- (1.) V. K. Shukla, J. Petitioner nas approached this Court, questioning the validity of order dated 27. 6. 2008 passed by District Magistrale, Moradabad, removing the petitioner from the post of Pradhan in exercise of authority vested under Section 95 (1) (g) (iii)of theu. P. Panchayat Raj Act, 1947.
(2.) BRIEF facts giving rise to instant writ petition are that petitioner was elected as Pradhan of village Ahmadnagar, Jaitwara, post and B?ock Kundarki, District Moradabad. Complaints were made in respectof functioning of the petitioneras Pradhan. Preliminary enquiry was made and thereafter show cause notice was issued by the District Magistrale based on the report dated 29. 11. 2007. Peti tioner filed reply to the said show cause notice and claimed to have demanded documents. Civil Misc. Writ Petition No. 626 of 2008 was filed by petitioner, wherein an interim order was passed in favour of petitioner on 8. 1. 2008. However, on going formal enquiry against petitioner was directed to be concluded expeditiously, without being influenced by the obsenations made in the said order. On 11. 1. 2008 an order was passed suspending financial as well as adminislrative powers of petitioner. Against said order, Civil Misc. Writ Petition No. 4624 of 2008 was filed, wherein an interim order was passed by this Court on 25. 1. 2008, men-tioning there in that effect and operation of order dated 11. 1. 2008 would remain stayed. However, formal enquiry was directed to be concluded expeditiously. Charge sheetwas issued to petitioner on 10. 3. 2008 to which reply was submitted by petitioner on 29. 3. 2008. On 3. 4. 2008, petitioner requesled for opportunily of hearing. Thereafter order impugned has been passed at this juncture presentwrit petition has been filed. Sri Ashish Agrawal, learned counsel for petitioner conlended with vehemence that in the present case order impugned has been passed in complete violation of the principles of natural justice, and the procedure which has been provided for under U. P. Panchayat Raj Act, 1947 and the U. P. Panchayal Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 have not been adhered to and al no poinl of time any date, time or place had been fixed for holding enquiry, thus, order impugned is unsuslainable, and as such writ petition deserves to be allowed. Learned Slanding counsel as well as Sri K. K. Arora, Advocate, on the other hand, has contended wilh vehemence that in the present case decision which has been taken is slriclly in consonance with the law, and no interference be made with the impugned order in queslion.
(3.) WITH the consenl of the parties, presenl writ petition is being heard and decided, as the respondents have chosen not to file counler affidavit, rather have requesled for deciding the matter on the basis of the impugned order as well as pleadings available on record. In order to appreciale the respeclive argumenls, the provisions of Section 95 (1) (g) of the U. P. Panchayal Raj Act and Rules 3, 4, 5, 6, 7 and 8 of U. P. Panchayal Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 are being quoted below: "u. P. Panchayat Raj Act, 1947 "95. Inspection.- (a ). . . . . . . . . . (b ). . . . . . . . . (C ). . . . . . . . (d ). . . . . . . . . (e ). . . . . . (f ). . . . . . . . (g) remove a Pradhan, Up-Pradhan or member of a Gram Pachayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he- (1) absents himself without sufficient cause for more than three consecutive meetings or sittings; (ii) refuses to act or becomes incapable of acting for any reason what so-everor if he is accused of orcharged foran offence involving mora? turpitude; (iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made there under or his continuance as such is not desirable in public interest; (iii-a) has taken benefit of reservation under sub-section (2)of Section 11 or sub-section (3) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Caste, the Scheduled Tribes or the backward classes, as the case may be; (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in the politics, or (v) suffers from any of the disqualifications mentioned in clauses (a) to (m) of Section 5-A: Provided that where, in an enquiry held by such person 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 fina? enquiry, be exercised and performed by a Committee consisting of three mem-bers of Gram Panchayat appointed by the State Government. "the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 3. Procedure relating to complaints.- (1) Any person making complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any other officer empowered in this behalf by the State Government. (2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainants own affidavit in support there of and also affidavit of all persons from whom he claims to have received Information of facts relating to accusation, verified before a notary, together with all documents in his possession or power pertaining to accusation. (3) Every complaint and affidavit under this rule as well as any schedule or annexure there to shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavits respectively. (4) Not less than three copies of the complaint as well as each of its annexure shall be submitted by the complainant. (5) A complaint which does not comply with any of the foregoing provisions of this Rule shall not be entertained. (6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule if a complaint against a Pradhan or Up-Pradhan is made by a public servant. 9 4. Preliminary Enquiry.- (1) The State Government may, on the receipt of 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 prima facie case for a formal inquiry in the matter. 5. Enquiry Officer.-Where the State Government is of the opinion, on the basis of report referred to in sub-rule (2) of Rule 4 or otherwise that and enquiry should be held against a 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-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 ho?d enquiry. 6. Procedure of the inquiry.