The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.26143 of 2024 Ishwar Kalet …. Petitioner Mr. S. S. Tripathy, Advocate -Versus- State of Odisha and others …. Opposite parties Mr. U.K. Sahoo, ASC CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 28.10.2024 Order No. 01. 1.
Legal Reasoning
Heard learned counsel for the petitioner and Mr. Sahoo, learned ASC for the State-opposite parties. 2. Instant writ petition is filed by the petitioner challenging the legality and judicial propriety of the order of suspension dated 9th August, 2024 under Annexure-1 and consequential decision vide Annexure-5 directing Naib-Sarpanch to remain in charge on the grounds stated, the same being illegal, arbitrary and contrary to the settled principles of law, hence, liable to be interfered with and set aside with a further direction of his reinstatement as Sarpanch of Halupali Gram Panchayat, Bhatli Block in the district of Bargarh. 3. Learned counsel for the petitioner submits that the petitioner is an elected representative and he has been placed under suspension by order under Annexure-1 in exercise of power under Section of 115 (1) of the Odisha, Gram Panchayat Act, 1964 (hereinafter referred to as ‘the Act’) and the same is illegal as he has not been named in the FIR i.e. Annexure-2 with respect to an incident having taken place beyond the jurisdiction of the GP. It is further submitted that the petitioner is in no way involved in the Page 1 of 5 alleged incident though he was arrested recently by the local police later to which the order of suspension i.e. Annexure-1 was passed, which is not legally tenable. While advancing such an argument, learned counsel for the petitioner relies on the following decisions, such as, Tarini Tripathy Vrs. Collector and others 62 (1986) CLT 548 and Rajiv Kumar Parida Vrs. State of Odisha and others 2020 (12) ILR Cuttack 321. It is further to contended that such exercise of power in terms of Section 115(1) of the Act should be sparingly exercised being a drastic action placing an elected representative under suspension. 4. Recorded the submission of Mr. Sahoo, learned ASC for the State, who justifies the impugned order under Annexure-1 for the alleged involvement of the petitioner in a criminal case for which FIR dated 14th March, 2022 was lodged leading to the registration of Bargarh PS Case No.133 dated 14th March, 2022. 5. The contention of learned counsel for the petitioner is that the incident is of the year, 2022 for which the FIR was lodged and in that connection, the petitioner has been arrested on 16th August, 2024. It is claimed that the petitioner is not involved at all but then he shown to be implicated, subsequent to which, the impugned order under Annexure-1 was passed placing him under suspension. 6. The ground of challenge is that without proper enquiry in that respect and providing an opportunity to the petitioner to show cause, such a decision to place him under suspension taking exercising power under Section 115(1) of the Act is unjustified and legally not sustainable, hence, to be quashed. In Tarini Tripathy (supra), it has been held by a Division Bench of this Court that suspension of elected representative is indeed a drastic action and Page 2 of 5 not to be taken recourse to cursorily and in a mechanical manner and any such power vested with the Executive to suspend a representative to whom the Legislature provides safeguards would be arbitrary and cannot, therefore, be sustained. In Rajiv Kumar Parida (supra), a similar view has been expressed and therein referring to one of its earlier decisions in Kulamani Malick Vrs. the Collector, Puri and others, 2004 (1) OLR 46, it is reaffirmed that suspension of elected representative which indeed a harsh decision should not be lightly taken with the power exercised by the Executive. It is further concluded therein that to bring an end to the tenure of an elected representative either temporarily or prematurely, utmost care and circumspection should be exercised, inasmuch as, the right of a representative to continue in office for the full tenure should not be tinkered with by the authority concerned. Furthermore, it is held that on a reading of Section 115(2) of the Act, the order suspension with the exercise of powers by the Government is to confirm to the following conditions, such as, the Sarpanch and Naib Sarpanch as the case may be, if has willfully omitted or refused to carry out and violated the provisions of the Act or Rules made thereunder; or has abused the powers, rights and privileges vested in him; or has acted in a manner prejudicial to the interest of the inhabitants of the Gram Panchayat, only then, such an action is to be visited. Apart from above, the above decision further reads that the reasons given in the order of suspension should be specific and clear and not cryptic and requirement to record reasons cannot be taken as satisfied by merely matching the language of the suspension order with the phraseology used in Section 115 (1) of Act and lastly, held and concluded that the Court can exercise the power of judicial review while examining the challenge to the order of suspension and scrutinize the records to Page 3 of 5 find out whether reason given therein in an empty formality or is actually supported by materials on record. 7. Regard being had to the decisions referred to by learned counsel for the petitioner and discussed herein above, settled law is that any such power under Section 115(1) of the Act is to be exercised with care, caution and circumspection, inasmuch as, an elected representative before being placed under suspension or removed with a temporarily or prematurely, the safeguards mentioned therein are to be ensured, otherwise, the same would be an arbitrary exercise of authority by the Government. 8. In the case at hand, the petitioner has been placed under suspension by order vide Annexure-1. On a bare reading of the impugned order under Annexure-1, the Court finds that the petitioner since violated the provisions of Section 19 of the Act and Rules framed thereunder and alleged to have abused the power vested in him was placed under suspension with the powers exercised under Section 115(2) thereof. 9. Whether the petitioner is really involved in the alleged incident, for which, FIR i.e. Annexure-2 was lodged and nature of evidence received against him during investigation which is claimed to be absent with reference to Annexure-3 series, opposite party No.1 was required to examine it in the light of the settled principles of law discussed earlier. It is reiterated that before any such elected representative is placed under suspension, a detailed enquiry is needed by the authority concerned since the Legislature provides necessary safeguards against arbitrary exercise of power under section 115(1) of the Act. In the instant case, having regard to the facts pleaded on record and on a reading of the order of suspension Page 4 of 5 i.e. Annexure-1, considering the submissions of the learned counsel for the petitioner and reply of Mr. Sahoo, learned ASC for the State, the Court is of the view that opposite party No.1 is required to revisit and reconsider the impugned decision at the earliest keeping view of the principles enumerated above followed by an order of revocation of the suspension at the end, if it is satisfied and so made out, after providing an opportunity of hearing to the petitioner as the same is necessary and required in the interest of justice. 10. Accordingly, it is ordered. 11. In the result, the writ petition stands disposed of with a direction to opposite party No.1 to examine the grievance of the petitioner as prayed for with reference to Annexure-2 and other material evidence received during investigation in connection with Bargarh PS Case No.133 of 2022 for a prima facie satisfaction and thereafter, if necessary, to reconsider the order of suspension and revoke it concluding the above exercise with a decision at the earliest preferably within a period of four weeks from the date of receipt of a copy of this order having regard to the settled principles of law discussed herein above. 12. Urgent copy of this order be issued as per rules. Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 30-Oct-2024 12:24:59 (R.K. Pattanaik) Judge Page 5 of 5