Harish Singh Aithani vs State Of Uttarakhand And Others
2023 Latest Caselaw 2738 UK

                                                       RESERVED

  HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No. 1511 of 2023


Harish Singh Aithani                                  ...Petitioner

                              Versus

State of Uttarakhand and others                   ...Respondents

Present:-
             Mr. Dev Dutt Kamat, Senior Advocate assisted by Mr.
             Yogesh Pacholia, Advocate for the petitioner.
             Mr. S.N. Babulkar, Advocate General assisted by Mr. Anil
             Dabral, Additional C.S.C. for the State.
             Mr. Alok Mehra, Advocate for the respondent no.5.
             Mr. Ganesh Kandpal, Advocate for the respondent nos. 6,
             7 & 8.
             Mr. Sanjay Bhatt, Advocate for the respondent no.9.

                                 JUDGMENT

Per: Hon'ble Ravindra Maithani, J.

The challenge in this petition is made to an office

order dated 28.04.2023, passed by the respondent no.1 the

State of Uttarakhand ("the State Government") by which, the

petitioner has been removed from the post of Member, Jila

Panchayat, Bageshwar under Section 138 Uttarakhand

Panchayati Raj Act, 2016 ("the Act") and the petitioner has

further been disqualified for being chosen a member of the

Panchayat and being elected a Panchayat/Pradhan/Up-

Pradhan/ Pramukh/Up-Pramukh/Chairman/Vice-

Chairman for a period of five years. The petitioner also

challenges the enquiry proceedings including inquiry report

dated 18.10.2018 submitted by the respondent no.3 the

Commissioner Kumaon Mandal ("the Commissioner"); the

petitioner also seeks restoration of his status as Member of

Jila Panchayat forthwith.

2. Heard learned counsel for the parties and

perused the record.

3. The petitioner was Chairman, Jila Panchayat,

Bageshwar ("the Chairman") from the year 2014 to 2019.

4. The facts, briefly stated, are as follows:-

(i) In the year 2014, the petitioner contested

the election of Chairman, Jila Panchayat Bageshwar. The

respondent no.7 Govind Singh Danu was one of the

contestants. The petitioner was elected as Chairman. But,

the election of the petitioner was challenged by the

respondent no.7 Govind Singh Danu before the Election

Tribunal. The Election Tribunal allowed the petition and set

aside the election of the petitioner as Chairman. That order

of the Election Tribunal was challenged by the petitioner

before this Court. By the judgment and order dated

01.10.2015 passed in AO No. 449 of 2014, Harish Chandra

Singh Aithani Vs. Govind Singh Danu and other, this Court

set aside the order of the Election Tribunal and the

petitioner was declared successful to the post of Chairman.

The respondent no.7 unsuccessfully challenged the order of

this Court before the Hon'ble Supreme Court.

(ii) The respondent no.7 Govind Singh Danu made a

complaint about functioning of the petitioner as Chairman.

On 21.09.2017, the respondent no.6 Sher Singh Gariya, Ex

Member of the Legislative Assembly forwarded the complaint

of the respondent no.7 Govind Singh Danu to the Chief

Minister for taking action against the petitioner. On this

communication of the respondent no.6 Govind Singh

Gariya, the Chief Minister noted that "matter is very

serious, action should be taken by ensuring that the

entire matter is investigated within a month."

(iii) On 29.11.2017, the Principal Secretary to the

Government of Uttarakhand conveyed the direction of the

Chief Minister to the District Magistrate, Bageshwar for

conducting preliminary enquiry within a week.

(iv) The respondent no.4, the District Magistrate,

Bageshwar ("the District Magistrate") constituted an Inquiry

Committee under the Chairmanship of the Additional

District Magistrate, Bageshwar. The Inquiry Committee

submitted its report, which was forwarded by the District

Magistrate, Bageshwar on 14.02.2018 to the Principal

Secretary, State of Uttarakhand.

(v) Final inquiry was thereafter entrusted to the

Commissioner.

(vi) The Commissioner, on 22.06.2018 forwarded the

charge sheet to the petitioner. The petitioner on 10.07.2018

filed his response to the charges levelled against him.

(vii) On 18.10.2018, the Commissioner submitted the

inquiry report to the Principal Secretary, State of

Uttarakhand.

(viii) On 16.02.2022, a show cause notice was issued

by the State Government to the petitioner. The petitioner

replied to the show cause notice on 18.08.2022.

(ix) On 28.04.2023, the impugned order has been

passed.

5. It is the case of the petitioner that the action that

has been initiated against the petitioner is not in accordance

with law because enquiry against Chairman could have

been conducted only in accordance with the Uttar Pradesh

Kshetra Panchayats and Jila Panchayats (Removal of

Pramukshs, Up-Pramukhs, Adyakshas and Up-adyakshas)

Rules, 1997 ("the 1997 Rules"). Rule 3 of the 1997 Rules

provides for a procedure for filing a complaint. But, it is the

case of the petitioner that the complaint in the instant

matter is not in accordance with Rule 3 of the 1997 Rules.

