Accommodation comes within the purview of ‘terms and conditions’ of government employees
(From previous issue) :
10. Thus, upon a minute reading of Article 102(5) in tandem with Article 117, we hold that this Court lacks its jurisdiction in entertaining an application by any Government servant with regard to any grievance relating to the issue of Government accommodation as the same is directly linked with his/her service conditions.
11. Apart from impugning the action of the respondents as to cancellation of the petitioner’s accommodation, the petitioner has also challenged the vires of section 4 of the Administrative Tribunals Act, 1980 on the ground that section 4 of the Administrative Tribunals Act, 1980 is violative of fundamental rights as guaranteed by the Constitution as it purports to cover the matters relating to allotment of quarters of the Government employees, albeit allocation of house is not a matter of the terms and conditions of service of a Government servant.
12. Upon perusing the facts of the case and the impugned section 4 of the Administrative Tribunals Act, 1980, this Court does not find any reason to declare the said law to be ultra vires inasmuch as for declaring a law unconstitutional, the impugned law requires to be inconsistent with any provision of the Constitution as heralded in Article 7(2) of our Constitution or to be violative of fundamental rights as mandated by Article 26 of the Constitution. The power of this Court in declaration of a piece of legislation to be unconstitutional or ultra vires has eloquently been discussed in the case of Emrul Kayes vs Bangladesh 19 BLC 76 wherein the Second Part of section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 was challenged on the ground of being contradictory to the provisions of Articles 27, 29, 31 and 147(2) of the Constitution and, after a thorough scrutiny of the facts of the case and upon examining the celebrated cases of our jurisdiction and foreign jurisdiction, the impugned law was declared to be unconstitutional. However, there being no such inconsistency in the law impugned here in the case at hand, we declare that the impugned section 4 of the Administrative Tribunals Act, 1980 is intra vires the Constitution.
13. We find that the attack on the constitutionality of section 4 of the Administrative Tribunals Act, 1980 was made in a sporting chance manner in an endeavor to overcome the issue of maintainability on the ground of violation of fundamental rights as, from a minute perusal of the facts of the case and the impugned law, it appears that the allegation of violation of the petitioner’s fundamental right is nebulous inasmuch as entitlement to an accommodation of a Government servant is a legal right, not a fundamental right in the light of the fact that a Government servant’s right to enjoyment of a Government accommodation is embodied in the Rules namely, Bangladesh Allocations Rules, 1982, not even in any statute and, thus, it is not a statutory right, not to speak of fundamental right. In dealing with the complaints by the litigants alleging violation of their fundamental rights, this Division should be mindful as to whether the said allegation does at all come within the coverage of fundamental rights as has been observed by his Lordship MH Rahman J, as he then was, in the celebrated case of Mujibur Rahman vs Bangladesh 44 DLR (AD) 111 (relevant para 49) that
“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 that 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”.
14. In contrast to the petitioner’s case, from a minute reading of section 4 of the Administrative Tribunals Act, 1980, we find that the Legislature never contemplated that section 4 of the said Act will be in conflict with the scheme of Article 117 of the Constitution. Thus, provisions of section 4 of the Administrative Tribunals Act must be taken as complementary, as opposed to contradictory or derogatory, to the provisions of Article 117 of the Constitution. When the Constitution confers jurisdiction upon the Administrative Tribunals by engraving the following words in Article 117″……tribunals to …” exercise jurisdiction in respect of matters relating to or arising out of …. ” it equips and capacitates the Tribunal with octopusian grip to bring all the service related matters of the Government servants within its jurisdiction.
15. It is pertinent to mention here, albeit as obiter dictum, that members of this Bar most often take a plea that the word ‘inaction’ or ‘failure’ of the concerned authority in passing any order or making any decision or taking any action has not been mentioned in section 4(2) of the said Act, therefore, until an order is passed or decision or action is taken, a Government servant does not become competent to approach the Administrative Tribunal concerned. However, in our way of perusal and scrutiny of the entire Administrative Tribunals Act, 1980, including its Preamble and the impugned section 4, we find that the above situation can easily be overcome by making an application to the concerned authority and; then, approaching the Administrative Tribunal, if the said authority does not pass any order, or make any decision or take any action pursuant to the aforesaid representation filed.
16. The rule of statutory interpretation suggests that if there appears any ambiguity in any statutory provision, which requires interpretation, one should search for the intention behind the enactment of the said statute and look into the historical legislative developments. In Special Reference No.1 of 2002 (2002) 8 SCC 237 it was observed that
15. One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates or any enactment preceding the enactment of the constitutional provision.”
