JUDGMENT Satish Chandra, J. - This petition under Article 226 of the Constitution pray that the order passed by the Commissioner of Merrut on 6th October, 1967, be quashed and further the Civil Judge, Roorkee, be directed to prepare a fresh minute of the meeting of the Municipal Board in relation to the resolution of no confidence tabled against the President. 2. The petitioner was elected member of the Municipal Board, Hardwar, in 1961. , The Municipal Board consists of 21 members including the President. On 4th September, 1967, the petitioner along with respondent No. 7 presented to the District Magistrate a notice for convening a meeting of the Board to consider the motion of no confidence against the President of the Board. The District Magistrate thereupon convened the meeting of the Board for 6th October, 1967. Sri S.D.N. Sahi. Civil Judge, Roorkee, was nominated to preside over the meeting. After the commencement of the meeting the President of the Board, respondent No. 5. placed before the ' Presiding Officer a copy of an order of the , Commissioner dated 6th October, 1967, suspending the petitioner. The order purported to be under Section 40 (6) of the U.P. Municipalities Act. Thereupon, the Presiding Officer ruled that the petitioner was not entitled to participate in the proceedings of the meeting or vote at the motion of no confidence. The petitioner persisted. He made two applications protesting that he was being unlawfully prevented from participating and voting and further stating that he had sponsored the no confidence motion and he was in favour of it. The Presiding Officer was requested that his vote in favour of the no confidence motion be recorded. The Presiding Officer persisted in his ruling and required the petitioner to leave the meeting. Thereupon, the petitioner left. The motion was put to vote. Ten members, other than the petitioner, voted in favour of the motion. Since they did not constitute more than half of the total strength of the Board, the Presiding Officer declared that the motion' had been lost. 3. For the petitioner the order of the Commissioner was challenged as ultra vires the powers conferred by Section 40 of the U.P. Municipalities Act. On 6th October, 1967. the Commissioner passed two separate Orders. In one he stated: - "I have gone through the papers on record. 3. For the petitioner the order of the Commissioner was challenged as ultra vires the powers conferred by Section 40 of the U.P. Municipalities Act. On 6th October, 1967. the Commissioner passed two separate Orders. In one he stated: - "I have gone through the papers on record. A perusal of the complaint together with the report of the audit and the report of the President shows that a prima facie case of flagrant abuse of power is made out against Sri Shyam Khewaria, Member Municipal Board, Hardwar. I am convinced from the papers on record that the member has misused his powers by getting his son-in-law appointed as lecturer in the Municipal College, 1, therefore order that under Section 40 (6) of the U.P. Municipalities Act, 1916 Shri Hari Shiam Khewaria, member Municipal Board, Hardwar is placed under suspension for a period of one month from the date of this order. A show cause notice should issue calling upon the member to explain why he should not be removed from the membership of the Board. He should submit his explanation within a period of one month from the receipt of this order." The first paragraph mentioned that there was a prima facie case of flagrant abuse of power against the petitioner. This ground is mentioned in sub-sec. (3) of Section 40. On that ground a person could be removed, and, under sub-sec. (5) he could also be placed under suspension pending enquiry into the charges against him. Sub-sec. (6) of Section 40 on its terms applies only to the grounds referred to in sub-sec. (1) . It is not attracted to the grounds mentioned in sub-sec. (3) . Hence, _on the ground of flagrant abuse of power no order under sub-sec. 4(3) could be passed at all. Sub-sec. (6) contemplates a final order of punishment of suspension in lieu of removal. The second paragraph of the above order expressly states that the petitioner was suspended for one month under sub-sec. (6) . The Commissioner would have no power to Oise sub sec. (6) on the ground that a prima facie case of flagrant abuse of power had been made out, firstly, because that ground did not attract sub-sec. (6) and secondly because sub-sec. (6) contemplates an order not on a prima facie case but on a definite finding that the charge was established. (6) on the ground that a prima facie case of flagrant abuse of power had been made out, firstly, because that ground did not attract sub-sec. (6) and secondly because sub-sec. (6) contemplates an order not on a prima facie case but on a definite finding that the charge was established. From this point of view this order was ultra wires the powers possessed by the Commissioner. 