V.K.SHUKLA,SANGEETA CHANDRA.jj - (1.) Smt. Bhanati Devi, who was earlier Gram Pradhan of Gram Panchayat Birnai, Vikas Khand Deegh, District Sant Ravidas Nagar (Bhadohi) is before this Court assailing the validity of the order - (1) Every Pradhan or [* * *] of a [Gram Panchayat], every member of a [Gram Panchayat] or of a Joint Committee or any other committee constituted under this Act and every Sarpanch, Sahayak Sarpanch or Panch of a Nyaya Panchayat shall be liable to surcharge for the loss, waste or misapplication of money or property [belonging to the Gram Panchayat or Nyaya Panchayat] as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, [* * *] Member, Sarpanch, Sahyak Sarpanch or Panch; (1)Provided that such liability shall cease to exist after the expiration of the years from the occurrence of such loss, waste or misapplication, or five years from the date on which the person liable ceases to hold his office, whichever is later. (2) The prescribed authority shall fix the amount of the surcharge according to the procedure that may be prescribed and shall certify the amount to the Collector who shall, on being satisfied that the amount is due, realize it as if were an arrear of land revenue. (3) Any person aggrieved by the order of the prescribed authority fixing the amount of surcharge may, within thirty days of such order, appeal against the order to the State Government or such other appellate authority as may be prescribed. (4) Where no proceeding for fixation and realization of surcharge as specified in sub-section (2) is taken the State Government may institute a suit for compensation for such loss, waste or misapplication, against the person liable for the same. 1.dated 19.11.2014 passed by the learned Single Judge of this Court in Writ-C No. 32544 of 2010 (Smt. Bhanati Devi v. State of U.P. & others) wherein the proceedings undertaken under Section 27 (2) of U.P. Panchayat Raj Act, 1947 has been upheld. 2. Brief background of the case is that petitioner appellant has been performing and discharging duties as Gram Pradhan and at the point of time when she has been holding the office of Gram Pradhan complaint has been made against the conduct of the petitioner appellant and on the said complaint being made directives were issued to make enquiry and submit report. Thereafter, based on the report dated 12.8.2009 and 28.8.2009, so submitted, a show cause notice was issued to the petitioner appellant on 31.8.2009 to submit reply under Section 95 (1) (g) of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as 1947 Act ) read with U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Members) Enquiry Rule, 1997 (hereinafter referred to as 1997 Rules ) have been undertaken, and financial and administrative powers of petitioner appellant was ceased by the District Magistrate, Sant Ravidas Nagar and two member Committee was constituted to conduct the final enquiry. 3. In the present matter enquiry in question was conducted and in the said enquiry this much finding has been recorded that excess payment was made but it was also mentioned that petitioner appellant was an illiterate lady. The enquiry committee proceeded to make a mention that it would be inappropriate to accept that the illiterate lady is guilty for the same, whereas the Secretary/Gram Vikas Adhikari and the supplier can be held responsible. Based on the enquiry report, that has been so submitted, the District Magistrate at no point of time proceeded to exonerate the petitioner appellant and contrarily a charge-sheet dated 22.3.2010 was given levelling therein two charges and also categorically mentioned therein that in case petitioner appellant desires, she can submit her reply failing which proceedings under Section 95 (1) (g) of 1947 Act read with 1997 Rules would be undertaken and apart from the same proceedings of recovery of the amount in question would also be undertaken. Pursuant thereto petitioner appellant submitted her reply before the District Magistrate and, thereafter, order impugned has been passed and same has been assailed before the learned Single Judge and learned Single Judge has proceeded to dismiss the writ petition by passing following order; 1. The writ petition having been restored vide order of date passed on Restoration Application, as requested by learned counsels for parties, I proceed to hear and decide this case finally at this stage. 