Madho Lal (Pradhan) vs State of U.P. and Others

V.K. Shukla, J.—Madhav Lal, Pradhan of Gram Panchayat Songarh, District Mirzapur has approached this Court questioning the validity of the decision dated 3.11.2009 passed by the District Magistrate, Mirzapur proceeding to cease financial and administrative power of petitioner as Pradhan in exercise of authority vested under the proviso of Section 95(1)(g) of U.P. Panchayat Raj Act, 1947.

Brief background of the case is that on 11.8.2009 in order to supervise the development activities, village Chaupal was held and therein it was reflected that Pradhan of village has indulged in financial and other irregularities in respect of construction activities and in reference to the same Vinay Kumar son of Sri Shyam Lal, member of Kshetra Panchayat Haliya and Lallu Ram son of Sri Taulan, member of Gram Panchayat Songarha also made complaint supported by affidavit. On the said complaint being moved, District Panchayat Raj Officer was asked to make inquiry and submit report. District Panchayat Raj Officer made inquiry and submitted its report and thereafter, District Magistrate, Mirzapur on 5.10.2009 issued show cause notice to petitioner. To the said show cause notice, petitioner submitted his reply on 24.10.2009 and thereafter, order impugned has been passed, which is subject matter of challenge in the present case.

Counter affidavit has been filed and therein action, which has been sought to be taken has been sought to be justified.

After pleadings mentioned above have been exchanged, and thereafter, present writ petition has been taken up for final hearing/disposal with the consent of the parties.

Sri Arvind Srivastava, Advocate, learned Counsel for petitioner contended with vehemence that in the present case complaint on the basis of which impugned order ceasing financial and administrative power has been passed is not at all in consonance with the Rule-3 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans, Members) Enquiry Rules, 1997 and entire proceedings so undertaken are contrary to Rules,3,4, and 5 of 1997 Rules as petitioner has neither been permitted to participate in the preliminary inquiry nor has been given report of inquiry officer and order impugned has been passed in routine mechanical manner and as such same is liable to be quashed.

Countering the said submission, learned Standing Counsel as well as Sri Syed Wazid Ali, Advocate and Sri S.K. Singh, Advocate on other hand contended that proceedings against petitioner has been undertaken strictly in consonance with rules and formal inquiry is yet to be concluded, as such this Court should refuse to interfere with the same.

In order to appreciate the respective arguments, the provisions of Section 95 (1) (g) of the U.P. Panchayat Raj Act and Rules 3, 4, 5, 6, 7 and 8 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 are being quoted below:

U.P. Panchayat Raj Act, 1947

Inspection.- (1) The State Government may-

(a) ....

(b) ....

(c) ....

(d) ....

(e) ....

(f) ....

(g) remove a Pradhan, Up-Pradhan or member of a Gram Pachayat 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;

(iii-a) has taken benefit of reservation under Sub-section (20 of Section 11 or Sub-section (3) 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 Caste, the Scheduled Tribes or the backward classes, as the case may be;

(iv) being a Sahayak Sarpanch of a Sahayak Sarpanch of the Nyaya Panchayat takes active part in the 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 in such manner as maybe prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan 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 n Gram Panchayat appointed by the State Government.

The Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997

Procedure relating to complaints.- (1) any person making complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any other officer empowered in this behalf by the State Government.

(2) every complaint referred to in Sub-rule (1) shall be accompanied by the complainant''s own affidavit in support thereof and also affidavit of all persons from whom he claims to have received information of facts relating to accusation, verified before a notary, together with all documents in his possession or power pertaining to accusation.

(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavits respectively.

(4) Not less than three copies of the complaint as well as each of its annexure shall be submitted by the complainant.

(5) A complaint which does not comply with any of the foregoing provisions of this Rule shall not be entertained.

(6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule if a complaint against a Pradhan or Up-Pradhan is made by a public servant.

Preliminary Enquiry.- (1) The State Government may, on the receipt of complaint or report referred to in Rule 3 or otherwise order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is prima facie case for a formal inquiry in the matter.

