High Court
Case Details
1 Neutral Citation No. - 2023:AHC:163275 Court No. - 6 Case :- WRIT - C No. - 22817 of 2023 Petitioner :- Umesh Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Pradeep Kumar,Sr. Advocate Counsel for Respondent :- C.S.C.,Hari Keshav,Pankaj Dwivedi Hon'ble Mrs. Manju Rani Chauhan,J. 1. Heard Mr. H.N. Singh, learned Senior Advocate assisted by Mr. Pradeep Kumar, learned counsel for the petitioner, Mr. Hari Keshav, learned counsel for the complainant and learned Standing Counsel for the State. 2. The writ petition has been filed by the petitioner with the prayer to quash the order dated 03.07.2023 passed by District Magistrate, Agra, whereby the financial and administrative powers of the petitioner has been ceased, pending final inquiry. 3.
Facts
Brief facts of the case are; the petitioner was duly elected as Gram Pradhan of Gram Panchayat Korai, Block-Fatehpur Sikri, District-Agra. It appears, on a complaint made by Mahesh Kumar Sharma making allegations of misappropriation of funds against the petitioner-Pradhan, the District Magistrate by order dated 07.06.2022 appointed District Agricultural Officer, Agra to conduct an enquiry and for technical support the Chief Development Officer by order dated 04.07.2022 has appointed three member committee consisting of S.D.M. Kirawali, Agra, District Agricultural Officer, Agra and Assistant Engineer (District Rural Development Agency), Agra. The three member committee submitted its report dated 17.10.2022 to 2 Chief Development Officer, who inturn by order dated 25.10.2022 placed the same for necessary action before District Panchayat Raj Officer and District Development Officer. On the basis of aforesaid enquiry, a notice dated 17.11.2022 was issued to the petitioner requiring his explanation as to why proceedings under Section 95(1)(g) of U.P. Panchayat Raj Act of 1947 (herein after referred to as “the Act of 1947”) may not be initiated against him. The petitioner gave a reply to all the charges as made against him in the show cause notice, after which the District Magistrate passed the impugned order dated 03.07.2023 in exercise of the power under Section 95(1) (g) of the Act of 1947, thereby ceasing the financial and administrative powers of the petitioner, pending final enquiry. 4. Learned counsel for the petitioner has challenged the aforesaid order on the ground that proper procedure as required under Section 95(1)(g) of the Act of 1947 read with U.P. Panchayat Raj (Removal of Pradhans and Up-Pradhans, Members Enquiry Rules) 1997 (hereinafter referred to as ‘Rules of 1997’) has not been followed while passing the impugned order. 5. He further submit that the District Magistrate while passing the order dated 03.07.2023 has relied upon an enquiry report conducted by the three member committee constituted by Chief Development Officer by order dated 04.07.2022 to provide technical assistance to District Agricultural Officer, who was appointed by District Magistrate to conduct preliminary enquiry, which cannot be done as per provisions of Rules 1997. 3 6. Emphasizing upon Rule 3 of Rules 1997, which provides that complaint to be made by a complainant duly supported by an affidavit of the complainant as well as affidavit of any other person from whom the information is said to have been derived, learned counsel for the petitioner submits that the complaint so made by the complainant is not accompanied by an affidavit, therefore, is not a proper complaint as required under law, therefore, proceedings of enquiry could not have been initiated against the Pradhan on the basis of such complaint. 7. Emphasizing upon Rule 4 of Rules 1997, which provides for the manner in which the District Magistrate shall proceed after the receipt of the complaint referred to in Rule 3. The provision of Rule 4 is that on receiving a report referred to in Rule 3, the State Government or the District Magistrate shall order an enquiry to be conducted known as ‘preliminary
Legal Reasoning
enquiry’ with a view to finding, if there is prima facie case for a proper enquiry in the matter. The said enquiry is to be conducted by Enquiry Officer. The term of Enquiry Officer is defined in Section (2)(c) of Rules, 1997 which defines Enquiry Officer means Deputy Panchayat Raj Officer or any other District level officer to be nominated by the District Magistrate. 8. Rule 2 (c) is an under:- ‘Enquiry Officer’ means the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate.” 4 9. In view of the specific provisions of the Rules, counsel for the petitioner has argued that the Rules are mandatory and the Enquiry Officer who has conducted the enquiry and on whose enquiry the impugned order has been passed is not an officer, who is competent under the Rules and thus, the impugned order relying upon an enquiry which is without jurisdiction, is liable to held bad in the law. 10. Learned counsel for the petitioner further submits that the preliminary enquiry has to be conducted by an Enquiry Officer contemplated under Rule 2(c) of the Rules, 1997, namely, either the District Panchayat Raj Officer or any other district level officer to be nominated by the District Magistrate. The District Magistrate, as noticed hereinabove, had not nominated the Enquiry Officer and nor the members of the Committee were ‘district lever officers’. The District Magistrate could form his prima facie satisfaction for holding a final enquiry only on the basis of the report submitted by the Enquiry Officer defined under Rule 2 (c) of the Rules, 1997. Learned counsel for the petitioner, in support of his submission, has relied upon three judgements of this Court passed in case of Mahmood Ansari Vs. State of U.P. And Others, 2019 (2) ADJ 381 and Mohd Adil Vs. State of U.P. And 3 Others, 2023:AHC:37443 and Shamim Vs. State of U.P. and Others, (2018) 4 UPLBEC 2573. Thus the impugned order dated 03.07.2023, is liable to be set aside. 11. Learned Standing Counsel could not dispute the aforesaid fact. 5 12. Perusal of the record as well as the enquiry report goes to show that the enquiry has been conducted by a Committee constituted by the Chief Development Officer by order dated 04.07.2022, which, the District Panchayat Raj Officer has forwarded to the District Magistrate, placing reliance upon which the order impugned has been passed. Thus the enquiry has not been conducted in terms of relevant Rules, hence cannot be sustained in the eyes of law. 13. Considering the submissions advanced by learned counsel for the parties and going through the material on record, this Court finds that the order impugned dated 03.07.2023 having been passed without issuing any notice or conducting preliminary enquiry, is liable to be quashed. It is accordingly quashed. It is open to the respondent authorities to look into the matter, only upon receiving a proper complaint, after giving proper notice and providing opportunity, in accordance with the relevant provisions of the U.P. Panchayat Raj Act and the Rules, 1947.
Decision
14. The writ petition stands allowed accordingly. 15. No order as to costs. Order Date :- 11.8.2023 Rahul. Digitally signed by :- RAHUL GOSWAMI High Court of Judicature at Allahabad