Allahabad High Court
Pramod Kumar vs State Of U.P. And 2 Others on 8 July, 2022
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 6474 of 2022
Petitioner :- Pramod Kumar
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Shailendra Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Sangeeta Chandra,J.
(1) The Instructions to the office of the CSC are kept on record.
(2) Heard the learned counsel for the parties and perused the record.
(3) This petition has challenged the Order/Recovery Notice dated 03.04.2022 issued by the District Panchayat Raj Officer (DPRO) and also prays for a direction to the Respondents not to recover any amount from the salary of the petitioner in pursuance of the order impugned.
(4) It is the case of the petitioner that he is presently posted as Village Development Officer, Vikas Khand, Chatra, District Sonbhadra and he had been given the Charge of Village Development Officer of Gram Panchayat, Asanahar, Vikas Khand, Babhani, District Sonbhadra. Without any notice to him an Enquiry was held in pursuance of a complaint. He has suddenly received a copy of the Recovery Notice/Order dated 03.04.2022 passed by the District Panchayat Raj Officer, Sonbhadra, in pursuance of some recovery order issued by the District Magistrate, Sonbhadra, asking the petitioner to deposit an amount of Rs.81,250/- in the fund of the respective Gram Panchayats within a week and to furnish an explanation with regard to the allegation of claiming an excessive amount for the purchase of RCC Benches for the respective Gram Panchayat.
(5) It has been submitted by the counsel for the petitioner that no rate had been fixed for RCC Benches in the Circular earlier. The Karyakari Sanstha of Kshetra Panchayat had been paid the amount as per earlier rate fixed after approval of the Technical Officers/Junior Engineer. The Junior Engineer of the concerned Department had given an estimated value of one RCC Bench as Rs.12,450/-.
(6) It has been argued that the petitioner had not been heard at all before the Recovery Notice had been issued, the same is vitiated and should be quashed by the Court.
(7) Learned counsel for the petitioner has placed reliance upon a judgment of this Court passed in Writ-A No.6962 of 2022 [Jitendra Kumar Vs. State of U.P. and 2 Others] decided on 09.05.2022 where in similar case Show Cause Notice dated 03.04.2022 issued by the District Panchayat Raj Officer (DPRO) was challenged by the writ petitioner and the learned Standing Counsel had raised preliminary objection that the writ petition had been filed only against Show Cause Notice and an opportunity has been given by the District Panchayat Raj Officer (DPRO) to the petitioner to Show Cause Notice against the impugned Recovery. Counsel for the petitioner had argued that the Show Cause Notice was actually a Recovery Notice as it directed for the payment of the excess amount determined arbitrarily by the District Panchayat Raj Officer (DPRO) on the basis of an Enquiry which Enquiry was conducted ex-parte. This Court thereafter had observed as follows:-
"On the aforesaid premise, learned counsel for petitioner contends that liability has been fixed upon petitioner without determining the liability of the petitioner. In short, the submission is that the consequences of a process cannot precede the process itself. It is well settled that damages can be awarded only after the liability has been fixed.
Above being the position, this Court finds that the pre condition of deposit of 50% of the amount before submitting the reply to the show cause notice is manifestly illegal and cannot be sustained.
In view of above, the writ petition succeeds in part.
The pre condition prescribed in the impugned show cause notice requiring the petitioner to deposit 50% of the amount mentioned in column 9 of the table contained in the impugned show cause notice dated 3.4.2022 (Annexure 1 to the writ petition) is quashed.
Respondents shall now proceed against the petitioner accordingly."
(8) Learned Standing Counsel had earlier been granted time to seek instructions with respect to judgment of this Court in Jitendra Kumar (Supra). In the instructions that have been sent by the District Panchayat Raj Officer (DPRO) and countersigned by the District Magistrate only the facts with regard to Enquiry being instituted on the basis of a complaint have been stayed. It has been stated that two types of cemented Benches were priced at Rs.5,502/- and Rs.5,580/- and including transportation and miscellaneous expenses for the said benches the amount of Rs.6000/- had been fixed. However, the petitioner had made payment for in excess of the amount that was due and therefore, the Recovery notice had been issued. 50% of the misappropriated amount is proposed to be recovered from then Gram Pradhan while 50% is proposed to be recovered from the Village Panchayat Officer concerned.
(9) No copy of the Enquiry report has been sent alongwith instructions although mention of the same has been made. Since there is no copy of the Enquiry report which has been mentioned in the impugned order, and in the instructions, perhaps the petitioner has not been granted any opportunity of hearing before passing of the impugned Recovery Notice.
(10) The writ petition succeeds in part. The pre-condition prescribed in the impugned show cause notice requiring the petitioner to deposit 50% of the amount i.e. Rs.81,250/- as mentioned in Column-9 of the Table contained in the impugned Show Cause Notice is quashed.
(11) The petitioner may file his reply to the Show Cause Notice dated 03.04.2022 within a period of two weeks from today. If the same is filed, it shall be considered by the District Panchayat Raj Officer who may pass a fresh order within a period of four weeks thereafter.
(12) This petition stands finally disposed of.
Order Date :- 8.7.2022
PAL
