For The vs State Of West Bengal & Ors on 12 June, 2012

[Cites 28, Cited by 0]

Calcutta High Court (Appellete Side)

For The vs State Of West Bengal & Ors on 12 June, 2012

Bench: Pratap Kumar Ray

                                          1


12.6.2012
                               A.S.T. 150 of 2012
                               A.S.T.A. 83 of 2012



            Mr. Kashikanta Moitra
            Mr. Sumitro Dasgupta
            Mr. Hafiz Ali
            Mr. Samim Ahamed
                           ... for the appellant

            Mr. Asish Kumar Sanyal
            Mr. Pratip Kumar Chatterjee
                        ... for the private respondents

            Mr. Jayanta Banerjee
            Mr. Santanu Kumar Mitra
                               ... for the State.


                                 ---------------------

Pratap Kumar Ray,J.

Heard the learned advocates appearing for the parties.

Assailing the interlocutory order dated 29th May, 2012 passed in W.P. 11192 (W) of 2012 on the grievance that learned trial Judge did not pass any interim order staying the notice issued by prescribed authority under West Bengal Panchayat Act, 1973 (hereinafter referred to as 'said Act') convening date of meeting for consideration of motion of removal of the present appellant who is an Office Bearer being Sahakari Sabhapati of Kandi Panchayat Samiti, this appeal has been preferred.

Connected application for appropriate order has been moved. A supplementary affidavit in connection with said application has been filed.

Prayer for appropriate order restraining respondents from taking any steps or further steps for removal of appellant from said post until disposal of the application and direction to the respondent authority to dispose of the complaints filed by the present appellant against five members of the said 2 Panchayat Samiti referring disqualification clause for their removal as members as made, is now to be considered. In doing such we have to consider entire lis dealing with appeal and writ application, now pending.

Having regard to said situation, learned advocates for respective parties before us, namely, the appellant, private respondents and State respondents, agreed for disposal of writ application, appeal and connected application for appropriate order, by us.

In view of such submission, writ application is called for. Writ and connected appeal are taken up as on day's list for hearing by dispensing with service of notice of appeal and other formalities.

The factual matrix of the case as pleaded in the present application, writ application, supplementary affidavit and in appeal, is to this effect:

On 3rd May, 2012, the present appellant filed two complaints before the District Magistrate, Murshidabad and also to the prescribed authority, Kandi Panchayat Samiti seeking initiation of proceedings to remove Sri Jayanta Kumar Roy, Smt. Asoka Rajbanshi and Smt. Tapasi Dalui, members of the Kandi Panchayat Samiti, on the ground of their remaining absent in three consecutive meetings of said Samiti without any leave of absence and against one Md. Jamaluddin Mondal, member of said Samiti, for suspending his membership on the ground of his remaining in jail custody for more than forty eight hours being an accused of a criminal case registered as Kandi Police Station Case No. 465 of 2011 dated 30th September, 2011, under Sections 376/511 I.P.C.

A representation was filed on 11th May, 2012 to the said authority detailing the particular dates when said three members, namely, Sri Jayanta Kumar Roy and others, absented themselves from the meetings of Panchayat Samiti. A complaint was filed against Sri Biswanath Das, another elected member of the said Samiti seeking disqualification of membership on the ground of granting financial benefits illegally to a firm owned by his wife Smt. Jaba Das, on breach of statutory provision of the said Act. These complaints were duly received by the prescribed authority but no action was taken. Subsequently, eleven members of the said Samiti, all belong to a political party, Indian National 3 Congress, filed a requisition notice before Sub-divisional Officer, the prescribed authority, seeking removal of present appellant from the post of Sahakari Sabhapati of said Samiti on the ground that they had lost confidence upon him due to his various illegal activities. This requisition notice dated 15th May, 2012 as signed by those members was duly acted upon by the prescribed authority by issuing a notice of meeting relating to "motion for removal of present appellant"

fixing meeting date on 30th May, 2012. This notice was issued on 18th May, 2012. On 19th May, 2012, the appellant submitted a representation to the said prescribed authority contending that since complaints seeking disqualification of membership against five members out of which four members who signed said requisition notice dated 15th May, 2012, the requisition notice was bad in law and as a resultant effect "no confidence motion" should be kept in abeyance until adjudication of disqualification issue by prescribed authority. On 17th May, 2012 said grievance was agitated before the District Magistrate, Murshidabad by the appellant. As nothing was done, but on the other hand, Sub-divisional Officer, the prescribed authority, intended to complete process of "no confidence motion", the appellant finding no other alternative moved writ application seeking appropriate remedy. In the writ application, following prayers have been made:

