# Nanhey v. State of U.P. and others

- **Citation:** (2010) 2 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-03
- **Case number:** Civil Misc. Writ Petition No. 2476 of 2009
- **Bench:** V.K. Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nanhey-v-state-of-u-p-and-others-41682
- **Pages:** 14

## Headnote

U.P. Panchayat Raj Act.,1947-Section95(i)(g)-Removal of Village Pradhanallegation of contesting the election by
changing his name and father's name to
suppress the pendency of criminal cases
708 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
relating to moral turpitude- on Show
Cause Notice no proper reply submitted
even
before
this
court-held-removal
order-proper warrant no interference.

Held: Para 11

Facts and circumstance clearly disclose
that it was deliberate act on the part of
the petitioner in getting his name
changed in the electoral roll, inasmuch
as he was conscious of this fact that two
cases which are pending against him
with
same
name
involved
moral
turpitude
and
in
such
a
situation
nomination would not be entertained.
Petitioner in well calculated manner, got
his name changed and contested the
election. Once said fact came to the
knowledge and notice of the authority
concerned, then after recording finding
that petitioner is involved in cases
involving moral turpitude, then in such a
situation
District
Magistrate
formed
opinion.
Petitioner
has
got
no
explanation to furnish qua two criminal
cases pending against under Section 409
I.P.C. him and even before this court no
attempt or endeavour has been made to
demonstrate that said two criminal case
wherein he has been charged are cases
not involving moral turpitude.
Case Law discussed:
1999 RD 246

## Text

_Characters 0–39,881 of 44,337. This is a partial read: ask again with offset=39881 for what follows._

2 All] Nanhey V State of U.P. and others
707

9. Learned counsel for the petitioner
submits that the acquittal of the petitioner
entitles him for employment. It is submitted
that the impact of the acquittal order is that
the petitioner was never involved in any
criminal case and even otherwise the
petitioner had filed an affidavit before the
authorities disclosing his involvement. He
submits that this honest disclosure was in
accordance with rules and keeping in view
the subsequent acquittal the claim of the
petitioner deserves to be reconsidered in the
light of the same.

10. Learned Standing Counsel on the
other hand contends that the petitioner had
an antecedent of being involved in a
criminal case and therefore it cannot be said
that the impugned order is erroneous. He
further submits that the order was passed on
the basis of the material that was available
and in the absence of the order of acquittal it
cannot be said that the order suffers from
any infirmity.

11. Having heard learned counsel for
the parties, the contention of the learned
Standing Counsel to the effect that the order
of acquittal was not in existence when the
impugned order was passed appears to be
correct.

12. However, in view of the
subsequent development which indicates an
advantage in favour of the petitioner, in my
opinion,
requires
the
matter
to
be
reconsidered in the light of the order of
acquittal. The petitioner after having been
acquitted will be presumed to have never
been involved in any criminal case. A
perusal of the judgment indicates that it was
a clean acquittal. The stain having been
erased on a judicial verdict by the
competent court washes out the effect of
involvement. This has to be viewed from
another angle. A person if falsely implicated
runs the risk of losing the opportunity to get
a job and it is here that injustice should not
be allowed to dislodge an otherwise valid
claim.

13.

Accordingly,
the
Senior
Superintendent of Police is required to
reconsider the candidature of the applicant
and as such for the said purpose the order
impugned dated 5th January, 2007 is
quashed. The Senior Superintendent of
Police will pass a fresh order keeping in
view the observations made hereinabove
within eight weeks from the date of
presentation of a certified copy of this order
before him.

14. The writ petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.07.2010

BEFORE
THE HON'BLE V.K. SHUKLA, J

Civil Misc. Writ Petition No. 2476 of 2009

Nanhey

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri M.A. Qadeer
Sri Iqbal Ahmad Siddiqui

Counsel for the Respondents:
Sri P.S. Baghel
Sri B.K. Pandey
S.C.

U.P. Panchayat Raj Act.,1947-Section95(i)(g)-Removal of Village Pradhanallegation of contesting the election by
changing his name and father's name to
suppress the pendency of criminal cases
708 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
relating to moral turpitude- on Show
Cause Notice no proper reply submitted
even
before
this
court-held-removal
order-proper warrant no interference.

