# Ram Lakhan Harshit v. D.M. Lucknow & Ors

- **Citation:** (2024) 9 ILRA 917
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-12
- **Case number:** Writ C No. 1000219 of 2006
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-lakhan-harshit-v-d-m-lucknow-ors-52542
- **Pages:** 8

## Headnote

A. Uttar Pradesh Panchayat Raj Act, 1947 -
Surcharge - Sections 27 - U. P. Panchayat
Raj Rules, 1947- Rule 256 - Inquiry - Rule
256 of the Rules of 1947 provides that the
Chief Audit Officer, Cooperative Societies
and Panchayats will be the competent
authority for making an inquiry. The inquiry
committee consisting of Chief Development
Officer,
Executive
Engineer,
Rural
Engineering Service and District Panchayat
Raj Officer had no jurisdiction to hold an
inquiry. The entire proceedings was initiated
by an authority, which had no jurisdiction as
per the provisions contained in the U.P.
Panchayat Raj Rules. Surcharge can only be
fixed in accordance with the procedure
prescribed and not otherwise. It is well
settled law that where the law prescribes a
procedure for doing a thing, the thing has to
be done in that manner alone and other
modes of doing the thing are necessarily
forbidden. (Para 24, 25)
B. Uttar Pradesh Panchayat Raj Act, 1947 -
U. P. Panchayat Raj Rules, 1947- Rule 256 -
Surcharge- Section 27- Rule 256 of the
Rules of 1947- Samagra Gram - procedure
for holding an inquiry in respect of any
illegality committed by a Pradhan of a
Samagra Gram is provided in Government
Order dated 22.12.2004. Held : Procedure
prescribed by the Rules 256 and 257 of the
Panchayat Raj Rules cannot be superseded
by the provisions of any Government Order.
Section 2 (p) of the U.P. Panchayat Raj Act,
1947 does not include the procedure
prescribed by any Government Order and in
the hierarchy of laws, the Government
Orders stand much below the Rules and the
provisions contained in a Government Order
cannot override the provisions contained in
any Rule (Para 20)
C. By the impugned order the District
Magistrate ordered Rs.2,55,106/- to be
recovered from the petitioner/Pradhan .
Held : District Magistrate has not referred
that the petitioner had demanded copies
of the relevant documents to enable him
to
submit
his
explanation.
District
Magistrate

held
the
petitionerguilty
merely because the petitioner failed to
give a satisfactory explanation of the
allegations against him, without even
referring to the material to hold the
petitioner guilty. It is settled law that an
authority proposing to take an adverse
action against any person has to record a
satisfaction
regarding
his
guilt
in
accordance with the procedure prescribed
law and the person cannot be penalized
merely for the reason that he failed to
defend himself. In the present case the
impugned order was passed without
jurisdiction
and
in
violation
of
the
principles of natural justice. Order passed
by
the
District
Magistrate,
directing
recovery from the petitioner u/s 27 (2) of
the U.P. Panchayat Raj Act quashed (Para
27, 28)
Allowed. (E-5)
List of Cases cited:

## Text

9 All. Ram Lakhan Harshit Vs. D.M. Lucknow & Ors.
917
(2024) 9 ILRA 917
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 1000219 of 2006

Ram Lakhan Harshit ...Petitioner
Versus
D.M. Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
B.R. Singh, Devashish Bhatt, Mukesh
Kumar, Rakshit Raj Singh

Counsel for the Respondents:
C.S.C.

A. Uttar Pradesh Panchayat Raj Act, 1947 -
Surcharge - Sections 27 - U. P. Panchayat
Raj Rules, 1947- Rule 256 - Inquiry - Rule
256 of the Rules of 1947 provides that the
Chief Audit Officer, Cooperative Societies
and Panchayats will be the competent
authority for making an inquiry. The inquiry
committee consisting of Chief Development
Officer,
Executive
Engineer,
Rural
Engineering Service and District Panchayat
Raj Officer had no jurisdiction to hold an
inquiry. The entire proceedings was initiated
by an authority, which had no jurisdiction as
per the provisions contained in the U.P.
Panchayat Raj Rules. Surcharge can only be
fixed in accordance with the procedure
prescribed and not otherwise. It is well
settled law that where the law prescribes a
procedure for doing a thing, the thing has to
be done in that manner alone and other
modes of doing the thing are necessarily
forbidden. (Para 24, 25)
B. Uttar Pradesh Panchayat Raj Act, 1947 -
U. P. Panchayat Raj Rules, 1947- Rule 256 -
Surcharge- Section 27- Rule 256 of the
Rules of 1947- Samagra Gram - procedure
for holding an inquiry in respect of any
illegality committed by a Pradhan of a
Samagra Gram is provided in Government
Order dated 22.12.2004. Held : Procedure
prescribed by the Rules 256 and 257 of the
Panchayat Raj Rules cannot be superseded
by the provisions of any Government Order.
Section 2 (p) of the U.P. Panchayat Raj Act,
1947 does not include the procedure
prescribed by any Government Order and in
the hierarchy of laws, the Government
Orders stand much below the Rules and the
provisions contained in a Government Order
cannot override the provisions contained in
any Rule (Para 20)
C. By the impugned order the District
Magistrate ordered Rs.2,55,106/- to be
recovered from the petitioner/Pradhan .
Held : District Magistrate has not referred
that the petitioner had demanded copies
of the relevant documents to enable him
to
submit
his
explanation.
District
Magistrate

