JUDGMENT

G. C. Mathur, J. - The petitioner was elected a member of the Municipal Board, Bisalpur, district Pilibhit, in November, 1964. On February 11, 1966, the District Magistrate, Pilibhit sent a letter to the petitioner, stating that the Chairman, Municipal Board, Bisalpur, had reported that action for removal of the petitioner under Sec. 40 of the U.P. Municipalities Act be taken as he had not attended the meetings of the Board held from August 28, 1965 to January 15, 1966, for a period of over three months and asking the petitioner to report as to why the Commissioner should not be moved to take action against him. The petitioner submitted a reply to this letter, explaining that he had fallen seriously ill in August, 1965, on account of some heart ailment and had been advised to take complete rest for at least six months. He appended a medical certificate to his reply. He further explained that he had sent a note to the President of the Municipal Board through Shri Tufail Ahmad, informing him that he was ill. On April 23, 1966, the petitioner received a notice from the Commissioner, Rohilkhand Division, Bareilly, stating that it had been reported to him that the petitioner had absented himself from the boards meetings held on August 28, September 8, October 20, November 26 and December 7, 1965 and January 15, 1966, i.e., for more than three consecutive months without obtaining prior sanction from the Board, and asking the petitioner to explain within 15 days from receipt of the notice as to why action under the aforesaid section should not be taken against him. The petitioner submitted his explanation, again stating that it was on account of his acute illness that he could not attend the meetings of the Board. A copy of the medical certificate was also appended to the explanation. He also explained that he had sent a note to the President in October, 1965, stating that he was ill and requesting him to put up the note before the Board. It was slated that the note was sent through Shri Tufail Ahmad, resident of Mohalla Habibullah Khan Junubi, who delivered it to the President in the presence of two members of the Board, Shri Radhey Mohan Bajpai and Shri Mahesh Chandra. At the end of the explanation, the petitioner gave the names of three persons who could substantiate his case about the sending and delivery of the note to the President and the names of two persons who could establish the fact of his illness. By order dated June 23, 1966, the Commissioner removed the petitioner from membership of the Municipal Board. In his order, the Commissioner observed that the case regarding the sending of the note about illness was an after thought and could not be accepted. This he did without examining either the petitioner or the three witnesses named by him in his explanation and, apparently, without examining the President. The Commissioner did not at all examine the petitioners allegation that he was absent on account of acute illness and has ignored this aspect, apparently being of the view that the reason for the absence was irrelevant. This order of removal is challenged by the petitioner.

2. The provisions of law, which govern the decision of this case, are set down below: -

40(1) - The State Government in the case of a city, or the Prescribed Authority in any other case, may remove a member of the Board on any of the following grounds:

(a) that he has absented himself from the meetings of the Board for more than three consecutive month or three consecutive meetings, whichever is the longer period, without obtaining sanction from the Board:

Provided that the period during which the member was in jail as an under trial, detenu or as a political prisoner, shall not be taken into account;

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"(4) - 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 mem