Court No. - 30
Case :- WRIT - C No. - 38532 of 2018 Petitioner :- Ratan Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rang Nath Pandey,Rahul Pandey Counsel for Respondent :- C.S.C.
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and Sri S.K. Upadhyay, learned Standing Counsel.
Present petition has been filed seeking in the nature of certiorari quashing the order dated 23.10.2018 passed by respondent no.3 which has been passed in the light of the order dated 13.10.2018 passed by respondent no.2 in the matter of report of embezzlement against village Pradhan of Village Panchayat Village- Tissa, Tehsil- Jansath, Block- Morana, District- Muzaffar Nagar, and Village Panchayat Secretary.
It is urged that the petitioner is an elected member of Village Panchayat. He has come forward to challenge the order dated 23.10.2018 whereby the financial powers of the respondent no.4 have been restored in the light of the judgment of this Court dated 13.09.2018 passed in Writ-C No. 31062 of 2018 (Shahnazar Vs. State of U.P. and others).
On 13.09.2018 following order was passed:
"1.The counsel for the petitioner as well as the standing counsel have agreed that the case may be heard and finally disposed of as the issue relates to a question of law and the relevant facts relating to the case and the order proposed to be passed are not disputed.
2. The petitioner is the elected Gram Pradhan of the Village. On certain complaints, a preliminary enquiry under Rule 4 of the Rules of the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as Rules, 1997) was instituted to inquire into the alleged administrative and financial irregularities committed by the petitioner. The report of the preliminary enquiry was submitted by the Inquiry Officer appointed under Rule 4 of Rules, 1997. By order dated 20.7.2018, the District Magistrate, Muzaffar Nagar, i.e respondent no.2 ceased the financial and administrative powers of the petitioner relying on the report of the preliminary inquiry and also instituted a final and formal inquiry under Rule 6 of Rules, 1997 to consider the removal of the petitioner from the post of Gram Pradhan. By his aforesaid order, the District Magistrate, Muzaffar Nagar also issued a show cause notice to the petitioner asking him to submit his reply to the report of the preliminary inquiry. The order dated 20.7.2018 has been challenged in the writ petition.
3. It is evident that the order dated 20.7.2018 has been passed by the District Magistrate without giving any reasonable opportunity of hearing to the petitioner and apparently without considering the reply of the petitioner in as much as the show cause notice in pursuance to the report of the preliminary inquiry, was issued by order dated 20.7.2018 itself and the order has been passed without waiting for the reply of the petitioner. Under the proviso to Section 95(1)(g) of the U.P Panchayat Raj, Act, 1947 as well as Rule 5 of the Rules, 1997, before passing any order instituting a final and formal inquiry under Rule 6 of Rules, 1997 or before ceasing the financial and administrative power of the elected Gram Pradhan, the District Magistrate is liable to issue a show cause notice to the elected Gram Pradhan giving him a reasonable opportunity to reply to the findings recorded against him in the report of the preliminary inquiry. The orders ceasing the financial and administrative powers of the elected Gram Pradhan is also to be a reasoned order after considering the reply submitted by the elected Gram Pradhan in response to the show cause notice. From the facts stated, it is evident that the aforesaid procedure was not followed by the District Magistrate, Muzaffar Nagar before passing the order dated 20.7.2018 so far it ceases the financial and administrative powers of the petitioner and so far as it institutes a final and formal inquiry under Rule 6 of the Rules, 1997.
4. In view of the aforesaid, in so far as the order dated 20.7.2018 ceases the financial administrative powers of the petitioner and institutes an enquiry under Rule 6 of Rules, 1947 is illegal and contrary to law and is hereby set aside. However, in so far as the order dated 20.7.2018, issues a show cause notice to the petitioner, the same is upheld. The District Magistrate, Muzaffar Nagar shall be at liberty to pass fresh orders in accordance with law after giving a reasonable opportunity to the petitioner to submit his reply and after considering his reply submitted in response to the show cause notice issued to him through order dated 20.7.2018.
5. With the aforesaid observations and directions, the writ petition is allowed."
A perusal of the aforesaid judgment dated 13.09.2018 passed by this Court in Writ-C No. 31062 of 2018 (Shahnazar Vs. State of U.P. and others), indicates that an opportunity was given to the District Magistrate to pass a fresh order in accordance with law, after giving reasonable opportunity of hearing to the petitioner therein (Shahnazar) to submit his reply and after considering his reply submitted in response to the show cause notice issued to him vide order dated 20.07.2018.
It is clear that the impugned order dated 23.10.2018 has been passed pursuant to the judgment and order of this Court.
In such view of the matter, the petitioner has no locus to challenge the same.
Petition is accordingly dismissed.
Order Date :- 28.11.2018 SKG