Pramod Kumar Singh vs District Magistrate, Sultanpur and Others

S.S. Chauhan, J.

This writ petition has been filed challenging the order dated 5.7.2006, by means of which a pecuniary liability of Rs.49,868/has been fastened upon the petitioner in the capacity of Gram Panchayat Vikas Adhikari alongwiththe Pradhan.

The brief facts of the case are that the petitioner at the relevant time was posted as Gram Panchayat Vikas Adhikari in Gram Panchayat Belasada, Block Bhadaiyan. A complaint supported by an affidavit was moved against the Gram Pradhan and the C.D.O. was asked to submit a reply regarding the said complaint after making an enquiry. The C.D.O. directed the District Panchayat Raj Officerto make an enquiry on 6.3.2003. The District Panchayat Raj Officer enquired into the matter and came to the conclusion that the charges were not proved against any person. Thereafter the aggrieved complainants moved an application to the District Magistrate and to the State Government that the enquiry conducted by the District Panchayat Raj Officer was not fair and has been done under political pressure and, therefore, fresh enquiry may be conducted through some other person. The State Government thereafter directed the Technical Examiner to conduct an enquiry. The District Magistrate by means of letter dated 18.6.2004 transferred the entire enquiry to the Technical Examiner, Faizabad Cell. He conducted the enquiry and submitted his report on 27.11.2004. The District Magistrate thereafter issued a show cause notice on the basis of the said report to the Pradhan on 24.12.2004. The Pradhan did not reply to the said show cause notice on technical ground and evaded to cooperate in the enquiry on the ground that certain papers were not supplied to him and ultimately he submitted his reply on 13.8.2005. On the allegations of the Pradhan the District Magistrate got another enquiry conducted through the District Panchayat Raj Officer, Sultanpur. The District Panchayat Raj Officer could not point out any illegality in the report of the Technical Examiner. The total amount came to Rs.1,49,604/ and the said amount was equally distributed among all the persons, who jointly operated the, account, namely Smt. Madhuri Dubey, Pradhan, Gram Panchayat Vikas Adhikari and Km. Nafisa Ansari.

Learned counsel for the petitioner has submitted that the impugned order has not been passed by the prescribed authority and, therefore, the order is without jurisdiction. He also submits that the liability cannot be fastened upon the petitioner as no opportunity has been given to him to explain the short coming levelled against him. The further submission is that the action under Section 27 of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as the ''Act'') can only be taken against Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat and Section 27 does not include the petitioner, who was working as Gram Panchayat Vikas Adhikari. Further reliance has been placed upon Section 2(q) of the Act where the prescribed authority has been defined as an authority nominated for the purposes of the provisions of the Act in ScheduleIll of the (Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961), the (Zila Panchayat) or the (Kshettra Panchayat), as may be specified in column 3 of that Schedule.

The District Magistrate is not the prescribed authority with respect to the petitioner as such the order passed by the District Magistrate suffers from manifest illegality and jurisdictional error.

The learned Standing Counsel in reply to the arguments of the petitioner''s counsel has submitted that the petitioner was issued a show cause notice, which he did not reply and chose to remain silent. The petitioner was asked to participate in the enquiry, but he did not participate in the said enquiry. He also submits that the prescribed authority with respect to the petitioner is District Panchayat Raj Officer as contemplated under Section 27 read with Section 2(q) of the Act. He further submits that the order has been passed in accordance with law and the question of jurisdiction of the authority can be determined by this Court in accordance with law. The petitioner was also placed under suspension and on account of the fact that the departmental proceedings could not be concluded within the stipulated time as provided by this Court, the petitioner has been reinstated, but so far the liability fastened upon him with regard to the substandard construction carried out by h m being member of the Committee, there, is no illegality in it and the order in question does not require any interference.

I have heard the learned counsel for the parties and gone through the record.

The question, which falls for determination, is as to which is the prescribed authority for the purposes of fastening liability upon the petitioner. The petitioner, who has been appointed as Gram Panchayat Vikas Adhikari, is a servant of the Gram Panchayat, which is evident from Section 25A of the Act, which reads as under:

"25A. the State Government or such officer or such authority as may be empowered by it in this behalf shall appoint a Panchayat Sewak for every Gram Panchayat or group of Gram Panchayat who shall act as secretary of such Gram Panchayat or Gram Panchayats, the Gram Sabha''s concerned and the Nyaya Panchayats within whose circle such Gram Panchayat are situated and perform such other duties as may be specified by the prescribed authority."

The important thing to be noted in the above section is that the Panchayat Sewak is required to perform the said duties as may be specified by the authorities. Rule 256 of the U.P. Panchayat Raj Rules as contained in Chapter XIII deals with surcharge rules. The said rule includes the misconduct of Pradhan, UpPradhan, Member, Officer or servant of the Gaon Panchayat. For ready reference Rule 256 is quoted below:

"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, UpPradhan, Member, Officer or servant of the Gaon Panchayat, he may call upon the Pradhan, UpPradhan, Member, Officer or servant, as the case may be, to explain in writing why such Pradhan, UpPradhan, 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, UpPradhan or member of the Gaon Panchayat shall be called for through the District Magistrate and from the officer or servant through the Dsitrict Panchayat Raj Officer;

Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gaon Panchayat 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.

The explanation has to be sought in writing from the officer or servant of the Gaon Sabha by the District Panchayat Raj Officer. The requirement of surcharge as contemplated under Section 27 is to be proceeded with in accordance with the procedure provided under Rule 256 so far the officer or the servant of the Gram Panchayats are concerned.

