Allahabad High Court
Abdul Moid Khan vs State Of U.P Thru Prin Secy Panchayati ... on 11 January, 2018
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 23 A.F.R.
Case :- MISC. SINGLE No.7740 of 2017
Petitioner :- Abdul Moid Khan
Respondent :- State Of U.P Thru Prin Secy Panchayati Raj Lko & Ors
Counsel for Petitioner :- Rakesh Chandra Tewari
Counsel for Respondent :- C.S.C.,Sudhir Kumar Mishra
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Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri R.C. Tewari, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
2. Sri Sudhir Kumar Mishra, Advocate has filed Caveat in the instant matter on behalf of one RafatUllah, who happens to be a complainant in the matter.
3. Since the complainant has not been impleaded in the array of opposite parties and as per the dictum of this Hon'ble Court passed by the Division Bench in Special Appeal No.177 of 2008; Amin Khan vs. State of U.P. & others reported in 2008 (2) UPLBEC 1256, the complainant is not a necessary party, therefore, the counsel for the complainant is not required to be heard.
4. By means of this writ petition, the petitioner has impeached the order dated 15.03.2017 passed by the District Magistrate, Balrampur under Section 95 (1) (g) (iii) of U.P. Panchayat Raj Act, 1947 (here-in-after referred to as the Act, 1947), whereby the District Magistrate, Balrampur ceased the financial and administrative powers of the petitioner. The petitioner has also assailed the subsequent order dated 25.03.2017 passed by the District Panchayat Raj Officer, Balrampur, which is the consequent order to the order dated 15.03.2017, whereby it has been directed that till the conclusion of the final inquiry, the three Members Committee, as indicated in the order dated 25.03.2017, would function and discharge the financial and administrative powers of the petitioner.
5. The petitioner is an elected Pradhan of Village-Gulriha, Post-Badalpur, Block & Tehsil-Tulsipur, District-Balrampur. The petitioner was elected as Village-Pradhan in the month of December, 2015.
6. One Mr. Rafatullah son of Mr. Abdul Qayum, who is a resident of Village-Gulriha, Tehsil-Tuslipur, District-Balrampur has made a complaint against the petitioner on 11.03.2016 to the District Magistrate, Balrampur alleging therein that the petitioner is having serious criminal antecedents and he has got a long criminal history. It has also been stated in the complaint that the petitioner has not submitted his nomination papers, on 17.11.2015, properly and has concealed so many relevant facts. It has also been alleged that the petitioner has been misusing and embezzling the public funds by adopting illegal method. The aforesaid complaint dated 11.03.2016 has been filed supporting with an affidavit.
7. The aforesaid complaint was firstly inquired by the Sub-Divisional Officer, Tuslipur and the Block Development Officer-Tulsipur vide joint inquiry dated 17.07.2016, but thereafter, the aforesaid matter was inquired by the District Panchayat Raj Officer, Balrampur. The aforesaid fact is indicated in the inquiry report dated 22.07.2016, which provides that since the inquiry, under Section 2 (c) of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (here-in-after referred to as the Enquiry Rules, 1997), should have been conducted by the District Level Officer and as the Sub-Divisional Officer and Block Development Officer were not the District Level Officers, therefore, the inquiry in question was directed to be conducted by the District Panchayat Raj Officer, Balrampur.
8. The Enquiry Officer submitted his report on 22.07.2016 to the District Magistrate, Balrampur holding that in respect of concealment of the facts while filing the nomination papers by the petitioner, no cognizance can be taken in respect of the allegation Nos. 1, 2, 3 and 4, inasmuch as such complaint should have been made before the competent authority within a period of six months from the date of nomination. It has also been indicated in the inquiry report that the other allegations leveled against the petitioner are false and baseless, however, some criminal cases which are pending against the petitioner wherein one case No.72/1992 is pending under Sections 465, 467 and 420 I.P.C. is serious in nature and comes within a purview of moral turpitude. As far as misuse of public funds in getting the Crematorium constructed in the village in question, the said allegation is proved against the petitioner. Besides, according to the statement given by the villagers, the amount of the 4th State Finance Commission, 14th Finance Commission and Clean India Mission (Rural) was spent by him without calling any meeting of the Gram-Panchayat.
9. The District Magistrate thereafter issued a show cause notice dated 23.07.2016 to the petitioner asking his explanation within fifteen days. The petitioner submitted his explanation on 12.08.2016 denying the allegations levelled against him, submitting therein that since he has been falsely implicated in the aforesaid matter, therefore, he may be exonerated.
