Allahabad High Court
Rajendra vs State Of U.P. Thru Addl Chief Secy ... on 9 November, 2020
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 7 Case :- MISC. SINGLE No. - 19518 of 2020 Petitioner :- Rajendra Respondent :- State Of U.P. Thru Addl Chief Secy Panchayti Raj And Others Counsel for Petitioner :- Dinesh Kumar Mishra,Nishant Mishra Counsel for Respondent :- C.S.C. Hon'ble Mrs. Sangeeta Chandra,J.
1) Heard Shri Dinesh Kumar Mishra, learned counsel for the petitioner and learned standing counsel and perused the record.
2) This petition has been filed praying for quashing of the order dated 08.10.2020 passed by the Opposite Party No.2-District Magistrate, Gonda, under Section 95 (1) (g) of the Panchayat Raj Act and for a Mandamus to be issued to the Opposite parties to allow the petitioner to continue to work as Gram Pradhan of Village Dariyapur, Development Block Chhapia, District Gonda.
3) It has been submitted by the learned counsel for the petitioner that the Sub Divisional Magistrate, Mankapur, District Gonda, informed the District Magistrate that on 08.08.2019 at about 11:56 A.M. a part of roof of one of the Class rooms of Primary Pathshala of Village Dariyapur, Block Chhapia, Tehsil Mankapur, District Gonda, fell down suddenly injuring eight children. He also informed the Opposite Party no.2 that although the Primary pathshala building was constructed in 1987, before the Lok Sabha Election of 2019, The money was allocated for repair of the School building and it appears prima facie that the repair work was not carried out properly as a result of which the accident took place. On report of Public Servant i.e. the S.D.M., the District Magistrate, by his order dated 17.08.2019 issued under the U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules 1997, hereinafter referred to as 1997 Enquiry Rules instituted a preliminary enquiry and nominated the Executive Engineer and the District Agriculture Officer, PWD Provincial Division, Gonda, to conduct the inquiry and submit his report.
4) A preliminary inquiry was conducted and a report was submitted on 15.10.2019 on the basis of which the impugned order has been passed.
5) Learned counsel for the petitioner has submitted that after the preliminary inquiry report was submitted a Show Cause Notice was issued to the petitioner by the District Magistrate on 02.12.2019 and the petitioner submitted his reply stating the correct facts that the School building was constructed 30-32 years ago when the petitioner was not the Gram Pradhan and therefore any technical defect in construction of the roof of the Primary School building of that time cannot be placed at the door of the petitioner. The repair work was carried out under the supervision of the Junior Engineer posted in the Block and estimate of work and verification of its details and payments were also done by the Junior Engineer and the petitioner was not at fault. However, the reply of the petitioner was not considered properly and the impugned order has been passed.
6) Learned counsel for the petitioner further submits that this Court in the case of Uday Pratap Singh alias Harikesh Vs. State of U.P. and Others, Writ-C No.24902 of 2019 decided on 30.09.2019 has held that the District Magistrate has no Authority to pass such order, The Procedure for Enquiry having not been followed, the Court had allowed the several writ petitions.
7) Learned counsel for the petitioner has also placed reliance upon an order for Reference dated 14.01.2020 passed in Writ Petition No.156 (M/S) of 2008 (Ram Bilash Vs. Commissioner, Devi Patan Mandal, Gonda), where this Court had referred the judgment passed by the Co-ordinate Bench to Hon'ble the Chief Justice after framing certain issues/question to be decided by the Larger Bench under Chapter 5 Rules VI of the Allahabad High Court Rules.
8) It has been further submitted by the learned counsel for the petitioner on the basis of the Preliminary Enquiry Report dated 15.10.2019 that the Preliminary Enquiry Report clearly states that the roof of the School had not been constructed properly and there was a technical defect at the time of its construction as a result of which the roof cracked and half of one portion of the roof fell down resulting in injury to the students. Preliminary Enquiry report did not point out any laxity or irregularity on the part of Gram Pradhan.
