IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 12257 of 2012

IN THE MATTEROF:

An  application  under  Article  102  of  the Constitution  of  the  People s  Republic  of Bangladesh.

                          And

IN THE MATTER OF:

Mohammad Shahjahan

& & & & &.Peti & tioner

               Versus

Bangladesh  represented  by  the  Secretary, Ministry  of  Local  Government,  Rural Development and Co-operatives, Government of the People s Republic of Bangladesh, Bangladesh Secretariat, Ramna, Dhaka and others

& & & &R &espondents

Mr. Md. Idrisur Rahman, Advocate

& &.For the petitioner

Mr. Tufailur Rahman with

Mr.Abdullah Al Baki, Advocate

& &For the Respondent No.6

Mr. Motahar Hossain, D.A.G

& &.For the Respondent No.1.

         Heard on: 03.11.2013

       Judgment on: 20.11.2013

Present:

Mr. Justice M. Moazzam Husain                 And

Mr. Justice Md. Badruzzaman

M. Moazzam Husain, J

This  Rule  was  issued  calling  in  question  an  order  vide  Memo         No.Øq¡p¢h/CE¢f-34/70/07(Awn-2)/510  dated  30.08.2012  issued  by  the

Respondent No.1 under the signature of Respondent No.2 whereby this petitioner,  a  Union  Parishad  Chairman,   was  placed  under  temporary suspension following a no-confidence motion passed against him on the charge specially of corruption. 

Facts, in brief, are that the petitioner is the Chairman, Borikandi Union Parishad, Nabinagar, Brahmonbaria, elected for a term from 2011 to 2015. He took over office as chairman following publication of the list of elected chairmen/members of Union Parishads in the official gazette on 19.06.2011. While he was functioning as such all the twelve members of the Union Parishad brought a no-confidence motion against him on allegations of gross misconduct including misappropriation of public fund by abuse of office.  The no-confidence motion was addressed to the local Upazila Nirbahi Officer, (hereinafter referred to as the UNO ) as per law. The UNO having received the same by his Memo No. 182 dated 04.03.2012 appointed a one-member inquiry committee comprising of Upazilla Livestock Officer to inquire into the matter and submit report. The inquiry officer accordingly issued a notice (Annex-C) on 11.03.2012 along with a copy of the said no- confidence motion asking the petitioner to show cause within 22.03.2012. Having received the show-cause notice the petitioner submitted in writing a reply (Annex-D) on 22.03.2012 denying all the allegations made therein.

The inquiry officer, however, was not satisfied with the reply submitted by this petitioner. He addressed the Chairman another notice on 22.3.2012 (Annex-E) saying that the reply given by him was not satisfactory and asked him to be present at the venue of local-inquiry (mentioned therein) to be held on dates fixed with preparations to meet charges against him. The local inquiry was accordingly held on the dates fixed. On inquiry a number of allegations were found proved. Thereafter, a meeting of the Parishad was held on 16.5.2012 in which the no-confidence motion was put to vote. And all the twelve members of the Parishad voted in favour of the motion thus the motion was finally carried through against the petitioner by 12/1 votes.

The inquiry officer by his office Memo dated 23.5.2012 submitted the report to the Respondent No.4 (UNO) who in his turn forwarded the report to the Respondent No.3 (DC, Brahmonbaria).  The Deputy Commissioner, by his office Memo dated 05.7.2012 forwarded the report to the Respondent No.1 with his opinion that allegations of corruption and misconduct under section 34(kha) and (gha) were found proved against the chairman and he was removable from his office. The Government having received the papers connected with no-confidence motion issued the order placing the chairman under temporary suspension under the signature of a Deputy Secretary (LGRD) which is under challenge before us. 

