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2014 DIGILAW 476 (CHH)

Amarvati v. State of Chhattisgarh

2014-12-23

PRASHANT KUMAR MISHRA

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ORDER 1. The petitioner is aggrieved by the order (Annexure-P/1) passed by the Collector, Balrampur-Ramanujganj dismissing her reference under Section 21(4) of the Panchayat Raj Adhiniyam, 1993 (henceforth 'the Adhiniyam'), which in turn was preferred challenging the resolution of the Gram Panchayat dated 12.3.2014 wherein the motion of no confidence was carried against the petitioner and she has been ousted from the office of Sarpanch of Gram Panchayat, Mahewa. 2. The concerned Gram Panchayat consists of 13 office bearers including the Sarpanch. 10 Panchas moved an application before the prescribed authority on 24.2.2014 intending to bring a motion of no confidence against the petitioner. The prescribed authority issued a notice dated 28.2.2014 (Annexure-P/5) appointing Naib Tehsildar, Wadrafnagar as Presiding Officer for convening the meeting of the Gram Panchayat for considering the motion. The meeting was convened on 12.3.2014 wherein 11 Panchas were present and all of them voted in favour of the motion. The Presiding Officer sent information to the Prescribed Authority whereupon the order (Annexure-P/2) was issued declaring that the petitioner has ceased to remain Sarpanch on and from 12.3.2014. 3. The petitioner preferred a reference under Section 21(4) of the Adhiniyam before the Collector. The Collector granted interim order in favour of the petitioner, however, by the impugned final order dated 30.7.2014, reference has been decided against the petitioner. 4. It has been urged before this Court that the Presiding Officer has violated the mandatory provisions by not conducting voting on the motion by a secret ballot; the petitioner was not noticed of the meeting, therefore, she was not allowed to participate in the proceedings of the Gram Panchayat, which is in violation of mandatory rules and principles of natural justice; the order (Annexure-P/5) appointing the Presiding Officer for the meeting does not mention the date of meeting, therefore, the entire proceeding is vitiated. 5. Learned State counsel has produced the record of the meeting maintained by the Presiding Officer. Learned counsel for respondent No.5 would submit that the petitioner had knowledge of the meeting, yet she chose not to attend, therefore, she cannot complain of procedural irregularities in the meeting or violation of principles of natural justice. 5. Learned State counsel has produced the record of the meeting maintained by the Presiding Officer. Learned counsel for respondent No.5 would submit that the petitioner had knowledge of the meeting, yet she chose not to attend, therefore, she cannot complain of procedural irregularities in the meeting or violation of principles of natural justice. He would further submit that since all the members present in the meeting voted in favour of the motion and they desired to cast their vote by show of hands, failure on the part of the Presiding Officer to use secret ballot would not be fatal. 6. I have heard learned counsel for the parties at length and perused the record. 7. The documents forming part of the writ petition and made available to this Court by the Presiding Officer would indicate that an application requesting for convening meeting of no confidence was moved on 24.2.2014 and the Prescribed Authority appointed the Presiding Officer on 28.2.2014 fixing the date of meeting of the Gram Panchayat on 12.3.2014. Thus, the meeting has been convened within 15 days from 28.2.2014 and the same is in accordance with first part of Rule 3(3) of the Chhattisgarh Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janapad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (for short 'the Rules, 1994'). Although the petitioner is raising dispute about non issuance of notice to her or other Panchas, however, the record would reveal that Secretary of the Gram Panchayat had issued a notice by circulation amongst all the members of the Gram Panchayat including the petitioner and the receipt of the said notice is signed by all 13 members of the Gram Panchayat. The petitioner's signature on the said receipt tallies with her signature available in the affidavit filed in support of the writ petition. Thus, it would clearly appear that the petitioner had notice of the meeting. There is one more document available on record demonstrating that the petitioner had notice of the meeting inasmuch as on 11.3.2014, the petitioner had made a complaint before the Prescribed Authority stating that 10 Panchas have been taken to Jharkhand, therefore, the meeting scheduled on 12.3.2014 should be conducted only after allowing abducted Panchas to meet their family members. 8. There is one more document available on record demonstrating that the petitioner had notice of the meeting inasmuch as on 11.3.2014, the petitioner had made a complaint before the Prescribed Authority stating that 10 Panchas have been taken to Jharkhand, therefore, the meeting scheduled on 12.3.2014 should be conducted only after allowing abducted Panchas to meet their family members. 8. This leaves this Court with the argument concerning failure of the Presiding Officer to use secret ballot and to conduct voting by show of hands. Rule 5 of the Rules, 1994 makes provision for conduct of meeting. The said rule is reproduced hereunder for ready reference:- “5. Conduct of meeting.-(1) The Presiding Officer shall record the attendance of the members of the Panchayat present at the meeting. (2) Omitted. (3) The Presiding Officer shall ask any of the signatories to the notice to move the motion. (4) After the motion is moved the mover shall first speak on the motion and thereafter other members may, if they so desire, speak on the motion. (5) On the conclusion of the debate on the motion, the Presiding Officer shall call the members present in the meeting one by one and shall give them ballot paper duly singed by him to indicate its authenticity, to cast his vote for or against the motion. The member who wants to vote in favour of the motion shall affix the symbol (v) and the member who wants to vote against the motion shall affix the symbol 'X'. After the member has recorded his vote, he shall fold the ballot paper to maintain secrecy and put it in the ballot box kept on the table of the Presiding Officer. (6) After the voting is over, the Presiding Officer shall take out the ballot papers from the ballot box and sort out the votes for and against the motion. If the number of votes in favour of the motion fulfills the requirement of sub-section (1) of Section 21, sub-section (1) of Section 28, or sub-section (1) of Section 35, as the case may be, the Presiding Officer shall declare the motion of no confidence is passed.” 