NABIN CHANDRA MAJHI Vs. STATE OF ODISHA

JUDGEMENT

(1.) This writ petition has been filed with a prayer to quash the order of suspension, dated 09.04.2012 passed by the Collector, Kalahandi under Rule 12 of O.C.S. (CCA) Rules, 1962 and article of charges framed by the Disciplinary Authority-cum-Collector, Kalahandi vide order dated 09.04.2012 in D.P. Case No. 111 under Rule 15 of OCS (CCA) Rules, 1962 and Orissa Grama Panchayat Act, 1964. Petitioner's case in a nutshell is that the petitioner was appointed as Grama Panchayat Secretary in Dashigaon Grama Panchayat. Thereafter, the petitioner was promoted to the post of V.L.W. vide letter No. 760/ GP dated 26.06.2009 of Collector, Kalahandi. On 05.01.2011, he was appointed as Election Officer for Rajpur Grama Panchayat by the B.D.O. cum-Election Officer, Junagarh as per programme schedule communicated by the State Election Commission of Odisha. The petitioner was directed to accept nomination papers for the Office of Sarpanch and Ward member of Rajpur Grama Panchayat from 07.01.2012 to 12.01.2012. It has been alleged that the petitioner during the aforesaid period acted in a very careless manner and committed gross error in contravention of Election Rules of the State. According to such allegation, one Smt. Bilash Majhi, wife of Narendra Majhi of village Rajpur was issued with nomination papers by the petitioner in the capacity of Election Officer on 11.01.2012 for the post of Sarpanch of Rajpur Grama Panchayat and on the same day she submitted her nomination for the post of Sarpanch in Form-IV and it was received by the petitioner at 2.55 PM. Said Smt. Majhi was again issued nomination paper for the post of Ward Member of Ward No. 9 of the Grama Panchayat on the next day, i.e. 12.01.2012 and the same was submitted by her on the same day which was received by the petitioner in the capacity of Election Officer at 1.35 PM. It is alleged that multiple nomination is restricted under Section 11(a)(i) of the Orissa Grama Panchayats Act, 1964. Therefore, it is alleged that the petitioner allowed Smt. Bilash Majhi to submit nomination papers for both the posts, i.e. Sarpanch and Ward Member and also declared both the nomination papers valid. As Smt. Majhi was only candidate for the post of Ward Member of Ward No. 9 she was declared uncontested. Had the petitioner reported the matter to B.D.O., Junagarh, he would not have allowed Smt. Majhi to contest in the election for the post of Sarpanch. But the petitioner deliberately concealed the matter as a result of which Smt. Majhi was allowed to contest both for the post of Sarpanch and Ward Member and she also own the election to the post of Sarpanch by securing maximum of 1025 votes as per result declared by the Election Officer in Form No. 8(B). Thus, it is alleged that the petitioner kept the Election Officer-cum-B.D.O., Junagarh Block in darkness till the notification of result by the Election Officer for the post of Ward Member and Sarpanch was declared on 24.02.2012. It is only on that day vide Notification No. 505 dated 24.02.2012 it was disclosed that such type of irregularities has occurred in the election of Junagarh which is attributed to the petitioner. The Election Officer, Junagarh Block as well as District Administration was put to an embarrassing situation due to winning of one candidate for both the posts of Ward Member and Sarpanch. Thus the petitioner acted carelessly and rendered undue help to the concerned candidate and committed irregularity deliberately in connivance with the candidate to ensure that she would retain the post of Ward Member even if she would be defeated in the election of Sarpanch. With these allegations the order of suspension dated 09.04.2012 and the article of charges of even date were issued. Hence, the present writ petition.

(2.) Mr. Dalai, learned counsel appearing for the petitioner submitted that Smt. Bilash Majhi was the only member of Ward No. 9. Therefore, she was declared elected uncontested. Subsequently, the election for the office of Sarpanch was held on the scheduled date and Smt. Majhi secured 1025 votes and declared elected as Sarpanch by Notification in Form 8(B). Mr. Dalai further submitted that while framing charges against the petitioner on 09.04.2012 the Collector, Kalahandi in the capacity of Disciplinary Authority has issued the suspension order under Annexure-2. Opposite party No. 3, who was the Election Officer for Junagarh Block, after the election period was over, with a mala fide intention and giving a false identification stating himself as Election Officer has signed in the charge paper which shows the misconduct and mala fide intention of the authority while framing charges against the present petitioner, So entire framing of charge is defective. It is further submitted that there is no prohibition for issue of nomination papers to different persons who intended to participate in the election process. Petitioner was appointed as Election Officer for the limited purpose by opposite party No. 3 for accepting nomination papers. Rule 29 speaks that the Election Officer shall at the appointed time, date and place receive nomination papers separately for the Office of the members and Sarpanch in Form No. 4 and scrutinize them in presence of the candidates, their proposers and seconders, if any. If he finds that the candidates are duly qualified in accordance with the provisions of Section 11 and not disqualified under any of the clauses of Section 25 of the Act/he shall approve their candidature. Objections, if any, filed in the course of scrutiny shall be enquired into summarily by the Election Officer and his decision accepting or rejecting nomination papers shall be endorsed on the body of the nomination papers with reasons for the decision. In the instant case there was no objection from any corner and accordingly after acceptance of the nomination papers, it was duly communicated to opposite party No. 3. The petitioner has carefully scrutinized the nomination papers. Section 29 deals with penalty for misconduct of elections, but in the aforesaid Section there is no observation regarding the improper acceptance of the nomination papers. Section 30 provides that no election of a person as a member of a Grama Panchayat or as Sarpanch or Naib Sarpanch held under the Act shall be called in question except by an Election Petition presented in accordance with the provision of Chapter V. Section 38 deals with decision of competent Court to declare another candidate to have been duly elected and all orders of the competent Court shall subject to the provisions of Sub-section (4) be final and conclusive or to declare a casual vacancy to have been created. Therefore, while the election petition is pending before the Election Tribunal issuance of suspension order and framing of charges gives very bad taste and is contrary to the statute.

(3.) Mr. Dalai submitted that opposite party No. 3 has the sole responsibility and he is the person to be punished. Only to shift the responsibility, the impugned orders have been issued which are not permissible under law. Issuance of order of suspension and framing of charge by opposite party No. 2 is not only arbitrary, but also mala fide and discriminatory in nature. In the district of Kalahandi, in other Grama Panchayats also the same mistake has been pointed out and it has been rectified by the State Election Commission and there is no punishment or any sort of charge has been framed against the officers concerned and no order of suspension also has been issued against them, but the petitioner has been victimized due to ill intention of the authorities. It is further submitted that the authorities have exceeded their jurisdiction and in a whimsical manner issued the order of suspension. Mr. Dalai further submitted that had the State Election Commission taken a decision against the present petitioner due to misconduct and non-compliance of the direction, the matter would have been different. Since the petitioner was on deputation; at a belated stage when the petitioner is neither working under the State Election Commission nor under the Collector, Kalahandi action has been taken, which is per se illegal.