P L D 1962 Dacca 497 (PLP)

MURSHED, J.‑The petitioner, Mukhlesur Rahman, was appointed on the 13th of February 1960, under the provisions of the Basic Democracies Order, 1959 (hereinafter called the Order), as a member of the Brahmandi Union Council within Police Station Araihazar in the Sub‑Division of Narayanganj, District Dacca. Thereafter he was elected as Chairman of the said Council and continued to function as member and Chairman of the said body. The controlling authority of the said Union Council is the respondent No. 1, namely, the Sub‑Divisional Officer, Narayan ganj. On the 29th of July 1961, the petitioner received a memo randum, being Memo. No. 5128‑BD/70, dated the 28th of July 1961, addressed by the Additional Deputy Commissioner, Dacca, asking him to show cause by the 15th of August 1961, why he should not be removed from the post of Chairman as well as membership of the said Union Council, on the allegations which are set out in paragraph 8 of the petitioner's application, which are as follows: "(i) Whereas it appears from the letter No. 6825 dated 15‑7‑61 of the Executive Engineer, Development Division III, C. & B., Dacca that you were serving as a Sectional officer under him and were placed under suspension with effect from 6‑11‑58 on account of the charge of false and fictitious measurement of works and have been still drawing the subsistence allowance as admissible under the Rules and as your case has not yet been finally decided. You are still in Government service. "(ii) Whereas it also appears that you concealed this fact to the C. O. and the Sub‑Divisional Officer, Narayanganj and accepted the appointment as a member of Brahmandi Union Council and became the Chairman of the said Union Council in contravention of section 2 (d) of Part II of the Second Schedule of the Basic Democracies Order 18 of 1959." The petitioner showed cause as directed by the said Additional Deputy Commissioner, contending that he was not an official within the meaning of Article 3 (28) of the Order. Furthermore, he contended that he had not incurred any disqualification within the mischief of sub‑clause (d) of clause 2 of Part 11 of the Second Schedule to the Order. The petitioner had further averred that he never sought for an appointment as member of the said Council and that he was under no duty, therefore, to apprise the authorities of the fact that he was in service of the Province of East Pakistan in the Department of Communications and Buildings under the Executive Engineer, Development Division III and that he was placed under suspension with effect from the 6th of November 1958. It transpires that on the 27th of April 1962, petitioner received a communication from respondent No. 1, the Sub- Divisional Officer, Narayanganj, intimating to him that he was removed from membership of the said Union Council as well as from the office of the Chairman thereof and, furthermore, that he was disqualified for being elected to any Local Council so long as he continued to remain as Government servant. The aforesaid order, which was communicated to the petitioner by Memo. No. 1949 (2) UCL‑A‑2/62, dated the 25th of April 1962, has been impeached before us, and it reads as follows: "I have carefully perused the contents of the explanation :, dated 6‑1‑62 submitted by Mr. Mukhlesur Rahman, Chairman, Brahmandi Union Council, in P. S. Araihazar of Narayanganj Sub‑Division in the matter of his removal from Chairmanship under certain disqualification laid down in the Basic Democracies Rules. I have also carefully noted the opinion of the Public Prosecutor dated 11‑7‑61 in the above matter. I agree with the opinion of the Public Prosecutor that "Suspension does not mean termination of service, besides this suspended officer gets office pay from the Government. Till the termination of, his service, he remains Government servant, so sub‑clause (b) of Clause 2 of Part 11 of the Second Schedule to the B. D. O. is attracted against the suspended Government servant. Mr. Mukhlesur Rahman, a suspended Government servant, therefore, continues to be still a Government servant. He is therefore liable to removal from Chairmanship under the dis qualifications laid down in sub‑clause (d) of clause 2 of Part If of the Second Schedule to the B. D. O. I, therefore, order that Mr. Mukhlesur Rahman is hereby removed from appointed councillorship as well as from the post of Chairmanship of 13rahmondi Union Council within P. S. Araihazar in the Narayanganj Sub‑Division with effect from the date this order is communicated to him. I further order that Mr. Mukhlesur Rahman will not be eligible for election or appointment to any Local Council so long as he continues to remain a Government servant. Approval to the removal of Mr. Mukhlesur Rahman from Chairmanship was already obtained under Assistant Director, Basic Democracies Department's Memo. No. 41‑BD 70, dated 6‑1‑

