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2009 DIGILAW 359 (ALL)

ASHA DEVI v. STATE OF U. P.

2009-02-02

PANKAJ MITHAL

body2009
JUDGMENT Hon’ble Pankaj Mithal, J.—Under challenge is the order of the District Magistrate, Kaushambi dated 24.7.2008 passed under Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 suspending the financial and administrative powers of the petitioner. 2. The petitioner is an elected gram pradhan of village Naudhiya Amad Karari, block Sirathu, district Kaushambi. She was elected in the year 2005. It is said that some villagers including the complainant Om Prakash made complaints against her on which a preliminary enquiry was ordered. The preliminary enquiry report was submitted on 25.4.2008. On its basis a show cause notice was issued to the petitioner by the District Magistrate on 17.5.2008 and after considering the petitioner’s reply the impugned order was passed ceasing her financial and administrative powers pending a formal enquiry and for constitution of a three member committee. 3. On the presentation of the petition, the learned Standing Counsel was directed by the Court to file counter affidavit within three weeks vide order dated 14.8.2008. Further time of three weeks was allowed vide order dated 1.10.2008 and 23.10.2008 was fixed. When even then no counter affidavit was filed the Court as a last opportunity granted three weeks more time for the purpose. Inspite of this stop order no counter affidavit has been filed on behalf of any of the respondents who are represented by the learned Standing Counsel. However, a counter affidavit along with an application for impleadment has been moved by Om Prakash one of the complainant. 4. I have heard Sri B.N. Singh, learned counsel for the petitioner, learned Standing Counsel for the respondents and Sri H.N. Singh, learned counsel for the complainant who has applied for impleadment. 5. Counsel for the parties agree for final disposal of the petition and do not insist for any formal order on the impleadment application as the counsel for all the parties have been permitted to assist the Court and have been heard on merits. 6. I have perused the record and have considered the submissions of the counsel for the parties. 7. The first submission of the learned counsel for the petitioner is that the impugned order has been passed without supplying the copy of the preliminary enquiry report and other documents along with the show cause notice and, therefore, it cannot be sustained under law. 8. The submission though attractive is devoid of any substance. 7. The first submission of the learned counsel for the petitioner is that the impugned order has been passed without supplying the copy of the preliminary enquiry report and other documents along with the show cause notice and, therefore, it cannot be sustained under law. 8. The submission though attractive is devoid of any substance. A Division Bench of this Court in the case of Moti Lal v. District Magistrate, Lalitpur and another, (2003)1 UPLBEC 736 while considering the very same 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 ruled that while holding a preliminary enquiry under Rule 4 of the 1997 Rules the enquiry officer is not obliged to give any opportunity to the Gram Pradhan concerned and the rules do not require holding of preliminary enquiry in his presence. 9. The preliminary enquiry is solely for the purpose of finding out if there is a prima facie case for a formal enquiry against the Gram Pradhan. It is a fact finding enquiry and the order suspending financial and administrative powers of the Gram Pradhan on its basis is in the nature of an interim order, pending a formal enquiry so as to prevent further misuse of financial and administrative powers by the Gram Pradhan who is to face the formal enquiry. Neither the Act nor the Rules contemplate for associating the Gram Pradhan concerned with such a preliminary enquiry or to provide any opportunity of hearing before passing an order of the interim nature ceasing financial and administrative powers. The order ceasing financial and administrative powers is only a stop gap arrangement which is subject to final outcome of the formal enquiry faced by the Gram Pradhan and as such, causes no prejudice affecting rights of the person concerned as Gram Pradhan. Such a person facing enquiry continues to be a Gram Pradhan though divested of his financial and administrative powers for an interim period. Thus, such an arrangement, suspending financial and administrative powers of the Gram Pradhan, pending a formal enquiry is analogous to an order of suspension passed against an employee pending a departmental enquiry. Thus, also the principles of natural justice are not required to be strictly followed before passing an order suspending financial and administrative powers of the Gram Pradhan. Thus, such an arrangement, suspending financial and administrative powers of the Gram Pradhan, pending a formal enquiry is analogous to an order of suspension passed against an employee pending a departmental enquiry. Thus, also the principles of natural justice are not required to be strictly followed before passing an order suspending financial and administrative powers of the Gram Pradhan. This is precisely what has been laid down by the Division Bench of this Court in the case of Smt. Sangeeta Devi v. State of U.P. and others, 2008(6) ADJ 517 following the Supreme Court decision reported in 1997 (1) AWC 252, Smt. Radhili Devi v. District Magistrate, Padrauna and others. 10. Admittedly, the preliminary enquiry report on record has prima facie found that the petitioner is responsible for financial irregularities. Therefore, in view of the proviso to Section 95(1)(g) of the Act the petitioner ceases to exercise and perform financial and administrative powers and functions till she is cleared in the regular or formal enquiry. The Act and the Rules do not even envisages issuing of a show cause notice or passing of an order ceasing financial and administrative powers and functions of the Gram Pradhan on the basis of such a preliminary enquiry report. Therefore, non-supply of the report or any other document referred therein does not vitiates the order impugned. Accordingly, the first submission fails, being without force. 11. Sri B.N. Singh, learned counsel for the petitioner secondly submitted that the order impugned is uninformed by reasons and it does not take into account the reply of the petitioner in pursuance to the show cause notice. This submissions is wholly misconceived for the reason that a perusal of the impugned order clearly reveals that the petitioner was given a show cause notice on 17.5.2008. It was replied by the petitioner on 9.6.2008. It was examined by the District Magistrate and found to be unsatisfactory. The objection raised therein has been dealt with and has not been accepted by the District Magistrate for which reasons have been assigned. Therefore, the order cannot be said to have been passed in a mechanical way. The sufficiency/insufficiency or the correctness of the reasons cannot be the scope of the writ jurisdiction and has rightly not been assailed on this ground. 