Ranjeet Singh vs State Of Uttarakhand And Others on 23 May, 2023

[Cites 14, Cited by 1]

Uttarakhand High Court

Ranjeet Singh vs State Of Uttarakhand And Others on 23 May, 2023

The challenge in this petition is made to the order dated 24.08.2022 passed by the Director, Panchayati Raj, Uttarakhand, by which the petitioner has been suspended under Section 138(4) of the Uttarakhand Panchayati Raj Act, 2016 ("the Act") till the conclusion of final inquiry; as also for quashing the complaint dated 10.06.2022 submitted by Chandra Shekhar Mudela to the Secretary, Panchayati Raj, Uttarakhand, Dehradun.

2. Facts necessary to appreciate the controversy, briefly stated, in a chronology, are as follows:- 2

(i) The petitioner was elected Pramukh, Block Development Committee, Khatima, District Udham Singh Nagar.

(ii) On 12.04.2022, a show cause notice was given to the petitioner in respect of a complaint.

(iii) On 16.4.2022, a Committee was constituted by the respondent no. 3, the District Magistrate, Udham Singh Nagar to look into the charges made against the petitioner by Mr. Ravindra Singh Rana.

(iv) The petitioner challenged the constitution of Committee on 16.04.2022 by the District Magistrate, Udham Singh Nagar in Writ Petition (M/S) No. 990 of 2022, which was dismissed on 10.05.2022 with the observation that the constitution of Committee does not give rise to any cause of action to the petitioner.

(v) On 11.05.2022, another show cause notice was issued to the petitioner. The petitioner challenged both the notices dated 12.4.2022 and 11.5.2022 by filing two separate writ 3 petitions i.e. WP (M/S) No. 1153 of 2022 and WP (M/S) No. 1163 of 2022 ("the petitions").

(vi) The petitions were taken up for hearing on 08.06.2022 and the Court passed an interim order by which the operation of the impugned show cause notices was kept in abeyance till the next date of listing.

(vii) On 18.06.2022, the Director, Panchayati Raj, Uttarakhand dropped the proceedings on the notices impugned in the petitions, finding that the notices were not in conformity with the Uttar Pradesh Kshetra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas), Enquiry Rules, 1997 ("the 1997 Rules").

(viii) On 23.08.2022, the petitions were dismissed as having been rendered infructuous, in view of the fact that the Government had already withdrawn the notices.

(ix) Another complaint dated 10.06.2022 was addressed to the Secretary, Panchayati Raj by a Chandra Shekhar Mudela. On which 4 the Joint Secretary, Government of Uttarakhand, Panchayati Raj Section on 21.06.2022 ordered a preliminary inquiry.

(x) On 08.07.2022, the Additional District Magistrate/Inquiry Officer, Udham Singh Nagar submitted an inquiry report pursuant to the complaint of Chandra Shekhar Mudela. In the inquiry report, it was concluded that the petitioner as Block Pramukh had committed gross violation in discharge of his duties. The inquiry report was forwarded to the Joint Secretary, Panchayati Raj, Section-II, Government of Uttarakhand, Dehradun.

(xi) On 24.08.2022, the impugned order was passed, by which, under Section 138(4) of the Act, the petitioner was suspended till conclusion of the final inquiry.

3. The order dated 24.08.2022 has been put to challenge.

4. It is the case of the petitioner that the complaint of Chandra Shekhar Mudela is not in conformity with Rule 3 of the 1997 Rules; the complaint is not verified as required 5 under Rule 3(3) of the 1997 Rules. Therefore, according to the petitioner, non-conformity of the complaint with Rule 3(3) of the 1997 Rules invokes the provisions of Rule 3(5) of the 1997 Rules and such a complaint could not have been entertained.

5. In its counter affidavit, it is the case of the State that the impugned order has been passed in accordance with Section 138 of the Act read with the 1997 Rules; the petitioner has not discharged his official duties and responsibilities and misappropriated the public funds. It has further been the case of the State that the impugned order has been passed after due deliberation on the inquiry report submitted by the inquiry officer; the impugned order is a reasoned and speaking order.

6. In its supplementary counter affidavit, the State has further averred that defect in verification of an affidavit cannot be a sufficient ground for dismissal of the complaint summarily and as such affidavit can be permitted to be filed at a later stage. Such a defect is not fatal.

