SATENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioner is an elected Pradhan of Gram Panchayat Sapnawat, District Ghaziabad. By an order dated 14.3.2008 passed by the District Magistrate, Ghaziabad, the financial and administrative powers of the petitioner had been ceased. Challenging the said order, the petitioner filed writ petition no.16368 of 2008 in which a detailed reasoned interim order dated 01.4.2008 had been passed whereby the effect and operation of the order dated 14.03.2008 passed by the District Magistrate, Ghaziabad had been stayed. THE said writ petition is pending and the interim order is also continuing. While passing the interim order dated 01.4.2008, this Court had permitted that the formal enquiry may go on and be concluded expeditiously. THEreafter, a final enquiry report was submitted on 12.5.2008. THE District Magistrate then issued a show cause notice to the petitioner on 17.5.2008, which was served on the petitioner on 27.5.2008, to which the petitioner submitted his reply on 11.6.2008. THEn, by means of the impugned order dated 16.6.2008, passed under Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as 'the Act') the petitioner has been removed from the post of Pradhan. Challenging the order dated 16.6.2008 passed by the District Magistrate, Gahziabad, this writ petition has been filed. Subsequently, by an order, passed under Section 12(J) of the Act, one Rajveer Singh has been nominated as Pradhan of the Gram Panchayat in question. I have heard Sri K.R.Sirohi, learned Senior Advocate assisted by Sri Ramesh Pundir on behalf of the petitioner and learned Standing Counsel appearing for the respondents. Pleadings have been exchanged and with the consent of learned counsel for the parties, this petition is taken up for final disposal at this stage. Sri A.S.Diwakar along with Sri Raj Kumar, learned counsel, who appear for Rajveer Singh, have also been heard. Sri K.R.Sirohi, learned Senior Advocate appearing for the petitioner has summarized his arguments in five points, which are as follows: (i) THE complaint against the petitioner was not accompanied by an affidavit which is in violation of Rule 3 of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as 'the Rules of 1997'). It is also stated that the complaint was also not presented to the District Magistrate directly but to a political person, who had forwarded the same to the District Magistrate, (ii) THE preliminary enquiry in the matter had been directed by the Chief Development Officer and not by the District Magistrate and thus the same was in violation of Rule 2(c) read with Rule 4 of the Rules of 1997. (iii) Both, preliminary enquiry as well as the final enquiry were conducted by the same enquiry officers, which is in violation of Rule 5 of the Rules of 1997. (iv) Neither any charges were framed against the petitioner nor any opportunity to him to rebut the charges against him, which was in violation of Rule 6 of the Rules of 1997. (v) After submission of final enquiry report the petitioner had submitted his reply to the District Magistrate on 11.6.2008, which has not been considered while passing the impugned order. Learned Standing Counsel has, however, submitted that the preliminary enquiry as well as the final enquiry, were conducted in accordance with the procedure prescribed and after it was found that the petitioner was guilty of embezzlement of over Rs.1.5 lacs, the District Magistrate has passed the impugned order, which is perfectly justified in law and does not call for interference by this Court. Sri Diwakar, who appears on behalf of the nominated Pradhan, has however submitted that even if there was violation of the provision of any Rule, no prejudice has been caused to the petitioner as during the conduct of preliminary enquiry report, he had been given notice on 19.2.2008 and as such, this Court should not interfere with the impugned order merely on technical grounds. As regards the first point raised by the petitioner, which is with regard to the violation of Rule 3 of the Rules of 1997, it would be appropriate to notice the aforesaid rule, which is as under: 3. Procedure relating to complaints. - (1) Any person making a complaint against a Pradhan or Up- Pradhan may send his complaint to the State Government or any officer empowered in this behalf by the State Government. (2)Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation. (3)Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits, respectively. (4)Not less than three copies of complaint as well as each of its annexures of this rules shall not be entertained. (5)It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule, if a complaint against a Pradhan or Up-Pradhan is made by a public servant. Sub-rule (2) of Rule 3 of the Rules of 1997 clearly provides that every complaint shall be accompanied by the complainant's own affidavit in support thereof. In the present case, admittedly, the complaint is undated and even though it is addressed to the Chief Minister and the District Magistrate, but the same was not given to the District Magistrate directly but was forwarded to him by the President of a political party, on which action was initiated. In para 24 of the writ petition, it has been categorically stated that the said complaint was neither accompanied by an affidavit of the complainant nor the complainant had sworn the same before the Notary. It has further been stated that the complaints were not duly verified