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2013 DIGILAW 385 (ORI)

ISWAR PANIGRAHI v. STATE OF ORISSA

2013-09-13

S.C.PARIJA

body2013
JUDGMENT : S.C. Parija, J. - This writ petition has been filed challenging the resolution passed by the Kasibahal Gram Panchayat, in the district of Kalahandi, dated 03.6.2013 (Annexure-9), disengaging the petitioner as Gram Rozgar Sevak. The facts of the case, as detailed in the writ petition, is that the petitioner was appointed as Gram Rozgar Sevak ('GRS' for short) vide order dated 14.12.2007, issued by the Kasibahal Gram Panchayat, as per Annexure-1, on contractual basis, with a consolidated remuneration of Rs. 2,000/- per month. Pursuant to such appointment, the petitioner joined as GRS and discharged his duties as assigned to him. While continuing in service as a GRS, the petitioner was served with a show-cause notice issued by the Addl. Dist. Magistrate, dated 10.12.2010 (Annexure-3), under which the petitioner was intimated that a grievance petition has been received from the people of Kasibahal Gram Panchayat regarding the issue of rice on BPL/APL cards, which was enquired into by the Civil Supplies Officer, Kalahandi and as per the enquiry report, the petitioner was found to have deliberately retained 23 Nos. of BPL card and getting benefit of rice without the knowledge of the card holders and their family members and thereby depriving the poor and needy beneficiaries from getting their legitimate entitlement of rice. Accordingly, the petitioner was asked to explain as to why disciplinary action shall not be initiated against him for such lapses. 2. In response to the aforesaid show-cause notice, the petitioner submitted his explanation to the Addl. Dist. Magistrate, Kalahandi on 22.12.2010, under Annexure-3 series, stating therein that he was engaged to distribute rice for a day and as per the allotment received, he has distributed the rice to the card holders and that some of the card holders did not come on the date fixed to receive the rice. 3. As the explanation given by the petitioner was not found satisfactory and the enquiry report of the Civil Supplies Officer, Kalahandi, clearly implicated the petitioner with regard to misappropriation of BPL rice, the District Panchayat Officer, Kalahandi, vide letter dated 07.10.2011 (Annexure-4), intimated the Block Development Officer, Koksara ('B.D.O.' for short), to recover the cost of the misappropriated rice from the petitioner as well as from the Sarpanch and VLW-cum-PEO of Kasibahal Grama Panchayat-opposite party Nos. 5 and 6 respectively. 5 and 6 respectively. Accordingly, the B.D.O. vide its letter dated 26.11.2011 (Annexure-5), intimated the petitioner as well as the opposite party Nos. 5 and 6 to deposit Rs. 20,447.36/- each, towards the cost of the misappropriated rice by 30.11.2011. 4. Pursuant to the said letter of B.D.O., Koksara-opposite party No. 4, the petitioner deposited the amount of Rs. 20,447.50/- with the Gram Panchayat vide receipt dated 16.12.2011 and submitted a representation praying to be excused for the misconduct and to exonerate him of the charges, as per the Annexure-6 series. 5. The Gram Panchayat in its resolution dated 19.12.2011, considering the prayer of the petitioner made in his representation and keeping in view the fact that the petitioner has already deposited the amount of Rs. 20,447.50/- towards the cost of misappropriated rice, as directed by the B.D.O., resolved to allow the petitioner to continue in the post of GRS as per Annexure-6 series. Subsequently, the B.D.O. vide its letter dated 18.5.2013 (Annexure-8) intimated the Sarpanch of Kasibahal Gram Panchayat that the Collector, Kalahandi, has disposed of the disciplinary proceeding initiated against the VLW-opposite party No. 5 and has directed that the Gram Panchayat should take steps for disengagement of the petitioner by calling a meeting of the Gram Panchayat and passing a resolution to that effect. Pursuant to the said letter of the B.D.O., the Gram Panchayat in its impugned resolution dated 03.6.2013 (Annexure-9) unanimously resolved to disengage the petitioner, which is under challenged in the present writ petition. 6. The case of the petitioner is that as per the job chart, he was never assigned the duty of distribution of rice to the BPL card holders and as the petitioner has already deposited the alleged misappropriated amount and has been exonerated by the Gram Panchayat vide its resolution dated 19.12.2011, no action could have been taken against him for the self same act of misconduct. It is further submitted that as the impugned resolution of the Gram Panchayat, disengaging the petitioner from the post of GRS has been passed at the behest and on the direction of the Collector, the same is wholly improper and illegal, as the autonomy of the Gram Panchayat to take its own decision cannot be interfered with by the Collector, in violation of Article 243(G) of the Constitution. It is further submitted that for the alleged act of misappropriating BPL rice of