6. The entire proceedings which culminated in the

passing of the impugned order have also been challenged on

the following grounds:-

(i) By its communication dated 29.11.2017 of

the District Magistrate was required to

conduct an inquiry. The District Magistrate

could not have delegated it further. But, it

has been delegated. It is violative of Rule 4

of the 1997 Rules.

(ii) After submission of a report, by the

Commissioner in the year 2018, after long

delay of four years in the year 2022, the

petitioner was given show cause notice. It is

much delayed action.

(iii) The authorities were duty bound to follow

the procedure given under 1997 Rules, but

they acted in contravention to it.

7. The respondent nos. 1, 3, 4 and 5 have filed their

separate counter affidavits. According to respondent no.5,

Jila Panchayat, the enquiry was conducted in the matter as

per the directions of the Chief Minister and the petition is

devoid of merits.

8. It is the case of the State Government that the

petitioner has raised a hyper technical issue only to

circumvent/dodge out the allegations leveled against him.

The respondent State authorities have taken the following

points in their counter affidavit:-

(i) The petitioner cannot approbate and

reprobate at the same time; i.e., to say that

after participating in the enquiry process,

the petitioner now cannot take a U turn to

say that the entire proceedings are vitiated.

(ii) Rule 4 of the 1997 Rules, provides for

enquiry "otherwise" than any complaint as

referred to in Rule 3 of the 1997 Rules. The

enquiry under Rule 4 of the 1997 Rules is a

preliminary enquiry or a fact finding

enquiry. The District Magistrate has power

to refer a case for preliminary enquiry even if

there is no complaint or report or in other

words he has the power to act suo motu.

(iii) The enquiry was conducted by the District

Magistrate, which was in consonance with

the provisions of law. The word "conduct" in

Rule 4 of the 1997 Rules has a wider

connotation, which would also include - to

guide, to present, manage or direct, organize

and carryout and thus, the word "conduct"

would not necessarily mean that the District

Magistrate himself has to hold an enquiry.

(iv) The decision is based upon the reports,

which is in turn based upon the evidence

collected.

(v) The order passed by the answering

respondent is legal, justifiable and just now.

9. Learned Senior Counsel appearing for the

petitioner would submit that the entire action is bad in the

eye of law. He would submit that under 1997 Rules, enquiry

on an complaint may be conducted only in accordance with

Rule 3 of the 1997 Rules. In the instant case, it stated that

in defiance to the Rules, a complaint has been entertained.

Learned Senior Counsel would also raise the following

points in his submission:-

(i) The preliminary enquiry has been vitiated as

the District Magistrate instead of conducting

the enquiry himself, as mandated under

Rule 4 of the 1997 Rules, has abdicated his

duties and delegated the enquiry to others.

(ii) Entire proceedings are vitiated by mala fide.

(iii) On the communication dated 21.09.2017 of

the respondent no.6 Sher Singh Gariya, by

which the complaint of the respondent No.7

Govind Singh Danu was forwarded to the

Chief Minister, the Chief Minister has

endorsed that "the matter is serious." This

remark by the Chief Minister vitiates the

entire proceedings on account of the

doctrine of dictation. By virtue of such

observation made by the Chief Minister, the

subordinates were restricted in their action.

          (iv)    The      Commissioner        had     submitted    his

                  enquiry     report      on      18.10.2018,       but

thereafter, notice was given to the petitioner

on 16.02.2022, this action is much delayed.

It has not been explained. It vitiates the

entire process.

10. In support of his contention, learned Senior

Counsel has placed reliance on the principles of law, as laid

down by this Court in the case of Ranjeet Singh Vs. State of

Uttarakhand, 2023 SCC OnLine Utt 556, Smt. Kesari Devi

Vs. State of UP, MANU/UP/1039/2005, State of Punjab Vs.

Davinder Pal Singh Bhullar, (2011) 14 SCC 770, Orient

Paper Mills Ltd. Vs. Union of India (1970) 3 SCC 76,

Manohar Lal Vs. Ugrasen, (2010) 11 SCC 557, Tamil Nadu

Pollution Control Board Vs. Sterlite Industries (India) Ltd,

(2019) 19 SCC 479 and State of A.P. Vs. N. Radhakishan

(1998) 4 SCC 154.

11. A similar controversy has been decided by this

Court in the case of Ranjeet Singh (supra). In para 29 of the

judgment, this Court observed as follows:-

"29. What is important to note is the consequences, if the complaint is not filed in the manner provided under Rule 3 of the 1997 Rules. Sub-rule (5) of Rule 3 of the 1997 Rules declares that "A complaint which does not comply with any of the foregoing provisions shall not be entertained". This sub-rule (5) of Rule 3 makes it abundantly clear that compliance of all the sub-rules of Rule 3 of the 1997 Rules is mandatory. It is not a procedural part."