The rules as contained in Schedulell are known as the Gram Panchayat and Nyaya Panchayat Servants Conduct Rules. The said rules define servant to mean as:

1(a) ''servant'' means a person appointed to a service or post in connection with the affairs of Gaon Panchayat or Nyaya Panchayat but does not include an inferior servant Schedule II makes it clear and the definition in the above rules is explicit in itself to include the petitioner within the definition of servant, as he does not belong to the inferior category.

Schedule V contains Gaon Panchayat and Nyaya Panchayat Servants'' (Punishment and Appeal) Rules and Rule 3 of the said Rules provides that penalty be imposed by the Gaon Panchayat or by an officer to whom such power has been delegated by the Gaon Panchayat, on any servant of the Gaon Sabha and, by the prescribed authority on any servant of the Nvava Panchavat or on Panchavat Secretary. For ready reference Rule 3 is quoted below:

"3. Punishments The following penalties may, for reasons to be recorded in writing, be imposed by the Gaon Panchayat or by an officer to whom such power has been delegated by the Gaon Panchayat, on any servant of the Gaon Sabha and, by the prescribed authority (as referred to in Section 25 and 25A of the Act) on any servant of the Nyaya Panchayat or on Panchayat Secretary:

(a) Formal Censure.

(b) Fine of an amount not exceeding one months'' pay.

(c) Withholding of increments, including stoppage at an efficiency bar.

(d) Recovery from pay of the whole or part of any pecuniary loss caused to Panchayat or Government by the negligence or breach of an order.

(e) Reduction to a lower post or timescale, or to a lower stage in a timescale.

(f) Suspension.

(g) Removal from service,

(h) Dismissal from service.

Provided that the penalty specified in Clause (b) above shall not be imposed on any person, who is not an inferior servant............."

The words ''on any servant of the Nyaya Panchayat or on Panchayat Secretary'' are of significance and as provided under Section 25A, it is the State Government or any officer or authority as empowered to in this behalf may appoint a Panchayai Sewak. The petitioner specifically falls within the category of Section 25A of the Act and if Rule 3 of the Gaon Panchayat and Nyaya Panchayat Servants (Punishment and Appeal) Rules are read together, then from a harmonious interpretation of the above Rule, it is clear that the petitioner falls within the category of servant of Nyaya Panchayat or Panchayat Secretary or equivalent thereto

The argument of the learned counsel for the petitioner that the District Magistrate has got no power to impose surcharge upon the petitioner, has got some force and substance in view of the Rule 257, which specifically deals with the situation that the recommendation of the Chief Audit Officer along with the papers are to be submitted for necessary action to the District Magistrate in the case of Pradhan, UpPradhan and Members and to the District Panchayat Raj Officer of the district in which Gaon Sabha is situate in case of officers and servants. The above provision akes it clear that the prescribed authority for the purposes of officer or servants is District Panchayat Raj Officer. The surcharge against the petitioner has to be imposed being servant of the Gaon Panchayat by the District Panchayat Raj Officer. The argument that Section 27 of the Act does not include the petitioner, who is Gram Panchayat Vikas Adhikari, thus fails and cannot be sustained in the eye of law. The words ''member of a Gram Panchayat or of a Joint Committee or any other Committee constituted under this Act'' are of significance. The petitioner even otherwise is working as a member of the Committee appointed in pursuance to the Government Order issued by the Chief Secretary dated 16.8.1999, by virtue of which the petitioner in the capacity of Gram Panchayat Vikas Adhikari happens to be the secretary of the Gram Panchayat and the account is operated by the joint signatures of the petitioner and the Gram Pradhan. The contention that the petitioner is not included within the ambit of Section 27 on this score also fails and the surcharge can be imposed on the petitioner by virtue of the fact that he happens to be the servant of the Gram Panchayat and in the capacity of member of the joint committee or any other committee constituted under this Act, he shall be equally responsible for the loss incurred to the Gaon Sabha on account of his negligence or misconduct. The prescribed authority as contemplated under Rule 256 with respect to the officer or servant of the Gram Panchayat is District Panchayat Raj Officer. The order in question has been passed by the District Magistrate. Therefore, the District Magistrate was having no jurisdiction to pass the said order imposing surcharge upon the petitioner and thereby fastening liability upon the petitioner. The order dated 5.7.2006 cannot be sustained in the eye of law as the same is without jurisdiction.

Considering the provisions of the Act it is apparent that with respect to the malfunctioning of the Pradhan and misconduct of the Gram Panchayat Vikas Adhikari, who are working as members of the joint committee in pursuance to the Government Order dated 16.8.1999, separate proceedings are to be drawn with respect to the petitioner by District Panchayat Raj Officer and with respect to the Pradhan by the District Magistrate. Such anomalous situation often arises in fastening of liability in the form of surcharge upon Gram Panchayat Vikas Adhikari working in the Gram Panchayat on account of the above technical flaw.

With a note of caution, the State Government may think about the appointment of a common prescribed authority in respect to surcharge proceedings being drawn against the Pradhan and the Gram Panchayat Vikas Adhikari, so that such technicalities may not arise in future and one prescribed authority may hear all the concerned persons and take into consideration the entire facts and then pass a surcharge order.

The writ petition is accordingly allowed and a writ in the nature of certiorari is issued quashing the Annexure No.2, dated 5.7.2006. However, it will be open for the District Panchayat Raj Officer, being the prescribed authority under the Act, to proceed against the petitioner by issuing a fresh show cause notice within a period of one month and shall conclude the proceedings against the petitioner within a period of four months from the date a certified copy of this order is produced before him.

There shall be no order as to costs.

Let a copy of this judgment be forwarded to the State Government by the Registrar for necessary action.

(Petition allowed)