Sher Ali vs State Of U.P. And 5 Others
2013 Latest Caselaw 4859 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- WRIT - C No. - 35371 of 2013
 

 
Petitioner :- Sher Ali
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- H.N. Singh,Manoj Kumar Singh
 
Counsel for Respondent :- C.S.C.,S.M.A. Abdy
 

 
	Connected with
 

 
Case :- WRIT - C No. - 36438 of 2013
 
Petitioner :- Hifazurehman And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- J.H. Khan,S.M.A. Abdy
 
Counsel for Respondent :- C.S.C.,H.N. Singh,M.K. Singh Sengar
 

 

 
Hon'ble Tarun Agarwala,J.

The petitioner was elected as a Pradhan of the Gram Panchayat Vait, Block Shimbhawali, District Hapur in October, 2010. On 07th April, 2012, respondent nos. 5 and 6 filed a complaint, which remained pending, and accordingly, the said respondents filed a writ petition no. 49571 of 2012, which was disposed of by an order dated 25th September, 2012 directing the District Magistrate to enquire into the complaint, if it was in accordance with Rule 3 of the U.P. Panchayat Raj (Removal of Pradhan and Up Pradhan and Members) Enquiry Rules, 1997 (hereinafter referred to as the Rules of 1997). Based on the direction of the Court, the District Magistrate initiated an enquiry by appointing an enquiry officer. A preliminary enquiry report was submitted on the basis of which, the District Magistrate passed an order dated 28th February, 2013 ceasing the financial and administrative powers of the petitioner and simultaneously appointing a three member committee to discharge the financial and administrative powers. The petitioner, being aggrieved by the said order, filed writ petition no. 13107 of 2013, which was allowed by an order dated 08th March, 2013. The impugned order was set aside and the Court directed the District Magistrate to decide the matter afresh.

The District Magistrate, thereafter, passed a fresh order dated 30th March, 2013 again ceasing the financial and administrative powers of the petitioner, against which, the petitioner filed writ petition no. 20758 of 2013, which was disposed of with a direction to the District Magistrate to get the final enquiry concluded under the Rules of 1997. The petitioner preferred a special appeal no. 756 of 2013, which was dismissed as not maintainable.

Based on the said order of the High Court, the District Magistrate initiated a final enquiry purported to be under Rules 5 and 6 of the Rules 1997 and, upon the submission of the enquiry report, the District Magistrate passed the impugned order dated 17th June, 2013 directing recovery of Rs. 1,16,358.16 paise from the petitioner and further ceasing the financial powers. The petitioner, being aggrieved by the order of the District Magistrate directing the recovery of the amount and ceasing the financial powers, has filed the present writ petition.

The complainant, respondent nos. 5 and 6, being aggrieved by that portion of the order allowing the petitioner to exercise the administrative powers, has filed the writ petition no. 36438 of 2013. Both the writ petitions have been connected and are being decided together.

Heard Sri H.N. Singh, the learned counsel for the petitioner and Sri W.H. Khan, the learned counsel assisted by Sri S.M. A. Abdi, the learned counsel for the complainant and Sri R.B. Pradhan, the Addl. Chief Standing Counsel.

The learned counsel for the petitioner contended that the District Magistrate has committed a manifest error in passing the impugned order. In the first instance, the procedure envisaged under Rule 6 of the Rules of 1997 was never followed, inasmuch, no chargesheet was issued nor any specific charges were framed nor was the petitioner invited to reply to the said charges, and consequently, there has been a glaring violation of the procedure envisaged under Rule 6 as well as the principles of natural justice. The learned counsel further submitted that while exercising the powers under Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) the District Magistrate could at best remove the petitioner from the post of the Pradhan, but could not issue any order for recovery of the amount and that any recovery of the amount could only be passed while exercising the powers under Section 27 of the said Act, which in the instant case has not been done.

On the other hand, the learned counsel for the complainant submitted that the District Magistrate upon an enquiry made against the Pradhan could either remove him from the said post or exonerate him under Section 95 (1)(g) of the Act, but in no case could pass an order holding him guilty of financial irregularities and allowing him to administer the administrative powers. It was submitted that the financial and administrative powers go hand in hand and that one cannot dissect the two powers, namely financial and administrative powers from each other.

The learned Addl. Chief Standing Counsel was called upon to address the issues involved and he fairly conceded that the procedure envisaged under Rule 6 of the Rules of 1997 were not adhered to but tired to justify the impugned order on the ground that there was no further charges levelled against the petitioner and since the charges were the same, which were enquired into the preliminary enquiry, consequently, there was no need to go into the same exercise under Rule 6 of the Rules of 1997. The learned Addl. Chief Standing Counsel, however, made an attempt to justify the recovery on the ground that the petitioner had committed a financial irregularity and that the District Magistrate had the power to pass an order for the recovery of the amount even under Section 95(1)(g) of the Act. The learned Addl. Chief Standing Counsel further tried to justify that the Pradhan could be permitted, in a given case, to exercise only the administrative powers, even though, his financial powers was ceased by the District Magistrate.

