Smt. Meera Devi vs State Of U.P. Thru. Prin. Secy., ...
2019 Latest Caselaw 1316 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 18
 

 
Case :- MISC. SINGLE No. - 26881 of 2018
 

 
Petitioner :- Smt. Meera Devi
 
Respondent :- State Of U.P. Thru. Prin. Secy., Panchayat Raj & Ors.
 
Counsel for Petitioner :- Kaushlendra Tewari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rakesh Srivastava,J.

1. The order dated 29.8.2018 passed by the District Magistrate, Pratapgarh under the proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 (for short 'the Act') whereby the financial and administrative power of the petitioner has been ceased is under challenge in the present writ petition.

2. The petitioner is the elected Gram Pradhan of Gram Panchayat Kaulapur, Block Gaura, Tehsil Raniganj, District Pratapgarh. M/s Ram Prasad, Bansidhar Mishra, Santosh Kumar, Santosh Prajapati and Ram Pal Yadav along with other villagers made a complaint against the petitioner pertaining to some financial irregularities alleged to have been committed by the petitioner. The local MLA also wrote a letter for initiating action against the petitioner as well as the Gram Panchayat Officer. It appears that on receiving the complaint the District Magistrate forwarded the same to the Chief Development Officer, Pratapgarh. The Chief Development Officer, in turn, by his letter dated 6.7.2017 constituted a committee comprising Sub Divisional Officer, Raniganj, Block Development Officer, Gaura and Assistant Engineer, Minor Irrigation, District Pratapgarh to conduct an enquiry against the petitioner. The letter dated 6.7.2017 of the Chief Development Officer is extracted below: -

"dk;kZy; eq[; fodkl vf/kdkjh] izrkixi=kad 432 @vk'[email protected]@2017&18	      fnukad % tqykbZ 06] 2017
 
1- miftykf/kdkjh jkuhxat
 
2- [k.M fodkl vf/kdkjh xkSjk
 
3- lgk;d vfHk;Urk] y?kq flapkbZ
 
tuin&izrkix<
 

d`i;k ftykvf/kdkjh egksn; ds ek/;e ls izkIr ek0 fo/kk;d jkuhxat ds i= dk lUnHkZ xzg.k djsa ftlds }kjk xzke dkSykiqj] fodkl[k.M xkSjk ds xzke iz/kku o xzke iapk;r vf/kdkjh ds fo:) 10 xzkeokfl;ksa ds ek/;e ls 'kiFki= izLrqr djrs gq, f'kdk;r dh x;h gSA

mDr f'kdk;r ds n`f"Vxr miftykf/kdkjh jkuhxat dh v/;{krk esa f=lnL;h; tkap lfefr dk xBu fd;k tkrk gSA xfBr lfefr ds lHkh vf/kdkfj;ksa dks funsZf'kr fd;k tkrk gS fd f'kdk;rhi= es mfYyf[kr fcUnqvksa dh tkap dj fu;ekuqlkj vko';d dk;Zokgh djrs gq, la;qDr :i ls vk[;k ,d lIrkg ds Hkhrj v/kksgLrk{kjh dks miyC/k djk;sA

layXud%&;FkksifjA

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eq[; fodkl vf/kdkjh

izrkix (emphasis supplied)

3. The enquiry committee in its report (annexure CA-2 to the counter affidavit filed on behalf of the State respondents) found the petitioner prima facie guilty of misappropriation and embezzlement. On the basis of the said enquiry report the District Magistrate issued a show cause notice dated 23.2.2018 to the petitioner requiring her to show cause as to why action be not taken against her under the proviso to Section 95(1)(g) of the Act. On 7.3.2018, the petitioner submitted her reply denying the charges levelled against her in the show cause notice mentioned above.

4. On 29.8.2018, the District Magistrate passed the impugned order whereby the financial and administrative powers of the petitioner were ceased and a three members committee was constituted to look after the development work of Gram Panchayat. Relevant portion of order dated 29.8.2018 is extracted below: -

"mijksDr ds lEcU/k esa Jherh ehjk nsoh xzke iz/kku mijksDRk dks m0iz0 iapk;rjkt vf/kfu;e 1947 dh /kkjk 95 ¼1½¼N½ esa fufgr izkfo/kkuksa ds vUrxZr dkj.k crkvks uksfVl ftyk eftLVsªV izrkix< ds i= la[;k 4460 fnukad 23-02-2018 dks fuxZr fd;k x;k ftldk izfrmRrj xzke iz/kku }kjk fnukad 07-03-2018 dks izLrqr fd;k x;kA xzke iz/kku }kjk izLrqr Li"Vhdj.k ijh{k.kksijkar laxzkg~; u ik;s tkus ij fujLr djrs m0iz0 iapk;rjkt vf/kfu;e 1947 dh /kkjk 95¼1½¼N½ esa fufgr izkfo/kkuksa ds vUrxZr dk;Zokgh izkjEHk djrs gq, muds foRrh; ,oa iz'kklfud vf/kdkjksa dks izfrcfU/kr djrs gq, xzke iapk;r ds dk;ksZ ds lapkyu gsrq fuEufyf[kr rhu lnL;h; foRRkh; ,oa iz'kklfud lfefr dk xBu fd;k tkrk gSA"

