Tulsi Malakar And Anr. vs State Of Tripura And Ors.

[1] Petitioners have challenged an order dated 17th December 2019 as Annexure - 4 which, if one goes simply by the operative portion, amounts to removal of the petitioner No.2 as an Upa-Pradhan of Santir Bazar Gram Panchayat. However, if one reads the entire order, the purport of the order is to remove the petitioners No.1 and 2 from the position of Pradhan and Upa- Pradhan respectively of the said Gram Panchayat. We do not find any separate order specifically removing the petitioner No.1 as a Pradhan of the Gram Panchayat. However, it is an admitted position that respondents No.7 and 8 have been inducted as Pradhan and Upa-Pradhan of the said Gram Panchayat on the seats vacated by the petitioners. We, therefore, proceed on the basis that the impugned order at Annexure - 4 dated 17th December, 2019 is one by which the petitioners No.1 and 2 were removed as Pradhan and Upa-Pradhan of the Gram Panchayat.

[2] This challenge arises in following background :

Petitioners No.1 and 2 were elected as Pradhan and Upa-Pradhan of the Santir Bazar Gram Panchayat which consisted of 9 elected members. On 20th November 2019, District Panchayat Officer issued a memorandum appointing the Block Development Officer, Salema, as an Observer for the meeting which would be convened on 5th December, 2019 for removal of the Pradhan and Upa-Pradhan of the Panchayat. On 17th December 2019, District Panchayat Officer passed his impugned order which reads as under :

"A proceedings/Minutes of a meeting specially convened for removal of Pradhan and Upa-Pradhan of Santir Bazar Gram Panchayat is received from the Block Development Officer, Salema R. D. Block by vide No.F.3(13)/BDO/SLM/ESSTT/2019-20/2207 dated, 05/12/2019.

In the proceedings it is seen that, out of total 09(Nine) Nos. directly elected members of Santir Bazar Gram Panchayat, 09(Nine) members attended in the meeting. From this 09(Nine) members only 05(Five) members participated in election and voted in favour of motion for removal of Pradhan and Upa-Pradhan. The remaining 04(Four) members abstain from the process of election. They neither cast their vote in favour of removal nor against of removal.

AND, now in exercise of the power conferred under the provision of Sub-Section (1) of Section (23) of the Tripura Panchayats Act, 1993 and Sub-rule (1) of Rule (5) of the Tripura Panchayats (Administration) Rules, 1994, I, the District Panchayat Officer, Dhalai District, Ambassa hereby REMOVED Smt. Bharati Rani Dey(Paul) from the office/post of the Upa-Pradhan of Santir Bazar Gram Panchayat under Salema R.D. Block from the date of issuing of this Memorandum."

As per this order, a special meeting was conducted for removal of the Pradhan and Upa-Pradhan on 5th December, 2019. All 9 elected Members of the Gram Panchayat were present during such meeting. Only 5 members participated in the election. They all voted for the motion of removal. Remaining 4 members absented from voting. Minutes of the meeting were placed before the District Panchayat Officer who, as noted above, ordered removal of the Upa-Pradhan and we proceed to believe that not specifically removing the Pradhan was only a typographical oversight. One more thing to be noticed from this order is that the District Panchayat Officer was purportedly exercising powers under sub-section (1) of Section (23) of the Tripura Panchayats Act, 1993 ("the Panchayat Act" for short) and sub-rule (1) of Rule (5) of the Tripura Panchayats (Administration) Rules, 1994 ("the said Rules" for short).

[3] This order the petitioners have challenged on various grounds. Principally, the contentions of the petitioners are that the District Panchayat Officer had no power to remove the petitioners under Section 23 of the Panchayat Act. Counsel submitted that the procedure laid down under the Rules for passing order under Section 23 was also not followed. Entire action was thus without authority of law.

[4] On the other hand, learned Government Advocate, Mr. Debalay Bhattacharya, opposed the petition and relied on the affidavit filed by the official respondents.

[5] Though served, respondents No.7 and 8 have not filed any reply. Their advocate stated that he was unable to contact them and, therefore, no reply could be filed.

[6] Section 22 of the Panchayat Act pertains to removal of members of Gram Panchayat. As per sub-section (1) of Section 22, the prescribed authority after giving an opportunity to the member of a Gram Panchayat to show cause against the proposed action, may order, removal from office, if any of the grounds mentioned in clauses (a) to (d) are established. These grounds are; the conviction of a member by a criminal court for offence involved in moral turpitude after the election, incurring disqualifications by the member at the time of his election, his incurring disqualifications mentioned in clauses (a) to (l) of sub-section (1) of Section 15 after the election and absenting from 5 consecutive meetings without the leave of the Gram Panchayat.

