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IN THE HIGH COURT OF ALLAHABAD
S. R. SINGH
CHUNMUN - Appellant
Versus
DISTRICT MAGISTRATE, SONBHADRA - Respondents
C. M. W. P. 22130 Of 1998
Decided On : 09/03/1998
PANCHAYAT RAJ - Removal of Pradhan - Financial and other irregularities - Enquiry - Procedure - U. P. Panchayat Raj Act, 1947 (U. P. Act No. 26 of 1947), S. 95 (1) (g) - U. P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (U. P. Govt. Notification No. 1648/33-1-1997-123/97, dt. 30-4-1997), Rules 3, 4, 5, 6, 7, 8.
Fact of the Case:
Petitioner, Pradhan of a Gram Panchayat, challenged the order passed by the District Magistrate under the first proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act, 1947, appointing a three-member committee to exercise and perform the financial and administrative powers and functions of the Pradhan, on the ground that the order was passed without holding an enquiry as prescribed by the U. P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997.
Finding of the Court:
The Court held that the action taken by the District Magistrate under the first proviso to Section 95 (1) (g) of the Act on the basis of the report submitted by the Junior Engineer in the instant case is violative of the constitutional scheme and the provisions of the Act and those of the Enquiry Rules.
Issues: 1. Whether the District Magistrate could exercise the power under the first proviso to clause (g) of sub-section (1) of Section 95 of the Act on the basis of a report received otherwise than through the District Panchayat Raj Officer under Rule 4 of the Enquiry Rules? 2. Whether the complaint against the petitioner complied with the requirements of sub-rules (2) and (3) of Rule 3 of the Enquiry Rules?
Ratio Decidendi: 1. The power conferred by the first proviso to clause (g) of sub-sec. (1) of S. 95 of the Act must be exercised in the manner prescribed and on fulfilment of the pre-requisite conditions visualised therein. 2. The expression "or otherwise" used in Rule 4 (1) of the Enquiry Rules has a meaning ejusdem generis with "complaint or report" and only enables the District Magistrate to order the District Panchayat Raj Officer to conduct preliminary enquiry with a view to finding out if there is prima facie case for a formal enquiry in the matter not only on the basis of a complaint received under Rule 3 of the Enquiry Rules but he may do so even on the basis of a report received otherwise disclosing the cause for holding a preliminary enquiry in the matter. 3. The expression "or otherwise" used in Rule 5 of the Enquiry Rules enables the District Magistrate to direct the Enquiry Officer to hold a formal enquiry on the basis of the report or information other than the one contained in Rule 4 (2) of the Enquiry Rules. However, it does not empower the District Magistrate to form the requisite opinion under the first proviso on the basis of a report other than the ones submitted under the Enquiry Rules. 4. The consequences visualised by the first proviso can ensue only upon a prima facie finding being recorded by the District Magistrate on the basis of a report submitted under Rule 4 (2) or Rule 7 of the Enquiry Rules. 5. Junior Engineer is not competent to hold preliminary enquiry under Rule 4 of the Enquiry Rules and since no enquiry was held under Rule 6 of the Enquiry Rules, his report cannot be made the basis of an action under the first proviso to Section 95 (1) (g) of the Act.
Final Decision: The writ petition was allowed, the impugned order was quashed, and the District Magistrate was given liberty to proceed in accordance with law.
( 1 ) IMPUGNED herein is the order dated 29-5-1998 passed by the District Magistrate, Sonbhadra in purported exercise of powers under the proviso to clause (g) of sub-section (1) of Section 95 of the U. P. Panchayat Raj Act (in short the Act) thereby appointing a three member committee of the concerned Gram Panchayat for exercising and performing financial and administrative powers and functions of the Pradhan of the Gram Panchayat. The impugned order is based on the finding that the petitioner was found guilty of committing irregularities in the matter of selection of eligible candidates for allotment of houses built under indira Awas and Nirbal Varg Awas scheme.
( 2 ) I have had heard Sri V. K. Jaiswal for the petitioner and Sri Ran Vijay Singh, learned Standing Counsel representing the opposite parties. The thrust of the submission made by Sri V. K. Jaiswal is that the petitioner has been deprived of his Financial and Administrative powers otherwise than in accordance with the postulates of the first proviso to Section 95 (1) (g) of the Act read with U. P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (in short the Enquiry Rules) made by the Governor in exercise of power conferred by Section 110 read with Section 95 (1) (g) of the Act published in the U. P. Gazette Extra, Part IV, Section (Kha) dated 29-5-1997. Learned counsel for the petitioner urged that enquiry on the basis of which the impugned order came to be passed by the District Magistrate was not held "by such person and in such manner" as has been prescribed by the rules aforestated and instead it was held by a Junior Engineer who had no authority in law to hold an "enquiry" under the Enquiry Rules. In opposition, learned Standing Counsel submitted that the District Magistrate could exercise the power under the first proviso to clause (g) of sub-section (1) of Section 95 of the Act not only on the basis of the preliminary enquiry conducted by the District Panchayat Raj Officer but he could do so even on the basis of a report received otherwise.
( 3 ) IN order to appreciate the submission made across the Bar, it would be apt and proper to refer to the related provisions of the Act. Section 95 (1) (g) of the Act read as under :"95. Inspection.- (1) The State Government may -. . . . . . . . . . . . . . . . . . . . . . . . (g) remove Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he- (i) absents himself without sufficient cause for more than three consecutive meetings of sittings; (ii) refuses to act if 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 (iv) being a Sahayak Sarpanch or Sarpanch of the Nyaya Panchayat takes active part in politics; or (v) suffers from any disqualification mentioned in clauses (a), (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 Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or UP-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government:provided that- (1) No action shall be taken under clause (f), clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed. "
( 4 ) THE power vested in the State Government under Section 95 (1) (g) of the Act has since been delegated to the District M
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