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Allahabad High Court · body

2008 DIGILAW 376 (ALL)

MALTI DEVI v. STATE OF U P

2008-02-19

SUNIL AMBWANI

body2008
SUNIL AMBWANI, J. Heard Shri B. D. Mandhyan, Senior Advocate assisted by Shri M. N. Singh for the petitioner and learned Standing Counsel for the State respondents. 2. By means of this writ petition, the petitioner has challenged an order dated 13. 11. 2007, passed by the District Magistrate, Sant Ravidas Nagar, by which he has ceased petitioners administrative and financial powers as the elected Pradhan of Gram Panchayat Baraila, Block Bhadohi, District Sant Ravidas Nagar, under section 95 (1) (g) of U. P. Panchayat Raj Act, 1947, and has directed the Block Development Officer, Bhadohi to appoint a three-member committee, to exercise such powers until the formal enquiry under the U. P. Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry Rules, 1997 (in short, Rules of 1997) is concluded. 3. Before making the order, the District Magistrate appointed the District Basic Education Officer, Sant Ravidas Nagar, to enquire into the complaint against the petitioner, and to submit his preliminary enquiry report. The District Basic Education Officer, in his report dated 30. 8. 2007, reported that the Pradhan is not serving with mid day meal to the school children under the mid-Day Meal Scheme in primary school Baraila w. e. f. 15. 12. 2006. On an inspection the children informed the enquiry officer on 10. 8. 2007, that the mid-day meal was not cooked and served to them. The Pradhan has received the foodgrains for cooking the meal regularly, from the fair price shop keeper. 4. Shri B. D. Mandhyan contends that under Rule 4 the enquiry officer could be either the District Panchayat Raj Officer or any other district level officer. The preliminary enquiry could only be conducted by a district level officer. The District Basic Education Officer is a district level officer. He however did not conduct the enquiry himself. Instead he directed the Assistant Basic Education Officer, to visit the primary school Baraila, Vikas Khand Bhadohi on 10. 8. 2007, and to make a report. He submits that the allegations against the petitioner were not substantiated, as mid day meal was cooked and served every day when the school was opened in the months of July, 2007 to November, 2007 and has annexed the register certified by the headmaster of the school to prove the service of mid day meal to the children. 5. He submits that the allegations against the petitioner were not substantiated, as mid day meal was cooked and served every day when the school was opened in the months of July, 2007 to November, 2007 and has annexed the register certified by the headmaster of the school to prove the service of mid day meal to the children. 5. It is submitted that under the Rules of 1997, the financial and administrative powers may be ceased, only after a preliminary enquiry is made by the District Magistrate through an enquiry officer. The enquiry officer is defined in the rules as the district Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate. The District Basic Education Officer is a district level officer. He could not have delegated the powers further to the Assistant Basic Education Officer. He has relied upon the judgements in Chunmun v. District Magistrate, Sonbhadra and another 1998 (89) RD 771 (HC) Smt. Sandhya Gupta v. District Magistrate, Auraiya and others, 1999 (90) RD 246 (HC) Smt. Sarojana Devi v. State of UP and others 2001 (92) RD 720 (HC) Chandrajit Raj Bhar v. District Magistrate, Pilibhit and others, 2002 (93) RD 139 Smt. Shanti v. District Magistrate, Sultanpur and others, 2000 (2) A. W. C. 1395 (LB) Moti Lal v. District Magistrate, Lalitpur and another, 2003 (94) RD 327 (HC) Krishna Devi (Smt.) v. District Magistrate, Ghaziabad and others, 2003 (95) RD 569 (HC) Satish Chandra Tripathi v. State of U. P. and others, 2004 (96) RD 47 and Rajeshivari Kushwaha (Smt.) v. District Magistrate Kanpur Nagar and others 2004 (97) RD 664 (HC) in support of his submissions regarding the competence of the officer to conduct the enquiry. 6. In Chunmun (supra), a Junior Engineer was entrusted and had completed the preliminary enquiry. In Smt. Sandhya Gupta (supra) the Court could not find as to who conducted the preliminary enquiry. The record proved that Naib Tehsildar and Junior Engineer had submitted the report to the Sub-Divisional Magistrate, who forwarded the same to the District Magistrate. In Smt. Sarojana Devi (supra) the preliminary enquiry report was submitted by the Assistant District Panchayat Raj Officer. In Chandrajit Raj Bhar (supra) the preliminary enquiry was conducted by the Assistant Engineer, PWD Pilibhit. The record proved that Naib Tehsildar and Junior Engineer had submitted the report to the Sub-Divisional Magistrate, who forwarded the same to the District Magistrate. In Smt. Sarojana Devi (supra) the preliminary enquiry report was submitted by the Assistant District Panchayat Raj Officer. In Chandrajit Raj Bhar (supra) the preliminary enquiry was conducted by the Assistant Engineer, PWD Pilibhit. In Rajeshwari Kushwaha (Smt.) (supra) the preliminary enquiry was conducted by the Deputy Director (Panchayat) and in Smt. Shanti (supra) the preliminary enquiry was conducted by Alp Sankhyak Kalyan Adhikari. In all these cases it was held that the rules provde for an enquiry by the enquiry officer and since the enquiry officer is defined in the rules, no other officer can make the preliminary enquiry. 