Bangladesh and others Vs. A. K. M. Zahangir Hossain, 34 DLR (AD) (1982) 173

Case No: Civil Appeal Nos. 134 of 1978

Court: Appellate Division ,,

Advocate: S.R. Pal,Mr. K. A. Bakr,,

Citation: 34 DLR (AD) (1982) 173

Case Year: 1982

Appellant: Government Bangladesh and others

Respondent: A. K. M. Zahangir Hossain

Subject: Constitutional Law,

Delivery Date: 1981-10-21

Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain CJ
Fazle Munim J
Ruhul Islam J
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
 
Bangladesh & ors…………………………………….Appellants (In C.A. No. 134 of 1978).
Vs.
A. K. M.  Zahangir Hossain………………………………………………... Respondent
And
Mokaddes Ali……………………………………………. Appe­llant (In C.A. No. 39 of 1979).
Vs.
Govt. of Bangladesh& others………………………………………………. Respondents
And
S.M. Khalilur Rahman …....Appellant (In C. A. No. 140 of 1979).
Vs.
Govt. of Bangladesh & others……………………...Respondents.
And
Bangladesh & others…...Appellants (In C.A. No. 126 of 1979).
Vs.
Dhirendra Nath Sarkar ……………………………………Respondents
 
Judgment
October 21, 1981
 
Constitution of Bangladesh, 1972
Article 102
Persons holding office at the unrestricted pleasure of the President is debarred from invoking the remedial benefit of Article 102— Will however be entitled to get departmental redress.
Constitution of Bangladesh, 1972
Article 135
Persons falling within the ambit of Article 135 enjoy the constitutional guarantee which can be had by invoking High Court Division’s writ jurisdiction under Article 102 or by resort to civil courts.
 
Cases Referred To-
High Commissioner for India vs. I. M. Lall AIR 1948 PC 121, Khandker Ehteshamuddin Ahmed Vs. State (1981) 33 DLR (AD) 154, Harinagar Sugar Mills Vs. Shyam Sundar AIR 1961 S. C. 1669. Bharat Bank Ltd. Vs. Employees of Bharat Bank AIR 1930 SC 188 ; Indo-China Steam Navigation Co. Vs. Jasjit Singh AIR  1964 SC. 1140:   A.C. Companies Vs. PN Sharma AIR 1965 S.C.  1595  APHL Conference, Shillong Vs. WA   Sangma AIR 1977  SC 2155; Durga Shanker   Mehta Vs. Raghuraj Singh AIR 1954 S.C. 520; Royal Aquarium Vs. Parkinson 1892 (1) C.B. 436 (466).
 
Lawyers Involved:
K. A. Bakr, Attorney-General, with A.W. Bhuiyan, Deputy Attorney-General, instructed by M.R. Khan, Advocate-on-Record—For the Appellants (In C.A. 134/78 & C.A. 126/79). 
K. A. Bakr, Attorney-General, with A.W. Bhuiyan, Deputy Attorney-General, instructed by M.R. Khan, Advocate-on-Record—For the Respondents (In C.A. 9 & 40 of 1979).
Dr. Aleem-al-Razee, Advocate, instructed by M.R. Khan, Advocate-on-Record—For the Appellants (In C.A. 39 & 40 of 1979).
B.C. Panday, Advocate-on-Record.—For the Respondent (In C.A. No. 134 of 1978).
S.R. Pal, and Syed Ishtiaq Ahmed, Senior Advocates.— Amicus Curiae.
 
Civil Appeal Nos. 134 of 1978 & 39, 140 and 126 of 1979.
 
JUDGMENT
 
K. Hossain CJ.
 
1. The question involved in all those appeals relates to members of Police Service from the rank of Sub-Inspector and below. These officers brought writ peti­tions in the High Court Division and some were allowed and some dismissed. A common question involved in all the appeals is whether a member of the subordinate police service by virtue of some provisions contained in the Bangladesh Constitution can maintain a writ petition on the ground of violation of any statutory rules governing their service condition. The question is of great public importance and so it was placed before the Full Court by an order dated 8-8-80 of Bench of this Division.
 
          After the decision of this important ques­tion, the appeals will be disposed of on their respective merits by the Bench concerned.
 
2. Considering the importance of the ques­tion of law involving interpretation, of some provisions of the Constitution, assistance was sought as Amicus Curiae from the Senior Advocates of this Division and Messers S.R. Pal and Ishtiaq Ahmed were requested to assist the Court. The Court records the learned and able assistance received from the Senior Advocates. Their arguments have been of great assistance to us.
 
3. It is to be remembered that all the mem­bers in the Police Service have been described as 'Disciplined Force' in the Constitution. Barring this, no other specific reference has been made in the Constitution regarding them and the rest is governed by the laws either framed earlier but continued by the Consti­tution and some law framed after the Constitution. The police officers up to the rank of Inspector of Police are considered as officers of the subordinate rank for classi­fication, and they are governed by Police Act of 1981, Police Regulations, and Police Officers (Special Provisions Ordinance), 1976 (Ordinance LXXXIV of 1976) hereinafter re­ferred to as Police Officers Ordinance and some other laws. I shall have to refer to this Ordinance later on. For the purpose of my discussion, I am referring chiefly to the con­stitutional provisions to see whether the question raised as to the standing of a sub­ordinate police officer to maintain a writ peti­tion before the High Court Division is avail­able to him. The answer will depend upon a discussion of relevant provisions of the Constitution.
 
         The provisions of the Constitution chiefly for our discussion on the question will be Articles 45, 102 (5), 134 and 135, and the definition given in Article 152 and Chapter IV of the Constitution of Bangladesh.
 
4. Now the Constitution has given an inclusive definition in interpretation clause by saying that 'disciplined force' means, (a) the army, navy or air force; (b) the police force; (c) any other force declared by law to be a disciplined force within the meaning of this definition, and so the Police force has been denoted but not defined. Reference to 'disciplined force' in the Con­stitution is to be found in two Articles, namely, Articles 45 and 102 (5).
 
5. Article 45, which is contained in Part III dealing with Fundamental Rights says, inter alia, that nothing in this Part shall apply to the provisions of any disciplinary law relating to members of disciplined force, being a provision limited to the purpose of ensuring the proper discharge of their duties or the maintenance of discipline of the force- Sub-Article (5) of Article 102 says that, in this article unless the context otherwise requires, "person" includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or tribunal to which Article 117 applies.
 
6. Before construing the provisions rela­ting to Police Force in the Constitution, it will be appropriate to refer to some other provi­sions of the Constitution. If we turn to another definition given in the interpretation clause of the Constitution, we find “the Service of the Republic" which means, any service, post or office whether in a civil or military capacity in respect of Government of Bangladesh and any service, declared by law to be the service of the Republic. Chapter IV of the Constitu­tion, headed by a caption: "Defence Services’ consists of three Articles viz. 61, 62 and 63'. Though the Chapter is headed by the expres­sion 'Defence Services', it does not define what the 'Defence Service' is, except saying that the supreme command of the 'Defence Forces will vest in the President and the exercise thereof shall be regulated by law and that recruitment, grant of commissions and appointment of chiefs of staff of the Defence Services and their salaries and allowances and the discipline and other matters shall be regulated by law  made by Parliament, and pending that, the President may, by order provide for such of them as are not already subject to existing law.
 
7. There is a specific Chapter in the Constitution devoted to the Services of Bangladesh in Part IX which consists of two Chapters, one relating to Services' and the other to Public Service Commissions. The Chapter I consists of four Articles 133 to 136. Article 133 says appointment and conditions of service may be regulated by Parliament subject to the Constitution, and until such provisions are made by Parliament, the President can make rules regulating the appointment and conditions of service of such persons in the service of the Republic. Article 134 says, except as otherwise provided by this Constitution, every person in the service of the Republic shall hold office during the pleasure of the President. Article 135 says, no person who holds any civil post in the service of the Republic, shall be dismissed or removed or reduced in rank by an autho­rity subordinate to that by which he was appointed, and that no such person shall be dismissed or removed or reduced in rank until he has been given a reasonable oppor­tunity of showing cause why that action should not be taken. Though there are cer­tain exceptions to these provisions, they are not material and need not be mentioned. Article 136 relates to re-organisation of services which may lead to variation of the service conditions of a person employed in the service of the Republic.
 
8. We now turn to the two Constitutional provisions relating to the members of police force including the subordinate  rank herein­after referred to as 'subordinate police officer', we find that in the Constitution Police Force has been treated for the first time as a dis­ciplined force' and for that purpose they have been subjected to two restrictions, one as provided in Article 45 and the other in Article 102 (5), but then restrictions in these two Articles of the Constitution are for limited purpose. Except these limitations for the rest of the service conditions of the subordinate police officer, he comes within the description of the definition of a person in the service of the Republic holding a civil post. These two aspects are required to be dealt with sepa­rately. Since the second aspect confers general right, it requires to be taken up first. The Constitution has divided persons in the service of the Republic of Bangladesh into two broad categories. One holding a post in civil capacity and the other in military capa­city, Though there is a new category introduc­ed in the Constitution as a 'disciplined force', it has not been used while describing the service of the Republic. Though the military capacity has not been defined in the Constitu­tion. 'Defence Services have been mentioned without denoting the category to which they belong, but then in the 'disciplined force' two separate categories have been combined. One is, the army, navy or air force, and the other, the police force. There   is, however, a scope for inclusion of some other forces, but that need not concern us. So the police force has been separately categorised in contradis­tinction from the army, navy or air force.
 
         A reading of the relevant provisions of the Constitution indicates that the police force has been treated as a separate class of officers, but their place is not clearly indicated in the service of the Republic. We are, there­fore, called upon to demarcate their position in the Constitution, upon a true construction of all the relevant provisions with regard to their standing to maintain a writ petition. They have been classed as 'disciplined force' but not on the same footing as the army, navy or air force, which includes 'defence forces'. A person who is not in any one of the 'defence forces' cannot be said to be hold­ing a post in military capacity, so far as the service of Bangladesh is concerned. Military capacity in the definition clause of the service-of Bangladesh' obviously has reference to the provisions of Defence Service and denotes the persons belong to those services. A member of the defence service comes within Chapter IV of the Constitution. There is no ambiguity in placing them in the category of a person holding a post in a military capacity in the service of the Republic.
 
9. Could a member of Police force be placed under the same category?  Police force, though conies within the ambit of ‘disciplined force’ and does constitute the component of disciplined force, yet it has been assigned with a different classification, in the 'disciplined force', separate and distinct from the army, navy or air force.
 
