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Allahabad High Court · body

2010 DIGILAW 3719 (ALL)

Parvati Devi v. State of U. P. and Others

2010-12-14

V.K.SHUKLA

body2010
Hon’ble V.K.Shukla, J.—Petitioner has approached this Court questioning the validity of the order dated 20.07.2009/ 30.07.2009 passed by District Magistrate, Sant Ravidas Nagar wherein order of removal against petitioner in exercise of authority vested under Section 95(1)(g) U.P. Panchayat Raj Act, 1947 has been passed and further order has been passed directing for recovery of the amount in question in term of Section 27(2) of of U.P. Panchayat Raj Act, 1947.2. Brief background of the case is that petitioner had been functioning as Pradhan and in respect of activities being carried out by petitioner complaint had been made as provided for under Section 95(1) (g) of U.P. Panchayat Raj Act, 1947 read U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules 1997. Show cause notice was issued to the petitioner based on the report submitted by District Basic Education Officer, Sant Ravidas Nagar on 13.11.2007. Petitioner submitted her reply and thereafter an order was passed on 17.02.2008 ceasing financial and administrative power of the Pradhan and Finance and Accounts Officer, Sant Ravidas Nagar was appointed as Inquiry Officer. Against the said order in question petitioner has preferred Civil Misc. Writ Petition No. 13100 of 2008 before this Court and this Court on 12.03.2008 stayed the operation of the said order and left it open that formal inquiry shall however, may go on and shall be concluded expeditiously. Finance and Accounts Officer Sant Ravidas Nagar thereafter fixed 12.03.2008 and thereafter fixed 17.03.2008 and proceeded to submit its report on 05.05.2008. District Magistrate thereafter, on 19.09.2008 passed order of removal. Said order has been subject matter of challenge in Civil Misc. Writ Petition No. 53012 of 2008 and this Court had quashed the said order and asked the District Magistrate to re-examine the reply submitted by the petitioner with specific reference to the violation of the statutory provisions of sub-Rule (6) and (11) of Rule-6 of Rules 1997 and pass a reasoned speaking order, and thereafter order has been passed again on 30.07.2009 which is subject matter of challenge in the present writ petition.3. Pleadings inter se parties have been exchanged and original record in question has also been summoned and thereafter with the consent of the parties, present writ petition has been taken up for final hearing and disposal.4. Pleadings inter se parties have been exchanged and original record in question has also been summoned and thereafter with the consent of the parties, present writ petition has been taken up for final hearing and disposal.4. Sri K.S. Rathore, learned counsel for the petitioner contended with vehemence that in the present case inquiry so held is in breach of statutory provision as contained under Rule 6 of Rules U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules 1997, and reasonable opportunity has not at all been provided for as such same are liable to be quashed.5. Countering the said submission, learned Standing Counsel as well as Sri Kalpnath Bind, Advocate contended that rightful view has been taken in matter, as such no interference should be made by this Court.6. In order to appreciate other arguments, Section 95 (1) (g) of the U.P. Panchayat Raj Act and Rules 3, 4, 5, 6, 7 and 8 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 and Section 27 of U.P. Panchayat Raj Act, 1947 and Rules 256 of U.P. Panchayat Rules,1947 are being looked into.“U.P. Panchayat Raj Act, 1947“95. Inspection.- (1) The State Government may-(a)..........(b).........(c)........(d).........(e)......(f)........(g) remove a Pradhan, Up-Pradhan or member of a Gram Pachayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he –(i) absents himself without sufficient cause for more than three consecutive meetings or sittings;(ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude;(iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable in public interest;(iii-a) has taken benefit of reservation under sub-section (20 of Section 11 or sub-section (3) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Caste, the Scheduled Tribes or the backward classes, as the case may be;(iv) being a Sahayak Sarpanch of a Sahayak Sarpanch of the Nyaya Panchayat takes active part in the politics, or(v) suffers from any of the disqualifications mentioned in clauses (a to (m) of Section 5-A:Provided that where, in an enquiry held by such person in such manner as maybe prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government..“The Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 19973. Procedure relating to complaints.- (1) any person making complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any other officer empowered in this behalf by the State Government.(2) every complaint referred to in sub-rule (1) shall be accompanied by the complainant’s own affidavit in support thereof and also affidavit of all persons from whom he claims to have received information of facts relating to accusation, verified before a notary, together with all documents in his possession or power pertaining to accusation.(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavits respectively.(4) Not less than three copies of the complaint as well as each of its annexure shall be submitted by the complainant.(5) A complaint which does not comply with any of the foregoing provisions of this Rule shall not be entertained.(6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule if a complaint against a Pradhan or Up-Pradhan is made by a public servant.4. Preliminary Enquiry.- (1) The State Government may, on the receipt of 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 prima facie case for a formal inquiry in the matter.5. Enquiry Officer- Where the State Government is of the opinion , on the basis of 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 sub-section (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, and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated under sub-rule (2) of Rule 4, to hold enquiry.6. Procedure of the enquiry.-(1) The substance of imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry officer by the State Government.