held
the
petitionerguilty
merely because the petitioner failed to
give a satisfactory explanation of the
allegations against him, without even
referring to the material to hold the
petitioner guilty. It is settled law that an
authority proposing to take an adverse
action against any person has to record a
satisfaction
regarding
his
guilt
in
accordance with the procedure prescribed
law and the person cannot be penalized
merely for the reason that he failed to
defend himself. In the present case the
impugned order was passed without
jurisdiction
and
in
violation
of
the
principles of natural justice. Order passed
by
the
District
Magistrate,
directing
recovery from the petitioner u/s 27 (2) of
the U.P. Panchayat Raj Act quashed (Para
27, 28)
Allowed. (E-5)
List of Cases cited:
1. Dinesh Kumar Vs St. of U.P., 2022 SCC
OnLine All 861 = AIR 2023 All 26
2. Ram Vilas Vs. Commissioner, Devi Patan
Mandal, Gonda & ors.: 2022 (1) ADJ 1.
918 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Rakshit Raj Singh, the
learned counsel for the petitioner and Sri
Hemant
Kumar
Pandey,
the
learned
Standing Counsel representing the State -
respondents.

2. By means of the instant petition
filed under Article 226 of the Constitution
of India, the petitioner has sought quashing
of a recovery notice dated 06.12.2005
issued by the District Magistrate, Lucknow
and recovery citation dated 07.01.2006
issued by the Tahsildar, Mohanlalganj, as
also a notice dated 08.09.2005 issued by
the District Magistrate, along with the
entire proceedings initiated on the basis of
an
inquiry
report
dated
25.04.2005
submitted
by
an
inquiry
committee
consisting of Chief Development Officer,
Unnao,
Executive
Engineer,
Rural
Engineering Service, Unnao and District
Panchayat Raj Officer, Unnao.

3.
On
08.09.2005,
the
District
Magistrate, Lucknow had issued a notice
under Rule 256 of the U. P. Panchayat Raj
Rules, 1947 stating that the Government
had constituted a three member inquiry
committee
consisting
of
the
Chief
Development
Officer,
Unnao,
District
Panchayat
Raj
Officer,
Unnao
and
Executive Engineer, Rural Engineering
Service, Unnao to inquire into the works
conducted in village Panchayat Samesi
during the year 2003-04 and 2004-05.

4. The inquiry committee submitted a
report stating that the petitioner was guilty
of misappropriation of Rs.5,10,212/-, half
of which amounting to Rs.2,55,106/- was to
be recovered from the petitioner. The
petitioner was directed to submit his
explanation in this regard, failing which an
ex parte order would be passed for recovery
of the amount from the petitioner. This
letter was accompanied by a copy of the
inquiry report submitted by the three
members committee. It mentions the date
of inspection to be 25.04.2005 but the date
of report is not mentioned therein. A
perusal of the report indicates that it makes
no mention that the inspection was carried
out in presence of the petitioner or after
giving any opportunity of hearing to the
petitioner.

5. On 21.10.2005, the applicant gave a
letter to the Block Development Officer
stating that all the meetings of Gram
Panchayat
and
its
committee
were
conducted as per the Rules. The works had
been conducted as per the resolutions
passed by the Gram Panchayat. The entire
records about the resolutions, the projects
and the expenditures etc. are available in
the office.