10. We are to look at other provisions of the Constitution to ascertain the true position of the members of the Police force. We are to revert to the Chapter dealing with the Services of Bangladesh. We are concerned with two important Articles, which have already been spoken of Article 134 says any one who is in the service of Bangladesh holds office during the pleasure of the Presi­dent. This pleasure doctrine has a connota­tion and should be clearly understood. Pleasure doctrine has been explained by the Privy Council in the case of Venkata Rao vs. Secy of State. A.I.R. 1937 P.C. 31. After review of a number of decisions with refer­ence to section 96-B of the Government of India Act, 1919 and the Rules framed there­under, it has been held, that, unless in special cases, where it is otherwise provided, servants of the Crown hold their offices during the pleasure of the Crown, not by virtue of any special prerogative of the Crown, but because such are the terms of their engage­ment, as is well understood throughout the public service. The words subject to the rules appearing in the section are not there­fore superfluous and ineffective. The sec­tion contains a statutory and solemn ass­urance that the tenure of office, though at pleasure, will not be subject to capricious or arbitrary action but will be regulated by rule. The provisions for appeal in the rules are made pursuant to the principle so laid down. Redress therefore in such cases is not obtainable from the Court by action. It is so even where there has been serious and com­plete failure to adhere to important and fundamental rules, as for instance in the case of a person who has been dismissed from service without any investigation into the charge as per Rule 14 under section 96-B. The remedy of the person aggrieved does not lie by a suit in Court but by way of appeal of an administrative kind.
 
         It has been further observed that if the service under the Crown would not have been at the pleasure of the Crown, the remedy by suit against the Secretary of State in Council for a breach of contract of service would have been available to the person owing to his wrongful dismissal from service.
 
11. No other authority need be cited in elucidating the doctrine of pleasure. The po­sition, therefore is, if a person holds an office during the pleasure of the President and the Constitution does not restrict the authority of the President, he will not be entitled to any Constitutional guarantee or statutory right to be enforced in a Court  of law and so will  be debarred from invoking the remedial benefit of writ jurisdiction under Article 102 of the Constitution, but the statutory rules governing his service conditions will be available to him for getting departmental redress.
 
12. I now turn to Article 135 of the Constitution. This Article is very important so far a person holding a civil post in the service of the Repub­lic is concerned, inasmuch as Article 135 limits the plea­sure doctrine contained in Article 134. A person coming within the ambit of Article 135 immediately gets the Constitutional guarantee, which is an exception to and controls the pleasure doctrine. This Constitutional guarantee cannot be abridged or taken away by any legislative enactment except by any other Constitutional provision. The provision is mandatory and is couched in negative langu­age emphasising the positive or the affirmative right. Any violation of this provision will give the person aggrieved for his redress by access to a Court of law, as the nature of the grievance will be. The remedy available will be either in a Civil Court or the High Court Division under Article 102 or both. The authority for this proposition is so well established, that except mentioning the case of High Commissioner for India vs. I.M. Lall A.I.R. 1948 P.C. 121, I refrain from making any detailed reference to them.
 
13. Reading Articles 134 and 135 together what I find   is that a person in the service of the Republic holds his office during the pleasure of the President, and if he holds a post in civil capacity, the pleasure doctrine is restricted on two broad counts; one, as to the authority to take action, and the other, the procedure by which action is to be taken. The constitutional guarantee to the person holding a civil post, is that he shall not be (1) dismissed, (2) removed or (3) reduced in rank by an authority subordinate to one by whom he was appointed, and secondly, no such action could be taken against him unless he has been given a reasonable opportunity of showing cause why that action should not be taken.
 
14. The position, therefore, is that, a person who holds office during the pleasure of the President and does not get protection of Article 135, as he doe's not hold a civil post in the service of the Republic, his entire terms and conditions of service, though governed by statutory rules, are at the pleasure of the President, and so these statutory rules are but the expression of the pleasure of the President, and not a Cons­titutional or statutory guarantee. His remedy for the breach of any of these rules will be through official or departmental channel and not in a Court of law.
 
15. As regards the person holding a civil post, he gets a Constitutional guarantee under Article 135. His protection against his dismissal, or removal or reduction in rank is guaranteed, and no such action can be taken except by an authority not subordinate to one appointing him, and except by a procedure on giving him an opportunity to show cause against the proposed action. Any statutory rule to the contrary, or any action contrary to other the Constitutional guarantee or statutory  rules  relating to these defined rights, can be redressed in a civil court and also in the  writ jurisdiction of  the High Court Division. Any other service con­dition, even though provided by statute or statutory rules, will come within the ambit of Article 134, and if violated, unless the violation amounts to dismissal, removal or reduction in rank is remediable only by ad­ministrative process, but not in any court of law or in' writ jurisdiction of the High Court Division. It is, however, to be remembered, that but for the exception contained in Article 45, protection available under the Fundamental Rights Chapter will, of course, be enforceable to the extent permitted by the Constitution.
 
16. It is now to be seen whether a police officer comes within the description of a person holding a post in civil capacity or military. It may be observed that the Cons­titution while giving protection to a person in the service of the Republic from dismissal, removal or reduction in rank has extended the protection to only one category of per­sons that is, holding any post in civil capacity, whereas 'the service of the Republic, comprises two categories; One holding a post in civil, the other in military capacity. So far as military capacity is concerned, I have, with reference to the relevant provisions of the Constitution, come to the opinion that military capacity denotes a person belonging to Defence Services and the persons of Defence Services are those who belong to category 'a' of 'disciplined force' as defined in the Constitu­tion, that is, army, navy or air force. Mem­bers of the police force have been separately included in category ‘b' of the definition, and so they do not belong to Defence Services, Equally, they cannot be said to be holding a post in military capacity, it is quite obvi­ous that they do not belong to the Defence Services as their terms and conditions of service, already referred to, are governed by the Police Act, Police Regulations, Police Officers (Special Provisions) Ordinance, 1976 (Ordinance LXXXIV of 1976) and some other statutory provisions and rules, which are quite distinct and separate from members belonging to Defence Services. There is, therefore, no difficulty in holding that they do not belong to Defence Services, and, there­fore, cannot be said to be holding a post in the service of the Republic in military capa­city. The other capacity is civil capacity Since no specific categorisation has been made so far as the services of the Republic is con­cerned, the member of police service cannot but be held to hold a post in civil capacity in the service of the Republic. He, therefore, comes within the purview of Article 135 and is entitled to protection of the Article 135 to the extent spoken of earlier. In this view of the matter, if by an action of an authority, a police officer is either dismissed, removed or reduced in rank or aggrieved by acts which amount to dismissal, removal or reduction in rank, he is entitled to get relief in a Court of law and so has the standing to maintain a writ petition under Article 102 of the Constitution.
 
17. But this does not answer the whole question and this leads me to refer to the first part of our discussion, namely, the exclusion of the Constitutional guarantees by Articles 45 and 102(5). These two Articles are the exceptions of the Constitutional protec­tion extended to a police officer under Article 135 of the Constitution. Article 45 gives protection to a law relating to a disciplinary law concerning the members of a disciplined force from being challenged on account of its repugnancy to the Fundamental Right. Any law relating to the discharge of duties or maintenance of discipline of a disciplined force to which the police force belongs is immune from challenge being repugnant to the Fundamental Rights. This part of the question is not very much material and hence. I shall not dwell on it any further.
 
18. The second exception is the immunity of any action from challenge in the writ jurisdiction contained in Article 102(5) of the Constitution. This provision has already been set out. What is required for conside­ration is to ascertain the character of the tribunal relating to a disciplined force, whose action is excepted from the exercise of the writ jurisdiction of the High Court Division. The language is, that 'person' includes a statu­tory public authority, and any Court or tribu­nal other than a Court or tribunal established under a law relating to Defence Services of Bangladesh or any disciplined force or a tribunal to which Article 117 applies and so the excepted category will not come within the ambit of writ jurisdiction of the High Court Division.
 
19. In this connection the  learned Att­orney General has referred to Police Officers (Special Provisions Ordinance) 1976, and has submitted that under this Ordinance, provisions have been made for the main­tenance of discipline among the persons who belong to a class of the disciplined force, and any action taken by the authority under this Ordinance is excluded from the exercise of the writ jurisdiction, because the 'authority' set up under this Ordinance is a tribunal establ­ished by a law relating to the disciplined force. This proposition has been seriously challenged by Dr. Razee and has been supported by Mr. Pal and Mr. Ishtiaq Ahmed. The submissions of the learned Counsel opposing the contention of the learned Attorney- General will be looked into later.
 
20. Earlier to that, let me look at the provision of the Ordinance as it stands. The Ordinance in its preamble, says, that it is expedient to provided special provisions for maintaining discipline among certain mem­bers of the police force, and section 2 defines "police officer" to mean a police officer of,  and below, the rank of Inspector, mentioned in column 1 of the Schedule. This Ordinance relates to certain disciplinary measures of subordinate police officers. The Ordinance consists of eight sections. Apart from the title and definition clause, section 3 says that the Ordinance shall override all other laws, but shall not prejudice the operation of any other law, rules and regulations including the service conditions of the said police force. Section 4 describes seven categories of faults of a police officer, and they have been treated as offences. Section 5 prescribes five kinds of penalty for the offences prescribed earlier. Section 6 provides the procedure of Inquiry. Section 7 provides for an appeal. Section 8 bars jurisdiction of any Court from challenge of any action taken under the Ordinance and the schedule appended thereof prescribes the authorities who can take action and the appellate authority. A read­ing of the Ordinance as a whole indicates that the Ordinance has first selected a class of police officers to be dealt with under this Ordinance. This Ordinance only deals with trials and punishments according to the pro­cedure prescribed thereunder by the authori­ties who are some specified officers. It has prescribed the punishments for the offences and the procedure to be followed. It also provides for an appeal. The authorities both original and appellate are either depart­mental or executive. The trial procedure prescribed says that the authority shall frame a charge and specify therein the penalty pro­posed to be imposed, and communicate it to the police officer who will be called the accused, asking him to show cause within a specified, time, which shall not be less than seven days, and not more than ten days from the date the charge has been communicated to him, why the penalty proposed shall not be imposed, and also to state whether he desires to be heard in person. If he so desires, the authority shall within twenty days of the receipt of the explanation impose upon the accused "the proposed penalty or any other lesser penalty under the Ordinance. The procedure no doubt is departmental and it has to a certain extent fixed a time limit and has omitted a separate inquiry procedure and second show-cause notice, which is otherwise available in Police Regulations, but then the Ordinance says this Ordinance will prevail over all other laws. It is to be observed that under Article 4 of the Constitution, this Ordi­nance is immune from challenge as it relates to a component part of disciplined force namely, Police force nor has it been challenged from the Bar. A reading of the Police Officers (Special Provisions) Ordinance, 1976 therefore, indicates that a distinct class of police officers for the maintenance of discipline has been brought within the ambit of this Ordi­nance, the purpose of which is the maintenance of discipline among members of police force, to try and punish offence both provided and prescribed thereunder by authority mention­ed in the Ordinance and also prescribing the procedure to be followed. It also provided an appeal therefrom.' The authority under the Ordinance therefore has been authorised by a law relating to a disciplined force to try and punish an offence in the manner prescribed therein to a class of officers of the police force, who belonged to disciplined force. The authority therefore satisfies, in the context, the attribute of a tribunal, and, therefore, I find substance in the con­tention of the learned Attorney-General that the authority mentioned in this Ordinance is a tribunal set up by a law relating to a disciplined force as contemplated in sub-article (5) of Article 102 of the Constitu­tion, and therefore any action of the autho­rity is immune from challenge in writ juris­diction, subject to the rule laid down by this Division in the case of Khandker Ehteshamuddin Ahmed @ Iqbal Vs. State 33 D.L.R. (A.D) 154, in that the order is coram non-judice or malafide.
 
