1. Sukrat Oraon 2. Sushila Horo 3. Teresha Lakra 4. Binodni Devi 5. Puran v. 1.The State of Jharkhand 2. The State Election Commission, Jharkhand 3. The Deputy Commissioner
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.C. No. 1333 of 2013. ----- 1. Sukrat Oraon 2. Sushila Horo 3. Teresha Lakra 4. Binodni Devi 5. Puran Cheek Baraik 6. Basant Guria 7. Kamla Devi 8. Punam Devi 9. Suraj Mani Devi 10. Arjun Sahu 11. Basanti Dungdung 12. Rashmi Minz Petitioners. Versus 1.The State of Jharkhand 2. The State Election Commission, Jharkhand 3. The Deputy Commissioner, Gumla 4. The Presiding Officer-cum-Sub-Divisional Officer, Gumla 5. The Secretary to the Panchayat Samiti-cum-B.D.O., Basia 6. Oriyani Bara Respondents. Coram : The Hon'ble Mr. Justice Prashant Kumar. ..... For the Petitioners : For the Respondents : ----- Sri Anil Kumar Sri Rajiv Ranjan, Advocate ----- 09/03.09.2013. 1. This application has been filed for quashing the order dated 13.02.2013 passed by the State Election Commissioner Jharkhand , Ranchi in Appeal Petition No.1- Gumla/2012, whereby and where under, he set-aside the proceedings of no confidence motion brought against Respondent no.6, and ordered that she will continue to function as Pramukh of the Panchayat Samiti , Basia. 2. It appears that petitioner no.12( Rasmi Minz) gave a notice of no confidence motion against respondent no.6 on 31.10.2012, which was signed by other petitioners. It further appears that the said notice of no confidence motion received in the office of respondent no.4 on the same date. It further appears that respondent no.4 on 09.11.2012 issued notice in Form 'kha' for holding meeting on 24.11.2012. It is stated that on 23.11.2012 the meeting was adjourned vide Annexure-7 and re-fixed on 12.12.2012 by Annexure-9. It then appears that vide Annexure-10 the meeting was again adjourned by respondent no.4. Thereafter, vide Annexure-11, the new date of meeting was fixed on 15.12.2012. It further appears that on 15.12.2012, the meeting took place and in the said meeting no confidence motion passed against
Legal Reasoning
respondent no.6. The respondent no.6 has challenged the aforesaid resolution before respondent no.2, by filing a petition u/s 43 of Jharkhand Panchayat Raj Act (hereinafter referred as Act). Respondent -2- no.2 by his order dated 13.02.2013 set aside the aforesaid resolution on three grounds namely :- i) The Presiding Officer(respondent no.4) have made no efforts to see whether the grounds of no confidence motion are based on facts, which is mandatory as per Rule 3-VII of Jharkhand Panchayat (Grampanchayat ke Up Mukhiya/ Panchayat Samiti ke Pramukh evem Up Pramukh / Zila Parishad ke Adhyaksh ke virudh aviswas prastav sanchalan prakriya) Niyamawali, 2002 (hereinafter referred as the above Rules). ii) The Election Commission further found that the date of meeting was fixed on 24.11.2012 in violation of Rule-3-VIII of the above Rules.. iii) From perusal of proceeding of the Panchayat Samiti dated 15.12.2012, the Election Commission further found that no member had stated anything about the grounds for no confidence motion. Thus, the commission come to the conclusion that there is no debate on the issue. 3. From perusal of impugned order, it further appears that learned Election Commissioner called for the register of the proceedings of the Panchayat Samiti and after perusing the same, found that allegations against the respondent no.6 that she did not constitute Standing Committee and was unable to call meeting are not sustainable. Accordingly, learned Election Commissioner set aside the resolution by which no confidence motion passed on 15.12.2012 and directed that respondent no.6 will continue to function as Pramukh of the Panchayat Samiti, Basia. The said order challenged in this writ application. 4.
