Sunita Nayak vs State Of Odisha And Others

D. Dash, J

The petitioner, by filing this writ application, has prayed for quashment of an order dated 26.09.2019 of the Government in the Department of

Panchayati Raj and Drinking Water under Annexure-5 as to the suspension of the petitioner, who is the elected Sarpanch of Kalyanpur Grama

Panchayat under Binjharpur Block in the district of Jajpur.

By the said order, proceeding has been initiated against the petitioner for his removal from the office of Sarpanch for alleged willful violation of the

provisions of section 19 of Odisha Grama Panchayat Act, 1964 (hereinafter called as “the OGP Actâ€) and acting in a manner prejudicial to the

interest of the Grama as such her continuance in the office as detrimental to the interest of the inhabitants of the Grama Panchayat. In view of that,

the petitioner has been called upon to to explain the charges with their factual settings as annexed to the said order within thirty days of receipt of the

same as to why action as deemed proper under sub-section 1 of section 115 of the O.G.P. Act shall not be taken against her. The charge against the

petitioner is that her husband have presided over the Grama Panchayat meetings several times, in her absence.

While issuing the notice for the purpose of exercising the power under sub-section 1 of section 115 of the OGP Act, the petitioner, who is the

elected Sarpanch of Kalyanpur Grama Panchayat has been placed under suspension in exercise of power under sub-section 2 of section 115 of the

O.G.P. Act. This order of suspension is specifically under challenge in this writ application.

Brief facts necessary for the purpose are as under:-

The petitioner being the elected Sarpanch of Kalyanpur Grama Panchayat had been in the office and discharging her duty as such since her

assumption of the charge of the office after election.

When the matter was continuing as such, the Grama Panchayat Officer, Opposite Party No. 5, by his letter no. 1016 dated 5.8.2019 under the

subject “Notice for allowing unwanted person inside the GP Meeting held on 30.07.2019â€; called for an explanation from the petitioner as to why

action under sub-section 1 of section 115 of the O.G.P. Act shall not be taken for her act in allowing such unwanted person during the Grama

Panchayat meeting. The letter as finds mention therein is based upon the allegation that in course of Grama Panchayat meeting on 30.07.2019, the

petitioner's husband had gone to the place where meeting of the Grama Panchayat was going on. There he had vomited some untoward/unpleasant

remarks against the Government as well as Chief Minister for which the members present in the meeting raised their protest and opposing his entry,

expressed displeasure over such remarks given by the petitioner's husband and had requested her to take appropriate step as provided in law in the

matter.

The petitioner, having received the above letter under Annexure-1, submitted her explanation on 8.8.2019. It is stated that on 30.07.2019, all the

Ward Members were present in the meeting presided over by her and it was also so attended by the G.R.S., Pratima Behera and no such situation

had at all taken place during the meeting. The facts alleged in the notice are stated to be false. The petitioner has asked the Opposite Party No. 5 to

make a field enquiry in ascertaining the truth behind such allegations. The allegations to the effect of appearance of the husband of the petitioner in the

Grama Panchayat meeting and making of unwanted remarks against the Government and Chief Minister have been flatly denied as blatant lies. In

support of the same, it has been further stated that 13 to 14 members having been confronted with such allegations; they have expressed that no such

incident had ever taken place on 30.07.2019 in further stating that their signatures taken on some blank papers have been used in creating that letter

addressed to Opposite Party No. 5 by manipulation so as to serve the ulterior goal of removing the petitioner who is the elected Sarpanch as she does

not have the affiliation to the political party presently ruling the State.

The opposite party no. 4 in the counter has stated that before interim order having been passed on 04.10.2019, the order of suspension dated

26.09.2019 under Annexurer-5 had been communicated to the petitioner with an instruction to her to handover the charge of the office on 27.09.2019

as at Annexure-A/4 which she failed to do. It is further stated that due to urgency, the Naib Sarpanch has already taken charge of the office of

Sarpanch and has been acting as such since 30.09.2019, also has convened meeting of the Grama Sabha on 02.10.2019 and thereafter. This is all the

counter of said opposite party no. 4.

