Shaukat Hussain vs State Of U.P. And 5 Others
2019 Latest Caselaw 5439 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- WRIT - C No. - 41090 of 2018
 

 
Petitioner :- Shaukat Hussain
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Siddharth Nandan,Sri T.P. Singh
 
Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta
 

 
Hon'ble Siddhartha Varma,J.

The petitioner is an elected Pradhan of Gram Panchayat Sonakpur Dehat, Vikas Khand, Moradabad, District - Moradabad. On 30.1.2018, a report was submitted by S.D.M. Sadar by which it was, prima facie, found that the petitioner was guilty of allegations made against him in various complaints which were placed before the officials of the State. When it was, prima facie, found that the petitioner was guilty of the alleged complaints which were made against him, then a show cause notice was issued to him on 26.2.2018. To this notice the petitioner had submitted his reply and an enquiry was undertaken by the Additional District Magistrate (E) who was appointed the Enquiry Officer. He submitted his report on 11.4.2018. Consequentially, an order of removal was passed by the District Magistrate 19.4.2018, which was challenged in writ petition being Writ - C No. 17011 of 2018. This writ petition was allowed on 30.5.2018 and the order dated 19.4.2018 was set aside and the District Magistrate was required to embark upon an enquiry afresh in the manner it was contemplated under Rules 5 & 6 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, (hereinafter called as 'the 1997 Rules').

The District Magistrate once again appointed the ADM (F & R) on 14.6.2018 an Enquiry Officer, who by means of a communication dated on 20.6.2018, communicated to the petitioner the charges which he was required to meet. The relevant portion of the communication dated 20.6.2018 which contained the charges against the petitioner is being reproduced here as under:-

" D;ksa u xzke lekt dh Hkwfe ij voS/k dCtk djus ,oa xzke lekt dh laifRr dks {kfr igqpkus] iz/kku in dk nq:i;ksx djus ds vkjksi esa vkidks m0iz0 iapk;r jkt vf/kfu;e dh /kkjk&95 dh mi/kkjk ¼1½ ds [k.M ¼N½ ds mi izLrj ¼3½ esa of.kZr izkfo/kkuksa ds rgr iz/kku in ls gVk fn;k tk,A

vr% vkidks funsZf'kr fd;k tkrk gS fd mijksDr vkjksiksa ds laca/k esa ,d lIrkg ds vUnj viuk Li"Vhdj.k ¼e; lk{;ksa½ lfgr iLrqr djsaA ;fn vki O;fDrxr lquokbZ dk volj pkgrs gSa rks fnukad 27-06-2018 dks iwokZUg 10-00 cts mifLFkr gksA "

Thereafter the petitioner submitted his reply on the date fixed i.e. on 27.6.2018. A report on the basis of the enquiry was submitted by the Enquiry Officer on 1.10.2018 before the District Magistrate. A show cause notice with regard to the quantum of punishment was issued to the petitioner on 4.10.2018 on the basis of the enquiry as was conducted by the Enquiry Officer. Ultimately, the petitioner again replied on 17.10.2018. Thereafter, the final order of removal under Section 95 (1)(g) of the Panchayat Raj Act was passed on 22.11.2018. Aggrieved thereof, the petitioner filed the instant writ petition.

The petitioner has made the following submissions:-

I. The petitioner has submitted that after the report dated 30.1.2018 was submitted by the ADM (E) no charges were framed as per the provisions of Rule 6(2) (a) of the 1997 Rules. There were no distinct articles of charge supplied to the petitioner. No statement of imputation in support of each article of charge was also supplied. Learned counsel further submitted that the list of documents which would substantiate the charges was also not supplied. No list of witnesses who would depose against the petitioner was also prepared.

II. Learned counsel for the petitioner submits that even though a date for submitting the reply to the show cause notice dated 20.6.2018 was fixed there was no further date or place fixed for any further enquiry.

III. No date for leading of oral evidence was fixed. The petitioner had no knowledge as to whether there were any witnesses who were to depose against him and whether they were to be examined and, thereafter, cross-examined.

IV. The counsel for the petitioner further submitted that on 29.6.2018, 13.7.2018 and 17.10.2018 the petitioner had categorically by means of various communications, informed the Enquiry Officer that the enquiry was not being conducted properly as per the provisions of Rules 5 and 6 of the 1997 Rules. This specific allegation has been made in paragraphs 18, 19, 20 and 21 of the writ petition and he submits that the denial in paragraph 16 of the counter affidavit, was very vague.

V. Learned counsel, therefore, submits that when no norms were adhered to, the enquiry itself became vitiated. The order, therefore, requires to be set aside. Learned counsel further submits that the charges as were served upon the petitioner were so vague that in fact no reply could have been given. Learned counsel submits that the few facts that preceded the charges in the communication dated 20.6.2018 also did not, in any manner, substantiate the charges. However, since a reply was asked for, the petitioner had no option but to submit the same otherwise the punishing authority would have removed the petitioner on the ground of non submission of the reply itself.

