# Bhagwan Deen Verma v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-06
- **Case number:** Civil Misc. Writ Petition No. 33954 of 2005
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-deen-verma-v-state-of-u-p-and-others-40512
- **Pages:** 5

## Headnote

Rules
1946-Rule-256
readwith
Panchayat
Raj
Act,
1947-
Section 95(1)(g) ceasure of financial and
administrative power of Pradhan-enquiry
report-short of requirement that the
lapes
on
the
part
of
Pradhan-was
deliberate and for deriving personal
benefit democratically elected Pradhan
cannot be removed from its office at the
dictates of administrative authoritiesorder
taking
the
financial
power
quashed.
Held: Para 12, 13, 14 & 16
Under the said rule 256 any loss caused
to the Gram Panchayat due to negligence
or misconduct on the part of the Pradhan
could be the basis for surcharge being
imposed so as to compensate the loss
caused to the Gram Panchayat or its
property. The provision contained in rule
256 must necessarily be harmonized
with Section 95 (1)(g) Sub-section 3 and
read in light of the Division Bench
judgment, referred to above.

Loss caused to the Gram Panchayat
because of some mistake or negligence
of
the
Pradhan,
which
is
neither
deliberate nor intended for any personal
benefit, has been taken care of by rule
256 of the Panchayat Raj Rules and in
such cases order as contemplated by rule
256 alone is required to be passed.

It is, therefore, necessary for removal of
the elected Pradhan under Section 95
(1)(g) that a finding should be recorded
that
the
Pradhan
has
deliberately
misused his official position so as to
derive benefit by his act and in absence
of a finding so recorded, the order of
removal cannot be sustained.

In the totality of the circumstance as
borne out from record of the petition, the
order dated 16.4.2005, passed by the
District Magistrate, Hamirpur cannot be
legally sustained and is hereby quashed.
However, this order shall not prejudice
the recovery of the loss caused to the
Gram Panchayat on the basis of the
assessment made during the enquiry
proceedings in accordance with rule 256
of the Panchayat Raj Rules against the
Petitioner.
Case law discussed:
1978 ALJ 1367

## Text

2 All] Bhagwan Deen Verma V. State of U.P. and others 653
Protection Force, Baroda House, New
Delhi are hereby quashed and the matter
is sent back to the disciplinary authority
for considering and passing a reasoned
and speaking order afresh in the light of
the above observations and in accordance
with law and procedure after affording
full opportunity to the petitioner within a
period of three months from the date a
certified copy of this order is placed
before
the
disciplinary
authority
concerned by the petitioner.

The writ petition is allowed to the
extent indicated above. No order as to
costs.

 Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2005

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 33954 of 2005

Bhagwan Deen Verma
...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri P.N. Saxena
Sri Amit Saxena

Counsel for the Respondents:
Sri A.N. Verma
S.C.

Panchayat
Raj
Rules
1946-Rule-256
readwith
Panchayat
Raj
Act,
1947-
Section 95(1)(g) ceasure of financial and
administrative power of Pradhan-enquiry
report-short of requirement that the
lapes
on
the
part
of
Pradhan-was
deliberate and for deriving personal
benefit democratically elected Pradhan
cannot be removed from its office at the
dictates of administrative authoritiesorder
taking
the
financial
power
quashed.
Held: Para 12, 13, 14 & 16
Under the said rule 256 any loss caused
to the Gram Panchayat due to negligence
or misconduct on the part of the Pradhan
could be the basis for surcharge being
imposed so as to compensate the loss
caused to the Gram Panchayat or its
property. The provision contained in rule
256 must necessarily be harmonized
with Section 95 (1)(g) Sub-section 3 and
read in light of the Division Bench
judgment, referred to above.

Loss caused to the Gram Panchayat
because of some mistake or negligence
of
the
Pradhan,
which
is
neither
deliberate nor intended for any personal
benefit, has been taken care of by rule
256 of the Panchayat Raj Rules and in
such cases order as contemplated by rule
256 alone is required to be passed.