Mr. Idrisur Rahman, learned Advocate, appearing for the petitioner submits that the Government has no authority to suspend the petitioner under section 34(4) of the Local Government (Union Parishad) Act, 2009. He did not, however, explain how the Government is so powerless and how the petitioner would have been benefited by other orders that might be passed against him. He next submits that in issuing the impugned order of suspension the authority violated the principle of natural justice inasmuch as he was not allowed right to defense enough for the gravity of the allegations. His final contention is that the impugned order is tainted with mala fide issued at the behest of quarters inimically disposed to the petitioner. We have closely examined the records. We find nothing therein which might be construed to mean that the petitioner has been deprived of his right to be heard. Rather the records show otherwise. Two show-cause notices were issued to the petitioner on two phases of inquiry and the petitioner, amongst other things, responded the queries by submitting written-reply. More so, he did never raise objections to the inquiry process. So far as mala fide is concerned, it is not a case merely to be made but must of necessity be made out which is sadly lacking.

Here is a case in which a Chairman of a Union Parishad has been placed under temporary suspension by the Government following a no- confidence motion passed against him and he is still moving under the

shadow of his office with his designation as chairman under temporary suspension .

Reverting back to law, it appears that section 34 and 39 of the Local Government (Union Parishad) Act, 2009, provide for procedures to be followed for removal of chairman/members of Union Parishad through disciplinary proceedings and possible actions to be taken during and at the conclusion of the proceedings. 

Section 34 of the Local Government (Union Parishad) Act, 2009 reads as follows:

• (1)  !h !¶ !Π Kvb cwil ! i  Pqvig¨vb ev m !m¨i wei × !

Dc-aviv (4) G ewY©Z Aciv !a Acmvi !Yi Rb¨ Kvh©µg Avi¤¢ Kiv nBqv !Q A_ev Zvnvi wei × ! d`R vix gvgjvq Awf !hvMcÎ

Av vjZ KZ© ‑K M ‑nxZ nBqv !Q A_ev Aciva Av vjZ KZ ‑©K

Avg !j  bIqv nBqv !Q,  mB !¶ !Î wbav©wiZ KZ ‑©c !¶i g !Z

 !Pqvig¨vb A_ev m m¨ KZ ‑©K ¶gZv cÖ !qvM cwil ! i ¯^v !_©i cwicax A_ev cÖkvmvwbK  ‑wó !Kv !Y mgxPxb bv nB !j, miKvi

wjwLZ Av ! !ki gva¨ !g  Pqvig¨vb A_ev m m¨ !K mvgwqKfv !e

eiLv¯ Kwi !Z cvwi !e|

(2)         Dc-aviv (1) Gi Aax !b mvgwqKfv !e eiLv !¯ i Av ! k

cÖ vb Kiv nB !j Av ! k cÖvwßi 3 (wZb) w !bi g !a¨ mswk ó

Pqvig¨vb aviv 33 Gi weavbg !Z wbev©wPZ c¨v !bj  Pqvig¨v !bi

wbKU vwqZ¡ n¯ va i Kwi !eb Ges D³ c¨v !bj  Pqvig¨vb mvgwqK eiLv¯ K &Z  Pqvig¨v !bi wei × !AvbxZ Kvh©µg  kl bv

nIqv ch©a A_ev  Pqvig¨vb AcmvwiZ nB !j Zvnvi ¯ j !bZyb

Pqvig¨vb wbev©wPZ bv nIqv ch©a vwqZ¡ cvjb Kwi !eb|

(3)               Dc-aviv (1) Gi Aax !b cwil ! i  Kvb m m¨ !K mvgwqKfv !e eiLv !¯ i Av ! k cÖ vb Kiv nB !j D³ m !m¨i

wei × !AvbxZ Kvh©µg  kl bv nIqv ch©a A_ev D³ m m¨ AcmvwiZ nB !j Zvnvi ¯ j !bZyb m m¨ wbev©wPZ bv nIqv ch©a cwil ! i wm×va µ !g Aci GKRb m m¨ D³ vwqZ¡ cvjb

