HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 348 of 2009 (M/S) Mahipal Singh … Petitioner .. Versus State of Uttarakhand & others … Respondents Mr. Arvind Vashistha, Advocate for the petitioner. Mr. K.P. Upadhyay, Additional Chief Standing Counsel for the State of Uttarakhand/respondent nos. 1 and 2. Mr. U.K. Uniyal, Senior Advocate assisted by Mr. D.S. Patni, Advocate for respondent no. 3. 17th December, 2009 Hon’ble Sudhanshu Dhulia, J. Heard Mr. Arvind Vashistha, Advocate for the petitioner, Mr. K.P. Upadhyay, learned Additional Chief Standing Counsel for the State of Uttarakhand/respondent nos. 1 and 2 as well as Mr. U.K. Uniyal, learned Senior Advocate assisted by Mr. D.S. Patni, Advocate for respondent no. 3. The petitioner before this Court has challenged the order dated 15.1.2009 passed by the Secretary, Panchayat Raj and Rural Engineering Service, Government of Uttarakhand. [whereby the Secretary, Panchayat Raj and Rural Engineering Service has held that the preliminary enquiry at the State level has been examined and it has been found that no charges against the Chairman of “Kshetra Panchayat”, Bhagwanpur, District Haridwar are proved. Hence, the complaint against the said “Kshetra Pramukh” is rejected.] The petitioner, who is a member of a “Kshetra Panchayat” had filed a complain under Rule 3 of the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) 2 Enquiry Rules, 1997 (from hereinafter referred to as the “Rules”. Rule 3 of the Rules reads as follows : “3. Procedure relating to complaints. (1) Any person making a complaint against a Pramukh, Up- Pramukh, Adhyaksha or Upadhyaksha may send his complaint to the Secretary to the State Government in the Panchayat Raj Department, Vidhan Bhawan, Lucknow. (2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant’s own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of fact relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation. (3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavit respectively. (4) Not less than three copies of the complaint as well as of each of its Annexures shall be submitted by the complainant. (5) A complaint which does not comply with any of the foregoing provisions shall not be entertained.” Pursuant to the said complaint, an enquiry was constituted under Rule 4 of the Rules. Rule 4 of the said Rules reads as follows : “4. Preliminary enquiry. – (1) The State Government may, on the receipt of a complaint referred to in Rule 3 or otherwise appoint an officer not below the rank of an Additional District Magistrate in the case of a Pramukh or Up-Pramukh 3 and District Magistrate in the case of an Adhyaksha or Upadhyaksha 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 Officer appointed under sub-rule (1) shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within a fortnight of his having been so appointed.” There has been an earlier round of litigation in the present case. The contention of the petitioner in the earlier writ petition being no. W.P. 1724 of 2008 (M/S) was that although in the preliminary enquiry constituted against respondent no. 3 certain financial and administrative irregularities have been found, yet in spite of the mandatory provision under the law (i.e. Section 16 read with the proviso of the Uttar Pradesh [Kshettra Panchayats and Zila Panchayats] Adhiniyam, 1961, which states that in such an eventuality the entire financial and administrative powers of such a Chairman should be ceased and to be given to a “committee”, till the final enquiry is completed and the Chairman is exonerated of the charges. This mandatory provision of law was not being complied with according to the petitioner. This Court vide its interim order dated 21.11.2008 directed that since there are prima facie findings in the preliminary enquiry, the mandatory provision of law, as referred above, must be followed or cause must be shown to this Court within two weeks. This order was consequently modified by another learned Single Judge of this Court vide order dated 17.12.2008. All the same, since the Government has now passed an order dated 15.1.2009 whereby it has held that no charges against respondent no. 3 are proved, the petitioner had withdrawn the earlier writ petition with the liberty to file another writ petition, consequently, vide order 4 dated 16.3.2009 of this Court, the petition was dismissed and the petitioner was given liberty to file fresh writ petition. It is now in the present petition that the petitioner has challenged the said order dated 15.1.2009. Before reverting to the facts of the present case, it is necessary to refer to the relevant provisions of law which have an absolute bearing in the present writ petition. What is there before this Court is an institution of “Panchayati Raj” and local self-government. By the 73rd and 74th amendment of the Constitution of India, these representative bodies have been given a constitutional status and a heavy duty is caste upon those who run such institution, and that they will do so in a democratic manner, with total transparency. There is a three-tier “Panchayats” body in the State. The first and primary level body is known as the “Village Panchayat”. The intermediary body is known as the “Kshettra Panchayat” and the apex body is known as the “Zila Panchayat”. The “Kshettra Panchayat” as well as the “Zila Panchayat” are governed by an Act known as the Uttar Pradesh [Kshettra Panchayats and Zila Panchayats] Adhiniyam, 1961 (from hereinafter referred to as the “Act”). Section 16 of the Act which is relevant for the present purposes is a provision relating to the removal of “Pramukh” as well as “Up-Pramukh” of a “Kshettra Panchayat”. Section 16 of the Act reads as follows : “16. Removal of Pramukh or Up-Pramukh. (1) If in the opinion of the State Government the Pramukh or any Up-Pramukh of a Kshettra Panchayat willfully omits or refuses to perform his duties and functions under this Act, or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties