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2013 DIGILAW 2943 (ALL)

PUSHPA v. STATE OF U. P.

2013-12-04

TARUN AGARWALA

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JUDGMENT Hon’ble Tarun Agarwala, J.—Heard Sri R.P.S.Chauhan and Sri Sudhir Kumar, the learned counsel for the petitioner and the learned standing counsel. The instant case discloses the manner in which the State authorities have thrown caution to the wind and have patently misused the provisions of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to ‘Rules of 1997’) in passing orders ceasing the financial and administrative powers of the Pradhan and thereafter removing him under Section 95(1)(g) of the U.P. Panchayat Raj Act. The manner in which the two orders have been passed are in gross violation of the provisions of Rules 3, 4, 6 and 7 of the Rules of 1997. 2. The petitioner was elected as the Pradhan and was discharging her duties. Certain persons, being aggrieved, filed a complaint on the basis of which a preliminary inquiry was instituted under Rule 3 of the Rules of 1997. A preliminary inquiry report was submitted indicating that the petitioner had not carried out the work in the right earnest and that she had misappropriated certain amount. Based on this preliminary inquiry report, a show-cause notice, dated 24.4.2013, was issued. The petitioner gave a reply. The District Magistrate rejected the reply, on the short ground, that the reply was not found satisfactory and without recording any reason as to whether the petitioner, prima facie, had misappropriated any amount issued an order ceasing the financial and administrative powers. The petitioner, being aggrieved by the order dated 15.5.2013, filed writ petition No. 31474 of 2013, which was entertained and an interim order dated 30.5.2013 was passed staying the impugned order, leaving it open to the District Magistrate to conclude the final inquiry under Rule 6 of the Rules of 1997. 3. Pursuant to the order of the Writ Court, a final inquiry under Section 6 was purported to be held. It transpires that an inquiry officer was appointed who submitted an inquiry report on 22.7.2013 and, based on this inquiry report, a show-cause notice dated 26.7.2013 was issued to which the petitioner responded and filed a reply. The District Magistrate thereafter passed the impugned order dated 8.10.2013 removing the petitioner from the post of Pradhan under Section 95(1)(g) of the Act. The District Magistrate thereafter passed the impugned order dated 8.10.2013 removing the petitioner from the post of Pradhan under Section 95(1)(g) of the Act. The petitioner, being aggrieved by the said order, filed writ petition No. 60813 of 2013, which was entertained and the Court directed the respondents to file a counter-affidavit and produce the record. Further, time was again granted on 18.11.2013, inspite of which no counter-affidavit has been filed. 4. The learned standing counsel has, however, produced the record today, which the Court has perused. 5. Having heard the learned counsel for the parties, the Court finds that the Rules of 1997 have not been followed at all. In the instant case, the order of the District Magistrate dated 15.5.2013, ceasing the financial and administrative powers, is not only erroneous, but, is perverse. It is not sufficient for the District Magistrate to hold that the reply of the petitioner was not satisfactory. Something more was required to be stated. The authority was required to give reasons for rejecting the reply of the petitioner. Apart from the aforesaid, the authority had to come to some prima facie conclusion that the petitioner was involved in the defalcation of the Gaon Sabha fund in order to pass an order ceasing the financial and administrative powers till conclusion of the final inquiry contemplated under Rule 6 of the Rules of 1996. In the instant case, the Court finds, that the District Magistrate has not given any reason as to why the reply was not satisfactory nor has given any reason as to how the petitioner committed a financial irregularity of the Gaon Sabha fund. Consequently, the order dated 15.5.2013 ceasing the financial and administrative powers cannot be sustained and is quashed. The Writ Petition No. 31474 of 2013 is allowed. 6. A final inquiry is required to be conducted in accordance with the procedure contemplated under Rule 6 of the Rules of 1997 and thereafter a report is required to be submitted under Rule 7 of the Rules of 1997. The procedure contemplated under Rule 6 is that the inquiry officer shall draw the articles of charges and the statements of imputation and serve such articles of charges alongwith the statements and relevant documents in support of such statements and the charges to the delinquent, who in the instant case is the Pradhan. The procedure contemplated under Rule 6 is that the inquiry officer shall draw the articles of charges and the statements of imputation and serve such articles of charges alongwith the statements and relevant documents in support of such statements and the charges to the delinquent, who in the instant case is the Pradhan. Specific charges are required to be framed by the inquiry officer, so that the Pradhan can give a proper reply to each of the charges. The procedure contemplated indicates, that where the charge is denied by the Pradhan, the inquiry officer is required to conduct an inquiry by taking oral and documentary evidence after giving an opportunity to the Pradhan to cross-examine such witnesses and only thereafter the inquiry officer is required to submit an inquiry report, which would contain the articles of charge and the statement of the imputation, the defence of the Pradhan and the assessment of the evidence in respect of each articles of charge and thereafter the findings on each article of charge and the reasons thereof. 7. In the instant case, the inquiry officer has done nothing as per the procedure provided under Rule 6 of the Rules of 1997. He has neither framed the charge nor the statement of the imputation nor the list of documents or the list of witnesses that was to be relied upon by the prosecution. All that the inquiry officer has done is to hold an inquiry which is nothing but a preliminary enquiry and is not an enquiry contemplated under Rule 6 of the Rules of 1997. The Court finds from a perusal of the record that pursuant to the submission of the report, a show-cause notice dated 26.7.2013 was issued by the District Magistrate, which contained the charges and upon receipt of the reply a final order has been passed. The Court finds that the procedure adopted was patently illegal. The charges so framed by the District Magistrate were not proved nor was the inquiry held in accordance with Rule 6 of the Rules of 1976. The entire exercise was wholly illegal and against the clear provisions of Rule 6 of the Rules of 1997. The inquiry report was in violation of the provisions of Rule 7 of the Rules of 1997. 8. The entire exercise was wholly illegal and against the clear provisions of Rule 6 of the Rules of 1997. The inquiry report was in violation of the provisions of Rule 7 of the Rules of 1997. 8. Since no charges were framed against the petitioner nor any inquiry was made in accordance with Rule 6 of the Rules of 1997, which is a mandatory requirement, the impugned order dated 8.10.2013 removing the petitioner under Section 95(1)(g) of the Act was wholly illegal and in violation of the principles of natural justice. The impugned order cannot be sustained and is quashed. The writ petition No. 60813 of 2013 is allowed. 9. Since the respondents have acted illegally in violation of the mandatory provision of the Rules of 1997 and Section 95(1)(g) of the Act and further have not filed any counter-affidavit inspite of repeated time being granted, the Court imposes a cost of Rs. 50,000/-. Rs. 25,000/- shall be paid to the petitioner within four weeks from today and the remaining Rs. 25,000/- will be deposited by the District Magistrate before the High Court Legal Services Committee. It would be open to the State Government to recover the amount from the erring officials. If the amount is not deposited, the Member Secretary will approach the Registrar General, who in turn will proceed to recover the amount as arrears of land revenue. The Registry is directed to supply a copy of this order to the Member Secretary within a week for necessary action.