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2015 DIGILAW 601 (ALL)

MANOJ KUMAR GUPTA v. STATE OF U. P.

2015-03-27

RAKESH TIWARI, VIJAY LAKSHMI

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JUDGMENT Hon’ble Rakesh Tiwari, J.—Heard learned counsel for the parties and perused the record. 2. This writ petition has been preferred by the petitioner for quashing the show-cause notice dated 23.4.2012 (Annexure-6 to the writ petition) under Section 95(1)(g) of Uttar Pradesh Panchayat Raj Act, 1947 issued by the Chief Development Officer, Jalaun at Orai and the order dated 24.7.2012 (Annexure-8 to the writ petition) passed by the District Panchayat Raj Adhikari, Jalaun at Orai as well as the order dated 9.8.2012 (Annexure-11 to the writ petition) passed by the Joint Development Commissioner, Jhansi Division, Jhansi. 2. Brief facts giving rise to the instant writ petition are that the petitioner is an elected Pradhan of village Uncha Gaon, Block Nadigaon, District Jalaun at Orai. On a complaint in connection with embezzlement of money allotted to the Village Panchayat for implementation of MANREGA scheme made by respondent No. 6, the Chief Development Officer, Jalaun at Orai vide order dated 17.12.2011, constituted a Committee consisting of three members, namely, Sri Mohd. Gaffar, Up-Ziladhikari, Konch, Sri Chitrasen Singh, Khand Vikas Adhikari, Dakor and Sri Rajpal Singh, Sahayak Zila Panchayat Adhikari for holding an enquiry. The Enquiry Committee submitted its report dated 1.3.2012 finding the petitioner guilty of allegations in the complaint. A show-cause notice was issued against him to submit his explanation within 15 days. Aggrieved, the petitioner has preferred the present writ petition against the show-cause notice. 3. Learned counsel for the petitioner submits that neither the objections submitted by the petitioner were ever decided nor any notice or opportunity of hearing was provided to the petitioner, who was the affected party, though on the other hand, the complainant was heard and permitted to give evidence before the Enquiry Committee. Even the Chief Development Officer has written to the Joint Development Commissioner (respondent No. 7) that the report has been submitted by the Enquiry Committee without there being any technical member in its composition as such the matter be referred to the Technical Audit Committee, yet the Joint Development Commissioner has rejected such objection of the Chief Development Officer vide his communication dated 9.8.2012. Therefore, the procedure adopted is wholly illegal, unjustified, without any reasons and the order has been passed without considering the objections of the petitioner. 4. Therefore, the procedure adopted is wholly illegal, unjustified, without any reasons and the order has been passed without considering the objections of the petitioner. 4. The contention of the learned counsel for the petitioner is that the entire enquiry has been conducted behind the back of the petitioner, which is in gross violation of the principles of natural justice. It is stated that complaint ought not to have been entertained the complainant had no right to be heard. In support of this submission, he has placed reliance upon the following case laws. 1. Smt. Kesari Devi v. State of U.P. and others, 2005(4) AWC 3563; 2. Amin Khan v. State of U.P. and others, 2008(4) ADJ 559 (DB); 3. Dharam Raj v. State of U.P. and others, 2009(108) RD 689; and 4. Narendra Kumar v. State of U.P. and others, 2013(1) ADJ 228 . 5. Per contra, learned counsel for the respondents submits that the rulings cited by the petitioner are not applicable. Upon facts he has submitted that petitioner was found guilty of committing financial irregularities and accordingly, show-cause notice was given to him in exercise of powers under Section 95(g)(1) of U.P. Panchayat Raj Act, 1947. It was also directed that the FIR also be lodged against the petitioner in the facts and circumstances of the case; that mere perusal of application for re-enquiry dated 28.7.2012 will indicate that the petitioner also had never objected that there was no technical member in the Enquiry Committee whereas the fact of the case is that the Assistant District Panchayat Raj Officer (Technical) was one of the members of the Enquiry Committee, who is technical officer. The petitioner was afforded opportunity to participate in the enquiry and he was also present at the time of enquiry, hence the enquiry conducted by the three members committee cannot be said to be an ex-parte enquiry. It is stated that Sri Surendra Vikram, who at the relevant time, was holding the charge of District Magistrate, Jalaun at Orai, was competent to issue show-cause notice; that none of the grounds taken in the writ petition are tenable in law as such the writ petition is misconceived, has no merit and deserves to be dismissed with costs. 