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2017 DIGILAW 1494 (ORI)

Ramakanta Sahu v. State of Odisha

2017-12-21

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India wherein the order of suspension dtd. 11.11.2017 passed by the Collector, Kalahandi is under challenge whereby and where under the petitioner has been put under suspension in contemplation of disciplinary proceeding. 2. The petitioner, while assailing the order of suspension, has taken two grounds :- (i) The order of suspension is without jurisdiction since the Collector is having no power to put him under suspension, in order to strengthen his argument, he has relied upon the provision of Section 122(3) of Odisha Gram Panchayat Act, 1964 (in short “the Act, 1964”) and the judgments rendered by this court in the case of Fakirmohan Das and Others Vrs. Government of Orissa and Others reported in 2008 (II) OLR 530 , Naba Kishore Mishra Vrs. Collector, Dhenkanal and Others reported in 2009 (I) OLR 1020 , the unreported judgment rendered in the case of Nabin Chandra Majhi Vrs. State of Orissa and Others (in W.P.(C) No.7429 of 2012 decided on 23.11.2012), Satis Chandra Das Adhikari and another Vrs. State of Orissa and Others reported in 1987 (II) OLR 536, Mayadhar Jena Vrs. State of Orissa and Others reported in 2009 (I) OLR 744 , Amiya Ray and Another Vrs. State of Orissa and Others reported in 2006 (I) OLR 491 and the Full Bench judgment rendered in the case of Sri Adwait Chandra Jena Vrs. Khandahata Grama Panchayat and Others reported in 1998 (II) OLR 410. (ii) On merit, the order of suspension should not have been passed because the reasoning upon which the order of suspension has been passed, the petitioner being working as Executive Officer of the said Gram Panchayat has not been assigned the said duty. 3. Per Contra, learned Additional Government Advocate appearing for opposite party – State has submitted that so far as ground no.(i) is concerned, the Collector cannot be said to have having no authority because in view of the provision as contained in Section 122(2) of the Act, 1964 provides that the Panchayat Executive Officers appointed under sub-section (1) shall act as such within the local area of such Grama or Gramas as may be assigned to them by the Collector. According to the learned counsel the provision of Section 122(3) of the Act, 64 has been held to be ultra-virus in the case of Fakirmohan which contains the provision to the effect that the general superintendence and overall control of the Grama Panchayat, the Executive Officer shall function under the control and supervision of the Director, Collector and the District Panchayat Officer and this court, while dealing with the concept of 73rd amendment of Constitution of India which provides to give independence to the local self government has been pleased to declare the provision of Section 122(3) as ultra virus but the fact herein is that the power of Collector has not been snatched away, rather the provision of section 122(3) is regarding general superintendence and overall control upon the Gram Panchayat but that does not mean that the power of Collector has been snatched away for the reason that the provision of Section 122(2) provides that the Panchayat Executive Officer shall perform their duties which shall be assigned to them by the Collector and the provision of section 122(2) was not the subject matter of challenge in the Fakirmohan case, hence when the Executive Officers are supposed to discharge their duties which shall be assigned to them by the Collector and if the Collector finds any illegality / irregularity in their conduct, the Collector has got every power to put him under suspension. He strengthened his argument by referring to the provision of section 109, 110 and 115 of the Act, 1964. He further submits since the Orissa Gram Panchayat Rules 2014 is in operation after repealment of the Orissa Gram Panchayat Rules, 1968 and neither in the Act, 1964 nor in the Orissa Gram Panchayat Rules, 2014 there is any provision in the statute to initiate proceeding against the Executive Officers or even to put them under suspension and merely on account of the fact that they are working under the Gram Panchayat, does not mean that the Executive Officers will be immune from any disciplinary action in case of any irregularity committed in discharge of their official duties. The learned counsel submits that the judgment relied upon by the petitioners rendered by this court in the case of Fakirmohan is not related to the post of Executive Officer, rather it is for Sarapanch, as such it is not applicable in the facts and circumstances of the present case. So far as other judgments are concerned, it has been submitted that those judgments rendered by this court is without taking into consideration the provision of sections 122(2), 109, 110 and 115 of the Orissa Gram Panchayat Act, 1964, as such the same is per incurian. So far as the merit of the order of suspension is concerned, it has been submitted that the order of suspension is in contemplation of disciplinary proceeding since the petitioner has been found to be involved in submission of fake BPL number, forged death certificate, shown two living persons of village Loharjore of Gopalpur Grama Panchayat as dead and ensured sanction of NFBS to the tune of Rs.20,000/- each in favour of so called widows of the two such living persons and misappropriated a major chunk of the allotted amounts with the help of middlemen and as such it has been submitted that the order of suspension since been passed on the ground of irregularity and in contemplation of Departmental Proceeding, it may not be interfered with at this stage without getting the matter enquired into and if the petitioner will be allowed to continue in service there is every likelihood of tampering with the evidence which will not be proper for the logical conclusion of the departmental proceeding. 