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ALLAHABAD HIGH COURT
Yatindra Singh, Rajes Kumar, Krishna Murari, JJ.
Vivekanand Yadav -Appellant
Versus
State of U.P.and others -Respondent
Civil Misc. Writ Petition No.36881 of 2008 (with CMWP Nos. 45376 of 2009, 49305 of 2009, 60951 of 2009)
Decided On : 26-10-2010
The court held that the Pradhan is not required to be associated in the preliminary enquiry under the proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act. The court also held that the rules are necessary to be framed for the preliminary and final enquiry under the proviso to Section 95 (1) (g). The court further held that the word 'otherwise' in sub-rule (1) of Rule 4 [Rule 4 (1)] of the Enquiry Rules means that the D.M. has suo motu powers to order a preliminary enquiry.
Fact of the Case:
In the instant case, the petitioners were pradhans of different gram panchayats. Show cause notices were issued to them and their right to exercise financial and administrative powers was ceased under proviso to Section 95 (1) (g) of the Panchyat Raj Act. They have filed the writ petitions (W.Ps.) against the same. The W.Ps. have been referred to the larger Bench.
Finding of the Court:
The court held that the proviso to Section 95 (1) of the Panchayat Raj Act providing for opportunity applies to the preliminary enquiry under the proviso to Section 95 (1) (g) or only to the main Section 95 (1) (g); Whether the rules are necessary to be framed for the preliminary and final enquiry under the proviso to Section 95 (1) (9) : What Is the meaning of word 'otherwise' in sub-rule (1) of Rule 4 [Rule 4 (1)] of the Enquiry Rules ; Can a pradhan object to a complaint on the ground that It is not in conformity with Rule 3 of the Enquiry Rules ; In case the answer to the first point is in the negative then, whether a pradhan is entitled to be associated in the preliminary enquiry on the ground that principles of natural justice are applicable to it ; In ease a pradhan is entitled to be associated or given opportunity then what is the extent of his rights ; Whether a pradhan is entitled to an opportunity before the order ceasing the financial and administrative powers is passed against him under the proviso to Section 95 (1) (g). Can there be proceeding for removal of a pradhan under Section 95 (1) (g) of the Panchayat Raj Act, without ceasing his financial and administrative powers ; In case answer to the preceding question is in the affirmative then, will Rule 6 of the Enquiry Rules providing the procedure In the final enquiry apply to the case where power is not so ceased ; What is the meaning of word 'otherwise' in sub-rule (1) of Rule 5 [Rule 5 (1) of the Enquiry Rules] ; Whether a preliminary report submitted by the D.P.R.O. or an officer defined as enquiry officer under sub-rule (c) of Rule 2 [Rule (2) (c; of the Enquiry Rules)-without being formally asked to conduct the preliminary enquiry-can be accepted under Rule 5 to, Constitute a three member committee to exercise financial and administrative powers ; and Appoint an enquiry officer to conduct the final enquiry under Rule 6.
Issues: Whether the pradhan is required to be associated in the preliminary enquiry under the proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act?
Ratio Decidendi: The court held that the proviso to Section 95 (1) of the Panchayat Raj Act providing for opportunity applies to the preliminary enquiry under the proviso to Section 95 (1) (g) or only to the main Section 95 (1) (g); Whether the rules are necessary to be framed for the preliminary and final enquiry under the proviso to Section 95 (1) (9) : What Is the meaning of word 'otherwise' in sub-rule (1) of Rule 4 [Rule 4 (1)] of the Enquiry Rules ; Can a pradhan object to a complaint on the ground that It is not in conformity with Rule 3 of the Enquiry Rules ; In case the answer to the first point is in the negative then, whether a pradhan is entitled to be associated in the preliminary enquiry on the ground that principles of natural justice are applicable to it ; In ease a pradhan is entitled to be associated or given opportunity then what is the extent of his rights ; Whether a pradhan is entitled to an opportunity before the order ceasing the financial and administrative powers is passed against him under the proviso to Section 95 (1) (g). Can there be proceeding for removal of a pradhan under Section 95 (1) (g) of the Panchayat Raj Act, without ceasing his financial and administrative powers ; In case answer to the preceding question is in the affirmative then, will Rule 6 of the Enquiry Rules providing the procedure In the final enquiry apply to the case where power is not so ceased ; What is the meaning of word 'otherwise' in sub-rule (1) of Rule 5 [Rule 5 (1) of the Enquiry Rules] ; Whether a preliminary report submitted by the D.P.R.O. or an officer defined as enquiry officer under sub-rule (c) of Rule 2 [Rule (2) (c; of the Enquiry Rules)-without being formally asked to conduct the preliminary enquiry-can be accepted under Rule 5 to, Constitute a three member committee to exercise financial and administrative powers ; and Appoint an enquiry officer to conduct the final enquiry under Rule 6.
