P L D 1962 Dacca 533 (PLP)

MURSHED, J.‑The petitioner, Noor Ahmed, was elected as a Member of the Union Council No. 4 Chandgaon, P. S. Panchlaish, District Chittagong, and one Salamat Ali Khan was elected Chairman of the said Union Council. During his illness the said Chairman authorised the petitioner in writing to discharge various functions of the Chairman of the Council and a copy of such written authority has been annexed to the petition as Annexure A. The said authority was given to the petitioner on the 15th of December 1960. The petitioner apprised the Circle Officer, Sadar (North) Chittagong and the Sub‑Divisional Officer, Sadar (North) Chittagong, who is the controlling authority of the said Union Council, of the letter of authority by which various functions of the Chairman were so delegated to him in writing. Thereafter the petitioner started performing some of the duties of the Chairman as so authorised. The authority given by the Chairman to the petitioner was also duly approved by the Union Council by a resolution which was passed on the 5th of January 1961. Copies of the said resolu tion were also duly sent to the authorities concerned, including the Controlling Authority, i.e., the Sub‑Divisional Officer, Sadar (North) Chittagong, who has been impleaded as respondent No. 2 in this petition. It is alleged that the petitioner fell foul with another appointed member of the Union Council and that, at his instance, the authorities proposed to take disciplinary action against the petitioner. On the 15th of March 1961, petitioner received a letter from the Circle Officer, Sadar Chittagong, asking him to show cause why appropriate action should not be taken against him on a charge which has been described as "personifying himself as Chairman" of the aforesaid Council. On the 27th of March 1961, the petitioner submitted an explanation to the effect that he never personified himself as Chairman of the Council and that he was acting on behalf of the Chairman of the Union Council during the latter's illness as duly authorised by him and approved by the Union Council. He also explained that the said letter of authority as well as the approval of the Union Council were duly communicated to the controlling authority. A true copy of the said letter of explanations marked as Annexure `C' to the petition. The petitioner, how ever, received no reply to the same; but was surprised to receive on the 13th of June 1961, a notice from the Sub‑Divisional Officer, Sadar (North) Chittagong (respondent No. 2), calling upon the petitioner to show cause why he should not be removed from membership of the said Council on various vague and general charges. A copy of the said notice or letter has been marked as Annexure `D' to the petition and reads as follows: "You are directed to show cause within 14 days from the date of the receipt of this notice why you should not be removed from the membership of No. 4 Chandgaon Union Council for personifying yourself as Chairman without any sanction from the Controlling Authority, undue and improper interference in relief operation of the Union Council, creating chaos in the smooth administration of the said Council, creating confusion in the minds of the general public and also abuse of power and misconduct in contravention of the Basic Democracies Order and prescribed Rules and Regulations in respect of Union Councils. (Sd.) Z. Haq 10/6 (Z. HUQ) Sub‑Divisional Officer, Sadar (North) Chittagong." On the 24th of June 1961, the petitioner submitted a written explanation with regard to the charges made in Annexure `D' to the petition. The written explanation, in the form of a letter, has been marked as Annexure `E' to the petition. No investigation was made nor was any enquiry held in respect of the charges, which were levelled against the petitioner. He was not given any reasonable opportunity to refute the same. It, however, appears that on the 17th of August 1961, the Sub‑Divisional Officer, Sadar (North) Chittagong, asked the Chairman of the Panchlaish Thana Council to convene a special meeting of the representative members of the said Thana Council in order to consider the question of removal of the petitioner from the Union Council. The said letter addressed to the Chairman, Thana Council, by the respondent, has been marked as Annexure `F' to the petition. The special meeting of the Thana Council was held on the 17th of September 1961, in which some vague charges against the petitioner were considered. The said charge's have been stated in paragraph 7 of the petition as follows: "(i) Undue and improper interference in the relief operation of the Union ; (ii) Personifying himself as Chairman of Union Council without any sanction from Controlling Authority ; (iii) Creating disruption in the smooth administration of the Union Council ; (iv) Creating confusion in the minds of the general public." In the aforesaid special meeting a pretended resolution was passed to the effect that the petitioner be removed from membership of the said Union Council. A copy of the said resolution has been marked as Annexure F.