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2001 DIGILAW 793 (ALL)

SAROJANA DEVI v. STATE OF UTTAR PRADESH

2001-08-08

R.H.ZAIDI

body2001
R. H. ZAIDI, J. ( 1 ) HEARD learned counsel for the parties. ( 2 ) BY means of this petition filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 18. 12. 2000 passed by the District Magistrate, Gorakhpur and quashing the enquiry report dated 12. 9. 2000. Prayer for a direction in the nature of mandamus directing the respondents not to realize the amount in question from the petitioner has also been made. ( 3 ) THE petitioner Smt. Sarojna Devi was holding the office of Pradhan of Village. Barigaon, Post barigaon, tahsll Khajani, Block Belghat, district Gorakhpur. She continued to hold the said office till June, 2000. During continuance of her term, several complaints were received in the office of the District Magistrate against the petitioner. The complaints were also sent by the villagers to other authorities. The District Magistrate, on the basis of the said complaints, directed the District Panchayat Raj Officer to conduct the enquiry. The Secretary and the minister concerned are also stated to have passed the similar orders. The enquiry is alleged to have been conducted by the Assistant Development Officer. Shri Ram Gopal Gupta, who happened to be Assistant District Panchayat Raj Officer in compliance of the order passed by the district Magistrate. Sri Ram Gopal Gupta submitted his report after enquiry on 12. 9. 2000 to the district Magistrate holding that the charges levelled against the petitioner were proved. On the basis of the report dated 12. 9. 2000, the District Magistrate passed the impugned order dated 18. 12. 2000 whereby he directed the petitioner to deposit the amount in question within the lime prescribed by him falling which it has been directed that serious disciplinary action shall be taken against her. Hence, the present petition. ( 4 ) CONTROVERTING the facts stated in the writ petition, a counter-affidavit has been filed by the complainant whose status is nothing but that of a witness in the proceedings under Section 95 (g)of the U. P. Panchayat Raj Act, 1947, read with Rules framed thereunder. In reply to the counter-affidavit, a rejoinder-affidavit has also been filed reiterating and asserting the facts stated in the writ petition. Since counter-affidavit and rejoinder- affidavit were exchanged and the case was ready for hearing. In reply to the counter-affidavit, a rejoinder-affidavit has also been filed reiterating and asserting the facts stated in the writ petition. Since counter-affidavit and rejoinder- affidavit were exchanged and the case was ready for hearing. As desired by the learned counsel for the parties. I have heard this petition finally at this stage. ( 5 ) LEARNED counsel for the petitioner vehemently urged that under relevant rules framed, the enquiry against the petitioner could be conducted only by the District Panchayat Raj Officer and not by any other officer subordinate to him. In support of his submission, learned counsel for the petitioner invited the attention of this Court to the provisions of Rules known as U. P. Panchayat raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. Rule 5 of the said rule provides as under : "5. Enquiry Officer.--Where the State Government is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise that an enquiry should be held against a pradhan or Up-Pradhan or Member under the proviso to clause (g) of Sub-section (1) of Section 95 it shall, by an order, as the Enquiry Officer to hold that enquiry. " Clause (c) of Rule 2 defines Enquiry Officer as under : 2. Definitions.--In these rules, unless the context otherwise requires : (a ). . . . . (b ). . . . . (c) enquiry Officer means an officer not below the rank of District Panchayat Raj Officer, appointed as such, by the State Government ; (d ). . . . . ( 6 ) THE submission made by the learned counsel for the petitioner is that the Assistant District panchayat Raj Officer is an officer subordinate to the District Panchayat Raj Officer. It is contended that the Assistant District Panchayat Raj Officer has no jurisdiction to conduct the enquiry and to submit the report against, the District Magistrate has jurisdiction to rely upon the said report and to pass impugned order against the petitioner. It is contended that the Assistant District Panchayat Raj Officer has no jurisdiction to conduct the enquiry and to submit the report against, the District Magistrate has jurisdiction to rely upon the said report and to pass impugned order against the petitioner. Reliance has also been placed by the learned counsel for the petitioner upon the decision of this Court in Chunmun v. District magistrate, Sonbhadra and another, 1998 (3) UPLBEC 2061, wherein it has been ruled that only the District Panchayat Raj Officer or any officer above his rank can conduct the enquiry under the aforesaid rule and not any other officer below the rank of the District Panchayat Raj Officer. Similar view has been taken by this Court in Sandhya Gupta v. District Magistrate, Auraiya and others, 1999 (1) UPLBEC 718 . ( 7 ) LEARNED counsel appearing for the contesting respondents as well as learned standing counsel could not meet the arguments of learned counsel for the petitioner and could not show any provisions of law or authority to prove that the Assistant District Panchayat Raj Officer could conduct the enquiry against the petitioner, therefore, I have got no hesitation in accepting the arguments made by the learned counsel for the petitioner. In view of the aforesaid facts, this petition deserves to be allowed. ( 8 ) THE writ petition succeeds and is hereby allowed. The enquiry report submitted by the assistant District Panchayat Raj Officer dated 12. 9. 2000 and the order passed by the District magistrate dated 18. 12. 2000 are hereby quashed. The matter is sent back to the District magistrate to proceed in accordance with law and in accordance with the observations made above. It is further directed that the matter is sent back to the District Magistrate to proceed in accordance with law and in accordance with the observations made above. It is, however, directed that the enquiry shall be conducted expeditiously preferably within a period of two months after following the procedure under the law and enquiry report shall be submitted immediately thereafter to the District Magistrate who shall pass appropriate orders on receipt of the enquiry report. .