Anoop Kumar Paswan vs State Of U.P. And 5 Others
2023 Latest Caselaw 26325 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:187073
 
Court No. - 6
 

 
Case :- WRIT - C No. - 28507 of 2023
 

 
Petitioner :- Anoop Kumar Paswan
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- J.P.N. Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Shri J. P. N. Singh, learned counsel for the petitioner, learned Standing Counsel for the State-respondents.

2. By means of the present writ petition the petitioner has challenged the notice dated 04.08.2023 passed by the District Magistrate, Ballia, whereby seeking cause of the petitioner to the irregularities and defalcation of public funds' notice by the inquiry committee against him and the report submitted by the District Handicapped Empowerment Officer, Ballia. In the said inquiry report it has been found that India Mark Handpumps were never installed but it has come on record on the basis of evidence of the villagers that on the same locations handpumps were installed four years previously and neither they have malfunctioned or been replaced and consequently, a sum of Rs. 35908/- has been embezzled by the Village Pradhan and the Secretary. Similarly, solar lights and street lights were not existing at the places as per the records and nor remains of lights were recovered at the places where they were installed and accordingly, a huge amount has been embezzled by the authorities.

3. As per the inquiry report an amount of Rs. 3,13,908.00/- has been withdrawn by the previous Village Pradhan, the present Pradhan and other officials, and consequently the proceedings under Section 27 of U.P. Panchayat Raj Act, 1947 deserves to be initiated for recovery of the said amount.

4. Subsequent to the receipt of the inquiry report submitted by the District Handicapped Empowerment Officer, the District Magistrate, Ballia issued notice dated 04.08.2023 asking recovery of said amount from the petitioner and other officials. The said notice is being challenged by the petitioner only on the ground that the said notice is illegal and arbitrary inasmuch as the District Magistrate has relied upon the said inquiry report dated 01.06.2022, which inquiry was conducted by the District Handicapped Empowerment Officer.

5. Learned counsel for the petitioner submits that the Rules 256 of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as, 'Rules, 1947') provided for the inquiry to be conducted by the Chief Audit Officer, Cooperative Societies and Panchayats and accordingly submits that the said inquiry itself was without jurisdiction. He further submits that there was no other material available to the District Magistrate on the basis of which a show cause notice would have been issued to the petitioner.

6. It is further submitted that even though the District Magistrate is empowered to issue show cause notice but no useful purpose would be served by submitting his explanation to the said show cause notice inasmuch as no proceeding can be initiated against the petitioner on the basis of inquiry which has been conducted by the competent authority, i.e., the authority other than Chief Audit Officer pf Cooperative Societies and Panchayats. In support of his arguments, counsel for the petitioner has relied upon a judgment of this Court in Dinesh Kumar and others Vs. State of U.P. and others : 2023(1) ADJ 81 (DB), where this Court dealing with in a writ petition where the allegations of irregularities was inquired by the Deputy Director of Agriculture, Basti and the report submitted by him was held to be without jurisdiction and violation of Rules 256 and 257 of the Rules, 1947 and consequently quashed the order of the District Magistrate.

7. It has further been submitted that a futile inquiry will not serve any purpose and consequently this Court in exercising its powers under Article 226/227 of the Constitution of India can interfere in a matter where the result of such an inquiry can only be a nullity being in clear violation of the specific provisions of the rules made thereunder.

8. Learned Standing Counsel has opposed the writ petition but does not dispute the fact that according to Rules, 1947 the inquiry can be conducted against a Pradhan only by the Chief Audit Officer, Cooperative Societies and Panchayats and in the present case the inquiry is being conducted by the District Handicapped Empowerment Officer.

9. This Court has considered the rival submissions of the learned counsel for the parties.

10. In the present case the inquiry under Rules 256 of the Rules, 1947 has been conducted by the District Handicapped Empowerment Officer and merely on the basis of said inquiry dated 01.06.2022 the notices have been issued to the petitioner. This Court is of the considered view that the inquiry could not be conducted by the District Handicapped Empowerment Officer and accordingly, the same may not be sustained as has been consistently held by various Benches of this Court.

11. The impugned show cause notice is based solely on the enquiry report dated 1.06.2022 submitted by District Handicapped Empowerment Officer. The said inquiry report is illegal and arbitrary as the same has been conducted by incompetent officer, who is not the prescribed authority to conduct the inquiry as per rule 256 of the Rules of 1947.

12. At this stage, this Court hastens to state that had the District Magistrate relied upon on any other credible material apart from the report submitted by the District Handicapped Empowerment Officer it could not have been said that the impugned order is illegal and without jurisdiction. Merely because the District Magistrate has solely relied upon the said inquiry report submitted by the District Handicapped Empowerment Officer which is not the prescribed authority as per the Rules 256 of Rules, 1947, therefore, the show cause notice issued to the petitioner would accordingly be illegal and arbitrary.

13. In view of above, the proceedings initiated against the petitioner on issuance of notice dated 04.08.2023 are hereby quashed.

14. This Court is also of the considered view that in case there are serious allegations of defalcations of public funds the respondents have liberty to take due action in view of statutory provisions of Rules, 1947 as well as the rules framed thereunder.

15. According to the Rule 256 of the Rules, 1947 it is clearly settled that the inquiry of defalcation of public funds against Pradhans would be conducted by the Chief Audit Officer, Cooperative Societies and Panchayats then there is no reason as to why the District Magistrate has entrusted upon the inquiry report submitted by the District Handicapped Empowerment Officer which is against the provisions of Rule 256 of Rules, 1947.

16. Needless to say that the District Magistrate is bound to comply with the statutory provisions of the Rules, 1947 and there is no reason for him as to why an inquiry was directed to be conducted by an officer not authorised under the Rule 256 of the Rules, 1947. There is no embargo for conducting a fresh inquiry by the competent authority under the said Rules and in case it is deemed proper the said inquiry should be conducted expeditiously without delay.

17. In light of the aforesaid, in the present case the impugned show cause notice which is based upon an inquiry which was conducted by an officer not prescribed under the statutory provisions of the Rules, 1947, is infact improper and consequently, such proceedings and the impugned show cause notice cannot be sustained.

18. Subject to the aforesaid discussions, the present proceedings initiated against the petitioner is hereby quashed.

19. The writ petition is, accordingly, allowed.

Order Date :- 26.9.2023

Mustaqeem.