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2018 DIGILAW 283 (ALL)

KAFIA v. STATE OF Uttar Pradesh

2018-02-02

RAJESH SINGH CHAUHAN

body2018
JUDGMENT Hon’ble Rajesh Singh Chauhan, J.—Heard Sri Gaurav Mehrotra, learned counsel for the petitioner and Sri Alok Sharma, learned Additional Chief Standing Counsel for the State-respondents. 2. By means of this writ petition, the petitioner has impeached the order dated 20.12.2017 bearing Order No. 8572/C, passed by the District Magistrate, Gonda, whereby the financial and administrative powers of the petitioner, who is the Village Pradhan of Village-Tikaria, Development Block-Pandri Kripal, District-Gonda, have been ceased invoking the provisions of Section 95 (1) (g) of Uttar Pradesh Panchayat Raj Act, 1947 (here-in-after referred to as the “Act 1947”). 3. The grounds to assail the impugned order dated 20.12.2017 are that the said order has been issued in a sheer illegal and arbitrary manner de-horse the procedure prescribed in Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Rules, 1997 (here-in-after referred to as the 1997 Rules) and also in violation of law laid down by the Full Bench of this Hon’ble Court in Re : Vivekanand Yadav v. State of Uttar Pradesh and others, 2010(10) ADJ 1 (FB). 4. The petitioner is an elected Pradhan of Village-Tikaria, Development Block-Pandri Kripal, District-Gonda since December, 2015 and the tenure of the petitioner would be expiring in the month of December, 2020. 5. On the complaint of certain persons, the District Magistrate, Gonda constituted three members Enquiry Committee comprising the District Panchayat Raj Officer, Gonda, Block Development Officer, Development Block-Pandri Kripal, District-Gonda and one Junior Engineer of Rural Engineering Services, Development Block-Pandri Kripal, District-Gonda for making preliminary inquiry/fact finding inquiry. 6. As per the learned counsel for the petitioner, the aforesaid preliminary inquiry/fact finding inquiry was conducted behind the back of the petitioner inasmuch as she was not associated with inquiry. The aforesaid committee submitted the preliminary inquiry report on 3.11.2017, which is contained as Annexure 8 to the writ petition. 7. Thereafter, a show-cause notice dated 9.11.2017 was issued by the District Magistrate to the petitioner under Rule 256 of Uttar Pradesh Panchayat Raj Rules, 1947 read with Section 95 (1) (g) of the Act, 1947 requiring the petitioner to submit her explanation/reply alongwith evidences within fifteen days. The aforesaid show-cause notice was served to the petitioner on 16.11.2017. 8. 7. Thereafter, a show-cause notice dated 9.11.2017 was issued by the District Magistrate to the petitioner under Rule 256 of Uttar Pradesh Panchayat Raj Rules, 1947 read with Section 95 (1) (g) of the Act, 1947 requiring the petitioner to submit her explanation/reply alongwith evidences within fifteen days. The aforesaid show-cause notice was served to the petitioner on 16.11.2017. 8. The petitioner, thereafter, submitted her tentative reply on 30.11.2017 in the absence of the complete material for furnishing her proper reply e.g. copy of the complaint/affidavit of the complainants and the statement of the complainants etc. The aforesaid reply has been annexed as Annexure 10 to the writ petition. By means of reply dated 30.11.2017, the petitioner has vehemently submitted that since the relevant material has not been supplied to her, therefore, she was not able to furnish her proper reply. However, she submitted that the allegations levelled against her are false and frivolous as she has discharged her duties as Pradhan with utmost sincerity and honesty. 9. Thereafter, the impugned order dated 20.12.2017 has been passed by the District Magistrate, Gonda under Section 95 (1) (g) of the Act, 1947 ceasing the financial and administrative powers of the petitioner. 10. Sri Mehrotra has submitted that the three Members Committee was not constituted strictly in terms of Rule 2 (c) of 1997 Rules as two out of three officers are not a District Level Officer. Besides, while passing the impugned order dated 20.12.2017 the dictum of Full Bench of this Court rendered in the case of Vivekanant Yadav (supra) was not followed. Now, the final enquiry report dated 15.1.2018 has been submitted by the Soil Conservation Officer, District-Gonda is in violation of Rules 6 and 7 of 1997 Rules, inasmuch as a mechanism is prescribed under Rule 6 of 1997 Rules for conducting the enquiry but the requirement of Rule 6 has absolutely been ignored by the Enquiry Officer while submitting the final enquiry report dated 15.1.2018. 11. Per contra, Sri Alok Sharma, learned Additional Chief Standing Counsel has submitted, on the strength of the counter-affidavit filed on 18.1.2018, that the order dated 20.12.2017 passed by the District Magistrate/Prescribed Authority, Gonda is perfectly justifiable and passed strictly in accordance with law. Alongwith the counter-affidavit Sri Sharma has filed an order dated 25.10.2017 passed by the District Magistrate/Prescribed Authority, Gonda constituting the three members Committee, as aforesaid. Alongwith the counter-affidavit Sri Sharma has filed an order dated 25.10.2017 passed by the District Magistrate/Prescribed Authority, Gonda constituting the three members Committee, as aforesaid. Sri Sharma has also filed a final enquiry report dated 15.1.2018 submitted by the Soil Conservation Officer, District-Gonda. Sri Sharma has submitted that since the enquiry has finally been concluded on 15.1.2018 and the consequential orders would be passed, therefore, this writ petition may be dismissed. 