Enquiry Officer- Where the State Government is of the opinion , on the basis of report referred to in Sub-rule (2) of Rule 4 or otherwise that an enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to Clause (g) of Sub-section (1) of Section 95 it shall forthwith constitute a committee envisaged by proviso to Clause (g) of Sub-section (1) of Section 95 of the Act and by an order ask an Enquiry Officer, and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated under Sub-rule (2) of Rule 4, to hold enquiry.

Procedure of the enquiry.-(1) The substance of imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry officer by the State Government.

(2) The Inquiry officer shall draw up-(a) the substance of imputations into definite and distinct articles of charge; and

(b) a statement of imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained.

(3) The Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified.

(4) On receipt of the written statement of defence, the inquiry officer shall enquire into such of that articles of charges as are not admitted and where all articles of charges have been admitted in the written statement of defence, the Inquiry officer shall record his findings on each charge after taking such evidence as he may think fit.

(5) If the person who has not admitted any of the articles of charges in his written statement of defence, appears before the Inquiry Officer, he shall ask him where he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiry officer shall record he plea, sign the record and obtain the signature of that person, and return a finding of guilt in respect of those charges.

(6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence,-

(a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents specified in the list referred to in Sub-rule (2);

(b) submit a list of witnesses to be examined on his behalf;

(c) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for discovery or production of any documents that are relevant to the inquiry an are in the possession of the State Government, but not mentioned in the list referred to in Sub-rule (2).

(7) The person against whom enquiry is being held may take the assistance of any other person to present the case on his behalf, and the inquiry office may appoint any person as a presiding Officer to assist him in conducting the inquiry:

Provided that a legal practitioner shall not be engaged or appointed under this sub-rule.

(8) If the person applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule 92), the Inquiry officer shall furnish him with such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved.

(9) The Inquiry officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:

Provided that the Inquiry officer may; for the reasons to be recorded in writing , refuse to requisition such of the documents as are, in his opinion, not relevant to the case.

(10) On receipt of the requisition referred to in Sub-rule (9, every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Officer:

Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any such documents would be against the public interest o security of the State, it shall inform the Inquiry officer accordingly and such Inquiry Officer shall, on being so informed, communicate the information to the person against whom the inquiry is being held and withdraw the requisition made by him for the production or discovery of documents.

(11) On the date fixed for enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall be examined, by the Inquiry officer by or on behalf of the complainant, if there is one and may be cross- examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be examined by the Inquiry officer or the complainant, as the case may be, on any point on which they have been cross-examined, but not on any new matter, without the leave of the Inquiry officer.

(12) The Inquiry officer may allow production of evidence not included in the list given to the person against whom the inquiry is being held , or may itself call for new evidence or recall and re-examine any witness and in such case the said person shall be entitled to have if her demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry Officer for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record, the Inquiry officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice.

Note- Now evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called from only when there is an inherent lacuna or defect in the evidence which has been produced originally.

(13) When the evidence for proving the articles of charge against the person against whom inquiry is being held is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the defence is made orally, it shall be recorded and the said person shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the complainant, if any.

(14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiry officer according to the provisions applicable to the witnesses for proving the articles of charge.

(15) The Inquiry officer may, after the person against whom inquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him.

(16) The inquiry officer after completion of the production of evidence, hear the complainant, if any and the person against whom enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases.

(17) If the person to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry officer o otherwise fails or refuses to comply with the provisions of this rule, the Inquiry officer may hold the enquiry ex parte.

(18) Whenever Inquiry officer after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiry Officer, the inquiry Officer so succeeding may act on the evidence so recorded by his predecessor or partly or recorded by himself.

Provided that if the succeeding inquiry officer is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice he may recall, examine, cross-examine and re-examine any such witness as herein before provided.

Report of the inquiry officer.- After the conclusion of the enquiry, the Inquiry Officer shall prepare a report which shall contain-

(a) the articles of charge and the statement of the imputations;

(b) the defense of the person against whom the enquiry has been held;

(c) the assessment of the evidence in respect of each article of charge;

(d) the findings on each article of charge and reasons therefor.

