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2012 DIGILAW 408 (ORI)

Bharati Pradhan v. State of Orissa

2012-09-13

B.N.MAHAPATRA

body2012
JUDGMENT B.N.Mahapatra, J. 1. This writ petition has been filed with a prayer to quash the order of suspension dated 24.07.2012 (Annexure-19) uploaded in the website and to issue a direction to the opposite parties to co-operate with Allori Grama Panchayat for completion of the construction of Grama Panchayat building at Allori on the land gifted by one Sri Ganeswar Biswal with the money allotted by DRDA vide letter dated 08.08.2011 (Annexure-2). Further prayer of the petitioner is to allow the Panchayat Office to function temporarily at Bhetia Recreation Centre till the new building is constructed at Allori. 2. Petitioner’s case in a nutshell is that in 2012 Panchayat Election, the petitioner has been elected as Sarpanch of Allori Grama Panchayat. She has assumed the charge of Sarpanch since 09.03.2012 and is working as such till date. In the year 2001 Allori Grama Panchayat was segregated from Munduribeda Grama Panchayat. Due to dissension between the villagers and continuous litigation between them, practically Allori Grama Panchayat could not function at Allori and it was functioning at erstwhile Panchayat at Munduribeda. Fixing the headquarters of Allori Grama Panchayat at Allori was challenged by few of the villagers including erstwhile Sarpanch of Allori Grama Panchayat in W.P.(C) No.8603 of 2010 which was dismissed by this Court. The same was challenged in Writ Appeal No.195 of 2011 before this Court. This Court after hearing the parties refused to interfere with the administrative order fixing the headquarters of Allori Grama Panchayat in its order dated 18.07.2011. 3. After completion of election and assuming charges by the present petitioner, in resolution dated 16.03.2012 (Annexure-1), it was decided unanimously to shift the headquarters temporarily to Bhetia Recreation Centre. Allori Grama Panchayat does not have a Panchayat building till date for which DRDA, Angul vide letter dated 08.08.2011 has sanctioned a sum of Rs.5.00 lakh for construction of a new Grama Panchayat Building and the said amount has already been deposited in the Panchayat account. Construction of the new building could not be taken up as it requires administrative clearance and land, which was not made available due to lack of cooperation. In response to the resolution under Annexure-1, opposite party no.5-B.D.O., Pallahara in his letter dated 21.03.2012 (Annexure-3) informed the petitioner to shift office of the Panchayat to the new building constructed at Allori. Construction of the new building could not be taken up as it requires administrative clearance and land, which was not made available due to lack of cooperation. In response to the resolution under Annexure-1, opposite party no.5-B.D.O., Pallahara in his letter dated 21.03.2012 (Annexure-3) informed the petitioner to shift office of the Panchayat to the new building constructed at Allori. In response to the notice of the BDO under Annexure-3, the Sarpanch informed the BDO that she was not aware of any construction and source of finance for construction of the building at Allori. She further informed that Rs.5.00 lakh for construction of the Panchayat building is lying in the account of the Grama Panchayat. In the said letter she wanted several information from the B.D.O. 4. Further case of the petitioner is that the Grama Panchayat Office was shifted to Bhetia Promoda Kendra on 03.04.2012 and the charge was handed over to the Executive Officer vide letter dated 03.04.2012 (Annexure-5). The documents and other records handed over to the Executive Officer were duly acknowledged by him on the body of the letter dated 04.04.2012 (Annexure-6). Notwithstanding the fact that the possession of the records and other articles of the Panchayat are with the Executive Officer yet he lodged a complaint before the Local Police against the Panchayat and its members with ill motive. In response to that the petitioner informed the local police vide letter dated 07.04.2012 (Annexure7) refuting the allegations made by the Executive Officer. Opposite party no.5-B.D.O., Pallahara was informed vide letter dated 17.04.2012 (Annexure-8) about the non-cooperation of the Executive Officer. The B.D.O. vide his letter dated 16.04.2012 (Annexure-9) informed the petitioner about the newly constructed Panchayat building and further informed that information sought for by the petitioner can be available under the RTI Act. The petitioner was further informed that as all the members were