Kanaklata Mallick vs Collector, Kendrapara and Others

P.K. Mohanty, J.—The petitioner, who is the Sarapanch of Kaopada Gcama Panchayat challenges the order of suspension passed against her by opp. patty No. 1, the Collector, Kendrapara.

The short fact of the catee is that she, was elected as a Sarapanch of Kaopada Grama .Panchayat under Derabis Block on 22-1-1991 White continuing as such, it is alleged that with a vindictive attitude and for political reasons she has been put under suspension on false and motivated allegations by the order of the Collector dated 30-10-2000 on the pressure of the local M. L. A., who belongs to the present Ruling B.J.D. party. It is asserted that it is not the function or duty of a Sarapanch to identify the persons nor any person for distribution of money under O. A. P. W. P. Progtamme and as such, if any person has been wrongly identified, as alleged, no offence is committed by her, calling for an order of suspension is exercise of the powers vested u/s 115 of the Orissa Grama Parichayat Act (hereinafter called ''the Act''). It is further stated that the persons/officers, who have defalcated the old age pension and widow pension are already prosecuted criminally as per the F. I. R. lodged by the Block Development Officer, inasmuch as the records are maintained and distribution of pension is made by the concerned officials and, therefore, she is not involved in the transactions as alleged.

.Opp. parties 1 and 2, have, filed a counter affidavit refuting the allegations made in the writ petition. It is stated that the petitioner has been suspended basing on the enquiry report of the Sub-Collector, Kendrapara. as required under sec-tion 115(1) of the Act, On receipt of allegations of fradjulent identification of persons as beneficiaries pf old age and widow pension of persons who are already dead against the petitioner filed by Laxmidbar Mohanty and others, opp. party No. 1 directed the Sub-Collector in D. O. letter dated 19-8-2000 to conduct an enquiry about the allegations levelled against the petitioner-Sarpanch. The enquiry report submitted by the Sub-collector, Kendrapara has been annexed as Annexure-2 to the countet affidavit. The opp. parties have taken the positive stand that it was the duty of the Sarapanch to present and to identify the person for distribution of money under old age pension and widow pension programme. The Government in Social Welfare Department in their letter No/ 4125SPR dated 29-3-1993 have issued instruction to all the Block Development Officers with regard to the system of distribution of old age pension and widow pension. It has been instructed in the letter that the respective Sarapanch or Member of Pahchayat Samiti of Vice-Chairman of Panchayat Samiti have been requested to be prescheat the time of disbursement to identify the beneficiaries. The Block Development Officer, Derabis requested the petitioned Sarapanch and the Secretary of the concerned Grama Panchayat at different points of time for identification of the beneficiaries at the time of disbursement of the pension. Since the Sarapanch is the people''s representative at the gross-root level, she is only competent to identify the persons. On enquiry, the Sub-Collector found that the amount towards old age pension and widow pension has been paid in the name of dead persons long after their death on the basis of the identification made by the petitioner and as such, was fully responsible for the misappropriation along with and in connivance with others. After receipt of the enquiry report from the Sub-Collector, on consideration and in view of the nature of allegations, the petitioner was put under suspension in accordance with Section 115 (1) of the Act. It is further alleged in the counter affidavit that the petitioner after coming to know about the enquiry, she and her husband gaining over the watchman of Derabis Block tried to set fire the concerned file and damaged the evidence of false identification made by the petitioner under her signature in the Acquinttance Register. The matter was enquired into by the police, which prima facie reveals involvement of the petitioner''s husband and as such he has been arrested in G. R. Case No. 708 of 2000, inasmuch as the night-watchman made a confession before the Enquiring Officer to that effect. It is further averred that on the basis of the F. I. R. lodged by the Block Development Officer, Criminal prosecution has been started against the petitioner and is pending investigation. It is submitted that in view of the aforesaid conduct of the petitioner and the enquiry report of the Sub-Collector, the Collector being satisfied that the continuance of the petitioner as the Sarapanch is detrimental to the interest of the Grama Panchayat has passed the order of suspension and no illegality is committed thereby.

The intervenors-opp, parties 5 to 12 have also filed a counter affidavit. These opp. parties support the order of suspension and have stated that in view of the order of suspension, the Naib Sarapanch had already taken over charge. These opp. parties in paragraph-9 of their counter affidavit have given the detailed description of the name of the deceased persons, the village and date of their death and stated that; the petitioner had falsely identified, other persons to be the said persons knowing fully well of their death by signing in the Acquittance Register with a mala fide intention of misappropriating the public money and thereby depriving other, eligible and deserving persons to get the benefit. These intetvenpr-opp. parties having come to know, of the fraudulent act, made a complaint before the Collector and the Collector on enquiry having found the allegations to be true and on being satisfied that the further continuance of the Sarapanch in the post would not be in the interest of the Panchayat, has rightly passed the order of suspension.

