# Poonam v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 388
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-14
- **Case number:** Misc. Single No. 35143 of 2019
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/poonam-v-state-of-u-p-ors-45688
- **Pages:** 6

## Headnote

A. U.P. Panchayat Raj Act, 1947-section
95 (1) (g)-U.P. Panchayat Raj (Removal
of pradhan, Up-Pradhan and Members)
Enquiry Rules-section 2 (c) -District
magistrate
has
power
to
seize
the
financial and administrative power of
Petitioner-Gram Pradhan-upon receiving
a report from District Panchayat Officerduring pendency of proceedings u/s 95
(1) (g).

Held, On a bare perusal of the aforesaid Full
Bench decision the Court finds that while a
report submitted by any other public servant
who does not fall within the definition of
'enquiry officer' under Rule 2(c) of the Rules
1997 cannot be made the basis for any action
involving
cessation
of
financial
and
administrative powers of the Gram Pradhan
and constitution of a Three Member Committee
for discharging his duties and such a report can
only be made basis for ordering a preliminary
inquiry in terms of Rules 1997 by an inquiry
officer defined in Rule 2(c) thereof, a report
submitted by an officer who is either the
District Panchayat Raj Officer or any other
district level officer and falls within the
meaning of 'inquiry officer' as defined in Rule
2(c) of the Rules 1997 can be acted upon by
the District Magistrate ipso facto for the
aforesaid purpose, meaning thereby, even if
any preliminary inquiry had already been
ordered by him earlier by any other officer or it
had not been ordered, on receipt of any such
report by a District Panchayat Raj Officer or
any other District level officer who falls in the
definition of 'inquiry officer' under Rule 2(c),
whether or not he had been appointed to
function as inquiry officer, can be made the
basis by the District Magistrate to seize
financial and administrative powers of the
Gram Pradhan and to form a three member
Committee for discharging his functions. (Para
8)

Writ Petition dismissed. (E-9)

List of cases Cited: -

## Text

388 INDIAN LAW REPORTS ALLAHABAD SERIES

(32) Till the decision of the matter by
the Naib Tehsildar concerned, the parties
shall maintain the status-quo as on date
with regard to the property in dispute.

(33) Writ petition stands allowed.
----------
(2020)1ILR 388

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.01.2020

BEFORE
THE HON'BLE RAJAN ROY, J.

Misc. Single No. 35143 of 2019

Poonam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Surendra Pratap Singh, Amit Kumar Singh

Counsel for the Respondents:
C.S.C.

A. U.P. Panchayat Raj Act, 1947-section
95 (1) (g)-U.P. Panchayat Raj (Removal
of pradhan, Up-Pradhan and Members)
Enquiry Rules-section 2 (c) -District
magistrate
has
power
to
seize
the
financial and administrative power of
Petitioner-Gram Pradhan-upon receiving
a report from District Panchayat Officerduring pendency of proceedings u/s 95
(1) (g).

Held, On a bare perusal of the aforesaid Full
Bench decision the Court finds that while a
report submitted by any other public servant
who does not fall within the definition of
'enquiry officer' under Rule 2(c) of the Rules
1997 cannot be made the basis for any action
involving
cessation
of
financial
and
administrative powers of the Gram Pradhan
and constitution of a Three Member Committee
for discharging his duties and such a report can
only be made basis for ordering a preliminary
inquiry in terms of Rules 1997 by an inquiry
officer defined in Rule 2(c) thereof, a report
submitted by an officer who is either the
District Panchayat Raj Officer or any other
district level officer and falls within the
meaning of 'inquiry officer' as defined in Rule
2(c) of the Rules 1997 can be acted upon by
the District Magistrate ipso facto for the
aforesaid purpose, meaning thereby, even if
any preliminary inquiry had already been
ordered by him earlier by any other officer or it
had not been ordered, on receipt of any such
report by a District Panchayat Raj Officer or
any other District level officer who falls in the
definition of 'inquiry officer' under Rule 2(c),
whether or not he had been appointed to
function as inquiry officer, can be made the
basis by the District Magistrate to seize
financial and administrative powers of the
Gram Pradhan and to form a three member
Committee for discharging his functions. (Para
8)

