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1998 Supreme(Ori) 347
IN THE HIGH COURT OF ORISSA
R.K. Patra, Pradipta Ray, JJ.
PRADEEP KUMAR KARJI - APPELLANT
Versus
COLLECTOR AND OTHERS - RESPONDENT
Original Jurisdiction Case No. 15826 of 1997
Decided On : 12-08-1998
Jagannath Patnaik, A.A. Das, R. Rath, B. Mohanty and S. Das, for the Appellant; S.P. Misra, A.G.A., for the Respondent
The Collector's power to suspend the Sarpanch or Naib-Sarpanch under Section 115(1) of the Orissa Grama Panchayat Act, 1964, is subject to judicial review. The Collector must form his opinion on the basis of the report of the Sub-Collector and must be satisfied that circumstances exist to show that the Sarpanch or Naib-Sarpanch has wilfully omitted or refused to carry out or violated the provisions of the Act or the Rules or orders made thereunder or abused the power, rights and privileges vested in him or acted in a manner prejudicial to the interest of the inhabitants of the Grama.
Headnote:
ORISSA GRAM PANCHAYAT ACT, 1964 - SECTION 115 - SUSPENSION OF SARPANCH - REQUIREMENTS - SCOPE AND AMBIT - JUDICIAL REVIEW.
Fact of the Case:
Petitioner, the Sarpaneh of Tembaguda Gram Panchayat, challenged his suspension order passed by the Collector under Section 115(1) of the Orissa Grama Panchayat Act, 1964, alleging that it was illegal and without any justifiable cause.
Finding of the Court:
The Court held that the impugned order of suspension was passed without keeping the law in view and was a clear case of non-application of mind. The Court quashed the suspension order.
Issues: 1. Whether the Collector had the authority to suspend the petitioner without issuing a show cause notice? 2. Whether the Collector had formed his opinion on the basis of the report of the Sub-Collector and whether the circumstances existed to show that the petitioner had wilfully omitted or refused to carry out or violated the provisions of the Act or the Rules or orders made thereunder or abused the power, rights and privileges vested in him or acted in a manner prejudicial to the interest of the inhabitants of the Grama? 3. Whether the State Government had taken any action on the report of the Collector regarding the suspension of the petitioner?
Ratio Decidendi: 1. The Court held that at the stage of passing the order of suspension, there is neither a show cause notice nor a determination by the Collector to call for a hearing. Therefore, the Collector is not required to issue a show cause notice to the Sarpanch before passing the order of suspension. 2. The Court held that the Collector had formed his opinion on the basis of the report of the Sub-Collector, but the order did not satisfy the requirements enjoined in law. The Court held that the impugned order of suspension was passed without keeping the law in view and was a clear case of non-application of mind. 3. The Court held that the State Government had not taken any action on the report of the Collector regarding the suspension of the petitioner and directed the State Government to dispose of the proceeding with utmost expedition and urgency.
Final Decision: The Court allowed the writ petition and quashed the impugned order of suspension.
JUDGMENT :
R.K. Patra, J. - The petitioner who is the Sarpaneh of Tembaguda Gram Panchayat under Padampur Panchayat Samiti in this petition under Articles 226 and 227 of the Constitution of India seeks quashing of the order of suspension passed by the Collector, Rayagada communicated in letter No. 2003/97 dated 31.7.1997 at Annexure-3.
2. The case of the petitioner is that he came to be elected as Sarpaneh of Tembaguda Gram Panchayat in January 1997. He is actively involved in social activities and has been discharging his duties and exercising power vested in him with due diligence. As he belongs to the opposite camp of the ruling party in the State, he has incurred wrath of local leaders and at their instance the Collector illegally placed him under suspension without any justifiable cause or reason.
3. The Collector who is opposite party No. 1 in the case has filed counter affidavit which was affirmed by the District Panchayat Officer, Rayagada. His case is that the Civil Supplies and Enforcement Squad along with the Revenue Officer-cum-Executive Magistrate, Gunupur checked and verified the stock and accounts of the special subsidised rice of Tembaguda Gram Panchayat in presence of the petitioner and the Secretary of the Gram Panchayat on 9.5.1997 at about 6.30 p.m. From the tally register and the third copy of the issue order produced by the petitioner, it revealed that he had lifted 55 quintals of S.S. rice from the depot of Orissa State Ware Housing Corporation at Padampur on 30.4.1997 by depositing two bank drafts for Rs. 13875/- and Rs. 14300/- but the said stock of rice lifted from the depot had not been accounted for in the stock register maintained by the Gram Panchayat. On the contrary the squad found 80 bags of rice in the Gram Panchayat godown and 10 bags of rice in another room of Gram Panchayat office building. The Sub-Collector, Gunupur in his letter No. 4836 dated 24.5.1997 (Annexure-A/3) while reporting this matter to the Collector recommended to take action against the petitioner u/s 115(1) of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as 'the Act'). Before the impugned order of suspension was passed, the Collector in his office letter No. 1720 dated 29.8.1997 (Annexure-B/3) called upon the petitioner to show cause within fifteen days as to why action as contemplated u/s 115 (1) of the Act should not be taken against him. He received the notice on 5.9.1 997. Instead of submitting any cause, he sent a telegram along with a medical certificate on 9.9.1997 to grant him a week's time to submit his explanation. The telegram was received in the Collectorate on 20.9.1997. As adequate time was given to submit his explanation and as he did not do the same, order of suspension was passed on 22.10.1997 (Annexure-3).
4. The scope and ambit of the provisions contained in Section 115 of the Act have been explained by series of decisions of this Court. Sub-section (1) of Section 115 deals with the Collector's power to suspend the Sarpanch or Naib-Sarpanch, as the case may be, from office. The Collector is also required to report the matter to the State Government. Under Sub-section (2), the State Government on the report of the Collector may after giving the person concerned reasonable opportunity of showing cause remove him from the office of Sarpanch or Naib-Sarpanch, as the case may be.
In Biswanath Pradhan v. State of Orissa 44 (1997) CLT 404, this Court held that as a result of the suspension, the person concerned may not be for the time being entitled to continue to function as Sarpanch or Naib-Sarpanch but the suspension has not the effect of removing him from office. At the stage of passing the order of suspension, there is neither a Us nor a determination by the Collector to call for a hearing. If hearing at the stage suspension is read by implication in Sub-section (1) that would mean that the Legislature envisaged two hearings for the person concerned for the same subject-matter and by two differe