4. Heard the learned counsels for the parties and after appreciating their rival submission, this court, before examining the issue, thinks it proper to discuss the legal position as also the judgments rendered by this court. 4. Heard the learned counsels for the parties and after appreciating their rival submission, this court, before examining the issue, thinks it proper to discuss the legal position as also the judgments rendered by this court. The Odisha Gram Panchayat Act, 1964 has been promulgated to achieve the objective of overall development at the grass-root level for which the provision has been made for constitution and incorporation of the Grama Sasan which shall be composed of all persons registered by virtue of the representation of the People Act, 1950 in so much of the electoral roll of any assembly constituency for the time being in force and relates to the grama or the roll shall be deem to be electoral roll in respect of the grama which shall be a body corporate by the name of Grama to which it relates, the headquarters of the Grama Sasan shall be situated within the limits of the grama. The function of the Grama Sabha would be to approve the plans, porogrammes and projects of social and economic development before such plans, programmes and projects, identified or selected persons as beneficiary under the poverty elevation or similar other programmes, consider and approve the annual budget of the Grama Panchayat including the supplementary or revised body, consider levy of all taxes, rates and rents and fees and enhancement of rates thereof, organize, commentary service and drawing of an implementation of agricultural production plans, consider all such matter as may be referred to it by the Grama Panchayat for its decision, call for such information and data from the Grama Panchayat as it may consider necessary, a Palli Sabha has also been constituted by the State Government which shall be ward level. There will be a Sarapanch, Nyaba Sarapanch in the Grama Panchayat. There shall be an Executive Officer of Grama Sasan to be appointed by the Collector who shall maintain the records of proceedings of the meeting of Grama Panchayat, remain in custody of all such records and documents, cash and valuable securities belonging to or vested in or under the direction, management or control of the Grama Sasan as may be prescribed as exercise such other powers, discharge such other duties and perform such other functions, as may be prescribed. While sub-section 2 deals with the functions to be performed by the Executive Officer which shall be assigned to them by the Collector. While sub-section 2 deals with the functions to be performed by the Executive Officer which shall be assigned to them by the Collector. There was a provision under sub-section (3) to the effect that “subject to the general superintendence and overall control of the Grama Panchayat, the Executive Officer shall function under the control and supervision of the Director, Collector and District Panchayat Officer but the provision of sub-section (3) of Section 122 has been assailed in the case of Fakirmohan and the virus of the same has been challenged and the same has been declared to be ultra virus and thereafter by virtue of an amendment brought on 10.2.2009 the following provision has been inserted “subject to the provisions of sub-section (1) the Panchayat Executive Officer shall function under the control and supervision of the Grama Panchayat”. The provision of section 109 speaks about the control over the Grama Panchayat which shall be subject to the provision of this Act, the rules made there under and any special or general orders issued by the State Government from time to time (the Director, Collector, the District Panchayat Officer appointed by the State Government) or such other officer or person specially authorized in that behalf by the State Government shall exercise general powers of inspection, supervision and control over the exercise of powers, discharge of duties and performance of functions by the Grama Panchayat under the provisions of this Act. While section 110 speaks regarding powers of inspection, supervision and control in respect of particular matters which is being referred herein below :- “110. While section 110 speaks regarding powers of inspection, supervision and control in respect of particular matters which is being referred herein below :- “110. Powers of inspection, supervision and control in respect of particular matters – (1) Without prejudice to the gernerality of the powers conferred under section 109, the (Director, Collector, District Panchayat Officer appointed by the state Government or such other officer or person authorized under the said section or authorized by the Director, Collector or District Panchayat Officer) in pursuance of any special order made by the State Government in that behalf may – (a) By order in writing call for and inspect any book, register, record