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Petition No. 174 of 1969, decided on 20th March 1970.

Art. 25 read with East Pakistan Local Councils (Resignation and Removal of Members and Chairman and Suspension of Chairman) Rules, r. 4‑Removal of Chairman‑Governed by Art. 25(3) and not by Art. 25(2) of Basic Democracies Order, 1959‑Provisions of r. 4, East Pakistan Local Councils (Resignation and Removal of Members and Chairman and Suspension of Chairman) Rules- Not applicable to case of removal of Chairman under Art. 25(3)(b) Chairman served with notice, on ground of dereliction of duties and gross misconduct, by Controlling Authority ‑ Proceed ings, under Art. 25(3)(6), held, start with service of such notice Order of suspension with approval of Government under Art. 78‑A, Basic Democracies Order, 1959, in circumstances, upheld.

A. Aziz with M. G. Rabbani for Petitioner.

"A. Matin Khan Choudhury, Asstt. A.‑G. for A. H. Chowdhury for Respondents.

Dates of hearing : 27th January, 10th February, 2nd and 17th March 1970.

.‑The petitioner Md. Azizar Rahman Mondal has challenged the order dated 2'‑6‑69 suspending him from the office of the Chairman of Shekerkol Union Council.

Facts necessary for the disposal of this rule are that the petitioner was the Chairman of Shekerkol Union Council, at Bogra. Proceedings were started against him under Article 25(3)(6) of the Basic Democracies Order, 1959 on ground of dereliction of duties and gross misconduct by the S. D. O. as the Controlling Authority. A notice of show cause dated 18‑4‑68 was served on the petitioner directing him to show cause by 25‑5‑68. The petitioner wanted time and thereafter he submitted his explanation on 25‑6‑68. The explanation was not found satisfactory and so the Controlling Authority sought approval of the Government for suspending the petitioner by his office memo. No. 109/68 dated 25‑6‑68 from the office of the Chairman of the said Union Council and the permission was accorded by the Government on 2‑6‑69 under Article 78‑A of the Basic Democracies Order, 1959. Against this order of suspension the above rule has been obtained by the petitioner.

Mr. Aziz the learned Advocate for the petitioner has urged that removal of the Chairman under Article 25 (3) (b) will ultimately entail his removal from membership and referring to rule 4 of the East Pakistan Local Council (Resignation and Removal the Members, Chairman and Suspension of Chairman) Rules submits that the notice that was served on the petitioner is a notice of disability and after his explanation, if the Con trolling Authority then decides and sends the proposal for the removal of the Chairman to the District Council, it is only then the proceeding will start and that stage not having been reached the order of suspension is bad in law. It may be stated that this submission of the learned Advocate for the petitioner is misconceived inasmuch as rule 4 referred to by the learned advocate clearly mentions removal of the members under Article 25 (2) of the Basic Democracies Order, whereas for the removal of the Chairman, the relevant Article is 25 (3) and so the said rule 4 has no application to the facts of the present case. The other contention of the learned Advocate is equally of no substance in view of the fact that the proceedings under Article 25 (3) starts with the show‑cause notice served on the Chairman by the Controlling Authority. In the present case the notice of show cause given to the petitioner clearly mention why action should not be taken under Article 25 (3) (b) of Basic Democracies Order. It is difficult to hold that the proceeding starting from the show‑cause notice till the decision of the Controlling Authority to refer the matter to the District Council will not be the part of the proceeding under Article 25 (3). , Again Article 78‑A only refers to a proceedings for the removal under Article 25 and the rules framed thereunder and there is no word either in the Articles 25 and 78‑A or in the rules giving the restricted meaning sought to be put by the learned Advocate. ‑This contention of the learned Advocate therefore fails.

It has next been contended that the petitioner submitted his explanation to the show‑cause notice on 25‑6‑68 and after almost one year the order of suspension was passed on 2‑6‑69 end the petitioner not having been informed anything about his explanation coupled with this long silence, it must, in the circumstances, be deemed that the proceedings were in fact dropped. This submission of the learned Advocate in the premises of the facts of the case cannot be upheld. The explanation was submitted by the petitioner on 25‑6‑ 68 and it has been averred on behalf of the respondents that the ex planation not having been found sufficient the Controlling Authority on that very day sent his proposal and sought approval of the Government which in fact was given on 2‑6‑69. There has been no delay on the part of the Controlling Authority. The Government have taken a long time to accord the approval. But there is nothing to show that either the explanation of the petitioner has been accepted or the proceedings dropped. It cannot be therefore be held that there was no proceeding pending under Article 25 of the Basic Democracies Order, or that it should be deemed to have been dropped. This contention of the learned Advocate for the petitioner also fails.

The learned Advocate for the petitioner has raised the question of mala fide and collateral use of the power under Article 78‑A of the Basic Democracies Order, 1959 but for want of sufficient particularity of the alleged mala fide it cannot be upheld.

No other point remains for our consideration for the disposal of the rule.

The result therefore is that this petition fails and the rule is discharged without any order as to cost.

‑I agree.

A. E. Rule discharged.

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