9. If the number of votes in favour of the motion fulfills the requirement of sub-section (1) of Section 21, sub-section (1) of Section 28, or sub-section (1) of Section 35, as the case may be, the Presiding Officer shall declare the motion of no confidence is passed.” 9. A careful reading of Rule 5, quoted above, would make it explicit that after the motion is moved and the members of the Panchayat speak for or against the resolution and the debate is concluded, the Presiding Officer shall hand over the ballot paper to each member present in the meeting and thereafter the member shall put the symbol (v) if he wants to vote in favour of the motion and the member who wants to vote against the motion shall put the symbol 'X'. To maintain secrecy the member has to fold the ballot paper and put it in the ballot box and thereafter the Presiding Officer shall count the ballots. 10. Rule 7 of the Rules, 1994 obligates the Presiding Officer to keep the ballots duly signed in safe custody for a period of one year. Thus, a conjoint reading of Rules 5 & 7 make it manifest that the only method of voting on no confidence motion is by way of secret ballot. The Rules do not prescribe the voting by show of hands or in the manner chosen by the Presiding Officer according to the desires or wishes of the members present in the meeting. 11. In Automobile Products of India Employees Union Vs. Association of Engineering Workers, Bombay and others, (1990) 2 SCC 444 , the Supreme Court, while dealing with the issue regarding grant of recognition to a union, who was elected by majority of the labourers, held in paras-20, 21 & 22 thus:- “20. The facts in the present case would reveal that what was done by the Industrial Court was to permit the registration of the union as a recognised one by a method which was clearly alien to the Act. The court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. The court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union. In effect, therefore, the court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act. Not only that, but by adopting this method, the court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot. This is apart from the fact that what has to be found out is the exclusive membership of the contesting unions continuously over the specified period, the overlapping membership being ignored. 21. The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality. For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so. In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act. 22. Hence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant-Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act. The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union {Maharashtra General Kamgar Union, Bombay Vs. Mazdoor Congress, Bombay; 1983 Mah LJ 147}. In the result, the appeals fail and are dismissed. The matter is remanded to the Industrial Court for disposal according to law. It is, however, made clear that if there are any settlements which have been arrived at between the appellant-Union and the respondent-Company, they will be allowed to run their full course. Mazdoor Congress, Bombay; 1983 Mah LJ 147}. In the result, the appeals fail and are dismissed. The matter is remanded to the Industrial Court for disposal according to law. It is, however, made clear that if there are any settlements which have been arrived at between the appellant-Union and the respondent-Company, they will be allowed to run their full course. The appellant-Union will not enter into any settlement during the pendency of the present proceedings and if any settlement is to be entered into, it should be done only with the consent of the respondent-Union which has not lost its recognition as yet. There will be no order as to costs.” (Emphasis supplied) 12. In Jaenendra kumar Phoolchand Daftari Vs. Rajendra Ramsukh Mishra and others, AIR 1994 SC 586 , the Supreme Court held that when the rules provide for election of Sarpanch or Up-Sarpanch by show of hands or by secret ballot, the method of election by secret ballot is illegal unless there is demand by the members present in the meeting to proceed with election by taking recourse to voting by secret ballot. 13. The legal position emerging from the two judgments i.e. Automobile Products of India Employees' Union and Jaenendrakumar Phoolchand Daftari, quoted above, appears settled that when the rules provide for a particular method of voting and does not leave it to the discretion of the Presiding Officer, the said method of voting is mandatory and no other method of voting is permissible. When the rules provide for method of voting by show of hands or by secret ballot, in the said eventuality also, the Presiding Officer shall take recourse to show of hands unless the members present demand for taking recourse to voting by secret ballot. 14. In Meera Sahni Vs. Lieutenant Governor of Delhi and others, (2008) 9 SCC 177 , the Supreme Court, after referring its several decisions, has held that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the matter prescribed and in no other manner. 15. In the case at hand, the rules provide for only one method of voting i.e. by secret ballot without leaving anything to the discretion or desire of the Presiding Officer or the members present in the meeting. Any other method of voting appears impermissible under the rules. 15. In the case at hand, the rules provide for only one method of voting i.e. by secret ballot without leaving anything to the discretion or desire of the Presiding Officer or the members present in the meeting. Any other method of voting appears impermissible under the rules. Therefore, the Presiding Officer could not have decided that since all the members are in favour of the motion by show of hands, the secret ballot is not necessary. Since the rules do not leave it to the choice or discretion of the Presiding Officer, the procedure adopted by the Presiding Officer to conduct voting by taking recourse to show of hands is illegal. 16. For the foregoing, the writ petition is allowed. The impugned order and the consequent resolution of the Gram Panchayat declaring that the motion of no confidence against the petitioner is passed, are quashed. 17. No order as to costs.