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2022 DIGILAW 1982 (ALL)

Dinesh Kumar v. State of U. P.

2022-12-16

AJIT SINGH, SIDDHARTHA VARMA

body2022
JUDGMENT : Siddhartha Varma, J. 1. The petitioner no. 1-Dinesh Kumar is the Gram Pradhan, Gram Panchayat – Sewra Lal, Vikas Khand – Vikramjot, District – Basti; the petitioner no. 2-Hariom Pal is the Additional Development Officer, Gram Panchayat – Sewra Lala, Vikas Khand – Vikramjot, District – Basti; the petitioner no. 3-Awadhesh Jaiswal is the Gram Panchayat Adhikari, Gram Panchayat – Sewra Lala, Vikas Khan – Vikramjot, District – Basti; the petitioner no. 4-Suraj Kumar Pandey, is the Village Development Officer, Gram Panchaat – Sewra Lala, Vikas Khand – Vikramjot, District – Basti and the petitioner no. 5-Vijay Kumar Malviya, is the Technical Assistant, Gram Panchayat – Sewra Lala, Vikas Khand – Vikramjot, District Ballia. 2. A complaint was filed by one Prince Kumar Shukla regarding the alleged irregularities committed by the petitioners. On 12.5.2022, the Chief Development Officer passed an order for conducting an enquiry. On 1.6.2022, an enquiry report, which as per the petitioner was an ex-parte one, was submitted by the Deputy Director of Agriculture, Basti. 3. Thereafter, on the basis of the ex parte enquiry, the District Magistrate issued show cause notices to the petitioners asking them to submit replies to the charges levelled against them and to explain as to why under the provisions of Section 27 (2) of the U.P. Panchayat Raj Act, 1947 (hereinafter refer to as ‘the Act of 1947’) recovery of Rs. 19,95,110/- be not initiated jointly against the petitioners. 4. The petitioners submitted their replies and, thereafter, when on 29.8.2022, the District Magistrate, Basti, passed the order impugned, the instant writ petition was filed. 5. Learned counsel for the petitioners Sri Udayan Nandan, Advocate, argued that the order dated 29.8.2022 was passed on an enquiry report dated 1.6.2022 which report was a result of an enquiry which was conducted by the Deputy Director (Agriculture), Basti. As per the learned counsel for the petitioner, the Deputy Director (Agriculture), Basti, was not a person authorized to conduct the enquiry for the purposes of imposition of surcharge. Since the learned counsel for the petitioner relied upon Section 27 of the Act of 1947 and the Rules 256 and 257 of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as “the Rules of 1947”), the same are being reproduced here as under :- 27. Surcharge. Since the learned counsel for the petitioner relied upon Section 27 of the Act of 1947 and the Rules 256 and 257 of the U.P. Panchayat Raj Rules, 1947 (hereinafter referred to as “the Rules of 1947”), the same are being reproduced here as under :- 27. Surcharge. – (1) Every Pradhan or [***] of a [Gram Panchayat], every member of a [Gram Panchayat] or of a Joint Committee or any other committee constituted under this Act [shall be liable to surcharge for the loss, waste or misapplication of money or property belonging to the Gram Panchayat, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan or Member] Provided that such liability shall cease to exist after the expiration of ten years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later. (2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realise it as if it were an arrear of land revenue. (3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order of the State Government or such other appellate authority as may be prescribed. (4) Where no proceeding for fixation and realization of surcharge as specified in sub-section (2) is taken the State Government may institute suit for compensation for such loss, waste or misapplication, against the person liable for the same.” CHAPTER XIII SURCHARGE RULES “256. (1) In any case where the Chief Audit Officer, Cooperative Societies and Panchayats, considers that there has been a loss, waste or misuse of any money or other property belonging to a Gaon Sabha as a direct consequence of the negligence or misconduct of a Pradhan, he may call upon the Pradhan, Up-Pradhan, Member, Officer or servant should not be required to pay the amount misused or the amount which represents the loss or waste caused to the Gaon Sabha or to its property and such explanation shall be furnished within a period not exceeding two months from the date such requisition is communicated to the person concerned. Provided that an explanation from the Pradhan, Up-Pradhan or member of the Gaon Panchayat shall be called for through the District Magistrate and from the officer or servant through the Panchayat Raj Officer: Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gaon Panchayats or any of its committee as having been absent from the meeting at which