Mahendra Singh vs State Of U.P. And 3 Others
2023 Latest Caselaw 27580 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:193722
 
Court No. - 6
 
Case :- WRIT - C No. - 17665 of 2023
 
Petitioner :- Mahendra Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dhirendra Kumar Singh Rathor
 
Counsel for Respondent :- C.S.C,Pankaj Srivastava
 
With 
 
Case :- WRIT - C No. - 23480 of 2023
 
Petitioner :- Sunil Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dhirendra Kumar Singh Rathor
 
Counsel for Respondent :- C.S.C.,Krishna Kant Singh
 
With
 
Case :- WRIT - C No. - 26825 of 2023
 
Petitioner :- Km. Rakhi
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Dhirendra Kumar Singh Rathor
 
Counsel for Respondent :- CSC,Krishna Kant Singh
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

The aforementioned connected petitions are listed today before this Court alongwith another writ petition, i.e. Writ-C No.20679 of 2023 (Sukhveer Singh vs. State of U.P. and 3 Ors.). As the issue involved in the said Writ-C No.20679 of 2023 is distinct in nature, thus the same would be decided separately.

These writ petitions are being heard and decided together as similar controversy is involved in all the writ petitions wherein the impugned final enquiry report against the complaint made by the petitioner-complainant and subsequent orders have been challenged.

Heard Mr. Dhirendra Kumar Singh Rathor, learned counsel for the petitioner and learned Standing Counsel for the State-respondent.

The writ petition bearingWrit-C No. - 17665 of 2023 has been filed interalia for the following relief:-

"i) issue a writ, order or direction in the nature of certiorari quashing the impugned final enquiry report dated 19.04.2023 and subsequent order dated 02.05.2023 passed by respondent no.2- District Magistrate, Aligarh.

ii) issue a writ, order or direction in the nature of mandamus directing the respondents authorities concern to allow three members committee constituted to conduct and manages function of Gram Pradhan till proper enquiry in accordance with provision of Enquiry Rules, 1997 is completed.

...."

The writ petition bearingWrit-C No. - 23480 of 2023 has been filed interalia for the following relief:-

"i) issue a writ, order or direction in the nature of certiorari quashing the impugned final enquiry report dated 06.05.2023 conducted by Executive Engineer, Rural Engineering Services, Aligarh and subsequent order dated 04.07.2023 passed by respondent no.2- District Magistrate, Aligarh.

ii) issue a writ, order or direction in the nature of mandamus directing the respondents authorities concern to allow three members committee constituted to conduct and manages function of Gram Pradhan till proper enquiry in accordance with provision of Enquiry Rules, 1997 is completed.

...."

The writ petition bearingWrit-C No. - 23480 of 2023 has been filed interalia for the following relief:-

"i) issue a writ, order or direction in the nature of certiorari quashing the impugned final enquiry report dated 23.03.2023 and subsequent order dated 03.07.2023 passed by respondent no.2- District Magistrate, Aligarh.

ii) issue a writ, order or direction in the nature of mandamus directing the respondents authorities concern to allow three members committee constituted to conduct and manages function of Gram Pradhan till proper enquiry in accordance with provision of Enquiry Rules, 1997 is completed.

...."

Brief facts of the case are that a complaint has been lodged against the Gram Pradhan for misappropriating of huge funds, which was meant for the development works of the Gram Panchayat. Pursuant to the aforesaid complaint, the District Magistrate concerned appointed an officer to conduct a preliminary enquiry. The preliminary enquiry report was submitted wherein it was found that the money allocated to the item and spent on the said item as mentioned in the document submitted by the Gram Panchayat varies to the great extent. It was also pointed out that the development works as completed were not found upto mark. Pursuant to the aforesaid enquiry, show cause notice was issued to the concerned Pradhan to which a detailed reply was submitted. After considering the reply of the concerned Pradhan, a detailed order was passed by the District Magistrate seizing financial and administrative powers of the Gram Pradhan. Thereafter, final enquiry was conducted in which the concerned Pradhan was not found guilty of misuse of village development fund. Thus, challenging the said enquiry report, the present writ petition has been filed.

Learned counsel for the petitioner submits that the final enquiry has been conducted without following proper procedure as laid down under Rule 6 of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 (hereinafter referred as "Rules, 1997"), which is as follows:-

"6.Procedure of the enquiry.-(1) The substance of imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry officer by the State Government.

(2) The Inquiry officer shall draw up-

(a) the substance of imputations into definite and distinct articles of charge; and

(b) a statement of imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained.

(3) The Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified.

