# Smt. Anita Devi v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 786
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-09
- **Case number:** Civil Misc. Writ Petition No. 38806 of 2009
- **Bench:** Sunil Ambwani, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anita-devi-v-state-of-u-p-and-others-41460
- **Pages:** 6

## Headnote

Sri Anurag Sharma
Sri Satish Chaturvedi (AAG)
Sri Neeraj Upadhyay (Addl. C.S.C.)

U.P.
Kshetra
Panchayat
and
Zila
Panchayat (Removal & Pramukh and UpPramuks, Chairman and Vice-Chairman)
Enquiry Rules-1997-Rule 5, 6 a ceasure
of financial and administrative power of
Pramukh-Principal
secretary
by
exercising power under Rule 3 appointed
the District Magistrate as enquiry officerwho on its time based upon enquiry
conducted
by
A.D.M.-forwarded
the
earlier report to the Govt.-on that basis
order passed-challenge made on ground
District Magistrate instead of himself
conducting
enquiry
committed
great
illegality-petitioner not making payment
of development work labor employed
under scheme also not paid-quality of
brick also very poor-as her husband was
supplier-No prejudice shown in the
enquiry-requires no interference.

Held: Para 18

We have gone through the enquiry
report dated 25.7.2008 and the reasons
given by the State Government for
initiating the regular enquiry and to
suspend the financial and administrative
powers of the petitioner. We do not find
that
the
State
Government
has
committed any error on facts or in law in
exercise of its discretion. The petitioner
was
not
making
payments
for
development
works
even
after
the
supply
of
material.
The
labourers
employed in the schemes were not paid
for almost three months. It was prima
facie found that the petitioner was
exercising
the
pressure
for
making
estimates of fresh projects and for
making payments of the bricks, the
quality of which was doubtful, supplied
by her husband's brick field and that her
husband had received the payments by
the cheques signed by her on behalf of
the firm. The impugned order does not
require any interference of the Court.
Case law discussed:
3 All] Smt. Anita Devi V. State of U.P. and others

787
AIR 1975 SC 915, (2005) 8 SCC 340, 2003 (4)
AWC 3289.

## Text

786 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

continued to be valid and operative. A
seasonal employee, cannot be equated
with a temporary employee. This Court
has not been shown any provision where
under even a seasonal employee is
entitled for pension.

8. Consistent with the provisions of
Civil
Service
Regulations
and
Fundamental Rule 56 several Government
Orders were issued from time to time and
by the subsequent Government Order
dated 01.04.1989 it was clarified that a
temporary servant who has completed 10
years of service would also be entitled for
pension. No provision has been shown to
this Court which provide otherwise.

9. Admittedly, since the petitioner
has not rendered qualifying service to the
extent provided in the Rules entitling him
for pension after his status as Seasonal
Collection Peon ceased, I do not find any
reason to interfere with the order
impugned in this writ petition. The writ
petition lacks merit and is accordingly
dismissed. No costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2009

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 38806 of 2009

Smt. Anita Devi

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

Counsel for the Petitioner:
Sri R.N. Singh
Sri Nipun Singh
Counsel for the Respondents:
Sri Anurag Sharma
Sri Satish Chaturvedi (AAG)
Sri Neeraj Upadhyay (Addl. C.S.C.)

U.P.
Kshetra
Panchayat
and
Zila
Panchayat (Removal & Pramukh and UpPramuks, Chairman and Vice-Chairman)
Enquiry Rules-1997-Rule 5, 6 a ceasure
of financial and administrative power of
Pramukh-Principal
secretary
by
exercising power under Rule 3 appointed
the District Magistrate as enquiry officerwho on its time based upon enquiry
conducted
by
A.D.M.-forwarded
the
earlier report to the Govt.-on that basis
order passed-challenge made on ground
District Magistrate instead of himself
conducting
enquiry
committed
great
illegality-petitioner not making payment
of development work labor employed
under scheme also not paid-quality of
brick also very poor-as her husband was
supplier-No prejudice shown in the
enquiry-requires no interference.

