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2024 DIGILAW 985 (ALL)

Adiba v. State of U. P.

2024-04-05

DINESH PATHAK

body2024
JUDGMENT : Dinesh Pathak, J. 1. Heard learned counsel for the parties and perused the record on board. 2. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 29.2.2024 passed by District Magistrate, Bijnor (respondent No. 2) under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947 (in brevity Act, 1947) read with Rule 5 of Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry, Rules, 1997 (in brevity Enquiry Rules, 1997) whereby administrative and financial power of the incumbent Pradhan (petitioner) has been ceased and, simultaneously, regular inquiry has been directed to be conducted. 3. The facts culled out from the record are that petitioner is an elected Pradhan in the Panchayat Election 2020-21. During his tenure being Pradhan, a complaint has been moved by private person, namely, Khursheed and Rafeeq Ahmad pointing out some embezzlement in the development work done by the petitioner. Considering the severity of the matter, District Magistrate on behalf of State Government has constituted a committee, vide order dated 28.4.2023, consists of two members to conduct preliminary inquiry against the incumbent Pradhan intending to examine the allegations made against her. After due inquiry, Committee has submitted its preliminary inquiry report dated 9/10.11.2023, whereby four charges have been levelled against the present petitioner relating to the financial embezzlement. Having considered the preliminary inquiry report dated 9/10.11.2023, District Magistrate, Bijnor has issued notice to the petitioner, vide its order dated 28/25.11.2023 (Annexure 3), affording opportunity to file her reply, if any, within 15 days. In pursuance thereof, petitioner has filed her reply dated 4.1.2024. Having considered the reply submitted by the Pradhan insufficient, learned District Magistrate has passed order dated 29.2.2024 under Section 95(1)(g) of Act, 1947 read with Rule 5 of the Enquiry Rules, 1997, by which Inquiry Committee has been constituted consist of Project Director, District Village Development Agency, Bijnor as well as Executive Engineer, P.W.D. Bijnor and, simultaneously, ceased the financial and administrative power of the Pradhan, which is under challenge before this Court. 4. Learned Senior counsel for the petitioner submits that in preliminary inquiry petitioner was not permitted to participate. 4. Learned Senior counsel for the petitioner submits that in preliminary inquiry petitioner was not permitted to participate. Apart from that, report was submitted at a very belated stage on 09/10.11.2023 in pursuance of the order dated 28/25.4.2023, to wit, beyond the prescribed period of limitation as enunciated under Rule 4(2) of Enquiry Rules, 1997, therefore, preliminary enquiry report as well as the entire subsequent proceedings based on said report is nullity in the eye of law. It is further submitted that exonerating the Secretary from the allegations is not justifiable inasmuch as his conduct is also liable to be inquired alongwith the petitioner. In his third submission, learned Senior Advocate has tried to question genuineness/validity of the charges relating to GST and submit that all these charges are vague and result of misleading document. Lastly it is submitted that the instant writ petition may be allowed and the order impugned passed by the District Magistrate may be quashed being illegal, cryptic and unwarranted under the law. 5. Par contra, learned Standing counsel has vehemently opposed the submissions as raised by the learned counsel for the petitioner and supported the order impugned passed by the District Magistrate. He has contended that full opportunity has been afforded to the petitioner before passing the order impugned dated 29.2.2024. Petitioner, at this stage, has no right to raise any question qua charges inasmuch as regular inquiry is going on. It is further contended that submission of preliminary enquiry report even after prescribed period of limitation does not make it redundant in the eye of law. It is next contended that at this stage, while the final inquiry is going on, there is no justification to interfere in the order impugned dated 29.2.2024. Therefore, instant writ petition, being misconceived and devoid on merits, is liable to be dismissed. 6. Having considered the rival submissions advanced by learned counsel for the parties and perused of record, it is manifested that District Magistrate, having considered the preliminary inquiry report, has passed order impugned under Section 95(1)(g) of Act, 1947 read with Rule 5 of the Enquiry Rules, 1997. At the stage of moving complaint under Rule 3 of the Enquiry Rules 1997 and, thereafter, during the preliminary inquiry, there is nothing mandatory to hear the Pradhan. At the stage of moving complaint under Rule 3 of the Enquiry Rules 1997 and, thereafter, during the preliminary inquiry, there is nothing mandatory to hear the Pradhan. The purpose of preliminary inquiry is nothing but to find out the truthfulness of the allegations as mentioned in the complaint. It is a fact finding process to make out a prima facie case for the purposes of regular enquiry to be conducted. Even otherwise, after receiving the preliminary inquiry report dated 9/10.11.2023, District Magistrate has passed the order dated 28/25.11.2023 to issue notice to the petitioner