Kwi !eb|

(4)           Pqvig¨vb ev m m¨ Zvnvi ¯^xq c nB !Z AcmviY !hvM¨

nB !eb, hw , wZwbÑ

(K)   hyw³ m½Z KviY e¨wZ !i !K cwil ! i ci ci wZbwU mfvq Abycw¯ Z _v !Kb;

(L)   cwil  ev iv !ó«i ¯^v !_©i nvwbKi  Kvb Kvh©Kjv !c RwoZ

_v !Kb, A_ev ybx©wZ ev Am vPiY ev ÆbwZK öjbRwbZ  Kvb Aciv !a   vlx mve¨¯ nBqv ÛcÖvß nBqv _v !Kb;

(M) Zvnvi vwqZ¡ cvjb Kwi !Z A¯^xKvi K !ib A_ev kvixwiK ev gvbwmK Amvg !_©¨i Kvi !Y vwqZ¡ cvj !b A¶g nb;

(N)   Am vPiY ev ¶gZvi Ace¨env !ii   v !l   vlx nb A_ev cwil ! i  Kvb A_© ev m¤úwËi  Kvb ¶wZ mvab ev Dnvi AvZ¥mv !Zi ev AccÖ !qv !Mi Rb¨ vqx nb;

(O)   GB AvB !bi aviv 26 (2) Abyhvqx wbev©P !bi A !hvM¨ wQ !jb ewjqv wbev©P !bi ci hw cÖgvwYZ nq;

(P)    evwl©K 12 (evi) wU gvwmK mfvi ¯ j !b~b¨Zg 9 (bq) wU mfv MÖnY !hvM¨ KviY e¨ZxZ Abyôvb Kwi !Z e¨_© nb;

(Q)   wbev©Pbx e¨ !qi wnmve vwLj bv K !ib wKsev vwLjK &Z wnmv !e AmZ¨ Z_¨ cÖ vb K !ib; A_ev

(R)   webv AbygwZ !Z   k Z¨vM K !ib A_ev AbygwZµ !g   k

Z¨v !Mi ci  mLv !b Abby !gvw Zfv !e Ae¯ vb K !ib|

e¨vL¨vt GB Dc-avivq ÔAm vPiYÕ ewj !Z ¶gZvi Ace¨venvi, KZ© !e¨ Ae !njv, ybx©wZ, ¯^RbcÖxwZ I B QvK &Z KzkvmbI eySvB !e|

(5)      miKvi ev miKvi KZ ‑©K wbav©wiZ KZ ‑©c¶, miKvwi  M !R !U

Av ! k Øviv, Dc-aviv (4) G Dwj wLZ GK ev GKvwaK Kvi !Y

Pqvig¨vb ev m m¨ !K AcmviY Kwi !Z cvwi !et

Z !e kZ© _v !K  h, Acmvi !Yi wm×va P~ova Kwievi

c~ !e© wewa  gvZv !eK Z a Kwi !Z nB !e I Awfhy³ !K AvZ¥c¶ mg_© !bi m !yhvM w !Z nB !e|

(6)         Kvb  Pqvig¨vb ev m m¨ Gi Acmvi !Yi cÖ¯ ve, miKvi ev miKvi KZ ‑©K wbav©wiZ KZ ‑©c¶ KZ ‑K ©Aby !gv b jv !fi ci wZwb Zvr¶wYfv !e AcmvwiZ nB !eb|

(7)         cwil ! i  Kvb  Pqvig¨vb ev m m¨ !K Dc-aviv (5) Abyhvqx Zvnvi c nB !Z AcmviY Kiv nB !j wZwb miKvi KZ ‑©K wbav©wiZ KZ ‑©c !¶i wbKU D³ Av ! !ki ZvwiL nB !Z 30 (wÎk)

w !bi g !a¨ Avwcj Kwi !Z cvwi !eb Ges Avwcj KZ ‑©c¶ D³ AvwcjwU wb®úwË bv nIqv ch©a AcmviY Av ! kwU ¯ wMZ ivwL !Z cvwi !eb Ges AvwcjKvix !K e³ e¨ cÖ v !bi m !yhvM v !bi ci