62. Sd. H. Ahmed, C. S. P., Sub‑Divisional Officer, Narayanganj." On the aforesaid allegations, petitioner has obtained a Rule nisi from this Court calling upon the respondents to show cause why respondent No. 1, the Sub‑Divisional Officer, Narayanganj, should not be directed to cancel, rescind or withdraw the aforesaid order. On behalf of the respondents an Affidavit‑in‑opposition has been filed which has traversed the allegations and averments in the application made to this Court by the petitioner. We may note at the outset that, admittedly, the petitioner was a Government official under suspension at the time when he was appointed as a member of the Union Council in February 1960, and he continued to be such official, although under suspension, upto the time when he was removed from his said office by the impugned order passed by the Sub‑Divisional Officer, Narayanganj. At the hearing of this Rule, Mr. S R. Pal, on behalf of the petitioner, contended that the petitioner was not an official, either at time of his removal from membership of the said Council or during his continuance as such member, within the meaning of Article 3 (28) of the Order and that, as he was not an official within the meaning of the said Article, he was under no disability to function as member of the said Council by virtue of the provisions of Article 11 (4) of the Order, which reads thus; "No official shall be a member of a Union Council." We may quote the definition of the term "official", which has been set out in Article 3 (28) of the Order, as follows: " Official' means a person who is in receipt of salary from the revenues of the Federation or a Province, or out of a Local Fund." It is conceded by the petitioner that if he is an official within the meaning of Article 3 (28) of the Order, he was ab initio dis qualified from being a member of the said Council and, therefore, from being its Chairman as well. Learned Advocate for the petitioner has, however, argued that, inasmuch as he was under suspension at the relevant time, namely, at the time of his appointment as member of the said Council, he did not receive any salary at that particular time and, therefore, lie could not be described as an official, within the meaning of the said Article 3 (28) of the Order, at the time he was so appointed as such member. In this connection, our attention was drawn to the provisions of the East Bengal Service Rules. The said Rules provide that a Government servant placed on suspension is entitled only to a "subsistence grant" and not to his salary. Rule 5 (50) of the said Rules defines "subsistence grant" as follows: "Subsistence grant means a monthly grant made to a Government servant who is not in receipt of pay or leave salary." Learned Advocate has very strongly argued that, since "subsis tence grant", which the petitioner used to receive at the time of his appointment as member of the Council, does not come within the category of pay or leave salary, the petitioner cannot be described as an official within the meaning of Article 3 (28) of the Order. It is true that the said Article defines an official to mean any person "who is in receipt of salary from the revenues of the Federation or a Province, or out of a Local Fund"; but the question is who is such a person "in receipt of salary"? And the further question is, what is the true import of the term "salary" as used in Article 3 (28) of the Order? At the time when the petitioner was appointed a member of the said Union Council, he was not physically in receipt of "pay" or "leave salary", being under suspension and, therefore, the recipient of a mere "subsistence grant." Nonetheless, he was receiving a "salary" in the sense that he was receiving a recompense or payment on account of his continuance in a Provincial service although without any work. Mr. Pal would have us interpret the term "salary" in the sense in which it has been used in the Service Rules, namely, as distinguished from the expression "subsistence grant". We do not think that the word "salary" in the said Article has been used to such a technical, narrow and restricted sense as Mr. Pal wants us to hold. The plain meaning of the word is, "any recompense for work done". Can it be said that during the months when a Government servant was on leave without pay he could not be described as an official within the meaning of the said Article and was, therefore, eligible for an appointment as a member during the period when lie was on such leave? To hold so would, according to us, lead to an absurd result. Therefore, the expression, "who is in receipt of salary", must, of necessity, mean and include a person who, being still in service (although doing no work at a particular moment) in relation either to the Federation or to Province or to a Local Body, normally receives a payment or is in the habit of receiving such payment. All such persons will come within the category of person "who is in receipt of salary", although for some limited interval he may not be physically in receipt of such salary, which is a continuing process with some casual and limited interruptions. The expression "salary" is co‑related to