12. Sri Gaurav Mehrotra, learned counsel for the petitioner has filed rejoinder-affidavit on 23.1.2018 denying the averments of the counter-affidavit, reiterating the submissions and contentions of the writ petition. Sri Mehrotra has categorically submitted that none of the grounds of the writ petition have been addressed by the competent authority by filing the counter-affidavit, therefore, the writ petition is liable to be allowed with costs. 13. I have heard the rival submissions of learned counsel for the parties and perused the records. 14. The impugned order for ceasing the financial and administrative powers of the Gram Pradhan has been passed by the District Magistrate exercising powers under Section 95(1)(g) of the Act. It will, therefore, be useful to reproduce Section 95(1)(g) of the Act which is as follows : “95. (1). The State Government may— (g) remove a Pradhan. Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabhandhak Samiti or a Panch, Sahayak 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 charged 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 (iii-a) 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 Sahayak 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 is prima facie found to have committed financial and other irregularities such 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.” 15. It is not in the dispute that the State Government has delegated the powers to the District Magistrate. 16. 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. 17. There is a detailed procedure prescribed under Rules 3, 4, 5, 6, 7 & 8 of the 1997 Rules regarding making of a complaint against a Pradhan, the preliminary enquiry and the Enquiry Officer and the same are as follows : “3. Procedure relating to complaints.—(1) Any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any officer empowered in this behalf by the State Government. (2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant’s own affidavits in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation. (2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant’s own affidavits in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation. (3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits, respectively. (4) Not less than three copies of complaint as well as each of its annexures shall be submitted by the complainant. (5) A complaint which does not comply with any of the foregoing provisions of this rules shall not be entertained. (6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule, if a complaint against a Pradhan or Up-Pradhan is made by a public servant. 4. Preliminary Enquiry.—(1) The State Government, 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 find out if there is a 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. 5. 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 by proviso to clause (g) of sub-section (1) of 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.” 6. Procedure of the enquiry.—(1) The substance of imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry officer by the State Government. Procedure of the enquiry.—(1) The substance of imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry officer by the State Government. (2) The Inquiry officer shall draw up- (a) the substance of imputations into definite and distinct articles of charge; and (b) a statement of imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained. (3) The Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of 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 within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified. (4) On receipt of the written statement of defence, the inquiry officer shall enquire into such of that articles of charges as are not admitted and where all articles of charges have been admitted in the written statement of defence, the Inquiry officer shall record his findings on each charge after taking such evidence as he may think fit. (5) If the person who has not admitted any of the articles of charges in his written statement of defence, appears before the Inquiry Officer, he shall ask him where he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiry officer shall record he plea, sign the record and obtain the signature of that person, and return a finding of guilt in respect of those charges. (6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence,- (a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents specified in the list referred to in sub-rule (2); (b) submit a list of witnesses to be examined on his behalf; (c) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for discovery or production of any documents that are relevant to the inquiry an are in the possession of the State Government, but not mentioned in