12. In fact, in the case of Ranjeet Singh (supra), this

Court has taken note of principles of law, as laid down in

the case of Smt. Kesari Devi (supra). In the case of Kesari

Devi (supra), in para 139, the Hon'ble Allahabad High Court

had held as follows:-

"139. In view of the law, referred to above, as the inquiry could be held only by the District Magistrate and no one else, the preliminary inquiry stood vitiated and there was nothing before the State Government on the basis thereof it could order the regular inquiry. Rule 5 of the 1997 Rules empowers the State Government to appoint the Investigating Officer for the purpose of regular inquiry only if it is of the opinion, on the basis of the

preliminary inquiry report submitted under Rule 4 (2) of the 1997 Rules, that it requires a regular inquiry. Firstly, the complaint was not maintainable and secondly the preliminary inquiry has not been conducted in accordance with law by the District Magistrate himself. The State Government, therefore, could not hold the regular inquiry. While directing the regular inquiry against the petitioner, the State Government deprived her the right to exercise her administrative and financial powers and for that purpose a three member committee was appointed. One member of this Committee was the complainant herself. The matter had been contested and the order dated 19.06.20004 is pending consideration before the Hon'ble Apex Court wherein the Hon'ble Court had been pleased to grant interim relief in favour of the petitioner."

13. In the case of Davinder Pal Singh Bhullar (supra),

the Hon'ble Supreme Court has held that "if initial action

is not in consonance with law, all subsequent and

consequential proceedings would fall through for the

reason that illegality strikes at the root of the order".

14. In the case of Orient Paper Mills Ltd, (supra), the

Hon'ble Supreme Court held that "the superior officer

cannot issue directions by which the subordinate officer

is bound, no role is than left for the exercise of own

independent judgment by the subordinate officers." In

the case of Manohar Lal (supra), the Hon'ble Supreme Court

observed that " If the appellate or revisional authority

takes upon itself the task of the statutory authority and

passes an order, it remains unenforceable for the reason

that it cannot be termed to be an order passed under

the Act." This principle of law, as laid down in the case of

Manohar Lal (supra), has been followed by the Hon'ble

Supreme Court in the case of Tamil Nadu Pollution Control

Board (supra).

15. In the case of N. Radhakishan (supra), the

Hon'ble Supreme Court discussed the factor of delay in

disciplinary proceedings and held that "If the delay is

unexplained prejudice to the delinquent employee is

writ large on the face of it. It could also be seen as to

how much the disciplinary authority is serious in

pursuing the charges against its employee. It is the

basic principle of administrative justice that an officer

entrusted with a particular job has to perform his duties

honestly, efficiently and in accordance with the rules. If

he deviates from this path he is to suffer a penalty

prescribed. Normally, disciplinary proceedings should be

allowed to take their course as per relevant rules but

then delay defeats justice. Delay causes prejudice to the

charged officer unless it can be shown that he is to

blame for the delay or when there is proper explanation

for the delay in conducting the disciplinary proceedings.

Ultimately, the court is to balance these two diverse

considerations.

16. Learned Advocate General, would submit that the

proceedings have not been vitiated by virtue of non

compliance of any Rule of 1997 Rules. He would submit

that Rule 4 of the 1997 Rules permits that the State

Government may on receipt of the complaint referred to in

Rule 3 or "otherwise" appoint an officer for enquiry. He

would submit that scope of word "otherwise" is quite wide.

Even in the absence of any complaint, such enquiry may be

ordered. It is argued that this matter proceeded under

"otherwise" mode. Learned Advocate General also raises the

following points in his submission:-

(i) Rule 3 of the 1997 Rules does not get

attracted in the instant case because under

Rule 3, a complaint may be sent to the

Secretary to the State Government, whereas,

in the instant case, the complaint was sent

to the Chief Minister, who under the

"otherwise" mode directed for conducting an

enquiry.

(ii) The District Magistrate has marked the

enquiry to other Committees, which is

lawful. It is not violation of Rule 4 of the

1997 Rules.

(iii) Sections 19 and 19 A of the Uttar Pradesh

General Clauses Act, 1904 ("the General

Clauses Act") and Article 367 of the

Constitution of India, protects such actions.

The District Magistrate was required to

conduct an enquiry, so whatever was to be

done to conduct an enquiry, all those

ancillary and incidental powers also may be

exercised by the District Magistrate.

(iv) Every State action shall be presumed to be

done in good faith. If there is any allegation

of mala fide, it has to be proved by the

person, who alleges such mala fide.

(v) In the instant case, after enquiry, corruption

charges have been found proved. Therefore,

no interference is warranted.

17. In support of his contention, learned Advocate

General has placed reliance on the principles of law, as laid

down in the cases of Assistant Collector of Central Excise,

Calcutta Division Vs. National Tobacco Co. of India Ltd., AIR

1972 Supreme Court 2563, Grindlays Bank Ltd. Vs. The

Central Government Industrial Tribunal and others, AIR

1981 Supreme Court 606 and Ajit Kumar Nag Vs. General

Manager (PJ) Indian Oil Corpn. Ltd. Haldia and others

(2005) 7 SCC 764.

18. In the case of Assistant Collector of Central

Excise, Calcutta Division (supra), the Hon'ble Supreme

Court, inter alia, observed that "It is well-established rule

of construction that a power to do something essential

for the proper and effectual performance of the work

which the statute has in contemplation may be

implied."

