Razia Sultana vs The State Of West Bengal & Ors
2023 Latest Caselaw 918 Cal

              IN THE HIGH COURT AT CALCUTTA
                     Constitutional Writ Jurisdiction
                             (Appellate Side)
                             M.A.T. 29 of 2023
                                    With
                           I.A. No. CAN/1/2023
                              Razia Sultana
                                    Vs.
                      The State of West Bengal & Ors.

Before: The Hon'ble Justice Arijit Banerjee
                      &
        The Hon'ble Justice Apurba Sinha Ray

For the Appellant         : Mr. Ritzu Ghosal, Adv.
                            Mr. Mrityunjoy Chatterjee, Adv.
                            Mr. Ravi Ranjan Kumar, Adv.

For the Respondent        : Mr. Uday Narayan Betal, Adv.

No. 5                       Mr. Partha Sarathi Mondal, Adv.


For the Respondent        : Mr. Gangadhar Das, Adv.
No. 6                       Mr. Tanmoy Chattopadhyay, Adv.


For the Respondent        : Mr. Sunny Nandy, Adv.
Nos. 7 to 9                 Ms. Riya Das, Adv.


For the State             : Mr. Pantu Deb Roy, Adv.
                            Mr. Subrata Guha Biswas, Adv.


For the Intervener        : Mr. Rishav Kr. Thakur, Adv.
                            Mr. Saket Sharma, Adv.
Heard on                  : 09.01.2023, 11.01.2023 & 16.01.2023
CAV On                    : 16.01.2023
Judgment On               : 03.02.2023



Arijit Banerjee, J.:

1. This appeal is directed against a judgment and order dated January 5,

2023, whereby W.P.A No. 13257 of 2021 was disposed of by a learned Single

Judge.

2. The writ petitioner, who is the respondent no. 6 in this appeal,

approached the learned Single Judge challenging a requisition notice for her

removal as Pradhan of the Banupur Gram Panchayat. The notice was

challenged firstly on the ground that it contained a stigma and secondly on

the ground that the party affiliations of the requisitionists were not

mentioned in the notice.

3. The parties were directed to exchange affidavits. The State

respondents and the requisitionists filed affidavits in opposition. From the

annextures to the said affidavits, the learned Judge found that the second

page of the requisition notice which contained the party affiliations with

signatures and other details of the requisitionists, had not been annexed to

the writ petition. Accordingly, the second ground for challenging the

requisition notice was rejected by the learned Judge.

4. It was further urged before the learned Judge by the writ petitioner

that the notice was not properly served on her. The learned Judge held that

this was a disputed question of fact which the Court does not need to go

into since the learned Judge found the notice to be stigmatic. The learned

Judge referred to the decision of a Division Bench of this Court in the case

of Ujjal Mondal v. State of West Bengal, reported in 2013 (1) CHN (CAL)

458 as also to the decision of this Court in the case of Sourendra Nath

Das v. The State of West Bengal & Ors. (WPA 11903 of 2021).

5. At the time when the writ petition was moved, the writ petitioner had

already stood removed as Pradhan by a majority of 9 out of 10. Steps were

taken for electing new Pradhan. The writ petitioner filed an application in

the writ petition for staying the process of election of new Pradhan. The

learned Judge by an order dated September 14, 2021 refused to pass any

order on such application. Her Lady-ship, however, observed that all steps

taken shall abide by the result of the writ petition. Subsequently, the

present appellant was elected as the new Pradhan.

6. At the final hearing of the writ petition, having held that the notice for

removal of the writ petitioner as Pradhan was stigmatic, the learned Judge

set aside the notice along with all consequential actions taken thereafter,

"including the removal of the petitioner and election of the new Pradhan."

The learned Judge, however, granted liberty to the requisitionists "to bring a

fresh requisition as per Section 12(2) of the West Bengal Panchayat Act,

1973 (in short 'the 1973 Act'). If such requisition is brought, the prescribed

authority shall act and proceed in terms of the provisions of Sections 12(3)

and 12(4) onwards, of the said Act and reach the requisition to its logical

conclusion within the time limit prescribed by the Statute. The bar under

Section 12(11) of the said Act shall not be applicable."

7. Being aggrieved by the aforesaid order, the respondent no. 7 in the

writ petition has preferred the present appeal. She is aggrieved because her

election as Pradhan has been set aside and the writ petitioner has been

reinstated as Pradhan by the order impugned.

