Smt. Usha Devi vs State Of U.P. Thru. Addl. Chief ...
2021 Latest Caselaw 8483 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- MISC. SINGLE No. - 14016 of 2021
 

 
Petitioner :- Smt. Usha Devi
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy., Panchayat Raj & Ors.
 
Counsel for Petitioner :- Alok Kr. Misra,Dharm Raj Mishra
 
Counsel for Respondent :- C.S.C.,Amrendra Nath Tripathi,Ganesh Nath Mishra
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(1) Heard the learned counsel for the and learned Standing Counsel who appears for the State-respondents.

(2) Although an impleadment application has been filed by the complainant but this Court has not find it appropriate to implead the complainant in this matter. However, she has been permitted to intervene.

(3) It is the case of the petitioner that she was Gram Pradhan of Village Dariyapur, Block Padri Kripal, District Gonda, with effect from 2015 upto December, 2020. After her term expired she is being proceeded against under Section 27 of the U.P. Panchayati Raj Act for recovery of a surcharge and has also been proceeded against in terms of standard of Procedure under the Mahatama Gandhi Rural Employment Guarantee Act, 2005, hereinafter referred to as MNREGA, without giving any opportunity of hearing to explain her conduct.

(4) It has been submitted by the learned counsel for the petitioner that one Shesh Mani Mishra had filed a complaint alleging the misappropriation of funds on the basis of which a notice dated 04.06.2021 alongwith a copy of the Enquiry Report dated 20.05.2021 was issued to the petitioner. But before any such enquiry could be completed on submission of a reply, the impugned order No.511 of dated 01.07.2021 has been issued directing recovery of 1/3rd of the alleged amount of misappropriation that is the tune of Rs.5,69,379.00 has been imposed against her. Learned counsel for the petitioner has placed reliance upon Section 27 and Rules 256 and 257 of the U.P. Panchayati Raj Act and Rules framed thereunder to say that for fixing the amount of surcharge the Prescribed procedure has been followed as per the Rule. The Rules provide that Chief Audit Officer Cooperative Society and Panchayat may hold an enquiry and on the initiation of such enquiry notice shall be issued to the Gram Pradhan under Sub Rule 3 of Rule 256 and after examining the explanation which shall be submitted within time, the Chief Audit Officer shall submit the papers alongwith his recommendations to the District Magistrate of the District in which the Gram Sabha is situated and to the District Panchayat Raj Officer in which the Gram Sabha is situated and the District Magistrate or the District Panchayat Raj Officer after examining and considering the explanation shall require the Pradhan, Up-Pradhan, Member, Officer or Servant of the Gram Panchayat to pay the whole or part of the sum to which he was found liable.

(5) It has been submitted by the learned counsel for the petitioner that after the complaint made by Shri Shesh Mani Mishra, it appears that opposite party no.2 appointed Enquiry Committee of two members for conducting enquiry against the petitioner. The Enquiry Committee submitted its report on 20.05.2021 without notice to the petitioner. It appears that Enquiry Committee conducted a random inspection and submitted its report, the proper procedure prescribed under the Rules for recovery of surcharge was not followed.

(6) On the basis of the Enquiry Report of Opposite party nos.3 & 4, the opposite party no.2 issued surcharge notice. It has been submitted by the learned counsel for the petitioner that the petitioner has given details of her explanation for all the 17 charges mentioned in the Show Cause Notice. However, this Court is not considering the merits of the inspection made by the petitioner at this stage, in view of the order proposed to be passed by it.

(7) Learned Standing Counsel and Shri Amrendra Tripathi, have pointed out from the orders impugned in the writ petition that the order dated 01.07.2021 passed by the Opposite party no.6 is in pursuance of a consequential Order No.511/MNREGA/Vasuli/2021-22 issued by the District Programme Coordinator /District Magistrate, Gonda, a copy of such order has not been filed in the writ petition but on a direction to the Court it has been produced before this Court by the learned Standing Counsel. A perusal of the order shows that it has been passed under the MNREGA 2005 and instructions issued under the said Act in 2013 and the Government of India Gazette Notification dated 03.01.2014 and Paragraph-26 thereof. Learned Standing Counsel has pointed out that Paragraph-26 referred to in the order impugned is in fact a part of Schedule-1 of the Act which was notified on 03.01.2014, Paragraph-26 says that any misappropriation of fund has been found under the Act shall be recoverable under the Revenue laws for recovery prevailing in the State. The same Schedule also provides under Paragraph-29 an effective grievance redressal mechanism wherein complaint can be made on the basis of which complaint, verification and inspection can be done and enquiry report submitted thereafter. The Grievance Redressal Officer, the District Programme Coordinator, has to dispose of all such complaints after such report is made available as expeditiously as possible. Under Sub Clause-(I) and Para 29, it has been provided that Appeals against the order of Gram Panchayat shall be made to the Programme Officer, against the order of Programme Officer shall be made to the District Programme Coordinator, appeals against the District Programme Coordinator shall be made to the State Commissioner (NREGS), the Divisional Commissioner (NREGS) and State Grievance Redressal Officer. Under Sub Clause-(J) of Para-29 the limitation of 45 days from the date of issuance of order for making such Appeal has also been given.

