JUDGMENT Hon’ble Sanjay Misra, J.—Heard Sri V.K. Ojha learned counsel for the petitioner Sri V.K. Dwivedi for respondent No. 4 who is the complainant against the petitioner and learned Standing Counsel for respondent Nos. 1, 2 and 3. Counter and rejoinder affidavits have been exchanged between the parties. 2. The petitioner claims to have been elected as Pradhan of the Village Barsavan, District Basti in the year 2000 as also re-elected in the year 2005. He is aggrieved by the order dated 19.11.2008 (Annexure 5 to the writ petition) passed by the District Magistrate, Basti whereby a sum of Rs. 11,750 has been directed to be realized from the petitioner under Section 27 (1) of the U.P. Panchayat Raj Act. 3. Learned counsel for the petitioner has submitted that an ex parte enquiry report dated 9.6.2008 (Annexure 2 to the writ petition) was made against the petitioner and other officials involved in development of the village whereupon a notice dated 21.7.2008 (Annexure 3 to the writ petition) under Section 95 (1) (g) of the U.P. Panchayat Raj Act was given to him. The petitioner contends that he submitted his reply to the notice under Section 95 (1) (g) on 27.8.2008 (Annexure 4 to the writ petition) whereafter the impugned order dated 19.11.2008 has been passed under Section 27 (1) of the U.P. Panchayat Raj Act. The submission of learned counsel for the petitioner is that the proceedings under Section 95 (1) (g) of the U.P. Panchayat Raj Act contemplate removal of Pradhan for which the procedure has been prescribed. He distinguishes the proceedings under Section 27 of the U.P. Panchayat Raj Act for liability to pay surcharge for loss caused to money or property of the Gram Panchayat and the procedure prescribed therein. 4. According to learned counsel for the petitioner the proceedings under Section 95 (1) (g) are for removal of the Pradhan and the procedure to be followed there in is quite alien to the procedure prescribed for fixing liability to pay for the loss occasioned to the property or money by imposition of surcharge. 5. Learned counsel has referred to Section 27 of the Act and Chapter XIII of the U.P. Panchayat Raj Rules 1947 and states that Rule 256, 257, 258, 259 and 280 would govern the field. 5. Learned counsel has referred to Section 27 of the Act and Chapter XIII of the U.P. Panchayat Raj Rules 1947 and states that Rule 256, 257, 258, 259 and 280 would govern the field. He states that none of the procedure prescribed under the aforesaid rules have been followed in the present case inasmuch as after show-cause notice under Section 95 (1) (g) of the Act and filing of the explanation of the petitioner the impugned order has been passed under Section 27 of the Act. 6. Learned counsel for respondent No. 4 as also learned Standing Counsel submit that upon the enquiry report dated 9.6.2008 a prima facie satisfaction was recorded by the District Magistrate who had issued the notice dated 21.7.2008 and although a notice under Section 95 (1) (g) has been issued it cannot be a bar for the authorities to proceed against petitioner under Section 27. They state that the impugned order has been passed within jurisdiction after issue of notice under Section 95 (1) (g) and surcharge has been imposed upon the petitioner under Section 27 (1) of the Act. 7. Learned counsel for respondent No. 4 further states that this writ petition would not be maintainable since an appeal is provided under Section 27 (3) of the Act. 8. Having considered the submission of learned counsel for the parties and perused the record it is quite apparent that the enquiry report dated 9.6.2008 (Annexure 2 to the writ petition) was a preliminary enquiry to find out the mis-conduct committed by the petitioner as Pradhan of the village. A perusal of the show-cause notice dated 21.7.2008 (Annexure 3 to the writ petition) indicates that the irregularities found in that enquiry were made the substance of the charge against the petitioner for his removal under Section 95 (1) (g) of the Act. The petitioner admittedly has given his reply. 9. In so far as the objection of learned counsel for respondent No. 4 that this writ petition be not entertained since there is a provision of statutory appeal under Section 27 (3) of the Act is concerned it will be seen that this writ petition was entertained when it was filed in the year 2008 and counter affidavit was invited. Counter and rejoinder affidavits have been exchanged between the parties. Counter and rejoinder affidavits have been exchanged between the parties. At this stage relegating the petitioner to avail his remedy of appeal would not be appropriate inasmuch as there is no factual dispute which is required to be decided by the writ Court. Consequently the objection raised by respondent No. 4 regarding remedy of appeal cannot be upheld. 