10. The aforesaid explanation of the petitioner was thereafter considered by the District Magistrate, Balrampur and necessary directions were issued to the Executive Engineer (RES), Balrampur to submit his report in respect of the construction of the Crematorium. The Executive Engineer concerned submitted his report before the District Magistrate on 15.03.2017 annexing therewith the spot inspection report of the Junior Engineer. The report of the Junior Engineer reveals that ''Shanti-Sthal' and one building, Crematorium and hand-pump have been found at the place but other buildings as per sanctioned plan/ map has not been constructed according to it. The construction so erected is not as per standard. It further says that since the completion certificate of the aforesaid construction work is not prepared so it cannot be said that the construction of Crematorium etc. has been made out of the amount so sanctioned while doing the aforesaid work the public money has been misutilized.
11. On account of the aforesaid reason, the District Magistrate passed the order dated 15.03.2017 under Section 95 (1) (g) of the Act, 1947 seizing the financial and administrative powers of the petitioner. The District Panchayat Raj Officer, Balrampur has also passed the order dated 25.03.2017 constituting three Members Committee just to discharge the financial and administrative powers of the petitioner till the conclusion of the final inquiry.
12. Feeling aggrieved against the aforesaid orders dated 15.03.2017 and 25.03.2017, the petitioner filed the instant writ petition assailing the aforesaid orders on the ground that inquiry against the petitioner has not been conducted strictly in accordance with law and he has not been afforded an ample opportunity of hearing inasmuch as the petitioner was not associated with the inquiry in question and one Sri Raj Kumar Chaturvedi, who was the Village Development Officer of the village concerned, was later on discharged/ exonerated from the same charge, for which, the petitioner was held guilty. The charge against Sri Raj Kumar Chaturvedi and the petitioner was in respect of misusing of the public fund with regard to construction of the Crematorium.
13. In the instant case, this Court has noted one relevant fact that Sri Raj Kumar Chaturvedi, who was equally held guilty for the charges of misuse of the public funds in respect of construction of the Crematorium in the Village-Panchayat, has been exonerated from the charges by the District Development Officer, Balrampur vide order dated 08.02.2017 holding that the construction work of the Crematorium has been made strictly as per the norms. In the light of the aforesaid facts, this Court is unable to understand as to how the petitioner can be held liable for the said charges, which has lost its efficacy after the aforesaid findings of the Enquiry Officer in the matter of Sri Raj Kumar Chaturvedi.
14. Learned counsel for the petitioner has submitted that the procedure of inquiry as prescribed under Enquiry Rules, 1997 has not been followed and the inquiry in question has been conducted in utter violation of the aforesaid Enquiry Rules, 1997 and also in defiance of the judgment of the Full Bench of this Hon'ble Court rendered in the case of Vivekanand Yadav vs. State of U.P. & others reported in 2011 (1) ALJ; 694.
15. Per contra, learned Standing Counsel has submitted that proper inquiry was conducted against the petitioner strictly in accordance with Rules, 1997 and the entire exercise against the petitioner has been done strictly in accordance with the provisions of Section 95 (1) (g) of the Act, 1947 as well as the provisions of Enquiry Rules, 1997. The learned Standing Counsel has submitted that in the inquiry the petitioner was found guilty for the charge of misuse of the public funds while getting the Crematosrium constructed in the financial year 2015-16 and also he has misused the public funds by spending money without calling any meeting of the Village-Panchayat on the pretext of some development works e.g. the Clean India Mission (Rural), 14th Finance Commission etc.
16. I have heard the rival submissions of learned counsel for the parties and perused the records.
17. The impugned order for ceasing the financial and administrative powers of the Gram Pradhan has been passed by the District Magistrate exercising powers under Section 95(1)(g) of the Act. It will, therefore, be useful to reproduce Section 95(1)(g) of the Act which is as follows:-
"95. (1). The State Government may-
(g) remove a Pradhan. Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabhandhak 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 the Act or rules made thereunder or his continuance as such is not desirable in public interest, or (iii-a) has taken the benefit of reservation under sub-section (2) of Section 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 Castes, the Scheduled Tribes or the Backward Classes, as the case may be.
(iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or
(v) suffers from any of the disqualifications 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 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."