Held: Para 18

We have gone through the enquiry
report dated 25.7.2008 and the reasons
given by the State Government for
initiating the regular enquiry and to
suspend the financial and administrative
powers of the petitioner. We do not find
that
the
State
Government
has
committed any error on facts or in law in
exercise of its discretion. The petitioner
was
not
making
payments
for
development
works
even
after
the
supply
of
material.
The
labourers
employed in the schemes were not paid
for almost three months. It was prima
facie found that the petitioner was
exercising
the
pressure
for
making
estimates of fresh projects and for
making payments of the bricks, the
quality of which was doubtful, supplied
by her husband's brick field and that her
husband had received the payments by
the cheques signed by her on behalf of
the firm. The impugned order does not
require any interference of the Court.
Case law discussed:
3 All] Smt. Anita Devi V. State of U.P. and others

787
AIR 1975 SC 915, (2005) 8 SCC 340, 2003 (4)
AWC 3289.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Shri R.N. Singh, Senior
Advocate assisted by Shri Nipun Singh
for the petitioner. Shri Shri Satish
Chaturvedi, AAG assisted by Shri Neeraj
Upadhyay, Addl. Chief Standing Counsel
appears for the respondents.

2. The affidavits have been
exchanged. With the consent of parties,
we heard the matter.

3. This writ petition is directed
against the order dated 17.7.2009 passed
by the Principal Secretary, Panchayati
Raj, Anubhag-2 appointing the District
Magistrate, Muzaffar Nagar as enquiry
officer under Rule 5 of the U.P. Kshetra
Panchayat and Zila Panchayat (Removal
of Pramukhs, Up Pramukhs, Chairman
and Vice Chairman) Enquiry Rules, 1997.
The State Government has by the same
order in exercise of its powers under the
proviso to Section 16 of the U.P. Kshetra
Panchayat and Zila Panchayat Adhiniyam
directed that until Smt. Anita Devi,
Pramukh, Kshetra Panchayat, Shahpur,
Muzaffarnagar-
the
petitioner
is
exonerated in the final enquiry, she will
not
exercise
the
financial
and
administrative powers attached to the
post.

4. Briefly stated the facts giving rise
to this writ petition are that the petitioner
was
elected
as
Pramukh
Kshetra
Panchayat, Shahpur, Muzaffarnagar on
27.2.2006, with 43 out of 81 votes in her
favour. She is BAMS doctor and belongs
to Rashtriya Lokdal Party and has
supported the members of the Rashtriya
Lokdal in the Lok Sabha and Vidhan
Sabha elections. She was a member of
Zila Panchayat, Muzaffar Nagar prior to
her elections as Pramukh. It is stated by
her that after Shri Yograj Singh was
elected
as
Member
of
Legislative
Assembly from Khatauli Constituency as
a candidate of Bahujan Samaj Party and
became the Minister of Krishi Shiksha &
Anusandhan Vibhag, he started harassing
the petitioner. In order to remove her,
various complaints were arranged by him
to be sent to the District Magistrate,
Muzaffar Nagar by the members of
Kshetra Panchayat. These complaints did
not fulfill the mandatory conditions of
filing of affidavits of all the persons from
whom the complainants claims to have
received
information
and
were
not
verified before a notary. The complaints
also did not enclose all the documents in
their possession. Rule 3 of the U.P.
Kshetra Panchayat and Zila Panchayat
(Removal of Pramukhs, Up Pramukhs,
Adhyaksh and Upadhyaksh) Enquiry
Rules, 1997 ( in short Enquiry Rules,
1997) provides that the complaints shall
be verified in the manner laid down in the
CPC, 1908 with three copies to be
submitted by the complainant. A show
cause notice was issued to the petitioner
by
the
Adl.
District
Magistrate
(Administration), Muzaffar Nagar to give
reply to the allegations made against her
by the complainants. She gave her reply
on 17.5.2008. A detailed enquiry report
was submitted by the Addl. District
Magistrate
(Admn.)
to
the
District
Magistrate on 25.7.2008 enclosing all the
material collected by him.

