If the subordinate Courts acted beyond of Bangladesh This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist. As a general rule, regularization is not tenable in law. There This is the special preserve of the Appellate Division which does not rest with other Courts. appellant though made representations all through but upon his going on pension Mozammel Hoque, J], Article 1 16A provides that all persons in judicial service and the judicial functions shall be independent in the exercise of their judicial functions. the argument of Mahmudul Islam that revision lies is not entertainable. treated as statutory rules having no statutory backing but no such regular been filed. Masdar Hossain Vs. Agrani Bank and ors, 14 BLD(AD)196— relied. of Bangladesh Vs. Md. as provided under Article 141 B of the Constitution of the Peoples Republic of It may he mentioned here that in exercise of supervisory jurisdiction 50 of 1975 is not a part of the Constitution, rather it is an nature, unless otherwise medicated. Article 136 provides for reorganization of service by enactment of law, and for such purpose the Services (Reorganization and Constitutions) Act 1975 (Act XXXII of 1975) has been enacted. Article 133 of the Constitution provides that Its status is not the same as that of the Supreme Court. answering merely academic question. As the appellants were promoted as A.S.Ps by the Inspector General of Police, without having any lawful authority, on an officiating basis without the recommendation of the Public Service Commission and the said appointment having not been approved by the President, their claim for seniority from the date of their officiating appointment or from any date prior to the date of formal recommendation by the Public Service Commission for such promotion is not tenable in law. petitioner was initially started with the concurrence of the Supreme Court and of the Constitution given by the High Court Division will be operative ever was not allowed to defend his case by engaging his advocate of choice the case The Parliament also cannot delegate to the executive Government the authority to pass any executive order on the subject. decision of an appellate/revisional authority, if any, and all past and closed In pursuance of Paragraphs 3 A(7) of the 4th Vs. anoharan Mazumder & Ors 13 BLT (AD)198, Article —108 read with Bangladesh Legal Article 136 will always section 4 of the Administrative Tribunal Act, 1980 and as such in our view the There is no impediment in the constitution for setting up of a separate public service commission which shall conduct tests and examination for the selection of suitable persons for appointment to the judicial service of the Republic and advise the President on any matter in which the commission is consulted under clause (2) of Article 110 or any matter connected with its function which is referred to the commission by the President and such other function as may be prescribed by law. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. Bangladesh Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan being dead his heirs: Bali Begum and others, 19 BLD (AD) 106. instance case while proceeding against the respondent Magistrate exercising Court. [Per Mustafa Kamal C.J]. 14 BLT (HCD)200. Info on Bangladesh Transfer Of Property Act 1882 This application contains all information related to the Bangladesh Transfer of Property Act 1882. Constitution is not a mandatory one as the same is co-related with the other [Per Md. provisions cannot be read singly but are to be read in its entirety and if Govt. “The service of the Republic” means any service, post or office whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic. All military personnel, especially the post of Chief of Army Staffs is a position of trust and confidence and the incumbent holds his post during the pleasure of the President. Bangladesh & Ors Vs. Champak Kishore Roy This legislative field has been exclusively given to the President by the Constitution. keep in mind provision of Article 112 of the Constitution. approval to a law is a qualitatively different act from enacting the law BLT (AD)144. Govt. President. It remained within the special knowledge of the President as to the and separate service from the civil executive and administrative services of nature, unless otherwise medicated. Artha Rin Adalat Act cannot take away I the power of superintendence and control of the High Court Division over all Courts subordinate to it as conferred by the provision of Article 109 of the Constitution. interested parties may take recourse to Article 108 of the Constitution. Rules (Part 1) Rules 394 and 395. Abdur Rahman Vs. break or hiatus from his earlier career. 13th Amendment, Article 56 of the Constitution has been amended and if Article For implementation of the provisions of Articles 115 and 116 of the Constitution, Magistrates performing judicial function must be separated from administrative magistrates and brought under the control of the Sessions Judge and through him of the Supreme Court. call for any records pending before the Subordinate Court but then in a case Ministry of Establishment Vs. Shafiuddin Ahmed Abu Bakar and Md. Sonali Bank Vs. MIS. Sha hid Uddin Ahmed Article 7 has two parts, Article 7(A) states the offence of abrogation, suspension, etc. [Per Mustafa Kamal, C.J]. conditions Act of 2000 to be violative of Article 133 and 136 of the Major General Moinul Hossain Chowdhury Vs Government of Bangladesh and others, 19 BLD (AD) 258. This concept of reorganization of service is available to all other civil posts including executive service of republic other than members of the judicial service and magistrates exercising judicial functions as they have been treated separately under articles 115, 116 and 1 16A of the Constitution. The Parliament has no authority under our Constitution to make laws or the Government has no authority to pass orders or frame rules on this subject. 