Sirdar vs State of U.P. and Others

Rajiv Sharma, J.—Heard Sri Upendra Nath Mishra, counsel for the petitioner and Sri Rakesh Srivastava, Standing Counsel for the State.

The petitioner being aggrieved by the order dated 5.9.2007 passed by the District Magistrate whereby the financial and administrative powers of the petitioner, who is an elected Gram Pradhan of Gondlamau, have been suspended and the same has been entrusted to a three member committee till the conclusion of the enquiry, the petitioner has filed above captioned writ petition.

It has been urged on behalf of the petitioner that the impugned order dated 5.9.2007 has been passed by the opposite party No. 2 without affording any reasonable opportunity of hearing and without serving any show cause notice, as required under second proviso to Section 95(1)(g) of the U.P. Panchayati Raj Act, 1947 [ in short referred to as the "Act"].

Learned Counsel for the petitioner has submitted that the post of a Gram Pradhan is a constitutional post, therefore, any action depriving with any of the powers entrusted to an elected body, are fraught without serious consequences in as much as it tends to interfere with the constitutional scheme envisaged in Chapter IX of the Constitution of India. Financial and administrative functions are one of the main powers, which are being performed and exercised by Pradhan under the provisions of the Act and Rules made there under as well as under Article 243G of the Constitution, therefore, for arriving at a finding that a Pradhan has prima-facie committed financial and other irregularities has a potential of resulting in serious constitutional and legal repercussions. Thus it was obligatory on the part of the District Magistrate to act strictly in accordance with the provisions of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan & Members) Enquiry Rules, 1997.

Placing reliance upon Smt. Sandhya Gupta v. District Magistrate, Auraiyya and Anr. 1999 (1) UPLBEC 718 and Zameela Begum v. State of U.P. and Ors. 1998(89) RD 379 learned Counsel for the petitioner contended that stripping the financial and administrative powers of a Gram Pradhan without affording adequate opportunity of hearing is illegal and, therefore, it suffers from legal infirmities.

Elaborating his arguments, Sri Upendra Mishra further submitted that similar controversy was involved in the case of Sahab Bux Tewari v. State of U.P. and Ors. [ writ petition No. 2995[ms] of 2004 decided on 1.9.2004] and a learned Single Judge of this Court held that there is no provision of giving show cause notice for appointment of the Committee in place of Gram Pradhan to exercise the administrative and financial power of Gram Pradhan during the enquiry. This order was assailed in the Special Appeal No. 366 of 2004; Sahab Bux Tiwari v. State of U.P. and Ors. and a Division Bench of this Court, in which myself was one of the member, relying upon the decision rendered in Sandhya Gupta v. District Magistrate, Auraiya and Ors. 1999 (17) LCD 586 quashed the judgment and order dated 1.9.2004 and held that the finding of the Hon''ble the Single Judge that no show cause is required prior to the appointment of Committee to exercise administrative and financial powers of Gram Pradhan cannot be sustained under the above facts and circumstances.

Concluding his arguments, learned Counsel submitted that from the cases cited it is clear that show cause notice to a duly elected Gram Pradhan before stripping his financial and administrative powers is a mandatory requirement under the provisions of Section 95(1)(g) and cannot be allowed to be violated unless a duly elected Gram Pradhan, who is a constitutional functionary, is afforded reasonable opportunity of presenting his version. However, in the instant case, the respondent authorities in their counter affidavit have failed to demonstrate as to when the alleged show cause notice was personally served on the petitioner and what was the date and time when the matter was fixed by the authority for giving hearing to the petitioner.

Learned Standing Counsel, on the other hand, submitted that a complaint was made by one Shri Ram son of Shri Gajraj, resident of Saraiya, Block Godlamau alleging therein that the petitioner as Gram Pradhan has committed serious irregularities and has misused the government funds and as such a preliminary enquiry was got conducted through Task Force Officer. In the preliminary enquiry, the charges levelled against the petitioner were found correct and as such a show cause notice dated 10.1.2007 was issued by the District Panchayat Raj Officer, Sitapur to the petitioner calling an explanation from him but the petitioner failed to submit any reply and as such it was presumed that the petitioner had nothing to rebut the charges levelled against him. Thereafter, the District Magistrate, Sitapur in exercise of the powers vested in him by Section 95(1)(g)(3) of the U.P. Panchayat Raj Act, 1947 constitute a committee consisting of three elected Members of the Gram Panchayat to exercise the financial and administrative powers of the Gram Pradhan Saraiya till the conclusion of the enquiry and final orders being passed after the said enquiry.

