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2018 DIGILAW 701 (ALL)

SANGEETA PANDEY v. STATE OF Uttar Pradesh

2018-03-23

RITU RAJ AWASTHI

body2018
JUDGMENT Hon’ble Ritu Raj Awasthi, J.—Heard Mr. Asit Chaturvedi, learned Senior Advocate assisted by Mr. Raj Singh, learned counsel for the petitioner and Mr. Alok Sharma, learned Additional Chief Standing Counsel for the opposite party Nos. 1 to 3. Mr. Yogendra Nath Yadav, Advocate has appeared for the opposite party No. 4/Gaon Sabha. 2. The writ petition has been filed challenging the impugned order dated 1.9.2017, a copy of which is annexed as Annexure 1 to the writ petition, whereby the financial and administrative powers of the petitioner have been ceased in exercise of power under Section 95(1)(g) of Uttar Pradesh Panchayat Raj Act, 1947 and a Three Members Committee has been constituted to look after the work of Gram Panchayat Sandwa Chandrika, Vikas Khand Sandwa Chandrika, District Pratapgarh. 3. The facts of the case in narrow compass are as under : The petitioner was elected as Gram Pradhan in the panchayat elections 2015. As per the petitioner she had written a letter dated 2.1.2016 to Collector, Pratapgarh for getting permission to engage a private counsel to conduct three second appeals bearing Nos. 180 of 2015, 181 of 2015 and 182 of 2015 on behalf of the Gaon Sabha. The Gaon Sabha in its meeting dated 24.1.2016 had passed the proposal to engage an additional Advocate to conduct the said cases on behalf of the Gaon Sabha. 4. It is alleged that the Collector, Pratapgarh vide order dated 29.4.2016 had granted permission to engage a private counsel and thereafter Mr.Anurag Tiwari, Advocate was engaged to appear on behalf of the Gaon Sabha in the said pending appeals before the High Court. 5. Mr. Yogendra Nath Yadav, learned Standing Counsel for the Gaon Sabha vide letter dated 21.1.2017 had informed the District Magistrate, Pratapgarh that in the aforesaid appeals a private counsel had appeared on behalf of the Gaon Sabha without permission from him which is not permissible and asked whether he has to appear in these cases on behalf of the Gaon Sabha or not. 6. It was on the said letter that the District Magistrate had called for the report from the Senior Administrative Officer, Collectorate, Pratapgarh and the Senior Administrative Officer had submitted his report dated 8.3.2017 that the said permission dated 29.4.2016 is forged and has been obtained by fraud. It has not been issued by any competent authority. 6. It was on the said letter that the District Magistrate had called for the report from the Senior Administrative Officer, Collectorate, Pratapgarh and the Senior Administrative Officer had submitted his report dated 8.3.2017 that the said permission dated 29.4.2016 is forged and has been obtained by fraud. It has not been issued by any competent authority. The Gram Pradhan has acted against the interest of the Gaon Sabha to get this document fraudulently. Thereafter, the petitioner was required to submit her explanation. The petitioner had submitted her explanation and thereafter a show-cause notice dated 2.5.2017 under Section 95(1)(g) of the Act was issued to the petitioner to which she had submitted her reply on 9.5.2017. It is thereafter that vide impugned order dated 1.9.2017, the financial and administrative powers of the petitioner were ceased. 7. Mr. Asit Chaturvedi, learned Senior Advocate appearing for the petitioner has submitted that the order impugned is grossly wrong and illegal. It is not sustainable in the eyes of law. Rule 3 of Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, clearly provides the procedure, according to which any person making a complaint against the Pradhan may send his complaint to the State Government (herein the District Magistrate concerned as he has been delegated the powers of the State Government) and the said complaint has to be accompanied by own affidavit of the complainant alongwith the affidavit of all persons from whom he claims to have received information of facts relating to accusation. The said complaint shall be enquired into by holding a preliminary enquiry by the enquiry officer who is defined under Rule 2(c) of the Enquiry Rules. Submission is that no such complaint under Rule 3 of Enquiry Rules was filed and no preliminary enquiry was conducted by the competent authority before passing of the impugned order. 8. It is further submitted that the report of the Senior Administrative Officer dated 8.3.2017 cannot be treated to be a preliminary inquiry as first of all no preliminary inquiry by the inquiry officer as defined under Rule 2(c) of Enquiry Rules was held in this regard secondly the Senior Administrative Officer could not be authorized to hold any preliminary enquiry. It is further submitted that the report of the Senior Administrative Officer dated 8.3.2017 cannot be treated to be a preliminary inquiry as first of all no preliminary inquiry by the inquiry officer as defined under Rule 2(c) of Enquiry Rules was held in this regard secondly the Senior Administrative Officer could not be authorized to hold any preliminary enquiry. It is further submitted that the enquiry officer has been defined which means the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate. 9. It is contended that the power to cease financial and administrative powers of a Pradhan could not be exercised unless there is any financial irregularity. In this regard, Mr. Asit Chaturvedi has relied on the proviso to Section 95(1)(g) of the Act to assert that for the purpose of ceasing the financial and administrative powers of an elected Pradhan, it is strictly stipulated under the proviso to Section 95(1)(g) of the Act 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. Submission is that first of all for ceasing the financial and administrative powers of the Pradhan, a preliminary enquiry is required to be held and such preliminary enquiry shall be held by the competent authority and in such manner as may be prescribed. Moreover, only in case any financial and other irregularities have been committed by the Pradhan and after the preliminary inquiry the competent authority has found prima facie satisfaction then only the financial and administrative powers of the Pradhan can be ceased. 