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Uttarakhand High Court · body

2005 DIGILAW 182 (UTT)

Mohd. Yusuf v. State of Uttaranchal

2005-05-21

CYRIAC JOSEPH, M.M.GHILDIYAL

body2005
JUDGMENT 1. The petitioner is a resident of village Jainpur Jhanjhedl, Tehsil Roorkee, Haridwar. He challenges Annexure 11 order passed by the District Magistrate, Haridwar and Annexure 12 order passed by the Block Development Officer, Narsan, Haridwar. Annexure 11 is the final order passed by the District Magistrate in the proceedings initiated against the third respondent Sri Kausar Ali who is the Pradhan of village Jainpur Jhanjhedi under the provisions of Section 95 (1) (g) of the U.P. Panchayat Raj Act, 1947 as applicable to the State of Uttaranchal. As per said order, the proceedings against the third respondent were concluded by administering a warning to him, and deciding not to take any other action against him. As per Annexure 12 order of the Block Development Officer, the earlier order constituting a Committee to exercise and perform the financial and administrative powers and functions of the Pradban was cancelled and those financial and administrative power and functions were restored to the third respondent. The petitioner has also prayed for a direction to the first respondent to hold a fresh enquiry against the third respondent by a competent authority in accordance with law. 2. Counter affidavits have been filed on behalf of the respondents and rejoinder has been filed by the petitioner. 3. It is necessary to state the facts and the background of this case. The petitioner had made a complaint dated 21-05-2002 to the District Magistrate, Haridwar raising some allegations against the third respondent. By his order dated 27-05-2002, the District Magistrate directed the District Panchayat Raj Officer, Haridwar to conduct an enquiry in the matter. The District Panchayat Raj Officer entrusted the enquiry with the Assistant Development Officer (Panchayat). After conducting the enquiry, the Assistant Development Officer (Panchayat) submitted a report to the District Panchayat Raj Officer. But the third respondent objected to the enquiry by the Assistant Development Officer (Panchayat) on the ground that he was not competent to conduct such an enquiry. The third respondent submitted a representation to the District Magistrate raising the said objection. Thereupon, the District Magistrate by his order dated 18-08-2002 directed the District Panchayat Raj Officer himself to conduct the enquiry. After conducting a preliminary enquiry, the District Panchayat Raj Officer submitted his report on 10-05-2003 to the District Magistrate. The third respondent submitted a representation to the District Magistrate raising the said objection. Thereupon, the District Magistrate by his order dated 18-08-2002 directed the District Panchayat Raj Officer himself to conduct the enquiry. After conducting a preliminary enquiry, the District Panchayat Raj Officer submitted his report on 10-05-2003 to the District Magistrate. A copy of the report has been placed on record as Annexure 8 to the supplementary counter affidavit filed by the second respondent. In the Enquiry report submitted by the District Panchayat Raj Officer, the third respondent was found guilty of only two out of ten charges and he was exonerated in respect of the remaining eight charges. One of the two charges proved by the Enquiry Officer related to the repairs of a pathway. The allegation was that the same work was shown in two Financial Years, namely, 2001-2002 and 2002-2003. The Enquiry Officer found that the same work was shown twice in the same financial year and recommended that an amount of Rs. 7959/- should be recovered from the third respondent and the other officials who were responsible for the irregularity. The second charge proved against the third respondent related to the quality of the repairs of a pathway and the plastering of the wall of a primary school building. It was found that the work was of inferior quality due to the omission to use the required quantity of cement. In respect of the second charge, the recommendation of the Enquiry Officer was that the third respondent should be administered a warning. On receipt of the preliminary enquiry report dated 10-05-2003 of the District Panchayat Raj Officer, the District Magistrate, in exercise of his powers under Rule 5 of the U.P. Panchayat Raj (Removal of Pradhans, Up-pradhans and Members) Enquiry Rules, 1977, appointed the Project Director, D.R.D.A., Haridwar as an Enquiry Officer to conduct the final enquiry. The Project Director, D.R.D.A., Haridwar issued a charge-sheet dated 22-11-2003 to the third respondent and conducted the enquiry. Though the petitioner submitted a representation dated 08-12-2003 to the Project Director demanding that the enquiry should