Hasina Mondal (Pinki) vs The State Of West Bengal & Ors
2022 Latest Caselaw 18 Cal

S/L 3
05.01.2022
Court. No. 19
GB
                                W.P.A. 29 of 2022

                              Hasina Mondal (Pinki)
                                        VS
                          The State of West Bengal & Ors.

                            (Through Video Conference)


                Mr. Alokesh Dalai
                                                     ... for the Petitioner.

                Mr. Raja Saha,
                Mr. Biswabrta Basu Mallick.
                                                        ... for the State.

                Mr. Shahan Shah,
                Mr. Abdul Aziz Mondal..
                                  ... for the Respondent Nos.7 to 19.

The petitioner has challenged the notice issued under

Form 1-E under Sub-Rule 2 of Rule 5B of the West Bengal

Panchayat (Constitution) Rules 1975.

The petitioner is the Sahakari Sabhapati of the Nowda

Panchayat Samity. The petitioner has alleged that the notice

convening the meeting on January 6, 2022 at 12.00 for

removal of the Sahakari Sabhapati on the ground of lack of

confidence was illegal and not in consonance with law. That

two separate meetings were required to be held and two

separate notices would have to be issued, one for removal

and the other for lack of confidence.

Mr. Shahan Shah, learned advocate appearing on

behalf of the requisitionists submits that the writ petition has

been filed frivolously only to stall the meeting and to delay

the process of removal, although the petitioner has lost the

confidence of his people.

Mr. Saha, learned advocate appearing on behalf of the

State submits that removal on the ground of lack of

confidence are coterminous and a single notice for the said

meeting was sufficient compliance of law.

This Court refers to the provisions of law. Section

101(1) of the West Bengal Panchayat Act, 1973 (hereinafter

referred to as the said Act), provides that at any time, the

Sahakari Sabhapati of a Panchayat Samity may be removed

from his office by the majority of the existing members of the

Panchayat Samity expressing their lack of confidence against

the Sahakari Sabhapati or upon recording their decision to

remove. The section itself provides that the Sahakari

Sabhapati may be removed from his office by the majority of

the existing members of the Panchayat Samity expressing

their lack of confidence. Sub-Section 2 of Section 101

provides that one-third of the existing members refered to in

Sub-Section 1 shall sign a motion in writing expressing their

lack of confidence against the Sahakari Sabhapati or

recording their intention to remove upon compliances of

certain requirements. A harmonious reading of Sub-Section 1

and Sub-Section 2 of Section 101 would mean that the right

to remove the Sahakari Sabhapati conferred upon the elected

members was on the ground of lack of confidence. This

democratic right could be exercised coterminously. Such

removal was on the ground that the elected members had

lost their confidence in their leader and did not want him to

continue in office as an office bearer. The other method of

removal is provided in a different section of the amended

Act.

Removal is achieved only when the existing members

bring a motion expressing that they had lost confidence in

the Sahakari Sabhapati or they want to remove the office

bearer and the motion is passed by majority.

In such cases of removal, no grounds would be

necessary except that the majority had lost confidence in the

office bearer and/or wanted to remove her. In case of

removal of any other nature, a proceeding has to be initiated

and the proceeding is to be reached to its logical conclusion

upon following the principles of natural justice.

Thus, this Court does not think that the notice

impugned before this Court is bad-in-law and two separate

notices would have to be issued, one for removal and the

other for lack of confidence. The procedure for the meeting

has been laid down in Section 101(3) to Section 201(9). Only

when the majority of the members cast their votes in favour

of the motion for removal on the ground of loss of

confidence, can an order be passed by the prescribed

authority recording such removal. The entire transaction is

in one proceeding and the law does not envisage that

separate proceedings have to be initiated for such removal.

In the same meeting, once the majority of the members have

cast their vote in favour of the motion showing their lack of

confidence in the Sahakari Sabhapati, the said office bearer

shall be removed.

