GOURANGA CHANDRA PADHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner, learned counsel appearing for the intervenor and learned Addl. Govt. Advocate and the writ petition is disposed of on their consent. Petitioner is the elected Sarpanch of Jamujihari Gram Panchayat in the district of Balasore. The intervenor in this writ petition filed WPC No.8474 of 2003 claiming disqualification of the Sarpanch in view of the provisions under Section 25(1)(v) of the Orissa Gram Panchayat Act, 1964, in short, "the Act". That writ petition was disposed of as withdrawn with the observation that on his approach the Collector, Balasore shall conduct an enquiry. After receipt of that order and approach of the intervenor, the Collector, Balasore before conducting further enquiry directed the Sub -Collector, Balasore to conduct an enquiry and to submit a report on the issue as to whether the Sarpanch has three children and if any of them was born after the cut -off date. The Sub -Collector conducted an enquiry and submitted a report favouring the motion and against the Sarpanch. learned Collector then called upon the petitioner (Sarpanch) to have his say in the matter. Petitioner appeared through a counsel and on 16.3.2005 filed his written note of submission along with the documents fin support of his contention that he has two children, he is not disqualified under Section 25(1)(v) of the Act and the documents relied on by the intervenor are not reliable. He also stated in the written note of submission that a copy of the report of the Sub -Collector was not made available to him. The Collector on perusal of such documents and the contentions in the written note vis -a -vis the report of the Sub -Collector found that certificates of different authorities are over -lapping with each other relating to the proof of birth of a third child after the cut -off date. He, therefore, asked the Medical Officer of the concerned Primary Health Centre to submit a further report. The Medical Officer submitted a report supporting the motion that the petitioner has three children. After receipt of that report and on perusal of the same, learned Collector considered the written note of submission of the petitioner and rejected the same and declared him disqualified as per the order, Annexure -1 passed on 9.5.2004. That order is under challenge before us.

(2.) CONTENTION of the petitioner, inter alia, is that when the public documents relied on by both parties are inconsistent and contradictory to each other, before accepting any set of documents, learned Collector, should have provided an opportunity of hearing to the petitioner by allowing him to cross -examine the persons who made statements and reports against him so also relating to correctness of the documents relied upon by the intervenor and the Enquiry Officer. Learned counsel appearing for the intervenor as well as learned Addl. Govt. Advocate, on the other hand, state that when opportunity of hearing was granted to the petitioner and he filed a written note of submission and documents, no further opportunity of hearing should have been granted to him and the impugned order does not call for any interference. After hearing the argument of the learned counsel, we are not inclined to agree with the arguments advanced by the learned Addl. Govt. Advocate and learned counsel appearing for the intervenor, inasmuch as when the public documents coming form the custody of the public officers are having the effect of contradicting each other, in such a case, learned Collector should have permitted an opportunity of hearing to the petitioner after providing copies of such documents to him. So also he should have provided him opportunity to produce documents and adduce evidence hat he is the father of two children. Under such circumstance, while setting aside the order, Annexure -1, we direct learned Collector, Balasore to undertake the enquiry afresh. If the intervenor wants to adduce any further evidence, he may be permitted to do so within a period not exceeding two weeks form the date of commencement of fresh enquiry. Evidence, which the Collector refers to or relies upon against the petitioner, in that respect, petitioner be granted an opportunity to cross -examination such persons if he opts for the same and applies in writing. Attendance of such witness be obtained for the purpose of cross -examination expeditiously. After the aforesaid phase of enquiry is completed, petitioner be granted reasonable time of seven days to adduce his evidence and opportunity of cross -examination, if opted for be provided to the intervenor or the Govt. Counsel, as the case may be. Thereafter, the parties be heard and appropriate order be passed by learned Collector expeditiously.