JUDGMENT
Bhaskar Bhattacharya, J.
1. This mandamus appeal is at the instance of an unsuccessful writ petitioner and is directed against an order dated July 24, 2007 passed by a learned Single Judge of this Court by which His Lordship dismissed the writ application filed by the appellant.
2. The facts giving rise to filing of the writ application out of which the present mandamus appeal arises may be epitomised thus.
3. The appellant was the Pradhan of a Gram Panchayat. On June 1, 2007, several members of the Panchayat issued a notice asking him to convene a meeting for discussion on the issue of “no confidence” and his consequent removal from the office of the Pradhan. The appellant did not summon a meeting in response to such notice within 15 days in terms of the requirement of the West Bengal Panchayat Act. In view of such refusal on the part of the appellant, the requisitionists called a meeting on June 29, 2007, vide the notice dated June 21, 2007 for holding the same in the office of the Gram Panchayat at 11.30 a.m. The grievance of the appellant was that he was not served with any notice of the aforesaid meeting due to be held on June 29, 2007 and accordingly, on June 27, 2007, he came up with the writ application thereby praying for restraining the requisitionists from holding any meeting on June 29, 2007.
4. By an ex parte order dated June 28, 2007, a learned Single Judge of this Court, after entertaining the application, passed an interim order to this effect that the requisitionists were at liberty to hold that meeting but the decision arrived at in such meeting should not be given effect to without the leave of the Court.
5. On the returnable date, the learned Advocate appearing on behalf of the private-respondents placed before the learned Single Judge two envelopes sent under registered post with acknowledgement due, one addressed to the writ petitioner in his personal name and the other, sent to him in his official capacity. It appeared that both the previously mentioned envelopes had come back to the sender with the postal endorsement “not claimed”. According to the learned Advocate for the respondents, those envelopes contained the notice date June 21, 2007 for holding the meeting on June 29, 2007 but the writ petitioner was deliberately avoiding the service of such notice by not claiming such notice.
6. The learned Advocate appearing on behalf of the writ petitioner, on the other hand, opposed the aforesaid contention advanced by the learned Advocate for the private-respondent before the learned Single Judge and contended that in the absence of any proof of tender of such envelope to the writ petitioner, the postal endorsement “not claimed” did not amount to a good service. According to the learned Advocate for the writ petitioner, in the absence of clear seven days’ notice as provided in second proviso to Section 16 of the West Bengal Panchayat Act, which is mandatory in nature, the holding of the meeting on June 29, 2007 was illegal and consequently, the decision taken in that meeting for removal of the writ petitioner should be quashed and not to be given effect.
7. The learned Single Judge, however, accepted the contention of the learned Advocate for the private respondents and held that there was due compliance of the provision contained in the second proviso to Section 16 of the West Bengal Panchayat Act, read with the relevant rules framed thereunder for service of such notice and accordingly,- dismissed the writ application.
8. Being dissatisfied, the writ petitioner has come up with the present mandamus appeal before this Court.
9. Mr. Basu, the learned Advocate appearing on behalf of the appellant has reiterated his submission made before the learned Single Judge and has contended that the mandate of the provisions contained in Section 16 of the Act read with Rules 5 and 6 of the Gram Panchayat Administration Rules framed thereunder having been violated, it was a fit case for setting aside the decision taken in the meeting held on June 29, 2007 requisitioned by the respondents. According to Mr. Basu, those provisions are mandatory in nature and in such circumstances, the learned Single Judge erred in law in giving a liberal interpretation to those provisions regarding service of notice of clear seven days to be given by the requisitionists in accordance with the Rules 5 and 6 mentioned above. Mr. Basu, therefore, prays for setting aside the order passed by the learned Single Judge and allowing the writ application by quashing the decision taken in the meeting held on June 29, 2007.
10. Mr. Banerjee, the learned Advocate appearing on behalf of the private respondents, on the other hand, has adopted the reasons given by the learned Single Judge and has contended that the writ petitioner had all along knowledge of the meeting to be held on June 29, 2007 but he deliberately avoided the service of notice sent by registered post with acknowledgement due. Mr. Banerjee draws attention of this Court to the fact that the appellant, along with the writ application filed by him, annexed a copy of the notice sent to one of the members of the Panchayat and as such, it was apparent that he made a calculated attempt to frustrate the efforts of the private respondents in removing him from the office of the Pradhan in accordance with law. Mr. Banerjee, therefore, prays for dismissing the mandamus appeal filed by the writ petitioner.
11. Mr. Das Gupta, the learned Advocate appearing on behalf of the State of West Bengal has supported the private respondents and has prayed for dismissal of the mandamus appeal filed by the writ petitioner.