In order to appreciate the rival contention of the parties, it would be appropriate to refer to the provision of Section 95(1)(g) of the Act and Rules 5 and 6 of the Rules of 1997. The said provisions are extracted hereunder:

Section 95 (1) (g) provides as under:

"(1) The State Government may-

(g). remove a Pradhan. Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabhandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he-

(i) absents himself without sufficient cause for more than three consecutive meetings or sittings,

(ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude,

(iii) has abused his position as such or has persistently failed to perform the duties imposed by the Act or rules made thereunder or his continuance as such is not desirable in public interest, or

(iii-a) has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the Scheduled Castes, the Scheduled Tribes or the Backward Classes, as the case may be.

(iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or

(v) suffers from any of the disqualifications mentioned in clauses (a) to (m) of Section 5-A :

Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities, such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government.

Provided that-

(i) no action shall be taken under clause (f), clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed."

"Rule 5. Enquiry Officer--Where the State Government is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise that an enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to Clause (g) of sub-section (1) of section 95 it shall forthwith constitute a committee envisaged by proviso to clause (g) of sub-section (1) of Section 95, of the Act and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated under sub-rule (2) of the Rule 4, to hold the enquiry.'

Rule 6. Procedure of the enquiry- (1). The substance of the imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry Officer by the State Government.

(2) The inquiry officer shall draw up -

(a) the substance of the imputations into definite and distinct articles of charge; and

(b) a statement of the imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained.

(3) the Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of the imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified.

(4) On receipt of the written statement of defence, the Inquiry Officer shall enquire into such of that articles of charges as are not admitted and where all the article of charge have been admitted in the written statement of defence, the inquiry officer shall record his findings on each charge after taking such evidence as he may think fit.

(5) If the person who has not admitted any of the articles of charge in his written statement of defence, appears before the Inquiry Officer, he shall ask him whether he is guklty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiry officer shall record the plea, sign the record and obtain the signature of that person thereon, and return a finding of guilt in respect of those charge.

(6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry Officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence-

(a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents specified in the list referred to in sub-rule (2);

(b) submit a list of witnesses to be examined on his behalf;

(c) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for the discovery or production of any documents that are relevant to the inquiry and are in the possession of the State Government, but not mentioned in the list referred to in sub-rule )2)."

A perusal of Section 95(1)(g) clearly indicates that the entire exercise under Section 95(1)(g) of the Act is for the removal of the Pradhan. The Pradhan is either removed or is exonerated from the charges. Their cannot be half measures, namely, that the financial powers would be ceased but would be allowed to exercise the administrative powers, which is not purpose of the Act. The purpose is very clear and explicit, namely, that a Pradhan against whom an enquiry is to be made against alleged irregularities committed by him, if found guilty of the charges, the authority, while considering the gravity of the charges, would either remove him from the post or exonerate him.

Further, a distinction has been drawn between the preliminary enquiry and a final enquiry under Section 95 (1)(g) of the Act read with the Rules of 1997. Pursuant to the preliminary enquiry, if a prima facie case of financial irregularity is made out, the District Magistrate, while directing a final enquiry may order in his discretion, the ceasure of the financial and administrative powers of the Pradhan but, while passing a final order pursuant to the final enquiry, the authority could not pass an order ceasing the financial and administrative powers and could only pass an order either exonerating him of the charges or removing him from the post.

From a perusal of Rule 6 of the Rules of 1997, it is clear that a detailed procedure has been envisaged for holding an enquiry. This procedure is not applicable while holding a preliminary enquiry under Rule 4, and consequently, a definite charge has to be framed under Rule 6. The documents relied upon by the prosecution has to be made known and specified in the charge sheet. The charge is required to be proved against the charged person. It is a full fledged enquiry, which is required to be followed precisely in the manner, in which it has been envisaged under Rule 6 of the Rules of 1997. A preliminary enquiry does not envisage this procedure under Rule 4, and therefore, the respondents committed a manifest error in holding that since a preliminary enquiry was conducted, there was no need to hold a final enquiry with regard to the same charges

In the light of the aforesaid, the Court finds from a perusal of the impugned order that the respondents did not issue any chargesheet to the petitioner nor conducted an enquiry as per Rule 6 of the Rules of 1997. Consequently, the enquiry report and the orders passed pursuant thereto are patently erroneous in gross violation of the procedure and Article 14 of the Constitution , which cannot be sustained.

Further, the Court finds that for recovery of any amount from the Pradhan, a procedure is provided under Section 27 read with Rules 256, 257 and 258 of the U.P. Panchayat Raj Rules, 1947. This procedure is required to be followed by the District Magistrate while passing an order for the recovery of the amount. No order for recovery of any amount can be passed by the District Magistrate while passing an order under Section 95 (1)(g) of the Act. The Court is also of the opinion that financial and administrative powers go hand in hand and cannot be dissected from each other.

In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition no. 35371 of 2013 is allowed. The District Magistrate is directed to conduct an enquiry afresh under Rule 6 of the Rules of 1997 after appointing a fresh enquiry officer under Rule 5 of the said Rules. The enquiry would be completed within three months from the date of production of a certified copy of this order. During this period, the three member committee appointed by the District Magistrate will continue to discharge their functions.

In the circumstances of the case, writ petition no. 36438 of 2013 is disposed of.

Parties shall bear their own costs.

Order Date :- 2.8.2013

Sanjeev