Shaikh Mustainul Haque Vs. Inspector General of Police and others

Case No: Civil Appeal No.85 of 1993

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Md. Awlad Ali,M Shamsul Alam ,,

Citation: 47 DLR (AD) (1995) 157

Case Year: 1995

Appellant: Shaikh Mustainul Haque

Respondent: Inspector General of Police and others

Subject: Administrative Law,

Delivery Date: 1995-6-14

Shaikh Mustainul Haque

Vs.

 Inspector General of Police and others, 1995,

 47 DLR (AD) (1995) 157

 
Supreme Court
Appellate Division
(Civil)
 
Present:       
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J   
Muhammad Abdur Rouf J
Mohammad Ismailuddin Sarker J
 
Shaikh Mustainul Haque.......................................Petitioner‑Appellant

Vs.

Inspector General of Police and others...................Respondents*
 
Judgment
June 14th, 1995.

Administrative Tribunal Act (VII of 1981)
Section 4(2)

Police Officers (Special Provisions) Ordinance (LXXXIV of 1976)
Section 7A
The Administrative Appellate Tribunal was therefore patently wrong in holding that the limitation could not be counted from 14.9.1989 when the Secretary, Ministry of Home Affairs rejected the appellant’s application preferred against the appellate order passed by the Inspector General of Police on 21.10.1988. It seems that the Appellate Tribunal being unaware of the aforesaid Ordinances and under some misconception of the provisos above committed error in deciding the point of limitation.
 
Lawyers Involved:
Awlad Ali, Advocate, instructed by Md. Sajjadul Huq, Advocate‑on‑Record ‑ For the Petitioners.
M Shamsul Alam, Deputy Attorney General, instructed by Md. Nawab Ali, Advocate‑on‑Record‑For the Respondents.

Civil Appeal No.85 of 1993.
(From judgment and order dated 28th February, 1993 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.62 of 1993).
 
Judgment:
                  ATM Afzal CJ: This appeal by leave is from judgment and order dated 28 February, 1993 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.62 of 1992 setting aside those dated 11 August 1992 passed by the Administrative Tribunal, Dhaka in AT Case No. 328 of 1989.

2. Appellant, a Sub‑Inspector of Police, while on leave preparatory to retirement was dismissed from service, following a departmental enquiry, by order dated 2.8.1988 passed by the Deputy Inspector General of Police. Khu1na Range, respondent No.3. He filed an appeal against the said order of dismissal which was dismissed by the Inspector General of Police, respondent No. 1 by order dated 21 October 1988. The appellant then filed an application on 1.11.1988 to the Secretary, Ministry of Home Affairs, respondent No.2 but it was rejected by an order dated 14.9.1989 and within 6 months thereof the appellant filed a case. No.328 of 1989, before the Administrative Tribunal. Dhaka under section 4 (1) of the Administrative Tribunal Act 1980, briefly, the Act, impugning the said order of dismissal.

3. The Tribunal after hearing the parties allowed the case and set aside the order of dismissal by its judgment and order dated 11.8.1992 holding, inter alia, relying on the case of SA Ali vs. Secretary Establishment reported in 31 DLR (AD) 256, that the appellant having already gone on LPR he was no longer in the service of the Republic and, as such, the impugned proceeding could not be drawn up against him legally. He was found entitled to all pensionary benefits under the Rules.

4. An appeal, being No.62 of 1992, was taken by respondent No. 1 against the said judgment and order and the Administrative Appellate Tribunal, as already noticed, set them aside by the impugned judgment and order only on the ground that the case before the Tribunal was itself barred by limitation in that it was not filed within 6 months from the appellate order (21.10.1988) observing further that under section 4(2) of the Act only one appeal is provided.

5. Leave was granted to consider the submission that the Administrative Appellate Tribunal was wrong in counting the period of limitation from the date of the appellate order (21.10.1988) and not from the date (14.9.1989) when the Government rejected the application of the appellant being under a misconception of the provisions of section 4(2) of the Act and further being unaware of the provisions of the Police Officers (Special Provisions) Ordinance
1976 (Ordinance No.LXXXIV of 1976) as amended by the Public Officers (Special Provisions) Ordinance, 1982 (Ordinance No.XXII of 1982).

6. It is not disputed that the appellant filed his case before the Administrative Tribunal on 28.11.1989, that is, within 6 months from the order of the Government dated 14.9.1989.

