2010 Supreme(All) 3808

[2010(10) ADJ 1 (FB)]
ALLAHABAD HIGH COURT
(Full Bench)
BEFORE : YATINDRA SINGH, RAJES KUMAR AND KRISHNA MURARI, JJ.
VIVEKANAND YADAV ….Petitioner
Versus
STATE OF U.P. AND ANOTHER ….Respondents
(Civil Misc. Writ Petition Nos. 36881 and 45376 of 2008, 49305 and 60951 of 2009, decided on 26th October, 2010)

Headnote:(A) U.P. Panchayat Raj Act, 1947—Sections 95(1), 95(1) Proviso, 95(1)(g) and 95(1)(g) Proviso—U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1993—Rules 4 and 6—Proviso to Section 95(1), provides for "reasonable opportunity", in proceedings for removal, contemplated by Section 95(1)(g)—On the other hand Proviso to Section 95(1)(g) provides for "reasonable opportunity" in proceedings for cessation of financial and administrative powers, which is done during proceedings for removal—It is, thus, clear that Proviso to Section 95(1) and Proviso to Section 95(1)(g)—Act in two different fields of enquiry—As such, Proviso to Section 95(1) does not apply to proceedings for cessation of financial and administrative powers in which a preliminary enquiry, i.e., a fact finding enquiry is conducted to find out whether a prima facie case is made out against Pradhan—Procedure applicable to this preliminary enquiry, i.e., fact finding enquiry is contained in Rule 4—For final enquiry, procedure applicable is contained in Rule 6—Other relevant factors—Also elaborated. [Paras 35, 36, 40 and 43 to 45]

       (B) U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1993—Rules 4 and 6—U.P. Panchayat Raj Act, 1947—Sections 19(1)(g) , 19 (1)(g) Proviso, 19(1) Proviso and 19(1)—Enquiry for removal of Pradhan and for cessation of his financial and administrative powers—Are different and Rules for conducting these enquiries are necessary—Rules 4 and 6, dealt with there two separate enquiries. [Paras 47, 52 and 53]

       (C) U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1993—Rules 4 and 3—Complaint against Pradhan—By whome can be filed—Mentioned—Expression "otherwise" in Rule 4—Is wide—Cannot be given restricted meaning—Its normal meaning has to be adopted—It shows that D.M. has power to refer a case for preliminary enquiry, even if complaint or report is not entertained or not filed—In other words, D.M. has suo moto powers to direct preliminary enquiry—Pradhan has no right to object that complaint should not be entertained because it does not comply with requirements of Rule 3(1) to Rule 3(4)—Expression "Otherwise" empowers D.M. to exercise his powers 'suo moto' for entertaining complaint or report and refer a matter for preliminary enquiry. [Paras 55, 56, 59 to 63 and 107]

       (D) U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1993—Rule 4—Pradhan has no right to claim opportunity of hearing or claim participation in preliminary enquiry—Has only right is to have his explanation or point of view or version to charges placed and considered before order for cessation of his financial and administrative powers—He is not even entitled to get copy of report of prelliminary enquiry. [Paras 68 to 71 and 107]

       (E) U.P. Panchayat Raj Act, 1947—Sections 95(1) Proviso, 95(1)(g) and 95(1)(g) Proviso—U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1993—Rules 3 to 6—Removal of Pradhan—Does not require preliminary or fact finding enquiry—Such enquiry is required only when proceeding for cessation of financial and administrative powers is initiated against Pradhan—Legal aspects related thereto—Explained. [Paras 74 to 79]

       (F) U.P. Panchayat Raj Act, 1947—Section 95(1) Proviso, 95(1)(g) and 95(1)(g) Proviso—U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1993—Rule 5—Use of words "under the proviso to clause (g) of sub-section 95(1)", in Rule 5 is of no use—Need to be corrected by State Government—Word 'otherwise' used in Rule 5—Has also to be wide meaning and not restricted meaning. [Paras 82, 83, 88, 89, 105 and 106]

       (G) U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1993—Rules 2(c), 3, 4, 5 and 6—Expression "Enquiry Officer" defined in Rule 2(c)—Means District Panchayat Raj Officer (DPRO) or any other District Level Officer nominated by District Magistrate—Complaint against Pradhan can be directly submitted before D.M. or before Enquiry Officer—D.M. can himself conduct preliminary enquiry or ask Enquiry Officer to conduct that enquiry and submit report—Pradhan concerned is not required to be associated in this enquiry—It is only in final enquiry Pradhan is entitled to be associated—Report of Enquiry Officer or D.M. on preliminary enquiry—Come within ambit of word "otherwise", used in Rule 5—Report by D.P.R.O. also be treated to be report of Enquiry Officer. [Paras 91 to 98, 100, 104 and 111]

       Result; Order Accordingly.