Smt. Vandna vs State Of U P And 2 Others
2023 Latest Caselaw 3286 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 24.01.2023
 
Judgment delivered on 02.02.2023
 
Court No. - 34
 

 
Case :- WRIT - C No. - 34848 of 2022
 

 
Petitioner :- Smt. Vandna
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Awadh Behari Singh,Umesh Kumar Rai
 
Counsel for Respondent :- C.S.C.,Anil Kumar Srivastava,Harikesh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. In pursuance of complaint made against petitioner, an elected Pradhan, District Magistrate, Pilibhit appointed District Programme Officer, Pilibhit and a Junior Engineer as Inquiry Officers to ascertain veracity of complaints. The inquiry officers conducted a spot inspection and after verifying contents of complaint, submitted a report that petitioner has committed financial irregularities and an estimated recovery amount was also mentioned.

2. In pursuance of above report, District Magistrate vide order dated 10.11.2022/11.11.2022 suspended financial powers of petitioner and appointed a District Development Officer, Pilibhit and an Executive Engineer to conduct a final inquiry as provided under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 which is still pending. The petitioner has filed this writ petition challenging above referred impugned order.

3. Sri Awadh Behari Singh, learned counsel for petitioner has submitted that inquiry officer is defined under Rule 2-C of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 i.e. an officer which means District Panchayat Raj Officer or any district level officer to be nominated by District Magistrate.

4. Learned counsel further submitted that designation of inquiry officer was nomenclatured as District Programme Officer, however, undisputedly, he was a Child Development Project Officer holding charge of District Programme Officer, therefore, he was not authorized person to conduct any preliminary inquiry. In this regard, he has placed reliance upon a judgment of Supreme Court in case of Ramakant Sripat Sinai vs. Union of India and others, AIR 1991 SC 1145 that person appointed to be in charge of the current duties of the office did not hold the rank and, therefore, could not discharge the statutory functions assigned to the post.

5. Learned counsel has further submitted that reply submitted by petitioner was not even considered properly and without recording any reason or satisfaction, impugned order dated 11.11.2022 was passed seizing financial and administrative powers of petitioner.

6. He also placed reliance upon a judgment of Full Bench of this Court in Vivekanand Yadav vs. State of U.P. and another, 2010 (10) ADJ 1; 2010 SCC OnLine All 2702.

7. Above submissions are opposed by learned Standing Counsel for State and submitted that inquiry is still pending under Section 95(1)g and all contentions raised herein can very well raised before Inquiry Officer which may be considered on its merit.

8. Before adverting to rival submissions, conclusion of Full Bench decision in Vivekanand (supra) is mentioned hereinafter -:

"107. Our conclusions are as follows:

(a) The DM may ask the preliminary enquiry to be conducted by any officer defined under rule 2(c) of the Enquiry Rules on a complaint or a report under rule 3 or any other material or information. He has suo motu powers as well to order a preliminary enquiry;

(b) A pradhan has no right to object that complaint or report is not in accordance with rule 3 of the Enquiry Rules;

(c) A pradhan is neither entitled to be associated in the preliminary enquiry nor is entitled to the copy of the preliminary report. However, before an order ceasing the financial and administrative power is passed, his explanation or point of view or the version to the charges should be obtained and considered;

(d) In the first and the third WPs, the impugned orders have been passed on the basis of preliminary report after obtaining and considering the explanation of the pradhan. The impugned orders in these WPs cannot be faulted on this ground;

(e) In our opinion the word ''otherwise' in rule 5 includes and the DM can rely upon the following reports only to cease financial and administrative power and direct the final enquiry:

- A report of a person who is also defined as an enquiry officer under rule 2(c) of the Enquiry Rules???irrespective of whether he was directed by the DM to conduct the preliminary inquiry or not;

- A preliminary enquiry report conducted by the DM himself.

(f) In the third writ petition, the report was submitted by the DPRO, who is defined as an enquiry officer under rule 2(c) of the Enquiry Rules. The impugned order cannot be faulted on the ground that the DPRO was not asked by the DM to conduct the preliminary enquiry;

However, it is open to the petitioners in the first and third WPs to raise other points before the appropriate bench."

9. On receipt of any complaint, District Magistrate has a power to direct an officer to conduct a preliminary inquiry in terms of Section 2-C and accordingly, District Magistrate has appointed District Programme Officer and to assist him also appointed a Junior Engineer to conduct a preliminary inquiry. A serious objection has been taken by learned counsel for petitioner that said inquiry officer was a Child Development Project Officer and was discharging charge at relevant time as District Programme Officer. Therefore, he being not a District Level Officer was not competent to conduct preliminary inquiry.

10. A heavy reliance has been placed on Ramakant (supra) that while officer in-charge could not discharge statutory functions assigned to post. However, said observations were in regard to consideration that petitioner therein was claiming promotion on basis of his duty as an in-charge whereas in present case, Child Development Project Officer was in charge of District Programme Officer and was discharging all duties assigned to him as a District Programme Officer. Therefore, only on ground that he was an in-charge District Programme Officer, it would not be legally sustainable ground that inquiry conducted as District Programme Officer would be illegal that he was only in-charge of said post. Otherwise also, Pradhan has no lis on process of preliminary inquiry and still has to be scrutinized by District Magistrate, whether to proceed further or not? As held in Vivekanand (supra) that pradhan has no right to object that preliminary inquiry was not in accordance with Rule 3 of relevant Rules, therefore, first argument of learned counsel for petitioner is rejected.

11. The District Magistrate has provided a copy of inquiry report to petitioner to which he has submitted her reply, which was considered and District Magistrate came to a conclusion that a case was made out for further inquiry and therefore, while financial powers were seized, two Members' Committee was constituted by impugned order dated 10.11.2022/11.11.2022.

12. Contention of learned counsel for petitioner that reply to inquiry report was not considered is contrary to record that as in impugned order, reply/explanation of petitioner was considered. Even in Vivekanand (supra), in paragraph ''107-e', Full Bench has held that District Magistrate can rely upon a preliminary report only to seize financial and administrative powers and direct for further inquiry. Principles of natural justice are substantially complied with and explanation of petitioner was considered, however, District Magistrate found that explanation was not satisfactory and nothing contrary to preliminary report was placed on record. Therefore, second argument of learned counsel for petitioner is also rejected.

13. In view of above, while rejecting prayers made in this writ petition, this writ petition is disposed of with a direction to respondent authorities that two Members' Inquiry Committee constituted under Section 95(1)g of U.P. Raj Panchayat Act, 1947 shall conclude inquiry in accordance with law, preferably within a period of three months from today after petitioner submits her reply and if there is no legal impediment.

Order Date :- February 02, 2023

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]