Allahabad High Court
Mannu Kharwar Alias Abhimanyu vs State Of U.P. And 5 Others on 7 September, 2020
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- WRIT - C No. - 5338 of 2020 Petitioner :- Mannu Kharwar Alias Abhimanyu Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Anil Kumar Tiwari Counsel for Respondent :- C.S.C.,Kaushal Kishore Mani,Rahul Kumar Singh Hon'ble Rohit Ranjan Agarwal,J.
Heard Sri Anil Kumar Tiwari, learned counsel for the petitioner, Ms. Monika Arya, learned Additional Chief Standing Counsel for the State respondents, Sri K.K. Mani, learned counsel for the respondent no. 5 and Sri Narayan Dutt Shukla, Advocate holding brief of Sri Rahul Kumar Singh, learned counsel for the respondent no. 6.
This writ petition has been filed assailing the order dated 03.12.2019 passed by the District Magistrate, Ghazipur, respondent no. 2, seizing the financial and administrative power of the petitioner.
Facts, as disclosed in the writ petition, are that petitioner was elected as Gram Pradhan of Gram Panchayat Khajurgaon, Block Mardah, District Ghazipur in the year 2015 and his term is going to expire in the year 2020. On a complaint made by one Ashok Kumar Singh on 12.06.2017 a preliminary inquiry was initiated against him consisting of District Welfare Officer, Ghazipur and Assistant Engineer, Devkali Pump Canal Division. On 02.07.2018 report was submitted by the inquiry committee, acting on which respondent no. 2 issued show cause notice/charge-sheet on 24.10.2018, which was received by the petitioner on 29.10.2018. A reply to the said charges were given by the petitioner. By the order impugned dated 03.12.2019, the financial and administrative powers of the petitioner had been seized under Section 95 (1) (g) of the U.P. Panchayat Raj Act, 1947.
Supplementary affidavit has been filed by the petitioner bringing on record the preliminary inquiry report, which has been signed by both the inquiry officers, so appointed by the District Magistrate, i.e. District Social Welfare Officer, Ghazipur and the Assistant Engineer, Devkali Pump Canal Division.
It is contended by the petitioner that the inquiry committee, so constituted, does not consist of the district level officer as contemplated under Rule 2 (c) of the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 and the Assistant Engineer was not a district level officer. Further reliance is placed on a Full Bench decision of this Court in the case of Vivekanand Yadav vs. State of U.P. and others, 2010 (10) ADJ 1 (FB).
This Court on 28.07.2020 by passing a detailed order had required the District Magistrate, Ghazipur to file his personal affidavit in the matter explaining the way and procedure adopted in directing for preliminary inquiry and the final inquiry, if any, and under what circumstances he relied upon an inquiry report signed by two officers one of whom was not a district level officer. The order dated 28.07.2020 is extracted here as under:
"Heard Sri Anil Kumar Tiwari, learned counsel for the petitioner, Sri K.K. Mani, learned counsel for Gaon Sabha and Sri Pranav Ojha, learned Additional Chief Standing Counsel for the State.
In this writ petition, the petitioner has challenged the order dated 03.12.2019, whereby, his administrative and financial powers have been seized by the District Magistrate, Ghazipur and a three members Administrative Committee has been appointed.
The argument advanced by learned counsel for the petitioner is two fold: (a) vide order dated 29.08.2017 a two member inquiry committee was set up which consisted of a district level officer namely the District Social Welfare Officer, Ghazipur and the Assistant Engineer of Dev Kali Pump Canal Division, who is not a district level officer.
It is therefore, argued that since the other officer was not a district level officer and therefore, he could have been included in the Committee only to give technical assistance as is reflected from the order, but under no circumstances he could have himself be one of the inquiry officers to sign an inquiry report. An inquiry report dated 06.10.2018 was submitted in which both the district level officer namely District Social Welfare Officer, Ghazipur as well as the Assistant Engineer of Dev Kali Pump Canal Division Mr. Ajay Srivastava have signed. This report has been brought on record by means of a supplementary affidavit and it is on the basis of this report another show cause notice dated 24.10.2018 was issued to the petitioner levelling certain charges. The petitioner submitted reply and thereafter, impugned order has come to be passed by which the administrative powers of the petitioner has been seized pending a final inquiry.