the list referred to in sub-rule (2). (7) The person against whom enquiry is being held may take the assistance of any other person to present the case on his behalf, and the inquiry office may appoint any person as a presiding Officer to assist him in conducting the inquiry: Provided that a legal practitioner shall not be engaged or appointed under this sub-rule. (8) If the person applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule 92), the Inquiry officer shall furnish him with such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved. (9) The Inquiry officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition: Provided that the Inquiry officer may; for the reasons to be recorded in writing, refuse to requisition such of the documents as are, in his opinion, not relevant to the case. (10) On receipt of the requisition referred to in sub-rule (9, every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Officer: Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any such documents would be against the public interest o security of the State, it shall inform the Inquiry officer accordingly and such Inquiry Officer shall, on being so informed, communicate the information to the person against whom the inquiry is being held and withdraw the requisition made by him for the production or discovery of documents. (11) On the date fixed for enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall be examined, by the Inquiry officer by or on behalf of the complainant, if there is one and may be cross-examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be examined by the Inquiry officer or the complainant, as the case may be, on any point on which they have been cross-examined, but not on any new matter, without the leave of the Inquiry officer. (12) The Inquiry officer may allow production of evidence not included in the list given to the person against whom the inquiry is being held, or may itself call for new evidence or recall and re-examine any witness and in such case the said person shall be entitled to have if her demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry Officer for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record, the Inquiry officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice. Note—New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Note—New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called from only when there is an inherent lacuna or defect in the evidence which has been produced originally. (13) When the evidence for proving the articles of charge against the person against whom inquiry is being held is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the defence is made orally, it shall be recorded and the said person shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the complainant, if any. (14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiry officer according to the provisions applicable to the witnesses for proving the articles of charge. (15) The Inquiry officer may, after the person against whom inquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him. (16) The inquiry officer after completion of the production of evidence, hear the complainant, if any and the person against whom enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases. (17) If the person to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry officer o otherwise fails or refuses to comply with the provisions of this rule, the Inquiry officer may hold the enquiry ex parte. (18) Whenever Enquiry Officer after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiry Officer, the inquiry Officer so succeeding may act on the evidence so recorded by his predecessor or partly or recorded by himself. Provided that if the succeeding inquiry officer is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice he may recall, examine, cross-examine and re-examine any such witness as herein before provided. 7. Report of the Enquiry Officer—After the conclusion of the enquiry, the Enquiry Officer shall prepare a report, which shall contain- (a) the articles of charge and the statement of the imputations; (b) the defence of the person against whom the enquiry has been held; (c) the assessment of the evidence in respect of each article of charge; (d) the findings on each article of charge and reasons therefor. Explanation.—If in the opinion of the Enquiry Officer the proceedings of the enquiry establish any article of charge different from the original articles of charge, he may record his findings on such article of charge. Provided that the findings on such article of charge shall not be recorded unless the persons against whom the enquiry has been held has earlier admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such articles of charge. 8. The Enquiry Officer shall conclude the enquiry within six months from the date of receipt of complaint and forward to State Government the records of the enquiry, which shall include- (a) the report prepared by him under Rule; (b) the written statement of defence, if any, of the person against whom the enquiry has been held; (c) the oral and documentary evidence produced during the course of the enquiry; (d) written briefs, if any, filed during the course of the enquriy; and (e) the orders, if any, made by the State Government and the Enquiry Officer in regard to the enquiry.” 