Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 486 (ALL)

JAGBIRI v. STATE OF U. P.

2009-02-12

VINEET SARAN

body2009
JUDGMENT Hon’ble Vineet Saran, J.—The petitioner is an elected Pradhan. On a complaint lodged by the respondent Nos. 4 and 5 an enquiry was got conducted by the District Magistrate through the District Panchayat Raj Officer, who submitted his report on 14.3.2008. Thereafter a show cause notice was issued to the petitioner by the District Magistrate on 24.3.2008. The petitioner submitted her reply on 17.4.2008. Then by order dated 30.5.2008 passed by the District Magistrate exercising powers under Section 95(1)(g)(iii) of the U.P. Panchayat Raj Act (hereinafter referred to as the Act) the financial and administrative powers of the petitioner have been ceased and a Three-Member committee has been constituted to perform the duties of the Gram Panchayat. Aggrieved by the aforesaid order this writ petition has been filed. 2. I have heard learned counsel for the parties and perused the record. Pleadings have been exchanged and with consent of the learned counsel for the parties, this writ petition is being disposed of at the admission stage. 3. The submission of Sri Prabhakar Awasthi, learned counsel for the petitioner is that the complaint filed by the respondent Nos. 4 and 5 was not accompanied by an affidavit and hence the same was in contravention of Rule 3 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the Rules of 1997). It is further submitted that the enquiry against the petitioner was conducted ex parte without giving the petitioner an opportunity of hearing. It was lastly contended that the reply to the show cause notice given by the petitioner to the District Magistrate was not considered by the District Magistrate and no satisfaction has been recorded by the District Magistrate with regard to the charges levelled against the petitioner. 4. Learned Standing Counsel has, however, submitted that the charges against the petitioner were prima facie proved, regarding which the District Magistrate was satisfied. It was also submitted that the complaint filed by the respondents No. 4 and 5 was, though not accompanied by an affidavit but subsequently an affidavit had been filed by them and as such compliance of Rule 3 of the Rules of 1997 was made. 5. It was also submitted that the complaint filed by the respondents No. 4 and 5 was, though not accompanied by an affidavit but subsequently an affidavit had been filed by them and as such compliance of Rule 3 of the Rules of 1997 was made. 5. Rule 3 of the Rules of 1997 provides that every complaint shall be accompanied by the complainant’s own affidavit in support thereof and also the affidavits of all persons from whom he claims to have received information of facts relating to the accusation. Alongwith the counter affidavit of the State, copy of the complaint and the affidavit have been filed as Annexure-C.A.1. The complaint is undated on which an endorsement has been made by the District Magistrate to the District Panchayat Raj Officer to the effect that necessary action be taken after conducting an enquiry. The said endorsement is dated 14.1.2008. Thereafter the District Panchayat Raj Officer has made an endorsement on 16.1.2008 to the Senior Clerk to take appropriate action. The aforesaid clearly shows that the undated complaint had been filed on or before 14.1.2008. The affidavit which has been filed with counter affidavit (is the joint affidavit of Respondents No. 4 and 5) and is dated 23.1.2008. As such it cannot be said that the complaint was accompanied by an affidavit of the complainant, as is required under Rule 3 of the Rules of 1997. It is surprising that even though the complaint was not accompanied by an affidavit, on 14.1.2008 itself the District Magistrate had made an endorsement forwarding the same to the District Panchayat Raj Officer to enquire into the matter and the District Panchayat Raj Officer further made his endorsement on 16.1.2008. As such, I am satisfied that the Rules of 1997 have not been followed in this case. 6. Further, in paragraph 7 of the writ petition it has been categorically stated that the petitioner had not been supplied with the copy of the complaint nor was informed of any enquiry conducted against her and it was for the first time that she came to know of any such enquiry when the show cause notice dated 24.3.2008 was served on her. In reply, a bald denial has been made by the State-respondents without stating as to when any such notice with regard to enquiry was ever served on the petitioner. In reply, a bald denial has been made by the State-respondents without stating as to when any such notice with regard to enquiry was ever served on the petitioner. As such, the submission of the learned counsel for the petitioner that enquiry was conducted behind her back, has force. 