12. Therefore, the principal question that arises for determination in this appeal is whether the appellant was removed from the post of Pradhan after complying with the formalities required under the West Bengal Panchayat Act and the rules framed thereunder by holding the meeting on June 29, 2007.
13. To appreciate the question involved herein, it will by profitable to refer to the provisions contained in Section 16 of the West Bengal Panchayat Act and the Rules 5 and 6 of the West Bengal Panchayat (Gram Panchayat Administration) Rules, 2004, which are quoted below:
16. Meetings of Gram Panchayat.–(1) Every Gram Panchayat shall hold a meeting at least once in a month [in the office of the Gram Panchayat. Such meeting shall be held on such date and at such hour as the Gram Panchayat may fix at the immediately preceding meeting]:
Provided that the first meeting of a newly constituted Gram Panchayat shall be held [on such date and at such hour and] at such place within the local limits of the Gram concerned as the prescribed authority may fix:
Provided further that the Pradhan when required in writing by one-third of the members of the Gram Panchayat subject to a minimum of three members to call meeting shall do so fixing the date and hour of the meeting to be held within fifteen days after giving intimation to the prescribed authority and seven days’ notice to the members of the Gram Panchayat. failing which the members aforesaid may call a meeting to be held within thirty-five days after giving intimation to the prescribed authority and seven clear days’ notice to the Pradhan and other members of the Gram Panchayat. Such meeting shall be held in the office of the Gram Panchayat on such date and at such hour as the members calling the meeting may decide. The prescribed authority may appoint an observer for such meeting who shall submit to the prescribed authority a report in writing duly signed by him within a week of the meeting on the proceedings of the meeting. The prescribed authority shall, on receipt of the report, take such action thereon as it may deem fit:
Provided also that for the purpose of convening a meeting under Section 12, at least one-third of the members referred to in Clause (i) of Sub-section (2A) of Section 4, subject to a minimum of three members, shall require the Pradhan to convene the meeting:
Provided also that if the Gram Panchayat does not fix at any meeting the date and the hour of the next meeting or if any meeting of the Gram Panchayat is not held on the date and the hour fixed at the immediately preceding meeting, the Pradhan shall call a meeting of the Gram Panchayat on such date and at such hour as he thinks fit.
(2) the Pradhan or in his absence the Upa-Pradhan shall preside at the meeting of the Gram Panchayat; and in the absence of both [or on the refusal of any or both to preside at a meeting,] the members present shall elect one of them to be the President of the meeting.
(3) [One-third] of the total number of members subject to a minimum of [three] members shall form a quorum for a meeting of a Gram Panchayat:
Provided that no quorum shall be necessary for an adjourned meeting.
(4) All questions coming before a Gram Panchayat shall be decided by a majority of votes:
Provided that in case of equality of votes the person presiding shall have a second or casting vote:
Provided further that in case of a requisitioned meeting for the removal of a Pradhan or an Upa-Pradhan under Section 12, the person presiding shall have no second or casting vote.
(Emphasis Supplied)
Rule 5. Notice of the meeting of members.–(1) At least seven days’ notice of the list of business to be dealt with at every meeting, except an emergent meeting of the Gram Panchayat, is to be sent to each member of the Gram Panchayat in Form 1. An emergent meeting may be called after giving three days’ notice to the members in Form 1A. A requisitioned meeting within the concept of Sub-section (1) of Section 16, may be called by the Pradhan in From IB or by the requisitionist members in From 1C, as the case may be.
(2) A copy of the budget of the Gram Panchayat, if required to be considered at meeting of the Gram Panchayat, shall be enclosed with the list of business for such meeting.
(3) When the Pradhan is required to convene a requisitioned meeting in terms of the second proviso to Sub-section (1) of Section 16, he may issue notices under his signature or with his written instruction, under the signature of the Secretary. Such notices shall be issued at least seven days before the date of the meeting, which shall be held within fifteen days from the date of receipt of such requisition by the Pradhan.
(4) There shall be no meeting with agenda for removal of more than one office bearer in a Gram Panchayat and any notice issued for removal of more than one office bearer shall be void ab initio.
(5) In a Gram Panchayat, not more than one general body meeting shall be held on a single calendar day. Any notice convening more than one general body meeting on a single calendar day, shall be void ab-initio; if more than one notice are issued for convening separate meeting on the same day only the notice which is issued first shall be valid.
Note.–The meetings of the Gram Sabha, Gram Sansad and Upa-Samitis shall not come under the purview of this sub-rule.