nor three copies of the complaint were filed, as required under Sub-rule (3) and (4) of Rule 3 of the Rules of 1997. Reply to the said paragraph has been given in para 19 of the counter affidavit filed by the State in which a bald denial has been made, without giving any specific reply as to whether the complaint was accompanied by an affidavit or properly sworn or as to whether compliance of Sub-rule 3, 4 and 5 of Rule 3 of the Rules of 1997 had been done or not. In such view of the matter, the ground raised by the petitioner that the complaint itself was in violation of Rule 3 of the Rules of 1997 appears to be correct. This Court in the case of Mahak Singh Vs. State of U.P. 1999 (90) RD 433 has, in para 6 of the judgment, held that "the complaint was necessarily to be accompanied by the complainant's own affidavit in support thereof verified before a Notary". In another decision of this Court, passed in Writ Petition No.36889 of 2008 Smt. Bhoori Devi Vs. State of U.P. decided on 28.7.2008 this Court has held that "THE complaint can be entertained only when the procedure prescribed in Rule 3 of the Rules of 1997 is specified ............................... Any complaint which does not specify the procedure prescribed under Rule 3 has to be thrown out as not entertainable." In such view of the matter, since in the present case, the complaint itself was not in accordance with the procedure prescribed under Rule 3 of the Rules of 1997, the authorities ought not to have taken any action on the basis of such complaint. As such, this Court is of the view that the entire action initiated under Section 95(1)(g) of the Act, in the present case, was in violation of the procedure prescribed under law. As regards the second point raised by the petitioner, which is with regard to the appointment of the enquiry officer by the Chief Development Officer and not by the District Magistrate, Rule 2(c) of the Rules of 1997 itself specifies that " 'Enquiry Officer' means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate." In the present case, admittedly, it was the Chief Development Officer who had nominated the enquiry officer and not the District Magistrate. This would be clear from the reading of the impugned order itself, as well as from the preliminary enquiry report (Annexure 3 to the writ petition) which specifies that the enquiry officers (the District Panchayat Raj Officer and the Assistant Engineer) had submitted the report on being appointed as enquiry officers by the Chief Development Officer by his order dated 29.11.2007. Along with the counter affidavit, the respondents have filed a notification dated 30th April, 1997 which states that "the Governor is pleased to delegate all the powers of the State Government under clause (g) of sub-section (1) of Section 95 of the said Act no.26 of 1947, to all the District Magistrates in Uttar Pradesh within the local limits of their respective jurisdiction". As such, it is clear that it is the District Magistrate alone, who can initiate proceedings under Section 95(1)(g), including directing holding of enquiry, and not any other officer. Accordingly, the very initiation of enquiry, in the present case, which has been done by the Chief Development Officer and not by the District Magistrate, was against the prescribed procedure under the Rules of 1997. With regard to third point raised, which relates to preliminary and final enquiry being conducted by the same enquiry officer in violation of Rule 5 of Rules of 1997, the said rule 5 may be noticed, which is as under: Enquiry Officer. - Where the State Government is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise, that an enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to clause (g) of sub-section (1) of Section 95, it shall forthwith constitute a committee envisaged by proviso to clause (g) of sub-section (1) of Section 95, of the Act and by an Order ask an Enquiry Officer, other than the Enquiry Officer nominated under sub-rule (2) of Rule 4, to hold the enquiry. (emphasis supplied) THE later part of the rule specifies that for the purpose of final enquiry, the enquiry officer should be other than the enquiry officer nominated under sub-rule 2 of Rule 4, which relates to the preliminary enquiry. In the present case, admittedly, the preliminary enquiry was conducted by G.Chandra, District Panchayat Raj Officer and V.K.Malik, Assistant Engineer. THE same officers conducted the final enquiry and submitted the final enquiry report. As such, in the present case, there has been clear violation of Rule 5 of the Rules of 1997 also in the holding of enquiry against the petitioner. As regards the fourth point, which is with regard to non-compliance of Rule 6 of the Rules of 1997, inasmuch as, non framing of charges and consequently, non service of any charge sheet and no opportunity being given to the petitioner to rebut the charges, specific averments in this regard have been made in paras 28, 29, 30 and 31 of the writ petition, to which there is a vague denial in paras 23, 24, 25 and 26 of the counter affidavit. It appears that the author of the counter affidavit had not understood the contents made in the paragraph of the writ petition and while replying to the allegations with regard to non submission of charge sheet and affording of opportunity to the petitioner at the stage of enquiry, what has been stated in para 25 of the counter affidavit is that the show cause notice dated 17.5.2008 