8. The requisition notice dated August 9, 2021, addressed to the Block

Development Officer / prescribed authority which was under challenge

before the learned Single Judge, reads as follows:-

"Respected Sir,

We the undersigned are directly elected members of Banupur (I)

Gram Panchayat. We are not satisfied with the work of Kaykashan

Khatoon, Pradhan Banupur (I) Gram Panchayat. She is not

discharging the duties of Pradhan transparently and, therefore, we

think that the development work of the Panchayat is being

disrupted. Due to this we are expressing our lack of confidence

against her.

As you are the prescribed authority to take action in this regard

under West Bengal Panchayat Act 1973, we request you to please

take suitable steps in accordance with Law towards removal of

Pradhan of Banupur (I) Gram Panchayat."

9. Appearing for the appellant, Mr. Ritzu Ghosal, learned Advocate,

urged two points before us. Firstly, he argued that the writ petitioner has

lost the confidence of the majority of members of the concerned Panchayat.

Principles of democracy must prevail. There was no reason to set aside the

requisitionists' notice for removal of the writ petitioner as Pradhan. Any and

every statement in such a notice, of and concerning the Pradhan whose

removal is sought, does not amount to a stigma. In the present case it is

merely stated that the writ petitioner is not discharging her duties as

Pradhan transparently and hence in the opinion of the requisitionists, the

development work of the concerned Panchayat is being disrupted. Hence,

the requisitionists are expressing their lack of confidence in her. There is no

such allegation as would amount to a stigma rendering the notice bad in

law.

10. The second point argued by Mr. Ghosal was that the removal of the

appellant as Pradhan, was beyond the scope of the writ petition. The writ

petitioner had merely challenged the requisitionists' notice for her removal

as Pradhan. During the pendency of the writ petition the appellant was

elected as Pradhan. The learned Single Judge did not pass any interim order

staying the operation of the resolution removing the writ petitioner as

Pradhan. On an application made for interim relief to stay the process of

election of new Pradhan, initiated by the prescribed authority, no restraint

order was granted. The appellant was elected as new Pradhan by a majority.

Her appointment could not have been set aside in the present writ petition.

11. Mr. Ghosal relied on the decision of a learned Single Judge of this

Court in the case of Shefali Roy v. The State of West Bengal & Ors.

(WPA 20653 of 2021), the decision of a Division Bench of this Court in the

case of Ujjwal Kumar Singha v. The State of West Bengal & Ors.,

reported in (2017) 2 CHN 258 and on the decision of the Hon'ble Supreme

Court in the case of Usha Bharti v. State of Uttar Pradesh & Ors.,

reported in (2014) 7 SCC 663. We will revert to these decisions later in this

judgment.

12. Learned Counsel appearing for the respondent no. 6 / writ petitioner

argued that any allegation in a notice for removal of the Pradhan, casting

any aspersion on the person's character, would vitiate the notice. He

submitted that the scheme of Section 12 of the 1973 Act does not provide

for affording an opportunity to the Pradhan or Upa-Pradhan to deal with or

answer or refute any allegation made against him/her. If any such allegation

is made in the removal notice it may affect the future political prospects of

the person concerned without that person being afforded an opportunity of

dealing with the allegation. This would violate the principles of natural

justice.

13. Learned Counsel submitted that in contradistinction to Section 12,

under Section 213 of the 1973 Act, which empowers the prescribed

authority, by an order in writing, to remove any member or office bearer of a

Gram Panchayat, Panchayat Samity or Zilla Parishad from his office, if, in

its opinion, he wilfully omits or refused to carry out the provisions of the

1973 Act or of any rules or orders made there under or abuses the powers

vested in him under the Act, the prescribed authority can act only after

giving the person concerned an opportunity of making a representation

against the proposed order. He submitted that the principles of natural

justice are in-built in Section 213 of the Act. This opportunity of dealing

with allegations, is not made available to the Pradhan or Upa-Pradhan in

the scheme of Section 12 of the Act. Hence, it is not permissible to make any

allegation in the removal notice which may amount to any kind of stigma.

The notice should simply state that the requisite number of members have

lost confidence in the concerned office bearer and seek his/her approval.

14. Learned Counsel relied on the decision of a Division Bench of this

Court in the case of Ujjal Mondal v. State of West Bengal (supra).

15. We have given our anxious consideration to the rival contentions of

the parties.

16. The short point that falls for our determination is whether or not the

impugned notice for removal of the writ petitioner as Pradhan, is stigmatic.