the expenditure objected to was sanctioned or who voted against such expenditure. Note. – Any information required by the Chief Audit Officer, Co-operative Societies and Panchayats or any officer subordinate to him not below the rank of auditor, Panchayats for preliminary enquiry, shall be furnished and shall be connected papers and records shall be shown to him by the Pradhan immediately on demand. (2) Without prejudice to the generality or the provisions contained in sub-rule (1) the Chief Audit Officer, Co-operative Societies and Panchayats, may call for the explanation in the following cases: (a) where expenditure has been incurred in contravention of the provisions of the Act or of the rules or regulations made thereunder; (b) where loss has been caused to the Gaon Sabha by acceptance of a higher tender without sufficient reasons in writing; (c) where any sum due to the Gaon Sabha has been remitted in contravention of the provisions of the Act or the rules or regulations made thereunder; (d) where the loss has been caused to the funds or other property of the Gaon Sabha on account of want of reasonable care for the custody of such money or property. (3) On the written request of the Pradhan, Up-Pradhan, Member, Officer or servant from who an explanation has been called for, the Gaon Panchayat shall give his necessary facilities for inspection of the records connected with the requisition for surcharge. The Chief Audit Officer may, on application from the person surcharged allow a reasonable extension of time for submission of his explanation if he is satisfied that the person charged has been unable, for reasons, beyond his control, to consult the record for the purpose of furnishing his explanation. Explanation. The Chief Audit Officer may, on application from the person surcharged allow a reasonable extension of time for submission of his explanation if he is satisfied that the person charged has been unable, for reasons, beyond his control, to consult the record for the purpose of furnishing his explanation. Explanation. – Making of an appointment in contravention of the Act, the rules or the regulations, made thereunder shall amount to misconduct or negligence and payments to employees of salaries and other dues on account of such irregular appointments shall be deemed to be a loss, waste or misuse of Gaon Fund. 257.(1) After the expiry of the period prescribed in sub-rule (1) or (3) of Rule 256, as the case may be, and after examining the explanation, if any, received within time, the Chief Audit Officer shall submit the papers along with his recommendations to the District Magistrate of the district in which the Gaon Sabha is situated in case of Pradhan, Up-Pradhan and Members and to the District Panchayat Raj Officer of the district in which the Gaon Sabha is situated in case of officers and servants. (2) The District Magistrate or the District Panchayat Raj Officer as the case may be, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gaon Panchayat to pay the whole or part of the sum to which such Pradhan, Up-Pradhan, Member, Officer or servant is found liable: Provided, firstly, that no Pradhan, Up-Pradhan, Member, Officer or servant of a Gaon Panchayat would be required to make good the loss, if from the explanation of the Pradhan, Up-Pradhan, Member, Officer or servant concerned or otherwise the District Magistrate of the District Panchayat Raj Officer, as the case may be, is satisfied that the loss was caused by an act of the Pradhan, Up-Pradhan, Member, Officer or servant in the bona fide discharge of his duties. Provided, secondly, that in case of loss, waste or misuse occurring as a result of a resolution of the Gaon Panchayat or any of its committees the amount of loss to be recovered shall be divided equally among all the members including Pradhan and Up-Pradhan, who are reported in the minutes of the Gaon Panchayat or any of its committee as having voted for or who remained neutral in respect of such resolution: Provided, thirdly, that no Pradhan, Up-Pradhan, Member, Officer or servant shall be liable for any loss, waste or misuse after the expiry of four years from the occurrence of such loss, waste or misuse or after the expiry of three years from the date of his ceasing to be a Pradhan, Up-Pradhan, Member, Officer or servant of the Gaon Panchayat whichever is later.” 6. Learned counsel for the petitioners submitted that a perusal of Section 27 of the Act of 1947 read with Rule 256 of the Rules of 1947 clearly shows that surcharge was leviable on an enquiry which was conducted by the Chief Audit Officer and which had to be forwarded to the District Magistrate in the case of Pradhan, Up-Pradhan and Members of Gram Panchayat and to the District Panchayat Raj Officer in the cases of officers and servants of the Gaon Sabha. 