‑1 to the petition. The Thana Council, in passing the said resolution, gave no notice to the petitioner of the charges against him nor furnished any opportunity to make representation with regard to the said charges. On the 2nd of October 1961, the petitioner received a com munication from the Sub‑Divisional Officer, Sadar (North) Chittagong, dated the 21st of September 1961, to the effect that he (the petitioner) was removed from membership of the said Union Council with effect from the 17th of September 1961. The said communication is marked as Annexure `G' to the petition. Thereafter the petitioner filed an appeal before the Deputy Commissioner, Chittagong, against the aforesaid order of removal, but the said appeal was dismissed. The petitioner then moved this Court and obtained a Rule nisi calling upon the respondents to show cause why they should not be directed to forthwith cancel, withdraw and/or rescind Memo. No. Nil dated the 21st of September 1961, removing the petitioner from membership of the said Union Council and to forbear from giving effect to the same. The respondents have not filed any return to the Rule nisi, with the result that no affidavit‑in‑opposition has been filed on their behalf. In these circumstances, we have no reason not to rely on the statements made by the petitioner in his applica tion to this Court. Further, it appears to us that the statements of the petitioner have a genuine ring of truth about the same and are supported by documents annexed to the petition. We, therefore, accept the averment of facts stated in the petition. It was contended on behalf of the petitioner that all along the line the respondent No. 2 as well as the Panchlaish Thana Council represented by its Chairman acted in a high‑handed manner and against well‑established principles of natural justice.. It would appear that the genesis of the trouble, which led to the impugned order of removal of the petitioner from member ship of the said Union Council, began with the letter addressed by the Circle Officer, calling upon the petitioner to show cause why an appropriate action should not be taken against him for what has been described as "personifying" himself as Chairman of the said Union Council. This matter was set at rest by the petitioner when he pointed out that he was acting upon a written authority given by the Chairman of the Union Council as approved by the Union Council. The autho rity given by the Chairman of the Union Council as approved by the Union Council was communicated not only to the Circle Officer but to the Sub‑Divisional Officer as well. Under the Basic Democracies Order, 1959, a Chairman, during his absence, can authorise any member of the Council to act on his behalf with regard to all matters for which he has so authorised the said member. It is thus evident that the petitioner, in acting on behalf of the Chairman, was within the limits of his authority in accordance with the law. The silence of the relevant authority on this question appears to have settled the matter. Somewhat later it seems that the respondent No. 2, the Sub -Divisional Officer, came forward with some very nebulous and vague charges. It is evident from the communication made to the aforesaid petitioner by the Sub‑Divisional Officer that the charge levelled against the petitioner was that he was "person ifying" himself as Chairman without any sanction from the controlling authority, and it is clear that there was no substance in the aforesaid charge. The other charges, which were levelled against the petitioner, are obviously an after‑thought and they are as follows: (i) Undue and improper interference in the relief operation of the Union ; (ii) creating chaos in the smooth administration of the said Council ; (iii) creating confusion in the minds of the general public and also (fv) abuse of power and misconduct in contravention of the Basic Democracies Order and prescribed Rules and Regulations in respect of Union Councils. It is patent that the Sub‑Divisional Officer himself confused the matter in the sense that he had successfully kept the petitioner in the dark as to the particulars of the charges. The charges set out above are so vague that, in the absence of the parti culars with regard to them, it would be impossible for anybody to meet such charges in writing. They gave the petitioner no notice of any definite and concrete case against which he could furnish an intelligible explanation. The petitioner was never told what were the acts done by him which were being construed as undue and improper interference with relief operation. He was not told how he created chaos in the smooth administration of the Council. He received no light as to how he created confusion in the minds of the general public. He was not enlightened as to how he contravened the Basic Democracies Order or how he abused his power under the same. The so‑called notice given by the Sub‑Divisional Officer to the petitioner cannot be described, by any means, as furnishing a reasonable opportunity to him to meet an understandable charge. The petitioner, however, submitted a written