10. In case the respondents wanted to proceed under Section 95 (1) (g) of the Act they were free to do so however in the present case they have chosen not to proceed under Section 95 (1) (g) but to burden the petitioner with surcharge under Section 27 (1) of the Act for the loss caused by him of the money/property of the Gram Panchayat. It appears from the record that after the petitioner had submitted his reply to the notice under Section 95 (1) (g) the impugned order has been passed straight way. 11. In the Division Bench decision in the case of Indu Devi v. District Magistrate, Chitrakoot and others, 2006 (3) AWC 2787 , it has been laid down as quoted here under- “The prima facie finding of the competent authority under Section 95 (1) (g), proviso is not same as finding of misconduct as contemplated under Section 27 of the Act. We are satisfied that on the basis of mere prima facie finding of guilt, the order of surcharge could not have been passed under Section 27 of the Act.” 12. Rules 256 of the rules is quoted here under : 256. We are satisfied that on the basis of mere prima facie finding of guilt, the order of surcharge could not have been passed under Section 27 of the Act.” 12. Rules 256 of the rules is quoted here under : 256. (1) In any case where the Chief Audit Officer, Co-operative Societies and Panchayats, considers that there has been a loss, waste or misuse of any money or other property belonging to a Gram Sabha as a direct consequence of the negligence or misconduct of a Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat, he may call upon the Pradhan, Up-Pradhan, Member, Officer or servant, as the case may be, to explain in writing, why such Pradhan, Up-Pradhan, Member, Officer or servant, should not be required to pay the amount misused or the amount which represents the loss or waste furnished within a period not exceeding two months from the date such requisition is communicated to the person concerned; Provided that an explanation from the Pradhan, Up-Pradhan or member of the Gram Panchayat shall be called for through the District Magistrate and from the officer or servant through the District Panchayat Raj Officer : Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gram Panchayats or any of its committee as having been absent from the meeting at which the expenditure objected to was sanctioned or who voted against such expenditure. (2) Without prejudice to the generality of the provisions contained in sub rule (1) the Chief Audit Officer, Co-operative Societies and Panchayats, may call for the explanation in the following cases : (a) Where expenditure has been incurred in contravention of the provisions of the Act or of the rules and regulations made thereunder; (b) where loss has been caused to the Gram Sabha by acceptance of an higher tender without sufficient reasons in writing; (c) where any sum due to the Gram Sabha has been remitted in contravention of the provisions of the Act or the rules or regulations under thereunder, (d) where the loss has been caused to the Gram Sabha by neglect in realizing its duties; or (e) where loss has been caused to the funds or other property of the Gram Sabha on account of want of reasonable care for the custody of such money or property. (3) On the written request of the Pradhan, Up-Pradhan, Member, Officer or servant from whom an explanation has been called for, the Gram Panchayat shall give him necessary facilities for inspection of the records connected with requisition for surcharge. The Chief Audit Officer may, in application from the person surcharged, allow a reasonable extension of time for submission, of his explanation if he is satisfied that the person charged has been unable, for reasons beyond his control, to consult the record for the purpose of furnishing his explanation.” 13. From the aforesaid rules it is quite apparent that a procedure is there which requires to be followed in proceedings under Section 27 of the Act relating to consultation of records for the purpose of furnishing explanation. 14. In the impugned order the only reliance placed is on the preliminary enquiry report dated 9.6.2008 which does not indicate that the procedure prescribed has been followed. In fact in the counter-affidavit filed by the respondents there is specific averment as to what is the procedure prescribed to be followed. Section 27 (2) of the Act clearly contemplates that there is a procedure prescribed for fixing the amount of loss and its certification. 