Calcutta High Court (Appellete Side)
Abdul Sekh vs The State Of West Bengal & Ors on 11 August, 2021
Author: Shampa Sarkar
Bench: Shampa Sarkar
S/L 14
11.8.2021
Court No.19
SD
WPA 12384 of 2021
(Via Video Conference)
Abdul Sekh
Vs.
The State of West Bengal & Ors.
Mr. Saptansu Basu
Mr. Sukanta Chakraborty
Ms. Sreyashee Biswas
Ms. Benajir Hasna
Mr. Anindya Haldar
... for the Petitioner.
Mr. Santanu Mitra
Mr. Pranab Halder
... for the State.
Mr. N.C. Behani
Mr. Amrita Lal Chatterjee
... for the Private Respondents.
The writ petition has been filed challenging the requisition notice and the subsequent notice for removal of the Pradhan on two grounds. First, that the requisition notice was issued with a stigma against the Pradhan. Second that two separate motions were required under the law, one expressing lack of confidence and the other seeking removal.
Mr. Saptansu Basu, learned Senior Advocate appearing on behalf of the petitioner, submits that the proceedings initiated by the prescribed authority under Section 12(3) and 12(4) of the West Bengal Panchayat Act, 1973 (hereinafter referred to as 'the said Act') stand vitiated as the foundation of the requisition seeking removal of the Pradhan is based on the allegation that the Pradhan was 2 against all developmental work in the locality and had completely failed to discharge his duties and responsibilities towards the improvement of the locality.
Reliance has been placed on a decision of this Court in the matter of Ujjal Mondal vs. State of West Bengal reported in 2013 (1) CHN (CAL) and Sourendra Nath Das vs. The State of West Bengal & Ors. passed in WPA 11903 of 2021.
According to Mr. Behani, learned advocate, who appears on behalf of the requisitionists, the intention to remove was sufficient indication in the requisition notice and the other allegations against the Pradhan of not doing any developmental work and in not cooperating with the members can easily be ignored. Thus, it is submitted on behalf of the requisitionists that the provisions of Section 12(2) of the West Bengal Panchayat Act, 1973 allows such kind of requisition when the only requirement was an intention to remove the Pradhan on account of loss of confidence. He submits that the other portions of the requisition are redundant and neither the prescribed authority nor the Court can take cognizance of such statements.
In the matter of Ujjal Mondal (supra), the Hon'ble Division Bench of this Court held that the requisition notice/no confidence motion was entertainable only when there was no foundation for bringing the motion. The relevant portion is quoted below:
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"24. 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."
Mr. Mitra, learned advocate, submits that the notice is not stigmatic as such. He distinguishes the decision of Ujjal Mondal (supra) on the ground that in Ujjal Mondal (supra), the allegations were more serious. According to him, in this case the allegation is inaction and incompetence which is not stigmatic, and as such, the foundation of the 'no confidence motion' is not misconduct or mis-appropriation. Mr. Mitra refers to a decision of a Division Bench of this court in the matter of Ujjwal Kumar Singha Vs. State of West Bengal, reported in (2017) 2 CHN 258 (DB). In the said decision the court observed that in an institution which runs on democratic principles, a person can continue to be its head so long he/she enjoys the confidence of the persons who comprised such a body. According to Mr. Mitra, one of the challenges before the Division Bench was that the requisition notice carried a stigma but the Division Bench did not set aside the requisition.
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Having perused the judgment of the Division Bench in Ujjwal Kumar Singha (supra), I do not find that the Division Bench decided the point as to whether the requisition which carries some allegation against the Pradhan could be entertained. It appears that there was a challenge to the 'no confidence motion' on the ground that the same was carrying allegations, but the Hon'ble Division Bench held that the learned Single Judge had dealt with the issues and had dismissed the writ petition with reasons. However, there is no observations as to whether the requisition, even if, it contained any allegation or stigma could be entertained contrary to what was decided in Ujjal Mondal (supra).
This court in the matter of Sourendra Nath Das v. The State of West Bengal & ors. (WPA 11903 of 2021) held as follows:
"Having considered the submissions made by the petitioner and the learned advocates for the prescribed authority, this court is of the opinion that a reading of the requisition notice (which is in bengali), as a whole, would indicate that in the opinion of the members, the pradhan has proved to be incompetent as he did not perform his duties and developmental works, causing deprivation to the people of the locality from the benefits all governmental projects, and thus the members had lost confidence in their leader and wanted his removal.
