Smt. Somawati and Others vs District Magistrate and Others

B.K. Narayana, J.—Heard learned Counsel for the petitioners and the learned standing counsel for the respondents.

This writ petition has been filed challenging the order dated 22.11.2008, passed by the District Magistrate, Bareilly.

The petitioners claim that they are elected members of Gram Panchayat, Badagaon, village Badagaon, Block Bhadpura, Tehsil-Nawabganj, district Bareilly. The Gram Sabha consists of three villages. One member of Gram Panchayat was elected from each of the village. On a complaint made by the Gaon Sabha regarding irregularity in working of the Gram Pradhan, his financial and administrative powers were ceased.

A preliminary enquiry was conducted by the respondent No. 2 the Zila Panchayat Raj Officer, Bareilly wherein he found that respondent No. 5 guilty of misappropriation and recommended for action against the Gram Pradhan in accordance with law.

The Zila Panchayat Raj Adhikari, Bareilly, thereafter, constituted a Committee for exercise of financial powers of Gram Pradhan. The members of the Gram Sabha were not satisfied with the steps taken by the D. P. R. O., hence they made a complaint to the District Magistrate, Bareilly in the regard. Thereafter, the Zila Panchayat Raj Adhikari, Bareilly, directed the Block Development Officer, Block Bhadpura, district Bareilly for convening a meeting of elected members of Gram Panchayat for constituting a three members committee amongst themselves for functioning in place of Gram Pradhan. After the meeting the District Magistrate (1) constituted a three members committee including the petitioners and also nominated Sri D. K. Jain, Executive Engineer, P.W.D., Bareilly as Enquiry Officer, who has submitted his report with the finding that respondent No. 5 had misappropriated an amount of Rs. 74,457 in the various development works undertaken under the Government Schemes for upliftment of the village.

Consequently a show-cause notice dated 24.3.2008 was issued by the District Magistrate u/s 95 (1) (g) to the Gram Pradhan to show-cause as to why he should riot be removed from the post of Gram Pradhan. By the same notice, the financial and administrative powers of the Gram Pradhan were also ceased by him in the exercise of his power under first proviso to Section 95(1) (g) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act).

The grievance of the petitioners is that instead of showing cause, the Pradhan brought political pressure upon the authorities for nomination of another Enquiry Officer and the District Magistrate thereafter, appointed Sahayak Nidesak (Matsya), Bareilly and Junior Engineer (Gram Abhiyantran Sewa), Block Nawabganj, district Bareilly, Sri D. K. Jain to inquire into the matter afresh, who has been arrayed as respondent Nos. 3 and 4 in the writ petition.

It is stated that without considering the facts and circumstances of the case, the Enquiry Officers submitted enquiry report in favour of the Gram Pradhan and the District Magistrate on the basis of report so submitted by respondent Nos. 3 and 4 restored the financial and administrative powers of respondent No. 5.

Learned Counsel for the petitioners contended that the enquiry report submitted by the respondent Nos. 3 and 4 is collusive and that it has been given under political pressure as they were appointed under political pressure exerted by the Gram Pradhan, respondent No. 5 through the Minister/M.L.A''s. and M.P''s. of various political parties.

Learned standing counsel submitted that the second enquiry was ordered in view of the fact that the enquiry report submitted by the Executive Officer was not found to be satisfactory however he miserably failed to substantiate his submission and to indicate any reason as to why the enquiry report submitted by the Executive Officer was not satisfactory. He also failed to show any provisions under the Act authorising the District Magistrate upon receipt of the preliminary enquiry report under Rule 4(2) of the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the Rules) to order a fresh preliminary enquiry.

After examining the contentions advanced by the learned Counsel for the parties and perusing the record of the writ petition as well as the impugned order, I have no hesitation in holding that there is no provision either under the Act or the Rules for holding joint enquiry after the preliminary enquiry report under Rule 4 (2) of the Rules has been submitted. The District Magistrate clearly erred in law and acted without jurisdiction in ordering joint enquiry in the matter after the preliminary enquiry was conducted by the Executive Officer and he submitted in his report that the Pradhan of the Gram Sabha was guilty of all the charges made against him and thereafter the show-cause notice was issued on the basis of said preliminary enquiry report to the respondent No. 5 for filing his reply to the charge-sheet and his financial and administrative powers were ceased. The financial and administrative powers of the Gram Pradhan so ceased cannot be restored unless the Pradhan is exonerated of the charges made against him in the final enquiry as provided by first proviso to Section 95 (1) (g) of the Act. This having not been done in the present case, the impugned order restoring the financial and administrative powers of the Gram Pradhan cannot be sustained.

It is apparent that the second enquiry was conducted without jurisdiction with a view to confer undue advantage upon the petitioners.

This Court in the case of Govind Prasad Vs. State of U.P. and Others, while considering the same issue, held in paragraphs 9 and 10, as quoted hereunder:

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.

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.

For the aforesaid reasons, the impugned order dated 22.11.2008 as well as the enquiry report dated 12.11.2008, cannot be sustained and are liable to be set aside.

The writ petition is allowed. The order dated 22.11.2008 (Annexure-1 to the writ petition) passed by respondent No. 1, District Magistrate, Bareilly and the enquiry report dated 12.11.2008 submitted by respondent Nos. 3 and 4 are hereby quashed.

The District Magistrate, Bareilly is directed to finalise the proceedings for removal of Pradhan of Gram Sabha within a period of one munth from the date of production of certified copy of this order before him.