Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 88 (ORI)

Suratha Sahoo v. State of Orissa

2010-02-16

R.N.BISWAL

body2010
JUDGMENT R.N. BISWAL, J. : As per the writ petition, the petitioner was elected as Sarpanch of Daspur Gram Panchayat under Golamunda Block of Kalahandi District in the year 2008 and assumed charge of the office. While continuing as such, he contested for the seat of M.L.A. of 78 Junagarh Assembly Constituency. Being envious, some miscreants falsely alleged before the Chief Electoral Offi¬cer that he withdrew Rs.3,50,000/- from NREGS fund and utilized the same in his election campaign. Pursuant to it, the Chief Electoral Officer directed the returning officer to cause an enquiry. Accordingly, the Returning Officer enquired into the matter and submitted his report to the Collector-cum-District Election Officer, Kalahandi on 10.4.2009. As per the report, the petitioner had been executing NREGA works and handling cash directly and at the time of enquiry he had kept Rs3,50,000/- with him in the name of labour payment, which he was not authorized to do. 2. According to the petitioner, the allegations are total¬ly false and fabricated.The Sarpanch cannot withdraw the money. The money can be withdrawn by the instruction of B.D.O. and the Executive Officer of the Gram Panchayat is responsible for the same. The money is directly transferred to the account of benefi¬ciaries. On the aforesaid false allegations, without making proper inquiry as required under law, the Government in Panchayat Raj Department vide letter dated 11.4.2009, called upon the peti¬tioner to show cause, within 30 days from the date of receipt of the notice, as to why action as deemed proper would not be taken against him in accordance with law. Simultaneously, in purported exercise of powers conferred under Sub-Section @ of Section 115 of the Orissa Gram Panchayat Act, 1964 (hereinafter called as the Act) the government in Panchayat Raj Department placed the peti¬tioner under suspension with immediate effect. On the same date, Collector, Kalahandi also withdrew the financial power of the petitioner with immediate effect. Being aggrieved with the order of suspension and withdrawal of his financial power, the peti¬tioner filed the present writ petition. 3. In the counter affidavit on behalf of the Collector, Kalahandi (opposite party No.2) it was contended that on receipt of complaint against the petitioner, the matter was enquired into on 10.4.2009 and it was found that the petitioner, without any authority handled the Gram panchayat Cash directly and had kept Rs.3,50,000/- with him in the pretext of labour payment. 3. In the counter affidavit on behalf of the Collector, Kalahandi (opposite party No.2) it was contended that on receipt of complaint against the petitioner, the matter was enquired into on 10.4.2009 and it was found that the petitioner, without any authority handled the Gram panchayat Cash directly and had kept Rs.3,50,000/- with him in the pretext of labour payment. Since he violated the provisions of the Act and the rules framed there under, the State of Orissa in Panchayat Raj Department (opposite party No.1), in exercise of powers conferred under sub-section 2 of Section 115 of the Act placed the petitioner under suspension from the office of Sarpanch with immediate effect and called upon him to show cause within 30 days from the date of receipt of the order. It is the further case of opposite party No.1 that the petitioner himself admitted before the Sub-Collector, Dharmagarh under Annexure-A/3 that he had kept Rs.3,50,000/- with him for payment of wages of the labourers. The Panchayat Executive Offi¬cer and the Gram Panchayat Secretary of Daspur Gram Panchayat also stated that the aforesaid amount had been kept by the peti¬tioner. So,in exercise of power under Sub-section 2 of Section 115 of the Act, the opposite party No.1 rightly passed the im¬pugned order. 4. Annexure-A/3 shows that the petitioner admitted to have received Rs.3,50,000/- from the Gram Panchayat Fund to make payment to the labourers. In this writ petition, the petitioner stated that under NREGS Scheme the money is directly transferred to the accounts of the beneficiaries. So, now he can not say that he legally withdrew the money for payment of the labourers. It transpires from the enquiry report (Annexure D/3) that the Ex-Secretary and Ex. Executive Officer Daspur Gram Panchayat stated before the enquiry officer that first the petitioner used to take the file to Block Development Officer for counter signature and after obtaining his signature intimidate them to sign on the cheques. 5. It transpires from the enquiry report (Annexure D/3) that the Ex-Secretary and Ex. Executive Officer Daspur Gram Panchayat stated before the enquiry officer that first the petitioner used to take the file to Block Development Officer for counter signature and after obtaining his signature intimidate them to sign on the cheques. 5. Learned counsel for the petitioner submitted that before a proceeding is initiated under Section 115 of the Act, the Government on the basis of a report of the Collector or the project Director, District Rural Development Agency or suo motu must be of the opinion that circumstances exists to show that the Sarpanch wilfully omitted or refused to carry out or violated the provisions of the Act or the Rules framed thereunder or abused the power, rights and privileges vested on him or acted in a manner prejudicial to the interest of the inhabitants of the Gram Panchayat and that the further continuance of such person in office would be detrimental to the interest of the Gram Panchayat or inhabitants of the Grama. In the present case, no report was received from the Collector or Project Director, D.R.D.A. There is also nothing to show that the Government suo motu initiated the proceeding. The entire exercise was done during the period of election of M.L.A. for the 78 Junagada Assembly Constituency, by the Chief Electoral officer. As the report was submitted by the Sub-Collector-cum-Returning Officer during the period of elec¬tion, in the capacity of the Returning Officer, it could not be said that it was submitted by the Sub-Collector. Learned counsel for the petitioner further submitted that as per Section 28-A of the Representation of Peoples Act, the Returning Officer, Presid¬ing Officer etc. appointed for the time being by the State Gov¬ernment, for the conduct of any election would be deemed to be on deputation to the Election Commission for the period commencing on and from the date of the notification calling for such elec¬tion and ending with the date of declaration of the result of such election and during that period such officers would be sub¬ject to control, superintendence and discipline of the Election Commission. In view of the said provision, the Sub-Collector-cum-Returning Officer has no authority to enquire into the matter and the Collector-election officer has no authority to report against a Sarpanch to the Government. 