6. On 21.11.2005, the petitioner gave
another letter to the Block Development
Officer, Mohanlalganj stating that the
entire relevant records were available with
the Secretary of Gram Panchayat and he
prayed for being permitted to inspect the
records and for being provided a copy
thereof to enable him to submit his reply.
The petitioner stated that as the records
were with Secretary of Village Panchayat
and not with him, he could not submit a
reply, unless he was provided a copy of the
records.

7.
On
06.12.2005,
the
District
Magistrate, Lucknow passed the impugned
order stating that the petitioner was given
an opportunity to submit his explanation by
means of a notice dated 08.09.2005. The
petitioner submitted an undated explanation
which
has
not
been
found
to
be
9 All. Ram Lakhan Harshit Vs. D.M. Lucknow & Ors.
919
satisfactory, from which it appears that the
petitioner has misappropriated an amount
of Rs.5,10,212/- and half of it i.e.
Rs.2,55,106/- was ordered to be recovered
from the petitioner. Accordingly the
Tahsildar has issued a recovery citation.

8. Sri. Rakshit Raj Singh, the learned
counsel for the petitioner has submitted that
the statutory provision regarding recovery
of surcharge contained in Section 27 of the
Uttar Pradesh Panchayat Raj Act, 1947 and
the procedure therefor prescribed by Rules
256 and 257 of the 1947 Rules has not been
followed in the present case, which vitiates
the impugned recovery order and recovery
citation.

9. The learned counsel for the
petitioner has placed reliance a judgment
rendered by a Division Bench of this Court
in Dinesh Kumar v. State of U.P., 2022
SCC OnLine All 861 = AIR 2023 All 26
wherein this Court has held that as per the
provisions contained in Rules 256 and 257
of the 1947 Rules, an inquiry ought to have
been conducted by the Chief Audit Officer
and now as per the orders of delegation
made by the Chief Audit Officer, by the
District Audit Officer. The learned counsel
for the petitioner has submitted that the
inquiry committee consisting of Chief
Development Officer, Executive Engineer,
Rural Engineering Service and District
Panchayat Raj Officer has no jurisdiction to
hold an inquiry in accordance with the
provisions contained in Rules 256 and 257
of the U.P. Panchayat Raj Rules, 1947.

10. The learned counsel for the
petitioner has next submitted that the
petitioner had submitted an application
seeking permission to inspect the document
and demanding copies of the documents, as
all the documents were with Gram
Panchayat Secretary, but no document was
provided to him, which has resulted in
denial of a proper opportunity of hearing to
the petitioner.

11. Sri. Hemant Kumar Pandey, the
learned Standing Counsel has raised a
preliminary objection that Section 27(3) of
the Act of 1947 provides that any person
aggrieved by the order of the Prescribed
Authority fixing the amount of surcharge
may, within 30 days of such order, appeal
against the order to the State Government
or such other appellate authority as may be
prescribed. He has submitted that as the
petitioner has got a statutory remedy, the
writ petition is liable to be dismissed on
this preliminary ground.

12. The learned Standing Counsel has
further submitted that the village in
question is a 'Samagra Gram' as per the
provision contained in a Government Order
dated 22.12.2004 and the procedure for
holding an inquiry in respect of any
illegality committed by a Pradhan of a
Samagra Gram is provided in the aforesaid
Government Order. The inquiry in the
present case has been conducted in
accordance with the provisions contained in
the aforesaid Government Order dated
22.12.2004.

13. The learned Standing Counsel has
relied upon a division bench's judgment of
this Court in the case of Ram Vilas versus
Commissioner,
Devi
Patan
Mandal,
Gonda and others: 2022 (1) ADJ 1.

14. Section 27 of the Uttar Pradesh
Panchayat Raj Act, 1947 provides as
follows:-

"27. Surcharge - (1) Every
Pradhan or Up-Pradhan of a Gram
920 INDIAN LAW REPORTS ALLAHABAD SERIES
Panchayat every member of a Gram
Panchayat or of a Joint Committee or any
other committee constituted under this Act
and every Sarpanch, Sahayak Sarpanch or
Panch of a Nyaya Panchayat shall be liable
to surcharge for the loss, waste or
misapplication of money or property
belonging to the Gram Panchayat or Nyaya
Panchayat as the case may be, if such loss,
waste
or
misapplication
is
direct
consequence of his neglect or misconduct
while he was such Pradhan, Up-Pradhan,
member, Sarpanch, Sahyak Sarpanch or
Panch;

Provided that such liability shall
cease to exist after the expiration of the
years from the occurrence of such loss,
waste or misapplication, or five years from
the date on which the person liable ceases
to hold his office, whichever is later.