18. It is not in the dispute that the State Government has delegated the powers to the District Magistrate.
19. It is, thus, seen that under Section 95(1)(g) of the Act, the District Magistrate can remove a Pradhan for the reasons mentioned in clauses (i) to (v). The proviso, however, stipulates 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 the financial and other irregularities, such Pradhan shall cease to exercise and perform the financial and administrative powers and functions until he is exonerated of the charges in the final enquiry and such powers of the Pradhan shall be performed by a Committee consisting of three members of Gram Panchayat appointed by the District Magistrate.
20. There is a detailed procedure prescribed under Rules 3, 4, 5 & 6 of the Enquiry Rules, 1997 regarding making of a complaint against a Pradhan, the preliminary enquiry and the Enquiry Officer and the same are as follows:-
"3. Procedure relating to complaints.- (1) Any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any officer empowered in this behalf by the State Government.
(2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavits in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation.
(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits, respectively.
(4) Not less than three copies of complaint as well as each of its annexures shall be submitted by the complainant.
(5) A complaint which does not comply with any of the foregoing provisions of this rules shall not be entertained.
(6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule, if a complaint against a Pradhan or Up-Pradhan is made by a public servant.
4. Preliminary Enquiry. - (1) The State Government, 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 find 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.
5. Where the State Government is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise, that an enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to clause (g) of sub-section (1) of Section 95, it shall forthwith constitute a committee envisaged by proviso to clause (g) of sub-section (1) of Section 95, of the Act and by an Order ask an Enquiry Officer, other than the Enquiry Officer nominated under sub-rule (2) of Rule 4, to hold the enquiry."
6. Procedure of the enquiry.- (1) The substance of imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry officer by the State Government.
(2) The Inquiry officer shall draw up-
(a) the substance of imputations into definite and distinct articles of charge; and
(b) a statement of imputations in support of each article of charge, which shall contain a statement of all relevant facts and a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained.
(3) The Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified.
(4) On receipt of the written statement of defence, the inquiry officer shall enquire into such of that articles of charges as are not admitted and where all articles of charges have been admitted in the written statement of defence, the Inquiry officer shall record his findings on each charge after taking such evidence as he may think fit.
(5) If the person who has not admitted any of the articles of charges in his written statement of defence, appears before the Inquiry Officer, he shall ask him where he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiry officer shall record he plea, sign the record and obtain the signature of that person, and return a finding of guilt in respect of those charges.
(6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence,-
(a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents specified in the list referred to in sub-rule (2);
(b) submit a list of witnesses to be examined on his behalf;
(c ) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for discovery or production of any documents that are relevant to the inquiry an are in the possession of the State Government, but not mentioned in the list referred to in sub-rule (2).
(7) The person against whom enquiry is being held may take the assistance of any other person to present the case on his behalf, and the inquiry office may appoint any person as a presiding Officer to assist him in conducting the inquiry:
Provided that a legal practitioner shall not be engaged or appointed under this sub-rule.
(8) If the person applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule 92), the Inquiry officer shall furnish him with such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved.
(9) The Inquiry officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:
Provided that the Inquiry officer may; for the reasons to be recorded in writing, refuse to requisition such of the documents as are, in his opinion, not relevant to the case.
(10) On receipt of the requisition referred to in sub-rule (9, every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Officer:
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any such documents would be against the public interest o security of the State, it shall inform the Inquiry officer accordingly and such Inquiry Officer shall, on being so informed, communicate the information to the person against whom the inquiry is being held and withdraw the requisition made by him for the production or discovery of documents.
(11) On the date fixed for enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall be examined, by the Inquiry officer by or on behalf of the complainant, if there is one and may be cross-examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be examined by the Inquiry officer or the complainant, as the case may be, on any point on which they have been cross-examined, but not on any new matter, without the leave of the Inquiry officer.
(12) The Inquiry officer may allow production of evidence not included in the list given to the person against whom the inquiry is being held , or may itself call for new evidence or recall and re- examine any witness and in such case the said person shall be entitled to have if her demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry Officer for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Inquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record, the Inquiry officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice.
Note- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called from only when there is an inherent lacuna or defect in the evidence which has been produced originally.
(13) When the evidence for proving the articles of charge against the person against whom inquiry is being held is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the defence is made orally, it shall be recorded and the said person shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the complainant, if any.
(14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the Inquiry officer according to the provisions applicable to the witnesses for proving the articles of charge.
(15) The Inquiry officer may, after the person against whom inquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him.
(16) The inquiry officer after completion of the production of evidence, hear the complainant, if any and the person against whom enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases.
