Orissa High Court
Nabin Chandra Majhi vs State Of Odisha & Others ... Opp. Parties on 23 November, 2012
HIGH COURT OF ORISSA: CUTTACK
W.P.(C). No.7429 of 2012
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Nabin Chandra Majhi, aged about 40 years,
S/o. Jagajiban Majhi,
Vill: Kalampur, P.S. Jaypatna,
Dist: Kalahandi,
(Presently working as
Panchayat Executive Officer,
Dashigaon Gram Panchayat
under Junagada Block, Dist: Kalahandi)
... Petitioner
-Versus-
State of Odisha & others ... Opp. Parties
For Petitioner : Mr.Sukanta Kumar Dalai
For Opp. Parties : Mr.Somanath Mishra,
Additional Government Advocate
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 23.11.2012
B.N. Mahapatra, J.This writ petition has been filed with a prayer to quash the order of suspension dated 09.04.2012 passed by the Collector, Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962 and article of charges framed by the Disciplinary Authority-cum-Collector, Kalahandi 2 vide order dated 09.04.2012 in D.P. Case No.111 under Rule-15 of OCS (CCA) Rules, 1962 and Orissa Grama Panchayat Act, 1964.
2. Petitioner's case in a nutshell is that the petitioner was appointed as Grama Panchayat Secretary in Dashigaon Grama Panchayat. Thereafter, the petitioner was promoted to the post of V.L.W. vide letter No.760/GP dated 26.06.2009 of Collector, Kalahandi. On 05.01.2011, he was appointed as Election Officer for Rajpur Grama Panchayat by the B.D.O.-cum-Election Officer, Junagarh as per programme schedule communicated by the State Election Commission of Odisha. The petitioner was directed to accept nomination papers for the Office of Sarpanch and Ward member of Rajpur Grama Panchayat from 07.01.2012 to 12.01.2012. It has been alleged that the petitioner during the aforesaid period acted in a very careless manner and committed gross error in contravention of Election Rules of the State. According to such allegation, one Smt. Bilash Majhi, wife of Narendra Majhi of Village Rajpur was issued with nomination papers by the petitioner in the capacity of Election Officer on 11.01.2012 for the post of Sarapanch of Rajpur Grama Panchayat and on the same day she submitted her nomination for the post of Sarapanch in Form-IV and it was received by the petitioner at 2.55 PM. Said Smt. Majhi was again issued nomination paper for the post of Ward member of Ward No.9 of the Grama Panchyat on the next day, i.e., 12.01.2012 and the same was submitted by her on 3 the same day which was received by the petitioner in the capacity of Election Officer at 1.35 PM. It is alleged that multiple nomination is restricted under Section 11(a)(i) of the Orissa Grama Panchayats Act, 1964. Therefore, it is alleged that the petitioner allowed Smt. Bilasha Majhi to submit nomination papers for both the posts, i.e., Sarapanch and Ward Member and also declared both the nomination papers valid. As Smt. Majhi was only candidate for the post of Ward Member of Ward No.9 she was declared uncontested. Had the petitioner reported the matter to B.D.O., Junagarh, he would not have allowed Smt. Majhi to contest in the election for the post of Sarapanch. But the petitioner deliberately concealed the matter as a result of which Smt. Majhi was allowed to contest both for the post of Sarapanch and Ward Member and she also own the election to the post of Sarapanch by securing maximum of 1025 votes as per result declared by the Election Officer in Form No.8(B). Thus, it is alleged that the petitioner kept the Election Officer- cum-B.D.O., Junagarh Block in darkness till the notification of result by the Election Officer for the post of Ward Member and Sarapanch was declared on 24.02.2012. It is only on that day vide Notification No.505 dated 24.02.2012 it was disclosed that such type of irregularities has occurred in the election of Junagarh which is attributed to the petitioner. The Election Officer, Junagarh Block as well as District Administration was put to an embarrassing situation due to winning of one candidate for 4 both the posts of Ward Member and Sarapanch. Thus the petitioner acted carelessly and rendered undue help to the concerned candidate and committed irregularity deliberately in connivance with the candidate to ensure that she would retain the post of Ward Member even if she would be defeated in the election of Sarapanch. With these allegations, the order of suspension dated 09.04.2012 and the article of charges of even date were issued. Hence, the present writ petition.
