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2020 DIGILAW 276 (ALL)

Nanhey Lal v. State of U. P.

2020-01-23

SANGEETA CHANDRA

body2020
JUDGMENT : Sangeeta Chandra, J. 1. Heard the learned Counsel for the petitioner, learned Standing Counsel appearing on behalf of the opposite party Nos. 1 to 4 and Shri Dilip Kumar Pandey, who appears for the opposite party No. 5. 2. This petition has been filed challenging the order dated 30.11.2019 passed by the opposite party No. 4-District Panchayat Raj Officer, District Hardoi, by which recovery in the Form of surcharge amounting to Rs.3,24,860/- has been imposed upon the petitioner, who is the Gram Pradhan and a further prayer has been made that the opposite parties be commanded not to initiate Recovery Proceedings in pursuance of the order impugned and instead proceed in accordance to the Provisions as spelt out under section 27 of the Uttar Pradesh Panchayat Raj Act, 1947 and Rules 256 and 257 of the Rules framed thereunder. 3. It has been submitted by the learned Counsel for the petitioner that one Mahesh Verma son of Vijay Sharma resident of Village Panchayat Pooranmau, had filed a complaint before the Collector/District Magistrate, Hardoi on 21.5.2018 with respect to Account No. 27573 which was the Gram Panchayat account for the village Panchayat, Pooranmau and stated that the misappropriation of the Gram Sabha fund had been done by the Village Pradhan and other officials alongwith him. The Collector directed the Chief Development Officer, Hardoi, to conduct the an Enquiry. The Chief Development Officer, Hardoi, had directed the District Panchayat Officer, District Hardoi to enquire into the matter and submit his report. Enquiry was thereafter conducted by the Upper Mukhya Adhikari, Zila Panchayat, Hardoi, showing misappropriation of Rs.5,67,101/- of Gaon Sabha fund. Although a Show Cause Notice was issued to the petitioner on 10.9.2018 to file his explanation before the Enquiry Officer, the Enquiry Officer did not consider the explanation of the petitioner and submitted his Enquiry report to the District Magistrate. The petitioner was thereafter, issued a Show Cause Notice but without providing a copy of the Inquiry Report the petitioner again submitted his explanation alongwith affidavit filed by various villagers in his favour. The petitioner's financial and Administrative powers, however, seized on 27.12.2018 and a three member Committee was constituted to carry out the Administrative and Financial responsibility of the Gram Sabha. The petitioner being aggrieved, filed a Writ Petition No. 1680 (M/S) of 2019 which was dismissed by this Court on 24.1.2019. The petitioner's financial and Administrative powers, however, seized on 27.12.2018 and a three member Committee was constituted to carry out the Administrative and Financial responsibility of the Gram Sabha. The petitioner being aggrieved, filed a Writ Petition No. 1680 (M/S) of 2019 which was dismissed by this Court on 24.1.2019. Without conducting any regular enquiry, thereafter, as is expected under the Rules relying upon the earlier Enquiry report dated 1.9.2018 the District Panchayat Raj Officer imposed the recovery of Rs.3,24,860/- on the petitioner i.e. half of the total loss assessed as Rs.6,49,721/-. The rest of the amount was to be recovered from the Gram Panchayat Secretary one Vivek Ram Singh. 4. It has been submitted by the learned Counsel for the petitioner that the order dated 30.11.2019 passed by the District Panchayat Raj Officer is against the Provision of section 27 of the Act and Rules 256 to 259 of the Rules. 5. Learned Counsel for the petitioner has placed reliance upon a judgment rendered by a C-ordinate Bench of this Court in Smt. Shyamwati v. State of U.P. and others 2013 (120) RD 738 (LB). This Court had considered the similar controversy and had observed that the surcharge could be imposed only under the procedure prescribed under the Rules and the procedure prescribed was under Rules 256 to 259 which requires the Chief Audit Officer to conduct the Enquiry with regard to the allegation of misappropriation of Gaon Sabha fund. This Court had set aside the order challenge in the petition. 6. It has been submitted that a Co-ordinate Bench of this Court in a Bunch of matters where imposition of surcharge was challenged before this Court at Allahabad, the leading case of which was Writ-C No. 24902 of 2019 Udai Pratap Singh alias Harikesh had decided the matter on 30.9.2019 by considering the section 27 of the Act as well as the Rules 256 to 259 framed thereunder. This Court observed that the Rules defined Prescribed Authority to be such as notified by the State Government whether generally or for any particular purpose. This Court observed that the Rules defined Prescribed Authority to be such as notified by the State Government whether generally or for any particular purpose. This Court observed that although expression Prescribed Authority implied in section 27 (2) refers to the Commissioner of the Division, as per the notification issued by the Government on 30.7.1966, such Commissioner of the Division cannot be said to be the Prescribed Authority as under the Act and the Rules, the Commissioner of the Division is also the Appellate Authority. Surely in the light of the provisions of the Panchayat Raj Act, the Appellate and Prescribed Authority cannot possibly be the same person. 7. This Court also considered the Rules 256 to 259 of the Rules framed under the Act of 1947 and came to the conclusion that they prescribed a particular procedure to be followed for imposition of surcharge on a complaint being made of misappropriation of Gaon Sabha fund or of loss being caused to the Gram Sabha funds due to negligence or otherwise of the Gram Pradhan. It is the Chief Audit Officer who has to conduct the Enquiry. This Court also considered the question whether an order of surcharge could have been passed during the pendency of regular enquiry contemplated under the 1997 Rules against the sitting Gram Pradhan. This Court found that the respondents could not recover surcharge at the stage when regular enquiry for irregularities and misconduct against the Gram Pradhan were pending as it would amount to holding the Pradhan/Officer or Employee guilty for misappropriation even before the final and conclusive finding of the Enquiry Officer in that respect. 8. Relying upon the two decisions, the learned Counsel for the petitioner states that the impugned order could not have been passed by the District Panchayat Raj Officer. 9. From a perusal of the order impugned, it is evident that the procedure prescribed under the Rules has not been followed. 10. The order impugned is set aside. 11. However, it shall be open to the Competent Authority to pass afresh order in accordance with law settled by this Court in the case of Smt. Shyamwati (supra) and Udai Pratap Singh (supra). 12. The petitioner shall file copies of the judgments filed by him as Annex-ures-8 & 9 to the writ petition alongwith his application submitting a Certified copy of the order passed today. 13. 12. The petitioner shall file copies of the judgments filed by him as Annex-ures-8 & 9 to the writ petition alongwith his application submitting a Certified copy of the order passed today. 13. It is expected that the petitioner shall co-operate in the Enquiry conducted in the matter to enable the Enquiry Officer to come to an appropriate conclusion with regard to his culpability or otherwise. 14. The writ petition is allowed to this extent.s