Held: Para 11

Facts and circumstance clearly disclose
that it was deliberate act on the part of
the petitioner in getting his name
changed in the electoral roll, inasmuch
as he was conscious of this fact that two
cases which are pending against him
with
same
name
involved
moral
turpitude
and
in
such
a
situation
nomination would not be entertained.
Petitioner in well calculated manner, got
his name changed and contested the
election. Once said fact came to the
knowledge and notice of the authority
concerned, then after recording finding
that petitioner is involved in cases
involving moral turpitude, then in such a
situation
District
Magistrate
formed
opinion.
Petitioner
has
got
no
explanation to furnish qua two criminal
cases pending against under Section 409
I.P.C. him and even before this court no
attempt or endeavour has been made to
demonstrate that said two criminal case
wherein he has been charged are cases
not involving moral turpitude.
Case Law discussed:
1999 RD 246

(Delivered by Hon'ble V.K. Shukla, J.)

1. Present writ petition has been
filed by the petitioner questioning the
validity of the action taken by the District
Magistrate, Rampur, respondent no.2
proceeding
to
pass
order
directing
removal of the petitioner from the office
of the Pradhan in exercise of authority of
external control, vested under Section
95(i)(g) of U.P. Panchayat Raj Act, 1947.

2. Brief background of the case is
that petitioner claims that he is permanent
resident of village Dadhiyal, Mustakham,
Tehsil swar, District Rampur. Petitioner
claims that his original name is Gulam
Hussain alias Nanhey son of Shahabuddin
alias Lalla and he became famous with his
alias
name
Nanhey
son
of
Lalla.
Petitioner submits that on 23.4.2005
petitioner filed an application before the
Sub Divisional Officer for entering his
name as Nanhey son of Lalla in place of
Gulam Hussain son of Shahabuddin in the
voter list as well as in revenue record of
his agricultural land. Petitioner submits
that said prayer made, was accepted.
Petitioner has stated that he contested the
election of Pradhan with the name of
Nanhey son of Lalla and won the said
election. Petitioner stated that on account
of party politics and on account of having
proximity with different political boss
namely Sri Azam Khan, first information
report had been lodged against him being
Case Crime No. 588 of 2006, under
Sections 420,467,468 and 471 I.P.C. on
account of the fact that petitioner has
changed his name. In the said criminal
case, charge sheet had been filed.
Thereafter, petitioner had filed Criminal
Misc. Application under section 482 Cr.
P.C. being Criminal Misc. Application
No. 12661 of 2008 wherein this court has
stayed the further proceeding therein.
Petitioner submits that Nawab Kazim Ali
Khan on account of political rivalry
written a letter to District Magistrate,
Rampur on 30.8.2008 mentioning therein
that he is sending Mr. Mohd. Farook in
relation to the fact that petitioner has
contested election by changing his name
and further against the petitioner various
criminal cases has been mentioned and as
such action be taken against the petitioner
in accordance with law. Petitioner submits
that thereafter Civil Misc. Writ Petition
No. 37951 of 2008 had been filed before
this court and this court therein as inquiry
2 All] Nanhey V State of U.P. and others
709
was not being concluded, proceeded to
pass
order
directing
the
District
Magistrate, Rampur to conclude the
inquiry into the matter after affording
opportunity of hearing to Pradhan of the
village. As the said order was not being
complied with within the time framed
provided for, in this background Civil
Misc. Contempt Petition No. 37337 of
2008 had been filed and this court on
24.10.2008
afforded
one
more
opportunity to District Magistrate to
comply with the order passed by this
court within period of three weeks from
the date of production of certified copy of
this order. Thereafter, District Magistrate
on 31.10.2008 issued show cause notice
to the petitioner mentioning therein that
petitioner had contested the election with
change name and further petitioner has
been made an accused in criminal cases,
which are still pending, as such as to why
action under Section 95(1)(g)(ii) of U.P.
Panchayat
Raj
Act,1947
be
not
undertaken. Petitioner after receiving the
said show cause notice, submitted his
reply on 10.11.2008. After the said reply
was submitted, District Panchayat Raj
Officer on 28.11.2008 appraised the
petitioner to submit reply along with
necessary details, as requisite particulars
were lacking and missing. Petitioner
submitted his reply and thereafter, District
Panchayt
Raj
Officer
made
recommendation
on
30.12.2008
on
5.12.2008 and said recommendation being
made, District Magistrate on 5.1.2009
proceeded to pass order of removal. At
this juncture present writ petition has been
filed.

3. Counter affidavit has been filed
on behalf of the State Government, short
counter affidavit has been filed on behalf
of the complainant in question Mohd.
Farook Azad.

4.