12. Therefore, the order cannot be said to have been passed in a mechanical way. The sufficiency/insufficiency or the correctness of the reasons cannot be the scope of the writ jurisdiction and has rightly not been assailed on this ground. 12. Lastly, Sri B.N. Singh has argued that on the complaints made against the petitioner no preliminary enquiry was directed to be conducted by the District Magistrate. The Commissioner of the Division who has ordered the enquiry was not competent to do so and, therefore, no action on the basis of any such preliminary enquiry could have been taken. 13. In reply to the above, learned Standing Counsel has submitted that the District Magistrate is empowered to pass an order by treating the enquiry report to be a complaint by a public servant. 14. Sri H.N. Singh has submitted that the District Magistrate has in fact passed an order directing the District Project Officer to submit report as the complaint was serious and, therefore, the report which has been submitted cannot be said to be a report on the orders of the Divisional Commissioner in the strict sense. 15. Undisputedly, the State Government or any officer empowered in this behalf is competent to take action under Section 95(1)(g) of the Act. The power vested in the State Government has been delegated to the District Magistrate by means of Notification No. 1648/33-1-1997-123/97 Lucknow dated 30th April, 1997. 16. Therefore, for taking any action against a Gram Pradhan in exercise of power under Section 95(1)(g) of the Act the District Magistrate is the only competent authority. Besides, the definition of the “enquiry officer” as contained in Rule 2(c) of the 1997 Rules as amended by the notification dated 5.10.2002 also specifically provides that the enquiry officer is to be appointed by the District Magistrate who is authorised under law to initiate proceedings and to take action under Section 95(1)(g) of the Act against the Gram Pradhans. 17. The noting of the District Magistrate which has been relied upon by Sri H.N. Singh, learned counsel for the complainant is undated and it merely directs the Project Officer to submit a note on the complaint. The said noting does not indicate that any preliminary enquiry as contemplated by Rule 4 of the 1997 Rules was ordered by the District Magistrate. The said noting does not indicate that any preliminary enquiry as contemplated by Rule 4 of the 1997 Rules was ordered by the District Magistrate. There is no specific order of the District Magistrate appointing an enquiry officer or a enquiry committee as contemplated by Rule 2(c) of the 1997 Rules. On the other hand, the preliminary enquiry report on record in unequivocal terms states that the preliminary enquiry has been conducted and the report is being submitted in pursuance to the order of the Divisional Commissioner dated 16.4.2008 which has been communicated to the enquiry officer by the Joint Development Commissioner, Allahabad. The enquiry report further reflects that the same was not only conducted under the orders of the Divisional Commissioner but was also done pursuant to the complaint of the villagers meaning thereby that it was not on the basis of any complaint of the public servant. In the enquiry report the petitioner had participated as per the report, though this fact has been denied by the petitioner. Thus, on the face of the record as it stands, it is evident that no enquiry whatsoever was conducted by the Project Officer under the orders of the District Magistrate. The preliminary enquiry, in fact, was done on the orders of the Divisional Commissioner. 18. Apart from the above, the preliminary enquiry was conducted by a committee of three persons, namely, Sri N.P. Singh, Project Director, Kaushambi, Sri D.K. Srivastava, Assistant Engineer, D.R.D.A. Kaushambi and Sri Chhatrashal Singh Parmar, Block Development Officer, Sirathu. There is no order of the District Magistrate appointing a three member preliminary enquiry committee. Thus, obviously the preliminary enquiry was not held under the orders of the District Magistrate but on the directions of the Divisional Commissioner. 19. The law is well settled that a thing which is required to be done must be done in the manner prescribed under law or not at all. Therefore, the preliminary enquiry which is required to be conducted on the orders of the District Magistrate could not have been ordered by the Divisional Commissioner. The Divisional Commissioner has no authority of law to intervene in the matter and therefore any enquiry conducted on his order is of no value for taking any action against the petitioner. The District Magistrate had not appointed any enquiry officer for the purpose as provided under Rule 2(c) of the 1997 Rules. The Divisional Commissioner has no authority of law to intervene in the matter and therefore any enquiry conducted on his order is of no value for taking any action against the petitioner. The District Magistrate had not appointed any enquiry officer for the purpose as provided under Rule 2(c) of the 1997 Rules. In the instant case, in the absence of the order of the District Magistrate appointing an enquiry officer in terms of Rule 2(c) of 1997 Rules to conduct a preliminary enquiry, no valid order could have been passed ceasing financial and administrative powers of the petitioner on the basis of an enquiry report submitted pursuant to the order of the Divisional Magistrate, Allahabad. It goes without saying that holding of a preliminary enquiry for the purposes of a prima facie case for a formal enquiry is sine qua non for ceasing the financial and administrative powers and functions of a Gram Pradhan irrespective of the fact as to whether it happened to be on the basis of a private complaint or a complaint of a public servant or otherwise. 20. In view of aforesaid, the writ petition succeeds on the third submission alone and is allowed. A writ of certiorari is issued quashing the order of the District Magistrate, Kaushambi respondent No. 2 dated 24.7.2008 (Annexure-1 to the writ petition). However, it shall be open for the District Magistrate to take action, if necessary, again and to pass appropriate orders in accordance with law on the complaint, if any, of the villagers received by him against the petitioner. The writ petition is allowed. No order as to costs. ————