D³ Av ! kwU cwieZ©b, evwZj ev envj ivwL !Z cvwi !eb|

(8)      Avwcj KZ ‑©c¶ KZ ‑©K Dc-aviv (7) Gi Aaxb cÖ Ë Av ! k P~ova ewjqv MY¨ nB !e|

(9)      GB AvB !bi Ab¨vb¨ weav !b hvnv wKQyB _vKzK bv  Kb, GB aviv Abyhvqx AcmvwiZ  Kvb e¨w³  Kvb c ! mswk ó cwil ! i Kvh©Kv !ji Aewkó  gqv ! i Rb¨ wbev©wPZ nBevi  hvM¨ nB !eb bv|

Section 39 of the Act reads as follows:

•              (1) GB avivi weavb mv !c !¶ cwil ! i  Pqvig¨vb, m m¨ ev

cwil ! i Dci mywbw ©ó Awf !hv !M Abv¯ v cÖ¯ ve Avbqb Kiv

hvB !e|

(2)   Dc-aviv (1) Abyhvqx Abv¯ v cÖ¯ ve cwil ! i msL¨vMwiô

m !m¨i ¯^v¶ !i wjwLZfv !e Dc !Rjv wbev©nx Awdmv !ii wbKU

cwil ! i  h  Kvb GKRb m m¨ e¨w³ MZfv !e vwLj Kwi !eb|

(3)  Abv¯ v cÖ¯ ve cÖvwßi ci Dc !Rjv wbev©nx Awdmvi 10 ( k) Kvh©w e !mi g !a¨ GKRb Kg©KZv© wb !qvM Kwi !eb Ges D³

Kg©KZv© Awf !hvMmg ! ~ni wel !q e³ e¨ cÖ v !bi Rb¨ 10 ( k)

Kvh©w e !mi mgq cÖ vb Kwiqv Awfhy³  Pqvig¨vb ev m m¨ !K

KviY kv© !bvi  bvwUk wb !eb|

(4)  Reve m !a vlRbK we !ewPZ bv nB !j Dc-aviv (3) Abyhvqx

wbhy³ Kg©KZv© Reve cÖvwßi AbwaK 30 (wÎk) Kvh©w e !mi g !a¨

Abv¯ v cÖ¯ v !e  h mKj Awf !hv !Mi eY©bv Kiv n !q !Q,  m mKj

Awf !hvM Z a Kwi !eb|

(5)    Z !a Awf !hv !Mi mZ¨Zv cÖgvwYZ nB !j Dc-aviv (3)

Abyhvqx wbh³ yKg©KZv© AbwaK 15 (c !bi) Kvh©w e !mi g !a¨

Awfhy³  Pqvig¨vb ev m m¨mn mswk ó mKj wbev©wPZ m !m¨i wbKU mfvi  bvwUk  cÖiY wbwðZKiYc~e©K cwil ! i we !kl mfv

Avnevb Kwi !eb|

(6)        !Pqvig¨v !bi wei × ! Abv¯ v cÖ¯ v !ei  ¶ !Î c¨v !bj

Pqvig¨vb (µgvbymv !i) Ges  Kvb m !m¨i wei × !Abv¯ v cÖ¯

v !ei  ¶ !Î cwil ! i  Pqvig¨vb mfvq mfvcwZZ¡ Kwi !ebt

Z !e kZ© _v !K  h,  Pqvig¨vb ev c¨v !bj  Pqvig¨v !bi

Abycw¯ wZ !Z Dcw¯ Z m m¨M !Yi g !a¨ GKRb m m¨ !K

HK¨g !Zi wfwË !Z mfvcwZ wbev©wPZ Kiv hvB !e|

(7)     Dc-aviv (3) Abyhvqx wbhy³ Kg©KZv© mfvq GKRb ch© !e¶K wnmv !e Dcw¯ Z _vwK !eb|

