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IN THE HIGH COURT OF ALLAHABAD
ARUN TANDON, J.
Bhagwan Deen Verma - Appellant
Versus
State of U.P. and Siya Rani - Respondent
Civil Misc. Writ Petition No. 33954 of 2005
Decided on : 06-07-2005
Panchayat Raj Act - Removal of Elected Pradhan - Section 95(1)(g) - Summary of Acts and Sections: Section 95(1)(g) - The court discussed the provisions of Section 95(1)(g) of the Panchayat Raj Act, emphasizing the requirement for deliberate misuse of official position to justify the removal of an elected Pradhan. The court also referred to Rule 256 of the Panchayat Raj Rules, which allows for surcharge to compensate for loss caused to the Gram Panchayat due to negligence or misconduct of the Pradhan.
Fact of the Case:
The petitioner, an elected Pradhan, was removed from office by the District Magistrate under Section 95(1)(g) of the Panchayat Raj Act based on charges of misconduct. The petitioner challenged the removal, arguing that the charges did not justify his removal.
Finding of the Court:
The court held that the removal of the Pradhan was not legally justified as the charges did not demonstrate deliberate misuse of official position to derive personal benefit, as required by Section 95(1)(g). The court also emphasized the need for strict interpretation of the provision and highlighted the relevance of Rule 256 for addressing negligence or misconduct causing loss to the Gram Panchayat.
Issues: The key issue was whether the removal of the Pradhan under Section 95(1)(g) was justified based on the charges of misconduct.
Ratio Decidendi: The court established that for removal under Section 95(1)(g), there must be a finding of deliberate misuse of official position to derive personal benefit. The court also emphasized the strict interpretation of the provision and the relevance of Rule 256 for addressing negligence or misconduct causing loss to the Gram Panchayat.
Final Decision: The writ petition was allowed, quashing the order for the removal of the petitioner as Pradhan. However, the court clarified that the order would not prejudice the recovery of the loss caused to the Gram Panchayat based on the assessment made during the enquiry proceedings in accordance with Rule 256 of the Panchayat Raj Rules.
The legal judgment establishes that for the removal of an elected Pradhan under Section 95(1)(g) of the Panchayat Raj Act, there must be clear evidence of deliberate misuse of official position to derive personal benefit. The Court emphasized that mere negligence or misconduct, which does not involve intent or benefit, cannot justify removal solely under this provision. Instead, such cases should be addressed through Rule 256 of the Panchayat Raj Rules, which allows for surcharge to recover losses caused by negligence or misconduct without requiring proof of deliberate misuse (!) (!) .
Furthermore, the Court clarified that the expression "abuse of position" involves positive and deliberate actions intended to benefit personally, and not inadvertent mistakes or negligence. Therefore, an order for removal based on findings of mere negligence or accidental lapses, without evidence of deliberate misuse, is not legally sustainable. The order of removal in the case was quashed because it lacked a finding that the Pradhan had deliberately misused his official position to gain personal benefit (!) (!) .
The judgment also underscores that the provisions of Rule 256 must be harmonized with Section 95(1)(g), and that the proper legal course in cases of loss due to negligence is to invoke surcharge proceedings under Rule 256 rather than removal under the section. This ensures that elected representatives are not removed arbitrarily and that their removal is based on concrete evidence of misconduct involving deliberate misuse of authority (!) (!) .
Finally, the Court highlighted that the order of removal should not be based on incorrect allegations, such as misappropriation, unless supported by evidence of deliberate intent. The absence of such evidence renders the order legally unsustainable. The Court thus allowed the writ petition, quashing the removal order, but clarified that the recovery of any loss caused to the Gram Panchayat could proceed through appropriate surcharge proceedings as per Rule 256 (!) (!) .
ARUN TANDON, J.