15. It is admitted in the counter-affidavit in paragraph 5 that it was in an enquiry for the purpose of proceedings under Section 95 (1) (g) of the Act that the petitioner was found guilty of misappropriation. In paragraph 12 of the counter-affidavit the procedure prescribed has been referred to and the relevant Government Orders have been filed as annexures being Amendment Rules of 2001 and G.O. dated 11.12.2008. 16. While pursuing the impugned order and the enquiry report it is apparent that the procedure has not been complied with on both the counts i.e. for fixation of liability of loss incurred and procedure thereafter. Admittedly the enquiry was for the purpose of invoking Section 95 (1) (g) and Section 27 of the Act could be resorted to on the basis of such enquiry, but even that had to be done as per prescribed procedure and not on a preliminary enquiry report where only prima facie satisfaction was recorded. 17. Admittedly the enquiry was for the purpose of invoking Section 95 (1) (g) and Section 27 of the Act could be resorted to on the basis of such enquiry, but even that had to be done as per prescribed procedure and not on a preliminary enquiry report where only prima facie satisfaction was recorded. 17. Rule 257 is quoted here under- “After the expiry of the period prescribed in sub-rule (1) or (3) of Rule 256, as the case may be and after examining the explanation, if any, received within time, the Chief Audit Officer shall submit the papers alongwith his recommendations to the District Magistrate of the district in which the Gram Sabha is situated in case of Pradhan, Up-Pradhan and Members and to the District Panchayat Raj Officer of the district in which the Gram Sabha is situated in case of officers and servants. (2) The District Magistrate or the District Panchayat Raj Officer, as the case may be, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat to pay the whole or part of the sum to which such Pradhan, Up-Pradhan, Member, Officer or servant is found liable. Provided, firstly, that no Pradhan, Up-Pradhan, Member, Officer or servant of a Gram Panchayat would be required to make good the loss, if from the explanation of the Pradhan, Up-Pradhan, Member, Officer or servant concerned or otherwise the District Magistrate or the District Panchayat Raj Officer, as the case may be, is satisfied that the loss was caused by an act of the Pradhan, Up-Pradhan, Member, Officer or servant in the bona fide discharge of his duties : Provided, secondly that in the case of loss, waste or misuse occurring as a result of a resolution of the Gram Panchayat or any of its committees, the amount of loss to be recovered shall be divided equally among all the members including Pradhan and Up-Pradhan, who are reported in the minutes of the Gram Panchayat or any of its committee as having voted for or who remained neutral in respect of such resolution. Provided, thirdly, that no Pradhan, Up-Pradhan, Member, Officer or servant shall be liable for any loss, waste or misuse after the expiry of four years from the occurrence of such loss, waste or misuse or after the expiry of three years from the date of his ceasing to be Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat whichever is later.” 18. The aforesaid provision clearly indicates that there are proceedings to be conducted in accordance thereof whereafter the order under Section 27 (1) can be passed. From the record of this writ petition no such satisfaction or consideration of the first and second proviso has been recorded on any evidence and the impugned order has been passed. 19. Section 27 of the Act is quoted here under- “Every Pradhan or of a (Gram Panchayat) every member of a (Gram Panchayat) or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat shall be liable to surcharge for the loss, waste or misapplication of money or property (belonging to the Gram Panchayat or Nyaya Panchayat) as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan. Provided that such liability shall cease to exist after the expiration of ten years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later. (2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the collector who shall, on being satisfied that the amount is due, realise it as if it were an arrear of land revenue. (3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order