21. A long debate has been; initiated by Dr. Razee and other two learned counsels as Amicus Curiae, arguing that the autho­rities in the Ordinance are mere adminis­trative authority, and not a tribunal, set up by law relating to 'disciplined force'. The argument of the learned Counsel in support of the contention in that the authorities set up in the Police Officers Ordinance 1976 are their respective administrative superiors and the action of dismissal is an administrative act.
 
         So far as the contention that it is an admi­nistrative act is concerned, it will be dangerous to advance, inasmuch as, if it is so, then the logical conclusion will be that in dismissing an officer, the authority can act on its own discretion without following any procedure. This part of the argument does not convince me at all.
 
22. The major controversy has centred round the word 'authority' in the absence of 'tribunal' being used in the Ordinance. The argument is that the authority mentioned is an administrative head and the word tri­bunal has not been used. Therefore, it is not a tribunal. But then the question is what is it? If it is just an administrative autho­rity, then there was no necessity of promul­gating this Ordinance. Much labour was expended on drawing parallel from the administrative provisions either from Police Regulations or from Government Servants (Efficiency and Discipline) Rules, to show that the offences and the penalties, and the procedure were there, but then as regards offences or penalty or the procedure, there is a great departure that is admitted. The drawing of analogy will not be helpful, and I refrain from making them. I do not think I am called upon to do so, when the law making authority has thought it prudent to make a law relating to the disciplined force.
 
         An anatomy of the law in that respect will not destroy the organic nature of the Ord­nance for which it has been destined, nor is it to be so permitted. It is true, the word tribunal has not been used in the Ordinance, The question is whether in the absence of the word 'tribunal' in the Ordinance, could the authority  mentioned therein be treated as a tribunal.
 
23. Where a question of this nature arises, the trappings of the authority and the function of the authority, and both together are to be judged to ascertain whether it is a tribunal. It is also to be remembered that there is a distinction between a Court and a tribunal. The Court has a clear and distinct connotation whereas a tribunal assumes wide range of character. It may be a judicial tribunal or it may be a domestic tribunal, and in between there are various ranges of adjudicating authority which are more often called administrative tribunals. But there is a common element the authority may be judicial or administrative, but the authority is to decide either a dispute or an offence and it is to decide on fact and apply the rules to them, without considering executive policy. A discussion made earlier indicates that the authority under the Ordinance does satisfy these criteria to call it a tribunal.
 
         Several decisions have been cited from the Bar and some like Bharat Bank Ltd. vs. The Employees of Bharat Bank Ltd., AIR. 1950 SC 188 has been cited by both sides. Some of these decisions may be discussed.
 
24. Bharat Bank case relates to an indus­trial dispute, and the decision of the Industrial tribunal under certain matters, required a declaration by the Government, and so the question arose whether it was a tribunal under Article 136(1) of the Indian Constitu­tion, It was held that the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions, It is a tribunal, although it is not a Court in the technical sense of the word.
 
25. In the case of Hari nagar Sugar Mills Vs Shyam Sundar  A.I. R. 1961  S.C. 1669, the question was relating to transfer of share  and registration thereof under Companies Act, and an appeal lying to the Central Government. The consideration was whether the Central (Government acting as appellate authority was a tribunal. It was held that the restrictions which are inherent in the exercise of the power of the Court also apply to the exer­cise of the appellate power by the Central Government, i.e. the Central Government had to decide, whether in exercising their power, the directors are acting oppressively, capriciously or corruptly, or in some way mala fide. The decision has manifestly to stand these objective tests, and has not merely to be founded on the subjective satisfaction of the authority deciding the question. The authority cannot proceed to decide the question posed for its determi­nation on grounds of expediency. The statute empowers the Central Government to decide the disputes arising out of the claims made by the transferor or transferee, which claim is opposed by the company and by rendering a decision upon the respective contentions, the rights of the contesting parties are directly affected. Prima facie, the exercise of such authority would be judicial. It is immaterial that the statute which confers the power upon the Central Government does not expressly set out the extent of the power, but the very nature of the jurisdiction requires, that it is to be exercised subject to the limitations which apply to the Court.
 
26. The question involved in Indo-China Steam Navigation Co vs. Jasjit Singh A.I.R. 1964 S.C. 1140, was whether the Central Board of Revenue exercising appellate power under section 190 of the Sea Customs Act, and the Central Government exercising revisional power under section 191 thereof, are tribunals. It was held that they are tribunals within the meaning of Article 136(1) of the Indian Constitution. It was found that the authorities are constituted by the Legislature and they are empowered to deal with the disputes brought before them by aggrieved persons. The scheme of the Act, the nature of the proceeding brought before the appellate and the revisional authorities, the extent of the claim involved, the nature of penalties imposed and the kind of enquiry which the Act contemplates, all indicate that both the appellate and the revisional authority acting under the relevant provisions of the Act cons­titute Tribunals under Article 136 of the Constitution, because they are invested with judicial power of the State, and are required to act judicially.
 
27. In A.C. Companies vs. P.M. Sharma  A.I.R. 1565 S.C. 1595, the question involved was whether the State Government exercising appellate jurisdiction under Rule 6(5) and (6) of Punjab Welfare Officers Recruitment and Conditions of Service Rules (1952) was a tribunal. The majority view is that it is a tribunal under Article 136(1) of the Constitu­tion. It has been held that suicidal functions and judicial powers are one of the essential attributes of a sovereign State, and on consi­derations of policy; the State transfers its judicial functions and powers mainly to the Courts established by the Constitution but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribu­nals by entrusting to them the task of adjudi­cating upon special matters and disputes between parties. It is not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the Courts and features which are distinct and separate. The basic and the fundamental feature which is common to both the Courts and the tribunals is that they discharge judicial function and exercise judicial powers which inherently vest in a sovereign State. It has further been observed that the consideration about the presence of all or some of the trappings of a Court is not decisive. The presence of some of the trapp­ings may assist the determination of the ques­tion as to whether the power exercised by the authority, which possesses the said trappings is the judicial power of the State or not. The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise has been conferred on it by a statute, and can be des­cribed as a part of the State's inherent power exercised in discharging its judicial function.
 
28. In A.P.H. Conference Shillong W A. Sangma AIR 1977 S.C 2155, the ques­tion was whether a determination do-recogni­sing a political party, under Election Symbols (Reservation and Allotment) Order 1968, of the Election Commission could be treated as that of a tribunal. This decision referred to earlier decisions of the Indian Supreme Court, and several tests have been laid down to determine whether a particular body or autho­rity is a tribunal within the ambit of Article 136. The tests are not exhaustive in all cases. It is also well settled that all the tests laid down may not be present in a given case. While some tests may be present, others may be lacking. It is, however, abso­lutely necessary that the authority in order to come within the ambit of Article 136(1), as tribunal, must be constituted by the State and invested with some function of judicial power of the State. This particular test is an unfailing one, while some of the other tests may or may not be present at the same time.
 
29. The Election Commission is creat­ed under the Constitution and is invested under the law with not only administrative powers, but with certain judicial power of the State fracti­onal it may be. The Commission exclusively resolves disputes, inter alia, between rival parties with regard to claims for being a recognised political party, for the purpose of the electoral symbol. Therefore, the Commission fulfils the essential tests of a tribunal, and falls squarely within the ambit of Article 136(1) of the Constitution.
 
30. It is to be observed, that all the bases cited from the Bar are Article 136(1) of the Indian Constitution, which provides an appeal to the Supreme Court from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the terri­tory of India. The meaning of the word 'tribunal' in those decisions was determined with reference to the word 'Court' in juxta­position to which it is used in the article, and the  two words are not used  to mean the same thing, but to similar things. Even in that context, the Central and State Govern­ments, Central Board of Revenue and Election Commission have been held to be tribunals.
 
31. A reference to the language of Article 102(5) of our Constitution, will reveal that 'tribunal' has been used first only with Court,  then as Court or  tribunal established under a law relating to Defence Services of Bangla­desh or any disciplined force and the again as a tribunal under Article 117. The context in which tribunal has been used so far as disciplined force is concerned, has been used in juxtaposition with that of Court or tribunal relating to Defence Services or disciplined force. The word tribunal has been used more in the nature of an adminis­trative tribunal than in the nature of a Court. Looked at from any standpoint mere absence of the word 'tribunal' in the Police Officers Ordinance, 1976, when basic conditions have been satisfied, namely, it is an authority established by a law to deal with certain officers of police force, the component of disciplined force, to punish them for offences after following a procedure prescribed by the Ordinance, and the Ordinance confers no other function on the prescribed authority.
It is an Ordinance which .is protected under Article 45 of the Constitution.
 
32. I, therefore, find that the 'authority' mentioned in the Police Officers Ordinance, 1976 is a tribunal.; Any decision of the autho­rity or tribunal under this Ordinance is immune from challenge under Article 102 of the Constitution, except within the rule laid down by this Division in Khandker Ehteshamuddin Ahmed @ Iqbal Vs. The State.
 
Fazle Munim, J:

I have had the advan­tage of going through the order of the Court and the views expressed by the learned Chief Justice and brother Ruhul Islam, J. I agree with the views of the learned Chief Justice.
             
Ruhul Islam, J:

         These four appeals by special leave arise from different judgments of the High Court Division in writ petitions filed by the respondents separately calling in question legality of the orders impugned there­in. Respondents being members of the Police Service holding the rank of Sub-Inspector and below, a question as to the maintainability of the writ petitions has been raised. For determination of the questions considered to be of great public importance, the matter was placed before the Full Court, only for an­swering the question and not the merits of the appeals. In view of the importance of the question involving interpretation of some of the provisions of the Constitution, two Senior Advocates of this Division, namely, Mr. S.R. Pal and Syed Ishtiaq Ahmed were requested to appear as amicus curiae to assist the Court.
 
35. Respondent A.K.M. Jahangir in Civil Appeal No. 134 of 1978 arising out of Writ Petition No. 505 of 1977 was a confirmed Sub-Inspector of Police, and he was appointed as the Deputy Superintendent of Police by the appropriate authority for his being a Freedom Fighter. Prior to that, he was promoted to the post of Inspector of Police on April 4, 1973, and on August 8, 1973, he was appoint­ed as Deputy Superintendent of Police. He was informed by memo dated June 20, 1975 that his appointment as Deputy Superinten­dent of Police and his confirmation in the post of Inspector of Police had been cancelled. This order was made without assigning any reason, and without drawing up any proceed­ings. Respondent A.K.M, Jahangir Hossain challenged the legality of this order contend­ing that the order is arbitrary, malafide and unconstitutional and violative of Article 135 of the Constitution of Bangladesh. A Divi­sion Bench of the High Court Division after hearing the parties declared that the order dated June 20, 1975 cancelling the appointment of the respondent as Deputy Superintendent of Police and his confirmation in the post of Inspector of Police; and the order dated June 30, 1977 reverting him to the post of Sub-Inspector of Police to have been made without lawful authority and of no legal effect.
 
