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2009 DIGILAW 2388 (ALL)

ANITA DEVI v. STATE OF U. P.

2009-06-09

RAN VIJAI SINGH, SUNIL AMBWANI

body2009
JUDGMENT By the Court.—Heard Shri R.N. Singh, Senior Advocate assisted by Shri Nipun Singh for the petitioner. Shri Shri Satish Chaturvedi, AAG assisted by Shri Neeraj Upadhyay, Addl. Chief Standing Counsel appears for the respondents. 2. The affidavits have been exchanged. With the consent of parties, we heard the matter. 3. This writ petition is directed against the order dated 17.7.2009 passed by the Principal Secretary, Panchayati Raj, Anubhag-2 appointing the District Magistrate, Muzaffar Nagar as enquiry officer under Rule 5 of the U.P. Kshetra Panchayat and Zila Panchayat (Removal of Pramukhs, Up-Pramukhs, Chairman and Vice Chairman) Enquiry Rules, 1997. The State Government has by the same order in exercise of its powers under the proviso to Section 16 of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam directed that until Smt. Anita Devi, Pramukh, Kshetra Panchayat, Shahpur, Muzaffarnagar-the petitioner is exonerated in the final enquiry, she will not exercise the financial and administrative powers attached to the post. 4. Briefly stated the facts giving rise to this writ petition are that the petitioner was elected as Pramukh Kshetra Panchayat, Shahpur, Muzaffarnagar on 27.2.2006, with 43 out of 81 votes in her favour. She is BAMS doctor and belongs to Rashtriya Lokdal Party and has supported the members of the Rashtriya Lokdal in the Lok Sabha and Vidhan Sabha elections. She was a member of Zila Panchayat, Muzaffar Nagar prior to her elections as Pramukh. It is stated by her that after Shri Yograj Singh was elected as Member of Legislative Assembly from Khatauli Constituency as a candidate of Bahujan Samaj Party and became the Minister of Krishi Shiksha & Anusandhan Vibhag, he started harassing the petitioner. In order to remove her, various complaints were arranged by him to be sent to the District Magistrate, Muzaffar Nagar by the members of Kshetra Panchayat. These complaints did not fulfill the mandatory conditions of filing of affidavits of all the persons from whom the complainants claims to have received information and were not verified before a notary. The complaints also did not enclose all the documents in their possession. Rule 3 of the U.P. Kshetra Panchayat and Zila Panchayat (Removal of Pramukhs, Up Pramukhs, Adhyaksh and Upadhyaksh) Enquiry Rules, 1997 ( in short Enquiry Rules, 1997) provides that the complaints shall be verified in the manner laid down in the CPC, 1908 with three copies to be submitted by the complainant. Rule 3 of the U.P. Kshetra Panchayat and Zila Panchayat (Removal of Pramukhs, Up Pramukhs, Adhyaksh and Upadhyaksh) Enquiry Rules, 1997 ( in short Enquiry Rules, 1997) provides that the complaints shall be verified in the manner laid down in the CPC, 1908 with three copies to be submitted by the complainant. A show cause notice was issued to the petitioner by the Addl. District Magistrate (Administration), Muzaffar Nagar to give reply to the allegations made against her by the complainants. She gave her reply on 17.5.2008. A detailed enquiry report was submitted by the Addl. District Magistrate (Admn.) to the District Magistrate on 25.7.2008 enclosing all the material collected by him. 5. Shri R.N. Singh submits that the District Magistrate or the Addl. District Magistrate did not have power to cause an enquiry in as much as Rule 4 of the Rules of 1997 provides that the complaints have to be addressed to the State Government and that preliminary enquiry can be directed only under the orders of the State Government. Sub Rule-2 provides the report to be submitted to the State Government within a fortnight. The petitioner, however, submitted a reply on 23.6.2008. The Addl. District Magistrate (Admn.), Muzaffar Nagar conducted the enquiry and submitted a report to the District Magistrate on 25.7.2008. In the meantime, some members of the Kshetra Panchayat initiated the proceedings for moving a no confidence motion against the petitioner on which the Addl. District Magistrate (Admn.), Muzaffar Nagar fixed 16.6.2008 for the meeting. The motion could not be carried out as the complainant failed to muster the requisite prescribed majority in support of the motion. 6. It is stated that after failing in their attempt to remove the petitioner by no confidence motion the same persons sent complaints addressed to the State Government to remove the petitioner. Before making the complaints the enquiry report dated 25.7.2008 was made the basis to suspend the service of Junior Engineer Shri Suresh Verma, Rural Engineering Services, U.P. The State Government entertained the complaints; against the petitioner and directed the District Magistrate to make a preliminary enquiry into the allegations. The District Magistrate instead of holding a fresh preliminary enquiry relied upon the same enquiry report of the Addl. District Magistrate (Admn.), Muzaffarnagar dated 25.7.2008 and forwarded the same to the State Government. The District Magistrate instead of holding a fresh preliminary enquiry relied upon the same enquiry report of the Addl. District Magistrate (Admn.), Muzaffarnagar dated 25.7.2008 and forwarded the same to the State Government. By the impugned order dated 17th July, 2009, giving rise to this writ petition the State Government has prima facie found the allegations on the basis of the enquiry report dated 12.6.2008 to be established and has while issuing the show cause notice to the petitioner stopped her from exercising the administrative and financial powers. 