It is, therefore, necessary for removal of
the elected Pradhan under Section 95
(1)(g) that a finding should be recorded
that
the
Pradhan
has
deliberately
misused his official position so as to
derive benefit by his act and in absence
of a finding so recorded, the order of
removal cannot be sustained.

In the totality of the circumstance as
borne out from record of the petition, the
order dated 16.4.2005, passed by the
District Magistrate, Hamirpur cannot be
legally sustained and is hereby quashed.
However, this order shall not prejudice
the recovery of the loss caused to the
Gram Panchayat on the basis of the
assessment made during the enquiry
proceedings in accordance with rule 256
of the Panchayat Raj Rules against the
Petitioner.
Case law discussed:
1978 ALJ 1367

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard P.N. Saxena Senior
Advocate, assisted by Sri Amit Saxena
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
654
Advocate on behalf of the petitioner,
Standing Counsel on behalf of respondent
nos. 1 to 3 and Sri A.N. Verma Advocate
on behalf of respondent no. 4. Parties
agree that the writ petition may be finally
decided at this stage itself.

2. Petitioner Bhagwan Deen Verma
is the elected Pradhan of Gram Panchayat
Artara,
Block
Maudaha,
District
Hamirpur. The District Magistrate vide
order dated 31st March, 2004 ceased the
financial and administrative powers of the
Pradhan under Section 95 (1)(g) proviso
of the Panchayat Raj Act. Feeling
aggrieved by the said order, petitioner had
filed Writ Petition No. 14474 of 2004.
The writ petition so filed was disposed of
vide judgment and order dated 1.3.2005
with
a
direction
that
the
District
Magistrate may pass fresh reasoned order
after
considering
the reply of the
petitioner.

3. It appears that during this period
Project
Director,
District
Rural
Development Authority was appointed as
final enquiry officer. The said enquiry
officer submitted his report on 4.9.2004.
The District Magistrate on receipt of the
said report, issued a fresh show cause
notice dated 16.12.2004 to the petitioner
to show cause as to why he may not be
removed from the office of Pradhan in
view of the charges found proved. The
District Magistrate, after considering the
explanation furnished by the petitioner, by
means of the order dated 16.4.2005 has
removed the petitioner from the office of
the Pradhan and has further directed for
recovery of sum of Rs.4,290/- against the
petitioner. The order dated 16.4.2005 is
under challenged in the present writ
petition.

4. On behalf of the petitioner it is
contended that the order passed by the
District
Magistrate
is
legally
not
sustainable inasmuch as the charges even
if found proved against the petitioner are
not of such nature so as to justify the
removal of the elected Pradhan under
Section 95 (1)(g) of the Panchayat Raj
Act. The petitioner has also challenged
the finding recorded in respect of the
individual charge on various fact and
grounds.

5. So far as the challenge to the
finding recorded in respect of individual
charges by the District Magistrate on the
basis of the enquiry proceedings against
the petitioner is concerned, this Court
under Article 226 of the Constitution of
India cannot re-appreciate the evidence
and cannot upset the conclusion arrived at
by the District Magistrate on such reappreciation of evidence. However, it is
worthwhile to reproduce the finding
recorded in respect of the charges against
the petitioner in respect of the charge nos.
1 and 2, which are quoted herein below:

Charge No. 1."bl izdkj dwi ejEer esa iz/kku }kjk
n'kkZ;h x;h dk;Z dh dqy ykxr eq0 21366-00 :i;s ds
dk;Z eas lgk;d vfHk;Urk Mh0vkj0Mh0,0 }kjk fd;s x;s
ewY;kadu eq0 14786-00 :i;s dks ?kVkus ds mijkUr :i;s
6580 dk nq:i;ksx ik;k x;kA Li"V gS fd dk;Z dh xq.koRrk
Hkh izHkkfor gq;h bl izdkj vkjksi la[;k&1 iw.kZr;k fl)
ik;k x;kA"
Charge No. 2. "iz/kku }kjk fn;s x;s Li"Vhdj.k ls
mijksDrkuqlkj lger ugha gw¡ bl lEcU/k esa tkap vf/kdkjh
}kjk djk;k x;k ewY;kadu ds vuqlkj [kMatk dh dqy
ewY;kadu 10916-00 :i;s ik;k x;k tcfd dk;Z dh dqy
ykxr 12916-00 :i;s n'kkZ;h x;h gSA bl izdkj eq0
2000-00 :i;s dk Li"V nq:i;ksx@viO;; ds nks"kh ik;s
x;sA"

