P. K. SHYAMSUNDAR, J. ( 1 ) A question of some (sic) which is also of considerable interest arises in this writ petition in which the petitioner is one shaik ahamed who as recently as the 14th of august, 1990 was the elected president of city municipal council of davangerc, the second respondent herein, and was functioning as such till he was taken into custody on 21-12-1990 according to him in connection with communal disturbances in the city of davangere. It is common ground that he was thereafter released on bail on 16-7-1991, according to the petitioner after the (sic) effort made in that behalf, an aspect which does not concern me. But, in the meanwhile, the municipality found itself functioning without its president. Bui, even so, there was actually no (sic) because the vice-president was standing-in for the president and oftlciating in that office, us enjoined under Section 44 of the Karnataka Municipalities Act, 1964 (for short 'the act' ). ( 2 ) THE petitioner albeit being held incommunido made two applications lo the municipal council soliciting leave of absence. The first request was for the period from 22-12-1990 lo 21-1-1991 and the second request was for a further period from 21-1-1991 to 20-2-1991. It would appear whereas the request made on the first occasion was granted by the municipal council, the second request came to be declined. Not just that when the second request for extension of leave came before the council, it chose not only to decline the request but also went on to rescind the leave granted to him on the earlier occasion, giving some reasons therefor which again is not a matter that we can possibly pursue with profit in this writ petition. The position, therefore was, the petitioner was in jail and although he asked for leave, leave was not granted and he was not in a position to attend to his work as president of the municipal council or as a matter of fact even to function as a city father. The position, therefore was, the petitioner was in jail and although he asked for leave, leave was not granted and he was not in a position to attend to his work as president of the municipal council or as a matter of fact even to function as a city father. ( 3 ) IT is in this situation an order came to be passed by the deputy commissioner, chitradurga, r-t herein, in his supervisory capacity as per annexurc-g under which he proceeded to uphold the grant of leave to the petitioner on the first occasion as made by the municipal council hut saw no reason to follow suit for the period for which extension of leave was sought for. Besides taking further notice of the fact that by the date of his order the president would have been absent for a period of more than 60 days, he went on to make a further order conceived in the interest of municipal administration (sic) that the office of the president of city municipal council had become vacant and till such time as a new president was elected, the vice-president should temporarily discharge the functions of the president. The order which is in kannada admits of exception. It is as follows: after his enlargement on bail on finding his entry to the municipal council was barred by the order at Annexure-G , the petitioner promptly challenged the said order in this writ petition. Mr. Achar, learned counsel for the petitioner, tells me the writ petition was filed on the 29th april, 1991 and after he was enlarged on bail the petitioner had filed a supplemental statement to bring this to the notice of this court. ( 4 ) BE that as it may, right now the man is free. The office of the president, townmunicipal council is yet to be filled following an election to be held in that behalf ir terms of the order passed by the deputy commissioner, the petitioner now finds his former deputy functioning in his place. Needless to add that all this certainly has added grist to his grievance and therefor he assails the order of the deputy commissioner at Annexure-G holding him to be disqualified from continuing in office of the president treating the office as having become vacant and ordering taking of steps to fill it up. Needless to add that all this certainly has added grist to his grievance and therefor he assails the order of the deputy commissioner at Annexure-G holding him to be disqualified from continuing in office of the president treating the office as having become vacant and ordering taking of steps to fill it up. ( 5 ) NOW the power to fill the vacancy caused in such circumstances directly flows from Section 42 of the act. I must make it clear that the power of the authority who has passed the impugned order is not disputed- what is disputed is the step taken by the deputy commissioner to fill-up the post of the president treating it as having become vacant. Was it enjoined in law is the question asked by the petitioner's counsel, to answer which we must go to the Section itself. Sub-sections (6) and (7) of Section 42 are material and germane for our purpose. They read:" (6) every president who, for a period exceeding two months and every vicepresident who for a period exceeding one month absents himself from the municipality in such manner as to be unable to perform his duties as such president or vice-president, shall cease to be president or vice-president, unless leave so to absent himself has been granted by the municipal council. The question whether a vacancy has arisen under this sub-scction shall be decided by the deputy commissioner. "" (7) leave under sub-section (6) shall not be granted for a period exceeding six months. Whenever leave is granted to a president and the office of the vice-president is vacant, the vacancy in the office of the president shall be filled up by election by the municipal council from among the councillors within such period and in such manner as may be prescribed. If