High Court
Case Details
Court No. - 10 Case :- WRIT - C No. - 40537 of 2022 Petitioner :- Baleshvar Singh Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Gyan Chandra,Atul Kumar,Raghvendra Yadav Counsel for Respondent :- CSC, Hari Narayan Singh Hon'ble Rohit Ranjan Agarwal,J. 1. Heard Sri Raghvendra Yadav, learned counsel for the petitioner and learned Standing Counsel for the State. 2. This writ petition has been filed seeking a direction upon the District Magistrate, Farrukhabad to consider and pass a reasoned and speaking order on the complaint dated 04.01.2021 filed by the petitioner with regard to initiating an inquiry against the respondent no. 6, who is an Ex- Pradhan. 3. Learned counsel for the petitioner submitted that during the period in office respondent no. 6 embezzled huge amount of public money and, thus, an inquiry is necessary for her conduct during the period she served as Pradhan of Village Rathaura Nagla Neev, Police Station Mohammadabad, Block Kamalganj, Tehsil Sadar, District Farrukhabad.
Legal Reasoning
He then submitted that the Division Bench of this Court in case of Shiv Kumar Patel Vs. State of U.P. & Others, 2022 LawSuit (All) 1243, had directed the concerned authorities to consider the complaint though the term of Pradhan in that writ petition had come to an end. According to learned counsel Section 27 of U.P. Panchayat Raj Act, 1947 (hereinafter referred as the ‘Act of 1947’) provides for initiating an inquiry against an Ex-Pradhan in the form of surcharge.
Decision
4. Per contra, learned Standing Counsel, while opposing the writ petition, submitted that the term of Pradhan had come to an end in January 2021 and elections were held in the month of April 2021 and there is no scheme under the Act for initiating an inquiry once the Pradhan has demitted his office. He further submitted that in case inquiry was concluded and the amount was quantified by the authorities, as mentioned in Rule 256 of U.P. Panchayat Raj Rules, 1947, the proceedings under Section 27 of the Act of 1947 could have been saved. 5. I have heard the respective counsel and perused the material on record. 6. The short question before the Court is “whether once a Pradhan has demitted his office, a direction can be issued for conducting inquiry against his previous acts under Section 27 of the Act of 1947.” 7. By 73rd Constitutional amendment which came into effect from 24.04.1993, Part IX, containing Articles 243, 243-A to 243-O, was inserted in the Constitution to give effect to one of the directive principles of the State policy viz. Article 40 of the Constitution of India which directs the State to organize village panchayats as units of self government. Pursuant to the Constitutional amendment the States were required by the Centre to take steps to organize village panchayats on the lines of the provisions of the said Constitutional amendment by making law or amending the existing law suitably. 8. The Uttar Pradesh Legislature amended its Panchayat Raj Act by enacting the U.P. Panchayat Raj (Amendment) Act, 1994 which came into force on 22.04.1994. 9. Article 243 of the Constitution defines ‘Gram Sabha’, ‘Panchayat’ and ‘Village’. Article 243-C provides for the composition of panchayats. Similarly, Article 243-A provides for duration of panchayat which shall be for five years from the date appointed for its first meeting. Article 243-J provides for audit of accounts of panchayat, according to which the State Legislature may by law make provision with respect to the maintenance of accounts by panchayat and auditing of such accounts. The State Legislature vide U.P. Act No. 9 of 1994 inserted Section 27 which is provision for surcharge. Section 27 is extracted hereasunder; “27. Surcharge- (1) Every Pradhan or Up-Pradhan of a Gram Panchayat every member of a 3[Gram Panchayat] or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat 2 of 9 shall be liable to surcharge for the loss, waste or misapplication of money or property 3[belonging to the Gram Panchayat or Nyaya Panchayat] as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, Up-Pradhan, member, Sarpanch, Sahyak Sarpanch or Panch; Provided that such liability shall cease to exist after the expiration of the years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later. (2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realize it as if were an arrear of land revenue. (3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order to the State Government or such other appellate authority as may be prescribed. (4) Where no proceeding for fixation and realization of surcharge as specified in sub-section (2) is taken the State Government may institute a suit for compensation for such loss, waste or misapplication, against the person liable for the same." 10. Chapter XIII Rule 256 to