Government of Bangladesh (Services Screening) Order, 1972 –

Whether Three clauses of Art. 5 (b), to be read conjunctively so that conduct or activity which was not in exercise of power or in discharge of duty of a government servant falls outside the purview of Art. 5(b)—

Art. 5(b) is in three parts, the first part deals with collaboration, the second part deals with the of ideology of Pakistan and the third part deals with the support of the elements inimical to the liberation struggle or creation of Bangladesh. Three definite concepts have been introduced in clause (b). It will be absurd that while collaboration will be offensive if it is performed in the exercise of powers or in the discharge, of duties but conduct or activities exhibiting support to the ideology of Pakistan or conduct in support to the elements inimical to the liberation struggle are to be performed in private capacity. The title of P.O. 67 of 1972 is "the Government of Bangladesh (Services Screening) Order" and the preamble shows that all the persons who are in the service of Bangladesh are within it and since the object of the enactment is to make the Government institution free from entrust persons, collaborators, officials and other employees wedded to the ideology of Pakistan, all activities of such persons must be performed in the exercise of powers or in the discharge of duties……………………..(32)

These three clauses cover three kinds of conduct on the part of the officer concerned. First is that in the exercise of his power or, in discharge of his official duties, if he does any act which assists, aids or supports against liberation struggle or creation o f Bangladesh whereas the second clause is regarding conduct which exhibits faith in and support to the ideology of Pakistan, and the third to the conduct which supports the elements inimical to the liberation struggle or creation of Bangladesh and in particular occupation forces of Pakistan. The second and third clauses, if read in the context of the first clause, clearly indicate that they are separate and distinct inasmuch as the offence in the first clause could only be done as an officer in the discharge of his duties or exercise of power, whereas the offences in clauses two and three, the conduct manifested by the officer need not be in the discharge of his duties or exercise of his powers I, therefore find that there clauses have been used disjuctively and to cover three distinct categories of purpose. For the second and third clauses there is no need of exhibition of collaboration in the discharge of duty or exercise of power. But the act or conduct of officer coming within first clause, it is to be manifested either in the exercise of power or in the discharge of duties. I am re-informed in reading these clauses disjuctively, because these three clauses are separated first by the word 'or' and secondly by the word conduct' at the beginning of each of the three clauses. If they are read conjunctively then the word conduct' in second and third clauses becomes tautologous or superfluous. But if they are read disjuctively all the three clauses fit in grammatically and semantically for the purpose the Article is directed……..(11)
Interpretation of Statute—

The three clauses of Art. 5(b) of P.O. 67 of 1912 have been interpreted uniformly by the High Court Division to be conjunctive and the interpretation has become stare decisis……………. (34)

It is well settled that if the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only, specially when a penal statute is required to be construed……(49)

President's Order No. 8 of 1972—

Precisely President's Order No. 8 of 1972 was drafted in such language so as to cover the acts already committed and by express words it was given retrospective effect. Whereas President's Order No. 67 of 1972 does not contain any such express words,
Rather the statute has been drafted in clear language to cover those persons who are still "exhibiting" faith in Pakistan ideology or "manifesting" ardour or zeal "amounting" to collaboration etc……..(51)

It is only mental make up of certain persons whose conduct "exhibiting", "manifesting", "amounting to collaboration" etc. which have been the subject matter of the enactment that they are liable to be thrown out. It is not the activity which was performed in the past or immediate past which had been made offence under another special statute, e.g., President's Order No. 8 of 1972. On the other hand by making President's Order No. 8 of 1972 retrospective a person who has aided, abetted, participated, issued statement were brought within its ambit but not the persons whose conduct or activity in the discharge of their duties "manifesting" "exhibiting" etc. are within it. Later class of people do come within President's Order No. 67 of 1972 if such mental make up is still continuing."……… (53)