Supplementary
affidavit,
supplementary
counter
affidavit
and
rejoinder affidavit have also been filed.

5. After pleadings mentioned above,
have been exchanged, thereafter, present
writ petition has been taken up for final
hearing/disposal with the consent of the
parties.

6. Sri. M.A. Qadeer, Senior
Advocate, appearing with Sri Iqbal
Ahmad Siddiqui, Advocate contended
with vehemence that in the present case
entire proceedings undertaken against the
petitioner is unjustifiable, arbitrary and
unreasonable and prescribed procedure as
is provided for under Section 95(1)(g) of
U.P. Panchayat Raj Act, and the 1997
Rules has not at all been complied with
and as such order passed, is liable to be
quashed.

7. Countering the said submission,
learned Standing Counsel as well as Sri
B.K. Pandey, Advocate appearing on
behalf of the complainant on the other
hand contended that in the present case on
admitted
position,
deliberately
and
wilfully petitioner has tried to manipulate
things to his advantage and this is
undisputed position that he has been
charged with offence involving moral
turpitude, then in this background once
this is accepted position that charged
offence involves moral turpitude, and
reasonable opportunity has been afforded
to him, in such a situation, writ petition as
it has been framed and drawn deserves to
be dismissed.
710 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

In order to appreciate respective
argument, Section 95(1)(g) of U. P.
Panchayat Raj Act, 1947 is being
extracted below.

"U.P. Panchayat Raj Act, 1947

"95. Inspection.- (1) The State
Government may-

(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 -

(i) absent himself without sufficient
cause for more than three consecutive
meetings or sittings.

(ii) Refuses to Act or becomes
incapable of acting for any reason
whatsoever or if he is accused of or
charged for an offence involving moral
turpitude.

(iii) has abused his position as such
or has persistently failed to perform the
duties imposed by the Act or rules made
hereunder or his continuance as such is
not desirable in public interest, or

(iii-a) has taken the benefit of
reservation under sub-section (2) of
Section 11-A or sub-section (5) 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 the
Scheduled Castes, 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 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 and in such manner
as may be prescribed, a Pradhan or UpPradhan 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 final
enquiry be exercised and performed by a
Committee consisting of three members
of Gram Panchayhat appointed by the
State Government.

(gg) (***)

(h) (***)

Provided that

(i) no action shall be taken under
clause (f), clause (g) (***) except after
giving to the body or person concerned a
reasonable opportunity of showing cause
against the action proposed.

Rules, 1997 is also being extracted
below.:-

"The Uttar Pradesh Panchayat
Raj
(Removal
of
Pradhans,
UpPradhans
and
Members)
Enquiry
Rules, 1997
2 All] Nanhey V State of U.P. and others
711

3.
Procedure
relating
to
complaints.- (1) any person making
complaint against a Pradhan or UpPradhan 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
complainant's own affidavit in support
thereof 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 thereto 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.

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 an enquiry
should be held against a Pradhan or UpPradhan 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 subsection (1) of Section 95 of the Act and
by an order ask an Enquiry Officer, and
by an order ask an Enquiry Officer, other
than the Enquiry Officer nominated under
sub-rule (2) of Rule 4, to hold enquiry.

6. Procedure of the enquiry.-(1)
The substance of imputations, and a 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 hold 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
712 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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 inquire 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 has 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 he plea, sign the record and
obtain the signature of that person, 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 specified 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 an 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 office may appoint
any person as a presiding Officer to assist
him in conducting the inquiry:

Provided that a legal 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 92), 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 thereof to the authority in
whose
custody
or
possession
the
documents are kept, with a requisition for
the production of the documents by such
2 All] Nanhey V State of U.P. and others
713
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 authority
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 o
security of the State, it shall inform the
Inquiry officer accordingly and such
Inquiry Officer shall, on being so
informed, communicate the information
to the person against whom the inquiry is
being held and withdraw the requisition
made by him for the production or
discovery of documents.

(11) On the date fixed for enquiry,
the oral and documentary evidence by
which the articles of charge are proposed
to be proved shall be produced and the
witnesses shall be examined, by the
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 included in 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 be entitled to have if her
demands it, a copy of the list of further
evidence proposed to be produced and an
adjournment of 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 adjourned. 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- Now 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 defence is made orally,
it shall be recorded and the said person
shall be required to sign the record. In
either case, 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
714 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
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 crossexamination,
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, or permit them, or him, as the case
may be, to file written briefs of 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 o otherwise fails
or refuses to comply with the provisions
of this rule, the Inquiry officer may hold
the enquiry ex parte.