(4) On receipt of the written statement of defence, the inquiry officer shall enquire into such of that articles of charges as are not admitted and where all articles of charges have been admitted in the written statement of defence, the Inquiry officer shall record his findings on each charge after taking such evidence as he may think fit.

(5) If the person who has not admitted any of the articles of charges in his written statement of defence, appears before the Inquiry Officer, he shall ask him where he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiry officer shall record he plea, sign the record and obtain the signature of that person, and return a finding of guilt in respect of those charges.

(6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence,-

(a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents specified in the list referred to in sub-rule (2);

(b) submit a list of witnesses to be examined on his behalf;

(c ) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for discovery or production of any documents that are relevant to the inquiry an are in the possession of the State Government, but not mentioned in the list referred to in sub-rule (2).

(7) The person against whom enquiry is being held may take the assistance of any other person to present the case on his behalf, and the inquiry office may appoint any person as a presiding Officer to assist him in conducting the inquiry:

Provided that a legal practitioner shall not be engaged or appointed under this sub-rule.

(8) If the person applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule 92), the Inquiry officer shall furnish him with such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved.

(9) The Inquiry officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:

Provided that the Inquiry officer may; for the reasons to be recorded in writing , refuse to requisition such of the documents as are, in his opinion, not relevant to the case.

(10) On receipt of the requisition referred to in sub-rule (9, every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Officer:

Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any such documents would be against the public interest o security of the State, it shall inform the Inquiry officer accordingly and such Inquiry Officer shall, on being so informed, communicate the information to the person against whom the inquiry is being held and withdraw the requisition made by him for the production or discovery of documents.

(11) On the date fixed for enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall be examined, by the Inquiry officer by or on behalf of the complainant, if there is one and may be cross-examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be examined by the Inquiry officer or the complainant, as the case may be, on any point on which they have been cross-examined, but not on any new matter, without the leave of the Inquiry officer.

(12) The Inquiry officer may allow production of evidence not included in the list given to the person against whom the inquiry is being held , or may itself call for new evidence or recall and re-examine any witness and in such case the said person shall be entitled to have if her demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry Officer for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record, the Inquiry officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice.

Note- Now evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called from only when there is an inherent lacuna or defect in the evidence which has been produced originally.

(13) When the evidence for proving the articles of charge against the person against whom inquiry is being held is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the defence is made orally, it shall be recorded and the said person shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the complainant, if any.

(14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiry officer according to the provisions applicable to the witnesses for proving the articles of charge.

(15) The Inquiry officer may, after the person against whom inquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him.

(16) The inquiry officer after completion of the production of evidence, hear the complainant, if any and the person against whom enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases.

(17) If the person to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry officer o otherwise fails or refuses to comply with the provisions of this rule, the Inquiry officer may hold the enquiry ex parte.

(18) Whenever Inquiry officer after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiry Officer, the inquiry Officer so succeeding may act on the evidence so recorded by his predecessor or partly or recorded by himself.

Provided that if the succeeding inquiry officer is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice he may recall, examine, cross-examine and re-examine any such witness as herein before provided."

Thus, the final enquiry as conducted is an ex-parte enquiry without hearing the petitioner-complainant as required under Rule 6 of Rules 1997, therefore, it cannot be sustained. He further submits that in the preliminary enquiry, prima facie, all the charges were found to be true against the Gram Pradhan, however, ignoring the same, final enquiry has been conducted in a mechanical manner, that too without hearing the petitioner-complainant, therefore, it cannot be sustained, hence the same is liable to be quashed.

On the other hand, learned Standing Counsel for the State-respondents submits that there is no such procedure of hearing the complainant while conducting the final enquiry. The complainant has already been given an opportunity of filing a proper complaint and preliminary enquiry has been conducted on the allegations made in the complaint. He further submits that Rule 6 of the Rules 1997 does not provide for hearing the complainant while conducting the final enquiry, therefore, there is no illegality in the enquiry report as well as impugned orders.

Even otherwise, the petitioner being complainant has no locus to file such petition, therefore, this petition is not maintainable. In support of his contention, he has relied upon the Full Bench judgment of this Court in the case of Vivekanand Yadav vs. State of U.P. and another reported in 2010(10) ADJ 1 (FB) and the judgment of Co-ordinate Bench of this Court in the case of Narendra Kumar vs. State of U.P. and Ors. reported in 2013(1) ADJ 228.

In view of the above, the petitioner being complainant has no locus to file the petition.

Accordingly, the writ petition is dismissed.

Order Date :- 9.10.2023

Jitendra/-