JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri I.R.Singh, learned counsel for the petitioner, learned Standing Counsel for respondents No. 1 to 5 and Sri Tripathi B.G.Bhai, Advocate for respondent No. 6. 2. The writ petition is directed against order dated 23.3.2013 (Annexure 8 to the writ petition) passed by District Magistrate, Siddharthnagar ceasing administrative and financial powers of petitioner in the capacity of Gram Pradhan in Gram Panchayat Agaya, Block Dumariya Ganj, District Siddharthnagar under Proviso to Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as “Act, 1947”) and appointing three members committee to discharge the said function besides appointing Enquiry Officer for regular enquiry, under Rule 6 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as “Rules, 1997”) as amended in 2001. 3. The facts, in brief, giving rise to present dispute are as under: 4. The petitioner was elected Gram Pradhan of Gram Panchayat Agaya, Block Dumariya Ganj, District Siddharthnagar in the election held in 2010. A complaint was made by respondent No. 6 Dinesh Prasad Pandey on 26.10.2012 whereupon District Magistrate issued a letter dated 27.12.2012 calling for the comments of Chief Development Officer, District Panchayat Raj Officer and Project Director (District Rural Development Officer) Siddharthnagar. The Chief Development Officer, Siddharhnagar thereupon constituted a committee consisting of District Basic Education Officer Siddharthnagar, District Panchyat Raj Officer, Siddharthnagar and Assistant Engineer, District Rural Development Authority, Siddharthnagar to hold enquiry and submit report. The aforesaid committee submitted its report on 9/10.1.2013 finding certain allegations true against petitioner relating to embezzlement/ misappropriation. 5. It appears that another report was submitted by Divisional Technical Committee, Basti Division Basti. Both these reports were relied by District Magistrate to issue a show-cause notice dated 29.1.2013 requiring petitioner to show-cause as to why action under Proviso to Section 95(1)(g) of Act, 1947 be not taken against him besides directing for regular enquiry. The petitioner submitted reply dated 13.2.2013 and thereafter impugned order dated 23.3.2013 has been passed by District Magistrate, Siddharthnagar. 6. It is contended that no preliminary enquiry was ordered by District Magistrate and he did not appoint any Enquiry Officer to conduct preliminary enquiry or fact finding enquiry, therefore, aforesaid reports could not have been relied upon for the purpose of passing order under Proviso to Section 95(1)(g) of Act, 1947. 6. It is contended that no preliminary enquiry was ordered by District Magistrate and he did not appoint any Enquiry Officer to conduct preliminary enquiry or fact finding enquiry, therefore, aforesaid reports could not have been relied upon for the purpose of passing order under Proviso to Section 95(1)(g) of Act, 1947. It is also said that no Enquiry Officer was appointed by District Magistrate and therefore, any preliminary enquiry report submitted by another person could not have been acted upon and in this regard reliance is placed on a Single Judge judgment of this Court in Rais Ahmad v. State of U.P. and others, 2009(1) CRC 139. 7. However, I find that issue, up for consideration, is squarely answered by a Full Bench of this Court in Vivekanand Yadav v. State of U.P. and another, 2010 (10) ADJ 1 (FB). 8. The law laid down by Full Bench in Vivekanand Yadav (supra) can be summarised as under: (I) Section 95(1)(g) contemplates removal of Pradhan while Proviso to Section 95(1)(g) talks of enquiry before ceasing financial and administrative powers during pendency of a removal proceeding. If Pradhan is prima facie found to have committed financial and other irregularities, preliminary/fact finding enquiry under Section 95(1)(g) proviso is necessary, which has to be conducted under Rule 4 of Rules, 1997. (II) Proviso to Section 95(1) would apply to Section 95(1)(g) contemplating removal but not to any other provision like Proviso to Section 95(1)(g). (III) The proviso to Section 95(1) provides for reasonable opportunity in removal proceedings of a Pradhan under Section 95(1)(g) but it does not apply to Proviso to Section 95(1)(g) providing for preliminary or fact finding enquiry: the purpose of this enquiry is to find out if there is any prima facie case against Pradhan or not. (IV) Proviso to Section 95(1)(g) providing cessation of financial and administrative powers does contemplate a preliminary enquiry by a person and procedure is to be prescribed: the Rules have to be framed for the same. Rules, 1997 thus have been framed because it is so mandated in the Proviso to Section 95(1)(g) of Act, 1947 and not because of 95(1)(g) or the Proviso to Section 95(1). (V) The District Magistrate can order a preliminary enquiry on the complaint or report or otherwise. Rules, 1997 thus have been framed because it is so mandated in the Proviso to Section 95(1)(g) of Act, 1947 and not because of 95(1)(g) or the Proviso to Section 95(1). (V) The District Magistrate can order a preliminary enquiry on the complaint or report or otherwise. The word ‘complaint’ or ‘report’ refers to the complaint by a private person or to the report made by a public servant under Rule 3. (VI) The District Magistrate has power to refer a case for preliminary enquiry even if there is no complaint or report. In other words, he has power to act suo moto. (VII) Even if a complaint made is not entertainable in view of Rule 3(5) of Rules, 1997 yet District Magistrate can always refer the matter for preliminary enquiry, if he consider that it should be so enquired; since he can act suo moto. (VIII) The word “otherwise” in Rule 4 means that District Magistrate has suo motu powers to order a preliminary enquiry, and, he may order a preliminary enquiry even if there is no complaint or report; or a defective