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2019 DIGILAW 655 (ALL)

Ambesh Kumar v. State of U P

2019-03-11

RAJAN ROY

body2019
JUDGMENT : Rajan Roy, J. Supplementary rejoinder affidavit has been filed, which is taken on record. 2. Heard Sri S.K. Yadav Warsi, learned counsel for the petitioner, Sri J.P. Maurya, learned Addl. C.S.C. alongwith Sri Hemant Pandey, learned Standing Counsel for the State. 3. This petition was filed in the year 2018 challenging the order of the District Magisrate, Faizabad (Now Ayodhya) dated 19.6.2018 ceasing the administrative and financial powers of the petitioner who was the elected Gram Pradhan. During pendency of the writ petition final inquiry was completed and an order was passed on 31.1.2019 by the District Magistrate, Ayodhya removing the petitioner from the office of Gram Pradhan in exercise of powers under section 95(1)(g) of the U.P. Panchayat Raj Act 1947 (hereinafter referred as Act 1947). Prior to it on 11.1.2019 another order was passed by the District Magistrate, Ayodhya under section 27 of the Act 1947 for recovery of half of the loss or misappropriation caused, which was to the tune of Rs.42 lacs, i.e. Rs.22499.63 lacs. These two orders were allowed to be challenged by the petitioner by this Court which allowed the application for amendment of the writ petition. These two order were challenged on the ground that there was an abject non-compliance of the procedure prescribed in Rules 6, 7 and 8 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Inquiry Rules 1997. On 1.3.2019 this Court passed the following order: "Supplementary affidavit filed today is taken on record. Perused the original record. Much is not being said at this stage for obvious reasons. The record shall again be produced on the next date. List/put up on 06.03.2019 per-emtorily. In the meantime, the State may, if it so chooses, file a counter affidavit to the amended portion of the petition as the copy of the amendment application has already been served upon the opposite parties and also to the supplementary affidavit. Counter affidavit shall specially indicate the compliance of rules 6, 7 and 8 etc. of the of the Rules 1997 pertaining to final inquiry and whether any charge sheet was issued to the petitioner as also whether any notice was issued to the petitioner under Section 27 of the Panchayat Raj Rules, 1947 read with sub rule (6) of Rules 1947 and whether separate proceedings were held for imposition of surcharge and its recovery. of the of the Rules 1997 pertaining to final inquiry and whether any charge sheet was issued to the petitioner as also whether any notice was issued to the petitioner under Section 27 of the Panchayat Raj Rules, 1947 read with sub rule (6) of Rules 1947 and whether separate proceedings were held for imposition of surcharge and its recovery. District Panchayat Raj Officer concerned shall do the needful by contacting the learned Chief Standing Counsel, as this matter is going on for quite some time. Let a copy of this order be issued to the counsel for the parties on payment of usual charges, today, itself." 4. As would be evident, this Court specifically required the State Authorities to indicate whether compliance of Rules 6, 7 and 8 etc. of the Rules 1997 pertaining to final inquiry had been made and whether any chargesheet was issued to the petitioner, as also, whether any notice was issued to him under section 27 of the Act 1947 read with Rules 256, 257 and 258 of the U.P. Panchayat Raj Rules 1947 (hereinafter referred as 'Rules 1947) and whether separate proceedings for imposition of surcharge and its recovery had been held in accordance with the said provisions or not ? 5. A counter affidavit has been filed by the State Authorities and on a bare perusal of the same the Court finds that these queries of the Court have been very conveniently ignored. There is nothing in the said counter affidavit to indicate that any definite and distinct articles of charge were framed and issued to the petitioner, as is mandatory under Rule 6 of the Rules 1997 nor that any Statement of the imputations in support of each article of charge containing a statement of all relevant facts and a list of documents by which a list of evidences by whom the articles of charge are proposed to be sustained was prepared or furnished to the petitioner. In fact the counter affidavit does not reveal that any of the requirements prescribed in Rule 6 of the Rules 1997 for holding an inquiry before passing an order of removal of the Pradhan has been adhered. 6. In fact on the complaint dated 26.12.2017 a preliminary inquiry report is said to have been submitted on 16.2.2018. In fact the counter affidavit does not reveal that any of the requirements prescribed in Rule 6 of the Rules 1997 for holding an inquiry before passing an order of removal of the Pradhan has been adhered. 