Usha Devi (Smt.) vs State Of U.P. & 2 Others
2014 Latest Caselaw 3937 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - C No. - 900 of 2014
 

 
Petitioner :- Usha Devi (Smt.)
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Alok Kumar Yadav,Niraj Tiwari
 
Counsel for Respondent :- C.S.C.,Anil Tiwari,V.P. Yadav
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Alok Kumar Yadav, learned counsel for the petitioner Sri V.P.Yadav, learned counsel for the respondents and perused the record.

2. The writ petition is directed against order dated 19.12.2013 (Annexure 9 to the writ petition) passed by District Magistrate, Jaunpur under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as "Act, 1947") restraining petitioner from exercising financial and administrative powers in the capacity of Pradhan, Gram Sabha Tazuddinpur, Block Mariyahoon and appointing Enquiry Officer to conduct final inquiry under the rules on the basis of a fact finding report submitted by Assistant Director, (Savings), Jaunpur and Junior Engineer, Rural Engineering Services, Mariyahoon in a joint inquiry.

3. The facts giving rise to the present dispute are as under:

4. The petitioner was elected Gram Pradhan of Gram Sabha Tazuddinpur, Tehsil Mariyahoon, District Jaunpur in the election held in 2010. One Manoj Kumar, Son of Raj Bahadur Yadav, on account of animosity, made a complaint dated 06.5.2013, which was allegedly signed by some other villagers also. On the said complaint, District Magistrate, Jaunpur passed an order directing Chief Development Officer, Jaunpur to take "immediate necessary action". District Panchayat Raj Officer, Jaunpur issued a letter dated 29.6.2013 addressed to District Savings Officer informing that on the complaint made by Sri Manoj Kumar with a notarial affidavit, District Magistrate, vide order dated 18.6.2013 has appointed him (District Savings Officer) as Enquiry Officer and therefore, he should submit report within a fortnight.

5. However, an enquiry report thereafter was submitted by Assistant Director (Savings) Jaunpur. Most of the work, he found, was performed but in respect to construction, he found following shortcomings:

^^1- dk;Z dh Lohd`fr ugha ikbZ x;hA

2- dk;Z dk LVhesV cuok;k x;k fdUrq mldh Lohd`fr ugha ikbZ x;hA

3- dk;Z djkdj Hkqxrku fd;k x;k ftldh rduhdh tkap ugha djk;kA^^

English Translation by the Court

"1. No approval for the work was found

2. The estimate of the work was prepared but approval therefor was not found to be there.

3. Having the work done payment was made but no technical examination was conducted."

6. He (Assistant Director Saving, Jaunpur) also appended following note in the report:

^^uksV%& voj vfHk;Urk xzkeh.k vfHk;a=.k foHkkx efM;kgq tkSuiqj }kjk miyC/k djk;h xbZ tkap vk[;k ds dkye 6 ,0a 7 ij O;; /kujkf'k dS'k cqd ds vuqlkj fHkUu ikbZ xbZ gSA**

English Translation by the Court

"Amounts of expenses as in columns 6 and 7 of the inquiry report made available by the Junior Engineer, Rural Engineering Department, Mariyahu, Jaunpur were found to be different when compared with the Cash Book."

7. The District Magistrate, thereafter issued a show cause notice dated 30/31.10.2013 (Annexure 6 to the writ petition). The petitioner was required to submit reply as to why further action under Section 95(1)(g) of Act, 1947 be not taken against him since petitioner is found guilty of misappropriation of funds of Rs.7,97,744/-. The petitioner filed reply dated 27.11.2013 denying all the allegations but thereafter District Magistrate has passed the impugned order ceasing financial and administrative power of petitioner during regular final enquiry under Section 95(1)(g) of Act, 1947.

8. Counsel for the petitioner contended that no fact finding enquiry or preliminary enquiry has been conducted by inquiry officer appointed by District Magistrate and therefore, the very report, on which District Magistrate has passed impugned order, has been submitted by a person, who was not authorized to do so, hence the entire proceedings are illegal and void ab initio. It is submitted that in view of Full Bench judgment of this Court in Vivekanand Yadav Vs. State of U.P. & Anr., 2010 (10) ADJ 1 (FB), District Magistrate can rely upon report of a person, who is an "Enquiry Officer", as defined under Rule 2(c) of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as "Rules, 1997") and also if preliminary enquiry has been conducted by District Magistrate himself and not otherwise.

