Effectiveness of Administrative Tribunal in Bangladesh

- Md. Nayem Alimul Hyder

lawadmintribunal

Published On - February 6, 2015 [Vol. 2, Jan - Jun, 2015]

It is not possible to define the word ‘tribunal’ precisely and scientifically. The word ‘Tribunal’ is derived from the word ‘tribune’. Dictionary meaning of the word ‘tribune’ is a magistrate of Republican Period of Rome elected by the Roman Plebeians to defend their right, a champion of popular rights, a name for a newspaper, a platform for speaking from, a raised area for stand, bishop’s stall or throne. Tribunal judgment seat, Court of justice of arbitration, a body appointed to adjudicate in some matters. In common parlance dictionary meaning of the word ‘tribunal’ is ‘Court of justice’ or ‘seat of a Judge’.Tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes – whether or not it is called a tribunal in its title. For example, an advocate appearing before a Court on which a single Judge was sitting could describe that judge as ‘their tribunal’. Many governmental bodies that are titled ‘tribunals’ are so described to emphasize the fact that they are not courts of normal jurisdiction. For example the International Criminal Tribunal for Rwanda is a body specially constituted under international law, in Great Britain, Employment Tribunals are bodies set up to hear specific employment disputes. Private judicial bodies are also often styled ‘tribunals’. The word ‘tribunal’ is not conclusive of a body’s function.

The word ‘tribunal’ has not been defined in the Constitution of Bangladesh or in relevant laws. In ordinary sense, it can be said that a tribunal means a body with judicial or quasi-judicial functions set up statutes, and existing outside the usual judicial hierarchy of the Supreme Court. The tribunal as distinguished from the Court, exercises judicial power and decides matters brought before it judicially or quasi-judicially but it does not constitute a Court in the technical sense.The expression ‘tribunal’ as used in Article 102(5) of the Constitution of the People’s Republic of Bangladesh does not mean the same thing as “Court” but includes, within the ambit all adjudicating bodies, provided they are constituted by the state and are invested with judicial as distinguished purely from administrative or executive functions. In the case of Bangladesh vs. A. K. M. Jahangir Hossain, after applying the principle of “ejusdem generic” the Appellate Division held that the “Court” acts judicially and “tribunal” also acts judicially or at least quasi-judicially. A tribunal is a judicial assembly, a judicial authority within the ambit of Section 74(1) (ii) of the Evidence Act, 1872.

Administrative Tribunal and Bangladesh Constitution:

A Government Servant during the British rule in India held the office during the pleasure of the Crown. It was for the first time in 1919 certain constitutional protections were provided for the Government servants by the insertion of section 96B in the Government of India Act, 1915. This section was incorporated in the Government of India Act, 1935 and in the Pakistan Constitution. During the adoption of Bangladesh Constitution, 1972, the framers of the Constitution included the provision in Article 117.

Article 117(1) of Bangladesh Constitution, 1972 empowers the Parliament to establish one or more Administrative Tribunals against whose decisions no writ will lie in view of the provision of Article 102(5).

Such tribunals may be established to deal with matters relating to-

(a) The terms and conditions of persons in the service of the Republic including matters provided for in Part IX and award of penalties or punishment,

(b) the acquisition, administration, management and disposal of any property vested in or managed by the govt. by any law, including the operation and management of, and services in any nationalized enterprise or statutory public authority,.

(c) any law to which article 102 (3) applies.

Article 102 (3) of the Constitution of Bangladesh, 1972 provides that notwithstanding anything contained in article 102 (1) and article 102 (2), the High Court Division shall have no power under this article to pass any interim or other order in relation to any law to which article 47 applies.

Article 47(1) provides that no law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part-

(a) The compulsory acquisition, nationalization or requisition of any property, or the control or management thereof whether temporarily or permanently,

(b) the compulsory amalgamation of bodies carrying on commercial or other undertakings,
(c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein,

(d) the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil,

(e) the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons, or

(f) the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking,

if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution.

Article 47(2) provides that notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution,

Provided that nothing in this article shall prevent amendment, modification or repeal of any such law.

Article 47(2) provides that notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defence or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution. ‘Court’ as defined in Article 152 includes Supreme Court and hence the HCD cannot entertain any writ petition in respect of any matter falling within the jurisdiction of an Administrative Tribunal. So, it is clear that the Supreme Court shall not entertain any proceedings or make any matter falling within the jurisdiction of an Administrative Tribunal.

