(Civil)
Syed Mahmud Hossain CJ
Hasan Foez Siddique J
Zinat Ara J
Md Nuruzaman J
Durnity Daman Commission
…………………..Appellant
vs
Humaiyun Kabir (Md) and others
………………………… Respondents
Judgment
April 2nd, 2019
Administrative Tribunal Act, 1980 (VII of 1981)
Sections 2(aa) and 4
On careful scrutiny of the Schedule to the Act, it transpires that Anti-Corruption Commission is not included in it. It cannot be said that the writ petition was not maintainable, as the Act was not applicable to the writ petitioner, Since, the Act was/is not applicable to the writ petitioner and he had no other equally efficacious remedy available in any other forum, provided by any law, the High Court Division rightly found the writ petition to be maintainable………………….. (17)
Administrative Tribunal Act, 1980(VII of 1981)
Section 2 (aa) and 4.
It shall be applicable for all the persons in the service of the Republic. The Act shall also be applicable to the employees of statutory bodies only when it is included in the schedule to the Act…………………………………………… (16)
Khurshid Alam Khan, Advocate, instructed by Sufia Khatun Advocate-on-Record-For the Appellant.
Farid Ahmed, Advocate, instructed by Zainul Abedin, Advocate-on-Record-For the respondent.
Judgment
Zinat Ara J: This Civil Appeal No. 702 of 2016 is directed against the judgment and order dated 15-3-2015 passed by the High Court Division in Writ Petition No. 8113 of 2013 making the rule absolute and thereby, declaring the order of compulsory retirement of the writ petitioner, passed by the Anti-Corruption Commission (writ respondent No.1) and communicating of the same to the writ petitioner under the signature of writ respondent No. 3 vide Memo No. Dudak RO/30/20222(5) dated 14-7-2013 (Annexure-H to the writ petition), to have been passed without lawful authority and is of no legal effect.
2. Facts necessary for disposal of this Civil Appeal, in a nut shell, are that the writ petitioner, leave-respondent No.1 herein, filed Writ Petition No.8113 of 2013, contending, inter alia, that he had been serving in: the Anti-Corruption Commission (hereinafter stated as the Commission), as Head Constable. At that time, one Marine Akhter Irani filed a criminal case, being Shahbag Police Station Case No. 23 dated 13-8-2008, against him under Seetion 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. The said Marine Akhter Irani also filed a written complaint to the Commission against the writ petitionWc. Whereupon, Departmental Case No.15 of 2008 was initiated against him and he was suspended from service on 13-8-2008. Thereafter, a show cause notice was issued upon him on 26-10-2008 along with a copy of the charge brought against him. He submitted reply to the said charge on 2-11-2008. The Commission, not being satisfied with the reply of the writ petitioner appointed an inquiry officer and the inquiry officer upon holding inquiry, submitted a report on 23-2-2009. Considering the inquiry report, the Commission issued a second show cause notice upon the writ petitioner and he gave reply thereof. Meanwhile, after, completion of investigation into Shahbag Police Station Case No. 23 dated 13-8-2008, the Investigating Officer submitted charge-sheet against him.
3. Thereafter, Nari-o-Shishu Nirjatan Daman Tribunal, Dhaka (shortly, the Tribunal) took cognizance of offence against him in the said case being Nari-o-Shishu Nirjatan Daman Case No.159 of 2009. After appearing in the said criminal case the writ petitioner obtained bail. Then, he filed an application before the Tribunal for an order of discharge and it was rejected by the Tribunal and charge was framed against him.
4. Thereafter, the writ petitioner filed Criminal Appeal No.6140 of 2009 before the High Court Division challenging the order of framing of charge and obtained a rule with an order of stay of further proceedings of Nari-o-Shishu Nirjatan Daman Case No. 159 of 2009. Upon hearing, the High Court Division allowed the appeal by judgment and order dated 9-10-2012. Consequently, the order relating to framing of charge by the Tribunal was set-aside.
5. However, the Commission on the basis of the departmental inquiry report by its letter dated 14-7o2013 awarded a penalty of compulsory retirement upon the writ petitioner.
6. Hence, the writ petitioner filed the above mentioned writ petition challenging the order of his compulsory retirement and obtained a rule with an order of stay.
7. ‘The Commission contested the rule by filing an affidavit-in-opposition controverting the statements made in the writ petitions and submitting that the writ petition was/ is not maintainable.
8. Upon hearing, the High Court Division made the rule absolute and declared the impugned order of compulsory retirement to have been passed without lawful authority and is of no legal effect.
9. Feeling aggrieved, the, Commission filed Civil Petition for Leave to Appeal (CPLA) No. 2388 of 2015 before this Division.