Explanation.-If in the opinion of the Inquiry Officer the proceedings of the enquiry establish any article of charge different from the original articles of charge, he may record his findings on such article of charge.

Provided that the findings on such article of charge shall not be recorded unless the person against whom enquiry has been held has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

The Inquiry Officer shall conclude the enquiry within six months from the date of receipt of complaint and forward to State Government the records of the enquiry, which shall include-

(a) the report prepared by him under Rule 7;

(b) the written statement of defence, if any, or the person against whom enquiry has been held;

(c) the oral and documentary evidence produced during the course of the enquiry;

(d) written briefs, if any, filed during the course of the enquiry; and

(e) the order, if any, made by the State Government and the Inquiry officer in regard to the enquiry.

Under Chapter VII of the U.P. Panchayat Raj Act, State Government has been vested with the authority to remove a Pradhan, Up-Pradhan or Members of Gram Panchayat on account of the activities carried out by Pradhan, Up-Pradhan or Members of Gram Panchayat mentioned in Sub-clauses (i) to (iv) of Clause (g) of Sub-section (1) of Section 95 of the U.P. Panchayat Raj Act. It has also been provided therein to seize financial as well as administrative powers and functions of the aforementioned persons, viz. Pradhan, Up-Pradhan or Members of Gram Panchayat when in enquiry held against such persons by such person in such manner as may be prescribed, a Pradhan or Up-Pradhan is found to have committed financial and other irregularities and then he has to face formal enquiry. In exercise of powers vested u/s 110 read with Clause (g) of Sub-section (1) of Section 95 of the U.P. Panchayat Raj Act, 1947, Rules have been framed dealing with removal of Pradhan, Up-Pradhan and Members. Rule 3 deals with procedure relating to complaints. Rule 4 clearly provides that the State Government on the receipt of complaint or report referred to in Rule 3 or otherwise may order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is prima facie case for a formal inquiry in the matter. Enquiry Officer is thereafter obliged to conduct preliminary enquiry as expeditiously as possible and submit report to the State Government. Rule 5 clearly provides that where the State Government is of the opinion on the basis of report referred to in Sub-rule (2) of Rule 4 or otherwise that an enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to Clause (g) of Sub-section (1) of Section 95 it shall forthwith constitute a committee envisaged by proviso to Clause (g) of Sub-section (1) of Section 95 of the Act and by an order ask an Enquiry Officer other than the Enquiry Officer nominated under Sub-rule (2) of Rule 4, to hold enquiry. Rule 6 gives procedure, which is to be followed in the enquiry. The substance of imputations, and a copy of the complaint referred to in Rule 3, if any, has to be forwarded to the Inquiry Officer by the State Government, and the Inquiry Officer thereafter shall draw up the substance of imputations into definite and distinct articles of charge; and further statement of imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained. Enquiry Officer is obliged to deliver the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified. After receipt of the written statement of defence, the Inquiry Officer has to enquire into such of that articles of charges as are not admitted and where all articles of charges have been admitted in the written statement of defence, the Inquiry officer shall record his findings on each charge after taking such evidence as he may think fit. If the person who has not admitted any of the articles of charges in his written statement of defence, appears before the Inquiry Officer, the Inquiry Officer is obliged to ask him where he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiry Officer shall take evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges. The provision of assistance has also been provided. Copies of the statement of witnesses are also liable to be supplied. Inquiry Officer is duty bound to fix the date, time and place of enquiry and is further duty bound to provide opportunity to cross examination from the witnesses produced. Evidence is also permitted. After evidence is closed, then defence is permitted to be made orally or in writing, if the evidence is given orally, it has to be recorded. Thereafter, evidence on behalf of the person against whom the inquiry is being held shall then be produced. The Inquiry officer after completion of the production of evidence, hear the complainant, if any and the person against whom enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases. After the enquiry is concluded, the Inquiry Officer shall prepare a report containing the articles of charge and the statement of the imputations; the defence of the person against whom the enquiry has been held; the assessment of the evidence in respect of each article of charge; the findings on each article of charge and reasons therefor. Inquiry officer has to submit report as prepared under Rule 7, which shall include written statement of defence, if any, or the person against whom enquiry has been held; oral and documentary evidence produced during the course of the inquiry; written briefs, if any, filed during the course of the enquiry; and the order, if any, made by the State Government and the Inquiry officer in regard to the enquiry.