But the HCD sometimes entertains writ petition on the ground that the remedy provided by the Administrative Tribunal is not efficacious, in Abdul AwalMunshi vs. B. IV. D. Board, it is submitted that when the HCD has jurisdiction it may refuse to exercise that on the ground of non-exhaustion of efficacious remedy. But when the HCD’s jurisdiction is ousted by the Constitution then it cannot apply it except on the ground of violation of fundamental rights.

No proceedings, order or decision of a tribunal shall be liable to be challenged, reviewed, quashed and called in question in any Court. The decision of the Appellate Tribunal like that of the Tribunal is immune from any review under Article 102 because Article 117 also applies to the Appellate Tribunal.

In case of Mujibur Rahman vs. Bangladesh, the question arose whether a writ petition would be maintainable against the decision of the Administrative Appellate Tribunal. The combined effect of art.102 (5) and art.117 (2) is that no writ petition is maintainable against the decision of Administrative Tribunal. The Constitution is silent about the Administrative Appellate Tribunal. Again, when what is challenged is not the service rule, but administrative interpretation of a service rule, writ petition is not maintainable.

The Distinctions between Administrative Tribunal and Court:

There are many similarities between an Administrative Tribunal and a Court in certain aspects. We get the truth behind the statement in an English Case i.e. Pickering vs. Liverpool Daily Post and Echo Newspaper, Both of the Administrative Tribunal and Court are constituted by the state, invested with judicial powers and have a permanent existence. Thus, they are adjudicating bodies. In Associated Cement Companies Ltd. vs. P.N. Sharma, the Indian Supreme Court held that the basic and fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial functions and exercise judicial power vested to them by a sovereign state. If the precise decision between tribunals and Courts is a matter of uncertainty, what is certain is that tribunals are inferior to the normal Courts. However, the distinctions between these two are comprehensively laid down by C.K. Takwani as follows:

1. A Court of law is a part of the traditional judicial system. A Tribunal is a body created by a statute and invested with judicial powers. Primarily and essentially it is a part and parcel of the Executive Branch of the state, exercising executive and judicial functions. As Lord Greene states Administrative Tribunal perform “hybrid functions”.

2. Judges of the ordinary Courts of law are independent of the executive in respect of their tenure, terms and conditions of their services. On the other hand, members of administrative tribunal are entirely in the hands of the Govt. in respect of same.

3. In a Court of law, the presiding officer, i.e. the judge is trained in law but the member of tribunal may not be trained in law as well.

4. In a Court of law, the judges must be an impartial arbiter and he cannot decide a matter in which he is interested. But a member of the Administrative Tribunal may be party to the dispute to be decided by it.

5. A Court of law is bound by all the rules of evidence and procedure but not Administrative Tribunal unless the statute imposes such an obligation.

6. While the court of law is bound by precedents, principles of resjudicata and estopple, an administrative tribunal is not strictly bound by them.

7. A Court can decide the “vires” i.e. the power and authority etc. of legislation while an Administrative Tribunal cannot do so.

8. A Court must decide all the questions objectively on the basis of evidence and materials produced before it. But an Administrative Tribunal may decide the questions taking into account the departmental policy or expediency and in that sense, the decision may be subjective rather than objective.

The Purpose of Establishment of Administrative Tribunals in Bangladesh:

The Administrative tribunals were established in Bangladesh to exercise jurisdiction in respect of matters relating to or arising out of the terms and conditions of persons in the services of the Republic or of any statutory public authority. The Schedule to the Administrative Tribunals Act, 1980 (Act No. VII of 1981) includes the following bodies as the statutory public authority-

(a) Sonali Bank, Agrani Bank and Janata Bank constituted under the
Bangladesh Banks (Nationalisation) Order, 1972.

(b) Bangladesh Bank established under the Bangladesh Bank Order, 1972.

(c) Bangladesh ShilpaRinSangstha established under the Bangladesh Shilpa Ritz Sangstha Order, 1972.

(d) Bangladesh Shilpa Bank established under the Bangladesh Shilpa Bank Order, 1972.

(e) Bangladesh House Building Finance Corporation established under the Bangladesh House Building Finance Corporation Order, 1973.

(f) Bangladesh Krishi Bank established under the Bangladesh Krishi Bank Order, 1973.

