P L D 1964 Supreme Court 461 (PLP)

B. Z. KAIKAUS, J.

This is an appeal by special leave by Sh. Abdur Rahman, an advocate of Bahawalnagar; against the order of the High Court of West Pakistan dismissing his writ petition whereby he challenged an order of his removal as Chairman of a Union Committee. In December 1959, the appellant was elected a Member of Union Committee "A" of Bahawalnagar. The Committee consisted of five Members in All. In February 1950, he was elected as Chairman of this Committee. On account of the fact that he was elected as Chairman be became ex‑officio Member of the Municipal Committee of Bahawalnagar, and later became a Member of the District Council too. On the 31st December 1960, he received a notice from the Controlling Authority which is the Collector in this case calling upon him to show cause why he should not be removed from his office .as Member and Chair man of Union 'Committee "A" because :‑‑ (i) he had failed to hold any meting of the Union Com mittee from February to November 1960 (ii) his behaviour and conduct towards the other members of the Committee had been. objectionable ; and (iii) in the discharge of his duties he had abused his power to the detriment of other members. In reply to this notice tale appellant denied the charges and alleged that they had falsely and maliciously been brought against him. He asked for an inquiry by the controlling Authority. The Controlling Authority was of the opinion that the question of removal was to be decided by the District Council. On the 26th January 1961, the appellant, received from the Controlling Authority notice of a special meeting of the elected members, of the District Council to be held on the 2nd February 1961, for a consideration of the charges against him. The appellant appeared at this meeting and was called, upon to explain the charges. He submitted his explanation and at the same time object to Sanaullah becoming the Chairman of the meeting on the ground that it was Sanaullah who had manoeuvred the proceedings against hint, but his objection was overruled. Three Members of Union Committee "A" of which the appellant was Chairman had submitted affidavits complaining against the appellant that he had not been holding meetings' and, 'when approached to hold meetings he had used objectionable tangau age. These three Members were called and they confirmed their affidavits. The appellant was allowed to put questions to them. The appellant applied for summoning a number of witnesses, but the request was turned down. A resolution was then passed by a majority removing the appellant as Chairman and Member of Union Committee A and at the same time disqualifying him for a. period of four years for being elected or appointed to a Local Council. Against this resolution of the District Council the appellant filed a petition before the Con trolling Authority and the Controlling Authority sent back the case to the District Council for reconsideration. Another meeting of the District Council was held on the 17th February 1961. Again the appellant appeared and asked for an opportunity for summoning defence witnesses. This request was rejected by a majority vote and the resolution of 2‑2‑1961 was also confirmed by a majority. The appellant then filed the writ petition out of which this appeal arises. He contended in the writ petition that the reference to the District Council by the Controlling Authority without a proper inquiry himself was not legal. He objected to the vagueness of the second and third charges and so far as the first charge is concerned he said that he had no office, no staff and no funds and that rules for the discharge of its function by the Union Committee had been framed only in December 1960. He bad held some informal meetings of the Union Committee. He objected to the proceedings of the District Council as being mala fide and not in accordance with the provisions of natural justice as no proper opportunity for defence had been granted to him. All these contentions were rejected by the High Court. A number of points were argued by Mr. Abdur Rahman who appeared in person, but we will refer only to some of them the decision on which is sufficient to dispose of the appeal. The first point urged is that some of the persons present in the meeting of the District Council of 2‑2‑1961 including Sanaullah its Chairman were not entitled to vote and the position was similar with respect to the meeting of 17‑2‑

61. Reliance is placed for this contention on Articles 15 and 25 of the Basic Democracies Order which on the relevant date ran as below :‑ "15 (1) A District Council shall, subject to the other provisions of this Article, consist of such number of official and appointed members as may be fixed by the Commissioner. (2) The Chairman of the Thana or Tahsil Councils, and the Vice‑Chairman of the Municipal Bodies, and the Vice -Presidents of the Cantonment Boards, in the District, and such representatives of departments as may be specified by the Government and appointed by, the Commissioner, shall ex‑officio be the official members of the District Council. (3) The total number of appointed members of a District Council shall not be less than the total number of its official members, and at least one‑half of the appointed members shall be chosen from amongst the Chairmen of the Union Councils, and of the Town and Union Committees, in the District. (4) The Collector shall ex‑officio be an official member of the District Council and its Chairman." "