18. Rule 2(c) of the Rules defines ‘Enquiry Officer’ and is as follows : “2.(c) ‘Enquiry Officer’ means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.” 19. Rule 2(c) of the Rules defines ‘Enquiry Officer’ and is as follows : “2.(c) ‘Enquiry Officer’ means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.” 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 find 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. Rule 6 (1) of 1997 Rules specifically mandates that the substance of imputations shall be forwarded to the Enquiry Officer by the State Government. Rule 6 (2) further mandates that the Enquiry Officer shall draw up the substances of imputations into the definite and distinct articles of charge and the statement of imputations in support of each article of charge, which shall content a statement of all the relevant facts and list of documents. Rule 6 (3) to Rule 6 (18) further mandates the steps to conduct and conclude the enquiry. Rule 6 (3) to Rule 6 (18) further mandates the steps to conduct and conclude the enquiry. Rule 7 mandates that after the conclusion of enquiry, the Enquiry Officer shall prepare a report which shall contents the article of charges, statement of imputations, defence of person against whom the enquiry has been held, assessment of evidence in respect of each article of charge and findings of each article of charges and reasons therefor. Rule 8 mandates that the Enquiry Officer shall conclude the enquiry within six months from the date of receipt of the complaint. 20. 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. 21. The record indicates that the complaint against the petitioner has been made in the month of September/October, 2017 inasmuch as it has nowhere been indicated categorically as to when the complaint against the petitioner was made. Thereafter, vide order dated 25.10.2017, the District Magistrate/Prescribed Authority constituted three Members Committee comprising the District Panchayat Raj Officer, Gonda, Block Development Officer, Development Block-Padari Kirpal, District-Gonda and one Junior Engineer of Rural Engineering Services for conducting preliminary enquiry. The aforesaid Committee has submitted the enquiry report on 3.11.2017. Admittedly, out of three officers of the Committee, two officers were not the District Level Officer, as the aforesaid fact has not been disputed in the counter-affidavit. The perusal of the impugned order dated 20.12.2017 reveals that none of the submissions of the petitioner so raised in the reply to the show-cause notice has been considered by the District Magistrate/Prescribed Authority before passing the impugned order. As a matter of fact, it appears that the Prescribed Authority has not taken into consideration the explanation of the petitioner before passing the impugned order. Further, the bare perusal of the findings of the final enquiry report dated 15.1.2018 submitted by the Soil Conservation Officer, District-Gonda reveals that the requirements of Rules 6 & 7 of 1997 Rules have not been taken into account inasmuch not a single step of Rule 6 has been followed. Since the requirement of Rule 6 has not been followed, the mandatory requirement of Rule 7 could not have been followed as the requirement of Rule 7 is depend upon the mandatory requirement of Rule 6. 22. Since the requirement of Rule 6 has not been followed, the mandatory requirement of Rule 7 could not have been followed as the requirement of Rule 7 is depend upon the mandatory requirement of Rule 6. 22. The bare perusal of the final enquiry report dated 15.1.2018 reveals that the Enquiry Officer has not conducted any enquiry and reiterated the contents of the impugned order dated 20.12.2017 without associating the petitioner with the enquiry. 23. The first step in the enquiry to be conducted under Rule 6 is the preparation of the substances of imputations by the Enquiry Officer, into definite and distinct articles of the charges, alongwith the statement of imputations in support of each articles of charge, containing a statement of all the relevant persons and list of documents including the list of witnesses by whom such articles are prepared to be proved. 24. To be precise, the Enquiry Officer has to prepare a charge-sheet wherein not only the charges are to be innumerated but also list of documents relied upon and the list of witnesses, sought to be relied on in support of charges is to be mentioned. The charge-sheet has to be served upon the petitioner containing specific and definite charges, which has not been served upon the petitioner in this case. Thereafter, the Enquiry Officer shall serve the notice to the Village Pradhan concerned against whom the action is warranted to furnish the written statement and his/her defence and also to statement whether he/she wants an opportunity of personal hearing. Thereafter, the oral enquiry would be conducted strictly in compliance of the provisions of natural justice. 