Meaning of the word "absence" explained.

D.Murugesan, J.

The above writ appeals raise a common question as to whether, if the President or the Vice President of a Panchayat refuses to sign a cheque, should it be treated as "absence" within the meaning of the word employed in Section 188(3) of the Tamil Nadu Panchayats Act, 1994 (hereinafter referred to as "the Act").

2. We have heard the learned counsel for the appellants and the respondents.

3. The scope of Section 188(3) of the Act came up for consideration before a Division Bench in W.A.No.1799 of 2004. By an order dated 28.1.2005, the Division Bench has held as follows:-

"In our opinion, we can give a wider meaning to the word "absence" than mere "physical absence". One word can have several meanings, just as several words can have one meaning (synonyms). It all depends on the context in which it has been used. For example, the word "desertion" appearing in Section 13 of the Hindu Marriage Act implies not only factum of separation, but also "animus deserendi", vide Lachman v. Meena (AIR 1964 SC 40). There can be constructive desertion. The husband and wife may be living together under the same roof, but the husband may have legally deserted her (wife) by his conduct. Similarly the word "absence" is a word of wide connotation, and is not necessarily limited to "physical absence". The indifferent or obstructionist attitude of a person or avoidance can, in our opinion, amount to absence in some situations.

In our opinion, if the Vice President (or President, as the case may be) by his conduct makes it impossible for the village panchayat to function (either by neglecting his duties or by causing regular obstruction in the administration or otherwise) he may be said to be "absent". Such interpretation of the word "absence" in Section 188(3) would be taking a practical view otherwise the Vice President (or President, as the case may be) if he has adversarial relationship with the Vice President (or President as the case may be) can make it very difficult for the Village Panchayat to function by his simple act of refusing to sign cheques. Funds are often required for various purposes and if the President or Vice President refuses to sign cheques for ulterior motives, as is the allegation in the counter affidavit in this case, the functioning of the village panchayat may become impossible. We are not expressing any opinion as to whether in this case, the Vice President has refused to sign for some ulterior motives, but we are certainly of the opinion that Section 188(3) of the Act, as well as G.O.Ms.No.92 dated 26.03.1997 can be read harmoniously in the manner mentioned above. We do not agree with the learned single Judge that if the Vice President (or President, as the case may be) refuses to sign it can never be a case of "absence" within the meaning of the word in Section 188(3) of the Act, and the only recourse which can be taken to is under Section 206. It may be noted that Section 206(2) of the Act states that before removing the Vice President the procedure mentioned in sub-sections (2) to (13) of Section 205 has to be complied with, and that procedure is a cumbersome, time consuming one. Surely for signing every cheque it would be impracticable to resort to that procedure. If the conclusion of the learned single Judge that for refusal to sign cheques action could be taken under Section 206(3) of the Act for removal of the Vice President (or President, as the case may be) the time bound programmes like Village Panchayat, earmarked grant account like Sampoorna Grame Yojgas Yojana Scheme (Food for work), Village Panchayat Scheme Fund Account etc., will lapse if the funds are not utilized within the time stipulated, since the procedure mentioned in sub-sections (2) to (13) of Section 205 is very elaborate and cumbersome."

4. The Division Bench has held that if the Vice President (or President, as the case may be) by his conduct makes it impossible for the village panchayat to function (either by neglecting hi