Abdur Rashid (Md) Vs. Local Government Rural Development and Co­operatives and others, 55 DLR (AD) (2003) 72

Case No: Civil Petition for Leave to Appeal No. 1734 of 2002

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Abdul Wadud Bhuiyan,,

Citation: 55 DLR (AD) (2003) 72

Case Year: 2003

Appellant: Abdur Rashid (Md)

Respondent: Local Government Rural Development and Co­operatives and others

Delivery Date: 2003-1-27

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin, J.
KM Hasan, J.
Md. Fazlul Haque, J.
 
Abdur Rashid (Md)
……...............Petitioner  
Vs.  
Local Government Rural Development and Co­operatives, Local Government Division and others
………..........Respondents  
 
Judgment  
January 27, 2003.
 
The Pourashava Ordinance, 1977
Section 13    
An elected public representative may be put out of office by the competent authority when such representative makes himself undesirable to perform his functions and duties and his continuation in the office is made undesirable from the administrative point of view.
 
Cases Referred to-  
Md. Abdul Hye Bhuiyan vs. LGRD 1981 BLD (AD) 196; Bangladesh vs. Md. Lokman Patwari 46 DLR (AD) 163, (2001) 6 SCC 260.
 
Lawyers Involved:
Abdul Wadud Bhuiyan, Senior Advocate, instructed by ASM Khalequzzaman, Advocate‑on‑Record‑For the Petitioner.
Md. Nowab Ali, Advocate‑on‑Record‑For Respondent Nos. 2‑11.
Not Represented‑Respondent Nos. 1, 12‑7.
 
Civil Petition for Leave to Appeal No. 1734 of 2002.
(From the Judgment and Order dated August 26 ' 2002 passed by the High Court Division in Writ Petition No. 3668 of 2002).
 
JUDGMENT
Md. Ruhul Amin J.
 
This petition for leave to appeal by the writ‑petitioner is against the order dated August 26, 2002 of a Division Bench of the High Court Division in Writ Petition No. 3668 of 2002 vacating the order of stay dated July 27, 2002.
 
2. The writ petition has been filed challenging order dated July 20, 2002 suspending the petitioner from the office of Chairman of the Dewangonj Pourashava in the District of Jamalpur and the Memo dated July 21, 2000 directing Deputy Commissioner, Jamalpur to inquire into the allegations of 10 commissioners of Dewangonj Pourashava against the chairman and in case of finding the allegations correct to ascertain through secret ballot the final opinion of the commissioners and to report the result. The petitioner has been elected chairman of the aforesaid Pourashava in the year 1999. The order of suspension has been passed alleging corruption, irregularity, misappropriation of money and guilty of conduct unbecoming of the office of chairman. The petitioner has challenged the order of suspension by filing the aforesaid writ petition on the ground that as the elected chairman of the Pourashava till the expiry of the term he is entitled to discharge duties of the office and that although in the order of suspension it has been mentioned that 10 commissioners out of 12, commissioners of the Pourashava are said to have taken resolution for his removal but, in fact, the same was taken by 5 commissioners since 5 other commissioners have affirmed affidavit denying the truth of the resolution said to have been taken by them along with others and that meeting of the Pourashava called for disposal of the resolution taken by the commissioners was not legal and that the meeting so convened for taking final decision on the alleged resolution of the commissioners for removal of the petitioner was unlawful.
 
3. The High Court Division while issuing the Rule stayed the order of suspension. The respondent Nos. 8, 10 and 15 filed an application vacating the order of stay stating primarily that 1 commissioners out of 12 commissioners of h Pourashava have passed resolution for the removal of the writ‑petitioner and thereupon the authority in consideration of the said resolution as well as fact corruption, misconduct and misappropriation of the fund of the Pourashava has passed the order of suspension and that upon passing of the order suspension the charge of office of the chairman by the memo dated July 20, 2000 has been given to the No. 1 penal chairman and, as such, the order of stay is seriously hampering functions of the Pourashava. The High Court Division after hearing the learned Advocate for the parties has vacated the order of stay made at the time of issuance of the Rule.
 
