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Allahabad High Court · body

2018 DIGILAW 2590 (ALL)

Mahmood Ansari v. State Of U. P.

2018-12-21

PANKAJ BHATIA

body2018
JUDGMENT : Pankaj Bhatia, J. 1. The present petition has been filed for quashing the order dated 27.8.2018 passed by the District Magistrate, Jaunpur whereby financial and administrative powers of the petitioner has been seized, pending final enquiry. 2. The facts, in brief, are that the petitioner is a duly elected Pradhan of Gram Panchayat, Raipurkala, Vikas Khand, Sujanganj District Jaunpur in the general Panchayati election held on 22.10.2010. Subsequently, after the expiry of the first term, the petitioner was re-elected as Pradhan in the month of December, 2015. During pendency of the term of the petitioner as Pradhan, some complaints were filed alleging certain mis-conducts against the petitioner. The said complaints were enquired into and an enquiry report dated 18.4.2018 was filed by the District Cane Officer, Jaunpur and Assistant Engineer, DRDA, Jaunpur. Based upon the said enquiry, an order dated 2.7.2018 was passed by the District Magistrate seizing the financial and administrative powers of the Pradhan in exercise of powers under Section 95 (1)(g) of the U.P. Panchayat Raj Act, 1947. 3. The petitioner has challenged the order dated 2.7.2018 by means of a Writ Petition No.24805 of 2018 which came to be allowed vide an order dated 24.7.2018 whereby this Hon'ble Court was pleased to quash the order dated 2.7.2018 and remanded back the matter to the District Magistrate, Jaunpur to pass fresh orders in accordance with law. After the remand of the matter, the District Magistrate has passed an order dated 27.8.2018 seizing the financial and administrative powers of the petitioner. The said order is impugned in the present writ petition. 4. The District Magistrate, Jaunpur while passing the order dated 27.8.2018 extensively relied upon the enquiry report conducted by the District Cane Officer and Assistant Engineer, DRDA dated 18.4.2018 which was also the basis for passing the earlier order dated 2.7.2018. 5. The counsel for the petitioner has drawn attention of this Court towards the provisions of Section 95 (1)(g) of the U.P. Panchayat Raj Act, 1947 which provides for the removal of Pradhan on the happening of events stipulated in the said Section. 5. The counsel for the petitioner has drawn attention of this Court towards the provisions of Section 95 (1)(g) of the U.P. Panchayat Raj Act, 1947 which provides for the removal of Pradhan on the happening of events stipulated in the said Section. The District Magistrate by virtue of the said Section 95(1)(g) is empowered to pass an order of removal of an elected Pradhan and pending final enquiry, the financial and administrative functions are to be performed by a Committee consisting of three Members as indicated in the proviso of Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947. The petitioner has further drawn the attention of this Court to the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. 6. Rule 3 of the said Rule provides for a complaint to be made by a complainant duly supported by an affidavit of the complainant as well as the affidavit of any other person from whom the information is said to have derived. 7. Rule 4 of the said Rules provides for the manner in which the District Magistrate shall proceed after the receipt of the complaint referred to in Rule 3. The provision of Rule 4 is that on receiving a report referred to in Rule 3, the State Government or the District Magistrate shall order an enquiry to be conducted known as 'preliminary enquiry' with a view to finding, if there is prima-facie case for a proper enquiry in the matter. The said enquiry is to be conducted by Enquiry Officer. The term of Enquiry Officer is defined in Section (2) (c) of the Rules which defines Enquiry Officers means Deputy Panchayat Raj Officer or any other District level officer to be nominated by the District Magistrate. 8. Rule 2 (c) is as under : 'Enquiry Officer' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.? 9. In view of the specific provisions of the Rules, counsel for the petitioner has argued that the Rules are mandatory and the Enquiry Officer who has conducted the enquiry and on whose enquiry the impugned order has been passed is not an officer, who is competent under the Rules and thus, the impugned order relying upon an enquiry which is without jurisdiction, is liable to be held bad in law. 10. 10. Counsel for the petitioner has again reiterated that the enquiry dated 18.4.2018 by two persons where the District Cane Officer and an Assistant Engineer, DRDA which is not even Government organization. 