6. In fact on the complaint dated 26.12.2017 a preliminary inquiry report is said to have been submitted on 16.2.2018. Based upon it, a show-cause notice containing two charges was issued on 14.3.2018 which was replied by the petitioner on 28.3.2018. Thereafter order dated 19.6.2018 which is also impugned herein and by which the financial and administrative powers of the petitioner was ceased was passed by the District Magistrate. On a bare perusal of the said order the Court finds that the order does not even contain a cryptic recital that the reply submitted by the petitioner has not been found satisfactory, what to say of due and proper application of mind, as is mandatory in view of the law laid down by a Full Bench of this Court in the case of Vivekanand Yadav v. State of U.P. & anr., (2011) 29 LCD 221, and the Single Judge Bench decision in the case of Narendra Kumar v. State of U.P. & ors., (2013) 31 LCD 90 . The order dated 19.6.2018 passed under the 1st proviso to section 95(1)(g) is, therefore, clearly in the teeth of the provisions of law including the Full Bench decision. The said order is accordingly quashed. 7. The office of Pradhan is filled by election, therefore, it cannot be tinkered lightly. The order dated 19.6.2018 passed under the 1st proviso to section 95(1)(g) is, therefore, clearly in the teeth of the provisions of law including the Full Bench decision. The said order is accordingly quashed. 7. The office of Pradhan is filled by election, therefore, it cannot be tinkered lightly. Now, as far as the show-cause notice dated 14.3.2018 based on the preliminary inquiry is concerned, that is only for the purposes of cessation of financial and administrative powers under the 1st proviso to section 95(1)(g) and this show-cause notice cannot be seen for the purposes of the final inquiry, as is evident from Rule 5 of the Rules 1997, which enjoins upon the State Government to form an opinion on the basis of the preliminary inquiry report referred in Rule 4(2) as to whether an inquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to Clause (g) of sub-section (1) of section 95 which means a final inquiry for removal of the Pradhan, whereupon, it shall forthwith constitute a Committee envisaged by the proviso to Clause (g) of sub-section (1) of section 95 of the Act and by an order ask an inquiry officer, other than the inquiry officer nominated under sub-Rule (2) of Rule 4 to hold the inquiry. Thereafter, Rule 6 comes into play and as per sub-Rule (1) thereof the said inquiry officer is required to draw the substance of imputation into different and distinct article of charge and the imputations in support of each Article of Charge as already mentioned earlier and the inquiry proceedings are to be held in accordance with sub-Rule (2) to sub-Rule (18) of Rule 6. Nothing of this sort has been done in the instant case as neither of the two counter affidavits indicate any such proceedings having been held in terms of Rule 6(2) to (18) of the Rules 1997. 8. A copy of the final inquiry report has been annexed with the second counter affidavit dated 5.3.2019 which indicates that a final inquiry was conducted on 10.7.2018 by way of an on-the-spot inspection in the presence of the complainant and the petitioner. 8. A copy of the final inquiry report has been annexed with the second counter affidavit dated 5.3.2019 which indicates that a final inquiry was conducted on 10.7.2018 by way of an on-the-spot inspection in the presence of the complainant and the petitioner. Now when this inquiry report is examined in the light of the Rule 7 which prescribes the manner in which the inquiry report is to be prepared by the inquiry officer after conclusion of the inquiry, the Court finds that the said Rule requires the inquiry report to contain (a) the articles of charge and the statement of the imputations; (b) the defence of the person against whom the inquiry 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. The inquiry report dated 13.7.2018 fails the requirements of Rule 7. After perusing the inquiry report all that is found is mere findings of the inquiry officer/Committee. Furthermore, the Court finds that after the submission of the said inquiry report, the District Magistrate, on 16.10.2018, finding certain discrepancies between the preliminary inquiry report and the final inquiry report as regards the amount of public funds misappropriated, appointed another inquiry committee asking it to submit its report within 1 week after conducting an inquiry in the presence of the concerned persons. In this regard, the counsel for the petitioner submits that the petitioner was only called to participate on 10.8.2018 when the first inspection/inquiry was held, but he was never called for the second inquiry. There is no material before this Court to establish that this second inquiry was held in terms of Rule 6(2) to 6(18) nor that the petitioner was in any manner associated with it. 9. The counter affidavit does not contain the second inquiry report, however, the impugned order refers to a second final inquiry report dated 22.11.2018 submitted after the second inquiry committee was constituted on 16.10.2018, based on which the impugned order removing the petitioner from the office of Gram Pradhan has been passed finding him guilty of irregularities. As already stated, this second inquiry, if it all it was conducted, as also the report dated 22.11.2018 referred in the impugned order, is de hors the Rules 6(2) to (18) of the Rules 1997 and has been held/prepared behind the petitioner's back. As already stated, this second inquiry, if it all it was conducted, as also the report dated 22.11.2018 referred in the impugned order, is de hors the Rules 6(2) to (18) of the Rules 1997 and has been held/prepared behind the petitioner's back. The order dated 31.1.2019 is thus not sustainable and is quashed. 