7. As regards the last submission of the learned counsel for the petitioner that the District Magistrate had not considered the reply submitted by the petitioner to the show cause notice dated 24.3.2008, from a bare perusal of the impugned order it is clear that the reply of the petitioner was forwarded by the District Magistrate to the District Panchayat Raj Officer for examination and it was the District Panchayat Raj Officer, Ghaziabad who, after examination of the reply, was not satisfied with the reply given by the petitioner. The same has been categorically recorded by the District Magistrate in the impugned order and it has been stated by the District Magistrate that on such basis the reply submitted by the petitioner is rejected. 8. The reply of the petitioner has been filed as Annexure-C.A. 4 to the counter affidavit of the State. The same was received in the office of the District Magistrate on 17.4.2008 on which date an endorsement was made by the District Magistrate to the Chief Development Officer with the request that the same may be examined in accordance with the Rules and appropriate action be taken and information of the same be given to the District Magistrate. Thereafter on 19.4.2008, the Chief Development Officer forwarded the same to the District Panchayat Raj Officer for taking appropriate action and give information of the action taken. Interestingly the District Panchayat Raj Officer on 21.4.2008 endorsed the same to Senior clerk with the request to give his comments. From the aforesaid it is clear that it was not the District Magistrate but his subordinate officials who had examined the reply of the petitioner. The District Magistrate also does not say in the impugned order that he had examined the reply of the petitioner himself and has very fairly stated that the same was examined by the District Panchayat Raj Officer who did not find it satisfactory and hence the District Magistrate was not satisfied with the reply, and thus the same was rejected. The District Magistrate also does not say in the impugned order that he had examined the reply of the petitioner himself and has very fairly stated that the same was examined by the District Panchayat Raj Officer who did not find it satisfactory and hence the District Magistrate was not satisfied with the reply, and thus the same was rejected. Thus, it is clear that the District Magistrate has not at all considered the detailed reply given by the petitioner. 9. The ceasing of financial and administrative powers of an elected Pradhan virtually amounts to de-throning an elected person in an undemocratic manner. Though the said power does exist with the District Magistrate but that power should be sparingly exercised and with utmost care and caution and not in a routine manner. In the present case, the entire conduct of the District Magistrate right from the beginning when he initiated action on the complaint without the same being accompanied by an affidavit and then in not considering the reply of the petitioner given in response to the show cause notice, appears to be very casual and with a predetermined mind against the petitioner. It is clear from the record that in a routine manner the same was endorsed to Chief Development Officer, who in turn endorsed the same to District Panchayat Raj Officer and finally it landed before the Senior Clerk. 10. If such matters of ceasing financial and administrative powers of elected persons are dealt with in such a casual manner, the very purpose of having a democratically elected person would be defeated, as they would always be at the mercy of the executive. As already stated above, the District Magistrate is certainly conferred with such powers under the Act, but the same cannot be exercised in routine course in a casual manner and can be invoked only in extreme cases of abuse of power by the Pradhan or where the Pradhan has persistently failed to perform the duties imposed under the Act. The personal satisfaction of the District Magistrate, with regard to the irregularities committed, has to be there before any such extreme step of ceasing the financial and administrative powers is taken against an elected person. 11. The personal satisfaction of the District Magistrate, with regard to the irregularities committed, has to be there before any such extreme step of ceasing the financial and administrative powers is taken against an elected person. 11. Surprisingly, in this case, it was the District Panchayat Raj Officer who had conducted the enquiry and the reply submitted by the petitioner was also sent by the District Magistrate to the District Panchayat Raj Officer for consideration, which virtually amounts to the District Panchayat Raj Officer exercising the powers under Section 95(1)(g) of the Act and not the District Magistrate, who is the officer authorised to exercise such powers. As such, the impugned order cannot be sustained in the eye of law. 12. On merits also, the charges against the petitioner appear to be vague. However, the same are not being dealt with because the entire procedure adopted in passing the order under Section 95(1)(g) of the Act was against the provisions of the Act and the Rules. As such for the foregoing reasons the impugned order dated 30.5.2008 passed by the District Magistrate deserves to be set aside. 13. Accordingly, this writ petition stands allowed. The order dated 30.5.2008 passed by the District Magistrate is hereby quashed. The financial and administrative powers of the petitioner as Pradhan shall be restored back to her forthwith. No order as to cost. ————