Rule 6. Procedure of delivery of notice to members.–(1) The notice of the list of business to be transacted at a meeting, an emergent meeting or a requisitioned meeting of a Gram Panchayat in Forms 1, 1A or 1B as the case may be shall be sent through the Secretary of the Gram Panchayat to each members of the Gram Panchayat by a messenger. The messenger shall deliver the notice to the member to whom it is addressed. In the absence of the member, the notice may be delivered to an adult member of his family residing with him. The messenger shall obtain the signature of the member or the adult member, as the case may be, of his family residing with him, in the office copy of the notice as a receipt thereof. If the member is absent and there is no other adult member of his family to whom the notice may be delivered or a member or any adult member of his family refuses to receive the notice, it may be served by affixing on the outer door or some other conspicuous part of the house of the member in presence of not less than two witnesses. The service return containing the signature of witnesses during such service shall be attached to the office copy of the notice along with a brief note of the entire procedure by the Secretary or in his absence by any other Panchayat employee, other than Gram Panchayat Karmee, duly authorised by the Pradhan of the Gram Panchayat.
(2) Every notice under Rule 5 shall be displayed on the notice board of the Gram Panchayat at least seven days before the time fixed for a meeting other than an emergent meeting. In case of an emergent meeting, such notice shall be displayed three days before the time fixed for such meeting.
(3) When notices convening any meeting have been put to service, such meeting shall not be cancelled by the Pradhan or the Upa-Pradhan.
14. After hearing the learned Counsel for the parties and after going through the provisions contained in the Act and the rules mentioned above, we find that for the purpose of removal of a Pradhan, all that is necessary under the West Bengal Panchayat Act read with the rules framed thereunder is that if in spite of due service of a notice asking the Pradhan to call a meeting for discussion of a resolution of “no confidence” against him, the Pradhan fails to summon such a meeting within the time mentioned therein, the requisitionists themselves should call a meeting after giving seven clear days’ notice to the Pradhan and also the members of the Panchayat with the due intimation to the prescribed authority and the meeting concerned should be held within 35 days as mentioned in the second proviso to Section 16 indicated above. The right to call such a meeting accrues on the failure of a Pradhan to call a meeting when the demand to call a meeting is given by the requisitionists. According to the said provision, the Pradhan should call the meeting within 15 days from the date of due service of the demand after giving seven days’ notice to all the members with the due intimation to the prescribed authority.
15. Therefore, if within eight days from the date of due service of the first notice, the Pradhan refuses to call a meeting with the intimation to the prescribed authority, the requisitionists can safely conclude that the Pradhan has not complied with their demand and therefore, the 35 days mentioned in the second proviso to Section 16 should start from the expiry of eight days from the date of due service of the notice upon the Pradhan asking him to call the meeting. As provided in Rule 6(2) mentioned above, the notice of such meeting would be given in the notice board of the Panchayat and the requisitionists can easily ascertain from the office of the Panchayat whether the Pradhan had called such meeting with intimation to the prescribed authority. As regards the meeting called by the requisitionists, all that is provided in the statute is to “give” seven clear days’ notice to the members of the Panchayat and the Pradhan thereof with intimation to the prescribed authority. The concerned Rule 6 provides for mode of “giving” notice but notice the statute nor the rules speak of actual service of the notice upon the Pradhan or the members of the Panchayat. What is the most striking feature of Rule 6 is that it provides the made of giving notice of meeting mentioned therein viz. the general meeting, as provided in Form 1, an emergent meeting as provided in Form 1A and a requisitioned meeting, by the Pradhan as provided in Form IB by sending those notice through a special messenger; curiously enough, there is no mode of service prescribed in Rule 6 for service through such special messenger or any other mode for holding a meeting by the requisitionists as provided in Form 1C. In Sub-rule (2) of Rule 6, it is, however, provided that the notices of all types of meetings, as mentioned in Rule 5, would be displayed in the notice board of the Panchayat and such notice necessarily includes the notice of the meeting called by the requisitionists as provided in Form 1C.
16. It is, therefore, clear that for the purpose of the meeting called by the requisitionists, the rules have not prescribed the mode of service through special messenger as provided for holding other types of meetings of the Panchayat and at the same time, the rules have also not provided any other mode of service except by way of display in the notice board of the Panchayat as provided in Rule 6(2). Even the Form 1C does not indicate that the same should be served by the special messenger although the Forms 1,1A and IB reflect such mode of service.
17. In such a situation, the notice in the Form of 1C having been sent by the registered post, the mode of giving the notice cannot be said to be in violation of the rules. It is nobody’s case that there was no display of the notice in the notice board of the Panchayat in terms of Rule 6(2). That the writ petitioner was aware of the fixation of the meeting will appear from the fact that prior to the date fixed for such meeting, he came up with the writ application annexing a copy of the notice of the meeting given to one of the members of the Panchayat.