5. Shri R.N. Singh submits that the
District Magistrate or the Addl. District
Magistrate did not have power to cause an
enquiry in as much as Rule 4 of the Rules
788 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

of 1997 provides that the complaints have
to be addressed to the State Government
and that preliminary enquiry can be
directed only under the orders of the State
Government. Sub Rule-2 provides the
report to be submitted to the State
Government within a fortnight. The
petitioner, however, submitted a reply on
23.6.2008. The Addl. District Magistrate
(Admn.), Muzaffar Nagar conducted the
enquiry and submitted a report to the
District Magistrate on 25.7.2008. In the
meantime, some members of the Kshetra
Panchayat initiated the proceedings for
moving a no confidence motion against
the petitioner on which the Addl. District
Magistrate (Admn.), Muzaffar Nagar
fixed 16.6.2008 for the meeting. The
motion could not be carried out as the
complainant failed to muster the requisite
prescribed majority in support of the
motion.

6. It is stated that after failing in
their attempt to remove the petitioner by
no confidence motion the same persons
sent complaints addressed to the State
Government to remove the petitioner.
Before making the complaints the enquiry
report dated 25.7.2008 was made the basis
to suspend the service of Junior Engineer
Shri Suresh Verma, Rural Engineering
Services, U.P. The State Government
entertained the complaints; against the
petitioner
and
directed
the
District
Magistrate to make a preliminary enquiry
into
the
allegations.
The
District
Magistrate instead of holding a fresh
preliminary enquiry relied upon the same
enquiry report of the Addl. District
Magistrate (Admn.), Muzaffarnagar dated
25.7.2008 and forwarded the same to the
State Government. By the impugned order
dated 17th July, 2009, giving rise to this
writ petition the State Government has
prima facie found the allegations on the
basis
of
the
enquiry
report
dated
12.6.2008 to be established and has while
issuing the show cause notice to the
petitioner stopped her from exercising the
administrative and financial powers.

7. Shri R.N. Singh, Sr. Advocate
submits that the procedure provided under
the Enquiry Rules, 1997 is mandatory.
The
District
Magistrate
was
not
authorised to receive the complaints
directly and to cause an enquiry through
the Addl. District Magistrate. The District
Magistrate did not act upon enquiry
report. But when the State Government
directed him to cause an enquiry, he has
instead of holding a fresh preliminary
enquiry relied upon the same enquiry
report. The District Magistrate has not
made
any
fresh
enquiry
into
the
allegations and thus the material relied
upon by the State Government was not
valid.
He
would
submit
that
the
respondents have put the cart before the
horse. The preliminary enquiry was to be
initiated after the State Government had
taken notice to the allegations. Even if the
allegations and material is the same, the
District Magistrate was obliged under the
Enquiry Rules of 1997 to hold a fresh
enquiry. He would further submit that the
allegations are not such, which may result
into the removal of the petitioner and that
in any case, prima facie, there is no
financial or other irregularity alleged to be
established by the material available on
record to take the drastic action to
suspend the financial and administrative
powers of the petitioner as an elected
Block Pramukh.

8. Shri R.N. Singh has relied upon
Ramchandra Keshav Adke (dead) by
LRs Vs. Govind Joti Chavare, AIR
3 All] Smt. Anita Devi V. State of U.P. and others

789
1975 SC 915 to submit that where a
power is given to do a certain thing in a
certain way, the thing must be done in
that way or not at all and all other
methods of performance are necessarily
forbidden. The principle has to be
recognised not in vacuum but with the
object and purpose for which such powers
are vested in the statutory authorities.

