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2020 DIGILAW 55 (ORI)

Manjubala Pradhan v. State of Odisha

2020-02-17

D.DASH

body2020
JUDGMENT D. Dash, J. 1. The petitioner, by filing this writ application, has prayed for quashment of an order dated 09.01.2020 of the Government in the Department of Panchayati Raj and Drinking Water under Annexure-6 as to the initiation of the proceeding under section 115(1) of the Odisha Grama Panchayat Act (for short, "the OGP Act") as also the order of suspension of the petitioner, who is the elected Sarpanch of Kotsahi Grama Panchayat under Jaleswar Block in the district of Baleswar in exercise of power under sub-section 2 of section 115 of the OGP Act. By the said order, proceeding has been initiated against the petitioner for his removal from the office of Sarpanch for willful violation of the provisions of section 19 of the OGP Act and acting in a manner prejudicial to the interest of the Grama as such her continuance in the office as detrimental to the interest of the inhabitants of the Grama Panchayat. In view of that, the petitioner has been called upon to explain the charges with their factual settings as annexed to the said order within thirty days of receipt of the same as to why action as deemed proper under sub-section 1 of section 115 of the O.G.P. Act shall not be taken against her. In issuing the notice for the purpose as above, the petitioner, who is the elected Sarpanch of Kotsahi Grama Panchayat has been placed under suspension in exercise of power under sub-section 2 of section 115 of the O.G.P. Act. 2. Brief facts necessary for the purpose as culled out from the pleadings are as underline petitioner being the elected Sarpanch of Kotsahi Grama Panchayat had been in the office and discharging her duty as such since her assumption of the charge of the office after election. When the matter was continuing as such, the Opposite Party No. 7 filed a representation before the Authorities including the Collector and District Magistrate, Balasore making some allegation against the petitioner as also the Executive Officer of Grama Panchayat in selecting Village Level Leader (VLL) illegally, in including the previously executed works in annual action plan of 2017-18 out of 14th Central Finance Commissioner (CFC) and 4th State Finance Commission (SFC) fund and again by excluding one village in the said action plan for execution of work through all the villagers belonging to Scheduled Tribe Community. Stating all these illegalities to have been committed by the petitioner as the Sarpanch, said opposite party No. 7 prayed to cancel the 14th SFC Annual Plan. The matter was then enquired into through the District Panchayat Officer, Opposite Party No. 3. When the enquiry was going on, said Opposite Party No. 7 filed a writ application before this Court, which came to be numbered as W.P.(C) No. 23538 of 2017. By order dated 27.11.2017, this Court directed the Collector and District Magistrate to dispose of the representation of Opposite Party No. 7 within a time frame. In the meantime, the enquiry being conducted by the District Panchayat Officer, report was submitted stating therein that although all the works have been completed, proper procedures, as per the Government Guidelines, have not been followed. The petitioner being asked to file show cause, he presented the show cause before the Collector and District Magistrate. By order dated 5.5.2018, the Collector disposed of the representation of the Opposite Party No. 7 with certain observations as to violation of the procedures laid down under the Act and Rules made thereunder in conducting the Palli Sabha by not giving fifteen clear days notice for selection of VLL and inclusion of previously executed works in the Annual Action Plan as per 14th CFC and 4th SFC for the year 2017-18 as also with regard to said execution of six project works out of 14th CFC and 4th SFC fund. At this stage, the Collector & District Magistrate sent a letter to the Additional Secretary to the Government of Odisha in the Department of Panchayati Raj and Drinking Water mentioning the irregularities and stating further that the departmental proceeding has been initiated against the Panchayat Extension Officer. Having this reported that the petitioner has willfully violated the provisions of the Act and Rules, abused the power, right and privilege vested in her and that her further continuance in office would be detrimental to the interest of Grama Panchayat, the Collector requested for necessary action under the Act and Rules against the petitioner, the elected Sarpanch. 3. Having this reported that the petitioner has willfully violated the provisions of the Act and Rules, abused the power, right and privilege vested in her and that her further continuance in office would be detrimental to the interest of Grama Panchayat, the Collector requested for necessary action under the Act and Rules against the petitioner, the elected Sarpanch. 