(2) The prescribed authority shall
fix the amount of the surcharge according
to the procedure that may be prescribed
and shall certify the amount to the
Collector who shall, on being satisfied that
the amount is due, realize it as if were an
arrear of land revenue.

(3) Any person aggrieved by the
order of the prescribed authority fixing the
amount of surcharge may, within thirty
days of such order, appeal against the
order to the State Government or such
other appellate authority as may be
prescribed.

(4) Where no proceeding for
fixation and realization of surcharge as
specified in sub-section (2) is taken the
State Government may institute a suit for
compensation for such loss, waste or
misapplication, against the person liable
for the same."

15. The word 'prescribed' has been
defined in Section 2(p) of the U.P.
Panchayat Raj Act, 1947 as prescribed by
this Act or Rules made there under. The
procedure referred to in Section 27 (2), has
been prescribed in Chapter 13 of the U.P.
Panchayat Raj Rules, 1947, which contains
Rules 256 to 260. Rules 246 and 257 read
thus:

"Rule 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
Gaon Sabha as a direct consequence of the
negligence or misconduct of a Pradhan, he
may call upon the Pradhan, Up-Prahdan,
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
Gaon 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 Gaon Panchayat shall be called for
through the District Magistrate and from
the
officer
or
servant
through
the
Panchayat Raj Officer.

Provided also that no explanation
shall be called for from any member who is
recorded in the minutes of the Gaon
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.

257. (1). After expiry of the
period prescribed in sub-rule (1) or (3) of
Rule 256, as the case may be, and after
examining the explanation, if any, received
within time, the Chief Audit Officer shall
9 All. Ram Lakhan Harshit Vs. D.M. Lucknow & Ors.
921
submit
the
papers
along
with
his
recommendations to the District Magistrate
of the district in which the Gram Sabha is
situated in case of Pradhan, Up-Pradhan
and Members and to the District Panchayat
Raj Officer of the district in which the
Gram Sabha is situated in case of Officers
and servants.

(2) The District Magistrate or the
District Panchayat Raj Officer, as the case
may
be,
after
examining
and
after
considering the explanation, if any, shall
require
the
Pradhan,
Up-Pradhan,
Member, Officer or servant of the Gram
Panchayat to pay the whole or part of the
sum to which such Pradhan, Up-pradhan,
Member, Officer or servant is found liable:

PROVIDED,
firstly,
that
no
Pradhan, Up-Pradhan, Member, Officer or
servant of the Gram Panchayat would be
required to make good the loss, if from the
explanation of the Pradhan, Up-Pradhan,
Member, Officer or servant concerned or
otherwise the District Magistrate or the
District Panchayat Raj Officer, as the case
may be, is satisfied that the loss was caused
by an act of the Pradhan, Up-pradhan,
Member, Officer or servant in the bonafide
discharge of his duties:

PROVIDED secondly, that in the
case of loss, waste or misuse occurring as a
result of a resolution of the Gram
Panchayat or any of its committees the
amount of loss to be recovered shall be
divided equally among all the members
including Pradhan and Up-pradhan, who
are reported in the minutes of the Gram
Panchayat or any of its Committee as
having voted for or who remained neutral
in respect of such resolution:

PROVIDED
thirdly,
that
no
Pradhan, Up-Pradhan, Member, Officer or
servant shall be liable for any loss, waste
or misuse after the expiry of four years
from the occurrence of such loss, waste or
misuse or after the expiry of three years
from the date of his ceasing to be a
Pradhan, Up-Pradhan, Member, Officer or
servant of the Gram Panchayat, which ever
is later."

16. In Dinesh Kumar v. State of
U.P., 2022 SCC OnLine All 861 = AIR
2023 All 26, a Division Bench of this Court
has held that as per the provisions
contained in Rules 256 and 257 of 1947
Rules, an inquiry ought to have been
conducted by the Chief Audit Officer and
now as per the orders of delegation made
by the Chief Audit Officer, by the District
Audit Officer. Therefore, the inquiry
committee
consisting
of
Chief
Development Officer, Executive Engineer,
Rural Engineering Service and District
Panchayat Raj Officer had no jurisdiction
to hold an inquiry in accordance with the
provisions contained in Rules 256 and 257
of the U.P. Panchayat Raj Rules, 1947.

