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2009 DIGILAW 270 (ORI)

SRI PRAMOD KUMAR TRIPATHY v. STATE OF ORISSA

2009-03-26

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - Heard Mr. S.D. Das, learned senior counsel for the Petitioner and Mr. B. Dash, learned Counsel for the State. 2. The Petitioner is the elected Sarpanch of Rameswar Grama Panchayat in the district of Khurda. Having received a notice dated 31.12.2008 under Annexure-3 calling upon him to show cause within thirty days from the date of receipt of the said notice with regard to the charges enclosed thereto and further putting the Petitioner under suspension from the office of the Sarpanch, the Petitioner has preferred the present writ petition challenging the said notice and the charges framed against him, and making a prayer to quash the said notice under Annexure-3 and the charges framed under Annexure-4. The said notice is purported to have been passed u/s 115 of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as 'the Act'). It has been mentioned in said notice that the Government is satisfied from the allegation made that the Petitioner willfully violated the provisions of the Act and Rules made thereunder and abused his powers vested under the said Act. It is further stated that the Government is also satisfied that further continuance of the Petitioner as Sarpanch will be detrimental to the interest of the inhabitants of the said Chandanvati Grama Panchayat. Mentioning the name of Chandavati Gramapanchayat in the notice under Annexure-3, which is not the Grama Panchayat, under which the Petitioner is the Sarpanch ex facie shows non-application of mind on the part of the Government. It, therefore, clearly shows that the notice only relates to the allegation as stated in Paragraph-1 thereof. Nothing has been stated in the said notice as to on what basis the Government was satisfied that the said allegations are prima facie established so as to exercise the power u/s 115 of the Act, suo motu. It is not the case of the opposite parties that any recommendation was sent by the Collector or any other officer as mentioned in Section 115 of the Act for initiation of a proceeding against the Petitioner. It is not the case of the opposite parties that any recommendation was sent by the Collector or any other officer as mentioned in Section 115 of the Act for initiation of a proceeding against the Petitioner. The charges enclosed to the said notice read as follows: Charge-1: That it is revealed from the report of the Collector, Khurda that on 30.11.2008 one Sri Mrutyunjaya Srichandan, was on election duty and was working as Booth Level Officer (BLO) on the special campaign for receiving complaints/objection in connection with revision of photo Electoral Roll. On the said date at about 4.50 P.M. Sri Pramod Kumar Tripathy, Sarpanch, Rameswar G.P. and his other 3 followers entered into the campaign Booth which was organized in class room of Talapada Primary School and handed over a huge bunch of applications from (in form No. 6) to the said BLO without having any evidence of age proof for inclusion their names in the electoral roll. Since, some of the applicants are under age and some other are not qualified to be included in the voters, the said BLO Sri Srichandan politely replied to the sarpanch Sri Tripathy that it is not possible on his part to accept such applications which have no documentary evidence. But the said Sapranch Sri Tripathy started absurd arguments with BLO and got suddenly annoyed. Then the said Sarpanch Sri Tripathy started scolding in unparliamentary language and forced him to do so. Again the said BLO politely denied to accept those applications. Suddenly the said Sarpanch Sri Tripathy started beating/assaulting be BLO in presence of the BDO. The said BLO Sri Srichandan getting no other way tried to ran away from the sport to save his life. But the said Sri Tripathy including his followers chased the BLO and beating him mercilessly and throttle the neck of the BLO and brought back him to the school and forced him to sign in a piece of paper. And again the said Sarpanch Sri Tripathy threatened the BLO if he files any F.I.R. in the police station they will cut him into pieces. Under the said situation, being helplessness, the said BLO preferred to informs the BDO, Tangi and local Teachers Association in writing. And again the said Sarpanch Sri Tripathy threatened the BLO if he files any F.I.R. in the police station they will cut him into pieces. Under the said situation, being helplessness, the said BLO preferred to informs the BDO, Tangi and local Teachers Association in writing. Thus it is construed that the said Sarpanch Sri Tripathy being public representative has put undue pressure on the BLO and exhibited Gundaism with a motive to demoralize the BLO as well as to paralyze the election process taken up for revision of Electoral Roll. Such action on the part of Sri Tripathy is a cognizable offence under the provision of Section 31 of "The representation of People Act, 1950". Further Sri Tripathy has also willfully violated the provisions of O.G.P. Act, 1964 and rules made thereunder. Charge-II: That the said Sarpanch Sri Tripathy