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2019 DIGILAW 2655 (ALL)

Nanhi Devi v. State Of U. P.

2019-11-27

VIVEK KUMAR BIRLA

body2019
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Rajeev Kumar Shukla, learned Standing Counsel appearing for the State-authorities. Sri Pankaj Kumar Gupta, learned counsel for the complainant is present. 2. Present petition has been filed with following prayers:- “(i) Issue a writ, order or direction in the nature of certiorari for quashing the impugned order dated 23.3.2018 passed by District Magistrate, Moradabad. (ii) Issue a writ, order or directing in the nature of mandamus commanding the respondents to allow this writ petition and to operate the account not to cease the financial and administrative power of the petitioner in pursuance to the impugned order dated 23.3.2018 passed by District Magistrate, Moradabad. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to give effect of the impugned order dated 23.3.2018 passed by District Magistrate, Moradabad. (iv) To pass any other suitable order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case. (v) To award the cost of the petition from the respondent.” 3. By the impugned order, the petitioner has been suspended from the post of Gram Pradhan of Village Mundia Raja, Block Vikas Khand Bilari, District Moradabad by the District Magistrate, Moradabad on the ground that an enquiry was conducted by a Committee of three members constituted for this purpose and she was found guilty. One of the charge against the petitioner was that she had taken away the old bricks of 'kharanja' in the village which were replaced, for her own use in her residence. This fact that she has taken away the old bricks was admitted by her in her reply. However, the explanation for taking away the bricks was that it is only for the security of the old bricks she has taken away the old bricks and they are still with her and she has not misused the same and she is willing to compensate the same in terms of money. The petitioner was found guilty and was suspended pending final enquiry as per the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the Enquiry Rules, 1997). 4. The petitioner was found guilty and was suspended pending final enquiry as per the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the Enquiry Rules, 1997). 4. Challenging the same, submission of learned counsel for the petitioner is that the District Magistrate himself has not constituted the enquiry committee and therefore, the same is not in accordance with the Enquiry Rules, 1997 particularly, Rule 2 (c) and Rule 4 of the Enquiry Rules, 1997. 5. He submits that on perusal of the order dated 21.9.2017 passed by the District Development Officer, Moradabad, it is clear that in fact, he has constituted the Committee (Annexure 1 to the counter affidavit filed by the State-authorities). He submits that the District Development Officer is not the authority to appoint the committee. Drawing attention to Enquiry Rules, 1997, he submits that such power to constitute a committee is delegated by State Government to the District Magistrate and it cannot be further delegated by District Magistrate to District Development Officer, therefore, such enquiry committee cannot be constituted by the District Development Officer and the enquiry report submitted by such committee is vitiated in the eye of law. 6. Learned counsel for the petitioner has also drawn attention of this Court to the various orders annexed with the supplementary affidavit as Annexure No.4 to indicate that the District Magistrate, as a matter of fact, himself has constituted committee and in the present case this has not been done and therefore, entire inquiry proceedings are vitiated. He submits, therefore, the order based on such inquiry is not sustainable in the eyes of law and is liable to be quashed. In support of his arguments learned counsel for the petitioner has placed reliance on following judgments:- (i) Narendra Kumar vs. State of U.P. and Others 2013 (2) AWC 1663 , (ii) Shashi Kant vs. State of U.P. and Others 2018 (3) AWC 2674 (iii) judgment dated 30.3.2018 passed in Writ- C No. 11594 of 2018 (Mohd. Arif vs. State of U.P. and 2 Others). 7. Learned counsel for the petitioner also sought to argue the merits of the petition that her explanation submitted by the petitioner has not been correctly appreciated. Arif vs. State of U.P. and 2 Others). 7. Learned counsel for the petitioner also sought to argue the merits of the petition that her explanation submitted by the petitioner has not been correctly appreciated. He submits that it is only in public interest the old bricks were removed and she had expressed her clear and categorical stand that she is willing to compensate the same in terms of money. 