9) This Court has carefully perused the order impugned dated 08.10.2020, it appears that after considering the Enquiry Report dated 15.10.2019 which had stated that the repair work had to be carried out in the School building under various heads on money released by the 14th Finance Commission just before the Lok Sabha Election, amounting to Rs.2,26,000/-. Only half of the repair work was done amounting to Rs.1,09,800/- the repair work was not in accordance with the approved Plan/Sanctioned estimate. The petitioner being Gram Pradhan was responsible for such repair work to be carried out and therefore was prima facie found guilty for negligence and carelessness. The District Magistrate has also referred to the reply of the Village Development Officer, Dariyapur, dated 05.09.2019 wherein he has stated that under operation "Kayakalp" before the Lok Sabha Elections of 2019, money was sanctioned to be spent on repair work of the Primary School on 04.01.2019. The current Village Development Officer had been transferred from Development Block Nawabganj to Development Block Chhapia on 08.03.2019 and he had taken charge only on 23.03.2019 and the repair work of Primary school Dariyapur, was carried out under the supervision of the Gram Pradhan and payment alone was made by him of the approved estimate.
10) The District Magistrate in his order has mentioned the fact that the Gram Pradhan in his written reply to the Show Cause Notice had admitted that he had got carried out repair work of the Primary School building, Dariyapur, under operation "Kayakalp" before the Lok Sabha Election held in March, 2019, therefore, the Pradhan was found prima facie responsible for defect/lacuna left during repair work so carried out. The District Magistrate has referred to the Enquiry Report dated 15.10.2019 wherein it was stated specifically that money was sanctioned for several repairs including repair of the roof and ceiling of the Primary school building. The repair of the roof and ceiling was not carried out and only half of the money was spent in carrying out other repair work which clearly showed negligence of the Gram Pradhan. Prima facie case being made out, a Regular Enquiry has been instituted by the District Magistrate appointing the Dy. Director (Agriculture), Gonda as the Enquiry Officer with technical assistance being given to him by the Executive Engineer, Construction Division-II, PWD, Gonda.
11) Having carefully perused the Enquiry Report dated 15.10.2019 and the order dated 08.10.2020, this Court finds that the District Magistrate has exercised his powers for seizing Financial and Administrative Powers of the Gram Pradhan only because he has found even though in the Preliminary Enquiry Report technical defect in the initial construction of the School building had been pointed out, In the said Enquiry Report the negligence in carrying out the repair work before March, 2019, and spending of only half of the amount sanctioned for such repair work has also been mentioned.
12) The petitioner did not deny that he was the Gram Pradhan during the time of repair work and that he had supervised the repair work. He only denied that he was the Gram Pradhan at the time when the School building was initially constructed. This Court finds that the impugned order does not suffer from any factual or legal infirmity.
13) This Court has also considered the judgment rendered on 30.09.2019 in Writ-C No.24902 of 2019 (Uday Pratap Singh alias Harikesh Vs. State of U.P. and Others) and also the Reference order passed by the Co-ordinate Bench in Writ Petition No.156 (M/S) of 2008 (Ram Bilash Vs. Commissioner, Devi Patan Mandal, Gonda), it finds that the judgments/orders referred to by the learned counsel for the petitioner are inapplicable to the facts of the case as in the two Batches of the writ petitions being considered by the Co-ordinate Benches, this Court was considering the question of jurisdiction of the District Magistrate to pass order of Surcharge under Section 27 of the U.P. Panchayat Raj, 1947, and Chapter 13 of the U.P. Panchayati Raj Rules, 1947. This Court was considering writ petitions filed by the various individuals challenging the orders of Surcharge passed by the District Magistrate either during pendency of Final Enquiry contemplated under 1997 Rules, or upon the conclusion of Final Enquiry conducted in accordance with the 1997 Rules. The Court therefore was considering only the power of the District Magistrate to impose Surcharge under Rules 6 of the 1997 Rules. This Court was not considering the power of District Magistrate under Section 95 (i) (g) (iii) to seize the Financial and Administrative powers of the Gram Pradhan after Preliminary Enquiry Report was received by him and the reply of the Show Cause Notice has been considered by him during the pendency of the Regular Enquiry to be conducted under the 1997 Enquiry Rules.
14) The reliance placed by the learned counsel for the petitioner on the aforecited two judgments/orders of the Co-ordinate Benches of this Court is misplaced.
15) The writ petition is dismissed. No order as to costs.
Order Date :- 9.11.2020 PAL