not present in the meeting held on 16.03.2012, the resolution passed on that date was not approved by the Collector. The non-cooperation of the Executive Officer was again brought to the notice of the B.D.O., vide letter dated 19.04.2012 (Annexure-10). In the meeting held on 30.04.2012 resolution dated 16.03.2012 was affirmed and a decision was taken to run the headquarter temporarily at Bhetia till completion of the construction of the G.P. Building with the funds allotted by the Project Director, DRDA, Angul. In the meeting held on 30.04.2012 resolution dated 16.03.2012 was affirmed and a decision was taken to run the headquarter temporarily at Bhetia till completion of the construction of the G.P. Building with the funds allotted by the Project Director, DRDA, Angul. A copy of the resolution dated 30.04.2012 was sent to the B.D.O., Pallahara & the Sub-Collector, Angul etc. 5. The Sub-Collector vide letter dated 30.04.2012 (Annexure-12) sought for written explanation from the petitioner as to why the resolution taken for shifting the headquarters of Allori G.P. to Bhetia temporarily shall not be cancelled. Again the B.D.O., Pallahara vide letter dated 07.05.2012 (Annexure-13) sought for explanation from the petitioner as to why action under Sections 114 and 115 of the Act shall not be taken against her. The petitioner responded to the said letters vide reply dated 10.05.2012 and 18.05.2012 (Annexures-14 and 15) respectively. In the Panchayat meeting held on 20.05.2012 (Annexure-16), Panchayat took decision that until details of the building are disclosed by the authorities, it would not be wise to shift the office to the building constructed at Allori and to construct the new Panchayat building on the land of Ac 1.0 acre gifted by Sri Ganeswar Biswal with the fund available with the Panchayat. The B.D.O. in his letter dated 23.05.2012 (Annexure-17) informed the petitioner to shift the records and articles to the newly constructed building at Allori and sought for explanation from the petitioner regarding non-utilization of Rs.5.00 lakhs sanctioned vide letter No.2345 dated 08.08.2011. Thereafter the petitioner made representation to the Minister of Panchayati Raj Department on 16.07.2012 with copy to the concerned Collector and B.D.O. mentioning therein the circumstances under which headquarters of Allori Grama Panchayat was shifted to Bhetia. 6. While the matter stood thus, the Government passed order dated 24.07.2012 (Annexure-19), wherein the petitioner has been placed under suspension and explanation has been called for from her as to why action as deemed proper shall not be taken against her in accordance with law. Copy of the said order and charge sheet thereto have been down loaded by the petitioner from the website and marked as (Annexure-19). 7. Mr. S.K. Sarangi, learned counsel for the petitioner submitted that Allori village does not have a Panchayat Office. For construction of the Panchayat Office, DRDA, Angul has sanctioned Rs.5.00 lakh. Copy of the said order and charge sheet thereto have been down loaded by the petitioner from the website and marked as (Annexure-19). 7. Mr. S.K. Sarangi, learned counsel for the petitioner submitted that Allori village does not have a Panchayat Office. For construction of the Panchayat Office, DRDA, Angul has sanctioned Rs.5.00 lakh. Construction could not be taken up for last one year due to non-availability of land, but in the meantime, a plot of land measuring Ac 01.00 decimal has been donated by Ganeswar Biswal and steps have been taken to construct a building on the land made available to it. Till such construction is made it has been decided by Panchayat to shift the Panchayat headquarters temporarily to Bhetia. The said shifting is purely temporarily in nature. Therefore, action of the Panchayat is not over-riding or over-reaching or disobeying the order of the Government officials as it is in administrative exigency. The building offered by the B.D.O. for function of the Panchayt has neither been formally handed over to the Panchayat nor details of the land on which such construction has been made available to the Panchayat. The building in question has also not been allotted in favour of the Panchayat so far. In the circumstances, decision taken by the Panchayat to shift the headquarters temporarily to Bhetia till completion of the new building over the land gifted by Ganeswar Biswal cannot be faulted with. 8. Mr. Sarangi, further submitted that non-approval of the resolution dated 16.03.2012 by the competent authority is not based on sound reasoning. Only few members did not choose to