25. In the instant case, neither the Enquiry Committee was constituted as the provisions of Rule 2 (c) of 1997 Rules nor the enquiry was conducted and concluded in terms of Rule 6 of 1997 Rules. Besides, the entire exercise against the petitioner has been done in violation of law laid down by the Full Bench of this Court in re: Vivekanand Yadav case (supra). 26. Besides, the entire exercise against the petitioner has been done in violation of law laid down by the Full Bench of this Court in re: Vivekanand Yadav case (supra). 26. Learned counsel for the petitioner has drawn attention of this Court towards the judgments of Full Bench of This Court rendered in the cases of Vivekanand Yadav v. State of Uttar Pradesh and others, 2010(10) ADJ 1 (FB), which has been followed in the case of Shyama Wati v. State of Uttar Pradesh and others, 2013 (31) LCD 1054 , in support of his arguments that the Enquiry Officer under Rule 2 (c) of 1997 Rules must be a District Level Officer. The relevant paras of the judgments of Shyama Wati v. State of Uttar Pradesh and others, 2013 (31) LCD 1054 , are reproduced here-in-below : 26. Submission is that the phrase ‘in an enquiry held by such person and in such manner as may be prescribed’ is very vital. The person to hold enquiry and the manner of holding enquiry for prima facie satisfaction in regard to commission of financial and other irregularities by a Pradhan stands prescribed under the Rules known as Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred as the Enquiry Rules). Rule 4 of the Enquiry Rules deals with the preliminary enquiry and Rule 5 deals with the cessation of the financial and administrative powers of a Pradhan during pendency of the final enquiry. 30. The term ‘Enquiry Officer’ stands defined in Rule 2 (c) as amended vide notification dated 5.10.2001 w.e.f. 5.10.2001 and the said rule on reproduction reads as under: “2 (c) ‘Enquiry Officer’ means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.” 33. It is further submitted that no public servant can be part of preliminary enquiry envisaged under Rule 4 of the Enquiry Rules who is not a District level officer having been nominated by the District Magistrate for conducting the preliminary enquiry and no public servant who is not a District level officer can even be nominated as Enquiry officer for conducting preliminary enquiry into the allegations of the financial loss or irregularities against a Pradhan. 36. 36. It is relevant to mention here that both the sides i.e. petitioner and the opposite parties in support of their arguments have laid great emphasis on the decision of the Full Bench of this Court in the case of Vivekanand Yadav v. State of Uttar Pradesh and another; 2010(10) ADJ 1 (FB) which constitutes a binding precedence. Paragraphs 90 and 91 of the Full Bench judgment deserve to be a quote and are quoted as under: “90. Rule 2(c) defines ‘Enquiry Officer’. It means the DPRO or any other district level officer to be nominated by the D.M. The following contingencies may be there: [i] A complaint can be made directly to the DM who may ask the enquiry officer as defined under Rule 2(c) to conduct a preliminary inquiry under Rule 4; and [ii] A complaint can be made directly to the enquiry officer defined under Section 2(c), who may submit a report without the DM asking for it; or [iii] A complaint can be made to the DM with copy to the enquiry officer, who may submit a report without the DM asking for it; or [iv] A DM can himself conduct a preliminary enquiry; or [v] A report can be submitted by any other public servant.” 91 In all the aforesaid alternatives, a preliminary enquiry is conducted and a preliminary repot 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 Panchayat 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” 37. I am of the considered view that who can hold preliminary enquiry under Rule 4 of the Enquiry Rules is no more res integra after the decision of Full Bench of this Court in the case of Vivekanand Yadav (supra). 39. It is also to be noted that the said enquiry committee was not appointed by the competent authority i.e. District Magistrate as it was constituted by the order of the Chief Development Officer, Unnao. 39. It is also to be noted that the said enquiry committee was not appointed by the competent authority i.e. District Magistrate as it was constituted by the order of the Chief Development Officer, Unnao. The committee was comprising of two officers who, though, are the public servants but are not such public servants who could be the district level Officers, as such, they could not be nominated by the District Magistrate as Enquiry Officer as defined under Rule 2 (c) of the Enquiry Rules. 