the term service" or "being in service" and postulates a habit or a recurring procedure. The expression "in receipt" also connotes a continual or habitual process, notwithstanding casual interruptions. This definition of the word "salary" will include a servant who is on leave without pay, for a period of time as also a servant who is under suspension for a contingent period, receiving lesser payment without doing any work. The aforesaid classes of persons are both "in service" and in the habit of receiving "salary" as an incident to their service. Although in the one case the person on leave without pay neither receives a salary nor does any work for a limited period, in the other case, the person under suspension receives partial payment. Both are liable to be made to work. This definition will, however, exclude a person receiving a "pension" as he is no longer "in service". A person', who is under suspension in respect of a Government service, is not in a different position from a servant, who is, on leave without pay. The important point to be considered is, whether he normally or habitually receives a salary as an incident of his service? If he does so, then by virtue of the office which he continues to hold, and which carries a "salary", he will be an official within the meaning of Article (28) of the Order, although for a limited period of time he may not actually receive any salary or may receive a partial payment, but continues to be "in service" with a salary attached to it as a normal incident to such service. The crux of the matter is: Is he still in service which entails a payment by way of emolument or recompense for work habitually rendered or for a continuing liability to render service when called upon to do so? The temporary interruption of work or payment is not the decisive factor. We have already pointed out that the expression "a person, who is ' in receipt of a salary" means a person, who is in the habit of receiving a salary as a normal condition of a service in which he continues to remain. Neither the word `salary' has any relation to the technical expression used in the Service Rules, nor the word "service", which we have used, is confined to its technical meaning in the Constitution. Thus, according to the view that we hold of the definition of the term `official' as defined in the Order; the petitioner was ab initio disqualified from being a member of the said Union Council inasmuch as Article 11 (4) of the Order imposes a total embargo upon an "official" from being a member of a Union Council. Therefore, in the light of the facts and circumstances of the case, it must be held that the petitioner's appointment as a member of the Union Council was void ab initio and, therefore, in the eye of law, at no point of time he held the office of the membership of the said Council or that of its Chairman. Mr. Pal has next contended that the impugned order is not covered by Article 25 (2) (a) of the Order. Article 25 (2) (a) runs thus: "(2) A member of a Local Council shall render himself liable to removal from membership‑ (a) if he incurs any of the disqualifications specified in Part II of the Second Schedule," Clause 2 (d) of Part II of the Second Schedule reads thus "(2) A person shall be disqualified for being a Member or a candidate for the membership of a Local Council‑ . . . . . . . . . . . (d) if he is a whole‑rime salaried official in the service of Government, or of a public statutory corporation, a Local Council, or a Local Body or other local authority." Learned Advocate has argued that being a Government servant under suspension, he, was neither a "whole‑time" nor a "part‑time" official in the service of the Government, in the sense that, he was, in fact, doing no work of any kind whatsoever. Furthermore, he has reinforced his argument by saying that the petitioner did not draw his salary, but a "subsistence grant" during the period of his suspension. We do not think that the expression, "if he is a whole‑time salaried official in the service of Government", is amenable to such a narrow interpretation as has been sought to be done by the learned Advocate for the petitioner. The words "whole‑time" and "salaried" are adjectives used as attributes to qualify the noun "official" and the phrase as quoted above must mean an official, the characteristic of whose office is, that it is "salaried", as opposed to the adjective "honorary". Further more, the other attribute of the official position must be that it is a "whole‑time" as opposed to "part‑time" appointment. One has to ask : Does the office carry a salary or is it honorary ? Is it whole‑time or part‑time ? The expression "whole‑time" denotes daily engagement or employment during the routine or normal office‑hours for the entire day. A temporary or periodical cessation of work or pay in a continuing service is of no consequence in this behalf. The expressions "salaried" and "whole‑time" are well‑understood terms. If the nature of his office is, that it is a "whole‑time" job in the