7. The petitioner has further rebutted the contention of the State in its rejoinder affidavit.

8. Heard learned counsel for the parties and perused the record.

9. Learned Senior Counsel appearing for the petitioner would submit that the petitioner is an elected representative. The procedure for removal of a Block Pramukh is given under Section 138 of the Act and sub- section (4) of it, inter alia, provides that till the final inquiry, the Pramukh maybe placed under suspension. It is argued that in the instant case, the inquiry has been ordered by the Joint Secretary, State of Uttarakhand on 21.06.2022 on a complaint of Chandra Shekhar Mudela, but the complaint filed by Chandra Shekhar Mudela was not in conformity with Rule 3 of the 1997 Rules. It is argued that cognizance on such a complaint could not have been taken, therefore, the entire proceeding is bad in the eyes of law.

10. Learned Senior Counsel would submit that the provisions of Rule 3 of the 1997 Rules are mandatory. In support of his contentions, learned Senior Counsel has placed reliance on the principles of law as laid down by the Division Bench of Hon'ble High Court of Judicature at Allahabad in the case of Smt. Kesari Devi v. State of U.P. and others, 2005 (4) AWC 3563. Reference has been made to paragraphs 60, 61, 63, 67, 87, 93 126 and 127 of the judgment in the case of Kesari Devi (supra). In these paragraphs, the Division Bench of the Hon'ble High Court of Judicature at Allahabad observed as hereunder:- 7

"60. Rule 3 of the 1997 Rules provides that every complaint and affidavit shall be verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter called 'C.P.C.') for the verification of the pleadings and affidavit respectively. Order VI Rule 15 C.P.C. provides for verification of the pleadings. It provides that every pleadings shall be verified at the foot by the party acquainted with the facts of the case. The pleadings have to be numbered in paragraphs and he has to explain as to which paragraph is being verified on his personal knowledge and which upon information received and believes it to be true. The person verifying the pleadings shall also furnish an affidavit in support of his pleadings.

61. The procedure for filing the affidavit and its verification etc. have been provide under Order XIX, C.P.C. Rule 3 thereof provides that the affidavit shall be confined to such facts as the deponent is able to prove of his own knowledge. The purpose of providing for verification either in the pleadings or affidavit is to put a responsibility upon the deponent of what he has stated in the pleadings.

                        **   **     **

      63.    Similarly,      a    person   who   is   well

acquainted with the facts of the case is the only competent person to verify the pleadings and where the pleadings have not been verified as per the requirement of the Code, it cannot be held that there has been compliance of the mandatory provisions of law...

** ** **

67. The verification in the pleadings as well as in the affidavit as required under Rule 3 of the 1997 Rules is to be made strictly in consonance with the procedure prescribed in the C.P.C.

** ** ** 8

87. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further period of five years, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal...

** ** **

93. It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court without entering into the sufficiency or adequacy of the evidence, must exercise its jurisdiction to declare such an act to be illegal and invalid as naked and arbitrary exercise of power is bad in law.

** ** **

126. ...In such a case, authority has to satisfy that it has acted reasonably in a fair and just manner whatever the statutory mandate requires must be honoured by the State. No deviation of the requirement of the procedure is permissible if the statute provides for severe consequence. Undoubtedly, the interest of the State is supreme but every action of the state must be right, just and fair.

** ** **

127. In view of the above, law can be summarised, that an inquiry is to be conducted against any such office bearer applying strict adherence to the statutory provisions and principles 9 of natural justice. The provisions of Rule 3 of the 1997 Rules are mandatory in nature. Non- compliance of any of the sub-rules thereof would render the proceedings illegal. The complaint should be filed in the manner prescribed by the 1997 Rules, verification of the complaint as well as of the affidavit has to be made in accordance thereof. As per Rule 5 of the 1997 Rules unless the State Government is of the opinion that the complaint has been processed strictly in accordance with Rule 3, and the preliminary inquiry has been conducted by the designated authority in accordance with the procedure prescribed under the Rules and strict compliance has been observed, it shall be impermissible for the State Government to proceed any further for regular inquiry...Applying the tests laid down by the Apex Court, strict adherence to every provision is mandatory and failure to do so would make the action liable to be struck down."