the municipal council fails to elect the president, the government may fill up the vacancy by appointment. When leave is granted to a vice-president or when the vice-president is acting for the president, the vacancy in the office of the vice-president may be filled up by election of some other councillor thereto. "inter alia reference may also be made to Section 43 (1) (a) of the act which adumberates to the functions of the president. It reads:" functions of president. "inter alia reference may also be made to Section 43 (1) (a) of the act which adumberates to the functions of the president. It reads:" functions of president. (1) subject to the Provisions of chapter xiv, it shall be the duty of the president of a municipal council to (a)preside unless prevented by reasonable cause, at all meetings of the municipal council and subject to the Provisions of the rules for the time being in force under clause (a) of sub-section (2) of Section 323, to regulate the conduct of business at such meetings. " (emphasis supplied) ( 6 ) THE facts herein are simple and not in dispute. The petitioner was taken intocustody by the c. o. d. in connection with the communal clashes at davangere in the month of december, 1990. It also transpires from the statement made by him in the writ petition that he is presently facing an indictment for an offence punishable under Section 302 IPC and he is also due to stand his trial in the court of sessions, chitradurga in S. C. No. 32/1991. It is his ease that after he was detained by the police as aforesaid, it was physically impossible for him either to attend the office of the president of the municipal council or perform the functions of that office or even to function as an ordinary municipal councillor. That can very well be understood because accused as he was with the commission of a non-bailable offence he had been held incommunicado in prison. In that situation being physically unable to move out of the four walls of the prison, he was necessarily to plead his inability to perform the functions as president of the civic body in davangere. Therefore, he made the two leave applications one of which was actually granted and later when a second application for extension of leave came to be made, the municipal council for reasons best known to it, turned turtle by not merely refusing the extension but also went on to revoke the leave granted by the earlier resolution. Therefore, he made the two leave applications one of which was actually granted and later when a second application for extension of leave came to be made, the municipal council for reasons best known to it, turned turtle by not merely refusing the extension but also went on to revoke the leave granted by the earlier resolution. The deputy commissioner as per reasons mentioned in his order at Annexure-G restored the granting of leave on the first occasion but taking note of the prayer for extension of leave on the second occasion and also being apprised of the facts that by the dale of his order the president has been physically out of office for more than 60 days, felt constrained to make the impugned order at Annexure-G treating the office of the president as having become vacant and ordering it lo be filled up by election and till such time to be held on transitory basis by the vice-president in office. ( 7 ) THE tenability of this order is seriously challenged by learned counsel sriachar appearing for the petitioner in this case, on a very short ground. He says when a man is prevented from attending or performing his duties as a president because of enforced detention by the police and his inability to secure bail for which it is said he had made or had been making relentless efforts which met with suceess only on the 16th of july, 1991 when he came lo be enlarged on bail and on top of it being conscious of the requirements under the law which permits a person to set out of office only on leave, he made that endeavour also but was rendered futile by the ascerbic altitude of the city municipal council which refused lo grant -leave. The plea putfurh by Mr. Achar is,'can 1 be dubbed as a person who has "absented himself from the office' leading lo vacancy in the office of the president. H, highlighting this aspecl of the case and pointing out that what mailers is whether the absence of the pelilioner from office was iv voluntary or was it involuntary, in othcr words whether it was thrust upon him or imposed on him. H, highlighting this aspecl of the case and pointing out that what mailers is whether the absence of the pelilioner from office was iv voluntary or was it involuntary, in othcr words whether it was thrust upon him or imposed on him. Counsel says the absence (sic) should as a result of the petitioner's volition and only in such event the pelilionct would incur disqualification under the Act, to support this (sic) he relied on the wordings in Section 43 (1) (a) of the act which says in so many words 'unless prevented by reasonable cause' the president shall preside over the meetings of the municipal council. Counsel asks that in a case like this when ihe reason for not being able to attend the office to perform the functions including that of presiding over meetings is because of his physical inability (sic) all the time he was in jail could it be said that nolwithstanding such (sic) disability the petitioner had become disqualified or had forfeited the office on account of his absence. ( 8 ) THERE is undoubted force in this contention supported as it is by a decision of the Bombay high court in bhaskar v state of maharashtra, AIR 1976 bom. 206 . That was also a case where a councillor was unable to attend the meeting of the council having been detained under m. i. s. a. because he was not able to attend the meetings, his membership of the council