In reply, the learned Additional Advocate General, Sri Neeraj Tripathi assisted by Sri Shashank Kumar, Advocate, has made the following submissions:-

I. If the communication dated 20.6.2018 was perused, it would be clear that the purpose for which the show cause notice was being served upon the the petitioner was absolutely clear. The report dated 30.1.2018 as was submitted by the Sub Divisional Officer (Sadar) was very clear regarding the fact the petitioner had misappropriated the land of the Gaon Sabha, of which he was the Pradhan. The other charges as were levelled against the petitioner were also very clear as portions of the report dated 30.1.2018 preceded the charges as were contained in the communication dated 20.6.2018. He submits that the facts stated in the communication dated 20.6.2018 clearly had alleged that the petitioner had illegally occupied certain properties of the Gaon Sabha land and it also could be concluded that the petitioner had misused his position as a Pradhan. Learned counsel relied upon 2013 (6) SCC 515 (Anant R. Kulkarni vs. Y.P. Education Society and Others) and specifically read out paragraph 16 of the judgement. The same is being reproduced here as under: -

"Where the chargesheet is accompanied by the statement of facts and the allegations are not specific in the chargesheet, but are crystal clear from the statement of facts, in such a situation, as both constitute the same document, it cannot be held that as the charges were not specific, definite and clear, the enquiry stood vitiated. Thus, nowhere should a delinquent be served a chargesheet, without providing to him, a clear, specific and definite description of the charge against him. When statement of allegations are not served with the chargesheet, the enquiry stands vitiated, as having been conducted in violation of the principles of natural justice. The evidence adduced should not be perfunctory, even if the delinquent does not take the defence of, or make a protest that the charges are vague, that does not save the enquiry from being vitiated, for the reason that there must be fair-play in action, particularly in respect of an order involving adverse or penal consequences. What is required to be examined is whether the delinquent knew the nature of accusation. The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.

(Vide: State of Andhra Pradesh & Ors. v. S. Sree Rama Rao, AIR 1963 SC 1723; Sawai Singh v. State of Rajasthan, AIR 1986 SC 995; U.P.S.R.T.C. & Ors. v. Ram Chandra Yadav, AIR 2000 SC 3596; Union of India & Ors. v. Gyan Chand Chattar, (2009) 12 SCC 78; and Anil Gilurker v. Bilaspur Raipur Kshetria Gramin Bank & Anr., (2011) 14 SCC 379). ".

II. Sri Neeraj Tripathi further submitted that after communication dated 20.6.2018 was served upon the petitioner a subsequent communication dated 21.6.2018 was also served upon him, wherein all the documents which formed the basis of charges were supplied to the petitioner. He submits that this document was also duly received by the petitioner.

III. Sri Tripathi further submits that in the reply dated 27.6.2018, the petitioner had not objected to the method in which the enquiry was being conducted. Learned Additional Advocate General submitted that no objection was taken to the fact that no list of evidence, oral as also documentary was supplied to the petitioner. He submits that even the petitioner had not supplied any list of witnesses which he wanted to examine or cross-examine in his defence.

IV. Learned Additional Advocate General submitted that the petitioner was also granted an opportunity of personal hearing which he did not avail.

Sri Gupta who appears for the subsequently appointed Pradhan adopted the arguments of the learned Additional Government Advocate and submitted that the petitioner had all the opportunity to reply to the charges and prove himself innocent but he never availed the opportunity, therefore, he himself had to be blamed for that.

Having heard the learned counsel for the petitioner Sri T.P. Singh, Senior Advocate, assisted by Sri Siddhartha Nandan, learned Additional Advocate General Sri Neeraj Tripathi for the State and, Sri Pankaj Kumar Gupta for the officiating Pradhan, I am of the view that the provisions of Rule 6 of the 1997 Rules were not adhered to. If the charges in the communication dated 20.6.2018 are perused one cannot make out as to what reply the petitioner had to give and what exactly were the charges. Even the facts which preceded the charges in the communication dated 20.6.2018 do not clarify the charges with any certainty. The charges, therefore, were definitely vague. It is not clear as to which property of which Gaon Sabha was encroached upon by the petitioner. Further the charge that the petitioner had misused his position was also not clear. There is absolutely no statement of the imputations of the articles of charges which were levelled against the petitioner. The list of documents did not accompany the charges. Even the complaints as were served upon the petitioner by the document dated 21.6.2018 did not contain the statutory affidavit and other requisites. The list of witnesses which had to be supplied was not there and therefore it was not clear as to who was to be examined and, thereafter, cross-examined.

