Allahabad High Court
Smt. Shyam Wati vs State Of U.P. Thru Prin. Secy. ... on 23 April, 2013
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH A.F.R. Reserved Writ Petition No. 1784 (M/S) of 2013 Smt. Shyam Wati Vs. State Of U.P. Thru Prin. Secy. Panchayati Raj Deptt. & Other Petitioner Counsel: Dr. L.P. Mishra, Abhishek Misra,R.N.S. Chauhan Respondent Counsel: C.S.C.,Arti Ganguli,Hemant Kumar Mishra ****************** Hon'ble Ritu Raj Awasthi,J.
Learned counsel for petitioner informs that he does not want to to file rejoinder affidavit as purely legal questions are involved in the writ petition which can be decided even in absence of the same, learned Standing Counsel also agrees, as such, with the consent of parties' counsel, the writ petition has been heard finally.
Heard Dr. L.P. Mishra, learned counsel for petitioner, Mr. Sanjay Sareen, learned Standing Counsel for the State as well as Mr. Hemant Kumar Mishra, learned counsel for opposite party no. 7 and perused the record.
The writ petition has been filed by an elected Pradhan of Gram Panchayat Tar Gaon, Development Block Bichchiya, District Unnao challenging the order dated 04.03.2013 of District Magistrate, Unnao levying a sum of Rs. 2,99,461/- as surcharge and directing for recovery of the said amount and further ceasing of the financial and administrative powers of petitioner as Pradhan in exercise of powers under Section 95 (1) (g) of Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act').
Learned counsel for petitioner submits that the impugned order reveals that the same has been passed taking note of inspection report dated 13.8.2012 submitted by the District Development Officer, District Unnao with regard to works undertaken under the Scheme known as Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) and other works undertaken during the tenure of petitioner as Pradhan and on the basis of enquiry report submitted by the committee comprising of (i) District Panchayat Raj Officer, Unnao, (ii) Blcok Development Officer, Development Block, Bichchiya, Unnao and (iii) Assistant Engineer, District Rural Development Agency, Unnao appointed by the Chief Development Officer, Unnao. The said report is said to be based on random checking undertaken by the said three member committee on 20.12.2012 and was communicated to the District Magistrate, Unnao under the covering letter dated 24.1.2013. As per the said report, it prima facie reveals misuse/wrong expenditure done by the petitioner and the Secretary, Gram Panchayat, Tar Gaon, Bichchiya, Unnao and, as such, the same amounts to misuse of funds together with misuse of authority.
It is submitted that in furtherance of the inspection report dated 13.8.2012 and the complaint made by Member of Legislative Assembly, the Chief Development Officer, Unnao vide letter dated 25.5.2012 had appointed a three member committee comprising of (i) District Panchyat Raj Officer, Unnao, (ii) Block Development Officer, Development Block Bichchiya, Unnao and (iii) Assistant Engineer, District Rural Development Agency, Unnao for holding preliminary enquiry. The aforesaid enquiry committee undertook the spot inspection on 20.12.2012 making the random checking of work under MGNREGA scheme. It was on the basis of said enquiry report that a show cause notice dated 02.02.2013 along with copy of the enquiry report was issued to petitioner to show cause. The petitioner had submitted an explanation dated 20.2.2013 denying the allegations. It was thereafter that the impugned order levying surcharge and ceasing financial and administrative powers was passed.
Submission of learned counsel for petitioner is that so far as the impugned order as it relates to levying of surcharge and direction for recovery from the petitioner is concerned, it has been passed in exercise of powers under Section 27 (1) of the Act. The Uttar Panchayat Raj Rules, 1947 (hereinafter referred to as '1947 Rules'), particularly Rule 256 provides that the Chief Audit Officer shall submit the report relating to the allegations of misuse of funds and consequence negligence or misconduct of Pradhan after calling an explanation from the Pradhan, Up Pradhan, Member, Officer or Servant of the Gram Panchayat and it is only on the basis of report of the Chief Audit Officer, Cooperative Societies and Panchayats that a surcharge can be levied.
The contention is that in the present case since there has been no report made by the Chief Audit Officer, Cooperative Societies and Panchayatas as required under the Rule 256 (1) or the Rules contained in Chapter XIII of U.P. Panchayat Raj Rules, 1947 and no procedure as prescribed under Rules 256 and 257 has been followed, as such, no surcharge can legally be levied against the Pradhan without adopting the procedure prescribed under the said Chapter.
Mr. Hemant Kumar Mishra, learned counsel for opposite party no. 7 has submitted that the surcharge rules as relied upon by the petitioner are of no help to petitioner as perusal of Rule 256 (1) makes a mention of a loss, waste or misuse of any money or other property belonging to a Gram Sabha as a direct consequence of negligence of Pradhan or any other person concerned and as evident from perusal of impugned order, the allegations related to misuse of funds of MGNREGA, as such, Rules 256 and 257 are of no avail.
Section 27 of the Act on reproduction reads as under:
"27. Surcharge (1) Every Pradhan or of a (Gram Panchayat) every member of a (Gram Panchayat) or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat shall be liable to surcharge for the loss, waste or misapplication of money or property [belonging to the Gram Panchayat or Nyaya Panchayat] as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, member, Sarpanch, Sahyak Sarpanch or Panch;
Provided that such liability shall cease to exist after the expiration of ten years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later.
(2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realize it as if it were an arrear of land revenue.
(3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order to the State Government or such other appellate authority as may be prescribed.
(4)Where no proceeding for fixation and realization of surcharge as specified in sub-section (2) is taken the State Government may institute a suit for compensation for such loss, waste or misapplication, against the person liable for the same."
A perusal of sub-Section (2) of Section 27 of the Act makes it clear that amount of surcharge is to be fixed by the prescribed authority, it shall be certified by the prescribed authority and sent to the Collector who on being satisfied that the amount is due shall get it realized as arrears of land revenue from the Pradhan or any other person mentioned under Section 27 (1) of the Act so made liable for surcharge. The procedure for levying of surcharge, determination of amount of surcharge and its recovery has been prescribed under the Rules popularly known as "Surcharge Rules" contained under Chapter XIII of 1947 Rules. Rules 256 and 257 of the said Chapter deal with surcharge which on reproduction read as under:
"Rule 256(1) In any case where the Chief Audit Officer, Co-operative 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, he may call upon the Pradhan, Up-Prahdan, Member, Officer or servant, as the case may be, to explain in writing why such Pradhan, Up-Pradhan, 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, Up-Pradhan or member of the Gaon Panchayat shall be called for through the District Magistrate and from the officer or servant through the Panchayat Raj Officer.
Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gaon Panchayats 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.
Note- Any information required by the Chief Audit Officer, Cooperative Societies and Panchayats or any officer subordinate to him not below the rank of Auditor, Panchayats for preliminary enquiry, shall be furnished and all connected papers and records shall be shown to him by the Pradhan immediately on demand.
(2) Without prejudice to the generality of the provisions contained in sub-rule (1) the Chief Audit Officer, Cooperative Societies and Panchayts, may call for the explanation in the following cases:
(a) where expenditure has been incurred in contravention of the provisions of the Act or of the rules or regulations made thereunder;
(b)Where loss has been caused to the Gaon Sabha by acceptance of a higher tender without sufficient reasons in writing.
(b) where loss has been caused to the Gaon sabha by acceptance of a higher tender without sufficient reasons in writing.
(c) where any sum due to the Gaon Sabha has been remitted in contravention of the provisions of the Act or the rules or regulations made thereunder;
(d) where the loss has been caused to the Gaon sabha by neglect in realizing its dues; or
(e) where loss has been caused to the founds or other property of the Gaon Sabha on account of want of reasonable care for the custody of such money or property.
(3) On the written request of the Pradhan, Up-Pradhan, Member, Officer or servant from whom an explanation has been called for, the Gaon Panchayat shall give his necessary facilities for inspection of the record connected with the requisition for surcharge. The Chief Audit Officer may, on application from the person surcharged, allow a reasonable extension of time for submission of his explanation if he is satisfied that the person charged has been unable, for reasons beyond his control, to consult the record for the purpose of furnishing his explanation.
"257. (1). After expiry of the period prescribed in sub-rule (1) or (3) of Rule 256, as the case may be, and after examining the explanation, if any, received within time, the Chief Audit Officer shall submit the papers along with his recommendations to the District Magistrate of the district in which the Gram Sabha is situated in case of Pradhan, Up-Pradhan and Members and to the District Panchayat Raj Officer of the district in which the Gram Sabha is situated in case of Officers and servants.
(2) The District Magistrate or the District Panchayat Raj Officer, as the case may be, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat to pay the whole or part of the sum to which such Pradhan, Up-pradhan, Member, Officer or servant is found liable:
PROVIDED, firstly, that no Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat would be required to make good the loss, if from the explanation of the Pradhan, Up-Pradhan, Member, Officer or servant concerned or otherwise the District Magistrate or the District Panchayat Raj Officer, as the case may be, is satisfied that the loss was caused by an act of the Pradhan, Up-pradhan, Member, Officer or servant in the bonafide discharge of his duties:
PROVIDED secondly, that in the case of loss, waste or misuse occurring as a result of a resolution of the Gram Panchayat or any of its committees the amount of loss to be recovered shall be divided equally among all the members including Pradhan and Up-pradhan, who are reported in the minutes of the Gram Panchayat or any of its Committee as having voted for or who remained neutral in respect of such resolution:
PROVIDED thirdly, that no Pradhan, Up-Pradhan, Member, Officer or servant shall be liable for any loss, waste or misuse after the expiry of four years from the occurrence of such loss, waste or misuse or after the expiry of three years from the date of his ceasing to be a Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat, which ever is later."
In the case in hand, undisputedly, there has been no notice to petitioner from the Chief Audit Officer, Cooperative Societies and Panchayats, there has been no report of the Chief Audit Officer to District Magistrate rather on the other hand there is no material on record to indicate that at any point of time petitioner was called upon by the Chief Audit Officer to submit her explanation nor there is any material on record to indicate that on receipt of any report along with relevant papers from the Chief Audit Officer, the District Magistrate had called upon the petitioner to submit her explanation.
It is also to be noted that there is nothing on record nor has been submitted by the parties' counsel to indicate that there are any other set of rules prescribed in exercise of powers under Section 27 of the Act for levying surcharge, as such, I am of the considered view that the impugned order as it relates to levying of surcharge and direction for recovery from petitioner for the surcharge amount is thus not permissible in law for the reason that the procedure as prescribed under Section 27 (2) of the Act i.e. under Chapter XIII of 1997 Rules, Rules 256 and 257 in particular, have not been followed at all as no proceedings as prescribed under the said Rules have been undertaken.
Mr. Hemant Kumar Mishra, learned counsel for opposite party no. 7 tried to carve out a distinction between the words 'Gram Panchayat' and 'Gram Sabha' in order to submit that Rule 256 of U.P. Surcharge Rules would not be applicable in the present facts and circumstances of the case.
It is submitted that under Rule 256 (1) the Chief Audit Officer, Cooperative Societies and Panchayats is required to submit the report with respect to any loss, waste or misuse of any money or other property belonging to Gram Sabha as a direct consequence of negligence of Pradhan or other authorities of Gram Panchyat whereas in the present case the matter relates to misuse of funds and power by the Pradhan of Gram Panchayat. The perusal of the Gram Panchayat Act indicates that 'Gram Sabha' is a name of village or cluster of villages having 'Panchayat Area' notified as such by the State Government and 'Gram Panchayat' is a body notified as such by the State Government. In fact, 'Gram Panchayat' is a body entrusted with management of such 'Gram Sabha' comprising of a 'Panchyat Area'. In this regard it is necessary to go through the provisions under the Act which on reproduction read as under:
"2. Definitions. - In this Act, unless there is anything repugnant in the subject or context :-
(g) "Gram Sabha" means a body established under Section 3, consisting of persons registered in the electoral rolls relating to a village comprised within the area of a Gram Panchayat"
The term "Panchayat area" has been defined under Section 2(kkk) (ii) which reads as under:-
2 (kkk) (ii). "Panchayat area" means the territorial area of a Gram Panchayat declared as such under sub-section (1) of Section 11-F."