3. Mr. Dalai, learned counsel appearing for the petitioner submitted that Smt. Bilash Majhi was the only member of Ward No.9. Therefore, she was declared elected uncontested. Subsequently, the election for the office of Sarapanch was held on the scheduled date and Smt. Majhi secured 1025 votes and declared elected as Sarapanch by Notification in Form-8(B). Mr. Dalai further submitted that while framing charges against the petitioner on 09.04.2012 the Collector, Kalahandi in the capacity of Disciplinary Authority has issued the suspension order under Annexure-2. Opposite party No.3, who was the Election Officer for Junagarh Block, after the election period was over, with a malafide intention and giving a false identification stating himself as Election Officer has signed in the charge paper which shows the misconduct and malafide intention of the authority while framing charges against the present petitioner. So entire framing of charge is defective. It is further submitted that there is no prohibition for issue of nomination papers to 5 different persons who intended to participate in the election process. Petitioner was appointed as Election Officer for the limited purpose by opposite party No.3 for accepting nomination papers. Rule-29 speaks that the Election Officer shall at the appointed time, date and place receive nomination papers separately for the Office of the members and Sarapanch in Form No.4 and scrutinize them in presence of the candidates, their proposers and seconders, if any. If he finds that the candidates are duly qualified in accordance with the provisions of Section-11 and not disqualified under any of the clauses of Section 25 of the Act, he shall approve their candidature. Objections, if any, filed in the course of scrutiny shall be enquired into summarily by the Election Officer and his decision accepting or rejecting nomination papers shall be endorsed on the body of the nomination papers with reasons for the decision. In the instant case, there was no objection from any corner and accordingly after acceptance of the nomination papers, it was duly communicated to opposite party No.3. The petitioner has carefully scrutinized the nomination papers. Section 29 deals with penalty for misconduct of elections, but in the aforesaid Section there is no observation regarding the improper acceptance of the nomination papers. Section 30 provides that no election of a person as a member of a Grama Panchayat or as Sarapanch or Naib Sarapanch held under the Act shall be called in question except by an Election Petition presented in 6 accordance with the provision of Chapter-V. Section 38 deals with decision of competent Court to declare another candidate to have been duly elected and all orders of the competent Court shall subject to the provisions of Sub-section (4) be final and conclusive or to declare a casual vacancy to have been created. Therefore, while the election petition is pending before the Election Tribunal issuance of suspension order and framing of charges gives very bad taste and is contrary to the statute.
4. Mr.Dalai submitted that opposite party No.3 has the sole responsibility and he is the person to be punished. Only to shift the responsibility, the impugned orders have been issued which are not permissible under law. Issuance of order of suspension and framing of charge by opposite party No.2 is not only arbitrary, but also malafide and discriminatory in nature. In the district of Kalahandi, in other Grama Panchayats also the same mistake has been pointed out and it has been rectified by the State Election Commission and there is no punishment or any sort of charge has been framed against the officers concerned and no order of suspension also has been issued against them, but the petitioner has been victimized due to ill intention of the authorities. It is further submitted that the authorities have exceeded their jurisdiction and in a whimsical manner issued the order of suspension. Mr. Dalai further submitted that had the State Election Commission taken a decision 7 against the present petitioner due to misconduct and non-compliance of the direction, the matter would have been different. Since the petitioner was on deputation, at a belated stage when the petitioner is neither working under the State Election Commission nor under the Collector, Kalahandi action has been taken, which is per se illegal.