or document in the possession or under the control of a Grama Panchayat or a Committee; (b) Call for the production of the cash balance in the custody of the Grama Panchayat; (c) Inspect any institution, or immovable property belonging to or vested in or under the management, direction or control of a Grama Panchayat or a Committee or any work done or undertaken by or under the direction of the Grama Panchayat or such Committee; (d) By order in writing direct a Grama Panchayat or Committee to furnish such statements, reports, copies of documents, records or registers relating to the Grama Panchayat or such committee as he thinks fit; (e) Record in writing for the consideration of a Grama Panchayat or Committee any observation which he thinks proper in regard to the proceedings, or powers, duties and functions of the Grama Panchayat or such Committee. (2) Subject to such rules as may be prescribed all registers, records and documents in the possession or control of a Grama Panchayat shall be open to inspectioin by the Chairman of the Samiti or of the Parishad and upon submission of the inspection report, if any, by such Chairman, the State Government may take such action as they deem proper. (3) A member of the State Legislature may visit the office of any Grama Panchayat situated within his constituency and may record his opinion in a register to be maintained for the purpose in every such office and the copy of such opinion recorded shall be sent within two weeks from the date of entry to the Government for such action as they may deem fit.” Section 115 provides power of suspension and removal of Sarpanch, Naib-Sarpanch and Member and the power vested upon the State Government to put the Sarapanch or the Naib-Sarpanch and Member under suspension or to initiate proceeding, the provision of section 115 is being quoted herein below for ready reference :- “115. Suspension and removal of Sarpanch, Naib-Sarpanch and member – (1) 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 there under 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) The State government may, pending initiation of the proceeding on the basis of their opinion under Sub-section (1), by order, for reasons to be recorded in writing, suspend the Sarpanch or Naib-Sarpanch, as the case may be, from the office. (3) The State government, at any time during the pendency of proceeding under sub-section (1), revoke the order of suspension of a Sarpanch or Naib-Sarpanch passed under Sub-Section (2). (4) A Sarpanch or Naib-Sarpanch on removal from office under sub-section (1) shall also cease to be a meber of the Grama Panchayat, and such person shall not be eligible for election as member for a period not exceeding four years as the State government may specify. (4) A Sarpanch or Naib-Sarpanch on removal from office under sub-section (1) shall also cease to be a meber of the Grama Panchayat, and such person shall not be eligible for election as member for a period not exceeding four years as the State government may specify. (5) The provisions of this section shall, so far as may be, apply in respect of any member of t he Grama Panchayat not being a Sarpanch or Naib-Sarpanch; provided that no such member shall be liable to be placed under suspension under the said provisions. (6) (a) Whenever the Collector is of the opinion that the Sarpanch of a Grama Panchayat has failed in convening any meeting of the Grama Panchayat within a period of three continuous months he may, after making such enquiry as he deems fit, by order, remove the Sarpanch from office and may also declare him not to be eligible for election as member for a period not exceeding one year as he may specify in his order, and on such order being made the Sarpanch shall cease to be a member of the Grama Panchayat. (b) Nothing contained in the preceding sub-section shall apply in respect of a default as specified above.” This court has gone through the judgment rendered in the case of Fakirmohan (supra) wherein the issue fell for consideration before this court is regarding virus of sub-section (3) of Section 122 and this court, while appreciating the arguments, has declared the virus of Section 122(3) as ultra and in consequence thereof the Annexure-1 and 3 have been quashed, annexure-1 is the circular order dtd.18.10.2004 issued by the Commissioner-cum-Secretary to Government in Panchayati Raj Department imparting instructions relating to posting of V.L.Ws. and V.A.Ws and maintenance of record by them and to take steps in furtherance thereof while Annexure-3 is one such order passed by the Block Development Officer, Khandapada on 1.11.2004 directing the V.L.Ws. and V.A.Ws. to take over the charges from the Secretaries. This court, while dealing with the provision of Article 243 G of the Constitution and the 73rd Amendment of the Constitution which vests the Panchayat with various new functions and considerable amounts of fund are being allotted to implement different schemes which are sponsored or organized. and V.A.Ws. to take over the charges from the Secretaries. This court, while dealing with the provision of Article 243 G of the Constitution and the 73rd Amendment of the Constitution which vests the Panchayat with various new functions and considerable amounts of fund are being allotted to implement different schemes which are sponsored or organized. The whole intention of the constitutional mandate under Article 243-G read with 73rd