The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 21284 of 2024 Smt.Mamali Samal …. Petitioner Mr. Pradeep Kumar Panda, Advocate -Versus- State of Odisha and others …. Opposite Parties Mr. P.K.Mohanty, ASC CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 13.01.2025 Order No. 04. 1.
Legal Reasoning
Heard Mr. Panda, learned counsel for the petitioner and Mr. Mohanty, learned ASC for the State. 2. In fact, Mr. Mohanty, learned ASC for the State requests for an adjournment to consider the citation in Basudev Dandasena Vrs. State of Odisha & others reported in 2010(I) OLR-909 cited by Mr. Panda, learned counsel for the petitioner and to respond. 3. A copy of the above citation is made available to the Court by Mr. Panda, learned counsel for the petitioner and the same is perused. Considering the submission of Mr. Panda, learned counsel for the petitioner and the case law cited above, the Court is inclined to dispose of the matter by the following order. 4. Instant writ petition is filed by the petitioner challenging the impugned decision by order dated 9th August, 2024 of the Government as at Annexure-1 on the grounds stated. 5. Mr. Panda, learned counsel for the petitioner would submit that there is non-compliance of Section 115 of the Odisha Gram Panchayats Act, 1964 (hereinafter referred to as ‘the Act’) as no report was received from the Collector or the Project Director, DRDA before taking action and passing the order of suspension Page 1 of 5 under Annexure-1 against the petitioner. It is further submitted that the impugned order at Annexure-1 is without affording without opportunity of hearing to show cause and hence, the same is liable to be interfered with and set aside with consequential directions issued. In support of such contention, Mr. Panda, learned counsel cited the above case law and submits that the decision to suspend the petitioner cannot be sustained in law for not being in accordance with the provisions of the Act and in particular, Section 115(1) thereof. 6. Mr. Mohanty, learned ASC for the State, on the other hand, justifies the impugned order under Annexure-1 on the ground that the petitioner has been suspended, since she was arrested in connection with a Vigilance case and was judicial custody for more than 48 hours. 7. A reference to the relevant provision may be had and hence, Section 115(1) of the Act is reproduced herein below: “ 115. Suspension and removal of Sarpanch, Naib-Sarpanch and Member :– (1) If 1 (1) If the State Government, on the basis of a report of the Collector or the Project Director, District Rural Development Agency, or suo 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.’’ Page 2 of 5 8. As per the above provision, the Government has a suo motu power to take cognizance of any event before initiating action, such as, suspension and removal of the Sarpanch, Naib- Sarpanch or members for that matter but before any such decision, an opportunity of hearing to be provided to the office bearer concerned followed by an action supported with the reasons. 9. In the instant case, it is claimed that no such opportunity was provided to the petitioner to show cause before the impugned order under Annexure-1 was passed. It is submitted that such decision is not supported by any reasons which is statutory mandate as per the Section 115(1) of the Act. Mr. Mohanty, learned ASC for the State refers to the counter affidavit filed through opposite party No.1 and submits that show cause notice was issued to the petitioner as per Annexure-A/1 thereto and the order of suspension was passed by the Government as per Annexure-1 in contemplation of action. 10. Referring to the rejoinder, Mr. Panda, learned counsel for the petitioner submits that proper opportunity of hearing should have been afforded to after inviting show cause from the petitioner. It is claimed that there was no hearing allowed to the petitioner after the show cause was filed in the rejoinder affidavit. A copy of the said affidavit is claimed not to have been served on the State as per Mr. Mohanty, learned ASC for the State. Upon perusal of the rejoinder affidavit, the Court finds that the challenge is to the action based on the report received from the Vigilance Department and absence of reasons assigned for suspension of the petitioner. Considering the same and in view of the case law cited above, the Court has to reach at a conclusion, whether, there is proper compliance of Section 115(1) of the Act, while taking a decision by the Government under Annexure-1. From the counter affidavit as well as rejoinder of the petitioner, the Court finds that such show cause notice dated 27th October, 2024 was issued long after the Page 3 of 5 order of suspension under Annexure-1. Of course, in contemplation of action as per the Act order of suspension was passed and thereafter, show cause notice has been issued to the petitioner. But on a bare reading of the order of suspension as at Annexure-1, the Court further finds that upon receiving the report from the S.P.(Vigilance), Cuttack Division, Cuttack, the action has been taken. The twin conditions, such as, reasonable opportunity for hearing and decision either suspension or removal to be followed by reasons as mentioned in Section 115(2) of the Act are to be fulfilled. In the decision of this Court in Basudev Dandasena (supra), it has been held that the decision shall have to state the reasons. In the said case, ingredients upon which Sarpanch was removable were simply quoted in the order of suspension and same was considered to be not sufficient compliance of Section 115(1) of the Act. In the case at hand, similarly, no reason has been stated in the order of suspension dated 9th August, 2024. It can therefore be said that the Government did not consider suspension of the petitioner in the manner contemplated under Section 115(1) of the Act as it was required to indicate reasons in Annexure-1. Since the law referred to above squarely applies to the petitioner, the Court reaches at a conclusion that the order of suspension under Annexure-1 shall have to be interfered with for non-application of judicial mind with a direction to the Government to reconsider any such decision as per law with proper reasons assigned therefor. 11. Accordingly, it is ordered. 12. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Annexure-1 is held to be not legally tenable and accordingly, the same is quashed and the matter is remitted back to the Government in Panchayati Raj and D.W. Department to reconsider the question of suspension of the petitioner and if it is so satisfied to keep her under suspension, a fresh order in accordance with the provisions of the Act may be Page 4 of 5 passed and in case, the decision is otherwise, then to pass necessary order allowing the petitioner to resume in duty as the office bearer of the concerned G.P. 13. Urgent certified copy of this order be granted as per rules. 14. A copy of the order be supplied to Mr. Mohanty, learned ASC for the State for its onward intimation to opposite party No.1 for compliance of the orders. (R.K. Pattanaik) Judge kabita Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC,CUTTACK Date: 16-Jan-2025 17:00:24 Page 5 of 5