7. Shri R.N. Singh, Sr. Advocate submits that the procedure provided under the Enquiry Rules, 1997 is mandatory. The District Magistrate was not authorised to receive the complaints directly and to cause an enquiry through the Addl. District Magistrate. The District Magistrate did not act upon enquiry report. But when the State Government directed him to cause an enquiry, he has instead of holding a fresh preliminary enquiry relied upon the same enquiry report. The District Magistrate has not made any fresh enquiry into the allegations and thus the material relied upon by the State Government was not valid. He would submit that the respondents have put the cart before the horse. The preliminary enquiry was to be initiated after the State Government had taken notice to the allegations. Even if the allegations and material is the same, the District Magistrate was obliged under the Enquiry Rules of 1997 to hold a fresh enquiry. He would further submit that the allegations are not such, which may result into the removal of the petitioner and that in any case, prima facie, there is no financial or other irregularity alleged to be established by the material available on record to take the drastic action to suspend the financial and administrative powers of the petitioner as an elected Block Pramukh. 8. Shri R.N. Singh has relied upon Ramchandra Keshav Adke (dead) by LRs. v. Govind Joti Chavare, AIR 1975 SC 915 to submit that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and all other methods of performance are necessarily forbidden. The principle has to be recognised not in vacuum but with the object and purpose for which such powers are vested in the statutory authorities. 9. The principle has to be recognised not in vacuum but with the object and purpose for which such powers are vested in the statutory authorities. 9. It is submitted that three allegations were made against the petitioner. Firstly it was alleged that the petitioner did not sign the cheques for the payment of the material in the construction works affecting the development of the block. Secondly it was alleged that the petitioner is creating such circumstances, which have adversely affected the various schemes in as much as she has signed one cheque on 21.9.2007 and 4 cheques on 15.10.2007 after a delay of about 3 to 4 months. Thirdly it was stated that in the employment schemes, the labourers were not paid their dues in time. She did not have any effective control over the officers and employees of the block. 10. Shri R.N. Singh submits that the enquiry report did not prove these allegations. The State Government found the receipt of the cheque issued to M/s Neelkant Brick Field Supply, Garhi, Bahadurpur by the petitioner’s husband to be a serious financial irregularity and has made the incident as the foundation of the order. The petitioner’s husband had supplied the bricks to the agency. The collection of cheques by the petitioner’s husband for the supplies could not be a ground to form any opinion against the petitioner. There are no allegations of misappropriation or embezzlement of funds. 11. Shri Satish Chaturvedi, Addl. Advocate General submits that initially the complaints made to the District Magistrate were subjected to a preliminary enquiry through the Addl. District Magistrate (Admn.). The District Magistrate, however, did not take any action on the report. The complaints were, thereafter, made to the State Government making serious allegations against the petitioner. The State Government forwarded the matter to the District Magistrate to cause an enquiry. The District Magistrate found that the same allegations were subject matter of earlier enquiry and forwarded the report of the Addl. District Magistrate dated 2.9.2008. The object of forwarding the complaint is to make a preliminary enquiry. If the same allegations were subject matter of an earlier enquiry the District Magistrate did not commit any illegality in forwarding the report available in his office to the State government. The object of the preliminary enqiry is to verify the truth of the assertions and collect the material to support the findings. If the same allegations were subject matter of an earlier enquiry the District Magistrate did not commit any illegality in forwarding the report available in his office to the State government. The object of the preliminary enqiry is to verify the truth of the assertions and collect the material to support the findings. If such material is already available with the District Magistrate, he could have relied upon it to report to the State Government. There were serious allegations against the petitioner. Her husband was supplying the bricks for the development works of the Kshetra Panchayat of which the petitioner is the Pramukh. 12. Shri Chaturvedi submits that the Addl. District Magistrate had caused a detailed enquiry into the allegations. On charge No. 1 it was found that the petitioner was delaying the signing of the cheques for oblique purposes. The cheques prepared in March, 2007; May, 2007 and June, 2007 was not signed by her. The delay affected the development work. The villagers engaged in the employment schemes was not paid their daily wages for almost three months, causing irreparable hardship and serious injustice to them. On charge No. 2 the Addl. District Magistrate found that the defence of the petitioner that she delayed the signing of the cheque for verification of the work was not valid. She had not given any directions to her Subordinate Officers and employees for verification of alleged irregularities. On charge No. 3 once again it was found that payment to the suppliers and the workmen for cleaning the irrigation canals, drains and beautification of the block were not made for almost six months. Infact she had refused to sign the cheque for oblique purposes and had delayed the payment of about 12 lacs for which government orders provided for payment within two weeks. The details of the work done and the delay in payments is given in detail in the report. The Addl. District Magistrate further found in