Amendment of Constitution of India, the local self government is to be given independence in discharge and development to be made in the grass-root level without any interference by the State Government, but the State government has come out with a provision under sub-section (3) of section 122 to the effect that the function of the Grama Panchayat will be under the general superintendence and overall control of the Director, Collector and District Panchayat Officer and in the light of the said provision the Annexure-1 dtd.18.10.2004 and Annexure-3 dtd. 1.11.2004 in the case of Fakirmohan which has been assailed therein, having been issued by the State Government by which the Panchayati Raj Department has interfered in issuing instructions to the VLWs and VAWs, that has been deprecated being in the teeth of provision of Article 243-G, read with 73rd Amendment of the Constitution of India and since it has been passed in pursuance to the provision of section 122(3) of the Odisha Grama Panchayat Act, 1964, hence this court, after taking into consideration the intent of the constitutional mandate as contained in Article 243-G of the Constitution of India, read with 73rd Amendment of Constitution, has been pleased to hold the virus of sub-section 3 of section 122 as ultra. The other judgments which have been relied upon by the petitioner wherein the order of suspension either has been passed against the Executive Officer or the Sarpanch, has mainly based upon the judgment rendered in the case of Fakirmohan. In the judgment of Fakirmohan case no order of suspension or decision of any departmental proceeding by the State government was under challenge. It is not in dispute that Article 243-G provides independence to the Local Self-government and the provision of Section 122(3) of the Grama Panchayat Act, 1964 was in direct teeth and was inconsistent with the constitutional mandate as contained in Article 243(G) of the constitution of India, as such it has been quashed. It is not in dispute that Article 243-G provides independence to the Local Self-government and the provision of Section 122(3) of the Grama Panchayat Act, 1964 was in direct teeth and was inconsistent with the constitutional mandate as contained in Article 243(G) of the constitution of India, as such it has been quashed. The court in the Fakirmohan case, has taken into consideration the decision of the government dtd.1.11.2004 since it was passed in pursuance to the provision of Section 122(3) of the Odisha Grama Panchayat Act, 1964 by which the department of Panchayati Raj has directly intervened with the day to day affairs of the Grama Panchayat hence this court, while strucking down the provision of section 122(3) of the Odisha Grama Panchayat Act, 1964, has quashed the government order dtd.18.10.2004 under Annexure-1 and 1.11.2004 (Annexure-3) of the Fakirmohan case for avoiding any confusion, the content of Annexure-1 and Annexure-3 as reflected in the Fakirmohan’s case at paragraph 6 of the said judgment is being referred hereunder as :- “6. xxxxxxxx Annexure-1 is the Circular Order dated 18.10.2004 issued by the Commissioner-cum-Secretary to Government in Panchayati Raj Department imparting instructions relating to posting of V.L.Ws. and V.A.Ws and maintenance of record by them and to take steps in furtherance thereof. Annexure-3 is one such order passed by the Block Development Officer, Khandapada on 1.11.2004 directing the V.L.Ws. and V.A.Ws. to take over the charges from the Secretaries. As noted above, similar orders of the Block Development Officers are also annexed in the other writ petitions in respect of different Grama Panchayat.” It is evident from other judgments relied upon by the petitioner that the order of suspension having been issued either in favour of the Sarapanch or in favour of the Executive Officer has been quashed on the basis of Fakirmohan case, but according to the considered view of this court, with all due respect that while quashing the order of suspension, the nature of order which was quashed in Fakirmohan case has not been taken into consideration while making the judgment rendered in the case of Fakirmohan applicable in case of suspension of Panchayat Executive Officer. So far as the judgment rendered in other cases, i.e. in the cases of Naba Kishore Mishra Vrs. Collector, Dhenkanal and Others (supra), the unreported judgment rendered in the case of Nabin Chandra Majhi Vrs. So far as the judgment rendered in other cases, i.e. in the cases of Naba Kishore Mishra Vrs. Collector, Dhenkanal and Others (supra), the unreported judgment rendered in the case of Nabin Chandra Majhi Vrs. State of Orissa and Others (supra), Satis Chandra Das Adhikari and another Vrs. State of Orissa and Others (supra), Mayadhar Jena Vrs. State of Orissa and Others (supra), Amiya Ray and Another Vrs. State of Orissa and Others (supra) and the Full Bench judgment rendered in the case of Sri Adwait Chandra Jena Vrs. Khandahata Grama Panchayat and Others (supra) as has already been stated herein above the same has been passed solely relying upon Fakirmohan’s case but the facts of the Fakirmohan case is entirely different to that of the judgment rendered in different other cases and it is settled that each and every judgment is to be applied on the basis of facts and circumstances since according to the considered view of this court, the judgment rendered in the Fakirmohan case is not applicable in the facts