(emphasis supplied)

5. Shri I.P. Singh, Senior Counsel assisted by Shri Kaushlendra Tewari, learned counsel for the petitioner has submitted that under the Rules only the District Magistrate could have nominated an Enquiry Officer to conduct the preliminary enquiry against the petitioner. The counsel submits that financial and administrative power of the petitioner could not be ceased on the basis of an enquiry report submitted by the enquiry committee constituted by the Chief Development Officer. Learned counsel has further submitted that, as per the Rules, only a District level officer could be appointed to hold a preliminary enquiry, and as two out of the three members of the enquiry committee were not District level officers, the impugned order passed on the basis of the enquiry report submitted by the said committee stands vitiated. Even otherwise, the counsel submits that the impugned order, having been passed without taking into account the reply submitted by the petitioner to the show cause notice, cannot be sustained.

6. Per contra, the learned Standing Counsel has supported the impugned order.

7. Section 95(1)(g) of the Act reads as under: -

"95. Inspection - (1) The State Government may -

(g) remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak 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 this 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) or Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of 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."

8. Section 95(1)(g) of the Act contemplates removal of a Pradhan. As per the proviso to Section 95(1)(g) where a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities, in an enquiry, held by such person and in such manner as may be prescribed, such Pradhan or Up-Pradhan, as the case may be, ceases to exercise and perform the financial and administrative powers and functions untill he is exonerated of the charges in the final enquiry.

9. In exercise of the powers conferred by Section 110 read with Clause (g) of sub-Section (1) of Section 95 of the Act, the State Government has framed rules known as the U.P Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (for short 'the Rules') laying down the procedure for holding an enquiry (preliminary as well as final). Rules 2(c), 3, 4 and 5 being relevant, are extracted below: -

"2.(c) 'Enquiry Officer' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.

3. Procedure relating to complaints.- (1) any person making complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any other officer empowered in this behalf by the State Government.

(2) every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavit in support thereof and also affidavit of all persons from whom he claims to have received information of facts relating to accusation, verified before a notary, together with all documents in his possession or power pertaining to accusation.

(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavits respectively.

(4) Not less than three copies of the complaint as well as each of its annexure shall be submitted by the complainant.

(5) A complaint which does not comply with any of the foregoing provisions of this Rule shall not be entertained.

(6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule if a complaint against a Pradhan or Up-Pradhan is made by a public servant.

4. Preliminary Enquiry.--(1) The State Government may, on the receipt of a complaint or report referred to in Rule 3, or otherwise order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter.

(2) The Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered.

5. 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 Rule (4), to hold the enquiry."

10. From a perusal of Rule 3, 4 and 5 of the Rules it is apparent that a detailed procedure has been prescribed for making a complaint against the Pradhan, the appointment of Enquiry Officer and holding of preliminary enquiry and passing the order thereon.

11. It is not in dispute that in exercise of the power conferred by Section 96-A of the Act, by a notification no.1648/31-1-1979-123/97 Lucknow dated 30.4.1997, the State Government has delegated its power under Section 95(1)(g) of the Act as well as under the Enquiry Rules to the District Magistrate.

12. Any person can make a complaint against a Pradhan or Up-Pradhan to the District Magistrate in accordance with sub-Rule (2) of Rule 3. As per Rule 4 of the Rules, the District Magistrate on the receipt of a complaint or a report referred to in Rule 3 or otherwise order the Enquiry Officer to conduct a preliminary enquiry with a view to find out if there is a prima facie case for a formal enquiry in the matter. As per Rule 5 of the Rules, on the basis of the report referred to in sub-Rule (2) of Rule 4 or otherwise if the District Magistrate is of the opinion that an enquiry should be held against a Pradhan or Up-Pradhan or Member, he is obliged to constitute a Committee in terms of the proviso to Section 95(1)(g) of the Act and to simultaneously nominate an Enquiry Officer other than the one nominated for conducting a preliminary enquiry to hold a formal enquiry in the matter.

13. It is well settled that the District Magistrate could record his prima facie satisfaction for ceasing the financial and administrative powers and for holding a formal enquiry against a Pradhan only on the basis of a preliminary enquiry report submitted by an Enquiry Officer defined under Rule 2(c) of the Rules or on the basis of a preliminary enquiry conducted by the District Magistrate himself.

