Dhaka International University

Department of Law

An assignment
on
Mr. Alim, who is a government employee, has been dismissed from his service wrongfully by
the authority. What action can be taken by Mr. Alim in this regard? Answer it mentioning the
jurisdiction of administrative tribunal in Bangladesh & comparison between appellate
administrative tribunal of Bangladesh & council of state of France.

Course: LLM 3102:Comparative Legal System

Submitted to

------------------
Course Teacher
LLM 3102: Comparative Legal System
Department of Law
Dhaka International University
Submitted by

Md. Salahuddin
Roll: 41
Reg code: LLM-2-30-19-112750
Batch: 30th
Department of Law
Dhaka International University

Date of Submission: 29 June, 2020

0
 Table of Contents
Sl. Titles Page
NO Number
1. Question and Introduction 2
2. The Government Servants (Conduct) Rule, 1979 2
3. The Government Servants (Discipline & Appeal) Rule, 1985 2-3
4. The Government Servants (Special Provisions) Ordinance, 1979 3
5. Brief of Administrative Tribunal of Bangladesh 3
6. Procedure of action for Mr. Alim: 4
7. The Administrative Appellate Tribunal 5
8. Jurisdiction and Power of the Administrative Appellate Tribunal 6
9. Status of Administrative Appellate Tribunal in relation to the High Court 6
Division
10. Council of State of France 7
11. Formation of Council of State of France 8
12. Division of Council 8
13. Jurisdiction and function 9
14. Procedure of Court 10
15. Comparison 11
16. Conclusion 11

1
 LLM-2-30-19-112750 Batch: 30th , Roll: 41

Topic:

Mr. Alim, who is a government employee, has been dismissed from his service wrongfully
by the authority. What action can be taken by Mr. Alim in this regard? Answer it
mentioning the jurisdiction of administrative tribunal in Bangladesh & comparison
between appellate administrative tribunal of Bangladesh & council of state of France.

The aforesaid topic of assignment is consisting of two questions. To make it more clear and
readable, my assignment would be divided into two parts as following:

Part One: Mr. Alim, who is a government employee, has been dismissed from his service
wrongfully by the authority. What action can be taken by Mr. Alim in this regard? Answer it
mentioning the jurisdiction of administrative tribunal in Bangladesh.

Part Two: Comparison between Appellate Administrative Tribunal of Bangladesh & Council of
State of France along with what action can be taken by Mr. Alim in the legal system of France.

Part One

As per Constitution of Bangladesh, we live in a limited government system. It does mean nobody
can act beyond the law. An employee of People’s Republic of Bangladesh is also limited by the
several rules and regulations of public service. A government employee shall be abiding by the
followings:

The Government Servants (Conduct) Rule, 1979

The conduct and behavior of a Government employee, during the performance of his duties and
in his private life are regulated by the Government Servants (Conduct) Rule, 1979. The staff and
the officers of the Government (with the exception of some departments/agencies mentioned in
Rule 2, who have their own establishment rule) are to abide by these rules either working inside
or outside of Bangladesh, whilst on leave or on deputation to any other institution, authority or
agency. The violations of any of the Government Servants (Conduct) Rules are considered as
misconduct. For such violation, an employee is accused of breach of discipline and subjected to
being punishable under “The Government Servants (Discipline and Appeal) Rules 1985.”

The Government Servants (Discipline & Appeal) Rule, 1985

This Rule shall apply to all Government servants, with the exception of some
departments/agencies (for example the Railways and BDR) who have their own establishment
code. A Government servant is subjected to this rule when, in the opinion of the authority he is:
1. Inefficient; 2. Guilty of misconduct; 3. Guilty of desertion; 4. Corrupt or may reasonably be
considered corrupt; 5. Engaged or is reasonably suspected to be engaged in subversive activities.
But a Government servant under this rule may appeal against any order: 1. imposing upon him
2
any penalty; 2. altering, varying or denying to his disadvantages his pay, allowances, pension or
other condition; 3. interpreting to his advantage, the provision of any rule or contract of service
whereby his pay, allowance, pensions etc. are regulated. However, according to this rule the
incumbent may apply to the President for review of the order.

