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2016 DIGILAW 677 (ORI)

Sarat Chandra Mohanty v. State of Orissa

2016-08-23

B.R.SARANGI, VINEET SARAN

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JUDGMENT : Dr. B.R. SARANGI, J. The appellant, an elected Sarpanch of Jambu Gram Panchayat under Mahakalapada Block in the district of Kendrapara, approached this Court by filing W.P.(C) No. 1035 of 2015 assailing the order dated 13.01.2015 passed by respondent no.3 under Sub-section (2) of Section 115 of the Orissa Gram Panchayat Act, 1964 (in short “the Act”), whereby, on the allegation of violation of Section 19 of the Act, he was placed under suspension and called upon to explain within 30 days, from the date of its receipt, as to why action as deemed proper would not be taken against him in accordance with law. The said writ application, by order dated 22.06.2015, came to be disposed of by the learned Single Judge by holding that, charge-sheet having already been submitted against the appellant justifying the suspension, he may participate in the disciplinary proceeding to be taken up pursuant to filing of charge-sheet, and that, the disciplinary proceeding be disposed of as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of the said order, after giving opportunity of being heard to all the parties concerned. Hence, this intra Court appeal. 2. Mr. S. Ray, learned counsel appearing for the appellant strenuously urged before this Court that before taking a drastic action of suspension against an elected Sarpanch, the mandatory requirements of the provisions of the Orissa Gram Panchayat Act have not been followed. Therefore, the order of suspension passed by the authority cannot sustain in the eye of law. But, the learned Single Judge, without entering into that aspect of the matter, disposed of the writ application by the impugned order with the observation that, since charge sheet had already been filed, it was to be held that the ground of suspension was there to proceed against the appellant in accordance with law. This being an error apparent on the face of the record, interference of this Court, by means of this intra-Court appeal, is sought for. 3. Mr. B. Bhuyan, learned Addl. This being an error apparent on the face of the record, interference of this Court, by means of this intra-Court appeal, is sought for. 3. Mr. B. Bhuyan, learned Addl. Government Advocate, on the other hand, urged that since the appellant did not act in consonance with the provisions contained in Section 19 of the Act, the action taken by the authorities against the appellant was justified and, since, by the time the writ petition was taken up for consideration, charge-sheet had already been laid against the appellant, no fault can be found with the learned Single Judge in directing the appellant to participate in the disciplinary proceeding to be taken up pursuant to such charge-sheet. 4. The above being the rival submissions of the parties, it is worthwhile to have a glance on the provisions of Section 19 as well as Section 115(1) and (2) of the Act, for just and proper adjudication of the case. “S.19 : Powers, duties and functions of Sarpanch-(1) Save as otherwise expressly provided by or under this Act, the executive powers of the Grama Panchayat for the purpose of carrying out the provisions of this Act, shall be exercised by the Sarpanch, who shall act under the authority of the said Grama Panchayat. “S.19 : Powers, duties and functions of Sarpanch-(1) Save as otherwise expressly provided by or under this Act, the executive powers of the Grama Panchayat for the purpose of carrying out the provisions of this Act, shall be exercised by the Sarpanch, who shall act under the authority of the said Grama Panchayat. (2) Without prejudice to the generality of the provisions of Sub-section (1) the Sarpanch shall, save as otherwise provided in this Act, or the rules made thereunder and subject to such general or special orders as may be issued from time to time by the State Government in that behalf- (a) convene and preside over the meetings of the Grama Panchayat and conduct, regulate and be responsible for the proper maintenance of the records of the proceeding of the said meetings; (b) execute documents relating to contracts on behalf of the Grama Sasan; (c) be responsible for the proper custody of all records and documents, all valuable securities and all properties and assets belonging to or vested in or under the direction, management or control of the Grama Sasan; (d) be responsible for the proper working of the Grama Panchayat as required by or under this Act; (e) cause to be prepared all statements and reports required by or under this Act; (f) exercise supervision and control over the acts and proceedings of all officers and employees of the Grama Panchayat; (g) be the authority to enter into correspondence on behalf of the Grama Panchayat; and (h) exercise such other powers, discharge such other duties and perform such other functions as may be conferred or imposed on or assigned to him by or under this Act.” “S.115 : Suspension and removal of Sarpanch, Naib-Sarpanch and member -(1) If the Collector, on an inquiry or inspection made by him or on the report of the Sub-divisional Officer is of the opinion that circumstances exist to show that the Sarpanch or Naib Sarpanch of a Grama Panchayat wilfully 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, he may, by order, suspend the Sarpanch or Naib-Sarpanch, as the case may be, from office and report the matter to the State Government. (2) The State Government, on the report of the Collector under Sub-section (1) shall, or if the State Government themselves are of the opinion that the circumstances specified in the said sub-section exist in relation to a Sarpanch or Naib-Sarpanch, then on their own motion, 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.” 