14. A Full Bench of this Court in Vivekanand Yadav v. State of U.P. & Ors., 2011 (29) LCD 221, while considering the meaning of the word 'otherwise' in sub-Rule (1) of Rule 5 of the Rules, opined as under: -

"85. The question is, what is the meaning of word 'otherwise' in rule 5: Can it include a report by anyone or information coming into hands of the DM; Has the DM suo motu power to cease the power and refer the case for the final enquiry?

* * *

88. Under proviso to section 95(1)(g) right to exercise financial and administrative powers can only be ceased if the DM prima facie finds that the pradhan was guilty of financial and other irregularities in an enquiry (preliminary or fact finding) by such person and in the manner prescribed. It is only on such a report that might come within the purview of the word 'otherwise' in rule 5 of the Rules. All kinds of reports or information may not be relied under rule 5 lest the rule may be hit by the statutory provision.

89. In our opinion, in view of proviso to section 95(1)(g) it cannot be given as wide a meaning as we gave to the words 'otherwise' in rule 4. It has to have restricted meaning. Let's consider, what kind of reports may be covered by the proviso to section 95(1)(g) and the word 'otherwise' in rule 5 of the Enquiry Rules.

90. Rule 2(c) defines 'Enquiry Officer'. It means the DPRO or any other district level officer to be nominated by the DM. The following contingencies may be there:

(i) A complaint can be made directly to the DM who may ask the enquiry officer as defnined 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 DM asking for it; or

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

(iv) A DM can himself conduct a preliminary enquiry; or

(v) A report can be submitted by any other public servant.

91. In all the aforesaid alternatives, a preliminary enquiry is conducted and a preliminary report is there. The question is, which one of these can be acted upon 22 under rule 5 to cease the power under proviso to section 95(1)(g) of the Panchayat Raj Act. According to the petitioners only first of the aforesaid report can be relied upon; The respondents all five reports can be relied upon. In our opinion, answer lies somewhere in between and only the first four reports can be so relied.

92. There is no dispute so far as first contingency is concerned. The fifth one has to be rejected. In case it is accepted, then this would make rule 3(6) otiose. In our opinion this cannot be the case. However this cannot be said about contingencies number two to four.

* * *

95. It is not necessary for the DM to specifically ask the enquiry officer to conduct a preliminary enquiry. There seems to be no point in asking the enquiry officer to conduct a preliminary enquiry again even if he submitted a report after the enquiry. It would be futile exercise unless the DM disagrees with the report of the enquiry officer.

96. A report by an enquiry officer defined under rule 2(c) is also a report by a person and the manner is prescribed under the Rules--irrespective of the fact that he was so asked by the DM or not. In our opinion, it is also a preliminary report within the meaning of the proviso to section 95(1) (g) of the Panchayat Raj Act.

97. The DM exercises the powers of the State Government under section 95(1)(g) as well as under the Enquiry Rules as the powers are delegated to him. He also appoints the enquiry officer. He is higher than all enquiry officers. He can himself conduct a preliminary enquiry. It would be anomalous that on a preliminary report of a subordinate officer, a final enquiry and cessation of power can be ordered but the DM, who appoints him, cannot conduct a preliminary enquiry.

98. In our opinion, action under proviso to section 95(1)(g) can also be taken on the preliminary report of the DM as well as on a report of a person defined as enquiry officer under rule 2(c) of the Enquiry Rules. Only these reports would be covered in the word 'otherwise' of rule 5. Any other report would be a report under rule 3(6) of the Enquiry Rules or can be considered by the DM under his s uo motu power to order a preliminary enquiry but final enquiry with cessation of power can not be ordered on its basis."

(emphasis supplied)

15. In Narendra Kumar v. State of U.P. & Ors, 2013 (31) LCD 90 following the decision in the case of Vivekanand Yadav (supra) a learned Single Judge of this Court, while setting aside an order ceasing the financial and administrative powers of the Pradhan in the said case, held as under: -

"36. The preliminary enquiry has to be conducted by an Enquiry Officer contemplated under Rule 2(c) of the Rules namely either the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate. The District Magistrate, as noticed hereinabove, had not nominated the Enquiry Officer and nor the members of the Committee were 'district level officers'. The District Magistrate could form his prima facie satisfaction for holding a final enquiry only on the basis of the report submitted by the Enquiry Officer defined under Rule 2(c) of the Rules.

37. The Full Bench of the Court in Vivekanand Yadav (supra) examined at length the provisions of Section 95(1)(g) of the Act and the Rules and observed that the District Magistrate could form his prima facie satisfaction for holding a formal enquiry and cease the financial and administrative powers of the Pradhan only on the preliminary enquiry report submitted by the Enquiry Officer defined under Rule 2(c) of the Rules or on the basis of the preliminary enquiry conducted by the District Magistrate himself.