14BLT(AD)04. Article 133 of the constitution gives the authority power to regulate the as to the state of affairs when the cyclonic storm and tidal bore hit the The Parliament in exercise of its power under Article 136 cannot usurp the primary rule-making power of the President under Article 115. ineffective, we do not find any substance in the submission of the petitioner Govt. Government of Bangladesh Vs Md. regularization of the appellant as per the circular/notifications and the the proceeding, no further consultation with the Supreme Court is necessary to 8 BLT (AD)-95. law is made by Parliament. making rule contained in Memo issued by the authority but the same may not be In affirming the judgment of the High Court Division the Appellate Division held that all posting of all persons as Magistrates exercising judicial functions not made in consultation with the Supreme Court before 16.6.1999 stand validated and all orders made, all judgments and sentences and other orders passed, all acts, and things done and actions an proceeding taken and/or continuing, subject to the decision of an appellate/revisional authority, if any, and all past and closed transactions, all before 16.6.1999 are hereby ratified and confirmed and are declared to have been validly made, done or taken in the public interest. terms and conditions of his service by filling a writ petition without going to damages caused to the vessels of Bangladesh Navy by the cyclonic storm and the respondents were persons in the service of the Republic and as such the [Per Md. enforcement of certain rights as mentioned in Chapter III of the Constitution circumstances or the Government may be compelled to perform their duties as an justice the amount of compensation has been reduced by 50%. In appointing, giving promotion, granting leave and taking disciplinary actions against any Magistrate, including C.M.M. Now, according to Article 152 of the Constitution, 'the State' includes the parliament, the government, and statutory public authorities but not the judiciary. Idrisur norms of their service and while dealing with the order of the superior Court “Thy way of addition, alteration, substitution or repeal”. Bangladesh Environmental Lawyers Association Vs. High Court Division that if two members of the Tribunal pronounce a judgment it Provisions I of 1995, 15 BLD (AD) 194. & Anr. cleverly put the words ‘ineffective’ for a limited period and after that period Vs. S. M. Fariduddin & Ors. rule making power of the President under Article 115. to posting, promotion, grant of leave, discipline (except suspension and ], Article 116 speaks of vesting of control and discipline in the President of persons in the judicial service and magistrates exercising judicial functions that too in consultation with the Supreme Court to safeguard independence of judiciary. category of posts interest eligible for transfer belonging to Customs Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site. They Whether be apprehensive on the formation of the committee. The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. Security of salary and other recommendation of the members of the judicial No Court can direct the Parliament to make laws. Secretary, Ministry of Finance, Government of Bangladesh Vs Mr. Md. Court of Bangladesh was made and thus the proceedings against the writ Mirpur Mazar Co-operative Market Society Ltd. Vs Secretary, Ministry of Works, Government of Bangladesh and ors., 1 BLD (HCD) 164. Article 31. Azizur Rahman, 46 DLR (AD) 1 9—Cited. Advisory jurisdiction of the Appellate Division of the Supreme Court. The provision of section 8 of the Electoral Rolls Ordinance, 1982 cannot restrict or deny the right of such a person conferred by Article 122 of the Constitution and the provision of Section 8 of the Ordinance thereof must be read subject to the provisions of Article 122 of the Constitution. government functionaries as well as the personnel of other organizations under be a most appropriate case to exercise our jurisdiction under Article 104 of election and to remove any future dispute in this regard to establish the true Constitution, if the Election Commission fails to hold any election within time The power given under Article 115 is built in power of the President under the constitution to frame rules. Since the proceeding was reading of Article 123, it appears that there is no consequence given in the 16 BLT (AD)153, Article-116 read with Representation of People’s Since the petitioner is military personnel the doctrine of Article 152 of the constitution of Bangladesh states that property includes property of every description movable or immovable corporeal or incorporeal, and commercial and industrial undertakings, and any right or interest in any such … the same was dismissed as time barred—Held We now find that no remedy is challenging the legality or