18. We, therefore, agree with the learned Single Judge that the writ petitioner was not at all prejudiced for the absence of the actual service of notice upon him, as the law does not provide for actual service of such notice particularly when he had full knowledge of such meeting. We are also not impressed by the submission of Mr. Basu that at the relevant point of time, his client was away from his residence. If a Pradhan after being asked to convene a meeting for his removal, instead of calling such meeting, remains away from the village with the object of avoiding the said meeting in order to frustrate the process of his removal in accordance with law, a Writ Court will not entertain his application challenging the legality of such meeting on the ground of non-service of notice of such meeting.
19. We also agree with the learned Single Judge that the giving of clear seven days’ notice as mentioned in Section 16 of the Act is not mandatory as held by a Division Bench of this Court in case of Aloke Pramanik v. State of West Bengal and Ors. reported in 1996 (1) CLJ 434, while considering similar provision contained in Section 105 of the Act. In this connection, Mr. Basu, the learned Advocate appearing on behalf of the appellant placed reliance upon an unreported decision of a Division Bench of this Court in the case of Sm. Madhumita Biswas v. State of West Bengal and Ors. being M.A.T. No. 3686 of 2006, disposed of on April 5, 2007 where the Division Bench disagreed with the view taken in the case of Aloke Pramanik (supra), without referring the matter to the Hon’ble Chief Justice for constitution of a Larger Bench. It is now settled law that in case of conflict of the decision of two Benches of equal strength, the former will prevail unless the principle laid down in the former one has been overruled by a Superior Court or unless due to change of law, the former one is no longer applicable. The latter Division Bench, as it appears from the judgement placed before us, has disagreed with the view taken in the case of Aloke Pramanik on the ground of misapplication of the principles laid down in the decision of the Supreme Court in the case of K. Narasimiah v. H.C. Singri Gowda and Ors. , to the facts of the said case and for non consideration of some other decisions of the Supreme Court laying down the principles to be followed in deciding whether a statutory provision is mandatory or not. In our view, once a Division Bench, has taken a stance that a particular decision of the Supreme Court is applicable in the facts of a case and by relying upon such decision comes to a conclusion on a particular facts of a case, the latter Bench, if it intends to disagree in the similar facts, should refer the matter to the learned Chief Justice for constitution of a Larger Bench. In this connection, it will be profitable to refer to the following observations of the Apex Court in the case of State of Bihar v. Kalika Kuer :
In connection with this observation, we would like to say that an earlier decision may seem to be incorrect to a Bench of a co-ordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the latter bench of co-ordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways–either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits.
20. We are, therefore, unable to follow the latter decision placed before us by Mr. Basu.
21. In our view, the provisions of giving seven clear days’ notice as mentioned in the second proviso to Section 16 of the Act is a directory provision and not a mandatory one as rightly held in the case of Aloke Pramanik (supra) while construing a similar provision of the same statute. It is now settled by the Apex Court that if a particular statutory provision is a procedural one, even the use of the word “shall” in such provision will not make it mandatory unless consequence of disobedience has been indicated in the statute. The exceptions to the previously mentioned rule of interpretation are in the cases where there is either “no notice”, or “no opportunity” or “no hearing”. In this connection, we may refer to the following observations of the Supreme Court in the case of State Bank of India v. S.K. Sharma :
A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
In the case of violation of a procedural provision, the position is this procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under ‘no notice’, ‘no opportunity’ and ‘no hearing1 categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively.
22. In the case of Lachmi Narayan v. Union of India , the Supreme Court pointed out some of the cases where the provisions must be held to be mandatory. Those are enumerated below in the exact language of the Apex Court:
The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of ‘must’ instead of “shall”, that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp. 523-524). Here the language of Sub-section (2) of Section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months.
23. In the case before us, the word used is “shall” and not “must” and the language is also not in the negative form. The provision of giving notice is a rather procedural one and no consequence is indicated in the statute for noncompliance of seven clear days’ notice. In such circumstances, unless prejudice is shown, the departure from the statutory provisions cannot lead to annulment of the action taken.
24. On consideration of the entire matter before us, we find that in the absence of any provisions contained in the rules recommending mode of service of notice we are concerned with, the “giving” of notice by registered post was sufficient when other provision regarding, display of such notice in the notice board of the Panchayat or intimation to the prescribed authority as provided in the Act has not been disputed. Moreover, the appellant himself annexed the notice given to another member of the Panchayat to the writ application and it is apparent that no explanation has been given as to what prevented the appellant from complying with the first part of Section 16 of the Act by calling a requisitioned meeting in terms of the statute.
25. We, consequently, find no merit in this appeal and the same is accordingly dismissed. No order as to costs.
Rudrendra Nath Banerjee, J.
I agree.
Later:
26. Let xerox certified copy of this order be given to the parties within one week from the date of making of such application.