and circumstances of the instant case, as such reliance put by the petitioner in all the judgments excepting the Fakirmohan case will not be applicable in the facts and circumstances of the instant case. Moreover, in these judgments the provision of section 122(1) & (2) has not been taken into consideration and only reliance has been put under sub-section (3) of section 122 as was existing prior to its amendment, hence judgments rendered by the Division Bench of this court or by the learned single judgment of this court, according to the considered view of this court, is per incuriam. It is important to note here the definition of “per incuria” which literally means “carelessness”. In practice per incuriam is taken to mean per ignoratium. The same has been dealt with by Hon’ble Supreme Court in the case of State of Orissa and Another Vrs. Mamata Mohanty reported in (2011) 3 SCC 436 wherein at paragraph 64 & 65 it has been held that whereby obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. For ready reference these paragraphs are being quoted herein below :- “64. “Incuria” literally means “carelessness”. It should be a glaring case, an obtrusive omission. For ready reference these paragraphs are being quoted herein below :- “64. “Incuria” literally means “carelessness”. In practice per incuriam is taken to mean per ignoratium. The courts have developed this principle in relaxation of the rule of stare decisis. Thus the “quotable in law”, is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. 65. In Mamelshwar Prasad Vrs. Kanhaiya Lal reported in (1975) 2 SCC 232 this Court held: (SCC P.235, para 7) “7. …. Where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.” (emphasis added)” In view of the entire discussion made herein above, according to the considered view of this court, the issue of jurisdiction which has been raised by the petitioner is not having its force and accordingly the same is rejected. It is settled that if anybody is working and discharging the Government duty, it is expected from such category of employees or functionaries to act with utmost sincerity and without any irregularity and in case of any irregularity, the statute contains provision to take disciplinary action. 5. The question which has been raised by the petitioner regarding jurisdiction of Collector in putting the Panchayat Executive Officer under suspension, this court, for answering this question, has come across the different provisions of the Orissa Grama Panchayat Act, 1964 which is necessary to deal in this context herewith. Under the Orissa Grama Panchayat Act, 1964 the Collector has been defined as the Chief Revenue Officer of the district with reference to the Grama Sasan as per the provision of Section 2(d). As per Section 2(j) Gram Panchayat means the Executive Committee of the Grama Sasan established under Section 7 of the Act, 1964. Section 7 contains provision that there shall be for every Grama Sasan a Grama Panchayat as hereinafter constituted which shall be the executive authority of the Grama Sasan. As per Section 2(j) Gram Panchayat means the Executive Committee of the Grama Sasan established under Section 7 of the Act, 1964. Section 7 contains provision that there shall be for every Grama Sasan a Grama Panchayat as hereinafter constituted which shall be the executive authority of the Grama Sasan. Section 10 of the Act, 1964 provides provision for constitution of Grama Panchayat wherein it has been provided that every Grama Panchayat shall be composed of the following members, namely :- (a) a member to be elected by the persons referred to in sub-section (1) of section 4 from amongst themselves who shall be the Sarpanch; and (b) a member to be elected from each of the wards by the persons on the electoral roll for the ward from amongst themselves. Section 10(2) provides provision of having a Naib-Sarpanch in respect of every Grama Panchayat to be elected in accordance with the provisions of Section 14. Section 12 provides provision for general election of members of Grama Panchayat. Under this provision it has been provided that a general election of the members of a Grama Panchayat shall be (completed) for the purpose of constituting a new Grama Panchayat under Section 7 or on the dissolution or supersession of a Grama Panchayat. While section 14 provides provision of election of Naib-Sarpanch. The term of office of member of Grama Panchayat has been provided under section 17(2) which provides that unless sooner dissolved or superseded, the Grama Panchayat shall continue for five years from the date appointed for its first meeting referred to in sub-section (1) of Section 14 and no longer. While sub-section 3 of section 17 provides the provision of term of office of a Sarpanch or any other member elected to fill up a casual vacancy shall expire with the expiry of the term of the Grama Panchayat as specified in sub-section (2). While sub-section 3 of section 17 provides the provision of term of office of a Sarpanch or any other member elected to fill up a casual vacancy shall expire with the expiry of the term of the Grama Panchayat as specified in sub-section (2). It is thus evident from these provisions that there shall be a Grama Sasan which shall be governed by the Grama Panchayat by the Sarpanch, Naib-Sarpanch and its members to be elected by way of general election to be done under the provision of People’s Representation Act for a period of 5 years if not