On behalf of the respondents, relying upon a decision given by a learned Single Judge of this Court at Allahabad in Smt. Krishna Devi v. District Magistrate, Ghaziabad 2003 (95) RD 569 it has been contended by the learned Standing Counsel that suspension of financial and administrative power is only temporary in nature, which will always subject to final orders after an enquiry in accordance with the Scheme of second proviso read with 1997 Rules. He has also placed reliance upon a decision rendered in Smt. Rajbiri Devi v. State of U.P. and Ors. 2003 (94) RD 312 and it is argued that on the basis of preliminary enquiry report, prima facie opinion is to be formed by the authority and the stage of giving detail opportunity to Pradhan does not arise before proceeding with regular enquiry as contemplated under Rule 6.

Learned Counsel for the petitioner has argued with vehemence that in none of the cases which has been relied upon by the Standing Counsel, the earlier decisions of this Court, namely, the decision in Sandhya Gupta v. District Magistrate, Auraiyya nor the judgment of the Division Bench in Saheb Bux Tewari v. State of U.P. and Ors. considered though as a rule of precedent the judgment given earlier should at least be considered and in the event Bench is not in an agreement with the earlier view, the matter should have been referred to larger bench. But the latter bench if it takes a different view without considering the earlier decisions then the judgment would be per-incuriam.

It has also been contended by the petitioner''s counsel that provisions of Section 95(1)(g) would clearly show that before passing an order of seizure of financial and administrative powers by the competent authority only after holding a preliminary enquiry and only after being prima facie satisfied about existence of material irregularities in the matter. However, an exception has been carved out in the Second Proviso to Section 95(1)(g), which says that before exercising the power of seizure of financial and administrative power of a duly elected Gram Pradhan, a show-cause notice and a reasonable opportunity of hearing has to be necessarily afforded to the said Gram Pradhan. In case, no such show-cause notice is given to the person aggrieved, the order of seizure of financial and administrative power would not only be violative of the statutory prescriptions contained in proviso to Section 95(1)(g), but would also be violative of principles of natural justice, as has happened in the instant case.

Learned Counsel for the petitioner has next contended that the District Magistrate has failed to take into consideration the fact that a similar complaint by some disgruntled person, mainly at the instance of political rival {Shriram son of Sri Gajraj} through Lokvani Sitapur and in this case after enquiry, the charges were found baseless and after the preliminary enquiry the matter was dropped. The instant complaint, on which cognizance has been taken, has been made by the same person i.e. Shriram and this time all the actions have been taken at the back of the petitioner.

Next contention of the learned Counsel for the petitioner is that Rule 3 and 4 of the U.P. Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry Rules, 1997 prescribed the procedure for dealing a complaint and conducting preliminary enquiry. In catena of judgments it has been held that enquiry conducted under Rule 4 must be in consonance with the principles of natural justice. He further added that neither the copy of the complaint nor the copy of the preliminary enquiry report was ever supplied to the petitioner. Further at no point of time, the Inquiry Officer asked the petitioner for recording his statement or knowing his version. Thus, the entire proceedings are vitiated and are liable to be quashed.

Since much emphasis has been given on Rule 3 and 4 of the Enquiry Rules 1997, it would be useful to give some reference of the said Rules.

U.P. Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry Rules, 1997 have been framed by the State Government in exercise of powers conferred vide Section 110 read with Clause (g) of Sub section (1) of Section 95 of the United Province Panchayat Raj Act, 1947. Rule 2 is the definition clause and Rule 2 (c) defines Inquiry Officer which means the District Panchayatraj Officer or any other district level officer to be nominated by the District Magistrate. Rule 3 prescribes the procedure relating to complaints and Rule 4 deals with the preliminary enquiry. For convenience same are reproduced hereinunder:

Procedure relating to complaints.- (1) Any person making a complaint against 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 he claims to have received information of acts 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 complaint as well as each of its annexures shall be submitted by the complainant.

(5) A complaint, which does comply with any of the foregoing provisions of these 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 a 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.].

In the instant case, it is not disputed by the opposite parties that petitioner has not submitted any reply to the show cause notice. However, from the counter affidavit it is not clear as and when the notice dated 10.1.2007 was actually served upon the petitioner. A perusal of the Annexure CA-2, which is a copy of the show cause notice dated 10.1.2007, would reveal that Block Development Officer Godlamau was directed to ensure service of the show cause notice dated 10.1.2007 on the petitioner and to send the receipt of service to the State Government. Except the show cause notice, no other documentary proof has been annexed to substantiate that show cause notice was actually served upon the petitioner but the petitioner deliberately avoided to file reply. If a harmonious reading of Section 95(1)(g) of the Act together with the Rules 1997 is made, it would be apparent that not only the issuance of show cause notice is obligatory but opportunity to defend is also to be afforded before passing an order.

