<%-- Page Title--%> Star Law Report <%-- End Page Title--%>

August 31, 2003 

People's representatives may be suspended
for misconduct

Appellate Division (Civil Jurisdiction)
The Supreme Court of Bangladesh.
Civil Petition for Leave to Apeal No 1734 of 2002.
Md Abdur Rashid
Vs
Bangladesh & Others
Before Mr. Justice Md Ruhul Amin, Mr. Justice
KM Hasan and Mr. Justice Md Fazlul Haque.
Date of Judgement: January 27, 2003.
Result: Petition dismissed.

Background
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.

The writ petition has been filed challenging the order of the bench dated July 20, 2002 suspending the petitioner from the office of Chairman of the Dewangonj Pourashava in the District of Jamalpur. It also challenged the Memo dated July 21, 2000 directing Deputy Commissioner, Jamalpur to inquire into the allegations of 10 Commissioners of the 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 had 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 terms he is entitled to discharge duties of the office. Although in the order of suspension it has been mentioned that 10 Commissioners out of 12 Commissioners of the Pourashava said to have taken resolution for his removal but in fact the same was taken by 5 Commissioners. Five other Commissioners have affirmed affidavit denying the truth of the resolution. And that meeting of the Pourashava called for disposal of the resolution taken by the Commissioners was not legal.

The High Court Division while issuing the rule stayed the order of stay stating primarily that 10 Commissioners out of 12 Commissioners of the Pourashava have passed resolution for the removal of the writ petitioner. Thereupon the authority in consideration of the said resolution as well as fact of corruption, misconduct and misappropriation of the fund of the Pourashava has passed the order of suspension. And that upon passing of the order of 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.

Deliberation
The learned Counsel for the petitioner submits that petitioner being an elected representative has a legal right to function as Chairman of the Dewangonj Pourashava for the period he has been elected. As such petitioner has not been removed from the office. 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 as well as in absence of the proper materials. 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. Lastly, it has been submitted that in a society which is making all endeavours to practice democracy at all levels through elected bodies and in order to democratise the society and its institution through the elected representative, the High Court Division seriously erred in law in vacating the order staying suspension of the petitioner.

The learned Counsel has contended that for the purpose of making an order of suspension the authority is required to form its opinion on the basis of tangible material. In support thereof he has referred to the case reported in 46 DLR (AD) 163 where 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.

In view of the materials on record the contention of the learned Counsel that there 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.

As regards the other contention that in an elected body the elected representative should be allowed to discharge his duty or perform his duty. Removal there form 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 there-with 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"

The view expressed in the aforesaid reported cases can hardly be disputed. 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. 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 inquiry report relating to allegation of corruption formed opinion for removal of the petitioner form his office from the administrative point of view. And thereupon the authority passed the order of suspension and following that also has appointed penal Chairman to perform the functions of the Pourashava.

Decision
In the background of the discussions made here in above we find no substance in the petition. Accordingly the petition is dismissed.

Mr Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr ASM Khalequzzaman, Advocate-on-Record, for the Petitioner. Mr Md Nowab Ali, Advocate-on-record for Respondent Nos 2 and 11.