Heard.
On 12.12.2019, the following order was passed:-
"Heard.
Shri Jagdish Prasad Maurya, learned Additional Chief Standing Counsel seeks time to produce to original records so as to enable the Court to verify as to whether the inquiry report dated 17.08.2019 i.e. the second inquiry report, was served upon the petitioner prior to passing of impugned order or not.
List/Put up on 17.12.2019."
Today Shri J.P. Maurya, learned Additional Chief Standing Counsel, has produced the original records before the Court and made a statement based thereon that the second inquiry report dated 17.08.2019 was never served upon the petitioner. This Court in the case of Ambesh Kumar Vs. State of U.P. & Ors., Writ Petition no. 20971 (M/S) of 2018 decided on 11.03.2019 has elucidated the procedure to be followed by the District Magistrate while taking a decision under Section 95-1(G) of the U.P. Panchayat Raj Act, 1947 (herein after referred as Act, 1947) read with Rules of U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Inquiry Rules, 1997. It has been held by this Court that after the final inquiry report the same is required to be served upon the Gram Pradhan who is sough to be removed in view of the requirements of second proviso to Section 95-1(G), according to which no action for removal of the Pradhan shall be taken accept after giving the concerned reasonable opportunity of showing cause against the action proposed. In fact, in the case of the petitioner itself, when he had filed the earlier writ petition bearing no. 32095 (M/S) of 2018, it was decided on 10.04.2019 in the following terms:-
"Heard learned counsel for the parties.
On a perusal of the impugned order by which the District Magistrate has ordered for cessation of Financial and Administrative powers of the Gram Pradhan. It is found that the same discloses due and proper application of mind in terms of the Full Bench decision of this Court in the case of Vivekanand Yadav Vs. State of U.P. and Anr. reported in 2011 (29) LCD 221, therefore, no interference is called for at this stage.
Furthermore, the learned Additional Chief Standing Counsel informed that the Inquiry Officer has completed the inquiry and submitted his report on 04.02.2019 to the District Magistrate and now, final orders are to be passed thereon. He, however, says that the earlier District Magistrate was transferred and new incumbent has joined recently.
In view of the above, it is provided that the copy of the final inquiry report shall be served to the petitioner seeking his response to the same and thereafter, a final order would be passed in accordance with law, say, within a period of six weeks from the date of receipt of the reply of the petitioner or expiry of the time period prescribed in the notice to him in this regard.
The writ petition is disposed of accordingly."
This Court while deciding the writ petition had clearly provided that a copy of the final inquiry report shall be served upon the respondent seeking a response to the same and thereafter a final order would be passed in accordance with law. This observation/direction held good for first inquiry as also the second inquiry in the very nature of things. The reasoning in support thereof has already been given in Ambesh Kumar's case so that any irregularity/illegality in the inquiry proceedings and the findings contained in the inquiry report should be challenged or pointed out by the Gram Pradhan. As in the present case the final inquiry report dated 17.08.2019 was never served upon the petitioner, therefore, subsequent action of his removal is liable to be quashed for this reason. It is accordingly quashed only for the limited purpose of service of the said inquiry report upon the petitioner who shall have an opportunity to give his response to the same to the District Magistrate in the light of what has been said herein above and decision of Ambesh Kumar's case which shall be considered, and a final order shall be passed by the District Magistrate in accordance with law, afresh. This entire exercise shall be completed within two months.
The inquiry report seeking the petitioners' reply shall be furnished to the petitioner within one week from the date a certified copy of this order is submitted. Reply thereto, shall be filed by the petitioner within the next 15 days. Decision as aforesaid shall be taken within the remaining period mentioned herein above.
It is made clear that this Court has not expressed any opinion on the merits of the allegations and counter allegations which may be involved in the case.
The impugned order in so far as it pertains to the recovery/surcharge to be made/imposed upon the petitioner, this Court has already held in the case of Ambesh Kumar that if the allegations for such recovery/surcharge are the same as the proceedings under Section 95-1(G) of the Act, 1947, then the same can be undertaken only after conclusion of the proceedings under Section 95 of the Act, 1947 or by a separate and simultaneous order to be passed with the final order under Section 95-1(G) of the Act, 1947 after adhering to separate proceedings under Section 27. This aspect of the matter has already been considered in Ambesh Kumar's case, therefore, for these reasons, if any such proceedings for recovery or surcharge are to be undertaken, they shall be undertaken only in therms of Ambesh Kumar's case. This part of the order is also not sustainable.
As a consequence of quashing of the impugned order, the petitioner who is the elected Gram Pradhan shall be put back in office but he shall not take any major policy decision especially those involving financial implications without the written approval of the District Panchayat Raj Officer. If any such proposal regarding policy decision or financial matter is sent by the petitioner or the Gaon Sabha to the District Panchayat Raj Officer, the same shall be considered for grant of approval or otherwise promptly under orders of this Court. The Continuance of the petitioner shall abide by the fresh decision to be taken by the District Magistrate.
With these observations/directions the writ petition stands allowed.
Order Date :- 17.12.2019 Lokesh Kumar