"a) Grant leave under Rule 26 of the Rules of this Hon'ble Court relating to applications under Article 226 of the Constitution of India, to move the present application without prior service of notice or copy hereof on any of the Respondents.

b) A writ of and/or in the nature of mandamus restraining the respondents to revoke and/or set aside and/or cancel the memo No. 983(28) dated May 18, 2012 being Annexure-'P-6' to this application.

c) Issue a writ of/in the nature of Mandamus commanding the Respondents and each of them and/or their concerned officer including the Respondent No.6 to forthwith consider the complaint made your petitioner as in annexure P1, P2 and P3 above on any day before the meeting is held for removal of your petitioner.

d) Issue a writ of/in the nature of Prohibition prohibiting the Respondents and each of them and/or their concerned officer including the Respondent NO. 5 to give any effect or further effect to the undated notice as in annexure P4.

e) Issue a writ of/in the nature of Mandamus commanding the Respondents and each of them and/or their concerned officer to forthwith cancel and/or quash and/or revoke the notice as in annexure P4.

f) Issue a writ of/in the nature of Certiorari calling on the Respondents and each of them to certify and remit the records of the case to this Hon'ble Court so that conscionable justice may be done to the case and your Petitioner.

g) Pass Appropriate Direction(s)/Order(s).

h) Issue Rule Nisi in terms of prayers a), b), c), d), e) and f) above.

i) Pass an interim order restraining the respondent and/or their men and/agent from giving any effect and/or further effect to the said notice as in memo No. 983(28) dated May 18, 2012 being Annexure-'P-6' above, till the disposal of the Rule and/or this application.

j) Pass ad interim orders in terms of prayers b) and h) above.

k) Pass such other and/or further order(s)/direction(s) as may seem fit and proper."

Learned trial Judge passed the impugned order at the interlocutory stage, which reads to this effect:

"The petitioner has challenged the notice issued by the prescribed authority for convening a meeting on 30th May, 2012 in terms of the requisition made by the members under Section 101 of the West Bengal Panchayat Act, 1973.

The petitioner contends that being Sahakari Sabhapati he made serious complaint against some of the members who are requisitionists, much prior to their requisition notice but the prescribed authority has not taken any steps as yet.

It appears that serious allegations have been made by the petitioner which if proved may result into the removal of their membership. It is tried to be contended at this stage that such member cannot make a requisition notice calling for a meeting to move the "no confidence motion" against the Sabhapati and Sahakari Sabhapati.

The State-respondents, however, submit that on the basis of the complaint made by the petitioner, the prescribed authority is contemplating to take steps.

Both, Section 97 and 101 of the said Act has its applicability on its own field and does not overlap each other.

Thus, I do not find that at this stage any interim order could be passed in favour of the petitioner.

However, it is made clear that pendency of this writ petition shall not prevent the appropriate authority to take steps on the basis of the complain of the petitioner.

Let affidavit-in-opposition to this writ petition be filed within two weeks from date, reply if any, be filed by the petitioner within a week thereafter.

Let this matter be listed three weeks hence under the heading "Final Disposal".

It is expected that the prescribed authority could not unreasonably delay the action contemplated on the basis of the said complaint."

It is the submission of the learned senior advocate Mr. Moitra that requisition notice ought not to have been given effect to on the following two grounds, firstly, it was on breach of conceptual idea of Section 101 of the said Act, whereby "no confidence motion" simpliciter is only a permissible action, but a "no confidence motion" for removal on assigning the reason of illegal activities, which imposes a stigma upon present appellant, was not legally sustainable; secondly, that the members against whom disqualification proceedings have been set in motion by filing complaints by the appellant, were not legally entitled to sign the requisition notice on "motion of removal".

Besides such, it has been argued that prescribed authority under the statute was required to dispose of disqualification proceeding on the basis of complaints filed by the present appellant, amongst which one complaint is relating to a criminal proceeding involving moral turpitude being a case under Sections 376/511 I.P.C., as such, appropriate direction to be passed by this Court directing him to complete disqualification proceeding before processing with "motion of removal".