17. It is well established now that if a notice for removal of Pradhan or

Upa-Pradhan addressed by the requisite number of members of a Panchayat

to the prescribed authority contains stigma, such notice should not be acted

upon. There is sound logic behind this. As argued by learned Advocate for

the respondent/writ petitioner, the scheme of Section 12 of the 1973 Act

does not contemplate granting an opportunity of hearing to the concerned

office bearer who is sought to be removed. Hence, if a removal notice

contains allegations against such office bearer, he/she does not get an

opportunity to refute such allegations whether at a hearing or by way of a

reply or written representation. The allegations may be of various types,

some very serious and derogatory and some not so bad. However, any

allegation, in whatever words and however articulately framed, whether of

financial dishonesty or of recalcitrance, which tends to tarnish the image of

the concerned office-bearer, would in our opinion, amount to a stigma. If in

a removal notice statements are included which would give the impression

to the members of the society that the concerned office-bearer is completely

unfit for and unworthy of the concerned post, the same shall amount to a

stigma which is very likely to have an adverse impact on the future political

carrier of that person, without that person getting an opportunity to deal

with and disprove such allegations. This would clearly be violation of the

principles of natural justice and contrary to the rule of law.

18. Audi alteram partem-nobody shall be condemned unheard- is perhaps

the most important limb of the principles of natural justice. If an allegation

is made against a person, on the basis whereof action is proposed to be

taken against such person by an authority - be it a Court of law, a tribunal

or an executive authority - the person concerned must be afforded adequate

opportunity of hearing to respond to the allegations made against him before

any action can be taken against him which may have adverse civil

consequences for him. This principle of law has come to be considered to be

so salutary and sacrosanct that an order passed or action taken by an

adjudicating authority or an officer in the administration, is considered to be

null and void and non-est in the eye law. There can be no legal justice

without compliance with the principles of natural justice.

19. The position is different in so far as removal of an office-bearer is

concerned under Section 213 of the 1973 Act. Under that provision, the

prescribed authority has the power to remove an office-bearer on the

grounds mentioned therein but only after giving an opportunity to the

person concerned to make a representation. Thus the requirement of

observing the principles of natural justice has been built into Section 213 of

the Act. In the case of Ujjal Mondal v. State of West Bengal (supra), a

Coordinate Bench, in the contest of service law, discussed various case laws

on the difference between termination simplicitor and termination based on

misconduct as foundation. The Bench went on to hold as follows:-

"29. The principle of law as discussed in those cases though within

the field of service law is squarely applicable in the instant case to

interpret section 101 of the said Act relating to bringing a

requisition notice of removal on the ground of no confidence. If the

removal is due to no confidence only, it is suffice to bring a motion

and it will be called as no confidence motion simplicitor, but if the

no confidence motion for removal is on allegation of any illegality

or on allegation of any disqualification or on 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.

30. Similar to the service matter where principle has been applied

to deal with the issue under service jurisprudence, in the election

matters under Panchayat Act and other field, civil consequence

also has a direct effect as an elected member will suffer from such

consequence and it will cause prejudice and bad effect to his

political career in the eye of people who send him as their

representative in an elected body.

31. Considering that aspect of the matter, we are of the view that

requisition notice in view of foundation of various illegal activities

as mentioned, goes to the root of the matter and it absolutely bad

in law. Prescribed authority ought not to have entertained such

requisition notice to convene a meeting of removal of present

appellant from the post of Sahakari Sabhapati of concerned

Panchayat Samiti."

20. The precedents relied upon by learned Advocate for the appellant, in

our opinion, do not really advance the appellant's case.

21. In Ujjwal Kumar Singha v. The State of West Bengal & Ors.

(supra) the Division Bench dismissed the appeal on the ground that the

judgment and order impugned in that appeal was supported with cogent

reasons and there was no palpable infirmity therein which would warrant

interference in an Intra-Court Mandamus appeal.

22. The Bench went on to observe that the appellant had resorted to

taking shelter under the high prerogative writ jurisdiction of the High Court

only for the purpose of stalling the well-established democratic principles

which governed the running of public institutions such as the Gram

Panchayat. There is no discussion as to when a removal notice can be

considered to be stigmatic. The earlier decision of a bench of equal strength

in the case of Ujjal Mondal was also not noticed.