or becomes physically or mentally 5 incapacitated for performing his duties, the State Government may, after giving the Pramukh or such Up-Pramukh as the case may be, a reasonable opportunity for explanation and after consulting the Adhyaksha of the Zila Panchayat concerned in the matter and taking into consideration his opinion, if receive within thirty days from the date of the despatch of the communication for such consultation, by order, remove such Pramukh or Up- Pramukh, as the case may be, from office, and such order shall be final and not open to be questioned in a Court of law : Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pramukh or Up-Pramukh is prima facie found to have committed financial and other irregularities, such Pramukh or Up-Pramukh 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 elected members of the Kshetra Panchayat appointed in this behalf by the State Government. (2) A Pramukh or Up-Pramukh, removed from his office under this section, shall not be eligible for re- election as Pramukh or Up-Pramukh for a period of three years from the date of his removal.]” Broadly, the aforesaid provision prescribes as to how a “Pramukh” or a “Up-Pramukh” of a “Kshettra Panchayat” can be removed. Nevertheless, since these are long drawn process, the legislature has been very cautious to provide a proviso to this Section, which has an important bearing in this case. According to the proviso, if in an enquiry held by an 6 authorized person it has been prima facie found that the “Pramukh” or the “Up-Pramukh”, as the case might be, has committed financial and other irregularities then the financial and administrative powers of such a “Pramukh” or “Up- Pramukh” shall be ceased and will be returned to him when after he has been exonerated of the charges in the final enquiry. Meanwhile, these financial and administrative powers are to be exercised and performed by a committee consisting of three elected members of the same “Kshettra Panchayat” appointed in this behalf by the State Government. This proviso has an immense bearing on the proper administration of “Kshettra Panchayat” in as much as in a given contingency it does take away the administrative and financial powers from a democratically elected “Pramukh” (or the “Up-Pramukh”, as the case might be) but then these powers are not given to a bureaucrat or to a Government official but to the members of the same “Kshettra Panchayat”. In other words, there is no violation of any democratic norms here. This proviso, of which we are presently concerned, has to be read with the Rules known as the Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, Up-Pramukhs, Adhyakshas and Upadhyakshas) Enquiry Rules, 1997. Rules 3 and 4 of the said Rules have already been referred to above. Rule 5 which is also important reads as follows : “5. 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, that an enquiry should be held against a Pramukh or Up- Pramukh under Section 16 or against an Adhyaksha or Upadhyaksha under Section 29, it shall, by an order, appoint an officer to hold the enquiry, who shall not be below the rank of the District Magistrate in the case of an enquiry under Section 16, and not 7 below the rank of a Commissioner in the case of an enquiry under Section 29.” The broad facts of the present case are that a member of a “Kshettra Panchayat” filed a complaint against the Chairman of “Kshettra Panchayat” which is the present respondent no. 3 and consequently the State Government after receiving such a complaint instituted a preliminary enquiry to see as to whether there is any substance in a complaint or it is entirely frivolous. The State Government appoints an enquiry officer which under the Rule 4 is the Additional District Magistrate or an officer above this rank. There are seven charges against respondent no. 3. The enquiry officer, in his preliminary enquiry finds that charge nos. 5 and 6 are prima facie found to be correct and says so in his report. Charge no. 5 against respondent no. 3 was that he had committed irregularities in construction of a project and in the preliminary enquiry it was found that there are 6 to 7 workers who were working on a project of the “Panchayat” on certain given dates between 16.7.2006 to 31.7.2006 and on the same dates they were also shown to have worked on another project of this “Panchayat”. Therefore, there was apparently a financial irregularity as wages which have been shown to be given to two set of persons have actually been given to only one. Charge no. 6 was also to the effect that certain persons who were employed for a project did not deserve to be so appointed. Be that as it may, the enquiry officer submits an enquiry report holding prima facie respondent no. 3 guilty of these charges. The contention of the petitioner was that once it has clearly come out in a preliminary enquiry that there are financial and other irregularities against the incumbent, the provision of Section 16 immediately comes into play and the 8 Government had no option but to divest such a Chairman from his financial and administrative powers till he is exonerated of the charges in the final enquiry. It is for this reason, the petitioner had filed the earlier writ petition, a reference of which has already been made above and the consequence therein. All the same, the contention of the petitioner now is that instead of acting upon mandatory provision to proviso to Section 16 of the Act, the State Government vide the impugned order has held that no charges have been found proved against respondent no. 3 and, therefore, all proceedings against him are dropped. The petitioner asserts that this is clearly illegal. Firstly, as it is not necessary in a preliminary enquiry that charges should be proved. The only requirement of a preliminary enquiry, under the Rules referred above, is prima facie the enquiry officer should be satisfied that the charges are made out. Another contention of the petitioner is that since the report