(g) Investment Corporation of Bangladesh established under the Investment Corporation of Bangladesh Ordinance, 1976.

(h) Grameen Bank established under the Grameen Bank Ordinance, 1983.

Administrative Tribunals are creation of the Constitution. For deciding any dispute arising out of the terms and conditions of their service, the judicial officers shall be amenable to the jurisdiction of the Administrative Tribunal.

Jurisdiction of the Administrative Tribunal:

The Administrative Tribunal has the exclusive jurisdiction to hear and determine applications made by a person in the service of the ‘Republic or of any statutory public authority in respect of the terms and conditions of his service. So, the Administrative Tribunal has no jurisdiction to entertain any application filed by a person who is or who has not been in the service of the Republic or of any statutory authority specified in the schedule to the Act.In the case of QuaziNazrul Islam Vs. Bangladesh House Building Finance Corporation, it was held that the Administrative Tribunal and the Administrative Appellate Tribunal has been established with limited jurisdictions and limited power. The Tribunal gratuitously granting relief acts in excess of its jurisdiction.

The person affected by the decision of the higher authority must make an application before the higher authority. After having the decision of the higher administrative authority under any law enforced for the time being any person aggrieved may make an application to the Administrative Tribunal within six months of the decision of the higher authority. It should be borne in mind that the person making such application shall wait for only two months for the decision of the higher authority. If he does not get the decision within two months then he may go to the Administrative Tribunal. In the case of Abul Bashar Vs. Investment Corporation of Bangladesh and another, it was held that the petitioner cannot have the benefit of section 14 of the Limitation Act while computing the period of limitation in filing application before the Administrative Tribunal.

In case of dismissal, the financial benefit during the period of dismissal cannot be claimed as a matter of right when such dismissal is set aside on the procedural defect as to show cause notice. Question of payment of subsistence to the government servant during suspension, relates to terms and conditions of service within the jurisdiction of the Administrative Tribunal The remedy against the orders to transfer lies before the Administrative Tribunal and not under Article 102 of the Constitution.

In the case of DGM, Rupali Bank vs. Shah Jalal, it was held that the Tribunal shall have no power to entertain an application unless it is filed within six months of the impugned order. In the instant suit the impugned order was made 4 years earlier than the date of incorporation of the petitioner bank in the schedule to the Act. Consequently the cause is beyond the jurisdiction of the Tribunal. That being so, the suit does not come within the mischief of Article 117.For legal remedies in service matters civilian employees in Defense Services can well invoke the jurisdiction of the Administrative Tribunal.

In abovementioned matters i.e. to hear and determine applications made by a person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service, the civil courts have no jurisdiction. The jurisdiction of the civil Court having been vested in the Administrative Tribunal by the promulgation of’ special statute the jurisdiction of civil court in respect of Bank employees has been ousted, and in that view of the matter, the plaint was rightly returned by the civil Court for presentation to the proper Tribunal having jurisdiction.

All decisions of the Administrative Appellate Tribunal shall be binding on the Administrative tribunals and the parties concerned, subject to the decision of the Administrative Appellate Tribunal the decision of the Administrative tribunals shall be binding on the parties.

Besides, the Administrative Tribunals have powers to impose imprisonment for the obstruction of duties of the Administrative tribunals which may extend to one month or fine which may extend to five hundred taka.

The Administrative Tribunal can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of Court is to see the right given under Article 102(1) is not frittered away or misused.Such Tribunal cannot entertain any application by the aggrieved party unless his appeal before the competent authority is disposed of. This legal bar cannot be overcome unless the appeal pending before the Government is disposed of. It is not known why Government respondent is shockingly slow in the matter of taking decision in the petitioner’s appeal. The Rule upon the government is therefore made absolute with the direction to dispose of the appeal within 30 days.

The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication.

Appellant was reinstated in service in pursuance of a civil Court’s decree passed before the commencement of the Administrative Tribunals Act, 1980. The subsequent claim for arrear pay and seniority etc. is not a claim arising out of the cause of action of the civil Court decree. Such claim arises out of a fresh cause of action after the Administrative Tribunals Act came into force and for that jurisdiction of Administrative Tribunal can well be invoked.