(17) If the person to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry officer o otherwise fails or refuses to comply with the provisions of this rule, the Inquiry officer may hold the enquiry ex parte.
(18) Whenever Enquiry Officer after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction therein and is succeeded by another Inquiry Officer, the inquiry Officer so succeeding may act on the evidence so recorded by his predecessor or partly or recorded by himself.
Provided that if the succeeding inquiry officer is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice he may recall, examine, cross-examine and re-examine any such witness as herein before provided.
21. Rule 2(c) of the Rules defines 'Enquiry Officer' and is as follows:-
"2.(c) 'Enquiry Officer' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate."
22. It is seen that under Rule 3(1) of the Rules, any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the District Magistrate which shall be in the manner provided in sub-rule (2) of Rule 3. Under sub-rule (5) of Rule 3, a complaint which does not comply with any of the provisions of sub-rules (1) to (4) of Rule 3 shall not be entertained. Under Rule 4 of the Rules, the District Magistrate, 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. Under Rule 5 of the Rules, where the District Magistrate is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise, that an enquiry should be held against a Pradhan or Up-Pradhan or Member, he shall forthwith constitute a Three Member Committee and by an order ask an Enquiry Officer, other than the Enquiry Officer nominated earlier, to hold the enquiry. The enquiry officer for conducting the preliminary enquiry should be the District Panchayat Raj Officer or any other 'district level officer' to be nominated by the District Magistrate.
23. It has, therefore, to be examined whether the aforesaid provisions of the Rules had been followed by the District Magistrate while passing the order under Section 95(1)(g) of the Act."
24. The records indicate that the complaint dated 11.03.2016 was submitted by one Mr. Rafatullah Khan before the District Magistrate, Balrampur supporting with an affidavit. Pursuant to the said complaint, the inquiry was firstly conducted by the Sub-Divisional Officer, Tulsipur and the Block Development Officer, Tulsipur, District-Balrampur on 17.07.2016, but as the inquiry under Section 2 (c) of Rules 1997 should have been conducted by any District Level Officer, therefore, the inquiry was conduced by the District Panchayat Raj Officer, who has submitted the inquiry report dated 22.07.2016 before the District Magistrate, Balrampur. Thereafter, the impugned order dated 15.03.2017 has been issued by the District Magistrate.
25. The perusal of the impugned order dated 25.03.2017, passed by the District Panchayat Raj Officer reveals that the inquiry dated 22.07.2016 was of a preliminary inquiry inasmuch as the final inquiry has not been concluded. It would not be out of place to indicate here that the aforesaid impugned order dated 25.03.2017 reads that the financial and administrative powers of the petitioner have been ceased till the conclusion of final inquiry.
26. On a specific query being made from the learned Standing Counsel as to what happened in final inquiry or as to what is the stage of final inquiry, the learned Standing Counsel was unable to provide a specific information to that effect. He has further submitted that inquiry in question might be going on. Further, no specific reply has been indicated in the counter affidavit, which has been filed on 04.01.2018.
27. It would be relevant to refer Rule 8 of the Enquiry Rules, 1997 for the reason it provides the period etc. for conclusion of the inquiry. Rule 8 of the Rules, 1997 is being reproduced here-in-below:-
"8. The Enquiry Officer shall conclude the enquiry within six months from the date of receipt of complaint and forward to State Government the records of the enquiry, which shall include,--
(a) the report prepared by him under Rule 7;
(b) the written statement of defence, if any, of the person against whom the enquiry has been held;
(c) the oral and documentary evidence produced during the course of the enquiry;
(d) written briefs, if any, filed during the course of the enquiry; and
(e) the orders, if any, made by the State Government and the Enquiry Officer in regard to the enquiry."
28. The perusal of Rule 8 categorical provides that the Enquiry Officer shall conclude the inquiry within a period of six months from the date of receipt of the complaint and forward the record of inquiry to the State Government.
29. In the instant matter, the complaint was made on 11.03.2016 and the preliminary inquiry was concluded on 22.07.2016. However, the District Magistrate has passed the order dated 15.03.2017 under Section 95 (1) (g) of the Act, 1947 ceasing the financial and administrative powers of the petitioner till conclusion of final inquiry as the aforesaid fact has been indicated in the subsequent impugned order dated 25.03.2017 passed by the District Panchayat Raj Officer, Balrampur. More than six months period, to be more precise about ten months period have lapsed but the final inquiry has not been concluded, which means that this is an apparent violation of Rule 8 of the Rules, 1997 inasmuch as the final enquiry should not be kept pending for uncertain period.