8. The crux of the arguments is that the District Magistrate himself has not constituted the three members enquiry committee and thus, it is violation of the Enquiry Rules, 1997 and therefore, impugned order based on such enquiry report submitted by the enquiry committee so constructed is not sustainable in the eye of law. 9. Per contra, learned Standing Counsel drawing attention to the Annexure-1 to the counter affidavit, which is a letter dated 21.9.2017, which is being highlighted by learned counsel for the petitioner as an order constituting enquiry committee and by drawing attention to Annexure no-3 to the supplementary affidavit, which is an order dated an 14.9.2017, submitted that at serial no.5 for Block Baharia, which is admittedly, the relevant block for the concerned village i.e. Mundaiya Raja, Vikas Khand Bilari, District Moradabad, a committee of three members, namely, the District Panchayat Raj Officer, Moradabad, District Basic Education Officer, Moradabad and Assistant Engineer, Pradhanmantri Sadak Yojna (PIU), had been constituted in the District Moradabad for the reason that there were large numbers complaints of irregularities in constitution of enquiry committees, a committee of three members, which includes two district level officers, has been constituted. He submits that it is therefore, clear and as also highlighted in the letter dated 21.9.2017 issued by the District Development Officer with a clear reference to this order dated 14.9.2017 that it is only a communication and as per the directions of the District Magistrate that this committee has been constituted to submits its joint enquiry report. He, therefore, submits that there is no violation of Rule 2(c) or Rule 4 to the Enquiry Rules, 1997. He submits that admittedly, final inquiry is still pending, therefore, no interference is required in the impugned order. 10. I have considered the rival submissions and perused the record. 11. He, therefore, submits that there is no violation of Rule 2(c) or Rule 4 to the Enquiry Rules, 1997. He submits that admittedly, final inquiry is still pending, therefore, no interference is required in the impugned order. 10. I have considered the rival submissions and perused the record. 11. On perusal of the order dated 14.9.2017 I find that it is only because the complaints are being received at Chief Minister level, Commissioner level and Chief Development Officer level as well as in his own office that serious irregularities are being committed in constitution of committee, therefore, for the purpose of conducting impartial and technically sound inquiry, the committees for different blocks have been constituted. It is not in dispute that for eight different blocks different committees have been constituted, which undisputably included the District Level Officers. I find that in fact, in all the committees constituted for different eight blocks, at least two District Level Officers have been appointed and the third member appears to be the technical hand for the purpose of providing the assistance on the technical aspect of the enquiry. Coming to the various other orders passed by the District Magistrate annexed as Annexure No.-4 to the Supplementary Affidavit dated 16.4.2018, I find that all such orders that have been passed by the District Magistrate are of the dates prior to the issuance of the order dated 14.9.2017. The order at page no. 16 is the order dated 13.9.2017, the order at page no. 17 is the order dated 17.7.2017 and the order at page no. 18 is the order dated 19.7.2017. There is nothing on record to indicate that after constitution of all such eight committees for different blocks vide order dated 14.9.2017 any other order has been passed by the District Magistrate himself for constituting the committee. The reason is obvious as the District Magistrate himself has constituted the enquiry committee in the light of the various complaints received at the State level, Commissioner level and at his own level. Therefore, it is very much clear and as also reflected in the letter dated 21.9.2017 that it is nothing but reiteration of the designation of the officers who have already been made members of the committee for inquiry purposes by the District Magistrate in his own order dated 14.9.2017. Therefore, it is very much clear and as also reflected in the letter dated 21.9.2017 that it is nothing but reiteration of the designation of the officers who have already been made members of the committee for inquiry purposes by the District Magistrate in his own order dated 14.9.2017. There is a clear reference to the aforesaid order dated 14.9.2017 in the order/letter dated 21.9.2017. There is no deviation in the same. Therefore, the arguments made by learned counsel for the petitioner that the District Magistrate himself has not constituted the enquiry committee or that the District Development Officer has no authority to do the same is baseless, inasmuch as, the District Development Officer has not exercised any power independently and it is merely reiteration of the description of the members of the enquiry committee already constituted by the District Magistrate. 12. The order dated 21.9.2017 further reflects that copy of this order has been sent to the members of the committee only for compliance. It is, therefore, only an order regarding communication of constitution of committee done by the District Magistrate vide order dated 14.9.2017 and nothing further. This cannot be considered as an order constituting the enquiry committee independently. 