(8) Learned Standing Counsel has pointed out from Annexure-3 to the writ petition that although it has been issued by the Opposite party no.6 it is in pursuance of Order No.511/MNREGA/Vasuli/2020-21 dated 01.07.2021 that has been produced before this Court, and has been passed by the District Programme Coordinator/District Magistrate, Gonda. Against such an order Appeal is provided in Sub Clause-I of Paragraph-29 of Schedule-1 of the Act notified on 03.01.2014. In so far as the second impugned order is concerned, it is only a notice issued under Section 27 of the U.P. Panchayati Raj Act for proposed recovery of Surcharge and the proceedings for imposition of Surcharge have not yet been completed and the writ petition is premature.

(9) Learned counsel for the petitioner in rejoinder has submitted that this Court has considered a similar order passed by the District Magistrate/ District Programme Officer in Writ-C No.39016 of 2018 (Maya Mishra Vs. State of U.P. & four others) decided on 16.01.2019 wherein the Court after referring to Sections 23, 25 and 32 of the Act of 2005 observed that the State Government is yet to frame Rules to regulate the different eventualities including the manner in which State fund is required to be utilized. The State Government by rules, determine the proper execution of Scheme. The Court observed that since no Rules had been produced before it, it was doubtful whether the State Government has prescribed any procedure for recovery. The Standard of Procedure issued under the MNREGA Act, 2005 provided that a person guilty of misuse of Government funds may be subjected to criminal proceedings by lodging First Information Report, disciplinary action and further recovery of the loss caused to the Government funds. The Court observed that the case of the writ petitioner was that only on the basis of an inspection carried out by the Block Development Officer whose report was submitted to the Chief Development Officer, the recovery orders were issued and no opportunity of hearing was given to the writ petitioners therein. The Court observed that no action could have been taken without any definite finding about misuse/misappropriation of Government fund. Such finding could have been given only after an inquiry. Admittedly, no inquiry at all had been conducted before making order for recovery of money. Therefore, this Court set aside the order on the ground that Principles of Natural Justice had not been followed and the petitioner had not been called upon to explain circumstances regarding the charge of misappropriation of Government fund in completing the MNREGA works. The Court had set aside the order of recovery leaving it open to the respondents to proceed in the matter, in accordance with law and any recovery of any amount already made against the petitioner was directed to be refunded by the Respondents within a period of three weeks from the date of order.

(10) Learned Standing Counsel has argued before this Court that there is a provision of Appeal and whether enquiry was conducted or not, and whether the petitioner was not in fact associated or her explanation was sought or not are all the matters that can be looked into by the Appellate Authority as these are the questions of fact and there is no pleading on record that the petitioner was not associated at all with any enquiry conducted in pursuance of complaints received regarding shortcomings in MNREGA works.

(11) There being a statutory remedy available of filing an Appeal against the order passed by the District Programme Coordinator to the Divisional Commissioner, this writ petition is disposed of with a direction to the petitioner to file an Appeal before the Divisional Commissioner under Sub Clause-I of Paragraph-29 of Schedule-1 of the Act of 25 within 15 days from today. In case, such an Appeal is filed within the time as given hereinabove, it shall be entertained on merits and not rejected only on the ground of petitioner not adhering the limitation given under Sub Clause-G and Sub Clause G of Paragraph 29. The Divisional Commissioner shall decide the said Appeal within a period of one month as per the provisions of Schedule-1 the Act.

(12) Since this Court has been apprised of a Division Bench judgment rendered in Writ-C No.39016 of 2018 (Maya Mishra Vs. State of U.P. & four others) where the Court had held that no enquiry was conducted and Principles of Natural Justice were not followed and set aside the order of recovery, this Court feels it appropriate that till the the Appeal is decided by the Divisional Commissioner, the order passed by the Block Development Officer on 01.07.2021 shall remain in abeyance.

Order Date :- 23.7.2021

PAL