Rule 258 of the Rules of 1947 provides for the surcharge rules which are as under; "Rule-256. (1). In any case where the Chief Audit Officer, Co- operative Societies and Panchayats, considers that there has been a loss, waste or misuse of any money or other property belonging to a Gram Sabha as a direct consequence of the negligence or misconduct of a Pradhan, Up-Pradhan, Memher, Officer or servant of the Gram Panchayat, he may call upon the Pradhan, Up-Prahdan, Member, Officer or servant, as the case may be, to explain in writing why such Pradhan, Up-Pradhan, Member, Officer, or servant should not be required to pay the amount misused or the amount which represents the loss or waste caused to the Gram Sabha or to its property and such explanation shall be furnished within a period not exceeding two months from the date such requisition is communicated to the person concerned: Provided that an explanation from the Pradhan, Up-Pradhan or member of the Gram Panchayat shall be called for through the District Magistrate and from the officer or servant through the District Panchayat Raj Officer: Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gram Panchayats or any of its committee as having been absent from the meeting at 3 of 9 which the expenditure objected to was sanctioned or who voted against such expenditure. Note- Any information required by the Chief Audit Officer, Cooperative Societies and Panchayats or any officer subordinate to him not below the rank of Auditor, Panchayats for preliminary enquiry, shall be furnished and all connected papers and records shall be shown to him by the Pradhan immediately on demand. (2) Without prejudice to the generality of the provisions contained in sub-rule (1) the Chief Audit Officer, Cooperative Societies and Panchayts, may call for the explanation in the following cases: (a) where expenditure has been incurred in contravention of the provisions of the Act or of the rules or regulations made thereunder; (b) where loss has been caused to the Gram Sabha by acceptance of a higher tender without sufficient reasons in writing. (c) where loss has been caused to the Gram Sabha by acceptance of a higher tender without sufficient reasons in writing. (d) where any sum due to the Gram Sabha has been remitted in contravention of the provisions of the Act or the rules or regulations made thereunder; (e) where the loss has been caused to the Gram Sabha by neglect in realizing its dues; or (f) where loss has been caused to the funds or other property of the Gram Sabha on account of want of reasonable care for the custody of such money or property. (3) On the written request of the Pradhan, Up-Pradhan, Member, Officer or servant from whom an explanation has been called for, the Gram Panchayat shall give him necessary facilities for inspection of the records connected with the requisition for surcharge. The Chief Audit Officer may, on application from the person surcharged, allow a reasonable extension of time for submission of his explanation if he is satisfied that the person charged has been unable, for reasons beyond his control, to consult the record for the purpose of furnishing his explanation. 257. (1). After the expiry of the period prescribed in sub-rule (1) or (3) of Rule 256, as the case may be, and after examining the explanation, if any, received within time, the Chief Audit Officer shall submit the papers along with his recommendations to the District Magistrate of the district in which the Gram Sabha is situated in case of Pradhan, Up-Pradhan and Members and to the District Panchayat Raj Officer of the district in which the Gram Sabha is situated in case of Officers and servants. (2) The District Magistrate or the District Panchayat Raj Officer, as the case may be, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat to pay the whole 4 of 9 or part of the sum to which such Pradhan, Up-Pradhan, Member, Officer or servant is found liable: Provided, firstly, that no Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat would be required to make good the loss, if from the explanation of the Pradhan, Up-Pradhan, Member, Officer or servant concerned or otherwise the District Magistrate or the District Panchayat Raj Officer, as the case may be, is satisfied that the loss was caused by an act of the Pradhan, Up-Pradhan, Member, Officer or servant in the bona fide discharge of his duties: Provided secondly, that in the case of loss, waste or misuse occurring as a result of a resolution of the Gram Panchayat or any of its committees the amount of loss to be recovered shall be divided equally among all the members including Pradhan and Up- Pradhan, who are reported in the minutes of the Gram Panchayat or any of its committee as having voted for or who remained neutral in respect of such resolution: Provided thirdly, that no Pradhan, Up-Pradhan, Member, Officer or servant shall be liable for any loss, waste or misuse after the expiry of four years from the occurrence of such loss, waste or misuse or after the expiry of three years from the date of his ceasing to be Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat, whichever is later. 