This appeal, application for appropriate order and the writ application all have been opposed by private respondents, who are the members of said Samiti.

It is submitted by State respondents that prescribed authority ought to have decided the complaints seeking disqualification of five members of the said Samiti promptly and it should be adjudicated as early as possible.

Mr. Sanyal, learned advocate appearing for the said respondents, the requisitionists of the motion, has strongly opposed the contention of Mr. Moitra, learned senior advocate, by contending, inter alia, that prior to disqualification of any member, he should not be restrained from exercising his power, responsibility and duties as a member of Samiti and on that point reference has been made to a Division Bench judgment of Calcutta High Court passed in the case Subodh Kumar Bari vs. State of West Bengal & Ors., reported in (2001) 1 CLJ 512. It is further contended that Section 101 of the said Act, which deals with "motion of no confidence or removal" of Sabhapati and Sahakari Sabhapati of said Samiti, has empowered the requisitionists to bring "motion of no confidence" for removal and ground as stated in the requisition notice that present appellant committed various illegal activities, has not invited any stigma or prejudice to the appellant.

It is further contended that already during pendency of writ application, the motion for removal reached to an end and appellant was removed by majority decision of 18 members present in the meeting.

Learned senior advocate Mr. Moitra has strongly relied upon a case of Ravi Yashwant Bhoir vs. District Collector, Raigad & Ors., reported in (2012) 4 SCC 407 to contend that on the alleged ground of misconduct as was foundation 6 of requisition notice, it has caused prejudice to the appellant and it is a clear case of breach of principle of natural justice.

Having regard to the relevant submissions of parties, following points evolve for our decision, namely, (1) Whether setting up ground/foundation, namely, "various illegal activities" to issue a requisition notice for removal of present appellant is legally sustainable due to the reason that it casts a stigma in political career of the appellant resulting civil consequence. (2) Whether the requisition notice, which was signed by some members against whom already complaints seeking disqualification of membership are pending is bad in law to carry a motion of removal.

The point no. (1) is taken up for consideration.

Section 101 sub-section (1) of the said Act is relevant provision, which reads such:

"101. Removal of Sabhapati or Sahakari Sabhapati.-[(1)] [Subject to the other provisions of this section, a Sabhapati or a Sahakari Sabhapati] of a Panchayat Samiti may, at any time, be removal from office [by a resolution carried by the majority of the existing members referred to in clause (ii) of sub-section (2) of section 94] at a meeting specially convened for the purpose. Notice of such meeting shall be given to the prescribed authority:

Provided that at any such meeting while any resolution for the removal of the Sabhapati from his office is under consideration, the Sabhapati or while any resolution for the removal of the Sahakari Sabhapati from his office is under consideration, the Sahakari Sabhapati shall not, though he is present, preside, and the provisions of sub- section (2) of section 105 shall apply in relation to every such meeting as they apply in relation to a meeting from which the Sabhapati or, as the case may be, the Sahakari Sabhapati is absent.

[Provided further that no meeting for the removal of the Sabhapati or the Sahakari Sabhapati under this section shall be convened within a period of one year from the date of election of the Sabhapati or the Sahakari Sabhapati:

[Provided also that if, at a meeting convened under this section, either no meeting is held or no resolution removing an office bearer is adopted, no other meeting shall be convened for the removal of the same office bearer within six months from the date appointed for such meeting.]]"

Under the said Act, election in the seats of Panchayat Samiti is permissible as a candidate of any political party. The political party whose members are successful to occupy majority seats, naturally direct election of recommended candidates as Office Bearers, namely, Sabhapati and Sahakari Sabhapati amongst members elected.

In view of nature of election to a seat of the said Samiti and election of Office Bearer, the legislatures at their wisdom has kept a provision that as per wish of majority members, a no confidence motion, could be brought for removal of any elected Office Bearer without assigning any reason thereof. Statutory provision accordingly was enacted to that effect.