The composition and constitution of the Gram Panchayat is contemplated under Section 12 reference of which has been made in Section 2(h) and Section 12(1) dealing with the composition of Gram Panchayat reads as under:-
"12. Gram Panchayat. - (1) (a) There shall be constituted for every Panchayat area, a Gram Panchayat bearing the name of the Panchayat area.
(b) Every Geam Panchayat shall be a body corporate.
(c) A Gram Panchayat shall consist of a Pradhan and, in the case of a Panchayat area having a population of -
[i] (upto one thousand) nine members;
[ii] more than one thousand but not more than two thousand, eleven members;
[iii] more than two thousands but not more than three thousands, thirteen members, or [iv] more than three thousand, fifteen members.
(d) For the purpose of election of members of Gram Panchayat every Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.
(e) Each territorial constituency of a Gram Panchayat shall be represented by one member in the Gram Panchayat.
(f) The territorial constituencies of a Gram Panchayat may be delimited in the prescribed manner and, if necessary, rules in this regard may be made with retrospective effect from a date not earlier than the date of commencement of the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994."
Section 11-F of the Act relates to declaration of Panchayat Area and the said Section 11-F reads as under:-
"11-F. Declaration of Panchayat area (1) The State Government may, by notification, declare any area comprising a village or group of villages, having , so far as practicable, a population of one thousand, to be a Panchayat area for the purpose of this Act by such name as may be specified:
PROVIDED that for the purposes of declaration of a Panchayat area no revenue village or any hamlet thereof shall be divided:
PROVIDED further that in the hill districts of Nainital, Almora, Pithoragarh, Tehri, Pauri, Dehradun, Chamoli or Uttarkashi, the State Government may declare the area of a Gaon Sabha established under Section 3 of this Act as it stood before the commencement of the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994, to be a Panchayat area though such area may have a population of less than one thousand.
(2) The State Government may, on the request of the Gram Panchayat concerned or otherwise, and after previous publication of the proposal, by notification at any time -
[a] modify the area of any Panchayat area by including therein or excluding there from any area of a village or group of villages;
[b] alter the name of the Panchayat area; or [c] declare that any area shall cease to be a Panchayat area."
The formation of a Gram Sabha is provided under Section 3 of the Act which reads as under:-
3.Gram Sabha. - The State Government shall, by notification in the Official Gazette, establish a Gram Sabha for a village or group of villages by such name as may be specified:
PROVIDED that where a Gram Sabha is established for a group of villages, the name of the village having the largest population shall be specified as the name of the Gram Sabha."
A perusal of the aforesaid Statutory prescriptions makes it clear that a Gram Sabha is a body which is notified by the State Government as a Gram Sabha by the notification in the Official Gazette comprising of a village or a group of villages by giving it the name of the village having the largest population where a Gram Sabha is established for a group of villages otherwise in the event of Gram Sabha being constituted for one village, the name of the Gram Sabha is to be the name of the village. A Gram Panchayat is to be a body corporate and virtually is a body to manage the affairs of a Gram Sabha having its territorial jurisdiction over the concerned Panchayat area as declared under Section 11-F. In view of the statutory prescriptions in regard to the formation, declaration or composition of a Gram Sabha, Panchayat area and a Gram Panchayat, it is more than evident that a Gram Panchayat is a body corporate for managing the affairs of a Gram Sabha. Further the powers, duties, functions and administration of Gram Panchayats is dealt with under Chapter-IV of the Act and a perusal of Section 15, 15-A, 16, 16-A, 17, 18, 19, 20, 21, 22, 23 and 24 contained in this Chapter makes it abundantly clear that the Gram Panchayat is to exercise its powers, duties and functions and has to administer a Gram Panchayat in regard to the Panchayat area i.e. the area of a Gaon Sabha and nothing else and nothing more.
In view of the above, the argument raised on behalf of opposite party no. 7 on the basis of use of the word "Gaon Sabha" in rule 256 is of no avail to him and is not sustainable.
Sri Sanjay Sareen, the learned State Counsel appearing on behalf of opposite party nos. 1 to 6 has very fairly brought to the notice of this Court a Division Bench judgment of this Court in the case of Indu Devi Vs. District Magistrate, Chitrakoot and others; 2006 (3) AWC 2787 wherein in paragraph 11 it has been held that prima facie findings of the competent authority under the proviso attached to Section 95 (1) (g) of Act in regard to misconduct could not be a ground for passing an order levying surcharge under Section 27 of the Act. Sri Sareen while bringing the aforesaid case to the notice of the Court which, though, could go against the order impugned in the writ petition, has acted very fairly in discharge of duties of an officer of the Court as an Advocate while assisting this Court and deserves appreciation from this Court.
The relevant paragraphs 11, 12, 13, 14 & 15 of the judgment in the case of Indu Devi (supra) on reproduction read as under:
"11. The prima facie finding of the competent authority under Section 95 (1) g) proviso is not same as finding of misconduct as contemplated under Section 27 of the Act. We are satisfied that on the basis of mere prima facie finding of guilt, the order of surcharge could not have been passed under Section 27 of the Act.
12. However, learned counsel for the appellant has submitted that the final inquiry as contemplated in Section 95 (1) (g) has not yet been concluded and further submits that no further proceeding under Section 27 of the Act has been drawn.
13. In view of the aforesaid, we are satisfied that without conclusion of final inquiry under Section 95 (1) (g) of the Act with regard to finding of misconduct on the part of the Pradhan, the order of surcharge could not have been passed.
14. From the material brought on record, it is clear that it is necessary that a final inquiry as contemplated in Section 95 (1) (g) and/or under Section 27 of the Act be concluded by competent authority. We direct accordingly.
15. The District Magistrate may take appropriate steps for conclusion/completion of the inquiry under Section 95 (1) (g) and/or under Section 27 of the Act, within six months from today. The appellant writ petitioner shall communicate this order to the District Magistrate within two weeks from today. Till the final order is passed within six months, no recovery shall be made from the appellant-writ petitioner, as directed vide impugned order dated 29.3.2000."