Keeping in mind, the aforesaid statutory provision, the first question to be adverted to in the present case, is as to whether in the absence of there being verification of the averment of the complaint in question, said proceedings could have been validly undertaken or not ?. Qua said aspect of the issue Division Bench of this Court, in reference to akin provisions, of Kshetra Panchayat, has clarified the legal position in the case of Smt. Kesari Devi v. State of U.P. 2005(4) AWC 3581. Factual position, which has emerged in the present case is that both the complainants, whose name have been referred to in the impugned order are public servant. Section 28 of the Act provides that every member or servant of a Nyaya Panchayat, Gram Panchayat, a joint committee or any other committee constituted under the Act shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. Similar is the provision under Kshetra Panchayat, in such a situation both the complainants in the present case are public servant and in such a situation procedure prescribed under Sub-rule (5) of Rules 3 of the Act was not at all attracted and in this background in case there was any short coming in verification of the proceeding, same was neither here nor there.

View, which has been taken, is duly supported by Division Bench judgment of this Court in the case of Moti Lal v. District Magistrate, Lalitpur and Ors. 2003(1) SCC736. Relevant para Nos. 8,9, and 13 are being extracted below:

The copy of the complaint on the basis of which preliminary enquiry has been ordered has been annexed by the appellant as Annexure-1 to the affidavit filed in support of the stay application. The complaint is also supported by an affidavit of Mangal Singh who is said to be Up-Pradhan. Affidavit of Mangal Singh has been filed as Annexure-2 to the affidavit filed in support of the stay application. The Up-Pradhan, Mangal Singh, is himself complainant alongwith the several other villagers. The complaint being supported by an affidavit, there is a compliance with Sub-rule (2) of Rule 3 of 1997 Rules. The reliance of learned Standing Counsel on Sub-rule (6) of Rule 3 is wholly justified. Sub-rule (6) of Rule 3 of 1997 Rules provides that if a complaint against a Pradhan is made by public servant, it shall not be necessary to follow the procedure laid down in the provision of Rule 3. It is not disputed that complaint against appellant was by Up-Pradhan. Section 28 of the Act provides that every member or servant of a Nyaya Panchayat, Gram Panchayat, a joint committee or any other committee constituted under the Act shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. Up-Pradhan being member of Gram Panchayat is a public servant within the meaning of Section 28 of the Act. The complaint against the appellant being filed by Up-Prahdan, the procedure as prescribed in Rule 3 to Sub-rule (1) to (5) was not attracted and no fault can be found with the complaint. The submission of learned standing Counsel that preliminary enquiry can be ordered even without there being any complaint also has merit. Rule 4 of 1997 Rules is a enabling provision giving power to the State Government to order holding of a preliminary enquiry with a view to find out that there is a prima facie case for formal enquiry or not. The words" or otherwise" occurring in Sub-rule (1) of Rule 4 are of wide import. Even if no complaint is filed as envisaged by Rule3, the State Government does not lack of power to direct holding of preliminary enquiry. There may be cases in which the District Magistrate or other officials charged with looking the affairs of Gram Panchayat may receive information or may personally finds fact requiring holding of preliminary enquiry. For example, the Sub-Divisional Officer who is in charge of a sub-division if finds a Pradhan abusing his position and committing serious financial irregularities can report the matter to the District Magistrate who is authority competent to order of preliminary enquiry. The report of Sub-Divisional Officer may form basis for directing a preliminary enquiry. The District Magistrate may after personally coming to know some serious lapse on the part of the Pradhan may direct preliminary enquiry without there begin any complaint or report. In the present case the complaint submitted by the Up-Pradhan was valid material for directing preliminary enquiry, hence the submission of Counsel for the appellant has no substance.