2. Sri Arjun Singhal, Advocate, holding brief of Sri Ravindra Nath Mishra, learned counsel for petitioner, submitted that so far as the other reliefs are concerned, the writ petition has rendered infructuous except relief no. 2, i.e., with respect to recovery of 50 per cent of Rs. 3,28,604/- from petitioner under Section 95 (1) (g) read with Section 27 of U.P. Panchayat Raj Act, 1947 (hereinafter referred to as 'Act, 1947'). The aforesaid responsibility has been fixed by District Magistrate, Sant Ravidas Nagar relying on the enquiry report dated 13.1.2010 wherein it has been found that excess payment was made, and, therefore, the said amount has to be recovered from Gram Vikas Adhikari as also Gram Pradhan. There is no averment in the entire writ petition that this excess payment has not been paid at all and that is how the public funds have been misappropriated and defalcated. That being so, the order of recovery is perfectly justified. I, therefore, do not find it a fit case warranting interference. 3. The writ petition lacks merits. Dismissed. 4. Interim order, if any, stands vacated. 4. Sri Arjun Singhal, Advocate, appearing with Sri Ravindra Nath Mishra, Advocate, submitted before us that once in the enquiry in question petitioner appellant has been exonerated then by no stretch of imagination recovery in question could have been directed to be undertaken in composite proceedings under Section 95 (1) (g) read with Section 27 of 1947 Act and, in view of this, entire proceedings are nullity and totally without jurisdiction. 5. Learned Standing Counsel, on the other hand, contended that rightful recovery is being made in the present case as on account of conduct of petitioner appellant loss has been caused. 6. After respective arguments have been advanced the factual situation that is so emerging in the present case is that proceedings for removal of Pradhan under Section 95 (1) (g) of 1947 Act read with 1997 Rules had been undertaken and this much is reflected that in the enquiry, the enquiry committee, that has been so entrusted to submit its report, proceeded to submit its report and therein in reference of petitioner appellant it was mentioned that she is an illiterate lady and was only competent to append her signatures and mention has been made that she has no idea of records, vouchers, muster-roll etc. and in such a situation Gram Vikas Adhikari has proceeded to purchase hume pipe and has proceeded to make excess payment, then petitioner appellant cannot be held responsible for the same. The District Magistrate, in the present case, has not at all agreed with the aforementioned enquiry report and proceeded to issue charge-sheet to the petitioner appellant and charge no. (1) was to the effect that in the matter of purchase and supply of hume pipes contrary to the rules and regulations excess payment has been made and charge no. (2) was to the effect that diet has not been supplied to the children up to October 2007 even then conversion cost has been withdrawn from time to time. 7. The petitioner appellant was directed to submit her reply failing which it was clarified that orders for removal would be passed and also orders of recovery can be passed. Petitioner appellant, thereafter, has submitted her reply and said reply has not at all found favour with the District Magistrate and therein the District Magistrate has clearly recorded a categorical finding that as per the rules in case purchases were to be effected for an amount of more than Rs. 1 Lac, then same could have been done only by way of contract/tender but the Gram Pradhan has not proceeded to undertake any prescribed procedure whereas account in question has been operated jointly by the Gram Pradhan and Secretary of Gram Panchayat and from the reply in question that has been so submitted by the petitioner appellant it was clearly reflected that entire supply has been made by one R.K. Enterprises, Golkhara, Koirauna, Sant Ravidas Nagar (Bhadohi) wherein reference has been given of NP-Y type hume pipe and same has been verified by the Gram Pradhan and even the bill and voucher that has been prepared by the Gram Pradhan does not find any reference as to what was the nature of the purchase, that has been so made. The Inquiry Officer has also proceeded to make a mention that in reference of supply of hume pipe no quotation has been called for from other two firms rather only one particular firm R.K. Enterprises has made all supply on a higher price and excess payment of Rs. 3,28,604/- has been made. 8. Once petitioner appellant has been provided opportunity and petitioner appellant has submitted her reply and her reply in question has been considered in extenso and based on the same a conscious decision has been taken for removal of the petitioner appellant under Section 95 (1) (g) of 1947 Act read with 1997 Rules, then the said action cannot be said to be suffering from any infirmity. Even otherwise, at no point of time, any challenge has been made to the removal proceedings or to the fact that the opinion that has been formed by District Magistrate, on this score is perverse or unreasonable and the obvious reason for the same, as on date appears to be that the said prayer of petitioner appellant has become infructuous for the reason that tenure of petitioner appellant had already come to an end with the efflux of time but nothing prevents the petitioner appellant to assail the finding arrived therein and that had led to imposition of surcharge. 