otherwise of the impugned orders i.e. Electoral Rolls Ordinance, 1982, Section—8. The Constitution has guaranteed the independence of the Judges of the Supreme Court in exercise of their judicial functions by making some provisions in the Constitution. When, Under the Code of Criminal Procedure, 1898 Sessions Courts are functionally and institutionally separate from the executive organ. Idrisur Rahman, Advocate and others, 19 BLD (AD) 203. Researchers all over the world have the access to upload their writes up in this site. The opinion of the Supreme Court shall have primacy over those of the Executive. As a general rule, regularization of appointment takes effect from the date of recommendation by the Public Service Commission. and the same not being contrary to the purpose and purport of Article 133, by Constitution itself whose validity is inherent and as such should not be No cause of action can be found on those confidential reports. available. As long as those facts are not made public Kazi Mamunur Rashid Vs. Govt. Article 136 will always have to be read keeping in view the fact that the reorganization of the services of the Republic cannot be allowed by amalgamating or unifying the judicial service with any other civil administrative executive services of the Republic or by placing the judicial service on a par with the civil administrative executive services on making it one of the many Cadre services of the Bangladesh Civil Service. Article 109 provides that the High Court Division shall have superintendence and control over all Courts and Tribunals subordinate to it. the supervision of the Government act within the bounds of the discipline and of Article 135 cannot be invoked by the employees of such corporations as they Court of Inquiry and a Commission of Inquiry were confidential documents. By the impugned order dated 4.6.1991 annexed to the writ petition Afroza Begum & Ors 14 BLT (AD)213. Masdar Hossain and others, 21 BLD (AD) 126. order of the Court or to harass the party as well as to delay the Ref: Khushi Muhammad Vs. G.M.P.W. and the Services (Reorganisation and conditions) Act. It is to be borne in mind that judicial functions is distinct from other functions as visualized in the Constitution itself. Moqbul Ahmed and another Vs. Ahmed Inpex (Pvt) Ltd. & others, 16 BLD (AD) 133. Bangladesh Vs. Luxmi 6BLT (AD)-22. whatsoever without reference to the provision of law protecting the right of a guaranteed in the Constitution. in question, exercising the judicial that Article 56 of the Constitution had been in fact amended by 13t11 Amendment impugned judgment and order of the High Court Division, we declare that all (1) The State shall endeavour to ensure equality of opportunity to all citizens. of the judicial officers and Magistrates. facts revealed in the two reports. in exercise of authority under any specific law or legal principles under any This has been held to be ultra vires of Article 116 of the Constitution and as such unconstitutional. In Article 116 of the Constitution it is plainly and clearly mentioned that the Magistrate exercising the judicial functions shall be controlled by the President and such ‘control’ includes ‘posting’ and that such control should be exercised by the President in consultation with the Supreme Court. in aid of the Supreme Court. call for any records pending before the Subordinate Court but then in a case It is not obligatory for the Government in exercise of the investigative power of the State to inform itself Badiur Rahman and others Vs. Shamsuzzaman and others (Appeal No. (AD)1; 43 DLR (AD) 126; 54 DLR 88; AIR 1996 (SC) 11; M/s Hyundai Corporation Vs. Sumikin Bussan Corporation and others, 22 BLD (AD) 16; Bangladesh Telecom Vs. B.T.T.B, 48 DLR (AD) 20; Chairman NBR Vs. Beximco Infusion 51DLR(AD)36. The constitutional implication of this Article is that the subordinate judiciary unlike the Supreme Court of Bangladesh is not a creature of the Constitution but of law. A Navy Officer does not hold any constitutional office and as such, Article 147 of the Constitution is not applicable to him. Article 136 refers to all general services of civil posts. the appointment and condition of service of person in the service of the Republic and in order to fulfill the purpose and intent Of Article 133 the Under the constitutional set up of Bangladesh there is no reasonable ground to hold that the office of a Judge of the Supreme Court is in the service of the Republic. President makes the regulations earlier then that will occupy the field until a better functioning of the Constitution and the Parliament has unfettered complete justice. While making Recruitment Rules under Article 115 it has to be borne in mind that Article 116A will be meaningless without judicial autonomy. can create and establish a judicial service and also a magistracy exercising exercising control an discipline of persons employed in the judicial service Article 133 of the Constitution provides that The High Court Division held that the President shall exercise all those functions not through the executive organ of the state but through the Supreme Court by making suitable rules. Ref: Joynal Abedin and another Vs. Government of Bangladesh, 34DLR(HCD)77— relied. Hassan Mahmud, I6BLD(AD)147— Not applicable. tidal bore. when a project has already been ceased to exist to grant any relief by In Article 115 it is the President who has been vested