10. Mr. Asit Chaturvedi has laid great emphasis on the word ‘and’ while arguing that it is not that on ‘other irregularities’ only the powers of Pradhan can be ceased. In case there are financial irregularities coupled with other irregularities only then the financial and administrative powers of a Pradhan can be ceased. 10. Mr. Asit Chaturvedi has laid great emphasis on the word ‘and’ while arguing that it is not that on ‘other irregularities’ only the powers of Pradhan can be ceased. In case there are financial irregularities coupled with other irregularities only then the financial and administrative powers of a Pradhan can be ceased. His contention is that unless and until there are ‘financial irregularities’ irrespective of the fact as to whether ‘other irregularities’ have been committed or not the financial and administrative powers of Pradhan cannot be ceased. 11. It is also submitted by him that the financial and administrative powers have been ceased by the impugned order dated 1.9.2017, however till date detailed inquiry has not been initiated as no charge-sheet has been served on the petitioner. Under Rule 6 of Enquiry Rules, the procedure for holding a detailed inquiry is provided. As per Rule 6(1) of Enquiry Rules, the substance of the imputations, and a copy of the complaint referred to in Rule 3, shall be forwarded to the Inquiry officer for service on the Pradhan, however no such procedure has been adopted in the instant case till date. As such the intention of the opposite parties are writ large which smacks malice and arbitrariness. 12. It is also submitted that the engagement of private counsel by the Gaon Sabha was not done with any ill intention nor against the interest of the Gaon Sabha as the said counsel has not acted against the interest of the Gaon Sabha. 13. Mr.Alok Sharma, learned Additional Chief Standing Counsel, appearing for the opposite parties has tried to defend the impugned order on the basis of the counter-affidavit. 14. It is submitted that a fraud was committed by the petitioner by getting a forged document, granting permission to engage a private counsel, prepared and on the basis of the said alleged forged document, the petitioner had proceeded to engage a private counsel which is not permissible. The Gaon Sabha is to be represented by the nominated Standing Counsel and cannot be represented by a private counsel unless the required permission is granted by the Collector of the district concerned. The Gaon Sabha is to be represented by the nominated Standing Counsel and cannot be represented by a private counsel unless the required permission is granted by the Collector of the district concerned. It is further submitted that when this information was brought to the knowledge of the District Magistrate, the District Magistrate had called for a report from his office and the Senior Administrative Officer, Collectorate, Pratapgarh on the basis of information gathered by him had submitted the report dated 8.3.2017. It was on the basis of the said report that the District Magistrate was, prima facie, satisfied that the petitioner has abused her position and has acted against the interest of the Gaon Sabha and, therefore, vide impugned order, has ceased the financial and administrative powers of the petitioner. 15. Submission is that the first and foremost requirement under Section 95(1)(g) of the Act is the, prima facie, satisfaction of the District Magistrate. There is no requirement that there shall be a complaint and on the basis of the said complaint a preliminary inquiry shall be held and only thereafter the District Magistrate shall act and proceed to pass an order ceasing the financial and administrative powers of the Pradhan. 16. It is further submitted that the competent authority can on his own initiate the proceedings under Section 95 (1)(g) of the Act and for that purpose the requirement of Rule 3 of Enquiry Rules is not mandatory. It is also submitted that no preliminary inquiry was required if the competent authority was having prima facie satisfaction regarding the correctness of the accusation against the Pradhan. Submission is that from the records, it was evident that the Pradhan has abused her position and has committed fraud, as such the competent authority was fully empowered to act and proceed under Section 95(1)(g) of the Act and pass an order to cease the financial and administrative powers of the petitioner. 17. Mr. Alok Sharma has laid emphasis on words ‘other irregularities’ which is mentioned under the proviso to Section 95(1)(g) of the Act to submit that in case the Pradhan has committed any serious irregularity which may not be financial irregularity then also the competent authority is empowered to pass an order restraining him from performing his financial and administrative powers. 