[7] On the other hand, Section 23 of the Panchayat Act pertains to removal of Pradhan and Upa-Pradhan and reads as under :

"Removal of Pradhan and Upa-Pradhan - 23. (1) The Pradhan or the Upa-Pradhan of a Gram Panchayat may be removed from his office by a resolution of the Gram Panchayat carried by a majority of its existing members at a meeting specially convened for the purpose by the prescribed authority.

(2) No meeting under sub-section (1) shall be convened by the prescribed authority unless a notice in writing has been given to him by at least one-third of the existing members of the Gram Panchayat in such form and in such manner as may be prescribed.

(3) The prescribed authority shall convene the meeting under subsection (1) after giving at least fifteen days prior notice to all the existing members of the Gram Panchayat.

(4) If the motion for removal of Pradhan is under consideration, the meeting will be presided over by the Upa-Pradhan and if the motion for removal of Upa-Pradhan is under consideration, the meeting will be presided over by the Pradhan,

(5) Notwithstanding anything contained elsewhere in this Act, while any motion for removal of a Pradhan and an Upa-Pradhan from their offices is under consideration in a meeting convened under sub-section (1), the Pradhan or the Upa-Pradhan shall not preside over such meeting, but he shall have right to speak or otherwise take part in the proceedings of such a meeting , including the right to vote, and the meeting shall be presided over by the prescribed authority or his nominee who shall not have the right to vote.

(6) If the motion for removal of a Pradhan, or as the case may be an Upa-Pradhan, is not carried out by the majority of the existing members of the Gram Panchayat, no subsequent meeting for the removal of the same Pradhan, or as the case may be the Upa-Pradhan, shall be convened within a year of the previous meeting.

(7) Notwithstanding anything contained elsewhere in this Act, majority of the existing members of a Gram Panchayat shall form the quorum for a meeting for removal of a Pradhan or an Upa-Pradhan, as the case may be under this Section.

(8) Subject to the provision of this Section, the procedure for the removal of the Pradhan or Upa-Pradhan including that to be followed at such meeting, shall be such as may be prescribed."

[8] The procedure for removal of Pradhan and Upa-Pradhan and members of a Gram Panchayat is laid down in Rule 5 of the said Rules. Relevant portion of this Rule reads as under :

"5. Procedure for removal of Pradhan and Upa-pradhan and members :

(1) The District Panchayat Officer shall be the prescribed Authority for removal of a member of a Gram Panchayat under sub-section(1) of Section 22 of the Act. He shall exercise this function only on the basis of receipt of communication in this regard from the concerned Gram Panchayat. The Additional District Magistrate of the concerned district shall be appellate authority under sub-Section(2) of Section 22 of the Act.

(2) On receipt of a notice in Form 2 signed by at least one third of the existing members of a Gram Panchayat, District Panchayat Officer shall convene a meeting for removal of a Pradhan under Section 23 of the Act. Such notice shall be delivered in person to the District Panchayat officer by one of the members signing the notice or shall be sent by Registered post.

(3) In case of removal of both Pradhan and Upa-Pradhan in the same meeting, the meeting shall be presided over by an officer not below the rank of Extension Officer who may be authorized by the District Panchayat Officer.

Provided that in case of removal of Pradhan, or as the case may be, the Upa-Pradhan, the District Panchayat Officer may appoint an observer for such meeting who shall submit a report in writing to the District Panchayat Officer immediately after completion of the meeting.

(4) At the beginning of the meeting the Presiding Officer shall read out to the members of the Gram Panchayat present in the meeting the notice in Form 2 given under sub-section (2) of Section 23. He shall then allow the motion for removal to be read and discussed. Such discussions shall terminate before expiry of one hour from the commencement of the meeting or such further time as may be extended by the Presiding Officer. Upon the conclusion of the debate or upon expiry of the said period, the motion shall be put to vote. Vote shall be by show of hands:

Provided that in case of absence of quorum, meeting shall be adjourned and the adjourned meeting shall be convened in the same manner.

(5) The Presiding Officer shall declare the result of voting. The motion for removal shall be deemed to have been carried only when it has been passed by the majority of the existing members of Gram Panchayat.

(6) The Presiding Officer shall forthwith forward the minutes of the meeting to the District Panchayat Officer. The District Panchayat Officer will issue the removal order and intimate the same to the Secretary of the Gram Panchayat, Secretary of the Panchayat Samiti and Block Development Officer.