had been issued to the petitioner, which was sufficient compliance. A show cause notice was issued to the petitioner after the submission of the final enquiry report on 12.5.2008. In the counter affidavit it has not been stated that any charge sheet was ever given to the petitioner or any opportunity was given to him by the enquiry officer to rebut the charges. As such, it is clear that the enquiry was held in violation of provisions of Rule 6 of the Rules of 1997, which gives a detailed procedure, including the enquiry officer providing the petitioner with copy of the complaint and drawing of charges, which were required to be delivered to the petitioner and opportunity be given to the petitioner to submit his reply and file his written statement of defence and produce his witnesses etc. From the above, it is clear that the enquiry was conducted in violation of the provisions of Rule 6 of the Rules of 1997. As regards the last point raised by the petitioner, that after submission of the final enquiry report, the petitioner had submitted his reply, which was not considered by the District Magistrate while passing the impugned order dated 16.6.2008, the specific case of the petitioner is that after having receiving the show cause notice dated 17.5.2008 on 27.5.2008, a reply was submitted by the petitioner on 11.6.2008 (a copy of which has been filed as Annexure 12 to the writ petition, with the endorsement of receipt by the office of the District Magistrate, Ghaziabad). THE petitioner has specifically averred in paragraphs 15 and 16 that the reply was submitted on 11.6.2008. Reply to the same has been given in para 11 of the counter affidavit to the effect that there is no need to reply to the same and in paragraph 12 to the effect that enquiry was got conducted and an enquiry report was submitted without any political pressure. However, it has not been denied that the reply to the show cause notice was submitted by the petitioner on 11.6.2008. However, in the impugned order, it has been mentioned that no reply had been submitted to the show cause notice given to the petitioner and thus it was stated in the impugned order that the petitioner had nothing to say and the charge of embezzlement of over Rs.1.5 lacs against the petitioner stood proved. It is unfortunate that even though it is not denied that the reply to the show cause notice had been received on 11.6.2008, in the impugned order it has been mentioned that no reply had been submitted by the petitioner. It is thus clear that the District Magistrate proceeded to decide the matter without considering the reply given by the petitioner to the show cause notice dated 17.5.2008. From the aforesaid, it is clear that besides the appointment of the enquiry officer being made in total violation of provisions of Rules of 1997, the entire preliminary enquiry as well as final enquiry had also been conducted in violation of the Rules and in arbitrary manner. Further, even the final order passed by the District Magistrate on 16.6.2008 is totally unjustified, inasmuch as, the same has been passed without considering the reply of the petitioner submitted on 11.6.2008. It is further absolutely clear from the aforesaid that the entire action against the petitioner was motivated and with predetermined mind to oust the petitioner. This Court does not want to go into the question as to whether there was any political pressure on the authorities, as has been alleged in the writ petition, but the entire action against the petitioner and the order passed by the District Magistrate clearly shows that the same has been done without having any regard for the procedure prescribed under the Act and the Rules. Democracy in our country begins at the grass root level with elections of Gram Pradhans in villages and the same is the very foundation of our democracy. No doubt, the District Magistrate has the power to either cease the financial and administrative powers or oust the democratically elected Gram Pradhan under Section 95(1)(g) of the Act, but the said power is to be exercised only in exceptional and extra ordinary cases, and should be exercised with utmost caution and not in a routine manner at the whims and fancies of the administrative authorities, without following the procedure prescribed under the Act and the Rules. THE present case is a glaring example where action has been taken in gross violation of the Act and the Rules of 1997 framed thereunder and a democratically elected Pradhan has been wrongly kept away and deprived of his elected office for several months. For the reasons hereinabove, this writ petition deserves to be allowed and is accordingly allowed. THE order dated 16.6.2008 is hereby quashed. THE respondents are directed to ensure that charge of Pradhan of the village in question is handed over to the petitioner forthwith. Besides allowing this petition, since this Court is of the firm view that the respondents authorities acted in an arbitrary manner and passed the order under Section 95(1)(g) of the Act in complete violation of the provisions of the Rules of 1997, due to which the petitioner had to suffer and remain out of office for a considerably long period, in my view, the respondents are liable to pay costs to the petitioner. In the facts of this case, this Court quantifies the cost at Rs.50,000/- which would be adequate. This amount of Rs.50,000/- shall be paid by the respondents to the petitioner within two months from today.