Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

HIGH COURT DIVISION

(ORIGINAL STATUTORY JURISDICTION)

Mr. Zubayer Rahman Chowdhury,   J.

 

Judgment

01.06.2010.

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Startus Construction Company

.…. Petitioner

VS

Roads and Highways Department, Ministry of Communication, Government ofBangladesh

… Respondent

&

Roads and Highways Department, Ministry of Communication, Government ofBangladesh.

– –  -Petitioner

VS

Startus Construction Company

. . . Respondent

Dr. Kamal Hossain, Senior Advocate with

Mr. Ashraful Hadi, Advocate with

Mr. Tanim Hussain Shawon, Advocate

… For the petitioner

Mr. A.F. Hassan Arriff, Senior Advocate with

Ms. Khaleda Zaman, Advocate with

Mr.Md.Ashik Al Jalil, Advocate with

Ms. Ruhi Naz, Advocate

….. For the respondent

Mr. A.F. Hassan Arriff, Senior Advocate with

Ms. Khaleda Zaman, Advocate with

Mr.Md.Ashik Al Jalil, Advocate with

Ms. Ruhi Naz, Advocate

. . . For the petitioner

Dr. Kamal Hossain, Senior Advocate with

Mr. Ashraful Hadi, Advocate with

Mr. Tanim Hussain Shawon, Advocate

… For the respondent

Arbitration Act (I of 2001)

Section 42 (2) and 43 (1) (a) (IV)

It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before the Court. The impugned order including the modified order are set aside.

From the observation quoted above, it appears that no counter claim was filed by the Roads and Highways Department, but the Tribunal nevertheless proceeded to make an Award in their favour which was beyond their terms of reference. It is also admitted by Mr. Hassan Ariff, learned Advocate appearing on behalf of the Roads and Highways Department that only three disputes were referred to the Tribunal and upon commencement of the procee-ding, the Tribunal framed as many as seven issues, as has been quoted earlier in this judgment. However, from a reading of the same, it does not appear that it relates to any counter claim filed by the Department.          

…(25)

It also appears that certain issues, which were not referred to the Tribunal, were taken up and decided by the Tribunal on its own accord. In my view, it would be reasonable to infer that in such circumstances, the Tribunal had indeed acted beyond its jurisdiction. The Tribunal exceeded its jurisdiction by abrogating to itself issues which were not referred to it by the contending sides. The issues relating to, advance, cost of bitumen, retention of advance money, advance income tax are some of the issues which, admittedly, were not referred to the Tribunal, but upon which the Tribunal made a pronouncement and gave an Award in favour of the  Department.     …(26)

Having regard to the statements made in the application before this Court, the relevant provision of law, the submissions advanced by the learned Advocate for the contending sides and last, but not least, having considered the decisions referred to above, with which I find myself in total and respectful agreement, I am inclined to hold that the Arbitral Tribunal travelled beyond its jurisdiction by entertaining and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set aside.                                   . . .(34)

Varat Cooking Coal Limited, 200 C 8 SCC 154; West Bengal Industrial Infra-Strictire Development Corporation v. M/s. Star Engineering Co., AIR 1987 Calcutta 126; Chetandas and others v. Radhakrisson Ramchandra and others, AIR 1927 Bombay 553; Bengal Jute Mills vs. Jewraj Heeralal, reported in AIR 1943 Calcutta 13 ref.

Judgment

Mr. Justice Zubayer Rahman Chowdhury

Arbitration Application No. 02 of 2004 relates to an application for setting aside an arbitration Award under section 42(2) and section 43 of the Arbitration Act, 2001 at the instance of Startus Construction company, a company incorporated in Iran and having its local office Apartment- 5A, House No. 15, Road no. 17, Sector No. 7, Uttara Model Town, Dhaka 1230, Bangladesh. The application is being opposed by the sole respondent, namely Roads and Highways Department, Ministry of Communications, Government of People’sRepublicofBangladesh, Sarak Bhavan,Dhaka,Bangladesh.

  1. 2.           Arbitration Application No. 03 of 2004 filed under section 42(2) read with section 43(1)(a)(iv) of the Arbitration Act, 2001, is at the instance of Roads and Highways Department, Ministry of Communi-cation, Government of the People’s Republic of Bangladesh, Sarak Bhaban, Ramna, Dhaka for setting aside portion of the Award dated 13.05.2004 (as modified by Award dated 23.06.2004) passed by the Arbitration Tribunal in an arbitration proceeding between the petitioner and the respondent/opposite-party. The aforesaid application is being opposed by Startus Construction Company, the petitioner of Arbitration Application 2 of 2004.
  2. 3.           Since both the applications arise out of the Award dated 13.05.2004 (as modified by order dated 23.06.2004) passed by the Tribunal, Dhaka in an arbitration proceeding between Startus Construction (claimant) and Roads and Highways, Government of People’s Republic of Bangladesh and furthermore, since both the petitioner and the respondent in the aforesaid two Arbitration Applications are the same, both the applications were taken up and heard simultaneously and they will be disposed of by this single judgment.
  3. 4.           A brief summary of the relevant facts is required to be stated for the purpose of disposal of the two applications before this Court.
  4. 5.           Startus Construction Company (hereinafter referred to as the company) entered into a contract with the Roads and Highways, Government of People’sRepublic ofBangladesh (hereinafter referred to as the Department) for construction/rehabilitation of roads and highways between Joydebpur and Kaliakair measuring approximately 26.60 km. After completion of necessary formalities, the company commenced work under the contract and duly compl-eted part of the work upto 5 km. However, while undertaking the work in the first 5 km of the project, the company faced certain obstacles with regard to underground gas pipe lines and requested the Depart-ment to take necessary steps for removal of the gas pipe lines in order to enable the company to undertake and complete the project work without any hindrance. Despite assurance from the respondents, the matter was not resolved and at one stage, the project work was suspended. The parties engaged in discussion and exchange of correspondences, which also invoved various other Ministry/Departments of the Government.
  5. 6.           Ultimately, since there was no further progress in the matter which had comes to a standstill, the company issued a notice dated 14.08.2001 determi-ning the contract and claiming compensation as well as requesting for return of the Bank Guarantee which was furnished earlier. Subsequently, the company also served a notice of Arbitration on 20.08.2001. On the other hand, the Department by its letter dated 16.08.2001, approved various orders and voluntarily extended the contract period upto 06.05.2002, but three days later, it terminated the contract by letter dated 19.08.2001.
  6. 7.           The dispute between the parties was referred to a three members Arbitration Tribunal comprising of Mr. Justice Sultan Hossain Khan as Chairman and Mr. Justice M.A. Karim and Mr. Justice M.M. Hoque as members of the Tribunal. The Department duly entered appearance and participated in the arbitration proceeding.
  7. 8.           Upon commencement of the arbitration procee-ding, the Tribunal framed the following issues