23. In the Judgment of a learned Single Judge in the case of Shefali Roy

v. The State of West Bengal & ors. (Supra), the learned Judge noticed

that the allegations were that the Pradhan was working in an autocratic

fashion and did not cooperate with the requisitionists. According to the

learned Judge these allegations did not amount to any kind of stigma. We

may or may not agree with such opinion of the learned Judge. However, we

agree with the observation of the learned Judge that the standards for

assessing the nature of allegations is a question of degree and would

therefore depend on the particular allegations which are brought before a

Court. It appears to us that in that case, the learned Judge put more

emphasis on the functioning of a gram Panchayat on democratic principles

and the entitlement of a disgruntled group of requisitionists to bring a

motion of no-confidence against a Pradhan, "provided the conditions under

Section 12(2) of the Act are satisfied and the allegations in the notice are not

such as would cause damage to the reputation of the Pradhan."

24. The decision of the Hon'ble Supreme Court in the case of Usha Bharti

v. State of Uttar Pradesh & Ors. (supra) relied upon by the appellant, in

our view, is not of much relevance to the issue involved in the present

appeal. The said decision highlighted the importance of the bodies like gram

Panchayats and Zilla Parishads functioning on democratic basis. The

decision highlighted the right of a majority of the members of such a body to

remove an office- bearer if such person loses confidence of the majority.

There is no discussion in the judgment as to whether or not, if the notice of

removal is a stigmatic, the same shall stand vitiated or as to what would

amount to stigma.

25. We have already indicated above, what according to us would render a

removal notice stigmatic. To repeat, any allegation in the notice which would

cast any aspersion on the character of the office-bearer and may tend to

affect his/her future political prospects, should be considered to be

stigmatic.

26. According to Mitra's Legal & Commercial Dictionary, Sixth Edition,

"stigma" is something that detracts from the character or reputation of a

person, a mark, sign, etc. indicating that something is not considered

normal or standard. It is a blemish, defect, disgrace, disrepute, imputation,

mark of disgrace or shame and mark or label indicating deviation from a

norm. In the context of an order of termination or compulsory retirement of

a government servant stigma would mean a statement in the order

indicating his misconduct or lack of integrity.

27. The Chambers 21st Century Dictionary, Revised Edition, defines

"stigma" as shame or social disgrace, a blemish or scar on the skin.

28. The Concise Oxford English Dictionary, Eleventh Edition, defines

"stigma" as a mark of disgrace associated with a particular circumstance,

quality or person.

29. In the present case the allegation in the notice is that the Pradhan is

not discharging her duties transparently and consequently in the opinion of

the requisitionists, the development work of the Panchayat is being

disrupted. This is the reason why the requisitionists have expressed their

lack of confidence in the writ petitioner. In our view the allegation of lack of

transparency on the part of the Pradhan is a serious allegation which may

include an innuendo that the Pradhan is involved in clandestine deals for

self-aggrandisement or that the Pradhan does not act fairly or honestly, as a

result whereof the residents of the villages under the concerned Panchayat

have suffered because of disruption of development work in the locality.

These are possible imputations or inferences that can be drawn from the

allegations made in the removal notice. If these allegations do not amount to

stigma, we do not know what would. These allegations clearly mean that the

Pradhan is unfit for the post and is a person of dubious character.

30. In our opinion, the learned Single Judge rightly set aside the notice of

removal. The learned Judge also set aside the resolution removing the writ

petitioner as Pradhan and the resolution electing the appellant as Pradhan.

The appellant was elected during the pendency of the writ petition. Learned

Judge, upon being approached by the writ petitioner for an interim order to

stall the process of election of a new Pradhan, did not pass any restraint

order but observed that all steps taken shall abide by the result of the writ

petition. Hence, the election of the appellant was subject to the final result

of the writ petition. Since the writ petition succeeded in as much as the

learned Judge set aside the notice of removal submitted by the

requisitionists, the learned Judge was perfectly justified in setting aside all

subsequent acts including election of the appellant as Pradhan. This was a

natural corollary and consequence of the notice of removal of the writ

petitioner and her removal as Pradhan being set aside and the writ

petitioner being reinstated as Pradhan.

31. At the same time, the learned Judge was fully conscious of the

democratic rights of the dissatisfied requisitionists. Accordingly, the learned

Judge granted liberty to the requisitionists, which liberty in our view they in

any event have, to issue fresh notice of removal in accordance with law with

a direction on the prescribed authority to carry such notice to its logical

conclusion as per law meaning thereby the provisions of Section 12 of the

1973 Act. The learned Judge was also careful to clarify that the bar under

Section 12(11) of the Act would not apply in case a fresh notice of removal is

issued by the requisitionists.

32. We find no infirmity in the judgment and order under appeal. The

appeal and the application are accordingly dismissed.

33. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties subject to compliance with all the requisite

formalities.

I agree.

(Apurba Sinha Ray, J.)                                  (Arijit Banerjee, J.)