(18) Whenever Inquiry officer after
having heard and recorded the whole or
any part of the evidence in an enquiry,
ceases to exercise jurisdiction therein and
is succeeded by another Inquiry Officer,
the inquiry Officer so succeeding may act
on the evidence so recorded by his
predecessor or partly 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 recorded is necessary in the interest
of justice he may recall, examine, crossexamine and re-examine any such witness
as herein before provided.

7. Report of the inquiry officer.-
After the conclusion of the enquiry, the
Inquiry Officer shall prepare a report
which shall contain-

(a) the articles of charge and the
statement of the imputations;

(b) the defense of the person against
whom the enquiry has been held;

(c) the assessment of the evidence in
respect of each article of charge;

(d) the findings on each article of
charge and reasons therefor.

Explanation.- If in the opinion of the
Inquiry Officer the proceedings of the
enquiry establish any article of charge
different from the original articles of
charge, he may record his findings on
such article of charge.

Provided that the findings on such
article of charge shall not be recorded
unless the person against whom enquiry
has been held has either admitted the facts
on which such article of charge is based
or has had a reasonable opportunity of
defending himself against such article of
charge.

8. The Inquiry Officer shall conclude
the enquiry within six months from the
date of receipt of complaint and forward
2 All] Nanhey V State of U.P. and others
715
to State Government the records of the
enquiry, which shall include-

(a) the report prepared by him under
rule 7;

(b) the written statement of defence,
if any, or the person against whom
enquiry has been held;

(c)
the
oral
and
documentary
evidence produced during the course of
the enquiry;

(d) written briefs, if any, filed during
the course of the enquiry; and

(e) the order, if any, made by the
State Government and the Inquiry officer
in regard to the enquiry."

8. Under Chapter VII of the U.P.
Panchayat Raj Act, State Government has
been vested with the authority to remove
a Pradhan, Up-Pradhan or Members of
Gram Panchayat on account of the
activities carried out by Pradhan, UpPradhan or Members of Gram Panchayat
mentioned in sub-clauses (i) to (iv) of
Clause (g) of Sub-Section (1) of Section
95 of the U.P. Panchayat Raj Act. It has
also been provided therein to seize
financial as well as administrative powers
and functions of the aforementioned
persons, viz. Pradhan, Up-Pradhan or
Members of Gram Panchayat when in
enquiry held against such persons by such
person in such manner as may be
prescribed, a Pradhan or Up-Pradhan is
found to have committed financial and
other irregularities and then he has to face
formal enquiry. In exercise of powers
vested under Section 110 read with clause
(g) of sub-section (1) of Section 95 of the
U.P. Panchayat Raj Act, 1947, Rules have
been framed dealing with removal of
Pradhan, Up-Pradhan and Members. Rule
3 deals with procedure relating to
complaints. Rule 4 clearly provides that
the State Government on the receipt of
complaint or report referred to in Rule 3
or otherwise may 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. Enquiry Officer is thereafter
obliged to conduct preliminary enquiry as
expeditiously as possible and submit
report to the State Government. Rule 5
clearly provides that 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 an enquiry
should be held against a Pradhan or UpPradhan 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 subsection (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 hold enquiry.
Rule 6 gives procedure, which is to be
followed in the enquiry. The substance of
imputations, and a copy of the complaint
referred to in Rule 3, if any, has to be
forwarded to the Inquiry Officer by the
State Government, and the Inquiry Officer
thereafter shall draw up the substance of
imputations into definite and distinct
articles of charge; and further 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. Enquiry Officer is obliged to
deliver the person against whom he is to
hold 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
716 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
time as may be specified, 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. After receipt of the written
statement of defence, the Inquiry Officer
has to 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. If the person who has not
admitted any of the articles of charges in
his written statement of defence, appears
before the Inquiry Officer, the Inquiry
Officer is obliged to 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 take
evidence, and if there is a complaint,
require him to produce the evidence by
which he proposes to prove the articles of
charges. The provision of assistance has
also been provided. Copies of the
statement of witnesses are also liable to
be supplied. Inquiry Officer is duty bound
to fix the date, time and place of enquiry
and is further duty bound to provide
opportunity to cross examination from the
witnesses produced. Evidence is also
permitted. After evidence is closed, then
defence is permitted to be made orally or
in writing, if the evidence is given orally,
it has to be recorded. Thereafter, evidence
on behalf of the person against whom the
inquiry is being held shall then be
produced. The Inquiry officer after
completion of the production of evidence,
hear the complainant, if any and the
person against whom enquiry is being
held, or permit them, or him, as the case
may be, to file written briefs of their
respective cases. After the enquiry is
concluded, the Inquiry Officer shall
prepare a report containing the articles of
charge
and
the
statement
of
the
imputations; the defence of the person
against whom the enquiry has been held;
the assessment of the evidence in respect
of each article of charge; the findings on
each article of charge and reasons
therefor. Inquiry officer has to submit
report as prepared under rule 7, which
shall include written statement of defence,
if any, or the person against whom
enquiry
has
been
held;
oral
and
documentary evidence produced during
the course of the enquiry; written briefs, if
any, filed during the course of the
enquiry; and the order, if any, made by
the State Government and the Inquiry
officer in regard to the enquiry.

