Samjad Sekh vs The State Of West Bengal & Ors
2021 Latest Caselaw 3521 Cal

01.07.2021
 SL No. 1
Court No. 24
 d.p/P.M.
                               WPA 10842 of 2021

                                  Samjad Sekh
                                       Vs
                         The State of West Bengal & Ors.
                             (Via Video Conference)

                           Mr. U.A. Dewan,
                           Mr. A. Dewan,
                           Mr. Pritam Majumdar
                                                   ... for the petitioner

                           Mr. Sk. MD Galib
                                        ... for the State.


                     The petitioner is the Upa Pradhan of Sekhalipur

               Gram Panchayat. The notice for her removal signed by 12

               members was submitted by the requisitionists before the

               Prescribed Authority on 4th May, 2021. The Panchayet has

               16 elected members out of which one expired.

                     It appears from records that 12 members of the Gram

               Panchayet has signed and expressed their no confidence

               and sought for removal of the petitioner from the post of

               Upa Pradhan of the Gram Panchayet. The party affiliation of

               the requisitionists and the reasons for removal of the Upa

               Pradhan were mentioned in the notice of motion.

                     On receipt of the aforesaid notice of motion the

               Prescribed Authority issued notice on 5th May, 2021 to all

               the aforesaid 12 members to remain personally present

               before the Prescribed Authority on 6th May, 2021 for

               examination of genuineness of their signatures in the

               notice.
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       On being satisfied that the signatures in the notice of

motion were genuine, a notice of meeting on motion for

removal of the Upa Pradhan in terms of Rule 5b (2) of the

West Bengal Panchayet (Constitution) Rules 1975 as

amended was issued. The date of the meeting was fixed on

18.05.2021 and the same was intimated to the petitioner by

a notice of meeting issued by the Prescribed Authority and

the Block Development Officer on 7th May, 2021.

       By an order dated 15th May 2021 issued by the

Prescribed Authority and the Block Development Officer, the

no confidence motion which was scheduled on 18th May,

2021 stood adjourned, in view of the Government Order

dated 15th May, 2021 by which all Government offices was

directed to remain closed from 6 A.M. Sunday of 16th May,

2021    to    6P.M.       Sunday   30th    May,    2021   and    all

administrative, academic, entertainment, political, cultural,

religious    gatherings,    grouping      and   congregations   was

prohibited to combat the spread of Covid 19 pandemic.

       By a further notice dated 24th June, 2021, the

Prescribed Authority intimated the petitioner that the re-

scheduled date for holding the meeting for removal of the

Upa-Pradhan is 2nd July, 2021.

       The petitioner is aggrieved by the action taken by the

Prescribed Authority in acting in response to the notice

issued by the requisitionist members on the ground that the

same is tainted with stigma. There are certain allegations

mentioned in the notice seeking the removal of the
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petitioner.   According   to   the   petitioner   the   same   is

impermissible.

       The petitioner relies upon a judgement of the Hon'ble

Division Bench of this Court in the matter of Ujjal Mondal

Vs State of West Bengal reported in 2013(1) CHN (Cal) 458

paragraph 28 wherein the Court held that if the no

confidence motion for removal is an allegation of any

illegality or an allegation of misuse of power it is not a "no

confidence motion for removal" simplicitor, but it is

coloured with a foundation without any adjudication which

would be bad in law.

       The petitioner further relies upon an unreported

order passed by a learned Single Judge of this Court on 28th

November, 2014 in W.P. 27285 (W) of 2014 in the matter of

Tojibur Rahaman Vs. State of West Bengal wherein the

Court relying upon the judgment delivered in the case of

Ujjal Mondal (supra) had been pleased to quash and set

aside the notice of meeting for removal of the petitioner.

       The second point raised by the petitioner is that

according to the provision of Section 12(10) of the West

Bengal Panchayet Act, 1973 the entire process of removal of

the Upa Pradhan commencing from the submission of

motion to the Prescribed Authority up to the action finally

taken ought to have been competed within 30 days.

       According to the petitioner, the process of her

removal commenced on 4th May, 2021 and the same ought

to have been completed within a period of 30 days
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thereafter. As the matter has spilled over for nearly two

months, accordingly the entire proceeding ought to be set

aside.

         The learned advocate representing the Prescribed

Authority submits, upon instruction, that according to the

provision of Section 12(3) of the West Bengal Panchayet Act,

1973 the Prescribed Authority on receipt of the motion

satisfied   himself   that   the   same   conforms       to   the

requirements of law and upon such satisfaction convened

and issued the notice within the time as mentioned for the

purpose of holding the meeting for removal of the petitioner.

It has been submitted that the action taken by the

Prescribed Authority was strictly in terms of the Act.

         The further submission of the respondent is that

according to the provision of Section 12(4) of the 1973 Act,

the meeting is to be held on a working day not later than 15

working days from the date of receipt of the motion. The

meeting is not supposed to be adjourned or cancelled except

in pursuance of an order or direction of the competent

Court or for any other reason beyond control of the

Prescribed Authority.

