1. M.M. Das, J. The petitioner contested the election to the office of the Sarpanch of Dorada Grama Panchayat under Athagarh Block in the district of Cuttack and was declared elected having polled majority of valid votes in his favour. It is alleged by the petitioner that a false allegation was leveled against him about demand of bribe of Rs. 3500/- from one Akhaya Kumar Lenka, who with a pre-plan came with the vigilance officials to the petitioner on 23.1.2008 along with the amount of Rs. 3500/- and the vigilance officials prepared a detection report with the allegation that the petitioner accepted the said amount on demand from Shri Lenka for passing his bill for a contract work. According to the petitioner, the said Akhaya Kumar Lenka is a supporter of the local M.L.A., who belongs to the rival political group of the petitioner. It has been further averred that by the date when such allegation was leveled against the petitioner, all the bills of the said Shri Lenka were already passed and the detection report was clearly motivated with mala fide to suspend the petitioner. The petitioner has been released on bail in the said vigilance case. Charge-sheet is yet to be submitted in the said case. On the basis of the detection report, the Government passed an order on 23.2.2008 suspending the petitioner from the office of the Sarpanch. The order of the Government dated 23.2.2008 as at annexure-5 was communicated to the petitioner, drawing up a proceeding initiated against him under Section 115 (1) of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as 'the Act') and simultaneously placing him under suspension by exercise of power under sub-section (2) of Section 115 of the said Act, calling upon him to file a show cause. The charge leveled against the petitioner was annexed to the said order. Charge framed was as follows: "That Sri Nutan Kumar Rout, Sarpanch has been caught red handed and arrested by the Vigilance Officers on 23.1.2008 for demand of illegal gratification of Rs. 3500/- from the complainant, Sri Akshya Kumar Lenka S/o Bauribandhu Lenka of Village-Iswara and Sri Rout is in Jail custody from the date of arrest i.e. 23.1.2008 to 06.02.2008".
2. The petitioner challenged the said order of suspension before this Court in W.P.(C) No. 3275 of 2008. During course of hearing of the said writ petition, it was submitted on behalf of the petitioner that he has moved the Secretary, Panchayati Raj Department, Government of Orissa for revocation of the order of suspension on 25.2.2008 vide Annexure-3 to the said writ petition. Since there is an option for the suspending Sarpanch to move the State Government under sub-section (3)(a) of Section 115 of the Act for revocation of the order of suspension, this Court disposed of the said writ petition directing the opp. party no. 1 to dispose of the petition said to have been filed by the petitioner as expeditiously as possible preferably within a period of two months from the date of communication of the said order, if the same has not been disposed of as yet. The petitioner also states that he has filed a show cause reply pursuant to the notice dated 25.2.2008. Even after disposal of the said writ petition as no action was taken by the Government, the petitioner again approached this Court in W.P.(C) No. 18274 of 2008 challenging the order of suspension passed against him. This Court by order dated 28.1.2009 did not interfere with the order of suspension of the petitioner, but considering the submission that no action is being taken with regard to the proceeding initiated against him, directed the concerned authority of the State to complete the proceeding initiated against the petitioner within a period of two months from the date of production of the certified copy of the said order before the concerned authority of the State, by the petitioner. Pursuant to the said order passed by this Court, the matter was taken up by the Government, which has culminated in the impugned order under Annexure-1 to the writ petition, removing the petitioner from the office of the Sarpanch, which is as follows:
"Government of Orissa, Panchayati Raj Department. No. PRI-I(i) 21/2008 16622 /PR., Dated 14/05/09 O R D E R
WHEREAS Sri Nutan Kumar Rout, Sarapanch (Under suspension) of Dorada Grama Panchayat under Athagarh Block called upon to show cause against the charges vide P.R. Deptt. Order No. 8834/PR., dated 23.2.2008 and pursuant to the said order Sri Rout submitted his show cause reply. He was also heard in person.
AND WHEREAS after careful consideration of the show cause reply filed by Sri Rout and his statement during personal hearing and all the materials on record, the State Government are satisfied that Sri Rout willfully by abusing his power, rights and privileges vested in him had demanded illegal gratification and accepted the same. Thereby he has acted in a manner prejudicial to the interest of Gram Panchayat and due to his dishonest activities, his further continuance in the office of the Sarapanch of the G.P. would be detrimental to the interest of the General Public of the G.P. as many developmental works are being executed through the G.P.