attend the meeting. Since, decision taken by the Grama Panchayat was of the majority members, it is valid. Therefore, quashing of the resolution in exercise of power under Section 114 of the Act, speaks of non-application of mind on the part of the concerned authorities. The Executive Officer is duty bound to work for the Panchayat notwithstanding the place of its working. Non-cooperation on the part of the Executive Officer was brought to the notice of the BDO, Pallahara but no action whatsoever has been taken by him. The Executive Officer in furtherance of his evil intention has lodged a false complaint against the Panchayat and its members even though he is the custodian of articles and records of the Panchayat. Non-cooperation on the part of the Executive Officer was brought to the notice of the BDO, Pallahara but no action whatsoever has been taken by him. The Executive Officer in furtherance of his evil intention has lodged a false complaint against the Panchayat and its members even though he is the custodian of articles and records of the Panchayat. Since he is remaining absent from the office, the entire activity of the Panchayat has become paralyzed. Action as per Sections 114 and 115 of the Act was not available to be invoked under the facts and circumstances of the case. The Panchayat has justified its each and every action which has been taken pursuant to the decision of majority members. Hence, the majority decision of the elected representatives cannot be ignored in preference to the administrative power vested with the government officials. That apart the Panchayat has not acted in any way prejudicial to the interest of the inhabitants of the Grama Panchayat. The decisions of the majority cannot be termed as prejudicial to the inhabitants of the Grama Panchayat. It is submitted that seeking information regarding a particular building where Panchayat office is to be shifted cannot be termed as violation of any provisions of the Act or wilful disobedience of any Rules or any order or abuse of power. Correspondences made by the opposite party authorities show that the petitioner has been penalized for no fault of her as she has acted in conformity with the majority opinion of the representatives of people. The BDO should have cooperated in the matter of construction of new Panchayat building with the funds allotted by the DRDA. The action taken by the opposite parties shows that the entire exercise has been made with mala fide intention which has far reaching consequence. Placing reliance upon the judgment of this Court in the case of Basudev Dandasena vs. State of Orissa, (2010) 1 OLR 909 , learned counsel for the petitioner prayed for quashing of the order of suspension under Annexure-19 in the interest of justice and fair play. 9. Mr. S. Mishra, learned Additional Government Advocate for the opposite parties-State submitted that there is no infirmity or illegality in the order of suspension passed under Annexure-19 which is accompanied by the detailed charges. 9. Mr. S. Mishra, learned Additional Government Advocate for the opposite parties-State submitted that there is no infirmity or illegality in the order of suspension passed under Annexure-19 which is accompanied by the detailed charges. The averments made in paragraph-9 of the writ petition that the Sarpanch was not aware about any construction of the said building in Allori Grama Panchayt is totally false. The B.D.O., Pallahara vide his letter dated 21.03.2012 (Annexure-3) to the writ petition informed the petitioner-Sarpanch that in accordance with the order of this Court, Allori Grama Panchayat and Pechamundi Grama Panchayat Buildings have been constructed with the funds granted by the Government in Panchayati Raj Department; but the Grama Panchayat office in question is not functioning in the newly constructed building. Therefore, the petitioner was requested to shift the records and articles of Allori Grama Panchayat to the newly constructed Grama Panchayat building at Allori. Further pursuant to Annexure-3, the petitioner vide letter dated 29.03.2012 (Annexure-4) intimated to the B.D.O., Pallahara to inform her various details about the buildings which were informed to her. The letter of the B.D.O., Pallahara dated 07.05.2012 (Annexure-13) reveals that the petitioner purposefully disobeyed the order of the higher authorities and the High Court, for which a show cause was issued to her. 10. Mr. Mishra, further submitted that law is well settled that this Court should not interfere at the stage of show cause notice and the order of suspension. In support of his contention, Mr. Mishra, relied upon the judgments of the Hon’ble Supreme Court as well as this Court in the cases of State of Orissa and others vs. Md. Illiyas, 2006(1) OLR (SC) 93 and Simanchal Bisoi vs. State of Orissa and others, 2005(2) OLR 460 . Concluding his argument, Mr. Mishra, learned Additional Government Advocate prayed for dismissal of the writ petition. 