cover all the charges enquired into by the District Panchayat Raj Officer, the Project Director took the stand that enquiry could be concluded only in respect of the two charges established in the preliminary enquiry conducted by the District Panchayat Raj Officer. Though the petitioner submitted a representation dated 08-12-2003 to the Project Director demanding that the enquiry should cover all the charges enquired into by the District Panchayat Raj Officer, the Project Director took the stand that enquiry could be concluded only in respect of the two charges established in the preliminary enquiry conducted by the District Panchayat Raj Officer. The Project Director, in his final report dated 19-12-2003, found that the disputed work relating to the repairs of pathway were shown in two financial years and not twice in same financial year. He also found that though the work was done at the same place, it was necessitated by the damage caused to work done during the previous year due to the flow of water from a Nala. Thus, the third respondent was exonerated of the said charge. However, the Project Director found that the plastering of the primary school building was of inferior quality and that the third respondent should be administered a warning not to repeat such omission/irregularities. After considering the report of the Project Director, the District Magistrate accepted the findings and recommendations of the Project Director and issued Annexure 11 order dated 22-12-2003 administering a warning to the third respondent and dropping further action against him. In the meanwhile, the District Magistrate in exercise of his powers under the Proviso to section 5(1)(g) of the U.P. Panchayat Raj Act, 1947 as applicable to the State of Uttaranchal, had issued an order dated 16-10-2003 withdrawing from the third respondent the financial and administrative powers and functions of Pradhan and constituting a Committee to exercise and perform the financial and administrative powers and functions of Pradhan. The said Committee had been performing the financial and administrative powers and functions of Pradhan during the period of the enquiry conducted by the Project Director, D.R.D.A., Haridwar. Hence, consequent on the passing of Annexure 11 order of the District Magistrate, the Block Development Officer, Narsan passed Annexure 12 order canceling the order appointing the Committee and restoring the financial and administrative powers and functions of Pradhan to the third respondent. Aggrieved by Annexure 11 and 12 orders, the petitioner filed this writ petition. 4. The first contention of the learned counsel for the petitioner is that the enquiry conducted by the Project Director, D.R.D.A., Haridwar was not in accordance with law. Aggrieved by Annexure 11 and 12 orders, the petitioner filed this writ petition. 4. The first contention of the learned counsel for the petitioner is that the enquiry conducted by the Project Director, D.R.D.A., Haridwar was not in accordance with law. The grievance is that all the ten charges which were subject matter of the preliminary enquiry conducted by the District Panchayat Raj Officer Were not made subject matter of the final enquiry by the Project Director. There is also a grievance that certain other allegations contained in some other complaints made by the petitioner and others to the Additional Sub-Divisional Magistrate, Roorkee were not made subject matter of the final enquiry. There is no merit in the contention of the petitioner. Once it was found in the preliminary enquiry conducted by the District Panchayat Raj Officer that out of the ten charges eight were not proved and only two charges were proved, it was not necessary to conduct any final enquiry into the unsubstantiated charges. No such direction was given to the Project Director by the District Magistrate. The scheme of the U.P. Panchayat Raj (Removal of Pradhans, Up-pradhans and Members) Enquiry Rules, 1997, does not contemplate a final enquiry into the charges which were not proved in the preliminary enquiry. Hence, the Project Director, D.R.D.A., Haridwar cannot be blamed for not making the above mentioned eight unsubstantiated charges subject matter of the final enquiry. He was right and justified in taking the stand that only the charges proved in the preliminary enquiry need be subjected to the final enquiry. There is also no legal basis for the grievance of the petitioner that the allegations contained in some other complaints submitted by the petitioner and others to the Additional Sub-Divisional Magistrate, Roorkee were not enquired into by the Project Director, D.R.D.A., Haridwar. The Project Director could not have taken cognizance of or enquired into the allegations contained in some complaints submitted to the Additional Sub Divisional Magistrate, Roorkee, as they were not referred to him by the District Magistrate for final enquiry. Hence, we do not find any illegality in the enquiry conducted by the Project Director, D.R.D.A., Haridwar or in the order passed by the District Magistrate accepting the findings in the final enquiry report submitted by the Project Director, D. R. D.A., Haridwar. 