9. The entire challenge of petitioner appellant is based on the fact that composite notice for removal and recovery could not have been issued and in effect recovery is governed by separate set of procedure as provided for under Section 27 (2) of the 1947 Act read with Rules 256 to 258 of U.P. Panchayat Raj Rules, in view of this, there is not only procedural impropriety, the proceedings itself were not at all competent and maintainable. 10. It is true that under the 1947 Act for effectuating recovery for the loss waste or misapplication of money or property belonging to the Gram Panchayat or Nyaya Panchayat, as the case may be, proceedings are to be undertaken under Section 27 of the 1947 Act read with Rules 256 to 258 of the U.P. Panchayat Raj Rules, 1947. For ready reference Section 27 of the 1947 Act along with Rules 256 to 258 of the U.P. Panchayat Raj Rules, 1947, is quoted below; 27. Surcharge Rules are as follows: Rule 256(1) In any case where the Chief Audit Officer, Cooperative Societies and Panchayats, considers that there has been a loss, waste or misuse of any money or other property belonging to a Gaon Sabha as a direct consequence of the negligence or misconduct of a Pradhan, he may call upon the Pradhan, Up-Prahdan, Member, Officer or servant, as the case may be, to explain in writing why such Pradhan, Up-Pradhan, Member, Officer, or servant should not be required to pay the amount misused or the amount which represents the loss or waste caused to the Gaon Sabha or to its property and such explanation shall be furnished within a period not exceeding two months from the date such requisition is communicated to the person concerned: Provided that an explanation from the Pradhan, Up-Pradhan or member of the Gaon Panchayat shall be called for through the District Magistrate and from the officer or servant through the Panchayat Raj Officer. Provided also that no explanation shall be called for from any member who is recorded in the minutes of the Gaon Panchayats or any of its committee as having been absent from the meeting at which the expenditure objected to was sanctioned or who voted against such expenditure. Note - Any information required by the Chief Audit Officer, Cooperative Societies and Panchayats or any officer subordinate to him not below the rank of Auditor, Panchayats for preliminary enquiry, shall be furnished and all connected papers and records shall be shown to him by the Pradhan immediately on demand. (2) Without prejudice to the generality of the provisions contained in sub-rule (1) the Chief Audit Officer, Cooperative Societies and Panchayts, may call for the explanation in the following cases: (a) where expenditure has been incurred in contravention of the provisions of the Act or of the rules or regulations made thereunder; (b) where loss has been caused to the Gaon sabha by acceptance of a higher tender without sufficient reasons in writing. (c) where any sum due to the Gaon Sabha has been remitted in contravention of the provisions of the Act or the rules or regulations made thereunder; (d) where the loss has been caused to the Gaon sabha by neglect in realizing its dues; or (e) where loss has been caused to the founds or other property of the Gaon Sabha on account of want of reasonable care for the custody of such money or property. (3) On the written request of the Pradhan, Up-Pradhan, Member, Officer or servant from whom an explanation has been called for, the Gaon Panchayat shall give his necessary facilities for inspection of the record connected with the requisition for surcharge. The Chief Audit Officer may, on application from the person surcharged, allow a reasonable extension of time for submission of his explanation if he is satisfied that the person charged has been unable, for reasons beyond his control, to consult the record for the purpose of furnishing his explanation. 257. (1). After expiry of the period prescribed in sub-rule (1) or (3) of Rule 256, as the case may be, and after examining the explanation, if any, received within time, the Chief Audit Officer shall submit the papers along with his recommendations to the District Magistrate of the district in which the Gram Sabha is situated in case of Pradhan, Up-Pradhan and Members and to the District Panchayat Raj Officer of the district in which the Gram Sabha is situated in case of Officers and servants. (2) The District Magistrate or the District Panchayat Raj Officer, as the case may be, after examining and after considering the explanation, if any, shall require the Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat to pay the whole or part of the sum to which such Pradhan, Up-pradhan, Member, Officer or servant is found liable: Provided, firstly, that no Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat would be required to make good the loss, if from the explanation of the Pradhan, Up-Pradhan, Member, Officer or servant concerned or otherwise the District Magistrate or the District Panchayat Raj Officer, as the case may be, is satisfied that the loss was caused by an act of the Pradhan, Up-pradhan, Member, Officer or servant in the bona fide discharge of his duties: Provided secondly, that in the case of loss, waste or misuse occurring as a result of a resolution of the Gram Panchayat or any of its committees the amount of loss to be recovered shall be divided equally among all the members including Pradhan and Uppradhan, who are reported in the minutes of the Gram Panchayat or any of its Committee as having voted for or who remained neutral in respect of such resolution: Provided thirdly, that no Pradhan, Up-Pradhan, Member, Officer or servant shall be liable for any loss, waste or misuse after the expiry of four years from the occurrence of such loss, waste or misuse or after the expiry of three years from the date of his ceasing to be a Pradhan, Up-Pradhan, Member, Officer or servant of the Gram Panchayat, which ever is later. 258. (1) Any Pradhan, Up-Pradhan or Member of a Gaon Panchayat aggrieved with an order of surcharge passed by the District Magistrate under Rule 256 may appeal to the Commissioner of the Division within thirty days from the date on which such order is communicated to him and Commissioner of the Division may confirm, rescind or vary the order passed by the District Magistrate or may pass such orders as he thinks fit. (2) Any officer or servant of a Gaon Panchayat aggrieved with an order of surcharge passed by the District Panchayat Raj Officer may appeal to the District Magistrate within thirty days from the date on which such order is communicated to him and the District Magistrate may confirm, rescind or vary the order passed by the District Panchayat Raj Officer or may pass such orders as he thinks fit. 11. A bare perusal of the provisions, quoted above, would go to show that every Pradhan and Member of Gram Panchayat or of a Joint Committee or any other committee constituted under this Act are liable to be surcharged for the loss, waste or misapplication of money or property belonging to the Gram Panchayat or Nyaya Panchayat, as the case may be, if such loss, waste or misapplication is direct consequence of his neglect or misconduct while he was such Pradhan, Member, Sarpanch, Sahyak Sarpanch or Panch. The liability to fix the amount of surcharge is on the Prescribed Authority and a full fledged mechanism has been provided for under the rules wherein explanation has to be called from the Pradhan through the District Magistrate and from the officer or servant through the Panchayat Raj Officer and, thereafter, a conscious decision has to be taken in the said direction. 12. In the present case much issue is being raised on the fact that in proceedings under Section 95 (1) (g) of 1947 Act read with 1997 Rules, the amount in question could not have been directed to be recovered as it has been done in the present case. Learned counsel for the petitioner appellant, in support of his argument, has relied on a judgment of this Court in the case of Indu Devi v. District Magistrate, Chitrakoot and others, 2006 (3) AWC 2787. 13. The said judgment in question clearly gives the answer to the question posed by the petitioner as in the facts of the said case as therein final enquiry under Section 95 (1) (g) of 1947 Act has not at all been concluded and even then recovery proceedings have been initiated at the stage when proceedings under Section 95 (1) (g) of 1947 Act has not been concluded and recovery has been directed, in such a situation, the Division Bench has taken the view that on the basis of mere prima facie finding of guilt the order or surcharge could not have been passed under Section 27 of the 1947 Act. This judgment in effect subscribed the view that once finding of Competent Authority has been returned under Section 95 (1) (g) of 1947 Act, then based on finding of misconduct as contemplated under Section 27 of the 1947 Act orders of surcharge can be passed. Paragraph 9 of the said judgment provides for as follows: A perusal of the Scheme under Section 27 of the Act indicates that a Pradhan is liable to surcharge for the loss, waste or misapplication of money or property belonging to the Gram Panchayat, if such is direct consequence of his neglect or misconduct while he was such Pradhan. The said finding of misconduct as referred to in Section 27 can be based from the inquiry under 95 (1) (g) when the misconduct is proved against the Pradhan. On the basis of finding of misconduct under 95 (1) (g) of the Act, it is open for the competent authority to issue surcharge notice and pass appropriate orders. The competent authority may also independently direct for surcharge under Section 27 of the Act and pass appropriate orders after being satisfied with the misconduct. 