25. Resignation and Removal of Members.‑(1) Any member of a Local Council may resign his office by tendering his resignation to the Chairman, and if he is the Chairman, to the Controlling Authority, end the seat of the members, or the office of Chairman, as the case may be, shall become vacant when the resignation is accepted by the Controlling Authority. (2) A Member of a Local Council shall render himself liable to removal from membership :‑ (a) if he incurs any of the disqualification specified in Part 11 of the Second Schedule ; (b) if he, without reasonable excuse, absents himself from three consecutive meetings of any Local Council ; or (c) if he is guilty of an abuse of power or of any misconduct in the discharge of his duties as a member, or has been res ponsible for any loss or misapplication of any money or property of any Local Council, or any local body or other local authority. (3) The Controlling Authority may, after such enquiry, if any, as may be considered necessary, removes any appointed member of a Local Council, who is liable to removal under this Article, from such membership Provided that no appointed member shall be removed with out consultation with, or without the previous approval in writing of, the authority in consultation with whom or with whose approval he was appointed under Article 21. (4) An elected member of a Local Council shall not be removed from such membership unless, at a special meeting to be convened for the purpose in accordance with the rules made by competent authority, a resolution to the effect that he is liable to be removed under this Article is passed :‑ (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 Tahsil Council, concerned ; (b) in the case of a member of a Union Committee, by a majority of the representative members of the municipal body or the Cantonment Board concerned ; and (c) in the case of a member who is the Chairman of a Union Council or a Town Committee, or of a Union Com mittee, and is ex‑officio a member of a Thana or Tahsil Council, or of a municipal body or a Cantonment Board, by a majority of such members of the District Council concerned as are the Chairmen of the Union Councils, of the Town and Union Committees, and of the Municipal Bodies, in the District, and the Vice‑Presidents of the Cantonment Boards therein ; and on the passing of such resolution, the member shall stand removed. (5) A person removed under this Article shall cease to be a member of every Local Council of which he may be a member, and shall not be eligible for election or appointment to any Local Council for such period, not exceeding five years, as the Controlling Authority of the Local Council from which he is removed may fix in each case. (6) Nothing in this Article shall apply to any official member. (7) No Court shall have jurisdiction to enquire into or question the validity of anything done, or any order made or resolution passed under this Article. Article 15 states the composition of the District Council. It consists of official members and appointed members. The removal of a member of a Union Committee who is a Chairman has to be in accordance with clause 4 (c) of Article

