by law, provide for appeals from, or the review of, decisions of any such tribunal". Note the use of the words "appeals" and "decisions" in plural and the use of the word ‘‘review" in singular and note also that the said words do not refer to a plurality of tribunals, but to "any such tribunal" i.e., to a single tribunal. These words, in my opinion, enable the Parliament to provide by law for more than one appeal from and for one review only of decisions of a Tribunal. This is now' provided by section 6 A of the Act and that answers the correct submission from the Bar that if there is to be an ultimate in the pronouncement of law, that can only be vested in the Supreme Court which exercises the judicial power of the State.
45. I concur again with the decision of my learned brother, MH Rahman J.