5. Undoubtedly, Section 19 of the Act, as quoted above, deals with the powers, duties and functions of an elected Sarpanch enumerated therein. And the provisions contained in Sub-sections (1) and (2) of Section 115 of the Act envisage suspension of Sarpanch or Naib-Sarpanch in case of any deviation or contravention of the provisions of Section 19 of the Act. But, it is well settled in law that suspension of an elected representative being a drastic action should not be taken recourse to cursorily and in a mechanical manner. If the provisions of Sub-section (1) of Section 115, as extracted above, are read carefully, it postulates three requirements: (i) on an enquiry or inspection made by the Collector, or on a report from the concerned Sub-Divisional Officer; (ii) satisfaction of the Collector that circumstances exist to show that the Sarpanch or the Naib-Sarpanch has willfully omitted or refused to carry out or violated the provisions of the Act, or the rules or orders made thereunder, or abused the powers, rights and privileges vested in him or acted in a manner prejudicial to the interest of the inhabitants of the Grama; and (iii) Collector is satisfied that the further continuance of the elected representative in office would be detrimental to the interest of the Grama Panchayat or the inhabitants of the Grama. 6. The interpretation and scope of Sub-section (1) of Section 115 of the Act had come for consideration by this Court in Tarini Tripathy v. Collector, Koraput and others, 62 (1986) CLT 548. While considering the same, this Court came to hold that all the three requirements, as mentioned above, are cumulative. In absence of any one of them, the suspension is invalid. The Collector must form an opinion on both the counts enumerated in (ii) and (iii) above. The existence of one is not sufficient. Every delinquency or lapse might not satisfy the requirement of (iii). In absence of any one of them, the suspension is invalid. The Collector must form an opinion on both the counts enumerated in (ii) and (iii) above. The existence of one is not sufficient. Every delinquency or lapse might not satisfy the requirement of (iii). Therefore, while brining the tenure of an elected representative to an end, either temporarily or permanently, utmost care and circumspection ought to be exercised. Right of an elected representative to continue in office for the full tenure should not be lightly tinkered with by the Executive. 7. This Court in Baikunthanath Mohanty v. State of Orissa and others, 1987 (II) OLR 391 further considered the provisions of Section 115(1) of the Act. While considering the same, this Court in paragraph-8 and 9 held as follows: “8. It has now become necessary for us to further elucidate the said decision and indicate the ambit of Sec. 115(1). It will be seen that the legislature in its wisdom has used the word ‘wilful’ in Sec. 115(1). The Collector must not only be of the opinion that the Sarpanch or the Naib-Sarpanch, as the case may be, has omitted or refused to carry out or violated the provisions of the Act, the Rules or the Orders made thereunder and abused and acted in a manner prejudicial to the interest of the inhabitants of the Grama Panchayat or the Grama, but he should also be of opinion that the Sarpanch omitted, refused or violated and abused, as the case may be, ‘wilful’. A mere violation, omission, refusal or abuse is not enough. Omission, refusal, violation or abuse must also be willful. The adverb ‘wilful’ governs and qualifies the conduct of the Sarpanch, namely, that he willfully omitted, refused, violated the provisions of the Act of the Rules or willfully abused the right, and privileges vested in him or willfully 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 willfully the provision would not be attracted. Unless it is found that he did so willfully the provision would not be attracted. The legislature has not empowered the Collector to take action if the Sarpanch or the Naib-Sarpanch merely omits or refuses to carry out or violates the provisions of the Rules, the Act and the Orders or abuses the rights and privileges vested in him or acts in a manner prejudicial to the interest of the Grama Panchayat unless he so does willfully. The object and purpose appear to the clear. India lives in villages. Panchayatiraj is democracy in action at the grass root level. The little man in the village does not comprehend abstruse political theories. He comprehends best what he sees at his door steps: democracy in operation through the Panchayatiraj system. And that has direct impact on him Panchayatiraj system is the base of the pyramid of democracy. His faith in and commitment to democracy gets strengthened or eroded from what he perceives. An iota of disenchantment is likely to destroy the tone of preaching. The stronger we make it, the better for the weal of the polity and the nation. We weaken it at our peril. It is to be assumed that an errant Sarpanch can trample on the provisions with impunity. Therefore, the provisions in Sec. 115 with adequate safeguards and checks. The legislature in its wisdom has provided that mere mistake, or error or violation or abuse is not enough. The delinquency has to be graver. That is why it made ‘wilful’ delinquency culpable. That is then understood by the word ‘wilful’ or ‘wilfully’. 