258.(1). Any Pradhan, Up-Pradhan or Member of a Gram Panchayat aggrieved with an order of surcharge passed by the District Magistrate under Rule 256 may appeal to the Commissioner of the Division within thirty days from the date on which such order is communicated to him and the Commissioner of the Division may confirm, rescind or vary the order passed by the District Magistrate or may pass such orders as he thinks fit. (2) Any Officer or servant of a Gram Panchayat aggrieved with an order of surcharge passed by the District Panchayat Raj Officer may appeal to the District Magistrate within thirty days from the date on which such order is communicated to him and the District Magistrate may confirm, rescind or vary the order passed by the District Panchayat Raj Officer or may pass such orders as he thinks fit.” 11. Rule 256 to Rule 259 was inserted in the Rules vide notification dated 31.05.1969. The power to impose surcharge under the Act and Rules has been framed in order to recover, loss, waste or misuse of any money or other property belonging to Gaon Sabha as a direct consequence of the negligence or misconduct of a Pradhan, Member, Sarpanch, Sahayak Sarpanch or Panch. 5 of 9 12. From the reading of Proviso to Section 27, it is clear that such liability shall cease to exist after expiration of ten years from the occurrence of such loss, waste or misapplication or five years from the date on which the person liable ceases to hold his office whichever is later. 13. Section 27 is the charging section, while Rule 256 to Rule 258 provides the procedure for quantification of the loss to a Gram Sabha by the concerned Pradhan, Up-Pradhan, Member, Officer or Servant of the Gram Panchayat by a Chief Audit Officer, Cooperative Societies and Panchayat while making an audit of the accounts. 14. The Rules provide that where expenditure has been incurred in contravention of the Act and Rules, the Chief Accounts Officer, Cooperative Societies and Panchayat may call for an explanation. It is only after the due procedure followed under the Rule 256 to Rule 258 and the amount having been quantified. The proceedings for surcharge are initiated against any person holding office and against whom the charges have been found to be correct. 15. The word ‘surcharge’ occurring in Section 27 has been defined in Concise Oxford English dictionary as “an amount in an official account not passed by the auditor and having to be refunded by the person responsible”. 16. Section 2 (3) of Assam Panchayat Act, 1994 defines ‘surcharge’ means “an amount for which the Auditor, in exercise of powers vested in him under this Act makes, a person liable for loss, waste, misapplication or misappropriation of any money or other property belonging to any legal authority”. 17. Surcharge as defined in Section 27 of the Act of 1947 has to be read with Article 243-J of the Constitution which provides for audit of account for panchayat, wherein the State Legislature has been entrusted with making provisions with respect to maintenance of accounts by panchayat and the auditing of such accounts. From the conjoint reading, it is clear 6 of 9 that when the accounts are audited and it is found that there is misappropriation or misapplication of the funds by the person concerned, the proceedings under Section 27 can be initiated. 18. The loss has to be quantified before any action is taken under Section 27 of the Act. Rule 256 to 258 of the Rules of 1947 clearly provides for the procedure to be followed in case of surcharge proceedings initiated against any person, and it is only during the audit when certain deficiency and discrepancies surface, the person liable is called upon to answer and the Prescribed Authority passes an order quantifying the loss against him. 19. The Act of 1947 only defines under Section 2 (j) ‘Gram Sabha’ and under Section 2 (h) ‘Gram Panchayat’. Section 11 (A) which was inserted by U.P. Act No. 9 of 1994 provides for Pradhan and Up-Pradhan of Gram Panchayat. This provision was inserted post 73rd Constitutional amendment. 20. The entire scheme of the Act including Section 27 does not envisage any provision for an Ex-Pradhan. The only saving grace is the proviso to Section 27. It can only come to help of petitioner when there has been quantification of the loss by the authorities against a Pradhan. Once the term of Pradhan who is a democratically elected person comes to an end, no proceeding for misappropriation of funds can be initiated against him under the Act except if the loss had been quantified, then Proviso to Section 27 will save those proceedings. 