Learned counsel for the petitioner had relied upon the decision reported in 2009 (3) ADJ 591 (Satendra Singh vs. State of U.P. and Others) and had submitted that if the charges were vague then the enquiry would stand vitiated. Since the learned counsel read out paragraphs 14 to 19, the same are being reproduced here as under:-

"14. As regards the fourth point, which is with regard to non-compliance of Rule 6 of the Rules of 1997, inasmuch as, non framing of charges and consequently, non service of any charge sheet and no opportunity being given to the petitioner to rebut the charges, specific averments in this regard have been made in paras 28, 29, 30 and 31 of the writ petition, to which there is a vague denial in paras 23, 24, 25 and 26 of the counter affidavit. It appears that the author of the counter affidavit had not understood the contents made in the paragraph of the writ petition and while replying to the allegations with regard to non submission of charge sheet and affording of opportunity to the petitioner at the stage of enquiry, what has been stated in para 25 of the counter affidavit is that the show cause notice dated 17.5.2008 had been issued to the petitioner, which was sufficient compliance. A show cause notice was issued to the petitioner after the submission of the final enquiry report on 12.5.2008. In the counter affidavit it has not been stated that any charge sheet was ever given to the petitioner or any opportunity was given to him by the enquiry officer to rebut the charges. As such, it is clear that the enquiry was held in violation of provisions of Rule 6 of the Rules of 1997, which gives a detailed procedure, including the enquiry officer providing the petitioner with copy of the complaint and drawing of charges, which were required to be delivered to the petitioner and opportunity be given to the petitioner to submit his reply and file his written statement of defence and produce his witnesses etc.

15. From the above, it is clear that the enquiry was conducted in violation of the provisions of Rule 6 of the Rules of 1997.

16. As regards the last point raised by the petitioner, that after submission of the final enquiry report, the petitioner had submitted his reply, which was not considered by the District Magistrate while passing the impugned order dated 16.6.2008, the specific case of the petitioner is that after having receiving the show cause notice dated 17.5.2008 on 27.5.2008, a reply was submitted by the petitioner on 11.6.2008 (a copy of which has been filed as Annexure 12 to the writ petition, with the endorsement of receipt by the office of the District Magistrate, Ghaziabad). The petitioner has specifically averred in paragraphs 15 and 16 that the reply was submitted on 11.6.2008. Reply to the same has been given in para 11 of the counter affidavit to the effect that there is no need to reply to the same and in paragraph 12 to the effect that enquiry was got conducted and an enquiry report was submitted without any political pressure. However, it has not been denied that the reply to the show cause notice was submitted by the petitioner on 11.6.2008. However, in the impugned order, it has been mentioned that no reply had been submitted to the show cause notice given to the petitioner and thus it was stated in the impugned order that the petitioner had nothing to say and the charge of embezzlement of over Rs.1.5 lacs against the petitioner stood proved.

17. It is unfortunate that even though it is not denied that the reply to the show cause notice had been received on 11.6.2008, in the impugned order it has been mentioned that no reply had been submitted by the petitioner. It is thus clear that the District Magistrate proceeded to decide the matter without considering the reply given by the petitioner to the show cause notice dated 17.5.2008.

18. From the aforesaid, it is clear that besides the appointment of the enquiry officer being made in total violation of provisions of Rules of 1997, the entire preliminary enquiry as well as final enquiry had also been conducted in violation of the Rules and in arbitrary manner. Further, even the final order passed by the District Magistrate on 16.6.2008 is totally unjustified, inasmuch as, the same has been passed without considering the reply of the petitioner submitted on 11.6.2008. It is further absolutely clear from the aforesaid that the entire action against the petitioner was motivated and with predetermined mind to oust the petitioner. This Court does not want to go into the question as to whether there was any political pressure on the authorities, as has been alleged in the writ petition, but the entire action against the petitioner and the order passed by the District Magistrate clearly shows that the same has been done without having any regard for the procedure prescribed under the Act and the Rules.

19. Democracy in our country begins at the grass root level with elections of Gram Pradhans in villages and the same is the very foundation of our democracy. No doubt, the District Magistrate has the power to either cease the financial and administrative powers or oust the democratically elected Gram Pradhan under Section 95(1)(g) of the Act, but the said power is to be exercised only in exceptional and extra ordinary cases, and should be exercised with utmost caution and not in a routine manner at the whims and fancies of the administrative authorities, without following the procedure prescribed under the Act and the Rules. The present case is a glaring example where action has been taken in gross violation of the Act and the Rules of 1997 framed thereunder and a democratically elected Pradhan has been wrongly kept away and deprived of his elected office for several months."

Learned counsel for the petitioner had also relied upon a judgment of this Court dated 4.12.2013 rendered in Civil Misc. Writ Petition No. 60813 of 2013 and had stated that the charges as were required to be framed under Rule 6 had to be framed specifically and the list of all the documents which were relied upon while framing the charges also had to accompany the charges which were served upon the petitioner. It is also clear from the decisions as have been cited by the learned counsel for the petitioner that the list of witnesses on whose statement the enquiry was to be conducted also had to be given out. Further, I find that the petitioner after having submitted his reply on 27.6.2018 had consistently prayed that the enquiry had to be conducted as per the provisions of Rule 6 of the 1997 Rules but somehow his requests were not heeded to.

Under such circumstances, having found that the charges themselves which were served on 20.6.2018 were absolutely vague and not in consonance with Rules 6 (2) (a) of the 1997 Rules, the enquiry cannot be sustained and the consequential orders, therefore, have to be set aside.

The writ petition is allowed.

The order dated 22.11.2018 is set aside. The consequences of setting aside the impugned order dated 22.11.2018 shall follow.

Copy of this order be supplied on the payment of usual charges within 48 hours.

Order Date :- 3.7.2019

praveen.