9. This Court in the case of Smt.
Sandhya Gupta Vs. District Magistrate,
Auriya 1999 RD 246 has given guidelines
to District Magistrates so that in future,
they are cautious enough to deal with
affairs of Pradhan, Up-Pradhan and
Members in accordance with law, leaving
no scope for unnecessary litigation as
follows:

"1. It may clearly understood that
Pradhan, Up Pradhan or Member of the
Gram
Panchayat
is
virtually
a
constitutional elected functionary and he
cannot be removed or stripped off his
statutory powers and obligations in a
casual manner without there being solid
foundation for initiating action against
him.

2. The power of the removal of the
above functionaries is conferred on the
State Government in view of the
provisions of Section 95(1)(g) of the Act
which
power
ultimately
has
been
2 All] Nanhey V State of U.P. and others
717
delegated to all the District Magistrate in
the State.

3. A Pradhan, Up-Pradhan or a
member of the Gram Panchayat etc. may
be removed from the office on a number
of grounds. Generally in most of the
cases, the ground mentioned in subClause (iii) of Clause (g) of Section 95 of
the Act, which relates to that person who
has abused his position as such or has
persistently failed to perform the duties
imposed by the Act or Rules made
thereunder or his continuance as such is
not desirable in public interest, in
invoked. This omnibus clause embraces
within its ambit the financial and
administrative irregularities committed by
Pradhan, Up-Pradhan and others.

4. The action for removal may be
initiated on receiving the complaints and
after observing the provisions made in the
Up-Pradhan
and
Members)
Enquiry
Rules, 1997.

5. The complaint can be entertained
only when the procedure prescribed in
Rule 3 of the Rules of 1997 is specified
though the procedure laid down in Rule 3
to entertain the complaints is not
necessary to be followed, if the complaint
is made by a public servant. Any
complaint which does not specify the
procedure prescribed under Rule 3 has to
be thrown out as not entertainable.

6. After the complaint if validity
entertained a preliminary enquiry under
Rule 4 is to be conducted by the District
Panchayat Raj Officer with all expedition.

7. After the receipt of the preliminary
enquiry report submitted by the District
Panchayat
Raj
Officer
the
District
Magistrate may pass an appropriate order
as contemplated by First proviso to clause
(g) which was inserted by U.P. Act No. 9
of 1994, which provides that it a Pradhan
or Up-Pradhan is primafacie found to
have committed financial and other
irregularities, such Pradhan or UpPradhan shall cease to exercise and
perform financial and administrative
power 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 members of
the Gram Pradhan.

8. The provisions of the aforesaid
proviso relating to stripping of the
administrative and financial power of the
Pradhan, Up Pradhan can be invoked only
after a show cause notice is served on the
Pradhan or Up-Pradhan, as the case may
be and he is afforded a reasonable
opportunity of showing cause against the
action proposed as is contemplated in
second proviso to clause (g). Any order
passed by the District Magistrate without
calling for the explanation and without
giving reasonable opportunity of sowing
cause against the action proposed would
be vitiated and would invite judicial
intervention.

9. Once financial and administrative
powers of the Pradhan or Up-Pradhan are
ceased, taking into consideration the
preliminary enquiry report submitted by
the District Panchayat Raj Officer and
after consideration of the reply to show
cause notice, if any, submitted by him
they shall not be restored until the
Pradhan or Up-Pradhan is exonerated of
the charge in the final enquiry. It is seen
that after passing of the order stripping of
the Pradhan or Up-Pradhan of their
financial and administrative powers of
718 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
functions, the District Magistrates restore
these powers even though the final
enquiry has not been concluded. It is
made clear that once aforesaid powers
have been ceased, they cannot be restored
unless the formal enquiry is concluded
and the Pradhan or Up-Pradhan is
exonerated of the charges. The District
Magistrate cannot resort to any mid-way
course.

