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2019 DIGILAW 333 (ORI)

Mani Gahir v. Collector, Kalahandi

2019-04-18

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration that the proposed action of the defendants dated 6.6.1996 is illegal and permanent injunction not to remove or suspend him from the post of Secretary of Artal Grama Panchayat. 2. Case of the plaintiff was that he was appointed as Secretary of Artal Grama Panchayat on 1.8.1980. He discharged duties to the fullest satisfaction of the authorities. While matter stood thus, on 6.6.1996 the District Panchayat Officer, defendant no.2 along with the Sarpanch of Artal Grama Panchayat, defendant no.4, came to his village, took his signature in a blank paper stating that he had violated the duties of the Grama Panchayat and, as such cannot continue in the post of Secretary. He got reliable information on 6.6.1996 that the defendants will remove him from the post of Secretary. He had not acted against the interest of the Grama Panchayat nor caused any financial loss. He had not been afforded any opportunity before action was taken against him. He could not issue notice to defendant no.4, G.P. under Section 138 of the Orissa Grama Panchayat Act, 1964, since the matter was urgent. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendants filed written statement pleading inter alia that the plaintiff had misappropriated the Grama Panchayat's J.R.Y fund amounting to Rs.1,23,496/- which was clear from the Audit Report of 1991-92 to 9.7.1995. Hume pipes were purchased by the G.P. for Rs.11,294/-. But there was no stock entry. The said pipes were not available. Work amounting to Rs.1,26,082/- shown to have been executed by one Khatu Naik V.C.L. of Kanduljhar by manipulating the records. But such work had not been executed. One voucher bearing no.64 dated 21.1.1995 for Rs.10,000/- had been prepared by the plaintiff showing payment of advance to one Chandimal Suna of village Ajarai. The said voucher had not been signed by the said Chandimal Suna. He had paid Rs.1,000/- towards salary of one Chati Juad, Choukidar and prepared a voucher of Rs.3,000/-. The plaintiff had acted in a manner which was prejudicial to the interest of the Grama Panchayat. He deliberately omitted to carry out the duties and functions of the Secretary of Grama Panchayat. He had also abused the power. The defendant no.4 initiated a proceeding against him. The plaintiff had acted in a manner which was prejudicial to the interest of the Grama Panchayat. He deliberately omitted to carry out the duties and functions of the Secretary of Grama Panchayat. He had also abused the power. The defendant no.4 initiated a proceeding against him. A show cause notice was also issued to him. Though he received the notice, but he did not furnish any reply. By order dated 4.6.1996 he was removed from the post of Secretary of Artal Grama Panchayat. 4. Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary. Learned trial court dismissed the suit holding that the plaintiff had misappropriated the Panchayat fund. No notice under Section 138 of the Orissa Grama Panchayat Act was issued to the Grama Panchayat prior to institution of the suit. Secretary of Grama Panchayat is a civil post. The Administrative Tribunal has jurisdiction to entertain the matter. Unsuccessful plaintiff filed Title Appeal No.11 of 1999 before the learned District Judge, Kalahandi-NuapadaBhawanipatna. Learned District Judge held that the plaintiff is not a public servant. Notice under Section 138 of the Orissa Grama Panchayat Act is mandatory. The same was not issued. It concurred with the findings of the learned trial court and dismissed the appeal. 5. The appeal was admitted on the substantial questions of law enumerated in grounds no.E (i) & (ii) of the appeal memo. The same are: "(i) Whether in the facts and circumstances of the case, notice U/s.138 of the O.G.P.Act was required to be served prior to filing of the suit specially when the service of notice U/s.80 C.P.C. was dispensed with ? (ii) Whether in absence of a formal departmental proceeding and the inquiry report, the audit report can from the basis of dismissal of the appellant from service ?" 6. Heard Mr.P.Behera on behalf of Mr.D.K.Mishra, learned Advocate for the appellant and Mr.D.K.Pani, learned Additional Standing Counsel for respondents 1 to 3. None appears for respondent no.4. 7. Mr.Behera, learned Advocate for the appellant submits that the suit was of urgent nature. The plaintiff filed an application under Sub-section 2 of Section 80 CPC before the learned trial court to dispense with notice. The same was allowed. No notice under Section 138 of the Orissa Grama Panchayat Act was required to be issued to the Grama Panchayat before institution of the suit. The plaintiff filed an application under Sub-section 2 of Section 80 CPC before the learned trial court to dispense with notice. The same was allowed. No notice under Section 138 of the Orissa Grama Panchayat Act was required to be issued to the Grama Panchayat before institution of the suit. He further submits that no proceeding was initiated against the plaintiff before taking the proposed action. He further submits that under Rule 216 of the Orissa Grama Panchayat Rules, 1968 the Grama Panchayat may remove the Secretary of the Grama Sasan from services if he willfully omits or refuses to carry out the duties and functions entrusted to him under the provisions of the Orissa Grama Panchayat Act. Elaborating the submissions, he submits that notice under Section 138 of the Orissa Grama Panchayat Act is required to be issued when an action is taken under the Orissa Grama Panchayat Act. But then the action is taken under the Rule 216 of the Orissa Grama Panchayat Rules. Thus no notice was required to be issued under Section 139 of the Orissa Grama Panchayat Act. No opportunity of hearing was provided to the plaintiff. To buttress the submission, he places reliance on a decision of the apex Court in the case of J.N.Ganatra v. Morvi Municipality, Morvi, (1996) 9 SCC 495 . 