10. During the course of arguments one issue which arose was as to whether the final inquiry report is required to be given to the Pradhan before passing of the final order of his removal from office or not One needs to understand that the office of the Gram Pradhan is an office of election, therefore, his removal cannot be done in a casual manner. Even if he is guilty of irregularities and illegalities, the law itself prescribes a procedure for the same. The IInd proviso to section 95(1)(g) very categorically provides that 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. Sub-section (2) of section 95(1)(g) provides that a person removed under sub-Clause (iii) and (iv) of Clause (g) of sub-section (1) of this section shall not be entitled to be re-elected or re-appointed to any office under this Act for a period of five years or such lessor period as the State Government may order in the notice. A finality is attached to the order of removal passed under the said provision by sub-section (3) of section 95(1)(g). All these provisions are indicative of the importance attached to the elective office of Pradhan and they are meant to protect an elected Pradhan from illegal, biased or unfair treatment. Now the words "a reasonable opportunity of showing cause against the action proposed" appearing in the IInd proviso to section 95(1)(g) obviously mean a fair procedure before passing an order of removal and it is here that the Rules of 1997 framed by the State Government come into play, as, they prescribe a detailed fair procedure to ensure fairness in action against the Gram Pradhan. Though this Court finds that there is no specific provision in Rules 1997 for permitting a copy of the final inquiry report to the Gram Pradhan before passing of an order of his removal by the State Government or by the District Magistrate, upon whom the powers have been delegated under section 96-A as informed by Sri Maurya, the court finds that the Rules 1997 only cover the procedure up to the submission of records of inquiry before the State Government. What the State Government should do or has to do before passing of an order of removal of Gram Pradhan is not mentioned in the Rules, therefore, the Court has to revert back to the second proviso to section 95(1)(g) referred hereinabove and give meaning to the words "a reasonable opportunity of showing cause against the action proposed." As the inquiry report is the net result of the inquiry into the allegations against the Gram Pradhan, therefore, it is an adverse material against him which is ultimately the basis for any action proposed to be taken against him under section 95(1)(g), therefore, this court is of the view that the principles of Natural Justice require that the words used in the IInd proviso to section 95(1)(g) need to be read and understood to mean that such inquiry report should be given to the Gram Pradhan alongwith a show-cause notice to enable him to challenge the findings contained therein and/or the manner in which the inquiry has been conducted, for example, if it is de hors the procedure prescribed in the Rules 1997, so that, this aspect of the matter can also be seen by the District Magistrate while passing the final order in the proceedings. 11. Having quashed the orders dated 19.6.2018 and 31.1.2019 the Court now proceeds to consider the validity of the order dated 11.1.2019 passed under section 27 of the Act 1947. Firstly, the material for action under the two provisions i.e. under section 27 and 95(1)(g) being the same. 11. Having quashed the orders dated 19.6.2018 and 31.1.2019 the Court now proceeds to consider the validity of the order dated 11.1.2019 passed under section 27 of the Act 1947. Firstly, the material for action under the two provisions i.e. under section 27 and 95(1)(g) being the same. This order in the facts of the present case at best be passed only after the final order had been passed in the proceedings under section 95(1)(g), therefore, the District Magistrate in passing the order, even before passing the final order under section 95(1)(g), committed a grave error in the sense that he has prejudged the guilt of the petitioner, which obviously influenced his decision under section 95(1)(g). Whenever an Authority seeks to recover some amount from a Gram Pradhan as it entails civil consequences and has financial implications, a separate provision has been made in this regard under section 27 which is independent of section 95(1)(g) in the sense that a separate show-cause notice for recovery, even if based on the same material, is required to be given, but no such procedure has been adopted in this case. No separate notice was given to the petitioner before imposing the surcharge and ordering the recovery.? In fact, no show-cause notice for recovery was given to him. Though section 27 does not speak of any prior opportunity of hearing, Rule 256(1) of the Rules 1947 does speak of it. It provide that in such cases, as are covered by section 27, the competent Authority may call upon the Pradhan etc. to explain in writing why he should not be required to pay the amount misused or the amount which represents the loss or waste caused to the Gram Sabha or to its property. The proceedings under section 27 