JAGANNATH BAG Vs. COLLECTOR, BALASORE AND FOUR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned counsel for the State. By this petition, the petitioner seeks to challenge the order dated 19.12.2003 issued by the Collector and District Magistrate, Balasore suspending the petitioner from the post of Sarpanch of Nijampur Grama Panchayat. The petitioners grievance is that before the impugned order of suspension dated 19.12.2003 under Annexure -11 was issued, the District Panchayat Officer issued a notice dated 28.10.2003 under Annexure -9 to the petitioner calling upon him to explain as to why disciplinary action would not be taken against him as provided under the provisions of the Orissa Grama Panchayat Act, 1964 for committing various irregularities mentioned therein. As against the said notice, the petitioner filed his reply by writing a letter dated 14.11.2003.

(2.) DESPITE the aforesaid reply made by the petitioner against the show cause notice, the Collector by the impugned order dated 19.12.2003 placed the petitioner under suspension.The said impugned order purports to have been issued by the Collector in exercise of his power under Sub -section (1) of Section 115 of the Orissa Grama Panchayat Act. In the said order of suspension, it was inter alia, pointed out that an amount of Rs.62,643/ - was spent by the petitioner towards purchase of 41 sets of street light at the cost of Rs.1,528/ - for each street light. The said lights were of local made. However, in the bill, the petitioner showed that the street lights were of Bajaj make. By making such purchase, an excess amount has been paid due to not observing the formalities in inviting quotations for such matters.

(3.) ON the other hand, learned Government Advocate submitted that on 16.12.2003, this matter has been referred to the State Government, and the Govt. is taking all necessary action in accordance with the mandate of the legislature contained in Sub -section (2) of Section 115 of the said Act. We are sorry to observe that when one commits defalcation of money or is indulged in corruption, certainly he commits the same deliberately and wilfully. Hence, for the offence of, defalcation of money, the absence of any recital about deliberate intention or wilfulness is not fatal. Therefore, the decision cited by the learned counsel for the petitioner may apply to cases of other irregularities, but the same cannot invalidate a suspension order, which has been issued, inter alia, the grounds of corruption and defalcation of money. It is our firm opinion that unless one acts deliberately and willfully, he cannot defalcate money. It is the essential ingredient for the offence of defalcation of money that one must act wilfully. As regards other questions raised by the learned counsel for the petitioner, we are not expressing any opinion as to the veracity of allegations made against the petitioner. The allegations may be false or may be true. We are not supposed to enter into such questions in exercise of our jurisdiction in a writ petition. It is for the Government while taking all necessary actions in compliance with the legislative mandate under Sub -section (2) of Section 115 of the Act to take care of the same and find out whether such allegations are false. In these circumstances, as the matter is pending with the Government for consideration whether or not to revoke the suspension order or to take disciplinary action against the petitioner, we should not intervene before hand. In the circumstances, we are of further view that no case has been made out in this petition for our interference under the writ jurisdiction of this Court. The writ petition is accordingly dismissed. No order as to costs. Petition dismissed.