9. It is submitted that three
allegations
were
made
against
the
petitioner. Firstly it was alleged that the
petitioner did not sign the cheques for the
payment
of
the
material
in
the
construction
works
affecting
the
development of the block. Secondly it
was alleged that the petitioner is creating
such circumstances, which have adversely
affected the various schemes in as much
as she has signed one cheque on
21.9.2007 and 4 cheques on 15.10.2007
after a delay of about 3 to 4 months.
Thirdly it was stated that in the
employment schemes, the labourers were
not paid their dues in time. She did not
have any effective control over the
officers and employees of the block.

10. Shri R.N. Singh submits that the
enquiry report did not prove these
allegations. The State Government found
the receipt of the cheque issued to M/s
Neelkant Brick Field Supply, Garhi,
Bahadurpur by the petitioner's husband to
be a serious financial irregularity and has
made the incident as the foundation of the
order. The petitioner's husband had
supplied the bricks to the agency. The
collection of cheques by the petitioner's
husband for the supplies could not be a
ground to form any opinion against the
petitioner. There are no allegations of
misappropriation or embezzlement of
funds.
11. Shri Satish Chaturvedi, Addl.
Advocate General submits that initially
the complaints made to the District
Magistrate
were
subjected
to
a
preliminary enquiry through the Addl.
District Magistrate (Admn.). The District
Magistrate, however, did not take any
action on the report. The complaints were,
thereafter, made to the State Government
making serious allegations against the
petitioner.
The
State
Government
forwarded the matter to the District
Magistrate to cause an enquiry. The
District Magistrate found that the same
allegations were subject matter of earlier
enquiry and forwarded the report of the
Addl.
District
Magistrate
dated
02.09.2008. The object of forwarding the
complaint is to make a preliminary
enquiry. If the same allegations were
subject matter of an earlier enquiry the
District Magistrate did not commit any
illegality
in
forwarding
the
report
available in his office to the State
government. The object of the preliminary
enqiry is to verify the truth of the
assertions and collect the material to
support the findings. If such material is
already
available
with
the
District
Magistrate, he could have relied upon it to
report to the State Government. There
were serious allegations against the
petitioner. Her husband was supplying the
bricks for the development works of the
Kshetra Panchayat of which the petitioner
is the Pramukh.

12. Shri Chaturvedi submits that the
Addl. District Magistrate had caused a
detailed enquiry into the allegations. On
charge No.1 it was found that the
petitioner was delaying the signing of the
cheques
for
oblique
purposes.
The
cheques prepared in March, 2007; May,
2007 and June, 2007 was not signed by
790 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

her. The delay affected the development
work. The villagers engaged in the
employment schemes was not paid their
daily wages for almost three months,
causing irreparable hardship and serious
injustice to them. On charge No.2 the
Addl. District Magistrate found that the
defence of the petitioner that she delayed
the signing of the cheque for verification
of the work was not valid. She had not
given any directions to her subordinate
officers and employees for verification of
alleged irregularities. On charge No.3
once again it was found that payment to
the suppliers and the workmen for
cleaning the irrigation canals, drains and
beautification of the block were not made
for almost six months. Infact she had
refused to sign the cheque for oblique
purposes and had delayed the payment of
about 12 lacs for which government
orders provided for payment within two
weeks. The details of the work done and
the delay in payments is given in detail in
the report. The Addl. District Magistrate
further found in his enquiry that M/s
Neelkant Brick Field Supply was a firm
set up as a grant by the petitioner's
husband
for
supplying
bricks.
The
petitioner denied that her husband had
supplied the bricks but that the material
on record proved that cheques were issued
in the name of M/s Neelkant Brick Field
Supply. M/s Neelkant Brick Field Supply
is a firm of the petitioner husband. The
payments were made to the extent of
Rs.10,40,000/-. The allegation Nos.4 and
5 for repair of four 'Kachcha Road' by
'kharanjas' for which no estimates were
prepared and supply of pilli bricks by the
petitioner husband and for withholding
other payments for preparing bills for
payment of these bricks supply by
petitioner husband was also found to be
prima facie established.
13. Learned Addl. Advocate General
submits that all the allegations made
against the petitioner, that her husband
was
exercising
undue
pressure
for
preparing false estimates and for making
payments of the bricks supplied by him,
for which the cheques were delayed and
were ultimately signed by the petitioner
were established. The larger enquiry by
the
District
Magistrate
will
further
confirm these facts.

