Orissa High Court
Bidyadhar Sahu vs State Of Odisha And Another on 28 September, 2015
Author: C.R. Dash
Bench: C.R. Dash
ORISSA HIGH COURT, CUTTACK.
W.P. (C) No. 8881 of 2014
In the matter of an application under Articles 226 and 227 of the Constitution of India and
under Section 26 of the Orissa Gram Panchayat Act.
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Bidyadhar Sahu ... Petitioner
Versus
State of Odisha and another ... Opp. Parties
For Petitioner : M/s. Dhananjay Mund, R.K. Acharya,
S.N. Padhi and P.K. Behera.
For Opp. Parties : Additional Govt. Advocate. (for O.P.1)
Mr. Brundaban Rout And
M/s. Srikar Kumar Rath & B. Patra
(for O.P.2.)
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PRESENT:
THE HONOURABLE MR. JUSTICE C.R. DASH
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Date of Judgment : 28.09.2015
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C.R. Dash, J.The petitioner, who is an elected Sarpanch of Kalopala Gram Panchayat under Junagarh Panchayat Samiti in the district of Kalahandi, has impugned the order dated 25.04.2014 passed by the Collector, Kalahandi in a proceeding under Section 26 (2) of the Orissa Gram Panchayat Act, 1964 ("Act" for short), on the ground that opportunity of being heard was not afforded to him.
22. One Satyanarayan Behera of Kalopala Gram Panchayat filed an allegation petition to the effect that the petitioner is blessed with more than two children and therefore he is disqualified under Section 25 (1)(v) of the Act to continue as Sarpanch. The Collector, Kalahandi obtained report from the District Panchayat Officer, Kalahandi and the B.D.O., Junagarh regarding the veracity of the allegation. Both the District Panchayat Officer, Kalahandi and the B.D.O., Junagarh submitted their report along with the information supplied under R.T.I. Act by the Headmaster in-charge of the Government U.G. High School, Kalopala, and the information under R.T.I. Act supplied by the Medical Officer-in- charge, C.H.C., Junagarh. From the said report, the Collector was satisfied that the petitioner is blessed with four children after the cut-off date. He therefore initiated a suo motu proceeding against the petitioner vide G.P. Case No.4 of 2013 and issued notice to the petitioner to appear in person or through authorized representative, to answer the allegation.
3. The proceeding was initiated on 07.06.2013. The petitioner on 31.08.2013 entered appearance through advocate Sri Santosh Kumar Mishra. The case was adjourned on the basis of time sought for by the petitioner on 21.09.2013. After two adjournments, due to various other reasons the learned counsel for the petitioner on 06.12.2013 filed a petition to supply the petitioner a copy of the allegation petition to enable the petitioner to file his show-cause. Accordingly order was passed on the same date to supply a copy of the allegation petition to the petitioner through his counsel. Thereafter the case was adjourned on two dates, as the Presiding Officer was absent. On 27.12.2013 learned counsel for the petitioner sought for an adjournment. The case was adjourned, directing the learned counsel for the petitioner to file his show-cause by the next date, as in the meantime this Court in W.P. (C) No.22267 of 2013 3 (Satyanarayan Behera vrs. Collector, Kalahandi) had issued a direction targeting the G.P. Case to be disposed of within three months from the date of receipt of the order. The case was adjourned to 10.01.2014. On 10.01.2014 learned counsel for the petitioner again sought for adjournment and finally on 17.01.2014 the petitioner filed his show-cause reply denying the allegation. The case suffered adjournments on 24.01.2014, 07.02.2014, 14.02.2014 and 21.02.2014, as the P.O. was otherwise busy. On 28.02.2014, Sujata Barik (present opposite party no.2), who is the Naib-Sarpanch of Kalopala Gram Panchayat, filed a petition through advocate to implead her as opposite party to the case. On the said date the parties were directed to submit their arguments by the next date, as the case had already been targeted by this Court. On 07.03.2014, 14.03.2014 and 28.03.2014 the case suffered adjournments, as the P.O. was otherwise busy in election duty. On 25.04.2014 arguments by the parties were heard and the case was disposed of by passing the impugned order.
