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2000 DIGILAW 570 (CAL)

Subodh Kumar Bari v. State of West Bengal

2000-11-22

DILIP KUMAR SETH

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Judgment 1. A resolution for removal of the Prodhan has since been challenged in this writ petition. 2. Mr. Kashi Kanta Moitra, the learned Senior Counsel had taken a ground that 3 of the members were disqualified and as such they could not participate in the meeting for removal of Prodhan. Admittedly, the said 3 members have not yet been declared disqualified. Therefore, they cannot be precluded from participating in such meeting as was held in the decision in the case of (l) Anil Singha v. The State of W.B. & Ors. (A. S. T. No. 2894 of 2000) disposed of on 14th August, 2000. 3. Mr. Moitra had assailed the resolution on 3 grounds. First, that the notice requiring the Prodhan to hold a meeting for removal of the Prodhan was never served upon the Prodhan and two other members of the Gram Panchayat. According to him, unless there is a notice requiring the Prodhan to convene a meeting for the purpose of removal of a Prodhan, it is not open to the requisitionists to convene a meeting. Unless the first notice is there the second notice fails. In the present case, in the absence of service of notice, the meeting cannot be held. Relying on Rule 7 of the West Bengal Panchayat (Gram panchayat Administration) Rules, 1981 in case all the members are not served in that event the meeting has to be adjourned. In the present case, despite non-service of notice upon two of the members the meeting was not adjourned and as such the resolution adopted in such meeting cannot be sustained in law. 4. The second point that was urged by Mr. Moitra was that the resolution that was adopted in the meeting clearly indicates the infirmity that two of the members were absent and that the said meeting could not be held. 5. The third point of Mr. Moitra was that the period of 35 days provided in Section 16 has not been complied with. In the absence of any date in the notice it is not possible to ascertain that the notice was issued on 20th June, 2000, as bas been attempted to be supported in the affidavit-in-opposition. He had contended that unless the notice is shown to have been issued within 35 days from the date of the resolution, the resolution cannot be sustained. He had contended that unless the notice is shown to have been issued within 35 days from the date of the resolution, the resolution cannot be sustained. He, further, contended that posting of notice through registered post cannot be treated to be the date of issue of the notice. Thus, it must be a date preceding 20th June, 2000 which takes the matter out of the limit of 35 days. As such the resolution cannot be sustained. 6. In elaborating his submission Mr. Moitra has pointed out that the notice can be deemed to have been served only when the same was refused or that the presumption of service could be drawn from the facts disclosed. 1n the absence of any such material the notice cannot be said to have been served. He further contends that the postal receipts have been returned on the ground that "not found". Such an endorsement does not raise any presumption of service. He has also relied on certain decisions, namely in the case of (2) Gujarat Electricity Board & Anr. v. Atmaram Sugmal Poshuni in Civil Appeal No. 3561 of 1986 decided on 31st March, 1989 reported in S.C. Labour Judgment 1988-90 at page 1354. He had also relied on a decision in the case of (3) Puwada Venkateswara Rao v. Chidamna Venkata Ramana reported in AIR 1976 SC 869 ; (4) M/s. Green View Radio Service v. Laxmibai Raneji & Another reported in AIR 1990 SC 2156 ; (5) Manoranjan Dasgupta v. Suchitra Ganguly, 1988(1) CLJ 250 . 7. The learned Counsel for the respondents on the other hand contended that the notice was issued on 20th June, 2000 and was attempted to be posted on the same day and that the postal return shows that attempt was made to serve consecutively for 7 days before the same was returned. He had also pointed out that the notice was also served through messenger and the messenger had submitted a report in terms of Rule 6 evidencing the service by affixation in presence of witnesses. It was also served in the office by affixation in similar manner on 21st June, 2000. Thus, the 35 days limitation and the question of service as taken by Mr. Moitra is to be negatived. He had also contended that there was no infirmity in holding the meeting on 25th July, 2000. It was also served in the office by affixation in similar manner on 21st June, 2000. Thus, the 35 days limitation and the question of service as taken by Mr. Moitra is to be negatived. He had also contended that there was no infirmity in holding the meeting on 25th July, 2000. In the circumstance there being no infirmity, the resolution cannot be assailed. 8. Mr. Moitra, on the other hand contended that during the period when the notice was alleged to have been served on the Prodhan, he was in a nursing home in evidence whereof he has annexed a discharge certificate from the nursing home. The learned Counsel for the respondent, however, contended that this fact having not been disclosed in the writ petition he had no opportunity to deal with the same. Be that as it may, Counsel for the respondent had pointed out certain infirmities from the records as available as well as had contended that the Prodhan had performed his duties by receiving and issuing cheques and disbursing salaries during this period. Therefore, this question cannot be accepted. 9. I have heard both the learned Counsels at length. 10. So far as the question of illness and admission in nursing home is concerned, it is immaterial for the purpose of deciding the question at hand. It is not necessary to go into such question whether the Prodhan was in the nursing home or not or whether he had issued any cheque or disbursed salaries during this period. 