Allahabad High Court
Ramdulare Ram vs State Of U P And 5 Others on 13 December, 2019
Bench: Bala Krishna Narayana, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 04 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 2362 of 2019 Petitioner :- Ramdulare Ram Respondent :- State Of U P And 5 Others Counsel for Petitioner :- Pushpendra Kumar Yadav,Vidya Kant Tripathi Counsel for Respondent :- C.S.C.,Manoj Kumar Yadav Hon'ble Bala Krishna Narayana,J.
Hon'ble Shamim Ahmed,J.
Per Hon'ble Shamim Ahmed, J.
Heard learned counsel for the petitioner and learned counsel for the respondents.
This public interest litigation petition under Article 226 of the Constitution of India has been filed by the petitioner with the following prayer to :-
(i) Issue a writ, order or direction in the nature of certiorari to quash the impugned order dated 19.01.2019 and 16.09.2019 passed by respondent no.3 (Annexure Nos. 9 and 10 to this writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus directing to the respondent nos. 2 to 4 to re-inquiry against the respondent nos. 5 to 6 for constructing the work in village Baranga, Post Sayyed Raja, District Chandauli and also be directed to respondent no. 2 to decide the application dated 10.10.2019 (Annexure no. 11 to the writ petition) filed by the petitioner before respondent no. 2 for re-inquiry the work completed by respondent nos. 5 to 6 in village Baranga, Post Sayyed Raja, District Chandauli.
(iii) Any other writ, order or direction as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.
(iv) Award the cost of the petition to the petitioner.
The submission of learned counsel for the petitioner is that the respondent no. 6 who is the Gram Pradhan of village Baranga, Post- Sayyed Raja, District- Chandauli committed gross illegalities in doing the work of the said Gram Sabha and the petitioner gave several applications/representations before the authority concerned for conducting inquiry into the works done by the respondent no. 6 and for taking necessary action against him but no action was taken by the authority concerned. Thereafter, the petitioner moved an application on 17.07.2018 before the District Magistrate, Chandauli alongwith affidavit dated 22.05.2018 under Section 95(1)(g) of the Act with a prayer to assess the financial work of respondent no. 6 and take legal action against him. In the application (Annexure No. 3 to the writ petition), the petitioner had set forth several points which were required to be investigated but no action was taken by the District Magistrate. Thereafter, left with no alternative, the petitioner filed Writ Petition (PIL) No. 5126 of 2018 (Ramdulare Ram Vs. State of U.P. And 5 Others) before this Hon'ble Court and this Hon'ble Court vide judgment and order dated 23.01.2019 finally disposed of the same. Relevant part of order dated 23.01.2019 is quoted hereinbelow:-
"We, accordingly, dispose off the writ petition with a direction to the District Panchayat Raj Officer, Chandauli to ensure that the enquiry is concluded within a period of one month and a copy of the enquiry report is provided to the petitioner, as already stated by him in the instructions."
Learned counsel for the petitioner further submitted that when no action was taken by the respondents in compliance of the judgment and order dated 23.01.2019, the petitioner filed a Contempt Application (Civil) No. 5469 of 2019 (Ramdulare Ram Vs. Uma Shankar Mishra, District Panchayat Raj Officer, Chandauli) before this Hon'ble Court and the same was disposed of vide order dated 27.08.2019. Relevant part of the order dated 27.08.2019 is quoted hereinbelow:-
"It is reflected from the record that a certified copy of the aforesaid order was submitted for compliance before the opposite parties but the opposite parties have wilfully not complied with the order and, thus, have committed civil contempt liable for punishment under Section 12 of the Contempt of Courts Act, 1971.
Prima facie a case of contempt has been made out. However, considering the facts and circumstances of the case, one more opportunity is afforded to the opposite parties to comply with the aforesaid order of the Court within one month from the date of production of a certified copy of this order.
The applicant shall supply a duly stamped registered envelope addressed to the opposite parties and another self-addressed stamped envelope to the office within one week from today. The office shall send a copy of this order along with the self-addressed stamped envelope of the applicant with a copy of contempt application to the opposite parties within one week, thereafter and keep a record thereof. The opposite party shall comply with the directions of the writ Court and intimate the applicant of the order through the self-addressed envelop within a week, thereafter.
With the aforesaid observations, this application is disposed of at this stage with liberty to the applicant to move a fresh application, if the order is not complied with by the opposite parties within the stipulated time as aforementioned."
Learned counsel for the petitioner also submits that after the order dated 27.08.2019 was passed, the District Magistrate, Chandauli constituted an Enquiry Committee for conducting a preliminary inquiry on 11.12.2018 and the Inquiry Committee submitted its report dated 17.12.2018 and after perusal of the inquiry report dated 17.12.2018, the District Panchayat Raj Officer, District Chandauli passed the order dated 19.1.2019 in favour of the respondent no. 5/6.
