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2019 DIGILAW 1413 (ALL)

Naseem v. State of U. P.

2019-05-23

SIDDHARTH

body2019
JUDGMENT : Siddharth, J. 1. Heard Sri Pankaj Kumar Gupta, learned counsel for the petitioner, learned standing counsel for respondent Nos. 1 to 4 and Sri Pawan Kumar Shukla and Sri Siddharth Nandan on behalf of the complainant, who has filed caveat in this writ petition. 2. The petitioner has approached this Court against the order dated 30.3.2019 passed by the District Panchayat Raj Adhikari, Moradabad, suspending the financial and administrative powers of petitioner, who is stated, to be nominated Pradhan in the temporary vacancy occurring on account of removal of earlier Pradhan. 3. Learned counsel for the petitioner has submitted that petitioner has been nominated as Pradhan, as per Section 12-J of U.P. Panchayat Raj Act, 1947, in a temporary vacancy and without any preliminary inquiry as contemplated under U.P. Panchayat Raj. (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 his financial and administrative powers have been seized. The complaint of the complainant was accepted by the District Magistrate without any inquiry as per Rule 4 of the aforesaid Rules. It has further been submitted that as per law, District Panchayat Raj Adhikari, Moradabad, is not competent to pass the impugned order and it was for the District Magistrate to have passed such an order on the basis of preliminary inquiry report. Further submission is that provisions of Section 12-J of U.P. Panchayat Raj Act are relevant only for the purpose of nomination of the Pradhan on the sudden vacancy caused on the post and it is not a provision, which provides for any procedure for removal of such a Pradhan. Withdrawal of the money alleged against the petitioner was made for the development work and in case, Secretary, Neeraj Kumar Singh, did not submitted the details of the amount of withdrawal to the District Magistrate or District Panchayat Raj Adhikari, petitioner cannot be faulted with. 4. Learned standing counsel has received instructions dated 21.5.2019 from District Magistrate, Moradabad, which are taken on record. It has been stated in the instructions that the petitioner was given show cause notice on 14.3.2019 with regard to the complaint received from the complainant, but the petitioner did not submitted any reply to the same. Thereafter, on the basis of the inquiry report submitted by the District Panchayat Raj Adhikari, Moradabad on 29.3.2019, the financial and administrative power of the petitioner was suspended on 30.3.2019 by District Panchayat Raj Adhikari. himself. Thereafter, on the basis of the inquiry report submitted by the District Panchayat Raj Adhikari, Moradabad on 29.3.2019, the financial and administrative power of the petitioner was suspended on 30.3.2019 by District Panchayat Raj Adhikari. himself. The first information report, under Section 409/420, I.P.C., was also lodged against him. The order dated 30.3.2019 was passed by District Panchayat Raj Adhikari, Moradabad, suspending the financial and administrative power of the petitioner is absolutely illegal. 5. Sri Siddharth Nandan, learned counsel appearing on behalf of complainant has pointed out that this Court in the case of Mohd. Yasin Khan v. State of U.P. through Secretary, Panchayat Raj U.P., Lucknow, 2008 (1) ADJ 510 : 2008 (1) AWC 539 , has held that nominated Pradhan can be removed by the District Magistrate from the office without following procedure provided for removal of the duly elected Pradhan. He has further submitted that there was ample evidence against the petitioner and the respondent No. 5, Neeraj Kumar Singh, Gram Panchayat Adhikari, who misappropriated public money and therefore, financial and administrative power of petitioner has rightly been suspended. He has further submitted that in the case of Jitendra Kumar Shukla Vs. State of U.P. and 3 others, passed in Writ-C No. 27408 of 2017 on 28.7.2017, this Court has held that where Pradhan is in jail, the power of Pradhan, under Section 12-J of U.P. Panchayat Raj Act, can be exercised by District Panchayat Raj Adhikari. 6. After hearing rival contentions, it appears that the impugned order dated 30.3.2019 has been passed by District Panchayat Raj Adhikari, Moradabad, on the basis of his own inquiry report dated 29.3.2019. Therefore, it is clear that the officer, who has investigated the complaint against the petitioner has also passed the order suspending financial and administrative power of the petitioner against the Rules of 1997. It is District Magistrate, who is competent to pass an order suspending the financial and administrative power of the petitioner. 7. Further in the case of Kamlesh Kumari v. State of U.P. and others, 2015 Laws (All) 331, this Court has found that the judgment in the case of Mohd. Yasin Khan (supra) does not lay down correct law. 8. It is District Magistrate, who is competent to pass an order suspending the financial and administrative power of the petitioner. 7. Further in the case of Kamlesh Kumari v. State of U.P. and others, 2015 Laws (All) 331, this Court has found that the judgment in the case of Mohd. Yasin Khan (supra) does not lay down correct law. 8. In view of the above consideration, this Court is of the view that the impugned order dated 30.3.2019 passed by the District Panchayat Raj Adhikari, Moradabad, on the basis of his own inquiry report dated 29.3.2019 is absolutely illegal and hereby quashed. 9. The District Magistrate, Moradabad, respondent No. 2, is directed to afford the opportunity of hearing to the petitioner and pass fresh order in accordance with law within one month from the date the petitioner is enlarged on bail. 10. In the meantime, as per the judgment in the case of Jitendra Kumar Shukla, (supra), District Panchayat Raj Officer shall exercise the powers of petitioner.