are to be held in terms of Rules 256 to 260, which has not been held in this case and there is nothing to the contrary in the counter affidavit in spite of specific query in this regard in the order of this Court dated 1.3.2019. Moreover, there are certain prerequisites for exercise of power under section 27 i.e. loss, waste or misapplication of money or Gaon Sabha property should be the direct consequence of neglect or misconduct of or by the Gram Pradhan. Only then he will be liable to surcharge for such loss, waste or misapplication. Moreover, there are certain prerequisites for exercise of power under section 27 i.e. loss, waste or misapplication of money or Gaon Sabha property should be the direct consequence of neglect or misconduct of or by the Gram Pradhan. Only then he will be liable to surcharge for such loss, waste or misapplication. In view of the above the order dated 11.1.2019 can also not be sustained and is quashed. 12. This Court fails to understand as to how a Senior officer of the Government of the level of the District Magistrate could have passed such orders wholly oblivious of the requirements of law, what to say of the Full Bench decision in the case of Vivekanand Yadav (supra) regarding cessation of financial and administrative powers, but also of the Rules of 1947 and 1997 made by the State Government itself in exercise of powers of the U.P. Panchayat Raj Act 1946. 13. Every day this Court finds that the District Magistrates in the State of U.P. are passing the orders of removal or exoneration without due and proper application of mind as to whether the procedure prescribed has been followed, whether there is evidence to support or belie the charges, relying merely on the notings of the subordinate officers or the inquiry report treating the same to be the Gospel's Truth. This is not how an elected office is to be treated by the Authorities. Once again, this Court would reiterate that on account of such lapses as have been pointed out by this Court in this judgment, even guilty persons may go scott free, but if it so happens it is the State Government and its Authorities who are to thank themselves for it, as, the Courts are bound by law and they are under an obligation to implement the law. 14. This Court in several cases has invited the attention of the Chief Secretary of U.P. and the Principal Secretary, Panchayat Raj as to the manner in which the proceedings under section 95(1)(g) of the Act 1947 read with Rules 1997 are being conducted by the district Magistrates in the State of U.P. who it seems have absolutely no clue as to what the law requires them to do. The consequence of it is that even where the illegalities may have been committed, the Gram Pradhans are able to go Scott free, when they approach the Courts, as, the Courts are required to adjudicate the issues keeping in mind the law including the statutory/Rule provisions made by the State Government itself. At least in three cases this Court has made observations in this regard and has asked the Chief Secretary of U.P. and the Principal Secretary, Panchayat Raj to look into the matter. They are Writ Petition No.19987 (MS) of 2017, Mudasser Farooqui v. State of U.P. & ors., 10676 (MS) of 2018, Pujari v. State of U.P. & ors. and 7990 (MS) of 2018, Smt Shamsh Qamar v. Collector / D.M Ambedkar Nagar & Ors. 15. This is an issue which requires urgent attention of the Chief Secretary of U.P. and the Principal Secretary, Panchayat Raj. It would be beneficial if a Workshop is conducted for all the District Magistrates as also the D.P.R.Os. and it is made known to them as to what is the procedure prescribed by law for ceasing the financial and administrative powers of the Gram Pradhan and/or removing them from their elected office, as also for imposing surcharge or recovery. 16. As regards the contention of Sri Warsi that the Assistant Engineer, D.R.D.A. is not a District level officer therefore, he should not have been appointed as the inquiry officer for conducting the inquiry, this issue does not require consideration in this case as even otherwise the impugned actions are not sustainable in law. 17. Sri J.P. Maurya learned Addl. C.S.C. shall again send a copy of this judgment to the Chief Secretary of U.P. and the Principal Secretary, Panchayat Raj for their perusal and necessary action in the light of what has been said hereinabove. 18. The District Magistrate, Faizabad after going through this judgment, shall have a fresh look at the complaint and the preliminary inquiry report and thereafter shall form an opinion as to whether any fresh proceedings for cessation of administrative and financial powers of the petitioner are required to be held and/or any fresh final inquiry is required to be held for removal of the Gram Pradhan or not. He shall also see as to whether any separate action is required under section 27 of the Act 1947 and proceed accordingly as per law. He shall also see as to whether any separate action is required under section 27 of the Act 1947 and proceed accordingly as per law. These decisions shall be taken by him within 1 month from the date a certified copy of this order is submitted. Thereafter, he shall proceed as per law. Consequences shall follow in accordance with law with immediate effect. 19. The writ petition is allowed in the aforesaid terms.