- (1.) H. L. Gokhale, CJ. Heard Sri S. K. Verma, Senior Advocate for the appellant. Sri M. K. Sharma appears for Respondents No. 9 to 12 and Sri Y. K. Yadav appears for Respondents No. 1, 2, 6, 7 and 8.
(2.) THE appellant is a Pradhan of Gram Panchayat Kuri Rawana in district Moradabad. He has been proceeded against for financial irregularities in a pre liminary enquiry under Rule, 4 of the U. P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the Rules) and his financial and administrative powers have been removed. He has to now face forma! enquiry under Rule 5 of the Rules. It is at this stage that the appellant has filed a petition and challenged the order dated 3. 12. 2007 passed by the District Magistrate, Moradabad withdrawing his financial and administrative powers. THE learned Single Judge has dismissed the petition, hence this appeal. Sri Verma, learned Counsel for the appellant, submits that under Proviso to Section 95 (l) (g) of the U. P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) an enquiry which is contemplated has to be regular enquiry under Rule 5. For the sake of record we reproduce Section 95 (1) (g) proviso which reads as under: "provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government. " This proviso clearly provides that if a Pradhan or Up-Pradhan is prima facie found to have committed financial or other irregularities, they shall cease to exercise and perform the financial and administrative powers and that will continue until the person is exonerated in the final enquiry. Sri Verma submits that since rule 5 refers to enquiry under Proviso to Section 95 (1) (g), both Rules 4 and 5 are concerning this preliminary enquiry. He has drawn our attention to a judgment of learned Single Judge of this Court in Ganesh Ram v. Chief Development Officer, Ghazipur, 2000 (91) R. D. 333. The said case is distinguishable on facts and law. It related to the unamended Rule 4 of the Rules which required the District Panchayat Raj Officer to conduct the preliminary enquiry. Subsequently, vide notification dated 5. 1. 2001, the said Rules 4 and 5 have been amended to read as under: "4. Preliminary Enquiry.- (1) The State Government may, on the receipt of a complaint or report referred to in 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.
(3.) ENQUIRY Officer.- 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 a Pradhan or Up-Pradhan or Member under the proviso to clause (g) of sub-section (I) of Section 95, it shall forthwith constitute a committee envisaged by proviso to clause (g) of sub-section (1) of Section 95 of the Act and by an Order ask an ENQUIRY Officer, other than the ENQUIRY Officer nominated under sub-rule (2) of Rule 4, to hold the en quiry. " 5. Even Rule 2 (c) which defines "enquiry Officer" has been amended on 5. 10. 2001. Earlier it was to mean an officer not below the rank of District Panchayat Raj Officer, whereas after 5. 10. 2001 it reads as under: "'enquiry Officer' means the District Panchayat Raj Officer or any other dis trict level officer, to be nominated by the District Magistrate;" In such circumstances, where, in the case of Ganesh Ram (supra), the enquiry was conducted by a Junior Engineer and that too with the orders of the Chief Development Officer (and not the District Magistrate), this Court held that report of such enquiry officer could not be made the basis of an action under the Proviso to Section 95 (1) (g) of the Act.;