IMPORTANT POINT
The contention advanced on behalf of State of U.P. that a District Magistrate included an Addl. Distt. Magistrate before High Court and also before Supreme Court runs counter to the language of the Rule drafted by its own executive wing and hence its appeal is liable to be dismissed with costs.

Headnote:Uttar Pradesh Kshetra Panchayat and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) Enquiry Rules, 1977-Rule 4-Preliminary Enquiry-Interpretation-Addl. Distt. Magistrate making preliminary enquiry against Zila Panchayat Adhyaksha-High Court quashing it-Appeal to Supreme Court-Whether High Court was right? (Yes)-Appeal dismissed with costs- (Cr.P.C. 1973-Sections 20 and 23).
Held : It is careless and clumsy drafting of Rule 4 which is responsible for the situation. The draftsman of the rules has clearly used the term District Magistrate as distinct from the term Additional District Magistrate . The definition of District Magistrate in Clause (14) of Section 2 of the Act is not applicable if there be something repugnant in the subject or context. The very use of Additional District Magistrate and District Magistrate in the same rule, consisting of one sentence, clearly suggests that the two terms are used in two different meanings. The High Court appears to be right in holding that an inquiry against a Pramukh or Uppramukh can be held by an officer not below the rank of an Additional District Magistrate while as against Adhyaksh or Upadhyaksh -- these two being democratically elective offices, higher in status than that of Pramukh or Uppramukh, the inquiry should be held by the District Magistrate. The contention advanced on behalf of the State of U.P. before the High Court as also before this Court runs counter to the language of the rule drafted by its own executive wing. Once the flaw was pointed by the High Court, the State of U.P. should have promptly removed the flaw in the rule by amending the same instead of filing special leave petition and keeping the certainty of law in suspension. The State is one of the largest litigants and such tendency on the part of the State of adding to the bulk of pending cases when it can be avoided by taking a quick and convenient step of amending its own rule has to be deprecated. The appeal is dismissed with costs. In addition, the State of U.P. is directed to pay an amount of Rs. 2,500/- to the Supreme Court Legal Services Committee. (Paras 7 & 8)

ORDER

In the year 1995 the respondent was elected as Zila Panchayat Adhyaksh in District Sultanpur, State of UP. Certain complaints were received against her wherein the State Government directed an inquiry to be made by the District Magistrate who in his turn got the preliminary inquiry conducted through Additional District Magistrate (Establishment), Sultanpur. Acting on the preliminary inquiry report and a supplementary report prepared by the Additional District Magistrate, the State Government instituted a formal inquiry and at the same time directed the respondent to be divested of financial and administrative powers exercised by her in the capacity of Zila Panchayat Adhyaksh.

2. Section 29 of Uttar Pradesh Kshetra Panchayat and Zila Panchayat Adhiniyam 1961 (U.P. Act No.32 of 1961), (hereinafter the Act , for short) and Rule 4 of Uttar Pradesh Kshetra Panchayat and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) Enquiry Rules, 1977 (hereinafter Enquiry Rules , for short) framed in exercise of the powers conferred by Section 237 read with Sections 16 and 29 of the Act provide as under:

Act

Section 29. Removal of Adhyaksha or Upadhyaksha.-(1) If in the opinion of the State Government the Adhyaksha or the Upadhyaksha while acting in place of Adhyaksha, wilfully omits or refuses to perform his duties or functions under this Act or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally incapacitated for performing his duties the State Government, after giving the Adhyaksha or Upadhyaksha, as the case may be, a reasonable opportunity for explanation may by order remove him from office and such order shall be final and not open to be questioned in a Court of Law.

Provided that where in an enquiry held by such person and in such manner as may be prescribed an Adhyaksha or Upadhyaksha is prima facie found to have committed financial and other irregularities such Adhyaksha or Upadhyaksha 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 elected members of the Zila Panchayat appointed in this behalf by the State Government.

(2) xxx xxx xxx

(3) xxx xxx xxx

Rules

Rule 4. "Preliminary enquiry.-(1) The State Government may, on the receipt of a complaint referred to in 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."

3. The impugned order divesting the respondents of her powers was put in issue by the respondent by filing a writ petition in the High Court of UP at Allahabad. The principal plea raised on behalf of the respondent was that the complaints against her were false and politically motivated as respondent did not belong to the same political party as was ruling the State and that the preliminary inquiry held under Rule 4 was the foundation of the impugned order which inquiry, the respondent being an Adhyaksh, could have been held only by District Magistrate and not by an Additional District Magistrate, and therefore, the inquiry was a nullity having been held by an officer not competent to hold the same, and hence, irrelevant to serve as foundation for the impugned order. The High Court by its impugned judgment dated 11.9.1998 delivered by a Division Bench directed the impugned order to be quashed holding the preliminary enquiry conducte

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