LAXMIPRIYA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners, who are the Chairperson, Vice Chairperson and Councilors of different Wards of Notified Area Council of Balugaon, have filed this Writ Petition under Articles 226 and 227 of the Constitution of India challenging the Order dated 22.7.2004 passed by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, in O.A. No. 1436(C)/2004 refusing to grant interim relief (Annexure 14) as well as the office Order dated 29.6.2004 issued by the State Government Opp. Party No. 1 re transferring and re posting Opp. Party No. 3, Rabindranatn Sahoo as the Executive Officer of Balugaon Notified Area Council after 20 days of his transfer to Khandapara N.A.C. (Annexure 13).

(2.) THE brief facts leading to this Writ Petition are as follows : Petitioner Nos. 1, 2 and 3 to 9 after being elected as Chairperson, Vice Chairperson and Councilors of Balugaon N.A.C. assumed their offices in the month of September, 2003. The elected body of the Balugaon N.A.C. took overcharge in September, 2003. During functioning of the Council, according to the petitioners, it was observed that Opp. Party No. 3 i.e., the Executive Officer of the N.A.C. was not carrying out the resolutions, directions or instructions of the Council and with utter disregard to the Council in general and Chairperson in particular he was not furnishing the details of different developmental activities. The N.A.C. observing the conduct of Opp. Party No. 3 felt that it was not possible on the part of the N.A.C. to discharge its public duties and civic obligations through Opp. Party No. 3 as the executive head of the N.A.C. The N.A.C. passed a resolution on 31 st January, 2004 (Annexure 3) requesting the State Government to transfer Opp. Party No. 3 from the said post as he was a Government servant and was deputed to the N.A.C. In the said Annexure 3 it was stated that Opp. Party No. 3 was habitually remaining absent from the headquarters as he was not residing at Balugaon. That too, in spite of the direction of the Council, Opp. Party No. 3 abstained himself from the flag hosting ceremony of the N.A.C. on the Republic Day, 2004. It was further alleged that Opp. Party No. 3 was spending Government grants without observing the Government norms and financial disciplines. After the aforesaid resolution was submitted to the Government, the Secretary to the Government in Housing and Urban Development Department deputed an Under Secretary of the Department to cause an enquiry into the allegations and on the basis of the enquiry report submitted by the Under Secretary, the State Government by letter dated 19.5.2004 directed for a special audit of the accounts of the N.A.C. for the period from 21.6.2001 to 31.5.2004 by the Departmental Special Auditors. It is stated that the period for which special audit was directed pertains to the period of incumbency of Opp. Party No. 3 as the Executive Officer of the N.A.C. It was further stated that the Under Secretary, who conducted the enquiry, recommended transfer of Opp. Party No. 3 from the N.A.C. to some other place. Accordingly, the State Government by office Order dated 7.6.2004 (Annexure 7) transferred and posted Opp. Party No. 3 as the Executive Officer, Khandapara N.A.C. and in his place, posted one Sri Chandramani Swain, the Executive Officer of Joda Municipality, as Executive Officer, Balugaon N.A.C. The Chairperson of petitioner No. 1. N.A.C. relieved Opp. Party No. 3 by Order dated 9.6.2004 (Annexure 8) with effect from 9.6.2004 (A.N.) with a request to Opp. Party No. 3 to hand over the detailed charge to the Senior Assistant of the N.A.C. namely, G. B. Behera. Sri Chandramani Swain joined as Executive Officer of Balugaon N.A.C. on 11.6.2004 (F.N.) and his joining report was duly accepted by the Chairperson on the same day. According to the petitioners, Opp. Party No. 3 was bent upon not to hand over the charges to G. B. Behera but he instigated some local persons who entered forcibly into the N.A.C. office and abused the said Chandramani Swain. The aforesaid incident as well as the conduct of Opp. Party No. 3 in not handing over the charge was duly intimated to Opp. Party No. 1 and at the same time successive reminders were issued to 6pp. Party No. 3 to hand over the charge to his successor. But, according to the petitioners, their request to Opp. Party No. 3 to hand over charge and their representation to the Minister as well as Opp. Party No. 1 (Annexure 7) informing the conduct of Opp. Party No. 3 yielded no result. The State Government, however, barely 20 days after issuance of office Order dated 7.6.2004 (Annexure 7) issued another office Order dated 29.6.2004 vide Annexure 13 re transferring and posting Opp. Party No. 3 as Executive Officer,. Balugaon N.A.C. though by then Opp. Party No. 3 was already transferred to Khandapara N.A.C. as per the office Order dated 7.6.2004 (Annexure 7). On 2.7.2004 at about 12.30 P.M. it is alleged, Opp. Party No. 3 came to the N.A.C. office with the Tahasildar, C.I. and the O.I.C. of Balugaon P.S. along with some Constables and broke open the office room of the Executive Officer, entered inside the room and occupied the office of the Executive Officer. This action of Opp. Party No. 3 was also communicated to the Director, Municipal Administration, District Magistrate, Khurda and R.D.C., Central Division, Cuttack. The petitioners filed an Original Application before the Orissa Administrative Tribunal, Cuttack Bench, Cuttack, being O.A. No. 1436(C)/2004 challenging the order of re transfer of Opp. Party No. 3 and prayed for an interim injunction injuncting Opp. Party No. 3 from functioning as the Executive Officer of Balugaon N.A.C. The said prayer was rejected by the Tribunal saying that the same cannot be granted as Opp. Party No. 3 has already taken over charge and functioned as such. The petitioners now file this Writ Petition challenging the order of the Tribunal refusing to grant interim relief with a prayer to quash the order of transfer, Annexure 13. This Court issued notice to the opp. parties called upon the State Counsel to produce the file concerning transfer of Opp. Party No. 3.

(3.) THE relevant portion of the counter affidavit of Opp. Party No. 3 is quoted below :