The Government Servants (Special Provisions) Ordinance, 1979

This ordinance makes special provisions for maintaining discipline among Government servants.
The ordinance will take precedence over any other rules and regulations in this respect. Any
action taken or penalty imposed under provisions of this ordinance cannot be put up or
challenged in any Court of Law. However, one can appeal to the appropriate authority or to an
appellate authority within a certain time limit. The rules under this ordinance are applied when a
Government employee is accused of the following offences:
1. To indulge in activities for which office discipline is broken or causing a situation not
congenial for work.
2. To refrain from attending duties without taking permission either individually or collectively
and failure to perform the works assigned.
3. To incite or obstruct any Government employee so that they remain absent from the office and
do not perform their duties.

Here we consider that Mr. Alim did not breach any provision of conduct of public service.
Neither he is a member of defense nor he fall in any exception. So, we consider that Mr. Alim
has been dismissed wrongfully from his service. Mr. Alim has right to defend his case before
Administrative Tribunal following the provisions of the Administrative Tribunals Act, 1980 (Act
VII of 1981).

Brief of Administrative Tribunal of Bangladesh:

Article 117 of the Constitution of Bangladesh sanctions the setting up of Administrative

Tribunals. Administrative Tribunals in Bangladesh owe their existence to the Administrative
Tribunals Act, 1980 (Act VII of 1981). The specific purpose of the act is to establish tribunals to
exercise jurisdiction in respect of matters relating to the terms and conditions of persons in the
service of the republic. The tribunal consists of one member to be appointed by the government
who is or has been a district judge. The terms and conditions of the appointment of the member
are to be determined by the government. At present there are two administrative tribunals, one
located at Dhaka and the other at Bogra1.

Procedure of ction for Mr. Alim:

1
http://en.banglapedia.org/index.php?title=Administrative_Tribunal#:~:text=Administrative%20tribunals%20in
%20Bangladesh%20owe,the%20service%20of%20the%20republic.

3
Mr. Alim is allowed to appear before tribunal under section 4 of the Administrative Tribunals
Act, 1980. Section 4(1) reads as ‘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 of any statutory public authority.’

Section 4(2) also includes that Mr. Alim could file an application under section 4(1) but 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 concerned or making of
the decision on the matter by the higher administrative authority, as the case may be. So there is
a time bar as per law.

The aforesaid tribunal will lead Mr. Alim’s application under section 7 of this Act. Section 7
empowers Tribunal to exercise powers of civil Court, while trying a suit under the Code of Civil
Procedure, 1908 (V of 1908). The Tribunal in respect of the Mr. Alim’s application may follow
the following matters, namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of any document;
(c) Requiring evidence on affidavit;
(d) Requisitioning any public record or a copy thereof from any office;
(e) Issuing commissions for the examination of witnesses or documents;
(f) Such other matters as may be prescribed.

If Mr. Alim is not satisfied by the decision of the tribunal, he may come before the
Administrative Appellate Tribunal under Section 6 of this Act. Section 6(1) reads as ‘The
Administrative Appellate Tribunal shall have jurisdiction to hear and determine appeals from any
order or decision of an Administrative Tribunal.

(2) Any person aggrieved by an order or decision of an Administrative Tribunal may, within
three months from the date of making of the order or decision, prefer an appeal to the
Administrative Appellate Tribunal.

(2A) Notwithstanding the provisions of sub-section (2), an appeal may be admitted after the
period of three months specified in that sub-section but not later than six months, if the appellant
satisfies the Administrative Appellate Tribunal that he had sufficient cause for not preferring the
appeal within three months.

In the second part of this assignment a brief on administrative appellate tribunal would be
described. The aforesaid description shows that there is proper place to seek justice if any
government service holder is wrongfully dismissed or penalized by any way.
4
 Part Two

 Comparison between the Administrative Appellate Tribunal of Bangladesh & Council of

State of France along with what action can be taken by Mr. Alim in the legal system of
France.