21. In Indu Devi Vs. District Magistrate, Chitrakoot, 2006 (3) AWC 2787, the Division Bench of this Court while dealing with imposition of surcharge at the stage of conclusion of preliminary inquiry, held as under; “9. A perusal of the Scheme under Section 27 of the Act indicates that a Pradhan is liable to surcharge for the loss, waste or misapplication of money or property belonging to the Gram Panchayat, if such is direct consequence of his neglect or misconduct while he was such Pradhan. I he said finding of misconduct a referred to in Section 27 can be based from the inquiry under 95(1)(g) when the misconduct is proved against 7 of 9 the Pradhan. On the basis of finding of misconduct under 95(1) (g) of tie Act, it is open for the competent authority to issue surcharge police and pass appropriate orders. The competent authority may also independently direct for surcharge under Section 27 of the Act and pass appropriate orders after being satisfied with the misconduct. 11. The prima facie finding of the competent authority under Section 95(i)(g) proviso is not same as finding of misconduct as contemplated under 27 of the Act. We are satisfied that on the basis of mere prima finding of guilt, the order of surcharge could not have been passed Section 27 of the Act. 13. In view of the aforesaid, we are satisfied that without conclusion of final inquiry under 95(1)(g) of the Act with regard to finding of misconduct on the part of the Pradhan, the order of surcharge could not have been passed.” 22. Thus, the Court found that the proceedings for surcharge cannot be initiated under Section 27 in case where the Pradhan was still holding the office and only a preliminary inquiry was done against him. 23. In the instant case, an inquiry is being sought by the petitioner after two years of the respondent no. 6 demitting her office of Pradhan, there has been no quantification of any amount of embezzlement or misappropriation at her end by any of the authorities. In case of Sub Divisional Officer, Sadar, Faizabad Vs. Shambhoo Narain Singh, 1969 (1) SCC 825, the Apex Court while dealing with the provisions contained under Rule 95 (1) (g) and the proviso attached to it and the scheme of inquiry rules, held that relationship between a Pradhan and State Government is not that of a Master and Servant. 24. Reliance placed on decision of Shiv Kumar Patel (Supra) is of no help to the petitioner as in that judgment the impact of Rule 256 to Rule 258 was not considered, and moreover proceedings for surcharge can only be initiated after the quantification of the loss and not prior to it. 25. Once the losses were never quantified during inspection or audit by the person who was incharge of audit, no directions can be issued to the authorities to initiate action against a person who had demitted the office two years back in the garb of surcharge proceedings. 8 of 9 26. The concept of surcharge is totally different, and has to be understood that it is not a simplicitor inquiry into the accounts. It is only during the inspection and audit if certain misappropriation of funds or loss or damage to the property of Gram Sabha has been brought to the notice and the person who was incharge in maintaining the property was called upon to answer, then only after quantification, proceedings for surcharge can be initiated. 27. From the reading of the averment made in the writ petition, it is clear that petitioner is a resident of same village and in paragraph no. 7 it has been stated that he had objected and warned the respondent no. 6 that he will file a compliant before the concerned authority for misappropriating and embezzling the government funds. It seems to be a political rivalry between the petitioner and respondent no. 6 which has travelled up to this Court through this writ petition and a direction has been sought upon the District Magistrate to initiate inquiry against the respondent no. 6. 28. The Court cannot be a party to village politics and merely on a complaint moved by some person alleging irregularity and misappropriation of funds against a democratically elected person holding office of Pradhan and whose term has expired, the Court will not issue such directions. 29. Petitioner has failed to make out a case under the relevant provisions of the Act of 1947 for issuance of mandamus initiating inquiry against an Ex-Pradhan. Under Article 226 of the Constitution, the Court shall not exercise its extraordinary jurisdiction to settle the personal score between the parties. 30. Writ petition fails and is hereby dismissed. Order Date :- 13.1.2023 Shekhar Digitally signed by :- SHASHI SHEKHAR PANDEY High Court of Judicature at Allahabad 9 of 9