6. It is stated that Sri Surendra Vikram, who at the relevant time, was holding the charge of District Magistrate, Jalaun at Orai, was competent to issue show-cause notice; that none of the grounds taken in the writ petition are tenable in law as such the writ petition is misconceived, has no merit and deserves to be dismissed with costs. 6. The rulings cited by the learned counsel for the petitioner are therefore clearly not applicable to the facts and circumstances of the present case and are distinguishable as stated above. 7. Before adverting to facts the cases cited by the petitioner may be considered. 8. In the case of Smt. Kesari Devi (supra), the moot question before the Court was whether the order of removal of Adhyakshas of Zila Panchayat by State Government was sustainable ? 9. In the aforesaid case a complaint had been moved by a defeated candidate was found to be not in accordance with rules, hence not maintainable. The Court also found the preliminary enquiry to be vitiated and no material before the State Government to order regular enquiry as none of the charges levelled against the petitioner relating to any kind of fraud, misrepresentation, misappropriation or embezzlement or involving moral turpitude whereas in the present case, there are serious charges of embezzlement and financial irregularities against the petitioner. 10. The case of Amin Khan (surpa) cited by the petitioner is one where question of locus standi to file special appeal was considered in the circumstances. The Court therein held that a Pradhan has no legal right to continue as one of the members of of three members committee, pending regular enquiry as a complainant, at the most can be examined a witness in enquiry but cannot be permitted to become a party to the lis, therefore, he had no right to maintain the appeal. 11. Similarly in the decision rendered in Dharam Raj (surpa) the Division Bench of this Court explained “person aggrieved” as one who is wrongly deprived of his legal entitlement but does not include any kind of disappointment or personal inconvenience. It is in this context the Court held that locus standi of a person aggrieved is one who aggrieved by an order can maintain a writ petition. 12. It is in this context the Court held that locus standi of a person aggrieved is one who aggrieved by an order can maintain a writ petition. 12. The case of Dharam Raj (supra) is one wherein suspension of licence of fair price shop was involved and was not one where actionable wrong was being considered in respect of fraud or embezzlement in a Government scheme by an elected Pradhan. 13. The last judgment relied upon by the learned counsel for the petitioner is of Narendra Kumar v. State of U.P. and others rendered by a Single Judge of this Court. This judgment also pertains to the question of locus standi. Paragraphs 31,32, 34 to 37 and 39 of the judgment read thus : “31. It is not in dispute that the State Government has delegated the powers to the District Magistrate. 32. It is, thus, seen that under Section 95(1)(g) of the Act, the District Magistrate can remove a Pradhan for the reasons mentioned in clauses (i) to (v). The proviso, however, stipulates that where in an enquiry held by such person and in such manner, as may be prescribed, a Pradhan is prima facie found to have committed the financial and other irregularities, such Pradhan shall cease to exercise and perform the financial and administrative powers and functions until he is exonerated of the charges in the final enquiry and such powers of the Pradhan shall be performed by a Committee consisting of three members of Gram Panchayat appointed by the District Magistrate. 34. It is seen that under Rule 3(1) of the Rules, any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the District Magistrate which shall be in the manner provided in sub-rule (2) of Rule 3. Under sub-rule (5) of Rule 3, a complaint which does not comply with any of the provisions of sub-rules (1) to (4) of Rule 3 shall not be entertained. Under Rule 4 of the Rules, the District Magistrate, on the receipt of a 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 a prima facie case for a formal enquiry in the matter. Under Rule 4 of the Rules, the District Magistrate, on the receipt of a 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 a prima facie case for a formal enquiry in the matter. Under Rule 5 of the Rules, where the District Magistrate is of the opinion, on the basis of the 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, he shall forthwith constitute a Three Member Committee and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated earlier, to hold the enquiry. The enquiry officer for conducting the preliminary enquiry should be the District Panchayat Raj Officer or any other ‘district level officer’ to be nominated by the District Magistrate. 