Writ Petition dismissed. (E-9)

List of cases Cited: -

1. Vivekanand Yadav Vs. State of U.P. &
others, 2010 (10) ADJ 1

2. Ambesh Kumar v. State of U.P., Writ Petition
No.20971 (MS) of 2018

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. By means of this writ petition the
petitioner- Gram Pradhan has challenged
an order passed by the District Magistrate,
Sultanpur on 26.11.2019 seizing the
financial and administrative powers of the
petitioner and constituting a three Member
Committee under the proviso to section
95(1)(g) of the U.P. Panchayat Raj Act
1947 for performing the duties of the
office of Gram Pradhan during the
pendency of the proceedings under section
95(1)(g).
1 All. Poonam Vs. State of U.P. & Ors.
389

3. Contention of the learned counsel
for the petitioner Sri Surendra Pratap
Singh, Advocate was that on receipt of a
complaint the District Magistrate had
ordered a preliminary enquiry to be
conducted
by
District
Development
Officer on 6.4.2019. The said preliminary
inquiry is still pending. In the interregnum,
on a report submitted by the District
Panchayat Raj Officer on 31.8.2019 based
on a inspection conducted by him on
17.8.2019 the impugned order has been
passed which is violative of the U.P.
Panchayat Raj (Removal of Pradhan, UpPradhan and Members) Enquiry Rules,
1997 (hereinafter referred as 'Rules 1997').

4. Sri Hemant Pandey, learned
Standing Counsel appearing for the State
relied upon Full Bench decision of this
Court in the case of Vivekanand Yadav
Vs. State of U.P. & others, 2010 (10) ADJ
1, to contend that the inspection report
submitted in this case being one by a
District Level Officer who qualifies as an
Enquiry Officer under Rule 2(c) of the
Rules 1997, the District Magistrate was
competent to pass the impugned order
based on such report without waiting for
the result of the preliminary inquiry earlier
ordered.

5. This Court has perused the
decision of the Full Bench in the case of
Vivekanand Yadav. It is worthwhile to
quote point No. (x) and (xi) in paragraph
33 which were considered by the Full
Bench and are as under :

"(x) What is the meaning of word
'otherwise' in sub-rule 1 of rule 5 {rule
5(1) of the Enquiry Rules};

(xi)
Whether
a
preliminary
report submitted by the DPRO or an
officer defined as enquiry officer under
sub-rule (c) of Rule 2 {rule (2)(c) of the
Enquiry Rules}- without being formally
asked to conduct the preliminary enquiry-
can be accepted under Rule 5 to constitute
a three member committee to exercise
financial and administrative powers; and
appoint an enquiry officer to conduct the
final enquiry under rule 6."

6. The said points/questions have
been answered by the Full Bench and the
relevant paragraphs in this regard i.e.
paragraphs
90
to
104
are
quoted
hereinbelow :

"90. Rule 2(c) defines 'Enquiry
Officer'. It means the DPRO or any other
district level officer to be nominated by the
DM. The following contingencies may be
there:

(i) A complaint can be made
directly to the DM who may ask the
enquiry officer as defnined under rule 2(c)
to conduct a preliminary inquiry under
rule 4; or

(ii) A complaint can be made
directly to the enquiry officer defined
under section 2(c), who may submit a
report without the DM asking for it; or

(iii) A complaint can be made to
the DM with copy to the enquiry officer,
who may submit a report without the DM
asking for it; or

(iv) A DM can himself conduct a
preliminary enquiry; or

(v) A report can be submitted by
any other public servant.

91.
In
all
the
aforesaid
alternatives, a preliminary enquiry is
conducted and a preliminary report is
there. The question is, which one of these
can be acted upon under rule 5 to cease
the power under proviso to section
95(1)(g) of the Panchayat Raj Act.
According to,
390 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioners only first of the aforesaid
report can be relied upon;

The respondents all five reports
can be relied upon.