11. The first question that is relevant is the question of the date of notice. Admittedly, the notice does not bear any date. The original registration receipt has been produced which bears the date of 20th June, 2000. The endorsement also shows that it was presented for service from 27th June, 2000 onwards till 3rd July, 2000 and the other envelop appears to have been presented from 28th June onwards till 3rd July, 2000 and there was endorsement that the addressee was absent for 7 days on both the envelopes. Even if the notice does not bear a date the issue of the notice should be treated to be the date on which the same was issued. Even if the notice does not bear a date the issue of the notice should be treated to be the date on which the same was issued. It appears from the postal registration receipt that it was sought to be registered on 20th June, 2000 while the service in terms of Ruleo6 of 1981 rules show that it was tendered on 21st June, 2000. Thus, the notice ought to have been issued on 20th June, 2000 in the absence of any date given to it. If it is issued on 20th June and it was registered on the same day or it was attempted to be serve through messenger on the day next then it cannot be said to be an infirmity to invalidate the notice by reason of absence of any date on the notice itself. 12. Thus, if we take the notice is dated 20th June, 2000 in that event 35 days would conclude on 25th July, 2000. The resolution appears to have been adopted on 25th July, 2000. Thus, 35 days limitation as provided in Section 16 of the West Bengal Panchayat Act, 1973 has since been complied. 13. The second question that requires determination is whether the notice was served on the Prodhan. The report of the messenger has since been annexed with the affidavit-in-opposition. At the same time, the original~ have also been produced in Court. On perusal thereof it appears that an attempt was made on 21st June, 2000 to serve the Prodhan and it was reported that the Prod ban was absent in the office. Therefore, the Secretary was asked to receive the notice who declined to receive. By reason thereof the notice was served by affixation in presence of witnesses who had signed the said report. It is contended by Mr. Moitra that the Secretary has affirmed an affidavit that he was never approached. But, then this question being a disputed question of fact this Court cannot go into the same. By reason thereof the notice was served by affixation in presence of witnesses who had signed the said report. It is contended by Mr. Moitra that the Secretary has affirmed an affidavit that he was never approached. But, then this question being a disputed question of fact this Court cannot go into the same. It is a question to be considered by the person presiding over the meeting in terms of Rule 6 and if he comes to a finding one way or the other and if there are materials to come to such a finding and unless such finding appears to be perverse this Court should not interfere with the decision of the Presiding Officer with regard to return of service in terms of Rule 6. 14. Another notice was also attempted to be served on the Prodhan on the same day but he having refused it was served by affixation in presence of witnesses who had signed the same. It appears that the witnesses signed are different in these two reports. Be that as it may, this has been sought to be denied by the Prodhan by making out a case that he was admitted in the nursing home during the period. The said question is immaterial because of the fact that even if it is admitted that he was absent still then in terms of Rule 6, it could be served upon any of the male member of the house or by affixation if such member refuses to accept. Since the report refers to refusal by the Prodban and the notice was served by affixation it is not open to this Court to enter into such disputed question of fact with regard to the admission of the Prodhan in the nursing home. On similar reason it is for the Presiding Officer to consider the question in terms of Rule 6. If it is so considered and a decision is taken, in that event, unless there is perversity, this Court cannot interfere with the same, even if it is of a different view, provided there are materials to arrive at such a conclusion one way or the other. If it is so considered and a decision is taken, in that event, unless there is perversity, this Court cannot interfere with the same, even if it is of a different view, provided there are materials to arrive at such a conclusion one way or the other. In the present case, there appears to be materials in both the cases on the basis whereof a conclusion can be arrived at one way or the other and that the decision arrived at one way does not seem to be perverse. Thus, it is not possible for this Court to interfere with the decision of the Presiding Officer with regard to the service return as has been taken in the said meeting. 15. Since the question of service is by affixation and is so permitted under Rule 6 of 1981 rules, it is not necessary to discuss the decisions cited at the Bar by Mr. Moitra. Such decisions would be relevant had there been no rule provided in Rule 6 with regard to the service. There having been a specific rule provided in Rule 6, it is no more open to this Court to enter into the validity of service through registered post and to consider as to whether absence of the addressee could raise a presumption of non-service. At the same time, it appears that in the resolution itself a decision was taken with regard to the service returns and that out of 20 members 18 members including the Prodban were present. The two absented members are petitioner Nos. 2 and 3. Whether they have been served or not is not possible to ascertain from the materials produced before this Court. Be that as it may, Rule 7 requires that all members are to be served and if any one has not been served in that event, the meeting has to be adjourned. In the present case, in the resolution itself a decision having been taken that the notice was served on all the members and in the absence of any material to clearly show' that these two members were not served, it is not possible for this Court to interfere with such decision. 16. For the discussions made hereinbefore, I do not find any reason to interfere with the. resolution adopted in the meeting held on 25th July, 2000. 17. 16. For the discussions made hereinbefore, I do not find any reason to interfere with the. resolution adopted in the meeting held on 25th July, 2000. 17. In the result, this writ petition fails and is, accordingly, dismissed. There will be no order as to costs. It will be open to the prescribed authority to take appropriate steps in accordance with law at the earliest. If an urgent xerox certified copy of this. order is applied for, the same may be supplied as early as possible.