3. Learned counsel for the petitioner, in course of argument, confining his submission only on the action as to the suspension of the petitioner, the elected Sarpanch of the Kotsahi Grama Panchayat, in exercise of power under sub-section 2 of Section 115 of the Act as has been taken, submitted that the same is not sustainable in the eye of law. It was submitted that no such reason has at all been assigned in the order as to the immediate need of suspension of the petitioner pending the proceeding for her removal from the office. According to him, the statements in a general manner that the petitioner has willfully violated the provisions of section 19 of the O.G.P. Act and acted in a manner prejudicial to the interest of the Grama are not enough to say that exercise of power as embodied in sub-section 2 of section 115 of the Act is justified. He submitted that the order of suspension is vague and has been so perused without arriving at a satisfaction as to the pre-requisite requirements as mandated in law. He submitted that the charge is vague and the order of suspension is motivated only with a view to oust the elected Sarpanch i.e. the petitioner at the tune of the petitionees opponent, i.e., opposite party No. 7. He further submitted that the order of suspension is the outcome of total non-application of mind. 4. Learned Additional Government Advocate submitted all in favour of the suspension of the petitioner as at Annexure-6. It was his submission that pending enquiry into the allegations for taking action under sub-section 1 of section 115 of the O.G.P. Act, the Government having exercised the power under sub-section 2 of said section, there remains very limited scope for the court to interfere with the same. It was his submission that pending enquiry into the allegations for taking action under sub-section 1 of section 115 of the O.G.P. Act, the Government having exercised the power under sub-section 2 of said section, there remains very limited scope for the court to interfere with the same. He submitted that as per the outcome of the fact finding enquiry made by the Collector & District Magistrate clearly disclose that willful violation of provisions of section 19 of the O.G.P. Act in remaining a party to the illegalities as also irregularities standing prejudicial to the interest of Grama. It was thus submitted that the order of suspension as under Annexure-6 is not liable to be interfered with in exercise of extra ordinary writ jurisdiction pending the proceeding against the petitioner for her removal from the office. 5. Before going to address the rival submission, first of all, it is profitable to take note of the provision of section 115 of the O.G.P. Act which governs the field. It reads as under:- "115. 5. Before going to address the rival submission, first of all, it is profitable to take note of the provision of section 115 of the O.G.P. Act which governs the field. It reads as under:- "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 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, 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 member 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 the 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-sections snail apply in respect of a default as specified above." 6. The scheme of section 115 of the OGP Act shows that the State Government on the basis of a report of the Collector or Project Director, District Rural Development Agencies or suo-motu when is of the opinion that the circumstances exists to show that the Sarpanch or Naib Sarpanch of a Gram Panchayat has willfully omitted or refused to carry out or violated the provision of the Act or rules or orders made thereunder or acted in a manner prejudicial to Grama and that further continuance of such person in office would be detrimental to the interest of the inhabitants of the Grama, said person can be removed from the office of Sarpanch or Naib Sarpanch as the case may be, after giving a reasonable opportunity of showing cause in having his say in the matter. Sub-section 2 of section 115 of the OGP Act empowers the State Government on the basis of an opinion as stated above, to put said Sarpanch under suspension pending initiation of the proceeding by an order, recording the reasons to that effect in writing. 