to file her reply against the charges/allegations as made out in the preliminary inquiry report. In its order dated 28/25.11.2023, District Magistrate has acknowledged the financial embezzlement to the tune of Rs. 5,79,599.00/- during the development work done by the petitioner. In response to said notice petitioner has filed her reply dated 4.1.2024 refuting the charges/allegations levelled against her in the preliminary inquiry report. District Magistrate, while passing the order impugned dated 29.2.2024, has considered the charges in detail in the light of the reply submitted by petitioner and found the case fit to be examined in the regular/final inquiry and, accordingly, constituted a committee of two members to submit their report. Simultaneously, in exercise of its power under proviso to Section 95(1)(g) of the Act, 1947, District Magistrate has ceased the administrative and financial power of the Pradhan. Thus, it cannot be said that petitioner had not been accorded opportunity of hearing before passing the order dated 29.2.2024 under Rule 5 of Enquiry Rules, 1997. Discussing the scope and nature of the power entrusted upon District Magistrate under Section 95(1)(g) of the Act, 1947 read with Enquiry Rules, 1997 and the rights of the delinquent elected person as well there are two Full Bench judgments of this Court, which are required to be referred. In the matter of Vivekanand Yadav v. State of U.P. and others, 2010 (10) ADJ 1 (FB), Hon'ble Full Bench of this Court, while answering the question referred, expounded that Pradhan is neither entitled to be associated in the preliminary inquiry nor is entitled to the copy of the preliminary report. However, he has to be given an opportunity to explain his conduct on the charges levelled against him before passing an order to cease his financial and administrative power. However, he has to be given an opportunity to explain his conduct on the charges levelled against him before passing an order to cease his financial and administrative power. For ready reference question which was referred to the Hon'ble Full Bench and reply thereon is quoted herein below: “Questions Referred 14. The Counsel for the parties have formulated the following questions from the referring orders that are referred to us: (i) Whether the pradhan is required to be associated in the preliminary enquiry under the proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act? (ii) In case, the preliminary enquiry is adverse to the pradhan then, whether an opportunity is necessary before passing an order ceasing financial and administrative powers of the Pradhan? (iii) If the District Magistrate has sufficient material to undertake a formal enquiry then, is he still required to hold a preliminary enquiry? (iv) Whether the following observations in Chunmun v. District Magistrate, Sonbhadra, 1998 (3) AWC 1892 (the Chunmun case) are correct? “Conclusions 107. Our conclusions are as follows: (a) The DM may ask the preliminary enquiry to be conducted by any officer defined under Rule 2(c) of the Enquiry Rules on a complaint or a report under Rule 3 or any other material or information. He has suo motu powers as well to order a preliminary enquiry; (b) A Pradhan has no right to object that complaint or report is not in accordance with Rule 3 of the Enquiry Rules; (c) A Pradhan is neither entitled to be associated in the preliminary enquiry nor is entitled to the copy of the preliminary report. However, before an order ceasing the financial and administrative power is passed, his explanation or point of view or the version to the charges should be obtained and considered; (d) In the first and the third WPs, the impugned orders have been passed on the basis of preliminary report after obtaining and considering the explanation of the Pradhan. The impugned orders in these WPS cannot be faulted on this ground. The impugned orders in these WPS cannot be faulted on this ground. (e) In our opinion the word 'otherwise' in Rule 5 includes and the DM can rely upon the following reports only to cease financial and administrative power and direct the final enquiry: A report of a person who is also defined as an enquiry officer under Rule 2(c) of the Enquiry Rules - irrespective of whether he was directed by the DM to conduct the preliminary inquiry or not; A preliminary enquiry report conducted by the DM himself. (f) In the third writ petition, the report was submitted by the DPRO, who is defined as an enquiry officer under Rule 2(c) of the Enquiry Rules. The impugned order cannot be faulted on the ground that the DPRO was not asked by the DM to conduct the preliminary enquiry. However, it is open to the petitioners in the first and third WPS to raise other points before the appropriate bench.” 