18. Alok Sharma has laid emphasis on words ‘other irregularities’ which is mentioned under the proviso to Section 95(1)(g) of the Act to submit that in case the Pradhan has committed any serious irregularity which may not be financial irregularity then also the competent authority is empowered to pass an order restraining him from performing his financial and administrative powers. 18. Submission is that the words ‘financial and other irregularities’ mentioned in the proviso to Section 95(1)(g) of the Act shall be given wider meaning and in case there is any such serious irregularity which may not be a financial irregularity but may lead to abuse of the position by the Gram Pradhan then the competent authority can exercise the powers given to him under Section 95(1)(g) of the Act to cease the financial and administrative powers of the Pradhan. In support of his submissions, he has relied on a judgment of this Court in the case of Nanhey v. State of Uttar Pradesh and others, 2011 (1) AWC 881 (All). 19. I have considered the submissions made by the parties’ counsel and gone through the records. 20. The first and foremost question involved in this writ petition is whether the financial and administrative powers of an elected Pradhan can be ceased in exercise of powers under Section 95(1)(g) of the Act by the competent authority without holding any preliminary enquiry by the competent person. 21. Section 95(1)(g) of the Act relates to the removal of a Pradhan. It is provided that a Pradhan can be removed if he has absented himself without sufficient cause for more than three consecutive meetings or sittings, refused to act or becomes incapable of acting for any reason whatsoever or he is accused of or charged for an offence involving moral turpitude or has abused his position as such or has persistently failed to perform the duties imposed by the Act or rules made hereunder or his continuance as such is not desirable in public interest, or has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the Scheduled Castes, the Scheduled Tribes or the Backward Classes, as the case may be. The Pradhan can also be removed being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5-A. Section 95(1)(g) of the Act is reproduced below : “95. Inspection—(1) The State Government may- (a).... (b).... (c).... (d).... (e).... (f).... (g) remove a Pradhan (Up Pradhan) or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he- (i) absents himself without sufficient cause from more than three consecutive meetings of sittings, (ii) refused 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 this 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 Panchat takes active part in politics, or (v) suffers from any of the disqualification mentioned in clauses (a) to (m) of Section 5-A: [Provided that where in an enquiry held by such person and in such manner as may be prescribed a Pradhan or Up Pradhan is prima facie found to have committed financial and other irregularities, such Pradhan or Up Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government]: (gg)...... (h)........ Provided that - (i) No action shall be taken under Clause (f), Clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed.” 22. (h)........ Provided that - (i) No action shall be taken under Clause (f), Clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed.” 22. The proviso to Section 95(1)(g) of the Act provides 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. 23. The proviso to Section 95(1)(g) of the Act is very much clear. It clearly means that for the purpose of ceasing the financial and administrative powers of an elected Pradhan, an inquiry shall be held and the said inquiry shall be held by such person and in such manner as may be prescribed. The inquiry in this regard means the preliminary inquiry as provided under Rule 4 of Enquiry Rules and the words ‘by such person’ means the preliminary inquiry shall be done by the inquiry officer as defined under Rule 2(c). In this regard the Rules 2,3 and 4 of the Enquiry Rules are relevant and the same are reproduced below: “2. Definitions.—In these rules unless the contest otherwise requires- (a) ‘Act’ means the United Provinces Panchayat Raj Act, 1947; (b) ‘Pradhan’ and Up-Pradhan’, shall respectively (c) ‘Enquiry Officer’ means the District Panchayat Raj Officer or any other district level Officer, to be nominated by the District Magistrate.” (d) ‘Section’ means a section of the Act. 3. Procedure relating to complaints.—(1) any person making complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any other 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 affidavit in support thereof and also affidavit of all persons from whom he claims to have received information of facts relating to accusation, verified before a notary, together with all documents in his possession or power pertaining to 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. (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 the complaint as well as each of its annexure shall be submitted by the complainant. (5) A complaint which does not comply with any of the foregoing provisions of this Rule 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 may, on the receipt of complaint or report referred to in Rule 3 or otherwise order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is prima facie case for a formal inquiry in the matter.” 