“(1)      Has the Employer committed breach of contract in not removing the gas pipeline and thus prevented SCC from performing the latter’s promise?

(2)    Has the Claimant sustained any loss in consequence of its non-performance of the contract ? If so, what compensation it is entitled to?

(3)        Is the certification of default of the Contractor issued by the Engineer basel-ess and illegal?

(4)        Is the contract liable to be terminated at the instance of SCC in view of Section 53 of the Contract Act ?

(5)        Has the termination of the contract by the Employer been legal and valid ?

(6)        Has the valuation of the variations by the engineer been legal and valid?

(7)        Is the Claimant entitled to get the Award as prayed for including the additional claim against bitumen and cost of the proceeding ?”

  1. 9.           Both sides filed written statements, replies, additional and further statements and replies thereto, documents and other related papers. The Tribunal also examined witnesses.
  2. 10.        Upon conclusion of the arbitration proceeding, the Tribunal, by order dated 13.05.2004, dismissed the claim of the company and made a Award of Tk. 6,25,46,127.66 (Taka Six Crore Twenty Five Lac Forty Six Thousand One Hundred and Twenty Severn and Paisa Sixty Six) only in favour of the Roads and Highways Department. The Tribunal also ordered the release of the Bank Guarantee in favour of the company.
  3. 11.        Subsequent thereto, upon an application filed by the company for correction of the Award dated 13.05.2004. Consequently, the Tribunal, by order dated 23.06.2004, allowed the application and corrected the Award by reducing the Award amount to Tk. 3,29,82,629.56 (Taka three corer twenty nine lac eighty two thousand six hundred twenty nine and pais fifty six) in favour of the Department. Being aggrieved by the aforesaid Award dated 13.05.2004 (as amended by order dated 23.06.2004), the company filed Arbitration Application No. 2 of 2004 praying for setting aside the award.
  4. 12.        At the same time, the Roads and Highways Department, as petitioner, also preferred Arbitration Application No. 03 of 2004 praying for correction of the Award by setting aside a part of the Award darted 13.05.2004 (as amended by order dated 23.06.2004), in particular, paragraph 18.6, 18.7, 18.8, 18.9, 22, 24, 25.4 26 and 27 of the Award under section 42 (2) read with section 43 (i)(a)(iv) of the Act and also for passing a corrected Award in terms of prayers A to E of paragraph 7 of the application.
  5. 13.        At the very outset, this Court takes note of the fact that the pleading and documents annexed in the two arbitration applications runs into hundred, if not thousands of pages. In fact, the related documents had to be brought into the Court in a trunk, which at first sight, made the Court slightly apprehensive. However, having gone through most of the documents and papers, this Court was remind of an age old Bangla saying ÒhZ M‡R© ZZ e‡l© bv|Ó
  6. 14.        Dr. Kamal Hossain, learned Senior Advocate appears for the Startus Construction Company in Arbitration Application No. 2 of 2004, while Mr. A.F. Hassan Ariff, Senior Advocate appears with Mr. Md. Ashik Al Jalil in support of the Arbitration Applic-ation No. 3 of 2004.
  7. 15.        During the course of his submission, Dr. Kamal Hossain has challenged the Award primarily on the issue of jurisdiction. Dr. Hossain submitted emphati-cally that although the respondents in the Arbitration proceeding i.e. the Roads and Highways Department did not make any counter claim before the Tribunal, the Tribunal, on its own volition, made an Award in favour of the Department upon rejecting the claim of the claimant. Dr. Hossain refers to the issues framed at the commencement the arbitration proceeding and submits categorically that no such issue relating to any counter claim was filed by the Department and therefore, in the absence of any claim in that respect, the Award made by the Tribunal allowing counter claim under several heads in favour of the Department is quiet clearly an Award which is beyond the jurisdiction of the Tribunal.
  8. 16.        Dr. Hossain has also argued with some considerable force on the merit of the Award itself. However, I do not wish to enter into the merit of the Award for reasons that I shall state at a subsequent stage of this judgment.
  9. 17.        Dr. Hossain has also referred to two expert’s opinions, which were framed before the Tribunal by the claimant company given by one Engineer A.B.M. Fazley Elahi, former Managing Director, Rupantorito Pakritik Gas Limited RPGL, Petro Bangla and former General Manager, Tital Gas Transmission and  Distribution Company Limited as well as the evidence of one Mr. Md. Mobarak Ali, former Chief Instructor of Explosives, Government of Bangladesh. Dr. Hossain has argued that the Tribunal erred and misconducted itself in not considering these two vital pieces of evidence upon which the claimant company had placed considerable reliance. Therefore, according to Dr. Hossain, the impugned Award in question is liable to be set aside, having been passed without jurisdiction and also because of the failure of the Tribunal to consider material evidence which was placed before the Tribunal.