19. In the case of Grindlays Bank Ltd (supra), the

Hon'ble Supreme Court observed that "But it is a well

known rule of statutory construction that a Tribunal or

body should be considered to be endowed with such

ancillary or incidental powers as are necessary to

discharge its functions effectively for the purpose of

doing justice between the parties. In a case of this

nature, we are of the view that the Tribunal should be

considered as invested with such incidental or ancillary

powers unless there is any indication in the statute to

the contrary........................................................"

20. In the case of Ajit Kumar Nag (supra), the Hon'ble

Supreme Court, inter alia, held that " It is well settled that

the burden of proving mala fide is on the person making

the allegations and the burden is "very heavy".

(vide E.P. Royappa v. State of T.N. (1974) 4 SCC 3 : 1974

SCC (L&S) 165) There is every presumption in favour of

the administration that the power has been

exercised bona fide and in good faith. It is to be

remembered that the allegations of mala fide are often

more easily made than made out and the very

seriousness of such allegations demands proof of a high

degree of credibility. As Krishna Iyer, J. stated in Gulam

Mustafa v. State of Maharashtra [(1976) 1 SCC 800] (SCC

p. 802, para 2):"It (mala fide) is the last refuge of a

losing litigant."

21. During the course of argument, while arguing on

compliance of Rule 3 of the 1997 Rules, learned Senior

Counsel for the petitioner also referred to the judgment in

the case of Vivekanand Yadav Vs. State of U.P. 2010 SCC

OnLine All 2702 to argue that the ratio of that judgment

may not be applicable in the instant case because in the

Vivekanand Yadav (supra), the Hon'ble Allahabad High

Court interpreted the provisions of the Uttar Pradesh

Panchayat Raj (Removal of Pradhans and Up-Pradhans and

Members) Enquiry Rules, 1997 ("the Panchayat Raj

Rules1997").

22. The petitioner has been removed under Section

138 sub Section (1) of the Act and he has been disqualified

under Section 138 (3) of the Act. Sub-Sections (1) and (3) of

Section 138 of the Act are as follows:-

"138, Separation from their posts to the officers of the three tiers Panchayat.- (1) The State Government may remove a Pradhan, Up-Pradhan of Gram Panchayat or any of its member or any member of Joint Committee or Land Management Committee or Pramukh or Up- Pramukh of Kshettra Panchayat or any its member or Chairman, Vice Chairman of Zila Panchayat or any of its member, on any of the following grounds

(a) that he has acted as a member of the Gram Panchayat, Kshettra Panchayat and Zila Panchayat or member of any committee by voting or taking part in the discussion of any matter in which he has directly or indirectly, a personal interest or in which he is professionally interested on behalf of a client, principal or other person;

(b) that he has become physically or mentally incapacitated for performing his duties as such member, Pradhan, Up-Pradhan, Pramukh, Up pramukh, Chairman, Vice-

Chairman;

(c) that he has been guilty, whether in his present or an earlier term of office, of misconduct in the discharge of his duty as such member, Pradhan, Up-Pradhan, Pramukh, Up pramukh, Chairman, Vice-

chairman or has contravened any of the provisions of this Act or caused loss or damage to the fund or property of Panchayats and such misconduct, contravention or causing of loss or damage renders due to conduct of work as unauthorised in place by women representative, her husband or family members or relatives, such women shall be in eligible as member, Pradhan Up-Pradhan, Pramukh, Up-pramukh, Chairman, Vice-

      chairman,         in     such       case    they      may     be
      suspended          upto       the     departmental          final

enquiry and their work and duties may be hand over to a committee of three elected members of the concerning Panchayat. In addition to the disciplinary action also may be taken against the departmental employees/ officer, if found guilty in the enquiry.

(d) The Pradhan, Up-Pradhan or member of a Gram Panchayat or any members of Joint Committee or Land Management Committee, or a Pramukh, Up-pramukh or any member of Kshettra Panchayat or Chairman, Vice chairman or any member of Zila Panchayat may also be removed from his office in the following conditions-

(i) If he makes himself absent without sufficient cause for more than three consecutive meetings or sittings or refuses to act; or

(ii) If he has taken the benefit of reservation under sub-section (1) of Section 10-A or sub-section (1) of Section 11, sub-section (1) of Section 55-A or Section 56 or sub-section (1) of Section 92-A or Section 93, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the Scheduled Castes, the Scheduled Tribes or the Backward Classes, as the case may be;

              or

      (iii)   If    he        suffers      from    any      of     the

disqualifications mentioned in clauses

(a) to (u) of sub-section (1) of Section 8, clauses (a) to (u) of sub-section (1) of

Section 53 and in clauses (a) to (u) of sub-section (1) of Section 90.

(iv) No order shall be passed adversely affecting a person to remove under this section by State Government/ prescribed authority shall not be given till the concerned is given a reasonable opportunity to present the reason for the thing.

(e) No objection shall be made in any court on the order made by the State Government under this Section.