7. Rule 2 (c), Rule 4 and Rule 5 of the Rules of 1997 are quoted as 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- (I) 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 subsection (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. " 8. A village pradhan holds an elected office: The statute has taken care to provide for sufficient safeguards before he may be removed from the office. The complaint, unless it is made by a public servant, should be supported by the affidavit and must contain sufficient allegations and material to initiate a preliminary enquiry. " 8. A village pradhan holds an elected office: The statute has taken care to provide for sufficient safeguards before he may be removed from the office. The complaint, unless it is made by a public servant, should be supported by the affidavit and must contain sufficient allegations and material to initiate a preliminary enquiry. The Stale Government may, on the receipt of such complaint or otherwise, order the enquiry officer under Rule 4 to conduct a preliminary enquiry with a view to find out, if there is a prima facie case for a formal enquiry in the matter. The enquiry officer under Rule 2 (c) means the district Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate. After submission of the preliminary enquiry report, the District Magistrate, under the delegated powers of the State Government may, considering the gravity of allegations and the prima facie proof, cease the administrative and financial powers of the Pradhan under the proviso to section 95 (1) (g) of the Act of 1997, and initiate a formal enquiry under Rule 5 or may order a formal enquiry. In case he chooses to cease the financial and administrative powers, he is required to give a show cause notice to serve the principle of natural justice, seeking the explanation from the concerned Pradhan on the charges found prima facie established in the preliminary enquiry report. 9. The word district level officer has not been further defined in the Act or the Rules. The submission, that it must be read in the context namely that the officer should be equivalent in the rank to District Panchat Raj Officer does not find support from the object and purpose of the Act and the Rules. The basis of an enquiry against the Pradhan is the complaint supported by the affidavit of the complainant or otherwise, when such information is received. The preliminary enquiry is made to find out prima facie truth in the complaint. If the allegations are found to be prima facie true and are serious in nature, the District Magistrate may cease the administrative and financial powers of the Pradhan. If the allegations are not so serious the matter may be dropped, or further enquiry may be directed not be directed. If the allegations are found to be prima facie true and are serious in nature, the District Magistrate may cease the administrative and financial powers of the Pradhan. If the allegations are not so serious the matter may be dropped, or further enquiry may be directed not be directed. The District Magistrate may order a three-member committee to be constituted under Rule 5 to further enquire into the charges and in such case a detailed procedure is to be followed under Rules 6, 7 and 8 is to be followed. 10. The object and purpose of preliminary enquiry is to verify the truth of the allegations against the Pradhan and to collect, as far as possible, any material, which may form the basis of a formal enquiry. The submission that only the district head of the department is a district level officer has no co-relation with the object sought to be achieved by the preliminary enquiry. The District Panchayat Raj Officer is head of the department of the local bodies. He is as such relevant officer to make an enquiry. The rules however do not insist that any other officer to be nominated by the District Magistrate must also be head of the department of that district. 