43. It is to be observed that the intention underlying the provisions contained under Rule 95 (1)(g) of the Act together with the proviso attached to it and the scheme of the Enquiry Rules is to protect a Pradhan, who is a democratically elected person, from subjection to arbitrariness and to minimize the area of discretion in the authority vested with the jurisdiction to exercise the powers of the State Government in the matter of removal of a Pradhan or in the matter of cessation of financial and administrative powers till conclusion of the final enquiry. Such safeguards are in tune to the law laid down by the Apex Court in the case of Sub-Divisional Officer, Sadar, Faizabad v. Shambhoo Narain Singh; 1969 (1) SCC 825, a judgment rendered by a larger Bench of the Apex Court comprising of three Hon’ble Judges, wherein it has been held that the relationship between a Pradhan and the State Government is not that of a Master and Servant and a Pradhan could not be suspended as a Government servant. Paragraphs 5, 6, 7 and 8 of this judgment deserve a quote and, accordingly, are quoted below : “5. A faint attempt was made to show that the relationship between the State Government and the Pradhans is that of master and servants and that being so the State Government has competence to require Pradhans not to discharge their functions as Pradhans during the pendency of an enquiry into the charges made against them. A faint attempt was made to show that the relationship between the State Government and the Pradhans is that of master and servants and that being so the State Government has competence to require Pradhans not to discharge their functions as Pradhans during the pendency of an enquiry into the charges made against them. It was urged that if the Court is pleased to hold that the relationship between the State Government and the Pradhans is that of a master and the servants then the appellant could call into aid the rule laid down by this Court in Management of Hotel Imperial, New Delhi v. Hotel Workers’ Union; T. Cajee v. H. Jormanik Siem; R.P. Kapur v. Union of India; and Balwant Rai Ratilal Patel v. State of Maharashtra. This is a wholly untenable contention. A Pradhan cannot be considered as a servant of the Government. He is an elected representative. There is no contractual relationship between him and the Government much less the relationship of master and servant. As mentioned earlier his rights and duties are those laid down in the Act. Therefore, the rule laid down I the above cited decisions is wholly inapplicable to the facts of this case. In this case there is no question of suspending a servant from performing the du ties of his office even though the contract of service is subsisting. In the case of a master and his servant it is a well established right of the master to give directions to his servant relating to his duties. That power includes within itself the right to direct the servant to refrain from performing his duties but that does not absolve the liability of the master to pay the remuneration contracted to be paid to the servant unless otherwise provided in the contract even during the period the servant is required not to perform his duties. 6. The Gaon Sabha is the creature of a statute. Its powers and duties as well as the powers and duties of its officers are all regulated by the Act. Hence no question of any inherent powers arises for consideration. See Smt. Hira Devi and others v. District Board, Shahjahanpur. 7. The only other contention advanced is that power claimed should be held to be an essential power for the proper discharge of the conferred power. Hence no question of any inherent powers arises for consideration. See Smt. Hira Devi and others v. District Board, Shahjahanpur. 7. The only other contention advanced is that power claimed should be held to be an essential power for the proper discharge of the conferred power. It was urged that without such a power, charges framed against any office-bearer cannot be properly inquired into as he may utilize his office to interfere with the course of enquiry and the possibility of his continuing to misuse the office during the pendency of the enquiry cannot be ruled out. 8. It is well recognized that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the Court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power. We are not satisfied that the power to place under suspension an officer is absolutely essential for the proper exercise of the power conferred under Section 95(1) (g). It cannot be said that the power in question cannot be properly exercised without the power to suspend pending enquiry. The mere possibility of interference with the course of enquiry or of further misuse of powers are not sufficient to enlarge the scope of a statutory power. If it is otherwise the mere power to punish an offender would have been held sufficient to arrest and detain him pending enquiry and trial. There would have been no need to confer specific power to arrest and detain persons charged with offences before their conviction.” 44. In a catena of decisions, the Apex Court has held that if Statute provides for an action on the basis of report submitted by an officer or on the basis of conclusions drawn by an officer, then the action cannot be taken nor conclusions can be drawn on the basis of any report submitted or on the basis of conclusions drawn by a person who is not Statutorily empowered to do so, even though an officer submitting a report or drawing a conclusion can be a person higher in rank to an officer statutorily competent to submit a report or to draw conclusions. 51. 51. 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. 