superseded or dissolved sooner, hence the Grama Sasan is to be looked into by the Grama Panchayat who is to be elected by way of general election for a fixed tenure of 5 years. Section 115 of the Act, 1964 confers power upon the State Government to take disciplinary action against the Sarpanch, Naib-Sarpanch and members of the Grama Panchayat. The State Government shall take such action on the basis of the report of the Collector, meaning thereby the Collector being the Chief Revenue Officer under the Act, 1964 is to monitor the work. It is further evident that there shall be an executive officer to be appointed by the Collector, as would be evident from Section 122 who shall act as such within the local area of such Grama or Gramas as may be assigned to them by the Collector but under the control and supervision of the Grama Panchayat as per Section 122(3) of the Act, 1964. The State of Odisha has formulated the Odisha Grama Panchayat Rules, 2014, notified on 4th August, 2014 pursuance to the provision of Sub-Section (1) of Section 150 of the Odisha Grama Panchayat Act, 1964 under which the Executive Officer has been defined under rule 2(g) which means an executive officer appointed under section 122 of the Act. The work of the Executive Officer would be as per the work assigned by the Collector which relates to discharge of day to day function apart from the work to be discharged by him as provided U/s.122(1)(a)(b) and (c). The work of the Executive Officer would be as per the work assigned by the Collector which relates to discharge of day to day function apart from the work to be discharged by him as provided U/s.122(1)(a)(b) and (c). It is thus evident that the Panchayat Executive Officer is an appointee by the Collector and his appointment is completely different to that of appointment of the Sarpanch, Naib-Sarpanch or its members who are to be appointed by way of an election for a period of five years or its dissolution or supersession prior to completion of period of five years. It is further evident that that under the provision of Section 115 of the Act, 1964 the power of suspension and removal of Sarpanch, Naib-Sarpanch and its members has been vested upon the State Government which shall be exercised on the basis of the report to be submitted in this regard by the Collector of the district, meaning thereby, the Legislature has taken care to deal with the Sarpanch, Naib-Sarpanch and Members who have found to be involved in commission of any irregularity or misconduct but neither under the Act, 1964 nor under the Rules, 2014 there is any provision to deal with the Panchayat Executive Officer in case of commission of irregularity or misconduct but that does not mean that the Panchayat Executive Officer will remain in service even if the incumbent is found to be involved in commission of irregularities. This is because of the reason that if the statute is silent, the appointing authority is competent enough to deal with such persons who have been appointed by the appointing authority to remove or to take any disciplinary action if found to be involved in commission of irregularities or misconduct. This is because of the reason that if the statute is silent, the appointing authority is competent enough to deal with such persons who have been appointed by the appointing authority to remove or to take any disciplinary action if found to be involved in commission of irregularities or misconduct. It is further evident from the provision of Odisha Grama Panchayat Act, 1964 read with Rules, 2014 that the Panchayat Executive Officer is not a regular State Government employee but even on that account the Panchayat Executive Officer, if found to be involved in irregularity and misconduct, may not take the advantage of lacuna of the statute, hence this court, applying the principle that if anybody can be appointed in a post by the appointing authority, it is his jurisdiction to deal with such employee in the capacity of appointing authority if the appointing authority finds that the performance is not good or the incumbent is found to be involved in commission of irregularity or misconduct. 6. It is evident from the fact of the instant case that the petitioner is holding the post of Panchayat Executive Officer and alleged to have involved in commission of serious irregularity, as such the Collector has put him under suspension. 6. It is evident from the fact of the instant case that the petitioner is holding the post of Panchayat Executive Officer and alleged to have involved in commission of serious irregularity, as such the Collector has put him under suspension. This court has already discussed elaborately herein above that in the case of Fakirmohan, this court, while deciding the issue therein, has not dealt with the issue of inflicting any punishment upon any of the Sarpanch or Naib-Sarpanch or member or the Panchayat Executive Officer, rather the issue fell for consideration in that case before this court is regarding interference of the State Government in the light of the provision of Section 122(3) of the Act, 1964 which according to the judgment rendered in the Fakirmohan case has been held to be in the teeth of Article 243(G) of the Constitution of India and the said judgment has been considered in quashing the order of suspension related to the Panchayat Executive Officer in other Division Bench orders and to that effect the finding has been given by this court herein above that while dealing with the case of suspension of Panchayat Executive Officer, the Hon’ble Division Bench of this court has not taken into consideration the factual aspect involved in the case of Fakirmohan, hence the said Division Bench judgment whereby and where under the decision taken by the Collector in suspending the Panchayat Executive Officer has been held to be illegal, per incuriam, hence having no binding precedence upon this court. In view thereof the reliance placed upon by the petitioner in the Division bench Judgments passed by this court in the cases of Naba Kishore Mishra (supra), Nabin Chandra Majhi (supra) and Adwait Chandra Jena (supra) are not having its binding precedence. 