10.
After
the
receipt
of
the
preliminary enquiry report a final enquiry
is to be ordered by the District Magistrate
by appointing an enquiry officer, as
contemplated in Rule 5.

11. The enquiry officer shall conduct
the enquiry strictly in accordance with the
provisions of Rule 6, which are to be
followed rigorously and meticulously.

12. After conclusion of the enquiry
and preparation of the report, the enquiry
officer shall submit the report to the
District Magistrate, as required in Rules 7
and 8.

13. After the receipt of the report of
final enquiry, the District Magistrate shall
not remove the Pradhan or Up-Pradhan on
one or more of the grounds mentioned in
clause (g) (i) to (v) unless he has given a
show cause notice of the proposed action
alongwith a report of enquiry to the
Pradhan or Up-Pradhan and had afforded
him an opportunity of showing cause. The
reasonable period to show cause against
the proposed action shall not be less than
20 days from the date of receipt, of, or
service on the Pradhan or Up-Pradhan.

14. If an opportunity of personal
hearing is sought by the Pradhan or UpPradhan, it shall not denied by the District
Magistrate and he shall pass final orders
one way or the other after affording a
personal hearing to the Pradhan or UpPradhan. The District Magistrate shall
bear in mind that any order passed under
Section
95(1)
(g)
of
the
Act
in
contravention of the above guidelines
which are based on salutary principles of
natural justice flowing from the statutory
provisions shall stand vitiated."

10. Scheme of things provided for is
clear and unambiguous, that enquiry
under the first proviso of Section 95(1)
(g), as per the procedure prescribed under
1997 is to be undertaken only when
Pradhan has committed financial and
other irregularities. This Court, in the case
of Sandhya Gupta (Supra) mentioned that
Pradhan can be removed from his office
on number of grounds; generally in most
of the cases, the grounds mentioned in
sub-clause (iii) of clause (g) of Section 95
of the Act which relates to that person
who has abused his position as such or
has persistently failed to perform the
duties imposed by the Act or rules made
thereunder or his continuance is not
desirable, is invoked. This omnibus clause
embraces within its fold administrative
and financial irregularities. In class of
cases where Pradhan is accused of or
charged for an offence involving moral
turpitude, enquiry contemplated under the
first proviso of Section 95(1) (g) read
with 1997 Rules, is not at all attracted as
enquiry is not at all going to be made qua
financial
irregularities
or
other
irregularities, and the only relevant factor
to see would be that Pradhan is accused of
or charged for an offence involving moral
turpitude or not. The expression accused
of an offence means person against whom
formal
accusation
relating
to
the
commission of an offence has been
2 All] Nanhey V State of U.P. and others
719
levelled, which in the normall course may
result in his prosecution. "Charge for an
offence", signifies an accusation made in
legal manner, and means something more
than suspected or accused of crime. Once
criminal forum has been set in motion,
and therein Pradhan is alleged to be
accused of or charged for an offence
involving moral turpitude, then enquiry is
limited to the extent of finding out, as to
whether the Pradhan accused of or
charged
for
the
offence,
the
said
accusation or charge has the element of
involvement of moral turpitude or not ?.
Merely being an accused of or charged for
an offence, will not confer authority on
the State Government to take action for
removal, until and unless the said offence,
accused of or charged, has the tapping of
involvement of moral turpitude also. The
first proviso of Section 95(1)(g) read with
1997
Rules,
has
no
application;
whatsoever, in the facts of present case, as
enquiry was limited to the extent of
finding out, as to whether Pradhan was
accused of or charged for an offence
involving moral turpitude or not, and for
this purpose as per the second proviso, he
was
only
entitled
for
reasonable
opportunity of showing cause against the
action proposed, and nothing beyond the
same.

11. On the parameter as set out, once
it is accepted position that provision, as
contained under the first proviso to
section 95(1)(g) read with 1997 Rules are
not at all attracted, and reasonable
opportunity has to be afforded qua the
action propose, as to whether reasonable
opportunity has been afforded or not. In
the present case, petitioner has been given
opportunity to put forth his version, qua
his complicity in criminal cases, which
involved moral turpitude. Show cause
notice was issued to petitioner by District
Magistrate concerned on 31.10.2008.