The word " otherwise" as referred to in Rule 4 has also been considered in Chunmun Vs. District, Magistrate and another, It was held by this Court in paragraph 8 of the aforesaid judgment.

The expressions ''or otherwise'' used in Rule 4(1) of the Enquiry Rules has a meaning ejusdem generis with " complaint or report" and only enables the District Magistrate to order the District Panchayat Raj Officer to conduct preliminary enquiry with a view to finding out if there is prima facie case for a formal enquiry in the matter not only on the basis of a complaint received under Rule 3 of the Enquiry Rules but he may do so even on the basis of a report received'' otherwise'' disclosing the cause for holding a preliminary enquiry in the matter. A complaint by a public servant under Rule 3(6) may partake the nature of a report received'' otherwise'' within the meaning of Rule 4 of the Enquiry Rules. Similar expression used in Rule 5 of the Enquiry Rules enables the District Magistrate to direct the Enquiry Officer to hold a formal enquiry on the basis of the report or information other than the one contained in Rule 4(2) of the Enquiry Rules

The third submission of Counsel for appellant has also no substance. While holding a preliminary enquiry under Rule 4 of 1997 Rules the Enquiry Officer is not obliged to give opportunity to appellant nor the Rules require holding of preliminary enquiry in the presence or appellant.

In this background once both the complainants were public servant then in such situation formalities, which were required to be fulfilled while moving complaint, was not at all mandatorily required and cognizance could have been taken on the same and directives for holding preliminary inquiry could also have been given.

During course of argument, much emphasis has been sought to be laid that no order has been passed in black and white, appointing District Panchayat Raj Officer as inquiry officer to conduct preliminary inquiry. In the entire body of the writ petition, there is no specific averment mentioned and neither any objection has been taken qua the same at the point of time when the objection has been filed to show cause notice and as such said argument advanced is neither here nor there. Order passed by the District Magistrate clearly reflects and there is clear cut recital of the fact that he had asked the District Panchayat Raj Officer to conduct inquiry into the matter and once such recital is there and in the writ petition and objection so filed to the show cause notice at no point of time any such objection had been raised, then in such a situation, such plea cannot be entertained. Records are speaking specially means of recital made by the District Magistrate that District Panchayat Raj Officer has been authorized to make inquiry, and in the present case it has to be accepted that District Panchayat Raj Officer, who is inquiry officer in term of Rule 2(c) of the 1997 Rules had been asked to conduct preliminary inquiry.

Much emphasis has also been laid on the fact that in the present case petitioner has not at all been associated with the preliminary inquiry and further at the point of time when opinion have been formed, reply submitted by the petitioner has not at all been adverted to. As far as association of the petitioner in making inquiry is concerned, qua the same it would be relevant to mention that preliminary inquiry has been conducted by the District Panchayat Raj Officer and therein prima facie against the petitioner material has been found on this aspect of the matter, as to whether petitioner is to be associated in the preliminary inquiry or not, there are two direct Division Bench judgment against the petitioner, first judgment in the case of Moti Lal Vs. District Magistrate and Another, relevant extract has already been extracted above.

There is another Division Bench Judgment in the case of Smt. Sangeeta Devi v. State of U.P. and Ors. 2008(6) ADJ 517 wherein said Division Bench judgment has been followed. Relevant Para No. 13 is quoted below.