Legal Reasoning
Sri Anil Kumar, learned counsel appearing for the petitioners submits that as per Rule -3 of "the above Rules" it is not mandatory for the Presiding Officer to assign any reason for admitting the motion. Thus, the finding of the learned Election Commissioner that no efforts were made by the Presiding Officer to see whether the grounds of no confidence motion are in fact available or not is wholly erroneous. Sri Anil Kumar further submits that Rule-3-VIII of "the above Rules" provides that Presiding Officer shall take steps for fixing the date of meeting within 15 days from the date of receipt of motion. He further submits that in the instant case, the Presiding Officer fixed the date of meeting on 09.11.2012. Thus, there is no violation of Rule 3-VIII. Sri Anil -3- Kumar then submits that it is not necessary for the Presiding Officer to record the statement of different members, who participated in the debate. Thus, the finding of Election Commissioner that in the proceeding, the statements of various members were not recorded, can not be a ground for setting aside the resolution. Sri Anil Kumar further submits that even if the no confidence motion was brought against the Presiding Officer without any ground, the same cannot be challenged in view of a judgment of Allahabad High Court in Radheshyam Vs. State of Utter Pradesh and others decided on 2nd May, 2012. 5. On the other hand, Sri Rajiv Ranjan, learned counsel appearing for the respondent no.6 submits that from the perusal of Rule 3-VII of "the above Rules", it is manifestly clear that Presiding Officer after receipt of motion is required to satisfy himself that the motion is factually tenable and then only he can admit the said motion and fix the date for meeting. He further submits that as per Rule-3-VIII of "the above Rules", it is imperative for the Presiding Officer to hold meeting within 15 days from the date of receipt of notice and that too by giving seven days prior notice to different members. Sri Rajiv Ranjan further submits that in the instant case, admittedly, motion received in the office of respondent no.4 on 31.10.2012, thus, it is incumbent for him to hold meeting within 15 days from that date. He further submits that the meeting fixed by the Presiding Officer can not be adjourned even on the ground of less of quorum. He submits that if meeting did not held on the date fixed then the no confidence motion will become infructuous. He further submits that Presiding Officer has no power to adjourn the meeting. He submitted that in the instant case, the Presiding Officer adjourned meeting on two occasions. Accordingly, he submits that on the date of meeting i.e. on 15.12.2012, there is no motion pending against the petitioner in the eye of law, because the same has become infructuous. He further submits that from the impugned order, it is clear that the register of the meetings called by the Election Commissioner and on perusal of the same, he concluded that respondent no.6 hold altogether 19 meetings and constituted altogether seven(7) standing committee. Thus, the allegations that petitioner had not constituted standing committee and failed to call meetings are wholly malafide and against the record. Sri Rajiv Ranjan submits that in view of the judgment of the Supreme Court in Ravi Yashwant Bhoir versus Collector reported in (2012) 4 SCC-407 an elected member can not be removed from the office in casual manner without strict adherence to the statutory -4- provisions. He submits that in the instant case the provision laid down for removal of respondent no.6 has not been strictly complied with. Thus, on this ground also the resolution dated 15.12.2012 is liable to be set aside. 6. Having heard the submissions, I have gone through the records of the case. 7. Admittedly, in the instant case petitioner no.12, Rashmi Minz brought a motion against respondent no.6 on 31.10.2012, which was signed by other petitioners. It is also an admitted position that the motion received in the office of respondent no.4 on the same date i.e. on 31.10.2012. From perusal of record, I find that there is nothing to show that respondent no.4 applied his mind on the motion and assigned any reason for coming to the conclusion that the motion brought against respondent no.6 is factually correct. As per Rule-3-VII of "the above Rules", it is necessary for the Presiding Officer (respondent no.4) to get himself satisfied that the motion of no confidence brought against the Mukhiya is factually correct and tenable and then only he could admit it and fix a date of meeting. In this case the Presiding Officer had not done so. Thus, I find that the Presiding Officer has not complied Rule-3-VII of "the above Rules." 