(7) In case of removal of both Pradhan and Upa-Pradhan, the charges will be taken over from the Pradhan and Upa-Pradhan by the members so appointed under Rule 30 of the Tripura Panchayats (Election of Office Bearers) Rules, 1994, until the new Pradhan or, as the case may be, the new Upa-Pradhan is elected and assumes office.

(8) If the Pradhan or, as the case may be, the Upa-Pradhan fails or refuses to hand over the charges, the transfer of charges shall be effected according to the sub-section (2) and sub-section (4) of Section 47 of the Act."

[9] If we analyze these statutory provisions, it would immediately emerge that what Section 22 of the Panchayat Act refers to is removal of a member of a Gram Panchayat for any of the grounds mentioned in clauses (a) to (d) of sub-section (1) of Section 22. The action for removal of a member can be taken by the prescribed authority who, as per sub-rule (1) of Rule 5, is the District Panchayat Officer. Any such action would be preceded by an opportunity of hearing. On the other hand, Section 23 of the Panchayat Act refers to removal of Pradhan or Upa-Pradhan. As provided under sub- section (1) of Section 23, Pradhan or the Upa-Pradhan of a Gram Panchayat can be removed from his office by a resolution passed by the Gram Panchayat carried by a majority of the existing members at a meeting specially convened for such purpose by the prescribed authority. Sub-section (2) of Section 23 provides that no meeting under sub-section (1) shall be convened unless a notice in writing has been given to him by at least one- third of the existing members of the Gram Panchayat in prescribed format. Sub-section (3) of Section 23 provides that the prescribed authority shall convene such meeting after giving at least 15 days prior notice to all the existing members of the Gram Panchayat. Sub-section (6) of Section 23 provides that if the motion for removal of a Pradhan or the Upa-Pradhan is not carried out by the majority of the existing members of the Gram Panchayat, no subsequent meeting for removal of the same Pradhan or the Upa-Pradhan shall be convened within a year of previous meeting. Clearly thus, Section 23 of the Panchayat Act is for the procedure of no confidence against a Pradhan or Upa-Pradhan of the Panchayat and as clarified under sub-section (1), such removal will only be from his office i.e. office as a Pradhan or Up-Pradhan, as the case may be and not as a member of the Gram Panchayat. Pradhan and Upa-Pradhan being members of a Gram Panchayat can also be removed as such but such action has to be under Section 22 and not under Section 23 of the Panchayat Act. Sub-section (6) of Section 23, as noted, would protect a Pradhan or Upa-Pradhan from a renewed attempt at removal for a period of 1 year once a motion for such purpose is not carried by a majority of the members. Thus, there is a clear distinction between an action which can be taken against a member of the Panchayat including a Pradhan or Upa-Pradhan under Section 22 by the prescribed authority and one which can be taken against Pradhan or Upa- Pradhan by the Panchayat itself under Section 23.

[10] This clarification was necessary since the action taken by the authority was not clear as to which powers the prescribed authority was exercising. As correctly clarified by Mr. Nandi for the petitioners, there was no complaint against the petitioners of their continued absence from the meetings of the Panchayat which could lead to an action of removal as members in terms of Section 22(1)(d) of the Panchayat Act. In any case, any such action had to be preceded by a notice and an opportunity of hearing which in the present case has not been done. The District Panchayat Officer, however, is on his side clear that he was exercising powers under Section 23(1) of the Panchayat Act. Firstly, such powers vest with the Gram Panchayat and the District Panchayat Officer at best may be an authority who would make a declaration on the basis of the resolution that the Panchayat may have passed. In this case also, he has confused the matter further by referring to the procedure laid down in sub-rule (1) of Rule 5 of the Rules which, as noted, relates to his exercise of powers under Section 22 of removal of a member of a Panchayat.

[11] Be that as it may, if any valid resolution of removal (popularly referred to as no confidence motion) were to be passed against the petitioners by the Panchayat, at least two things were imperative. First, a request for convening such a meeting by at least one third of the members of the Panchayat and second, a clear 15 days of notice to all members before the meeting is convened. In the present case, the action fails on both counts. Respondents have not produced any request for convening the meeting by the required number of members of the Panchayat. They have also not been able to seriously refute the grounds of the petitioners that the notice of meeting which was convened on 5th December, 2019 was served on the members of the Panchayat only on 27th November, 2019. Thus, there was clear breach of the requirement of service of notice at least 15 clear days before the date of a meeting.

[12] For all these reasons, impugned order dated 17th December, 2019 is set aside. Consequently, the petitioners shall be restored to their original position of Pradhan and Upa-Pradhan of the Gram Panchayat, induction of respondents No.7 .and 8 on the said positions subsequently notwithstanding.

Petition is disposed of accordingly. Pending application(s), if any, also stands disposed of.