Heard Shri Bhawesh Pratap Singh, learned counsel for the petitioner and the learned standing counsel for the respondents.
The petitioner in the writ petition is seeking quashing of the orders dated 16.1.2018 and 23.1.2018. The petitioner is Gram Pradhan of Gram Panchayat, Akbarpur Seng Vikas Khand Bilhaur District Kanpur Nagar. He was elected as such in the year 2015. During an inspection by the Divisional Inspection Team of Swachh Bharat Mission (Rural) it was found that for construction of 503 public toilets a sum of Rs.60,36,000/- was sanctioned out of which construction of 71 toilets have not even started and so far as the remaining 432 toilets are concerned, they were still incomplete and some of these toilets did not have the junction chamber, some did not have roof, 14 toilets did not have any door etc. On this report the District Magistrate issued a notice to the petitioner to which the petitioner did not submit any reply and thereafter the impugned order has been passed on 16.1.2018 withholding the financial and administrative powers of the petitioner as Gram Pradhan and by another order dated 23.1.2018 an enquiry committee of three members has been constituted under section 95(1)(g) of the U.P. Panchayat Raj Act, 1947.
The submission of the learned counsel for the petitioner is that the impugned orders could not have been passed without:
(i) appointment of an enquiry officer;
(ii) holding of a preliminary enquiry; and
(iii) subject to the satisfaction of the State Government after the submission of the preliminary enquiry report, a final enquiry could be ordered.
A short counter affidavit has been filed by the respondents in which it is not denied that the action has been initiated on the report of a Divisional Inspection Team under the Swachh Bharat Mission (Rural). It is also stated that notice was issued to the petitioner through office letter dated 29.11.2017 which was received by the petitioner on 1.12.2017 but he did not submit any reply and therefore the District Magistrate proceeded to pass the two impugned orders.
At the outset the learned counsel for the petitioner denied that the notice had ever been served upon the petitioner, upon which this court directed the respondents to produce the original records. The original records were produced in which the original notice was found which clearly showed the endorsement of the petitioner by way of receipt of the notice. The signature of the petitioner on the notice tallied exactly with his signature as on the writ petition and therefore I have no hesitation in holding that the signature is that of the petitioner and the notice dated 29.11.2017 was actually served upon the petitioner on 1.12.2017. However, what is noticed from the impugned order is that the action against the petitioner has been initiated only on the report of the Divisional Inspection Team (Rural) and no enquiry officer was appointed by the District Magistrate.
The U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rules, 1997 in clause (c) of Rule 2 defines enquiry officer to mean the District Panchayat Raj Officer or any other District Level Officer to be nominated by the District Magistrate. Rule 2(c) of the Rules, 1997 reads as under "2(c). Enquiry Officer means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate."
Rule 4 of the Rules, 1997 provides for holding of a preliminary enquiry and states that the State Government on receipt of a complaint or a report referred to under Rule 3 or otherwise order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter. Sub rule (2) of Rule 4 further lays down that the Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered. Rule 5 of the Rules, 1997 provides that where the State Government is of the opinion on the basis of the report referred to in sub rule (2) of Rule 4 or otherwise that an enquiry should be held against the Pradhan or Up-Pradhan or Member under the proviso to clause (g) of sub-section (1) of Section 95 it shall by an order ask the enquiry officer other than the Enquiry Officer nominated under sub rule (2) of Rule 4 to hold the enquiry. Rules 4 and 5 of the Rules, 1997 read as under:
"4. Preliminary enquiry. - (1) The State Government may, on the receipt of a complaint or a report referred to under Rule 3 or otherwise order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter.
(2) The Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered.
5. where the State Government is of the opinion on the basis of the report referred to in sub rule (2) of Rule 4 or otherwise that an enquiry should be held against the Pradhan or Up-Pradhan or Member under the proviso to clause (g) of sub-section (1) of Section 95 it shall forthwith constitute a committee envisaged by proviso to clause (g) of sub ection (1) of Section 95, of the Act and by an order ask the enquiry officer other than the Enquiry Officer nominated under sub rule (2) of Rule 4 to hold the enquiry."