It has been argued by learned counsel for the petitioner that till date he is not aware as to who is the officer assigned to conduct a final inquiry and the decision that has been taken to take away his administrative and financial powers is based upon an inquiry which consisted of only one district level officer and the other officer who was associated with the inquiry could have only rendered technical assistance, but the manner in which the inquiry report has been signed by both the officers, it comes out to be in total violation of mandatory provisions of inquiry rules. He has placed reliance upon a judgment of this Court in the case of Mohd. Ansari v. State of U.P. 2019 (2) ADJ 381, dated 21.12.2018.
Learned Standing Counsel has earlier been granted time to have instructions in the matter vide orders dated 26.03.2020, 04.03.2020 and 18.03.2020, however, till date the State has not been able to justify the passing of order by following a procedure which is not known to law or at least is against the inquiry rules.
Under the circumstances, the District Magistrate, Ghazipur is directed to file his personal affidavit in the matter explaining away the procedure adopted in directing for preliminary inquiry and the final inquiry, if any, and under what circumstances he relied upon an inquiry report signed by two officers one of whom was not a district level officer.
A necessary affidavit shall be filed by the District Magistrate, Ghazipur on or before 17.08.2020, failing which the Court will take serious view of the matter and shall be constrained to pass appropriate orders to advance the cause of justice in the matter.
List on 17.08.2020."
Thereafter, on 31.08.2020 the matter was posted for 07.09.2020, and when the matter was taken up today the instructions vide order dated 28.07.2020 were neither placed before this Court nor any personal affidavit of the District Magistrate, Ghazipur was filed before this Court.
Having heard learned counsel for the parties and from the perusal of the material on record, it transpires that the two member inquiry committee constituted by the District Magistrate consisted of District Social Welfare Officer, who was a district level officer but the Assistant Engineer, so appointed, was not a district level officer, as required and contemplated under Rule 2 (c) of the 1997 Rules. Further the District Magistrate, Ghazipur has not complied the order of this Court by not filing his personal affidavit and he has nothing to show in this regard and the proceedings initiated by him suffers from procedural error.
This Court at this juncture would also like to record that despite the directions of this Court the District Magistrate has failed to comply the order of this Court which tantamount to disobeying the orders of the Court, however, the Court is not proceeding to take action against the District Magistrate at this stage.
It has been held in catena of decisions of this Court in the case of Smt. Kafia Vs. State of U.P. and others,2018 (5) ADJ 163 (LB), Smt. Shyam Wati Vs. State of U.P. and others, 2013 (3) UPLBEC 2269 and in the case of Mahmood Ansari vs. State of U.P. and others, 2019 (2) ADJ 381, relevant para 19 is extracted here as under:
"19. This Court on the perusal of the Act and the Rules is of the clear view that an elected representatives can be removed only and strictly in accordance with law and in this regard the law which provides for removal of an elected representative has to be strictly construed. The enquiry report dated 18.4.2018 being conducted by two persons is not contemplated either under the Act or the Rules and further more, the Assistant Engineer, DRDA is not even District level officer as contemplated under Rule 2(c) of the said Rules. As the order impugned is based upon the said enquiry report dated 18.4.2018, the order impugned is held to be bad in law"
From perusal of the aforesaid decisions, it is clear that this Court is of the consistent view that Rule 2 (c) of the 1997 Rules provides for district level officer as inquiry officer, the State authorities cannot wriggle out from the same and implant any other government servant who is not a district level officer in the said inquiry committee on the ground that the other member is a district level officer and the second member is only a technical member to assist the other in inquiry.
Thus, this Court finds that the order impugned dated 03.12.2019 passed by the respondent no. 2 District Magistrate, Ghazipur suffers from the technicality on the ground that preliminary inquiry committee, so constituted by the respondent no. 2, was totally against the provisions of Rule 2 (c) of the 1997 Rules as well as law laid down by this Court in case of Vivekanand Yadav (Supra) and the other judgments noted above.
In view of the above, the order dated 03.12.2019 passed by the District Magistrate, Ghazipur is unsustainable in the eyes of law and same is hereby quashed leaving it open to the District Magistrate to proceed in the matter in accordance with law.
Writ petition stands allowed.
Order Date :- 7.9.2020 Shekhar