the card holders, disciplinary proceeding was initiated against the VLW-opposite party No. 6 and in the said proceeding he was found guilty and has been punished by withholding one annual increment and recovery of the cost of misappropriated BPL rice and therefore the petitioner could not have been punished again for the self-same act of misconduct. It is further submitted that as no disciplinary proceeding has been initiated against the petitioner for the alleged act of misappropriation of BPL rice, the punishment of disengagement under the impugned resolution of the Gram Panchayat under Annexure-9 cannot be sustained. Accordingly, it is submitted that the impugned resolution of the Gram Panchayat, disengaging the petitioner from the post of GRS, at the behest of the Collector, is improper, illegal and without jurisdiction. 7. Learned counsel for the petitioner has filed an affidavit enclosing the copy of the order dated 07.8.2013, passed by the District Panchayat Officer, Kalahandi, wherein the Collector, Kalahandi, has directed to recover the cost of misappropriated PDS commodities, amounting to Rs. 61,342.08/- from the Sarpanch, VLW and the present petitioner. Accordingly, it is submitted that as all the three have been found guilty of misappropriation of BPL rice, the petitioner cannot be singled out for punishment. 8. Learned counsel for the State with reference to the counter affidavit submits that on receipt of a complaint from the people of Kasibahal Gram Panchayat regarding misappropriation of rice of BPL/APL card holders, the Collector, Kalahandi, directed the Civil Supplies Officer, Kalahandi, to enquire into the matter and submit his report. The Civil Supplies Officer, Kalahandi, during his enquiry, recorded the statement of the card holders as well as of the petitioner and verified the BPL cards and submitted his report, as per Annexure-B/4 to the counter affidavit. In the said enquiry report it was stated by the enquiring officer that the petitioner was found to have deliberately retained 23 Nos. of BPL cards and has availed the benefit of rice without the knowledge of the card holders and thereby, depriving the poor and needy beneficiaries from getting their legitimate entitlement of rice. In the said enquiry report it was stated by the enquiring officer that the petitioner was found to have deliberately retained 23 Nos. of BPL cards and has availed the benefit of rice without the knowledge of the card holders and thereby, depriving the poor and needy beneficiaries from getting their legitimate entitlement of rice. On the basis of such findings of the Civil Supplies Officer, Kalahandi, the petitioner was asked to submit his explanation and the same having been found to be vague and not satisfactory, he had been directed to deposit the cost of misappropriated rice, amounting to Rs. 20,447.36/-. Pursuant to such direction, the petitioner deposited the aforesaid amount towards cost of misappropriated rice with the Gram Panchayat on 16.12.2011 and submitted a representation, praying to be excused for the misconduct and exonerated of the charges. Accepting the prayer of the petitioner, the Gram Panchayat in its resolution dated 19.12.2011, resolved not to disengage him from the post of GRS in view of the fact that he has already deposited the cost of the misappropriated rice, as had been directed by the B.D.O., Koksara. Subsequently, the Collector, Kalahandi, in the departmental proceeding initiated against the VLW-opposite party No. 6, found him guilty and awarded punishment as per Annexure-7 to the writ petition and recommendation was made to the Gram Panchayat to disengage the petitioner. Pursuant to such direction of the Collector, the petitioner has been disengaged by the Gram Panchayat vide its resolution dated 3.6.2013 under Annexure-9. 9. As regard the power of the Collector to issue instructions to the Gram Panchayat, reference has been made to the Circular issued by the Government of Orissa in the Panchayati Raj Department (Annexure-A/4), the relevant portion of which reads as under: (vi) As the engagement orders of GRS will be given by the Gram Panchayats, they may act as Disciplinary Authorities in respect of such engagement and the Collector may continue to have control over such exercise of powers as may be necessary from time to time. Hence while any disciplinary proceeding is initiated by Gram Panchayat against a Gram Rozgar Sevak, Collectors should be kept intimated and punishment awarded by Gram Panchayat should be approved by Collector keeping in view principle of natural justice, equity and fair play. Hence while any disciplinary proceeding is initiated by Gram Panchayat against a Gram Rozgar Sevak, Collectors should be kept intimated and punishment awarded by Gram Panchayat should be approved by Collector keeping in view principle of natural justice, equity and fair play. In pursuant of Section 14 and 18 of the NREG Act, 2005 read with Section 109 and 110 of OGP Act, 1964, the Collector-cum-District Programme Coordinator may also direct the GPs to initiate and take disciplinary action against any GRS if in the opinion of the Collector-cum-District Programme coordinator, the continuance of the said GRS is detrimental for proper and effective implementation of the provisions of the NREG Act and schemes framed there under. In such an event, the GP will be duty bound to follow the instruction of the Collector-cum-DPC in want of which Section 115/116 of OGP Act will be resorted to against the erring non-official PRI members. 