13. A reference may also be made to the judgment of Hon'ble Full Bench in the case of Vivekanand Yadav vs. State of U.P. and others 2011 (1) AWC 488 (FB). Apart from that in case of Vijay Kumar vs. District Magistrate 2015 (2) ADJ 145 , placing reliance on Vivekanand Yadav (supra) it has been held that if the enquiry has been conducted by a District Level Officer, the same is valid even if the enquiry officer is not appointed by the District Magistrate. Paragraphs 6, 7, 8, 11, and 12 of Vijay Kumar (supra) are quoted as under:- “6. It is contended that no preliminary enquiry was ordered by District Magistrate and he did not appoint any Enquiry Officer to conduct preliminary enquiry or fact finding enquiry, therefore, aforesaid reports could not have been relied upon for the purpose of passing order under Proviso to Section 95(1)(g) of Act, 1947. It is contended that no preliminary enquiry was ordered by District Magistrate and he did not appoint any Enquiry Officer to conduct preliminary enquiry or fact finding enquiry, therefore, aforesaid reports could not have been relied upon for the purpose of passing order under Proviso to Section 95(1)(g) of Act, 1947. It is also said that no Enquiry Officer was appointed by District Magistrate and therefore, any preliminary enquiry report submitted by another person could not have been acted upon and in this regard reliance is placed on a Single Judge judgment of this Court in Rais Ahmad Vs. State of U.P. & Ors., 2009(1) CRC 139. 7. However, I find that issue, up for consideration, is squarely answered by a Full Bench of this Court in Vivekanand Yadav Vs. State of U.P. & Anr., 2010 (10) ADJ 1 (FB). 8. The law laid down by Full Bench in Vivekanand Yadav (supra) can be summarised as under: (I) Section 95(1)(g) contemplates removal of Pradhan while Proviso to Section 95(1)(g) talks of enquiry before ceasing financial and administrative powers during pendency of a removal proceeding. If Pradhan is prima facie found to have committed financial and other irregularities, preliminary/fact finding enquiry under Section 95(1)(g) proviso is necessary, which has to be conducted under Rule 4 of Rules, 1997. (II) Proviso to Section 95(1) would apply to Section 95(1)(g) contemplating removal but not to any other provision like Proviso to Section 95(1)(g). (III) The proviso to Section 95(1) provides for reasonable opportunity in removal proceedings of a Pradhan under Section 95(1)(g) but it does not apply to Proviso to Section 95(1)(g) providing for preliminary or fact finding enquiry: the purpose of this enquiry is to find out if there is any prima facie case against Pradhan or not. (IV) Proviso to Section 95(1)(g) providing cessation of financial and administrative powers does contemplate a preliminary enquiry by a person and procedure is to be prescribed: the Rules have to be framed for the same. Rules, 1997 thus have been framed because it is so mandated in the Proviso to Section 95(1)(g) of Act, 1947 and not because of 95(1)(g) or the Proviso to Section 95(1). (V) The District Magistrate can order a preliminary enquiry on the complaint or report or otherwise. Rules, 1997 thus have been framed because it is so mandated in the Proviso to Section 95(1)(g) of Act, 1947 and not because of 95(1)(g) or the Proviso to Section 95(1). (V) The District Magistrate can order a preliminary enquiry on the complaint or report or otherwise. The word 'complaint' or 'report' refers to the complaint by a private person or to the report made by a public servant under Rule 3. (VI) The District Magistrate has power to refer a case for preliminary enquiry even if there is no complaint or report. In other words, he has power to act suo moto. (VII) Even if a complaint made is not entertainable in view of Rule 3(5) of Rules, 1997 yet District Magistrate can always refer the matter for preliminary enquiry, if he consider that it should be so enquired; since he can act suo moto. (VIII) The word "otherwise" in Rule 4 means that District Magistrate has suo motu powers to order a preliminary enquiry, and, he may order a preliminary enquiry even if there is no complaint or report; or a defective complaint, not in accordance with Rules 3(1) to 3(4). (IX) A Pradhan has no right to object that a complaint is not in accordance with Rules 3(1) to 3(4) of Rules, 1997 and hence no inquiry can be ordered. (X) A Pradhan is neither entitled to be associated in preliminary enquiry nor entitled to get copy of preliminary enquiry report. His only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed. (XI) It is not only necessary that explanation or point of view or version of affected pradhan should be obtained but should also be considered before being prima facie satisfied of his being guilty of financial and other irregularities and ceasing his powers. The consideration of explanation does not have to be a detailed one but there should be indication that mind has been applied. (XII) The proceeding for removal has to be conducted in accordance with Rules 6 onwards of Rules, 1997, irrespective of the fact whether right to exercise financial and administrative power was ceased or not. The consideration of explanation does not have to be a detailed one but there should be indication that mind has been applied. (XII) The proceeding for removal has to be conducted in accordance with Rules 6 onwards of Rules, 1997, 