7. At subsequent stage scope of Section 95(1)(g) of the Act, 1947 has again been examined by Full Bench of this Court in the matter of Shamim v. State of U.P. and others, 2018 (6) ADJ 1 (FB). Relevant paragraph Nos. 37-40 of the aforesaid judgment is quoted herein-below: “37. In Vivekanand, Hafiz Ataullah Ansari and thereafter reiterated in Paras Jain that the elected representative would have to be given an opportunity to raise objection to the findings returned in the preliminary enquiry and his/or her objections will have be considered, though prima facie, by the State Government/District Magistrate before an order ceasing the financial and administrative power and functions is passed. The consequence of the order passed in exercise of power under Section 95(1)(g) is serious consequence as it divests the elected representative from exercising power until exonerated in final enquiry and the decision of the State Government is final. The decision taken by the State Government is not based on any expediency or policy of the State, rather, it is a statutory power conferred upon the State Government exercising inherent judicial power after confronting the elected representative, with show-cause notice based on the preliminary report, thereafter, taking a decision upon due application of mind on the objections of the elected Pradhan. Once such an order is passed, it is not open for the State Government to either review or modify the order during the course of final enquiry. The order, therefore, finally decides the issue between Pradhan and the Authority (State Government) in so far it relates to exercise of financial and administrative power. The office of the local body is an elected office of the constitutional democratic institution; the elected head is not a Government servant and it would be improper to compare these proceeding with departmental proceeding in service jurisprudence. A head of a local body is elected for a limited term. If during the removal proceedings, he is denuded from exercising financial and administrative powers then even if he is exonerated in the enquiry the time spent during enquiry is lost, he does not get his period extended. The consideration about the presence of all or some of the trappings of a Court is really not decisive. The main and basic test is whether the adjudicating power which a particular authority is empowered to exercise has been conferred on it by a statute and can be described as part of the State's inherent power exercised in discharging its judicial function. Applying this test there can be no doubt that the power which the State Government/District Magistrate exercises under proviso to Section 95(1)(g) is a quasi-judicial power exercised by a quasi-judicial authority. 38. Once the financial and administrative function is ceased, it affects the constitutional and statutory right of the Pradhan; no power of review having been conferred on the District Magistrate. He has to act according to the rules exercising the inherent judicial power of the State Government and is not dictated by the policy or expediency of the State. 39. We accordingly proceed to answer the reference in the following terms: (A) The District Magistrate exercising delegated authority of the State Government, is a Tribunal exercising quasi judicial power by a quasi judicial authority under the proviso to Section 95(1)(g) of the Panchayat Raj Act while proceeding to cease the administrative and financial authority of the Pradhan pending final enquiry. (B) Re-Question (i): The decision of the Division Bench in Smt. Sonia v. State of U.P. (supra) lays down the correct position of law. 40. The reference to the Full Bench accordingly stands answered. (B) Re-Question (i): The decision of the Division Bench in Smt. Sonia v. State of U.P. (supra) lays down the correct position of law. 40. The reference to the Full Bench accordingly stands answered. The special appeal shall now be placed before the regular Bench according to roster for disposal in light of the questions so answered.” 8. It is, thus, elucidated that petitioner has no right to participate in the preliminary inquiry and before passing the order under Rule 5 of Enquiry Rules, 1997 he had been given effective opportunity to file her reply against the charges as mentioned in the preliminary inquiry report. 9. I am skeptical of the second submission raised by the learned Senior counsel for the petitioner as well questioning the legality and validity of the preliminary inquiry report, and subsequent proceedings on the basis thereof, having been it filed beyond the prescribed period of limitation as enunciated under Rule 4(2) of Enquiry Rules 1997. It is no more res-integra that Rules are secondary in nature as subordinate legislation to help in governing law and are made to make the parent Act work. Once the decision is taken by the State Government/District Magistrate to cease the administrative and financial power of Pradhan, same cannot be revoked during course of the final enquiry inasmuch as said order is passed under the statutory power conferred upon the State Government exercising inherent judicial power after confronting with the elected representative. Limitation to submit preliminary enquiry report as enunciated under Rule 4(2) of the Enquiry Rules, 1997 is directory in nature in order to submit such report in pursuance of the order passed by the State Government/District Magistrate exercising its statutory power conferred under Section 95(1)(g) of Act, 1947. Statutory power conferred upon the State Government/District Magistrate under which he exercises its inherent judicial power to examine the conduct of the representative cannot be held redundant only on the pretext of delay in filing the preliminary inquiry report which could not be submitted under the prescribed period of 30 days of its having been so ordered. The phrase used under Rule 4(2) of Enquiry Rules, 1997 viz “as expeditiously as possible” does not confer a mandate upon the Preliminary Inquiry Officer to submit the report in strict time frame as prescribed under sub Rule 2. The phrase