Administrative Tribunal has exclusive jurisdiction to decide disputes relating to the terms and conditions of service including seniority and promotion of the person in the service of the Republic. When the dispute involves determination of the constitutionality of any law or any notification the jurisdiction of the tribunal is ousted. In such a case this mixed question of dispute can well be decided by the High Court Division in its writ jurisdiction under article 102 of the Constitution. Promotion being part of the terms and conditions of the service a grievance in respect of the same undoubtedly falls within the exclusive jurisdiction of the Administrative Tribunal. When the first departmental proceeding ended merely on technical ground, subsequent proceeding on self-same or fresh additional charge is not barred in law and such a proceeding does not amount to double jeopardy.

When an Administrative Tribunal is set up no Court shall entertain any proceeding or make any order in respect of any matter falling within the jurisdiction of such Tribunal. When by a statute authority is vested in another Tribunal with exclusive power over any subject matter, a civil Court, ceases to have any jurisdiction to try such suit having jurisdiction.

Again, to implement the judgment of the Appellate Division, one cannot go to the Administrative Tribunal or the Administrative Appellate Tribunal.

The term “person aggrieved” as used in our Administrative Tribunals Act, 1980 has narrower connotation than that of the similar term used in the counter part enactment of the Indian Jurisdiction. The legal heirs of the deceased servant thus cannot maintain an application before the Administrative Tribunal.A person who died while in service cannot be dismissed or discharged or removed from service. Therefore the legal heirs of the deceased servant who are legally entitled to the pensionary benefits can seek their remedies in the writ jurisdiction of the High Court Division.

Administrative Appellate Tribunal:

In August 1983, by SRO No. 329/L/83/502-1/IV Administrative Appellate Tribunal was established. The Appellate Tribunal shall consist of three members of whom be one who is or has been the Judge of the Supreme Court. One shall be a person who is or has been a Joint Secretary or a District Judge.

Jurisdiction and Power of the Administrative Appellate Tribunal:

The Administrative Appellate Tribunal does not have any original jurisdiction except in the case of contempt of it. In brief, the Administrative Appellate Tribunal has the following powers and authority-

(a) It shall hear the appeal arising from any order or decision of the Administrative Tribunal.
(b) An application for an appeal must be made to the Administrative Appellate Tribunal within 90 days from the date of making of the order by the Administrative Tribunal. The time may be extended for another 90 days on the satisfaction of the Court on reasonable grounds.
(c) The Administrative Appellate Tribunal may confirm, set aside, or modify the decision of the Administrative Tribunal.
(d) .The Administrative Appellate Tribunal may transfer cases from one Administrative Tribunal to another.
The decision of the Administrative Appellate Tribunal shall be final. But by the insertion of section 6A by the Administrative Tribunal (Amendment) Act, 1991, it has been incorporated that the decision of the Administrative Appellate Tribunal shall be final subject to the judicial review of the Appellate Division of the Supreme Court.

In a case like the present one where there is no provision for appeal and where under review the President has power to make any order as he deems fit, a Government servant will be entitled to the remedy under Rule 23.102

Role of High Court Division regarding Administrative Tribunal Issues:

Administrative Appellate Tribunal is not under the subordination of the HCD. It is totally a separate judicial body. This body deals with appeals only in cases of the tribunal matters.

There are certain common powers which are enjoyed by both the HCD and the Administrative Appellate Tribunal. Article 102(a) (i) of the Bangladesh Constitution, 1972 empowers of the HCD to issue certain order and directions. The provision says that the HCD may, if satisfied that no other equally officious remedy is provided by law, on the application of any person aggrieved direct any person performing any functions in connection with the affairs of the Republic or of a local authority to refrain from doing that which he is not permitted to do by law or to do that which he is required by law to do.

The HCD is authorized to interpret the Constitution of the People’s Republic of Bangladesh. It is also true that the Administrative Appellate Tribunal has the power to interpret the provisions of Articles 133, 134, 135 of the Constitution in deciding service disputes. Like the HCD, the Administrative Appellate Tribunal can transfer a case from one Administrative tribunal to another. Like HCD, one has to come before the Administrative Appellate Tribunal after exhausting all the available remedies.

Justice Mostafa Kamal had decidedly argued in the case of MujiburRahman vs. Bangladesh, After referring the case Shell Company of Australia Vs. Federal Commissioner, Learned Justice Mostafa Kamal held that “There is no command in the Constitution that the tribunals or the co-equal to the HCD”. The logic behind stating in this way was that the terms and tenure of the service of the Judges have been expressly laid down 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 sit on the tribunals.

