P L D 1964 Dacca 554 (PLP)

A. S. CHOWDHURY, J.‑The petitioner Abdus Salam has called in question a resolution of the District Council of Rajshahi passed on 12‑2‑1963 removing him from the Membership of Dayarampur Union Council of the said District.

2. The petitioner's case, in so far as it is necessary for deciding the legality of the impugned order, is that on 7‑3‑1960 one Golam Rabbani was elected Chairman of Dayarampur Union Council in violation of the rules relating to such elections. An appeal having been preferred by the petitioner, that election was set aside, It is further alleged by him that the then Sub -Divisional Officer Mr. Lutfar Rahman felt greatly interested in his rival Golam Rabbani so much so `that in total absence of any provision for holding a plebiscite he held one for assessing respective popularity of Gholam Rabbani and the petitioner. It is, however, further claimed that the result of the plebiscite went over whelmingly in favour of the petitioner. Thereafter despite various difficulties and harassment created by his rival Golam Rabbani he was elected as Chairman of the Local Union Council by a majority of 7 : 6 votes on 21‑10‑1961. It is further stated that he resisted a move on the part of the said Golam Rabbani to construct Union Council building at the latter's village at Hizli which is situated at an inconvenient place of the Union. The petitioner and others demanded that it should be located at Dayaram Bazar. A resolution was adopted selecting Hizli for the office of the Council without serving any notice of the meeting on the petitioner and others. After the election of the petitioner to the office of the Chairman the matter was reviewed at a meeting called by him, notices of which were duly served on all the members. In that meeting the previous resolution relating to the location of the office at Hizli was declared illegal as notice of that meeting was not served on any of the members supporting the petitioner. It is urged that the petitioner incurred displeasure of the local officers who were trying to humiliate him.

3. The petitioner was served with a notice dated 24‑8‑62 to show cause as why he should not be removed from the member ship of Dayarampur Union Council. In that notice grievance made against him was that he was not holding his office at Hizli.

4. It may be mentioned here that the petitioner was pre viously also removed from his membership by a resolution of the Special Meeting of the District Council held on 12‑3‑62 on the ground that he made false allegations against Mr. L. R. Khan, C. S. P., the then Sub‑Divisional Officer of Natore. The petitioner thereafter preferred an appeal to the Divisional Commissioner who set aside the said resolution on technical grounds. He was thereafter served with the said notice dated 24‑8‑62 and removed from his membership on 12‑2‑1963 holding that he was guilty of abuse of power and misconduct in the discharge of his duties under Article 25 (2) (c) of the Basic Democracies Order.

5. Mr. M. H. Khondkar, appearing for the petitioner, has strenously argued that the impugned resolution merely states that Abdus Salam was found guilty of an abuse of power and miscon duct `in the discharge of his duties' and that no mention has been made as to why he was guilty of misconduct or abuse of power. His contention is that the show‑cause notice as stated above indicates that he was not holding the office at Hizli and in support of his action the petitioner has mach an annexure in the petition which is Annexure A. That is a memorandum issued by the Sub -Divisional officer to one K. B. Bhowkik, a member of the Council and others for information with reference to their petition and objecting to selection of Hizli as Union Council office and that memorandum clearly says that there was no necessity for them to be anxious at present as the office would be located at a site duly approved by all concerned. It was also stated therein that the construction of the Union Council building will be taken up on the 5th year. This memorandum clearly indicates that the authority concerned did not finally approve the selection of any particular place as the Office of the Local Union Council. There fore, the allegation made in the resolution that he was guilty of abuse of power and misconduct cannot have any reference to his not holding office at Hizli. In this connection the learned Advocate has also referred to the removal of the petitioner on the 12th March 1962, on ground of his making false allegation against Mr. L. R. Khan and his connection is that although in the show‑cause notice grievance has been made for his not holding office at Hizli, reasonable inference would be that the matter was being pursued because of the ground mentioned in the previous resolution. Mr. Khondkar has also drawn our attention to the reference made by the Sub‑Divisional Officer for the second time to the District Council for removal of the petitioner. In making the reference the Sub‑Divisional Officer regretted very much that the said resolution should have been set aside on technical grounds.