In view of this and in view of the undisputed position that the surcharge is to be levied in accordance with the procedure prescribed under Section 27 (2) of the Act and the procedure has been prescribed under Chapter-XIII of 1947 Rules which contained Rules 256 and 257 and there being no other set of rules and the power having been exercised under the impugned order in regard to levying of surcharge and its recovery and the recovery of the surcharge amount having been exercised under Section 27 (1) of the Act, there is no escape from the irresistible conclusion that the impugned order passed by the District Magistrate, Unnao in that regard is per se illegal.
So far as the seizure of financial and administrative powers of petitioner by the impugned order is concerned, Dr. L.P. Mishra, learned counsel for petitioner submitted that since the preliminary enquiry was not held as per the requirement under Section 95 (1) (g) of the Act as such the decision taken to cease the financial and administrate powers on the basis of said enquiry report is patently wrong and illegal.
It is to be noted that by the impugned order dated 04.03.2013, the District Magistrate, Unnao constituted a three member committee to exercise financial and administrative powers of Pradhan till the conclusion of the enquiry and final decision in this regard.
It is submitted that the proviso attached to Section 95 (1) (g) of the Act provides that where 'in an enquiry held by such person and in such manner as may be prescribed', a Pradhan is prima facie found to have committed financial and other irregularities such 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.
Submission is that the phrase 'in an enquiry held by such person and in such manner as may be prescribed' is very vital. The person to hold enquiry and the manner of holding enquiry for prima facie satisfaction in regard to commission of financial and other irregularities by a Pradhan stands prescribed under the Rules known as U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred as the Enquiry Rules). Rule 4 of the Enquiry Rules deals with the preliminary enquiry and Rule 5 deals with the cessation of the financial and administrative powers of a Pradhan during pendency of the final enquiry.
In order to appreciate the submission made by learned counsel for petitioner, it is necessary to first go through the relevant provisions in this regard.
Section 95 (1) (g) of the Act on reproduction reads as under:
"95. (1) (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 Gram Panchayat appointed by the State Government.."
Rules 4 and 5 of the Enquiry Rules on reproduction read as under:
"4. 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.
(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.
5. 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, other than the Enquiry Officer nominated under sub-rule (2) of Rule 4, to hold enquiry. "
The term 'Enquiry Officer' stands defined in Rule 2 (c) as amended vide notification dated 05.10.2001 w.e.f. 05.10.2001 and the said rule on reproduction reads as under:
"2 (c) 'Enquiry Officer' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate."
Dr. L.P. Mishra, learned counsel for petitioner vehemently submitted that in the present case there has been no preliminary enquiry by an Enquiry Officer mentioned in Rule 2 (c) of the Enquiry Rules in as much as that the Enquiry officer was to be appointed by the District Magistrate concerned and on the other hand an Enquiry Committee comprising of three Public Servants was constituted by the Chief Development Officer, Unnao vide order dated 25.05.2012 and not by the District Magistrate, Unnao.
Submission is that the Chief Development Officer could not step into the shoes of the District Magistrate for the purpose of appointing Enquiry Officer and it shall be the independent satisfaction of the District Magistrate to appoint the Enquiry Officer for that purpose. It is alone the District Magistrate and for that purpose no other officer to pass the order appointing the Enquiry Oficer.
It is further submitted that no public servant can be part of preliminary enquiry envisaged under Rule 4 of the Enquiry Rules who is not a District level officer having been nominated by the District Magistrate for conducting the preliminary enquiry and no public servant who is not a District level officer can even be nominated as Enquiry officer for conducting preliminary enquiry into the allegations of the financial loss or irregularities against a Pradhan.
Mr. Hemant Kumar Mishra, learned counsel for opposite party no. 7, on the other hand, emphasized that the Chief Development Officer vide order dated 25.5.2012 had constituted a three member committee consisting of public servant for holding enquiry against the petitioner. One of the members of the said committee was District Panchayat Raj Officer who is also an Officer enumerated and described as 'Enquiry Officer' under Rule 2 (c) of the Enquiry Rules. The eqnuiry report submitted by the enquiry committee appointed by the Chief Development Officer is to be treated as an enquiry report for the purpose of Rules 4 and 5 of the Enquiry Rules. The argument is that the Block Development Officer and Assistant Engineer, District Rural Development Agency may not be District level officers but the District Panchayat Raj Officer who is described as Enquiry Officer under Rule 2(c) of the Enquiry Rules was part of the enquiry committee and, as such, it cannot be said that in absence of nomination by the District Magistrate the enquiry conducted by the committee was bad in the eyes of law as the District Panchayat Raj Officer is described as Enquiry Officer under Rule 2 (c) of the Enquiry Rules and he being the member of the enquiry committee, the said enquiry shall be treated to be conducted by him, as such, no exception can be taken to the impugned order on the ground that the same is based on the report not submitted by an Enquiry Officer referred to under Rule 4 of the Enquiry Rules.
Learned Counsel for opposite party no. 7 has also argued that even if the report of the Enquiry Committee constituted by the Chief Development Officer, Unnao is not taken as the Enquiry Report for the reason that some of the members of the Enquiry Committee being not the district level officers and having not been nominated as Enquiry Officer by the District Magistrate then too the report submitted by such Enquiry Committee together with Inspection report dated 13.08.2012 submitted by the District Development Officer, Unnao could legally have been made basis by the District Magistrate for ceasing the administrative and financial powers of the petitioner as Pradhan by invoking his discretion under the Clause ''or otherwise' occurring under Rule 5 of the Enquiry Rules.
It is relevant to mention here that both the sides i.e. petitioner and the opposite parties in support of their arguments have laid great emphasis on the decision of the Full Bench of this Court in the case of Vivekanand Yadav Vs. State of U.P. and another; [2011 (29) LCD 221] which constitutes a binding precedence. Paragraphs 90 and 91 of the Full Bench judgment deserve to be a quote and are quoted as under:
"90. Rule 2(c) defines ''Enquiry Officer'. It means the DPRO or any other district level officer to be nominated by the D.M. The following contingencies may be there:
[i] A complaint can be made directly to the DM who may ask the enquiry officer as defined under rule 2(c) to conduct a preliminary inquiry under rule 4; and [ii] A complaint can be made directly to the enquiry officer defined under section 2(c), who may submit a report without the DM asking for it; or [iii] A complaint can be made to the DM with copy to the enquiry officer, who may submit a report without the DM asking for it; or [iv] A DM can himself conduct a preliminary enquiry; or [v] A report can be submitted by any other public servant."
