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2022 DIGILAW 1192 (ALL)

Rajendra Singh v. State of U. P.

2022-07-29

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Ms Chhaya Gupta and Sri Prabhakar Awasthi, learned counsel for the petitioner, Sri Awadhesh Kumar, learned counsel for the caveator-respondent and Sri Siddharth Singh, learned Additional Chief Standing Counsel for the respondents. 2. Challenge has been raised to the order dated 16.06.2022 passed by the District Magistrate, Mathura whereby the petitioner's financial and administrative powers have been seized under the proviso to Section-95(1)(g) of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act'). 3. First, it has been submitted, the preliminary enquiry was conducted by an ineligible officer. Though, the Act mandates such enquiry to be conducted by a district level officer, in the present case that enquiry was conducted by the Deputy Commissioner (Self Employment) Mathura. That officer is not a district level officer but an out sourced employee. Second, it has been submitted, none of the complaints made against the petitioner was such as may have warranted the extreme action of suspension of financial and administrative powers of the petitioner who is a duly elected Gram Pradhan of Gram Panchayat-Manigarhi Bangar, Raipur, District-Mathura. 4. Third, even otherwise, with respect to the first charge, no defect was found in the laying of interlocking tiles. Also, there is no allegation of extra payment made. Only on a technical plea of that work having not been duly verified in the Measurement Book (in short 'MB'), adverse inference has been drawn. Then, in absence of any requirement to invite tender etc. to auction old bricks, the sale of old bricks at Rs.15,000/- could never form the subject matter of charge of financial irregularity etc. With respect to the third charge, it has been submitted, the work was found duly recorded and approved in the MB, yet, by adopting nit-picking approach, false and frivolous allegations have been levelled that some of the bricks used to lay the drain, were sub-standard. The allegation of absence of 10 cm ballast foundation is stated to be patently false. As to the other charge, the same has been found to be not proved and as to the last charge with respect to plantation of trees, again, no allegation of such gravity has been noticed as may warrant the extreme action of suspension of financial and administrative powers. 5. As to the other charge, the same has been found to be not proved and as to the last charge with respect to plantation of trees, again, no allegation of such gravity has been noticed as may warrant the extreme action of suspension of financial and administrative powers. 5. In totality, it has been submitted, the conditions to take action under Section-95(1)(g)(iii) of the Act were not made out, inasmuch as, there is no allegation to abuse of position or persistent failure to perform duties imposed by the Act or Rules framed thereunder. Even if the finding of the preliminary enquiry report were to be accepted on face value, the same may never go to establish the allegation of abuse of position or persistent failure to perform duties. Further, they do not go to show that continuance of the petitioner as Gram Pradhan would not be desirable in public interest, pending final enquiry. 6. To bolster those submissions, it has been further asserted, in any case suspension of financial and administrate powers may not arise in every case covered under Section-95(1)(g) of the Act but in a smaller variety of such cases where it is prima facie found that the Gram Pradhan had committed financial and other irregularities. That condition has not been made out, at all. There is no material or satisfaction recorded to establish any case, beyond negligence. 7. On the other hand, learned Additional Chief Standing Counsel would submit, at the present stage, only a final enquiry has been instituted. There is nothing to disbelieve the findings recorded in the preliminary enquiry report. Since, payments were found to have been made by the petitioner without corresponding entries in the 'MB' as may have been approved by the engineers, a case of financial irregularity is made out. Further, with respect to the deficiencies noted in the laying of public drain, it has been submitted, there is nothing to doubt the correctness of those findings, either. Again since payment has been made for that work, case of financial irregularity is made out against the petitioner. Last, it has been submitted, the petitioner cannot absolve himself of all responsibilities by stating, he was not the record keeper. In his position as the Gram Pradhan, he had to ensure, payments were released after due compliance of the procedure. Again since payment has been made for that work, case of financial irregularity is made out against the petitioner. Last, it has been submitted, the petitioner cannot absolve himself of all responsibilities by stating, he was not the record keeper. In his position as the Gram Pradhan, he had to ensure, payments were released after due compliance of the procedure. That not done, the petitioner has exposed himself to a proper/ full fledged enquiry. As to enquiry conducted by the Deputy Commissioner (Self Employment), it has been stated, he is a district level officer. 8. Having heard learned counsel for the parties and having perused the record, it may be observed, power under Section 95(1)(g) of the Act is not to be exercised lightly. Further, the proviso is not to be used to seize financial and administrative powers of the duly elected Gram Pradhan, at the drop of the hat. At the same time, some discretion must continue to exist with the executive authorities, to prevent the office of Gram Pradhan being abused, as may involve persistent failure to perform duties or persistent violation of procedures established by law, especially with respect to payments to be made by the Gram Panchayat. 9. Cases involving a simple irregularity, not involving ingredient of intent or mens rea on part of the Gram Pradhan, may not warrant an action of suspension of financial and administrative powers pending a full-fledged enquiry. It is a matter of common knowledge, in the course of full-fledged enquiry, detailed examination of facts and allegations is made. Only thereafter firm conclusion may be drawn with respect to fulfilment or otherwise of conditions prescribed by Section-95(1)(g)(iii) of the Act. It also cannot be lost sight, the Gram Pradhan is a duly elected public representative. His functioning may not normally be discontinued or derailed on a simple complaint which is yet to be proven, at such enquiry. 10. Therefore, a balance must be maintained between the scheme and purpose of the Act and the power given to the executive to intervene and suspend the working of a duly elected Gram Pradhan, keeping in mind a Gram Pradhan is a duly elected public functionary who is answerable to his constituency that has elected him. 11. 10. Therefore, a balance must be maintained between the scheme and purpose of the Act and the power given to the executive to intervene and suspend the working of a duly elected Gram Pradhan, keeping in mind a Gram Pradhan is a duly elected public functionary who is answerable to his constituency that has elected him. 11. Examined in that light, the present order cannot be sustained as at present there is no satisfaction recorded as to persistent failure to perform duties or persistent abuse of power involving financial and other irregularities as may warrant stringent action to be taken against the petitioner-in public interest, pending a final enquiry. 12. At the same time, it cannot be ignored that the order impugned has remained in operation for one month and a three member committee is already working in place of the petitioner (as an interim arrangement). Accordingly, the impugned order is set aside. Matter is remitted to the District Magistrate to pass a fresh order. 13. In that, the petitioner may remain at liberty to file one final reply, including as to the eligibility of the Deputy Commissioner (Self Employment), Mathura to conduct the preliminary enquiry, keeping in mind the observations made in the impugned order dated 16.06.2022. He may also furnish such other evidence as he may be advised. Thereupon, the District Magistrate may give a short opportunity of personal hearing to the petitioner and pass a fresh order, in accordance with law, within a period of one month from today. For a six weeks or till passing of a fresh order by the District Magistrate, whichever is earlier, the interim committee appointed by the District Magistrate, in pursuance of the order dated 16.06.2022, may continue to exist and function. 14. Writ petition is disposed of.