(2) The Inquiry officer shall draw up-(a) the substance of imputations into definite and distinct articles of charge; and(b) a statement of imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained.(3) The Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified.(4) On receipt of the written statement of defence, the inquiry officer shall enquire into such of that articles of charges as are not admitted and where all articles of charges have been admitted in the written statement of defence, the Inquiry officer shall record his findings on each charge after taking such evidence as he may think fit.(5) If the person who has not admitted any of the articles of charges in his written statement of defence, appears before the Inquiry Officer, he shall ask him where he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiry officer shall record he plea, sign the record and obtain the signature of that person, and return a finding of guilt in respect of those charges.(6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence,-(a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents specified in the list referred to in sub-rule (2);(b) submit a list of witnesses to be examined on his behalf;(c) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for discovery or production of any documents that are relevant to the inquiry an are in the possession of the State Government, but not mentioned in the list referred to in sub-rule (2).(7) The person against whom enquiry is being held may take the assistance of any other person to present the case on his behalf, and the inquiry office may appoint any person as a presiding Officer to assist him in conducting the inquiry:Provided that a legal practitioner shall not be engaged or appointed under this sub-rule.(8) If the person applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule 92), the Inquiry officer shall furnish him with such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved.(9) The Inquiry officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:Provided that the Inquiry officer may; for the reasons to be recorded in writing , refuse to requisition such of the documents as are, in his opinion, not relevant to the case.(10) On receipt of the requisition referred to in sub-rule (9, every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Officer:Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any such documents would be against the public interest o security of the State, it shall inform the Inquiry officer accordingly and such Inquiry Officer shall, on being so informed, communicate the information to the person against whom the inquiry is being held and withdraw the requisition made by him for the production or discovery of documents.(11) On the date fixed for enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall be examined, by the Inquiry officer by or on behalf of the complainant, if there is one and may be cross-examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be examined by the Inquiry officer or the complainant, as the case may be, on any point on which they have been cross-examined, but not on any new matter, without the leave of the Inquiry officer.(12) The Inquiry officer may allow production of evidence not included in the list given to the person against whom the inquiry is being held , or may itself call for new evidence or recall and re-examine any witness and in such case the said person shall be entitled to have if her demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry Officer for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record, the Inquiry officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice.Note- Now evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called from only when there is an inherent lacuna or defect in the evidence which has been produced originally.(13) When the evidence for proving the articles of charge against the person against whom inquiry is being held is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the defence is made orally, it shall be recorded and the said person shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the complainant, if any.(14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. In either case, a copy of the statement of defence shall be given to the complainant, if any.(14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiry officer according to the provisions applicable to the witnesses for proving the articles of charge.(15) The Inquiry officer may, after the person against whom inquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him.(16) The inquiry officer after completion of the production of evidence, hear the complainant, if any and the person against whom enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases.(17) If the person to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry officer o otherwise fails or refuses to comply with the provisions of this rule, the Inquiry officer may hold the enquiry ex parte.(18) Whenever Inquiry officer after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiry Officer, the inquiry Officer so succeeding may act on the evidence so recorded by his predecessor or partly or recorded by himself.Provided that if the succeeding inquiry officer is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice he may recall, examine, cross-examine and re-examine any such witness as herein before provided.7. Report of the inquiry officer.- After the conclusion of the enquiry, the Inquiry Officer shall prepare a report which shall contain-(a) the articles of charge and the statement of the imputations;(b) the defence of the person against whom the enquiry has been held;(c) the assessment of the evidence in respect of each article of charge;(d) the findings on each article of charge and reasons therefor.Explanation.- If in the opinion of the Inquiry Officer the proceedings of the enquiry establish any article of charge different from the original articles of charge, he may record his findings on such article of charge.Provided that the findings on such article of charge shall not be recorded unless the person against whom enquiry has been held has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.8. The Inquiry Officer shall conclude the enquiry within six months from the date of receipt of complaint and forward to State Government the records of the enquiry, which shall include-(a) the report prepared by him under rule 7;(b) the written statement of defence, if any, or the person against whom enquiry has been held;(c) the oral and documentary evidence produced during the course of the enquiry;(d) written briefs, if any, filed during the course of the enquiry; and(e) the order, if any, made by the State Government and the Inquiry officer in regard to the enquiry.”