6. So far as the charge no. 3 is
concerned, the same is general in nature
namely in respect of construction work in
2 All] Bhagwan Deen Verma V. State of U.P. and others 655
the Gram Panchayat, the petitioner has
acted in violation of the Government
Orders and rules and in respect of said
charge only a general finding has been
recorded that since the petitioner has not
submitted reply to the same, he being the
Pradhan cannot violate the rules.

7. In view of the finding so
recorded, the issue which is up for
consideration is as to whether the order of
removal of Pradhan can be justified under
the provisions of Section 95 (1)(g) of the
U.P. Panchayat Raj (Removal of Pradhan,
Up-Pradhan
and
Members)
Enquiry
Rules, 1997 or not.

8. For appreciating the aforesaid
issue it would be worthwhile to refer to
Section 95 (1)(g). It may be stated that in
the facts of the present case the order
impugned in the present writ petition can
at best be referable to Clause 95(1)(g)
Sub-section (iii), which reads as follows:

95(1)(g)- Remove a Pradhan, UpPradhan or meber of a Gram Panchayat
or
a
Joint
Committee
or
Bhumi
Prabandhak Samiti, or a Panch, Sahayak
Sarpanch or Sarpanch of a Nyaya
Panchayat if he-
(i) ................
(ii) ...............
(iii) has abused his position as such
or has persistently failed to perform the
duties imposed by this Act or rules made
thereunder or his continuance as such is
not desirable in public interest, or

9. This Court in the case of Ishwar
Dayal Vs. District Magistrate, Mainpuri
and others, reported in 1978 All. L.J.
1367, had an occasion to consider the
expression `abuse of position' as used in
the said sub-section and in paragraph 4 it
has been held as follows:
"......The
expression
"abuse
of
position"
contemplates
positive
and
deliberate action on the part of person
concerned to derive benefit by misusing
his official position. In the absence of any
finding that the petitioner derived any
benefit, any irruglarity committed by him
could not amount to abuse of his
position."

10. In view of the aforesaid Division
Bench judgment of this court, for
establishing that the Pradhan has abused
his position as such, it is but necessary to
establish that the Pradhan has derived
benefit by misusing his official position
and in absence thereof any irregularity
committed by the Pradhan would not
amount to abuse of his official position.
The conclusion arrived at by the District
Magistrate in the impugned order are
necessarily to be adjudged in the light of
the aforesaid interpretation placed by the
Division Bench of this Court on the
language of Sub-section III of Section 19
(1)(g). Examining on the touchstone of
the
aforesaid
legal
proposition,
the
impugned order falls short of the
requirements,
inasmuch
as
there
is
absolutely no allegation that the lapse on
the part of the Pradhan was deliberate and
for the purposes of deriving benefit,
occasioned by misuse of the official
position. There is absolutely no allegation
of any benefit having been derived by the
Pradhan in the facts of the present case.

11. Reference at this stage may also
be had to the provisions of Rule 256 of
the Panchayat Raj Rules, 1946, which
read as follows:
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
656
"256.(1) In any case where the Chief
audit Officer, Co-operative Societies and
Panchayats, considers that there has been
a loss, waste or misuse of any money or
other property belonging to a Gram
Sabha as a direct consequence of the
negligence or misconduct of a Padhan,
Up-Pradhan, Member, Officer or servant
of the Gram Panchayat, he may call upon
the
Pradhan, Up-Pradhan, Member,
Officer or servant, as the case may be, to
explain in writing why such Pradhan, UpPradhan, 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 Gram
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 meber of the
Gram Panchayat shall be called for
through the District Magistrate and from
the officer or servant through the District
Panchayat Raj Officer:

Provided also that no explanation
shall be called for from any member who
is recorded in the minutes of the Gram
Panchayats or any of its committee as
having been absence from the meeting at
which the expenditure objected to was
sanctioned or who voted against such
expenditure.
(2) Without prejudice to the generality of
the provisions contained in sub-rule (1)
the Chief Audit Officer, Co-operative
Societies and Panchayats, 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 there-under;
(b) where loss has been caused to the
Gram Sabha by acceptance of a
higher
tender
without
sufficient
reasons in writing;
(c) where any sum due to the Gram
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
Gram Sabha by neglect in realizing
its dues; or
(e) where loss has been caused to the
funds or other property of the Gram
Sabha
on account of want of
reasonable care for the custody of
such money or property.

(3) On the writing request of the Pradhan,
Up-Pradhan, Member, Officer or servant
from whom an explanation has been
called for, the Gram Panchayat shall give
him necessary facilities for inspection of
the records 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."

12. Under the said rule 256 any loss
caused to the Gram Panchayat due to
negligence or misconduct on the part of
the Pradhan could be the basis for
surcharge being imposed so as to
compensate the loss caused to the Gram
Panchayat or its property. The provision
contained in rule 256 must necessarily be
harmonized with Section 95 (1)(g) Subsection 3 and read in light of the Division
Bench judgment, referred to above.
2 All] Smt. Geeta Tiwari V. Kashinath and another 657

13. It may be emphasized that
democratically elected Pradhan should not
be removed from the office at the dictates
of the administrative authorities, nor
every negligence or mistake on his part
can be made a foundation for exercise of
power under Section 95 (1)(g) Subsection 3. The provision of Section
95(1)(g) must necessarily be construed
strictly and it is only in cases of positive
and deliberate action of the Pradhan
concerned, to derive personal benefit by
misusing his official position that an order
for his removal under Section 95(1)(g)
Sub-section 3 could be passed. Loss
caused to the Gram Panchayat because of
some mistake or negligence of the
Pradhan, which is neither delibrate nor
intended for any personal benefit, has
been taken care of by rule 256 of the
Panchayat Raj Rules and in such cases
order as contemplated by rule 256 alone is
required to be passed.

14. It is, therefore, necessary for
removal of the elected Pradhan under
Section 95 (1)(g) that a finding should be
recorded that the Pradhan has deliberately
misused his official position so as to
derive benefit by his act and in absence of
a finding so recorded, the order of
removal cannot be sustained.

15. It is further worthwhile to
mentioned that the statement in the
impugned order that the elected Pradhan
has misappropriated government money,
is factually incorrect inasmuch as there
was no such allegation nor any facts in
that regard have been noticed in the
impugned order.

16.

In
the
totality
of
the
circumstance as borne out from record of
the petition, the order dated 16.4.2005,
passed
by
the
District
Magistrate,
Hamirpur cannot be legally sustained and
is hereby quashed. However, this order
shall not prejudice the recovery of the loss
caused to the Gram Panchayat on the
basis of the assessment made during the
enquiry proceedings in accordance with
rule 256 of the Panchayat Raj Rules
against the Petitioner.

17. In view of the aforesaid writ
petition is allowed. Petition Allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTAVA, J.

Criminal Misc. Application No. 8063 of
1997

Smt. Geeta Tiwari

...Applicant
Versus
Kashinath & another ...Opposite Parties

Counsel for the Applicant:
Sri V.C. Tiwari
Sri Ashwini Kumar Awasthi
Sri Manish Tiwari

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 482applicant filed complaint-alleging the
offence committed by the opposite Party
No. 2-who in its official capacity replied
the Quarry make by the applicant for non
Payment of the salary of her husbandand also for not making visit to her
company for last four months-Courts
below held the letter written under
official capacity in bonafide mannerhence no offence made out-accordingly
complaint rejected at the same time
passed
an
order
of
acquittal-heldimpugned Order suffer no illegality or