This part itself indicates that a brief description on both Appellate Administrative Tribunal of
Bangladesh and Council of State of France. Finally comparison between Appellate
Administration Tribunal and Council of State of France would be described.

The Administrative Appellate Tribunal:

The Act also provides for the establishment of an administrative appellate tribunal. The
Appellate Tribunal consists of one chairman and two other members to be appointed by the
government. The qualifications and experience for appointment of chairman and members are
also provided in the Act. The chairman has to be a person who is, or has been, or is qualified to
be a judge of the Supreme Court or has been an officer in the service of the republic not below
the rank of an additional secretary to the government. As for the two members, one has to be a
person who is or has been an officer in the service of the republic not below the rank of a joint
secretary. The other member will have to be a person who is or has been a district judge. The
terms and conditions of appointment are determined by the government. The Administrative
Appellate Tribunal is required to be established by a gazette notification. Such notification
establishing the appellate tribunal was issued on 22 August 1983. The jurisdiction of the
appellate tribunal extends to hearing and determining appeals from any order or decision of an
administrative tribunal. Any person aggrieved by an order or decision of an administrative
tribunal may, within two months from the date of making of the order or decision, prefer an
appeal. The appellate tribunal may confirm, set aside, vary or modify any order or decision of the
administrative tribunal. The order passed by the appellate tribunal is final. The powers and
procedures of the tribunals are also provided in the Act. All proceedings before a tribunal are
deemed to be a judicial proceeding2.

Jurisdiction and Power of the Administrative Appellate Tribunal:

2
http://en.banglapedia.org/index.php?title=Administrative_Tribunal#:~:text=Administrative%20tribunals%20in
%20Bangladesh%20owe,the%20service%20of%20the%20republic.

5
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.

Status of Administrative Appellate Tribunal in relation to the High Court Division:

Administrative Appellate Tribunal is not under the subordination of the High Court Division
(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 Mujibur Rahman 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-
6
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.

Furthermore, 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. However, for both
High Court Division and Administrative Tribunal 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 authority3.

Council of State of France:

In France there are not two (as it is often said) but three court systems: the administrative system
(ordre administratif) comprising the administrative courts; the judicial system (ordre judiciaire)
with its judicial courts; and the constitutional system (ordre constitutionnel) which includes only
the Constitutional Council (Conseil constitutionnel).4 So, If Mr. Alim is a French citizen he may
file his application before an administrative court among 37of the countries. Whereas, The
administrative courts handle lawsuits involving the French State, local authorities or other public
authorities ruled by public law. Administrative courts handle, for example, litigation with a
mayor’s office on the grant of a building license. The administrative courts are divided into three
tiers: 1. First instance courts – administrative courts (Tribunal administratif); 2. Intermediate
appellate courts – administrative courts of appeal (Cour administrative d’appel);3. Courts of last
resort – the Council of State (Conseil d’Etat).5

In France, the Council of State is a body of the French national government that acts both as

legal advisor of the executive branch and as the supreme court for administrative justice.
Established in 1799 by Napoleon as a successor to the King's Council (Conseil du Roi), it is
located in the Palais-Royal in Paris and is primarily made up of top-level legal officers. The Vice
President of the Council of State ranks as the ninth most important civil servant in France.
Members of the Council of State are part of a Grand Corps of the French State (grand corps de
3
https://www.lawyersnjurists.com/article/administrative-tribunal-of-bangladesh/
4
https://www.cairn-int.info/article-E_POUV_123_0051--the-council-of-state-the-supreme-court-o.htm#
5
https://www.berton-associes.us/blog/litigation-in-france/french-court-system-overview/#:~:text=The
%20administrative%20courts%20in%20France,grant%20of%20a%20building%20license.

7
l'État). The Council of State mainly recruits from among the top-ranking students graduating
from the National School of Administration ( École nationale d'administration). The Council sits
in the Palais Royal located in Paris.

Formation of Council of State of France:

A General Session of the Council of State is presided over by the Prime Minister or, in his
absence, the Minister of Justice. However, since the real presidency of the Council is held by the
Vice-President, he usually presides all but the most ceremonial assemblies. This is also done for
obvious reasons pertaining to the separation of powers.

