IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 60 of 2008 Smt. Ramesho Devi ……… Appellant Versus Rao Ali Bahadur & others ……….Respondents Mr. U.K. Uniyal, Senior Counsel with Mr. Shobhit Saharia, Advocate for the appellant. Mr. Sudhanshu Dhulia, Senior Advocate for the respondent no. 1. Coram : Hon’ble V.K. Gupta, C.J. Hon’ble J.C.S. Rawat, J. V.K. GUPTA, C.J. (Oral) In this special appeal, the appellant has assailed the order dated 04th April, 2008 passed by the learned Single Judge of this Court in Writ Petition No. 53 of 2008 (M/S) whereby, consequent upon issuing directions about the filing of the Supplementary Counter Affidavit etc., as an interim measure the learned Single Judge directed the respondents-State to pass ‘appropriate orders’ on the preliminary enquiry report ion terms of Section 29 (1) of the Uttar Pradesh Kshettra Panchayat & Zila Panchayat Adhiniyam, 1961 (‘1961 Act’ for short). 2. Vide order dated 11th December. 2007 passed by the State Government, wherein reference was made to a preliminary enquiry report dated 11th November 2007 submitted by the District Magistrate, in terms of Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up- Pramukhs, Adhyakshas and Up- Adhyakshas) Enquiry Rules, 1997 (‘ 1997 Rules’ for short) read with section 29 (supra) the enquiry was entrusted to the Commissioner, Garhwal Division, Pauri who was nominated and appointed as the Enquiry Officer. In para 2 of the aforesaid order dated 11th December 2007 it was clearly mentioned that the aforesaid detailed inquiry was being ordered based upon the perusal of the preliminary enquiry report dated 11.11.2007 submitted by the District Magistrate. 3. G.O. No. 76/08/XII/90(14)/06 was issued on 15.02.2008 by the State Government, whereby, referring to the aforesaid 1997 Rules the order dated 11.12.2007 was cancelled/revoked/rescinded. We have perused the order dated 15.02.2008 and find that apart from being cryptic it is totally non-speaking, unreasoned and does not indicate on the face of the order as to why the State Government had to cancel the order dated 11.12.2007 appointing the Commissioner as the Enquiry Officer and entrusting enquiry to him. This is one aspect of the matter. 4. Proviso to sub-section (1) of Section 29 of the ‘1961 Act’ clearly lays down that wherein in an inquiry an Adhyaksha or Upadhyaksha is prima facie found to have committed financial and other irregularities, he shall cease to exercise and perform the financial and administrative powers and functions etc. A plain reading of the proviso prima facie does suggest to us that if indeed in an inquiry held it is prima facie found that the Adhyaksha or Upadhyaksha has committed any financial and other irregularities there is a mandatory requirement of law of his/her being divested of administrative powers and functions. The word ‘shall’ used in the proviso conveys such legislative intent. 5. Two issues arose for consideration in the writ petition. Firstly, whether it was open to the State Government to cancel the order dated 11.12.2007 and secondly, irrespective of the first issue whether by cancellation of this order the preliminary enquiry report dated 11.11.2007 submitted by the District Magistrate was washed out and became nonest in the eyes of law. About the first issue, we do not wish to offer any comment, but as far as the second issue is concerned since it directly has fallen for our consideration arising out of the impugned order passed by the learned Single Judge, we do wish to observe and hold that the preliminary enquiry report neither gets washed out nor becomes nonest in the eyes of law merely because an order appointing Commissioner as an Enquiry Officer is subsequently cancelled. The preliminary enquiry is a document which came into existence legitimately and was submitted to the State Government by virtue of legislative provisions. Under no provision of law, such an official document can be either wished away, not is it washed out nor it can be treated as nonest in the eyes of law. 6. Based on what we have said we do feel that the learned Single Judge was justified in directing the State Government to act as per the proviso to sub-section (1) of Section 29 of the ‘1961 Act’ based upon the preliminary inquiry report. No interference is called for. 7. Mr. U. K. Uniyal submits before us that because the State Government has already complied with the direction contained in the impugned order and has in fact passed the order divesting the appellant of her administrative and financial powers and has appointed a three Member Committee, the appellant has already challenged this action of the State Government by filing the Writ Petition No. 53 of 2008 (M/S). 8. Even while we are dismissing this appeal we do wish to observe and point out that it shall be in the interest of justice if writ petition No. 53 of 2008 (M/S) and the writ petition No. 731 2008 (M/S) filed by the appellant subsequently are both heard and disposed of together very very expeditiously. We, therefore, direct that both the writ petitions shall be listed together for orders for analogous hearing and disposal. We direct that in both the writ petitions the counter affidavits by the respondents therein shall be filed in two weeks from today. In both these petitions, the petitioners shall file rejoinder affidavits in two weeks thereafter. Both the petitions shall be taken up on priority basis and disposed of very expeditiously. 9. Before parting we wish to observe that since the preliminary enquiry report is not before us, we have not expressed any opinion about the contents thereof. (J.C.S. Rawat, J.) (V.K. Gupta, C.J.) Dated 30.04.2008 LSR/Shiv