Reliance is place on a decision of the Division Bench

of this Court in the matter of Smt. Astami Biswa (Dey) versus

The State of West Bengal & Other passed in CAN No.2250 of

2015 with AST No.27 of 2015. The relevant portion of the

said judgment is quoted below:

The controversy arises out of the notice dated 9 September, 2014 issued by the prescribed authority, convening a meeting to be held on 19 September, 2014 at 12 noon, the agenda whereof reads as follows:-

"for consideration of the motion for removal of/lack of confidence against Prodhan and for taking decision on it."

The judgements relied upon both by the appellant and the respondents were rendered before the amendment, introduced to Section 12 of the West Bengal Panchayat Act, in the year 2010. The amended provision contained in Sub-Section 1 of Section 12 reads as follows:-

"Subject to other provisions of this section, the Prodhan or the Upa-Prodhan 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 Prodhan or the Upa-Prodhan or recording their decision to remove the Prodhan or the Upa-Prodhan, at a meeting specially convened for the purpose."

The aforesaid provision may be compared with the pre-amendment provision which reads as follows:-

"12. Removal of Prodhan and Upa-

Prodhan. - (1) Subject to the other provisions of this section, a Prodhan or an Upa-Prodhan of a Gram Panchayat may, at any time, be removed from office by a resolution carried by the majority of the existing members referred to in clause (i) of subsection (2A) of section 4

at a meeting specially convened for the purpose. Notice of such meeting shall be given to the prescribed authority:"

The pre-amended law provided simplicitor for a resolution by the majority removing the Prodhan, whereas the post-amendment provision provides for removal of the Prodhan by the majority either by recording their lack of confidence or by recording their decision to remove the Pradhan. Prior to the amendment there might have been some scope to raise the contention as to whether lack of confidence was the premise and removal was the conclusion whereby there might be a contention that two separate motions were required, but the scope for any such controversy has been eliminated by the amendment introduced in 2010 with effect from 1st July, 2010. Under the law, subsequent to 1 July, 2010, a Prodhan can be removed by expressing lack of confidence against him.

A Prodhan can also be removed for any reason other than lack of confidence. Therefore, the judgements cited by Mr. Basu do not really help him. The notice issued by the prescribed authority contained the agenda "for consideration of the motion for removal of/lack of confidence against the Prodhan and for taking decision on it."

Even assuming that Mr. Basu is right that lack of confidence and removal are not synonymous nothing really turns on that. The notice by no means is ambiguous because it has conveyed to the members of the concerned Gram Panchayat that the meeting is for consideration of removal of the Prodhan.

It may be contended that it was also a notice for consideration of lack of confidence against the Prodhan. Lack of confidence shall also result in removal of the Prodhan. The motion was admittedly carried by 11 out of 15 members. Resultant effect was that the Prodhan stood removed.

We are, as such, of the opinion that the controversy is altogether without any merit."

Although the above is a case with regard to removal of

the Pradhan, the provision of Section 12 are 'pari meteria'

with the provisions of Section 101 of the said Act and as such

the writ petition is dismissed without any order in favour of

the petitioner. The meeting shall be held as fixed on January

6, 2022.

In my opinion, an office bearer can be removed on

expression of 'lack of confidence' of the majority of the

members and also on recordal of their decision to remove

him in the same meeting, and by a requisition notice the

members may request the prescribed authority for convening

a meeting for both these purposes. Two separate meetings

need not be convened for such purpose. The expression

'removal' and 'lack of confidence' have been employed by the

lawmakers interchangeably, to convey the same implication.

Focus of the said provision is on removal and expressing loss

or lack of confidence appears to be an optional measure

which the requisitionist members may undertake for removal

of the office bearer upon whom they have lost confidence.

However, there will be no order as to costs.

All the parties are directed to act on the basis of the

learned advocates' communication.

(Shampa Sarkar, J.)