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Orissa High Court · body

2005 DIGILAW 4 (ORI)

Laxmipriya Sahu v. State of Orissa

2005-01-03

B.P.DAS, N.PRUSTY

body2005
JUDGMENT B. P. DAS, J. — The petitioners, who are the Chairperson, Vice-Chairperson and Councillors of different Wards of Notified Area Council of Balugaon, have filed this writ petition under Articles 226 and 227 of the Constitution of India challeng¬ing the order dated 22.7.2004 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. No. 1436(C)/2004 refus¬ing to grant interim-relief (Annexure-14) as well as the office order dated 29.6.2004 issued by the State Government-O.P. No.1 re-transferring and re-posting O.P. No.3, Rabindranath Sahoo, as the Executive Officer of Balugaon Notified Area Council after 20 days of his transfer to Khandapara N.A.C. (Annexure-13). 2. The brief facts leading to this writ petition are as follows : Petitioner Nos. 1, 2 and 3 to 9 after being elected as Chairperson, Vice-Chairperson and Councilors of Balugaon N.A.C. assumed their offices in the month of September, 2003. The elect¬ed body of the Balugaon N.A.C. took over charge in September, 2003. During functioning of the Council, according to the peti¬tioners, it was observed that O.P. No.3, i.e., the Executive Officer of the N.A.C., was not carrying out the resolutions, directions or instructions of the Council and with utter disre¬gard to the Council in general and Chairperson in particular he was not furnishing the details of different development activi¬ties. The N.A.C. observing the conduct of O.P. No.3 felt that it was not possible on the part of the N.A.C. to discharge its public duties and civic obligations through O.P. No.3 as the executive head of the N.A.C. The N.A.C. passed a resolution on 31st January, 2004 (Annexure-3) requesting the State Government to transfer O.P. No.3 from the said post as he was a Government servant and was deputed to the N.A.C. In the said Annexure-3, it was stated that O.P. No.3 was habitually remaining absent from the headquarters as he was not residing at Balugaon. That too, in spite of the direction of the Council, O.P. No.3 abstained him¬self from the flag hoisting ceremony of the N.A.C. on the Republic Day, 2004. It was further alleged that O.P. No.3 was spending Government grants without observing the Government norms and financial disciplines. That too, in spite of the direction of the Council, O.P. No.3 abstained him¬self from the flag hoisting ceremony of the N.A.C. on the Republic Day, 2004. It was further alleged that O.P. No.3 was spending Government grants without observing the Government norms and financial disciplines. After the aforesaid resolution was submit¬ted to the Government, the Secretary to the Government in Housing and Urban Development Department deputed an Under Secretary of the Department to cause an enquiry into the allegations and on the basis of the enquiry report submitted by the Under Secretary, the State Government by letter dated 19.5.2004 directed for a special audit of the accounts of the N.A.C. for the period from 21.6.2001 to 31.5.2004 by the Departmental Special Auditors. It is stated that the period for which special audit was directed pertains to the period for incumbency of O.P. No.3 as the Execu¬tive Officer of the N.A.C. It was further stated that the Under Secretary, who conducted the enquiry, recommended transfer of O.P. No.3 from the N.A.C. to some other place. Accordingly, the State Government by office order dated 7.6.2004 (Annexure-7) transferred and posted O.P. No.3 as the Executive Officer, Khan¬dapara N.A.C. and in his place, posted one Sri Chandramani Swain, the Executive Officer of Joda Municipality, as Executive Officer, Balugaon N.A.C. The Chairperson of petitioner No.1-N.A.C. re¬lieved O.P. No.3 by order dated 9.6.2004 (Annexure-8) with effect from 9.6.2004 (A.N.) with a request to O.P. No.3 to hand over the detailed charge to the Senior Assistant of the N.A.C., namely, G.B. Behera. Sri Chandramani Swain joined as Executive Officer of Balugaon N.A.C. on 11.6.2004 (F.N.), and his joining report was duly accepted by the Chairperson on the same day. According to the petitioners, O.P. No.3 was bent upon not to hand over th charges to G. B. Behera but he instigated some local persons who entered forcibly into the N.A.C. office and abused the said Chandramani Swain. The aforesaid incident as well as the