91 In all the aforesaid alternatives, a preliminary enquiry is conducted and a preliminary repot is there. The question is, which one of these can be acted upon under rule 5 to cease the power under proviso to section 95(1) (g) of the Panchayat Raj Act. According to, The petitioners only first of the aforesaid report can be relied upon;
The respondents all five reports can be relied upon.
In our opinion, answer lies somewhere in between and only the first four reports can be so relied"
I am of the considered view that who can hold preliminary enquiry under Rule 4 of the Enquiry Rules is no more res integra after the decision of Full Bench of this Court in the case of Vivekanand Yadav (supra).
The close scrutiny of the impugned order passed by the District Magistrate makes it clear that the District Magistrate has solely relied upon the report submitted by the enquiry committee constituted by the Chief Development Officer, Unnao as evident from the following portion of the order:
"mijksDrkuqlkj tkWp Vhe }kjk izLrqr dh xbZ fjiksZV ds vuqlkj izk[;kfir vkjksiksa ,oa iz/kku xzke iaapk;r rkjxkao }kjk izLrqr fd;s x;s fcUnqokj Li"Vhdj.k dk rF;kRed ijh{k.k djus ds mijkUr fuEu izdkj 'kkldh; /kujkf'k ds xcu@nq#i;ksx@viO;; fd;k tkuk fl+) ik;k x;k gSA"
It is also to be noted that the said enquiry committee was not appointed by the competent authority i.e. District Magistrate as it was constituted by the order of the Chief Development Officer, Unnao. The committee was comprising of two officers who, though, are the public servants but are not such public servants who could be the district level Officers, as such, they could not be nominated by the District Magistrate as Enquiry Officer as defined under Rule 2 (c) of the Enquiry Rules.
There is yet another question which requires consideration.
In the present case the enquiry committee has submitted the preliminary enquiry report but the enquiry committee consisted of two out of three members who could not have been nominated by the District Magistrate as Enquiry Officer.
It is to be noted that the decision making exercise on the part of enquiry committee while submitting the preliminary enquiry report should constitute of persons statutorily competent to apply mind and the decision making process of participation of some persons who are not statutorily competent cannot legally be made a basis for an action contemplated under the statute. The preliminary enquiry report submitted by the three member committee cannot be treated to be the enquiry report of the District Panchayat Raj Officer alone, as such, it can safely be concluded that the enquiry report submitted by the enquiry committee which neither appointed by the competent authority nor constituted of competent persons to hold the enquiry could be valid report for the purpose of taking a decision to cease the financial and administrative powers of the petitioner.
It is to be observed that the intention underlying the provisions contained under Rule 95 (1)(g) of the Act together with the proviso attached to it and the scheme of the Enquiry Rules is to protect a Pradhan, who is a democratically elected person, from subjection to arbitrariness and to minimize the area of discretion in the authority vested with the jurisdiction to exercise the powers of the State Government in the matter of removal of a Pradhan or in the matter of cessation of financial and administrative powers till conclusion of the final enquiry. Such safeguards are in tune to the law laid down by the Apex Court in the case of Sub-Divisional Officer, Sadar, Faizabad Vs. Shambhoo Narain Singh; 1969 (1) SCC 825, a judgment rendered by a larger Bench of the Apex Court comprising of three Hon'ble Judges, wherein it has been held that the relationship between a Pradhan and the State Government is not that of a Master and Servant and a Pradhan could not be suspended as a Government servant. Paragraphs 5, 6, 7 and 8 of this judgment deserve a quote and, accordingly, are quoted below:-
"5. A faint attempt was made to show that the relationship between the State Government and the Pradhans is that of master and servants and that being so the State Government has competence to require Pradhans not to discharge their functions as Pradhans during the pendency of an enquiry into the charges made against them. It was urged that if the court is pleased to hold that the relationship between the State Government and the Pradhans is that of a master and the servants then the appellant could call into aid the rule laid down by this Court in Management of Hotel Imperial, New Delhi Vs. Hotel Workers' Union; T. Cajee Vs. H. Jormanik Siem; R.P. Kapur v. union of India; and Balwant Rai Ratilal Patel v. State of Maharashtra. This is a wholly untenable contension. A Pradhan cannot be considered as a servant of the Government. He is an elected representative. There is no contractual relationship between him and the Government much less the relationship of master and servant. As mentioned earlier his rights and duties are those laid down in the Act. Therefore, the rule laid down I the above cited decisions is wholly inapplicable to the facts of this case. In this case there is no question of suspending a servant from performing the du ties of his office even though the contract of service is subsisting. In the case of a master and his servant it is a well established right of the master to give directions to his servant relating to his duties. That power includes within itself the right to direct the servant to refrain from performing his duties but that does not absolve the liability of the master to pay the remuneration contracted to be paid to the servant unless otherwise provided in the contract even during the period the servant is required not to perform his duties.
6. The Gaon Sabha is the creature of a statute. Its powers and duties as well as the powers and duties of its officers are all regulated by the Act. Hence no question of any inherent powers arises for consideration. See Smt. Hira Devi and others Vs. District Board, Shahjahanpur.
7. The only other contention advanced is that power claimed should be held to be an essential power for the proper discharge of the conferred power. It was urged that without such a power, charges framed against any office-bearer cannot be properly inquired into as he may utilize his office to interfere with the course of enquiry and the possibility of his continuing to misuse the office during the pendency of the enquiry cannot be ruled out.
8. It is well recognized that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary to its execution. But before implying the existence of such a power the court must be satisfied that the existence of that power is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such a power. We are not satisfied that the power to place under suspension an officer is absolutely essential for the proper exercise of the power conferred under Section 95(1) (g). It cannot be said that the power in question cannot be properly exercised without the power to suspend pending enquiry. The mere possibility of interference with the course of enquiry or of further misuse of powers are not sufficient to enlarge the scope of a statutory power. If it is otherwise the mere power to punish an offender would have been held sufficient to arrest and detain him pending enquiry and trial. There would have been no need to confer specific power to arrest and detain persons charged with offences before their conviction."