(8)     Dc-aviv (1) Gi D !Ï !k¨ AvûZ mfvwU wbqa¿Y ewnf~©Z  Kvb

KviY Qvov ¯ wMZ Kiv hvB !e bv Ges  gvU wbev©wPZ m m¨ msL¨vi

 yB-Z ‑Zxqvsk m m¨ mga^ !q mfvi  Kvivg MwVZ nB !e|

(9)  mfv ïi nBevi wZb N :Uvi g !a¨ Db¥³ Av !jvPbvi gva¨ !g

wm×va MÖnY m¤¢e bv nB !j Abv¯ v cÖ¯ vewUi Dci  Mvcb e¨vj !Ui

gva¨ !g  fvU MÖnY Kwi !Z nB !e|

(10)   mfvi mfvcwZ Abv¯ v cÖ¯ v !ei c !¶ ev wec !¶  Kvb cÖKvk¨ gZvgZ cÖKvk Kwi !eb bv Z !e wZwb e¨vj !Ui gva¨ !g Dc-

aviv (9) Abyhvqx  fvU cÖ vb Kwi !Z cvwi !eb wKa y wZwb wbY©vqK ev wØZxq  fvU w !Z cvwi !eb bv|

(11)  Abv¯ v cÖ¯ vewU Kgc !¶ 9 (bq) Rb m m¨ KZ ‑©K  fv !U

M ‑nxZ nB !Z nB !e|

(12) Dc-aviv (3) Abyhvqx wbhy³ Kg©KZv© mfv  kl nBevi ci

Abv¯ v cÖ¯ v !ei Kwc, e¨vjU  ccvi,  fv !Ui djvdjmn mfvi Kvh©weeiYx cÖ¯ yZ Kwiqv Avbylw½K KvMRcÎmn miKv !ii wbKU

cÖiY Kwi !eb|

(13)  miKvi, Dchy³ we !ePbv Kwi !j, Abv¯ v cÖ¯ ve Aby !gv b

A_ev Abby !gv b Kwi !e|

(14)  Abv¯ vcÖ¯ vewU cÖ !qvRbxq msL¨K  fv !U M ‑nxZ bv nB !j

A_ev  Kviv !gi Afv !e mfv AbywôZ bv nB !j D³ Zvwi !Li ci

6 (Qq) gvm AwZµva bv nB !j mswk ó  Pqvig¨vb ev m !m¨i

wei × !Abyi~c  Kvb Abv¯ v cÖ¯ ve Avbqb Kiv hvB !e bv|

(15) cwil ! i  Pqvig¨vb ev  Kvb m !m¨i vwqZ¡fvi MÖn !Yi 6

(Qq) gv !mi g !a¨ Zvnvi 6 (Qq) gv !mi g !a¨ Zvnvi wei × !

Abv¯ v cÖ¯ ve Avbqb Kiv hvB !e bv|

A plain reading of the provisions of law laid down in the above two sections suggests that between the two, section 34 is more comprehensive and provides a self-contained scheme of disciplinary actions against chairman/member(s) of Union Parishad including initiation of proceedings on grounds specified therein, temporary suspension during proceedings, forwarding proposal for removal, approval or no-approval of the proposal by the government, and finally privilege of appeal against order of removal, if any, published in the official gazette. 

Likewise procedure laid down under section 39 also leads to removal of the chairman/member(s) from office, but by democratic process. Under this section provisions are laid providing removal through no-confidence motion passed by a certain number of Members in Parishad. Section 39 provides how to bring no-confidence motion on specific allegations; procedure of inquiry; motion put to vote in Parishad and finally forwarding the same to the government for approval, if passed by requisite

number of votes. Law, however, empowers Government to accord or not to accord approval to the no-confidence motion sent to it. Although section 39 does not say anything of the government s power beyond approval or no-approval it is fairly deducible from the scheme of law contained in sections 34 and 39 that once approval is given to the no-confidence motion by the government the office of the outvoted chairman/member stands vacated. What is left thereafter for the government is to formally remove the concerned chairman/member from office by an order published in the official gazette.