of the State Government or such other appellate authority as may be prescribed. (4) Where no proceeding for fixation and realisation of surcharge as specified in sub-section (2) is taken the State Government may institute suit for compensation for such loss, waste or misapplication, against the person liable for the same.” 20. (4) Where no proceeding for fixation and realisation of surcharge as specified in sub-section (2) is taken the State Government may institute suit for compensation for such loss, waste or misapplication, against the person liable for the same.” 20. The provisions of sub-sections (2) and (4) being mandatory in nature, the authority was obliged to fix the surcharge according to the procedure prescribed and on failure to do so only a suit could be filed for realisation of the loss as compensation. 21. The reasons given in the impugned order are quoted here under : Jh jkethr iq= xq:cD’k fuoklh xzke cjlko cLrh lnj ds uksVjh c;ku gYQh lfgr Jh jke’kadj] iz/kku xzke iapk;r cjlko cLrh lnj ds fo:) izzLrqr f’kdk;r dh tkWp izkjfEHkd ifj;kstuk funs’kd] ftyk xzkE; fodkl vfHkdj.k] cLrh ds ek/;e ls djkbZ xbZ izkjfEHkd tkap vf/kdkjh@ ifj;kstuk funs’kd] ftyk xzkE; fodkl vfHkdj.k cLrh ds dk;kZy; i=kad 499@,l-Vh-@f’k-fy-@2008&09 fnukad 9-6-2008 }kjk izsf"kr tkap vk[;k ds vk/kkj ij fofHkUu fuekZ.k dk;Z ekud ds de@fuEu Js.kh ds ik;s tkus ,oa 'kkSpky; fuekZ.k ds viw.kZ ik;s tkus ds QyLo:i eq0 23]500-00 dk O;ogj.k ik;k x;k A izkd`frd U;k; ds fl)kUr ij bl dk;kZy; ds i=kad 1120@7&iapkr@f’k[@tkap@2008&09 fnukad 21-07-2008 }kjk vipkjh iz/kku Jh jke’kadj xzke iapk;r cjlko cLrh lnj dks viuk i{k izLrqr djus gsrw uksfVl izkfIr ds 15 fnu ds vanj viuki{k izLrqr djus gsrw dkj.k crkvks uksfVl fuxZr dh xbZ A iz/kku }kjk viuk i{k fnukad 28-8-2008 dh izLrqr fd;k rnuksijkUr tkap vf/kdkjh o f’kdk;rdrkZ dh mifLFkfr esa fnukad 22-10-2008 dks iz/kku ds i{k dh O;fDrxr lquokbZ dh xbZ A izdj.k ij lE;d fopkjksijkUr nksuksa i{kksa dh lquokbZ djus ds mijkUr f’kdk;rdrkZ Jh jkethr ,oa iz/kku xzke iapk;r ds e/; ;/kfi iqjkuh jaft’k eqdnesckth o pqukoh jaft’k vo’; ik;h xbZ fdUrq iz/kku }kjk xzke iapk;r esa djk;s x;s dk;Z ekud o xq.koRrk ls de ik;s tkus rFkk 'kkSpky; fuekZ.k viw.kZ ik;s tkus ds lEc/ka esa lquokbZ ds nkSjku dksbZ Bksl lk{; izLrqr ugh fd;s tk lds A QyLo:i eqc0 23]500-00 :- dk O;ogj.k fl) ik;k x;k A 22. From the aforequoted reason it is quite apparent that the impugned order has not been passed in accordance with law and it does not contain mention of any proceedings as required to be taken before passing it. A prima facie finding could not be made the basis for passing an order under Section 27 of the Act. 23. From the aforequoted reason it is quite apparent that the impugned order has not been passed in accordance with law and it does not contain mention of any proceedings as required to be taken before passing it. A prima facie finding could not be made the basis for passing an order under Section 27 of the Act. 23. Therefore when the impugned order is violative of the mandatory provisions of Section 27 of the Act and Chapter XIII of the Panchayat Raj Rules it is clearly illegal and has deprived the petitioner of the opportunities to which he was entitled in proceedings for fixation of the amount of loss. 24. In so far as the submission of the petitioner that when notice under Section 95 (1) (g) was issued the respondents could not proceed under Section 27 is concerned the same does not appear to have much substance in view of the fact that the scheme under Section 27 relates to making the Pradhan liable to surcharge and the finding of misconduct recorded under Section 27 of the Act can be based upon an enquiry made under Section 95 (1) (g) when misconduct is proved against the Pradhan. Therefore it is always open for the competent authority to issue notice of surcharge on the basis of finding of an enquiry under Section 95 (1) (g) of the Act. 25. However in the facts and circumstances of the present case no procedure for fixation of the loss appears to have been conducted under Section 27 of the Act nor any enquiry was held under Section 95 (1) (g) of the Act after issue of show-cause notice on the basis of a prima facie satisfaction. 26. Consequently the impugned order cannot be up held and it is accordingly set aside. However it is open to the respondents to proceed against the petitioner for the alleged misconduct or for realisation of the amount of loss in accordance with law. 27. The writ petition stands allowed as above. 28. No order is passed as to costs. —————