P L D 1969 Dacca 920 (PLP)

ABDUL HAKIM, J.‑Upon a petition under Article 98 of the Constitution this Rule nisi was issued calling upon the respondents to show cause why the impugned order conveyed by respondent No. 1 by his Memo. No. 6782(4) dated 7th October 1967 being Annexure `B' to the petition, suspending the petitioner from functioning as Chairman of the Union Council, should not be declared to have been made illegally and without lawful authority. The short facts of the case are as follows: ‑ The petitioner who was the sitting Chairman of Chalitadanga Union Council, Sirajganj was again elected member of the Electoral College at the last election of the Union Council. He was also a candidate in the Chairman election which took place on 28‑9‑65, but one Mr. Afzal Hossain Sarkar won the election receiving the patronage and help from the local Circle Officer (Development). About a year after the election of said Mr. Afzal Hossain Sarkar, the members of the Union Council passed a ‑ vote of no‑confidence against him on 3‑10‑1966 and consequently the office of the Chairman of the Union Council having fallen vacant, a fresh election took place on 8‑11‑1966 and the petitioner was elected Chairman in the said election and took over charge of the office on 25‑11‑1966. The local Circle Officer (Development) did not like the election of the petitioner and was always trying to harass him in all possible ways. The petitioner while he was the Chairman in the last term did many construction works and had on occasions diverted some money from one project to another project, on the strength of the resolution of the Union Council, upon the urgency of the projects for the well‑being of the locality. The Circle Officer (Development), respondent No. 2 who was all along after the petitioner dug from the old files a case of such divertion and instituted a certificate case against the petitioner for realisation of the amount so diverted by him from one project to another. The Certificate Officer, however, after hearing the parties granted instalments to the petitioner to pay up the dues under proper head and the petitioner paid the instalments on the basis of the said order. The petitioner also paid back the entire amount of the school construction project at a time under order of the Sub‑Divisional Officer. Thus it is alleged that all money due under the certificate case having already been paid, the impugned order dated 7‑10‑1967 suspending the petitioner and asking him to make over charge to respondent No. 3 is unwarranted by the facts and circumstances of the case. The respondents Nos. 1 and 3 have filed two separate affidavits‑in‑opposition in the case controverting the facts stated in the petition. It has been alleged in the counter‑affidavits that the petitioner misappropriated a huge amount of the Union Council Fund and diverted money illegally from one project to another project without any authority or resolution of the Union Council. Consequently a certificate proceeding was started against him for realisation of the said money and the petitioner admitted the liability. The petitioner committed various irregularities regarding public money and the Controlling Authority being satisfied that the exercise of the executive power by him was likely to be prejudicial to the interest of the Council and also undesirable from the administrative point of view, issued the impugned order of suspension. It has also been stated therein that pro ceedings against the petitioner were started long before the impugned order of suspension and pursuant to such proceedings a huge amount of money was recovered from him. Subsequently also a formal enquiry has been instituted against him and some proceedings are still pending before the Controlling Authority. The action taken against the petitioner and the order of suspension passed in the case are, therefore, lawful. The past conduct of the petitioner does not entitle him to any relief from this Hon'ble Court. The main contention of the learned Advocate for the petitioner is that no proceeding whatsoever having been pending against the petitioner on the date of issue of the suspension order, the impugned order is without jurisdiction and not. maintainable in law. The impugned order Annexure `B' was issued on the 7th October 1967. It appears from Annexure A to A(4) annexed to the petition that the petitioner had already paid the entire dues of the certificate proceeding against proper receipts long before the issue of the impugned order of suspension dated 7‑10‑

67. Last payment as is evident from Annexure A(4) was made on 21‑8‑

67. The respondents in their affidavit‑in -opposition do not deny the payment of this money. The amount involved in the certificate proceeding having already been paid by the petitioner, the said proceeding cannot be called any more in existence. The certificate proceeding started against the petitioner has thus ended with the realisation of the certificate dues. The Controlling Authority has taken action against the petitioner under Article 78‑A of the Basic Democracies Order, 1959 Under the said Article the Controlling Authority may suspend a Chairman, with prior approval of the Government, where a proceeding has been initiated for removal of the Chairman under Article 25 of the Order or a proceeding under any other law has been started against him and in view of the proceeding in the opinion of the Controlling Authority the exercise of executive powers by the Chairman is likely to be prejudicial to the interest of the Council or Committee or undesirable from the administrative point of view. It thus appears that the pendency of a proceeding in terms of Article 78‑A is the sine qua non for exercising jurisdiction by the Controlling Authority and the Controlling Authority can exercise the power under Article 78‑A of the Basic Democracies Order when a proceeding is in existence against the delinquent. In the instant case, as we have already pointed out earlier, the certificate proceeding started against the petitioner is no more in existence and it has ended with the payment of certificate dues on 21‑8‑1967 as is apparent from Annexure A(4). There is nothing on record to show that any other proceeding was started against the petitioner under any other law and it was then pending in any Court. The counter‑affidavits filed, by the respondents only speak of the certificate proceeding and nothing else. The said certificate proceeding does not disclose the mens rea for which the petitioner might be deemed to be undesirable from the administrative point of view and his continuance in the office might be prejudicial to the interest of the Council. In the circumstances there being no proceeding pending against the petitioner on the date of issue of suspension order on 7‑10‑1967 we hold that the impugned order has been issued in this case beyond jurisdiction and it has been made without lawful authority. Subsequent inquiry or proceeding, if any, started against the petitioner after 7‑10‑1967 does not validate the impugned order. The Rule, in the circumstances, is made absolute without any order as to costs. SIDDIKY, C. J.‑I agree. Rule made absolute.