9. Words and Phrases, Vol. 45 gives the meaning as follows: Wilful –International ; not accidental or involuntary-done, intentionally, knowingly and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently-in common parlance word ‘wilful’ is used in sense of intentional, as distinguished from accidental or involuntary, and ‘wilfully’ refers to act consciously and deliberately done and signifies course of conduct marked by exercise of violation rather than which is accidental, negligent or involuntary. Black’s Law Dictionary defines the word thus: ‘Wilfulness’ implies an act done intentionally and designedly, a conscious failure to observe care, conscious, knowing, done with stubborn purpose, but not with malice. Webster’s Third New International Dictionary gives the following meaning: ‘Governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed. Black’s Law Dictionary defines the word thus: ‘Wilfulness’ implies an act done intentionally and designedly, a conscious failure to observe care, conscious, knowing, done with stubborn purpose, but not with malice. Webster’s Third New International Dictionary gives the following meaning: ‘Governed by will without yielding to reason or without regard to reason; obstinately or perversely self-willed. Therefore, the consensus of the meaning of the word ‘wilful’ is intentional, deliberate, calculated and conscious with full knowledge of legal consequences flowing therefrom (See in this connection S. Sundaram v. V.R. Pattabhiraman, AIR 1985 S.C. 582 ).’ 8. In view of Sub-section (1) of Section 115 of the Act and consequential analysis of the said provisions made by this Court, the three essentials, as indicated in Tarini Tripathy’s case (supra), must not only be present, but the Collector should also be satisfied that the alleged delinquency was ‘wilful’. That is to say, the infraction by way of acts or omissions was willful and not accidental or negligent or involuntary, but intentional, deliberate, calculated and conscious, with full knowledge of legal consequences flowing therefrom. The purpose of imposing such restriction under the provisions is only by way of a check on the powers of the executive to dethrone an elected representative of the people from the august office. 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. The above reasons have also been reiterated by this Court in Sanatan Jena v. Collector, Balasore and another, 2004 (I) OLR 206 , Kulamani Mallik v. The collector, Puri and two others, 2004 (I) OLR 46 , (Smt.) Kanakalata Mallik v. Collector, Kendrapara and others, 92 (2001) CLT 677, (Smt.) Indumati Swain v. State of Orissa and others, 2001 (II) OLR 132 , Sukanta Bhoi v. State of Orissa and others, 1999 (II) OLR 264 and Basudev Dandasena v. State of Orissa and others, 2010(1) OLR 909 . 9. 9. Applying the above dictums to the present context, this Court, on perusal of the order of suspension, finds that except mentioning, that the appellant has violated the provisions of Section 19 of the Act and that continuance of the appellant was detrimental to the interest of the inhabitants of the Gram Panchayat, nothing has been indicated with regard to satisfaction of the authority on compliance of the essential ingredients, as enumerated above, to attract the provisions of Sub-section(1) of Section 115 of the Act. No doubt, Sub-section (2) of Section 115 of the Act empowers the State Government to remove a Sarpanch from his office after following due procedure of reasonable opportunity of being heard given to him and the opinion of the State Government has to be culminated on the report of the Collector under Sub-Section (1) of Section 115 of the Act, which requires the compliance of three cumulative conditions mentioned in clauses (i) to (iii), as discussed above. In absence of any of the provisions thereof, the action so taken cannot sustain in the eye of law. In any case, the impugned order of suspension having been passed without following due procedure as envisaged under Sub-sections (1) and (2) of Section 115 of the Act, the same cannot sustain and is liable to be quashed. 10. Resultantly, the writ appeal is allowed, the order dated 22.06.2015 of the learned Single Judge passed in W.P.(C) No.1035 of 2015 vide Annexure-1 is set aside and the order of suspension dated 13.01.2015 passed by respondent no.3 vide Annexure-2 is quashed. 11. While parting with the case, it was brought to notice of this Court by Mr. B. Bhuyan, learned Addl. Government Advocate that following submission of charge sheet, disciplinary proceedings have been initiated against the appellant for taking action under Sub-section (2) of Section 115 of the Act, but this Court does not feel it proper to express any opinion on the same at this stage.