complaint, not in accordance with Rules 3(1) to 3(4). (IX) A Pradhan has no right to object that a complaint is not in accordance with Rules 3(1) to 3(4) of Rules, 1997 and hence no inquiry can be ordered. (X) A Pradhan is neither entitled to be associated in preliminary enquiry nor entitled to get copy of preliminary enquiry report. His only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed. (XI) It is not only necessary that explanation or point of view or version of affected pradhan should be obtained but should also be considered before being prima facie satisfied of his being guilty of financial and other irregularities and ceasing his powers. The consideration of explanation does not have to be a detailed one but there should be indication that mind has been applied. (XII) The proceeding for removal has to be conducted in accordance with Rules 6 onwards of Rules, 1997, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. The consideration of explanation does not have to be a detailed one but there should be indication that mind has been applied. (XII) The proceeding for removal has to be conducted in accordance with Rules 6 onwards of Rules, 1997, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. However, where right to exercise financial and administrative power is also to be ceased then procedure in Rules 3 to 5 has to be followed, otherwise there is no necessity to follow them. (XIII) In other words, preliminary enquiry may not be necessary if the proceeding for removal is to be undertaken without ceasing power of pradhan in respect to administrative and financial matters. (XIV) In order to exercise power under Rule 5, to cease administrative and financial powers of Pradhan under Proviso to Section 95(1)(g) of Act, 1947, District Magistrate can pass order in the following contingencies: (i) A complaint can be made directly to the District Magistrate who may ask the enquiry officer as defined under Rule 2 (c) to conduct a preliminary inquiry under Rule 4 ; or (ii) A complaint can be made directly to the enquiry officer defined under Section 2 (c), who may submit a report without the District Magistrate asking for it ; or (iii) A complaint can be made to the District Magistrate with a copy to enquiry officer, who may submit a report, without the District Magistrate asking for it ; or (iv) A District Magistrate can himself conduct a preliminary enquiry. (XV) Any other report can be considered by District Magistrate under Rule 3(6) of Rules, 1997 for ordering preliminary enquiry but final enquiry with cessation of power cannot be ordered on its basis. In other words, action under Proviso to Section 95(1) (g) can also be taken on the preliminary report of District Magistrate as well as on a report of a person defined as enquiry officer under Rule 2(c) of Rules, 1997. Only these reports would be covered in the word ‘otherwise’ of Rule 5. 9. In other words, action under Proviso to Section 95(1) (g) can also be taken on the preliminary report of District Magistrate as well as on a report of a person defined as enquiry officer under Rule 2(c) of Rules, 1997. Only these reports would be covered in the word ‘otherwise’ of Rule 5. 9. So far as decision in Rais Ahmad (supra) is concerned, it would be useful to notice that definition of “Enquiry Officer” under Rule 2(c), which was considered by this Court, has been reproduced in para 5 of the judgment, reads as under: “2(c) ‘Enquiry Officer’ means an officer not below the rank of District Panchayat Raj Officer, appointed as such, by the State Government.” 10. This provision has undergone an amendment vide notification dated 5.10.2001 w.e.f. 5.10.2001 and Rule 2(c) was substituted by following: “‘Enquiry Officer’ means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.” 11. Though, in Rais Ahmad (supra) also, the order under Proviso to Section 95(1)(g) was passed on 30.6.2008 i.e. after the said amendment but it appears that Hon’ble Court was not apprised of the fact that Rule 2(c), as was initially framed, has already undergone an amendment in 2001 and this amended rule was not considered by this Court. Apparently judgment in Rais Ahmad (supra) is per incurium. The amended definition has been considered in Full Bench judgment in Vivekanand Yadav (supra) and exposition of law laid down therein has already been noted above. Therefore, even if District Magistrate has not appointed Enquiry Officer, report submitted by District Basic Education Officer and District Panchayat Raj Officer can be acted upon by treating it to be a preliminary enquiry report since they were all “district level officer” and do satisfy definition of “Enquiry Officer” under the Rules. 12. This Court has also said that even if enquiry has not been ordered by District Magistrate but if such a preliminary report is available, it can be acted upon for the purpose of passing an order under Proviso to Section 95(1)(g) of Act, 1947. 12. This Court has also said that even if enquiry has not been ordered by District Magistrate but if such a preliminary report is available, it can be acted upon for the purpose of passing an order under Proviso to Section 95(1)(g) of Act, 1947. Moreover, powers exercisable by State Government under Section 95(1)(g) have been delegated upon District Magistrate vide notification No. 1684/XXXIII-1-1997-123-97, dated 30.4.1997 issued under Section 96-A of Act, 1947, which reads as under: “96-A. Delegation of powers by State Government.—The State Government may delegate all or any of its powers under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose.” 13. Hence, one more submission that Enquiry Officer should have been appointed by State Government and not by District Magistrate also therefore, looses any ground and has to be rejected. 14. In the result, I find no patent illegality in the impugned order warranting interference. The writ petition is accordingly dismissed. 15. No order as to costs. ——————