17. It is now appropriate for us to have a look at the Preamble of the Administrative Tribunals Act, 1980, which is quoted below:
Whereas Article 117 of the Constitution provides, inter alia, that Parliament may by law establish one or more Administrative Tribunals to exercise jurisdiction in respect of matters relating to or arising out of the terms and conditions of service of persons in the service of the Republic or any statutory public authority;
18. The purpose of the enactment of the Administrative Tribunals Act, 1980 is to give effect to the provisions of Article 117 of the Constitution and the said Article mandates for setting up a special forum for the Government servants with an aim to expeditiously disposing of the service related matters of all kinds. Exclusion of any service related grievance from the jurisdiction of the Tribunal was not within the contemplation of the framers of the Constitution as they intended to confer a catch all jurisdiction upon the Administrative Tribunal by inserting Article 117 against the backdrop of Article 102(5) to enable it to deal with all types of grievances which emanate from or are linked to and connected with the service of a Government servant.
19. Thus, non-incorporation of the words “failure to act” or “inaction of the concerned authority” in section 4 of the Administrative Tribunals Act, 1980 does not make a Government servant incompetent to approach the Administrative Tribunal, otherwise the position of section 4 shall amount to curtailing the jurisdiction of the Administrative Tribunal conferred by Article 117 of the Constitution.
20. In the case of AKM Enayet Ullah Vs Bangladesh, 18 BLC 679 (relevant Para 42 & 43) the power and jurisdiction of the Administrative Tribunal has been elaborately discussed and in view of the fact that the dictum of the same is in operation as of today inasmuch as the same has not been overruled by the Appellate Division, we are not inclined to deviate from the ratio decidendi of the above decision and, accordingly, we find that the present writ petition is not maintainable and the Rule is liable to be discharged on the ground of maintainability alone without embarking upon the other aspects of the case and, thus, we do not fancy to delve into its substantial issue as we leave it for an unbiased examination by the Administrative Tribunal, in the event that the petitioner approaches the said forum as a consequence of the disposal of the instant Rule. Accordingly, the Rule is discharged without any order as to costs.
(Concluded)
10. Thus, upon a minute reading of Article 102(5) in tandem with Article 117, we hold that this Court lacks its jurisdiction in entertaining an application by any Government servant with regard to any grievance relating to the issue of Government accommodation as the same is directly linked with his/her service conditions.
11. Apart from impugning the action of the respondents as to cancellation of the petitioner’s accommodation, the petitioner has also challenged the vires of section 4 of the Administrative Tribunals Act, 1980 on the ground that section 4 of the Administrative Tribunals Act, 1980 is violative of fundamental rights as guaranteed by the Constitution as it purports to cover the matters relating to allotment of quarters of the Government employees, albeit allocation of house is not a matter of the terms and conditions of service of a Government servant.
12. Upon perusing the facts of the case and the impugned section 4 of the Administrative Tribunals Act, 1980, this Court does not find any reason to declare the said law to be ultra vires inasmuch as for declaring a law unconstitutional, the impugned law requires to be inconsistent with any provision of the Constitution as heralded in Article 7(2) of our Constitution or to be violative of fundamental rights as mandated by Article 26 of the Constitution. The power of this Court in declaration of a piece of legislation to be unconstitutional or ultra vires has eloquently been discussed in the case of Emrul Kayes vs Bangladesh 19 BLC 76 wherein the Second Part of section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 was challenged on the ground of being contradictory to the provisions of Articles 27, 29, 31 and 147(2) of the Constitution and, after a thorough scrutiny of the facts of the case and upon examining the celebrated cases of our jurisdiction and foreign jurisdiction, the impugned law was declared to be unconstitutional. However, there being no such inconsistency in the law impugned here in the case at hand, we declare that the impugned section 4 of the Administrative Tribunals Act, 1980 is intra vires the Constitution.
13. We find that the attack on the constitutionality of section 4 of the Administrative Tribunals Act, 1980 was made in a sporting chance manner in an endeavor to overcome the issue of maintainability on the ground of violation of fundamental rights as, from a minute perusal of the facts of the case and the impugned law, it appears that the allegation of violation of the petitioner’s fundamental right is nebulous inasmuch as entitlement to an accommodation of a Government servant is a legal right, not a fundamental right in the light of the fact that a Government servant’s right to enjoyment of a Government accommodation is embodied in the Rules namely, Bangladesh Allocations Rules, 1982, not even in any statute and, thus, it is not a statutory right, not to speak of fundamental right. In dealing with the complaints by the litigants alleging violation of their fundamental rights, this Division should be mindful as to whether the said allegation does at all come within the coverage of fundamental rights as has been observed by his Lordship MH Rahman J, as he then was, in the celebrated case of Mujibur Rahman vs Bangladesh 44 DLR (AD) 111 (relevant para 49) that
“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 that 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”.