(emphasis supplied)

11. Learned Senior Counsel would also submit that since the complaint filed by Chandra Shekhar Mudela is not in accordance with law, therefore, any consequential proceeding taken on the basis of it would be bad in the eyes of law. On this aspect, the learned Senior Counsel has placed reliance on the principles of law as laid down by the Hon'ble Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar and others, (2011) 14 SCC 770.

12. In the case of Davinder Pal Singh Bhullar (supra), Bhullar, the Hon'ble Supreme Court observed that "It is a settled legal proposition that if initial action is not in 10 consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento candit opus meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case".

13. It is also submitted that the Joint Secretary is not an authority to conduct a preliminary inquiry in view of Rule 4 of the 1997 Rules. It is submitted that in the cases of elected representatives, the Rules should be strictly adhered to. The Rules should be strictly observed. In support of his contention, learned Senior Counsel has placed reliance on the principles of law as laid down in the case of Ravi Yashwant Bhoir v. District Collector, Raigad and others, (2012) 4 SCC 407.

14. In the case of Ravi Yashwant Bhoir (supra), the Hon'ble Supreme Court, inter alia, observed as hereunder:-

"28. In State of Punjab v. Baldev Singh [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080 : AIR 1999 SC 2378] , this Court considered the issue of removal of an elected office- bearer and held that where the statutory provision has very serious repercussions, it implicitly makes it imperative and obligatory on the part of the authority to have strict adherence to the statutory provisions. All the safeguards and protections provided under the statute 11 have to be kept in mind while exercising such a power. The Court considering its earlier judgments in Mohinder Kumar v. State [(1998) 8 SCC 655 : 1999 SCC (Cri) 79] and Ali Mustaffa Abdul Rahman Moosa v. State of Kerala [(1994) 6 SCC 569 : 1995 SCC (Cri) 32 : AIR 1995 SC 244] held as under : (Baldev Singh case [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080 : AIR 1999 SC 2378] , SCC p. 199, para 28) "28. ... It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed."

29. The Constitution Bench of this Court in G. Sadanandan v. State of Kerala [AIR 1966 SC 1925 : 1966 Cri LJ 1533] held that if all the safeguards provided under the statute are not observed, an order having serious consequences is passed without proper application of mind, having a casual approach to the matter, the same can be characterised as having been passed mala fide, and thus, is liable to be quashed.

36. In view of the above, the law on the issue stands crystallised to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office-bearer but his constituency/electoral college is also deprived of representation by the person of their choice."

15. On the other hand, learned Advocate General would submit that the impugned order is in accordance with law. He would raise the following points in his submission:- 12

(i) The complaint filed by Chandra Shekhar Mudela is notarized.

(ii) The purpose of filing affidavits along with the complaint is that the complainant should stick to his complaint.

(iii) Based on the complaint filed by Chandra Shekhar Mudela, notices were issued to the petitioner. The petitioner participated in the inquiry. He did not challenge the notice during inquiry, therefore, now he cannot raise objections on the validity of complaint filed by Chandra Shekhar Mudela.

(iv) Rule 3 (3) of the 1997 Rules is a procedural part. It is not a substantive law. The allegations levelled against the petitioners are serious. Therefore, the competent authority has rightly directed for preliminary inquiry, in which the allegations were found to be true. Accordingly, the impugned order has been passed.

(v) The defect in verification is a curable defect.

It cannot vitiate the entire proceedings. 13

16. In support of his contentions, learned Advocate General has placed reliance on the principles of law as laid down in the case of A. Manju v. Prajwal Revanna Alias Prajwal R. and others, (2022) 3 SCC 269.

17. In fact, in the case of A. Manju (supra), the Hon'ble Supreme Court had considered non-compliance of Section 83 of the Representation of the People Act, 1951 ("the R.P. Act") and in para 25, observed as hereunder:-

"25. We may take note of the Constitution Bench judgment of this Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore [Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, (1964) 3 SCR 573 :

AIR 1964 SC 1545] which opined that the defect in verification of an affidavit cannot be a sufficient ground for dismissal of the petitioner's petition summarily and such an affidavit can be permitted to be filed later. This Constitution Bench judgment was also referred to in G.M. Siddeshwar case [G.M. Siddeshwar v. Prasanna Kumar, (2013) 4 SCC 776 : (2013) 2 SCC (Civ) 715] to come to a conclusion that non-compliance with the proviso to Section 83(1) of the RP Act was not fatal to the maintainability of an election petition and the defect could be remedied i.e. even in the absence of compliance, the petition would still be called an election petition. We cannot say that the High Court fell into an error while considering the election petition as a whole to come to the conclusion that the allegations of the appellant were not confined only to Section 33-A of the RP Act, but were larger in ambit as undue influence and improper acceptance of nomination of Respondent 1 were also pleaded as violation of the mandate under Sections 123 and 100 of the RP Act."