In a catena of decisions, the Apex Court has held that if Statute provides for an action on the basis of report submitted by an officer or on the basis of conclusions drawn by an officer, then the action cannot be taken nor conclusions can be drawn on the basis of any report submitted or on the basis of conclusions drawn by a person who is not Statutorily empowered to do so, even though an officer submitting a report or drawing a conclusion can be a person higher in rank to an officer statutorily competent to submit a report or to draw conclusions.
In the case of Purtabpore Co., Ltd. Vs. Cane Commissioner of Bihar and others; 1969 (1) SCC 308, the Apex Court has held that the Cane Commissioner, Bihar who is statutorily competent under Clause 6(1)(a) of the Sugar Cane Control Order, 1966 to make an order, passed an order in exercise of that power on the basis of the directions of the Chief Minister. The Apex Court clearly held that such an exercise was not statutorily permissible and it could not be said that the orders so passed by the Cane Commissioner were that of the Cane Commissioner, both in fact and in law.
In the case of Chandrika Jha Vs. State of Bihar and others; (1984) 2 SCC 41, the Apex Court has held that the Registrar, Cooperative Societies was competent under the relevant Byelaws to constitute the First Board for a specific period. In this case, the Chief Minister issued directions from time to time directing the Registrar to extend the term. Analyzing the situation the Apex Court held that neither the Chief Minister was competent to issue directions for extension of the term nor the Minister of the concerned department was competent to direct or to suggest the Registrar in the matter of the constitution of the Board by forwarding list of persons to be nominated as members of the Board and, therefore, action taken on the basis of such direction was bad in law.
Similarly, in Tarlochan Dev Sharma Vs. State of Punjab and others; (2001) 6 SCC 260, it has been held by the Apex Court that Senior Officers statutorily competent to exercise a power are supposed to exercise the same independently and are not supposed to mortgage their discretion and decision making authority and succumb to political pressure to carry out the commands having no sanctity of law. In this case also the appellant before the Hon'ble Supreme Court was an elected President of a Municipal Council and was removed under an order passed by the Principal Secretary, Government of Punjab. The Hon'ble Apex Court in paragraphs 7, 15 and 16 held as under:-
" 7. In a democracy government by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out. A President may be removed from office by the State Government, within the meaning of Section 22, on the ground of "abuse of his powers" (of President), inter alia. This is the phrase with which we are concerned in the present case.
15. It is interesting to view the present-day bureaucrat-politician relationship scenario:
"A bureaucratic apparatus is a means of attaining the goals prescribed by the political leaders at the top. Like Alladin's lamp, it serves the interest of whosoever wields it. Those at the helm of affairs exercise apical dominance by dint of their political legitimacy....The Minister make strategic decisions. The officers provide trucks, petrol and drivers. They give march orders. The Minister tells them where to go. The officers have to act upon instructions from above without creating a fuss about it."
16. In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion, volition and decisions making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superiors. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with jurisdiction must exercise it according to its own discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd. are instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions by a superior to bind them. As already stated, we are not recording, for want of adequate material, any positive finding that the impugned order was passed at the behest of or dictated by someone else than its author. Yet we have no hesitation in holding that the impugned order betrays utter non-application of mind to the facts of the case and the relevant law. The manner in which the power under Section 22 has been exercised by the competent authority is suggestive of betrayal of the confidence which the State Government reposed in the Principal Secretary in conferring upon him the exercise of drastic power like removal of President of a Municipality under Section 22 of the Act. To say the least, what has been done is not what is expected to be done by a senior official like the Principal Secretary of a wing of the State Government. We leave it at that and say no more on this issue."
In the case of Pancham Chand and others Vs. State of Himachal Pradesh and others; (2008) 7 SCC 117, a transport permit was granted on the recommendation of the Hon'ble Chief Minister. The Hon'ble Supreme Court held that such grant of permit was not valid one in as much as that the Chief Minister or any authority other than the statutory authority (emphasis supplied), could entertain an application for grant of permit nor could issue any order thereupon. In paragraphs 19, 22, 23, 24 and 26 by relying on various judgments including Constitution Bench judgment of Hon'ble Supreme Court, it has been held that a Statutory Functionary makes an order; it is to be passed on the material stipulated by a Statute and not otherwise. These paragraphs which are relevant for deciding the question in issue i.e. whether a report submitted with the participation of public servants not competent to act as Enquiry officer within the meaning of the term as defined in Rule 2 (c) of the Enquiry Rules could be made basis for ceasing the financial and administrative power of the petitioner as Pradhan under Rule 5 of the Enquiry Rules are quoted below:
"19. Apart from the fact that nothing has been placed on record to show that the Chief Minister in his capacity even as a member of the Cabinet was authorized to deal with the matter of transport in his official capacity, he had even otherwise absolutely no business to interfere with the functioning of the Regional Transport Authority. The Regional Transport Authority being a statutory body is bound to act strictly in terms of the provisions thereof. It cannot act in derogation of the powers conferred upon it. While acting as a statutory authority it must act having regard to the procedures laid down in the Act. It cannot bypass or ignore the same.
22. In the matter of grant of permit to individual applicants, the State has no say. The Chief Minister or any authority, other than the statutory authority, therefore, could not entertain an application for grant of permit nor could issue any order thereupon. Even any authority under the Act, including the appellate authority cannot issue any direction, except when the matter comes up before it under the statute.
23. In Commr. Of Police Vs. Gordhandas Bhanji- this Court held: (AIR p 20, para 17)
"17. It is clear to us from a perusal of these Rules that the only person vested with authority to grant or refuse a license for the erection of a building to be used for purposes of public amusement is the Commissioner of police. It is also clear that under Rule 250 he has been vested with the absolute discretion at any time to cancel or suspend any license which has been granted under the Rules. But the power to do so is vested in him and not in the State Government and can only be exercised by him at his discretion. No other person or authority can do it."
24. Yet again in Mohinder Singh Gill Vs. Chief Election Commissioner (SCC p.417, Para 8) "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji (AIR p.19, para 9).
''9.... public orders, publicly make, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom the are addressed and must be construed objectively with reference to the language used in the order itself.' Orders are not like old wine becoming better as they grow older."