1. Heard P.N. Saxena Senior Advocate, assisted by Sri Amit Saxena Advocate on behalf of the petitioner, Standing Counsel on behalf of respondent nos. 1 to 3 and Sri A.N. Verma Advocate on behalf of respondent no. 4. Parties agree that the writ petition may be finally decided at this stage itself.
2. Petitioner Bhagwan Deen Verma is the elected Pradhan of Gram Panchayat Artara, Block Maudaha, District Hamirpur. The District Magistrate vide order dated 31st March, 2004 ceased the financial and administrative powers of the Pradhan u/s 95(1)(g) proviso of the Panchayat Raj Act. Feeling aggrieved by the said order, petitioner had filed Writ Petition No. 14474 of 2004. The writ petition so filed was disposed of vide judgment and order dated 1.3.2005 with a direction that the District Magistrate may pass fresh reasoned order after considering the reply of the petitioner.
3. It appears that during this period Project Director. District Rural Development Authority was appointed as final enquiry officer. The said enquiry officer submitted his report on 4.9.2004. The District Magistrate on receipt of the said report, issued a fresh show cause notice dated 16.12.2004 to the petitioner to show cause as to why he may not be removed from the office of Pradhan in view of the charges found proved. The District Magistrate, after considering the explanation furnished by the petitioner, by means of the order dated 16.4.2005 has removed the petitioner from the office of the Pradhan and has further directed for recovery of sum of Rs. 4,290/- against the petitioner. The order dated 16.4 2005 is under challenged in the present Writ petition.
4. On behalf of the petitioner it is contended that the order passed by the District Magistrate is legally not sustainable inasmuch as the charges even if found proved against the petitioner are not of such nature so as to justify the removal of the elected Pradhan u/s 95(1)(g) of the Panchayat Raj Act. The petitioner has also challenged the finding recorded in respect of the individual charge on various fact and grounds.
5. So far as the challenge to the finding recorded in respect of individual charges by the District Magistrate on the basis of the enquiry proceedings against the petitioner is concerned, this Court under Article 226 of the Constitution of India cannot re-appreciate the evidence and cannot upset the conclusion arrived at by the District Magistrate on such re-appreciation of evidence. However, it is worthwhile to reproduce the finding recorded in respect of the charges against the petitioner in respect of the charge nos. 1 and 2, which are quoted herein below:
Charge No. 1. ^^bl izdkj dwi ejEer esa iz/kku }kjk n'kkZ;h x;h dk;Z dh dqy ykxr eq- 213666-00 #i;s ds dk;Z esa lgk;d vfHk;Urk Mh- vkj- Mh- ,- }kjk fd; x;s ewY;kadu eq- 14786-00 #i;s dks ?kVkus ds mijkUr #i;s 6580-00 dk nq#i;ksx ik;k x;kA Li"V gS fd dk;Z dh xq.kork Hkh izHkkfor gq;h bl izdkj vkjksi la[;k&1 iw.kZr;k fl} ik;k x;kA**
Charge No. 2. ^^iz/kku }kjk fn;s x;s Li"Vhdj.k ls mijksDrkuqlkj lger ugha gwa bl lEcU/k esa tkap vf/kdkjh }kjk djk;k x;k ewY;kadu ds vuqlkj laMatk dh dqy ewY;kadu 10916-00 #i;s ik;k x;k tcfd dk;Z dh dqy ykxr 12916-00 #i;s n'kkZ;h x;h gSA bl izdkj eq- 2000-00 #i;s dk Li"V nq:i;ks @ viO;; ds nks"kh ik;s x;sA**
6. So far as the charge no. 3 is concerned, the same is general in native namely in respect of construction work in :he Gram Panchayat, the petitioner has acted in violation of the Government Orders and rules and in respect of said charge only a general finding has been recorded that since the petitioner has not submitted reply to the same, he being the Pradhan cannot violate the rules
7. In view of the finding so recorded, the issue which is up for consideration is as to whether the order of removal of Pradhan can be justified under the provisions of Section 95(1)(g) of the U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 or not.
8. For appreciating the afores
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