5. Hence, we do not find any illegality in the enquiry conducted by the Project Director, D.R.D.A., Haridwar or in the order passed by the District Magistrate accepting the findings in the final enquiry report submitted by the Project Director, D. R. D.A., Haridwar. 5. Learned counsel for the petitioner submitted that on the basis of the complaints made by the petitioner and others, the Additional Sub-Divisional Magistrate, Roorkee had conducted a preliminary enquiry and on the basis of the preliminary enquiry report submitted by the Additional Sub-Divisional Magistrate, the District Panchayat Raj Officer had issued Annexure 3 show cause notice dated 04-10-2002 to the third respondent and others. Though the third respondent submitted explanation to the said show cause notice, the District Panchayat Raj Officer did not further inquire into the charges mentioned in Annexure 3 show cause notice or deal with those charges in his preliminary enquiry report submitted to the District Magistrate. It is alleged by the learned counsel for the petitioner that this was done deliberately to save the third respondent. However, learned Standing Counsel appearing for the respondents 1, 2, 4 and 5 submitted that the Additional Sub-Divisional Magistrate, Roorkee is not a competent officer under the U.P. Panchayat Raj Act, 1947 or U.P. Panchayat Raj (Removal of Pradhans, Up-pradhans and Members) Enquiry Rules, 1997 to entertain a complaint against the Pradhan or to conduct any preliminary enquiry and, therefore, the action of the District Panchayat Raj Officer in issuing Annexure 3 show cause notice to the third respondent on the basis of the preliminary enquiry report of the Additional Sub-Divisional Magistrate, Roorkee, was illegal, irregular and unauthorized. It Is contended that In such circumstances, no further action was required pursuant to Annexure 3 show cause notice and the District Panchayat Raj Officer rightly excluded the allegations contained In Annexure 3 notice from the purview of the preliminary enquiry conducted by him as per the direction of the District Magistrate. We are inclined to agree with the above contention of the learned Standing Counsel. The provisions contained In the U.P. Panchayat Raj Act, 1947 and the U.P. Panchayat Raj (Removal of Pradhans, Uppradhans and Members) Enquiry Rules, 1997 lay down a procedure for making complaints against a Pradhan and Inquiring into such complaints and taking action on the basis of such enquiry. The provisions contained In the U.P. Panchayat Raj Act, 1947 and the U.P. Panchayat Raj (Removal of Pradhans, Uppradhans and Members) Enquiry Rules, 1997 lay down a procedure for making complaints against a Pradhan and Inquiring into such complaints and taking action on the basis of such enquiry. Complaints against a Pradhan have to be submitted to the competent authority in accordance with the above mentioned procedure and the enquiry has to be conducted as per the procedure. Since the complaints stated to have been submitted to the Additional Sub-Divisional Magistrate, Roorkee against the third, respondent were not made following the procedure laid down under the U.P. Panchayat Raj Act, 1947 and U.P. Panchayat Raj (Removal of Pradhans, Up-pradhans and Members) Enquiry Rules, 1997, the District Panchayat Raj Officer or the District Magistrate cannot be found fault with for not taking action against the third respondent on the basis of allegations contained in such complaints. The learned Standing Counsel rightly pointed out that even in the representation dated 08-12-2003 (Annexure 10) submitted by the petitioner to the Project Director, D.R.D.A., Haridwar, the allegations mentioned in Annexure 3 show cause notice were not mentioned. Having failed to make the complaints against the third respondent in accordance with the statutory provisions, the petitioner cannot contend that the enquiry conducted by the Project Director, D.R.D.A., Haridwar was illegal and hence a fresh enquiry is necessary. 