26. Respondent 4 appears to be the owner of a fleet of buses. He had a political connection. Such political connection encouraged him to file an application for grant of permit before the Chief Minister directly. The Chief Minister could not have entertained the same nor usurp the function of the Regional Transport Authority."
In the case of Manohar Lal (dead) by Lrs. Vs. Ugrasen (dead) by Lrs. and others; (2010) 11 SCC 557 the Apex Court has gone to the extent of holding that no higher authority in the hierarchy or even Appellate or Revisional Authority can exercise the power of the original Statutory Authority nor can the Senior Authority mortgage its wisdom and direct statutory authority to act in a particular manner. The ratio of this case, as evident from Para 23 of the judgment, is that a statutory authority has to act in the manner prescribed. In paragraph 23 of this case the Apex Court has held as under:
"23. Therefore, the law on the question can be summarized to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can be superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, I t remains unenforceable for the reason that it cannot be termed to be an order passed under the Act."
In a recent judgment reported in (2011) 5 SCC 435; Joint Action Committee of Air Line Pilot's Association of India and others Vs. Director General of Civil Aviation and others while relying upon the earlier decisions, some of which have been referred hereinabove, the Apex Court has held that if any decision is taken by the Statutory authority at the behest or on suggestion of a person who has no statutory role to play (emphasis supplied), the same would be patently illegal. In paragraph 26 of this judgment the Apex Court has held as under:
"Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal" (emphasis supplied).
Thus, in view of the prescriptions made under Rules 2(c), 4 and 5 of the Enquiry Rules, there could be no escape from the conclusion that the enquiry has to be held by an Enquiry officer defined as such under Rule 2(c) and any enquiry held by a Committee with the participation of the public servants who could not be the Enquiry officer at all, should not be taken and regarded at all as an enquiry report envisaged under Rule 4 of the Enquiry Rules.
The principle that a thing should be done in the manner prescribed under a Statute or not to be done at all has been echoing the horizon of jurisprudence since very long time, not only this country but virtually in whole of the world wherever there is an establishment managed under a Constitution having theme of independent judiciary. As back as in the year 1936 in the case of Nazir Ahmad Vs. King Emperor; AIR 1936 Privy Council 253, the Privy Council had held that a thing required to be done in a particular way has to be done in that way or not at all. This principle consistently has been accepted and adopted by the Indian Courts including the Hon'ble Apex Court in a catena of decisions, such as, State of U.P. Vs. Singara Singh; AIR 1964 SC 358 and Prabha Shanker Dubey Vs. State of M.P.; (2004) 2 SCC page 56, Para 11.
A larger Bench of the Hon'ble Supreme Court comprising of three Hon'ble Judges, in the case of Bhav Nagar University Vs. Pali Tana Sugar Mill Pvt. Ltd. & others; (2003) 2 SCC 111 has held that when a statutory authority required to do a thing in a particular manner, the same must be done in that manner. In this case, the Hon'ble Supreme Court in paragraph 40 has held as under:
"It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authority while acting under the said Act are only creator of Statute. They must act within the four-corners thereof."
In the back-drop of the aforesaid decisions of the Hon'ble Supreme Court, no legal sanctity could at all be attached to the constitution of three members Committee and any report submitted by such Committee could not be made the basis for action under Rule 5 of the Enquiry Rules for ceasing the financial and administrative powers of the petitioner as Pradhan.
Thus, the arguments raised on behalf of the opposite party no. 7 to the effect that since the District Panchayat Raj Officer was one of the three Members Committee, the report should be treated as a report under Rule 4 deserve nothing, but a rejection.
As regards arguments that the inspection report dated 13.08.2012 submitted by the District Development Officer, Unnao, or the report dated 24.01.2013 submitted by the Joint Committee constituted by the Chief Development Officer can be taken as the basis for action under Rule 5 within the term, or "otherwise" occurring under Rule 5 is also hollow, superficial and fallacious one in as much as that this aspect of the matter has fully been considered by the Full Bench in the case of Vivekanand Yadav (Supra) where the question has been dealt with in paragraphs 80, 84, 85, 86, 87 88 and 89. The said paragraphs read as under:-
"80. The counsel for the petitioner submitted that:
The proviso to section 95 (1)(g) contemplates ceasing of financial and administrative powers only on a preliminary enquiry;
The preliminary enquiry cannot be conducted unless the enquiry officer is asked to do so;
Any other report would merely be a report under rule 3(6) of the Enquiry Rules and on its basis only preliminary enquiry under rule 4 can be ordered and not an order ceasing financial and administrative powers or a final enquiry;
The word ''otherwise' in rule 5 is ultra vires the proviso to section 95 (1)(g) of the Panchayat Raj Act.
Some words in Rule 5 -Useless.
84.Rule 5 is titled as "Enquiry Officer". It provides that, on the basis of the report under rule 4(2) or otherwise, the DM may:
Constitute a committee as envisaged in the proviso to section 95 (1)(g) to exercise the financial and administrative powers of the Pradhan;
And ask an enquiry officer other than the one who had conducted the preliminary enquiry, to hold the final enquiry to consider the removal of the Pradhan. This final enquiry has to be conducted under rule 6.
85.The question is, what is the meaning of word ''otherwise' in rule 5:
Can it include a report by anyone or information coming into hands of the DM;
Has the DM suo motu power to cease the power and refer the case for final enquiry?
86.The counsel for the respondents submitted that:
The word ''otherwise' in rule 5 should be interpreted as widely as the word ''otherwise' in rule 4;
The DM has right to refer the matter for the final enquiry without any preliminary report if he considered proper.
87. A word used in different parts of the rules or an enactment may have different meaning. It depends upon the context and manner of its use. Justice Homes explains {Towne v. Eisner 245 U.S. 418 (1918)}, ''A word is not crystal, transparent and unchanged. It is skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used'.
88. Under the proviso to section 95 (1)(g) right to exercise financial and administrative powers can only be ceased if the DM prima facie finds that the Pradhan was guilty financial and other irregularities in an enquiry (preliminary or fact finding) by such person and in the manner prescribed. It is only on such a report that might come within the purview of the word ''otherwise' in rule 5 of the Rules. All kinds of reports or information may not be relied under rule 5 lest the rule may be hit by the statutory provision.