Other members of the Council include, in decreasing order of importance:

 Department heads (président de section)

 Councillors ordinary (conseiller d'État ordinaire)
 Councillors extraordinary (conseiller d'État en service extraordinaire)
 Masters of requests (maître des requêtes)
 Master of requests extraordinary (maître des requêtes en service extraordinaire)
 Senior masters (auditeur de première classe)
 Masters (auditeur de deuxième classe)

The Vice-President is appointed by Order-in-Council on the recommendation of the Minister of

Justice and is selected from among the Council's department heads or councilors ordinary.
Division heads are similarly appointed and selected from among the councilors ordinary.
Councilors ordinary, masters of requests, and senior masters are appointed based on seniority
from the preceding rank. Appointees from outside the Council may include administrative law
judges or may come from outside the justice system. Masters are recruited from among the
graduates of France's National Administration Academy.

Division of Council:

The Council is divided into 7 divisions:

1. Administrative Claims (section du contentieux) .
2. Report and Studies (section du rapport et des études): writes the annual report, conducts
studies and helps to oversee judgments and verdicts are carried out.
3. Finances (section des finances),
4. The Interior (section de l'intérieur),
5. Welfare and Social Security (section sociale),
6. Public Works (section des travaux publics)
7. Administrative Issues (section de l'administration) 

8
Jurisdiction and function:

The Council acts as the supreme court of appeal for administrative law courts. It hears both
claims against national-level administrative decisions (e.g., orders, rules, regulations, and
decisions of the executive branch) and appeals from lower administrative courts. The Council's
decisions are final and non-appealable. While strictly speaking the Council is not a court, it
functions as a judicial body by adjudicating suits and claims against administrative authorities.
Plaintiffs are represented by barristers drawn from the Senior Court bar whose members are
licensed to argue cases before the Council and French Supreme Court; any such barrister bears
the title of Counsel at Senior Court (avocat aux Conseils). The council has both original and
appellate jurisdiction as described in the following:

 The Council hears cases against decisions of the national government, e.g., government
orders, ministerial rules and regulations, judgments handed down by committees,
commissions, and boards with nationwide jurisdiction, as well as suits concerning
regional and EU electoral matters. The Council has full discretion to adjudicate on the
legality of any executive branch decision except for the very narrow category of "acts of
government" for which it considers itself forum non conveniens. The Council has judged
that such acts are restricted to:
 Relationships between the executive branch and the legislative branch, e.g.,
whether a bill should be submitted to Parliament;
 Acts that are part and parcel of France's foreign policy.
In this role, the Council provides a powerful check on the actions of the executive.

 The Council of State has appellate jurisdiction over local election judgments from any of
the 37 administrative courts. It acts as a final Court of cassation for decisions originating
from any of the eight appellate administrative courts, meaning that it hears cases in which
the plaintiff argues that the appellate court ignored or misinterpreted the law. Should it
decide that the original appellate court took the wrong decision, the Council of State will
in most situations transfer the case to a different administrative court of appeal, to be re-
judged. However, in the interest of swifter decision-making and correct interpretation of
the law (bonne administration de la justice),  it also has the right to rule on the case
without transferring it, thus acting as an appellate court in last resort (jugement en
dernier ressort).

Procedure of Court:

Like nearly all French courts, the Council's court system is inquisitorial, and proceedings are
initiated by a statement of claim detailing the factual background of the case and why the

9
appellant should be granted relief. The Council then begins a formal investigation, asking the
appellant, i.e., the government or a government agency or office, to satisfy the Council with a
detailed statement of defense. Burden of proof does not lie with the plaintiff; instead, the Council
decides whether or not the appellant has cause to bring suit and whether the government was in
error if information provided by the appellant is sufficient to locate previously undisclosed
evidence. Of course, both parties may submit additional pleadings and information until the case
is ready for final judgment.