10. Accordingly, it is submitted that the Collector is empowered to issue necessary direction/instruction to the Gram Panchayat, especially when he is of the opinion that the continuance of the GRS is detrimental for proper and effective implementation of the provisions of the NREG Act and schemes framed thereunder. Even otherwise, the Collector has the overall powers of inspection, supervision and control over the Gram Panchayat under Chapter XI of the Orissa Gram Panchayat Act. It is accordingly, submitted by learned counsel for the State that as the appointment/engagement of the petitioner was purely contractual on a consolidated remuneration, which can be terminated without any notice, subject to his satisfactory performance, the petitioner has no vested right to continue in the said post. It is further submitted that as the petitioner has admitted his guilt and deposited the cost of misappropriated rice, praying to excuse him for such act of misconduct, his continuance in the post of GRS is not desirable and will not be in public interest. Therefore, the unanimous decision of the Gram Panchayat to disengage the petitioner from the post of GRS is proper and justified. From the Circular of the State Government in the Panchayati Raj Department dated 18.8.2007 (Annexure-A/4), it is seen that for smooth execution of NREGS works and maintenance of the records/registers in consequence thereof, the State Government decided to engage one Multipurpose Assistant (Gram Rozgar Sevaks) on contractual basis for each Gram Panchayat. From the Circular of the State Government in the Panchayati Raj Department dated 18.8.2007 (Annexure-A/4), it is seen that for smooth execution of NREGS works and maintenance of the records/registers in consequence thereof, the State Government decided to engage one Multipurpose Assistant (Gram Rozgar Sevaks) on contractual basis for each Gram Panchayat. The consolidated remuneration of GRS will be Rs. 2000/- per month, which will be paid out of NREGA administrative cost, subject to satisfactory performance during the month in question. The said Circular further provided that though the Gram Panchayat may act as the Disciplinary Authority in respect of such engaged GRS, the Collector may continue to have control over such exercise of powers, as may be necessary from time to time. Further, disciplinary proceeding initiated against a GRS should be intimated to the Collector and the punishment awarded by the Gram Panchayat should be approved by him. From the above Circular of the State Government, it is abundantly clear that contractual engagement of GRS at the Gram Panchayat level for execution of NREGS works is under the overall administrative control and supervision of the Collector. The engagement of the petitioner as GRS was purely temporary on contractual basis and for a specific purpose of executing the work under NREGA and he could be removed at any time without notice, for unsatisfactory performance or any lapses or misconduct. The payment of consolidated remuneration of Rs. 2000/- per month was subject to his satisfactory performance during the month in question. Therefore, the petitioner had no vested right to continue in the said post of GRS. The enquiry report of Civil Supplies Officer, Kalahandi, (Annexure-B/4) clearly implicates the petitioner for misappropriation of rice allotted for 23 Nos. of BPL card-holders, which no doubt is a very serious act of misconduct. The petitioner has admitted his guilt and deposited his share of the cost of the misappropriated BPL rice with the Gram Panchayat, with the request to exonerate him of the charges. In view of such conduct of the petitioner, the Collector was fully justified in instructing the Gram Panchayat to convene a meeting and take steps for removal of the petitioner and therefore the subsequent resolution of the Gram Panchayat, taking a unanimous decision to disengage the petitioner cannot be faulted. In view of such conduct of the petitioner, the Collector was fully justified in instructing the Gram Panchayat to convene a meeting and take steps for removal of the petitioner and therefore the subsequent resolution of the Gram Panchayat, taking a unanimous decision to disengage the petitioner cannot be faulted. For the reasons as aforestated, I do not find any infirmity or illegality in the impugned resolution of the Kasibahal Gram Panchayat dated 03.06.2013, so as to warrant any interference. The writ petition being devoid of merits, the same is accordingly dismissed. No costs. Final Result : Dismissed