Now, therefore, in exercise of the powers conferred by the sub-section (1) of Sec. 115 of the O.G.P. Act, the State Govt. have been pleased to order that Sri Nutan Kumar Rout is hereby removed from the Office of the Sarpanch of Dorada Gram Panchayat with immediate effect.By order of the Governor, Sd/-14.5.09 Joint Secretary to Govt. Memo No. 16623/PR., Dated 14/05/09
Copy in triplicate forwarded to the Collector, Cuttack with a request to serve one copy of the order on Sri Nutan Kumar Rout with his dated acknowledgement, the second copy be returned to the P.R. Department and the third copy thereof be retained in the Collectorate for reference. Sd/-14.5.09 Joint Secretary to Govt. Memo No. 16624/PR., Dated 14/5/09
Copy forwarded to the District Panchayat Officer, Cuttack/Sub-Collector, Athagarh/B.D.O., Athagarh/Guard file (2) spare copies for information and necessary action. Sd/-14.5.09 Joint Secretary to Govt."
3. The petitioner being aggrieved by the said order has approached this Court in the present writ petition for issuance of a writ of certiorari to quash the said order and for issuing other appropriate directions.
4. A counter affidavit has been filed on behalf of the opp. parties defending the impugned order and inter alia, stating that the petitioner having acted in a manner prejudicial to the interest of the inhabitants of Grama by demanding and accepting bribe from a V.L.L. and was caught red handed by the vigilance officials, there is no scope for him to deny the said allegation and therefore, the removal of the petitioner was proper and justified.
5. Mr. P.K. Rath, learned counsel for the petitioner vehemently urged that the removal order of the petitioner has not been passed within the purview and the scope of Section 115 (1) of the Act. There has been no enquiry complying with the principles of natural justice, i.e., while passing the removal order, the authorities have not considered the cause shown by the petitioner with regard to the charge leveled against him and have not provided the copies of the relevant documents forming the basis of the removal order to the petitioner. The petitioner has also not been given an opportunity to examine any witness. Mr. Rath, further contended that when a criminal case is under investigation by the Vigilance Department holding the petitioner guilty of commission of such offence, which forms the basis of the order of removal, amounts to pre-judging the criminal proceeding, which is beyond the jurisdiction vested in the State under Section 115 (1) of the Act and in absence of any order of conviction, no order of removal could have been passed by the Government removing the petitioner, who is an elected representative of the Grama. It was further contended that the charge framed does not form the basis of the finding that the petitioner has acted in a manner prejudicial to the interest of the inhabitants of the Grama. From Anneuxre-7 to the writ petition, which is the show cause affidavit filed by the petitioner, it appears that the petitioner has stated that the above grounds along with other grounds, pleading that he should not be removed from the office of Sarpanch by exercise of power under Section 115 (1) of the Act.
6. In the counter affidavit filed by the opposite parties except stating that the State Government after careful consideration of the show cause reply of the petitioner and his statement during personal hearing and all the materials on record, have been satisfied that the petitioner willfully by abusing his powers, rights and privileges vested in him had demanded illegal gratification and accepted the same thereby acting in a manner prejudicial to the interest of the Gram Panchayat for which his further continuance would be detrimental to the interest of the general public of the Gram Panchayat, nothing has been stated as to what was found out during the enquiry.
7. Mr. Rath, learned counsel for the petitioner relying upon the decisions in the cases of B. Padma Reddy v- State of Orissa and others, 2006 (Supp.-II) OLR 842 and Laxmidhar Tripathy v- State of Orissa and others, 2006 (Supp.-II) OLR 939 in support of his contention, submitted that in the aforesaid decisions, a Division Bench of this Court on analyzing the facts of the said case relying upon the decision in the case of Canara Bank and others v- Shri Debasis Das and others, AIR 2003 SC 2041 have held that reasonable opportunity is not confined only to the reply given to the show cause or the evidence adduced in its support, but it also includes the consideration of the defence taken by a person while taking a decision by the decision making authority and that in the instant case, the statements made in the show cause reply filed by the petitioner have never been taken into consideration.
8. Section 25 of the Act prescribes the clause under which a person earns disqualification for membership of a Gram Panchayat.Sub-section (1) (g) of Section 25 of the Act provides that a person shall be disqualified for being elected or nominated as a Sarpanch or any other member of the Gram Panchayat constituted under the Act, if he is convicted for an offence involving moral turpitude and sentenced to imprisonment of not less than six months unless a period of five years has elapsed since his release or is ordered to give security for good behaviour under Section 110 of the Code of Criminal Procedure, 1898 (5 of 1898).