Notwithstanding anything in any other enactment, if any member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman and Vice- Chairman is removed from membership under this section he shall with effect from the date of publication of notification of removal, cease to hold the office of member, Pradhan, Up-Pradhan, Pramukh Up-Pramukh, Chairman and Vice- Chairman respectively and a vacancy shall be deemed to have been created in that office.

(3) A person who has been removed from membership of the Panchayat under sub-section (1) shall be disqualified for being chosen a member of the Panchayat and being elected a member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman, Vice-chairman of a Panchayats for a period of five years from the date of his removal :

Provided that the State Government may, at any time by order, remove the disqualification."

23. The procedure relating to complaint under the

1997 Rules is given under Rule 3 of it. It is as follows:-

"3. Procedure relating to complaints.-(1) Any person making a complaint against a Pramukh, Up- Pramukh, Adhyaksha or Upadhyaksha may send his complaint to the Secretary to the State Government in the Panchayati Raj Department, Vidhan Bhawan, Lucknow.

(2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of fact relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation.

(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavit respectively.

(4) Not less than three copies of the complaint as well as of each of its Annexures shall be submitted by the complainant.

(5) A complaint which does not comply with any of the foregoing provisions shall not be entertained."

24. Rule 4 of the 1997 Rules makes provision with

regard to the preliminary enquiry. It reads as follows:-

"4. Preliminary Enquiry.- (1) The State Government may, on the receipt of a complaint referred to in Rule 3 or otherwise appoint an officer not below the rank of an Additional District Magistrate in the case of a

Pramukh or Up-Pramukh and District Magistrate in the case of an Adhyaksha or Upadhyaksha to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter.

(2) The Officer appointed under sub-rule (1) shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within a fortnight of his having been so appointed."

25. Reference to Section 19 and 19A of the General

Clauses Act has been made. These sections are as follows:-

"19. Official chiefs and subordinates.- In any (Uttar Pradesh) Act it shall be sufficient for the purposes of expressing that a law relative of the chief of superior of an office shall apply to the deputies or subordinates lawfully performing the duties of that officer in the place of their superior, to prescribe the duty of the superior.

19-A. Ancillary powers.- Where, by any Uttar Pradesh Act, a power is given to a person, officer or functionary to do or enforce the doing of any act or thing, all such powers shall be deemed also to be given as are necessary to enable that person, officer or functionary to do or enforce the doing of the act or thing."

26. A bare perusal of Rule 3 and Rule 4 of the 1997

Rules, as quoted hereinabove, makes it clear that a

mechanism has been given in the matters of complaints

against the elected representatives as specified therein.

27. On behalf of the petitioner reference has also

been made to the judgment in the case of Ravi Yashwant

Bhoir Vs. Collector (2012) 4 SCC 407 to argue that in the

matter of removal of an elected representatives, the

statutory provisions should be strictly observed. In the case

of Ravi Yashwant Bhoir (supra), the Hon'ble Supreme Court

observed that "the law on the issue stands crystallised to

the effect that an elected member can be removed in

exceptional circumstances giving strict adherence to

the statutory provisions and holding the enquiry,

meeting the requirement of principles of natural justice

and giving an incumbent an opportunity to defend

himself, for the reason that removal of an elected

person casts stigma upon him and takes away his

valuable statutory right. Not only the elected office-

bearer but his constituency/electoral college is also

deprived of representation by the person of their

choice."

28. On behalf of the petitioner, reference has been

made to the judgment in the case of Vivekanand Yadav

(supra). In the case of Vivakanand Yadav (supra), the

Hon'ble Allahabad High Court interpreted the provisions of

the Panchayat Raj Rules, 1997 which are somehow different

than the 1997 Rules. Rule 3 of the Panchayati Raj Rules,

1997 provides for the procedure relating to complaint, but

there is a distinction. It also contains Rule 3 sub Rule (6)

which is as follows:-

"(6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule, if a procedure laid down in the foregoing provisions of this rule if a complaints against a Pradhan or Up-Pradhan is made by a public servant."

29. In the case of Vivekanand Yadav (supra), in para

57 of the judgment, the Hon'ble Allahabad High Court

observed that "under Rule 4 of the Panchayati Raj Rules,

1997, the DM can order a preliminary inquiry on a

complaint or report or otherwise." While making

discussion on the word "otherwise" in para 60 of the

judgment, the Hon'ble Allahabad High Court observed that

"The normal meaning of 'otherwise' should be adopted:

the DM has power to refer a case for preliminary enquiry

even if there is no complaint or report or in other words

he has powers to act suo motu."

30. In the instant case, admittedly, District

Magistrate has no power to direct for any enquiry. Rule 4 of

the 1997 Rules empowers the State Government to direct for

an enquiry.

31. In the case of Ranjeet Singh (supra), this Court

has discussed the law on this point and referred to the

judgments on the subject. This Court has held that sub-rule

(5) of Rule 3 of the 1997 Rules "makes it abundantly clear

that compliance of all the sub-rules of Rule 3 of the

1997 Rules is mandatory. It is not a procedural part."

32. In view of the finding recorded by this Court in

the case of Ranjeet Singh (supra), this Court is not required

to further discuss the nature of Rule 3 of 1997 Rules. It has

been settled by this Court that compliance of all sub-rules

of Rule 3 of the 1997 Rules is mandatory: a complaint which

does not comply with any of the sub Rule of Rule 3 of 1997

Rules shall not be entertained.