35. It has, therefore, to be examined whether the aforesaid provisions of the Rules had been followed by the District Magistrate while passing the order under Section 95(1)(g) of the Act. 36. The records indicate that a complaint dated 18th April, 2012 was submitted by one Mohd. Taufeeq before the Block Development Officer regarding the illegalities committed by the Pradhan in the construction of the Rajiv Gandhi Sansadhan Sewa Kendra. The complaint was not submitted in the manner prescribed under sub-rules (2) to (4) of Rule 3 and nor was it submitted to the District Magistrate. It was addressed to the Block Development Officer who on his own constituted a three member committee to make an enquiry and submit a report and the report of the committee was merely forwarded by the Block Development Officer to the District Magistrate. This factual position has also been stated in the counter-affidavit filed by the applicants and is also admitted to the learned Standing Counsel. This factual position is also stated in the show-cause notice dated 30th May, 2012 issued by the District Magistrate. 37. The preliminary enquiry has to be conducted by an Enquiry Officer contemplated under Rule 2(c) of the Rules namely either the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate. The District Magistrate, as noticed hereinabove, had not nominated the Enquiry Officer and nor the members of the Committee were ‘district level officers’. The District Magistrate, as noticed hereinabove, had not nominated the Enquiry Officer and nor the members of the Committee were ‘district level officers’. The District Magistrate could form his prima facie satisfaction for holding a final enquiry only on the basis of the report submitted by the Enquiry Officer defined under Rule 2(c) of the Rules. 39. It is clear from the aforesaid decision of the Full Bench that the report of the committee constituted by the Block Development Officer on the complaint filed by Mohd. Taufeeq could not have formed the basis for the District Magistrate to cease the financial and administrative powers of the Gram Pradhan and nor could it form the basis for ordering the formal enquiry. It could, at best, be considered by the District Magistrate under his suo motu power to order a preliminary enquiry.” 14. No other point has been argued before us by counsel for the parties. 15. After hearing learned counsel for the parties and on perusal of the record it appears that a complaint was made against the petitioner regarding embezzlement of Government money. Thereupon an enquiry was conducted in which he was found guilty and a show-cause notice was served upon the petitioner to which he replied. District Panchayat Raj Officer was directed to lodge an FIR against him and recover the public money. Thereafter, the petitioner moved an application for re-enquiry on the ground that there was no Technical Officer as member of the enquiry committee and that enquiry was conducted in his absence. It appears that the Assistant District Panchayat Raj Adhikari (Technical) was a member of the committee which conducted the enquiry in presence of the petitioner under the Chairmanship of Sub-Divisional Magistrate, Konch and the prayer of the petitioner for re-enquire the matter was in the circumstances rejected by the Joint Development Commissioner on the ground that the matter has already been enquired. 16. In an intra Court appeal in Smt. Sangeeta Devi v. State of U.P., on similar facts where a proceeding under Section 95(1)(g) of the Act was initiated against the petitioner-appellant, the District Magistrate being satisfied with the report of the preliminary enquiry showing prima facie involvement of the petitioner-appellant in the alleged financial and other irregularities in exercise of the power conferred on him under the proviso to Section 95(1)(g) of the Act withdrew the financial and administrative power of the appellant. Aggrieved, the appellant preferred writ petition, which was dismissed by the writ Court mainly on the ground that the defence of the petitioner-appellant and sufficiency or insufficiency of the evidence in support of the allegations cannot be looked into as the formal enquiry was yet to be concluded and the order to suspend the financial and administrative power is an interim measure pending formal enquiry at that stage. 17. The Court held that there was no substance in the submission. The order impugned in the writ petition is passed under first proviso of Section 95(1) (g) of the Act, which empowers the State Government to withdraw financial and administrative powers and function of Pradhan or Up Pradhan, who is prima facie found to have committed financial and other irregularities until he is exonerated of the charges in the final enquiry and till then such power shall be exercised by a Committee consisting of three members of Gram Panchayat. 