his enquiry that M/s. Neelkant Brick Field Supply was a firm set up as a grant by the petitioner’s husband for supplying bricks. The petitioner denied that her husband had supplied the bricks but that the material on record proved that cheques were issued in the name of M/s. Neelkant Brick Field Supply. M/s. Neelkant Brick Field Supply is a firm of the petitioner husband. The payments were made to the extent of Rs. 10,40,000/-. The petitioner denied that her husband had supplied the bricks but that the material on record proved that cheques were issued in the name of M/s. Neelkant Brick Field Supply. M/s. Neelkant Brick Field Supply is a firm of the petitioner husband. The payments were made to the extent of Rs. 10,40,000/-. The allegation Nos. 4 and 5 for repair of four ‘Kachcha Road’ by ‘kharanjas’ for which no estimates were prepared and supply of pilli bricks by the petitioner husband and for withholding other payments for preparing bills for payment of these bricks supply by petitioner husband was also found to be prima facie established. 13. Learned Addl. Advocate General submits that all the allegations made against the petitioner, that her husband was exercising undue pressure for preparing false estimates and for making payments of the bricks supplied by him, for which the cheques were delayed and were ultimately signed by the petitioner were established. The larger enquiry by the District Magistrate will further confirm these facts. 14. The object and purpose of the preliminary enquiry is to collect material to verify the allegations made against the elected representative of Zila Panchayat and Kshetra Panchayat. It is not necessary to give an opportunity of hearing to the person as the enquiry is only a fact finding enquiry. The question whether at this stage any opportunity to be given, if financial and administrative powers are to be ceased, has been referred by this Court to the Larger Bench. In this case, however, the Addl. Distt. Magistrate in his preliminary enquiry had given a show cause notice to the petitioner and has considered her reply. He made a thorough enquiry and found sufficient material against her to find the allegations to be prima facie established. These findings will be the subject matter of the regular enquiry. 15. The allegations made in the affidavit of the complainant to the State Government were the same, which were earlier made to the District Magistrate. The enquiry report of the Addl. Distt. Magistrate after giving an opportunity to the petitioner was available on record. The satisfaction of the District Magistrate that there was sufficient material collected in the report, after giving the opportunity to the petitioner did not require any fresh enquiry to be made in the matter. The enquiry report of the Addl. Distt. Magistrate after giving an opportunity to the petitioner was available on record. The satisfaction of the District Magistrate that there was sufficient material collected in the report, after giving the opportunity to the petitioner did not require any fresh enquiry to be made in the matter. The petitioner did not suffer any prejudice at all and was rather given a show cause notice and was associated with the preliminary enquiry held by the Addl. District Magistrate. The rules mandate that preliminary enquiry should be held and that there should be sufficient material to initiate final enquiry. 16. In Dayandeo Ganpat Jadhav v. Madhav Vitthal Bhasker, (2005) 8 SCC 340 the Supreme Court after noticing the judgment in Rama Chandra Keshav Adke (supra) observed in para 31 of the report that if the requisite procedure is followed by informing the person of his rights and that he was unwilling to purchase the land and surrender his tenancy, the procedure was followed. In substance the Supreme Court held that where the person was fully aware of his rights and was given repeated opportunities to purchase the land and surrender his tenancy the rules were substantially followed. The administrative law has developed the doctrine of ‘prejudice’ to override the principle of strict and blind adherence to the procedure in the rules. If the substantial compliance of the rules is established and no prejudice is caused to the person, the administrative action cannot be declared to be invalid merely on the ground that the rules were not strictly followed. 17. In Mukesh Rajput v. State of U.P. and others, 2003 (4) AWC 3289 this Court has held that where the petitioner was provided all the documents in the preliminary enquiry and had full knowledge of the enquiry proceedings, the decision taken by the State Government on the material collected on the allegations, which are serious in nature would not require interference of the Court. 18. We have gone through the enquiry report dated 25.7.2008 and the reasons given by the State Government for initiating the regular enqiry and to suspend the financial and administrative powers of the petitioner. We do not find that the State Government has committed any error on facts or in law in exercise of its discretion. The petitioner was not making payments for development works even after the supply of material. We do not find that the State Government has committed any error on facts or in law in exercise of its discretion. The petitioner was not making payments for development works even after the supply of material. The labourers employed in the schemes were not paid for almost three months. It was prima facie found that the petitioner was exercising the pressure for making estimates of fresh projects and for making payments of the bricks, the quality of which was doubtful, supplied by her husband’s brick field and that her husband had received the payments by the cheques signed by her on behalf of the firm. The impugned order does not require any interference of the Court. 19. The writ petition is dismissed. ————