MUJIBUR RAHMAN VS BANGLADESH 44 DLR AD 1992

 

Analysis of the Fact:

Three certified appeals were called for the determination of a common question in view of clause 5 of Article 102 of our Constitution. The grounds under which the appeals were allowed are given below:

Ø  Md. Majibur Rahman was compulsorily retired from his service as the Collector of Customs. The Administrative Tribunal set aside the order of the retirement but the Administrative Appellate Tribunal 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.

Ø  Md.Atiquallah , an employee of the Bangladesh Bank, filed an application before the Administrative Tribunal for giving him a promote, seniority over those who were directly recruited in the grade. His case was dismissed by the Administrative Tribunal.

On Appeal the Appellate Tribunal allowed the employee’s prayer.

Ø  On 6^th December, 1990 there was a change and by act no.23 of 1991 a new 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 to the High Court Division.

Argument from the petitioner:

It was argued that

Ø  As the Constitution itself does not expressly state status and qualification of the tribunal, those are to be deduced from article 117 and part VI of the Constitution. Tribunals are not sub ordinates courts but which are part of 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 co ordinate  to or equally effective as the High Court Division. By designating a District Judge as Chairman of the 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 thus is in conflict with the Article 117 and part VI of the Constitution and accordingly void.

Ø  The power to provide appeal does not include the power to create a forum for appeal. This inference has no legal basis in law or any such doctrine in legal or constitutional jurisprudence. The Appellate Tribunal is not a Tribunal established under section 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 remain immune from judicial review by the High Court Division under Article 102(1) as un amended section 6 of the act sought to give it. It is permitted only when either Division of the Supreme Court is made forum for appeal.

Argument from the Respondent:

It was argued that the Constitution is to be strictly construed. Whether the documents are in Constitutional characters or ordinary statues 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. The learned Attorney General also argued that Article 44(1) of our Constitution guarantees the right to move the High Court Division in accordance with clause 1 of the Article 102 for the enforcement of the rights conferred by the Part III of the Constitution.

Decision and Reasoning behind the decision:

The appeals were dismissed.

The above decision was taken on the following grounds:

Ø  Tribunal is not used in Article 117 within the meaning of the term Court as defined in Article 152 of our Constitution. The provisions for appointment of the members of the Tribunal from among the persons who are or have been District Judges will neither make the member a persona designate District Judge nor a court.

Ø  The Appellate Tribunal may confirm or set aside or vary or modify of 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.

Ø  Any person in the service of the Republic who intends to invoke fundamental right for challenging the vires of the law seek his remedy under article 102(1) but in all other cases he will be requested to seek remedy under article 117(2).

Ø  In the Article 117(2) the constitution provided that “Parliament may by law provide for appeals from or the review of, decisions of any such tribunal.” These words enable the Parliament to provide by law for more than one appeal from and for one review only of decisions of a tribunal. Section 6(A) of the Act also maintained this provision and the inherent notion of the Constitution that if there is to be an ultimate in the pronouncement of law that can only be vested in the Supreme Court which exercise the judicial power of the state.

Ø  Both the doctrines of implied power and of incidental and ancillary powers were applicable in this case and regarding the provision of article 117(2) which grants a legislative power to create an appellate forum.

Ø  The non obstante clause of the article 117(1) applies to Chapters I and II of the Part VI and Parliament has been absolved from the duty of setting up a court proper in Chapter

III.

 

 

Principle:

The principles came out from this case are as follows:

§  Though there is no clear provision of conferring the judicial power of the state on the judiciary but it can be impliedly assessed from the concerned provisions of the Constitution.

§  The principle of strict construction of ordinary law has no application to the interpretation of a written Constitution.

§  Where Constitution provides a power that should be construed to the widest amplitude of powers beneficial for the purpose.

§  When it is necessary to gather the necessary intendment or manifest intention from any statutory source the court of law will try to gather the same primarily from the language first and if the language fails then to the secondary source matters outside the language.

Importance of this case:

In this case the inherent meaning of the Article 117 of our Constitution, the power and jurisdictions of Administrative Tribunal and whether the parliament has the power to form Administrative Appellate Tribunal within its plenary legislative power are clearly narrated. In this case the spirit of the Constitution and intention of the Constitution framers were applied to identify the validity of the impugned sections 2, 3 and 6A of the Administrative Tribunal Act,1980. In this case Justice Mustafa Kamal nicely determined that Administrative Tribunal do not exercise the judicial power of the state. A distinction between the Court and the Tribunal came out that a court has a clear and distinct connotation whereas a tribunal assumes wide range of character.