33. In the instant case, what is being argued on

behalf the State is that the State Government may direct an

enquiry "otherwise" also. It is argued that under "otherwise"

mode, enquiry in the instant case has been initiated. In

support of his argument, learned Advocate General has

referred to paras 22 and 23 in the case of Ranjeet Singh

(supra). There paragraphs are as follows:-

"22. A bare reading of Rule 4 of the 1997 Rules makes it abundantly clear that, in fact, based on a complaint referred to in Rule 3 of the 1997 Rules or otherwise the State Government may appoint an inquiry officer for conducting a preliminary inquiry with a view to find out if there is a prima facie case for a formal inquiry in the matter.

23. A preliminary inquiry under Rule 4 of the 1997 Rules may be ordered "otherwise" also i.e. independent or without any complaint under Rule 3 of the 1997 Rules. But, the question of "otherwise" is not in issue in the

instant matter. It is the categorical case of the petitioner that the complaint of Chandra Shekhar Mudela, based on which a preliminary inquiry was conducted and subsequently impugned order was passed, is bad in the eyes of law. Therefore, all the proceedings based on it and the complaint itself are liable to be quashed."

34. Learned Senior Advocate for the petitioner would

also submit that if the argument as advanced on behalf of

the State is accepted, it would render Rule 3 of the 1997

Rules, redundant.

35. It is true that Rule 4 of the 1997 Rules empowers

the State Government to appoint an officer for conducting a

preliminary enquiry and this may be done on the basis of

complaint referred to in Rule 3 of the 1997 Rules or

"otherwise". The word "otherwise" need not be interpreted in

the instant case because the State Government did act on a

complaint. The complaint given by the respondent no.6 Sher

Singh Gariya, enclosing therewith the complaint of

respondent no.7 Govind Singh Danu. The complaint was

addressed to the Chief Minister. The scheme of 1997 Rules

for conducting a preliminary enquiry on a complaint is given

under Rules 3 and 4, as quoted hereinabove. How a

complaint is to be entertained is given under Rule 3 of the

1997 Rules.

36. Rule 3 of the 1997 Rules, also defines as to whom

the complaint is to be addressed. It has to be addressed in

that manner alone and not otherwise.

37. In the instant case, a complaint has been filed. It

is not addressed to the Secretary to the State Government in

the Panchayati Raj Department. But it has been addressed

to the Chief Minister. It is a complaint. The complaint does

not confirm the provisions of Rule 3 of the 1997 Rules.

38. It is argued that since the respondent no.6 Sher

Singh Gariya made a complaint to the Chief Minister and

the Chief Minister directed for an enquiry, it may be treated

as an enquiry directed under the "otherwise" mode. This

argument cannot be accepted for the following reasons:-

(i) The provisions of the 1997 Rules for

entertaining complaints are well designed.

There appears to be a purpose behind it.

(ii) An elected office bearer may not be

disturbed on mere wild or vague allegations.

The allegations should be substantiated by

affidavits notarized with multiple copies of

the complaint.

(iii) The provision of Rule 3 of the 1997 Rules,

perhaps ensures that only genuine

complaints are filed and entertained.

(iv) If complaints filed otherwise then the mode

provided under Rule 3 of the 1997 Rules,

are entertained under the "otherwise" mode,

it would render Rule 3 of the 1997 Rules,

redundant.

(v) A provision of statute cannot be made

redundant. The interpretation should be so

made that each provision of the statute or

the Rules gets its meaning. Therefore, the

word "otherwise" in Rule 4 of the 1997 Rules

cannot include such complaints which are

not inconformity with Rule 3 of the 1997

Rules.

(vi) There may be situations that the State

Government may suo motu or based perhaps

on any police report or any other manner

direct for conducting an enquiry. Those

situations may perhaps fall under the

"otherwise" mode in Rule 4 of the 1997

Rules. Any mode other than complaint may

perhaps fall under "otherwise" mode. But in

case, a complaint is entertained against a

Jila Panchayat Adhyaksh, it has to meet the

requirement of Rule 3 of the 1997 Rules.

39. In the instant case, the complaint that was made

by the respondent no.6 Sher Singh Gariya to the Chief

Minister enclosing therewith the complaint of the

respondent no.7 Govind Singh Danu, is not in conformity

with Rule 3 of the 1997 Rules. Therefore, the provisions of

sub-Rule (5) of the Rule 3 of the 1997 Rule would come into

play and according to it, the complaint should not have

been entertained. By entertaining such a complaint, an

irregularity has been committed. It is incurable. Therefore,

this Court is of the view that every consequential action

taken on the complaint forwarded by the respondent no.6

Sher Singh Gariya gets vitiated.

40. The impugned order has also been assailed on

the ground that on 29.11.2017, the respondent no.1, the

State of Uttarakhand had directed the District Magistrate to

conduct an enquiry. The District Magistrate instead of

conducting an enquiry himself has further delegated the

enquiry, based on which final enquiry was conducted which

is not in accordance with Rule 4 of the 1997 Rules.