10. Upon hearing of the CPLA, this Division by order dated 11-8-2016 granted leave to appeal on the following additional ground:
“1. For that the writ petitioner-respondent filed the instant writ petition in the High Court Division challenging the order of forced retirement inasmuch as his remedy lips before Administrative Tribunal in view of Article 117 of the Constitution read with Section 4 of the Administrative Tribunal Act, the High Court Division erred in law in not holding for instant writ petition was not maintainable.”
11. Mr Khurshid Alam Khan, the learned Advocate appearing for the Appellant submits that the writ petition challenging the order of compulsory retirement of the writ petitioner was not maintainable inasmuch as the writ petitioner’s remedy was before the Administrative Tribunal in view of the provision of Article 117 of the Constitution read with Section 4 of the Administrative Tribunals Act, 1980 (shortly, the Act), and, therefore, the High Court Division erred in law in making the rule absolute. He further submits that the High Court Division had no jurisdiction to entertain the writ petition or making the rule absolute and, therefore, the order passed by the High Court Division is not tenable in law and is liable to be set-aside.
12. In reply, Mr Farid Ahmed, the learned Advocate appearing for the writ petitioner, respondent No.1 herein, takes us through the relevant provisions of Sections 2 (aa) and 4 of the Act and submits that the writ petition was maintainable as the writ petitioner had no other equally efficacious remedy in any other forum. He next submits that the Durnity Daman Commission is a statutory body and it has its own Rules for its employees namely, Ò`ybx©wZ `gb Kwgkb (Kg©Pvix) PvKzix wewagvjv, 2008Ò. He further submits that the provisions of the Act is not applicable in his case. He also submits that the provisions of Section 2 (aa) read with Section 4 of the Act, clearly show that the Act is applicable for the persons in the service of the Republic and also for the employees of Statutory bodi.es as mentioned’ in the Schedule to the Act. He finally submits that the writ petitioner-respondent herein, is neither in the service of the Republic nor Anti-Corruption Commission is included in the Schedule to the Act and, therefore, the writ petition was maintainable and the appeal is thus liable to be dismissed.
13. We have examined the Writ Petition, the leave granting order, the relevant provisions of Sections 2 (aa) and 4 of the Administrative Tribunals Act, 1980 and the connected materials on record.
14. In this civil appeal, we have to decide the question as to whether the writ petition is maintainable as per leave granting order, as quoted hereinbefore.
15. To decide the question, it is necessary to study the relevant provisions of Sections 2 (aa) and 4 of the Act. For better understanding, the said provisions are quoted below:
“2. Definitions-In this Act, unless there is anything repugnant in the subject or context,-
(a) ……………………………………
(aa) “Statutory public authority” means an authority, corporation or body specified in the Schedule to this Act; and
(b)……………………………………………………………… (Underlined by us)
“4. Jurisdiction of Administrative Tribunals-(l) an Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic or any Statutory public authority.
(2) A person in the service of the Republic or of any statutory public authority may make an application to an Administrative Tribunal under sub-Section (1), if he is aggrieved by any order or decision in respect of the terms and conditions of his service including pension rights or by any action taken in relation to him as a person in the service of the Republic or, of any statutory, public authority:
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 Republic or of any statutory public authority 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, where no decision on an appeal or application for review in respect of an order, decision or action referred to in the preceding proviso has been taken by the higher administrative authority within a period of two months from the date on which the appeal or application was preferred or made, it shall on the expiry of such period, be deemed, for the purpose of making application to the Administrative Tribunals under this Section, that such higher authority has disallowed the appeal or the application.
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 or making of the decision on the matter by the higher administrative authority, as the case may be
(3) In this Section “person in the service of the Republic or of’ any Statutory public authority” includes a person who is or has retired or is dismissed removed or discharged from such service but does not. include a person in the defence services of Bangladesh or of the Bangladesh Rifles.
16. Thus, it is crystal clear from the above quoted provisions of the Act that it shall be applicable for all the persons in the service of the Republic. The Act shall also be applicable to the employees of Statutory bodies only when it is included in the Schedule to the Act.
17. On careful scrutiny of the Schedule to the Act, it transpires that Anti-Corruption Commission is not included in it. Therefore, it cannot be said that the writ petition was not maintainable, as the Act was not applicable to the writ petitioner. Since, the Act was/is not applicable to the writ petitioner and he had no other equally efficacious remedy available in any other forum’ provided by any law, the High Court Division rightly found the writ petition to be maintainable.
18. In view of the above, we find no merit in the submissions of Mr Khurshid Alam Khan, the learned Advocate for the appellant and we find merit and force in the submissions of Mr Farid Ahmed, the learned Advocate for respondent No.1
19. In such view of the matter, the appeal fails,
According, the appeal is dismissed without any order as to costs.