11. Counsel for the respondent on the other hand has relied upon para-5 of the short counter affidavit sworn by Arvind Malappa Bangari wherein it has been stated 'that in compliance of order dated 24.7.2018 passed by this Hon'ble Court, the District Magistrate by the order No.2097 dated 11.8.2018 the implementation of earlier order dated 2.7.2018 has been abolished and directed the District Panchayat Raj Officer, Jaunpur to examine the file and submit the file within 7 days for passing the order under the provisions of U.P. Panchayat Raj Act, 1947.' 12. It has been further stated in para-6 of the short counter affidavit that the petitioner is found guilty and thus, his financial and administrative rights of the village Pradhan have been seized and the final enquiry in the matter, the District Development Officer, Jaunpur and Assistant Engineer, DRDA District Jaunpur have been jointly nominated as Enquiry Officers vide order dated 13.9.2018. There is no averment in the counter affidavit to the effect that the earlier enquiry dated 18.4.2018 having been conducted by officers not authorized under the Rules can be relied upon or can be made basis for passing an order under Section 95(1)(g) of the Act. 13. Counsel for the respondents further argued that the enquiry report dated 18.4.2018 is by officers as defined under Rule 2 (c) of the Rules as the District Cane Officer is District level officer nominated by District Magistrate and thus, empowered to hold enquiry and further that the Assistant Engineer, DRDA was the person only for verification of the work done and he was not the Enquiry Officer. 14. I have heard learned counsel for the petitioner and learned standing counsel and have noted the submissions as above. 15. The bare perusal of the enquiry report dated 18.4.2018 indicates that the same was signed by two persons, one being the District Cane Officer and the other being Assistant Engineer, DRDA, Jaunpur and, further the impugned order itself records that enquiry was conducted jointly by District Cane Officer with Assistant Engineer, DRDA and both had signed the said enquiry thus, the submission of learned standing counsel that the Assistant Engineer was only to verify the work done is not accepted. Further more, the said enquiry report was the basis for passing the earlier order dated 2.7.2018 which was set aside in the earlier Writ Petition No.24805 of 2018 although the said writ petition was allowed on the ground of non-application of mind by the District Magistrate. Irrespective of the decision in Writ Petition No.24805 of 2018, the Court is bound to consider whether the preliminary enquiry conducted against the petitioner on 18.4.2018 by the two persons named in the said enquiry report is within the jurisdiction as provided under Rule 4 of the Rules and whether the two persons namely District Cane Office and the Assistant Engineer, DRDA would qualify to fall within the definition of Enquiry Officer as defined in Rule 2 (c) of the Rules. 16. Counsel for the petitioner also urged that there is no provision under the Act or the Rules to provide for a multi enquiry officers as has been done vide order dated 18.4.2018. 17. Counsel for the petitioner has relied upon the judgment of this Hon'ble Court in the case of Narendra Kumar Vs. State of U.P. and others [ 2013(1) ADJ 228 ] wherein the entire Act and the Rules were considered by this Court. Reliance is based in Paragraphs 19, 20 & 21 of the said judgment which are reproduced below:- "19. 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. 18. 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. 20. 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. 21. 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." 19. The Court after going through the paragraphs of the said judgment, provisions of the Act and the Rules also analyzed the definition of enquiry officer as defined under Rule 2(c) of the said Rules. 20. This Court on the perusal of the Act and the Rules is of the clear view that an elected representatives can be removed only and strictly in accordance with law and in this regard the law which provides for removal of an elected representative has to be strictly construed. The enquiry report dated 18.4.2018 being conducted by two persons is not contemplated either under the Act or the Rules and further more, the Assistant Engineer, DRDA is not even District level officer as contemplated under Rule 2(c) of the said Rules. As the order impugned is based upon the said enquiry report dated 18.4.2018, the order impugned is held to be bad in law. 21. In view of the submissions made above, the order dated 27.8.2018 (Annexure-1 to the writ petition) is hereby quashed. However, it is open to the respondents to initiate and proceed against the petitioner after following the Rules 3 & 4 of the Rules, if so desired by the respondents, in accordance with law. 22. The writ petition is, accordingly, allowed with no order as to costs. 