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2017 DIGILAW 115 (CAL)

Minati Chowdhury v. State of West Bengal

2017-01-25

HARISH TANDON

body2017
JUDGMENT : Harish Tandon, J. Two points are raised in this Writ Petition :- Firstly, whether a member of the Gram Panchayat is immuned from removal, if she failed to attend three meetings held by the Pradhan of the Gram Panchayat even if she attended one meeting conducted by the prescribed authority for removal of the Pradhan in between the aforesaid three meetings; Secondly, whether the meeting for removal of the Pradhan conducted by the prescribed authority can be construed as a meeting of the Gram Panchayat within the meaning of Section 16 of the West Bengal Panchayat Act, 1973. 2. For determination of the aforesaid two points, it would be apposite to record the facts pertaining to the removal of Pradhan except to the extent that such meeting was held on 10th December, 2014 by the prescribed authority. The undisputed facts are that ten members were elected in the Kharun Gram Panchayat by election. Four members belongs to Trinamool Congress, four from Communist Party of India (Marxist), one from Bharatiya Janata Party and one independent candidate. Four members of the said Gram Panchayat submitted a no confidence motion to the prescribed authority against the Pradhan. The prescribed authority convened a special meeting on 10th December, 2014 at the Gram Panchayat office under Section 12 of the said Act. The Presiding Officer appointed by the prescribed authority reported that the meeting could not be held due to want of quorum. The motion was dismissed and order to that effect was passed by the prescribed authority on 17th December, 2014. 3. Subsequently, the Pradhan, the petitioner herein, issued a letter dated 30th December, 2014 to the prescribed authority intimating that the respondent no. 3, the member of the Gram Panchayat, did not attend three consecutive meetings held on 14.11.2014, 9.12.2014 and 19.12.2014 without seeking any prior leave for such absence and therefore exposed herself to be removed under Section 11(1)(d) of the said Act. On the basis of the said letter a proceeding was initiated by the prescribed authority and on the first date, a direction was passed for he issuance of the notice to all interested person including the respondent no. 3 to attend the hearing fixed on 25th February, 2015. On the said date, the prescribed authority recorded the notices to have been duly served upon the parties and on the prayer of the respondent no. 3 to attend the hearing fixed on 25th February, 2015. On the said date, the prescribed authority recorded the notices to have been duly served upon the parties and on the prayer of the respondent no. 3 the time was allowed for submission of the written objection. The respondent no. 3 submitted the written objection on the next date wherein she admitted her signature on the notice dated 07.11.2014 for the meeting to be held on 14.11.2014 and denied her signature in subsequent two notices sent on 1st December, 2014 and 9th December, 2014 for the meeting to be held on 9th December, 2014 and 19th December, 2014. The said respondent further stated that she attended a 'no-confidence meeting' held in between the aforesaid three dates i.e. 10th December, 2014 and contended that the proceeding may be dismissed as the petitioner could not satisfy the ingredients of Section 11(1)(d) of the said Act. By order dated 13th March, 2015 the prescribed authority dismissed the said case holding that the requirement of the said provision has not been proved. On the conspectus of the aforesaid facts the aforementioned points are raised in this Writ Petition. 4. According to the petitioner, Section 16 of the Act provides the mechanism and methodology for holding a meeting of a Gram Panchayat, which is distinct and different from the other meetings envisaged in other provisions of the said Act. It is ardently submitted that the meeting under Section 12 of the Act for removal of the Pradhan cannot be equated with the meeting contemplated under Section 16 of the said Act. It is, thus, submitted that even if the respondent no. 3 attended the meeting held for removal of the Pradhan, it does not extend any immunity against the removal under Section 11(1)(d) of the Act. 5. On the other hand, the respondent no. 3 submits that a member can only be removed if he/she failed to attend three consecutive meetings of the Gram Panchayat without the leave of the Gram Panchayat and therefore there cannot be any distinction between the meetings held under Section 16 or under Section 12 as all such meetings are the meeting of the Gram Panchayat. 3 submits that a member can only be removed if he/she failed to attend three consecutive meetings of the Gram Panchayat without the leave of the Gram Panchayat and therefore there cannot be any distinction between the meetings held under Section 16 or under Section 12 as all such meetings are the meeting of the Gram Panchayat. It is further submitted that it is an admitted position that the said respondent attended the meeting held on 10th December, 2014 for removal of the Panchayat and therefore it would be preposterous to suggest that the petitioner did not attend three consecutive meetings without the leave of the Gram Panchayat. 6. It would be profitable to quote the relevant provision of the Act to address the points agitated before this Court, which are as under:- "11. Removal of member of Gram Panchayat.