6. The letter of reference clearly indicates that the matter was being pursued not only on the ground of his not holding the office at Hizli but on other grounds also. It clearly appears from the following comments made in the said letter of reference dated 4‑10‑62 :‑-- "Other allegations against this particular C. U. C. were enquired into by reasonable Government Officers whose reports were duly perused, by the District Council in the past. It is a pity that inspite of all the odds against him he has been given a fairly long rope to continue to go strong ever by repeated flouting of the orders of the Controlling Authority. God alone knows what will be the fate of the Basic Democracy, if wrong persons like Mr. A. Salam are allowed to continue in their offices as Chairman of Union Councils." The petitioner was never told about the "Other allegations" referred to above. The resolution of the District Council is also equally vague. The District Council did not give the petitioner any opportunity to show cause against his removal as recom mended by the Sub‑Divisional Officer. We are, therefore, satisfied that the impugned resolution has been passed without giving adequate opportunity to the petitioner to show cause against the proposed action. The opportunity given must be adequate and reasonable so that it would enable a person to meet all the allegations made against him. The show‑cause notice merely mentions his not holding office at Hizli. It does not refer to his disobedience or any other allegation. The notice itself, therefore, falls short of the requirement of law. The District Council also ought to have given the petitioner an opportunity to meet the allegations made against him in the letter of reference and failure to do so has resulted in the violation of the principle of natural justice.

7. On a reference to the relevant provisions, it appears, that Article 25 (2) (c) of the Basic Democracies Order, 1959 provides that a member of the Local Council may be removed if he is guilty of abuse of powers or any misconduct `in the discharge of his duties as a member'. Relying on this provision Mr. Khondkar has rightly contended that if the petitioner made certain allegations against a public servant, he cannot be said to have been guilty of abuse of power or any misconduct 'in the dis‑charge of duties as a member'. It is true, if he makes any frivolous and baseless allegation against any public servant, he will make himself liable for punishment as provided for in the general law of the land but to such a situation the provisions of Article 25 (2) (c) cannot be invoked unless it can be established that he sent the report in the discharge of his duties as a member. This must be so in view of the presence of specific words to that effect in the said Article. It may, however, also be noticed that only when a person incurs a disqualification specified therein he can be removed if he is an elected member by virtue of Article 25 (4) (c). But before action can be taken against him, Rule 4 of the East Pakistan Local Council (Resignation and Removal of Members) Rules, 1960 requires that the Controlling Authority must serve a notice in writing calling upon the member to show cause within 14 days from the date of the notice as to why he should not be so removed. Sub‑rule (3) of the said rule 4 further provides that if the show‑cause notice is not found satisfactory, he may refer the case to the District Council for his removal and sub‑rule (4) of the said rule 4 clearly provides that a copy of the said reference should be served on the member concerned. From these rules, it is reasonable to think that it was necessary for the District Council to be satisfied that the petitioner knew, in precise and clear terms, the grounds of his proposed removal and he should have been given an opportunity to show cause against the proposed action. In this connection a reference may be made to the Division Bench decision of this Court in the case of Noor Ahmed v. Province of East Pakistan and others (P L D 1964 Dacca 546), in which it was observed as follows :‑

"But we have seen that the notice served on him was as vague as it could be; gave no information 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, there fore, 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." It has also been held by this Court in the case of Lakhu Sarkar v. Government of East Pakistan and others (P L D 1964 Dacca 217), that a notice asking the member to show cause as to why he should not be removed, should be such as to give him a reasonable opportunity of meeting the charges against him. It should neither be vague nor the petitioner be kept in the dark about the actual allega tion against him.

8. In the facts and circumstances of the case we are of opinion that in this case also the petitioner did not have any real opportunity of showing cause against the proposed action.

9. Mr. Abdul Wadud Mallik when confronted with this situation made a desperate effort to save the impugned resolution by an objection founded on Article 98 of the Constitution on the ground that the petitioner has not exhausted all his remedies available in this behalf and as such this writ petition is not main tainable. His contention is that he should have filed an appeal to the Divisional Commissioner in this respect before moving this writ petition. Mr. Khondkar has filed a supplementary affidavit to the effect that his client, in fact, presented an appeal before the Divisional Commissioner, Rajshahi, but that was not accepted by the office of the Divisional Commissioner stating that no appeal lay from the impugned resolution although on the former occasion on appeal was preferred and allowed by the Divisional Commis sioner. Mr. Khondkar in corroboration of the statement has produced a petition which was filed with Court‑fee affixed thereon and the office of the Divisional Commissioner and returned to his client. The respon dents have not challenged these assertions and we have no manner of doubt that the averments made by the petitioner are true. We are, therefore, satisfied that the petitioner actually made every effort to file an appeal before the Divisional Commissioner. It seems to us that his attempt on this occasion might have been frustrated by some confusion in the office of the Commissioner. That being so, we are of opinion that this contention of Mr. Abdul Wadud Mallik is of no substance and he has pressed no other point for rejection of the petition.

10. For the reasons stated above, we make the Rule absolute and declare the impugned resolution passed in the special meeting held on 12‑2‑1963 to be without lawful authority and that the same is of no legal effect whatsoever and we also direct the respondents to refrain from giving effect to the impugned resolution. In the facts and circumstances of the case, we make no order as to costs. SATTAR, J.‑I agree. S. Q. Rule made absolute.