5. It was further argued that the order of suspension and framing of charges have been issued on 09.04.2012 when the petitioner was working as Panchayat Executive Officer under Dashigaon Grama Panchayat. It is not correct that the petitioner while working as VLW has committed gross irregularity. While the petitioner was working as Panchayat Executive Officer under Dashigaon Grama Panchayat, he was appointed as Election Officer for the said period. In view of Section-9 of the said Act, superintendence, direction and control of the preparation of electoral roles for conduct of all election of Grama Panchayats shall be vested in the Election Commission and all the officers from the date of notification till declaration of the election result are under the control of the Election Officer and in view of the aforesaid provision the petitioner was working under the State Election Commission as Election Officer and not as VLW. So the entire observation and statement is misleading.
6. It is further argued that while the petitioner working as Panchayat Executive Officer under Junagarh Block he was completely under the control of the Grama Panchayat and neither the State 8 Government nor the Collector has any authority to initiate disciplinary action against the petitioner as per Section-122(3) of the Act, 1964 which has been declared by this Court ultra vires the Constitution. Therefore, the proceeding initiated by opposite party No.2 is illegal. The entire allegation has been made against the petitioner while he was working as Panchayat Executive Officer. As per the decision of this Court, the Secretary who is working under the Grama Panchayat is not holding a Civil Post. The Grama Panchayat is the master of the Secretary and the State Government has no authority at all to take any disciplinary action against the Secretary. After amendment of Section 122, power of superintendence and supervision was vested with the Collector, but in view of the judgment of this Court in the case of Fakir Mohan Vrs. Government, 2008 (II) OLR 530 such amendment has been declared as ultra vires. Subsequently, in case of Nabakishore Mishra Vrs. Collector, Dhenkanal, 2009(I) OLR 1020, it has been observed that the Collector cannot have any control over the services of VLWs posted as Panchayat Executive Officers in the Grama Panchayats. Their services are under the control of Grama Panchayat. Thus, the Collector has no authority to initiate disciplinary proceeding against the petitioner who was working as Panchayat Executive Officer.
7. Mr. Dalai referring to Section 122(2) of the Act, 1964 submitted that VLWs and VAWs working in a district, for the purposes of 9 Sub-section (1), act as Executive Officers within the local area of such Grama or Gramas as may respectively be assigned to them by the Collector. Referring to affidavit of the petitioner dated 26.04.2012, Mr. Dalai submitted that the petitioner was placed under suspension while working as Panchayat Executive Officer under Dashigaon Grama Panchayat. Referring to Notification dated 10th February, 2009 in which (Orissa Act 7 of 2009) the Orissa Grama Panchayats (Amendment) Act, 2008 has been published, Mr. Dalai submitted that as per Section 3 of the said Amended Act, 2008 "subject to the provision of Sub-section (1), the Executive Officer shall function under the control and supervision of the Grama Panchayat." Mr. Dalai further placing reliance on Rule 216(b) of Orissa Grama Panchayat Rules, 1968 submitted that Grama Panchayat may suspend the petitioner from office of the Secretary of the Grama Sasan pending disposal of the proceedings against him or if he has been detained in prison during trial, under the provisions of any law for the time being in force. It was submitted that in any event, Collector has no power to initiate proceeding and suspend the petitioner.
8. Mr. Somanath Mishra, learned Additional Government Advocate appearing for opposite party-State Authorities submitted that law is well-settled that authority competent to appoint a public servant would be entitled to suspend him during pendency of the departmental enquiry. In the instant case, the petitioner while working as Grama 10 Panchayat Secretary has been promoted to the post of VLW temporarily, which is a Civil Post. The suspension order has been passed against the petitioner, who has been posted as VLW, which has been issued by the order of the Collector, Kalahandi. According to Mr.Mishra, post of VLW is a Civil Post. Therefore, the Collector is competent to place the petitioner under suspension. Mr.Mishra submitted that the two judgments relied upon by learned counsel for the petitioner are not applicable in case of VLW. The petitioner was appointed as Grama Panchayat Secretary and duly approved by the District Panchayat Officer. During the year 2004 further recruitment of G.P. Secretary was stopped vide letter No.16017 dated 18.10.2004 of Panchayatiraj Department, Odisha, Bhubaneswar. Therefore, vide Resolution No.47214 dated 11.12.2008 of P.R. Department, Government of Odisha framed Rules for promotion of G.P. Secretary to the post of VLW. Accordingly, the petitioner was promoted to the post of VLW vide letter No.760/GP dated 26.06.2009 of Collector, Kalahandi. Petitioner while working as VLW his services was placed under Election Commission and he was discharging duties as Election Officer of Rajpur Grama Panchayat. During discharge of his duties as Election Officer, he committed grave irregularity in election work. Hence, he was placed under suspension. Charges framed against the petitioner are not at belated stage. Clarification was sought for from the State Election Commission, Odisha and the Commission has instructed to deal 11 with the matter as per provision under Section 26 of the Act, 1964 and initiate disciplinary proceeding against the designated Election Officer vide letter No.3678/SEC dated 01.03.2012 (Annexure-D/2 to the counter) and according to such instruction, the petitioner has been placed under suspension and also draft charges framed against him under Rule-15 of O.C.S. (CCA) Rules, 1962. The period of charges is relating to General Election to P.R.Is., 2012. Therefore, the charges framed against the petitioner are not defective.