89. In our opinion, in view of proviso to section 95 (1)(g) it cannot be given as wide a meaning as we gave to the words ''otherwise' in rule 4. It has to have restricted meaning. Let's consider, what kind of reports may be covered by the proviso to section 95 (1)(g) and the word ''otherwise' in rule 5 of the Enquiry Rules."
It having been held in the case of Vivekanand Yadav (Supra) the word ''otherwise' occurring in Rule 5 is to be given a strict meaning and it could not include any material other than a preliminary enquiry report made by the Enquiry Officer defined under Rule 2(c) of the Enquiry Rules, the contention raised on behalf of opposite party no. 7 deserves an outright rejection.
The full Bench case of Vivekanand Yadav (Supra) has been relied upon in a recent decision of this Court as reported in 2013 (1) ADJ 228; Narendra Kumar Vs. State of U.P. The relevant paragraphs 20, 21, 23 and 27 are quoted hereunder:
"20. The records indicate that a complaint dated 18th April, 2012 was submitted by one Mohd. Taufeeq before the Block Development officer regarding the illegalities committed by the Pradhan in the construction of the Rajiv Gandhi Sansadhan Sewa Kendra. The complaint was not submitted in the manner prescribed under sub-rules (2) to (4) of Rule 3 and nor was it submitted to the District Magistrate. If was addressed to the Block Development Officer who on his own constituted a three member committee to make an enquiry and submit a report and the report of the committee was merely forwarded by the Block Development Officer to the District Magistrate. This factual position has also been stated in the counter affidavit filed by the applicants and is also admitted to the learned Standing Counsel. This factual position is also stated in the show cause notice dated 30th May 2012 issued by the District Magistrate.
21. The preliminary enquiry has to be conducted by an Enquiry officer contemplated under Rule 2(c) of the Rules namely either the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate. The District Magistrate, as noticed hereinabove, had not nominated the Enquiry officer and nor the members of the Committee were ''district level officers'. The District Magistrate could form his prima facie satisfaction for holding a final enquiry only on the basis of the report submitted by the Enquiry Officer defined under Rule 2(c) of the Rules.
23. The order passed by the District Magistrate does not convey the impression that the complaint was filed by Mohd. Taufeeq before the Block Development Officer who constituted a Committee to submit the report and the District Magistrate passed the order for ceasing the financial and administrative powers of the Gram Pradhan on the basis of the report submitted by the Committee. The order of the District Magistrate, on the other hand, gives an impression that on the complaint filed Mohd. Taufeeq, an enquiry was got conducted through the Block Development officer and the order was passed on the basis of the report submitted by the Block Development Officer. Learned Counsel for the petitioner is justified in asserting that the said statement was made in the impugned order to give an impression that the ''district level officer' had conducted the preliminary enquiry whereas the factual position is otherwise. In fact, in the show cause notice dated 30th May, 2012 issued by the District Magistrate, it was correctly stated that the complaint was submitted to the Block Development officer who constituted a committee and the committee submitted a report which was forwarded to the District Magistrate by the Block Development Officer.
27.It has now to be examined whether even after setting aside the order dated 7th July, 2012, a direction can be given for holding a formal enquiry as contemplated under Rule 5 of the Rules.
This issue was examined by the Division Bench of the Court in Smt. Kesari Devi (supra) and it was also observed:
"115. Learned Counsel for the petitioner invited the attention of the Court to another feature of this case and submitted that once the basic procedure of preliminary enquiry fall through as being invalid, the consequential action taken by the State Government by holding a regular enquiry and passing the impugned order has also to necessarily be treated to be invalid.
116. There can be no dispute ..... the settled legal proposition that if an order is bad in its inception, it cannot be made good by efflux of time or by subsequent improvement. In the case Chandra Gogoi v. State of Assam & others, (1998) 3 SCC 381, the Hon'ble Court held that the writ Court should not validate an action which was not lawful at inception.
117. If the basic order falls as illegal, invalid or void the consequential order cannot be given effect to as it automatically becomes inoperative.
118. In Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 SCC 395, the Court held as under:-
"This flows from the general principle applicable to "consequential orders". Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime-like the recommendation of the State and by the UPSC and the action taken thereon-would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders."
119. The Apex Court held that if the basic order stands vitiated, the consequential order automatically falls."
In another case of Chunmun Vs. District Magistrate, Sonbhadra and others; 1998 (89) Revenue Digest 771, this Court has clearly held that the cessation of the financial and administrative powers of a Pradhan on the basis of report submitted by an officer/public servant who is not defined as an Enquiry Officer under Rule 2(c) cannot be the basis for exercise of power under Rule 5.
Reliance has been placed by Sri Hemant Kumar Misra, learned Counsel appearing for the opposite party no. 7 on a Single Judge decision of this Court in the case of Smt. Malti Devi Vs. State of U.P. and others; 2008 (1) CRC 714. This case Smt. Malti Devi (Supra) is of no avail and is of no relevance at all in as much as that in this case the District Magistrate had appointed the District Basic Education Officer to hold a preliminary enquiry and undisputedly, District Basic Education Officer is a District level officer and, therefore, being a district level officer and having been nominated by the District Magistrate for holding the preliminary enquiry fully fall within the meaning of Enquiry Officer as defined under Rule 2(c) of the Enquiry Rules. In the case in hand there was no appointment of the Enquiry Officer by the District Magistrate and two members of the Enquiry Committee appointed by the Chief Development Officer who is not competent to appoint Enquiry Officer under 1997 Enquiry Rules, could not at all act as Enquiry Officer and any report with their participation in the Enquiry could not be taken as an Enquiry Report under Rule 4. Therefore, the case of Smt. Malti Devi (Supra) had no relevance or any bearing at all so far as the present case is concerned.
In view of above, I am of the considered view that the order impugned is not sustainable in the eyes of law.
The writ petition as such is allowed. The order impugned dated 04.03.2013 (Annexure No. 1) is hereby quashed. The District Magistrate may pass a fresh order in accordance with law.
The parties shall bear their cost.
[Ritu Raj Awasthi, J.] Dated: 23rd April, 2013 Santosh/-