It has been submitted that the meeting which was

initially supposed to be held on 18th May, 2021 was deferred

in view of the pandemic situation and the same has been re-

scheduled on 2nd July, 2021. The reason for deferring the

meeting is absolutely beyond control of the Prescribed

Authority and accordingly there is no illegality in the steps

taken by the Prescribed Authority in re-scheduling the date

of the meeting.

Having heard the submission made on behalf of the

parties, it appears that the notice for removal of the

petitioner was submitted by 12 requisitionist members

before the Prescribed Authority on 4th May, 2021. The

Prescribed Authority intimated the petitioner about the

same on 7th May, 2021. The petitioner waited till 28th June,

2021 to affirm the instant writ petition. No reason has been

mentioned as to why the petitioner approached the Court at

such a delayed date. In fact, had the meeting been convened

on the scheduled date i.e. on 18th May, 2021 the writ

petition may not have been filed at all. This implies that the

petitioner was initially not aggrieved by the action of the

Prescribed Authority and was willing to face the floor test,

but later, as an afterthought, filed the instant writ petition.

The ground taken by the petitioner that the meeting

has been fixed beyond the time prescribed in law is not

acceptable to the Court. The reason for re-scheduling the

meeting has categorically been mentioned in the order of

the Prescribed Authority dated 15th May, 2021 which was

duly communicated to the petitioner.

In view of the unprecedented situation caused by the

pandemic, the Prescribed Authority in terms of the

government order dated 15th May, 2021 rightly took the

decision to re-schedule the meeting as a measure to combat

the spread of Covid-19.

As regards the contention of the petitioner that

incorporating allegations in the notice of no confidence

motion is not permissible, is also not acceptable to the

Court.

Section 12(1) of the West Bengal Panchayet Act, 1973

specifically mentions that the Prodhan or the Upa prodhan

of a Gram Panchayet may, at any time, be removed from

office by the majority of the existing members of the gram

panchayet, expressing their lack of confidence or recording

their decision to remove the Prodhan or the Upa Prodhan,

at a meeting specially convened for the purpose.

According to Section 12(2) of the Act the motion is to

be signed in writing by the requisitionist members

expressing their lack of confidence or recording their

intention to remove the Prodhan or the Upa Prodhan.

In the instant case, 12 out of 15 existing members

have signed the motion and have expressed their no

confidence and intention to remove the Upa Prodhan. The

requisitionist members have additionally given the reasons

for seeking removal of the Upa Prodhan.

"Recording the decision" in terms of Section 12(1) or

"recording the intention" in terms of Section 12(2) to remove

would mean a decision/intention coupled with reasons,

otherwise the same would amount to a non-reasoned

decision which may be misused by any of the requisitionist

members. Recording of reasons for removal of the Pradhan

or the Upa Pradhan in the notice of motion is a step forward

for maintaining transparency in the process. An elected

member ought not to be removed from the post without a

proper and valid reason. Recording of reason for removal,

though not mandatory, acts in aid of taking a decision by

the Prescribed Authority.

The judgment relied upon by the petitioner in the

case of Ujjal Mondal (supra) deals with removal of

Sabhapati or Sahakari Sabhapati in accordance with

Section 101 of the 1973 Act. The Court in the said matter

recorded that an office bearer cannot function if the

confidence of majority members is lost and the consequence

is to remove him and elect a new one. In the case at hand

12 out of 15 members have expressed their loss of

confidence upon the petitioner and the natural consequence

is that a new member is liable to be elected.

From the above it is evidently clear that the judgment

delivered in the case of Ujjal Mondal does not come to the

aid of the petitioner in the facts and circumstances of the

instant case.

The judgment relied upon by the respondents in the

matter of Farida Bibi Vs. State of West Bengal, reported in

2016 (5) CHN (Cal) 258 paragraphs 10, 11 and 12 may be

relevant for the purpose of adjudicating the instant case.

Paragraph 12 lays down that the sole object of introducing

sub-sections (1), (2) and (3) under Section 12 of the

Panchayat Act, 1973 is to ensure that a motion of no

confidence for removal of Prodhan or Upa-Prodhan was

brought about and executed through a transparent and

democratic process which ensures elimination of any

clandestine design being evolved to oust either of them.

In the case at hand the Prescribed Authority applied

its mind and on being satisfied that the notice of motion

conforms to the provisions of law, issued the notice of

meeting of motion for removal of the petitioner on a

specified date and time.

I do not find any illegality in the action of the

Prescribed Authority. The writ petition accordingly does not

call for any interference and is hereby dismissed.

The instruction handed over by the learned advocate

on behalf of the State respondents is retained with the

records.

Urgent photostat certified copy of this order, if applied

for, be given to the parties on completion of usual

formalities.

(Amrita Sinha, J.)