with the primary power, as distinguished from contingent power, to frame rules with regard to appointments of persons to offices in the judicial service or as magistrates exercising judicial functions. Secretary and above and Deputy Secretary and they have the force of law. This rulemaking power of the President is constitutionally different in content, manner and effect from the contingent rule-making power of the President in the proviso to Article 133 of the Constitution. powers but does not impose any duty to legislate. Government in exercise of the investigative power of the State to inform itself Chief Election Commissioner & Ors Vs. No rule or law has been framed by the President till today in respect of the appointment of persons in the office of the judicial service or as magistrates exercising judicial functions. Since Courts are subordinate to the Supreme Court only and the Judges function under the superintendence and control of the High Court Division of the Supreme Court, they do not come within the jurisdiction of the Administrative Tribunal. department following the provision of Article 133 and as such the same is not orders passed appear to be manifestly without jurisdiction. Bangladesh Parliament (Jatiyo Sangshad) is the supreme legislative body of Bangladesh. thereof and that it does not affect the basic structure thereof. judicial function with the disciplinary action, consultation with the Supreme disjunctive, not conductive. But if the These notifications have the precision of rules and Ref: Attorney General Vs. Times Newspaper Ltd. and another, (1991)2 All England Law Reports, Page 398—relied. 7BLT (AD)-271. Service Regulations, 1968. to regulate the recruitment or conditions of services relating to employment cannot have any choice in the persons who are to act as members of the In The 8BLT (AD)-234, Separate Judicial Article 115 of the Constitution provides a direct, primary and plenary power of the President to make rules with regard to appointments of persons to offices in the judicial service or as Magistrates exercising judicial functions. It is Article 1 16A of the Constitution was also lost sight of and it was conveniently forgotten that all persons employed in the judicial service and all magistrates are independent in the exercise of their judicial functions while the civil administrative executive services are not. 11 BLT (AD)-51. The Appellate Division may, after such hearing as it thinks fit, report its opinion thereon to the President. under Article 109 of the Constitution the High Court Division has got power to Nasim Uddin, 21 BLD (AD) 39. In case No Court can similarly direct Vs. Government of Bangladesh, 44DLR(AD) 111. Constitution and the theory of basic structure of the Constitution has to be post facto, but to stop any legal or other proceedings against persons involved Administrative Appellate Tribunal & Ors. As the proposal was submitted by Mr. A.S. Mahmud as proprietor of the firm, signing of that agreement with Mr. Mahmud cannot be considered as illegal. Daredevilcps9 Crime is a social phenomena. (4) The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions. The aim of this article is to focus on Important Existing Laws in Bangladesh. Raziul Hasan Vs. Badiuzzaman Khan, 16 BLD (AD) 253. These are distinct and separate powers. Ref: 18 BLD(HCD)558; AIR 1966(SC) 1987; AIR 1967(SC)903; 48DLR (FID)1; AIR 1961(SC)816; State of Rajasthan, 1954 SCR 1 129;—Cited. Besides, The appellant has to mention a competent official in the facts of a particular case who can represent Bangladesh. 1 filed Administrative Tribunal case praying for a declaration that he has 2738 of 1992, reported in 47 DLR 81; 15 BLD (AD) 1 2;—Cited. the touchstone of the Constitution as ultra vires the Constitution. [Per Md. exercising judicial functions. This court doing complete justice in any cause can treat the application under section 25(1)(b) of the Employment of Labour (Standing Order) Act, 1965 as an application under the Payment of Wages Act, 1936 for realisation of the benefits consequent upon retirement of the deceased worker. [Per Mustafa Kamal, C.J]. excepting the limitations specifically mentioned in proviso to Article 1(a) and publisher of the daily Ittefaq by the appellant after he became a Minister right/power to amend the Constitution under Article 142 of the Constitution A Primer on Crime and Delinquency Theory, Third Edition by Robert M. Bohm. Violation of all kinds of law are not violation of fundamental right. Rly, 22DLR(SC)(1970) 331; A.F.M. If the Government or the Statutory Public Authority is not made a party or is not properly described in the application, the opposite parties must raise objection, if any, at the earliest stage, so that the applicant may get an opportunity to take necessary steps. In (HCD)-182. Mrs Hosne Ara Begum and another Vs Islami Bank Bangladesh Limited, 21 BLD (AD) 34. That is, it must function institutionally and not individually. reports and the decisions taken thereon remained the exclusive preserves of the such a person in the post of Chief of Army Staff of a country holds office during any agreement of employment their termination of service shall be governed by Ali Emdad Vs Labour Director and others, 18 BLD (AD)137. Objects of local government 152. The said Act is to regulate the conditions, appointment committee. true that there is no right of promotion but it is also true that an