has abused his official power and acted in a manner which undermines his official stature in violating the provisions of aforesaid act and rules. Such action on his part amounts to gross misconduct and prejudicial/detrimental to the interest to the inhabitants of the said Remeswar G.P. 3. Mr. S.D. Das, learned senior counsel for the Petitioner submits that the said charges are only with regard to an incident which is alleged to have occurred on 30.11.2008. He further submits that in the charges, it is stated that the Collector, Khurda submitted a report but from the counter affidavit, it is seen that the report was submitted by the Sub-Collector. He, therefore, submits that on the face of the notice and the charges as framed, it would be clear that the action taken against the Petitioner is an out come of political vendetta, for which such mistakes have occurred in the notice as well as the charges. It is the further case of the Petitioner that for the self-same allegation, an F.I.R. has been lodged by one Mrutyunjaya Srichandan, which has been registered as Jankia P.S. Case No. 209 of 2008 as at Annexure-2 and the said case is under investigation. He further submits that since no case has been made out for the Government to exercise the power u/s 115 of the act, the notice as well as the charges cannot be sustained and should be quashed. 4. Mr. He further submits that since no case has been made out for the Government to exercise the power u/s 115 of the act, the notice as well as the charges cannot be sustained and should be quashed. 4. Mr. B. Dash, learned Counsel for the State, on the contrary, submits that the criminal action as has been alleged against the Petitioner is an act, which is prejudicial to the interest of the inhabitants of the Grama and thus, there is no illegality on the part of the State in putting the Petitioner under suspension and initiating the proceeding as further continuance of such a person in the office of the Sarpanch is unwarranted for the interest of the Grama Panchayat and its inhabitants. 5. Section 115(1) of the Act which is relevant for this case, is as follows: Suspension and removal of Sarpanch, Naib-Sarpanch and member- If the State Government, on the basis of a report of the Collector or the Project Director, District Rural Development Agency, or suo motu are of the opinion that circumstances exist to show that the Sarpanch or Naib Sarpanch of a Grama Panchayat willfully omits or refuses to carry out or violates the provisions of this Act or the rules or orders made thereunder or abuses the powers, rights and privileges vested in him or acts in a manner prejudicial to the interest of the inhabitants of the Grama and that the further continuance of such person in office would be detrimental to the interest of the Grama Panchayat or the inhabitants of the Grama, they may after giving the person concerned a reasonable opportunity of showing cause, remove him from the office of Sarpanch or Naib-Sarpanch, as the case may be. (2) to (6) xxxx 6. Nothing has been alleged against the Petitioner with regard to abusing the powers, rights and privileges vested in him as the Sarpanch as provided u/s 19 of the Act. The allegation solely is in relation to the crime alleged to have been committed by the Petitioner. 7. (2) to (6) xxxx 6. Nothing has been alleged against the Petitioner with regard to abusing the powers, rights and privileges vested in him as the Sarpanch as provided u/s 19 of the Act. The allegation solely is in relation to the crime alleged to have been committed by the Petitioner. 7. Section 25(1)(g) of the Act provides that a person shall be disqualified for being elected or nominated as a Sarpanch, if he is convicted for an offence involving moral turpitude and sentenced to imprisonment of not less than six months unless a period of five years has elapsed since his release or is ordered to give security for good behaviour u/s 110 Code of Criminal Procedure As the allegations made in the F.I.R. are under investigation by the police in the aforesaid P.S. Case No. 209 of 2008 and only if a charge-sheet is submitted by the police and the Petitioner after facing the trial is convicted for any offence involving moral turpitude, he can be declared to be disqualified from holding the office of the Sarpanch by the Collector u/s 26 of the Act. 8. On consideration of the above provisions in the act and further considering the notice under Annexure-3 and the charges under Annexure-4, I find that there was absolutely no ground on the part of the Government to proceed against the Petitioner u/s 115 of the Act, the notice under Annexure-3 dated 31.12.2008 and the charges enclosed thereto are quashed. In the result, therefore, the Petitioner shall be treated to be continuing as Sarpanch of Rameswar Grama Panchayat. However, if the criminal case initiated against the Petitioner ends up in his conviction for any offence involving moral turpitude, necessary action, as provided u/s 26 of the Act for declaring him disqualified as per provisions of Section 25(1)(g) of the Act, may be taken. 9. With the aforesaid directions and observations, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application.