Section - 6(3): Whether the Appellate Tribunal was wrong in applying the doctrine of proportionality: The AAT while observing "the order dismissal from service has been unreasonably severe in consideration of the nature of the guilt and the said order is liable to be modified" has not assigned any reason in support of the said observation nor has held that the" punishment imposed was illegal or vitiated by procedural impropriety, rather the AAT had held that "there has been no procedural defect in the departmental proceeding". The AAT has also not recorded any finding as to irrationality of the punishment awarded nor it has held that the decision of the appellant No.1 is one which no sensible person who weighed the pros and cons could have arrived at and that there is no finding, based on material,4that_ the punishment awarded was in 'outrageous' defiance of logic; —Held In our view the AAT was in serious error in modifying the order of dismissal in the manner as stated hereinbefore upon importing the concept of proportionality which has no application in instant case in the background of the decision reported in 46 DLR (AD) 85 and further while the said concept is non- existent in the field of administration of justice in Bangladesh.

Section-6(3): To reinstate the respondent in service - Sub-Section 3 of Section 6 of the Act empowers the Administrative Appellate Tribunal to consider set aside, vary or -Modify any order A or decision of an Administrative Tribunal on an appeal.

Section-4(2) read with Limitation Act, 1908 Section-14: Section-14 of the Limitation Act is not applicable to the proceeding before the tribunal.

Section-4(2) Read with Article-146 of Constitution of Bangladesh, 1972: Condonation—Principle: In the present case the Government of Bangladesh was there in the application of the appellant but it was not properly described that is to say, the word "secretary" should have followed the words "Government of the People's Republic of Bangladesh" and not preceded it—it will be, however, a matter for consideration in each case whether the irregularity of describing a necessary pan} properly the "same "should prove -fatal or whether it can be condoned. In the present case, condonation principle should apply.

Section-4(2): The departmental appeal was rejected on 5.6.88 by the higher administrative authority and the case was filed before the Administrative Tribunal on 24.5.85. Hence it is barred by limitation as the provision of Section 4(2) contemplates filing of the case within, six_ ‘months from the disposal of the appeal by the higher administrative authority.

Section-4(2) :Jurisdiction of the Administrative Tribunal — respondent was appointed as an officer of the appellant Bank on 4-.1-78 and. he was given invalid retirement on his own seeking on 15.10.89. Thereafter on 15.4.90 he submitted an application for re- employment in the Bank. The authority. rejected his application for re-employment by order-dated l6.3.92 Held : It is clear that the jurisdiction of the ‘Tribunal is attracted when the person is in the service of the Republic of any statutory public authority but in the present case the former service of the respondent had ceased to exist and the question of re-employment is an issue wherein the respondent has no legal claim in the service of the appellant Bank. It is purely a matter of discretion for the appellant to re-employ the respondent and if, for any reason the appellant does not feel inclined to 'reemploy the respondent, that matter" cannot be brought within the jurisdiction of the Administrative Tribunal not being covered by the Provision of Section 4(2) of the Administrative Tribunal Act, 1980.

Section-4 read with Government Servants (Discipline and Appeal) Rules, 1985 Rules-4(5)(c): Whether the Tribunal is "competent to see proportionality of the Penalty or to alter the Penalty imposed by the authority. A Tribunal is competent even to vary or modify‘ an order including an order of punishment/sentence in exercise of its powers under section 4 of the Act.

Section - 4(2): Maintainable- we find that actually the second proviso to sub-section (2) of section 4 of the Administrative Tribunal Act came into force on 19.11.1997 whereas the case was filed by the respondent before the Administrative Tribunal on 28.9.1997. So, the question that the case was barred because the respondent did not file any review before the President in respect of the order of his dismissal from service does not arise.

Section-4 read with Rule-17 of The Government Servant's (Discipline and Appeal) Rules, 1985 Point of Limitation - the Limitation for the purpose of Section 4 of the Act would run from the date of the rejection of the first appeal. The view taken by the Appellate Tribunal was, therefore, right.

Section-34: No cross cause has been filed shortly after the filing of the Principal cause. But written statement was promptly filed in the Principal cause along with a counter claim for an amount for which cross cause was subsequently filed—it has not in any way prejudiced any legal right that can be-said to have accrued to the plaintiff of the Principal cause—it would be just and proper if the plaintiff of the Principal cause is required to furnish a Bank Guarantee of the equal amount which the defendant of the Principal cause has furnished.