Had it been a case of loosing confidence of majority members, naturally an Office Bearer cannot function and consequence is to remove him and election of a new one by decision of majority members. There is no problem if such a situation arises. But in the instant case, it appears that "no confidence motion"

for removal of the appellant was initiated by the requisitionists, total eleven in numbers, mentioning ground for such no confidence motion expressing in the language "various illegal activities". There is no whisper or description even in a cryptic manner about "various illegal activities" and there was even no prior intimation to the appellant about his illegal activities as mentioned. So the coining of the words "various illegal activities", itself is vague term used to bring a "no confidence motion". It is true that in every no confidence motion, which is brought by the requisitionists there is an internal mental factor of dissatisfaction against the concerned Office Bearer against whom no confidence motion is brought, but making a foundation in the nature of allegation to raise a "no confidence motion", could be termed as a stigma against the concerned Office Bearer who surely would suffer prejudice and civil consequences. The Office Bearer is elected member elected by voters of the concerned constituency and in the mind of the voters there will be an adverse impact against the Office Bearer who is removed on the allegation of illegal activities without having any chance to reply/defend the allegation. Hence, we are of the view that this will invite a civil consequence in the terms of Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi, reported in AIR 1978 SC 851, a judgment of Constitution Bench, S.L. Kapoor vs. Jagmohan, reported in AIR 1981 SC 136 and State of Maharashtra vs. Public Concerned for Governance Trust, reported in (2007) 3 SCC 587, where the identical issue was considered by the Apex Court 8 explaining nature, characteristics, parameters and conceptual idea of "civil consequence".

Since the appellant in the name of a political party contested election and became an elected member, he is answerable to the voters who send him as a member of the said Samiti and if it is known to them that appellant was removed from the post of Office Bearer of Sahakari Sabhapati on the foundational ground of various illegal activities, naturally, the political career of the appellant would suffer to a great extent and that too without having any opportunity to explain that he was not involved with any illegal activities, as in the requisition notice there is no whisper even in cryptic manner about the activities, which have been termed as illegal by the requisitionists and under the act there is no provision to file reply against allegation.

When we asked about illegal activities, which in the mind of the requisitionists was sufficient to bring the no confidence motion, learned advocate Mr. Sanyal has answered that illegal activities was change of political faith from Congress to Trinamool Congress. We are surprised that such foundational ground became the subject matter of a requisition notice to prejudice political career of a person, the appellant, before us, when there is specific provision in the statute to disqualify membership of a member for change of allegiance of a political party in whose symbol he was elected.

Having regard to Section 101 of the said Act, we are of the view that a "no confidence motion" is entertainable for removal of Prodhan where there should not be any ground or foundation of bringing "no confidence motion" and if "no confidence motion" is carried on that ground, it will invite civil consequence or evil consequence to the Office Bearers relating to his political career naturally and as such, natural justice principle will have play in the matter, thereby a breach of Article 14 of the Constitution of India.

In this context, we may apply the proposition of motive and foundation as is applied in the service jurisprudence when a service of a probationer is terminated. If the termination is with motive being dissatisfied with the job, termination is called as termination simpliciter. But if there is a foundation of 9 such termination, it becomes a penal consequence and accordingly is illegal and unjustified. It has been held by the Apex Court while discussing the conceptual idea and differentiation of applicability of the reasoning of motive and foundational fact to this extent that when there is an allegation leading something against a person, a probationer in the service, naturally justice requires that allegation should be decided and heard before taking any step, namely, termination of service, as otherwise it will be breach of principle of natural justice as the person concerned will suffer prejudice in the service career as termination will land him to a situation where other employer may deny to appoint him in other service.

Considering those aspects the Apex Court dealt with the issue in details, discussing the principle of law that if there is a foundation of termination it requires a hearing and it cannot be considered as termination simpliciter. The test has been laid down in details about what will be the termination simpliciter and the distinction of motive and foundation to pass it, in the case State of Haryana vs. Stayender Singh Rathore, reported in (2005) 7 SCC 518. Para 9 of the said judgment reads such:

"9. We find that the High Court did not consider the question of stigma or the effect of any enquiry held before the order of termination was passed. The question whether the enquiry purportedly held provided the motive or the foundation was required to be considered by the High Court in detail. That has not been done. The question whether termination of service is simpliciter or punitive has been examined in several cases e.g. Dhananjay v. Chief Executive Officer, Zilla Parishad, Jalna and Mathew P. Thomas v. Kerala State Civil Supply Corporation Limited and Ors. An order of termination simpliciter passed during the period of probation has been generating undying debate. The recent two decision of this Court in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simpliciter and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during the period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Dipti Prakash Banerjee (supra) after referring to various decisions it was indicated as to when a simple order of termination is to be treated as "founded" on the allegations of misconduct and when complaints could be only as a motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained thus:

"If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the allegations and will be bad.