6. Another contention raised by the learned counsel for the petitioner is that the District Magistrate should not have agreed with the findings and recommendations of the Project Director who conducted the final enquiry. It is contended that the charge proved against the petitioner was very serious and the administration of warning is not a sufficient punishment or penalty for the grave irregularity committed by the third respondent. According to the learned counsel, the third respondent should have been removed from the post of Pradhan by the District Magistrate. We are not impressed by this argument. According to the learned counsel, the third respondent should have been removed from the post of Pradhan by the District Magistrate. We are not impressed by this argument. According to Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 as applicable to the State of Uttaranchal, the State Government may remove a Pradhan, Up-pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Pancha, 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 the rules made thereunder or his continuance as such is not desirable in public interest, or (iii-a) has taken the benefit of reservation under sub section (2) of section 11-A 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 Caste, Scheduled Tribe or backward classes, as the case may be; (iv) being a Sahayak Sarpanch or a Sarpanch of Nyaya Panchayat takes active part in politics, or (v) suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5-A. According to the learned counsel for the petitioner Section 95(1)(g) (iii) is attracted in the case of the third respondent. Section 95 (1) (g) (iii) contemplates removal of the Pradhan if he 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. The final enquiry report submitted by the Project Director, D.R.D.A., Haridwar does not show that the third respondent had abused his position. It is true that the Enquiry Officer found that the quality of the plastering of the primary school building was of inferior quality due to the omission to use sufficient quantity of cement. As rightly pointed out by the District Magistrate, the work of plastering was not done by the Pradhan. It is true that the Enquiry Officer found that the quality of the plastering of the primary school building was of inferior quality due to the omission to use sufficient quantity of cement. As rightly pointed out by the District Magistrate, the work of plastering was not done by the Pradhan. The responsibility of arranging and supervising such work was with the Secretary of the Panchayat, the Engineers and the other technical staff. For any defect in such work, the Pradhan cannot be held liable. It cannot be said that the Pradhan has to personally verify the quality of such works done in the Gram Panchayat. Even assuming that there was any omission on the part of the third respondent in effectively supervising the work, it cannot be described as abuse of his position or as persistent failure to perform the duties imposed by the U.P. Panchayat Raj Act, 1947 and U.P. Panchayat Raj (Removal of Pradhans, Up-pradhans and Members) Enquiry Rules, 1997. Only on account of the poor quality of the plastering of the primary school building, it cannot be held that continuance of the third respondent as Pradhan is not desirable in public interest. Therefore, we are of the view that Section 95(1)(g) (iii) was not attracted in the case of the third respondent. In this view of the matter, we uphold Annexure 11 order passed by the District Magistrate, Haridwar and Annexure 12 order passed by the Block Development Officer, Narsan, Haridwar. 7. However, we are inclined to agree with the learned counsel for the petitioner that allegations like those mentioned in Annexure 3 show cause notice issued to the third respondent by the District Panchayat Raj Officer should not remain unexamined by a proper authority. It has to be ensured that persons like the third respondent, holding a public office cannot indulge in any illegal activity or Irregularity with Impunity. At the same time, it is the responsibility of any public spirited citizen like the petitioner to bring such allegations to the notice of the competent authority as per the procedure laid down under the statute. The above mentioned allegations remained unexamined by the competent authority only because of the failure of the petitioner and others to make the complaints before the appropriate and competent authority. The above mentioned allegations remained unexamined by the competent authority only because of the failure of the petitioner and others to make the complaints before the appropriate and competent authority. Hence, this judgment will not stand in the way of the petitioner bringing those allegations to the notice of the competent authority as per the provisions of .the U.P. Panchayat Raj Act, 1947 and the U.P. Panchayat Raj (Removal of Pradhans, Up-pradhans and Members) Enquiry Rules, 1997. We have no reason to assume that if such a proper complaint is made by the petitioner before the State Government or the District Magistrate, Haridwar, it will not be examined in accordance with law without any delay. If any delay is caused in the matter, it will be open to the petitioner to approach this Court again. 8. Subject to the above observation, the writ petition is dismissed. There will be no order as to costs.