30. Not only the above, if the final inquiry is to be conducted and concluded, the same can be done as per the provisions of Rule 5 & 6 of the Rules, 1997, but the learned Standing Counsel is unable to intimate as to what happened in the final inquiry or as to what is the stage of final inquiry. The aforesaid fact has not even been indicated in the counter affidavit, which has been filed on 04.01.2018, i.e. after more than nine months period w.e.f. 15.03.2017.
31. In the present case, neither the preliminary inquiry against the petitioner has been concluded strictly in accordance with law, as prescribed under Rule 4 of the Rules, 1997 nor the same has been finally concluded as per Rule 8 of the Rules, 1997.
32. Learned counsel for the petitioner has placed reliance on the judgment of this Court reported in 2009 (27) LCD 153; Pawan Kumar Nayak vs. State of U.P. & others. The relevant paras of the aforesaid judgment are 5 & 6, which are being reproduced here-in-blow:-
"5. From a bare perusal of the aforesaid Rules, it is clear that upon the submission of the preliminary enquiry report under Rule 4 of the Rules, the Prescribed Authority is required to record its subjective satisfaction, namely, that an inquiry is required to be held against the Pradhan under Section 95 (1) (g) of the Act, and only then it can issue an order ceasing the financial and administrative powers of the Pradhan under the proviso to Section 95 (1) (g) of the Act and by an order ask the Enquiry Officer to hold an enquiry under Rule 6 of the Rules.
6. In the present case, there is no finding of the District Magistrate regarding its subjective satisfaction that an enquiry should be held against the Pradhan under Section 95 (1) (g) of the Act nor an order has been passed directing the Enquiry Officer to hold such enquiry. Consequently, the impugned order ceasing the financial and administrative powers of the petitioner is not sustainable and is quashed. The writ petition is allowed."
33. The Hon'ble Full Bench of this Court in the case of Vivekanand Yadav vs. State of U.P. & others reported in 2011 (1) ALJ 694 has examined at length the provisions of Section 95 (1) (g) of the Act and the Rules and observed that the District Magistrate could form his, prima-facie, satisfaction for holding a preliminary inquiry and ceased the financial and administrative powers of the Pradhan only on the preliminary inquiry report submitted by the Enquiry Officer defined under Rule 2 (c) of Rules, 1997 or on the basis of preliminary inquiry conducted by the District Magistrate himself.
34. Therefore, in view of the above, it is subjective satisfaction of the District Magistrate to pass an order for ceasing the financial and administrative powers of the Pradhan, if he satisfy that the preliminary inquiry against the Pradhan concerned has been done strictly in accordance with law and if the District Magistrate finds that there is requirement of final inquiry under Rule 5, the same may be directed and the inquiry should be conducted other than the officer who has conducted a preliminary inquiry. The said final inquiry must have been concluded in its logical end.
35. The Hon'ble Full Bench of this Court in Vivekanand Yadav (supra) has specifically observed that before ceasing the financial and administrative powers of the Pradhan, the explanation or point of view or version of the Village-Pradhan to the charges has necessarily to be obtained and also considered by the District Magistrate before being prima-facie satisfied about the financial or other irregularities of the Village-Pradhan.
36. A perusal of the impugned order dated 15.03.2017, passed by the District Magistrate, Balrampur, shows that the reply furnished by the petitioner/Pradhan has not been considered at all. As a matter of fact, the impugned order does not refer the contents of the explanation/ reply of the petitioner. Therefore, it appears that there is no consideration of reply so furnished by the petitioner. The order passed by the District Magistrate, therefore, cannot be sustained for the aforesaid reasons and also in view of the settled proposition of law so settled by this Court.
37. In the result, the writ petition is allowed. The orders dated 15.03.2017 and 25.03.2017, as contained in Annexure Nos.1 and 2 to the writ petition, are hereby quashed.
38. However, it is open to the District Magistrate, Balrampur to pass a fresh order in accordance with the provisions of Section 95 (1) (g) of the Act, 1947 read with Rules, 1997, within a period of two months.
39. It is, however, open that if any inquiry in the matter is going on, the same would be concluded, expeditiously, say within a period of two months.
40. Learned counsel for the petitioner and the learned Standing Counsel are directed to intimate this order to the District Magistrate, Balrampur forthwith.
41. No order as to costs.
Order Date :- 11.1.2018 Suresh/ [Rajesh Singh Chauhan,J.]