- (1.) ASHOK Bhushan, J. We have heard Sri A. K. Gaur, the learned Counsel for the appellant, learned Standing Counsel appearing for Respondents No. 1 and 2 and Sri Nitin Gupta, Counsel appearing for respondent No. 3.
(2.) THIS special appeal has been filed by the appellant against the judgment dated 27th January, 2003 passed by learned Single Judge in Writ Petition No. 4516 of 2003 (Smt. Rajbiri Devi v. State of U. P. and others,) dismissing the writ petition filed by the appellant. Facts giving rise to this special appeal, briefly stated, are; the appellant is elected Pradhan of Gaon Panchayat, Nistauli. A compliant was filed against the appellant by Ex-Pradhan and Up-Pradhan of Gaon Panchayat, Nistauli. The District Magistrate directed for holding a preliminary enquiry on the aforesaid complaint. The preliminary enquiry was conducted by District Agricultural Officer and a report was submitted to the District Magistrate in which misappropriation of funds and several other allegations were prima facie found true against the appellant. The District Magistrate issue a show-cause notice to the appellant dated 1st July, 2002 which stated that petitioner has been found prima facie guilty of misappropriation of fund and other charges and appellant may show-cause as to why his financial and administrative powers be not ceased exercising the power under Section 95 (1) (g) proviso of U. P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act ). The petitioner submitted a reply to the show-cause notice. The District Magistrate after considering the reply passed an order dated 13-1-2003 ceasing the administrative and financial power of the appellant after finding the appellant prima-facie guilty of misusing her office by committing financial irregularities and misappropriation of an amount of Rs. 1,02,882. The appellant filed writ petition being Writ Petition No. 4516 of 2003 challenging the aforesaid order of the District Magistrate dated 13th January. 2003 and also the enquiry report dated 24th November, 2002 and show-cause notice dated 1st July, 2002. The learned Single Judge after hearing the appellant, dismissed the writ petition against which the present special appeal has been filed. Sri A. K. Gaur Counsel for the appellant made following submissions in support of this special appeal: - (i) The order of the District Magistrate dated 13th January, 2003 did not disclose that it considered the reply submitted by the appellant to the show-cause notice and was passed in a mechanical and perfunctory manner. The learned Single Judge also did not consider this aspect of the matter. Reliance has been placed on the judgment of this Court in 1999 (2) A. W. C. 913; Smt. Sandhya Gupta v. District Magistrate and others. (ii) The allegations against the appellant are not based on any cogent material nor there is any evidence in support of the allegations, hence the administrative and financial powers of the appellant could not have been ceased. The expression found used in Section 95 (1) (g) proviso of the Act suggest that requisite prima facie findings must be arrived on consideration of preliminary enquiry report and the reply of the appellant and that not having been so, the order is vitiated in law. Reliance has been placed on 1998 (3) A. W. C. 1892; Chunmun v. District Magistrate, Sonebhadra and another. (iii) There is no objective consideration of the reply of the appellant to the show-cause notice by the District Magistrate while passing the order dated 13th January, 2003. The order of the District Magistrate is invalid and liable to be set aside.
(3.) THE learned Standing Counsel refuted the submissions raised by the Counsel for the appellant and submitted that there was sufficient materials before the District Magistrate to make a prima facie opinion as contemplated under Section 95 (1) (g) proviso hence no error was committed in ceasing the financial and administrative power of the appellant. Learned Standing Counsel has submitted that District Magistrate has considered the reply of the appellant and the order shows application of mind and the submission of the Counsel for the appellant to the contrary is not correct. We have considered the submissions of Counsel for both the parties and have also perused the record.;