Heard Sri D.C. Tiwari learned counsel for petitioner and the learned State Counsel appearing on behalf of opposite parties 1 to 7. In view of the order being proposed to be passed, the opposite party No.8 being the complainant, no notice is required to be issued to him.
Under challenge is the order dated 22.8.2019 whereby financial powers of petitioner who is said to be Gram Pradhan of village Kamranwa, Development Block Banki, Tehsil Nawabganj, District Barabanki has been seized in terms of Section 95(1)(g) of U.P. Panchayat Raj Act, 1947.
Learned counsel for petitioner submits that impugned order has been passed without issuing any show cause notice and without affording any opportunity of hearing to the petitioner. It has been submitted that petitioner being an elected person, powers of the office can not be scuttled in such a cursory manner by administrative authorities. It has been submitted that even otherwise the order is against the law settled in the full bench decision of this Court passed in the case of Vivekanand Yadav versus State of U.P. and others reported in 2010(10) ADJ(1) in which paragraph 68 specifically holds that it is a right of a gram Pradhan to have its explanation or point of view to the charges considered before passing of orders for seizing financial and administrative powers. Relevant portion of the aforesaid judgment is quoted as follows:-
"68. In view of our decision and reasons detailed in the Hafiz case, a pradhan is neither entitled to be associated in the preliminary enquiry nor is he entitled to get the copy of the preliminary enquiry report--his only right is to have his explanation or point of view or version to the charges considered before the order for ceasing his financial and administrative power is passed. "
"71. It is not only necessary that the explanation or point of view or the version of the affected pradhan should be obtained but should also be considered before being prima facie satisfied of his being guilty of financial and other irregularities and ceasing his powers. Of course the consideration of the explanation does not have to be a detailed one. There should be indication that mind has been applied. This has also been explained in the Hafiz case. Nevertheless, we would like to clarify it."
A perusal of the aforesaid full bench decision clearly indicates the fact that prior to passing of orders pertaining to seizing financial and administrative powers of elected Pradhan, it is incumbent upon the authority concerned to consider his explanation, point of view or version to the charges. It has been further held that not only should the explanation be considered but prima facie satisfaction of his being guilty of financial and other irregularities should also be indicated in the order which however does not require to be a detailed one.
Applying the aforesaid judgment in the present case it is quite apparent that impugned order does not indicate any show cause notice having been issued to petitioner prior to passing of the said order. Even petitioner's version or explanation has been given a complete go bye. The order upon a bare perusal itself explanatory and indicates the non application of mind by the authority concerned.
However in view of the facts and circumstances of the case, it would be appropriate to permit the authority concerned to pass a fresh order pertaining to the charges levelled against the petitioner.
Since a bare perusal of impugned clearly indicates the non application of mind of the authorities concerned, no purpose would be served by keeping the petition pending and same may be disposed of granting liberty to authority concerned to consider the matter afresh.
Consequently, a writ in the nature of certiorari is issued quashing the order dated 22.8.2019. A further writ in the nature of Mandamus is issued directing the opposite party No.2 i.e.the District Magistrate Barabanki to pass a fresh order pertaining to seizure of financial and administrative powers of petitioner as Gram Pradhan. It is made clear that a fresh order shall be passed after issuing notice to petitioner and after consideration of reply submitted thereof strictly in accordance with judgment rendered in the case of Vivekanand Yadav (supra).
With the aforesaid observations, the writ petition stands allowed.
Order Date :- 30.9.2019 prabhat