was revoked and his berth declared as vacant. The statutory action taken in that behalf declaring the councillor had forfeited the membership of the standing committee and the berth occupied by him in the standing committee had become vacant was challenged in a writ petilion before the Bombay high court. Their lordships after an elaborate consideration of the (sic) city Corporation Act and adverting lo an earlier decision of the Nagpur high court and other decisions of the Supreme Court, held:" the phrase 'absents himself connoles deliberation, something positive in the attitude of the person whose conduct in not being present is the subject of consideration. It cannot be equated with 'remains absent' or 'is not present' or with mere absence. It cannot be equated with 'remains absent' or 'is not present' or with mere absence. "1 must mention that seclion 36 of the city municipal Corporation Act under which action was taken to disqualify the councillor in that case is for the most part in para materia with the Provisions of Section 42 (6) of the act. The variance is only in the penultimate portion of that Section under which the councillor incurring disqualification under the city municipal Corporation Act for having absented himself from atl meetings of the standing committee did suffer (sic) further disqualification of becoming ineligible for re-election to the committee during the unexpired period of the term of the corporation. Except for this punitive clause Section 42 (6) of the act is in pari-materia with the (sic) Municipalities Act. This decision was followed with approval by a bench decision of Madhya Pradesh high court in basantilal v the district magistrate, mandsaur, AIR 1977 noc 293. Of relevance is head note 'e' which reads:" the ordinary dictionary meaning of the words 'abscnls himself indicates that the concerned person must be physically and mentally in a position to attend the meeting and his absence at the meeting must be on account of his free will, negligence, or act of commission or omission. Where a person is prevented either by law or by force and threat from attending the meeting, it cannot be said that he absented himself from attending the meeting. He must also be aware of the fact that there was a meeting and that he must be in a position physically and mentally to attend the same, if he desired to do so. If inspite of his volition and desire and effort to attend the meet ing he could not do so on account of his disability of being detained in prison under m isa, it cannot be said by any stretch of reasoning that he had choice and option to attend the meeting and failed to do so on account of his negligence, unwillingness and failure to attend the same. Where a councillor has been prevented either by force or any legal detention from attending the meeting it cannot be said that he has committed the breach of absenting himself to incur the disability resulting in the vacation of his seat in the municipal council under Section 38 (1 ). Where a councillor has been prevented either by force or any legal detention from attending the meeting it cannot be said that he has committed the breach of absenting himself to incur the disability resulting in the vacation of his seat in the municipal council under Section 38 (1 ). The detention of the petitioners under the misa or under the preventive detention act is only preventive in nature but not punitive nor can it be said to be a kind of punishment. It cannot, therefore, be said that the petitioners have by their acts of omission and commission brought upon themselves the disqualification under Section 38 (1) (b ). "the statute therein is structured on the same lines as Section 42 of the act. Their lordships in that connection referred to the cnglish cases vi/. . , bowes and partners limited v press, q. b,, vol. 1, 1894 and in re london and northern bank, chancery division, 1901 (1 ). In bowes and partners limited v press, the question for consideration was whether some miners who refused to go down into the pit although it was their duty to do so but had declined to perform that duty because there was some difference of opinion between them and the management, could be treated as having absented themselves. Lindlcy lord Justice held that it was a case of deliberate abstcnsion because the workman had contrived a pre-concerted course of action and disobeyed a lawful order to go into the mine and work the same, his lordship, therefore, said:" now having regard to the fact that this was a prc-concertcd course of action, it appears to me that the real solution of the problem presented to us is this-that the'men did 'absent themselves'; not that i attach most importance to that particular expression, but they did refuse to go to their place of work for three days in accordance with the rules and terms of their contract. The other two judges lord Justice smith and lord Justice davey concurred with lord Justice lindley and said since the workmen had deliberately disregarded a lawful order they must be treated as having absented themselves. In london and northern bank case (chancery division 1901 (1) 728) the point that arose for consideration was an article contained in the articles of association of the company which read:"" 97. In london and northern bank case (chancery division 1901 (1) 728) the point that arose for consideration was an article contained in the articles of association of the company which read:"" 97. The office of a director shall ipso facto be vacated. . . . . (e) if he absents himself from the meetings of the directors during a period of three calendar months without special leave of absence from the directors. "the question that was in issue was whether the director who had gone abroad could be treated as having absented himself in the light of the article referred to (supra ). Wright,. j. Said: " I am satisfied that in this case there was nothing which in point of law could be considered as an 'involuntary absence" on the part of the applicant. In the construction of an article like clause 97 of the articles of this bank it has been held that the expression 'absents himself means something more than the expression 'is absent. ' the two decisions highlight the fact that what is material is not physical absence but what lilts the scale in one's favour or against is why was the person absent. Did he contrive the absence himself or did it arise because of circumstances beyond his control? The emphasis is on the compulsiblc aspect of it. If a person although he desired very/much to be present and to do something but for reasons beyond his control was prevented from (sic) one cannot then say that he had 'absented himself although it is possible to say'he is absent'. This really is the core of the matter. While it is true the petitioner was physically absent from the municipal council all these months, he did not really 'absent himself. ' ( 9 ) I have also heard Mr. Chennabasuppa who wanted to get implcadcd on be half of a councillor as party-respondent, a move which was keenly (sic) by Mr. Achar, learned counsel for the petitioner who points out that under Section 10 of the Act, a municipal council can be sued or sue only through the chief officer and nobody else can possibly be allowed to have any say in cases where the municipality is being sued. This is a matter between the petitioner and the deputy commissioner. The presence of municipality is only incidental. This is a matter between the petitioner and the deputy commissioner. The presence of municipality is only incidental. Therefore, it is not necessary to compound it further by importing a councillor cither to combat or support the petitioner. The application for implcading is, therefore, rejected. ( 10 ) BUT since 1 have had the opportunity of hearing Mr. Chennabasappa on the point in issue, 1 may as well meet his argument. The point that featured very prominently in his argument was that in all the cases referred to (supra) and relied upon by the petitioner, the applicants therein had all been under the protective custody of the police (sic) under m1sa whereas in this case the man having been charged with the offence of murder, it should make all the difference in that it should amount to the petitioner 'absenting himself by his conduct. I am afraid the fact that the petitioner was held in prison on a charge of haying committed the offence of murder would not make any difference since even if he had desired to attend the meetings he could not have come out of the prison on his own volition just like those in the cases referred to (supra) who were held under misa. After all until the man is pronounced guilty of an offence and punished in due course of law, while it can be said that he is under a cloud, it does not mean that he should be penalised or punished in virtue of the (sic) status attached to him as an accused in a case of murder. One may well ask, what would be the position if he is finally acquitted by the court and exonerated with honour. Therefore, i do not think the reason for the detention suffered by the petitioner should make any difference in interpreting the acllcss provision of Section 42 of the act. ( 11 ) IN the course of his argument Mr. Chennabasappa had to agree that a plain reading provision of Section 42 (6) makes it impossible to take any action against an absenting president for a period of 60 days. !t is only the absence for further period, that becomes crucial and is likely to (sic) the toll from a (sic) office bearer. Chennabasappa had to agree that a plain reading provision of Section 42 (6) makes it impossible to take any action against an absenting president for a period of 60 days. !t is only the absence for further period, that becomes crucial and is likely to (sic) the toll from a (sic) office bearer. What is more it' that be the yard-slick adopted in measuring the gravemen of the situation, then surely it cannot be said lhat one should lake the assistance of puritanical concepts in construing the Provisions of the act. If such was the (sic), then the legislature would not have made it possible for a disqualified president to offer himself again on the very next morning as a candidate at a fresh election. As a matter of fact he could even come back as the elected president and once again function on the board. Therefore, it is quite clear that Section 42 (6) of the act would operate only where the president 'absents himself and not when 'he is just absent' for whatever reason it maybe. ( 12 ) HAVING regard to my conclusion as above, il is unnecessary to got into the proprietory or improprictory permeating the action of the municipal council refusing the leave sought for by the petitioner and later going to the length of revoking the leave earlier granted to the-petitioner, be that as it may, in the light of the above discussion having regard to myview that this is not a case in which the petitioner can be charged with the conduct of 'absenting himself within the meaning of Section 46 (2) of the Act, the declaration by the deputy commissioner healing the office of the president as having become vacant is clearly unsustainable and has lo yield. ( 13 ) IN that view of the matter, this writ petition succeeds and is allowed. The impugned order of the deputy commissioner at Annexure-G shall stand quashed. The petitioner is treated as having continued in office and will be entitled to function as president without any let or hindrance. The vice-president who is officiating in his place is directed to hand-over charge lo the petitioner who will (sic) continue to hold office as president. Rule issued and affirmed. No costs. --- *** --- .