9. As per the provisions of Section 11(a)(i) of the Act, 1964 no member of a Gram Sasan shall be eligible to stand for election as a Sarapanch if he is a candidate for election as a Member of the Grama Panchayat in respect of any Ward. Petitioner is a responsible Government servant who neglected in government duty and suppressed the fact while discharging the duty of Election Officer of Rajpur Grama Panchayat. Therefore, he has rightly been placed under suspension. The post of Grama Panchayat Secretary is not a civil post as per the provision of Rules 4 and 8 of Odisha Village Level Workers (Recruitment and Conditions of Service) Rules, 2008 read with Resolution No.4947/PR dated 07.04.2009. The District Level Selection Committee have selected 97 numbers of eligible G.P. Secretary for promotion to the rank of VLWs which is a civil post wherein the petitioner as G.P. Secretary has been selected and promoted to the rank of VLW vide Sl. No.62 of Order 12 No.760/G.P. dated 26.06.2009 of the Collector, Kalahandi. Therefore, his services is under the control of Collector, Kalahandi. The petitioner has been appointed as VLW by the Collector, Kalahandi and is continuing as such and during Panchayat election he was assigned duty of VLW-cum- Panchayat Executive Officer of Dasigaon Grama Panchayat. Panchayat Executive Officer is not a separate post. It is only a responsibility bestowed with some duties like recording of proceeding of Grama Panchayat, maintenance of cash book etc. The same VLW is discharging the duties as Panchayat Executive Officer. The petitioner-VLW was appointed as Election Officer of Rajpur Grama Panchayat by the B.D.O.- cum-Election Officer, Junagarh Block. Though the Panchayat Election is controlled by the State Election Commission, Odisha, the Collector and the B.D.O. are the supervising authorities under the State Election Commission and the petitioner was appointed to function as Election Officer for the limited purpose of receiving, scrutinizing the nomination papers for the office of the Ward Member and Sarapanch of Rajpur Grama Panchayat. The Panchayat Election Officer is not a separate post. It is only a responsibility with some duties to be discharged with. In the instant case, some duties are being discharged by the VLW, i.e, the petitioner. Therefore, the contention raised that the proceeding instituted against the petitioner while working as Panchayat Election Officer is misleading since the PEO is not a separate post. The petitioner as a VLW 13 has been entrusted with some responsibilities of PEO, and Collector being the appointing authority of VLW, the VLW is working under the direct control of Collector while discharging duties as PEO. The Collector has rightly exercised power as per Rule-12 of O.C.S.(CCA) Rules, 1962. Referring to Section 122(3) of the Act, 1964, it was submitted that PEO is not a separate post but a designation having some responsibility. Mandate of provisions of Section 122(1) and (2) is very much in force.
10. On the rival contentions, the following questions fall for consideration by this Court:
(i) Whether the Collector, Kalahandi is the competent authority to initiate the disciplinary action against the petitioner, who was appointed and functioned as VLW of Dashigaon Grama Panchayat in the year 2009 for the alleged irregularity committed by him, which amounts to gross mis-conduct while appointed as designated Election Officer for the purpose of issue, receipt, scrutiny of nomination paper for the posts of Sarpanch and Ward Member of Rajpur G.P.?