7. It has been held in case of Tarini Tripathy Vrs. Collector, Koraput & Others, 62 (1986) CLT 548, that suspension of an elected representative is indeed a drastic action and should not be taken recourse to cursorily and in a mechanical manner. Therefore, in order to exercise the power of suspension of an elected representative, the legislature has provided the safeguards against arbitrary exercise as indicated in section 115 of the OGP Act. All the three requirements as stated in sub-section (1) of section 115 of the OGP Act are cumulative. Absence of any one of three would vitiate the suspension. The opinion on both the counts i.e. (i) the satisfaction as to the willful omission or refusal to carry out or violation of the provisions of the Act or the rules and regulations made thereunder or exercise of powers, rights and privileges so vested or action in a manner prejudicial to the Grama Panchayat; and (ii) satisfaction that further continuance in office would be detrimental to the interest of the inhabitants of the Grama are required to be formed. Existence of only one is not sufficient for the purpose. Existence of only one is not sufficient for the purpose. It has been said further that while thus bringing the tenure of an elected representative to an end either temporary or prematurely, utmost care and circumspection ought to the exercised the right of an elected representative to continue in office for full tenure should not be lightly tinkered with. In case of Ch. Srinivas Vrs. State 1987 (II) OLR 407, the decision of the Apex Court in case of Barjum Chemical Ltd. & Another Vrs. Company Law Board & Others; AIR 1967 SC 295 having been referred to, it has been said that since existence of circumstances is a condition fundamental on the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist giving no clue to what they are because the circumstances must be such as to lead to "conclusions of certain definiteness". At this stage, it is felt apposite to place the order dated 26.09.2019 under Annexure-5:- "Government of Odisha, P.R. & D.W. Department ORDER No. 756/PR & DW, dated 09.01.2020 17-PADM-19-5758 Whereas, it appears from the report of the Collector, Balasore that Smt. Manjubala @ Manjulata Pradhan, Sarpanch of Kotsahi Grama Panchayat under Jaleswar Block has willfully violated the provisions under Section-19 of Odisha Grama Panchayat Act, 1964 (Odisha Act-1 of 1965) and acted in a manner which are prejudicial to the interest of the Grama and as such her further continuance as Sarpanch of Kotsahi Grama Panchayat is detrimental to the interest of the inhabitants of the said Grama Panchayat. Now, therefore, in exercise of the powers conferred by Sub-section-(2) of Section 115 of the said Act, Government have been pleased to place Smt. Manjubala @ Manjulata Pradhan, Sarpanch of Kotsahi Grama Panchayat under suspension with immediate effect. Further, in pursuance of Sub-section (1) of Section 115 of the said Act, Smt. Manjubala @ Manjulata Pradhan, Sarpanch of Kotsahi. Grama Panchayat is hereby called upon to explain on the charges annexed to this order at annexure-A within 30 days from the date of receipt of this order as to why action as deemed proper shall not be taken against her in accordance with law. Grama Panchayat is hereby called upon to explain on the charges annexed to this order at annexure-A within 30 days from the date of receipt of this order as to why action as deemed proper shall not be taken against her in accordance with law. If no explanation is received from her within the stipulated period, it will be presumed that she has nothing to explain and the matter will decided ex-parte. She may also state, if she desires to be heard in person. By order of the Governor Sd/- Addl. Secretary to Government. 9.1.2020" A plain reading being given to the above order, it appears that based on the report that the petitioner has willfully violated the provision of section 19 of the OGP Act, it is said that the petitioner has violated the provision of section 19 of the OGP Act and her acting in a manner which is prejudicial to the interest of the Grama and as such her further contention as Sarpanch of Kotsahi Grama Panchayat is detrimental to the interest of the inhabitants of the said Grama Panchayat But, there is no such note as to any such opinion to have been formed based upon the said report as to the existence of circumstances in the direction of willful violation of the provision of section 19 of the Act and the action in a manner prejudicial to the interest of the Grama in saying that the continuation of the petitioner as the Sarpanch is detrimental to the interest of the inhabitants of the Grama Panchayat. Furthermore, no reason has also been assigned. Therefore, the order of suspension of the petitioner who is the Sarpanch of Kotsahi Gram Panchayat as under Annexure-1 cannot be sustained in the eye of law. 8. In the result, the order of suspension dated 26.09.2019 passed by the Government under Annexure-6 is hereby quashed and it is directed that the petitioner-Sarpanch, if is not continuing to hold the office, be given charge of all the relevant papers of Kotsahi Gram Panchayat forthwith. The writ application is accordingly, allowed. No order as to costs.