4. In the second paragraph of his order the Commissioner has mentioned a different ground, namely that the petitioner has misused his powers by getting his sou-in-law appointed as lecturer in the Municipal College. This ground was supposed to be covered by clause (c) of sub-sec. (1). I am not quite sure whether an effort by a member to get his son-in-law appointed in a Municipal College would amount to acquiring or continuing to hold a share or interest in any contract by or on behalf of the Board. It appears doubtful whether by getting a relation such an appointment a member acquires a share or interest in any contract; but assuming that the charge was within clause (c) of sub-sec. (I) , the question still remains whether a final order of punishment by way of suspension could he passed under sub-sec. (6) without affording the member any opportunity of explanation or showing cause against the charge. 5. In order to resolve this controversy the scheme of Section 40 needs to be analysed. Sub-sec. (1) contemplates removal of a member on grounds mentioned in clauses (a) to (h) thereof. Sub-sec. (3) mentions some other grounds for removal. The action of removal under sub-sec. (1) could taken by the State Government in the case of a city or by the Prescribed Authority in other cases, but action under sub-sec. (3) could only be taken by state Government Sub-sec. (2) provides for an appeal against certain clauses of orders of removal. Sub-sec. (5) authorises the State Government to place a member under suspension pending an enquiry in cases where proceedings under sub-sec. (3) are being taken. Sub-sec. (4) states; "Provided that when either the State Government or the Prescribed Authority, as the case may be, proposes to take action under the foregoing provisions of this section, an opportunity of explanation shall be given to the member concerned, and when such action is taken, . the reasons therefor shall be placed on record." 6. Sub-sec. (4) states; "Provided that when either the State Government or the Prescribed Authority, as the case may be, proposes to take action under the foregoing provisions of this section, an opportunity of explanation shall be given to the member concerned, and when such action is taken, . the reasons therefor shall be placed on record." 6. This procedure has to be followed when the authority proposes to take action "under the foregoing provisions of this section". Apparently this phrase would refer to sub-secs. (1) and (3) . For the petitioner it was urged that this phrase in sub-sec. (4) would include sub-sec. (6) as well. Sub-sec. (6) reads: - "Without prejudice to any of the foregoing powers the State Government or the Prescribed Authority, as the case may be, may, on any of the ground referred to in sub-sec. (1), instead of removing the member, give him a warning or place him under suspension for a specified term not exceeding three months at a time, and any member who has been so suspended shall not, as long as the order of suspension continues to remain in force be entitled to take part in any proceedings of the Board or otherwise perform the duties of a member. "Explanation - The power of administering warning or placing a member under suspension under sub-sec. (6) may be exercised either by the State Government or the Prescribed Authority, as the case may be, while dealing with the matter originally under sub-sec. (1) or sub-sec. (3) or by the State Government on appeal under sub-sec. (2)." 7. It is apparent that sub-sec. (6) provides for an alternative punishment in lieu of removal mentioned in sub-sec. (1) . In a case where the State Government or the prescribed Authority initiates proceedings for taking action of removal against a member on any of the grounds mentioned in sub-sec. (1) it is open to it to award the lesser punishment of warning or suspension for a period not exceeding three months instead of the more severe punishment of removal. Sub-sec. (6) is designed to confer flexibility to the power of punishment. It comes into operation only at the stage of taking the decision as to the exact punishment to be awarded. It does not provide for or contemplate any different procedure carrying through the initial or early stage of the proceeding. Sub-sec. Sub-sec. (6) is designed to confer flexibility to the power of punishment. It comes into operation only at the stage of taking the decision as to the exact punishment to be awarded. It does not provide for or contemplate any different procedure carrying through the initial or early stage of the proceeding. Sub-sec. (4) lays down the procedure when a proposal to take action is made. The proposal to take action either for removal under sub-sec. (I) or for warning or suspension under sub-sec. (6) is on identical grounds and would arise on the same charge. The concerned authority may initially consider that the case was one for removal but, may after hearing the explanation and the facts decide that a lesser punishment would suffice. In such a case sub-sec. (4) would admittedly apply and an opportunity of explanation will have to be afforded to the concerned member. But it was urged for the respondents that this will not be the position in a case where the authority initially contemplates only the lesser punishment under sub-sec. (6) even though the charge may be the same. 8. The grounds upon which an action under sub-sec. (6) can be taken are all such as can be, and have to be, objectively in existence and affirmatively to be established. The principles of natural justice have always required that before a person is punished on the basis of such charges, he should be allowed to explain them, else the action could be termed as arbitrary. The Legislature could not be presumed to have conferred a power of punishment with the intention that it may be