  10. 18.        Mr. A.F. Hassan Ariff, learned Senior Advocate appearing for the respondent in Arbitration Applica-tion No. 02 of 2004 and for the petitioner in Arbitration Application No. 3 of 2004 submits that the impugned Award does not call for any interference from this Court save and except to the extent to which it relates to issues not submitted before the Tribunal. Referring to the provision of section 42 and section 43(i)(a)(iv) of the Act, Mr. Ariff submits categorically that the Act itself makes provision for such cases and allows the Award to be separated from the issues which were not submitted before the Tribunal and empowers the Court to set aside the Award so far it relates to matter not referred to the Tribunal. Mr. Ariff argues with some force that having regard to the provision of section 43(i)(a)(iv), the Court has ample power and jurisdiction to severe the Award and set aside such portion of the Award which has been passed by the Tribunal beyond its jurisdiction.
  11. 19.        During the course of his argument, Mr. Hassan Ariff acknowledged that the Tribunal had indeed acted beyond its jurisdiction to some extent by allowing the counter claim of the Department when, in fact, no such issues were framed before the Tribunal. Elaborating his submission, Mr. Hassan Ariff contends that although the claimant company had not referred certain disputes such as claim for refund against bitumen, the Tribunal allowed such claim in favour of the claimants, thereby acting beyond its jurisdiction. Mr. Hassan Ariff further submits that the issue of retention money or return of the same was not referred for adjudication before the Tribunal as per clause 67 of GCOC and therefore the Tribunal travelled beyond its jurisdiction in allowing the same in favour the claimant company. Similarly, according to Mr. Hassan Ariff, the Tribunal erred and consequently travelled beyond its jurisdiction in awarding a reduction of VAT or its return in favour of the claimant company as well as return of the Bank Guarantee submitted by the claimant company.
  12. 20.        Lastly, Mr. Hassan Ariff contends that having regard to the provision of section 43(i)(a)(iv) of the Act, the Court is vested with ample power to correct and modify the Award in accordance with the prayer made by the petitioner in Arbitration Application No. 3 of 2004.
  13. 21.        The moot question which calls for determin-ation by this Court relates to the jurisdiction of the Tribunal itself. A Tribunal is to decide only such issues as are referred to them by the contending sides. In fact, the power of the Tribunal is confined within the terms of reference made to it by the parties under the contract. Consequently, any deviation therefrom is bound to invoke the question of jurisdiction, as has been done in the instant case.
  14. 22.        In the instant application before this Court, the petitioner i.e. the company has challenged the Award mainly on the ground that the Tribunal has travel beyond its jurisdiction by deciding issues which were not referred to it. This contention advanced by the company gains support from the affidavit-in-opposition dated 01.11.2009 filed by the respondent itself. In paragraph 4 of  the aforesaid affidavit-in-opposition, it has been stated as follows :

“The calculation made under the heading “Final Position” is not an outcome of any counter claim made by the respondent rather it is outcome of an unwarranted arithmetic calculation made by the Tribunal on the basis of its discussion on the valid as well as invalid determinable disputes and Annexure 17 to the Award submitted by the claimant/petitioner before the Tribunal. The calculation under the head “Final Position” is not consequential of the adjudication of 3 (three) valid referred dispute under clause 67 of GCOC. The said calculation therefore is not relatable to the three valid referred disputes under clause 67 of GCOC. The “Final Position” is therefore relatable to issue, which were not referred to arbitration as dispute following the mechanism /procedure under clause 67 of GCOC. The “Final Position” is extraneous to the 3 (three) valid referred dispute.”

  1. 23.        There is further corroboration of the issue in the impugned Award itself, where the Tribunal observed as under:

“We have noticed that the Respondent had claimed various amounts as shown by way submissions of summary of additional cost and amount due from the Contractor. These claims were not referred to the Arbitrators in terms of Clause 67 of the Contract”.

(emphasis added)

  1. 24.        Moreover, from the dissenting Award dated 13.05.2004 passed by one of the Arbitrators (Mr. Justice M.M. Haque), it appears that the learned Arbitrator found as under :

“It may be mentioned here that there is no counter claim by the said ……………..”

