Allahabad High Court
Kamal Abbas vs State Of U.P. Thru. Addl. Chief ... on 18 September, 2023
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:61251
Court No. - 17
Case :- WRIT - C No. - 7555 of 2023
Petitioner :- Kamal Abbas
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Panchayati Raj,Lko. And 4 Others
Counsel for Petitioner :- Sandeep Kumar Ojha,Bhanu Pratap Singh,Smt. Manisha Singh
Counsel for Respondent :- C.S.C.
Hon'ble Alok Mathur,J.
1. Heard Sri Sandeep Kumar Ojha, learned counsel for the petitioner as well as learned Standing Counsel for respondent nos. 1 to 4.
2. In the light of order proposed to be passed, notice to respondent no. 5 is dispensed with.
3. The petitioner who is discharging duties of Village Pradhan of Village Panchayat - Mohona Purab, Block - Bazar Shukul, District - Amethi has been visited by the impugned order dated 09.08.2023, passed by the District Magistrate, Amethi thereby ceasing his financial and administrative powers and said order has been challenged in the present writ petition on the grounds that notice was given to the petitioner to which he has duly responded but without considering petitioner's reply, the impugned order has been passed.
4. It has been submitted by learned counsel for the petitioner that the private respondents had moved a complaint against petitioner levelling various allegations for misappropriation of funds inasmuch as duties of petitioner as Village Pradhan where various works were undertaken and for which money was received from the State Government, but the same was not spent in the manner as prescribed, even the works under the MANREGA Scheme was got done but the money of labourers was not disbursed to them and funds were misappropriated in the name of two persons namely Dayanand and Ram Gopal in their personal bank accounts.
5. In connection with the complaint made by the private respondents a preliminary enquiry was got conducted and the petitioner had submitted his reply to the same. Considering the material the District Magistrate has passed impugned order dated 09.01.2023, ceasing financial and administrative powers of petitioner under Section 67(g) of the U.P. Panchayat Raj Act, 1947.
6. It is submitted by learned counsel for the petitioner that without properly considering the reply of petitioner the respondents have acted in gross violation of principles of natural justice and prays that the impugned order being illegal and arbitrary shall be set aside. He further submits that the petitioner has submitted his reply on 06.09.2023 and the enquiry pending against the petitioner, shall be concluded expeditiously.
7. Learned Standing Counsel on the other hand has opposed the writ petition by submitting that at the pre-enquiry stage the petitioner does not have any right or power and only with a view to seek his response to the various allegations a show cause notice was issued and he has submitted his reply. It is only after considering his reply the competent authority has decided to proceeded against the petitioner and accordingly he was given show cause notice to give his reply on five allegations as stated in the impugned order dated 09.08.2023. He further submits that considering the seriousness of allegations against the petitioner with regard to irregularities in making payment to the workers in the capacity of village Pradhan, proceedings under Section 97(1)(g) have been initiated against petitioner and authorities have proceeded strictly in accordance with law and only after receiving reply of the petitioner further action will be taken. He submits that this aspect of the matter has been duly discussed and covered by the Full Bench judgment of this Court in the case of Vivekanand Yadav Vs. State of U.P. and Another, 2011 (29) LCD 221. He has relied upon paras 68 and 71 of the said judgment which are quoted herein below :-
"68. In view of our decision and reasons detailed in the Hafiz case, a pradhan is neither entitled to be associated in the preliminary enquiry nor is he entitled to get the copy of the preliminary enquiry report - his only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed.
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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 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."
8. Perusal of aforesaid judgment indicates that at pre-enquiry stage the delinquent has right to give explanation with regard to allegations made against him/her and the authority concerned is duly entitled to consider the reply and cease administrative and financial powers. In the light of aforesaid legal provision, it is noticed that in the impugned order itself it is mentioned that petitioner was given show cause notice to which he has replied. It further recites that explanation of the petitioner has been duly considered before passing the impugned order and it is only after considering explanation of petitioner that five allegations/charges have been found fit to be proceeded with against petitioner and to which further explanation has been sought from the petitioner.
9. Learned counsel for the petitioner has informed this Court that petitioner has already tendered his response to the show cause notice and same is pending before the District Magistrate.
10. Considering the fact that only limited right is vested in the petitioner to submit his response and the authorities are under duty to consider the reply of petitioner and the impugned order demonstrates that petitioner was given opportunity to give his reply and said reply has been considered before passing the impugned order dated 09.08.2023, ceasing his administrative and financial powers.
11. This Court do not find any infirmity in the impugned order dated 09.08.2023. This Court has also considered the fact that considering the seriousness of allegations made against the delinquent, it is necessary that for conducting fair and impartial enquiry, the financial and administrative powers to have been ceased.
12. No other infirmity was pointed out by learned counsel for the petitioner necessitating interference of this Court under Article 226 of the Constitution of India.
13. Lastly it was submitted that petitioner has already submitted his reply on 06.09.2023, hence in the light of the facts that reply has been submitted by the delinquent, final decision shall be taken by the District Magistrate in accordance with law and final orders be passed expeditiously say within next six weeks from the date of production of certified copy of this order.
14. With above directions/observations the writ petition stands disposed of.
Order Date :- 18.9.2023
A. Verma
(Alok Mathur, J.)