Placing the order under Annexure-5, learned counsel for the petitioner submitted that the action as to the suspension of the petitioner, the elected

Sarpanch of the Kalyanpur Grama Panchayat, in exercise of power under sub-section 2 of Section 115 of the Act as has been taken, is not sustainable

in the eye of law. It was submitted that no such reason has at all been given in the order as to the immediate need of suspension of the petitioner

pending the proceeding for her removal from the office and the statements in a general manner that the petitioner has willfully violated the provisions

of section 19 of the O.G.P. Act and acted in a manner prejudicial to the interest of the Grama are not enough to support and say that it has been done

in consonance with the law as embodied in sub-section 2 of section 115 of the Act in its letter and spirit. He submitted that the order of suspension is

vague and has been so perused without arriving at a satisfaction as to the prerequisite requirements as mandated in law. He submitted that the charge

is vague and the order of suspension is motivated only with a view to oust the elected Sarpanch i.e. the petitioner since she is not a member of the

ruling political party in the State. He further submitted that the order of suspension is the outcome of total non-application of mind.

Ms. Savitri Ratho, learned Additional Government Advocate submitted all in favour of the suspension of the petitioner as at Annexure-5. It was

her submission that pending enquiry into the allegations for taking action under sub-section 1 of section 115 of the O.G.P. Act, the Government having

exercised the power under sub-section 2 of said section, there remains very limited scope for the court to interfere with the same. She further

submitted that the conduct of the petitioner in allowing her husband to preside over the meetings of the Grama Panchayat and thereby creating a

platform for him to discharge the duty as Sarpanch of the Grama Panchayat certainly amounts to willful violation of provisions of section 19 of the

O.G.P. Act and the inaction on the part of the petitioner in preventing the situation right from the beginning and her silence on that is prejudicial to the

interest of Grama. It was thus submitted that the order of suspension as under Annexure-5 is not liable to be interfered with in exercise of extra

ordinary writ jurisdiction pending the proceeding against the petitioner for her removal from the office.

Before going to address the rival submission, first of all, it is profitable to take note of the provision of section 115 of the O.G.P. Act which

governs the field. It reads as under:â€

“115. Suspension and removal of Sarpanch, Naib-Sarpanch and member:-

(1) If the State Government, on the basis of a report of the Collector or the Project Director, District Rural Development Agency, ors uo motu are of

the opinion that circumstances exist to show that the Sarpanch or Naib Sarpanch of a Grama Panchayat wilfully omits or refuses to carry out or

violates the provisions of this Act or the rules or orders made thereunder 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 the further continuance of such person in office would be detrimental to the interest

of the Grama Panchayat or the inhabitants of the Grama, they may after giving the person concerned a reasonable opportunity of showing cause,

remove him from the office of Sarpanch or Naib-Sarpanch, as the case may be;

(2) The State Government may, pending initiation of the proceeding on the basis of their opinion under Subsection (1), by order, for reasons to be

recorded in writing, suspend the Sarpanch or Naib-Sarpanch, as the case may be, from the office;

(3) The State Government, at any time during the pendency of proceeding under Sub-section (1), revoke the order of suspension of a Sarpanch or

Naib-Sarpanch passed under Sub-section (2);

(4) A Sarpanch or Naib-Sarpanch on removal from office under Subsection (1) shall also cease to be a member of the Grama Panchayat, and such

person shall not be eligible for election as member for a period not exceeding four years as the State Government may specify;

(5) The provisions of this section shall, so far as may be, apply in respect of any member of the Grama Panchayat not being a Sarpanch or Naib-

Sarpanch; provided that no such member shall be liable to be placed under suspension under the said provisions;

(6)(a) Whenever the Collector is of the opinion that the Sarpanch of a Grama Panchayat has failed in convening any meeting of the Grama Panchayat

within a period of three continuous months he may, after making such enquiry as he deems fit, by order, remove the Sarpanch from Office and may

also declare him not to be eligible for election as member for a period not exceeding one year as he may specify in his order, and on such order being

made the Sarpanch shall cease to be a member of the Grama Panchayat.

(b) Nothing contained in the preceding sub-sections snail apply in respect of a default as specified above.â€​

The scheme of section 115 of the OGP Act shows that the State Government on the basis of a report of the Collector or Project Director, District

Rural Development Agencies or sou-moto when is of the opinion that the circumstances exists to show that the Sarpanch or Naib Sarpanch of a Gram

Panchayat has willfully omitted or refused to carry out or violated the provision of the Act or rules or orders made thereunder or acted in a manner

prejudicial to Grama and that further continuance of such person in office would be detrimental to the interest of the inhabitants of the Grama, said

person can be removed from the office of Sarpanch or Naib Sarpanch as the case may be, after giving a reasonable opportunity of showing cause in

having his say in the matter.

Sub-section 2 of section 115 of the OGP Act empowers the State Government on the basis of an opinion as stated above, to put said Sarpanch

under suspension pending initiation of the proceeding by an order, recording the reasons to that effect in writing.

