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2008 DIGILAW 1086 (ALL)

SANGEETA DEVI v. STATE OF UTTAR PRADESH

2008-05-21

S.RAFAT ALAM, VIKRAM NATH

body2008
JUDGMENT By the Court.—This is intra Court appeal, under the Rules of the Court arising from the judgment of the Hon’ble Single Judge of this Court dated 7.4.2008 dismissing the petitioner-appellant’s Civil Misc. Writ Petition No. 17785 of 2008 for quashing the order of the District Magistrate, Kushinagar dated 30.3.2008 whereby the financial and administrative power of the appellant has been suspended under the proviso to Section 95 (1)(g) of the U.P. Panchayat Raj Act, 1947 (for short the Act). 2. We have heard learned Counsel for the appellant and Sri O.N. Rai, learned Standing Counsel for the State-respondents and also perused the record. 3. It appears that a proceeding under Section 95 (1)(g) of the Act is initiated against the petitioner-appellant. It further appears that the District Magistrate being satisfied with the report of the preliminary enquiry showing prima facie involvement of the petitioner-appellant in the alleged financial and other irregularities, withdrew the financial and administrative power of the appellant in exercise of the power conferred under the first proviso to Section 95 (1)(g) of the Act. The aggrieved appellant preferred the aforesaid writ petition, which has been dismissed by the Hon’ble Single Judge of this Court, mainly on the ground that at this stage the defence of the petitioner-appellant and sufficiency or insufficiency of the evidence in support of the allegations cannot be looked into as the formal enquiry is yet to be concluded and the order to suspend the financial and administrative power is as an interim measure pending formal enquiry. 4. Learned Counsel for the petitioner, however, contended that the appellant was not given sufficient opportunity to submit effective reply to the charges nor the copy of the enquiry report was provided, hence the impugned order withdrawing the financial and administrative power deserves to be set aside. 5. In our view, there is no substance in the submission. The order impugned in the writ petition is passed under first proviso of Section 95 (1)(g) of the Act, which empowers the State Government to withdraw financial and administrative powers and function of Pradhan or Up-Pradhan, who is prima facie found to have committed financial and other irregularities until he is exonerated of the charges in the final enquiry and till then such power shall be exercised by a Committee consisting of three members of Gram Panchayat. For ready reference Section 95 (1)(g) of the Act is extracted hereinafter : “Section 95 (1) - The State Government may— (a) ............................... (b) ............................... (c) ............................... (d) ............................... (e) ............................... (f) ............................... (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 charges 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 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 the 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 mentioned in clauses (a) to (m) of Section 5-A : 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.” 6. Thus, where a proceeding for removal of a Pradhan or Up-Pradhan or a Member of a Gram Panchayat is undertaken and the matter is being enquired under Section 95(1)(g) of the Act, the State Government, if satisfied that the Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities, can cease the financial and administrative powers and functions, till he is exonerated of the charges in the final enquiry in the manner prescribed. 7. 7. The power vested in the State Government under Section 95 (1)(g) of the Act has been delegated to the District Magistrates vide Notification No. 1648/33-1-1997-123/97, Lucknow dated 30th April, 1997 issued by the State Government in exercise of powers under Section 96-A of the Act which enables the State Government to delegate all or any of the power under the Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit and proper. 8. The State Government has framed Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the Rules) under Section 110 read with Clause (g) of sub-section (1) of Section 95 of the Act. Rule 3 provides about procedure relating to complaints against Pradhan or Up-Pradhan. Rule 4 provides about preliminary enquiry. It reads as under : “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 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.” 9. Thus, where a complaint is made against a Pradhan or Up-Pradhan under Rule 3 of the Rules a preliminary enquiry is made to find out the truth as to whether the alleged complaint is vexatious, frivolous or mala fide etc. Where in the preliminary enquiry some substance in the allegation and prima facie involvement of Pradhan or Up-Pradhan in the alleged financial and other irregularities is found from the report submitted in the preliminary enquiry, the State Government shall direct for formal enquiry under Rule 5 of the Rules which provides as under : “5. Where in the preliminary enquiry some substance in the allegation and prima facie involvement of Pradhan or Up-Pradhan in the alleged financial and other irregularities is found from the report submitted in the preliminary enquiry, the State Government shall direct for formal enquiry under Rule 5 of the Rules which provides as under : “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 to 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.” 