57. The full Bench case of Vivekanand Yadav (Supra) has been relied upon in a recent decision of this Court as in Narendra Kumar v. State of U.P., 2013(1) ADJ 228 . The relevant paragraphs 20, 21, 23 and 27 are quoted hereunder: “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. If 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 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. 23. The order passed by the District Magistrate does not convey the impression that the complaint was filed by Mohd. 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. 23. The order passed by the District Magistrate does not convey the impression that the complaint was filed by Mohd. Taufeeq before the Block Development Officer who constituted a Committee to submit the report and the District Magistrate passed the order for ceasing the financial and administrative powers of the Gram Pradhan on the basis of the report submitted by the Committee. The order of the District Magistrate, on the other hand, gives an impression that on the complaint filed Mohd. Taufeeq, an enquiry was got conducted through the Block Development officer and the order was passed on the basis of the report submitted by the Block Development Officer. Learned Counsel for the petitioner is justified in asserting that the said statement was made in the impugned order to give an impression that the ‘district level officer’ had conducted the preliminary enquiry whereas the factual position is otherwise. In fact, in the show-cause notice dated 30th May, 2012 issued by the District Magistrate, it was correctly stated that the complaint was submitted to the Block Development officer who constituted a committee and the committee submitted a report which was forwarded to the District Magistrate by the Block Development Officer. 27. It has now to be examined whether even after setting aside the order dated 7th July, 2012, a direction can be given for holding a formal enquiry as contemplated under Rule 5 of the Rules. This issue was examined by the Division Bench of the Court in Smt. Kesari Devi (supra) and it was also observed: “115. Learned Counsel for the petitioner invited the attention of the Court to another feature of this case and submitted that once the basic procedure of preliminary enquiry fall through as being invalid, the consequential action taken by the State Government by holding a regular enquiry and passing the impugned order has also to necessarily be treated to be invalid. 116. There can be no dispute ..... the settled legal proposition that if an order is bad in its inception, it cannot be made good by efflux of time or by subsequent improvement. 116. There can be no dispute ..... the settled legal proposition that if an order is bad in its inception, it cannot be made good by efflux of time or by subsequent improvement. In the case Chandra Gogoi v. State of Assam and others, (1998) 3 SCC 381 , the Hon’ble Court held that the writ Court should not validate an action which was not lawful at inception. 117. If the basic order falls as illegal, invalid or void the consequential order cannot be given effect to as it automatically becomes inoperative. 118. In Badrinath v. Government of Tamil Nadu and others, (2000) 8 SCC 395 , the Court held as under : “This flows from the general principle applicable to “consequential orders”. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime-like the recommendation of the State and by the UPSC and the action taken thereon-would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders.” 119. The Apex Court held that if the basic order stands vitiated, the consequential order automatically falls.” 27. This Court allowed the Writ Petition bearing Writ C-No. 6459 of 2015; Netra Pal Singh v. State of Uttar Pradesh and 3 others vide judgment and order dated 25.2.2015. The relevant operative portion of the aforesaid judgment is being reproduced here-in-below : “In view of the aforesaid discussion, I am of the considered opinion that the enquiry either preliminary or final in nature has to be conducted by an Enquiry Officer as defined under Rule 2(c) of the Rules 1997. Rule 2(c) of the Rules 1997 permits the enquiry by District Panchayat Raj Officer or any district level officer to be nominated by the District Magistrate. Indisputably, the matter in question has been enquired by the Sub Divisional Officer who is below the rank of district level officer, therefore, I am of the view that the enquiry suffers from jurisdiction, consequently the order based on said enquiry is unsustainable.” 28. Indisputably, the matter in question has been enquired by the Sub Divisional Officer who is below the rank of district level officer, therefore, I am of the view that the enquiry suffers from jurisdiction, consequently the order based on said enquiry is unsustainable.” 