Calcutta High Court (Appellete Side)

Chinmoyee Mondal vs The State Of West Bengal & Ors on 15 July, 2021

15.07.2021
 Sl. No.55
   srm
                                W.P.A. No. 11416 of 2021

                                Chinmoyee Mondal
                                         Vs.
                           The State of West Bengal & Ors.



                      Mr. U.A. Dewan,
                      Mr. Asif Dewan
                                                         ...for the Petitioner.
                      Mr. Lalit Mohan Mahato,
                      Mr. Bhaskar Chakraborty
                                                              ...for the State.



                   Affidavit-of-service is taken on record.

                   This writ petition has been filed challenging the notice

             dated July 8, 2021 issued by the prescribed authority fixing

             July 16, 2021 as the date of meeting for removal of the Upa-

             Pradhan of Laxmijola Gram Panchayat, District Murshidabad.

             The petitioner is the Upa-Pradhan.

                   It is the contention of Mr. Dewan, learned Advocate

             appearing on behalf of the petitioner, that the notice was

             received on July 12, 2021 at 6.00 p.m. and the said meeting

             should be declared invalid in view of the fact that seven days

             clear notice was not available to the Upa-Pradhan. Mr. Dewan

             emphasises that the law prescribes that the Upa-Pradhan

             should at least have seven days notice. The incorporation of

             the word "at least" in Section 12(3) of the West Bengal

             Panchayat Act, 1973, according to Mr. Dewan, indicates that
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the prescription of seven days clear notice is mandatory and

cannot be deviated from. He further submits that the Hon'ble

Apex Court in several decisions have held that the authorities

concerned must follow the provisions of the statute and cannot

go beyond the same.

      Mr. Mahato, learned Additional Government Pleader

appearing on behalf of the State-respondents, submits that the

requirement of the law is that the Upa-Pradhan should be

aware that there is a motion of 'no confidence' to be held

against him. That majority of the members who had elected

the Upa-Pradhan in a democratic process want to remove her

having lost their confidence. That the right of the

requisitionists to seek removal of the Upa-Pradhan is a

democratic right and hyper-technicalities cannot come in the

way in holding such meeting. Reference is made to the

decision of this Court in the matter of Bibi Najba v. State of

West Bengal & ors., where it has been held as follows:-

"20. Purpose of service of notice is to make a member aware as to holding of a meeting, so that the member can participate in the meeting effectively. From their own admission made by the said two members, it appears to this Court that the members were aware about the requisition meeting which was scheduled to be held on 30th November, 2006 at least a day before the date when the said meeting was scheduled to be held The said members never claimed that they did not know about the time schedide and/or the venue of the said meeting and/or the agenda which was to be transacted in the said meeting. On the contrary, they on their own separately approached the concerned

prescribed authority to cancel the requisition meeting which was scheduled to be held on 30th November, 2006.

21. Since such prayer of those two members were not allowed by the prescribed authority, in my view, those two members should have made them themselves present in the said meeting either with a prayer for postponement of the said meeting or by participating therein to express their views. The said two members did not do so, as they felt that their presence will not be a decisive factor in the said meeting as they along with the Pradhan were only three in number while the requisitionists supporting the motion were seven in number.

22. Non-service of notice becomes fatal when a member is prevented from participating in the meeting due to lack of knowledge of the meeting, but when the member having knowledge of the meeting refuses to participate only on the ground of non- service of notice, this Court holds that the outcome of the meeting cannot be vitiated at the instance of such indifferent absentee members. This Court also cannot believe that those two members had no knowledge of the meeting earlier. It appears from the records of the Appeal Court that those two members applied for the certified copy of the order passed by this Court on 22.11.2006 on the very next day, on the very next day, i.e., on 23rd November, 2006 and obtained the certified copy of the said order on 29th November, 2006. In the said order, direction was given by this Court for holding the meeting on 30th November, 2006. The time schedule, the venue and the agenda to be transacted in the said meeting were all mentioned in the said order dated 22nd November, 2006. But still then, they did not participate in the said meeting. On the contrary, they wrote letters to the prescribed authority to cancel the said meeting 29th November, 2006."