(ii) Whether the order of suspension dated 09.04.2012 passed by the Collector, Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962 and article of charges framed by the Collector, Kalahandi as Disciplinary Authority vide order dated 09.04.2012 in D.P. Case No.111 under Rule-15 of OCS (CCA) Rules, 1962 14 and Orissa Grama Panchayat Act, 1964 are sustainable in law ?
11. Since both the questions are interlinked, they are dealt with together.
12. Facts which are not in dispute are that initially the petitioner was appointed as Grama Panchayat Secretary and such appointment was duly approved by the District Panchayat Officer. During the year 2004, further recruitment of G.P. Secretary was stopped vide letter No.16017 dated 18.10.2004 of Panchayatiraj Department, Odisha, Bhubaneswar. Therefore, vide Resolution No.47214 dated 11.12.2008 of P.R. Department Government of Odisha framed Rules for promotion of G.P. Secretary to the post of VLW. Accordingly, the petitioner was promoted to the post of VLW vide letter No.760/GP dated 26.06.2009 of the Collector, Kalahandi. While the petitioner was working as Grama Panchayat Executive Officer under Dashigaon Grama Panchayat, on 05.01.2011, he was appointed as Election Officer for Rajpur G.P. by the B.D.O.-cum-Election Officer, Junagada. As per the programme schedule communicated by the State Election Commission of Odisha, the petitioner was directed to accept nomination paper for the Office of Sarapanch and Ward Member of Rajpur G.P. from 07.01.2011 to 12.01.2012. It has been alleged that the petitioner during the aforesaid period has acted in a very careless manner and committed gross error in 15 contravention of the Election Rules of the State for which the aforesaid order of suspension has been passed and article of charges has been framed by the Collector, Kalahandi. The sole contention of the petitioner is that the Collector, Kalahandi, has no jurisdiction to take disciplinary action against the petitioner for which the order of suspension and framing of charges are not sustainable in law. According to the petitioner, since the petitioner is working under the Grama Panchayat, the Grama Panchayat has the jurisdiction to initiate disciplinary action, if any, irregularity has been committed.
13. This Court in the case of Fakirmohan Das and others vs. Government of Orissa and others, 2008 (II) OLR 530, held that Section 122(3) of the G.P. Act which provides that subject to general superintendence and overall control of the Grama Panchayats, the Executive Officer shall function under the control and supervision of the Director, Collector and District Panchayat Officers are ultra vires the Constitution and the Collector cannot have any control over the service of VLW/VLWs posted as Executive Officer in Grama Panchayats. Relevant portion of the said judgment is reproduced below:
"15. Pre-amended Section 123 mentioned about the power, duties and function of the Secretaries. After the amendment, the impugned Section 122 provides that there shall be an Executive Officer for every Grama Sasan and their duties have been described therein. It has also been stated in Sub- section (2) that V.L.Ws. and V.A.Ws. working in a district shall be the Executive Officer within the 16 local area of such Grama or Grama Panchayat as would be assigned to them by the Collector. In Sub- section (3) thereof, it has been provided that subject to the general superintendence and over all control of the Grama Panchayats, the Executive Officers shall function under the control and supervision of the Director, Collector and District Panchayat Officers. Though generally petitioners challenge each of the aspects relating to bringing into the system, the Executive Officers, but they specifically attack this Sub-section (3) calling it guillotining of self- governance.