8. Per contra, Mr.Pani, learned Additional Standing Counsel for respondents no.1 to 3 submits that notice under Section 138 of the Orissa Grama Panchayat Act is required to be issued to the Grama Panchayat before institution of the suit. The suit is not maintainable. The plaintiff while functioning as Secretary of the Grama Panchayat committed malfeasance and misfeasance for which the order of suspension was passed and latter on, he was removed from the services after issuing show cause. 9. Before proceeding further, it is apt to refer the provisions of Sections 138 and 139 of the Orissa Grama Panchayat Act, 1964 and Rule 216 of the Orissa Grama Panchayat Rules, 1968. "138. 9. Before proceeding further, it is apt to refer the provisions of Sections 138 and 139 of the Orissa Grama Panchayat Act, 1964 and Rule 216 of the Orissa Grama Panchayat Rules, 1968. "138. Suits against Grama Panchayats or their officers (1) No suit or other legal proceedings shall be instituted against a Grama Sasan or a Grama Panchayat or against member, Sarpanch, Naib Sarpanch, officer or other employee of the Grama Panchayat or against any person acting under its or his direction for anything done or purporting to have been done under this Act, until the expiration of one month next after notice in writing has been, in the case of Grama Sasan or Grama Panchayat, delivered in or left at the office of the Panchayat and in the case of a member, officer or servant or any person acting under his direction or the direction of the Grama Panchayat, delivered to him or left at his office or place of residence, explicitly stating the cause of action, the nature of the reliefs sought, the amount of compensation, if any, claimed and the name and place of residence of the intending plaintiff; and the plaint shall contain a statement that such notice has been so delivered or left. (2) If the Grama Panchayat, members, Sarpanch, Naib-Sarpanch, officer or other employee or the person as aforesaid has tendered amends, sufficient in the opinion of the Court to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered and shall also pay all costs incurred by the defendant after such tender. (3) No suit or other legal proceeding referred to in Sub-section (1) shall be instituted after the expiry of a period of six months from the date of the accrual of the alleged cause of action. 139. Protection to Grama Panchayats- No suit or prosecution shall be entertained in any Court against a Grama Sasan or Grama Panchayat or the Sarpanch, Naib-Sarpanch or any other member or officer or other employee thereof or any person acting under its or his direction in respect of anything in good faith done or intended to be done under this Act or any rule or byelaws made there under. xxx xxx xxx 216. xxx xxx xxx 216. (a) The Grama Panchayat may remove the Secretary of the Grama Sasan from services if he willfully omits or refuses to carry out the duties and functions entrusted to him under the provisions of the Orissa Grama Panchayats Act, 1964 and the rules or orders made thereunder abuses the powers, rights and privileges vested in him or acts in a manner prejudicial to the interest of the Grama Sasan or by his action causes loss to the Grama Sasan or has been convicted of any offence; Provided that no order of removal shall be passed by the Grama Panchayat without giving him a reasonable opportunity of showing cause. The grounds on which he is proposed to be removed shall be reduced to the form of definite charge or charges which shall be communicated to him in writing. He shall be required to submit his explanation in writing within a reasonable time. The Grama Panchayat shall take a decision in the matter after having considered the explanation of the Secretary, if any, and having heard him, if he has so desired and thereafter may remove him. (b) The Grama Panchayat may suspend from office of the Secretary of the Grama Sasan pending disposal of the proceedings against him under this rule or if he has been detained in prison during trial, under the provisions of any law for the time being in force. During the period of suspension the Secretary of the Grama Sasan shall be paid subsistence allowance the amount of which shall not exceed half of his monthly salary." 10. On a conspectus of Section 138 of the Orissa Grama Panchayat Act, it is evident that before any suit is instituted, notice to Grama Panchayat under Section 138 is a sine qua non. The same is mandatory requirement. For non-compliance of the notice, the suit is not maintainable. Reliance placed under Section 139 of the Orissa Grama Panchayat Act is thoroughly misplaced. Sections 138 and 139 of the Act are operating in different field. There was no cause of action, when the suit was instituted. The plaintiff has prayed inter alia that the proposed action of the defendants dated 6.6.1996 may be declared as illegal. Thus, when the suit was instituted there was no cause of action. A suit cannot be filed in anticipation of any cause of action. There was no cause of action, when the suit was instituted. The plaintiff has prayed inter alia that the proposed action of the defendants dated 6.6.1996 may be declared as illegal. Thus, when the suit was instituted there was no cause of action. A suit cannot be filed in anticipation of any cause of action. Further a statutory authority cannot be injuncted by way of permanent injunction to discharge its statutory function. The prayer is thoroughly misconceived. Opportunity of hearing was provided to the plaintiff. The plaintiff was removed from services. But there is no prayer to set aside the same. 11. Though the learned trial court held that the plaintiff is a public servant and the administrative tribunal has jurisdiction to entertain the proceeding, but in view of the authoritative pronouncement of the Full Bench decision of this Court in the case of Sri Adwait Chandra Jena v. Khandahata Grama Panchayat and others, (1998) 2 OrissaLR 410 that the Secretary does not hold a civil post under the State Government, and not a Government servant, the finding is perverse. Further, the learned appellate court placed reliance on the said judgment. The substantial questions of law are answered accordingly. 12. The decision in the case of J.N.Ganatra is distinguishable on facts. 13. In the wake of aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.