explanation of what he could make out of the said vague and indefinite charges framed against him. Thereafter the Sub‑Divisional Officer made a reference to the Panchlaish Thana Council to draw proceed ings against the petitioner to consider the question whether the petitioner should be removed from membership of ;he Union Council. This was purported to have been done under rule 4 of the East Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960, (hereinafter called the Rules), the relevant portions of which run thus: "(1) If the Controlling Authority is of opinion that any member has rendered himself liable to removal from member ship, under clause (2) of Article 25 of the Order, it shall, by notice in writing, call upon such 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) is, 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." Clause (4) of Article 25 of the Basic Democracies Order, 1959, reads as follows: "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) * * * * * * * * * * (c) * * * * * * * * * * Learned Advocate for the petitioner has impeached the resolution, passed at the special meeting of the Thana Council, to the effect that the petitioner was liable to be removed from membership, on the ground, that the said Thana Council did not give the petitioner any opportunity to show cause against the action proposed to be taken against him. This allegation of the petitioner has not been controverted. Therefore, the fact remains that the petitioner was condemned, behind his back, without having been given any opportunity to make representa tion with regard to the charges levelled against him. It is true that respondent No. 2, the Sub‑Divisional Officer, Sadar (North) Chittagong, served a notice upon the petitioner under rule 4 (1) of the Rules. But we have seen that the notice served on him was as vague as it could be; it gave no informa tion to the petitioner as to what were the real charges, which he was called upon to answer. It is also true that the charges originally framed by the said Sub‑Divisional Officer together with the explanation given by the petitioner and several other documents were transmitted by the Sub‑Divisional Officer to the Thana Council. The Thana Council, however, behind the back of the petitioner and without furnishing him with any opportunity to show cause against the proposed action, passed the resolution. We, therefore, think that the resolution passed by the Thana Council at the special meeting as well as the consequential order passed by the Sub‑Divisional Officer, Sadar (North) Chittagong, have no legal force and validity. They were wholly arbitrary and passed in breach of a fundamental principle of natural justice, namely, audi‑alteram partem. The impugned order is no order in the eye of law. Mr. S. A. Chowdhury, who has entered appearance on behalf of respondents Nos. 1 and 2 to‑day, has argued before us that nowhere in the body of the Basic Democracies Order, 1959, or the Rules framed thereunder it has been provided that the petitioner has to be given an opportunity to show cause with regard to the action proposed to be taken against him by virtue of a resolution passed by the Thana Council. It is true that there is no rule in existence in this respect; but it is implicit in the very nature of the power that has been conferred on the said Thana Council, namely, to deprive a person of his office with the consequential imposition of an additional penalty on him, that it must be exercised with a fundamental fairness and in accordance with the principles of substantial justice. Mr. Rab, on behalf of the petitioner, has argued that the proceeding of the special meeting of the Thana Council with a view to consider the question whether disciplinary action should be taken against the petitioner, was of a quasi judicial nature, in the sense that the said Thana Council had to decide, objec tively, on the materials placed before them, as to whether the petitioner was guilty of the charges that had been framed against him. On the other hand, it has been contended on behalf of the respondents that the power conferred on the Thana Council in such circumstances constitutes an administrative function and not a judicial or quasi judicial function. It seems to us that the said proceeding of the Thana Council was in the nature of judicial proceeding ; but we prefer not to give a final decision on this matter because the view that we take is that, whenever a power is conferred upon a person or a body of persons to deprive a person of his rights and/or to impose a penalty upon him, implicit in the conferment of such power is the condition that it must be exercised fairly and in accordance with well‑established principles of natural justice which require that the person so, condemned must be given an intelligible and understandable notice of the charges and a reasonable opportunity to meet them. In this connection, we may refer to the observation of S. A. Rahman, J., in delivering his opinion in the Supreme Court, in the case of Faridsons Ltd. v. Government of Pakistan (P L D 1961 S C 537) which runs thus: "This Court laid it down as a rule in Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrik P L D 1959 S C (Pak.) 45, that the maxim: audi‑alteram partem‑`No man shall be condemned unheard', applies to judicial as well as administrative bodies, specially where the proceedings taken may affect the person or property or other rights of the parties concerned in the dispute. Even if therefore the proceedings before the Chief Controller were neither strictly judicial nor even quasi- judicial in character, the principle of natural justice embodied in the above maxim could be called in aid by the appellants. The High Court was in error in holding that this principle was a peculiarity of English Law and could not be invoked in the country where statute law covers the relevant field of litiga tion. This principle is of universal application where the statute itself prescribes no specific procedure for ascertaining the necessary facts and no express exclusion of the principle can be spelt out of the words of the statute. As Byles, J., observed in Cooper v. Wandsworth Board of Works 143 E R 414: `Although there are no positive words in a statute requiring that the party shall be heard. Yet the justice of the Common Law, will supply the omission of the Legislature', In Patterson v. District Commissioner of Accra 1948 A C 341, 349, the Privy Council held against the application of the principle because the power was to be exercised by the relevant authority in that case after inquiry, if necessary, implying in consequence that inquiry was not essential in every case. No words of similar import occur in the Registration (Importers and Exporters) Order, 1952. Indeed clauses (5), (6) and (7) of the Order would tend to support the opposite inference. In Russel v. Russel 14 Ch. D 471 at 478, Jessel, M. R., quoted with approval from an earlier decision, the following passage: They are bound in the exercise of their functions, by the rule expressed in the maxim, audi‑alteram partem, that no man shall be condemned to consequences resulting from alleged misconduct unheard and without having the opportunity of making his defence." We may also refer to a decision of a Division Bench of this Court in the case of Bahauddin Ahmed v. Province of East Pakistan. (P L D 1962 Dacca 292), where it has been observed, in the judgment that was pronounced, as follows: "We think that this is sufficient to set at rest the rather belated doubt expressed by the learned Advocate‑General as to principles of law applicable to this point. We do not mean to lay down, as a proposition of law, that in every case, where an official has to exercise an administrative discretion, he is bound to conform to a judicial procedure, which is prevalent in a Court of law. There can be, however, no doubt that, in a case where the exercise of any power conferred on him is dependent on a finding of fact objectively, he cannot come to a finding against a person affected by the order without giving him a chance to make representation as to why the same may not be found against him. The principle, audi‑alteram partem, is the minimum requirement of law in such a case." We would also like to quote the observations of Lord Parmoor in the case of Local Government Board v. Arlidge (L R 1915 A C 120), which run thus: "Whether the order of the Local Government Board is to be regarded as of an administrative or of a quasi‑judicial character appears tome not to be of much importance, since, if the order is one which affects the rights and property of the respondent, the respondent is entitled to have the matter determined in a judicial spirit, in accordance with the prin ciples of substantial justice." In the present case the petitioner was deprived of his office as a member of the Union Council and, furthermore, a penalty was imposed on him which disqualified him for being elected to any local body for a period of five years. Thus, the "guillo tine" was applied on him without the Thana Council giving him the slightest opportunity to refute the charges, which the said Council were considering against him. The unsatisfactory notice given to the petitioner by the Sub‑Divisional Officer, did not, in fact, as we have seen above, furnish him with a reasonable opportunity to answer the accusation made against him. In these circumstances, the impugned order passed by the respondent No. 2, the Sub‑Divisional Officer, Sadar (North) Chittagong, is no order in the eye of law. The result, therefore, is, that this Rule is made absolute and respondents Nos. 1 and 2, namely, the Province of East Pakistan represented by the Secretary, Local Councils, Government of East Pakistan, and the Sub‑Divisional Officer, Sadar (North) Chittagong, respectively, are directed to forthwith cancel, with draw and/or rescind Memo. No. Nil dated the 21st of September 1961, removing the petitioner from membership of No. 4 Chandgaon Union Council and to forbear from giving effect to the same. The petitioner is entitled to the costs of this applica tion, which we assess at five gold mohurs. A. S. CHOWDHURY, J.‑I agree. K. B. A. Rule made absolute.