JUDGMENT Ashok Bhushan, J.—Heard Sri P. N. Saxena, learned senior advocate, assisted by Sri A. K. Sachan, Sri Ravi Kiran Jain, senior advocate, assisted by Sri L. M. Singh for respondent No. 5 and learned standing counsel. 2. By this writ petition, the petitioner has prayed for quashing the order dated 16th August, 2004 passed by District Magistrate, Kanpur Nagar by which the District Magistrate has ceased the financial and administrative powers of the petitioner under proviso to Section 95 (1) (g) of U. P. Panchayat Raj Act,1947 and appointed three members committee. 3. Brief facts, which emerge from pleading of the parties, are ; a complaint was filed against the petitioner by several members of the Gaon Sabha on which the Commissioner of the Division passed an order to the Deputy Director (Panchayat) to conduct an enquiry. The Deputy Director (Panchayat) conducted an enquiry and submitted report dated 20th February, 2004 to the Commissioner. The District Magistrate, Kanpur Nagar on the basis of the enquiry report dated 20th February, 2004 submitted by Deputy Director (Panchayat) issued a show cause notice to the petitioner asking him to show cause as to why action under Section 95 (1) (g) proviso be not taken against the petitioner. The petitioner submitted reply to the said show cause notice. The District Magistrate after considering the reply of the petitioner passed order dated 16th August, 2004. The District Magistrate observed that on the basis of the material brought before him, he is satisfied that petitioner has been found prima facie guilty of irregularities, hence his financial and administrative powers are liable to be ceased. 4. Sri P. N. Saxena, learned senior advocate, appearing for the petitioner, contended that enquiry report dated 20th February, 2004 was not an enquiry report as contemplated in accordance with the provisions of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 and on the said basis the District Magistrate has no jurisdiction to pass an order ceasing the financial and administrative powers. Sri Saxena contended that neither the District Magistrate nominated the Deputy Director (Panchayat) to conduct the enquiry nor Deputy Director (Panchayat) can be enquiry officer under Section 2 (c) of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997. Sri Saxena contended that neither the District Magistrate nominated the Deputy Director (Panchayat) to conduct the enquiry nor Deputy Director (Panchayat) can be enquiry officer under Section 2 (c) of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997. Sri Saxena further contended that there was no allegation of financial irregularity against the petitioner, hence financial and administrative powers of the petitioner could not have been ceased. 5. Sri Ravi Kiran Jain, replying the submission of counsel for the petitioner, contended that when the show cause notice has been issued by the District Magistrate dated 21st July, 2004 and the District Magistrate after considering the reply of the petitioner has passed the order, it should be treated that District Magistrate himself has conducted the enquiry and the order passed by District Magistrate is nothing but an order passed on the basis of enquiry conducted by the District Magistrate himself. He further contended that there was allegation of financial irregularity against the petitioner apart from other irregularity. Sri Jain relied on the affidavit of Smt. Maya Devi which was filed before the Commissioner copy of which has been filed along with the counter-affidavit in which allegation of financial irregularity against the Pradhan has been made. 6. I have considered the submissions and perused the record. 7. The first submission of counsel for the petitioner is that impugned order has not been passed in accordance with Section 95 (1 )(g) proviso of U. P. Panchayat Raj Act, 1947 and U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997, hence the order of District Magistrate is vitiated. The submission of the petitioner, as noted above, is that the Deputy Director (Panchayat) is not Enquiry Officer within the meaning of Rule 2 (c) of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997, nor his enquiry report can be said to be preliminary enquiry report within the meaning of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997. The reply of Sri Jain, as noted above, is that District Magistrate when issued show cause notice, it will be presumed that he held the enquiry and there was no impediment for the District Magistrate in passing the order. The reply of Sri Jain, as noted above, is that District Magistrate when issued show cause notice, it will be presumed that he held the enquiry and there was no impediment for the District Magistrate in passing the order. For appreciating the submission raised by counsel for the parties, it is relevant to note proviso to Section 95 (1) (g) of U. P. Panchayat Raj Act, 1947. Proviso to Section 95 (1) (g) provides 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. Proviso to Section 95 (1) (g) provides 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. Section 95 (1) (g) of U. P. Panchayat Raj Act, 1947, is quoted below : “95 (1) (g) : (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 this Act or Rules made thereunder or his continuance as such is not desirable in public interest, or (iiia) has taken the benefit of reservation under sub-section (2) of Section11A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Castes, the Scheduled Tribes or the backward classes, as the case may