JUDGMENT
S.K. Mohanty, J.
1. Resolution dated 30-6-1993 passed by Panchayat Samiti, Jatni, declaring the petitioner to have ceased to be member of the Samity on the ground that she absented herself on three consecutive ordinary meetings of the Samiti held on 31-10-1992, 26-12-1992 and 18-2-3993 without previous written permission of the Samiti, is under challenge in this proceeding.
2. The stand taken by the petitioner is that she was very much present in the meeting held on 31-10-1992 and that no notice was served on her regarding the meetings scheduled to be held on 26-12-1992 and 18-2-1993 for which she duly lodged her protest in her letters dated 29-12-1992 and 19-2-1993 (Annexures 3 and 4) despatched under certificates of posting (Annexures 5 and 6). So it cannot be said that the petitioner absented herself from three consecutive meetings of the Samiti, for which she ceased to be member of the Samiti under Section 45(2)(iii) of the Orissa Panchayat Samiti Act, 1959. The further stand taken by the! petitioner is that the Samiti having not issued any show cause notice before passing the resolution, the case is hit by the principles of natural justice. According to her the impugned resolution has been passed at the behest of the M.L.A., her political opponent.
3. The Chairman of the Panchayat Samiti, in his counter, while admitting that the petitioner was present in the meeting held on 31-10-1992, contended that issuance of notice of meeting is the duty of the Block Development Officer and it is not possible for him to say whether the notice for the meetings scheduled to be held on 26-12-1992 and 18-2-1993 were actually served on the petitioner or not. He admits receipt of letter as per Annexure 4, in which the petitioner had made grievance that she had not been served with notices for the meetings which were scheduled to be held on 26-12-1992 and 18-2-1993.
4. In the counter jointly filed on behalf of the State of Orissa, Collector and Sub-Collector, Khurda and Block Development Officer, Jatni, the petitioner’s assertion that she was present in the meeting held on 31-10-1992 and receipt of any letter indicating petitioner’s grievance regarding the meetings held on 26-12-1992 and 18-2-1993 are denied. As to the meetings scheduled to be held on 26-12-1992 and 18-2-1993, it is stated that required notices were sent to the petitioner on 18-12-1992 and 10-2-1993 respectively. Lastly, the impugned resolution is justified on the ground that the petitioner was absent on three consecutive meetings of the Samiti held on 31-10-1992, 26-12-1992 and 18-2-1993.
5. Copy of the proceedings of the meeting held on 31-10-1992 has been annexed as Annexure 2. In the very first page, the names of the members present have been indicated, and it shows that the petitioner was present in that meeting. Copy of the Attendance Register annexed to the counter of the State of Orissa mentions her name with a cross-mark against the same. In other words, the petitioner has not signed in the Attendance Register on 31-10-1992. But merely because of this, it cannot be said that the petitioner was absent in the meeting held on 31-10-1992, particularly when the Chairman in his counter admits her presence.
6. Report of the peon deputed with the notice for the meeting to be held on 18-2-1993 has been annexed to the counter filed by the State of Orissa. It is dated 13-2-1993. The peon has reported that he delivered one copy of the notice addressed to the petitioner to the Secretary of the Gram Panchayat and served the other copy by affixure as the petitioner was absent. The Secretary of the Gram Panchayat in his report dated 14-2-1993 has stated that as the petitioner was absent in her house, he affixed a copy of the notice with regard to the meeting scheduled to be held on 26-12-1992. No document has been placed on record to indicate either that any notice was issued to the petitioner in any other mode or that the same was served. It is not disputed that the petitioner was really absent in the meetings held on 26-12-1992 and 18-2-1993.
7. At this stage, reference may be made to the Rules regarding notice of meeting, contained in Orissa Panchayat Samiti (Conduct of Business) Rules, 1969. Rule 5 provides that at least, seven clear days notice of a meeting of the Samiti shall be given to every member. The notice shall be issued under the signature of the Block Development Officer and served by post under certificate of posting, besides publishing a copy of the notice in the board of the Samiti. Such notice is to set forth clearly and fully the time, place and date of the meeting and the business to be transacted threat. No material has been placed on record to show that the procedure laid down in Rule 5 has been followed. It is not known why the prescribed procedure was not followed. Even if it is accepted that the notice for the meeting scheduled to be held on 18-2-1993 was duly served by the peon by affixure, it was so done short of the requisite period.
8. The penalty of ceasing to be a member under Section 45(2)(iii) is incurred by a member for absence from 3 consecutive meetings. Such absence must be held to be will (sic) full knowledge about the meeting of the Samiti. In fitness of things if a member absents himself for want of notice or for some unforeseen reason, such absence has to be ignored.
9. Law nowhere empowers a Panchayat Samiti to declare any member to have ceased to hold office. The Samiti may form opinion in the matter on the materials before it and in that event, remedy of the member lies in approaching the District Judge under Section 45-E of the Act. But in the case at hand, certain facts are apparent and they pointedly establish that the petitioner very much attended the meeting held on 30-10-1992 and her absence from the meeting held on 26-12-1992 and 18-2-1993 was due to want of proper notice about such meetings for which she had promptly complained. In such facts we felt expedient to entertain the dispute.
10. In the light of the discussions in the foregoing paragraphs, we are satisfied that the petitioner has not incurred the disqualification for continuance as member of the Panchayat Samiti. In the result, the impugned resolution is quashed. The writ application is accordingly allowed. No costs.