But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would be a motive and not the foundation and the simple order of termination would be valid."

From a long line of decisions it appears to us that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case. Many a times the distinction between the foundation and motive in relation to an order of termination either is thin or overlapping. It may be difficult either to categorize or classify strictly orders of termination simpliciter falling in one or the other category, based on misconduct as foundation for passing the order of termination simpliciter or on motive on the ground of unsuitability to continue in service.

In the case Dipti Prakash Benerjee vs. Satvendra Nath Bose National Centre for Basic Sciences, Calcutta, reported in (1999) 3 SCC 60 in para 21 the Court held "if findings were arrived at in inquiry as to misconduct behind the back of the officer or without regular departmental enquiry, the simple order of termination is to be treated as 'founded' on the allegations and will be bad. But if the inquiry was not held and no findings were arrived at and the employer was not inclined to conduct an inquiry but, at the same time he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to inquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstances the allegations would be a motive and not the foundation and the simple order of termination would be valid."

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 simpliciter, 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 11 motion for removal" simpliciter, but it is coloured with a foundation without any adjudication, which would be bad in law.

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.

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.

Hence, point no. (1) is answered in favour of appellant.

Now the second point regarding right of members against whom complaints are pending seeking disqualification from membership, whether may file any requisition notice for removal of complainant is being considered. To answer this question we need not to wait more.

It is a basic principle of law that punishment in the nature of disqualification cannot be imposed by debarring somebody to exercise his power as a member or to exercise his rights and responsibilities as a member, so long no order of disqualification is passed. If the members against whom complaints are pending are debarred to bring requisition notice, the consequential effect would be that disqualification clause is being imposed upon them prior to adjudication of complaints seeking disqualification, which under the law is not permissible. The Division Bench judgment as referred to by respondents has dealt with that issue and we are also holding the same view.

Hence the point no. (2) as raised by Mr. Moitra on that issue is answered negatively by us.

Having regard to aforesaid findings and observation, impugned requisition notice, meeting convened by the prescribed authority on 30th May, 2012 to pass the motion of removal as well as decision of said meeting removing the appellant, all stand set aside and quashed.

The third point as urged about pendency of the complaints before the prescribed authority and for which relief sought for in the writ application for a direction to prescribed authority to dispose of the complaints, we are of the view that prescribed authority under any circumstances had no jurisdiction to keep the matter pending. It appears that one of the members, Sri Jamaluddin Mondal was in jail custody for more than forty eight hours in a case involving moral turpitude under Section 376/511 I.P.C. Section 213B of said Act is the provision for suspension of members of Panchayat. Section 213B reads such:

"213B. Suspension of Members of Panchayats.-(1) Notwithstanding anything to the contrary contained in this Act or in any other law for the time being in force, the prescribed authority for such Panchayat as may be specified by notification, may, after giving an office-bearer or member of such Panchayat an opportunity to show-cause against such action as may be proposed to be taken against him, place such office- bearer or member under suspension, if he-

(i) has, prima facie, been found to be guilty of criminal breach of trust or criminal negligence or gross financial irregularity or impropriety in an inspection report on audit of accounts and his suspension is necessary to prevent any likely delay in further investigation or any tampering or destruction of records, or

(ii) has, in an inspection held by a competent authority, prima facie, been found guilty of criminal breach of trust, financial irregularity, misuse or abuse of power for wrongful gain or gross negligence of duty requiring penal action by a competent authority and his suspension is necessary to prevent any likely delay in further investigation or any tempering or destruction of records, or

(iii) has been implicated in a proceeding commenced against him on any criminal charge referred to in clause (h) of section 8, section 97 or section 142, as the case may be, and in pursuance of such proceeding, either he has been detained in custody for a period exceeding forty-eight hours or a charge in the precise formulation of the specific accusation within the concept and meaning of the Code of Criminal Procedure, 1973 (2 of 1974), has been framed against him in a competent court of law:

Provided that the prescribed authority immediately after placing the office-bearer under suspension, shall proceed to cause a full enquiry into the accusations made against such office-bearer and on completion of such enquiry, may-

(a) institute a proceeding against him on a criminal charge under any law for the time being in force, 13

(b) furnish a proposal to a competent authority recommending such legal measures against him under the Act or any rule thereunder as deemed appropriate, or

(c) revoke the order for suspension and reinstate him in his office with such direction as may be deemed fit, if the prescribed authority is of the opinion that there is reasonable ground to believe that there has been an irregularity committed without proof of any criminal intent and without any wrongful gain to him or any wrongful loss to the Panchayat and on such reinstatement, such office-bearer shall be deemed to hold the charge of his office without any interruption because of suspension.