There are 10 chambers. The bigger cases are attributed to united chambers (chambres réunies), a
configuration made up of two chambers, although, for some important fiscal cases, three or four
chambers can be concerned, coalescing into an ad hoc formation, the "full fiscal" (plénière
fiscale) chamber. The more important cases are for the administrative claims
department judgment formation. Only the very important cases, with hard, new and/or important
legal issues are concerned. There are about between 20 and 40 cases per year into this specific
formation, which includes the president of the ten chambers, the three assistant-presidents of the
administrative claims department and the president of the department, which, in addition to the
magistrate responsible of the investigation about the case, reaches 15 members. The major cases
are resolved by the administrative claims assembly (Assemblée du contentieux). All the
presidents of departments are there, under the presidency of the Vice-President of the Council of
State. Less than 10 cases per year are concerned. All the cases, even the ones eventually resolved
by the Assemblée du contentieux, are first studied by a chamber.

Since an order of 2009 (2009–14, 7 January 2009), there is a possibility for the parties to speak
after the rapporteur public's conclusions. Lawyers use this possibility only for major cases, when
it can make a significant difference (e.g. for the Hoffmann-Gleman case – 16 February 2009 –
concerning the indemnisation of the daughter of a deported Jew during the World War II,
involving the French state's responsibility).

In some cases, there may be some confusion as to whether a case should be heard before
an administrative law court or judicial court, in which case the Court of Jurisdictional Disputes,
or tribunal does conflicts, made up of an even number of State councilors and Supreme Judicial
Court Justices, is convened to decide to whom the matter shall be vested. Until 2015, this Court
was chaired by the Minister of Justice, whose vote would break any potential tie. As of 2015,
court members elect a president amongst themselves for 3 years, and, in case of a tie, the court's
composition can be modified to include several more judges.

Exercising judicial review over almost all acts of the executive branch, the Council of State's
judgments may be of considerable importance, often not for the actual case judged, but for its
importance in shaping legal interpretation. While France is a civil law country and there is no
formal rule of precedent (stare decisis), lower courts follow the jurisprudence constante doctrine
with regard to the Council of State. The Council's major rulings are collected into law reports
10
and commented on by scholars; the Council's official website carries a list of comments on
important decisions. The Council has shaped its own legal doctrine which consists mostly of
principles deduced from cases but incorporates considerable jurisprudence derived
from statutes.6

Comparison:

The above described brief on both The Administrative Appellate Tribunal and The Council of
State itself is a comparison between them. Furthermore for make it specific, the following
comparison shall be included to leave this assignment:

1. The administrative tribunal was established by the Administrative Tribunal Act, 1980
(Act VII of 1980) and notification of establishing Appellate Tribunal was issued on 22 nd
August, 1983. Whilst the Council of State of France was established in 1799 by Napoleon
as a successor of the King’s council.

2. The Administrative Appellate Tribunal is consisting of one chairman and two members to
be appointed by the government. On the other hand a General session of the Council of
state is presided by Prime minister and in his absence Minister of Justice. Council also
includes 07 others members, among them Vice-president is appointed on the
recommendation of Minister of Justice.

3. The Administrative Appellate Tribunal has only Appellate Jurisdiction, whereas the
council of the State has both Original and Appellate Jurisdiction.

4. The Administrative Appellate Tribunal is totally a separate judicial body and not
subordinate to High Court Division. But in France, the Council of the State is a body of
France National Government that acts both as legal advices of the executive branch and
as the Supreme Court for Administrative Justice.

Finally it can be stated that Mr. Alim who is wrongfully dismissed from government job can go
through the Administrative Tribunals Act, 1980 and Administrative Appellate Tribunal in
Bangladesh. Finally he can pray to the Honorable President of Bangladesh. If Mr. Alim is a
French citizen he may file his application before an administrative court among 37of the
countries. Whereas, The administrative courts handle lawsuits involving the French State, local
authorities or other public authorities ruled by public law.

6
https://en.wikipedia.org/wiki/Conseil_d%27%C3%89tat_(France)#:~:text=In%20France%2C%20the%20Council
%20of,supreme%20court%20for%20administrative%20justice.

11