That apart, having regard to the provisions of U.P. Panchayat Raj Act and the Rules framed thereunder referred to above, we are of the view that the order withdrawing financial and administrative power and function of the Pradhan or Up-Pradhan under the proviso to Section 95(1)(g) of the Act is in the nature of interim order pending enquiry to prevent misuse of financial and administrative power and function by the Pradhan facing charges of financial and administrative irregularities and thus, at this stage the Act or the Rule does not contemplate to provide any opportunity of hearing or show cause or participation of Pradhan or Up-Pradhan facing charges in the preliminary enquiry. The Hon''ble Single Judge of this Court in the case of Smt. Radhili Devi v. District Magistrate, Padrauna and Ors. 1997(1) AWC 251 , took the view that no opportunity of hearing is necessary before resorting to such interim measure as it is analogous to a suspension order passed against a Government servant and only at the state of regular enquiry before passing final order of removal, opportunity of hearing is to be extended. Similar view was expressed by a Division Bench of this Court in the case of Moti Lal Vs. District Magistrate and Another, wherein their Lordships having taken note of the provisions contained in Rules 3 and 4 and proviso to Section 95(1)(g) of the Act, held that while holding preliminary enquiry the Enquiry Officer is not obliged to give opportunity to the appellant nor the rule requires holding of preliminary inquiry in the presence of the appellant. We, with respect endorse the above view, Therefore, we do not find any substance in the contention that the impugned order has been passed in violation of the principles of natural justice nor we find any violation of prescription of law calling for interference in the impugned order.

Counter to the same, in reference of akin provisions as are available under U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam 1961 and U.P. Kshetra Panchayat and Zila Panchayasts (Removal of Pramukhs, Adhyaksha and Upadhyaksha) Enquiry Rules, 1997, all together different view has been expressed in the case of Smt. Kesri Devi v. state of U.P. 2005(4) 3563, followed in the case of Chinta Yadav v. state of U.P. 2008(3) UPLBEC 2239, wherein while considering analogous provision of U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam 1961. Section 29 and 16(1) which deals with cessation of Administrative and financial powers of Adhyaksha of Zila Panchayat view has been taken that passing of order of cessation of Administrative and financial powers of Zila Panchayat without associating in preliminary inquiry would be gross violation of the provision of the Act as well as Rules beside the principles of natural justice and proviso to Section 29 reveals that it obligates the State Government to get a preliminary enquiry held, which enquiry shall be held by such person and in such manner as may be prescribed; the prescription has been made by Rules 1997 and if in that enquiry Adhyaksha or Upadhyaksha is prima facie found to have committed financial and other irregularities, such Adhyaksha or Upadhyaksha shall cease to exercise and perform the financial and administrative powers and functions. This means that not only a preliminary enquiry is to be held under the orders of the State Government but it has to be held by a person duly nominated for the purpose, in accordance with rules and if in that enquiry, it is prima facie found that the Adhyaksha or Upadhyaksha has committed financial and other irregularities, he shall cease to exercise and perform the financial and administrative charges in the final enquiry. This again means that liability has to be established and misconduct has to stand proved, may be prima facie only then formal enquiry would be conducted and his administrative and financial powers can be ceased and the State Government will have the jurisdiction to appoint a three members committee for the purpose.

Learned Single Judge of this Court in view of conflicting opinion in respect of procedure to be adopted for holding of preliminary inquiry has referred the matter to the larger bench and said larger bench judgment is awaited. Relevant extract of reference made in the case of Smt. Kamla Devi v. State of U.P. and others, 2008 (8) ADJ 684 are as follows. Relevant paragraphs 6,7 and 8 of the said judgment are as follows:

From a perusal of the aforesaid, it is clear that the provisions are analogous. Consequently, in order to reconcile the question the position on the issue in question and to set the matter at rest, this Court is of the opinion that the matter is required to be adjudicated and decided by a Larger Bench. There are judgments for and against given by Single Judge of this Court as well as by a Division Bench. Since there is conflict in the decisions of the Court and in view of the provisions of Chapter V, Rule 6 of the Rules of the Court, this Court directs the Registry to place these papers before the Hon''ble Chief Justice for constitution of a larger Bench to decide the issue, namely, whether the authority is required to give a show cause notice and an opportunity of hearing to the Pradhan while passing an order ceasing the financial and administrative powers of the Pradhan under the proviso to Section 95 (1) (g) of the U.P. Panchayat Raj Act.

7.This Court has noticed that a large number of petitions are coming up before this Court where financial powers of the Pradhan has been ceased without giving an opportunity of hearing. Consequently, this Court is of the opinion that the matter should be decided at the earliest by a larger Bench.

