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2004 DIGILAW 1851 (ALL)

Suman v. State of U. P.

2004-09-16

A.N.VERMA

body2004
JUDGMENT A. N. Varma, J.—Through the instant writ petition, the petitioner has assailed the order dated 5.8.2004 passed by the opposite party No. 2, as contained in Annexure-1 to the writ petition, whereby in exercise of powers conferred under Section 95 (1) (g) of U. P. Panchayat Raj Act, 1947, administrative and financial powers of petitioner, who is the Pradhan of Gram Panchayat Bhanageri, Tehsil Mohammadi, District Kheri has been ceased pending final enquiry and a three member committee has been constituted. 2. I have heard the learned counsel for the petitioner, Sri Raghavendra Singh as well as Sri D. K. Singh Chauhan, who appears for the opposite parties at some length. 3. Sri Singh with great vehemence argued that the impugned order on the face of it suffers from manifest illegality inasmuch as that the charges levelled against the petitioner in the impugned order do not constitute act of either financial or administrative irregularity which can be attributed to her. According to him it was the Secretary concerned who made manipulations in the record resulting into the passing of the impugned order and who consequent thereto has also been placed under suspension. His next limb of argument is that since the enquiry report also does not reveal any financial or administrative lapses, therefore, the order impugned is bad and runs contrary to what is contemplated under Section 95 (1) (g) of U. P. Panchayat Raj Act, 1947. The allegations of malice has also been levelled against the Block Pramukh. The learned counsel for the petitioner also submitted that the Assistant Engineer is not a District Level Officer, therefore, enquiry conducted by him is not in accordance with the Rules. His submission further is that the District Magistrate while exercising the powers under Section 95 (1) (g) has directed the D.R.P.O. to a constitute three member committee. According to him this is also illegal inasmuch as the power is to be exercised by the State Government and not by the D.P.R.O. 4. His submission further is that the District Magistrate while exercising the powers under Section 95 (1) (g) has directed the D.R.P.O. to a constitute three member committee. According to him this is also illegal inasmuch as the power is to be exercised by the State Government and not by the D.P.R.O. 4. Section 95 (1) (g) of U. P. Panchayat Raj Act, 1947, is reproduced hereunder : “Remove a Pradhan, Up-Pradhan or Member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he— (i) absents himself without sufficient cause for more than three consecutive meetings or sittings, (ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude, (iii) has abused his position as such or has persistently failed to perform the duties imposed by the Act or Rules made thereunder or his continuance as such is not desirable in public interest, or (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or (v) suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5A : Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a committee consisting of three members of Gram Panchayat appointed by the State Government.” 5. As would appear from the proviso appended to aforesaid section it contemplates that where in an enquiry held by such person and in such manner as may be prescribed, Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities then in such contingencies the Pradhan or Up-Pradhan shall cease to exercise and perform financial and administrative powers until such time he is exonerated in the enquiry which is constituted to look into the charges levelled against the said Pradhan or Up-Pradhan. 6. In the case at hand a preliminary enquiry was conducted and a report was submitted. 6. In the case at hand a preliminary enquiry was conducted and a report was submitted. On the basis of findings arrived at by the Enquiry Officer, the District Panchayat Raj Officer vide its letter dated 1.7.2004, called upon the petitioner to submit her reply within a period of one week. Accordingly the petitioner submitted her reply on 12.7.2004. Upon consideration of the enquiry report as well as the explanation submitted by the petitioner, the opposite party No. 2 was prima facie satisfied and came to the conclusion that there were administrative lapses insofar as the exercise of power and function by the petitioner as Pradhan were concerned. Once such prima facie satisfaction is arrived at and the authority concerned forms an opinion then the power as conferred under Section 95 (1) (g) of the U. P. Panchayat Raj Act can be exercised. 7. Insofar as the petitioner is concerned since on the basis of the enquiry report the District Magistrate, was of the view and came to a prima facie satisfaction that the petitioner had committed administrative lapses, the order impugned was passed which does not run contrary to the provisions of aforesaid section. The power has been exercised within the four corners of the power conferred under the said section. 8. The submission of the learned counsel for the petitioner that the enquiry has not been conducted by District Panchayat Raj Officer, therefore, the entire proceedings are vitiated has no substance. The definition of Enquiry Officer as contained in Rule 2 (c) of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997, has been amended by notification dated 5.10.2001, the amended Rule 2 (c) reads as follows : “2 (c). Enquiry Officer means the District Panchayat Raj Officer or any other District Level Officer, to be nominated by the District Magistrate.” In the case at hand, as would appear from the perusal of the impugned order, the enquiry was got conducted by Executive Engineer, Jal Nigam, who is a District Level Officer nominated by the District Magistrate as such is fully covered by the definition of word Enquiry Officer as contemplated under the Rules. In order to ascertain and make technical verification, the Assistant Engineer it appears was required to make an enquiry and submit a report, which has been annexed along with the writ petition as Annexure-2. In order to ascertain and make technical verification, the Assistant Engineer it appears was required to make an enquiry and submit a report, which has been annexed along with the writ petition as Annexure-2. This procedure cannot be said to vitiate the proceedings. 9. The last submission of the learned counsel that the constitution of three members committee is illegal also holds no water. In the considered opinion of this Court this act of opposite party No. 2 does not suffer from any illegality. Even otherwise the financial and administrative powers of the petitioner having once been ceased, she cannot be said to be aggrieved in any manner by the constitution of three member committee, which now has been vested with the powers to look after the financial and administrative powers. 10. The District Magistrate being prima facie satisfied that the petitioner misused her power as a Pradhan and there being serious administrative lapses on her part, has rightly ceased her financial and administrative powers. There is absolutely no error in the order dated 5.8.2004, impugned in the writ petition, as such no interference is called for by this Court in exercise of powers under Article 226 of the Constitution of India. The writ petition being devoid of merit, is hereby dismissed.