36. In Civil Appeal No. 39 of 1979 appe­llant Mokaddis Ali challenged the order of his removal from service while he was officiating as an Assistant Sub-Inspector of Police, Baidyer Bazar Police Station in the district of Dacca. He was removed from service by the impug­ned order dated February 6, 1978. He challenged the legality of the order of re­moval from service on the ground that the charge framed against him is motivated, malafide and without lawful authority and without any specification of proposed penalty contained in section 5 of the Police Officers (Special Provisions) Ordinance, 1976 (Ordi­nance No. LXXXIV of 1976). He further contended that the order violated the manda­tory provisions contained in clause (2) of section 6 of the said Ordinance, 1976. He also raised some other grounds alleging vio­lation of other provisions of the said Ordi­nance. The writ petition was summarily re­jected by a Division Bench of the High Court Division on the finding that two of the charges were proved in a regularly drawn up proceeding as required under the Ordi­nance, 1976, and there was no substantial grievance made by the appellant.
 
37. Appellant S.M. Khalilur Rahman in Civil Appeal No. 40 of 1979 was also an officiating Sub-Inspector of Police posted at Baidyer Bazar Police Station in the district of Dacca. He was compulsorily retired from service by the order dated February 6, 1978 in the facts and circumstances similar to those in Civil Appeal No. 39 of 1979. He also complained of non-compliance and/or viola­tion of mandatory provisions of the Ordi­nance, 1976 Ordinance No. LXXXIV of 1976) His writ petition was  summarily  rejected on the finding that the impugned order had been passed after going through a regular proceed­ing drawn up under the Ordinance, 1976.
 
38.  Respondent Dhirendra Nath Sarnakar in Civil Appeal No. 126 of 1979, a Police Constable challenged legality of the order dated March 8, 1975 of the Superintendent of Police, Kushtia dismissing him from service in the modification of earlier order dated February 14, 1975 discharging him from ser­vice. The order of dismissal was confirmed in appeal by the Inspector General of Police. Respondent No. 1 along with others was put on guard at a Bank and when some mis­creants launched an attack on them, they surrendered their arms to the miscreants without offering any resistance. Respondent No. 1 along with others were placed under suspension on the charge of cowardice, and 'subsequently was dismissed from service. His grievance is that he was not given any show-cause notice or any opportunity to defend himself as such the order of dismissal is illegal and violative of under Article 135 of the Constitution. A Division Bench of the High Court Division declared the order of dismi­ssal as without any lawful authority and it is violative of Article 135 of the Constitu­tion.
 
39. Members of the Police Service have been described as 'disciplined forces’ in the Constitution. The expression disciplined force has been defined in Article 152 of the Cons­titution. 'Disciplined force' means—
 
"(a) the army, navy or air force;
(b)  the police force;
(c) any other force declared by  law to be  a disciplined   force   within   the meaning of this definition."
 
40. The expression 'disciplined force' finds reference in Article 45 of the Constitution which modifies the Fundamental Rights in respect of disciplinary law relating to members of 'disciplined force'. This expression again finds reference in sub-article (5) of Article 102 of the Constitution. Sub-article (5) reads as under:
 
"In this article, unless the context otherwise requires, 'person' includes a statutory public authority and any Court or tribunal, other than a Court or tribu­nal established under a law relating to the defence service of Bangladesh or any disciplined force or a tribunal to which Article 117 applies."
 
Member of the Police Service upto the rank of Inspector of Police have been classified as Officers of the Subordinate rank and they are governed by the Police Act, 1861 and the Police Regulations framed thereunder. They are also now governed by the Police Officers (Special Provisions) Ordinance, 1976 herein­after referred to as the Ordinance, 1976. The question for consideration of the Full Court is whether in view of sub-article (5) of Article 102 the members of the Subordinate police are debarred from invoking the special writ jurisdiction under Article 102 of the Constitution seeking redress against an order imposing any of the penalties enumerated in sections of the Ordinance, 1976. Testate the point- more clearly: whether the authori­ties named in the Ordinance, 1976 can be treated as 'tribunal' established under a law relating to any disciplined force to apply, the bar as provided in sub-article (5) of Article 102 of the Constitution.
 
41. The doctrine of holding office during the pleasure of the President is subject to the provisions of Article 135 of the Constitution. Article 133 provides that subject to the provisions of this Constitution Parliament may by law regulate the appointment and condi­tions of service of persons in the service of the Republic:
 
         Provided that it shall be competent for the President to make rules regulating the appo­intment and the conditions of service of such persons until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law. Article 135 provides two limitations on the doctrine of holding office during the pleasure of the President. Firstly, it provides that no person who holds any civil post in service of the Republic shall be dismissed or removed or reduced in rank by an authority subordinate to that by which he was appointed; and, secondly, no such person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of sho­wing cause why that action should not be taken. As per Article 133, appointment and conditions of service of a member of the Police Service are to be regulated by laws enacted by the Parliament, and laws are subject to the provisions of the Constitution. By using the expression 'subject to the provisions of this Constitution', the framers of the Cons­titution obviously had in their contemplation Part III containing 'Fundamental Rights' and Part IX containing “The Service of Bangla­desh”. A member of the Police Service being also a member of 'disciplined force', his fundamental right to some extent are limi­ted by Article 45 of the Constitution, which provides that nothing in this Part (Part III) shall apply to any provision of a disciplinary, law relating to members of a disciplined force, being a provision limited to the purpose of ensuring the proper discharge of the duties or the maintenance of discipline in that force.
 
42. The Ordinance of 1976 was promul­gated on November 5, 1976, which was published in the Bangladesh Gazette on Nov­ember 8, 1976. Object of the Ordinance is to provide 'Special Provisions for maintaining discipline among certain mem­bers of the Police Force'. The Ordinance is applicable only to certain members of the Police Force, that is, from Constable upto the rank of Inspector of Police. Obviously the Ordinance of 1976 was promulgated by the President in the exercise of the authority conferred by the proviso to Article 133 of the Constitution. The ques­tion is whether the Ordinance provides 'tribunals' as contemplated in sub-article (5) of Article 102 of the Constitution, purporting to take away the right of members of the police force to call in question orders passed "by any of the authorities named in the schedule to the Ordinance, invoking the writ jurisdiction under Article 102 of the Consti­tution, in the case of illegal dismissal, dis­charge, removal, reduction in rank or com­pulsory retirement from service.
 
43. Sub-article (1) of Article 102 of the Constitution provides that the High Court Division on the application of any persons aggrieved, may give such directions or orders to 'any persons or authority, including any performing any function in connection with the affairs of the Republic as may be per­petrated for the enforcement of any of the fundamental rights conferred by Part III of the Constitution. Sub-Article (2) of Article 102 of the Constitution provides that the High Court Division may, if satisfied that no other equally efficacious remedy is provided by law—
 
(a)  on the application of any person ag­grieved, make an order—
(i)  directing a 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  by law to do or to do  that which he is required bylaw to do: or
(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of  a local authority has been done or taken without lawful authority and is of no legal effect.
 
44. The word 'person' mentioned in sub-articles (1) and (2) of Article 102 has been defined in sub-article (5). The word 'person' has been used in sub-articles (1) and (2) for two purposes; unless one satisfies the requirement of constituting a person, he has no locus standi to invoke the writ jurisdiction. Similarly direction sought for against a 'person' cannot be given, unless it is sought for against a 'person' perfor­ming any function in connection with the affairs of the Republic or of a local authority, to refrain from doing that which he is not required by law to do, etc.
 
45. The word 'person' includes statutory public authority and any court or tribunal, but it does not include a 'person' or 'tribunal' established under a law relating to the defence services of Bangladesh or any disciplined force.  A member of any disci­plined force even if he is aggrieved by an order of a Court or Tribunal established under a law relating to any disciplined force, he is debarred from invoking the writ jurisdiction.
 
46. According to the learned Attorney General the authorities specified in the Ordinance  of 1976 are 'tribunals' as cont­emplated in sub-article (5) of Article 102, and as such a member of  a disciplined force is debarred from invoking the writ jurisdiction calling  in  question legality  of the order of his dismissal or reduction in rank. Before entering into the discu­ssion of merit of the submission of the learned Attorney-General, I consider it necessary to examine the nature of the tribunals purported to have been set up under the Ordinance of 1976.  Section 2 of   the Ordinance contains the following definitions:
(a)  'authority' means an authority speci­fied in column 2 to the schedule;
(b) 'misconduct' Cleans conduct prejudi­cial to good order or service discipline or contrary to the Government Ser­vants (Conduct) Rules, 1966, or un­becoming an officer or gentleman; and
(c) 'police officer’ means a police officer of, and below, the rank of Inspector mentioned in column 1 of the Schedule.
 
Section 3 provides that the Ordinance shall have effect notwithstanding anything contained in any law, rules and regulations relating to police force. The section also provides that the Ordinance shall not prejudice the operation of any other law, rules and regulation including the service conditions of the said police force. Section 4 enumer­ates the offences made punishable under this Ordinance.
     (i) misconduct;
     (ii) dereliction of duty ;
     (iii) act of cowardice or moral turpitude ;
     (iv) corruption or having persistent reput­ation of being corrupt;
     (v) subversive activity or association with persons or organisations engaged in    subversive activities;
     (vi) desertion from service or unautho­rised absence from duty without rea­sonable excuse; or
     (vii) inefficiency.
Section 5 enumerates the penalties—
     (a) Dismissal from service;
     (b) removal from service;
     (c) discharge from service;
     (d) compulsory retirement; and
     (e) reduction to lower rank.
 
Section 6 provides the procedure of enquiry. Section 7 provides the forms of appeal. Section 8 provides that no order passed under any of the provisions of this Ordinance shall be called in question in any Court. The Ordinance contains a Schedule, which is as under :
 
47. So far as disciplinary matter relating to a police Officer of and below the rank of Inspector is concerned, it is now governed by the Ordinance, 1976 in supersession of the relevant provisions in the Police Regulations Bengal, 1943 and the Government Servants (Efficiency and Discipline) Rules,   1960.
 
48. To examine the nature of the changes made in the Ordinance, 1976 from those provided in the Police Regulations Bengal, 1943, some of the provisions of the Police Regulations Bengal may be referred to. Chapter XVII contains the provisions of punishments and appeals. Regulation 857 divides punish­ment into two categories, namely, major and minor. Major punishments include dismissal, removal from service, reduction, deprivation of approved service increment, removal from any office of distinction or special   emolument and award of black marks. Minor punishments include warnings, censures (reprimands for misconduct), extra, drill, extra fatigue duty and confinement to quarters with or without punishment drill, extra guard, fatigue or other duty. Regula­tion 858 empowers the Inspector-General to suspend, reduce, dismiss or remove any police-officer of or below the  rank of Inspector or award to  any  such  police  officer  or to award to any police officer any one  or more of the following punishments, namely :—

(i)  deprivation of approved  increment;
(ii)  removal from any officer of distinc­tion or special emolument;
(iii) entry or black mark against his name according to regulation 874;
(iv)  censure   or reprimand; and
(v) confinement to barracks for a term not exceeding 15 days with or without punishment drill, extra guard, fati­gue or other duty.