25. The resolution for removal of such member is to be passed "by a majority of such members of the District Council concerned as are the Chairmen of the Union Councils, of, the Town and Union Committees, "and of the Municipal Bodies in the district, and the Vice‑Presidents of the Cantonment Boards therein". There were three Members of the District Council present in the meeting of 2‑2‑461 that is Sanaullah, Mushtaq Ahmad and Muhammad Din who were members of the District Council in their capacity as" Vice-Presidents of Municipal Committees under Article 15 (2). It will be observed that Vice‑Presidents of Municipal Committees are not entitled to vote at a meeting for removal of a Chairman of a Union Committee. The reason why they were allowed to ‑be present and to vote at this meeting is that they happened at the same to be Chairmen of Union Committees and in Article 25(4j(c) members who are Chairmen of Union Committees are also mentioned. The question which arises is whether a person who is a member of the District Council in his capacity as Vice‑Chairman of a Municipal Committee in which capacity he is not entitled to vote at such a meeting is entitled to vote just because he also happens to be a Chairman of a Union Committee. We are of the opinion that the descrip tion of members in Article 25 (4) (c) refers to the capacity in which they are members and not to the simple fact of possession of a status. As has already been observed Article 15 provides for two categories of members of a District Council, official members and appointed members. Vice‑Chairman of Municipal Bodies are official members under clause (2). So far as Chairmen of Union Committees are concerned clause (3) provides that some of the appointed members are to be from amongst Chair men of Union Councils and Town and. Union Committees. The reference in Article 25 (4) (c) to Chairmen of Union Committees is to those Chairmen who in accordance with Article 15 (3) are appointed members of the District Council. The three Members mentioned above were not appointed to the District Council as Chairmen of Union Committees. They were ex‑officio‑Members of the District Council under Article 15 (2) as Vice‑Chairman of Municipal Committees. The notification by which the District Council was constituted is Notification No. LB‑185 of 16th June 1960. According to this notification the Vice -Chairmen of three Committees were declared to be ex‑officio official members of the District Council" not even by name bus by virtue of their office. As these three members were member of the District Council only by virtue of their office as Vice-Chairmen the mere fact that they happened also to be Chairmen of Union Committees does not make any difference. That is not the capacity in which they are members of the District Council. The intention of Article 25 (4)(c) was to exclude the Vice-Presidents of Municipal Committees from voting in the resolution relating to the removal of a Chairman of Union Committee and they cannot get a right to vote just because they also happened to be Chairmen of Union Committees. The importance of the irregularity that occurred by the participation of these three members in the meeting is enhanced by the fact that Sanaullah who is one of them was the Chairman of the meeting of the 2nd February 1961. It is true that every irregularity of this kind does not necessarily vitiate the proceedings, but in the present case it was not a mere irregularity. It may very well have affected the passing of the resolution. In the meeting of the 17th there was only a confirmation of the proceedings of the previous meeting. The Controlling Authority had no power under the Basic Democracies Order o the rules to set aside the resolution. He had referred the case back for reconsideration and the meeting of the February simply confirmed the earlier resolution so that the validity or invalidity of the 2nd meeting is really not of any great significance, but it may be pointed out that in the second meeting too these three members participated and they affected the decision of the question as to who was to preside over the meeting. There were two candidates for Chairmanship of the meeting, Faiz‑ul‑Hassa Tanweer and Ch. Muhammad, Din. Faiz‑ul‑Hassan Tanweer received six votes while Ch. Muhammad Din received five votes and Faiz‑ul‑Hassan Tanweer was elected, but out of the six votes of Faiz‑ul‑Hassan Tanweer two votes were by the Vice Chairmen of Municipal Committees who had no right to vote. The next point to consider is whether under the circum stances it was possible to hold the appellant guilty of misconduct. The charges alleged to have been proved against him are that be failed to hold meetings of the Union Committee and that when he was approached by the members of the Union Com mittee to bold meetings he was rude to them. So far as the charge of not holding the meeting is concerned it had been the contention of the appellant which has not been controverted that he has not so far been provided with any office, staff, or funds. Our attention has also been drawn to the fact that rules for the discharge of their functions by the Union Committees were framed by the Government only in December 1960, while the charge against the appellant relates only to the period up to November 1960. Model regulations for the conduct of business of Union Committees had been, published in February 1961. The appellant wanted to summon a large number of persons before the District Council to establish that the Union Com mittees had not begun proper functioning at all, till the rules were framed and that generally the other Union Committees too had not held any meeting. He had summoned for this purpose Masud‑ul‑Hassan, Officer‑on‑Special Duty, Basic Demoracies, Ch. Din Muhammad, Deputy Director, National Development Department, three Chairmen of other Union Committees and some Ex‑Chairmen and Ex‑Vice‑Chairmen of Union Committees. His request for summoning them had been rejected. The appellant had at the same time applied that the Controlling Authority be summoned as a witness in order to question him as to whether any directions for the holding of meetings or for taking any steps in connection with the discharge of their duties had been issued. He was not allowed to summon the Controlling Authority. The charge as to not holding the meeting should fail on the simple ground that there was no office and no staff. The appellant was not bound to hold any meeting in his own house or in his own office nor was he bound to send his own servant to serve the members of the Committee with notices. At the same time little business could have been transacted by the Union Committee unless they were put in possession of some funds. The provision as to the functions of Union Committee is contained in Article 31 of the Basic Democracies Order which runs :‑ "