6. In view of the said provision, the Sub-Collector-cum-Returning Officer has no authority to enquire into the matter and the Collector-election officer has no authority to report against a Sarpanch to the Government. 6. A report of the collector or Project Director District Rural Development Agency is required before initiating a proceed¬ing under Section 115 of the Act and putting a Sarpanch under suspension by the State Government. Of course, the State Govern¬ment can also initiate such a proceeding suo motu and place a Sarpanch under suspension. In the present case, as found from the impugned order Annexure-1, on the report of the Collector, Kala¬handi, action was taken by the Government against the petitioner. Even though the Collector,Kalahandi was on deputation to the Election Commission and was functioning as election officer during the relevant time, it can not be said that he abdicated his function as Collector. Similarly, it cannot be said that while acting as Returning Officer, the Sub-Collector, as such legally could not have enquired into the allegation made against the petitioner. 7. Learned counsel for the petitioner further submitted that as envisaged under Section 115 of the Act if a Sarpanch wilfully omits or refuses to carry out or violates the provisions of the Act or the Rules or orders made thereunder or abuses the powers, rights and privileges vested on him or acts in a manner prejudicial to the interest of the inhabitants of Gram Panchayat and further continuance of such person in office would be detri¬mental to the interest of the inhabitants of the Gram Panchayat or inhabitants of the Grama, the Govt. may after giving the person concerned, a reasonable opportunity of show cause, remove him from the office of Sarpanch. So, as per this provision the omission or refusal to carry out the provision of the Act or Rules must be willful. As per the allegation against the peti¬tioner, he withdrew a sum of Rs.3,50,000/- to disburse the same to the labourers under the NREGS Scheme. He did not do it wilful¬ly. So, the order of suspension and issuance of notice under Annexure-1 are illegal. In support of his submission learned counsel for the petitioner relied on the decisions in the case of State of Orissa and others v. Md. He did not do it wilful¬ly. So, the order of suspension and issuance of notice under Annexure-1 are illegal. In support of his submission learned counsel for the petitioner relied on the decisions in the case of State of Orissa and others v. Md. Illiyas 2006(I) OLR (SC) 93, Sukanta Bhoi v. State of Orissa and others,* AIR 2000 (Orissa) 28 and the decision in the case of Baikunthannath Mohanty v. State of Orissa and others, 66 (1998)CLT-597. On the other hand, learned Addl. Government Advocate contended that on enquiry,it was prima facie established that the petitioner illegally with¬drew Rs.3,50,000/- from Grama Panchayat fund to utilize the same in his election campaign which tentamounts to misappropriation of money, albeit temporarily. So, it can be safely said that he did it wilfully. In support of his submission, he relied on the decision in the case of Jagannath Bag vrs. Collector, Balasore and four other, 2004 (II) OLR 489 . 8. In the decision, State of Orissa and others v. Md. Illiyas (supra) the apex court held that an act is said to be ‘wilful’ if it is intentional, conscious and deliberate. The expression ‘wilful’ excludes casual, accidental, bonafide or unintentional acts or genuine inability. A wilful act does not encompass accidental,involuntary, or negligence. It must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom. The expression ‘wilful’ means an act done with a bad purpose, with an evil motive. In the decision Sukanta Bhoi v. State of Orissa and others (supra) it was held that:- “A Sarpanch may have failed to carry out the provisions of the acts or the rules, may have violated them, certain of his acts may appear to be abuse of the powers, certain acts may appear to be detrimental to the Grama, but if such act,omission or exercise of power is not willful, that is to say, deliberate, calculated,intentional and conscious, the Sarpanch does not lose his throne on which he is seated by the people”. In the case of Baikunthannath Mohanty (supra) it was held that the adverb ‘wilfully’ governs and qualifies the conduct of the Sarpanch, namely, that he willfully omitted, refused, violat¬ed the provisions of the Act or the Rules or wilfully abused the rights, and privileges vested in him or wilfully acted in a manner prejudicial to the interest of the inhabitants of the Grama Panchayat or the Grama. Unless it is found that he did so wilful¬ly the provisions would not be attracted. In the case of Jagan¬nath Bag (supra) cited by learned Addl. Govt. Advocate this court held that when one commits defalcation of money or is indulged in corruption certainly he commits the same deliberately and wilful¬ly. 9. In the present case, it is prima facie established that the petitioner illegally withdrew a sum of Rs.3,50,000/-, meant for NREGS Scheme from the Gram Panchayat Fund to utilize the same in his election campaign. Whether this allegation is true or false, it shall be decided in the proceeding initiated against the petitioner. But at this stage, it cannot be said that the act was accidental, bonafide or unintentional and it was not done with bad purpose. So, the decisions cited by the learned counsel for the petitioner are not applicable to the present case. On the other hand the decision, Jagannath Bag (supra) would squarely be applicable to it. Accordingly the writ petition stands dismissed. No cost. Petition dismissed.