If we take into account the provisions of section 6A of the Administrative Tribunals Act, 1980 it may appear that the Administrative Appellate Tribunal is on the same footing as that of the High Court Division. Section 6A provides that 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.

The Administrative Appellate Tribunal, which is the highest appellate forum against the decision of the Administrative Tribunal, is not, in fact, on the same footing of the High Court Division.

A person is entitled to file an application for enforcement of any of the fundamental rights (in the HCD) only when he is aggrieved by an order or proceeding taken against him by an authority or person performing any function in connection with the affairs of the Republic or of a local authority.

Even in the presence of an alternative remedy, a person, instead of going to
the Administrative Tribunal can come before the HCD for the protection of his fundamental rights of equality of opportunity in the service of the republic.

If one Branch of the Department of the Govt. is not following the lawful order of the hierarchy of the governmental authority, definitely the person who is aggrieved can come before the HCD and pray for direction or declaration to implement, fulfill or obey the lawful order of the govt., which the Administrative tribunal is not competent to do.

The syndicate being an executive authority of the University made nomination for selection board with lawful authority. The University orders having provided remedy by way of appeal from the syndicate’s order the writ petition in this reason is not maintainable due to the doctrine of exhaustion.

Under the Indian Administrative Tribunals Act, 1985, the Administrative Tribunals are equal and substitute of the High Courts having exclusive jurisdiction in all service matters of the Government Servants and that of the statutory bodies. Unlike the Indian law, the Administrative Tribunals Act, 1980 of Bangladesh have been enacted in retrogression of the concept as is contemplated in Article 117 of our Constitution. Although the Administrative Tribunals have jurisdiction in all service matters relating to the persons in the service of the Republic of Bangladesh and statutory bodies specified in the schedule of the Act, these tribunals are not equal or substitute of the High Court Division of the Supreme Court.

There is no command in the Constitution that the Tribunal or the Appellate
Tribunal is substitute or co-equal to the High Court Division. 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.

The Constitution provides that the President of Bangladesh shall have the power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority.

Challenges towards Administrative Tribunals In Bangladesh:

In 1982 when Administrative Tribunal Act, 1980 came into foce, only Govt. officials could go to administrative tribunal and no other else. But later by administrative tribunal ordinance, 1984 statutory Public Authority service holder also can go to administrative tribunal. According to section 2 of the Administrative Tribunal Act, 1980, statutory public authority means an authority or body specified in the schedule of this act.

According to schedule of this Act, there is the statutory public Authority,

1.     Sonali Bank

2.     Agrani bank

3.     Janata bank

4.     Bangladesh bank

5.     Bangladesh ShilpaRinsangstha

6.     Bangladesh Shilpa bank

7.     Bangladesh house building finace corp.

8.     Bangladeshkrishi bank

9.     Civil Aviation authority

Only employees of these organizations and only the govt. service holders can go to Administrative Tribunals. It is contrary to the provisions of article 27 and 29 of the Bangladesh constitution. According to article 27 ‘all citizens are equal before law’. On the other hand article 29, “there shall be equality of opportunity for all citizens in respect of employment.”

In that schedule there is no name of any university, so university employees cannot go to Administrative Tribunal. So only Govt. service holders and specified statutory public authority service holders right to go to Administrative Tribunal is violation to the constitution.

There is a limitation on the jurisdiction of Administrative Tribunal,  according to section 4, ‘No such application shall be entertained by the Administrative Tribunal unless it is made within six months from the dates of making or taking of the order, decision on the matter by the higher administrative authority. Where no decision an appeal or application for reviews in respect of an order, decision or action referred to in the preceding. provision has been taken by the higher administrative authority within a period of two month from the date on which the appeal or application was preferred or made, it shall on the expiry such period be deemed for the purpose of making an application to the Administrative Tribunals under this section, that such higher authority has disallowed the appeal or application.’

Administrative Tribunal has no power to review and no power to issue an injunction. Administrative Tribunal has no jurisdiction to hear an appeal submitted by a person in the defense services of Bangladesh.

