MOLLAH EJAHAR ALI Versus GOVERNMENT OF EAST PAKISTAN

1. SAJJAD AHMAD, J. -The appellant, Mollah Ejahar Ali, who has obtained special leave to appeal was twice elected Chairman of Union Council No. 9, Khalishkhali, Police Station Tala District Khulna ; firstly for the term which began in the year 1960 and again in the year 1965 on the expiry of the previous term and beginning of the next.

2. On 6-1-1964 during his first tenure as Chairman, the appellant had issued a residential certificate under his signatures and seal, to one Kantaram Sardar who was an Indian national and had left Pakistan 15 years before, whereby he was able to dispose of his homestead in Khalishkhali and send the sale-proceeds to India.

3. The matter came to light in 1966 during the currency of the appellant's second period of Chairmanship, whereby he was served with a notice by the controlling authority under rule 4 of the East Pakistan Local Councils (Resignation and Removal of Members, Chairman and Suspensions of Chairman) Rules, 1960 (hereinafter described as the Rules) to show cause against his removal from Chairmanship on account of his "misdeed and misconduct". This was followed by a reference to the Khulna District Council for action against the appellant under Article 25 of the Basic Democracies Order of 1.959 (hereinafter described as the Order).

4. At a special meeting of the elected members of the Khulna District Council held on 11-7-1967 under rule 6 of the Rules, a unanimous resolution was adopted holding the appellant guilty of abuse of power and misconduct under sub-clause (b) of clause (3) of Article 25 of the Order. The resolution was confirmed by the Commissioner, on appeal, preferred by the appellant under clause 6 of the same Article.

5. The appellant then challenged his removal by a Writ Petition under Article 98 of the Constitution in the High Court of East Pakistan which was dismissed by "a single sentence order" which reads :-

6. "The application is rejected as there is no substance in it."

7. Leave was granted by this Court to consider the contentions that:-

8. "The alleged misconduct or abuse of power during the appellant's previous term of office did not come under the purview of section 25 (3) (b) of the Order ; and

(2) That summary dismissal of the Writ Petition which involved the interpretation of an important section of the order, could not be regarded as a proper disposal of the case."

9. To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately purfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying "there is considerable in the substance in the petition which is accepted" should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seem to have been done is inescapable. When the order of a lower Court contains no reasons, the appellate Court is deprived of the benefit of the views of the lower Court and is unable to appreciate the processes by which the decision has been reached. In this case the learned counsel naturally criticised the High Court's order for its utter barrenness but he was definitely at an advantage in presenting the various aspects of his argument with out any hindrance offered b the ineffectiveness of the impugned order.

10. The main contention urged by the learned counsel was that on the language of Article 25(3)(b) of the Order the alleged misconduct of the appellant during his previous term as Chairman was buried with the death of the former Council and cannot be revived to furnish a legal basis for his removal from the chairman ship of the present Union Council to which he was elected afresh.

11. Article 25(3) may here by quoted :-

12. "The Chairman of a Union Council, a Town Committee or a Union Committee, and an elected member of a District Council or a Divisional Council shall render himself liable to removal from the office of such Chairman or member :-

(a) if he, without reasonable excuse, absents himself from three consecutive meetings of the local council of which he is the Chairman or member ; or

(b) if he is guilty of abuse of power or of any misconduct in the discharge of his duties as Chairman or member, or has been responsible for any loss or misapplication of any money or property of any Local Council or of any local body or other local authority ; or

(c) if he becomes physically disabled from performing his functions as Chairman or member."

13. The small but important variation in the language of the two sub-clauses (a) and (b) in describing the Local Council as "the Local Council" in sub-clause (a) and "any Local Council" in sub clause (b) is significant and brings out an intended difference in meaning between the two as contemplated by the law giver. Whereas absence from three consecutive meetings from the council of which a person is a member or a Chairman renders him liable for removal from that council, the removal under clause (b) for misconduct or for misapplication of any money or property is related to the discharge of his function: as a member or chairman of any council-the word "any" being used in its wide connotation to mean any and every council. Obviously the removal for reasons of misconduct or abuse of power is a stigma on a person's personal character and if it is enacted to be a disqualification for the holding of a public office in a Union Council, it must be logically so for all Union Councils. If a member or a Chairman has committed defalcation of money in one Union Council or is guilty of some other misconduct, to disqualify him from its membership or Chairmanship, it does not make sense that the law giver considered him to be qualified to be a member or Chairman of some other council to be able to try his hand at trickery in that council without let or hindrance.

14. The second point urged by the learned counsel, that the appellant's alleged misconduct in giving a false residential certificate did not come within the mischief of clause (b) of Article 25 of the Order, as he had not acted in the discharge of his duties as a Chairman in doing that act, is entirely misconceived. The certificate was issued and signed by the appellant in his capacity as Chairman and he affixed the Chairman's seal on it in token of its authenticity and authority which helped the certificate-holder in disposing of his property. If the appellant had issued the certificate in his individual capacity without the append age of his signatures and the official seal, it would certainly not have done the trick.

15. In this view of the shatter we must dismiss this appeal which we hereby do with costs.

16. K. B. A. Appeal dismissed.