conduct of O.P. No.3 in not handing over the charge was duly intimated to O.P. No.1 and at the same time successive reminders were issued to O.P. No.3 to hand over the charge to his successor. But, according tot he petitioners, their request to O.P. No.3 to hand over charge and their representation to the Minister as well as O.P. No.1 (Annexure-7) informing the conduct of O.P. No.3 yielded no result. But, according tot he petitioners, their request to O.P. No.3 to hand over charge and their representation to the Minister as well as O.P. No.1 (Annexure-7) informing the conduct of O.P. No.3 yielded no result. The State Government, however, barely 20 days after is¬suance of office order dated 7.6.2004 (Annexure-7) issued another office order dated 29.6.2004, Annexure-13, re-transferring and posting O.P. No.3 as Executive Officer, Balugaon N.A.C. though by then O.P. 3 was already transferred to Khandapara N.A.C. as per the office order dated 7.6.2004 (Annexure-7). On 2.7.2004 at about 12.30 P.M., it is alleged, O.P. No.3 came to the N.A.C. office with the Tahasildar, C.I. and the O.I.C. of Balugaon P.S. along with some Constables and broke open the office room of the Executive Officer, entered inside the room and occupied the office of the Executive Officer. This action of O.P. No.3 was also communicated to the Director, Municipal Administration, District Magistrate, Khurda and R.D.C., Central Division, Cut¬tack. The petitioners filed an Original Application before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, being O.A. No. 1436(C)/2004 challenging the order of re-transfer of O.P. No. 3 and prayed for an interim injunction injunctioning O.P. No.3 from functioning as the Executive Officer of Balugaon N.A.C. The said prayer was rejected by the Tribunal saying that the same cannot be granted as O.P. No.3 has already taken over charge and functioned as such. The petitioners now file this writ petition challenging the order of the Tribunal refusing to grant interim relief with a prayer to quash the order of transfer, Annexure-13. This Court issued notice to the O.Ps., called upon the State Counsel to produce the file concerning transfer of O.P. No.3. 3. While the matter was listed on 26.8.2004, it was submitted by the learned Addl. Govt. Advocate that the grievances of the petitioners is under active consideration of the State Govt. but the records are not produced by the State as directed earlier by this Court for which O.P. No.1, the Secretary, Housing and Urban Development Department, was directed to file an affida¬vit indicating therein the compelling reason for re-transferring of O.P. No.3 to Balugaon N.A.C. by cancelling his transfer to Khandapara within a short span of 20 days. but the records are not produced by the State as directed earlier by this Court for which O.P. No.1, the Secretary, Housing and Urban Development Department, was directed to file an affida¬vit indicating therein the compelling reason for re-transferring of O.P. No.3 to Balugaon N.A.C. by cancelling his transfer to Khandapara within a short span of 20 days. O.P. No. 3, i.e., the Executive Officer, Sri Rabindranath Sahoo, who was represented by Sri J. M. Mohanty, Advocate, has filed counter affidavit denying the allegations made in the writ petition including the allega¬tion of forcible entry of O.P. No.3 with a group of about 50 persons into the office of the Executive Officer, Balugaon N.A.C. It is stated in the counter affidavit that while on 30.6.2004 O.P. No.3 came to the office to submit his joining report, the henchmen and muscle men of petitioner No.2 did not allow him to enter into the office campus. In paragraph-24 of the counter affidavit, O.P. No.3 has also admitted that on the direction of the Collector and Sub-Collector of Khurda, the local Tahasildar broke open the office room of the Executive Officer and made an inven¬tory in presence of the police. It was further stated by O.P. No.3 that the allegations made by the petitioners on enquiry by the State were found to be incorrect and false. O.P. No.3 has stated that there was no illegality in posting him again as the Executive Officer of Balugaon N.A.C. 4. The relevant portion of the counter affidavit of O.P. No.3 is quoted below : “xxx xxx xxx That as regards para 1, the facts stated therein are partly correct. Balugaon Notified Area Council consists of 11 wards. In the last N.A.C. election there was a