In Sandhya Gupta''s case certain guidelines have been laid down and one of the guidelines provides that in case the provisions of Ist and IInd proviso of Section 95(1)(g) relating to stripping of the financial and administrative powers of Pradhan can be invoked only after the actual service of show cause notice on the Pradhan and affording reasonable opportunity of showing cause.

Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.

Besides, natural justice is an inseparable ingredient of fairness and reasonableness. It is even said that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary.

The Hon''ble Supreme Court in umpteen cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav Vs. J.M.A. Industries Ltd., the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon''ble Apex Court concluded as under:

The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive.

In National Buildings Construction Corporation Vs. S. Raghunathan and Others, it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.

At this juncture it would be relevant to produce relevant portion of paragraph 34 of the judgment rendered in State Bank of Patiala and others Vs. S.K. Sharma, Though this decision was given in a service matter but the Hon''ble Apex Court has dealt with the principles of natural justice and the result if it is not followed:

(1) Where the enquiry is not governed by any rules/regulations/ statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e. between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice, in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)

(2) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

In the Special Appeal No. 366 of 2004; Sahab Bux Tiwari v. State of U.P. and Ors. this Court has held in unequivocal words that reasonable opportunity must be afforded before stripping the administrative and financial powers of Gram Pradhan, Up-Pradhan or Members, as the case may be. The relevant paragraph of the judgment of Sahab Bux Tiwari is reproduced hereinunder:

We have gone through the provisions contained u/s 95(1)(g) of the U.P. Panchayat Raj Act, 1947 which reads thus:

[remove a Pradhan, Up Pradhan or member of Gram Panchayat] or a Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Pranchayat if he-

(i) Absents himself without sufficient cause from 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 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 the Scheduled Casts, 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 qualifications 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 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.]

On perusal of the aforesaid Section 95 (g) of the U.P.Panchayat Raj (Removal of Pradhans, Up Pradhans and members) Enquiries Rules, 1997, it will be clear that the District Magistrate under the provisions u/s 95(1)(g) of the U.P. Panchayat Raj Act has been a cushioned with the Rules of 1997. The provisions of 95 (1) (g) read with Rules 1997 clearly visualize of the enquiry. As stated above, the main contention of the appellant''s counsel to the effect that neither administrative and financial powers can be stripped nor a committee in place being appointed to exercise administrative and financial powers without prior issuance of show-cause notice is supported by the decision of this Court rendered in the case of Smt. Sandhya Gupta v. District Magistrate, Auraiya and Ors. 1999 (17) LCD 586 passed by the Hon''ble O.P. Garg, J. in Civil Misc. Writ Petition No. 2517 of 1998, wherein his Lordship in para 15 of the said judgment has formulated the guidelines for their observance by the District Magistrate. Guideline No. 8 and relevant guideline for the purpose of the present Special Appeal is reproduced as under:

The provisions of the aforesaid proviso relating to stripping of the administrative and financial power of the Pradhan, Up Pradhan can be invoked only after a show cause notice is served on the Pradhan or Up Pradhan, as the case may be, and he is afforded a reasonable opportunity of showing cause against the action proposed, as is contemplated in second proviso to Clause (g). Any order passed by the District Magistrate without calling for the explanation and without giving reasonable opportunity of showing cause against the action proposed would be vitiated and would invite judicial intervention.

The second proviso occurring in the aforesaid section, which is not quoted above, carves out an exception and says that:

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

In a recent decision i.e. Smt. Rajeshwari Kushwaha v. The District Magistrate, Kanpur and Ors. 2005 ALL 712 this Court quashed the order passed by the District Magistrate stripping the administrative and financial powers of the Smt. Rajshwari Kushwaha and observed that the order should be passed in consonance with the provisions of Section 95(1)(g) of the Act.

In view of the above discussion, this Court veers round to the view that the impugned order passed by the District Magistrate suffers from an error of law and is liable to be quashed.

As a result of foregoing discussions, the writ petition succeeds and is allowed and the impugned order dated 5.9.2007 passed by the District Magistrate, Sitapur is hereby quashed. It is, however, observed that this order shall not prevent the District Magistrate to initiate ab intigro enquiry strictly in accordance with the provisions of U.P. Panchat Raj Act and Rules.

In the facts and circumstances of the case, there would be no order as to costs.