11. On the rival contentions advanced by the parties, the following questions fall for consideration by this Court: (i) Whether the notice of show cause with article of charges and order of suspension are liable to be quashed ? (ii) What order ? 12. Annexure-3 reveals that Allori Panchayat building has been constructed at Allori by the Panchayati Raj Department, Government of Orissa for functioning of the concerned Grama Panchayat office there. (ii) What order ? 12. Annexure-3 reveals that Allori Panchayat building has been constructed at Allori by the Panchayati Raj Department, Government of Orissa for functioning of the concerned Grama Panchayat office there. The Panchayat Office in stead of functioning in the said building, articles and documents of the Allori Grama Panchayat were shifted to Bhetia Recreation Centre till a building is constructed on the land donated by one Ganeswar Biswal. Various letters issued by the Government authorities which are annexed to the writ petition referred to supra show that time and again the petitioner has been informed by the opposite party-authorities to shift the articles and records of the Allori Grama Panchayat to the newly constructed building at Allori village. Despite the same, no step has been taken by the petitioner to shift the articles and records of Allori Grama Panchayat to newly constructed Grama Panchayat Building by Government at Allori. This delinquency or lapse prima facie appears to be willful. 13. In the above backdrop, the following charges are framed by the Government against the petitioner: “Whereas Smt. Bharati Pradhan, Sarpanch, Allori G.P., Pallahara Block has neglected in her duties as provided under Section 19 of the Orissa Grama Panchayat Act, 1964 for which the following charges are framed against her under sub-section-(1) of Section 115 of the said Act. 1) That the Sarpanch, Allori G.P. Smt. Bharati Pradhan willfully violated the orders of the Hon’ble High Court and also the orders of Govt. and abused her power which is prejudicial to the interest of the functioning of Grama Panchayat. 2) That Smt. Bharati Pradhan, Sarpanch, Allori G.P. has illegally shifted the records of Gram Panchayat to Vetia village under the said Gram Panchayat forcibly, instead of the newly constructed G.P. Office building situated in the G.P. Head Quarters at Allori village. 3) That Smt. Pradhan has disobeyed the instruction of higher authorities by refusing to keep the G.P. records in the newly constructed office building. Sd/-24.07.2012 Deputy Secretary to Government” 14. In exercise of power under sub-Section (1) of Section 115 of the G.P.Act, the Government in Panchayati Raj Department has called upon the petitioner vide order dated 24.07.2012 to explain within 15 days from the date of receipt of the said order as to why action as deemed proper shall not be taken against her in accordance with law. 15. In exercise of power under sub-Section (1) of Section 115 of the G.P.Act, the Government in Panchayati Raj Department has called upon the petitioner vide order dated 24.07.2012 to explain within 15 days from the date of receipt of the said order as to why action as deemed proper shall not be taken against her in accordance with law. 15. The Government further in exercise of power conferred by subsection (2) of Section 115 of the Act vide order dated 24.07.2012 have placed the petitioner under suspension. 16. At this juncture, it is necessary to refer to the judgment of this Court in the case of Rohit Kumar Behera vs. State of Orissa, 2012 (II) ILR-CUT-395, wherein this Court has held that: “21. Law is well settled that unless it is shown that the notice to show cause has been issued palpably without any authority of law, the show cause notice cannot be quashed in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution.” (Also see State of Uttar Pradesh vs. Brahm Datt Sharma and another, AIR 1997 SC 943) 17. In A.V. Venkateswaran Collector of Customs, Bombay vs. Ramchand Sobhraj Wadhwani & Anr., AIR 1961 SC 1506 , the Constitution Bench of the Hon’ble Supreme Court held that where there is a complete lack of jurisdiction in any officer or authority who takes the action impugned, the writ jurisdiction should be exercised. 