COL. MD HASMAT ALI VS GOVERNMENT OF BANGLADESH 47 DLR (AD) 1995

  Statement of the Fact:

The appellant was commissioned in the Army Medical Corp. He got the rank of Colonel on 12

March, 1976. He was promoted to the post of Director General of the Family Planning on 23 April, 1976 with the rank of a Joint Secretary. Government gave approval to the proposal for the appellant’s compulsory retirement from the Military Service on 26 July, 1983 under section 16 and rule 12 of the Army Act. On17 August, 1983 his name was struck out from the army records. The appellant submitted the representations against the aforesaid orders. Ultimately the order of the Government retiring him from the service was cancelled by a notification on 1 August, 1991 bu on the same date another notification was published compulsorily retiring him from the Military Service with effect from 15 August, 1983. The appellant challenged the order in the writ petition no.1170 of 1992.

Argument from the Appellant:

It was argued that

v  The Pleasure Doctrine of the President under Article 134 of the Constitution did not hold good in respect of the appellant as he was governed by the Article 62 and the laws made here under relating to the subject of the tenure.

v  The Pleasure Doctrine was curtailed by the oath of the office of the President who is to act in accordance with the law under Articles 31, 56(1), 62, 148 and 152 of our Constitution.

v  Executive Actions were not immune from the judicial Review in the light of the case COUNCIL OF CIVIL SERVICE UNIONS VS MINISTER OF CIVIL SERVICE 3 WLR 1174 because it had to be carried out in pursuance of a power derived from the common law.

v  Though the appellant could not challenge any order of Military Court or Tribunal but he could challenge the impugned order on the ground of violation of fundamental rights under  Article 102 (2). Article 102 (2) neither defines an aggrieved person nor excludes a member of Military Force.

v  Similar order could not be passed a second time being contrary to the rule no.11, note.03 of the Bangladesh Army Act as existing law vide Article 31, 35 and 150 of our Constitution are strained.

 

Argument from the Respondent:

It was argued that

v  The earlier order was in fact substituted by the subsequent order though the amending measure was wrongly termed as the cancellation of the earlier order sounds plausible.

v  Under Chapter IV ( Article61-63 ) of our Constitution the services of the disciplined forces are placed under the pleasure of the President and under Article 134 Defense Personnel shall hold office during the pleasure of the President which is not subject to any Statutory Provision, Rule and Regulation. Though a civil servant had protection and safeguard to his service conditions under Article 135 but that would  not apply in this case.

v  The appellant was not entitled to any remedy under the Article 102 because he was a member of the Disciplined Force and it was also held in an Indian case LR KHURANA VS UNION OF INDIA AIR 1971 SC 211 that a person paid from the Defense estimates could not claim protection under Article 311 of the Indian Constitution.

Issue:

Whether a member of the Disciplined Force will get any protection under the Article 102 of our Constitution regarding any matter relating to the terms and conditions of his service ?

Decision:

The Appeal was dismissed.

Reasoning behind the decision:

The appeal was dismissed on the following grounds:

v  The alleged violation of fundamental rights related to the provisions of law which were for the members of the Disciplined Forces for the purpose of discharging their rights.

v  If a source of power exists under the two provisions of law together whether statutory or constitutional and order refers to one of them only, the validity of the order should be upheld by construing it an order passed under both the provisions.

v  A member of any Disciplined Force would not get any remedy if he is an aggrieved person by the decision of a court unless the decision is coram non judice of Malafide or affecting his service or any violation of fundamental rights subject to the provision of the Article 45.

Principle:

Any person aggrieved can go to High Court Division for the enforcement of his fundamental rights under Article 102 (2) but that right is subject to the provisions of the other laws.

Importance of the case:

This case has focused on the implementation of Disciplinary laws relating to the members of the Disciplinary Forces under the provisions of Article 45 and clarified the issue on what situations a member of the disciplinary force can move to High Court Division under the provision of Article 102 of our Constitution.