14. The extract of the judgment, quoted above, would go to show that under the scheme of the Act, a Pradhan is liable to surcharge for the loss, waste or misapplication of money or property belonging to Gram Panchayat, if such is direct consequence of his neglect or misconduct while he was Pradhan. The finding of misconduct or negligence that has also resulted in loss, waste or misapplication of money or property can be arrived at in proceedings under Section 95 (1) (g) of the 1947 Act read with 1997 Rules and when misconduct/negligence is proved in the said enquiry, it is also open to the authority to issue surcharge notice and pass appropriate order. Thus where misconduct/negligence is substantiated in the enquiry, then simultaneously as District Magistrate is competent to pass order of removal and can also pass order of surcharge, the proceedings on this score cannot be faulted. Once there is duality of authority conferred in District Magistrate and the requirement under the Rules is that direction for surcharge should be preceded by show cause notice, then the composite notice issued under Section 95 (1) (g) of the 1947 Act read with 1997 Rules and Section 27 (2) for surcharge cannot be faulted. The competent authority is also free to independently direct for surcharge under Section 27 of the Act and pass appropriate order after being satisfied with the misconduct/negligence. 15. We also proceed to examine the judgment of this Court passed by a learned Single Judge in the case of Sher Ali v. State of U.P. & others, 2013 (120) RD 791 , wherein view has been taken that no orders for recovery of any amount can be passed by the District Magistrate while passing an order under Section 95 (1) (g) of 1947 Act. 16. There is a clear cut distinction in between the preliminary enquiry and a final enquiry under Section 95 (1)(g) of the 1947 Act read with the 1997 Rules. It is true that Section 95 (1)(g) of the 1947 Act encompasses in itself exercise for removal of the Pradhan and it is also equally true that for the recovery of amount from the Pradhan a procedure is provided for under Section 27 read with Rules 256, 257 and 258 of the U.P. Panchayat Raj Rules, 1947 and same clearly contemplates that at the point of time when recovery is to be effectuated a show cause notice is required to be given by the District Magistrate to be followed by the recovery. 17. In the present case accepted position is that proceedings under Section 95 (1)(g) of the 1947 Act read with 1997 Rules has been undertaken and at the point of time when notice has been given to the petitioner appellant, she has been categorically informed that she has caused loss and for causing loss she can be removed and amount in question can also be recovered from her. Once proceedings are undertaken under Section 95 (1)(g) of the 1947 Act for removal of Pradhan and therein misconduct/negligence is substantiated, that has the impact of causing loss, waste or misapplication of money or property belonging to Gram Panchayat, then based on the same, apart from passing order of removal, the Competent Authority, as is provided for under Section 27 read with Rules 256, 257 and 258 of the U.P. Panchayat Raj Rules, 1947, recovery can also be directed and in the present case what we find from the record is that the Competent Authority under Section 95 (1) (g) of the 1947 Act read with 1997 Rules along with Section 27 read with Rules 256, 257 and 258 of the U.P. Panchayat Raj Rules, 1947, the District Magistrate has given notice to the petitioner appellant for recovery of the amount in question on account of misconduct and, in view of this, the proceedings, that have been so undertaken, cannot be said to be vitiated on said count whatsoever. The view of learned Single Judge in the case of Sher Ali (supra) is in the teeth of the dictum in the case of Indu Devi (supra), as such, the ratio of the case laid down there is not being approved of by us and judicial discipline binds us to follow the ratio of the case as laid down in the case of Indu Devi (supra) by a Coordinate Bench of this Court. 18. In view of this, once the final decision was to be taken for removal of Pradhan and the said misconduct also clearly reflected financial loss, then recovery in question can be made, in this backdrop, there is no infirmity in the exercise, that has been so undertaken by the District Magistrate and learned Single Judge is right when he has proceeded to make observation that there is no averment in the entire writ petition that this excess payment has not been paid and that is how the public funds have been misappropriated and defalcated. 19. Special appeal sans merit and same is dismissed, accordingly. .;