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2008 DIGILAW 633 (ORI)

RADHAMOHAN GOUDA v. STATE OF ORISSA

2008-08-04

M.M.DAS

body2008
JUDGMENT : M.M. Das, J. - Heard Mr. P.K. Mishra, learned Counsel for the Petitioner and Mr. Dash, learned Counsel for the State. 2. The Petitioner was appointed as the Secretary of Jagadalpur Grama Panchayat under Muniguda Block in the district of Rayagada in 1985 and was working as such. A criminal case u/s 409 I.P.C. was initiated against him upon which G.R. Case No. 117 of 2003 was registered and he being arrested by the police in connection with the said case, was put under suspension by the Grama Panchayat as per Rule 216(b) of the Orissa Grama Panchayat Rules. The Petitioner thereafter was released on bail on 19.6.2003. As there was none-else except the Executive Officer in the Grama Panchayat, the Panchayat felt that considering the work load and the fact that the Petitioner has already been released on bail, he should be allowed to rejoin in his post as Secretary by lifting the order of suspension. No doubt, under the Orissa Grama Panchayat Rules, no specific provision is made for lifting the order of suspension, but, however, it is naive to state that the employer, who has power to suspend, has always the power to lift the suspension of an employee. It also appears that the Grama Panchayat in the Panchayat meetings held on 25.7.2003 and again on 28.5.2004 resolved that the Petitioner should be allowed to continue in the post of Secretary on lifting the order of suspension and also resolved that appropriate letter should be written to the District Panchayat Officer and other authorities. Copies of such resolutions have been annexed to the writ petition as Annexures-2 and 3. 3. It appears that after the last Panchayat election, when the new elected members constituted the Grama Panchayat, in a meeting held on 2.11.2007, they again resolved that the Petitioner should be paid his subsistence allowance from the date when he was put under suspension till he joins as Secretary. The grievance of the Petitioner is that in spite such resolutions of the Grama Panchayat, no action has been taken and the Petitioner has not yet been allowed to rejoin in his post as Secretary. 4. Mr. The grievance of the Petitioner is that in spite such resolutions of the Grama Panchayat, no action has been taken and the Petitioner has not yet been allowed to rejoin in his post as Secretary. 4. Mr. Mishra, learned Counsel for the Petitioner strenuously urged that since there is no provision either in the Orissa Grama Panchayat Act or under the Rules framed thereunder, regarding lifting the order of suspension passed against a Secretary of the Grama Panchayat, but the Grama Panchayat has been empowered to put him under suspension on occurrence of certain incidents, in view of the resolutions of the Grama Panchayat, the Petitioner should have been allowed to rejoin in his post of Secretary by lifting the order of suspension by the Grama Panchayat. 5. The question, which arises for determination in this case, is whether for lifting the order of suspension imposed on a Secretary of a Grama Panchayat prior approval of the District Panchayat Officer would be necessary? 6. Mr. Dash, learned Addl. Government Advocate submits that since approval of the District Panchayat Officer is necessary during appointment of Secretary to the Grama Panchayat, such approval impliedly would be necessary when the order lifting the suspension imposed on the Secretary is to be made. 7. Rule 212 of the Orissa Grama Panchayat Rules prescribes the procedure with regard to appointment of the Secretary to the Grama Panchayat. The said Rule provides that such appointment can be made only with the previous approval of the District Panchayat Officer. Rule 216(b) of the Rules empowers the Grama Panchayat to put the Secretary under suspension pending disposal of a proceeding against him under the Rules or if he has been detained in prison during the trial under the provisions of any law for the time being in force. The said Rule 216(b) does not prescribe that such suspension order can be passed by the Grama Panchayat only after prior approval of the District Panchayat Officer. On an harmonious construction of the above Rules, it would be seen that since the Grama Panchayat has the power to put the Secretary under suspension, when the contingencies as prescribed arise, without requiring any approval from the District Panchayat Officer, the Grama Panchayat itself can lift such suspension order and for lifting such order, no approval of the District Panchayat Officer would be necessary. 8. 8. This Court is, therefore, of the view that even though the Grama Panchayat previously resolved to obtain approval of the District Panchayat Officer to allow the Petitioner to rejoin in his post as Secretary of the Grama Panchayat by lifting the order of suspension, law does not require any such approval of the District Panchayat Officer. Since the newly elected members also in a meeting resolved that the Petitioner should be paid his subsistence allowance from the date of his suspension till the date on which he joins back, the Opp. Parties are directed to allow the Petitioner to rejoin in his post as Secretary of the Grama Panchayat and the Petitioner shall be entitled to subsistence allowance for the period when he remained under suspension and after joining he shall receive regular salary. The question as to on what manner the period of suspension should be treated, can only be decided after conclusion of the criminal trial pending against him. The directions given above should be complied with within a period of two weeks from the date of production of the certified copy of this order before the Sarpanch of the concerned Grama Panchayat, who shall allow the Petitioner to rejoin in the post of Secretary. 9. With the aforesaid observations and directions, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application.