Learned counsel for the petitioner further submits that the Inquiry Committee did not record any finding in its report regarding the grievances raised by the petitioner in his complaint at serial nos. 9, 10 and 11 and whereupon, further inquiry was conducted on his protest, and the record pertaining to the complaint was submitted by the Panchayat Sachiv on 07.09.2019 before the Inquiry Officer in respect of grievances of the petitioner raised at serial nos. 9, 10 and 11 in his complaint and the Inquiry Officer submitted his report on 12.09.2019 which is filed as Annexure No. 10 to the present petition. On the basis of the said inquiry report, the District Panchayat Raj Officer, Chandauli in compliance of the order dated 27.08.2019 passed in Contempt Application (Civil) No. 5469 of 2019 vide his order dated 16.09.2019 held that no deficiency or irregularity was found in the works executed by the respondent nos. 5/6 in the gram panchayat.
Learned counsel for the petitioner further submits that the orders dated 19.01.2019 and 16.09.2019 passed by the respondent no. 3 are cryptic orders as the allegations levelled by the petitioner in his application/complaint against the respondent nos. 5/6 have not been thoroughly examined by the Enquiry Officer and the Inquiry Report and order passed in favour of respondent nos. 5/6 is not justified.
We have heard learned counsel for the parties, perused the record and considered the submissions advanced by the learned counsel for the parties.
The present writ petition has been filed before this Hon'ble Court for quashing of the orders dated 19.01.2019 and 16.09.2019 passed by District Panchayat Raj Officer, Chandauli by which the respondent no. 5/6 was exonerated of the charges levelled against him. The petitioner by filing this writ petition seeks a direction from the respondents to reopen the matter which has already attained finality after the inquiry reports submitted by the Enquiry Officer and also prayer for quashing the orders dated 19.01.2019 and 16.09.2019 passed by respondent no. 3, District Panchayat Raj Officer, Chandauli in favour of respondent no. 5/6 by which it was stated that the allegations levelled in the application/complaint of the petitioner were baseless and no deficiency or irregularity was found in the working of the respondent nos. 5/6.
The petitioner who claims himself to be aggrieved by the action of the Gram Pradhan i.e. respondent no. 5/6, the petitioner has already availed the remedy available under Section 95 (1) (g) of the U.P. Panchayat Raj Act 1947 (hereinafter referred to as the Act) and the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the 1997 Rules) and the authority concerned has already passed an order in favour of the respondent no. 5/6 after the preliminary enquiry conducted under the Rules for the same relief which he had claimed in the earlier public interest litigation filed by him before this Court and in pursuance of the order passed therein, enquiry was conducted against respondent no. 5/6 and the enquiry report was submitted by the Enquiry Officer exonerating the respondent no. 5/6.
It is relevant to mention here that Part-IX relating to THE PANCHAYATS was inserted by the 73rd Constitutional Amendment Act and is relevant for this case. Article 243-B in Part-IX speaks regarding the Constitution of Panchayats and there shall be constituted in every State, a Panchayat at the village, intermediate and district level in accordance with the provisions of this Part. Further, notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.
Article 243-C reads as hereunder :-
(1) Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to this composition of Panchayats:
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State.
(2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each 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.
Section 95 (1) (g) of the Act is provided in Chapter VIII and Section 95 titled as "Inspection" and Section 95 (1) (g) of the Act provide for removal of Pradhan or member of a Gram Panchayat or Joint Committee or Bhumi Prabandhak Samiti .... if he-
(i) absents himself without sufficient cause for more than three consecutive meetings of 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) suffer 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 or is prima facie found to have committed financial and other irregularities such Pradhan or shall cese 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] [(gg) [***]
(h) [***]
(i) no action shall be taken under clause (f), clause (g) except after giving to the body or person concerned reasonable opportunity of showing cause against the act proposed;
(ii) [***] Section 95 (1) (g) contemplates an enquiry before ceasing financial and administrative powers of such person and procedure as may be prescribed.
It is further relevant to mention here that Section 96-A speaks of delegation of power by State Government. The State Government may delegate all or any of its power under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose.
Section 95 (1) (g) of the Act confers power upon the State Government to remove a Pradhan or member of a Gram Panchayat or Joint Committee or Bhumi Prabandhak Samiti on the grounds set forth therein. The proviso to Section 95 (1) (g) of the Act further stipulates that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or is prima facie found to have committed financial and other irregularities, such Pradhan or 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. Sub-section (i) (h) of Section 95 (1) (g) of the Act mandates that no action shall be taken under clause (f), clause (g) except after giving to the body or person concerned reasonable opportunity of showing cause against the act proposed.