18. The sole question, which falls for scrutiny in this petition is as to whether the complaint filed by Chandra Shekhar Mudela, based on which on 21.06.2022 the Joint Director, directed for preliminary inquiry is in conformity with the 1997 Rules and if not, does it vitiate the entire consequential proceedings? Or, if the complaint filed by Chandra Shekhar Mudela is not in conformity with Rule 3 of the 1997 Rules, can such defect be cured subsequently?

19. In order to appreciate the rival submissions, it would be apt to reproduce Section 138(4) of the Act. It reads as hereunder:-

"138. Separation from their posts to the officers of the three tiers Panchayat. -

(1)....

(2)....

(3)....

(4) Suspension. - (a) If after the preliminary enquiry, the Pradhan, Up-Pradhan, Pramukh, Up pramukh, Chairman, Vice chairman found guilty in prima facie than till the final enquiry, the State Government may suspend him.

(b) If it is proved that the meeting of Gram Sabha/ram Panchayat is convened in the house of Pradhan/Up-Pradhan than after enquiry against 15 the concerning person, the State Government may suspend him;

Provided that the preliminary inquiry shall be completed within one month and the final inquiry shall be completed within six months, as expeditiously as possible."

20. Rule 3 of the 1997 Rules provides for procedure relating to complaints. It is as hereunder:-

"3. Procedure relating to complaints. - (1) Any person making a complaint against a Pramukh, Up-Pramukh, Adhyaksha or Upadhyaksha may send his complaint to the Secretary to the State Government in the Panchayati Raj Department, Vidhan Bhawan, Lucknow.

(2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of fact 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 annexures thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavit respectively.

(4) Not less than three copies of the complaint as well as of each of its Annexures shall be submitted by the complainant.

(5) A complaint which does not comply with any of the foregoing provisions shall not be entertained."

21. Rule 4 of the 1997 Rules makes a provision with regard to preliminary inquiry. It is as hereunder :-

"4.Preliminary enquiry. - (1) The State Government may, on the receipt of a complaint referred to I Rule 3 or otherwise appoint an officer not below the rank of an Additional District Magistrate in the case of a Pramukh or Up- Pramukh and District Magistrate in the case of an Adhyaksha or Upadhyaksha to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter.

(2) The Officer appointed under sub-rule (1) shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within a fortnight of his having been so appointed."

22. A bare reading of Rule 4 of the 1997 Rules makes it abundantly clear that, in fact, based on a complaint referred to in Rule 3 of the 1997 Rules or otherwise the State Government may appoint an inquiry officer for conducting a preliminary inquiry with a view to find out if there is a prima facie case for a formal inquiry in the matter. 17

23. A preliminary inquiry under Rule 4 of the 1997 Rules may be ordered "otherwise" also i.e. independent or without any complaint under Rule 3 of the 1997 Rules. But, the question of "otherwise" is not in issue in the instant matter. It is the categorical case of the petitioner that the complaint of Chandra Shekhar Mudela, based on which a preliminary inquiry was conducted and subsequently impugned order was passed, is bad in the eyes of law. Therefore, all the proceedings based on it and the complaint itself are liable to be quashed.

24. On behalf of the State, it has been argued that Rule 3 of the 1997 Rules is procedural. If there is any deficiency in the complaint, it is curable. The question is whether Rule 3 of the 1997 Rules is mandatory for its observance?

25. In the case of Smt. Kesari Devi (supra), the Hon'ble Allahabad High Court has discussed the law on this point quite in detail. In fact, the Hon'ble Allahabad High Court has also examined as to whether these Rules are mandatory or not. The test of consequence of non- observation has also been examined in the case. 18

26. After discussing the law on the point, in para 127 in the judgment of Smt. Kesari Devi (supra), which has already been quoted hereinbefore, the Hon'ble Allahabad High Court categorically observed that "the provisions of Rule 3 of the 1997 Rules are mandatory in nature. Non- compliance of any of the sub-rules thereof would render the proceedings illegal".

