MOHD YUSUF Vs. STATE OF UTTARANCHAL

JUDGEMENT

(1.) THE petitioner is a resident of village Jainpur Jhanjhedl, Tehsil Roorkee, Haridwar. He challenges Annexure 11 order passed by the District Magistrate, Haridwar and Annexure 12 order passed by the Block Development Officer, Narsan, Haridwar. Annexure 11 is the final order passed by the District Magistrate in the proceedings initiated against the third respondent Sri Kausar Ali who is the Pradhan of village Jainpur Jhanjhedi under the provisions of Section 95 (1) (g) of the U.P. Panchayat Raj Act, 1947 as applicable to the State of Uttaranchal. As per said order, the proceedings against the third respondent were concluded by administering a warning to him, and deciding not to take any other action against him. As per Annexure 12 order of the Block Development Officer, the earlier order constituting a Committee to exercise and perform the financial and administrative powers and functions of the Pradban was cancelled and those financial and administrative power and functions were restored to the third respondent. The petitioner has also prayed for a direction to the first respondent to hold a fresh enquiry against the third respondent by a competent authority in accordance with law.

(2.) COUNTER affidavits have been filed on behalf of the respondents and rejoinder has been filed by the petitioner.

(3.) IT is necessary to state the facts and the background of this case. The petitioner had made a complaint dated 21 -05 -2002 to the District Magistrate, Haridwar raising some allegations against the third respondent. By his order dated 27 -05 -2002, the District Magistrate directed the District Panchayat Raj Officer, Haridwar to conduct an enquiry in the matter. The District Panchayat Raj Officer entrusted the enquiry with the Assistant Development Officer (Panchayat). After conducting the enquiry, the Assistant Development Officer (Panchayat) submitted a report to the District Panchayat Raj Officer. But the third respondent objected to the enquiry by the Assistant Development Officer (Panchayat) on the ground that he was not competent to conduct such an enquiry. The third respondent submitted a representation to the District Magistrate raising the said objection. Thereupon, the District Magistrate by his order dated 18 -08 -2002 directed the District Panchayat Raj Officer himself to conduct the enquiry. After conducting a preliminary enquiry, the District Panchayat Raj Officer submitted his report on 10 -05 -2003 to the District Magistrate. A copy of the report has been placed on record as Annexure 8 to the supplementary counter affidavit filed by the second respondent. In the Enquiry report submitted by the District Panchayat Raj Officer, the third respondent was found guilty of only two out of ten charges and he was exonerated in respect of the remaining eight charges. One of the two charges proved by the Enquiry Officer related to the repairs of a pathway. The allegation was that the same work was shown in two Financial Years, namely, 2001 -2002 and 2002 -2003. The Enquiry Officer found that the same work was shown twice in the same financial year and recommended that an amount of Rs. 7959/ - should be recovered from the third respondent and the other officials who were responsible for the irregularity. The second charge proved against the third respondent related to the quality of the repairs of a pathway and the plastering of the wall of a primary school building. It was found that the work was of inferior quality due to the omission to use the required quantity of cement. In respect of the second charge, the recommendation of the Enquiry Officer was that the third respondent should be administered a warning. On receipt of the preliminary enquiry report dated 10 -05 -2003 of the District Panchayat Raj Officer, the District Magistrate, in exercise of his powers under Rule 5 of the U.P. Panchayat Raj (Removal of Pradhans, Up -pradhans and Members) Enquiry Rules, 1977, appointed the Project Director, D.R.D.A., Haridwar as an Enquiry Officer to conduct the final enquiry. The Project Director, D.R.D.A., Haridwar issued a charge -sheet dated 22 -11 -2003 to the third respondent and conducted the enquiry. Though the petitioner submitted a representation dated 08 -12 -2003 to the Project Director demanding that the enquiry should cover all the charges enquired into by the District Panchayat Raj Officer, the Project Director took the stand that enquiry could be concluded only in respect of the two charges established in the preliminary enquiry conducted by the District Panchayat Raj Officer. The Project Director, in his final report dated 19 -12 -2003, found that the disputed work relating to the repairs of pathway were shown in two financial years and not twice in same financial year. He also found that though the work was done at the same place, it was necessitated by the damage caused to work done during the previous year due to the flow of water from a Nala. Thus, the third respondent was exonerated of the said charge. However, the Project Director found that the plastering of the primary school building was of inferior quality and that the third respondent should be administered a warning not to repeat such omission/irregularities. After considering the report of the Project Director, the District Magistrate accepted the findings and recommendations of the Project Director and issued Annexure 11 order dated 22 -12 -2003 administering a warning to the third respondent and dropping further action against him. In the meanwhile, the District Magistrate in exercise of his powers under the Proviso to section 5(1)(g) of the U.P. Panchayat Raj Act, 1947 as applicable to the State of Uttaranchal, had issued an order dated 16 -10 -2003 withdrawing from the third respondent the financial and administrative powers and functions of Pradhan and constituting a Committee to exercise and perform the financial and administrative powers and functions of Pradhan. The said Committee had been performing the financial and administrative powers and functions of Pradhan during the period of the enquiry conducted by the Project Director, D.R.D.A., Haridwar. Hence, consequent on the passing of Annexure 11 order of the District Magistrate, the Block Development Officer, Narsan passed Annexure 12 order canceling the order appointing the Committee and restoring the financial and administrative powers and functions of Pradhan to the third respondent. Aggrieved by Annexure 11 and 12 orders, the petitioner filed this writ petition.