9. The matter has been contested by respondents. A counter affidavit has been filed on behalf of respondents 1 and 2, which has been sworn by Sri A.K.Singh, District Panchayat Raj Officer, Jaunpur. He has stated therein that after receiving complaint, District Magistrate, vide order dated 30.08.2013, nominated Assistant Director (Savings), Jaunpur, Junior Engineer Rural Engineering Services and Station House Officer, Madiyahoon to conduct a preliminary enquiry. They submitted report showing petitioner, prima facie guilty, of misappropriation/embezzlement of a sum of Rs.7,97,744/- whereupon a show cause notice was given to petitioner and after considering his reply, impugned order dated 19.12.2013 has been passed, which is absolutely valid and in accordance with law and warrants no interference. Copy of enquiry report submitted by Assistant Director (Savings), Jaunpur has also been placed on record as Annexure C.A.1 to the aforesaid counter affidavit.

10. Sri V.P.Yadav, Sri Anil Tiwari and Sri Rajeshwar Prasad Yadav, Advocates, have filed an impleadment application as well as counter affidavit on behalf of Manoj Kumar Yadav, complainant, and therein have annexed copy of their complaint dated 06.5.2013. It is stated that an enquiry was conducted by Assistant Director (Savings), Jaunpur, who submitted tentative report dated 03.08.2013 to District Panchayat Raj Officer, Jaunpur. The report was not complete as on certain technical aspect, no opinion was expressed and therefore, a team was constituted comprising of Assistant Director (Savings), Jaunpur, and a Junior Engineer (Rural Engineering Services), who has technical knowledge. The said team inspected the site, conducted technical inspection and thereafter submitted another report on 28.7.2013, on the basis whereof, impugned order has been passed, which does not warrant any interference.

11. The only question, up for consideration, whether on the basis of so called preliminary report/fact finding report, submitted by Assistant Director (Saving), an order for ceasing financial and administrative powers could have been passed under Section 95(1)(g) of Act, 1947.

12. The law laid down by Full Bench in Vivekanand Yadav (supra) can be summarised as under:

(I) Section 95(1)(g) contemplates removal of Pradhan while Proviso to Section 95(1)(g) talks of enquiry before ceasing financial and administrative powers during pendency of a removal proceeding. If Pradhan is prima facie found to have committed financial and other irregularities, preliminary/fact finding enquiry under Section 95(1)(g) proviso is necessary, which has to be conducted under Rule 4 of Rules, 1997.

(II) Proviso to Section 95(1) would apply to Section 95(1)(g) contemplating removal but not to any other provision like Proviso to Section 95(1)(g).

(III) The proviso to Section 95(1) provides for reasonable opportunity in removal proceedings of a Pradhan under Section 95(1)(g) but it does not apply to Proviso to Section 95(1)(g) providing for preliminary or fact finding enquiry: the purpose of this enquiry is to find out if there is any prima facie case against Pradhan or not.

(IV) Proviso to Section 95(1)(g) providing cessation of financial and administrative powers does contemplate a preliminary enquiry by a person and procedure is to be prescribed: the Rules have to be framed for the same. Rules, 1997 thus have been framed because it is so mandated in the Proviso to Section 95(1)(g) of Act, 1947 and not because of 95(1)(g) or the Proviso to Section 95(1).

(V) The District Magistrate can order a preliminary enquiry on the complaint or report or otherwise. The word 'complaint' or 'report' refers to the complaint by a private person or to the report made by a public servant under Rule 3.

(VI) The District Magistrate has power to refer a case for preliminary enquiry even if there is no complaint or report. In other words, he has power to act suo moto.

(VII) Even if a complaint made is not entertainable in view of Rule 3(5) of Rules, 1997 yet District Magistrate can always refer the matter for preliminary enquiry, if he consider that it should be so enquired; since he can act suo moto.

(VIII) The word "otherwise" in Rule 4 means that District Magistrate has suo motu powers to order a preliminary enquiry, and, he may order a preliminary enquiry even if there is no complaint or report; or a defective complaint, not in accordance with Rules 3(1) to 3(4).

(IX) A Pradhan has no right to object that a complaint is not in accordance with Rules 3(1) to 3(4) of Rules, 1997 and hence no inquiry can be ordered.

(X) A Pradhan is neither entitled to be associated in preliminary enquiry nor entitled to get copy of preliminary enquiry report. His only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed.

(XI) It is not only necessary that explanation or point of view or version of affected pradhan should be obtained but should also be considered before being prima facie satisfied of his being guilty of financial and other irregularities and ceasing his powers. The consideration of explanation does not have to be a detailed one but there should be indication that mind has been applied.

(XII) The proceeding for removal has to be conducted in accordance with Rules 6 onwards of Rules, 1997, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. However, where right to exercise financial and administrative power is also to be ceased then procedure in Rules 3 to 5 has to be followed, otherwise there is no necessity to follow them.

(XIII) In other words, preliminary enquiry may not be necessary if the proceeding for removal is to be undertaken without ceasing power of pradhan in respect to administrative and financial matters.