(page 29 of the Award)

  1. 25.        From the observation quoted above, it appears that no counter claim was filed by the Roads and Highways Department, but the Tribunal nevertheless proceeded to make an Award in their favour which was beyond their terms of reference. It is also admitted by Mr. Hassan Arifff, learned Advocate appearing on behalf of the Roads and Highways Department that only three disputes were referred to the Tribunal and upon commencement of the proceeding, the Tribunal framed as many as seven issues, as has been quoted earlier in this judgment. However, from a reading of the same, it does not appear that it relates to any counter claim filed by the Department.
  2. 26.        It also appears that certain issues, which were not referred to the Tribunal, were taken up and decided by the Tribunal on its own accord. In my view, it would be reasonable to infer that in such circumstances, the Tribunal had indeed acted beyond its jurisdiction. The Tribunal exceeded its jurisdiction by abrogating to itself issues which were not referred to it by the contending sides. The issues relating to, advance, cost of bitumen, retention of advance money, advance income tax are some of the issues which, admittedly, were not referred to the Tribunal, but upon which the Tribunal made a pronouncement and gave an Award in favour of the Department.
  3. 27.        From the supplementary affidavit dated 17.08.2009 filed by the petitioner, it has been stated on behalf of the petitioner that the expert evidence which was adduced on behalf of the claimant company, was also provided to the Department. From the Tribunal’s order sheet dated 06.02.2003, there is affirmation of the aforesaid statement made by the claimant company. However on a close scrutiny of the Award itself, it appears that the Tribunal has not referred to the expert evidences referred to above. On the issue of non-consideration of the expert report referred to above, it was argued forcefully by Mr. Ariff that such consideration will not invalidate the Award in view of the fact that the Tribunal is not bound to comply strictly with the provision of the Code of Civil Procedure and the provisions of the Evidence Act. Therefore, according to Mr. Hassan Ariff, even if the contention of the claimant company is accepted as to non-consideration of the expert opinion by the Tribunal, that, ifso facto, will not be a ground for setting aside the Award. In support of his contention, Mr. Hasan Ariff referred to section 24 of the Act, which provides that the Arbitral Tribunal was not bound to follow the provisions of the Code of Civil Procedure and the Evidence Act in disposing of a dispute under this Act.
  4. 28.        To take up Mr. Hassan Ariff’s last contention first, in the case of Varat Cooking Coal Limited, reported in 200 C 8 SCC 154, the Supreme Court of India held that while making the Award, the Arbitrator cannot ignore very material and relevant documents relevant for determining the controversy, so as to render a just and fair decision.

In that case referred to above, it was further held :

“there lies a trial distinction between a year within the jurisdiction and error in excess of jurisdiction.”

  1. 29.        The case of West Bengal Industrial Infra-Strictire Development Corporation, v. M/s. Star Engineering Co., reported in AIR 1987 Calcutta 126 related to a matter which had similar issues as in the present case pending before this Court in that no counter claim was filed in the reported case referred to above and the Court adjudicated on a imaginary counter claim. While setting aside the Award, the Court held :

“In my opinion, this gross mistake has arisen from culpable negligence amounting to legal misconduct in part of the arbitrator in making the Award and as such this Award cannot be upheld.”

  1. 30.        In the case of Chetandas and others v. Radhakrisson Ramchandra and others, reported in AIR 1927Bombay 553, it was held as under :

“In cases where an arbitrator enters into the consideration of matters which are not referred to him, or which he has no jurisdiction to try, Blackburn, J. in Ringland v. Lowndes (1) (1864) 12 W.R. 1010) said that

The question is not one of waiver or of estoppel, but of authority,

and a party continuing to attend the reference after objection taken and protest made down not give the arbitrator authority to make an award. Even if a party under protest continues to attend before arbitrators and cross-examines witnesses, he does not thereby waive his objection, nor is he stopped from saying that the arbitrators have exceeded their authority by awarding on the matter :”

  1. 31.        In my view, the aforesaid decision referred to above, falls squarely with the scope and nature of the matter before this Court. As to Mr. Hassan Ariff’s contention that this Court has ample power under section 43(1)(a)(iv) of the Act to severe the Award and only set aside that portion of the Award which relates to issues not referred to the Tribunal, it has to be said that the Award which has been passed in the instant case stands embodied under the head “final position” as contained at page 58 of the Award, whereby an Award of Taka 6,00,00,000/- and odd (which was subsequently reduced to Tk. 3,00,00,000/- and odd by order dated 23.06.2004) was made in favour of the Roads and Highways Department, despite the absence of any counter claim filed on their behalf. The Roads and Highways Departments itself stated in their affidavit-in-opposition dated 01.11.2009 that

“The calculation made under the head “Final Position” is not an outcome of any counter claim made by the respondent rather it is outcome of an unwarranted arithmetic calcul-ation made by the Tribunal on the basis of its discussion on the valid as well as invalid determinable disputes and Annexure 17 to the Award submitted by the claimant/petitioner before the Tribunal. The calculation under the head “Final Position” is not consequential of the adjudication of 3 (three) valid referred dispute under clause 67 of GCOC.”

  1. 32.        Therefore, the statement made by the Departm-ent itself indicates that the Award made under the head of “Final Position” relates to issues, some of which have been referred under clause 67 of the GCOC. In my view, it would became difficult, if not impossible, to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before this Court.
  2. 33.        I am fortified in my view by a decision pronounced more than half a century ago in the case of Bengal Jute Mills vs. Jewraj Heeralal, reported in AIR 1943Calcutta 13, where it was held, and I quote:

“Whilst it is correct that since the recent Arbitration Act there need to be no form of submission, and the authority and jurisdict-ion of the arbitrator is to be ascertained from the agreement for arbitration, which in this case is contained in the contract, nevertheless when the parties set out specifically what disputes have arisen and what relief is sought in consequence of the alleged default by one party, it seems to me that those are the only matters upon which the arbitrators are required to inquire and to adjudicate. The only relief claimed in the present case was confined to an allowance being made in the price on account of the defective quality. The buyers never sought to have other awards given dealing with rejection and fresh tender of the goods. By adding to their awardPara. 2(b) and (c), above, it seems to me that the arbitrators have gone beyond what the required for their consideration and have decided questions beyond which they were required to adjudicate. This being the case it must follow that the award is void in toto and must be set aside.”