8. It further appears that the Presiding Officer after receipt of motion has issued notice on 09.11.2012 fixing the date of meeting on 24.11.2012. As per Rule-3-VIII of "the above Rules." It is necessary for the Presiding Officer to convene meeting within 15 days from the date of receipt of notice. However, Sri Anil Kumar submits that as per Rule-3- VIII of "the above Rules", it is necessary for Presiding Officer to take steps for convening the meeting within 15 days. Thus, according to him no time prescribed for holding the meeting. The Rule-3 of sub rule-VIII of "the above Rules" is reproduced herein for ready reference:- Gram Panchayat, Panchayat Samiti, Zila Parishad ka Pitthasin Padadhikari yathasthithi suchana prapt hone ke 15 dinon ke bhitar baithak karaane ki karrawai karega, parantu baithak hetu pratyek sadasya ko baithak aayojit karne ke 7 din purv Pitthasin Padadhikari dwara iss niyamawali mein sanlagn prapatra "Kha" ke dwara suchana di jayegi. 9. From bare perusal of aforesaid rules, it is clear that it is imperative for the Presiding Officer to do needful for convening the meeting within 15 days from the date of receipt of motion. Thus, the -5- contention of Sri Anil Kumar can not be accepted. In the instant case, the meeting was convened on 24.11.2012, i.e. beyond 15 days from the date of receipt of motion. Thus, the date of meeting was fixed after the period prescribed under "the above Rules." It further appears from Rule 3(X)of "the above Rules" that if a date of meeting for no confidence motion fixed, then the same can not be adjourned, even for want of quorum. Aforesaid Rule 3(X) further stipulates that if the meeting adjourned for wants of quorum then the motion will become infructuous. In the instant case admittedly, meeting was adjourned on 24.11.2012 and next date fixed on 12.12.2012. On 12.12.2012 also the meeting did not take place and it was adjourned till 15.12.2012. Thus, in my view, as per the provisions contained under "the above Rules" on 15.12.2012, there no motion pending against respondent no.6, which require any debate, because the motion has already become infructuous due to adjournment of meeting on 24.11.2012. Thus, resolution passed against Respondent no.6 is non est in the eye of law. 10. It further appears from Annexure-12, that while drafting the proceeding of the meeting dated 15.12.2012, the statements of various members, who participated in the debate either in favour of motion or against the motion had not been mentioned. It has been held by the Hon'ble Supreme Court in Ravi Yashwant Bhoir Case (supra) that "elected officials stand on a higher pedestal then the Government servants. Their removal has serious repercussions as it cast stigma and takes away their valuable rights as well as rights of the people of their respective constituencies represented by them. Hence they can be removed only in exceptional circumstances by following stringent procedure and standard of proof." Under such circumstances, it is imperative for the Presiding Officer to record the statements of all member participating in the debate so that reason for removal of Respondent no.6 manifest from the resolution. This, in my view is must for the compliance of the Principles of Natural Justice. Considering the aforesaid facts and circumstances, I find the submission of Sri Anil Kumar that as per rule, it is not necessary to mention the ground of no confidence motion, does not inspire confidence. 11. In Ravi Yashwant Bhoir Case (supra) Hon'ble Apex Court has held that an elected member of Panchayat could not be removed casually without adherence to the safeguards provided under the statute. Otherwise entire proceeding will be declared bad on the ground of legal malice. In the instant case as notice above Respondent 6. no.4 had not strictly complied the rules relating to removal of Mukhiya and he conducted the proceeding in a casual way, which in my view suffer from legal malice thus, can not be sustained. 12. It further appears that in the instant case the order for removal has been passed by Presiding Officer (Respondent no.4) who has been made party before the Election Commissioner. It has been held by their lordship's of Supreme Court in Ravi Yashwant Bhoir case (supra) that the complainant against an elected member is not a necessary party. The complainant can be held to be a witness. Under the said circumstances, the contention of Sri Anil Kumar that petitioner had not been made party and they have not heard by the Respondent no.2 have no leg to stand. In view of the discussion, made above I find no merit in this writ application. Accordingly, the same is dismissed. ( Prashant Kumar, J.) Pramanik/