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2018 DIGILAW 26 (JHR)

Gita Devi v. State of Jharkhand

2018-01-04

RAJESH SHANKAR

body2018
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the memo No. 801 dated 13.10.2016 (Annexure-7 to the writ petition) issued by the Block Development Officer, Lesliganj (respondent No. 7) and memo No. 657 dated 8.10.2016 (Annexure-6 to the writ petition) issued by the Deputy Commissioner, Palamau (respondent No. 4) whereby the financial power of the petitioner being a Mukhiya has been seized. It has also been prayed for quashing the letter No. 713 dated 13.8.2016 (Annexure-4 to the writ petition; issued by the Deputy Development Commissioner-cum-District Programme Coordinator (respondent No. 5 and letter No. 604 dated 1.8.2016 (Annexure-3 to writ petition) issued by the Block Development Officer, Lesliganj (respondent No. 7) wherein certain financial irregularities alleged to have been committed by the petitioner, has been highlighted. 2. The factual background of the case as stated in the writ petition is that the petitioner is a Mukhiya of Gram Panchayat Sangbar under Lesliganj Block, District-Palamau (Jharkhand). She was allotted several projects including the projects under MGNREGA to be executed under her supervision with financial power for the said projects. The respondent No. 5 wrote a letter vide letter No. 537 dated 13.7.2016 to the respondent No. 7 informing inter alia that several irregularities were found in 8 projects on spot verification by the district inquiry team and the Block Development Officer-cum-Block Programme Officer in Sangbar Panchayat in the projects sanctioned under MGNREGA scheme and directed him to send recommendation to the Panchayati Raj Officer, Palamau for seizure of the financial power of the petitioner according to Panchayati Raj Act (Annexure-1 to the writ petition). The respondent No. 5 again wrote a letter being letter No. 587 dated 20.7.2016 to the Senior Officer, Lesliganj Block (Annexure-2 to the writ petition) to inquire and report about the irregularities as alleged against the petitioner. The respondent No. 7 thereafter wrote a letter bearing No. 604 dated 1.8.2016 (Annexure-3 to the writ petition) to the District Panchayat Raj Officer (respondent No. 6) with a recommendation to seize financial power of the petitioner due to the irregularities found in 8 MGNREGA projects. Subsequently, on 13.8.2016, the respondent No. 5 vide letter No. 713 dated 13.8.2016 (Annexure-4 to the writ petition) directed the respondent No. 6 to seize the financial power of the petitioner due to above irregularities. Subsequently, on 13.8.2016, the respondent No. 5 vide letter No. 713 dated 13.8.2016 (Annexure-4 to the writ petition) directed the respondent No. 6 to seize the financial power of the petitioner due to above irregularities. Subsequently the respondent No. 4 vide memo No. 657 dated 8.10.2016 (Annexure-6 to the writ petition) seized the financial power of the petitioner. On the basis of the letter dated 8.10.2016, the respondent No. 2 issued an order contained in Memo No. 801 dated 13.10.2016 (Annexure-7 to the writ petition) informing the petitioner that her financial power has been seized and the same has been delegated to the Up-Mukhiya i.e. respondent No. 9. In the meantime, the respondent No. 8 submitted enquiry report dated 31.8.2016 (Annexure-5 to the writ petition) pursuant to the direction of the respondent No. 5 whereby it was reported that no irregularity was found in the work done in the alleged 8 MGNREGA projects. The petitioner filed representations before the respondent No. 4 and respondent No. 6 and lastly before the Chief Secretary, Government of Jharkhand against the impugned orders, but no action was taken which gives rise to filing of the present writ petition. 3. The learned counsel appearing on behalf of the petitioner submits that the alleged inquiry by the District Level Inquiry Team was done behind the back of the petitioner and in fact the inquiry team did not visit the spot and merely prepared a table report against the petitioner. It is further submitted that though the respondent No. 5 issued letter to the Senior Officer, Lesliganj Block to inquire the allegation against the petitioner, however without waiting for his report, the respondent No. 5 hurriedly sent letter dated 13.8.2016 to the respondent No. 6 directing inter alia to seize the financial power of the petitioner on the basis of the alleged report of the District Level Inquiry Team. It is further submitted that the respondent authorities have passed the impugned orders ignoring the direction of the State Government issued under the signature of the Deputy Secretary, Panchayat Raj and NREP Department vide letter No. 975 dated 29.3.2014, whereby all the Deputy Commissioners have been directed not to seize the financial power of Mukhiya without approval of the State Government. It is further submitted that the said 8 projects, pertaining to construction and repair of ponds, ahar (traditional irrigation system) and dressing of the land of the villages of Sangbar Panchayat were sanctioned under MGNREGA scheme and all the works were executed satisfactorily under the supervision of the authorized government engineers who used to visit the spot time to time. On being satisfied with the work, the measurement books were prepared and the payments were made to the concerned workers. It is also submitted that the impugned orders have been passed in violation of the principles of natural justice as no show cause notice was given to the petitioner before passing the impugned orders. 