triangular fight among the B.J.D., B.J.P. and Congress candidates. Out of 11 wards, in 9 wards Congress candidates came out successfully, who are the petitioners in this present writ application. The rest 2 wards went to B.J.P. Petitioner No.1 is the wife of the younger brother of petitioner No.2. Petitioner No.2 who is the Vice-Chairman is a moneyed man of the locality having liquor business in the name of his wife, Paddy, Rice, Cement, Iron rods etc. business in the name of his family members. During the last Municipality election petitioner No.2 had financed all the candidates including the petitioners. Petitioner No.2 who is the Vice-Chairman is a moneyed man of the locality having liquor business in the name of his wife, Paddy, Rice, Cement, Iron rods etc. business in the name of his family members. During the last Municipality election petitioner No.2 had financed all the candidates including the petitioners. As all the candidates succeeded in the election with the financial assistance of Petitioner No.2. Due to such advan¬tage position petitioner No.2 has now kept control over all the petitioners and want to work out to run the NAC as per his sweet will. After the election of the Chairman a proposal was given to the deponent for change of sheets of the employees within the NAC. As the election of Vice Chairman was not held and the elec¬tion procedure was not completed, deponent was not in a position to disturb the employees who are engaged for collection of reve¬nue. It is pertinent to mention here that changing of sheet would have hampered the collection of revenue for which the deponent requested petitioner No.1 to do the needful after the completion of the election proceeding. It is apt to mention here that after the Chairman election Vice Chairman election was held on 21.10.2003. Petitioner No.2 was elected as a Vice Chairman but the proposal which was moved the deponent was updated 17.10.2003. A copy of the proposal issued by petitioner No.1 is filed here¬with as Annexure-A/3 It is pertinent to mention here that after the election of the Vice Chairman there was transfer orders of the Senior Clerk as well as Junior Clerk of the NAC to Aska NAC and Berhampur Municipality respectively vide order dtd. 1.10.2004 and 04.01.2004. Petitioner No.2 in spite of the transfer order directed the deponent not to relieve them and to give important seats within the NAC. As the order of transfer was very much in force deponent did not agree to do so. As a result of which petitioner No.1 and 2 became hostile towards deponent and threatened to transfer him from Balugaon NAC. Behind the back of the deponent petitioner No.2 by putting his influence managed to transfer the deponent to Khandapada. Though the successor of the deponent has not joined in Balugaon NAC, petitioner No.1 unilaterally relieved the petition¬er even though there was no order to relieve the deponent by local arrangement. Behind the back of the deponent petitioner No.2 by putting his influence managed to transfer the deponent to Khandapada. Though the successor of the deponent has not joined in Balugaon NAC, petitioner No.1 unilaterally relieved the petition¬er even though there was no order to relieve the deponent by local arrangement. While the matter was as such, petitioner No.2 time and again made representation before the authorities to disturb the deponent. As per the allegation of the council headed by petitioner No.2, Govt. was pleased to make special audit as well as due enquiry by the Under Secretary. After the audit it was found by the audit party that everything is OK. Similarly, the Under Secretary of the Govt. inquired into the allegations and found them to be false. For which petitioner was again posted at Balugaon. Getting no way out, keeping step motherly attitude, towards the deponent petitioners approached the Hon’ble High Court in W.P. (C) No. 6954/2004 challenging the order of transfer vide Annexure-13. This Hon’ble Court by order dtd. 16.07.2004 disposed the aforesaid writ application as not maintainable for which petitioner again approached the State Administrative Trib¬unal in O.A. No. 1436(C)/2004. While issuing notice for admission and final disposal the Hon’ble Tribunal was pleased to decline to injunct the deponent not to function as the Executive Officer of Balugaon NAC. Being aggrieved by the aforesaid order present writ application has been filed. It is respectfully