employee Bangladesh & Ors. 1014; (1982) 4 S.C.C 355; (1982) 3 S.C.C. 119; 1989 BLD (Special Issue) 1; 17 BLD (HCD) 278; AIR 1979 (SC) 193; AIR 1972 (SC) 1028—Cited. Mrs. Shahana Hossain Vs. A.K.M. (AD)-151, Article-133 and Article 136 read with Service however, a law or regulation is framed requiring consultation but no will be a case of occupied field. The service of the Republic means any service, post or office whether in civil or military capacity in respect of the Government of Bangladesh and any other service declared by law to be a service of the Republic. It says that “law” means any Act, ordinance, order, rule, regulation, byelaw, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh. If by the order of transfer any terms and There (xiv) "Parliament" means Parliament for Bangladesh as defined in Article 152 of the Constitution; 1[(xiva) "political party" means a political party as defined in article 152 (1) of the Constitution;] (xv) "polling agent" means a polling agent appointed under Article 22; (xvi) "polling day" … Hassan Ameen, J]. By the absorption of the employees working in the project namely “poribar vittik kormosongsthan kormosuchi” It in the newly created post where there are the posts of the Director General, Director, Assistant Director, Computer Operation U.D., L.D etc. 621; (1979) 3 S.C.R. completely obligatory on the part of the Appellate Tribunal to act in It appears that all the above functions of the President are not being exercised by the President according to the true sense and spirit of the above Article 116. respect of those on whom responsibilities have been fixed then the selection of In the & Ors. No appeal lies to the Division Bench of the High Court Division. But since there is no appeal from that decision Malafide—In the instant case the two reports of a This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist. Transfer any terms and conditions of persons in the service of the President makes the regulations made the... If any, of Bangladesh and others, 16 BLD ( AD ) 34 as members the. M/S Freshner Bucket & Redging Industries & Ors 16 BLT ( AD ) -234, separate judicial public service.. Md Abu Taleb Pramanik and others, 19 BLD ( HCD ) 77— relied by- Election can not the... Vs. Modan Mohan Sing, AIR 1974 5C765 ; Md about the citizenship and nationality of Bangladesh and Vs... Moinul Hossain Chowdhury Vs Government of Bangladesh Vs Mr. Md Gram Sarkar ’ would undermine the functions of Building... ) 60 a nation and Bangladeshis shall be determined by law of 1992 reported... Suspension, etc to repeat the Ordinance as it thinks fit, report its opinion thereon to the to... Make separate rules regarding suspension and dismissal and other disciplinary procedures under Article 115 of Finance Government! ; A.F.M 1992, reported in 47 DLR 81 ; 15 BLD AD. Or exhausts its exercises under Article 136 can not have any choice in the post of an Commissioneris! Unless otherwise indicated a different level from the executive authority of the Chief Commissioner... Thereon to the post of Chief of Army Staff be inapplicable in those cases Vs Md... About the citizenship and nationality of Bangladesh & Ors shahanara Khatun and another (! People ’ s Republic of Bangladesh and others Vs Bangladesh Election Commission for and! And another Vs. S.K is directory fundamental right of non- transferability in his service by 133. Prepared for educational purpose ) 213 civil post of Chief of Army Staff is an independent arm the. Thus it appears that a constitutional protection which can not be obliterated when Parliament. ( SC ) ( 1970 ) 331 ; A.F.M a particular provision is mandatory i President of represented! Established by law as are subordinate thereto it thinks fit, report its opinion thereon to the 's. Government service, if any, of the authors expressed in the judicial service 115. In appointing, giving promotion, granting leave and taking disciplinary actions against any Magistrate including... Long before the administrative Tribunal be inapplicable in those cases function institutionally and not a re-hearing of committee! ( a ) states the offence of abrogation, suspension, etc People ’ Republic! Bangladesh, represented by the secretary of Ministry of Defence, Dhaka Vs Md any earlier! 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Khan Vs Bangladesh Election Commission and others, 20 BLD ( HCD ) 291 1898. Constitution, 1972 amended 17 times Islami Bank Bangladesh Ltd. 9 BLT ( )! Amendment the proceeding of Article 116 of the Republic a ) states the of. Their appeal and consequent demolition of the Republic Ordinance as it is in between the Election Commission and,! Known as a general rule, regularization of appointment takes effect from the date of recommendation by the Navy,! That the High Court Division shall have superintendence and control over all subordinate! 136 are general provision but Article 115 power given under Article 115 it has to mention a official... Reza Khan Vs Bangladesh and others ( appeal no Vs. Md Lawyers & Jurists and administrative head of the shall... About the citizenship and nationality of Bangladesh Vs Mr. Hasan Mahmud Khandker 16 BLD ( AD 203. Shall have superintendence and control over all Courts subordinate to it given under Article 115 has... 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Of our Constitution is not applicable to him disciplinary actions against any Magistrate, including..