The Administrative Tribunal can strike down an order for violation of natural justice and for infringement of fundamental rights but it cannot strike down any bar or rule on the ground of its constitutionality. Duty of Court is to see the right given under Article 102(1) is not frittered away or misused.Such Tribunal cannot entertain any application by the aggrieved party unless his appeal before the competent authority is disposed of. This legal bar cannot be overcome unless the appeal pending before the Government is disposed of. It is not known why Government respondent is shockingly slow in the matter of taking decision in the petitioner’s appeal. The Rule upon the government is therefore made absolute with the direction to dispose of the appeal within 30 days.The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication.

I have identified some important issues regarding Administrative Tribunal in Bangladesh

1.     Article 117 of the Constitution of Bangladesh and Administrative Tribunal Act, 1980 are the main legal instruments regarding Administrative Tribunal in Bangladesh.

2.     Persons who are appointed in Administrative Tribunal they have insufficient technical knowledge and they may decide the questions taking into account the department policy or expediency and in that sense, the decision may be subjective rather than objective.

3.     Administrative Tribunal sometimes bound by the precedent or estoppel and always bound by Res Judicata and natural justice.

4.     Section 2 of the Administrative Tribunal Act, 1980 is contrary against the fundamental rights.

5.     According to section 4, there is a precondition in application to Administrative Tribunal, at first aggrieved person will have to seek remedy to a higher administrative authority who can set aside or modify the lower authority action. Generally the higher authority reluctant to change the lower authority decisions.

6.     The Administrative Tribunal has no power to grant interim relief in respect of a case pending before it for final adjudication.

7.     According to section 6, the appeal will have to file within three months from the date of making an order or decision of administrative tribunal.

8.     Administrative Tribunal (Amendment) Act, 1991 was passed by the parliament. This amendment has added section 6A in the Act. After amendment an aggrieved party can go to appellate division of the Supreme Court. Now decisions of the Administrative appellate Tribunal are subjective to the art 103 of the Constitution.

9.     Most of the service holders don’t have adequate knowledge regarding administrative tribunal.

At last I have suggested some points which may bring reasonable legal environment in Administrative Arena. These are following,

1.     Section 2 of the administrative tribunal Act, 1980 should need to modify.

2.     Preconditions regarding application to administrative tribunal which is under section 4 should need to remove.

3.     The administrative tribunal should have the power to grant interim relief.

4.     The time limit for the appeal to the administrative appellate tribunal should need to increase.

5.     Judges and judicial officers need to gather special skills and knowledge regarding various administrative (departmental) disputes.

6.     Every service holder should have proper knowledge regarding administrative tribunal.

Article 109 of the Constitution, 1972 says that the HCD shall have superintendence and control over the tribunals subordinate to it. The tribunals providing an alternative mechanism must be a worthy successor of the High Court in all respect. But there is no command in the Constitution of Bangladesh, 1972 that the Tribunal  or the Appellate Tribunal is subordinate or co-equal to the High Court Division. A tribunal cannot be substitute of a Court for a good number of reasons. In the Court of law there are openness, fairness and impartiality. But in the tribunals these things are absent. Tribunals are not supplementary to the civil Courts but it is partly substitute of the civil Courts. The tribunals are not fully supplementary to the civil Court as the equity Courts were supplementary to the common law Courts. According to section 9 of the Code of Civil Procedure, 1908, the tribunals do not come under the umbrella of the civil Courts but the tribunals will come under the definition of civil Courts in three cases and will be questioned by the HCD:

(a) if the tribunal violates its own law

(b) if the fundamental rights of the parties are violated due to the ma/a fide decision of the administrative tribunals.

(c) if the tribunals do anything ultra vires.

Again, the jurisdiction of the civil Courts cannot be totally ousted because tribunals cannot impose penalty, it can only suspend an employee. If the tribunals are mala fide in their decisions they are not immune to the challenges in the civil Courts.

But the Administrative tribunals which were set up to deal with service matters of the Government employee can be a substitute of Court. The Administrative Tribunals are not like the High Court Division or the Subordinate Court over which the High Court Division exercises both judicial review and superintendence. There is no command in the Constitution that the Tribunal or the Appellate Tribunal is substitute or co-equal to the High Court Division. 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.

About The Writer

Article Author Image

Md. Nayem Alimul Hyder

Senior Lecturer &Ex-Coordinator Department of Law World University of Bangladesh.

LL.B (Hons) form University of London, UK,
LL.M (Int. Business & Commercial Law) from Liverpool John Moores University, UK.
He has also completed M.S.S

lawmnahyder@yahoo.com

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