The State Government has delegated its power conferred upon it to the District Magistrate u/s 96-A of the Act.
The power u/s 95 (1) (g) of the Act for the removal of Pradhan or member of a Gram Panchayat or Joint Committee or Bhumi Prabandhak Samiti, is to be exercised by the Collector in accordance with the procedure prescribed under the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the 1997 Rules) which are narrated hereinbelow :-
1. Short title and commencement.- (1) These rules may be called the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997.
2. Definitions.- In these rules, unless the context otherwise requires,
(a) 'Act' means the United Provinces Panchayat Raj Act, 1947;
(b) 'Pradhan' and 'Up-Pradhan' shall respectively mean the Pradhan and the Up-Pradhan of the Gram Panchayat;
[(c) 'Enquiry Officer' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.];
(d) 'Section' means a section of the Act.
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 affidavit 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 comply with any of the foregoing provisions of these 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.
NOTES Sub-clause (2) of Rule 3 provides that the complaint should be accompanied by the complainant's own affidavit in support thereof and also affidavits thereof of all persons from whom he claims to have received information of facts relating to accusation.
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 finding 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. Enquiry Officer.- 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 for the enquiry.- (1) The substance of the imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Enquiry Officer by the State Government.
(2) The Enquiry Officer shall draw up,
(a) the substance of the imputations into definite and distinct articles of charge; and
(b) a statement of the 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 are proposed to be sustained.
(3) The Enquiry 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 the 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 before him on such day and at such time as may be specified.
(4) On receipt of the written statement of defence, the Enquiry Officer shall enquire into such of that articles as are not admitted and where all the articles of charge have been admitted in the written statement of defence, the Enquiry Officer shall record his findings on each charge after taking such evidence as he may think fit.
(5) If the person who has admitted any of the articles of charge in his written statement of defence, appears before the Enquiry Officer, he shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the Enquiry Officer shall record the plea, sign the record and obtain the signature of that person thereon, 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 Enquiry 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 charge, 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 Enquiry 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 Enquiry Officer may allow, for the discovery or production of any documents that are relevant to the enquiry and 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 the enquiry is being held may take the assistance of any other person to present the case on his behalf, and the Enquiry Officer may appoint any person as a Presenting Officer to assist him in conducting the enquiry.
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 statements of witnesses mentioned in the list referred to in sub-rule (2), the Enquiry 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 Enquiry 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 Enquiry Officer may, for 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 Enquiry 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 of such documents would be against the public interest or security of the State, it shall inform the Enquiry Officer accordingly and the Enquiry Officer shall, on being so informed, communicate the information to the person against whom the enquiry is being held and withdraw the requisition made by him for the production or discovery of documents.
(11) On the date fixed for the enquiry, the oral and documentary evidence by which the articles of charge are proposed shall be produced and the witness shall be examined, by the Enquiry 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 enquiry is being held. The witnesses may be re-examined by the Enquiry Officer or the complainant, as the case may be, or any point on which they have been cross-examined, but not on any new matter, without the leave of the Enquiry Officer.
(12) The Enquiry Officer may allow production of evidence not included in the list given to the person against whom the enquiry 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 he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The Enquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record. The Enquiry 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 for 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 the enquiry 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 enquiry 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 Enquiry Officer according to the provisions applicable to the witnesses for proving the articles of charge.
(15) The Enquiry Officer may, after the person against whom the enquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing in the evidence against him.
(16) The Enquiry Officer may, after the completion of the production of evidence, hear the complainant, if any and the person against whom the 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 Enquiry Officer or otherwise fails or refuses to comply with the provisions of this rule, the Enquiry Officer may hold the enquiry ex parte.
(18) Whenever the 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 Enquiry Officer, the Enquiry Officer so succeeding may act on the evidence so recorded by his predecessor or partly recorded by himself.
Provided that if the succeeding Enquiry 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 might recall, examine, cross-examine and re-examine any such witness as hereinbefore provided.
NOTES A plain reading of the Rules indicates that the Legislature has given appropriate safeguards to check the arbitrary use of power by the authorities. The specific provision has been given in Rule 6 for inquiry.
7. Report of the Enquiry Officer.- After the conclusion of the enquiry, the Enquiry Officer shall prepare a report, which shall contain-
(a) the articles of charge and the statement of the imputations;
(b) the defence of the person against whom the enquiry has been held;
(c) the assessment of the evidence in respect of each article of charge;
(d) the findings on each article of charge and reasons therefore.
