Notice under Section 138 of the Orissa Grama Panchayat Act is mandatory before instituting a suit.

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. 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