         This Regulation further provides that the punishments mentioned in sub-clause (v) shall not be awarded to any Inspector, Sergeant, Sub-Inspector or Assistant Sub-Inspector. It further provides that punishment drill shall not be awarded to any Head Constable or Naik, A Deputy Inspector-General has similar power as that of the Inspector General excepting that in the case of removal or dismissal of Inspectors, he shall forward the proceeding to the Inspector- General for orders. A Superintendent may suspend any Inspector subordinate to him, pending enquiry into his conduct and may award the punish­ment mentioned in (a) (iv) and enter it at his discretion in the officer's service record repor­ting every case to the Deputy Inspector-General of the Range, giving details explana­tory of the necessity for his action. This regu­lation also empowers the Superintendent of Police to award to any police officer subor­dinate to him below the rank of Inspector any punishment that may be awarded to such officer by the Inspector-General or Deputy Inspector-General under this regula­tion. If after drawing up proceedings against an Inspector, the Superintendent considers that the offence requires a punishment, which he is not empowered to award, he shall record a finding in the proceedings and forward them to the Deputy Inspector-General with his recommendations. The Deputy Inspector-General shall then pass final orders after go­ing through the proceedings, or if he considers that the Inspector should be dismissed or removed from the service, shall forward the proceedings to the Inspector-General for orders. This regulation also provides that the proceedings against Inspectors involving recommendations of dismissal or removal from the service should be forwarded by the Superin­tendent of Police direct to the Inspector-General for orders.
 
49. Regulation 861 provides the procedure for drawing up proceedings in cases of major punishments. Clause (a) of this regulation provides that no major punishment shall be awarded except in proceedings in the prescri­bed form (B. P Form No. 164). Clause (b) provides that a definite charge with necessary particulars shall be framed before evidence is recorded. The person charged shall be given a copy of the charge and shall also be allowed to take copies of all evidence, both oral and documentary, contained in the proceedings. Clause (c) provides that an oral enquiry shall be held if the person charged so requires or if the authority who has drawn up the proceedings so directs. It further provides that at the enquiry oral evidence shall be heard as to such of the allegations as are not admitted and the person charged shall be entitled to cross-examine the witnesses and to have such witnesses called as be may require:
 
Provided that the officer conducting the enquiry may, for special and sufficient reasons to be recorded in writing, refuse to call any such witness.

Clause (d) provides that the person charg­ed shall be required to put in within reason­able time a written statement of his defence “and to state whether he desires to be heard in person. If he states that he does not desire to put in a written statement or to be heard in person this fact shall be recorded in the proceedings.
 
Clause (e) provides that after the evidence of the witnesses has been recorded and the defence of the person charged placed on record, the officer conducting the enquiry shall in writing—
 
(i) discuss separately each charge,
(ii) arrive at a finding on each charge, and
(iii) after taking into consideration the previous character of the person char­ged, make an order or recommend an order to the authority empowered to pass an order.
 
This clause further provides that in cases in which the Enquiry Officer does not pass the final order and recommends an order to the authority empowered to pass an order, the person charged shall be furnished with a copy of the Enquiring Officer's finding and/or Superintendent of Police's recommen­dations so that he may at the personal hearing be in a position to refute anything therein stated which in his opinion is incorrect.

Clause (e) further provides that the autho­rity empowered to pass the order of punish­ment shall grant a personal hearing to the person charged and then pass the final orders. When the Enquiry Officer himself passes the final order no personal hearing is neces­sary, as the persons charged is present throughout the enquiry. This regulation also provides that when the authority competent to pass the final order in the proceedings has come to a provisional decision as to the nature of the penalty to be imposed, he must first ascertain that the delinquent has been given copies of all matters incorporated in the proceedings, and then order the delinquent to show cause why the particular penalty proposed to be inflicted should not be im­posed upon him. This may be done either orally or in writing, but if done orally the reply of the officer being proceeded against must be recorded in the proceedings. The regulation also provides that all or any of the said clauses may, in exceptional circumstan­ces, and for special and sufficient reasons to be recorded in writing, and be waived by the officer conducting the enquiry where there is a difficulty in observing them and. where such clauses can be waived without injustice to the person charged.
 
Clause (k) provides that an order of puni­shment passed on the advice or with the con­currence of a higher authority shall be trea­ted as an order of that authority.
 
Clause (m) provides that an order of punishment passed in a proceeding shall not be modified or cancelled without the sanction of the appellate authority.
 
Clause (n) provides that no proceeding shall be drawn up against an officer of the rank of Inspector without the sanction of the Deputy Inspector-General except in cases of serious misconduct when a preliminary order of suspension has been passed. In such cases, proceedings may be drawn up in anticipation of such sanction.
 
Clause (o) provides that proceedings against Inspectors and in cases of serious misconduct against officers of and below the rank of Sub-Inspector shall be drawn up by the Superintendent. In other cases proceedings may be drawn up and evidence recorded by an officer not below the rank of Inspector (excluding Armed Inspectors) who "will submit the record to the superintendent for perusal, examination and issue of orders.
 
50. Regulation 882 provides a table sho­wing the authority to whom appeals against orders of punishment may be preferred by the different ranks;-
      
Rank of officer Authority inflicting punishment Appellate authority
Inspectors Superintendent: Deputy Inspector-General:  Inspector General Deputy Inspector-General, Inspector General Governor
Sub-Inspectors Sergeants
Assistant Sub-Inspectors
Head Consta­bles
Naiks Constables
Sergeants
Engine Drivers
other  engine and deck
crews
Manjis  and Mallahs
Superintendent…………. Deputy Inspector-General

*In such cases the Public Service Commi­ssion is consulted and the Governor exercises his individual-judgment.
 
51. Clause (c) provides that an order of dismissal, removal, reduction, black -mark, deprivation of approved service increment or removal from any office of distinction or special emolument, and in the case of Inspec­tors, censure, there shall be an appeal to the authorities mentioned below—
(i) in the case of an order passed by a Superintendent, to the Deputy Inspector-General;
(ii) in the case of an order passed by the Deputy Inspector-General, to the Inspector-General; and
(iii) In the case of an order passed by the Inspector-General, to the Governor*  
Clause (d) provides that no second appeal shall lie from an order passed in an appeal.
 
52. Regulation 883 provides the period of appeal and procedures. Petitions of appeal or revision shall be presented to the officer against whose order the appeal is preferred, within 37 days of the date of receipt of the order by the petitioner. Every petition of appeal or for revision shall be accompanied by certified copies of the charges made, of the written statement of the defence, if any, and of the order appealed against. Such officer when transmitting such petition to the appellate authority, shall send the proceedings, service book or roll and confidential report of the appellant, together with a covering letter. Only relevant papers shall be sent and they shall be property flagged for refer­ence.
 
53. Regulation 884 provides that the Inspector-General or the Deputy  Inspector-General may call for the proceedings of the case, even when no  appeal  lies, and pass such orders as may seem fit  provided no order  under this  regulation shall be made to the prejudice of any person unless he has had an opportunity of showing cause against the  proposed order. If he so desires he shall be granted a personal hearing and this fact should be recorded in the   proceed­ings.
 
The above regulations have been drawn up in accordance with section 7 of Act V of 1861 read with section 243 of the Govern­ment of India Act, 1935.
 
54. From the two sets of rules as conta­ined in the Ordinance, 1976 and Police Regulations Bengal, 1943 it appears that some of the offences as mentioned in the Police Regulations Bengal have been listed in section 4 of the Ordinance and some of the penalties as mentioned in the Police Regulations Bengal have been listed in section 5 of the Ordinance. The penal­ties mentioned in section 5 are some of the major penalties as mentioned in regulation 857. These are dismissal, removal, discharge, compulsory retirement and reduction in rank Thereby leaving some major punishments such as deprivation of approved service increment, removal from any office of distinc­tion or special emolument and award of black marks. None of the minor punishments have been included in section 5 of the Ordinance.
 
55. The object of framing the Rules as contained in the Ordinance, 1976 and these contained in the Police Regulations Bengal appears to be the same, namely, providing special provisions for maintaining discipline among certain members of the police force. The difference is that the provisions contai­ned in the Ordinance cover only some of the major punishments mentioned in the Police Regulations with shortened procedure of enquiry and appeal, Regulation 861 con­tains an elaborate procedure for drawing up proceedings involving major punishments. The procedure contained therein has been framed in accordance with section 7 of Act V, 1861 read with section 243 of the Government of India Act, 1935. Section 243 of the Govern­ment of India Act, 1935 provides special pro­visions as to police. The section provides that notwithstanding anything in the foregoing provisions of this Chapter (Chapter II Civil Service), the conditions of service of the subordinate ranks of the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces respectively. The procedure ensures the guarantee of service as contained in sub-section (3) of section 240 of the said Act that is a reasonable opportu­nity of showing cause against the action pro­posed to be taken. It has already been mentioned above that in the cases wherein the enquiry officer does not pass the final order and recommends to the authority empowered to pass necessary order, latter shall grant personal hearing to the person charged and come to a provisional decision as to the nature of penalty to be imposed and then order the delinquent to show cause why the proposed penalty should not be imposed on him. Section 6 of the Ordinance contains abridged procedure of enquiry and passing of final order. Here the preliminary enquiry by an enquiry officer has been omitted. Instead the authority concerned as shown in the schedule is required to frame charge specifying therein the penalty proposed to be imposed ; and communicate it to the police officer asking him to show cause within the time fixed therein which shall not be less than seven days and more than ten days. If, after consideration of the cause shown, if any, by the delinquent officer and hearing him in person, if he so desires, the authority finds him guilty of the charge, he shall, within twenty days of the receipt of the explanation impose upon the delinquent officer the proposed penalty or any other lesser penalty under section 5. The provision of appeal as contained in section 7 prescribes seven days' time after receipt of the order of punishment, to file an appeal to the appellate authority as specified in column 3 of the schedule. The appellate authority is required to dispose of the appeal and commu­nicate the result within fifteen days of the date of receipt of the appeal. Practi­cally there is no difference in the powers of the authority inflicting puni­shment and that of the appellate authority.
 
56. Regulation 882 provides that if the Superintendent of Police inflicts punishment upon an Inspector, the Deputy Inspector General is the appellate authority. If the punishment is given by the Deputy Inspector General, the Inspector General is the appel­late authority. If the Inspector General passes the order of punishment, Governor (now President) is the appellate authority. Column 2 of Schedule to the Ordinance shows that it is the Inspector General of Police who is competent to inflict the necessary punishment on the Inspectors, and the Government is the appellate authority. Thus from a comparison of the two procedures of enquiry and punish­ment no material difference is noticed except­ing, as noted above, shortening of the pro­cedure in the Ordinance, 1976 with the object of ensuring disposal of the case within a limited time. In the Ordinance, 1976 the rules provide much shortened procedure. which is required to be completed within specified time, whereas the rules in the Police Regulations Bengal, 1943 provide an elabo­rate procedure including recording of evidence without specifying any time limit in the .period taken in enquiry, punishment and appeal. Under the Ordinance, a proceeding including appeal can take a maximum period of 52 days, but in the Police Regulations Bengal 1943, there is no limit.
 