  1. 34.        Having regard to the statements made in the application before this Court, the relevant provision of law, the submissions advanced by the learned Advocate for the contending sides and last, but not least, having considered the decisions referred to above, with which I find myself in total and respectful agreement, I am inclined to hold that the Arbitral Tribunal travelled beyond its jurisdiction by entertain-ing and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set aside.
  2. 35.        Accordingly, Arbitration Application No. 2 of 2004 stands allowed.
  3. 36.        The impugned Award dated 13.05.2004 (as modified by order dated 23.06.2004) is hereby set aside.
  4. 37.        Consequently, in view of the judgment and order passed in Arbitration Application No. 2 of 2004, Arbitration Application No. 3 of 2004 stands dismissed.
  5. 38.        There will be no order as to cost.
  6. 39.        The parties are at liberty to take necessary steps in the matter, if so advised, in accordance with law.

Before parting with case, this Court would like to put on record its profound appreciation for the valuable assistance rendered by the learned Advocates of the contending sides.

Ed.

HIGH COURT DIVISION

(Special Original Jurisdiction)

Mr. Shah Abu Nayeem Mominur Rahman,   J.

and

Mr. Zubayer Rahman Chowdhury,   J.

 

Judgment

01.06.2010.

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Brigadier (Retd.) A.H.M Abdullah

.…. Petitioner

VS

Government ofBangladeshand others

… Respondents

Mr. M. A. Aziz Khan

… For the petitioner

No one

. . . For the Respondents.

Constitution of Bangladesh, 1972

Article 102 (1)(2)(a)(ii)

Motor Vehicles Ordinance (LV of 1983)

Sections 105,140,152 and 156

Police Regulation Bengal, 1943

Regulation 33 and 260

Police Act (V of 1861)

Section 23

Dhaka Metropolitan Police Ordinance, 1976

Sections 16 (e) and 161

Police Officer (Special Provision) Ordinance (LXXXIV of 1976)

Sections 2(b),4,5,12 & 48

The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army , has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance , 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.               

The police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excess occur regularly, such incidents are rarely challenged in a Court of law.      

The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term ‘misconduct’, it is also violative of the other provisions quoted above. As such, the allegation of misconduct against respon-dent No. 10 has been established. The issuance of the impugned Charge Report dated 30.05.2001 is found to be without lawful authority and of no legal effect. Respondent No. 5 (Inspector General of Police, Bangladesh) and respondent No. 6 (Commissioner, Dhaka Metropolitan Police) are directed to initiate appropriate disciplinary action against respondent No. 10 in accordance with law.

…(3,9,46,52 & 53)

Ghani .v. Jones[1970] 1QB, 693; R .v. Guardians of Lewisham Union, (1897) 1 QB 498; I.R.C. .v. Fed of Self-employed, [1981] 2 All E.R. 93; S.P. Gupta v. President of India, reported in AIR 1982 SC  149; Warburton .v. Loveland (1832) 2 D and Cl. 480; N.D.-State .v. Northwester Pac. Rail Co., 172 N.W. 324, 331; Willingale .v. Norris (1909) 1 K.B. 57; C. Kalbagh .v. State of UP, AIR 1989 SC 1452; Merkur Island Shipping Corporation .v. Laughton and Others [1983] 2 AC 570 ref.

Judgment

Zubayer Rahman Chowdhury, J:

This Rule Nisi, at the instance of the petitioner, was issued calling upon the respondents to show cause why the Charge Report bearing serial number 0684546 dated 30.5.2001 purportedly issued under the Motor Vehicle Ordinance, 1983 by  respondent no. 10 in respect of a Government vehicle bearing Registr-ation No. Dhaka Metro Gha-11-2744 shall not be declared to be harassing in nature and without lawful authority and of no legal effect.

  1. 2.           Facts necessary for disposal of the Rule, are, as under:

           The petitioner, a retired officer in the rank of Brigadier of the Bangladesh Army, was, at the relevant time, serving as an Engineering Advisor to a World Bank Project called Road Rehabilitation and Maintenance Project-III under the Roads and Highways Department, Government of Bangladesh.