In our opinion, answer lies
somewhere in between and only the first
four reports can be so relied.

92. There is no dispute so far as
first contingency is concerned. The fifth
one has to be rejected. In case it is
accepted, then this would make rule 3(6)
otiose. In our opinion this cannot be the
case. However this cannot be said about
contingencies number two to four.

93. Rule 6 provides a detailed
procedure for the final enquiry. However,
there is no detailed procedure provided for
the preliminary enquiry under rule 4. A
pradhan is not required to be associated in
the preliminary enquiry.

94. The procedure provided in
rules 6 to 8 is for the final enquiry and not
for the preliminary enquiry. A report by an
enquiry officer defined under rule 2(c) is
also a report by a person prescribed. It is
not necessary for the enquiry officer to
conduct the preliminary inquiry only on
the direction given by the DM. His job is
to submit a report, so that the DM may
take a decision,

Whether there is prima facie
case against the pradhan or not; and

Whether the final enquiry should
be held after ceasing his powers.

95. It is not necessary for the
DM to specifically ask the enquiry officer
to conduct a preliminary enquiry. There
seems to be no point in asking the enquiry
officer to conduct a preliminary enquiry
again even if he submitted a report after
the enquiry. It would be futile exercise
unless the DM disagrees with the report of
the enquiry officer.

96. A report by an enquiry
officer defined under rule 2(c) is also a
report by a person and the manner is
prescribed under the Rules--irrespective of
the fact that he was so asked by the DM or
not. In our opinion, it is also a preliminary
report within the meaning of the proviso to
section 95(1) (g) of the Panchayat Raj Act.

97. The DM exercises the powers
of the State Government under section
95(1)(g) as well as under the Enquiry
Rules as the powers are delegated to him.
He also appoints the enquiry officer. He is
higher than all enquiry officers. He can
himself conduct a preliminary enquiry. It
would be anomalous that on a preliminary
report of a subordinate officer, a final
enquiry and cessation of power can be
ordered but the DM, who appoints him,
cannot conduct a preliminary enquiry.

98. In our opinion, action under
proviso to section 95(1)(g) can also be
taken on the preliminary report of the DM
as well as on a report of a person defined
as enquiry officer under rule 2(c) of the
Enquiry Rules. Only these reports would
be covered in the word 'otherwise' of rule
5. Any other report would be a report
under rule 3(6) of the Enquiry Rules or
can be considered by the DM under his
suo motu power to order a preliminary
enquiry but final enquiry with cessation of
power can not be ordered on its basis.

99. We would like to explain our
point of view as well.

100. In the third WP, the report
is by the DPRO. He is defined as an
enquiry officer under rule 2(c) of the
Enquiry Rules. On his report, the power of
pradhan can be ceased and the final
enquiry can be ordered. The order in the
third WP cannot be invalidated on this
account.

The
Chunmun
Case--
Observations Should be Limited.

101. The observations of the
single judge in the Chunmun case,
1 All. Poonam Vs. State of U.P. & Ors.
391
mentioned in the fourth question under the
heading
'QUESTIONS
REFERRED',
should be seen in the light of the facts of
that case.

102. In the Chunmun case, a
report was sent by a junior engineer. It is
not clear from the judgement whether the
junior engineer was nominated by the DM
as the enquiry officer or not but the single
judge had held that a junior engineer was
not competent to hold enquiry under the
Enquiry Rules. In view of our decision,
this report could be treated under rule
3(6) and could be referred for a
preliminary enquiry but on its basis alone
neither the three members committee
could be appointed nor powers of the
pradhan could be ceased.

103. The judgement on the facts
of the Chunmun case is correct but the
broad proposition that are extracted by the
single judge, referring the third and fourth
WPs to the larger bench--are not correct
and they require modifications and have to
be limited to facts of that case only.

104. In our opinion, the word
'otherwise' in rule 5 includes, and the DM
can rely upon, the following reports only
to cease financial and administrative
powers and direct for the final enquiry.

