Court No. - 30
Case :- WRIT - C No. - 42621 of 2018 Petitioner :- Brijesh Yadav Respondent :- State Of U.P. And Another Counsel for Petitioner :- Vinay Kumar Singh Chandel,Ram Niwas Singh Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Ram Niwas Singh, learned counsel for the petitioner as well as Sri B.P. Singh, learned Standing Counsel appearing for the State respondents and perused the record.
Present petition has been filed challenging the impugned order dated 10.12.2018 passed by the respondent no. 2. A further prayer has been made to direct the respondents not to interfere in the functioning as Gram Pradhan of Gram Panchayat Mahuji, Pargana Narwan, Block Barhani, Tehsil Sadar, District Chandauli.
By the order dated 10.12.2018 impugned herein, the financial and administrative powers of the petitioner have been ceased in exercise of powers under Section 95(1)(g) of UP Panchayat Raj Act, 1947.
Challenging the same, submission of learned counsel for the petitioner is that the petitioner has submitted his reply to the show cause notice on 22.11.2011 in the office of District Panchayat Raj Officer, Chandauli received by one Ms. Rekha, Clerk in his office and a copy of the reply has been annexed as annexure 3 to the writ petition, therefore, the order impugned herein passed on the ground that no reply was submitted is incorrect and the explanation given by the petitioner has not been considered. He next submits that the impugned order was passed in violation of principle of natural justice and without affording opportunity of hearing. He further submits that no prima facie satisfaction has been recorded by the District Magistrate while passing the impugned order. He however submits that no action has been taken against the Secretary of Gram Panchayat who is a Government Servant whereas payment was made by joint signature. The other arguments on merit were also asserted and attention to the reply submitted by the petitioner was drawn.
In support his argument, learned counsel for the petitioner has placed reliance on a judgement of Hon'ble Apex Court rendered in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others, (2012) 4 SCC 407 (paragraph 36) to assert that an elected member can be removed in exceptional circumstances in strict adherence to the strict statutory provisions and holding enquiry meeting the requirement of the principle of natural justice and giving incumbent an opportunity to defend himself. He has further placed reliance on a judgement of Full Bench of this Court rendered in the case of Vivekanand Yadav Vs. State of UP and others, 2011 (1) AWC 488 (FB) (paragraph 107-C) to contend that before passing the order ceasing the financial and administrative powers the explanation or point of view or the version to the charges should be obtained and considered. He lastly placed reliance on a judgement of this Court in the case of Narendra Kumar vs. State of UP and others, 2013 (2) AWC 1663, which is also based on the judgement of Full Bench of this Court in Vivekanand Yadav (supra).
Per contra, learned Standing Counsel appearing for the respondents has supported the impugned order and submits that no interference is warranted in the impugned order.
I have considered the rival submissions and perused the record as well as the judgements cited by the learned counsel for the petitioner.
On perusal of the record, I find that there is no receiving of the alleged reply submitted by the petitioner allegedly on 22.11.2018 annexed as annexure 3 to the petition. Therefore, I am not inclined to believe that this reply was ever submitted by the petitioner. Perusal of the record further indicates that admittedly the petitioner was given a show cause notice dated 24.10.2018 providing an opportunity of hearing to him to submit his reply within 15 days. The impugned order clearly records that till the date of passing of the order dated 10.12.2018 no reply was submitted by the petitioner. Preliminary enquiry report of the Committee headed by the District Level Officer has been considered in the order impugned herein and prima facie satisfaction has been recorded that the petitioner is prima facie guilty of committing financial irregularities.
In such view of the matter, I find no substance in the arguments of learned counsel for the petitioner that no opportunity of hearing was given to the petitioner and no prima facie satisfaction has been recorded by the District Magistrate in passing the impugned order.
Insofar as the arguments of learned counsel for the petitioner on merits are concerned, I am not inclined to go into the same as a final enquiry is yet to be conducted.
In such view of the matter, I do not find any good ground to interfere in the impugned order.
Present petition is bereft of merit and accordingly dismissed.
However, the impugned order clearly reflects that no observation regarding conducting the final enquiry within the time framed in the Rules, 1997 has been provided.
Under such circumstances, it is provided that the District Magistrate shall issue necessary direction for the purpose of completing the final enquiry, preferably within a period of three months from the date of production of certified copy of this order in accordance with the Rules, 1997 noticing the fact that the complaint was filed on 13.3.2018 and more than six months have passed from the date of filing of the complaint.
It is further provided that respondent no. 2-District Magistrate, Chandauli shall also look into the fact that if any action is required against the Secretary of the Gram Panchayat as well in view of the assertion made by the learned counsel for the petitioner that no action has been taken against the Secretary of the Gram Panchayat.
No order as to costs.
Order Date :- 20.12.2018 Abhishek