aforesaid sense, then he satisfied the qualification of a whole‑time holder of an office and it would make no difference if he, in fact, during a particular interval was doing no work, being either on leave or for some other reason, although he continues in a service which involves a whole‑time appointment. Secondly, if he is a recipient of a salary as normal condition of his office, he comes within the mischief of the aforesaid definition and will be described as a salaried official even during the period when he is on leave without pay or when he is under "suspension" and, therefore, doing no work. The expression "salaried official" or "whole‑time official" has not been defined in the Order. It is opposed to "part‑time" employment, which is also a well understood expression. Mr. Pal has asked us to give a too literal meaning to these expressions. He has argued that "salary" means payment for any work done, and, if no work is done, the payment must be taken to be a "gratuity", and not a salary. He has further argued that the reason for disqualifying a "whole‑time" servant from holding office as member of a Union Council is that such a whole‑time official will not have sufficient time to attend to the normal activities which the membership of a Union Council will entail. Mr. Pal has, therefore, contended that a Government servant under suspension, who does no official work, has ample tinge at his disposal to discharge the duties of a member of a Union Council and would not come within the purview of the term "whole‑time official". It is, in a sense, correct to say that the raison d'etre of putting a taboo upon a whole‑time Government servant from becoming a member of a Union Council appears to be that, by virtue of his office, he will not have sufficient time to fulfil his obligations us such member. But, it is exactly for the same reason that a "total embargo" has been imposed upon persons, who are habitually employed in "whole‑time" capacities and who, habitually receive salary with regard to such appointments. In this context, temporary or casual interruptions are of no consequence if the essential characteristic of the office held by a person is that he is an official liable to whole‑time employment on payment of a salary. If the description fits him, he comes within the mischief of clause 2 (d) of Part 11 of the Second Schedule as mentioned above, notwithstanding the temporary phase through which he may be passing. The law, as we have emphasised above, imposes a "total prohibition", and not a partial disqualification. The expressions, "official", "whole time" and "salaried" are descriptive terms used in a compre hensive sense indicating the essential feature and peculiar characteristic of an office and not its casual incidents. These incidents are attached to a person as long as he continues to remain in such office. In these circumstances, the petitioner, on the admitted facts of this case, has no title to the membership of the Union Council or the Chairmanship thereof. The position, therefore, resolves itself to this: If his appointment as member of the said Union Council was void ab initio, he was never, in the eye of law, a member of the said Council. He cannot complain against the order that has been made against him, which, in essence and substance, is, that he has ceased to function as a member of the said Council, and, further, that he is incapacitated from being such a member during the period when he continues to be a servant of the Provincial Government. Mr. Pal has next contended that, if the petitioner's appoint ment as member of the aforesaid Union Council was initially void, he could not be "removed" from an office which, in the eye of law, he had never held. As a corollary to this argument, he further contended that the petitioner did not "incur" a disqualification, which postulates a disqualification subsequent to his appointment. Having regard to the language of Article 25 (2) (a), as quoted above, he has submitted that the petitioner could not be "removed" from a position which lie never held, nor did he "incur" the disqualification with which he was already suffering at the time of his appointment. In the light of the facts of this case, this line of reasoning would be sheer casuistry, or, at best, a mere academic discussion. It will have no bearing on the decision of this case. The respondents have acted on the footing that having, in fact, acted as a member and Chairman of the said Council, the petitioner should be removed from such office. In either view of the matter, the petitioner cannot make any grievance against the impugned order. However, the view that we take is that the petitioner was never legally a member of the Union Council, his appointment being void ab initio. In any cent, the petitioner has not been able to make out a case, which would call for our interference with the impugned order. The result, therefore, is that the Rule is discharged without any order as to costs. A. S. CHOWDHURY, J.‑I agree. K. B. A. Rule discharged.