- (1) The substance of imputations, and as copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Inquiry Officer by the State Government. (2) The Inquiry Officer shall draw up- (a) the substance of imputations into definite and distinct articles of charge; and (b) a statement of imputations in support of each article of charge, which shall contain a statement of all relevant facts and-a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained. (3) The Inquiry Officer shall deliver or cause to be delivered to the person against whom he is to ho?d the enquiry, a copy of the articles of charge, the statement of imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified a written statement of his defence and to state whether he desires to be heard in person, and to appear in person before him on such day and at such time as may be specified. (4) On receipt of the written statement of defence, the Inquiry Officer shall enquire into such of that articles of charges as are not admitted and where all articles of charges have been admitted in the written statement of defence, the Inquiry Officer shall record his findings on each charge after taking such evidence as he may think fit. (5) If the person who nas not admitted any of the articles of charges in his written statement of defence, appears before the Inquiry Officer, he shall ask him where he is guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiry Officer shall record the plea, sign the record and obtain the signature of that perscfi, and return a finding of guilt in respect of those charges. (6) If the person fails to appear within the specified time or refuses or omits to plead, the Inquiry Officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charges and shall adjourn the case to a later date not exceeding fifteen days, after recording an order that the said person may, for the purpose of preparing his defence: (a) inspect within five days of the order or within such further time not exceeding five days as the Inquiry Officer may allow, the documents speci-fied in the list referred to in sub-rule (2); (b) submit a list of witnesses to be examined on his behalf; (c) give a notice within ten days of the order or within such further time not exceeding ten days as the Inquiry Officer may allow, for discovery or production of any documents that are relevant to the inquiry and are in the possession of the State Government, but not mentioned in the list referred to in sub-rule (2 ). (7) The person against whom enquiry is being held may take the assistance of any other person to present the case on his behalf, and the Inquiry Officer may appoint any person as a Presiding Officer to assist him in conducting the inquiry: Provided that a lega? practitioner shall not be engaged or appointed under this sub-rule. (8) If the person applies orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule (2), the Inquiry Officer shall furnish him with such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved. (9) The Inquiry Officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies there of to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition : Provided that the Inquiry Officer may; for the reasons to be recorded in writing, refuse to requisition such of the documents as are, in his opinion, not relevant to the case. (10) On receipt of the requisition referred to in sub-rule (9), every author ity having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Officer: Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any such documents would be against the public interest or security of the State, it shall inform the Inquiry Officer accordingly and such Inquiry Officer shall, on being so informed, communicate the Infor mation to the person against whom the inquiry is being held and with draw the requisition made by him for the production or discovery of documents. (11) On the date fixed for enquiry, the ora? and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall beexamined, byt he Inquiry Officer by or on behalf of the complainant, if there is one and may be cross-examined by or on behalf of the person against whom the inquiry is being held. The witnesses may be examined by the Inquiry Officer or the complainant, as the case may be, on any point on which they have been cross-examined, but not on any new matter, without the leave of the Inquiry Officer. (12) The Inquiry Officer may allow production of evidence not includedin the list given to the person against whom the inquiry is being held, or may itself call for new evidence or recall and re-examine any witness and in such case the said person shall beentitled to haveif herdemandsit, a copy of the list of further evidence proposed to be produced and an adjournmentof the Inquiry Officer for three clear days before the production of such evidence, exclusive of the day of adjournment and the day to which the inquiry is ad-journed. The Inquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record, the Inquiry Officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice. Note.-Nw evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called from only when there is an inherent lacuna or defect in the evidence which has been produced originally. (13) When the evidence for proving the articles of charge against the person against whom inquiry is being held is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the de fence is made orally, it shall be recorded and the said person shall be required to sign the record. In eithercase, a copy of the statement of defence shall be given to the complainant, if any. (14) The evidence on behalf of the person against whom the inquiry is being held shall then be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re- examination and examination by the Inquiry Officer according to the provisions applicable to the witnesses for proving the articles of charge. (15) The Inquiry Officer may, after the person against whom inquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling him to explain any circumstances appearing in the evidence against him. (16) The Inquiry Officer after completion of the production of evidence, hear the complainant, if any and the person against whom enquiry is being held, orpermit them, or him, as the case may be, to file written brief so their respective cases. (17) If the person to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry Officer or otherwise fails or refuses to comply with the provisions of this rule, the Inquiry Officer may ho?d the enquiry ex parte. (18) When ever Inquiry Officer after having heard and recorded the whole or any part of the evidence in an enquiry, ceases to exercise jurisdiction there in and is succeeded by another Inquiry Officer, the Inquiry Officer so succeeding may act on the evidence so recorded by his predecessor or part or recorded by himself: Provided that if the succeeding Inquiry Officer is of the opinion that further examination of any of the witnesses whose evidence has already been re corded is necessary in the interest of justice he may recall, examine, cross-examine and re-examine any such witness as herein before provided.;