41. On this aspect, learned Senior Counsel for the

petitioner would refer to the judgment in the case of Kesari

Devi (supra), wherein, the Hon'ble Allahabad High Court

observed as hereunder:-

"55. The aforesaid provisions make it crystal clear that a specific procedure has been prescribed under the statutory rules and there is no possibility of making any deviation there from by the Authorities concerned.

56. The 1997 Rules, quoted hereinabove, clearly provide that the preliminary inquiry has to be conducted, in the case of an Adhyaksha, by the District Magistrate and in the case of Upadhyaksha and Member, by Additional District Magistrate. It is, thus, clear that only the District Magistrate can hold the inquiry. The words used in the Statute have to be construed strictly.

57. In Kailash Nath Agarwal and Ors. V.

Pradeshiya Indust. & Inv. Corporation of U.P. and Anr., MANU/SC/0114/2003 : 2003 1SCR1159, the Hon'ble Supreme Court held that if the legislature has used two different words in the same statute, it is to be construed as carrying different meanings.

58. The Hon'ble Supreme Court had an occasion to examine the said Rule 4 of 1997 Rules in State of U.P. and Ors. v. Smt. Janki Devi Pal MANU/SC/0148/2003: 2003 1SCR1075, wherein the Hon'ble Apex Court interpreting the said rule held as under:-

"The draftsman of the "Rules has clearly used the term "District Magistrate" as distinct from the term "Additional District Magistrate". The definition of District Magistrate in clause (14) of Section 2 of the Act is not applicable if there be something repugnant in the subject or context. The very use of "Additional District Magistrate" and "District Magistrate" in the same rule, consisting of one sentence, clearly suggests

that the two terms are used in two different meanings. The High Court appers to be right in holding that an inquiry against a Pramukh or Up-Pramukh can be held by an officer not below the rank of an Additional District Magistrate while as against Adhyaksha or Upadhyaksha - these two being democratically elective offices, higher in status that that of Pramukh or Up-Pramukh- the inquiry should be held by the District Magistrate."

59. Thus, it is evident from the above that the preliminary inquiry is to be conducted only by the District Magistrate and he cannot ask any other officer to hold the inquiry........................................................................... ..................................................................................... ..................................................................................."

42. Learned Advocate General has referred to the

provisions of Section 19 and 19A of the General Clauses

Act, to argue that while conducting an enquiry the District

Magistrate was not divested of ancillary or incidental power

to constitute the committees. Reference has also been made

to the judgment in the case of Grindlays Bank (supra) and

Ajit Kumar Nag (supra).

43. It is true that if an authority is invested with

some powers to perform such duties, such authority must

carry alongwith it, all the ancillary and incidental powers

that are necessary to perform the duties. But the question

is, is it such a case?

44. On behalf of the petitioner, reference has been to

Section 3 of the General Clauses Act to argue that according

to sub Section (2) to Section 3 of it, if there is any contrary

requirement in any statute that shall have binding effect.

Section 3 of the General Clauses Act, 1904 reads as

follows:-

"3. Application of the Act to other enactments. - (1) The provisions of this Act shall apply to this Act and to all Uttar Pradesh Acts, whether made before or after the commencement of this Act.

(2) The provisions of this Act in their application to any enactment or statutory instrument shall be subject to any contrary requirements of the context of the enactment or instrument that is to be interpreted."

45. Learned Senior Counsel for the petitioner would

submit that Rule 4 of the 1997 Rules, categorically makes

distinction between the District Magistrate and the

Additional District Magistrate. In the matter of Adhyaksha

or Upadhyaksha, only District Magistrate may be directed to

conduct an inquiry and in the case of Pramukh and Up-

Pramukh it is Additional District Magistrate, who can be

appointed.

46. The District Magistrate, Bageshwar has filed

counter affidavit. In para 20 and 21, on this aspect he has

stated that "the fact remains that an enquiry against the

petitioner was conducted by the District Magistrate,

which was in consonance with the provisions of the

law". In para 21 of the counter affidavit, the District

Magistrate, writes that "the word "conduct" in Rule 4 of

the 1997 Rules has a wider connotation, which would

also include to guide, to present, manage or direct,

organize and carryout etc."

47. In the case of Kesari Devi (supra), the Hon'ble

Allahabad High Court has categorically dealt with this

aspect and has held that "preliminary inquiry under Rule

4 has to be conducted in accordance with law by the

District Magistrate himself."