27. During the course of arguments, the learned Senior Counsel for the petitioner would submit that the judgment passed in the case of Smt. Kesari Devi (supra) had further been challenged by the State of Uttar Pradesh in Special Leave to Appeal (Civil) No. 19761/2005, which was dismissed on 03.10.2005.

28. Rule 3 of the 1997 Rules gives procedure as to how a complaint should be filed. Such a complaint has to be accompanied by the complainant's own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of fact relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the 19 accusation. These accusations should be verified before a notary together with all documents in the possession of the complainant. The complaint and the affidavit are required to be verified in the manner as laid down in the Code of Civil Procedure, 1908.

29. What is important to note is the consequences, if the complaint is not filed in the manner provided under Rule 3 of the 1997 Rules. Sub-rule (5) of Rule 3 of the 1997 Rules declares that "A complaint which does not comply with any of the foregoing provisions shall not be entertained". This sub-rule (5) of Rule 3 makes it abundantly clear that compliance of all the sub-rules of Rule 3 of the 1997 Rules is mandatory. It is not a procedural part.

30. On behalf of the State, reference has been made to the judgment in the case of A. Manju (supra). The question that was discussed in the case of A. Manju (supra) by the Hon'ble Supreme Court was with regard to non- compliance of the provisions of Section 83 of the R.P. Act. Section 83 of the R.P. Act is as follows :-

"83. Contents of petition. - (1) An election petition -

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice, and

(c) shall be signed by the petitioner and verified in the manner laid down the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."

31. A bare reading of Section 83 of the R.P. Act makes it clear that it does not provide for any consequences if the petition is not filed in accordance with Section 83 of the R.P. Act.

32. Section 86 of the R.P. Act provides for summary dismissal of an Election Petition, which does not comply 21 with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. Section 86(1) of the R.P. Act is as follows:-

"86. Trial of election petitions. (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation. - An order of the High Court dismissing an election petition under this sub- section shall be deemed to be an order made under clause (a) of section 98."

33. A bare perusal of Section 86 (1) of the R.P. Act makes it clear that, in fact, non-compliance of provisions of Section 83 of the R.P. Act also does not make a ground for summary dismissal of Election Petition, whereas in the instant case, sub-rule (5) of Rule 3 of the 1997 Rules declares that a complaint which does not comply with any of the sub-rules of Rule 3 of the 1997 Rules shall not be entertained. It is a mandatory requirement.

34. In the case of Ravi Yashwant Bhoir (supra), the Hon'ble Supreme Court has categorically held that "an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions ..... for the reason that removal of an elected person casts stigma upon him and takes away his 22 valuable statutory right. Not only the elected office- bearer but his constituency/electoral college is also deprived of representation by the person of their choice".

35. In the instant matter, the complaint of Chandra Shekhar Mudela is not in conformity with Rule 3 of the 1997 Rules for the following reasons:-

(i) It is not accompanied by the complainant's own affidavit in support of the complaint.

(ii) It is also not accompanied by the affidavits of all persons from whom the complainant Chandra Shekhar Mudela claims to have received the information of the fact relating to accusations. It is in violation of sub-rule (2) of Rule 3 of the 1997 Rules.

(iii) The complaint of Chandra Shekhar Mudela is also not verified in the manner laid down in Code of Civil Procedure, 1908. It is non-compliance of sub-rule (3) of Rule 3 of the 1997 Rules.

36. This Court has held that the complaint filed by Chandra Shekhar Mudela is not in conformity with Rule 3 of the 1997 Rules. In view thereof, the provisions of sub-rule (5) of Rule 3 of the 1997 Rules would come into play and according to it, the complaint, which was filed by Chandra Shekhar Mudela should not have been entertained. By entertaining such a complaint, which is not in conformity with Rule 3 of the 1997 Rules, an illegality has been committed, which is incurable. Therefore, this Court is of the view that every consequential action taken on the complaint of Chandra Shekhar Mudela gets vitiated. Accordingly, the impugned order dated 24.08.2022 as well as the complaint is liable to quashed.

37. The Writ petition is allowed.

38. The impugned order dated 24.08.2022 as well as the complaint dated 10.06.2022 submitted by Chandra Shekhar Mudela is quashed.

(Ravindra Maithani, J.) 23.05.2023 Avneet/

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