(XIV) In order to exercise power under Rule 5, to cease administrative and financial powers of Pradhan under Proviso to Section 95(1)(g) of Act, 1947, District Magistrate can pass order in the following contingencies:

(i) A complaint can be made directly to the District Magistrate who may ask the enquiry officer as defined under Rule 2 (c) to conduct a preliminary inquiry under Rule 4 ; or

(ii) A complaint can be made directly to the enquiry officer defined under Section 2 (c), who may submit a report without the District Magistrate asking for it ; or

(iii) A complaint can be made to the District Magistrate with a copy to enquiry officer, who may submit a report, without the District Magistrate asking for it ; or

(iv) A District Magistrate can himself conduct a preliminary enquiry.

(XV) Any other report can be considered by District Magistrate under Rule 3(6) of Rules, 1997 for ordering preliminary enquiry but final enquiry with cessation of power cannot be ordered on its basis. In other words, action under Proviso to Section 95(1) (g) can also be taken on the preliminary report of District Magistrate as well as on a report of a person defined as enquiry officer under Rule 2(c) of Rules, 1997. Only these reports would be covered in the word 'otherwise' of Rule 5.

13. Now, in the light of above exposition of law, it has to be examined, in the case in hand, whether enquiry report relied on by District Magistrate, treating it to be a preliminary enquiry report, satisfy the requirement of statute or not.

14. Firstly, I do not find any order passed by District Magistrate appointing any District Level Enquiry Officer to conduct a preliminary enquiry in this matter. Different orders and dates have been mentioned, inasmuch as, in District Panchayat Raj Officer's letters dated 29.6.2013 (Annexure 3 to the writ petition) it is stated that District Magistrate has appointed District Saving Officer, Jaunpur as Enquiry Officer. The relevant part reads as under:

^^ftldh tkpa gsrq ftykf/kdkjh egksn; ds vkns'k fnukad 18-06-2013 }kjk vkidks tkpa vf/kdkjh ukfer fd;k x;k gSA^^

English Translation by the Court

"For enquiry whereof, vide District Magistrate's order dated 18.06.2013, you have been nominated as Enquiry Officer."

15. In the counter affidavit filed on behalf of respondents 1 and 2, it has been stated in para 4 thereof that vide order dated 30.8.2013, District Magistrate nominated Assistant Director (Savings), Jaunpur; Junior Engineer, Rural Engineering Service, and Station House Officer, Mariyahoon to conduct preliminary enquiry. In the counter affidavit, filed by complaint Manoj Kumar Yadav, he has referred to a report dated 3.8.2013 submitted by Assistant Director (Saving), Jaunpur to District Panchayat Raj Officer, Jaunpur with reference to his letter dated 29.6.2013 pursuant whereto the said report was submitted. Thereafter another report was submitted by Assistant Director (Saving) with letter dated 28.9.2013 and here also it has referred to District Panchayat Raj Officer's letter dated 29.6.2013 and none else. There is no reference of any alleged letter dated 30.8.2013 of District Magistrate nominating a three members committee to conduct preliminary enquiry and submit report consisting of Assistant Director (Saving), Junior Engineer, Rural Engineering Service and Station House Officer, Mariyahoon.

16. The documents on record show that the only order passed by District Magistrate was addressed to Chief Development Officer to take appropriate action on the complaint. The letter dated 29.6.2013 issued by District Panchayat Raj Officer clearly says that District Magistrate vide order dated 18.6.2013 has appointed District Saving Officer, Jaunpur as Enquiry Officer to conduct preliminary enquiry but no enquiry report has been submitted by District Saving Officer. This fact is not disputed by respondents. It is thus evident that Assistant Director (Saving) was never an officer, appointed by District Magistrate, to conduct enquiry in the matter. He has submitted report, either after receiving some instruction from District Saving Officer or from any other officer, orally. The report therefore, submitted by Assistant Director (Saving), is illegal and without jurisdiction. It would not qualify to be a relevant document on which an order under Rule 3(5) read with Proviso to Section 95(1)(g), for cessation of administrative and financial powers of Gram Pradhan, could have been passed, in view of law laid down by Full Bench in Vivekanand Yadav (supra).

17. Even otherwise, Assistant Director (Saving) is not a District Level Officer and, therefore, he would not satisfy definition of "Enquiry Officer" under Rule 2(c) of Rules, 1997. His report therefore, also cannot treated to be a "preliminary enquiry report" submitted by a Enquiry Officer, as defined in Rules 1997. That being so, such a report cannot constitute a valid material to pass an order for cessation of financial and administrative powers under Section 95(1)(g) Proviso, read with Rule 3(5) of Rules, 1997.

18. In the result, the writ petition succeeds and is allowed. The impugned order dated 19.12.2013 (Annexure 9 to the writ petition) being wholly illegal and without jurisdiction, is hereby quashed.

19. The petitioner shall be entitled to cost, which I quantify to Rs.5,000/-.

Order Date :- 2.8.2014

KA