24. As such, for the purpose of ceasing of financial and administrative powers of a Pradhan, a preliminary inquiry by the Enquiry Officer as defined under Rule 2(c) of Enquiry Rules, is mandatory and it is only on the basis of the preliminary inquiry that the competent authority can draw his prima facie satisfaction to pass an order to cease the financial and administrative powers of the elected Pradhan. 25. This view finds support from the Full Bench judgment of this Court in the case of Vivekanand Yadav v. State of Uttar Pradesh and another, 2010(10) ADJ 1 (FB). Paragraphs 78,79 and 88 of the said Full Bench judgment are reproduced below: “78. The proceeding for removal has to be conducted in accordance with Rule 6 onwards of the Enquiry Rules, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. However, where right to exercise financial and administrative power is also to be ceased then procedure in Rule 3 to 5 has to be followed otherwise there is no necessity to follow them. 79. In other words, preliminary enquiry may not be necessary if the proceeding for removal is to be undertaken without ceasing the power of the pradhan. With this in background, lets consider the meaning of the word ‘otherwise’ in Rule 5. 88. 79. In other words, preliminary enquiry may not be necessary if the proceeding for removal is to be undertaken without ceasing the power of the pradhan. With this in background, lets consider the meaning of the word ‘otherwise’ in Rule 5. 88. Under proviso to Section 95(1)(g) right to exercise financial and administrative powers can only be ceased if the DM prima facie finds that the pradhan was guilty of financial and other irregularities in an enquiry (preliminary or fact finding) by such person and in the manner prescribed. It is only on such a report that might come within the purview of the word ‘otherwise’ in Rule 5 of the Rules. All kinds of reports or information may not be relied under Rule 5 lest the rule may be hit by the statutory provision.” 26. So far as the contention of learned counsel for the petitioner that the order under Section 95(1)(g) of the Act cannot be passed unless there is a complaint under Rule 3 of Enquiry Rules and the preliminary enquiry as contemplated under Rule 4 of Enquiry Rules is held, suffice is to note that in Paragraph 107 of the Full Bench judgment of this Court in Vivekanand Yadav (Supra), the Full Bench has held as under: “107. Our conclusions are as follows: (a) The DM may ask the preliminary enquiry to be conducted by any officer defined under Rule 2(c) of the Enquiry Rules on a complaint or a report under Rule 3 or any other material or information. He has suo motu powers as well to order a preliminary enquiry; (b) A pradhan has no right to object that complaint or report is not in accordance with Rule 3 of the Enquiry Rules; (c) A pradhan is neither entitled to be associated in the preliminary enquiry nor is entitled to the copy of the preliminary report. However, before an order ceasing the financial and administrative power is passed, his explanation or point of view or the version to the charges should be obtained and considered; (d) In the first and the third WPs, the impugned orders have been passed on the basis of preliminary report after obtaining and considering the explanation of the pradhan. However, before an order ceasing the financial and administrative power is passed, his explanation or point of view or the version to the charges should be obtained and considered; (d) In the first and the third WPs, the impugned orders have been passed on the basis of preliminary report after obtaining and considering the explanation of the pradhan. The impugned orders in these WPs cannot be faulted on this ground; (e) In our opinion the word ‘otherwise’ in Rule 5 includes and the DM can rely upon the following reports only to cease financial and administrative power and direct the final enquiry: A report of a person who is also defined as an enquiry officer under Rule 2(c) of the Enquiry Rules—irrespective of whether he was directed by the DM to conduct the preliminary inquiry or not; A preliminary enquiry report conducted by the DM himself. (f) In the third writ petition, the report was submitted by the DPRO, who is defined as an enquiry officer under Rule 2(c) of the Enquiry Rules. The impugned order cannot be faulted on the ground that the DPRO was not asked by the DM to conduct the preliminary enquiry; However, it is open to the petitioners in the first and third WPs to raise other points before the appropriate bench.” 27. Since this Court has come to the conclusion that the competent authority cannot pass an order under Section 95(1)(g) of the Act ceasing the financial and administrative powers of an elected Pradhan unless a preliminary inqiury has been made by the inquiry officer, who is defined under Rule 2(c) of Enquiry Rules, the impugned order dated 1.9.2017, is not sustainable. 28. The writ petition is allowed. 29. The order impugned dated 1.9.2017 (Annexure 1, to the writ petition) passed by the opposite party No. 2, is hereby quashed with liberty to the opposite party No. 2/District Magistrate, Pratapgarh to pass an order in accordance with law in the light of the observations made hereinabove. 30. The other contentions raised in this regard are not required to be considered at this stage. They are left open to be considered in some other relevant case.