4. The learned Counsel for the petitioner submits that petitioner being an elected representative he has a legal right to function as chairman of the Dewangonj Pourashava for the period he has been elected and, as such, petitioner having not been removed from the office should have been allowed to function as chairman of the Pourashava. It has also been contended that order of suspension has been passed at the instance of the petitioner’s political rival at the local level and that the order of suspension has been passed upon total non‑application of mind and in the absence of the material for making an order of suspension. It has also been submitted that office of chairman being an elected office and that petitioner being the representative of public he should have been allowed to perform his functions as the elected representative as chairman. Lastly, it has been submitted that in a society which is making all endeavours to practice democracy at all levels through elected bodies and to democratise the society and its institution through the elected representative, the petitioner being an elected chairman of one of the elected bodies at the lower level of democratic institutions, the High Court Division seriously erred in law in vacating the order staying order of suspension of the petitioner and thereby depriving the elected representative to perform his functions and duties in one of the elected bodies of the Local Government.
 
5. The learned Counsel has contended that for the purpose of making an order of suspension the authorities required to form its opinion on the basis of tangible material and in support thereof he has referred to the case reported in 46 DLR (AD) 163 wherein it has been held if there is no material at all on which to form an opinion or if the materials that exist are totally unconnected with the kind of opinion that the Government is required to form, then the order of suspension will fall through. The learned Counsel has also referred to a case reported in 1981 BLD (AD) 196 wherein it has been observed that the authority is to apply its mind to the material to form an opinion whether the chairman's functioning is desirable from the administrative point of view of whether it is prejudicial to the interest of the Union Parishad and upon forming such opinion it is to be expressed and the order of suspension is to be passed and the order of suspension must ex facie show that the prescribed Authority formed his opinion to make the order of suspension and in making the order of suspension the Authority is to apply its mind to the material from which an opinion could be formed for making the order of suspension. It has further been observed in the said decision "The Prescribed Authority is obliged to consider the correlation between the interest of administration or the interest of the Union Parishad vis‑a‑vis the criminal proceeding. The criminal proceeding against the Chairman must of necessity be such that the power vested in him if exercised would either he prejudicial to the interest of the Union Parishad or it is undesirable from the administrative point of view and there is to be some indication in the order to that effect."
 
6. In view of the materials on record the contention of the learned Counsel that there was no sufficient material before the Authority to form opinion as to non‑desirability of the petitioner to continue in the office of the chairman appears to be not well founded. The order of suspension impugned in the writ petition sufficiently indicates that there were materials before the Authority for forming an opinion as to non‑desirability of the writ‑petitioner to continue in the office of the chairman. The order of suspension has been passed in the background of material available to the Authority for the purpose of making the said order.
 
7. As regards the other contention that in an elected body the elected representative should be allowed to discharge his duty or perform his duty and that removal therefrom has been highly disapproved by the Court the learned Counsel has referred to the case reported in 46 DLR (AD) 163 wherein it has been observed "The Office of Chairman is a public representative office and its deprivation however temporary, will be strictly viewed at". The learned Counsel has also referred to the case reported in (2001) 6 SCC 260 wherein it has been observed "In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held".
 
8. The view expressed in the aforesaid reported cases can hardly be disputed or, in other words, there is hardly any reason to take a view different from the views expressed in the aforesaid reported cases as regard disapproval of deprivation of office of an elected representative from his office, but there may be occasion(s) or case(s) where public representative by his conduct has made him undesirable to perform the function and duties of the office of elected representative and in that situation the authority on consideration of tangible materials is quite competent to act within its limit to form opinion to put such public representative out of his office because of the view that his continuation in the office is undesirable from the administrative point of view. In the instant case it is seen that there was allegation of serious nature like misappropriation of fund of the Pourashava and that there has been an enquiry as regard the said allegation and that a resolution was taken by the 10 commissioners out of the total 12 commissioners of the Pourashava for removal of the petitioner from his office and the authority in consideration of the resolution of the commissioners for the removal of the chairman and the enquiry report relating to allegation of corruption formed opinion for removal of the petitioner from his office from the administrative point of view and thereupon passed the order of suspension and following that also has appointed penal chairman to perform the functions of the Pourashava.
 
9. In the background of the discussions made hereinabove we find no substance in the petition.
 
Accordingly, the petition is dismissed.
 
Ed.