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

- **Citation:** (2005) 4 ILRA 1104
- **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-40544
- **Pages:** 6

## Headnote

U.P. Panchayat Raj Rules-1946-r-256readwith
Punchayat
Raj
Act-1947Section-95 (1)(g)-ceasor of financial of
administrative power of Pradhan-enquiry
report-requirement that the lapes on the
part of Pradhan-was deliberate and for
deriving personal benifit-democratically
elected Pradhan can not be removed
from
the
office-at
discreation
of
administrative authorities-order 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
4 All] Bhagwan Deen Verma V. State of U.P. and others
1105
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.

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) Sub-section 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) Subsection 3 could be passed. Loss caused to
the Gram Panchayat because of some
mistake or negligence of the Pradhan,
which is neither deliberate nor interided
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 circumstances 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

1104 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
therefore, in absence of other relevant
pleadings and proof, in connection of
eligibility, qualification, discharge of
similar
and
identical
duties
and
responsibilities merely because some how
he managed to work on the post of driver
can not entitle him to claim the same pay
scale as admissible to the post of driver.
The case law upon which the learned
counsel for petitioner has placed reliance
in support of his case namely R.K. Dubey
Vs. State of U.P. and others, 2000 (2)
E.S.C. 785 (Alld.) is distinguishable on
facts hence can be of no assistance to the
case of petitioner. Similarly in Gujrat
Agriculture University Vs. Rathod,
Labhu Bechar & others A.I.R. 2001
S.C. 705 a total altogether different
scheme of regularisation of the daily
wages workers and emoluments payable
to them were under consideration before
Hon'ble Apex Court, therefore, the same
is also distinguishable on facts and cannot
be any assistance to the case of petitioner.
Likewise the case of Madhav Prasad
Dubey 1999(2) E.S.C. 1878 (All.) relied
by learned counsel for petitioner has no
application to the facts case of petitioner.

35. In view of aforesaid discussions,
I am of the considered opinion that
petitioner has hardly made out any case so
as to call for any interference of this court
under Article 226 of the Constitution of
India. In the result writ petition fails and
dismissed.

36. However I would like to observe
that dismissal of this writ petition will not
prevent
the
competent
appointing
authority to relax the qualification of the
post of driver having regard to the period
of services rendered by the petitioner as
driver on casual basis while permitting
him in the next selection on the post of
driver if the selection is to be held in near
future against available vacancies.

37. There shall be no order as to
costs.
---------
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 ...Respondents

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

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

U.P. Panchayat Raj Rules-1946-r-256readwith
Punchayat
Raj
Act-1947Section-95 (1)(g)-ceasor of financial of
administrative power of Pradhan-enquiry
report-requirement that the lapes on the
part of Pradhan-was deliberate and for
deriving personal benifit-democratically
elected Pradhan can not be removed
from
the
office-at
discreation
of
administrative authorities-order 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
4 All] Bhagwan Deen Verma V. State of U.P. and others
1105
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.

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) Sub-section 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) Subsection 3 could be passed. Loss caused to
the Gram Panchayat because of some
mistake or negligence of the Pradhan,
which is neither deliberate nor interided
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 circumstances 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
Advocate no 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 son 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 no 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
1106 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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 can not re-appreciate the evidence
and cannot upset the conclusion arrived a
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 esa lgk;d vfHk;Urk Mh0vkj0Mh0,0 }kjk fd;s x;s
ewY;kadu eq0 14786-00 :i;s dks ?kVkus ds mijkUr :i;s
6580-00 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;kadu10616-00 :i;s ik;k x;k tcfd dk;Z dh dqy
ykxr 12616-00 :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
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
Member
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
4 All] Bhagwan Deen Verma V. State of U.P. and others
1107

9. This Court in the case of Ishwar
Dayal Vs. District Magistrate, Manipuri
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 the person
concerned to derive benefit by misusing
his official position. In the absence of any
finding that the petitioner derived any
benefit, any irregularity 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:

"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 Pradhan,
Up-Pradhan, Member, Officer or s
ervant 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, Up-Pradhan, 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 member 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 absent 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:
1108 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
(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 written 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.

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 deliberate nor
interided 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
mention
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.
4 All] Billar V. State of U.P. and another
1109

16.

In
the
totality
of
the
circumstances 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.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2005

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Misc. Application No. 17043 of
2005

Billar

...Applicant
Versus
State of U.P. & another ..Opposite Parties

Counsel for the Applicant:
Sri K.S. Tiwari
Sri Amit Kumar Dixit

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

Code of Criminal Procedure-Section-311
Summoning Order-session judge during
course
of
trial
summoned
the
Investigation
officer-by
invoking
inherent power to reach to the truthheld-none can prevent the court from
exercising such power-application u/s
482 on the part of accused-liable to be
dismissed.

Held: Para 7
Moreover, second part of Section 311
Cr.P.C. empowers the court to summon
or recall or re-examine any person/
witness if his evidence appears to be
essential for just decision of the case.
Such a power is inherent in a criminal
court for the reason that in the criminal
court every effort is made to reach to the
truth. It appears that learned Sessions
Judge
felt
necessity
to
recall
the
Investigating Officer for re-examination.
In my opinion, none of the parties can
agitate this matter and they cannot
prevent the court from exercising its
power
under
Section
311
Cr.P.C.
Ultimately, it is the responsibility of the
courts to do justice and every efforts
should be made by the court to separate
this chaff from grain.
Case law discussed:
2000 (40) ACC-311

(Delivered by Hon'ble Mukteshwar Prasad, J.)

1. Heard learned counsel for the
applicant, learned A.G.A. and perused the
record including orders of the learned
Sessions Judge, Banda dated 26.7.2005
and 30.9.2005.

2. It is submitted that learned
Sessions Judge vide his order dated
26.7.2005
summoned
P.W.
6
Siraj
Ahmad, Investigating Officer of the case
and Constable, who had made entry in the
G.D. on 6.8.2003. This order was passed
by the Sessions Judge in exercise of his
powers under Section 311 Cr.P.C. which
provides that any criminal court may at
any stage of any inquiry, trial or other
proceedings under this Code, summon
any person as a witness, or examine any
person
in
attendance,
though
not
summoned as a witness, or recall and reexamine any person already examined;
and the court shall summon and examine
or recall and re-examine any such person