18. For ready reference, Section 95(1)(g) of the Act is extracted hereinafter: “Section 95(1)—The State Government may— (g) Remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayaki 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 charges for an offence involving moral turpitude. (iii) has abused his position as such or has persistently failed to perform the duties imposed by the Act or rules made thereunder or his continuance as such is not desirable in public interest, or has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) 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 the Scheduled Castes, the Scheduled Tribes or the Backward Classes, as the case may be. (iv) being a Sahyak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in 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 and in such manner as may be 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. 19. It is clear from the aforesaid that where a proceeding for removal of a Pradhan or Up-Pradhan or a Member of a Gram Panchayat is undertaken and the matter is being enquired under Section 95(1)(g) of the Act, the State Government is, if prima facie satisfied that the Pradhan or Up-Pradhan have committed financial or other irregularities, can cease his financial, administrative powers and functions, till he is exonerated of the charges in the final enquiry. 20. The power vested in the State Government under Section 95(1)(g) of the Act has been delegated to the District Magistrates vide Notification No. 1648/33-1-1997-123/97, Lucknow dated 30th April, 1997 issued by the State Government in exercise of powers under Section 96-A of the Act which enables the State Government to delegate all or any of the power under the Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit and proper. The State Government has framed Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the Rules) under Section 110 read with Clause (g) of Sub-section (1) of Section 95 of the Act. Rule 3 provides about procedure relating to complaints against Pradhan or Up-Pradhan. Rule 4 provides about preliminary enquiry. It reads as under: “4. Preliminary Enquiry.—(1) The State Government may, on the receipt of a 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 enquiry in the matter. Rule 4 provides about preliminary enquiry. It reads as under: “4. Preliminary Enquiry.—(1) The State Government may, on the receipt of a 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 enquiry in the matter. (2) The Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered.” 21. Thus, where a complaint is made against a Pradhan or Up-Pradhan under Rule 3 of the Rules, a preliminary enquiry is made to find out the truth as to whether the alleged complaint is vexatious, frivolous or mala fide etc. If in the preliminary enquiry some substance in the allegation and prima facie involvement of Pradhan or Up-Pradhan in the alleged financial and other irregularities is found from the report submitted therein, the State Government shall direct for formal enquiry under Rule 5 of the Rules which provides- “Where the State Government is of the opinion, on the basis of the 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 to proviso to Clause (g) of Sub-section 95, of the Act and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated under Sub-rule (2) of Rule (4), to hold the enquiry.” 22. From a plain reading of 1st proviso of Section 95(1)(g) read with Rule 4, it is evident that in the preliminary enquiry against Pradhan or Up-Pradhan the charges in the alleged complaint are not required to be noticed nor any opportunity is to be provided for the reason that it is merely a fact finding enquiry to ascertain the correctness of the allegations and to find out the bona fide of the complaint. If in the preliminary enquiry allegations are found to be baseless, the proceedings would be dropped. If in the preliminary enquiry allegations are found to be baseless, the proceedings would be dropped. However, the involvement of Pradhan or Up-Pradhan, if prima facie is found then only a regular enquiry is to be initiated under Rule 5 of the Rules whereunder the Enquiry Officer shall deliver a copy of the Articles of charge, the statement of the 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 his written statement of his defence within the specified time and to state whether he desires to be heard in person and to appear before him on the specified date and time. The detailed procedure has been prescribed for holding such enquiry in Rule 6 of the Rules. 