Case BriefsSupreme Court

Supreme Court: The Bench of AM Khanwilkar and Ajay Rastogi, JJ held that the provisions in the Andaman and Nicobar Islands (Panchayats) Regulation, 1994 under consideration in no way exclude the MP, muchless expressly, from participating in the special meeting and vote on the ‘No Confidence Motion’. As a matter of fact, the provision in the Regulation under consideration is an inclusive one and explicitly permits all (total) members to participate in the special meeting and vote on the ‘No Confidence Motion against the Pramukh or Up­Pramukh, as the case may be.

The bench was posed with the question relating to

  • the inclusion or exclusion of the Member of the House of Parliament (MP) representing the Union Territory of Andaman and Nicobar Islands, who is also an ex­officio member of the Panchayat Samiti, for reckoning the quorum of a special meeting regarding motion of no confidence against the Pramukh of the Little Andaman Panchayat Samiti, it noticed,
  • whether he/she can exercise his/her vote on the ‘No Confidence Motion’ within the meaning of the provisions of Andaman and Nicobar Islands (Panchayats) Regulation, 1994 and the Andaman and Nicobar Islands (Panchayats Administration Rules) 1997.

Stating that it is a well-established position that the right to elect, and including the right to be elected and continue on the elected post, is a statutory right, the bench said,

“neither Article 243C nor the Regulation made by the State Legislature or the Rules framed thereunder expressly exclude the other members of the Panchayat Samiti referred to in Section 107(3) of the Regulation from exercising their vote on a ‘Motion of No Confidence’.”

The Court said that the category of persons referred to in Section 107(3) of the Regulation are also, in one sense, elected representative (though not by direct election from territorial constituencies in the Panchayat area) and, therefore, their participation and voting on the ‘No Confidence Motion’ has   been expressly permitted by the Regulation and the Rules. That cannot be undermined on the basis of the common law principle, so long as the governing statutory provisions are in the field.

“if a person has been elected to an office through democratic process and when such person  loses the confidence of the representatives who elected him, then those representatives should   necessarily have a democratic right to remove such an office bearer in whom they do not have confidence,will not take the matter any further in the wake of express provisions contained in the Regulation of 1994 and the Rules of 1997.”

[Seema Sarkar v. Executive Officer, 2019 SCC OnLine SC 639, decided on 01.05.2019]

Case BriefsSupreme Court

Supreme Court: In a case where a Municipal Councillor was disqualified under Section 44(1)(e) of the Maharashtra Municipal Council Nagar Panchayat and Industrial Township Act, 1965 after his wife carried out unauthorized constructions, the bench of Ashok Bhushan and KM Joseph, JJ held,

“Section 44(1)(e) creates an independent liability or rather creates disqualification as provided thereunder. This is de hors the criminal action. There is nothing brought to our notice to conclude that action under Section 44(1)(e) must be preceded by a criminal action and conviction thereunder.”

It was argued before the Court that as unauthorized construction also brings in its wake criminal action, action 14 under Section 44(1)(e) will not lie.

On the argument that if disqualification is incurred under Section 44(1)(e) since unauthorized construction can be visited under law creating criminal liability, action under Section 44(1)(e) will not lie, the Court said,

“Section 44(1)(e), as it stands, is neither dependent on a criminal action preceding it nor is the court to be influenced by the fact that making an unauthorized construction will have penal consequences.”

Stating that if temporary construction or structure have been illegally made by the Councillor, spouse or dependent, disqualification follows, the bench said that it is true that disqualifying the Councillor, is a serious matter. Councillors of local bodies, after the 73rd amendment to the Constitution, are democratically elected representatives of the people at the grass root level. It is undoubtedly also true that in the case of an Election Petition, the case against the respondent must be strictly proved. However,

“Section 44(1)(e), which is ordained by 12 the Legislature, requires reasonable interpretation, and if the ingredients are established, it must be given full play.”

The Court noticed that though the requirement of the Councillor being directly or indirectly being responsible for or helping in carrying out of such construction in the capacity of Councillor in the case of the spouse or dependent is not the statutory requirement,

“Having regard to the close relationship between the spouse and the Councillor on the one hand and the dependent and the Councillor on the other hand, the words “carrying out such illegal or unauthorized  construction” has reference to construction which violates the provisions of the Town Planning Act, the MRTP Act or the Rules and the Bye-laws framed under those provisions.”

[Sampada Yogesh Waghdhare v. State of Maharashtra, 2019 SCC OnLine SC 567, decided on 22.04.2019]

Case BriefsSupreme Court

Supreme Court: In the case where the employees of Municipal Corporation governed by the Uttar Pradesh Municipal Corporation Act, 1959 claimed gratuity under the Payment of Gratuity Act, 1972, the bench of MM Shantanagoudar and Hemant Gupta, JJ held that liberal payment of gratuity is in the interest of the employees, thus, the gratuity would be payable under the Payment of Gratuity Act.

Court noticed that the Payment of Gratuity Act is applicable to

(1) every factory, mine, oilfield, plantation, port and railway company;

(2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz.

(i) a shop or establishments within the meaning of a State law and

(ii) in which ten or more persons are employed; and

(3) the establishments or class of establishments which Central Government may notify.

The Court, hence, said that in terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. It, therefore, held,

“Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. … In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.”

[Nagar Ayukt Nagar Nigam, Kanpur v. Sri Mujib Ullah Khan, 2019 SCC OnLine SC 462, decided on 02.04.2019]