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1964. Civil Appeal No. 45‑D of 1963, decided on 18th March

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 27th July 1962, in Writ Petition No. 145 of 1962).

, Art. 25 (4) and East Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960‑Removal of member‑No speck provision in Basic Democracies Order, 1959 entitling member proceeded against, to opportunity of being heard‑Such member, nevertheless, entitled to such opportunity on principle of natural justice‑Right available under Order cannot be taken away by rule‑making authority. [Manzoor‑ul Haq v. Controlling Authority P L D 1963 S C 653 considered].

Sh. Abdur Rahman v. The Collector and Deputy Commissioner, Bahawalnagar and others P L D 1964 S C 461 ref.

‑Rule making authority cannot clothe itself with powers which statute itself does not give.

‑Principle : audi alteram partem (no person should be condemned unheard)‑Principle presumed to be embodied in statute in absence of any provision to contrary.

and West Pakistan Local Councils (Resigna tion and Removal of Members) Rules, 1960‑Rules identical.

K. A. Baker Advocate Supreme Court instructed by A. W. Malik Attorney for Appellants.

Abdus Salam Khan Senior Advocate Supreme Court (Mazammal H'aq Advocate Supreme Court with him) instructed by M. A. Rab Attorney for Respondent No. 1.

Respondent No. 2 : Ex parte.

Date of hearing : 18th March 1964.

‑In this appeal by special leave the appel lants are Province of East Pakistan and the Sub‑Divisional Officer, Sadar (North), Chittagong and the order challenged is a writ of mandamus issued by a Division Bench of the High Court of East Pakistan directing the appellants "to forthwith cancel, withdraw and/or rescind Memo. No. Nil dated the 21st of September, 1961, removing the petitioner (Noor Ahmad) from membership of No. 4 Chandgaon Union Council".

The relevant facts are as follows :

The respondent Noor Ahmad was elected as a member of the Union Council No. 4, Chandgaon P. S. Panchalaish in the district of Chittagong. Salamat Ali Khan, the elected Chairman of the said Union Council during his illness authorised him in writing on 15th December 1960 to discharge the various functions of the Chairman. After communicating the said fact to the Circle Officer and the Sub‑Divisional Officer, Sadar (Northern), Chittagong, he started performing some of the duties of the Chairman. By a resolution dated 5th January 1961, the Union Council also approved of the authority given to him by the Chairman. On the 15th March 1961, he received a letter from the Circle Officer, asking him to show cause why appropriate action should not be taken against him for personifying himself as Chairman.' In the explanation submitted by him on the 27th March 1961, he while denying the above allegation pointed out that he was acting as Chairman during the latter's illness, under his authority which was also approved by the Union Council ; and that the said fact was also known to the Controlling Authority, that is, the Sub‑Divisional Officer. On 13th June 1961, he received the following notice from the Sub‑Divisional Officer

"You are directed to show cause within 14th days from the date of 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."

On 24th June 1961, he submitted his explanation with regard to the above charges. On 17th August, 1961, the Sub‑Divisional Officer asked the Chairman of the Panchalaish Thana Council to convene a meeting of the representative members of the said Council in order to consider the question of his removal from the Union Council. On 17th September 1961 the Thana Council passed a resolution recommending his removal from membership of the Union Council. By his order dated 21st September 1961 the Sub‑Divisional Officer removed him from the membership of the Union Council with effect from 17th September 1961. His appeal against the order of the Sub‑Divisional Officer was dismissed by the Deputy Commissioner, Chittagong.

He then filed a writ petition in the High Court challenging the legality and propriety of the above order on the following grounds :

(i) that the procedure prescribed in East Pakistan Local Council (Resignation and Removal of Members) Rules, 1960 had not been complied with ;

(ii) that the charges levelled against him were vague and that in the absence of particulars it was not possible for any one, to meet the said charges ;

(iii) that in any event the Thana Council by not giving him an opportunity to show cause against the action proposed to be taken by them, acted in contravention of the fundamental principles of natural justice.

The respondents in the said writ petition did not file any counter affidavit controverting the facts alleged in the said petition.

The High Court being of the opinion that removal of Noor Ahmad had been ordered in a wholly arbitrary manner and also in breach of the fundamental principles of natural justice, directed issuance of a writ of mandamus for cancellation and/or withdrawal of the order purported to have been made by the Sub‑Divisional Officer on 21st September 1961, removing him from membership of the Union Council.

Special leave to appeal was granted by this Court to consider

"Whether under the Basic Democracies Order and the relevant rules framed there under the respondent Noor Ahmad was entitled to receive a second show‑cause notice and whether in the absence of such notice his removal could be said to have been fn violation of the principle of audi alteram partem."

At this stage it will be convenient to reproduce the relevant provisions of the Basic Democracies Order, 1959 and the East Pakistan Local Councils (Resignation and Removal of Members) Rules, 1960.

Clause 4 of Article 25 of the Basic Democracies, Order 1959 is as follows :

"An elected member of a Local Council shall not be removed from such membership unless, at a special meeting to be con vened 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 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.

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