Final Decision: The court held that the Pradhan is not required to be associated in the preliminary enquiry under the proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act. The court also held that the rules are necessary to be framed for the preliminary and final enquiry under the proviso to Section 95 (1) (g). The court further held that the word 'otherwise' in sub-rule (1) of Rule 4 [Rule 4 (1)] of the Enquiry Rules means that the D.M. has suo motu powers to order a preliminary enquiry.
A pradhan of a gram panchayat can be removed for his misconduct under sub-section (1) (g) of Section 95 [Section 95 (1) (g)] of the U. P. Panchayat Raj Act, 1947 (the Panchayat Raj Act). He ceases to exercise and perform the financial and administrative powers and functions (in short, exercise the financial and administrative powers), the moment a show cause notice is issued against him satisfying the conditions of the proviso to Section 95 (1) (g) of the Panchayat Raj Act. The main question involved in this reference revolves around.
The right of a pradhan before an order ceasing his powers is passed and the meaning of the word 'otherwise' in Rule 5 of the U. P. Panchayat Raj (Removal of Pradhan and Up Pradhans and Members) Enquiry Rules, 1997 (the Enquiry Rules).
THE FACTS
2. The petitioners in these four writ petitions (W.Ps.) are pradhans of different gram panchayats. The show cause notices were issued to them and their right to exercise financial and administrative powers was ceased under proviso to Section 95 (1) (g) of the Panchyat Raj Act. They have filed the writ petitions (W.Ps.) against the same. The W.Ps. have been referred to the larger Bench.
3. There is one reference in W.P. 36881 of 2008 (the first writ petition) and W.P. 45576 of 2008 (the second writ petition). In W.P. 49305 of 2009 (the third writ petition) and W.P. 69511 of 2009 (the fourth W.P.) another single Judge has passed two separate but similar referring orders. For convenience, we are mentioning the facts of the first and third W.P.
The First W.P.
4. In the first W.P., the petitioner was elected as the pradhan of gram panchayat, Barua, district Mau. Some complaints were filed against him. On the basis of the same, a preliminary enquiry was conducted.
5. In pursuance of the preliminary enquiry report, a notice was issued to the petitioner in the first W.P. on 2.6.2008 by the District Magistrate (D.M.) Mau. It was mentioned in the notice that in case no cause is shown or if it was found unsatisfactory then action under Panchayat Raj Act would be taken.
6. The petitioner replied the same on 24.6.2008. After considering his reply, an order was passed on 21.7.2008 :
• The petitioner was held to be prima facie guilty of committing financial and other irregularities and his right to exercise the financial and administrative powers was ceased ;
• A committee of three members of the gram panchayat was appointed to exercise the powers of the pradhan till the finalisation of the final inquiry ; and
• The District Youth Welfare Officer, Mau was appointed as the inquiry officer to conduct the final inquiry against the petitioner.
• The first writ petition is against the same.
7. A single Judge of this Court, entertained the first and second W.Ps. and passed an interim order on 22.9.2008 in the first and second writ petition Smt. Kamli Devi v. State of U. P., 2008 (4) AWC 3749, By this order,
• Two questions were referred to the larger Bench for decision ;
• The orders ceasing the financial and administrative powers of the petitioners were stayed ; however,
• Liberty was granted to the authorities to proceed and complete the final enquiry.
The Third W.P.
8. In the third W.P., the petitioner was elected as pradhan of gram panchayat, Usmanpur, district Budaun. A complaint was filed against him mentioning financial irregularities. A copy of this complaint was also given to the District Panchayat Raj Adhikari (D.P.R.O.). Budaun.
9. The D.P.R.O. sent a letter on 2.1.2009 to the petitioner in the third W.P, as well as secretary of the gram panchayat, requiring them to furnish the entire documents in respect of money allotted to the gram panchayat and work done from 2005 by the petitioner as pradhan.
10. They did not produce the records. A recommendation was made on 23.3.2009 to take departmental action against the secretary and a report was submitted against the petitioner.
11. On the basis of the aforesaid report, a show cause notice dated 10.7.2009 was issued by the D
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