submitted that the aggrieved party that the successor of the deponent has not challenged his order of transfer from Balugaon to Khandapada. When the aggrieved party has not challenged the order of transfer, petitioners with mala fide intention has filed the writ application taking false grounds only to feed fat their grudges. Though there is nothing adverse against the deponent which will be evident that till date there is not a scrap of paper with the petitioners to prove that at any point of time the deponent has disobeyed or mismanaged the fund of the NAC. The total aim and object of filing such case is on political motivation.” From the records so produced by the State, it is found that the State Govt. The total aim and object of filing such case is on political motivation.” From the records so produced by the State, it is found that the State Govt. was aware of the disturbances in the N.A.C. and the Principal Secretary, Housing and Urban Development Depart¬ment, suggested that since a special audit is now in progress in Balungaon N.A.C., it would be advisable to consider some alter¬nate posting of Shri Sahoo for the time being, but the same was not acceded to by the Govt., as it appears from the note of the Minister, U. D. But all these aspects can be taken care of in the Original Application which is pending in the Tribunal. 5. From the counter affidavit of Shri Sahoo, as narrated in the foregoing paragraph, it is crystal clear that the Execu¬tive Officer is at a logger head with the Chairperson, Vice-Chairperson and the Councillors who are elected representative of the people. Though the learned counsel for the petitioners sub¬mitted that the Govt. cannot depute any of its employees to N.A.C. without the consent of the N.A.C. as per Section 85 of the Orissa Municipal Act, we are not inclined to go into the merits as this writ petition is only directed against the interim order passed by the Tribunal. But it is worth saying that as per Sec¬tion 87 of the O.M. Act, the resolutions of the Municipality shall be carried into effect by the Executive Officer in whom the executive powers of the Municipality is vested. Section 87 of the O.M. Act is quoted herein below : “87. Executive power vested in Executive Officer- (1) The resolution of Municipality shall be carried into effect by the Executive Officer in which the executive power of the Municipality shall be vested. (1-a) xxx xxx xxx (2) It shall not be lawful for the Executive Officer to exercise any power within this Act expressly declares shall be exercised by the Chairperson of the Municipality, unless such power is delegated to him by either of them under Section 92 or 96 or rules frame thereunder.” 6. (1-a) xxx xxx xxx (2) It shall not be lawful for the Executive Officer to exercise any power within this Act expressly declares shall be exercised by the Chairperson of the Municipality, unless such power is delegated to him by either of them under Section 92 or 96 or rules frame thereunder.” 6. From the aforesaid statutory provisions, it is clear that the role of the Executive Officer is vital for the sake of good administration and to safeguard the interest of the N.A.C. But from the counter affidavit of O.P. No. 3, it is crystal clear that the continuance of O.P. No.3 as the Executive Officer is not conducive for the smooth running of the administration of the N.A.C. as the resolutions of the N.A.C. have to be carried into effect by the Executive Officer. In our considered opinion, no N.A.C. can function with an Executive Officer like O.P. No.3 who makes allegations of political nature against almost all the Councillors as well as Chairperson and Vice-Chairperson. A bare perusal of the counter affidavit filed by O.P. No.3 itself leads to an irresistible conclusion that the Notified Area Council cannot function smoothly with such an Executive Officer, who is completely against almost all the Councillors as well as the Chairperson and Vice-Chairperson. In view of the position as indi¬cated above, it would be just and proper on the part of O.P. No.1 to make an alternative arrangement for the smooth running/func¬tioning of the concerned N.A.C. 7. We accordingly direct O.P. No.1 to post some other officer to act as Executive Officer of Balugaon N.A.C. during the pendency of the Original Application. 8. The Writ Application is accordingly disposed of. N. PRUSTY, J. Application disposed of.