14. The object and purpose of the
preliminary enquiry is to collect material
to verify the allegations made against the
elected representative of zila panchayat
and kshetra panchayat. It is not necessary
to give an opportunity of hearing to the
person as the enquiry is only a fact
finding enquiry. The question whether at
this stage any opportunity to be given, if
financial and administrative powers are to
be ceased, has been referred by this Court
to the Larger Bench. In this case,
however, the Addl. Distt. Magistrate in
his preliminary enquiry had given a show
cause notice to the petitioner and has
considered her reply. He made a thorough
enquiry and found sufficient material
against her to find the allegations to be
prima facie established. These findings
will be the subject matter of the regular
enquiry.

15. The allegations made in the
affidavit of the complainant to the State
Government were the same, which were
earlier made to the District Magistrate.
The enquiry report of the Addl. Distt.
Magistrate after giving an opportunity to
the petitioner was available on record.
The satisfaction of the District Magistrate
that there was sufficient material collected
in the report, after giving the opportunity
to the petitioner did not require any fresh
3 All] Ali Mohammad Hussain V. State of U.P. and another

791
enquiry to be made in the matter. The
petitioner did not suffer any prejudice at
all and was rather given a show cause
notice and was associated with the
preliminary enquiry held by the Addl.
District Magistrate. The rules mandate
that preliminary enquiry should be held
and that there should be sufficient
material to initiate final enquiry.

16. In Dayandeo Ganpat Jadhav
Vs. Madhav Vitthal Bhasker, (2005) 8
SCC 340 the Supreme Court after
noticing the judgment in Rama Chandra
Keshav Adke (Supra) observed in para 31
of the report that if the requisite procedure
is followed by informing the person of his
rights and that he was unwilling to
purchase the land and surrender his
tenancy, the procedure was followed. In
substance the Supreme Court held that
where the person was fully aware of his
rights
and
was
given
repeated
opportunities to purchase the land and
surrender his tenancy the rules were
substantially followed. The administrative
law has developed the doctrine of
'prejudice' to override the principle of
strict
and
blind
adherence
to
the
procedure in the rules. If the substantial
compliance of the rules is established and
no prejudice is caused to the person, the
administrative action cannot be declared
to be invalid merely on the ground that
the rules were not strictly followed.

17. In Mukesh Rajput Vs. State of
U.P. & Ors., 2003 (4) AWC 3289 this
Court has held that where the petitioner
was provided all the documents in the
preliminary
enquiry
and
had
full
knowledge of the enquiry proceedings,
the
decision
taken
by
the
State
Government on the material collected on
the allegations, which are serious in
nature would not require interference of
the Court.

18. We have gone through the
enquiry report dated 25.7.2008 and the
reasons given by the State Government
for initiating the regular enqiry and to
suspend the financial and administrative
powers of the petitioner. We do not find
that the State Government has committed
any error on facts or in law in exercise of
its discretion. The petitioner was not
making payments for development works
even after the supply of material. The
labourers employed in the schemes were
not paid for almost three months. It was
prima facie found that the petitioner was
exercising the pressure for making
estimates of fresh projects and for making
payments of the bricks, the quality of
which was doubtful, supplied by her
husband's brick field and that her husband
had received the payments by the cheques
signed by her on behalf of the firm. The
impugned order does not require any
interference of the Court.

19. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2009

BEFORE
THE ARVIND KUMAR TRIPATHI, J.

Criminal Misc. Application No. 22022 of
2009

Ali Mohammad Hussain
...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Jai Singh Yadav