used arbitrarily. Clear and express language would be necessary before that result could be achieved. A member of a Board is elected by the citizens. He acquires a statutory right to retain the office and the powers and privileges attached to it. The electorate is entitled to see that its representative continues to perform the duties cast upon him by the statute. If the individual member was intended to be deprived of these rights, privileges and duties, without an opportunity of explanation only when the deprivation is for a short period. and not when the deprivation would be for a longer period (as in the case of removal) , the Legislature would have brought out its intention clearly and unambiguously. If the individual member was intended to be deprived of these rights, privileges and duties, without an opportunity of explanation only when the deprivation is for a short period. and not when the deprivation would be for a longer period (as in the case of removal) , the Legislature would have brought out its intention clearly and unambiguously. On principle the deprivation as a measure punishment on identical grounds should carry the same liability as to the applicable procedure in both cases, whether the deprivation be for a short or a longer duration. This principle would be adequately s. satisfied and the working of the entire Section 40 become reasonable, if the intention was that the same procedure be applicable in both the cases, namely an opportunity of explanation is afforded to the member in either case. 9. A reading of the whole Section 40 indubitably shows that sub-sec. (6) was intended merely to take away the rigidity of sub-sec. (1) in the Matter of awarding of punishment. It did not touch the other stages of the proceeding culminating in the punishment. The procedure consequent upon a proposal to take action under sub-sec. (1) was prescribed by sub-sec. (4) Action under sub-sec. (6) is also on the ;rounds mentioned in sub-sec. (1). The same procedure ought to be applicable. The Explanation makes it explicit that the power u/sub-sec. (6) is to be exercised while dealing with the matter under sub-sec. (1) . 10. It was urged that some meaning has to be attached to the phrase "under the foregoing provisions of this section". The word "foregoing" would refer only to sub-sec,. (1), (2) and (3). Sub-sec. (6) was not a foregoing provision to sub-sec. (4). This difficulty could easily be met by looking not merely at the numerical numbering of the various provisions but finding the appropriate place of each provision from the point of view of its true nature and character. In my opinion, sub-sec. (6) by providing for an alternative punishment to that mentioned in sub-sec. (1) is in truth and in substance a proviso to sub-sec. (I) . Reading it as a proviso to sub-sec. (1) it becomes one of the foregoing provisions to sub-sec. (4) . The procedure mentioned in sub-sec. (4) would consequently be applicable to a proposal to take action on the grounds mentioned in sub-sec. (1) is in truth and in substance a proviso to sub-sec. (I) . Reading it as a proviso to sub-sec. (1) it becomes one of the foregoing provisions to sub-sec. (4) . The procedure mentioned in sub-sec. (4) would consequently be applicable to a proposal to take action on the grounds mentioned in sub-sec. (1) even where the intention is to award the lesser punishment contemplated by sub-sec. (6) . -In the result, art action under sub-sec. (6) cannot validly be taken without complying with the procedure prescribed by sub-sec. (4) , namely without affording an opportunity of explanation to the concerned member. IR: the present case the Commissioner purported to take action under sub-sec. (6) without giving the petitioner any opportunity of explanation. The order was clearly ultra vires the powers of the Commissioner. Assuming, however, that the procedure prescribed by sub-sec. (4) was not attracted to action under sub-sec. (6) the result would be no different. A person, who has been elected a member of a Board, has rights and privileges attached to that office. Suspension under sub-sec. (6) deprives hint of it for the duration. He cannot even perform the duties of a member. So, an order of suspension visits important and serious consequences on him. It also deprives the electorate of their right to see that their elected representative participates in the local self-government. No doubt the statute does not provide that the authority is required to act judicially in passing the order but the consequences mentioned above along with the fact that the action can proceed upon grounds which can be and are to be objectively in existence, on materials placed before the authority, imply a duty to act judicially. Th.:: proceedings would be quasi judicial in rare. T principles of natural justice would be, Attached. An action cannot be taken Without affording a reasonable opportunity of explanation see Board of High School v. Ghanshiam Das, A.I.R. 1962 SC 1110. It is undeniably clear that an order under sub-sec. (6) is the final order, unlike sub-sec. (5) where an order of suspension can be passed as an interim measure pending conclusion of the enquiry into the charges. So an order under sub-sec. (6) cannot be passed where it is intended to hold an enquiry into certain charges. It is undeniably clear that an order under sub-sec. (6) is the final order, unlike