4. Learned counsel for the petitioner submits that, from the impugned order it is found that the basis of decision by the learned Collector is the information supplied under R.T.I. Act by the Headmaster in-charge, Government U.G. High School, Kalopala and the information supplied under the R.T.I. Act by the Medical Officer -in-charge of the C.H.C., Junagarh. The aforesaid documents were part of the report submitted by the District Panchayat Officer, Kalahandi and B.D.O., Junagarh. The enquiry by the District Panchayat Officer, Kalahandi and the B.D.O., Junagarh was conducted behind the back of the petitioner in his absence, and the information relied on by them were not supplied to the petitioner by the Collector at any point of time. Further, as the case was targeted by this Court in W.P. (C) No.22267 of 2013, learned Collector, 4 Kalahandi in a hot haste disposed of the matter without affording any opportunity to the petitioner to give rebuttal evidence.
5. Learned counsel for opposite party no.2 on the other hand submits that though enough time was granted to the petitioner, he acted ad libitum in filing the show-cause, and though a counsel was engaged by the petitioner, at no point of time any petition was filed before the Collector to supply the petitioner copies of the report submitted by the District Panchayat Officer, Kalahandi and B.D.O., Junagarh. The petition was filed by the petitioner's counsel to supply a copy of the allegation petition, and the same was supplied to him to enable him to file show-cause. In view of such fact, it cannot be said that there has been violation of the principle of natural justice in any manner in this case.
6. It is no more res integra that enquiry to be conducted by the Collector under Section 26 (2) of the Act is quasi judicial in nature, and it involves summary procedure. (see Raghunath Sahoo vrs. Collector & District Magistrate, Keonjhar and others, 2008 (I) OLR - 230).
7. Provisions contained in Section 26 (2) of the Act itself provides that the affected party should be given opportunity of being heard. The very first order in the order-sheet of the Collector, Kalahandi shows that the basis of initiation of the suo motu proceeding is the letter of the District Panchayat Officer, Kalahandi and B.D.O., Junagarh, and the very basis of finding is the information supplied under the R.T.I. Act by the Headmaster-in-charge of the Kalopala U.G. High School and the Medical Officer-in-charge of the C.H.C., Junagarh. Those materials were collected and the enquiry was conducted behind the back of the petitioner in his absence. Though no petition was filed by the counsel engaged by the petitioner seeking supply of copies of the aforesaid enquiry report and 5 documents, it was incumbent upon the Collector to supply the copy of the enquiry report and the aforesaid documents to the petitioner so that he could have known about the evidence collected against him behind his back and he could have put-forth his defence or adduced rebuttal evidence in reply. The nature of the enquiry being quasi judicial, it is the duty of the Collector in a proceeding under Section 26 (2) of the Act to supply the evidence collected against the affected party, to him, so that he can meet his defence properly. If such a course has not been resorted to in any proceeding, the proceeding is vitiated being violative of the principle of natural justice.
8. In my view, I am supported by a Bench decision of this Court in the case of Sri Kasteswar Khatua vrs. State of Orissa and others, 2004 (II) CLR
- 182. On the aforesaid ground alone the impugned order is liable to be set aside. Accordingly the impugned order is set aside.
9. Learned Collector, Kalahandi is directed to supply copies of the enquiry report of the District Panchayat Officer, Kalahandi and B.D.O., Junagarh along with the information obtained from the Headmaster-in-charge of Kalopala U.G. High School and the Medical Officer-in-charge of the C.H.C., Junagarh to the petitioner on the date of his appearance. The petitioner is directed to file show-cause within a period of three weeks from the date of supply of the aforesaid documents to him. No further time in any event should be granted to the petitioner to file show-cause. The petitioner and opposite party no.2 are directed to appear before the Collector, Kalahandi on 15.10.2015. The Collector is directed to conclude the proceeding within four months from the date of appearance of the parties. The petitioner may give rebuttal evidence, if he so likes, so far as the documents are concerned, but the case is to be disposed of by the target fixed.
610. The writ petition is accordingly disposed of.
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C.R. Dash, J.
Orissa High Court, Cuttack.
The 28th day of September, 2015.
S.K. Parida, Secretary.