Sti Ashok Mohapat ra, learned counsel for the petitioner strenuously argues that the order of suspension is ex facie illegal, inasmuch as no enquiry was conducted as contemplated u/s 115(1) of the Act, inasmuch as there was no mater-rials before the Collector to come to a conclusion that the petitioner in fact had, falsely identified any person, It is his submission that law is well settled that before passing, an order of suspension u/s 115(1) (of the Act, the Collector, ought to have kept in mind that the petitioner was holding an elected post of Sarapanch and has a vested right to continue as such and unless grave and serious, allegations ate made and proved no suspension order ought to have been passed. The learned counsel has further submitted that since it is none of the business of the petitioner-Sarapanch to identify a person/beneficiary for payment of pension as alleged, if any irregularity or illegality has been committed in that process, she cannot be penalised. It is submitted that the Collector, Kendrapara has failed to exercise jurisdiction u/s 115(1) of the Act in passing the order of suspension and the power cannot be to override the express provision. The learned counsel has referred to the decision in Baikuntha Nath Mohanty v. State of Orissa 1987 (II) O. L. R. 391 to contend that there being no report of the Sub-Collector or enquiry or inspection by the Collector, the power could not be exercised. A reference has also been made to the case of Krutibash Rout v. Collector, Cultack and Anr. 32 (1990) O. L. R. 106 (Civil), Pradeep Kumar Karji Vs. Collector and Others, and in Smt. Sukanta Bhoi v. State of Orissa and Ors. : 1999 (II) O. L. R. 264 to contend that the Collector is to be satisfied about the delinquency and the delinquency must be wilful in order that a suspension can be sustained. The decisions are of no assistance to the petitioner. Since the present case is distinguishable on facts, which shall be discussed later.

The learned counsel further submits that neither the report of the Sub-Collector on 9-9-2000 nor the order of the Collector dated 12-9-2000 has been referred to in the order of suspension dated 13-10-2000, a copy whereof is Annexure-1, inasmuch as since the duty is of the Block Development Officer and Sub-Collector to disburse the old age, widow and laprocy pension, the petitioner as Sarapanch cannot be held liable on the alleged identification of dead persons. The report of the Sub-Collector reveals the details of the findings on the allegation that the petitioner bad identified dead persons as beneficiary of the pension and on such identification pension amount has been disbursed to such fake persons. However, that will be discussed, later.

Law is well-settled that there must be an existing circumstance for satisfaction of the Collector and the Collector must form an opinion that the circumstances exist to show that the Sarapanch wilfully omits or refuses to carry out or violates the provisions of the Act or Rules or the orders or directions 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 further continuance of such person in office would be detrimental to the interest of the Grama Panchayat or inhabitants of the Grama and only when he would be satisfied about the aforesaid circumstances and forms his opinion as above, he may pass an order suspending the elected Sarapanch u/s 115(1) of the Act. The circumstances and the opinion must be obtained on an enquiry or inspection made by him or on the report of the Sub-Divisional Officer now redesignated as Sub-Collector. Ail these requirements as laid down u/s 115(1) of the Orissa Gtama Panchayat Act are to be available for exercise of such a drastic action in suspending an elected representative, inasmuch as every delinquency ot act is not sufficient to satisfy the requirement. Let me discuss the materials on record to find, whether the requirements of law, are complied with by the Collector while passing the impugned order.

The order of suspension under Annexure-1 indicates that the petitioner was suspended on the ground that she was involved in misappropriating public money by making false identification of dead persons as beneficiaries under old age pension and widow pension in the Grama Panchayat. The report of the Sub-Collector, Kendrapara on the basis of which the impugned order has been passed has been annexed as Annex-ure-A/2. It appears from the report that the Sub-Collector on the basis of the allegations received, visited the concerned villages, verified the old age/widow pension Register of the Block, examined certain officials and members of the public, he verified the Register of death maintained at Derabis P. H. C. and found that five peasons namely, Rajani Bewa, Kailash Nath, Sundari Bewa and Bisi Stithey who are shown to have received old age/widow pension as per the acquaintance Roll were dead long before and their deaths have been registered in the Death Register maintained by the Primary Health Centre. Even though the death of Kanduri Behera was not registered it was ascertained from the enquiry that he died sometimes in August, 1998. The Sub-Collector further found that in the acquaintance Roll, the petitioner had signed having identified the aforesaid persons as beneficiaries who were dead. The report further reveals that some of the records were not available since it was partially burnt and have been seized by the Investigating Officer. But however, he found that the amount has been paid in the names of the dead persons long after their death and acknowledgement is available as T. I. and, therefore, the aforesaid money was misappropriated. Undisputedly, a criminal case is under investigation. The contention of the learned counsel that the petitioner being not obliged under law to identify, if some illegality or mistake has been committed she cannot be made responsible for such act entailing suspension, has to be rejected, in view of the serious nature of allegations as against the petitioner who is a public representative. Prima facie materials have been found from records, inasmuch as the Acquaintance Roll which carries the signature of the petitioner in token of the identification of the persons, who are dead is a serious matter, from which a reasonable opinion can be formed that the Sarapanch had abused the powers, rights and privileges vested in her and by identifying some dead persons for the purpose of obtaining the pensions meant for the deserving cases would be detrimental to the interest of the Grama Panchayat or inhabitants of the Grama.

In sucb view of the matter, if the Collector has exercised his power u/s 115(1) of the Act, it cannot be faulted. Under Sub-section (2) of Section 115, the State Government on the report of the Collector under Sub-section (1) are of the opinion that the circumstances specified in the said Sub-section exists in relation to a Sarapanch, it may after giving the person concerned a reasonable opportunity of showing cause remove him from the office of the Sarapanch, inasmuch as under Sub-section (3-a), the State Government is alsovested with the power during the pendency of the proceeding before them under Sub-section (2) to revoke the order of suspension parsed under Sub-section (1).

In any view of the matter, I find no illegality or infirmity in the order passed by the Collector suspending the petitioner in view of the serious nature of allegations and the report of the Sub-Collector and, therefore, there is no reason to interfere in the order in the present writ application.

The writ application is, therefore, dismissed. In the facts and circumstances of the case, there shall be no order as to costs.

Writ application dismissed.