In the scheme of sections 34 and 39 there is no scope for a chairman or member removed from office pursuant to proceedings under section 39 to seek relief in appeal. The appellate forum created under sub-section (7) of section 34, is exclusively meant for chairman/member against whom proceedings under section 34 is taken and is removed by order published in the official gazette as required under sub-section (5) of section 34.

Section 34(1) provides for power to place an indicted chairman/member under temporary suspension during pendency of the proceedings, not after conclusion of proceedings. Suspension literally means- the act of debarring for a time from a function or privilege . It means temporary deprivation of one s office or position. The suspended officer does not cease to be public servant; he is only prevented from discharging the duties of his office for the time being. A concluded proceeding logically and indeed is followed by a final order, ie, either order of discharge or any order awarding suitable punishment.

 This was a case for the government either to approve or not to approve the no-confidence motion sent by the inquiry officer through the Deputy Commissioner and, if approved, to remove the chairman by an order published in official gazette. Nothing of the kind was done. The government instead, placed the chairman under temporary suspension which is plainly incompatible with the stage of the proceedings and is grossly perverse.

The impugned order of temporary suspension has left an otherwise decided matter totally undecided. The issue might have been settled once for all by way of approval or no-approval to the no-confidence motion. But things were set to linger years together by an apparently wrong order passed for reasons yet not known.

Mr. Motahar Hossain, learned DAG, submits that the petitioner was removed from his office by vote of no-confidence on specific charges of corruption and the motion was passed by 12/1 votes that means by all the members of his Parishad. Such a chairman, he insisted, should not be re- instated in office on mere technical defect in the order.   Mr. Tufailur Rahman, learned Advocate, appearing for added Respondent No.6, found it difficult to defend the order of temporary suspension in the peculiar facts but adopted the argument of the DAG that it is in the public interest that the petitioner should not be restored to office.

The allegations are grave. But the  gravity of offence cannot justify an order not only defiant of law but also deterrent to progress of democratic practices sought to be established by the legislature. The order of temporary suspensions passed where it is plainly unwarranted by law whereas not explicable upon any proposition of innocence smacks of malice. The order, in the sense, is vitiated by malice in law. It seems to us to be an eminently fit case where interference is called for.

 To sum up:

1. Sections 34 and 39 of the Local Government (Union Parishad) Act, 2009, provide for two separate but parallel procedures for removal of chairman or member(s) of the Union Parishad. Either of the proceedings may be resorted to for the purpose.
2. Since Parshad is a democratic institution ordinarily no-confidence proceedings should get preference over ordinary disciplinary proceedings so that democratic values can take roots at all levels of the society.

3. Although the office of the indicted chairman/member stands vacated with approval given by the government to the no- confidence motion the vacancy should be given formal shape by an order of removal published in official gazette. This will, however, not entitle the chairman/member removed under section 39 to the right of appeal provided under sub-section (7) of section 34.
4. The chairman/member against whom no-confidence proceedings is initiated as per section 39 cannot be deprived of his/her right to vote on no-confidence motion . 

For what we have stated hereinabove, we find merit in this rule. At the same time, we do not think that relief can be given absolutely in terms of the rule without frustrating the result of otherwise valid proceedings. Fitness of things, therefore, requires that the impugned order of temporary suspension be declared void and the case be sent back to Respondent No.1 with necessary directions to cure the defects.

In the result, the impugned Memo of temporary suspension is declared void and ineffective and the Respondent No.1 is directed to pass appropriate orders as required by section 39(13) of the Local Government (Union Parishad) Act, 2009, on the no-confidence motion received by it and dispose of the matter in accordance with law within thirty days from date of receipt of this judgment. 

This rule is thus disposed of with the aforesaid direction. No order as

to cost.

 Order of stay granted earlier is hereby vacated. Communicate copies of this judgment at once.

Md. Badruzzaman, J

I agree