[(2) When an office-bearer in a Panchayat is placed under suspension under sub-section (1),-

(a) subject to the provisions under clause (b), the other office-bearer in such Panchayat shall exercise the powers, perform the functions and discharge the duties of the office bearer under suspension, under sub-section (4) or sub-section (5) of section 9, section 98 or section 143, as the case may be,

(b) notwithstanding the provision under clause (a), such Panchayat may, by majority decision of the existing members directly elected to that Panchayat, in a meeting specially convened for the purpose, select a person from among them not being an office-bearer, to act temporarily in place of the office-bearer under suspension and on being so selected, he shall exercise the powers, perform the functions and discharge the duties of such office-bearer until the office-bearer placed under suspension is reinstated in his office or is subsequently removed or vacates the office by resignation or otherwise in conformity with the provisions of the Act and the rules made thereunder:

Provided that the notice of such meeting shall be given by the office- bearer holding the charge with an intimation to the prescribed authority referred to in first proviso to sub-section (1) of section 16, section 105 or section 150, as the case may be, and such prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing within a week of the meeting on the proceedings of the meeting.] (3) Any office-bearer or member, who is placed under suspension under sub-

section (1), may within thirty days from the date of the order of suspension, prefer an 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.

(4) The order passed by the authority as aforesaid on such appeal shall be final.]"

Under clause III sub-section 1 of Section 213B it is clear that when any member is detained in custody exceeding forty eight hours in connection with a criminal case specified under Section 97 clause (h) of West Bengal Panchayat Act, which is applicable to a member of a Panchayat Samiti, prescribed authority, immediately should place him under suspension beside issuance of show-cause 14 notice for other appropriate action. Section 97 of the said Act deals with disqualification of members of Panchayat Samiti. The criminal cases for which suspension order could be passed due to remaining in custody exceeding forty eight hours has been mentioned under Clause (h) of Section 97, which reads such:

"97(h) he has been convicted by a court of an offence involving moral turpitude punishable with imprisonment for a period of more than six months or an offence under Chapter IXA of the Indian Penal Code or section 3 or section 9 of the West Bengal Local Bodies (Electoral Offences and Miscellaneous Provisions) Act, 1952, or Chapter III of Part VII of the Representation of the People Act, 1951, and five years have not elapsed from the date of expiration of the sentence; or."

It appears on reading of said Section 97 clause (h) of the said Act that in the event of involvement in a case of moral turpitude punishable more than six months or an offence under Chapter IXA of the Indian Penal Code and other Sections as mentioned thereof, the suspension order could be passed.

In the instant case it is a case under Sections 376/511 I.P.C., as such, prescribed authority was required to act promptly and forthwith to suspend that person from the membership of Panchayat Samiti and without doing such, he committed gross negligence to discharge his duties vested under the statute. Hence, the said authority is directed to pass order of suspension under Section 213B against the respondent no. 11 within forty-eight hours from this date and to submit a compliance report before the High Court Registry. He is also directed to take further appropriate steps against respondent no. 11 on the basis of the complaint and to dispose of the same within fortnight from this date and a compliance report to be filed to that effect to High Court registry.

So far as the complaints as filed, he is directed to initiate a proceeding within forty eight hours asking the persons concerned to show-cause as to why they should not be disqualified to remain as member and to complete the proceeding by reasoned decision within two weeks from this date and thereafter to communicate said decision to respective parties. Compliance report to be filed to that effect before the High Court Registry forthwith after taking decision.

Considering the aforesaid findings and observation the writ application, appeal and application for appropriate order all stand allowed.

Before parting with the matter, since the respondent members of said Samiti submit that they should be allowed liberty to bring the motion of removal against the appellant afresh, we are of the view that under the statute there is no bar and they are at liberty to proceed in accordance with law.

(Pratap Kumar Ray,J.) I agree, ab (Subal Baidya,J.)

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