48. It is interesting to note that the District

Magistrate, on the one hand, states that he himself had

conducted an enquiry and also gives the meaning of word

"conduct", but Annexure 2 to the counter affidavit of the

respondent nos. 3 and 4 reveals otherwise. It is a

communication dated 14.10.2018 of the District Magistrate,

made to Principal Secretary, State of Uttarakhand. By it, the

inquiry report has been forwarded. This reads that after

receipt of instructions from the State Government, the

District Magistrate, Bageshwar had constituted an inquiry

committee under the chairmanship of the Additional District

Magistrate, Bageshwar. The Additional District Magistrate,

Bageshwar submitted joint enquiry report to the District

Magistrate, Bageshwar, which the District Magistrate,

Bageshwar had merely forwarded. This communication

dated 14.02.2018 (Annexure 2 to the counter affidavit of the

respondent nos. 3 and 4) speaks in volume that the District

Magistrate, Bageshwar had not conducted any enquiry. He

simply constituted Committee on the documents received

by him from the State of Uttarakhand dated 29.11.2017, by

which he was required to conduct an enquiry. When enquiry

report was submitted to him, the District Magistrate,

Bageshwar simply forwarded it to the State of Uttarakhand.

Even he did not comment on it. In view of the settled law, it

is total non compliance of Rule 4 of the 1997 Rules. The

District Magistrate, Bageshwar could not have abdicated his

duties. He could not have delegated the inquiry to any other

authority. It is non compliance of the mandatory provision

of the 1997 Rules.

49. Arguments have been advanced on behalf of the

petitioner that the action is mala fide because the

respondent no.7 Govind Singh Danu had lost the election in

the year 2014. He unsuccessfully challenged the action of

the petitioner in the court of law. Thereafter, he filed a

petition. Undoubtedly, the averments, as made by the

petitioner reveals that there is a political rift between the

petitioner and the respondent no.7, Govind Singh Danu but

it may not be stretched to construe that the action per se is

mala fide.

50. It is also argued that, in fact, entire proceeding is

vitiated due to doctrine of dictation.

51. Learned Senior Counsel for the petitioner would

submit that on the complaint dated 21.09.2017 of the

respondent no.6 Sher Singh Gariya, the Chief Minister had

noted that "the matter is very serious." It is argued that this

has vitiated the entire proceeding. Reference has been made

to principles of law, as laid down in the case of Orient Paper

Mills Ltd.(supra), Manohar Lal (supra) and Tamil Nadu

Pollution Control Board (supra).

52. This argument, as advanced on behalf of the

petitioner may not merit acceptance. What the Chief

Minister has written on the communication is that the

matter is serious, therefore, it may be investigated. Direction

for investigation was made. The authority who were to

conduct an enquiry were not bound by any direction to

submit a report in a particular manner. Therefore, it cannot

be said that proceedings are vitiated due to doctrine of

dictation.

53. On behalf of the petitioner it is also argued that

in the year 2018, the Commissioner had submitted an

enquiry report and four years thereafter, on 16.02.2022

show cause notice was issued to the petitioner. It is after

four years inordinate delay, which per se vitiates the

proceedings.

54. In support of his contention, reference has been

made to the principles of law, as laid down in the case of N.

Radhakishan (supra).

55. It is the case of the petitioner that he was the

Chairman of Jila Panchayat, Bageshwar from 2014 to 2019,

when the complaints were made. The report was submitted

in 2018. The petitioner was member of Jila Panchayat when

the impugned order was passed. Delay per se does not

vitiate any proceeding. But, if there is inordinate

unexplained delay, perhaps it may have adverse effect. The

State has not explained the delay. But the petitioner has

filed the note-sheet of the Secretariat as Annexure 9 to the

writ petition. It explains as to what had happened after

receipt of the enquiry report dated 18.10.2018 passed by

the Commissioner. The note-sheet reveals that when the

Commissioner did not submit the enquiry report, on

12.10.2018, a note was made that reminder may be sent to

the Commissioner. The process did not stop at any stage.

On 11.01.2019, 03.07.2019, 31.01.2020, 23.08.2021 and

12.11.2021 notes were placed in the matter. Finally on

07.02.2022 draft of show cause notice was got approved and

it was issued on 16.02.2022. This chain of events makes it

clear that though after receipt of the inquiry report dated

18.10.2018, the State Government did not act promptly and

finally issued show cause notice on 16.02.2022, but in

between actions were taken as stated hereinbefore.

Therefore, this Court is of the view that whatever delay has

been done, that has been explained by the petitioner himself

by filing the note-sheet of the Secretariat. Delay in the

instant matter does not vitiate the proceedings.

56. In view of the foregoing discussion, this

Court is of the view that the complaint on which action is

taken against the petitioner is not in conformity with Rule 3

of the 1997 Rules. In view thereof, the provisions of sub-

Rule (5) of Rule 3 of the 1997 Rules would come into play

and according to it, the complaint should not have been

entertained. By entertaining such a complaint, an

irregularity has been committed, which is incurable. In

addition to it, the respondent no.4, the District Magistrate

did not conduct an enquiry on his own, as mandated under

Rule 4 of the 1997 Rules. Therefore, initial enquiry is also

bad in the eye of law. Accordingly, this Court is of the view

that every consequential action taken on the complaint gets

vitiated. In view thereof, the impugned order dated

28.04.2023 is liable to be quashed.

57. The writ petition is allowed.

58. Impugned order dated 28.04.2023 passed by the

respondent no.1, State of Uttarakhand is quashed.

(Ravindra Maithani, J.) 19.09.2023 Jitendra