  1. 3.           While serving as such, on 30.05.2001, the petitioner and his wife went toZiaInternationalAirport to receive his son in his above mentioned official car, driven by the official driver Md. Joynal. On reaching the Airport, the petitioner went inside while his wife, being unwell, waited in the car. When the petitioner saw his son coming out of the Airport, he signalled the driver to come to the pick up point. At that moment, on being informed that the police personnel were creating some sort of commotion in front of his car, the petitioner went there and found one police officer shouting  at the top of his voice, showing little care or respect for the  lady who was sitting inside the car.  Although the petitioner’s wife explained to the police officer (respondent No. 10) that as she was very ill, she was unable to get down from the car and she was waiting to pick-up her son who was on his way out, he paid no heed to her and created an unpleasant scene in public. The petitioner disclosed his identity and requested respondent no. 10 to show his identity, as he did not have any name tag on his uniform, as is usually done by all on-duty police personnel. Respondent no. 10 took a out name tag from inside his pocket bearing the name Ferdous. On being asked by the petitioner as to why he was behaving in such a rude manner, respondent No. 10, without caring to  reply, asked for the  documents of the car. The documents, including original fitness certificate, insurance certificate and a copy of the registration certificate were produced and he was told that the vehicle was a Government transport. Respondent no. 10 took the insurance certificate and the fitness certificate and left the place. Shortly thereafter, when the petitioner was about to leave the Airport along with his wife and son, another policeman came up to the car and handed over a piece of paper to him which turned out to be Charge Report under Section 105 of the Motor Vehicles Ordinance, 1983 issued by said respondent no. 10  alleging contravention of sections 140, 152, 156 with a special note that he  has framed charge under the instruction of the OC, Cantonment Police Station and the Chief Security Officer of the Airport and also recomme-nding realisation of full fine.
  2. 4.           The petitioner sent a Demand of Justice notice to the respondents through his lawyer on 13.06.01, but  the same remained  unresponded.
  3. 5.           It is in this back-drop that the petitioner moved this Court and obtained the Rule in the aforesaid terms.
  4. 6.           Although it appears from the office note dated 15.07.02 of the case record that service of notice has been duly communicated, yet none of the respondents appeared to contest the Rule. On our query, the learned A.A.G. submits that she has no instructions in this matter.
  5. 7.           Mr. M. A. Aziz Khan learned Advocate, appearing for the petitioner, has taken us through the writ petition and its annexures as well as the relevant provisions of law.
  6. 8.           Mr. Khan submitted that the actions of  the respondents,  who are  all public servants, are contrary to the provisions of  Article  21(2)  of the  Constitution  of Bangladesh which  stipulates that every person in the service  of Republic has a duty  to strive at all times to serve the people.
  7. 9.           He submits that respondent no. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent no. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.
  8. 10.        Mr. Khan refers to Regulation 260 of the Police Regulations Bengal, 1943 (hereinafter referred to as the Regulation) which is as follows :

“260: Investigation officers should carefully abstain from causing unnecessary harassment either to the parties or to the people generally. Only those persons who are likely to assist the inquiry materially should be summoned to attend. Where possible the investigating officer should himself go to the house of the witness to be examined. The proceedings should be as informal as possible. The questioning of witnesses should ordinarily be conducted apart, and in a manner that will not be distasteful to them”.

  1. 11.        He also refers to Section 23 of The Police Act, 1861 (hereinafter referred to as the Act) which is as follows :

“23:  It shall be the duty of every police-officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists : and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking-shop, gaming-house or other place of resort of loose and disorderly characters”.

  1. 12.        Mr. Khan then refers to Section 16(e) of the Dhaka Metropolitan Police Ordinance, 1976  (hereinafter referred to as ‘the Ordinance’) which runs as under:

“16(e)    in dealing with women and children, to  act  with strict regard to decency and with reasonable gentleness”. (emphasis supplied)

  1. 13.        Relying on the aforesaid provisions of law, Mr. Khan submits that although  there is a clear stipulation to the  effect that the  police personnel  are not to cause unnecessary harassment  to  the public in general and to women and children in particular, there has been a  gross violation  of the same in the  instant case. He makes a pointed reference to clause 16(e) of the Ordinance quoted above, which requires the police to act with strict regard to decency and gentleness while dealing with women and children. He further submits that although the police is required by law to prevent the commission of public nuisance, in the instant case, it was respondent no. 10 who was solely responsible for creating public nuisance by his rude and arrogant behaviour.
  2. 14.        Mr. Khan next draws our attention to Annexure ‘Q’ to   the   writ petition and  submits that although the name of the accused person in the Charge Report has been mentioned as Driver Md. Zafar, the petitioner’s driver’s name was Md. Joynal Khan, which is evident from his driving licence, as evidenced by Annexure ‘G’ to the writ petition. It is further submitted that although there is a note that the Charge Report  has been  issued under  the  instruction of OC, Cantonment Thana and the Chief Security Officer of the Airport, there was no official endorsement. He submits that respondent no. 10 himself made the endorsement illegally to save his own self.
  3. 15.        Mr. Khan then submits that the action of respondent no. 10 in impounding valid documents of the car (i.e. the Fitness Certificate and the Insurance Certificate) was in gross violation of Section 161 of the Ordinance, which authorizes such an action only when there is reason to believe that such documents are false documents within the meaning of Section 464 of the Penal Code. In the instant case, respondent no. 10 had absolutely no basis to form such opinion since the vehicle in question was a Government vehicle. As such, the aforesaid actions of respondent no. 10 was not only in excess of his jurisdiction, but malafide too.
  4. 16.        Mr. Khan informs the Court that the petitioner, being a law abiding citizen, has duly paid the fine imposed by the impugned Charge Report dated 30.05.2001.
  5. 17.        Last, but not least, Mr. Khan urges that this Court to take note of  the situation that prevails in our society today. He argued, very strongly, that  there  are many incidents like this occurring everyday relating to police excess and non-compliance of Police Rules and Regulations by the police themselves, but such occurrences remain unreported mostly out of fear of further harassment by the police. More importantly, ordinary citizens neither have the resources nor the ability to stand-up against police excess and bring such incidents to the Court’s notice for redress. Hence, the instant case should not be dealt with leniently, but be an example against police excess considering the issues in a wider perspective relating to the non-compliance of the provisions of the Act, Regulations and the Ordinance by the police.
  6. 18.        Although the matter before us raises issues of considerable public importance, Mr. Khan has not referred to any decision in support of his case. Nevertheless, we made an endeavour to refer to some decisions from our own jurisdiction, but there was hardly any reported decision on the subject. We noted, much to our surprise and dismay, that a similar scenario prevails in the English jurisdiction. To quote Prof. H.W.R. Wade:

“It is impossible to examine the cases on the status of the police without marvelling at how few they are, and in how many respects their position and powers are still not clearly defined. The police have had remarkable success in avoiding challenge in the courts of law, even though they often stretch their powers and risk actions for trespass.” (Administrative Law, Fifth Edition, page 135)

  1. 19.        In Ghani .v. Jones, reported in [1970] 1QB, 693 where the action of the police in impounding the passports and conducting unauthorized searches was challenged by the petitioner, a similar view was expressed by no less an authority than Lord Denning MR himself, when he observed :

“The case raises matter of importance on which there is very little direct authority in our books.”

  1. 20.        It is in this backdrop that we are called upon to decide this matter. We intend to do so, first by considering the relevant Rules and Regulations and the extent of their application and thereafter certain aspects relating to the concept of rule of law.
  2. 21.        At the outset, it would be appropriate to begin by examining the maintainability of an application of this nature.
  3. 22.        The pre-requisite of having a specific legal right before issuance of a writ of mandamous was laid down towards the end of the nineteenth century in R .v. Guardians of Lewisham Union, reported in (1897) 1 QB 498. However, since then, there has been a very significant shift, and, so much so, that by the end of the twentieth century, the Courts were inclined to issue mandamous even in cases where the applicant had no specific legal right.
  4. 23.        In I.R.C. .v. Fed of Self-employed, [1981] 2 All E.R. 93, Lord Scarman observed :“The decision of the Divisional Court in R .v. Guardian of Lewisham Union was accepted as establishing that an applicant must establish ‘a legal specific right to ask for the interference of the Court by order of mandamous. I agree with Lord Denning MR in thinking this was a deplorable decision”.
  5. 24.        In our own jurisdiction, the position has been summarized as under :

“InEngland, the Lewisham Union Principle was given up as it would have the effect of allowing the public functionaries a free hand in ignoring their public duties. In countries like ours, it will have a far more serious effect as many instances of non-performance of legal duty by government and public functionaries will remain without remedy, thereby eroding the concept of rule of law and constitutionalism. This principle originated inEnglandand when it has been discarded there, there is no rationale for insisting on the application of this principle in our country. Thus, if a person is going to be affected by the failure of a public functionary to do what he is required by law to do, he can claim performance of the legal duty of the public functionary whether or not he has a specific legal right to claim performance of the duty” (M. Islam, Consti-tutional Law of Bangladesh, Second Edition, page 529).

  1. 25.        A definite jurisprudential basis was laid down in S.P. Gupta v. President of India, reported in AIR 1982 SC  149 where Bhagwati, J, in according standing to the petitioners, observed :

“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determine class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.”

  1. 26.        As noted above, the various provisions in the Police Rules and Regulations are quiet clear in specifying guidelines for the police in their dealings with the public in general and women and children in particular. In this context, we may refer to Regulation 33 of the Regulations which deals with behaviour of the police towards the public. It states :

“33 (a) No police force can work successfully unless it wins the respect and good-will of the public and secures its co-operation. All ranks, therefore, while being firm in the execution of their duty, must show forbearance, civility and courtesy towards all classes. Officers of superior rank must not only observe this instruction themselves but on all occasions impress their subordinates with the necessity of causing as little friction as possible in the performance of their duties. (b) Rudeness, harshness and brutality are forbidden; and every officer of superior rank must take immediate steps for the punishment of any offenders who come to his notice.”

  1. 27.        Similarly, Section 15(c) of the Ordinance provides :

           “General duties of police officers. – It shall be the duty of every police officer –

(a)     …………..

(b)     …………..

(c)      to the best of his ability to prevent commission of public nuisances ;

(d)     ……………..

(e)      ………………

(f)      ………………..”.

  1. 28.        Under the 1861 Act, a duty was cast upon the police by Section 23 to “prevent commission of offences and public nuisance.” Almost a century later, in 1943, the Regulations imposed further control on the police by requiring them to “abstain from causing unnecessary harassment either to parties or to the people generally.” Regulation 33(a) required all ranks to “show forbearance, civility and courtesy towards all classes”. As an additional measure, rudeness, harshness and brutality were forbidden by Regulation 33(b). More recently, in 1976, under the Ordinance, the police was required “to act with strict regard to decency and reasonable gentleness” in dealing with women and children.
  2. 29.        On a careful analysis, it appears that the conduct of the police vis-a-vis the general public is regulated by certain positive enactments and negative stipulat-ions. The words ‘decency’, ‘gentleness’, ‘courtesy’, forbearance’, ‘civility’, ‘rudeness’, ‘brutality’ etc. have been incorporated in various sections of the Act, Ordinance and Regulations with a definite purpose or intent. The Legislatures, being mindful of the unfettered power the police are considered to exercise, were quite clear in their intent to prevent any abuse or misuse of such powers. To quote Tindal, CJ in Warburton .v.Loveland (1832) 2 D and Cl. 480

“……………. the words of the statute speak the intention of the Legislature.”