- (1) The prescribed authority may, after giving an opportunity to a member of a Gram Panchayat to show cause against the action proposed to be taken against him, by order remove him from office- (a) if after his election he is convicted by a criminal court of an offence punishable with imprisonment for a period of more than six months involving moral turpitude or involving any other cognizable offence; or] (b) if he was disqualified to be a member of the Gram Panchayat at the time of his election; or (c) if he incurs any of the disqualifications mentioned in clauses (b) to (g) of section 8 after his election as a member of the Gram Panchayat; or (d) if he is absent from three consecutive meetings of the Gram Panchayat without the leave of the Gram Panchayat; or (e) if he does not pay any arrear in respect of any tax, toll, fee or rate payable under this Act or the Bengal Panchayat Act, 1957 (West Ben. Act I of 1957), or the West Bengal Zilla Parishads Act, 1963 (West Ben. Act XXXV of 1963). Act I of 1957), or the West Bengal Zilla Parishads Act, 1963 (West Ben. Act XXXV of 1963). [(f) if he does not make and subscribe an oath or affirmation before the competent authority under section 197 within six months from the date of his election; or (g) if at the time of his election he was not a citizen of India and his name has since been deleted on that ground from the electoral roll in force pertaining to the area comprised in that Gram Panchayat, by the Electoral Registration Officer; or (h) if at the time of his election he was not a member of any of the Scheduled Castes or the Scheduled Tribes [or the Backward Classes] and the Scheduled Caste or the Scheduled Tribe [or the Backward Class] certificate produced by him at the time of nomination has since been cancelled by the competent authority:] [Provided that without prejudice to the action taken under clause (g) or clause (h), the person concerned may also be proceeded against in accordance with the provisions of the Indian Penal Code, 1860 (45 of 1860).] (2) Any member of a Gram Panchayat who is removed from his office by the prescribed authority under sub-section (1) may, within thirty days from the date of the order, appeal to such authority as the State Government may appoint in this behalf, and, thereupon, the authority so appointed may stay the operation of the order till the disposal of the appeal and may, after giving notice of the appeal to the prescribed authority, and after giving the appellant an opportunity of being heard, modify, set aside or confirm the order. (3) The order passed by such authority on such appeal shall be final. 12. Motion of no confidence or removal of Pradhan or Upa Pradhan. - (1) Subject to other provisions of this section, the Pradhan or the Upa-Pradhan of a Gram Panchayat may, at any time, be removed from his office by the majority of the existing members of the Gram Panchayat, referred to in clause (I) of sub-section (2A) of section 4, expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their decision to remove the Pradhan or the Upa-Pradhan, at a meeting specially convened for the purpose. (2) For the purpose of removal of the Pradhan or the Upa-Pradhan, one-third of the existing members referred to in sub-section (1) subject to a minimum of three members shall sign a motion in writing expressing their lack of confidence against the Pradhan or the Upa-Pradhan or recording their intention to remove the Pradhan or the Upa-Pradhan, indicating party affiliation or independent status of each of such members and either deliver the motion in person through any of the members or send or by registered post to the prescribed authority; one copy of the motion shall be delivered to the concerned office bearer either by hand or by registered post at the Gram Panchayat office and another copy shall be sent by registered post at his residential address. (3) The prescribed authority on receipt of the motion shall satisfy himself that it conforms to the requirements of sub-section (2) and on his satisfaction shall specially convene, by issue of notice, within five working days of the receipt of the motion, a meeting of the Gram Panchayat to be held in its office fixing date and hour of the meeting and sending such notice at least before clear seven days to each of its existing members for consideration of the motion and for taking a decision on it. (4) The meeting referred to in sub-section (3) shall be held on a working day which shall not be later than fifteen working days from the date of receipt of the motion by the prescribed authority and the meeting so convened shall not be adjourned or cancelled except in pursuance of an order or direction of a competent court or for any other reason beyond control of the prescribed authority. (5) Such meeting shall be presided over by an officer, as may be authorized by the prescribed authority, in the manner as may be directed by order by the State Government or as may be prescribed and the presiding officer before commencement of the meeting shall ensure that notice has been duly served to every member in the manner laid down in this behalf; quorum required such meeting shall be more than fifty per cent of the existing members referred to in sub-section (1) and the presiding officer shall not be entitled to vote at the meeting although he may advise on one or more points of law without expressing his own views. (6) If there is no consensus decision in the meeting, voting shall be held by open ballot wherein each participating member shall put his full signature or his left thumb impression to be attested by the leader, referred to in section 213A, of the same political party to which the member belongs or by the said presiding officer on the reverse side of the ballot paper. (7) The minutes of the meeting shall be written by the Secretary or in his absence, by any other official as authorized by the presiding officer. Such minutes shall record in brief names of the members present, the procedure followed, names of the members who voted for or against the motion and the decision adopted unanimously or by the majority of its existing members and shall be signed by him as well as by the presiding officer. (8) After the minutes of the meeting is signed by the presiding officer, it shall be read over to all the attending members who shall thereafter put their signatures or left thumb impressions, as the