14. In contrast to the petitioner’s case, from a minute reading of section 4 of the Administrative Tribunals Act, 1980, we find that the Legislature never contemplated that section 4 of the said Act will be in conflict with the scheme of Article 117 of the Constitution. Thus, provisions of section 4 of the Administrative Tribunals Act must be taken as complementary, as opposed to contradictory or derogatory, to the provisions of Article 117 of the Constitution. When the Constitution confers jurisdiction upon the Administrative Tribunals by engraving the following words in Article 117″……tribunals to …” exercise jurisdiction in respect of matters relating to or arising out of …. ” it equips and capacitates the Tribunal with octopusian grip to bring all the service related matters of the Government servants within its jurisdiction.
15. It is pertinent to mention here, albeit as obiter dictum, that members of this Bar most often take a plea that the word ‘inaction’ or ‘failure’ of the concerned authority in passing any order or making any decision or taking any action has not been mentioned in section 4(2) of the said Act, therefore, until an order is passed or decision or action is taken, a Government servant does not become competent to approach the Administrative Tribunal concerned. However, in our way of perusal and scrutiny of the entire Administrative Tribunals Act, 1980, including its Preamble and the impugned section 4, we find that the above situation can easily be overcome by making an application to the concerned authority and; then, approaching the Administrative Tribunal, if the said authority does not pass any order, or make any decision or take any action pursuant to the aforesaid representation filed.
16. The rule of statutory interpretation suggests that if there appears any ambiguity in any statutory provision, which requires interpretation, one should search for the intention behind the enactment of the said statute and look into the historical legislative developments. In Special Reference No.1 of 2002 (2002) 8 SCC 237 it was observed that
15. One of the known methods to discern the intention behind enacting a provision of the Constitution and also to interpret the same is to look into the historical legislative developments, Constituent Assembly Debates or any enactment preceding the enactment of the constitutional provision.”
17. It is now appropriate for us to have a look at the Preamble of the Administrative Tribunals Act, 1980, which is quoted below:
Whereas Article 117 of the Constitution provides, inter alia, that Parliament may by law establish one or more Administrative Tribunals to exercise jurisdiction in respect of matters relating to or arising out of the terms and conditions of service of persons in the service of the Republic or any statutory public authority;
18. The purpose of the enactment of the Administrative Tribunals Act, 1980 is to give effect to the provisions of Article 117 of the Constitution and the said Article mandates for setting up a special forum for the Government servants with an aim to expeditiously disposing of the service related matters of all kinds. Exclusion of any service related grievance from the jurisdiction of the Tribunal was not within the contemplation of the framers of the Constitution as they intended to confer a catch all jurisdiction upon the Administrative Tribunal by inserting Article 117 against the backdrop of Article 102(5) to enable it to deal with all types of grievances which emanate from or are linked to and connected with the service of a Government servant.
19. Thus, non-incorporation of the words “failure to act” or “inaction of the concerned authority” in section 4 of the Administrative Tribunals Act, 1980 does not make a Government servant incompetent to approach the Administrative Tribunal, otherwise the position of section 4 shall amount to curtailing the jurisdiction of the Administrative Tribunal conferred by Article 117 of the Constitution.
20. In the case of AKM Enayet Ullah Vs Bangladesh, 18 BLC 679 (relevant Para 42 & 43) the power and jurisdiction of the Administrative Tribunal has been elaborately discussed and in view of the fact that the dictum of the same is in operation as of today inasmuch as the same has not been overruled by the Appellate Division, we are not inclined to deviate from the ratio decidendi of the above decision and, accordingly, we find that the present writ petition is not maintainable and the Rule is liable to be discharged on the ground of maintainability alone without embarking upon the other aspects of the case and, thus, we do not fancy to delve into its substantial issue as we leave it for an unbiased examination by the Administrative Tribunal, in the event that the petitioner approaches the said forum as a consequence of the disposal of the instant Rule. Accordingly, the Rule is discharged without any order as to costs.
(Concluded)