Md. Habibur Rahman Vs. Government of Bangladesh & 5 ors, 16 BLT (AD) (2008) 163

Case No: Civil Petition for Leave to Appeal No.1422 of 2006

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Mr. Zainul Abedin,,

Citation: 16 BLT (AD) (2008) 163

Case Year: 2008

Appellant: Md. Habibur Rahman

Respondent: Government of Bangladesh and others

Subject: Local Government,

Delivery Date: 2007-7-31

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim, J.
Md. Tafazzul Islam, J.
Md. Joynul Abedin, J.
 
Md. Habibur Rahman
…………....Petitioner
Vs.
Government of Bangladesh & 5 ors
……………...Respondents
 
Judgment
July 31, 2007.
 
Union Parishad Chairman and Member (Resignation, Removal and vacation of office) Rules, 1984
Rule 12(1)
Local Government Union Parishad Ordinance, 1983
Section 12 (2)
Authority has followed the procedure prescribed by the rules and the petitioner was given chance to show cause and also asked to be present in the special meeting. The authority has removed the petitioner under Rule 12(1) of the Union Parishad Chairman and Member (Resignation, Removal and Vacation of Office) Rules, 1984 in which recording of reasons is not necessary at all. … (7)
 
Lawyers Involved:
Mahbubey Alam, learned Counsel, instructed by Chowdhury Md. Jahangir, Advocate-on-Record-For the Petitioner.
Zainul Abedin, Advocate-on-Record-For Respondent No. 1.
Not represented- Respondent Nos. 2-6.

Civil Petition for Leave to Appeal No.1422 of 2006
(From the Judgment and order dated 14.12.2005 passed by the High Court Division in Writ Petition No. 6093 of 2004).
 
JUDGMENT
Mohammad Fazlul Karim J.
 
This application for Leave to Appeal under Article 103 of the Constitution of the People's Republic of Bangladesh is directed against the Judgment and order dated 14.12.2005 passed by the High Court Division in Writ Petition No.6093 of 2004 discharging the Rule.
 
2. The case of the petitioner, in short, is that the petitioner is the elected Chairman of No.10 Jalalpur Union Parishad under Kotiadi Police Station, District-Kishoreganj having been elected on 04.02.2003 and he had been discharging his duty honestly and sincerely, on 31.07.2004 a meeting was held in No.10 Jalalpur Union Parishad in the absence of the petitioner. One Md. Asaduzzaman Bhuiyan presided over the meeting and a no-confidence typed proposal was accepted in that meeting and requested the Upazila Nirbahi Officer, Kotiadi to take necessary steps and the Upazila Nirbahi Officer, Kotiadi after receiving the resolution dated 31.07.2004 appointed the Upazila Education Officer, Kotiadi as authorized officer on 01.08.2004 for taking necessary action as per Rule 2(a) of the Union Parishad Chairman and Member (Resignation, Removal and Vacation of Office), Rules, 1984 and pursuant to that action a special meeting of No. 10 Jalalpur Union Parishad was held on 23.07.2004 and Upazila Education Officer, Kotiadi presided over the said meeting. The petitioner, was asked to reply within 7 days why the notice of no-confidence shall not be accepted against him; he was also asked to be present in the Special Meeting of the Union Parishad to be held on 08.08.2004 along with the evidence for the purpose of investigation, the petitioner submitted his reply denying the allegations brought against him, the copy of the reply has been annexed as Annexure-E. Thereafter, on 23.08.2004 a Special Meeting of the said Union Parishad was held and no-confidence motion was accepted and the Upazila Nirbahi Officer was requested to take necessary steps, the copy of the report has been annexed as Annexure-H and HI respectively. The respondent No.4 the Deputy Commissioner, requested the Secretary of the Local Government Division to remove the Chairman, No. 10, Jalalpur Union Parishad; the letter has been annexed as Annexure-I to the Writ petition. Respondent No.2 requested the concerned authority to publish Gazette Notification under regulation 12(2) of the Union Parishad Chairman and Member (Resignation, Removal and suspension) Regulation, 1984. It has been asserted that the post of the Chairman of No. 10 Jalalpur Union Parishad was declared vacant with a malafide intention and without lawful authority. It has been further asserted that as per Section 12(2) of the Local Government Union Parishad Ordinance, 1983 before removing a Chairman it is necessary to inquire about the charge against him, the authority without recording its reasons for removing has issued the removal order of the petitioner.
 