The procedure for enquiry has been laid down in Rule 6 of the Rules, 1997. A Full Bench of this court in the case of Vivekanand Yadav Vs. State of U.P. and another reported in 2010 (10) ADJ 1 (FB) had an occasion to interpret the provisions of the Rules, 1997 and in paragraph 98 thereof it has been held that action under the proviso to section 95(1)(g) cannot be taken on the preliminary report of the District Magistrate as well as on a report of a person defined as Enquiry Officer under Rule 2(c) of the Rules, 1997. Only these reports would be covered in the word 'otherwise' of Rule 5. Any other report would be a report under Rule 3(6) of the Enquiry Rules or can be considered by the DM under his suo motu power to order a preliminary enquiry but final enquiry with cessation of the power cannot be ordered on its basis. Paragraph 98 of the said judgement reads as under:
" In our opinion, the action under the proviso to section 95(1)(g) cannot be taken on the preliminary report of the District Magistrate as well as on a report of a person defined as Enquiry Officer under Rule 2(c) of the Rules, 1997. Only these reports would be covered in the word 'otherwise' of Rule 5. Any other report would be a report under Rule 3(6) of the Enquiry Rules or can be considered by the DM under his suo motu power to order a preliminary enquiry but final enquiry with cessation of the power cannot be ordered on its basis."
Therefore on a conjoint reading of the Rules 2,4 and 5 of the Rules, 1997 and the law laid down by the Full Bench in paragraph 98 what emerges is that on receipt of a complaint or report referred to Rule 3 or otherwise, the State Government may order the Enquiry Officer to conduct a preliminary enquiry to find out if there is any prima facie case for holding a formal enquiry. This shows that the holding of preliminary enquiry is mandatory before the State Government can proceed to hold a formal enquiry as contemplated in Rule 6. The word otherwise as provided in Rule 5 has already been interpreted by the Full Bench to mean a report either under sub rule (2) of Rule 4 or a report submitted by an Enquiry Officer duly nominated by the District Magistrate in exercise of powers under Rule 2(c) and no other.
In the present case what is noticed is that the action by the Enquiry Officer has been taken solely on the report of the Divisional Inspection Team by simply issuing a notice to the petitioner which he has received but did not submit any explanation thereto. Such a report of the Divisional Inspection Team cannot be construed to be a report as contemplated under Rule 2(c) or under sub rule (2) of Rule 4 of the Rules, 1997. The Divisional Inspection Team was not appointed by the District Magistrate to hold any enquiry and therefore it does not acquire the status of an Enquiry Officer within the meaning of sub rule (c) of Rule 2 of the Rules, 1997. If the Divisional Inspection Team had submitted a report it was still mandatory and encumbent for the District Magistrate to have appointed an Enquiry Officer to hold a preliminary enquiry to find out as to whether prima facie case is made out against the petitioner for launching a final enquiry against him. Therefore, the appointment of an Enquiry Officer and the holding of a preliminary enquiry is a sin qua non of a final enquiry under Rule 6 of the Rules, 1997.
In the present case nothing of the kind has been done. No Enquiry Officer was appointed. No preliminary enquiry has been held. There is no preliminary enquiry report submitted by an Enquiry Officer nominated by the District Magistrate or under sub rule (2) of Rule 4 of the Rules, 1997 and therefore the District Magistrate could not have invoked the powers under section 95(1)(g) for ceasing the financial and administrative powers of the petitioner or for constituting a committee to hold a final enquiry. A bare reading of Rule 5 demonstrates that the satisfaction of the State Government and its opinion on the preliminary enquiry report shall precede any action under proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 and it was only if the State Government is so satisfied that the enquiry should be held then it will appoint an Enquiry Officer other than an Enquiry Officer who conducted the preliminary enquiry.
For reasons aforesaid, the impugned orders dated 16.1.2018 and 23.1.2018 are absolutely illegal and without jurisdiction and are accordingly quashed. The writ petition is allowed.
However, this order will not preclude the District Magistrate from taking any action against the petitioner strictly in accordance with the provisions of the Rules, 1997.
Order Date :- 28.2.2018 o.k.