7. Learned counsel for the petitioners, therefore, submitted that it was the Chief Audit Officer of the Cooperative Societies and Panchayat who was the officer authorized to conduct the enquiry for the purposes of the imposition of surcharge. 8. He further submitted that after the report was submitted to the District Magistrate, the order ought to have been passed by the Competent Authority and the learned counsel for the petitioners submitted that since there was yet no competent authority appointed, the order of the District Magistrate was also beyond jurisdiction. 9. To bolster his argument, learned counsel for the petitioners relied upon the judgement of this Court in Smt. Shyam Wati vs. State of U.P and others reported in 2013 (6) AWC 6339 . This judgement was cited to show that if the enquiry was not conducted by the Chief Audit Officer then the enquiry as had been done in this case by the Deputy Director (Agriculture) Basti, was without jurisdiction. This judgement was cited to show that if the enquiry was not conducted by the Chief Audit Officer then the enquiry as had been done in this case by the Deputy Director (Agriculture) Basti, was without jurisdiction. He further submitted that when there was no Prescribed Authority as has been referred to in Section 27(2) of the Panchayat Raj Act then the District Magistrate had no jurisdiction to impose the surcharge. For this purpose, learned counsel for the petitioner relied upon Uday Pratap Singh @ Harikesh vs. State of U.P. and others reported in 2019 (10) ADJ 443 . 10. Sri H.N. Singh, Sr. Advocate, assisted by Sri Vinay Kumar Pandey, learned counsel for the complainant while making the submissions very fairly conceded that as far as the jurisdiction with the Deputy Director (Agriculture), Basti, was concerned, it was only the Chief Audit Officer who was authorized to conduct the enquiry. He, however, submitted and also placed a written submission that now when the Panchayat had attained constitutional status and as per Article 243, 243(A) to 243(O) of the Constitution of India there were provisions in the Constitution to provide for a three tier Panchayat system such as the Village Panchayat, Kshetra Panchayat and the District Panchayat instead of the Chief Audit Officer, some more powerful body should be brought into existence. He submitted that further since as per Article 243(I) of the Constitution, a Finance Commission to review the financial position of Panchayats had been formed, on which there was the duty to enquire into the financial deals of the Panchayat then the finances of a gram panchayat should be monitored by a much more powerful body. While making his submissions, he also submitted that under Article 243 (G), there were various powers, authorities and responsibilities bestowed upon the Panchayat, so much so that under Article 243 (H) even powers to impose taxes had been given to the panchayats. He submits that though various amendments had been made in the Panchayat Raj Act, the provision for enquiry for the purposes of surcharge had remained only with the Chief Audit Officer. He submits that though various amendments had been made in the Panchayat Raj Act, the provision for enquiry for the purposes of surcharge had remained only with the Chief Audit Officer. He submits that the various Panchayat work had to be supervised and had to be audited and there were times that even before the audit could take place after the completion of work, the responsibilities had to be fixed for the works which had commenced and which were not being done properly. 11. The relevant portions of the written submissions which Sri H.N. Singh, Sr. Advocate assisted by Sri Vinay Kumar Pathak learned counsel for the complainant, had submitted are being reproduced here as under: “I. By 73rd Amendment of Constitution with effect from 24.4.1993, the Panchayats have attained the constitutional status and in Article 243, 243-A to 243-O Constitutional provisions has been provided for Constitution of 3 tier Panchayat such as Gram Panchayat, Kshetra Panchayat and Zila Panhcayat and Article 243-I for Constitution of Finance Commission to review financial position of the Panchayt whereas Article 243-G provide for powers, authority and responsibilities of Panchayats whereas Article 243-H empowers the Panchayats to impose taxes. The U.P. Panchayat Raj Act was amended in the year 1994 according to the Constitutional Mandate and now the huge fund is being made available by the State Government to Gram Panchayat as provided under Section 32 of the Act of 1947 and function of the Gram Panchayat is provided under Section 15 of the Panchayat Raj Act. U.P. Panchayat Raj Rules, 1947, is an old Rule and consequently amendment