3. Respondent No. 1 contested the Rule by filing affidavit in opposition stating, inter alia, that the authority after receiving no-confidence proposal of 10 Members of the said Union Parishad appointed Upazila Education officer, Katiadi as authorized officer who called special meeting of the said Union Parishad and asked the petitioner to be present in the special meeting. Though the petitioner replied to the show cause notice but avoided the special meeting intentionally. Thereafter, the authorized officer requested the Upazila Nirbahi Officer to take necessary steps in that regard. Accordingly, the Upazila Nirbahi Officer requested the Deputy Commissioner, Kishoreganj to forward the said no-confidence proposal to the Government for approval. The Deputy Commissioner requested the secretary, Local Government Division to remove the petitioner from the post of Chairman No.10 Jalalpur Union Parishad. The authority as per Union Parishad Chairman and Members (Resignation, Removal and Vacation of Office) Rules, 1984 declared the post of the Chairman of No.10 Jalalpur Union Parishad vacant by accepting the no-confidence motion through Gazette Notification. It has been asserted that the Authority after following the prescribed Rules declared the post of Chairman of No.10 Jalalpur Union vacant. It has been further asserted that Regulation 12 of the Union Parishad Chairman and Members (Resignation, Removal and Vacation of Office) Rules, 1984 does not contemplated recording of the reasons for approval.
 
4. Mr. Mahbubey Alam, learned Counsel, appearing for the petitioner submitted that impugned Memos ( Annexure-A and A I of the writ petition) are arbitrary, malafide, discriminatory and without lawful authority and are of no legal effect inasmuch as per Section 12(2) of the Local Government (Union Parishad) Ordinance, 1983 a Chairman will not be removed from his office for the reasons mentioned in Section 12 of the Local Government (Union Parishad) Ordinance, 1983 unless before removing a Chairman of the Union Parishad, the Government form its opinion on the basis of an inquiry to the effect that he is guilty for which he will be removed from his office; that the impugned letter is arbitrary, malafide, violative of the principles of natural justice inasmuch as no show cause notice was issued under Section 12(2) of the Local Government (Union Parishad) Ordinance, 1983 before issuing the impugned Memo Annexure-A and AI; that if the Government accepts the proposal of the removal of the Chairman it shall record its reasons of his removal but in the instant case the impugned Memo of Annexure-A and A1 was issued without recording any reasons of removal of the petitioner from his office under Regulation 12(3) of the Union Parishad (Resignation, Suspension, Violation of Office), Regulation, 1984 and, as such, the impugned Memo of Annexure-A is violative of the Article 27 and 31 of the Constitution inasmuch as the same is malafide, arbitrary, discriminatory without lawful authority and is of no legal effect in the absence of forming any opinion of the Government as per Section 12(2) of the Local Government (Union Parishad) Ordinance, 1983 but the respondent No. 3 by his letter dated 01.09.2004 (Annexure-I) requested the Respondent No.1 to vacate the office of Chairman of No. 10 Jalalpur Union Parishad without forming its opinion as per Section 12(2).
 
5. The learned Counsel further submitted that the Ministry of Law, Justice and Parliamentary Affairs gave their opinion to reinstate Mr. Habibur Rahman Rustom to office of Chairman of No. 10 Jalalpur Union Parishad by his letter dated 29.06.2005 vide Memo No. 80 Mis-119/2005(Writ)-1836 and subsequently he has been reinstated and, as Such, the High Court Division has erred in law in discharging the Rule since Mr. Habibur Rahman Rustom was reinstated to the office of Chairman of No. 10 Jalalpur Union Parishad by notice dated 04.07.2005 vide Memo BDA/KwU/BDwc/560 issued by Upazila Nirbahi Office, Kotiadi, Kishoreganj and he has been working as Chairman of the said Union Parishad since then and, as such, the High Court Division has erred in law in discharging the Rule.
 
6. Mr. Alam also submitted that the Authority did not follow Rule 4 of the Union Parishad (Resignation, Suspension, vacation of Office) Regulation, 1984. The learned Advocate draws our attention to Section 13 of the Union Parishad Ordinance and submitted that the office of the petitioner shall be vacant if he becomes   disqualified for being such Chairman of Member under Section 7(2). He submitted that the Authority neither enquired into the charges brought against the petitioner nor the petitioner was convicted in any criminal offence involving, moral turpitude. He added that the Authority with a malafide intention and without following the laws has taken its decision against the petitioner and the Authority did not apply their mind at the time of issuance of the order.
 
7. It appears from the record that the petitioner was asked to appear at the special meeting but he failed. Accordingly, the Authorized Officer started the meeting in the absence of the petitioner and discussed the reply submitted by the petitioner but on scrutiny found the reply unsatisfactory. Thereafter, he placed in for vote and the resolution was accepted by 10 votes and no vote was cast against the resolution for removal of the petitioner. Thus, the Authorized Officer accepted the resolution of no-confidence against the petitioner. All the proceedings were performed in proper and appropriate manner and it is clear from the Annexures and  other papers that the Authority has followed the procedure prescribed by the Rules and the petitioner was   given chance to show cause and also asked to be present in the special meeting. The Authority has removed the petitioner under Rule 12(1) of the Union Parishad Chairman and Member (Resignation, Removal and Vacation of Office) Rules, 1984 in which recording of reasons is not necessary at all.
In view of the above, we find no illegality for our interference with the impugned judgment of the High Court Division.
 
Accordingly, the petition is dismissed.
 
Ed.