Explanation.- If in the opinion of the Enquiry Officer the proceedings of the enquiry establish any article of charge different from the original articles of charge, he may record his findings on such article of charge.
Provided that the findings on such article of charge shall not be recorded unless the person against whom the enquiry has been held has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such articles of charge.
NOTES Rule 7 of the Rules provides that while submitting the report, the inquiry officer shall record specific finding with regard to certain points keeping in view the facts and circumstances of a case.
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 conclude,-
(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.
Thus, upon a perusal of the Rule 4 of 1997 Rules, it transpires that where the State Government, on the receipt of a complaint or report referred to in Rule 3, or otherwise orders 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. 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. Rule 5 of 1997 Rules further stipulates that 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.
In the present case, upon perusal of the record, we find that after the Enquiry Officer had given his report after conducting a preliminary enquiry against the petitioner under Rule 4 of 1997 Rules exonerating respondent no. 5/6 of all the charges, the State Government did not find on the basis of the report submitted under sub-rule (2) of Rule 4 of 1997 Rules that an enquiry should be held against respondent no. 5/6.
A Full Bench of this Hon'ble Court in the case of Vivekanand Yadav Vs. State of U.P. Through Principal Secretary (Panchayat Raj) Government of U.P. Lucknow and Others reported in 2010 (111) RD 699 and in paragraph 95 and 96 of the aforesaid judgment, the Court was pleased to observe as under:-
"95. It is not necessary for the DM to specifically ask the enquiry officer to conduct a preliminary enquiry. There seems to be no point in asking the enquiry officer to conduct a preliminary enquiry again even if he submitted a report after the enquiry. It would be futile exercise unless the DM disagrees with the report of the enquiry officer.
96. A report by an enquiry officer defined under Rule2(c) is also a report by a person and the manner is prescribed under the Rules -irrespective of the fact that he was so asked by the DM or not. In our opinion, it is also a preliminary report within the meaning of the proviso to Section 95(1)(g) of the Panchayat Raj Act."
The same view was taken in another judgment of Division Bench of this Court in the case of Smt. Anita Devi Vs. State of U.P. and Others reported in 2010(110) RD 139, and in paragraph 15 of the aforesaid judgment, the Court was pleased to observe as under :-
"15. The allegations made in the affidavit of the complainant to the State Government were the same, which were earlier made to the District Magistrate. The enquiry report of the Additional District Magistrate after giving an opportunity to the petitioner was available on record. The satisfaction of the District Magistrate that there was sufficient material collected in the report after giving the opportunity to the petitioner did not require any fresh enquiry to be made in the matter. The petitioner did not suffer any prejudice at all and was rather given a show cause notice and was associated with the preliminary enquiry held by the Additional District Magistrate. The rules mandate that preliminary enquiry should be held and that there should be sufficient material to initiate final enquiry."
Further in another case of this Hon'ble Court the same view was taken in the case of Smt. Somawati, Member of Gram Panchayat and Others Vs. District Magistrate, Bareilly and Others reported in 2010 (110) RD 143, the Court was pleased to observe in paragraph nos. 12 and 13 as under:-
"12. It is apparent that the second enquiry was conducted without jurisdiction with a view to confer undue advantage upon the petitioners."
13. This Court in the case of Govind .....Vs. State of U.P. and others; reported in 2005(99) RD 434 while considering the same issue, held in paragraphs 9 and 10, as quoted hereunder:
"9. Thus, it is not open to the District Magistrate to recall his order ceasing the financial and administrative powers of the Pradhan until the final enquiry report has been obtained and the Pradhan is exonerated of the charges levelled against him/her.
10. In view of the aforesaid settled legal position, the Court is satisfied that the District Magistrate had no authority of law to recall the order whereby the financial and administrative powers of the Pradhan had been ceased, so long as final enquiry report as contemplated by Rule 5 had not been obtained from the nominated final enquiry officer and the District Magistrate on the basis of said enquiry report is satisfied that the charges as levelled against the Pradhan were not made out."
In view of the above discussion and the law laid down by this Court, it is crystal clear that the respondent no. 5/6 was not found guilty on the basis of the preliminary enquiry report and in this regard the orders dated 19.01.2019 and 16.09.2019 were passed by the respondent no. 3. No case of any financial or other irregularity was found to be committed by the respondent no. 5/6, therefore, there is no justification for quashing the impugned orders dated 19.01.2019 and 16.09.2019 passed by respondent no. 3.
The petitioner cannot be allowed to re-open the pandora box again in the present public interest litigation petition for the same allegation which has attained finality.
The present public interest litigation which is wholly misconceived, lacks merit and is accordingly dismissed.
There shall however be no order as to costs.
Order Date :- 13.12.2019 SFH/P.S. Parihar