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Allahabad High Court · body

2015 DIGILAW 2587 (ALL)

MUBARAK HUSAIN v. STATE OF U. P.

2015-08-25

PANKAJ MITHAL

body2015
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Sunil Kumar, learned counsel for the petitioner and learned Standing counsel for the respondents. 2. Learned counsel for the parties have agreed for final disposal of the petition on the basis of the pleadings exchanged between them. 3. The Petitioner was elected as Gram Pradhan of Gram Panchayat Bairam Nagar, Vikas khand Mahdaur, Bijnor. The District Magistrate by the impugned order dated 12th December 2014 has removed him from the post of Gram Pradhan on the ground that he incurred an expenditure of Rs. 41,090/- over and above the estimated expenditure towards the development of the village. 4. A Gram Pradhan is liable to removal under Section 95 of the U.P. Panchayat Raj Act, 1947 on the grounds mentioned therein and the procedure for his removal is provided under U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997. 5. The procedure is that a complaint against the Gram Pradhan should be accompanied by the complainants own affidavit or any other person from whom he alleges to have received information of the facts stated therein and that it is not necessary to file affidavit in support of the complaint, if it is made by a public servant. 6. Rule 4 of the above Rules provides that on receipt of a complaint as prescribed, the State Government may direct the enquiry officer to conduct a preliminary enquiry with a view to find out, if there is prima facie case for a formal enquiry in the matter. 7. The enquiry officer referred to in Rule 4 has been defined under Rule 2 (c) to mean a District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate. 8. On the submission of a preliminary enquiry report if the State Government is of the opinion that a formal enquiry into the allegations levelled against the Gram Pradhan is necessary that a final enquiry in the matter is got conducted. The action for removal of the Gram Pradhan is supposed to be taken on the basis of the report of the final enquiry so conducted. 9. The submission of Sri Sunil Kumar, learned counsel for the petitioner is that the preliminary enquiry was not conducted by a competent officer ie. District Panchayat Raj Officer or any other district level officer as nominated by the District Magistrate. 9. The submission of Sri Sunil Kumar, learned counsel for the petitioner is that the preliminary enquiry was not conducted by a competent officer ie. District Panchayat Raj Officer or any other district level officer as nominated by the District Magistrate. It was conducted by a Junior Engineer and was simply forwarded by the Executive Engineer of the Public Works Department (in short PWD). Since the said enquiry was not by a competent person, the entire consequential proceedings of formal enquiry are also bad. The impugned order has been passed only on the basis of the preliminary enquiry allegedly conducted by the Executive Engineer without any reference to the formal enquiry alleged to have been conducted by the Block Development Officer (in short BDO). 10. Learned Standing counsel in defence submits that the enquiry was not by the Junior Engineer but by the Executive Engineer.The petitioner has been removed from the post of Gram Pradhan on the basis of enquiry conducted by the District Level Officer nominated by the District Magistrate. The preliminary enquiry was entrusted to the Executive Engineer who is a district level officer and he was directed to hold the enquiry with the assistance of the Junior Engineer. 11. There is no dispute that vide order dated 17.1.2013 passed by the District Magistrate the preliminary enquiry was entrusted to the Executive Engineer. The said order not only directs the Executive Engineer to hold a preliminary enquiry but provides that one Radhey Shyam Sharma, Junior Engineer, Nazibabad shall assist him in the enquiry who was later replaced by another Assistant Engineer posted at Afzalgarh, Bijnor. 12. The enquiry was entrusted to an Executive Engineer a district level officer and a Junior Engineer was directed to assist him. The Junior Engineer himself was not directed to hold any enquiry. He was only to assist the Executive Engineer. 13. The petitioner has brought on record the office order dated 16.2.2013 of the Executive Engineer, Afzalgarh Sichai Kendra, Dhampur who was appointed as the enquiry officer which states that the District Magistrate vide order dated 17.1.2013 had appointed him and one Radhey Shyam Sharma, Junior Engineer, Nazibabad as the enquiry officer but since he is busy in other official work, let the enquiry be conducted by Nasir Ahmad, Assistant Engineer alongwith Radhey Shyam Sharma, Junior Engineer and to submit the report in a sealed cover by a specific date. 14. 14. The aforesaid letter of the office of the Executive Engineer reflects that the enquiry was entrusted to him to be completed with the help of a Junior Engineer but the Executive Engineer who is said to be a district level officer delegated the entire enquiry to the Assistant Engineer as he himself was not in a position to conduct the same, meaning thereby that the enquiry in the end was entrusted to none else but to an Assistant Engineer to be completed with the assistance of a Junior Engineer. 15. The preliminary enquiry report is dated 4.4.2013 and it has been submitted by the Assistant Engineer to the Executive Engineer. It does not bear the signature of the Executive Engineer. In these circumstances, the aforesaid preliminary enquiry report cannot be treated as a report of the Executive Engineer to whom the enquiry was entrusted. 16. The Executive Engineer was not competent to delegate the enquiry entrusted to him to any sub-ordinate officer ie. Assistant Engineer. The Assistant Engineer was not nominated by the District Magistrate to hold an enquiry therefore he cannot be regarded as a competent person to submit a preliminary enquiry report in the matter. 17. The bare perusal of the impugned order reveals that the final enquiry was entrusted jointly to the Executive Engineer, PWD, Bijnor and the Block Development Officer, Kiratpur but the report was submitted by the Executive Engineer only on 12.7.2013. The petitioner had raised certain objections against the same whereupon the District Magistrate directed the Chief Development Officer to re-look into the matter. The Chief Development Officer submitted a revised report on 7.2.2014. It is on the basis of the aforesaid two reports dated 12.7.2013 and 7.2.2013 that the action of removal of the Pradhan was taken by the District Magistrate. 18. The submission is that the Chief Development Officer could not be associated with the formal enquiry as the same was entrusted only to a two member Committee comprising of the Executive Engineer and the Block Development Officer and that there is no final report by the two member Committee. 19. The final enquiry report dated 12.7.2013 appears to be that of Executive Engineer alone. The impugned order no where refers to the report by the Committee or to a joint report of the Executive Engineer and the BDO who were entrusted with the formal enquiry. 19. The final enquiry report dated 12.7.2013 appears to be that of Executive Engineer alone. The impugned order no where refers to the report by the Committee or to a joint report of the Executive Engineer and the BDO who were entrusted with the formal enquiry. Secondly, the Chief Development Officer was not part of the Committee constituted for the purposes of formal enquiry. Therefore, he could not have held any enquiry in the matter. His report, if any, is meaningless. The action based upon any report of the Chief Development Officer or the report of the Executive Engineer alone cannot be a valid action, as none of the two reports can be regarded as the report of the enquiry Committee. 20. In view of the aforesaid facts and circumstances, the impugned order dated 12.12.2014 passed by the District Magistrate under Section 95(1) (g) of the Act for removal of the petitioner as gram Pradhan, Gram Panchayat Bairam Nagar, District Bijnor is illegal and is not sustainable in law for the reasons : (i) the preliminary enquiry was not conducted by the district level officer, ie. the Executive Officer who was so appointed by the District Magistrate; (ii) the final enquiry report is that of the Executive Engineer and not by the enquiry Committee comprising of the Executive Engineer and the Block Development Officer; and (iii) the Chief Development Officer had no authority of law to participate in the formal enquiry and to submit any report as he was not nominated as the enquiry officer or the member of the enquiry Committee. 21. Accordingly, the impugned order dated 12.12.2014 is hereby quashed and the writ petition is allowed with no orders as to costs.