17.
In
Ram
Vilas
versus
Commissioner,
Devi
Patan
Mandal,
Gonda and others: 2022 (1) ADJ 1, this
Court held that: -

"13. Chapter-XIII was added in
the Rules vide Notification dated May 22,
1969 published in Gazette on May 31,
1969. Rule 256 of the Rules provides
different authorities for taking action in
terms of Section 27 of the Act. A perusal of
Rules 256 to 260 of Chapter XIII of the
Rules show that complete procedure has
been provided for fixation of the surcharge
to be recovered from different officers in
Gram Panchayat on account of loss, waste
or misuse of any money/property belonging
to the Gaon Sabha which is on account of a
direct consequence of negligence or
misconduct of the person concerned. Chief
Audit Officer, Cooperative Society and
922 INDIAN LAW REPORTS ALLAHABAD SERIES
Panchayats is to consider the same and
after examination of the explanation, if
any, received from persons concerned,
submit
the
papers
along
with
recommendation to the District Magistrate
of the District in which the Gaon Sabha is
situated, in case of Pradhan, Up-Pradhan
and Member. The report along with
recommendation has to be sent by Chief
Audit Officer to the District Panchayat Raj
Officer of the District in which Gaon Sabha
is situated, in case of Officers and servants.
The District Magistrate or the the District
Panchayat Raj Officer, as the case may be,
is to finally fix the amount, which is
recoverable from the person concerned.

14.
Rule
258
provides
the
appellate authority, in terms of Section 27
(3) of the Act. An order passed by the
District Magistrate is appealable to the
Commissioner of the Division, whereas an
order passed by District Panchayat Raj
Officer is appealable to the District
Magistrate.
* * *

16. The District Magistrate is the
competent authority for fixation of amount
of surcharge recoverable from Pradhan,
Up-Pradhan and Member and the District
Panchayat
Raj
Officer
is
competent
authority
for
fixing
the
amount
of
surcharge in case of officers and servants."

18. In the present case, the Chief Audit
Officer,
Cooperative
Society
and
Panchayats has not made any consideration
and he has not called for any explanation
from the petitioner. Therefore, even as per
the law laid down in Ram Vilas (Supra),
reliance upon which has been placed by the
learned Standing Counsel, the impugned
order has been passed without jurisdiction.

19. The learned Standing Counsel has
submitted that in Dinesh Kumar (Supra), it
is recorded that the powers conferred by
Rule 256 upon the Chief Audit Officer
have been delegated upon the District
Audit Officer. Be that
as it may,
undisputedly, the District Audit Officer has
also not passed any order in this case.
Therefore, in spite of delegation of power
by the Chief Audit Officer to the District
Audit Officer, the order impugned remains
without jurisdiction.

20. So far as the submission of the
learned Standing Counsel that the order has
been passed in accordance with the
provisions of a Government Order dated
22.12.2004, which prescribes the procedure
for holding an inquiry in respect of any
illegality committed by a Pradhan of a
Samagra Gram, suffice it to say that
Section 2 (p) of the U.P. Panchayat Raj
Act, 1947 defines the word 'prescribed' as
prescribed by the Act or Rules made
thereunder.
The
procedure
has
been
prescribed by Rules 256 and 257 of the
Panchayat Raj Rules. The procedure
prescribed
by
the
Rules
cannot
be
superceded by the provisions of any
Government Order for two reasons -
Firstly, Section 2 (p) of the U.P. Panchayat
Raj Act, 1947 does not include the
procedure prescribed by any Government
Order and Secondly, in the hierarchy of
laws, the Government Orders stand much
below the Rules and the provisions
contained in a Government Order cannot
override the provisions contained in any
Rule.

21. Further, as the petitioner was not
supplied copies of the material relied
against him in spite of his demand and
there is nothing on record to indicate that
even a copy of the enquiry report was
provided to him, it is established that the
principles of natural justice have been
9 All. Ram Lakhan Harshit Vs. D.M. Lucknow & Ors.
923
violated in the present case by denial of
adequate opportunity of hearing to the
petitioner, which vitiates the impugned
orders.

22.
Regarding
the
preliminary
objection raised by the learned Standing
Counsel against maintainability of the Writ
Petition on the ground of availability of
alternative remedy, it would be relevant to
refer to the judgment of the Hon'ble
Supreme Court in Whirlpool Corpn. v.
Registrar of Trade Marks: (1998) 8 SCC
1, wherein the well established principles
regarding the effect of existence of
alternative remedy on maintainability of a
Writ Petition were reiterated in the
following words: -

"14.
The
power
to
issue
prerogative writs under Article 226 of the
Constitution is plenary in nature and is not
limited by any other provision of the
Constitution. This power can be exercised
by the High Court not only for issuing writs
in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari
for the enforcement of any of the
Fundamental Rights contained in Part III
of the Constitution but also for "any other
purpose".