4. The learned counsel appearing on behalf of the respondent-State submits that the respondents are duty bound to immediately check any embezzlement of government fund and as such the action taken by the respondents needs no interference. It is further submitted that the order of the Deputy Commissioner, Palamau (the respondent No. 4) has already been sent to the Secretary, Rural Development Department (Panchayati Raj), Jharkhand (respondent No. 2) vide letter No. 151/G.P. dated 20.2.2017 (Annexure-A to the counter-affidavit) for final concurrence of the seizure of financial power of the petitioner. It is further submitted that the District Level Enquiry team was constituted to find out the actual affairs at the work site of all the projects under MGNREGA scheme and thereafter the enquiry team visited the spot and prepared its report which led to passing of the impugned orders, thus it is incorrect to say that the enquiry team did not visit at the work site and only prepared the table report. The report of the respondent No. 8 dated 31.8.2016 did not falsify the allegation against the petitioner who has himself reported that it might be possible that work was done after lodging of the FIR as the same has been lodged by the respondent No. 7 vide memo No. 413 dated 11.6.2016. Moreover, the respondent No. 8 has not mentioned as to on what date and time he visited the spot between 20.7.2016 to 31.8.2016. The respondent No. 8 also did not record any statement of the villagers, thus the report did not convince the district administration to disbelieve the earlier report of the district enquiry team. Moreover, the respondent No. 8 has not mentioned as to on what date and time he visited the spot between 20.7.2016 to 31.8.2016. The respondent No. 8 also did not record any statement of the villagers, thus the report did not convince the district administration to disbelieve the earlier report of the district enquiry team. It is further submitted that the report of the respondent No. 8 was submitted after two months of lodging of the FIR, thus it might be possible that most of the works were done after institution of the FIR. The seizure of financial power is a safeguard to prevent any further mischief by the Mukhiya (the petitioner herein). It is also submitted that no notice was required to be issued to the petitioner before issuing the order to seize her financial power. 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner who is a Mukhiya in Sangbar Panchayat was allotted the several projects under MGNREGA scheme with all the financial powers. An enquiry of the work done under the said projects was done by district enquiry team and the respondent No. 7 wherein certain irregularities were found in the work done under the supervision of the petitioner which led to the filing of an FIR against her and also issuance of the impugned orders, whereby the financial powers of the petitioner has been seized and the same has been delegated to the Up-mukhiya i.e. respondent No. 9. Learned counsel for the petitioner has given much stress to the argument that the respondent No. 4 has no authority to seize the financial power of the petitioner in view of the direction issued by the State Government vide letter No. 975 dated 29.3.2014. I have perused the contents of the letter dated 29.3.2014 whereby the Deputy Secretary, Panchayati Raj and NREP Department, Government of Jharkhand has informed all the Deputy Commissioners that the State Government is only competent to seize the financial power of any Mukhiya or Up-Mukhiya and as such all the recommendations for seizure of financial powers are required to be sent to the State Government and only after the concurrence of the State Government, the said order(s) shall be made effective. The said instruction has been issued in the situation that though under section 64 of the Jharkhand Panchayat Raj Act, 2001, the power of suspension of any office bearer of a Panchayat is vested with the State Government, the Deputy Commissioners used to seize the powers of Mukhiya and to delegate it to other office bearers which was found not in consonance with law. Thus, the said direction has been issued only to supplement the relevant provisions referring to the jurisdiction of the State Government under the Act, 2001. The learned J.C. to G.P.-IV has neither questioned the said direction issued by the State Government nor denied the enforceability of the same, rather submits that vide letter dated 20.2.2017 (Annexure-A to the counter affidavit), the order dated 8.10.2016 passed by the respondent No. 4 has been sent to the State Government for concurrence, which in fact supports the argument of the learned counsel for the petitioner that the impugned order dated 8.10.2016 has been issued without prior approval of the State Government. In the letter dated 29.3.2014 itself, the Deputy Commissioners have been directed that the order of seizure of financial powers of Mukhiya/Up-Mukhiya will be made effective only after the concurrence of the State Government. However, in the present case, the respondent No. 4 has issued the impugned order of seizure of financial power of the petitioner without prior concurrence/approval of the State Government, thus on this score alone, the order passed by the respondent No. 4 appears to be without jurisdiction. So far the allegations and counter allegations of the petitioner and the respondents with regard to the financial irregularities are concerned, the same are purely the factual disputes which cannot be adjudicated in writ jurisdiction. 6. Under the facts and circumstances of the case, the impugned order dated 8.10.2016 passed by the respondent No. 4 and the consequential order dated 13.10.2016, passed by the respondent No. 7 are quashed and set aside being without jurisdiction. 7. However, the respondent No. 1 and 2 are at liberty to take appropriate decision in this regard in accordance with the procedure provided in the letter No. 975 dated 29.3.2014. 8. This writ petition is accordingly disposed of.