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17. When the matter stands thus, the criticism by the petitioners on Sub-section (3) of Section 122 still remains to be considered. Answer of the State Government on the aforesaid point is flimsy. According to the counter affidavit of the opposite parties-State, the workload in the Panchayats has increased and still likely to increase many fold in view of different development schemes introduced by both the Central Government and the State Government and huge flow of money for development and therefore, additional staffs are necessary to cope with that pressure of work and to properly monitor and utilize of the funds allocated and allotted. This part of the logic of the State also run consistent with the provision of law and the competency of the State to create post and to assign/entrust work on the new employees of the Panchayats. But the further logic of the State that the V.A.Ws. and V.L.Ws. remaining in the duel charge are to remain under the specific control and supervision of Director, Collectors and District Panchayat Officers, as stated above is unacceptable, inasmuch as, if the Executive Officers of the Panchayats who have been bestowed with all responsibilities relating to maintenance of records, registers and cash be kept under the control of bureaucrats relating to their service conditions and function, then the Panchayats cannot function within independence and that is how that would interfere with the constitutional mandate of self- government. For the reasons assigned by the State, 17 if V.A.Ws and V.L.Ws. are to function as Executive Officers, then their duties and responsibilities with respect to the duties in the Panchayat and their respective services should be within the control of the Grama Panchayats, or else the Grama Panchayats may suffer for any indiscipline or refusal or negligence to carry out the lawful order of the Sarpanch or Panchayat, as the case may be. Apart from that their may be clash of priority to carry out specific orders issued by the two authorities (Panchayat and State).
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19. For the aforesaid reasons, we dispose of these writ petitions with the conclusion that the provisions in Section 122(3) of the Act ultra vires the Constitution and in view of that the amended provision in Sections 122 and 123 of the Act relating to appointment and functioning of the Executive Officers cannot be done validly and legally. As a consequence thereof, the Circulars at Annexures-1 and 3 are also quashed.
14. Apart from the above, Orissa Act 7 of 2009, the Orissa Grama Panchayats (Amendment) Act, 2008 published in Notification dated 10th February, 2009 of the Orissa Gazettee amended sub-section(3) of Section 122 to the effect that "subject to the provision of Sub-section (1), the Executive Officer shall function under the control and supervision of the Grama Panchayat."
15. This Court in the case of Naba Kishore Mishra vs. Collector, Dhenkanal and two others, 2009(I) OLR 1020 referring to the judgment of this Court in the case of Fakirmohan Das and others (supra), quashed the order of suspension issued by the Collector, 18 Dhenkanal holding that the Collector has no jurisdiction to suspend the Executive Officer of Bangurusingh Grama Panchayat.
16. In view of the above judgment of this Court in the case of Fakirmohan Das and others (supra) and amendment of sub-section (3) of Section 122 of the Orissa Grama Panchayats Act by Orissa Grama Panchayats (Amendment) Act, 2008 published in the Notification dated 10th February, 2009 of Orissa Gazette, this Court is of the view that the order of suspension dated 09.04.2012 passed by the Collector, Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962 and article of charges framed by the Collector, Kalahandi vide order dated 09.04.2012 in D.P. Case No.111 under Rule-15 of OCS (CCA) Rules, 1962 and Orissa Grama Panchayat Act, 1964 issued are wholly without jurisdiction and accordingly, they are quashed.
17. Before parting with the judgment, it is felt necessary to observe that while the petitioner was appointed as Election Officer for Rajpur G.P. by the B.D.O.-cum-Election Officer, Junagarh as per the programme schedule communicated by the State Election Commission, Odisha, it is alleged that he during the aforesaid period has acted in a very careless manner and committed gross error in contravention of the Election Rules of the State. As held above, the Executive Officer functions under the control and supervision of the Grama Panchayat. Apart from that Sub-section (4) of Section 27 of the G.P. Act provides that the 19 Election Officers, Presiding Officers and other officers appointed or designated for the time being for the conduct of elections under the Grama Panchayat Act shall be deemed to be on deputation to the Election Commission for the period commencing on the date of the notification calling for such election and ending with the date of declaration of the results of such election and, accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission.
9. Therefore, it is open to the competent authority to initiate disciplinary action against the petitioner for the alleged irregularity and mis-conduct committed by him in accordance with law.
18. In the result, the writ petition is allowed with the aforesaid observation.
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B.N.Mahapatra, J Orissa High Court, Cuttack Dated 23rd November, 2012/ss/skj