15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has a
discretion to entertain or not to entertain a
writ petition. But the High Court has
imposed upon itself certain restrictions one
of which is that if an effective and
efficacious remedy is available, the High
Court would not normally exercise its
jurisdiction. But the alternative remedy has
been consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the enforcement
of any of the Fundamental Rights or where
there has been a violation of the principle
of natural justice or where the order or
proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There
is a plethora of case-law on this point but
to cut down this circle of forensic
whirlpool, we would rely on some old
decisions of the evolutionary era of the
constitutional law as they still hold the
field.

23. Although normally this Court
refrains from exercising its discretionary
writ jurisdiction when an alternative
remedy is available to the petitioner but in
the present case the impugned order has
been passed without jurisdiction and in
violation of the principles of natural justice
and in these circumstances, this Court
would not be justified in declining to
exercise its discretionary Writ jurisdiction,
more particularly, when the petition was
filed in the year 2006 and it has remained
pending for about 18 years.

24. Having considered the aforesaid
facts and circumstances of the case and the
submissions made by the learned counsel
for the parties, this Court is of the
considered view that when Section 27 of
the U.P. Panchayat Raj Act, 1947 provides
for imposition of surcharge and for fixation
of the amount of surcharge according to the
procedure prescribed, surcharge can only
be fixed in accordance with the procedure
prescribed and not otherwise. It is well
settled law that where the law prescribes a
procedure for doing a thing, the thing has to
be done in that manner alone and other
modes of doing the thing are necessarily
forbidden.

25. Rule 256 of the Rules of 1947
provides that the Chief Audit Officer,
924 INDIAN LAW REPORTS ALLAHABAD SERIES
Cooperative Societies and Panchayats will
be the competent authority for making an
inquiry, if he considers that there has been
a loss, vested 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 etc., he would
call for an explanation from the Pradhan
through the District Magistrate. In the
present case, the Chief Audit Officer has
not recorded any prima facie satisfaction
that a loss has been occasioned because of
a direct consequence of the negligence or
misconduct of the petitioner while he was a
Pradhan. Therefore, the entire proceedings
have been initiated by an authority, which
had no jurisdiction as per the provisions
contained in the U.P. Panchayat Raj Rules.

26. The District Magistrate has not
referred to the contentions of the petitioner
made in his application that he did not have
any record and, therefore, he was unable to
submit his reply and that the petitioner had
demanded copies of the relevant documents
to enable him to submit his explanation.

27. The District Magistrate has blamed
the petitioner for not mentioning any date
on his application. Although the application
submitted by the petitioner to the District
Magistrate, Lucknow does not bear any
date,
it
bears
endorsements
of
acknowledgment
of
the
application
showing that the application has been
served on 26.11.2005. It is interesting to
observe that the enquiry report, which has
been relied upon by the District Magistrate
for penalizing the petitioner, itself does not
bear any date, but the District Magistrate
has not criticized the officers constituting
the Enquiry Team for non-mention of the
date of report. This difference in approach
towards the enquiry officers and the
petitioner shows that the District Magistrate
has acted with an apparent prejudice
against the petitioner and his approach
while passing the impugned order was not
just and unbiased.

28. The District Magistrate has held the
petitioner guilty merely because the petitioner
failed to give a satisfactory explanation of the
allegations against him, without even referring
to the material to hold the petitioner guilty. It is
settled law that an authority proposing to take
an adverse action against any person has to
record a satisfaction regarding his guilt in
accordance with the procedure prescribed law
and the person cannot be penalized merely for
the reason that he failed to defend himself.

29. Accordingly, the writ petition is
allowed. Order dated 06.12.2005 passed by
the District Magistrate, Lucknow ordering
recovery
of
Rs.2,55,106/-
from
the
petitioner under Section 27 (2) of the U.P.
Panchayat Raj Act is quashed. The parties
shall bear their own costs of litigation.

30. The authorities shall be at liberty
to initiate fresh proceedings against the
petitioner in accordance with law.
----------
(2024) 9 ILRA 924
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Writ C No. 1004625 of 2008
And
Writ C No. 1001062 of 2013

Annavaram Concrete Pvt. Ltd. Barabanki
 ...Petitioner
Versus
Tehsildar Ramnagar Barabanki
 ...Respondent