57. The learned Attorney-General argued in support of i he proposition that the members of the Police force from the rank of Inspec­tor downwards for maintenance of discipline have been brought within the ambit of the Ordinance, 1976, with a special proce­dure for trial and punishment by the authority mentioned in the Ordinance. He submitted that the authority as per requirement of the Ordinance is to follow the procedure prescribed therein; and that the Ordinance contains specified appellate authorities. By way of elaborating his point, the learned Attorney-General further submitted that the 'authority' means an authority speci­fied in column 2 of the schedule and in the case of Inspector, the Inspector General of Police is the authority to hold enquiry and award punishment; in the case of Sub-Ins­pector, Sergeant, Head Constable, the Deputy Inspector General of Police is the autho­rity ; and in the case of Constables and Naiks, the Superintendent of Police is the specified authority. In the case of Inspector, Government is the appellate authority: and in the case of two other classes of police force, Inspector General of Police and Deputy Inspector General of Police respectively, are the authorities. He further submitted that the authorities as mentioned in the schedule to the Ordinance being empowered to award punishment, in the manner as prescribed in the Ordinance, the authorities perform quasi-judicial functions ; and they satisfy the attributes of tribunals ; and tribunals having been set up by a law relating to a disci­plined force as contemplated under sub-article (5) of Article 102 of the Constitution, any order passed by the tribunals can not be called in question by invoking the writ juris­diction. In support of his submissions, the learned Attorney-General referred to a number of decisions of Supreme Court of India. He referred to the case of Bharat Bank Ltd .vs. The Employees of Bharat Bank Ltd. A.I.R 1950 S.C, 188' ; Durga Shankar Mehta vs, Raghuraj Singh, A,I,R. 1954 S,C, 520 : Harinagar Sugar Mills Ltd vs. Shyam Sundar Jhunjhunwala, A.I.R 1961 S.C. 1669; Indo-China Steam Navigation Co. Ltd vs. Jasjit Singh, A.I.R. 1964 S.C. 1140 ; and Associated Cement Companies Ltd. vs. P.N. Sharma, A.I.R, 1965 S.C. 1595. Discussion of the above-noted deci­sions will be taken up later on to find out as to what extent the principles laid down therein are helpful to provide any guidance in the determination of the question raised before us.
 
58. Mr. S.R.-Pal, the learned Counsel appea­ring as amicus curiae, however, submitted that the members of police service are governed by Act V of 1861 and the regulation framed thereunder, namely, Police Regulations Bengal 1943 and by the Ordinance, 1976 no new or special authority or forum has been created for the maintenance of discipline among the members of the police force. The authorities as named it the Ordinance are the same as specified in the Police Regulations Bengal, powers to hold enquiry and award punishment remaining the same.
 
59. Syed Ishtiaq Ahmed, the learned Counsel appearing also as amicus curiae while supporting the arguments of Mr.S.R. Pal, submitted that although a member of the Police Force holds office during the pleasure of the President, but President's pleasure is not absolute, but is subject to the fetters as provided under Article 135 of the Constitution. The guarantee of service as provided in Article 135 cannot be denied or taken away by enacting any law or framing any rule thereunder. In case of violation of his right as   provided under Article 135 and contravention of the mandatory provisions of the Ordinance, the remedy provided in Article 102 is available to him. He further submitted with reference to sub-article (5) of Article 102 that to apply the  bar as contained in sub-article (5) in the case of a member of police force debarring him from invoking the writ jurisdiction, the punishing authority must be a 'tribunal' established under a law. He further submitted that 'tribu­nal' as contemplated in sub-article (5) of Article 102 must be one which has been constituted by the Legislature and it exercises judicial power of the State. It may not be strictly speaking a 'court' but must possess some of the trappings of a ‘court’. The autho­rities mentioned in the second and third columns of the Schedule to the Ordinance are purely administrative authorities exercising power, which can be termed neither as judicial nor quasi-judicial. In order to attract the bar as provided under sub-article (5) the tribunal must be one which satisfies the know tests of tribunals. Besides the statute purporting to attract the constitutional bar against a person’s remedy under the Consti­tution, must be a conscious one.
 
60. Dr. Aleem-Al-Razee, the learned Counsel appearing for the appellant  in Civil Appeal Nos. 39 and 40 of 1979 submitted that a police officer holding a civil post in the service of the Republic cannot be denied his constitutional right to invoke  the writ juris­diction  when he is aggrieved by an  order of the authority named in the Ordinance, 1976, merely by taking recourse to interpreta­tion of the statutory provisions, particularly when the authorities named in the Ordinance have not been intended by the Legislature to be 'tribunals' as contemplated in sub-article (5) of Article 102. He submitted that the expression 'court or tribunal estab­lished under a law relating to any disciplined force' contemplates establishment of a 'court' or 'tribunal' having trappings of a Court and functions like a court. In  support of this argument he submitted with reference to sub-articles (3) and (5) of Article 98 of the Constitution of Pakistan, 1962 that the Defence Service as a class has been excluded from the remedy provided  under Article 98. In clear words it has been stated  in sub-article (3) that an order shall  not  be made under sub-article  (2) on  application made by or in relation to a  person in the  Defence Services of Pakistan  in respect of his terms and conditions of service, in respect of any matter arising out of service or in respect  of any  action taken in relation to him as a member of the Defence Service of Pakistan. Sub-article (5) in defi­ning of word 'person' excludes a court or tribunal established under a law relating to the Defence Services of Pakistan. With reference to the two clauses the learned Counsel submitted that if the intention of the framers of  the Constitution was to exclude members of the police force as  a whole, in that case a provision similar to that as contai­ned in sub-article (3) of Article 98 of the Constitution of Pakistan, 1962 would have been incorporated in Article 102 of the Cons­titution of the People's Republic of Bangladesh, According to the learned Counsel, the authori­ties specified in the Ordinance, 1976 are no more than administrative bodies. He submi­tted that the procedure of enquiry as provided in section 6 of the Ordinance, clearly indicates that the authorities concerned act as adminis­trative body and not as 'tribunals' performing even quasi-judicially. In the case of an Inspector the punishing authority is the Inspector-General of Police and it is the Inspector General of Police who is required to frame a charge and after framing a charge specifying therein the proposed penalty, communicate it to the police officer asking him to show cause why the proposed penalty shall not be imposed and also to state whether he desire to be heard in person and then if, after consideration of the cause shown by the accused officer, if any, and hearing him in person, if he so desires, the authority concerned finds the accused guilty of the charge he shall impose the proposed penalty or any other lesser penalty under section 5. The appellate authority as provided in section 7 of the Ordinance has very little scope to interfere; and the appeal is to be disposed of within fifteen days from the date of receipt of the appeal. Dr. Razee submitted that even if the function of an ad­ministrative, body is in the nature of quasi-judicial, it will not make the body a 'tribunal as contemplated under sub-article (5) of Article 102 of the Constitution, unless it can be shown that the 'tribunal' was constituted for the specific purpose requiring the body to exercise at least part of judicial power of the State.
 
61. On careful consideration of the submissions made at the Bar I find it difficult to accept the contention of the learned Attorney-General that the authorities speci­fied in the Ordinance, 1976 should be treated at 'tribunal' for the purpose of determining the question of locus-standi of the petitioners to move the writ jurisdiction under Article 102 of the Constitution against the orders dismissing them from service.
 
62. The learned Attorney-General could not produce anything to show that the Ordinance was consciously promulgated to applying the bar against invoking the writ jurisdiction by some cate­gories of the police force. In the absence of clear language in the Ordinance, he depen­ded mainly on interpretation of some of the provisions of the Ordinance to support his contention. It cannot, be denied that a member of the police force holding a civil post, is entitled to the protection under the Fundamental Rights and also the guarantees provided in Article  135 of the Constitution. If he is aggrieved by an illegal order of dismissal, removal, discharge, compulsory retirement or reduction to lower rank, the aggrieved police officer has constitutional right to invoke the writ jurisdiction under Arti­cle 102 of the Constitution. With reference to  Article 45 it cannot be argued that the Ordinance falls within the ambit of Article 45 and the authorities specified in the Ordinance relating to some categories of the disciplined force, must be treated as 'tribunal' as con­templated in sub-article (5) of Article 102. Article 45 has no relevancy in the considera­tion of the question raised before us.
 
63. The judgment of this Division in the case of Bangladesh and others vs. Md. Abdur Rob, Civil Appeal No. 96 of 1978 lends support to "the view that there is no specific legislation in this respect. In that case plea of bar  under sub-article (5)  of Article  102 was raised in different contexts, It was argued that the Screening Board constituted under President's Order No. 67 of 1972 being 'tribunal' as contemplated in sub-article (5) of Article, 102 its decision cannot be questioned by invoking the writ jurisdiction. From the judgment it appears that one Inspector of Police was dismissed from service on the recommendation of the Screening Board cons­tituted under President's Order No. 67 of 1972. The dismissed police officer filed a writ petition contending that the Board vio­lated Articles 5 and 7 of the said Order and Rule 7 framed thereunder; and alleging violation of the principles of natural justice. The writ petition was contested by the Go­vernment asserting that the charges of corrup­tion were fully established on evidence led before the Screening Board and the petitioner could not prove his case in defence. The Board not being convinced by the explanation submitted by the petitioner rightly recom­mended his removal from service. The writ petition was allowed by the High Court Division and the impugned order was dec­lared illegal. The Government moved this Division against that decision and obtained leave. One of the grounds upon which leave was granted was:—
 
Whether the respondent, who was Ins­pector of Police, could maintain a writ petition under Article 102 of this Cons­titution, he being a member of the disciplined force."
 
         On behalf of the Government it was sub­mitted that the Screening Board when deals with a case of a member of the disciplined force should be treated as a tribunal "established under a law relating to...any disciplined force" to debar the member of the Police Force from invoking the writ jurisdiction under Article 102 of the Constitution in view of sub-article (5) of Article 102. It was argued on behalf of the respondent that the Screening Board not having been set up relating to any disciplined force, the Screening Board could not be termed as a 'tribunal' set up under a law relating to any 'disciplined force' and, as such, the exclusion provision contained in sub-article (5) of Article 102 cannot be applied to deny right to invoke writ jurisdiction. It was also pointed out from the President's Order No. 67 of 1972 that the Board was not set up for dealing with any particular class of officers holding civil posts. That is to; say it was not exclusively meant for members of the 'disciplined force'. The argument made on behalf of the respondent was repelled with the observation that since "the Board was also empowered to deal with a member of the defence services or any disciplined force and the connection or link between the law, the Court or tribunal and the member of the defence services or any disciplined force is established, no remedy against the decision of such court or tribunal is available by invoking the writ jurisdiction ; more so' when the alleged concerns matters relating to discipline'. It is clear from the Judgment that the bar under sub-article (5) of Article 102 was pleaded the different contexts, and the question was also answered altogether on different considerations.
 
64. The Ordinance, 1976 cannot be said to be a legislation consciously promulgated by the President for the purpose of taking away the right of invoking the writ juris­diction by members of some categories of the police force. In this context it may be mentioned that since the promulgation of the Ordinance, quite a number of aggrieved members of the police force moved the High Court invoking the writ jurisdiction calling in question the orders imposing penalties under section 5 of the Ordinance, but in contesting the writ petitions the question f their maintainability was never raised with reference to sub-article (5) of Article 102.,
 
65. The Ordinance was promulgated simply with the object of bringing some special provisions with the object of maintaining discipline among certain ranks of the police force, by making some changes in the proce­dure of enquiry, that is, by shortening the pro­cedure. However, there is nothing to indicate that the Ordinance was promulgated to establish tribunals as contemplated in sub-article (5) of Article 102. The authorities specified in the Ordinance are neither diffe­rent from those mentioned in the Police Regulations Bengal, 1943 nor the authorities do enjoy any new or more power than the authorities specified in the Police Regulations Bengal enjoy.
 