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 Rules 3 to 5 has to be followed, otherwise there is no necessity to follow them. (XIII) In other words, preliminary enquiry may not be necessary if the proceeding for removal is to be undertaken without ceasing power of pradhan in respect to administrative and financial matters. (XIV) In order to exercise power under Rule 5, to cease administrative and financial powers of Pradhan under Proviso to Section 95(1)(g) of Act, 1947, District Magistrate can pass order in the following contingencies: (i) A complaint can be made directly to the District Magistrate who may ask the enquiry officer as defined under Rule 2 (c) to conduct a preliminary inquiry under Rule 4 ; or (ii) A complaint can be made directly to the enquiry officer defined under Section 2 (c), who may submit a report without the District Magistrate asking for it ; or (iii) A complaint can be made to the District Magistrate with a copy to enquiry officer, who may submit a report, without the District Magistrate asking for it ; or (iv) A District Magistrate can himself conduct a preliminary enquiry. (XV) Any other report can be considered by District Magistrate under Rule 3(6) of Rules, 1997 for ordering preliminary enquiry but final enquiry with cessation of power cannot be ordered on its basis. In other words, action under Proviso to Section 95(1) (g) can also be taken on the preliminary report of District Magistrate as well as on a report of a person defined as enquiry officer under Rule 2(c) of Rules, 1997. Only these reports would be covered in the word 'otherwise' of Rule 5. 11. In other words, action under Proviso to Section 95(1) (g) can also be taken on the preliminary report of District Magistrate as well as on a report of a person defined as enquiry officer under Rule 2(c) of Rules, 1997. Only these reports would be covered in the word 'otherwise' of Rule 5. 11. Though, in Rais Ahmad (supra) also, the order under Proviso to Section 95(1)(g) was passed on 30.6.2008 i.e. after the said amendment but it appears that Hon'ble Court was not apprised of the fact that Rule 2(c), as was initially framed, has already undergone an amendment in 2001 and this amended rule was not considered by this Court. Apparently judgment in Rais Ahmad (supra) is per incurium. The amended definition has been considered in Full Bench judgment in Vivekanand Yadav (supra) and exposition of law laid down therein has already been noted above. Therefore, even if District Magistrate has not appointed Enquiry Officer, report submitted by District Basic Education Officer and District Panchayat Raj Officer can be acted upon by treating it to be a preliminary enquiry report since they were all "district level officer" and do satisfy definition of "Enquiry Officer" under the Rules. 12. This Court has also said that even if enquiry has not been ordered by District Magistrate but if such a preliminary report is available, it can be acted upon for the purpose of passing an order under Proviso to Section 95(1)(g) of Act, 1947. Moreover, powers exercisable by State Government under Section 95(1)(g) have been delegated upon District Magistrate vide notification No.1684/XXXIII-1-1997-123-97, dated 30.4.1997 issued under Section 96-A of Act, 1947, which reads as under: "96-A. Delegation of powers by State Government.-The State Government may delegate all or any of its powers under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose.” (emphasis supplied) 14. In such view of the matter, I do not find any substance in the argument of learned counsel for the petitioner insofar as it relates to the formation of the enquiry committee being without authority is concerned. 15. In such view of the matter, I do not find any substance in the argument of learned counsel for the petitioner insofar as it relates to the formation of the enquiry committee being without authority is concerned. 15. Coming to the merits of the order, suffice it to note that in her reply the petitioner has clearly admitted that she has taken away the old bricks to his residence, although, it has been explained that the old bricks were removed and were kept in her residence from security point of view only and she has not misused the same. However, it is further reflected from the reply that there is no averment that such bricks are still lying in her residence and the same can be recovered. On the contrary, she has offered to refund the amount of the old bricks. This clearly indicates the admission on the part of the petitioner that the bricks were removed and kept by her in her residence. 16. It is not in dispute that final inquiry is still pending, therefore, additionally for this reason also I am not inclined to interfere in the matter. 17. Petition is devoid of merits and is accordingly, dismissed. 18. In view of the discussion made hereinabove the judgments on which the reliance has been placed by the learned counsel for the petitioner are of no help to him. 19. In the facts and circumstances of the case, it is provided that in fact the final inquiry has not been concluded till date, the same shall be concluded as per the Rule 6 of the Rules, 1997 within time bound period and, if possible, within a period of three months.