11. The object and purpose of the Act, and the nature of the office held by the Pradhan, requires that the District Magistrate has to be prima facie satisfied with the truth of the allegations in the complaint and the material on the basis of which he may proceed to take further action in the matter. Such material may be collected by any officer nominated by him. The word district level officer as such should not be confined only to the head of the department of the district stationed at the district headquarters. The term at best may indicate a responsible officer. It is the District Magistrate, who has to ultimate satisfy with the material collected by the officer. The Courts need not insist that such officer should be equivalent of the rank of District Panchayat Raj Officer or should at least be heading any department in the district. Such a blind adherence to law would be too rigid and superfluous interpretation of Rule 4 of the Rules of 1997. The Courts need not insist that such officer should be equivalent of the rank of District Panchayat Raj Officer or should at least be heading any department in the district. Such a blind adherence to law would be too rigid and superfluous interpretation of Rule 4 of the Rules of 1997. It is the material collected satisfies the District Magistrate, and is more relevant than the status held by the enquiry officer, looses its significance. 12. In administrative enquiries, the material collected by the competent authority, and not the person who collected the material, is relevant for the purposes of taking any action. Where the material collected and reported to the competent authority is relevant to the allegations he may rely upon it irrespective of the source from which it was collected. Further, the competence of the officer conducting enquiry should be relevant to the allegations made against him. Where the technical evaluations of any constructions are in issue, an engineer would be more competent than the officer of any other department in example education or health, to conduct an enquiry. Similarly, where the allegations relate to any scheme relating to health or education, the deputation of an officer of the health department or education department, as the case may be, would be more relevant. Once sufficient and relevant material is collected and the delinquent pradhan is given a show cause notice along with enquiry report, the status of officer collecting the material loses significance. The Pradhan may allege malafide, bias or prejudice, if there is any, against the enquiry officer. His insistence, that irrespective of the sufficiency or relevancy of the material the enquiry is vitiated, if it is conducted by an officer, who is lesser in status than District Panchayat Raj Officer, is incorrect and would not be taken as a ground to challenge the order. In all the judgements cited as above, the Courts have not interfered only on the ground that the enquiry officer was not of the status of a district level officer. The Courts have further relied upon the sufficiency and relevancy of the material and have insisted that the concerned Pradhan must be given an opportunity to meet the allegations and material collected against him before any order is made against him. 13. In the present case the preliminary enquiry was entrusted to the District Basic Education Officer. The Courts have further relied upon the sufficiency and relevancy of the material and have insisted that the concerned Pradhan must be given an opportunity to meet the allegations and material collected against him before any order is made against him. 13. In the present case the preliminary enquiry was entrusted to the District Basic Education Officer. He asked the Assistant Basic Education Officer to make a spot inspection. The Assistant Basic Education Officer visited the school and talked to the children and the teachers. He was told by the headmaster that the mid day meal is being served. The children denied the fact. The report of the Assistant Basic Education Officer was forwarded by the District Basic Education Officer to the District Magistrate and on the basis of the material as well as the reply given by the village Pradhan, it was found that the children were not served with the "mid day meal since August, 2007. This material was relevant and was sufficient to exercise powers under section 95 (1) (g) of the Act. 14. Learned Counsel for the petitioner submits that the meal was cooked in the school and that the headmaster certified the same. The register, annexed as Annexure-8 to the writ petition, would show that in the remarks column it was clearly stated by the headmaster of the school that the food was cooked at the house of the Pradhan and was sent to the school. The contradiction clearly establishes that the register was not correctly maintained and that prima facie the allegations were established against the Pradhan and were serious enough to cease her administrative and financial powers till the conclusion of the formal enquiry. 15. The writ petition is dismissed. Petition Dismissed. .