           In the words of the distinguished Jurist Sir John Salmond:

“The Courts must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. Ita scriptum est is the first principle of interpretation”. (Salmond, Jurisprudence, Twelfth Edition, page 132)

           Furthermore, as an additional measure, rudeness, harshness and brutality was not only forbidden, but every officer of superior rank was required to take immediate steps for punishment of any offender when it comes to his notice.

  1. 30.        The imposition of such prohibition is, no doubt, significant. This is in consonance with the concept of ‘Rule of law’ as embodied in our Constitution where the preamble states that it shall be the fundamental aim of the State to secure the rule of law for all citizens.
  2. 31.        Walber, in his Oxford Companion to Law (1980 Edition, page 1093) explained the term rule of law as under:

“The concept implies that the ruler must also be subject to law. It is the subordination of all authorities, legislative, executive and others to certain principles, which would generally be accepted as characteristic of law, such as the ideas of fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual”.

  1. 32.        As observed by Hilaire Barnett in Constitutional and Administrative Law (Third Edition, page 85):

“The rule of law insists that every person-irrespective of rank and status in society – be subject to the law. For the citizen, the rule of law is both prescriptive-dictating the conduct required by law – and protective of citizens – demanding that government acts according to law”.

  1. 33.        In S.P. Gupta’s case, cited above, the Supreme Court of India held:

“If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective”.

  1. 34.        The concept of rule of law has been upheld not only by the Courts, it has also been endorsed and adopted by the Universal Declaration of Human Rights more than half a century ago and subsequently, in 1950, by The European Convention for the Protection of Human Rights and Fundamental Freedoms. The International Commission of Jurists, in the Delhi Declaration of 1959, stated:

“The function of the legislature in a free society under the rule of law is to create and maintain the conditions which will uphold the dignity of man as an individual.”

  1. 35.        Having considered the theoretical aspects and the relevant provisions of the Act and the Rules, we now propose to consider one of the core issue in this matter, i.e., ‘the misconduct of the police’.

           The term ‘misconduct has been defined in 2(b) of ‘The Police Officers (Special Provisions) Ordinance, 1976’. It states :

“(b) ‘misconduct’ means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1966, or unbecoming an officer or gentleman.”

  1. 36.        Under the aforesaid Ordinance, if a police officer is found guilty of misconduct or inefficiency (Section 4(i) and 4(vii) respectively), then any one of the penalties mentioned in Section 5(a) to 5(e) may be imposed upon him. Section 5 provides as under:

“Penalties.- The following shall be the penalties which may be imposed under this Ordinance, namely :-

(a)          dismissal from service;

(b)          removal from service;

(c)           discharge from service;

(d)          compulsory retirement; and

(e)           reduction to lower rank.”

  1. 37.        Furthermore, the provisions relating to an errant police officer has been laid down in Section 12 of the 1976 Ordinance, where clause (g) provides for forfeiture of pay not exceeding one month and Clause (h) provides for forfeiture of increment of pay. Section 48 of the Ordinance reads as under:

“48. Penalty for misconduct of police-officer.-  Any police officer who is guilty of cowardice or of any wilful breach of any provision of law or of any rule, regulation or order which it is his duty as such police-officer to observe or obey shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand taka, or with both.”

  1. 38.        Evidently, the provisions for dealing with an errant police officer are elaborate and stringent. This, in our view, is necessary for maintaining discipline in the force. It is equally important that Courts should enforce their application when called upon to do so, or else the provisions would become meaningless.
  2. 39.        Maxwell on The Interpretation of Statutes has clearly stated that if the language is clear and explicit, the Court must give effect to it (12th edition, page 1).
  3. 40.        We may also profitably refer to a passage from Broom’s Legal Maxims (10th Edition, page 384) where it has been stated:

“If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves alone do, in such case best declare the intention of the law giver”.

  1. 41.        Judge Colley, in his Constitutional Limitations, wrote that the police of a state, in a comprehensive sense, embraces, among others, its whole system of internal regulation, by which the state seeks to preserve the public order and to prevent offenses against the state. (Corpus Juris Secondum, Vol. LXXII, page 207).
  2. 42.        The term ‘Police Regulation’ is used to define a power which resides in the state. In its primary or narrow sense, it refers to the exercise of the police power to protect the health, lives and morals of the people. In its broader acceptation, it embraces everything to promote the general welfare; everything essential to the great public needs. (N.D.-State .v. Northwester Pac. Rail Co., 172 N.W. 324, 331).
  3. 43.        As to the question of binding force of such rules and regulations, it has been established by judicial pronouncements that rules made under a statute have the force of law.
  4. 44.        In Willingale .v. Norris (1909) 1 K.B. 57, the question of binding force of Regulations made under a Statute came up for consideration. It was held that where a Statute makes provisions for Rules to be made thereunder, such Rules have the force of law (per Lord Alverstone, CJ).
  5. 45.        Since the enactment of the Act in 1861, the Regulation in 1943 and the Ordinance in 1976, there has been significant change in the set-up and format of the police force. There is no longer one police force for the entire country. Rather, each Metropolitan city has a force of its own like the Dhaka Metropolitan Police, Chittagong Metropolitan Police, Khulna Metropolitan Police. Today’s police force is a far-cry from the police force of yester years. They are evidently much better equipped and, presumably, better trained. They have sophisticated arms, communications network and fast cars at their disposal and, very recently, a new uniform to go with their image. However, all the expenses are borne by the people of the country. It is, therefore, not only necessary, but also imperative that the police comply strictly with the provisions of the Act, Rules and Regulations which govern their