“Section 27 of Act. Surcharge-(1) Every Pradhan or Up-Pradhan of a Gram Panchayt, 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, Up-Pradhan, Member, Sarpanch, Sahayak Sarpanch or Panch: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 arrears 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.U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules 1947“Rule 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 Gaon Sabha as a direct consequence of the negligence or misconduct of a Pradhan, he may call upon the Pradhan, Up-Prahdan, 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 caused to the Gaon Sabha or to its property and such explanation shall be 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 Gaon Panchayat shall be called for through the District Magistrate and from the officer or servant through the Panchayat Raj Officer.Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gaon 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.Note- Any information required by the Chief Audit Officer, Cooperative Societies and Panchayats or any officer subordinate to him not below the rank of Auditor, Panchayats for preliminary enquiry, shall be furnished and all connected papers and records shall be shown to him by the Pradhan immediately on demand.(2) Without prejudice to the generality of the provisions contained in sub-rule (1) the Chief Audit Officer, Cooperative Societies and Panchayts, 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 or regulations made thereunder;(b) Where loss has been caused to the Gaon Sabha by acceptance of a higher tender without sufficient reasons in writing.(c) where any sum due to the Gaon Sabha has been remitted in contravention of the provisions of the Act or the rules or regulations made thereunder;(d) where the loss has been caused to the Gaon sabha by neglect in realizing its dues; or(e) where loss has been caused to the founds or other property of the Gaon 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 Gaon Panchayat shall give his necessary facilities for inspection of the record connected with the requisition for surcharge. The Chief Audit Officer may, on 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.”7. On the parameter as set out, fact of the present case is being looked into. In the present case, this Court in Civil Misc. Writ Petition No. 53012 of 2008(Smt. Parvati Devi v. State of U.P. and others) had given clear cut direction to the District Magistrate to look into the matter from the point of view the violation of the statutory provisions of sub-Rule (6) and (11) of Rule-6 of Rules 1997 and pass a reasoned speaking order. Order dated 30.07.2009 passed by District Magistrate, does not reflect that from the said point of view matter has been investigated by the District Magistrate concerned. Record in question reflects that Finance and Accounts Officer, Sant Ravi Das Nagar, has fixed 12.03.2008 and had directed the Block Development Offier, Bhadohi to inform Gram Panchayat Officer and Gram Pradhan that they were required to appear alongwith relevant record and thereafter another date fixed in the matter was 27.03.2008 and said notice also indicated that Block Development Officer has been asked to inform Gram Vikas Panchayat Officer and Gram Pradhan to be present alongwith relevant documents. Thereafter there is nothing on record to show and suggest that notices have ever been served upon the petitioner. Coupled with this there is nothing on record to show and substantiate that in the enquiry, before submitting said report any evidence has been taken and based on the same inquiry has been concluded. Enquiry report doesn’t reflect any such exercise in such a situation inquiry in the present case, has thus been, concluded in breach of provision as contained under U.P. Panchayat Raj Act, 1947 read with U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules 1997.8. Consequently as on date once inquiry in question itself vitiated having being undertaken in breach of statutory provision quoted above, then such action taken by the District Magistrate, based on the same cannot be subscribed.9. Consequently, order dated 20.07.2009/ 30.07.2009 passed by District Magistrate, Sant Ravidas Nagar are hereby quashed and set aside. Consequently as on date once inquiry in question itself vitiated having being undertaken in breach of statutory provision quoted above, then such action taken by the District Magistrate, based on the same cannot be subscribed.9. Consequently, order dated 20.07.2009/ 30.07.2009 passed by District Magistrate, Sant Ravidas Nagar are hereby quashed and set aside. However, in normal course of business matter would have been remanded back for deciding afresh but here in the present case as term of petitioner as Pradhan has already run out and in exercise of authority vested under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 read with U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules 1997, order of removal only can be passed and as on date as petitioner has already ceased to hold the office of Pradhan, in such a situation and in this background as on date no order of removal can be passed, as such proceedings under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 read with U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules 1997 has rendered itself as infructuous.10. As precise case is that on account of activity of the petitioner there has been loss to the Gram Panchayat in question, in such a situation and in this background concerned District Magistrate is directed to see and ensure that proceedings are undertaken against the petitioner under Section 27(2) U.P. Panchayat Raj Act, 1947 read with Rule 256 of U.P. Panchayat Raj Rules 1947 are concluded preferably within next four months from the date of presentation of certified copy of this order.11. With the above observations and direction present writ petition is allowed.(Petition allowed)_____________