sub-sec. (5) where an order of suspension can be passed as an interim measure pending conclusion of the enquiry into the charges. So an order under sub-sec. (6) cannot be passed where it is intended to hold an enquiry into certain charges. The order of the Commissioner quoted above stated that a show cause notice should issue calling upon the petitioner to explain why he should not be removed from the membership of the Board. So, on the same ground, namely that the petitioner had misused his powers by getting his son-in-law appointed as lecturer in Municipal College. the Commissioner proposed an action of removal. This could not be done when an order of suspension had been passed on the same ground. Section 40 does not contemplate a composite order of suspension under sub-sec. (6) as well as a proposal to take, action under sub-sec. (I) . On this ground also the impugned order was liable to be quashed. Mr. Kakkar appearing for the respondents submitted that the latter part of the order, namely directing that a show cause notice be issued, should alone be held to be ultra vires the powers of the Commissioner and set aside. A reading of the order shows that the Commissioner intended that the punishment of removal be. awarded. The same clay the Commissioner issued another order asking the petitioner to show cause under sub-sec. (4) why he should not be removed from the membership of the Board under Section 40 (1) (c) . It cannot hence be said that the Commissioner had made up his mind that the charge would be satisfied merely by awarding the lesser punishment of suspension. It cannot, therefore, be held that really and truly the Commissioner only intended to pass an order of suspension. The part of the order purporting to be under sub-sec. (6) cannot be saved on this line of reasoning. Both the orders passed by the Commissioner on 6th October,. 1967, were ultra vires, without jurisdiction and void. The condition precedent to an action under sub-sec. (4) is mandatory. Its noncompliance would render the order a nullity see Abdul Latif Nomani v. Commissioner Gorakhpur, 1967 ALJ 433 at 437. (6) cannot be saved on this line of reasoning. Both the orders passed by the Commissioner on 6th October,. 1967, were ultra vires, without jurisdiction and void. The condition precedent to an action under sub-sec. (4) is mandatory. Its noncompliance would render the order a nullity see Abdul Latif Nomani v. Commissioner Gorakhpur, 1967 ALJ 433 at 437. If the order was null and void, the consequence would be that the petitioner must be considered to be continuing the member of the Board and, therefore, entitled to participate in the meeting convened for consideration of the motion of no confidence. The action of the Presiding Officer in ruling that the petitioner was not entitled to participate or volt was illegal. The minutes prepared by him are liable to be quashed. 11. From the affidavits it is clear that the petitioner had sponsored the motion of no confidence. He was present at the meeting. He orally as well as by written applications made it clear that he wanted to vote for the motion. He implored the Presiding Officer to record his vote for the motion of no confidence. He did what he could in the matter of recording of his vote. The Presiding Officer has in the minutes mentioned that the petitioner moved two applications for recording his vote in favour of the motion and that both the applications have been kept on the file. To my mind the petitioner did record his vote though the Presiding Officer did not take it into consideration while declaring the result. If the petitioner's vote had been taken into account the motion would have secured eleven votes. That would have constituted a majority of more than half members of the Board, the total being LI. The motion would have had to be declared as carried. Under these circumstances, the submission for the respondents dint a fresh meeting of the Board be convened to consider the motion of no confidence has not impressed me. It will be an idle formality. The requirement that a member is required to record his vote at meeting of the Board has been fulfilled in this case. A meeting was convened and at that meeting the petitioner. recorded his vote by means of the applications which he filed before the Presiding Officer. It will be an idle formality. The requirement that a member is required to record his vote at meeting of the Board has been fulfilled in this case. A meeting was convened and at that meeting the petitioner. recorded his vote by means of the applications which he filed before the Presiding Officer. That somewhat novel procedure had to be adopted in view of the attitude of the Presiding Officer in attempting to debar and prevent the petitioner from exercising his right of vote. 12. In the result, the petition succeeds and is allowed. The impugned orders of the Commissioner dated 6th October, 1967, arc quashed. The minutes prepared by the Presiding Officer for the meeting of the Board, declaring that the petitioner was not entitled to participate or vote in the meeting, are set aside. The Presiding Officer, respondent No. 4, is directed to forthwith prepare a fresh minute incorporating the vote of the petitioner as having been cast in favour of the motion of no confidence and then declaring the result accordingly. The petitioner will be entitled to his costs.