38. It is clear from the aforesaid decision of the Full Bench that the report of the committee constituted by the Block Development Officer on the complaint filed by Mohd. Taufeeq could not have formed the basis for the District Magistrate to cease the financial and administrative powers of the Gram Pradhan and nor could it form the basis for ordering the formal enquiry. It could, at best, be considered by the District Magistrate under his suo motu power to order a preliminary enquiry."

(emphasis supplied)

16. In Smt. Shyam Wati v. State of U.P. & Ors, 2013 (31) LCD 1054 this Court reiterated that under the Rules the Enquiry Officer has to be nominated by the District Magistrate and only a District level officer could be nominated as an Enquiry Officer. This Court held as under:

"39. It is also to be noted that the said enquiry committee was not appointed by the competent authority i.e. District Magistrate as it was constituted by the order of the Chief Development Officer, Unnao. The committee was comprising of two officers who, though, are the public servants but are not such public servants who could be the district level Officers, as such, they could not be nominated by the District Magistrate as Enquiry Officer as defined under Rule 2 (c) of the Enquiry Rules.

* * *

51. Thus, in view of the prescriptions made under Rules 2(c), 4 and 5 of the Enquiry Rules, there could be no escape from the conclusion that the enquiry has to be held by an Enquiry officer defined as such under Rule 2(c) and any enquiry held by a Committee with the participation of the public servants who could not be the Enquiry officer at all, should not be taken and regarded at all as an enquiry report envisaged under Rule 4 of the Enquiry Rules."

(emphasis supplied)

17. The record indicates that on receiving the complaints the Chief Development Officer, on his own, constituted three members committee to hold an enquiry against the petitioner and submit its report. It is not in dispute that two members of the said committee i.e. Block Development Officer and Assistant Engineer are not District level officers. Under the Rules a preliminary enquiry against the Pradhan could be held either by the District Panchayat Raj Officer whether he is so asked by the District Magistrate or not, or by a District level officer nominated by the District Magistrate.

18. It is a settled principle of law that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all. In Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422, the Apex Court has held as under: -

"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, which was followed by Lord Roche in Nazir Ahmad v. King Emperor, who stated as under: (Nazir Ahmad case, IA pp. 381-82)

''... where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.'

32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 = AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan, 1962(1) SCR 662 = AIR 1961 SC 1527. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh, AIR 1964 SC 358 = (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."

(emphasis supplied)

19. In Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors, (2002) 1 SCC 633, a Constitution Bench of the Apex Court reiterated the above principle in by observing as under: -

"It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself."

(emphasis supplied)

20. Admittedly, the enquiry committee, which has held the preliminary enquiry against the petitioner was constituted by the Chief Development Officer and not by the District Magistrate. Moreover, two out of the three members of the enquiry committee are not District level officers. In the circumstances, the impugned order passed by the District Magistrate relying upon the enquiry report submitted by the said committee cannot be sustained and is liable to be set aside.

21. Even otherwise, the impugned order cannot be sustained. In the case of Vivekanand Yadav (supra) the Full Bench of this Court also determined the extent of opportunity to which a Pradhan was entitled before his financial and administrative power were ceased under Section 95(1)(g) of the Act. Paragraph 71 of the report is extracted below: -

"71. It is not only necessary that the explanation or point of view or the version of the 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. Of course the consideration of the explanation does not have to be a detailed one. There should be indication that mind has been applied. This has also been explained in the Hafiz case. Nevertheless, we would like to clarify it."

(emphasis supplied)

22. In the case at hand, on the basis of the enquiry report submitted by the committee constituted for the purpose, a show-cause notice dated 23.2.2018 was issued to the petitioner. The petitioner gave a reply to the said show cause notice denying the charges levelled against him, but in the order dated 29.8.2018 passed by the District Magistrate by which the financial and administrative powers of the petitioner have been ceased, no reference has been made to the reply of the petitioner, except saying that the reply submitted by the petitioner was not admissible. The impugned order is absolutely bald, vague and non speaking. As per the settled legal position, the order ceasing the financial and administrative powers of a Pradhan need not contain elaborate reasons but it should disclose reasons to arrive at the decision showing application of mind to the facts in issue. From the impugned order it cannot be inferred that it was passed after due application of mind to the facts in issue.

23. Withdrawal of financial and administrative powers of an elected Pradhan is a very serious matter. Such action leads to grave consequences. The same cannot be treated in a casual manner as has been done in the present case. In case such an action is to be taken by the administrative authorities, the same should be done as per the prescribed procedure.

24. The impugned order having been passed contrary to the law laid down in the case of Vivekanand Yadav (supra) cannot be sustained and is liable to be set aside.

25. For the aforesaid reasons, the impugned order dated 29.8.2018 passed by the District Magistrate is hereby set aside. The writ petition is allowed.

26. It is, however, open to the District Magistrate to proceed against the petitioner afresh, in accordance with law.

Order Date :- March 15, 2019

Anupam