used under Rule 4(2) of Enquiry Rules, 1997 viz “as expeditiously as possible” does not confer a mandate upon the Preliminary Inquiry Officer to submit the report in strict time frame as prescribed under sub Rule 2. If submission in this regard, as advanced by the learned Senior Counsel for the petitioner, is taken to be convincing or valid, it would frustrate entire purpose of the statutory mandate as embodied under Section 95(1)(g) of the Act, 1947. Delay in submitting the preliminary inquiry report neither could frustrate the entire purpose of inquiry which has been proposed to be conducted to examine the misdeeds of the representatives during their period in office nor render the entire proceedings illegal. The purpose of employing the phrase “as expeditiously as possible” is to expedite the preliminary inquiry so that entire proceeding under Section 95(1)(g) of the Act, 1947 including the final inquiry could be concluded expeditiously inasmuch as representatives elected under the Panchayat election are hold office for a limited period of five years and an enquiry, if any, proposed against them cannot be permitted to be continued for indefinite period. Purpose of legislation while employing the word “as expeditiously as possible” alongwith the prescribed period of limitation i.e. “30 days” is to indicate a minimum time frame so that Inquiry Officer could make a sincere endeavour to submit his preliminary inquiry report without unnecessary delay. 10. So far as third submission qua discrimination made with the petitioner inasmuch as Secretary is also responsible alongwith the petitioner is concerned, I am of the considered opinion that the District Magistrate in the realm of law has exercised his statutory power to conduct an enquiry against the petitioner qua the financial embezzlement committed during the development work done by him. Prima facie satisfaction of the District Magistrate is not to be questioned at this stage while the final enquiry is still going on. Accusation of Secretary, if any, can be considered separately by the State authorities in case they find it necessary. Petitioner has still in an opportunity to raise this question during the final enquiry before the Enquiry Officer. 11. Last submission advanced by learned Senior counsel for the petitioner is not persuasive as well whereby he has questioned the charges levelled against the petitioner relating to excess payment of GST. Petitioner has still in an opportunity to raise this question during the final enquiry before the Enquiry Officer. 11. Last submission advanced by learned Senior counsel for the petitioner is not persuasive as well whereby he has questioned the charges levelled against the petitioner relating to excess payment of GST. In view of pendency of the final enquiry, in pursuance of the order impugned dated 29.2.2024, it would not be befitting for this Court to examine the factual aspect of the matter as to whether charges qua payment of excess GST are genuine or not. Petitioner has still an opportunity to counter this question before the Inquiry Officer. 12. In this conspectus, as above, having considered the ratio decided by the Hon'ble Full Bench as mentioned above, in the given circumstances of the present case, I am of the considered view that District Magistrate has not committed any error in passing the order dated 29.2.2024 to conduct a final enquiry and cease the financial and administrative power of the incumbent Pradhan (petitioner) in exercise of power conferred upon him under Section 95(1)(g) of Act, 1947 read with Rule 5 of the Enquiry Rules 1997. District Magistrate in its order impugned has unequivocally issued direction to submit the final enquiry report following the provisions as enunciated under Rule 6 and 7 of the Enquiry Rules, 1997. There is no illegality, perversity or irregularity in the order under challenge so as to warrant the indulgence of this Court in exercise of its writ jurisdiction under article 226 of the Constitution of India. There is nothing on the record to establish as to how petitioner is prejudice, or if there is any likelihood of causing miscarriage of justice to her, owing to the order under challenge. District Magistrate has validly exercised its statutory power to scrutinize the financial embezzlement as has been emanates during the preliminary inquiry. 13. Resultantly, instant writ petition, being devoid on merits and misconceived, is dismissed with no order as to the costs. 14. Before parting the matter, having considered a little delay in an enquiry since the date of complaint moved by the complainants, namely, Mr. Khursheed and Rafeeq Ahmad, it would be appropriate to issue a direction for expeditious disposal of the enquiry and, thereafter, to take final decision, if any. 14. Before parting the matter, having considered a little delay in an enquiry since the date of complaint moved by the complainants, namely, Mr. Khursheed and Rafeeq Ahmad, it would be appropriate to issue a direction for expeditious disposal of the enquiry and, thereafter, to take final decision, if any. As such, Inquiry Committee, as constituted in pursuance of the order dated 29.2.2024, is expected to complete inquiry and submit its report in accordance with law preferably within a period of two months from today and District Magistrate shall take decision, having considered the said report to be submitted, preferably within a period of one month, thereafter.