23. In that case also, the learned counsel for the petitioner had contended that the appellant was not given sufficient opportunity to submit effective reply to the charges nor the copy of the enquiry report was provided, hence the impugned order withdrawing the financial administrative power deserves to be set aside as such the Court held that in the case in hand, the impugned order has been passed by the District Magistrate under the proviso to Section 95(1)(g) of the Act after receipt of the report in the preliminary enquiry made under Rule 4. It is apparent from the perusal of the order of the District Magistrate dated 30.3.2008 impugned in the writ petition (Annexure-8 to the writ petition) that upon receipt of the complaint against the petitioner-appellant, the District Social Welfare Officer, Kushi Nagar was nominated to hold preliminary enquiry vide order dated 3rd October, 2007. The District Social Welfare Officer, Kushi Nagar submitted report on 22nd December, 2007. In the report various irregularities alleged against the petitioner-appellant were prima facie found to be correct, hence notice was served on her on 14.1.2008 and 14.2.2008 under Section 95(1)(g) of the Act calling upon to show-cause pursuant to which show-cause was filed on 26.2.2008. The District Social Welfare Officer, Kushi Nagar submitted report on 22nd December, 2007. In the report various irregularities alleged against the petitioner-appellant were prima facie found to be correct, hence notice was served on her on 14.1.2008 and 14.2.2008 under Section 95(1)(g) of the Act calling upon to show-cause pursuant to which show-cause was filed on 26.2.2008. The District Magistrate since did not find any substance in the cause shown and having satisfied with the report in the preliminary enquiry wherefrom the appellant is prima facie found to have committed financial and other irregularities, passed the impugned order whereunder she has been prevented to exercise financial and administrative powers and functions till she is exonerated of the charges in the regular enquiry and also constituted Committee consisting of three Members of Gram Panchayat to exercise and perform the financial and administrative powers of the Panchayat. 24. In the instant case, however, the contention of the counsel for the petitioner that copy of the enquiry report was not provided and, therefore, the impugned order is bad, can also not be accepted as it has not been demonstrated before us or in the writ petition as to what prejudice has been caused on account of non-supply of the report. Admittedly after receipt of the show-cause notice, the petitioner had filed show-cause and nothing has been brought before us that she asked for copy of the report before furnishing show-cause, hence it does not lie in the mouth of the appellant at this stage to contend that in the absence of the copy of report provided to the appellant the order passed under the proviso to Section 95(1)(g) of the Act is vitiated. 25. That apart, having regard to the provisions of UP. Panchayat Raj Act and the Rules framed thereunder referred to above, we are of the view that the order withdrawing financial and administrative power and function of the Pradhan or Up Pradhan under the proviso to Section 95(1)(g) of the Act is in the nature of interim order pending enquiry to prevent misuse of financial and administrative power and function by the Pradhan facing charges of financial and administrative irregularities and thus, at this stage the Act or the Rule does not contemplate to provide any opportunity of hearing or show-cause or participation of Pradhan or Up Pradhan facing charges in the preliminary enquiry. In the case of Smt. Radhili Devi v. The District Magistrate, Padrauna and others, MANU/UP/1195/1997 : 1997 (1) AWC 251 , his Lordship sitting singly took a view that no opportunity of hearing is necessary before resorting to such interim measure as it is analogous to a suspension order passed against a Government servant and only at the stage of regular enquiry before passing final order of removal, opportunity of hearing is to be extended. Similar view was also expressed by a Division Bench of this Court in the case of Moti Lal v. District Magistrate, Lalitpur and others, MANU/UP/1093/2003: 2003(1) UPLBEC 736 , wherein their Lordships having taken note of the provisions contained in Rules 3 and 4 and proviso to Section 95(1)(g) of the Act, held that while holding preliminary enquiry the Enquiry Officer is not obliged to give opportunity to the appellant nor the rule requires holding of preliminary enquiry in the presence of the appellant. 26. We, with respect endorse the above view. Therefore, we do not find any substance in the contention that the impugned order has been passed in violation of the principles of natural justice nor we find any violation of prescription of law or any fault in the judgment impugned in this case. 27. For the reasons stated above, the writ petition is dismissed. No order as to costs. ——————