Research › Search › Judgment

Uttarakhand High Court · body

2016 DIGILAW 980 (UTT)

Budhi Ram v. State of Uttarakhand

2016-12-16

V.K.BIST

body2016
JUDGMENT : V.K. Bist, J. Petitioner has approached this Court seeking the following relief: “(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 20.11.2015 passed by respondent no. 2 (Annexure No. 1 to this writ petition).” 2. Briefly put, the case of the petitioner is as follows: In the year 2014, the petitioner was duly elected as Village Pradhan of Village Panchayat, Bhatad Chhautad, Development Block Chakrata, District Dehradun. According to the petitioner, the petitioner has been working for the development of the village to the entire satisfaction of the Gaon Sabha as well as of the villagers and there was no complaint against the petitioner, as the petitioner is a person of integrity and is of clear image. On 14.10.2015, a show cause notice under Section 95 (1) (g) of the U.P. Panchayat Raj Act, 1947 was issued to the petitioner by the respondent no. 2, wherein it was stated that, on the complaint of Smt. Balo Devi (respondent no. 5), an inquiry was conducted by the respondent no. 4 and, on inquiry, a charge of financial embezzlement of Rs. 31,000/- was framed against the petitioner. It is alleged that in the Village Panchayat Bhatad Chhautad, Development Block Chakrata, District Dehradun, there are two primary schools, one situated at Mandhad Bhatad and another is at Chhautad Bhatad. In the impugned order, it is stated that the education department was given Rs. 20,000/- each for construction of toilets in both the primary schools and Rs. 11,000/- each for repair of the schools building; but, in the Primary School Chhautad Bhatad, there was neither any construction of toilet nor there was any repair of the aforesaid school building and the money was spent on the other school i.e. on Mandhad Bhatad. The petitioner gave his reply to the said show cause notice and denied the charges framed against him. Thereafter, vide order dated 20.11.2015, the respondent no. 2 seized the financial and administrative power of the petitioner. Hence, this writ petition. 3. Learned Senior Advocate appearing for the petitioner would submit that dehors the relevant rules, the enquiry has been conducted by the Block Development Officer and not by the District Level Officer. Thereafter, vide order dated 20.11.2015, the respondent no. 2 seized the financial and administrative power of the petitioner. Hence, this writ petition. 3. Learned Senior Advocate appearing for the petitioner would submit that dehors the relevant rules, the enquiry has been conducted by the Block Development Officer and not by the District Level Officer. He submitted that, since the enquiry has not been conducted in accordance with the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, the order impugned deserves to be set aside. In support of his contention, learned Senior Advocate appearing for the petitioner relied on the judgments in the matter of Chandrajit Raj Bhar Vs. District Magistrate, Pilibhit and others, reported in (2002) 1 UPLBEC 582 , and in the matter of Smt. Shyam Wati Vs. State of U.P. and others, reported in 2013 (120) RD 738 . 4. In Chandrajit Raj Bhar Vs. District Magistrate, Pilibhit and others, reported in (2002) 1 UPLBEC 582 , the Allahabad High Court has held as follows: “10. A conjoint reading of Section 95 (1)(g) of Act of 1947 read with Rules 2(c), 4 and 5 of the Rules of 1997 leads towards an inescapable conclusion that the District Magistrate considering the preliminary enquiry report submitted by the District Panchayat Raj Officer and explanation if any submitted by a Pradhan or Up-Pradhan is to pass a speaking order either depriving a Pradhan or Up-Pradhan from performing his financial and administrative powers and functions or refused to pass such order on merits of each case. It is held that a Pradhan or Up-Pradhan cannot be deprived of his financial and administrative powers and functions in a perfunctory manner as has been done in the present case against the mandatory provisions envisaged under Section 95 (1)(g) of Act of 1947 and statutory Rules of 1997, unless statutory preliminary inquiry is held by the District Panchayat Raj Officer and in that enquiry he is prima facie found to have committed financial and other irregularities. Secondly, the Pradhans or Up-Pradhans before being deprived of to perform their financial and administrative powers and functions are also entitled to show cause to the preliminary enquiry wherein prima facie they are found to have committed financial or other irregularities. Secondly, the Pradhans or Up-Pradhans before being deprived of to perform their financial and administrative powers and functions are also entitled to show cause to the preliminary enquiry wherein prima facie they are found to have committed financial or other irregularities. Thirdly, after receipt of preliminary enquiry report from District Panchayat Raj Officer, if in such preliminary enquiry a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities, a copy of preliminary enquiry is to be made available to such delinquent Pradhan or Up-Pradhan asking his explanation, but if in preliminary enquiry conducted by District Panchayat Raj Officer nothing is found against him, question of depriving of financial or administrative powers and functions does not arise.” In Smt. Shyam Wati Vs. State of U.P. and others, reported in 2013 (120) RD 738 , the Allahabad High Court has held as follows: “43. It is to be noted that the decision making exercise on the part of enquiry committee while submitting the preliminary enquiry report should constitute of persons statutorily competent to apply mind and the decision making process of participation of some persons who are not statutorily competent cannot legally be made a basis for an action contemplated under the statute. The preliminary enquiry report submitted by the three member committee cannot be treated to be the enquiry report of the District Panchayat Raj Officer alone, as such, it can safely be concluded that the enquiry report submitted by the enquiry committee which neither appointed by the competent authority nor constituted of competent persons to hold the enquiry could be valid report for the purpose of taking a decision to cease the financial and administrative powers of the petitioner. 52. Thus, in view of the prescriptions made under Rules 2(c), 4 and 5 of the Enquiry Rules, there could be no escape from the conclusion that the enquiry has to be held by an Enquiry officer defined as such under Rule 2(c) and any enquiry held by a Committee with the participation of the public servants who could not be the Enquiry Officer at all, should not be taken and regarded at all as an enquiry report envisaged under Rule 4 of the Enquiry Rules.” 5. Grounds taken in the amended writ petition read as under: “14a. Grounds taken in the amended writ petition read as under: “14a. That the complaint, on which the enquiry was initiated, was not supported by the affidavit of the complainant Smt. Balo Devi and, as such, the enquiry could not be initiated against the petitioner in view of Rule 3 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. 14b. That the enquiry officer, who conducted the enquiry, was not a District Level Officer and, therefore, was not authorized to conduct the enquiry and to submit the preliminary enquiry report against the petitioner. 14c. That the entire enquiry has been conducted in violation of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, which are mandatory in nature, as such the entire enquiry is vitiated and the impugned order passed on the basis of said enquiry is not sustainable in the eye of law.” 6. Counter affidavit on behalf of respondent no. 3 has been filed. Reply given in the counter affidavit to paragraph nos. 14a, 14b & 14c of the writ petition is being reproduced below: “14. That in reply to the contents of para 14 A of the amended writ petition it is submitted that sub Clause-6 of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhans and Members) Enquiry Rules, 1997 clearly provides that the State Government may, on the receipt of a complaint referred to in Rule 3 or otherwise appoint an officer not below the rank of an Additional District Magistrate in the case of a Pramukh of Up-Pramukh and District Magistrate in the case of an Adhyaksha or Upadhyaksha to conduct a preliminary inquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter. 15. That in reply to the contents of para 14 B of the amended writ petition it is submitted that That the contents of para 4 of the writ petition it is submitted that the petitioner has misused the budget allotted for the construction of toilet at Primary School Manthat, Bhatad as well as the for the repairing work of school building the said illegal act of the petitioner has been brought into the knowledge of Hon’ble Minister Home Village Development Minor Irrigation Food Civil, Supply and Panchayati Raj, Government of Uttarakhand by the complainant Smt. Balaodevi, Ex-Pradhan, village Panchayat Bhatad-Chautad in writing. Whereupon the Hon’ble Minister directed the District Magistrate concerned to inquire into the matter and to proceed accordingly. The district Magistrate accordingly vide office letter no. 925@lkr&i0a@f’k0tkap@ 2014-15/dated 4-10-2015 under the provisions of 95 (1)(g) of the Panchayati Raj Act, 1947 (as applicable and adopted and amended in the State of Uttarakhand) has issued show cause notice to the petitioner. 16. That in reply to the contents of para 14 (C) of the writ petition it is submitted that under the Section 95 (1) of the Panchayat Raj Act the District Magistrate is the competent authority to initiate the disciplinary proceeding the guilty person.” 7. I have heard learned counsel for the parties and have perused the papers available on record. From the bare perusal of the counter affidavit filed on behalf of respondent no. 3, it transpires that specific grounds taken by the petitioner in the writ petition has not been properly replied by the respondents in the counter affidavit. In fact, learned Standing Counsel appearing for the State of Uttarakhand fairly submitted that he is not in a position to give reply to the averments made in paragraph nos. 14a, 14b and 14c of the writ petition. He also submitted that, in the counter affidavit, the said paragraphs have not been properly explained and, in fact, something else has been mentioned in the counter affidavit in regard to the said paragraphs. He fairly conceded that the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 are mandatory in nature and, in case, some order is passed in violation of the said Rules, the same may be set aside. 8. In view of the above discussion, the writ petition is allowed. Impugned order dated 20.11.2015 passed by the respondent no. 2 is hereby quashed. However, it will be open for the respondents to pass a fresh order in accordance with law. 9. There will be no order as to costs.