31. Functions of Town and Union Committees.‑(1) A Town Committee or a Union Committee shall perform such functions as may be prescribed, and may, for the purposes of national reconstruction, social uplift and family planning, and the creation of civil consciousness, adopt, with the previous sanction of the Government, such measures as may be necessary. (2) Notwithstanding the provisions of clause (1), the Govern ment may, by notification in the official Gazette, direct that any provisions of this Order or the rules relating to the func tions of Union Councils, or of any other law relating to the functions of any Municipal Body or Cantonment Board, shall, to such extent, and subject to such exceptions or modifications as may be specified in the notification, apply to all or any of the Town or Union Committees. (3) Nothing in this Article shall be construed as preventing the Municipal Body or the Cantonment Board of which the Chairmen of the Union Committees are members ex‑officio to delegate any of its functions to the Committee or Committees concerned." It would be observed that some functions of the Committees are stated here and others to be provided by rules. No rules had as yet been framed and the functions stated in the article itself are described as "measures" and it is not easy to conceive of a measure which could be undertaken without funds. It is open to a District Council to hold misconduct proved after a proper inquiry in which the person concerned has a reasonable opportunity of defending himself and in such a case the Courts will not in the exercise of their writ jurisdiction sit as Courts of Appeal to assess the correctness of the findings unless the findings were in law defective. But it is not within the jurisdic tion of the District Council to make misconduct of what cannot in law amount to misconduct. If the admitted or proved facts would not constitute misconduct the District Council cannot misinterpret the law so as to hold them to be misconduct. On the facts as they exists misconduct could not in this case be held proved in respect of the first charge. The second charge is really dependent on the first. The members it is said were pressing the appellant for holding meetings and instead of complying with the demand he used rude language. If the appellant was justified in not holding meetings then his conduct towards the members assumes a different complexion. Granting, therefore, for the sake of argument, that rudeness towards members could be the basis of a charge of misconduct it fails in the present case. At the same time we do not think that reasonable oppor tunity was granted to the appellant at any stage of the proceedings in this case. An application had been submitted against the appellant to the Controlling Authority and he did order an inquiry by the Deputy Director of National Development Department, but that inquiry was behind the back of the appellant. At the meeting of the District Council the appellant did not get a fair opportunity of defending himself because there was a failure to examine a number of witnesses whose statements were relevant. Although there is no specific provision in the Basic Democracies 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 the right involved is very important right and the removal even debars the person removed from being a candidate in future elections. It will be proper to refer here to rules 6 and 7 of the West Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, which run "

6. Resolution about the liability to remove.‑(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, as the case may be, such members of the District Council concerned as are the Chairmen of Union Councils of the Town and Union Com mittees, and Vice‑Chairmen of the Municipal Bodies, in the District and the Vice‑Presidents of the Cantonment Boards therein, mentioned in sub‑clause (c) of clause (4) of Article 25 of the Order (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. (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 may take such legal advice as they may deem necessary and may allow any legal practitioner to appear before them on behalf of the members concerned or the Controlling Authority. (6) 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. (7) 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. (8) 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." "

7. The powers of the members present at the special meeting.‑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 expenses ; (c) compelling the production of documents ; (d) examining witnesses on oath ; (e) granting adjournments ; (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." Rule 6 (4) as pointed out in Manzoor‑ul‑Haq v. Controlling Authority (P L D 1963 S C 653) uses the word "may" which 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 E deemed to be incorporated 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 it 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. We find the meeting to be illegal because the Chairman as well as two members were entitled to vote and this could have affected the passing of the resolution. We find the proceedings to be not in accord with natural justice and we find that on the proved facts misconduct could not be held to be established against the appellant. This appeal is accepted, the order of the High Court is set aside and a writ is issued quashing the proceedings taken by the District Council for removal of the appellant. The appellant is restored to his position as a member and Chairman of the Union Committee "A". The appellant shall have his costs, in both Courts from the respondents. A. H. Appeal accepted.