case may be, on the minutes in confirmation of the proceedings recorded. Then the presiding officer shall again put his signature on the same document after recording the names of members, if any, who have declined to sign or left earlier and thereafter he shall collect a copy of the minutes before leaving the premises. (9) (a) The Executive Assistant or in his absence the Secretary of the Gram Panchayat shall, within three working days of the meeting, forward a copy of the minutes of the meeting to the prescribed authority. (b) The presiding officer shall also submit a separate report in writing alongwith a copy of the minutes of the meeting within the aforesaid time to the prescribed authority. (10) On receipt of the minutes of the meeting and the report under sub-section (9), the prescribed authority shall, within next five working days, take such action as he may deem fit and the entire process commencing from submission of motion to the prescribed authority upto the action finally taken by him shall be completed within thirty days. (10) On receipt of the minutes of the meeting and the report under sub-section (9), the prescribed authority shall, within next five working days, take such action as he may deem fit and the entire process commencing from submission of motion to the prescribed authority upto the action finally taken by him shall be completed within thirty days. (11) If the motion is not carried by the majority of its existing members or the meeting cannot beheld for want of quorum, no notice of any subsequent motion for the removal of the same office bearer shall be taken into cognizance within a period of one year from the date appointed for such meeting. (12) Notwithstanding anything contained in sub-section (1), no meeting for removal of the Pradhan or the Upa-Pradhan under this section shall be convened within a period of one year from the date of election of the Pradhan or the Upa-Pradhan either at the first meeting following reconstitution of Gram Panchayat or for filling casual vacancy in the said office.] 16. Meetings of Gram Panchayat. - (1) Every Gram Panchayat shall hold a meeting at least once in a month [in the office of the Gram Panchayat. Such meeting shall be held on such date and at such hour as the Gram Panchayat may fix at the immediately preceding meeting]: Provided that the first meeting of a newly-constituted Gram Panchayat shall be held [on such date and at such hour and] at such place within the local limits of the Gram concerned as the prescribed authority may fix: Provided further that the Pradhan when required in writing by [one-third] of the members of the Gram Panchayat subject to a minimum of [three members] to call a meeting [shall do so fixing the date and hour of the meeting [to be held] within fifteen days after giving intimation to the prescribed authority and seven days' notice to the members of the Gram Panchayat,] failing which the members aforesaid may call a meeting [to be held] [within thirty five days] after giving intimation to the prescribed authority and seven clear days' notice to the Pradhan and other members of the Gram Panchayat. Such meeting shall be held [in the office of the Gram Panchayat on such date and at such hour] as the members calling the meeting may decide. Such meeting shall be held [in the office of the Gram Panchayat on such date and at such hour] as the members calling the meeting may decide. [The prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing duly signed by him within a week of the meeting on the proceedings of the meeting. The prescribed authority shall, on receipt of the report, take action thereon as it may deem fit.] [Provided also that if the Gram Panchayat does not fix at any meeting the date and the hour of the next meeting or if any meeting of the Gram Panchayat is not held on the date and the hour fixed at the immediately preceding meeting, the Pradhan shall call a meeting of the Gram Panchayat on such date and at such hour as he thinks fit.] (2) The Pradhan or in his absence the Upa-Pradhan shall preside at the meeting of the Gram Panchayat; and in the absence of both [or on the refusal of any or both to preside at a meeting], the members present shall elect one of them to be the President of the meeting. (3) [One-third] of the total number of members subject to a minimum of [three] members shall form a quorum for a meeting of a Gram Panchayat: Provided that in case of equality of votes the person presiding shall have a second or casting vote:] [Provided further that in case of any requisitioned meeting the person presiding shall have no second or casting vote.]" 7. From the conjoined reading of the aforesaid provision, it is seen that every Gram Panchayat should hold a meeting at least once in a month in the office of the Gram Panchayat indicating the date and the time. 2nd Proviso to sub-Section 1 of Section 16 indicates that the Pradhan is required to call a meeting requisitioned by ?rd of the members of the Gram Panchayat, subject to minimum of three members, if such requisitions are made in writing, to call a meeting fixing the date and time within fifteen days after giving intimation to the prescribed authority as well as seven day's notice to the members of the Gram Panchayat. It also contains a default clause that the failure may invite the members i.e. requisitionist to call a meeting to be held within thirty five days after giving intimation to the prescribed authority together with seven clear day's notice to the Pradhan and other members of the Gram Panchayat. Sub-Section 3 of Section 16 contains the provision relating to the quorum of the meeting of the Gram Panchayat and sub-Section 4 thereof provides that the decision of the majority would prevail. 8. Section 11(1)(d) contains the provision for removal of the member of the Gram Panchayat in case of abstention in three consecutive meetings of the Gram Panchayat without leave. The manner for removal is provided in sub-Section 2 of the said Section. 