It appears that the provisions of seven clear days' notice

is also provided for in Section 16(1) of the said Act and a

Division Bench of this Court in Upananda Chatterjee v. State

of West Bengal reported in (2007) 4 CHN 605 held that the

provision was directory and not Mandatory. Paragraphs 19 to

24 are quoted below:-

"19. We also agree with the learned Single Judge that the giving of clear seven days' notice as mentioned in section 16 of the Act is not mandatory as held by a Division Bench of this Court in case of Aloke Pramanik v. State of West Bengal, reported in 1996 (1) CLJ 434, while considering similar provision contained in section 105 of the Act. In this connection, Mr. Basu, the learned Advocate appearing on behalf of the appellant placed reliance upon an unreported decision of a Division Bench of this Court in the case of Sm. Madhumita Biswas v. State of West Bengal being M.A.T. No. 3686 of 2006, disposed of on April 5, 2007 where the Division Bench disagreed with the view taken in the case of Aloke Pramanik (supra), without referring the matter to the Hon'ble Chief Justice for constitution of a Larger Bench. It is now settled law that in case of conflict of the decision of two Benches of equal strength, the former will prevail unless the principle laid down in the former one has been overruled by a Superior Court or unless due to change of law, the former one is no longer applicable. The latter Division Bench, as it appears from the judgement placed before us, has disagreed with the view taken in the case of Aloke Pramanik on the ground of misapplication of the principles laid down in the decision of the Supreme Court in the case of K. Narasimiah v. H.C. Singri Gowda, reported in AIR 1966 SC 330, to the facts of the said case and for non consideration of some other decisions of the Supreme Court laying down the principles to be followed in deciding whether a statutory provision is mandatory or not. In our view, once a Division Bench, has taken a stance that a particular decision of the Supreme Court is applicable in the facts of a case and by relying upon such decision comes to a conclusion on a particular facts of a case, the latter Bench, if it intends to disagree in the similar facts, should refer the matter to the learned Chief Justice for constitution of a Larger Bench.

'in connection with this observation, we would like to say that an earlier decision may seem to be incorrect

to a Bench of a co-ordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the latter bench of co- ordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways--either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits.'

20. We are, therefore, unable to follow the latter decision placed before us by Mr. Basu.

21. In our view, the provisions of giving seven clear days' notice as mentioned in the second proviso to section 16 of the Act is a directory provision and not a mandatory one as rightly held in the case of Aloke Pramanik (supra) while construing a similar provision of the same statute. It is now settled by the Apex Court that if a particular statutory provision is a procedural one, even the use of the word "shall" in such provision will not make it mandatory unless consequence of disobedience has been indicated in the statute. The exceptions to the previously mentioned rule of interpretation are in the cases where there is either "no notice", or "no opportunity" or "no hearing". In this connection, we may refer to the following observations of the Supreme Court in the case of State Bank of India v. S.K. Sharma, reported in AIR 1996 SC 1669 at 1683:--

'A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

In the case of violation of a procedural provision, the position is this procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest.

Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively.'

22. In the case of Lachmi Narayan v. Union of India, reported in AIR 1976 SC 714, the Supreme Court pointed out some of the cases where the provisions must be held to be mandatory. Those are enumerated below in the exact language of the Apex Court:- 'The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of 'must' instead of "shall", that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp. 523-524). Here the language of sub-section (2) of section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months.'

23. In the case before us, the word used is "shall" and not "must" and the language is also not in the negative form. The provision of giving notice is a rather procedural one and no consequence is indicated in the statute for non-compliance of seven clear days' notice. In such circumstances, unless prejudice is shown, the departure from the statutory provisions cannot lead to annulment of the action taken.

24. On consideration of the entire matter before us, we find that in the absence of any provisions contained in the rules recommending mode of service of notice we are concerned with, the "giving" of notice by registered

post was sufficient when other provision regarding, display of such notice in the notice board of the Panchayat or intimation to the prescribed authority as provided in the Act has not been disputed. Moreover, the appellant himself annexed the notice given to another member of the Panchayat to the writ application and it is apparent that no explanation has been given as to what prevented the appellant from complying with the first part of section 16 of the Act by calling a requisitioned meeting in terms of the statute."

Both Sections 12 and 16 of the West Bengal Panchayat

Act before the amendment of 2010 dealt with the removal of

Upa-Pradhan by two different procedure and both have

requirement of seven days' notice to the members. In two

decisions of this Court namely Md. Asraf Ali Mandal v. Block

Development Officer, reported in 1992 (2) CHN 229 and in

Samarendra Goswami v. Dabuk Gram Panchayat reported in

1995 (2) CHN 238, it has been specifically held that the

provision regarding seven days' notice in Section 16 is

directory. When Both the sections provided seven days notice,

in my opinion, I propose to follow the decision of the Division

Bench and prima facie hold that seven days notice in Section