28. However, Sri Alok Sharma learned Additional Chief Standing Counsel has drawn attention of this Court towards the judgment of this Court in Smt. Malti Devi v. State of Uttar Pradesh and others, 2008 (1) UPLBEC 920; decided on 19.2.2008 and submits that the District Magistrate can appoint any officer as Enquiry Officer as this is the subjective satisfaction of the District Magistrate. Learned Additional Chief Standing Counsel referred in para9 and 11 and some portion of para-12 of the aforesaid judgment as under : 9. Tine word ‘district level officer’ has not been further defined in the Act or the Rules. The submission, that it must be read in the context namely that the officer should be equivalent in the rank to District Panchayat Raj Officer does not find support from the object and purpose of the Act and the Rules. The basis of an enquiry against the Pradhan is the complaint supported by the affidavit of the complainant or otherwise, when such information is received. The preliminary enquiry is made to find out prima facie truth in the complaint. If the allegations are found to be prima facie true and are serious in nature, the District Magistrate may cease the administrative and financial powers of the Pradhan. If the allegations are not so serious the matter may be dropped, or further enquiry may be directed not be directed. The District Magistrate may order a ‘three-member committee’ to be constituted under Rule 5 to further enquire into the charges and in such case a detailed procedure is to be followed under Rules 6, 7 and 8 is to be followed. 11. The object and purpose of the Act, and the nature of the office held by the Pradhan, requires that the District Magistrate has to be prima facie satisfied with the truth of the allegations in the complaint and the material on the basis of which he may proceed to take further action in the matter. Such material may be collected by any officer nominated by him. Such material may be collected by any officer nominated by him. The word ‘district level officer’ as such should not be confined only to the head of the department of the district stationed at the district headquarters. The term at best may indicate a responsible officer. It is the District Magistrate, who has to ultimate satisfy with the material collected by the officer. The Courts need not insist that such officer should be equivalent of the rank of District Panchayat Raj Officer or should at least be heading any department in the district. Such a blind adherence to law would be too rigid and superfluous interpretation of Rule 4 of the Rules of 1997. It is the material collected satisfies the District Magistrate, and is more relevant than the status held by the enquiry officer, looses its significance. 12. ........The Pradhan may allege mala fide, bias or prejudice, if there is any, against the enquiry officer. His insistence, that irrespective of the sufficiency or relevancy of the material the enquiry is vitiated, if it is conducted by an officer, who is lesser in status than District Panchayat Raj Officer, is incorrect and would not be taken as a ground to challenge the order...........” 29. As per my view, the judgment of Smt. Malti Devi (supra) cannot supersede the judgment of Smt. Shyama Wati (supra), which has been decided on 13.4.2013 and has not been assailed before the Hon’ble Apex Court, as intimated by the learned counsel for the parties. Further, the subsequent judgment in re: Netra Pal Singh (supra), which was finally decided on 25.2.2015 whereby this Court has interpreted the provisions of Rule 2 (c) of 1997 Rules as interpreted in the case of Smt. Shyama Wati (supra). Further, vide para-59 of the judgment of Smt. Shyama Wati (supra), the decision of Smt. Malti Devi (supra) has been considered. 30. Further, vide para-59 of the judgment of Smt. Shyama Wati (supra), the decision of Smt. Malti Devi (supra) has been considered. 30. Learned counsel for the petitioner has also drawn attention of this Court towards the judgments of Smt. Chinta Yadav v. State of Uttar Pradesh and others, (2008) ESC (All.) 1673; Subhash Yadav v. State of Uttar Pradesh and others, (2009) (1) UPLBEC 189 and Chandrajeet Rai Bhar v. District Magistrate, Pilibhit and others, (2000) (1) UPLBEC 582, in support of his legal arguments that if the elected Village Pradhan is deprived of his administrative and financial powers, reasons ought to be given as to why the reply to the show-cause notice was not satisfactory. Learned counsel for the petitioner has submitted that in all the aforesaid cases, this Hon’ble Court has held in absence of giving such reasons, the order cannot be sustained. 31. In the instant case, the perusal of impugned order dated 20.12.2017 reveals that none of the submissions of the petitioner so given in reply to the show-cause notice has been considered. Further, the Prescribed Authority has not recorded any reason as to why the reply of the petitioner was not satisfactory. As a matter of fact, it appears that the reply of the petitioner was not even taken into account, which makes the order dated 20.12.2017 nullity in the eyes of law. 32. In view of the foregoing discussions, I am of the view that the submission of learned counsel for the petitioner has substance and the writ petition deserves to be allowed. 33. In the result, the writ petition is allowed. The impugned order dated 20.12.2017, passed by the District Magistrate, Gonda, as contained in Annexure 1 to the writ petition, is hereby quashed. However, liberty is given to the District Magistrate to pass fresh order strictly in accordance with law. 34. No order as to cost.