Ameer Alam vs State of Uttarakhand and Others

Alok Singh, J.

Present petition is filed assailing the order dated 18th September, 2014, annexure No. 6 to the writ petition, whereby financial and administrative powers of the petitioner working as elected Pradhan were ceased and same were handed over to the three-Members Committee, while exercising the power under the proviso of 95 Uttar Pradesh Panchayat Raj Act, 1947 as well as challenging the order dated 2nd January, 2015 whereby petitioner was asked to deposit the amount recommended by the Inquiry Officer as well as inquiry report dated 1st January, 2015. Section 95 of the U.P. Panchayat Raj Act, 1947 reads as under:--

"95. Inspection.--(1) The State Government may -

(a) cause to be inspected an immovable property owned used or occupied by a [Gram Panchayat], or a joint committee or a Nyaya Panchayat or any work in progress under the direction of such [Gram Panchayat] or Joint Committee or a Nyaya Panchayat;

(b) by an order in writing call for and inspect a book or document in the possession or under the control of a [Gram Panchayat] or a Joint Committee or a Nyaya Panchayat;

(c) by an order in writing require a [Gram Panchayat] or a Joint Committee or a Nyaya Panchayat to furnish such statements, reports or copies of documents relating to the proceedings or duties of the [Gram Panchayat] or such committee or a Nyaya Panchayat as it thinks fit;

(d) record in writing for the consideration of a [Gram Panchayat] or Joint Committee any observation which it thinks proper in regard to the proceedings or duties of such Gram Panchayat or Joint Committee;

(e) institute any enquiry in respect of any matter relating to a [Gram Sabha], [Gram Panchayat] or Nyaya Panchayat; and

(f) [* * *] or dissolve any [Gram Panchayat], Joint Committee, Bhumi Prabandhak Samiti or Nyaya Panchayat if in the opinion of the State Government such [Gram Panchayat], Joint Committee, Bhumi Prabandhak Samiti or Nyaya Panchayat has abused its position or has continuously failed to perform the duties imposed upon it by or under this Act or its continuance is not considered desirable in public interest.

Explanation.--

[* * *]

(g) [Remove a Pradhan, or member of a Gram Panchayat] or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he-

i- absents himself without sufficient cause for more than three consecutive meetings or sittings,

ii- refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude,

iii- has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable In public interest, or

[(iii-a) has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Castes, the Scheduled Tribes or the backward classes, as the case may be.]

iv- being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or

v- suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5-A;

[Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or [***] is prima facie found to have committed financial and other irregularities such Pradhan or [***] shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government]

..........................."

The bare reading of proviso to Section 95 of the Act would demonstrate that where Pradhan is prima facie found to have committed financial and other irregularity such Pradhan shall cease to exercise and perform the financial and administrative powers and functions, until he is exonerated of the charges in the final inquiry.

Till date learned Collector has not applied his mind finally on the inquiry report. Till day neither removal order is passed against the petitioner nor he is exonerated. Therefore, order ceasing the financial and administrative powers of the petitioner vide order dated 18.09.2014 cannot be quashed at this stage.

Since learned Collector has not applied his mind on the inquiry report, therefore, it would not be proper to exercise jurisdiction under Article 226 of the Constitution of India to find fault with the inquiry report.

Petitioner shall be issued show cause notice before taking any action on the inquiry report, therefore, petitioner shall be at liberty to place all the defence and grounds to challenge the jurisdiction of the inquiry officer as well as inquiry report.

As far as annexure No. 9 is concerned, that seems to have been passed by the Collector in view of the report to find out the bona fide on the part of the petitioner. Petitioner if so advised may or may not deposit the amount.

It goes without saying that learned Collector shall expedite the matter and shall take final decision on the inquiry report in accordance with law at the earliest, in any case, within ninety days. Petitioner shall cooperate with the Collector.

Consequently, writ petition fails and is hereby dismissed. CLMA No. 169 of 2015 also stands disposed of accordingly.