9. Section 12 of the Act is the special provision whereunder the Pradhan or Upa-Pradhan can be removed from the office by the majority of the existing members of the Gram Panchayat on express lack of confidence. The motion in writing in this regard shall be signed by ?rd of the existing members subject to minimum of three members and sent to the prescribed authority by registered post together with one copy of such motion to be delivered to concerned office bearers either by hand or by registered post at the Gram Panchayat office and another copy be sent by registered post at his residential address. Upon receiving the motion, the prescribed authority after satisfying himself that such motion is in conformity with the provisions applicable in this regard, specially convened by issuing the notice within five working days of the receipt thereof. A meeting of a Gram Panchayat shall be held in its office indicating the date and hours and send a notice given seven clear days to each of the existing members of the Gram Panchayat for consideration of motion and the decision to be taken thereupon. 10. The preface to Section 12 begins with "subject to the other provisions of the sections" meaning thereby that it has not independent existence. Such section is to be interpreted not only in the line of the preamble of the statute but also with the aim and object of the Act, which can be legitimately interfered from the inbuilt structure of the statute. It is one of the cardinal propositions of law that the scheme and object of the statute must be sustained rather than defeated. It is one of the cardinal propositions of law that the scheme and object of the statute must be sustained rather than defeated. The Pradhan is an elected post and has to accept the majority decision adopted in democratic process for his removal. In democratic set up the voices of the majority should be honoured. 11. On the meticulous reading of the aforesaid provisions, this Court does not find any distinction between a notice contemplated under Section 16 or under Section 12 of the said Act. The language employed under sub-Section 3 of Section 12 conveys clear, unambiguous and express intention that the prescribed authority convened such meeting of a Gram Panchayat. It would be preposterous to suggest that the expressions "meeting of a Gram Panchayat" is relatable or restricted to Section 16 of the Act because of the head note of the said section. The meeting of the Gram Panchayat cannot be restricted under the said Section when the legislature have further incorporated the other provisions containing an express words of similar and identical nature. Such being the intention of the legislature, sub-Section 3 of Section 12 could have been worded differently. There was no occasion to interpret the similar expression in sub-Section 3 of Section 12 of the Act in so must so that the meeting convened by the prescribed authority shall not be deemed to be a meeting of the Gram Panchayat. The said provision exposes the clear legislative intent that the meeting convened by the prescribed authority under Section 12 for removal of the Pradhan is the meeting of a Gram Panchayat. This Court, therefore, does not find that the contention of the petitioner that the meeting for removal of the Pradhan cannot be brought within the ambit of the meeting of a Gram Panchayat. 12. On the question of the decision of the prescribed authority in rejecting the application of the writ petitioner for removal of the respondent no. 3 under Section 11(1)(d) of the Act, it is apparent therefrom that the removal can only be sought for if the member is absent in three consecutive meetings of a Gram Panchayat without any leave. The ordinary meaning of the word "consecutive" as given in the Oxford English Dictionary is "following continuously", "in sequence" "expressing consequence or result", "denoted intervals of same kind occurring in succession between two parts or voices". The ordinary meaning of the word "consecutive" as given in the Oxford English Dictionary is "following continuously", "in sequence" "expressing consequence or result", "denoted intervals of same kind occurring in succession between two parts or voices". In view of the express word "consecutive" being used in Section 11(1)(d) of the At and such word having not defined expressly in the said Act, there is no difficulty in assigning the plain and grammatical meaning of the same. The said word is preceded by the word "three" and followed by the expressions "meetings of Gram Panchayat". It is, thus, apparent that if a member fails to attend three meetings immediately following each other of Gram Panchayat, he or she shall expose himself/herself liable to be removed as a member of the Gram Panchayat. 13. It would be reading in the Section if any other interpretation is given to the aforesaid provision as the same would be opposed to the intention of the legislature. Without entering into the controversies raised by the respondent no. 3 that the notice for the first meeting was served upon her and the notices of the alleged two meetings were not served, admittedly the respondent no. 3 attended the meeting held on 10th December, 2014 convened in between the alleged three meetings and therefore it destroys the effect of consecutiveness being the requirement of the aforesaid provision. 14. In view of my findings on the meetings of the Gram Panchayat to the effect that the meeting convened under Section 12 of the Act is also a meeting of a Gram Panchayat, the attendance of the private respondent to such meeting absolves herself from removal as member of the Gram Panchayat under Section 11(1)(d) of the Act. 15. This Court, therefore, does not find any grounds warranting the interference with the order of the prescribed authority. 16. The Writ Petition, is dismissed. 17. However, There shall be no order as to costs. Petition dismissed.