A report of a person, who is also
defined as an enquiry officer under rule
2(c) of the Enquiry Rules--irrespective
whether he was directed by the DM to
conduct the preliminary inquiry or not;

A preliminary enquiry report
conducted by the DM himself.

However, a report by any other
officer or any other information cannot be
relied upon by the DM to constitute a three
member committee ceasing financial and
administrative powers. In such a situation,
it should be treated as a report under rule
3(6)
or
would
come
under
word
'otherwise' in rule 4(1) and at the most
only a preliminary enquiry can be
ordered."

7. Paragraph 107 of the decision of
the Full Bench, especially clause (e)
thereof, is also relevant. The same is
quoted hereinbelow:

"107. Our conclusions are as
follows:

(a) The DM may ask the
preliminary enquiry to be conducted by
any officer defined under rule 2(c) of the
Enquiry Rules on a complaint or a report
under rule 3 or any other material or
information. He has suo motu powers as
well to order a preliminary enquiry;

(b) A pradhan has no right to
object that complaint or report is not in
accordance with rule 3 of the Enquiry
Rules;

(c) A pradhan is neither entitled
to be associated in the preliminary enquiry
nor is entitled to the copy of the
preliminary report. However, before an
order
ceasing
the
financial
and
administrative
power
is
passed,
his
explanation or point of view or the version
to the charges should be obtained and
considered;

(d) In the first and the third WPs,
the impugned orders have been passed on
the basis of preliminary report after
obtaining and considering the explanation
of the pradhan. The impugned orders in
these WPs cannot be faulted on this
ground;

(e) In our opinion the word
'otherwise' in rule 5 includes and the DM
can rely upon the following reports only
to cease financial and administrative
power and direct the final enquiry:

A report of a person who is also
defined as an enquiry officer under rule
2(c) of the Enquiry Rules--irrespective of
392 INDIAN LAW REPORTS ALLAHABAD SERIES
whether he was directed by the DM to
conduct the preliminary inquiry or not;

A preliminary enquiry report
conducted by the DM himself.

(f) In the third writ petition, the
report was submitted by the DPRO, who is
defined as an enquiry officer under rule
2(c) of the Enquiry Rules. The impugned
order cannot be faulted on the ground that
the DPRO was not asked by the DM to
conduct the preliminary enquiry;

However, it is open to the
petitioners in the first and third WPs to
raise other points before the appropriate
bench."

8. On a bare perusal of the aforesaid
Full Bench decision the Court finds that
while a report submitted by any other
public servant who does not fall within the
definition of 'enquiry officer' under Rule
2(c) of the Rules 1997 cannot be made the
basis for any action involving cessation of
financial and administrative powers of the
Gram Pradhan and constitution of a Three
Member Committee for discharging his
duties and such a report can only be made
basis for ordering a preliminary inquiry in
terms of Rules 1997 by an inquiry officer
defined in Rule 2(c) thereof, a report
submitted by an officer who is either the
District Panchayat Raj Officer or any other
district level officer and falls within the
meaning of 'inquiry officer' as defined in
Rule 2(c) of the Rules 1997 can be acted
upon by the District Magistrate ipso facto
for
the
aforesaid
purpose,
meaning
thereby, even if any preliminary inquiry
had already been ordered by him earlier by
any other officer or it had not been
ordered, on receipt of any such report by a
District Panchayat Raj Officer or any other
District level officer who falls in the
definition of 'inquiry officer' under Rule
2(c), whether or not he had been
appointed to function as inquiry officer,
can be made the basis by the District
Magistrate
to
seize
financial
and
administrative powers of the Gram
Pradhan and to form a three member
Committee for discharging his functions.
Reasons in this regard have already been
given by the Full Bench. This is its ratio.

9. In view of the above discussion
only point raised by the learned counsel
for the petitioner for challenging the
impugned order is not sustainable. The
petitioner in spite of being served a showcause notice did not submit a reply. The
explanation furnished in this regard in the
petition is not acceptable, especially after
going through the alleged certificate issued
by a Private Nursing Home, copy of which
is appended as Annexure-5 to the writ
petition.