It has been held in case of Tarini Tripathy v. Collector, Koraput; 62 (1986) CLT 548, that suspension of an elected representative is indeed a

drastic action and should not be taken recourse to cursorily and in a mechanical manner. Therefore, in order to exercise the power of suspension of an

elected representative, the legislature has provided the safeguards against arbitrary exercise as indicated in section 115 of the OGP Act.

All the three requirements as stated in sub-section (1) of section 115 of the OGP Act are cumulative. Absence of any one of three would vitiate

the suspension. The opinion on both the counts i.e. (i) the satisfaction as to the willful omission or refusal to carry out or violation of the provisions of

the Act or the rules and regulations made thereunder or exercise of powers, rights and privileges so vested or action in a manner prejudicial to the

Grama Panchayat; and (ii) satisfaction that further continuance in office would be detrimental to the interest of the inhabitants of the Grama are

required to be formed. Existence of only one is not sufficient for the purpose.

It has been said further that while thus bringing the tenure of an elected representative to an end either temporary or prematurely, utmost care and

circumspection ought to the exercised the right of an elected representative to continue in office for full tenure should not be lightly tinkered with.

In case of Ch. Srinivas v. State; 1987 (II) OLR 407, the decision of the Apex Court in case ofB arjum Chemical Ltd. v. Company Law

Board; AIR 1967 SC 295 having been referred to; it has been said that since existence of circumstances is a condition fundamental on the making of

an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances

exist giving no clue to what they are because the circumstances must be such as to lead to “conclusions of certain definitenessâ€. At this stage, it

is felt apposite to place the order dated 26.09.2019 under Annexure-5:â€

“Government of Odisha,

Panchayati Raj & Drinking

Water Department

ORDER

No. 17080/PR & DW, date 26. Sept. 2019

PR-PADM-MISC-0025-2019

Whereas, it appears from the report of the Collector, Jajpur that Smt. Sunita Nayak, Sarpanch of Kalyanpur Grama Panchayat under Binjharpur Block

has willfully violated the provisions of Rule-1 (annexure) Rule of Business of OGP Rules 2014 and willfully violated the provisions under Section 19 of

Odisha Grama Panchayat Act, 1964 (Odisha Act, 1 of 1965) and acted in a manner which are prejudicial to the interest of the Grama and as such him

further continuance as Sarpanch of Kalyanpur Grama Panchayat is detrimental to the interest of the inhabitants of the said Grama Panchayat.

Now, therefore, exercise of the powers conferred by Sub-section -(2) of Section 115 of the said Act, Government have been pleased to place Smt.

Sunita Nayak, Sarpanch of Kalyanpur Grama Panchayat under suspension with immediate effect.

Further, in pursuance of Sub-section (1) of Section 115 of the said Act, Smt. Sunita Nayak, Sarpanch of Kalyanpur Grama Panchayat is hereby called

upon to explain on the charges annexed to this order at annexure-A within 30 days from the date of receipt of this order as to why action as deemed

proper shall not be taken against her in accordance with law.

If no explanation is received from her within the stipulated period, it will be presumed that she has nothing to explain and the matter will decided

exparte.

She may also state, if she desires to be heard in person.

By order of the Governor

Sd/-

Addl. Secretary to

Government.â€​

A plain reading being given to the above order, it appears that based on the report that the petitioner has wilfully violated the provision of section

19 of the OGP Act, it is said that the petitioner has violated the provision of section 19 of the OGP Act and her acting in a manner which is prejudicial

to the interest of the Grama and as such her further contention as Sarpanch of Kalyanpur Grama Panchayat is detrimental to the interest of the

inhabitants of the said Grama Panchayat. But, there is no such note as to any such opinion to have been formed based upon the said report as to the

existence of circumstances in the direction of willful violation of the provision of section 19 of the Act and the action in a manner prejudicial to the

interest of the Grama in saying that the continuation of the petitioner as the Sarpanch is detrimental to the interest of the inhabitants of the Grama

Panchayat. Furthermore, no reason has also been assigned. Therefore, the order of suspension of the petitioner who is the Sarpanch of Kalyanpur

Gram Panchayat as under Annexure-1 cannot be sustained in the eye of law.

In the result, the order of suspension dated 26.09.2019 passed by the Government under Annexure-5 is hereby quashed and it is directed that the

petitioner-Sarpanch be given charge of all the relevant papers of Kalyanpur Gram Panchayat forthwith. The writ application is accordingly, allowed.

No order as to costs.