18. In the case at hand, prima facie it does not appear that show-cause notice has been issued without having authority of law or without having jurisdiction. Charges have been framed and served on the petitioner by initiating a proceeding under sub-Section (1) of Section 115 of the G.P.Act. 19. The Hon’ble Supreme Court in the case of U.P. Rajya Krishi Utpadan Mandi Parishad and others vs. Sanjiv Rajan, 1993 Supp (3) SCC 483, held that the Court should not interfere with the orders of suspension unless they are passed mala fide and without there being even a prima facie evidence on record connecting the employees with the misconduct in question. 20. At this stage, it is relevant to refer to the judgment of the Hon’ble Supreme Court in the case of Md. Illiyas (supra): “15. In the instant case various acts of the respondent are prima facie indicative of abuse of powers, rights and privileges vested on the Sarpanch. 20. At this stage, it is relevant to refer to the judgment of the Hon’ble Supreme Court in the case of Md. Illiyas (supra): “15. In the instant case various acts of the respondent are prima facie indicative of abuse of powers, rights and privileges vested on the Sarpanch. The Collector, on the basis of the materials contained in the report of the Sub-Collector has opined that these are willful acts. The High Court has completely lost sight of these relevant facts. The Collector’s opinion at the stage of consideration is really a prima facie view on the basis of materials before him. Unless there is total absence of material and/or non-application of mind the Courts should not interfere. The case at hand does not belong to that category.” 21. In the present case, the charges accompanied to the show cause notice and the order of suspension, prima facie show that there is abuse of powers, rights and privileges vested on the Sarpanch and the Sarpanch willfully omits/refuses to carry out the order made under the provision of the Grama Panchayat Act and Rules framed thereunder. Therefore, the State Government has exercised power under Section 115 of the G.P. Act on the basis of the report of the Collector, Angul. It is not a case of total absence of materials or non-application of mind. Therefore, it is not a fit case where this Court shall exercise its discretionary power under Article 226 of the Constitution to quash the order of suspension under Annexure 19. 22. The judgment of this Court in the case of Basudev Dandasena (supra), is of no help to the petitioner as in that case this Court found that no reason whatsoever has been assigned in the order of suspension passed by the Government; but in the instant case, charges annexed to the order of suspension show the reasons for which the order of suspension has been passed. Therefore, this Court is not inclined to quash the order of suspension under Annexure-19. 23. Needless to say, ordinarily it is not open to the Court to interfere in a case of suspension as it is within the exclusive domain of the competent authority, who can always review its order of suspension being inherent power conferred upon it. 24. Therefore, this Court is not inclined to quash the order of suspension under Annexure-19. 23. Needless to say, ordinarily it is not open to the Court to interfere in a case of suspension as it is within the exclusive domain of the competent authority, who can always review its order of suspension being inherent power conferred upon it. 24. This Court in the case of Simanchal Bisoi (supra), had given liberty to the petitioner therein to move the concerned authority in consonance with sub-section (3) of Section 115 of the Act for variance of the order of suspension. 25. In view of the above, this writ petition is disposed of giving liberty to the petitioner to file her reply to the show cause notice issued under Annexure-19 within two weeks from today. If such a reply is filed by the petitioner, the same shall be considered and disposed of by the State Government strictly in accordance with law. It is also open to the petitioner to move the concerned authority in consonance with sub-Section (3) of Section 115 of the Act for variance of the order of suspension. However, since the matter relates to a representative of people, this Court hopes and trusts that the Government will expedite the proceedings in one way or other without keeping the Petitioner-Sarpanch on tenterhooks for a longer period. Therefore, the State Government shall ensure that the elected member is not kept in dark for indefinite period. 26. With the aforesaid observations and directions, the writ petition is disposed of. No order as to costs.