10. In view of the above, no
interference is called for. The writ petition
is dismissed.

11. The inquiry officer appointed for
conducting the final inquiry shall conduct
the inquiry within six months with the
cooperation
of
the
petitioner
after
following the relevant Rules in this regard,
especially Rule 6 of the Rules 1997. After
submission of the final inquiry report, a
copy of which shall be given to the
petitioner, final decision shall be taken
keeping in mind the decision rendered in
the case of Ambesh Kumar v. State of
U.P., Writ Petition No.20971 (MS) of
2018, copy of which shall be furnished by
the petitioner's counsel to the District
Magistrate in this regard.
----------
1 All. M/S Honda Siel Power Products Vs. Union of India & Anr.
393
(2020)1ILR 393

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE BHARATI SAPRU, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ Tax No. 147 of 2018

M/S Honda Siel Power Products
 ...Petitioner
Versus
Union of India & Anr. ...Respondents

Counsel for the Petitioner:
Sri Nishant Mishra, Sri Tarun Gulati, Sri
Vinayak Mathur, Sri Vipin Upadhyay

Counsel for the Respondents:
A.S.G.I., Sri Anant Kumar Tiwari, Sri B.K.
Singh Raghuvanshi

A. Tax - Repayment of refund - Principle
of Unjust Enrichment - Central Excise
Act, 1944: Sections 11A, 11B, 12B, 35,
35E; Central Excise Tariff Act, 1985;
Central Excise Rules, 2002: Rule 7 -
Question for consideration before the
Court is, as to whether the revenue can
initiate proceedings u/s 11A for recovery
of excise duty, once adjudication had
been made by department making final
provisional assessment and, thereafter,
adjudicating application for refund u/s
11B,
and
no
appeal
being
filed
challenging the said adjudication which
having attained finality, is barred on the
ground of change of opinion or would
amount to reassessment when once the
revenue did not take recourse to appeal
in higher forum. (Para 31)

There
is
no
remedy
available
to
department at all u/s 11A to proceed,
after having allowed adjudication u/s
11B to attain finality - Once the adjudication
has taken place u/s 11B, department cannot
proceed to recover u/s 11A, on the basis of
"erroneous refund", so as to enable the refund
order to be revoked, as the remedy lies u/s 35E
for applying to the Appellate Tribunal for
determination - In the present case, petitionercompany had made an application for refund
which was adjudicated on 05.11.2015 and it
was directed to refund excise duty amounting
to Rs.1,02,75,633/- which was in excess. This
order was never challenged by revenue in
appeal and it attained finality. (Para 33 to 35,
39, 43 to 45)

B. Alternative Remedy u/s 35 - Where
there is change of opinion by issuance of
show-cause
notice,
writ
petition
is
maintainable. (Para 42)

Writ Petition allowed. (E-4)

Precedent followed: -

1. Shahnaaz Ayurvedics Vs. CCE, Noida, 2004
(173) ELT 377 (All. HC) (Para 14 & 42)

2. CIT Vs. Simplex Concrete Piles, (2013) 11
SCC 373 (Para 15 & 42)

3. Samsung India Electronics Pvt. Ltd. Vs. State
of U.P. and others, (2016) SCC Online All. 1539
(Para 15, 20 & 42)

4. Eveready Industries Ltd. Vs. Cestat, Chennai,
2016 337 ELT 189 (Mad. HC) (Para 10 & 44)

5. Civil Appeal No. 8488 of 2009 decided along
with case of Addison and Company (Para 18 & 41)

6. CCE and C, Tirupati Vs. Panyam Cements
and Minerals Industries Ltd. 2016 (331) ELT
2006 (SC) (Para 11)

7. Mafatlal Industries Ltd. Vs. Union of India,
1979 (89) ELT 247 (SC) (Para 12)

8. CTO Vs. Binani Cements, (2014) 8 SCC 319
(Para 13)

9. CIT Vs. Bhanji Lavji (1972) 4 SCC 88 (Para
16)

10. Arun Gupta Vs. Union of India, (2015) 371
ITR394 (All. HC) (Para 16)