7. In view thereof the reliance placed upon by the petitioner in the Division bench Judgments passed by this court in the cases of Naba Kishore Mishra (supra), Nabin Chandra Majhi (supra) and Adwait Chandra Jena (supra) are not having its binding precedence. 7. This court has also thought it proper to deal with the provision of Section 122(3) of the Act, 1964 which provides that the Panchayat Executive Officer shall function under the control and supervision of Grama Panchayat, subject to the provision of sub-section (1) but even on that account, it cannot be said that if Panchayat Executive Officer has committed any irregularity, the Collector is not competent enough to take disciplinary action against such Panchayat Executive Officer only on account of the fact that the Panchayat Executive Officer will function under the control and supervision of the Grama Panchayat for the reason functioning under the control and supervision is altogether different to that of the decision taken by the appointing authority to deal with the incumbent who is found to be involved in alleged irregularities in order to test the veracity of the allegation. The Collector, here in the instant case, while suspending the petitioner is not interfering with the domain of the Gram Panchayat, rather the Panchayat Executive Officer since not been appointed by the Grama Panchayat, rather he is appointee by the Collector and it is only the Collector to take any disciplinary action against the Panchayat Executive Officer, hence the order of suspension passed against the petitioner will not in any way amounts to interference in the day today work of the Grama Panchayat infringing the power of the Grama Panchayat in its function, rather if the plea of the petitioner will be accepted, in that situation, he will neither be dealt with either by the Collector or by the Grama Panchayat and he, in that situation, will be allowed to commit the offence and that cannot be the purport of the statute, hence this court, applying the principle that if any incumbent is being appointed by any appointing authority, he is competent enough to take disciplinary action against them and in exercise of such power, the Collector has passed the order of suspension, hence there is no illegality in the same. 8. 8. This court has also thought it proper to deal with the issue that when there is no provision in the statute to proceed departmentally, how an employee can be proceeded, but even on this ground an appointing authority who appoints a person finds that appointee is not proper, he in the capacity of appointing authority, cannot remain as silent spectator and allow such person to do the misdeed by taking help of lacuna of the statutory provision, rather he has every right being an appointing authority to deal with such person to run the office properly, and if the Collector does it, it cannot be said to be improper. 9. So far as the merit of the case is concerned, the petitioner has been suspended on the ground of submission of fake BPL number, forged death certification, shown two living persons of village Loharajore under Gopalpur Gram Panchyat as dead and ensure sanction of NFBS to the tune of Rs.20,000 each in favour of so-called widows of two such living persons and misappropriated a major chunk with the help of middlemen. Prima facie the irregularities which alleged to have been committed is serious in nature, as such the same requires enquiry and it is settled that if any irregularity is being leveled against any of the functionaries, it has to be given its logical end and the employee if committed such irregularity can be suspended by the appointing authority. As has already been held that the Collector being the appointing authority as per the provision of sub-section (1) of section 122 read with sub-section (2), hence since the jurisdiction of Collector has been held to be legal, as such when there is jurisdiction, on merit the order of suspension cannot be quashed in case of serious irregularities rather it is the domain of the authority having its jurisdiction to take decision in this regard and the decision has been taken, hence this court declines to interfere so far as the merit of the order of suspension is concerned. 10. 10. Before parting with the judgment, this court, thinks it proper that a person cannot be allowed to remain under suspension for indefinite period since the prolong suspension is not proper, hence the Collector, Kalahandi is directed to conclude the departmental proceeding by following the principle of natural justice within stipulated period, preferably within period of three months from the date of production of certified copy of this order. Accordingly the writ petition is disposed of.