10. Therefore, from a plain reading of 1st proviso of Section 95 (1)(g) read with Rule 4, it is evident that in the preliminary enquiry Pradhan or Up-Pradhan facing charges in the alleged complaint is not required to be noticed nor any opportunity is to be provided for the reason that it is merely a fact finding enquiry to ascertain the correctness of the allegations and to find out the bona fide of the complaint. Obviously, if in the preliminary enquiry allegations are found baseless, the proceedings would be dropped. However, the involvement of Pradhan or Up-Pradhan, if prima facie is found then only a regular enquiry is to be initiated under Rule 5 of the Rules whereunder the Enquiry Officer shall deliver a copy of the Articles of charge, the statement of the imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing to submit his written statement of his defence within the specified time and to state whether he desires to be heard in person and to appear before him on the specified date and time. The detailed procedure has been prescribed for holding such enquiry in Rule 6 of the Rules. 11. The detailed procedure has been prescribed for holding such enquiry in Rule 6 of the Rules. 11. In the case in hand, the impugned order has been passed by the District Magistrate under the proviso to Section 95 (1)(g) of the Act after receipt of the report in the preliminary enquiry made under Rule 4. It is apparent from the perusal of the order of the District Magistrate dated 30.3.2008 impugned in the writ petition (Annexure-8 to the writ petition) that upon receipt of the complaint against the petitioner-appellant, the District Social Welfare Officer, Kushi Nagar was nominated to hold preliminary enquiry vide order dated 3rd October, 2007. The District Social Welfare Officer, Kushi Nagar submitted report on 22nd December, 2007. In the report various irregularities alleged against the petitioner-appellant were prima facie found to be correct, hence notice was served on her on 14.1.2008 and 14.2.2008 under Section 95(1)(g) of the Act calling upon to show cause pursuant to which show cause was filed on 26.2.2008. The District Magistrate since did not find any substance in the cause shown and having satisfied with the report in the preliminary enquiry wherefrom the appellant is prima facie found to have committed financial and other irregularities, passed the impugned order whereunder she has been prevented to exercise financial and administrative powers and functions till she is exonerated of the charges in the regular enquiry and also constituted Committee consisting of three Members of Gram Panchayat to exercise and perform the financial and administrative powers of the Panchayat. 12. The contention that copy of the enquiry report was not provided and, therefore, the impugned order is bad, can also not be accepted since it has not been demonstrated before us or in the writ petition as to what prejudice has been caused on account of non-supply of the report. Further, admittedly after receipt of the show cause notice, the petitioner had filed show cause and nothing has been brought before us that she asked for copy of the report before furnishing show cause, hence it does not lie in the mouth of the appellant at this stage to contend that in the absence of the copy of report provided to the appellant the order passed under the proviso to Section 95 (1)(g) of the Act is vitiated. 13. 13. That apart, having regard to the provisions of U.P. Panchayat Raj Act and the Rules framed thereunder referred to above, we are of the view that the order withdrawing financial and administrative power and function of the Pradhan or Up Pradhan under the proviso to Section 95 (1)(g) of the Act is in the nature of interim order pending enquiry to prevent misuse of financial and administrative power and function by the Pradhan facing charges of financial and administrative irregularities and thus, at this stage the Act or the Rule does not contemplate to provide any opportunity of hearing or show cause or participation of Pradhan or Up Pradhan facing charges in the preliminary enquiry. The Hon’ble Single Judge of this Court in the case of Smt. Radhili Devi v. District Magistrate, Padrauna and others, 1997 (1) AWC 251, took the view that no opportunity of hearing is necessary before resorting to such interim measure as it is analogous to a suspension order passed against a Government servant and only at the stage of regular enquiry before passing final order of removal, opportunity of hearing is to be extended. Similar view was expressed by a Division Bench of this Court in the case of Moti Lal v. District Magistrate, Lalitpur and others, 2003 (1) UPLBEC 736 , wherein their Lordships having taken note of the provisions contained in Rules 3 and 4 and proviso to Section 95 (1)(g) of the Act, held that while holding preliminary enquiry the Enquiry Officer is not obliged to give opportunity to the appellant nor the rule requires holding of preliminary enquiry in the presence of the appellant. We, with respect endorse the above view. Therefore, we do not find any substance in the contention that the impugned order has been passed in violation of the principles of natural justice nor we find any violation of prescription of law calling for interference in the impugned order. 14. Therefore, there is no fault in the judgment of the Hon’ble Single Judge assailed in this appeal. 15. No other point is urged before us. 16. However, looking to the facts of the case, we are of the view that the formal enquiry initiated under Rule 5 of the Rules requires early disposal. 14. Therefore, there is no fault in the judgment of the Hon’ble Single Judge assailed in this appeal. 15. No other point is urged before us. 16. However, looking to the facts of the case, we are of the view that the formal enquiry initiated under Rule 5 of the Rules requires early disposal. We, therefore, direct that the formal enquiry initiated against the petitioner shall be concluded expeditiously, preferably within a period of three months from the date of production of a certified copy of this order. We further provide that the enquiry officer or the District Magistrate while taking final decision shall not be influenced or prejudiced in any manner by the observations made by this Court in the writ petition and in this appeal as it was only for the purpose of deciding the validity of the order passed under proviso to Section 95 (1)(g) of the Act. 17. With the above observations the special appeal stands dismissed but without costs. ————