7. Mr. Awlad Ali, learned Advocate for the Appellant, produced the aforesaid Ordinances from which it appears that under section 7 of the Ordinance of 1976 an appeal is provided against an order of punishment imposed under section 6. It is not disputed that in the present case an appeal lay to the Inspector General of Police which was dismissed by order dated 21.10.1988. The Ordinance as amended in 1982 by section 4 provides as follows:
             "4. Insertion of new section 7A Ord. LXXXIV of 1976‑In the said Ordinance, after section 7, the following new section shall be inserted, namely:
            "7A. Revision and review—Notwithstan­ding anything contained in section 7, the Government may, upon an application made to it by an aggrieved police‑officer or on its own motion, within one month from the date of making of a decision by an appellate authority under that section.
              (a) revise such decision, if made by an appellate authority other than the Government.
             (b) review such decision if made by it as an appellate authority."

8. From the aforesaid provision it is clear that the appellant was entitled to file a revision to the Government against the appellate order within one month thereof which he had actually done on 1. 11. 1988. Admittedly the Government rejected his prayer by order dated 14.9.1989 and within 6 months thereof he filed an application under section 4(l) of the Act before the Tribunal.

9. The two provisos under section 4(2) of the Act read as follows:
          "Provided that no application in respect of an order, decision or action which can be set aside, varied or modified by a higher administrative authority under any law for the time being in force relating to the terms and conditions of the service of the Republic or the discipline of that service can be made to the Administrative Tribunal until such higher authority has taken a decision on the matter.
            Provided further that no such application shall be entertained by the Administrative Tribunal unless it is made within six months from the date of making or taking of the order, decision or action concerned or making of the decision on the matter by the higher administrative authority, as the case may be".

10. The Appellate Tribunal clearly misread the aforesaid provisions in holding that section 4(2) of the Act envisages only one appeal to the higher administrative authority and thus misled itself in holding further that the appellant having filed a second appeal to the Government which was dismissed on 14.9.1989, the relevant date for counting limitation would be 21.10.1988 when the Inspector General of Police dismissed the appeal and not from the date when the Government dismissed, the appeal on 14.9.1989.

11. In the first place, the provisos do not specifically mention about any appeal but only provides that no application can be made to the Administrative Tribunal "until such higher authority has taken a decision on the matter" and an application shall not be entertained by the Administrative Tribunal if it is not made within 6 months from the date of "making of the decision on the matter by the higher administrative authority".

12. There are different provisions under different laws under which an order, decision, etc. may be set aside, varied or modified by a higher administrative authority and an application to the Administrative Tribunal cannot be made so long such higher authority has not taken a decision on the matter. In the present case not only an appeal is provided under section 7 of the Ordinance of 1976 but also a revision from the appellate order lies to the Government under section 7A of the Ordinance as amended in 1982. Therefore the appellant could not go to the Tribunal unless the Government took a decision in the matter which was evidently in the exercise of its revisional power under section 7A. The Administrative Appellate Tribunal was therefore patently wrong in holding that the limitation could not be counted from 14.9.1989 when the Secretary, Ministry of Home Affairs rejected the appellant's application preferred against the appellate order passed by the Inspector General of Police on 21.10.1988. It seems that the Appellate Tribunal being unaware of the aforesaid Ordinances and under some misconception of the provisos above committed error in deciding the point of limitation.

13. Mr. M Shamsul Alam, learned Deputy Attorney‑General appearing for the respondents, conceded that the view taken by the Appellate Tribunal as to limitation cannot be supported. He, however, prayed that the matter be sent on remand to the Appellate Tribunal for hearing on the merit.

14. It has been found out during the submission of the learned Deputy Attorney‑General that no concise statement has been filed on behalf of the respondents although it is an old appeal. Under the Rules, therefore, the respondents cannot be heard. Neither the concession made by the learned Deputy Attorney General nor his prayer for remand can thus be entertained and considered. There is nothing before us to show that the respondents pressed their appeal also on the merit. It was decided only on the ground of limitation which was taken as the only point for determination. Respondents have been negligent in not taking any step in this appeal before us for rehearing of the appeal in the Appellate Tribunal, if they so wanted.
           In the circumstances of the case and for the reasons stated, we shall only allow this appeal without any further order. No costs. The impugned judgment and order are set aside and those of the Administrative Tribunal are restored.

Ed.