66. The word ‘tribunal' is ambiguous, because, it is not like 'court' with any ascertainable meaning in English Law, This observation was made in the case of Royal Aquarium vs. Parkinson 1892 (1) Q.B. 431 P, 446. The word 'tribunal' is derived from the word tribune. Dictionary meaning of the word 'tribune' is a magistrate elected by the Roman plebeians to defend their, rights ; a champion of popular rights ; a name for a newspaper : a platform for speaking from; a raised area for stand : bishop's stall or throne. Tribunal means judgment seat: court of justice or arbitration: a body appointed to adjudicate in some matters. In common parlance dictionary meaning of the word 'tribunal' is 'court of justice' or 'seat of a Judge’; and the word Judge means authority by which contested matters are decided between the rival parties, Meaning of the word 'tribunal' as contemplated in sub-article (5) of Article 102 is to be deter­mined with reference to the word 'court' in juxtaposition to which it is used. It is true that the words 'court' or 'tribunal' used in the expression 'court or tribunal estab­lished under a law' are not used to mean same thing but two similar things. The word 'tribunal' is wider than 'Court' because all courts are tribunals but all tribunals are 'not courts. The word 'courts' is used to mean those tribunals, which are set up for the administration of justice. By adminis­tration of justice is meant the exercise of judicial power of the State. The word "courts' means the ordinary courts of civil judicature. These courts are invested with judicial power of the State, and their autho­rity is derived from the Constitution or constituted under some Act of Legislature on the authority derived from the Consti­tution. By 'tribunals' is meant those bodies of men who are appointed to decide contro­versies arising under certain special laws, between parties. There are many things in common between a 'court' and a 'tribunal'. A 'tribunal' is a body which determines controversies or the rights of parties and it possesses some of the trappings of a court.
 
67. The learned Counsels in suggesting neg­ative, answer to the question, submitted that the authorities specified in the Ordinance, 1976 may at best be treated as administrative tribunals. Their reason is that the appointing authority himself is required to frame a charge and specify therein a penalty proposed to be imposed and communi­cated to the delinquent police officer ; and after consideration of the cause shown by the delinquent police officer, if any, and hearing him in person, if the officer so desires, the authority concerned finds accused police officer guilty of the charge, he shall impose the pro­posed penalty or any other lesser penalty under section 5 of the Ordinance. Similarly, the appellate authority is required to communi­cate the result of the appeal within fifteen days of the date of receipt of the appeal. There is no provision for giving personal hearing to the appellant or permitting the appellant to submit a rejoinder. The learned Counsel submitted that in view of the clear provision of section 6 of the Ordinance there is hardly any scope to argue that the autho­rities function as quasi-judicial bodies.
 
         According to them, the authorities cannot be termed as 'tribunal by even stretching the meaning of the word 'tribunal' as used in sub-article (5) of Article 102 of the Cons­titution. They further submitted that on application of the ejusdem generis doctrine, for treating the authorities mentioned in the, Ordinance as 'tribunals' as contemplated in sub-article (5) of Article 102, it must be shown that the authorities possess some of the trappings of 'courts'.
 
68. I find there is sufficient force in the argument advanced at the bar that the autho­rities specified in the second and third columns of the schedule to the Ordinance, 1976 cannot be treated as 'tribunals' exer­cising judicial or even quasi-judicial power. When an administrative tribunal is required to decide a matter at issue after hearing the parties and objectively, and according to the evidence led by the parties, it may be said that the tribunal exercises its power quasi-judicially. But an administrative tribu­nal which is not required to hear the parties and decide the case on evidence and decide the matter at issue objectively cannot be said to decide the matter quasi-judicially. As has been pointed out above that the authorities men­tioned in the second column of the Schedule to the Ordinance being the appointing authorities, for the respective categories of the police officers shown therein practically play the role of prosecutor and merely on considera­tion of the charge framed and the cause shown by the delinquent police officer, im­pose penalty. The procedure contained in the Ordinance do not show that the authorities are required to decide the cases objective­ly. They act in conformity with some admi­nistrative policy, because, under the Ordi­nance the authority exercising, power of dis­missal, removal or reduction in rank, is very much a party to the proceedings.
 
69. Now let me discuss some of the deci­sions of the Supreme Court of India referred to by the learned Attorney-General in sup­port of the contention that the authorities specified in the second and third columns of the schedule to the Ordinance are 'tribunal' within the meaning of 'tribunal' as contem­plated, in sub-article (5) of Article 102 of the Constitution. All these decision have been given in determining the scope of Article 136 of the Constitution of India while considering whether leave could be granted on the petitions for special leave to appeal from' orders passed by the authorities in exercise of the powers conferred under different statutes. It appears that the wordings of Article 136 being wide enough the Supreme Court of India gave liberal interpretation to the language of Article 13 6 to bring the matters within the scope of its appellate jurisdiction. Supreme Court held in favour of maintainability of the appe­als, although the authorities who passed the orders did not conform with the tests as laid down by that Court in the case of Bharat Bank Ltd. A.I.R. 1950 5.C. 188. In the case of The Bharat Bank Limited vs. The Employees of Bharat Bank, A. I. R. 1950 SC. 188 the question arose as to whether in giving the award the Industrial Tribunal set up under section 7 of the In­dustrial Disputes Act, 1947, discharge judicial functions, though not as a court, and against the award an appeal to the Supreme Court under Article 136 of the Indian Constitution was competent. By a majority judgment it has been decided that and award given by Industrial Tribunal falls within the scope of Article 136. Kenia, CJ. held that the functions and duties of the Industrial Tri­bunal set up under the Industrial Disputes Act, 1947 is very much like that of a body discharging judicial functions, although it is not a Court. The learned Chief Justice in taking the view observed that the rules framed by the Tribunal require evidence to be taken and witnesses to be examined cross-examined and re-examined. The Act constituting the Tribunal imposes penalties for incorrect state­ments before the Tribunal. The learned Chief Justice also observed that the power of the Court to issue writ of certiorari and prohi­bition in such a case was not disputed. Mukherjee and Patanjali Sastri, JJ. in recor­ding a dissenting judgement took a contrary view on the ground that the award given by the tribunal does not become effective until it is approved by the Government, and as such the award cannot be made the subject matter of appeal by special leave. In the case of Harinagar Sugar Mills Limited vs Shyam Sunder Jhunjhunwala A.I.R. 1961 S.C. 1669 the question for con­sideration Was whether the order of the Central Government in an appeal from refusal of registration of transfer of shares under the Companies Act, 1956 could be made the subject matter of appeal before the Supreme Court on obtaining special leave under Article 136 of the Constitution of India. In this case also by majority judgment it was decided in the affirmative. The majority view was based on the reason that the procee­dings started under section 111 of the Companies Act, 1956 by way of an appeal before the Central Government have all the trappings of a proceeding before a judicial tribunal, because, pleadings have to be filed, evidence in support of the case of each party has to be furnished, and the dispute has to be decided according to law. The learned Judges further reasoned that as the Central Government exercises judicial power of the State to adjudicate upon rights of the parties in civil matters when there is a lis between the contesting parties, the conclusion is inevitable that it acts as a tribunal and not as an executive body, and the Central Go­vernment in that capacity exercise judicial function. In the case of Indo-China Steam Navigation Company Limited vs. Jasjit Singh Additional Collector, Calcutta, A.I.R. 1964 S. C.1140, on a preliminary objection as to maintainability of the appeal this question was examined. In this case it has been held that the Customs Officer is not a 'court' or 'tribunal' though in adjudicating upon matters under section 167 of the Sea Customs Act, he has to act in a judicial manner. But the Central Board of Revenue exercising appellate power under section 190 of the Sea Customs Act and the Central Govern­ment exercising revisional power under section 191 thereof are 'tribunal' within the meaning of Article 136 of the Cons­titution. Reason given is that these au­thorities are constituted by the Legislature and they are empowered to deal with the disputes brought before them by the aggrieved persons. The scheme of the Act, the nature of the proceedings brought before the appellate or the revisional authority, the extent of the claim involved, the nature of the penalties imposed and the kind of enquiry which the Act contemplates, all indicate that both the appellate or the revisional authority acting under the Act constitute 'tribunal' under Article 136 of the Constitution, because they are invested with the judicial power of the State, and are required to act judicially. In the case of Associated Cement Companies vs P.N. Sharma, A.I.R. 1965 S.C. 1595 the ques­tion for consideration was whether the State of Punjab, exercising its appellate jurisdiction under Rule 6(6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules 1952 exercise judicial power, and, as such is a tribunal within the meaning of Article 136 of the Constitution. Following the earlier decisions of the Court the Supreme Court held that the State Government in deciding an appeal under Rule 6(6) having been vested with the judicial powers of the State, satisfies the tests of a tribunal as con­templated in Article 136 of the Constitution and as such, its decision in the appeal may be made subject matter of appeal before the Supreme Court by obtaining special, leave un­der Article 136 of the Constitution. In arriving at this conclusion the learned Judges pointed out the inherent differences between the 'court' and 'tribunal', and in this context referred to an earlier decision of that Court, in the case of Durga Sankar Mehta vs. Thakur Reghurui Singh, A.I.R. 1954 S.C. 520. The learned Judge observed:-
 
"Tribunals which fall within the purview of Article 136 (1) occupy a special position of their own under the scheme of our Constitution. Special matters and questions are to be entrus­ted to them for their decision and in that sense they share with the courts one common characteristic: both the courts and tribunals are constituted by the State and are invested with judi­cial as distinguished from purely admi­nistrative or executive functions............ They are both adjudicating bodies and they deal with and finally determine disputes between the parties which are entrusted to their jurisdiction. The procedure followed by the Courts is regularly prescribed and in discharging their functions and exercising their powers, the Courts have to conform to that procedure. The procedure which the tribunals have to follow may 'not always be so strictly prescribed, but the approach adopted by both the courts and tribunals is substantially the same, and there is no essential diffe­rence between the functions that they discharge..............................
 
The basic and the fundamental feature which is common to both the courts and tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State,"
 
In another case the Supreme Court of India has taken the similar view in the case of All Party Hill Leaders Conference Shillong vs. Captain W. A. Sangma A. I. R. 1977 S. C. 2155. In this case the question for consideration was whether the Election Commission is a tribunal and falls within the ambit of Article 136 of the Constitution. Answer has been given in the affirmative on the ground that the Commi­ssion exclusively resolves disputes between the rival parties with regard to claims for being a recognised political party for the purpose of an electoral symbol and as such the Commission fulfils essential tests of a tribunal as laid down by the Supreme Court in its earlier decisions. In this case the learned Judges referred to all the previous decisions of the Supreme Court, and made some obser­vations regarding application of the tests laid down by the Supreme Court in those cases. The learned Judges observed as follows-
 
"From a conspectus of the above deci­sions it will be seen that several tests have been laid down by this Court to determine whether a particular body or authority is a tribunal within the ambit of Article 136. The tests are not exhaus­tive in all cases. It is also well settled that all the tests laid down may not be present in a given case, while some tests may be present others may be lacking. It is, however, absolutely nece­ssary that the authority In order to come within the ambit of Article 1360) as tribunal must be constituted by the State invested with function of judicial power of the State. This particular test is an unfailing one while some of the other tests may or may not be present at the same time."
 
