Rais Ahmad vs State of U.P. and Others

Tarun Agarwala, J.—Heard Sri Subodh Kumar, the learned Counsel for the petitioner and the learned standing Counsel for respondent Nos. 1 to 5.

Inspite of a stop order and inspite of repeated time being granted to the respondents to file a counter-affidavit and inspite of a stop order, no counter-affidavit has been filed. Consequently, the Court is proceeding with the final disposal of the case on the basis of the averments made in the writ petition.

The petitioner is the elected Pradhan and by the impugned order dated 30.6.2008 his financial and administrative powers has been ceased by ah order of the District Magistrate dated 30.6.2008 under the first proviso to Section 95(1)(g) of the U.P. Panchyat Raj Act. The petitioner, being aggrieved by the said order, has filed the present writ petition.

The learned Counsel for the petitioner submitted that the impugned order ceasing the financial and administrative powers of the petitioner has been passed without holding a preliminary enquiry as prescribed under the Rules and without appointing an enquiry officer and consequently, the impugned order was ex facie illegal and was liable to be quashed. Section 95(1)(g) and the proviso thereto reads as under:

(1)(g). remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee of Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he-

i) absents himself without sufficient cause from more than three consecutive meetings or sittings,

(ii) refused 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 11A 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 the 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 disqualification mentioned in Clauses (a) to (m) or Section 5A:

[Provided that where in an enquiry held by such person and in such manner as may be. 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 Gram Panchayat appointed by the State Government]:

Provided that-

(i) no action shall be taken under Clause (f), Clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed;

A perusal of the first proviso indicates that an enquiry would be held by such person in such manner as may be prescribed. The words ''enquiry'' and "as may be prescribed" are of importance, which in my opinion, would mean an enquiry to be conducted in the manner prescribed under the Rules. The State Government in exercise of the powers conferred u/s 110 read with Clause (g) of Sub-section (1) of Section 95 of the Act has promulgated the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. Section 2(c) defines the enquiry officer as under:

(c) ''Enquiry Officer'' means an officer not below the rank of District Panchayat Raj Officer, appointed as such, by the Sate Government.

Rules 3, 4 and 5 of the Rules of 1997 are relevant for the purposes of this case, which are quoted hereinbelow:

Procedure relating to complaints,- (1) Any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any 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 affidavits of all persons from whom the claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession, or power pertaining to the 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 of 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 rules 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 a prima facie case for a formal enquiry in the matter.

(2) The Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered.

Enquiry Officer.- Where the State Government is of the opinion, on the basis of the 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 the enquiry.

A perusal of Rule 3 indicates that any person may make a complaint against a Pradhan which is required to be supported by an affidavit, etc. and on the basis of that complaint, the State Government may order a preliminary enquiry to be conducted by an enquiry officer nominated by him under Rule 4 of the Rules with a view to find out, if there exists a prima facie case for a formal enquiry into the matter. On the basis of a preliminary enquiry report, the District Magistrate may cease the financial and administrative powers of the Pradhan in the event the authority comes to a prima facie conclusion that the Pradhan had committed financial and other irregularities and would be obliged to constitute three members to perform the financial and administrative powers of the Pradhan.

In the light of the aforesaid provisions, the Court finds upon a perusal of the impugned order that the District Magistrate has relied upon the report of the District Panchayat Raj Officer dated 15.1.2008 and, on that basis, has passed the order ceasing the financial and administrative powers of the Court. In paragraph 23 of the writ petition it has been specifically averred that the District Panchayat Raj Officer was never appointed as an Inquiry Officer by the District Magistrate nor was he nominated to enquire or submit a preliminary inquiry report. Paragraph 23 of the writ petition further indicates that the District Basic Shiksha Adhikari had stated that he had conducted the enquiry on the basis of a letter dated 10.1.2008 issued by the Block Development Officer. This paragraph 23 of the writ petition has not been rebutted by the respondents. Consequently, in view of the averments made in paragraph 23 read with the impugned order, it is clear that the District Basic Shiksha Adhikari was not nominated as the Enquiry Officer under Rule 4 of the Rules of 1995 read with Rule (c) of the said Rules. Further, the Block Development Officer who had instructed the District Basic Shiksha Adhikari to submit a report is not a delegated authority of the State Government to issue a direction for conducting a preliminary inquiry. It is only the District Magistrate, who is the delegated authority of the State Government, to issue an order for appointing an Enquiry Officer.

In Chunmun Vs. District, Magistrate and another, it has been held that an enquiry is required to be done by an officer nominated under the Rules by the District Magistrate and that an action against the Pradhan under the first proviso to Section 95(1)(g) can only be done on the basis of the preliminary inquiry report submitted by the Inquiry Officer as per the Rules. In Rajeshwari Kushwaha (Smt.) Vs. District Magistrate and Others, it has been held that the financial powers of the Pradhan could not be ceased unless a preliminary enquiry is held as per the Rules. Similar view was again reiterated in Smt. Prabha Devi v. State of U.P. and Ors. 2008 (7) ADJ 171. In the present case, the Court finds that there is no order appointing the District Basic Shiksha Adhikari as the Enquiry Officer to conduct a preliminary enquiry against the Pradhan. The reliance of the report of the District Basic Shikasha Adhikari at best could be termed as a complaint under Rule 3 of the Rules of 1997 and cannot be called a preliminary enquiry report contemplated under Rule 4 of the Rules.

In view of the aforesaid, the order ceasing the financial powers of the Pradhan has been passed in gross violation of the proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, read with Rules 4 and 5 of the Rules of 1997 which cannot be sustained and is quashed, The writ petition is allowed.