be, (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 men-tioned 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.]” In the proviso enquiry is contemplated by such person and in such manner as may be prescribed. The word ‘prescribed’ obviously means prescribed by the rules. Rules have been framed, namely, U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997. The word ‘prescribed’ obviously means prescribed by the rules. Rules have been framed, namely, U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997. Rule 2(c) defines Enquiry Officer. Rule 4 provides with regard to preliminary enquiry and Rule 5 is with regard to constitution of three members committee as envisaged under proviso to clause (g) of sub-section (1) of Section 95. Rule 2(c), Rule 4 and Rule 5 of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997, extracted below : “2 (c). ‘Enquiry Officer’ means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate. ……. 4. Preliminary Enquiry.—(1) The State Government may, on the receipt of a complaint or report referred to in Rule 3, or otherwise order the Enquiry Officer 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 Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered. 5. 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 forthwith constitute a committee envisaged by proviso to clause (g) of sub-section (1) of Section 95, of the Act and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated under sub-rule (2) of Rule 4, to hold the enquiry. The preliminary enquiry as contemplated under U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules,1997 has to be by an Enquiry Officer nominated by the District Magistrate. Admittedly, the Deputy Director (Panchayat) was an Enquiry Officer not nominated by the District Magistrate but he was directed to conduct the enquiry by Divisional Commissioner. According to provisions of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997, the Deputy Director (Panchayat) being not a district level officer cannot be an Enquiry Officer. The enquiry conducted by Deputy Director (Panchayat) cannot be said to be an enquiry under Rule 4. According to provisions of U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997, the Deputy Director (Panchayat) being not a district level officer cannot be an Enquiry Officer. The enquiry conducted by Deputy Director (Panchayat) cannot be said to be an enquiry under Rule 4. Rule 5 gives power to the State Government/District Magistrate to direct for holding an enquiry against the Pradhan under proviso to clause (g) of sub-section (1) of Section 95 on the basis of report referred to in sub-rule (2) of Rule 4 or otherwise. The action of the District Magistrate is not based on any preliminary enquiry report as referred to in Rule 4 (2). The question, however, is that as to whether without there being any preliminary enquiry report the District Magistrate himself could have passed the impugned order. Reading of Rule 5 clearly provides that District Magistrate can take a decision otherwise than the preliminary enquiry report also to hold an enquiry against the Pradhan. However, harmonious reading of Rule 5 with proviso to Section 95 (1) (g) of U. P. Panchayat Raj Act, 1947 make it clear that the power to cease financial and administrative powers under proviso to Section 95 (1) (g) can be made only when in an enquiry held by such person in such manner as prescribed, a Pradhan is found to have committed financial and other irregularities. Under Rule 5, the District Magistrate can direct for enquiry which enquiry shall take place in accordance with the procedure prescribed in Rule 6. The power under Section 95 (1) (g) proviso can thus be exercised on the basis of preliminary enquiry report or on the basis of prima facie finding which comes even in a final enquiry as prescribed under Rule 6. In the present case, admittedly, final enquiry has not yet been held since the final Enquiry Officer has been appointed in the order impugned dated 16th August, 2004, itself, i.e., Assistant Engineer, District Rural Development Agency, Kanpur. The Enquiry Officer to conduct the final enquiry having been appointed by the impugned order itself, there is no question of any final enquiry report before the District Magistrate. The Enquiry Officer to conduct the final enquiry having been appointed by the impugned order itself, there is no question of any final enquiry report before the District Magistrate. There being no final enquiry report in which Pradhan has been found prima facie guilty of financial and other irregularities nor there being any preliminary enquiry report, the power under proviso to Section 95 (1) (g) of U. P. Panchayat Raj Act,1947 cannot be exercised by the District Magistrate. 8. The submission of Sri Jain that District Magistrate himself has conducted the preliminary enquiry cannot be accepted. After receiving the preliminary enquiry report, the District Magistrate has to issue show cause notice for taking action under Section 95 (1) (g). Mere issuance of notice by the District Magistrate cannot tantamount conducting of enquiry by the District Magistrate. 9. In view of the foregoing discussions, the order of the District Magistrate impugned in the writ petition dated 16th August, 2004 cannot be sustained and is herby quashed. It is, however, observed that this order shall not prevent the District Magistrate in directing for holding preliminary enquiry in accordance with U. P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 and take action in accordance with law. 10. The writ petition is allowed accordingly.