B.P.DAS, J. - (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.
While the matter was listed on 26.8.2004, it was submitted by the Learned Addl. Government Advocate that the grievances of the petitioners is under active consideration of the State Government but the records were not produced by the State as directed earlier by this Court for which Opp. Party No. 1, the Secretary, Housing and Urban Development Department, was directed to file an affidavit indicating therein the compelling reason for re transferring of Opp. Party No. 3 to Balugaon N.A.C. by canceling his transfer to Khandapara within a short span of 20 days. Opp. Party No. 3, i.e., the Executive Officer, Sri Rabindranath Sahoo who was represented by Sri. J. M. Mohanty, Advocate, has filed counter affidavit denying the allegations made in the Writ Petition including the allegation of forcible entry of Opp. Party No. 3 with a group of about 50 persons info the office of the Executive Officer, Balugaon N.A.C. It is stated in the counter affidavit that while on 30.6.2004 Opp. Party No. 3 came to the office to submit his joining report, the henchmen and muscle men of Petitioner No. 2 did not allow him to enter into the office campus. In Para 24 of the counter affidavit, Opp. Party No. 3 has also admitted that on the direction of the Collector and Sub Collector of Khurda, the local Tahasildar broke open the office room of the Executive Officer and made an inventory in presence of the police. It was further stated by Opp. Party No. 3 that the allegations made by the petitioners on enquiry by the State were found to be incorrect and false. Opp. Party No. 3 has stated that there was no illegality in posting him again as the Executive Officer of Balugaon N.A.C.

(3.)THE relevant portion of the counter affidavit of Opp. Party No. 3 is quoted below :
'xxx xxx xxxThat as regards Para 1 the facts stated therein are partly correct. Balugaon Notified Area Council consists of 11 wards. In the last N.A.C. election there was a triangular fight among the B.J.D., B.J.P. and Congress candidates. Out of 11 wards, in 9 wards Congress candidates came out successfully, who are the petitioners in this present Writ Application. The rest 2 wards went to B.J.P. Petitioner No. 1 is the wife of the younger brother of Petitioner No. 2. Petitioner No. 2 who is the Vice Chairman is a moneyed man of the locality having liquor business in the name of his wife, Paddy, Rice, Cement, Iron rods etc. business in the name of his family members. During the last Municipality election Petitioner No. 2 had financed all the candidates including the petitioners. As all the candidates succeeded in the election with the financial assistance of Petitioner No. 2. Due to such advantage position Petitioner No. 2 has now kept control over all the petitioners and want to workout to run the N.A.C. as per his sweet will. After the election of the Chairman a proposal was given to the deponent for change of sheets of the employees within the N.A.C. As the election of Vice chairman was not held and the election procedure was not completed, deponent was not in a position to disturb the employees who are engaged for collection of revenue. It is pertinent to mention here that changing of sheet would have hampered the collection of revenue for which the deponent requested Petitioner No. 1 to do the needful after the completion of the election proceeding. It is opt to mention here that after the Chairman election Vice chairman election was held on 21.10.2003. Petitioner No. 2 was elected as a vice chairman but the proposal which was moved the deponent was updated 17.10.2003. A copy of the proposal issued by Petitioner No. 1 is filed herewith as Annexure A/3.

It is pertinent to mention here that after the election of the vice chairman there was transfer orders of the Senior Clerk as well as Junior Clerk of the N.A.C. to Aska N.A.C. and Berhampur Municipality respectively vide Order dated 1.1.2004 and 4.1.2004. Petitioner No. 2 in spite of the transfer order directed the deponent not to relief them and to give important seats within the N.A.C. As the order of transfer was very much in force deponent did not agree to do so. As a result of which Petitioner No. 1 and Petitioner No. 2 became hostile towards deponent and threatened to transfer him from Balugaon N.A.C. Behind the back of the deponent Petitioner No. 2 by putting his influence manage to transfer the deponent to Khandapada. Though the successor of the deponent has not joined in Balugaon N.A.C, Petitioner No. 1 unilaterally relieved the petitioner even though there was no order to relieve the deponent by local arrangement. While the matter was a such, Petitioner No. 2 time and again made representation before the authorities to disturb the deponent. As per the allegation of the council headed by Petitioner No. 2 Government was pleased to make special audit as well as due enquiry by the under secretary. After the audit it was found by the audit party that everything is OK. Similarly, the Under Secretary of the Government enquired into the allegations and found them to be false. For which petitioner was again posted at Balugaon. Getting no way out, keeping step motherly attitude, towards the deponent petitioners approached the Hon'ble High Court in W.P.(C) No. 6954/2004 challenging the order of transfer vide Annexure 13. This Hon'ble Court by Order dated 16.7.2004 disposed the aforesaid Writ Application is not maintainable for which petitioner again approached the State Administrative Tribunal in O.A. No. 1436(C)/2004. While issuing notice for admission and final disposal the Hon'ble Tribunal was pleased to decline to injunct the deponent not to function as the Executive Officer of Balugaon N.A.C. Being aggrieved by the aforesaid order present Writ Application has been filed.
It is respectfully submitted that the aggrieved party that the successor of the deponent has not challenged his order of transfer from Balugaon to Khandapada. When the aggrieved party has not challenged the order of transfer, petitioners with mala fide intention has filed the Writ Application taking false grounds only to fit fat their grudges. Though there is nothing adverse against the deponent which will be evidence that till date there is not a scrap of paper with the petitioners to prove that at any point of time the deponent has disobeyed or mismanaged the fund of the NAC. The total aim and object of filing such case is on political motivation.' From the records so produced by the State, it is found that the State Government was aware of the disturbances in the N.A.C. and the Principal Secretary, Housing and Urban Development Department, suggested that since a special audit is now in progress in Balungaon N.A.C. it would be advisable to consider some alternate posting of Shri Sahoo for the time being, but the same was not acceded to by the Government as it appears from the note of the Minister, U.D. But all these aspects can be taken care of in the Original Application which is pending in the Tribunal.