in the Rule has not been made in view of the Amendment in Panchayat Raj Act according to 73rd Amendment of the Constitution of India. II. Rules of 1947 appears to have been framed to prescribe the procedure of surcharge under Rule 256 to 259 keeping in view the position as was in the year 1947 when hardly the fund was available to Gram Panchayat and very nominal fund was available which was to be audited by the Chief Audit Officer. III. II. Rules of 1947 appears to have been framed to prescribe the procedure of surcharge under Rule 256 to 259 keeping in view the position as was in the year 1947 when hardly the fund was available to Gram Panchayat and very nominal fund was available which was to be audited by the Chief Audit Officer. III. By the time the Finance Commission has been constituted, huge fund for development work is being released to the Gram Panchayat by which the Gram Panchayats are making constructions which requires monitoring on spot, whether amount has been actually utilized, construction according to norms has been done and material has been used as per standards prescribed. IV. To monitor the spot position and to prevent the misappropriation of the huge fund release mere audit on record is not sufficient and it requires monitoring and supervision on spot and also require enquiry by any technical person having knowledge in the field. In this view of matter the Rules 256 to 259 of Rules of 1947 is not competent. In view of the amendment of the Constitution and Panchayat Raj Act for removal of the Pradhan, a specific rule has been framed known as Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 but no fresh rule has been framed for fixing surcharge and supervision of the utilization of the fund released to Gram Panchayat. V. That in the facts and circumstances in view of the change which has taken place from 1947 till date it has become necessary to prescribe a specific Rule for utilization of the fund by the Gram Panchayat and for determining the liabilities of the Pradhan, Members of Gram Panchayat and concerned officer and servants of Gram Panchayat.” 12. Learned counsel for the complainant, however, submitted that so far as the jurisdiction under Section 27(2) of the 1947 Act for imposing the surcharge with the District Magistrate had been questioned, the question was no longer res intergra as now a Division Bench of this Court in the case of Ram Vilas vs. Commissioner Devi Patan Mandal Gonda and others reported in 2022 (1) ADJ 1 had decided that the District Magistrate could impose the surcharge. 13. 13. Learned Standing Counsel though was asked to place before the Court the record of the Chief Audit officer by the order of this Court dated 19.9.2022, a counter affidavit has been filed in which he had appended two Government Orders dated 14.8.2019 and 8.6.2022. By the Government Order dated 14.8.2019, he has only brought on record the Government Order by which the enquiry as per the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997, was to be conducted. With regard to the Government Order dated 8.6.2022, suffice it to say that the learned Standing Counsel has brought on record the fact that the District Magistrate had been made the Prescribed Authority. 14. Still further the learned Standing Counsel has brought to the notice of the Court an order dated 26.9.2022 by which the Chief Audit Officer had delegated his powers to the District Audit Officers. 15. Having heard the learned counsel for the parties, there is not an iota of doubt that the enquiry which was conducted by the Deputy Director (Agriculture), Basti, was an enquiry which was without jurisdiction. In fact, as per Rules 256 and 257 of the 1947 Rules, the enquiry ought to have been conducted by the Chief Audit Officer and now as per the order of delegation made by the Chief Audit Officer by the District Audit Officers. 16. Under such circumstances, the impugned order dated 29.8.2022 passed by the District Magistrate, Basti, is quashed and is set aside. 17. However, the Court suggests that the Law Commission may take up the matter and as per the conditions prevailing now i.e. as per the various powers which have been bestowed upon the Panchayats after the amendment of the Constitution of India by the 73rd Amendment by which Articles 243(A) to 243 (O) have been added in the Constitution of India and the Panchayats have attained constitutional status, a body which has powers to supervise the working of the Pradhans and its officials should be constituted for monitoring of the Panchayats and for supervising the work which is being done by them. 18. For the reasons stated above, the writ petition stands allowed. 19. A copy of this order be sent by the Registrar General of this Court to the State Law Commission.