70. From all these decisions it appears that it has been consistently held that the expression "tribunal' as used in Article 136 does not mean the same thing as 'court' but includes within its ambit adjudicating bodies, provided they are constituted by the State and are invested with judicial as distinguished from purely administrative or executive func­tion. The decisions of the Supreme Court of India do not support the arguments of the learned Attorney-General in answering the question raised before us. In all the decisions the question for consideration was whether the extraordinary jurisdiction of the Supreme Court, as provided in Article 136 of the Constitution could be extended to grant special leave to appeal from a 'determination' or 'order' or 'any 'tribunal' in any 'cause or matter'. In opposing competency of appeal by special leave under Article 136 it was argued that the 'authority' in some causes described as 'tribunal' does not per­form judicial or quasi judicial function since it is not required to be guided by any recog­nised substantive law in deciding disputes which were brought before it. In one of the cases it was also argued that the Supreme Court had no jurisdiction to grant special leave to appeal against the determination of an industrial tribunal inasmuch as it did not exercise the judicial powers of the State and its determination was not in the nature of a judgment, decree, or order of a court so as to be appealable. The Supreme Court overruled the objections on taking the view that scope of Article 136 being wide enough there could not be any cogent reason to limit the plain words of the constitution and place narrow interpretation on words of wider amplitude used in the Article. It is apparent from the decisions that it is the wording of Article 136 providing very, wide scope which impelled the Court to take the view that appeal from the 'determination or 'order' in any 'cause or matter' made by a 'tribunal' was competent. In Bharat Bank Ltd. vs. Employees of Bharat Bank, A.I.R. 1950 S.C. 188, Kania, C.J. observed as follows:
 
"In my opinion, the wording of Article 136 is wide enough to give jurisdiction to the court to entertain an application for leave to appeal, although it is obvious that having regard to the nature of the functions of the tribunal, this court will be very reluctant to entertain such an application."
 
Mahajan, J. while concurring with the above view, inter alia, observed:—
 
"The intention of the Constitution by the use of the word 'tribunal' in the article seems to have been to include within the scope of Article 136 tribu­nals adorned with similar trappings as Court but strictly not coming within the definition."  

71. The word 'tribunal' used in juxta­position to the word 'court' in sub-article (5) of Article 102 of the Constitution of Bangladesh must be construed keeping in view the recognised principle of interpreta­tion of words and expression used in juxta­position, that is, the doctrine of ejusdem generis. The word 'tribunal' does not mean same thing as 'court' but includes within its ambit adjudicating bodies provided they are constituted by the State and are invested with judicial as distinguished from purely admi­nistrative or executive functions. The ex­pression 'tribunal' has been used along with, 'court' in sub-article (5) of Article 102. The 'court' acts judicially, and 'tribunal' used in juxta position to the word 'court' must be one which also acts judicially or at least quasi-judicially having some trappings of 'court'. The tribunal must be one which determines controversies or the rights of par­ties. The expression 'tribunal' as used in sub-article (5) of Article 102 of the Consti­tution may not connote 'court' but certainly it contemplates an adjudicating body consti­tuted by the State and invested with judicial or quasi-judicial function as distinguished from purely administrative or executive func­tion. According to the well- recognised prin­ciple of interpretation of statute, the word 'tribunal' following the particular and speci­fic word 'court', takes its meaning from the preceding word. The word 'tribunal' as used in Article 136 of the Indian Constitution, that is being ejusdem generis to the speci­fic word 'court', has been construed by the Supreme Court of India, that the word 'tribunal' takes its meaning from the word 'court'. The decisions of the Supreme Court of India referred to above lends support to the arguments that to bring the authorities mentioned in the second and third columns of the schedule to the Ordinance, 1976 within the ambit of 'tribunal' as used in sub-article (5) of Article 102, they must be shown to exercise judicial power of the State; possess some of the trappings of a court; and a duty has been cast upon the authorities to act judicially. The authorities specified in the Ordinance, 1976 cannot be said to possess any of the recognised trappings of a court. The authorities have not been invested with any judicial or quasi-judicial function. They have not been conferred with any part of judicial power of the State; they are merely administrative or executive bodies required to decide whether the delinquent police officer is guilty of the charge 'brought' against him and award punishment. Under the Ordinance the appointing authority frames the charge and on hearing the delinquent officer imposes punishment. The appellate authority also is not required to act judicially or quasi-judicially. Before the appellate authority, in case of appeal by the delinquent police officer, there will be the memorandum of appeal and copy of the order passed by the authority mentioned in column 2 of the Schedule.
 
72. When an administrative tribunal is required to decide objectively after hearing the parties and considering the evidence led by the parties, it may be said that it acts quasi judicially, but that does not make the admi­nistrative body 'tribunal' as contemplated in sub-article (5) of Article 102. There are varieties of administrative tribunals and do­mestic tribunals set up by the State. The real test to bring it within the ambit of sub-article (5) of Article 102 is the extent of judicial power of the State exercised by them. The tribunals which arc not invested with any part of judicial power of the State, but discharge purely administrative or executive duties would he outside the ambit of sub-article 5 of Article 102.
 
73. Even the appellate authority in the case of Inspector, that is, the Government cannot be said to be exercising any part of the judicial power of the State; and act judicially in deciding an appeal from the order of the Inspector General of Police. Such appellate authority does not come within the ambit of sub-article (5) of Arti­cle 102. It has been noted above that the Supreme Court of India in Harinagar Sugar Mills Ltd. A.I.R. 1961 S.C. 1669 has taken the view that the Central Government act­ing as the appellate authority under section 111 of the Companies Act, 1956 is required to act judicially, that is, the Central Govern­ment has to decide whether the directors, in exercising their power, are acting op­pressively, capriciously or correctly. This view was taken obviously in consideration of the concurrent power of the Central Govern­ment and 'court' under section 155 of the Companies Act, 1956, inasmuch as, in exer­cise of the power the court has to act judi­cially to adjudicate upon the right exercised by the directors in the light of powers con­ferred upon them by Articles of Association. The Supreme Court observed that, "It is immaterial that the Statute which confers the power upon the Central Government does not expressly set out the extent of the power: but the very nature of the jurisdic­tion requires that it is to be exercised sub­ject to the limitations which apply to the Court under section 155". The Central Government acting as the appellate authority acts as a 'tribunal'. Similarly, in the case of A. C. Companies Vs. P.N. Singh, A.I.R. 1964 S.C. 1595, the Supreme Court of India has taken the view that the State Govern­ment acting as the appellate authority under rule 6 (5) and (6) of the Punjab Welfare Officers Recruitment and Conditions of Service Rules, 1952 is a tribunal within the meaning of Article 136 (1) of the Indian Constitution. In the facts of that case and provisions of the Rules, allowing the parties to make representation in writing and the nature of the enquiries to be held and the controversies to be adjudicated upon, the Supreme Court held that the State Government as the appellate authority is a 'tribunal' within the meaning of Article 136 (1). The learned Attorney-General did not argue that the Government in deciding an appeal exercise any part of the judicial power of the State and as such act judicially in the manner as indicated in the above noted decisions of the Supreme Court of India. In my opinion the Government acting as the appellate authority does not exercise any judicial power of the State: and the Government also is not required by the Ordinance to act quasi judicially. So, the Government acting as the appellate authority is not a 'tribunal' within the meaning of sub-article (5) of Article 102 of the Constitution.
 
74. Before concluding I like to observe that even if it is conceded that Government functioning as the appellate authority against the order of Inspector General of Police in imposing any of the penalties enumerated in section 5 of the Ordinance against an Inspec­tor of Police, exercise judicial power of the State, and as such may be treated as a tribunal the question still remains not fully answered. Because, the Ordinance deals with 3 categories of police officers, namely, (1) Inspector, (2) Sub-Inspector, Assistant Sub-Inspector, Ser­geant, Head Constable and 3 (3) Naiks Consta­bles. For the first category Inspector General of Police is the punishing authority, and the Government is the appellate authority. But for the second category of police officers Deputy Inspector General of Police is the punishment authority and Inspector General of Police is the appellate authority; and for the third category Superintendent of Police is punishment authority and Deputy Inspector General of Police is the appellate authority. By no stretch of imagination the Inspector General of Police of the Deputy Inspector General of Police exercising as appellate auth­ority can be said to have been clothed with judicial power of the State and as such func­tioning as 'tribunal' as contemplated in sub-article (5) of Article 102. of the Constitution.
 
75. There is yet another aspect which will show that object of Ordinance, 1976 is not to constitute 'tribunals' as contemplated in sub-article (5) of Article 102 of the Constitution with a view to debarring the police officers of and below the rank of Inspector from invoking writ jurisdiction under Article 102 of the Cons­titution. It has been pointed out above that only some of the offences as mentioned in the Police Regulation 1943 have been included in the list of offences in section 4 of the Ordinance and some of the penalties as mentioned in the Police Regulation, 1943 have been included in the list contained in section 5 of the Ordinance, 1976. For the purpose of awar­ding the listed penalties, the Police Regulations Bengal, 1943 to that extent, has been superseded, But for the purpose of awarding any of the penalties not included in the Ordi­nance, 1976, the Police Regulations Bengal, 1943 are still available. So, any police officer of the ranks stated above, if aggrieved by an order of the authority concerned in awar­ding any of the penalties not included in the Ordinance, 1976, is entitled to seek an appro­priate remedy under Article 102 of the Constitution.
 
76. In view of what has been stated above it leads me to the irresistible conclusion that the authorities mentioned in the schedule to the Ordinance, 1976 are not 'tribunals', as contemplated in sub-article (5) of Article 102 of the Constitution, so as to denying an aggrieved member of the police force the remedy under Article 102 of the Constitution. In an appropriate case when he has been illegally dismissed, removed, discharged, compulsorily retired or reduced in lower rank, he is entitled to invoke the writ jurisdiction under Article 102 of the Constitution. There­fore, the question is answered in the negative.
 
Badrul Haider Chowdhury, J:

I had the privilege of going through the views expressed in the order of the Court by the learned Chief Justice and brother Ruhul Islam, J. I concur with the views expressed by my learned brother Ruhul Islam, J.
 
Shahabuddin Ahmed, J:

I agree with the views of my learned brother Ruhul Islam, J.
 
Order of the Court
 
77. It is decided by the Court   that   a member of any disciplined force, if aggrieved by an order of a Court or tribunal established under law relating to the disciplined force, he is debarred from invoking the writ jurisdiction subject to the rule laid down by the Division in the case of Khandker Ehteshamuddin @ Iqbal in that the order is coram non judice or malafide.
 
78.  By the majority opinion, it is decided that  the authorities mentioned in schedule to the Police Officers (Special Provisions) Ordina­nce, 1976, are not 'tribunals' as contemplated in sub-article (5) of Article 102 of the Consti­tution, so as to deny  the said right to an aggrieved member of the Police force, coming within the purview of the said Ordinance. The remedy provided under Article 102 of the Constitution in an appropriate case, may be invoked by a member of the said 'disciplined force' if he has been illegally dismissed, removed, discharged, reduced in rank or com­pulsorily retired.
 
Ed.