23. After the order was dictated in the open Court, a mention was made by Sri Mahendra Bahadur Singh, Advocate requesting that he may be heard. The Court accepted the said request vide order dated 18.12.2018 and posted the matter for further hearing on 21.12.2018. 24. In pursuance to the order dated 18.12.2018 Ms. Vijeta Singh has argued on behalf of the complainant that in terms of the judgment of this Hon'ble Court in the case of Vivekanand Yadav Vs. State of Uttar Pradesh in Writ Petition No. 36881 of 2008. This Hon'ble Court in Para-33 has recorded as under: "In all the aforesaid alternatives, a preliminary enquiry is conducted and a preliminary report is there. State of Uttar Pradesh in Writ Petition No. 36881 of 2008. This Hon'ble Court in Para-33 has recorded as under: "In all the aforesaid alternatives, a preliminary enquiry is conducted and a preliminary report is there. The question is, which one of these can be acted upon under Rule 5 to cease the power under proviso to Section 95 (1) (g) of the Panchyat Raj Act. According to, The petitioners only first of the aforesaid report can be relied upon; The respondents all five reports can be relied upon. IN our opinion, answer lies somewhere in between and only the first four reports can be so relied. There is no dispute so far as first contingency is concerned. The fifth one has to be rejected. IN case it is accepted, then this would make Rule 3(6) otiose. IN our opinion this cannot be the case. However this cannot be said about contigencies number two to four. Rule 6 provides a detailed procedure for the final enquiry. However, there is no detailed procedure provided for the preliminary enquiry under Rule 4. A pradhan is not required to be associated in the preliminary enquiry. The; procedure provided in Rules 6 to 8 is for the final enquiry and not for the preliminary enquiry. A report by an enquiry officer defined under Rules 2(c) is also a report by a person prescribed. It is not necessary for the enquiry officer to conduct the preliminary inquiry only on the direction given by the DM. His job is to submit a report, so that the DM may take a decision, Whether there is prima facie case against the pradhan or not; and Whether the final enquiry should be held after ceasing his powers." Her submission is that from the perusal of the observations made in Para-33, it is clear that as no detailed procedure is provided in the preliminary enquiry under Rule-4 and that the duty of the enquiry officer is to submit a report, therefore, it cannot be said that association of a technical member would violate the provision of Rule-4 or will be against the mandate of definition of Enquiry Officer as defined under Rule 2(c) of the Enquiry Rules. She further draws the attention of this Court towards an application filed by the petitioner himself wherein he had requested the District Magistrate to get the matter enquired into either by a District Level Officer or any technical officer in the interest of justice. In view of the said submissions, the counsel for the complainant further goes to argue that in any even the financial and the administrative powers to the petitioner should not be restored. From the perusal of the judgment in the case of Vivekanand Yadav it does not bear out that the Court considered the true meaning of the definition of Enquiry Officer as defined under Rule 2 (c) of the Rules and to the effect whether a person who is not a District Level Officer whether can be associated and can be part of the enquiry thus the judgment in the case of Vivekanand Yadav has no application to the facts of the present case. As regards the other submission made at the Bar, I have not gone into the merits of the allegations and the writ petition was allowed only on the limited technical ground that the enquiry which is the basis for passing of the impugned order was not conduced by the persons duly authorized under the Rules and as such the order was quashed without going into the merits of the allegations which was left open to be considered by the District Magistrate if deemed appropriate. In view of the submission recorded above, there is no reason to change the judgment as dictated. The writ petition is allowed in terms of the judgment already dictated.