P L D 1964 Supreme Court 451 (PLP)

(a) in the case of a member of a Union Council or a Town Committee by a majority of the representative members of the Thana or Tehsil Council concerned. (b) (c) Rules 4, 6 and 7 of East Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960 run thus Rule 4.‑(1) If the Controlling Authority is of opinion that any member has rendered himself liable to removal from membership under clause (2) of Article 25 of the Order, it shall by notice in writing, call upon member to show cause, within fourteen days of the receipt of the notice why he should not be so removed. (2) (3) If the explanation offered under sub‑rule (2) ii, in the opinion of the Controlling Authority not satisfactory, the Controlling Authority shall (a) (b) in the case of an elected member make a reference for taking proceedings as required by clause (4) of Article 25 of the Order. Rule 6.‑(1) Where a reference has been made by the Controlling Authority under clause (b) of sub‑rule (3) of rule 4, the representative members mentioned in sub‑clause (a) or (b), or, such members of the District Council concerned as are the Chairman of the Union Councils, of the Town and Union Committees, and Vice‑Chairman of the Municipal bodies, in the District and the Vice President of the Cantonment Boards there in, mentioned in sub‑clause (c) of clause (4) of Article 25 of the Order, as the case may be, (hereinafter referred to as "the aforesaid members"), shall meet within such period as may be specified by the Controlling Authority for the consideration of the reference. (2) The aforesaid members, present at the special meeting before transaction of business, shall elect one of them as the Chairman for the special meeting, but where at its first meeting such members fail to elect a Chairman, the Controlling Authority may appoint one of them to be the Convenor and thereafter such Convenor shall call a fresh meeting within such period as may be specified and shall preside over it. (3) All questions arising for determination by the aforesaid members shall be decided by a majority of the members present and voting ; provided that in case of equality of votes, the Chairman shall have a second or casting vote. (4) The aforesaid members may take into consideration any representation submitted by the member concerned in this behalf. (5) The aforesaid members shall finally pass a resolution to the effect that the member concerned is or is not liable to be removed under Article 25 of the Order. (6) A copy of the resolution, passed under sub‑rule (6), shall within three days of the passing of the resolution, be forwarded to the Controlling Authority and the member concerned. (7) If according to the resolution, passed under sub‑rule (6), the member concerned is liable to be removed, the Controlling Authority shall pass an order specifying the period, under clause (5) of Article 25 of the Order, for which the member concerned shall not be eligible for election or appointment to any Local Council. Rule 7.‑The Controlling Authority and the aforesaid members shall have the same powers as are vested by the Code of Civil Procedure, 1908, in a Court trying a civil suit, and in particular, powers in respect of‑ (a) discovery and inspection ; (b) enforcing the attendance of witnesses and requiring the deposit of their expense i (c) compelling the production of documents ; (d) examining witness on oath ; (e) granting adjournment ; (f ) receiving evidence taken on affidavit ; and (g) issuing commissions for the examination of witnesses and the summoning and examination suo motu of any person whose evidence appears to be material." It is true that the Order or the rules framed thereunder do not contemplate anything like a regular hearing in a Court of law. No procedure has also been prescribed as to how the party interested is to be heard in connection with the question referred to the Thana Council. It was therefore, said that the Thana Council was not bound to give the respondent an opportunity to show cause with regard to the action proposed to be taken against him. The above question has been fully dealt with in the recent decision of this Court in the case of Sh. Abdur Rahman v. The Collector and Deputy Commissioner, Bahawalnagar and others (PLD 1964 SC 461). In the above case removal of a Chairman of the Union Committee was challenged. One of the points raised on behalf of the Chairman was that the District Council had not given him opportunity to defend himself and this Court while dealing with the above point observed "Although there is no specific provision in the Basic Democ racies Order entitling the member proceeded against for removal to an opportunity to show cause, the member is entitled to such opportunity on principles of natural justice which are to be read in every enactment in the absence of a provision to the contrary. No person can be condemned without an opportunity to defend himself. In the present case '4 the right involved is a very important right and the removal even debars the person removed from being a candidate in future elections." Then after referring to the relevant rules of the West Pakistan Local Councils Resignation and Removal of Members) Rules, 1960 observed "Rule 6 (4) as pointed out in Manzoor‑ul‑Haq v. Controlling Authority P L D 1963 S C 653 uses the word `may' and is not consistent with the principles of natural justice. However, the Government cannot by framing a rule take away the right to show cause which a person has on account of a principle of natural justice and which has to be deemed to be incorporate $ in every enactment. The right could have been taken away by a provision in Basic Democracies Order, but if the Order grants such a right the rule‑making authority cannot take i away. Rules have to be consistent with the statute under which they are framed and with all that is deemed to be incorporated in the statute. As the East Pakistan Local Councils Rules relating to removal of members are the same as these in West Pakistan, the above observations are fully applicable to the instant case. The contention that in the absence of any specific provision in the Basic Democracies Order or in the Rules framed thereunder to the effect that an aggrieved party should be given an opportunity to show cause with regard to the action proposed to be taken against him, the Thana Council did not act illegally or beyond their power, therefore cannot be entertained. Reading the rule in the above manner would be tantamount to enlarging its scope by depriving the aggrieved party of the right of being heard which he has. The Basic Democracies Order does not deprive him of that right. The rule‑making Authority therefore, cannot clothe Itself with power which the Statute itself does not give. In this case the allegations in the writ petition "that the Thana Council gave no hearing to your petitioner nor called for any written explanation nor the said charges were enquired into" were not controverted by the opposite‑parties. Thus it is clear that the Thana Council acted illegally in rushing the decision through without giving a chance to the aggrieved person of explaining his case. It is rather unfortunate that in spite of the vagueness of the charges the Council did not think it proper to give a chance to the person proceeded against to place his ease before them. The view that found favour with the learned Judges of the high Court in this case appears to be plainly right and no ground has been made out for recalling the writ issued by them. The appeal is accordingly dismissed with costs. K. B. A. Appeal dismissed.