JUDGMENT Arun Tandon, J.
1. Heard Sri A.K. Pandey, learned counsel for the petitioner, Sri H.S. N. Tripathi, learned counsel for the respondent no. 5 and learned Standing Counsel for the respondent nos. 1 to 4.
2. Petitioner, Govind Prasad, claims himself to be a member of Gram Sabha and alleges to have made a complaint in accordance with the Provisions of Rule 4 of the U.P. Panchayat Raj (Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 (hereinafter referred to as the 1997 Rule) against the Pradhan of Village-Tarkulwa Tiwari, Block Partawal, Tehsil, Sadar, Maharajganj, namely, Tabirunnisha, respondent No. 5. On the basis of the complaint so made by the petitioner a preliminary enquiry was conducted under order of the District Magistrate by an enquiry officer (Sub Divisional Magistrate), nominated by the District Magistrate under Rule 4 of the 1997 Rules. On the basis of the preliminary enquiry report submitted by.-the Sub Divisional Magistrate on 14th December, 2002, the District Magistrate was satisfied that the Gram Pradhan was involved in financial embezzlement and other irregularities. Accordingly an order under Section 95 (1) (g) proviso was passed by the District Magistrate seizing the financial and administrative powers of the Pradhan. District Magistrate passed an order dated 11th October, 2004 appointing three members committee under the provisions of Section 95 (1) (g) proviso of Panchayat Raj Act. The District Magistrate by an order dated 16th November, 2003 nominated District Development Officer, Maharajganj for conducting the final enquiry under Rule 5 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997. Before the final enquiry could be completed the District Magistrate on the basis of a review application filed by the Pradhan passed an order dated 8th November, 2004, whereby the financial and administrative powers of the Gram Pradhan were restored. It is against this order that the present writ petition has been filed.
3. The Court at the very outset records its dissatisfaction with regard to the manner in which Sri H.S. N. Tripathi, counsel for the respondent-pradhan tried to confuse this Court by producing a copy of the letter of the District Magistrate, Maharajganj dated 6th December, 2003. On the basis of the said letter it was contended that the District Social Welfare Officer, who was appointed as enquiry officer by the District Magistrate in pursuance of a complaint made by the petitioner against the Pradhan, has already completed the final enquiry and has submitted enquiry report before the District Magistrate. On the basis of said final enquiry report, the financial and administrative powers of the Pradhan were restored. The Court is sorry to note that the said piece of letter was not filed along with an affidavit. The Court time and again called upon the counsel for the respondent to file the letter along with an affidavit. The counsel for the respondent refused to do so and wasted that matter be decided finally after taking into consideration the said letter. In the interest of justice the Court through at proper to read the contents of the letter relied upon by the counsel for the Pradhan. A perusal of the said letter reveals that the final enquiry has not been concluded in respect of the complaints of the petitioner, yet by the nominated enquiry officer. Advocates are officers of the Court and they are expected to make submissions and produce evidences, which are factually correct. The attitude of the Advocates to somehow or the other obtain an order from the Court is a matter of serious concern. This Court fails to understand the attitude adopted by the respondent's Advocate as noticed above, precious time of the Court wasted during such deliberations, could have been used for some other useful constructive purpose.
MERITS:
4. It is contended on behalf of the petitioner that the District Magistrate could have revoked the order dated 23rd September, 2004 passed under Section 95 (1) (g) proviso of the U.P. Panchayat Raj Act (ceasing the financial and administrative powers of the Pradhan) only after the final enquiry report was submitted by the enquiry officer appointed in that regard and the Pradhan was exonerated on all the charges. It is submitted that since there were allegations against the District development Officer, Maharajganj, the District Magistrate, Maharajganj nominated the District Social Welfare Officer, Maharajganj as the enquiry officer for conducting final enquiry under Rule 5 of the U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997. The said enquiry officer has not submitted any final enquiry report, therefore, there was no occasion for the District Magistrate to have revoked his order dated 16th September, 2004 ceasing the financial and administrative powers of the Pradhan. It is further contended that the District Magistrate while passing the impugned order dated 8th November, 2004 has acted upon the review application filed by the Pradhan after obtaining comments from the Khand Vikash Adhikari on the same. The said report of Khand Vikash Adhikari was not referable to the provisions of 1997 Rules and as such was of no consequence.
5. On behalf of the respondent Sri H.S.N. Tripathi, Advocate made an attempt to confuse the Court by producing a letter dated 6th December, 2003 issued by the District Magistrate, Maharajganj, on the basis whereof it was contended that the District Social and Welfare Officer, who was appointed as the Final Enquiry Officer has submitted his detailed final report and the District Magistrate after being satisfied with the said final report, has exonerated the charges of the petitioner and has rightly restored the financial and administrative powers of the Pradhan.
6. I have heard learned counsel for the parties and have gone through the records.
7. From the facts as borne out from the records it is apparently clear the till date no final enquiry has been conducted against the Pradhan qua the complaint made by the petitioner. The District Magistrate has passed orders time and again with regard to the suspension of the financial and administrative powers of the Pradhan as well as recalling his orders and restoring the financial and administrative powers of the Pradhan on application as well as on review application, which were filed by the complainant as well as by the Pradhan from time to time. The Hon'ble High Court in the judgment reported in (1999) 1 U.P.L.B.E.C., 718 (Smt. Sandhya Gupta v. District Magistrate, Auraiya and Ors.) has disapproved such acts a practice and has held that once the financial and administrative powers of Pradhan have been ceased under proviso to Section 95 (1) (g) of the U.P. Panchayat Raj Act, 1947 after obtaining a preliminary enquiry report, it is mandatory that the proceedings initiated against the Pradhan under the provisions of Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 must be brought to their logical end and final enquiry report should be obtained and only thereafter the District Magistrate has to take decision as to whether the Pradhan is to be exonerated of the charges or not. It is only when the District Magistrate comes to a conclusion that the Pradhan be exonerated of the charges that the financial and administrative powers of the Pradhan can be restored.
8. Reference may also be had to Section 95 (1) (g) proviso of the U.P. Panchayat Raj Act, 1947 which is quoted herein below:
" ....Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry be exercised and preformed by a Committee consisting of three members of Gram Panchayat appointed by the State Government."
9. Thus it is not open to the District Magistrate to recall his order ceasing the financial and administrative powers of the Pradhan until the final enquiry report has been obtained and the Pradhan is exonerated of the charges levelled against him/her,
10. In view of the aforesaid settled legal position the Court is satisfied that the District Magistrate had no authority of law to recall the order whereby the financial and administrative powers of the Pradhan had been ceased, so long as final enquiry report as contemplated by Rule 5 had not been obtained from the nominated final enquiry officer and the District Magistrate on the basis of said enquiry report is satisfied that the charges as levelled against the Pradhan were not made out.
11. In such circumstances the order passed by the District Magistrate, Maharajganj dated 8th November, 2004 cannot be legally sustained and is hereby quashed. The writ petition is accordingly allowed.