The effect of such a requisition is that the pradhan being incompetent to perform his duties had caused suffering to the people and would be consequently removed as the members lost confidence on account of such non-performance. The pradhan has a career. If the requisition is allowed to stand, it would be a reflection of his inability and incompetence in performing his duties as a leader of the gram panchayat. This is the foundation of the requisition. The 'no confidence' is based on the allegation of incompetence and inability of the 5 pradhan and the suffering caused to the people in the locality due to such incompetence. This is not a simple requisition for removal of the pradhan. The removal if carried through in the meeting will carry a stigma that the pradhan was removed as he failed to perform his duties and developmental works.
In my opinion, the decision of Ujjal Mondal (supra) applies. Even if the allegations are not as serious as misappropriation or misconduct, incapacity or incompetence of a political leader to perform works in the locality which has cause disillusionment, unhappiness and suffering to the people in the locality are allegations which can be viewed with seriousness. The future prospects of the pradhan might be jeopardized. He will also not get a chance to explain his conduct. Thus, the requisition notice and subsequent notice are set aside for the reasons stated hereinabove."
Another interim decision of a Division Bench has been placed by the respondents, in the matter of Prasanta Mitra Vs. The State of West Bengal passed in MAT 1086 of 2019. Having perused the interim order, this court is of the opinion that the consideration before the Hon'ble Division Bench was not with regard to any stigma or allegation in the requisition notice.
Having considered the rival submissions of the learned advocates for the respective parties, this Court is of the opinion that the issue before the Hon'ble Division Bench in Ujjal Mondal (supra) with regard to the removal of the Pradhan was similar to the one raised by the petitioner in the writ petition. Here foundation of the 'no confidence' and the intention to remove the Pradhan is the Pradhan's inability to do developmental work and abandonement of such work in the locality. The Pradhan can be removed by the requisitionists if they have lost confidence in him by bringing 6 a requisition with the intention to remove. As soon as there are allegations of incapacity, incapability or non-cooperation, the same becomes stigmatic. The Pradhan is a politically appointed representative of the people and allegation of such a nature may have a negative effect on his future prospects or on his credibility as a member of the Panchayat as well.
Thus, having considered the requisition notice as a whole, it indicates that the ground for removal of the Pradhan is not only lack of confidence but incompetence of the Pradhan to perform developmental work in the locality. Such allegations may also enrage and turn the people in the locality against the Pradhan.
Thus, in my view, with due respect to the submissions made by the learned advocate of the requisitionists, the requisition cannot be sustained in law only on the ground that there are some allegations against the Pradhan which operate as a stigma.
Under such circumstances, the requisition as also the notice dated August 3, 2021 are set aside and quashed. This matter is entertained solely for the reasons indicated hereinabove but the Court has indicated in various orders that any attempt on the part of either the Pradhan or the prescribed authority to stall a meeting except in accordance with law, would be a direct curtailment of the democratic rights of the requisitionists and the same shall not be permitted in any form.
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Such meetings which are required for proper functioning of any office have not been barred by the Government. The Government offices have resumed functioning.
The requisitionists are granted liberty to bring a fresh requisition with immediate effect under Section 12(2) of the said 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) of the said Act within the time period prescribed by the statute. The bar under Section 12(11) of the said Act shall not be applicable.
It is made clear that the prescribed authority shall be entitled to seek police protection and if such request is made, the police authority shall render all support to the requisionists as also the prescribed authority without any delay and laches. It is also made clear that if the Pradhan tries to evade service of the requisition then the requisitionists shall be entitled to serve the same in the office through his Secretary or assistants and in the event the service is not accepted then the requisitionists will be entitled to paste the motion in the office of the Pradhan at a conspicuous place in addition to sending the same by registered post.
The next point of Mr. Basu that two separate notices have to be issued under Section 12(2) of the said Act is not passed by Mr. Basu.
Accordingly, the writ petition is disposed of. 8 However, there will be no order as to costs. All the parties are directed to act on the basis of the server copy of this order.
(Shampa Sarkar, J.)