In the present case, the Court finds that no show cause notice or opportunity of hearing was given to the petitioner by the authority before ceasing the financial and administrative powers. The Pradhan derives his power and status under the Constitution pursuant to 73rd Amendment, 1992. The purpose of this enactment was to provide complete authority without interference from the State authorities. The Court further finds that the power exercised by the authority under the proviso to Section 95 (1) (g) of the Act is a quasi judicial power, which entails civil consequences, and therefore, it becomes all the more necessary that the principles enshrined under Article 14 of the Constitution is given effect to. Consequently, this Court is of the opinion that, a show cause notice and an opportunity of hearing is the minimum requirement to be given to the Pradhan, by authority, before passing an order ceasing the financial and administrative powers under the proviso to Section 95 (1) (g) of the Act. Since that has not been done in the present case, consequently, I direct that till disposal of the writ petition qua the decision of the larger Bench, the impugned order ceasing financial and administrative powers of the petitioner, shall remain stayed. It shall, however, be open to the authorities to proceed and complete the formal enquiry contemplated u/s 95 (1) (g) of the Act read with U.P. Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry Rules, 1997.

On this aspect of the matter, it would be much more appropriate, that record of present writ petition be also tagged with the record of Writ Petition No. 45376 of 2008 and Writ Petition No. 36881 of 2008.

Apart from this, in addition to the issue which has been referred to above, this Court in Civil Misc. Writ Petition No. 49305 of 2009, Het Kishan v. State of U.P., today has also made reference referring following two interlinked question to be answered by larger Bench: "As to whether the observations made in the case of Chunmun v. The District Magistrate, Sonbhadra 1998 (89) RD 771, to the effect that the expression ''or otherwise'' used in Rule 5 however, does not empower the District Magistrate to form the requisite opinion under the first proviso on the basis of a report other than the one submitted under the Enquiry Rules i.e. the report referred in Rule 4 (2) or Rule 7 of the said Rules, are correct observations and same makes the second part of Rule 5 as redundant and otiose"

The second question linked to the first question is, "As to whether the District Magistrate, even if no preliminary enquiry has been held, is otherwise equipped with material, prompting him to undertake formal enquiry, even then obliged to direct for holding of preliminary enquiry or he is free to proceed in the matter under Rule 5 which confers on him the authority to proceed on the report referred to in Rule 4 (2) "or otherwise".

Tenure of the office of Pradhan is coming to an end and fresh elections are also in contemplation, in such a situation, it is much more necessary that all such issues are decided at the earliest, which further in its turn would give valuable guidelines and authoritative pronouncement on the subject to deal with the matter effectively. Office is directed to place the papers of this writ petition as well as papers of Civil Misc. Writ petition No. 45376 and 36881 of 2008, before Hon''ble the Acting Chief Justice, under Chapter V, Rule 6 of the High Court Rules, within two weeks from the date of delivery of this order, for constitution of larger Bench, to answer the issues raised.

Office of the Pradhan derives its existence and status under the Constitution pursuant to 73rd Amendment, 1992, and Pradhan is entitled to function for the term for which one has been elected. The right to hold such post is statutory, and deprivation of the said right has to be in fair manner, be it temporary or permanent removal and as issues raised in both the writ petitions are of great general importance, touching the fairness of procedure to be adhered to, looking into facts of the case, till the said issues are not answered, the order under challenge ceasing financial and administrative powers of Pradhan, is kept in abeyance. The Pradhan shall be free to exercise Administrative power, but as far as financial powers are concerned, qua the same, it is hereby directed that financial transaction as is envisaged under Chapter X of the U.P. Panchayat Raj Rules, 1947, shall be done by

District Panchayat Raj Officer concerned, on the recommendations of Gram Panchayat and records will be maintained strictly as per the Rules. Qua other financial matters also concurrence be taken from concerned District Panchayat Raj Officer, and in matter of mid-day-meal from concerned District Basic Education Officer. Pendency of this reference will not prevent the authorities to undertake and conclude formal enquiry as is envisaged under Rules 6, 7, 8, and 9 of Enquiry Rules, 1997, and to take final decision in the matter.

Registry shall proceed accordingly