9. Sub-section (4)(a)(b) of Section 25 of the Act provides as follows:
"(4) Notwithstanding anything contained in the foregoing sub-sections -
(a) The State Government may remove any one or more of the disqualifications specified in Clauses (f), (g), (k) and (1) of Sub-section (1);
(b) When a person ceases to be a Sarpanch or Naib- Sarpanch or any other member in pursuance of
Clause
(g) Of Sub-section (1) he shall be restored to office for such portion of the term of office as may remain unexpired on the date of such
restoration, if the sentence is reversed or quashed on appeal or revision or the offence is pardoned or the disqualification is removed by an order of the State Government; and any person filling the vacancy in the interim period shall on such restoration vacate the office."
10. The power of the State Government to remove a Sarpanch or a Naib-Sarpanch or any member of the Gram Panchayat is provided under section 115 (1) of the Act which is quoted hereunder. "115. Suspension and removal of Sarpach, Naib- Sarpanch and member (1) If the State Government, on the basis of a report of the Collector or the Project Director, 9
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 willfully 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."
11. In view of the above position, two questions arise for determination in this case, i.e., whether while conducting the enquiry against the petitioner, principles of natural justice have been violated and whether in view of the nature of the charge framed, the same amounts to pre-judging the criminal allegation made against the petitioner in the case registered against him by the Vigilance Police.
12. As already indicated above, it does not transpire from the impugned order that the show cause filed by the petitioner has been considered by the Government while taking the decision to remove the petitioner from the office of the Sarpanch. No reason has also been assigned as to how the petitioner willfully abused his powers, rights and privileges vested in him. It appears from the impugned order that the allegation of demand of illegal gratification, which is the subject matter of investigation in the criminal case initiated against the petitioner, has been taken to be the sole ground to hold that the petitioner has acted in a manner prejudicial to the interest of the Grama Panchayat. It even transpires that the Government has concluded that the petitioner has acted dishonestly even though the matter is under investigation and no charge-sheet has yet been filed against the petitioner far less the trial and conviction. Nothing within the four corners of the impugned order indicate that the concerned authority of the State while passing the said order has taken into consideration the show cause filed by the petitioner. The principle of audi alterm partem mandates that no one shall be condemned unheard. Fair play in any action is an integral part of the rules of natural justice which demands that before any prejudicial or adverse order is passed or action is taken against a person, he must be given an opportunity of hearing.
13. Having regard to the nature of controversy posed in the present case and on the above analysis of the impugned order, it is abundantly clear that the Government has exceeded its jurisdiction in passing the order of removal against the petitioner by enquiring into an allegation of a criminal act against the petitioner, which is under investigation by the Vigilance Police and in which, if charge-sheet is filed, the petitioner has a right to take his defence while facing the trial, it is a cardinal principle of law that there is no presumption of guilt against a person with regard to commission of a criminal offence until the same is proved against him beyond reasonable doubt, leading to recording of an order of conviction against him. In the present case, therefore, the conclusive finding that the petitioner is guilty of a criminal act solely basing on mere allegations and forming the same to be the basis of the order of removal from the office of the Sarpanch clearly amounts to pre-judging the issue, before the criminal case is tried against the petitioner (in the event a charge-sheet is submitted against him).
14. Further, considering the nature of the charge framed against the petitioner, which is purely a charge in relation to the allegation of a criminal offence being committed by the petitioner, calling upon him to show cause to the said charge also amounts to compelling him to disclose his defence, which he would take if the investigation by the Vigilance Police ends up with a charge-sheet against him and he will be required to face the trial. Such compulsion to disclose the defence by an accused in an ancillary proceeding before a criminal case is tried, is contrary to law. Section 25 (1) (g) read with sub-section (4)(a) of the Act also clearly shows that the State Government may remove the Sarpanch, if he is convicted for an offence involving moral turpitude and sentenced to imprisonment for a period not less than six months. Such a contingency does not arise in the present case. Section 115 (1) of the Act also does not contemplate that a mere allegation, if made against the Sarpanch with regard to commission of a criminal offence, the Government can remove him from his office. In that view of the matter, the impugned order under Annexure-1 removing the petitioner from the office of the Sarpanch of Dorada Grama Panchayat is unsustainable and the same is accordingly quashed. As a consequence, the order of suspension also stands quashed and the petitioner shall be restored to his office and shall function as Sarpanch of the said Grama Panchayat for the rest of the term, unless if charge-sheet is filed in the criminal case and the trial is culminated in an order of conviction against him sentencing him to undergo imprisonment for six months or more as per the provisions of Section 25 (1) (g) of the Act.
The writ petition is, accordingly, allowed but in the circumstances, without cost.