of the preliminary enquiry which is before this Court clearly states that certain charges have been prima facie proved against respondent no. 3 which amounts to financial and administrative irregularities, the Government had no option but to cease the financial and administrative power of respondent no. 3 and give the same powers to a committee, as envisaged in the proviso to Section 16 of the Act. During the course of argument, it has also transpired that when the preliminary enquiry report was submitted before the Secretary, Panchayat Raj the Secretary, Panchayat Raj vide his letter dated 4.11.2008 had in fact sought clarification from the enquiry officer as the Government was not clear as to whether any prima facie charges are made out against respondent no. 3 or not. This enquiry officer in reply 9 to the said letter vide his letter dated 12.12.2008 clarified that prima facie charges are made out against respondent no. 3 on charge no. 5 and 6. Once the enquiry officer has categorically stated that a charge is made out against the Chairman and even re-asserts his position on a clarification sought by the Government, there was no option for the Government but to have divested respondent no. 3 from its financial and administrative powers. Learned senior counsel for respondent no. 3 Mr. U.K. Uniyal, on the other hand, argues that firstly the charges are not prima facie proved against respondent no. 3. Moreover, in the present case Section 16 of the Act does not even come into play and since Section 16 has not come to operate, there is no question of the proviso to Section 16 being come into play in as much as the Government vide the impugned order dated 15.1.2009 has already decided to drop the proceedings against respondent no. 3. The argument of the learned counsel rests on his interpretation of Rule 4 and 5 of the Rules. Sri U.K. Uniyal, learned senior counsel for respondent no. 3 contends that on receiving the complaint under Rule 3 of the Rules, the State Government may or may not institute a preliminary enquiry. All the same, since in the present case it thought to do so and an enquiry report has come, this report will ipso facto not mean that Section 16 of the Act has come into play but it has first to be examined by the Government under Rule 5 of the Rules, which has already referred above. Learned senior counsel for respondent no. 3 contends that in case the State Government is of the opinion that there is no ground for proceeding against respondent no. 3, as in the present case, then it is within the powers of the State Government to drop the proceedings. According to the learned senior counsel Sri U.K. Uniyal, the charges have been dropped by the Government in exercise of its powers under Rule 5 and, 10 therefore, Section 16 of the Act has never come into play. The proviso to Section 16 would only come into play once the Government has taken a conscious decision to go ahead with the final enquiry under Section 16 i.e. for removal of respondent no. 3 and if in that enquiry a prima facie finding is there against respondent no. 3 only then he will be divested of his financial and administrative powers. These arguments of the learned senior counsel for respondent no. 3 Sri U.K. Uniyal are absolutely misconceived. Rule 4 and 5 are nothing but are merely a procedure to the substantive law which is given under Section 16 of the Act. The proviso to Section 16 leaves no room for any kind of doubt that if in a preliminary enquiry there is a finding of financial or other irregularities, the State Government shall take away the administrative and financial powers of such a “Pramukh” and give it to a committee till he is exonerated of the charges in the final enquiry. Moreover, there is another aspect to this matter. The enquiry officer in the preliminary enquiry has also suggested that in the present case a final enquiry must be made. Therefore, reading Rule 4 and Rule 5 of the Rules in the light of Section 16 of the Act makes it abundantly clear that the Government had no option under the circumstances but to proceed with the final enquiry under Section 16 of the Act against respondent no. 3 and till respondent no. 3 is exonerated of the charges, the financial and administrative powers of respondent no. 3 are liable to be ceased and to be given to a committee. This has been the view of the Division Bench of this Court in the case of Smt. Ramesho Devi v. Rao Ali Bahadur & others in Special Appeal No. 60 of 2008 where considering a para materia provision of the Uttar Pradesh [Kshettra Panchayats and Zila Panchayats] Adhiniyam, 1961 i.e. Section 29 which is relating 11 to an “Adhyaksha” of a “Zila Panchayat”, the Court has stated as follows : “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 function 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.” As such, this Court is of the opinion that the order dated 15.1.2009 (annexure no. 7 to the writ petition) is absolutely illegal and is in violation of the Act as well as Rules. The writ petition is liable to be allowed and it is presently being allowed with the direction to the State Government that final enquiry must be completed against respondent no. 3 under Section 16 of the Act as expeditiously as possible without any further delay. It is further directed that respondent nos. 1 and 2 shall immediately proceed with Section 16 of the Uttar Pradesh [Kshettra Panchayats and Zila Panchayats] Adhiniyam, 1961 and constitute an enquiry as envisaged under the aforesaid Act and till such an enquiry is completed and till respondent no. 3 is exonerated of the charges against him, the financial and administrative powers of the “Kshettra Panchayat” shall be given by the Government to a Committee of three members of the “Kshettra Panchayat”, as given under aforesaid proviso 12 to Section 16 of the Uttar Pradesh [Kshettra Panchayats and Zila Panchayats] Adhiniyam, 1961. With these observations writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 17.12.2009 Avneet