# Uma Shankar Beriya v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-18
- **Case number:** Writ C No. 7159 of 2019
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-shankar-beriya-v-state-of-u-p-ors-45274
- **Pages:** 9

## Headnote

A. Civil Law-Uttar Pradesh Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members) Enquiry Rules, 1997 - Rule 4 and 5
- Validity of second time Preliminary Enquiry -
There is no provision of law whereunder District
Magistrate is authorized to exercise discretion to hold
enquiry for the second time in the face of fact that
earlier preliminary enquiry report was pending
consideration - Also there is no any provision
whereby the District Magistrate has been authorized
to appoint a committee to conduct enquiry - Second
enquiry report, therefore, not being as contemplated
under the enquiry rules but got ordered by the
District Magistrate without any sanction/ request
from the State, the order was void, and so the
report would also be void and non est and deserves
rejection. (Para 23 and 27)

B. Interpretation of Statute - When
something is required under the Act or Rules
framed therein to be done in a particular
manner, then such thing should be done in that
very manner only. (Para 15)

C. Constitution of India - Article 14 -
Procedure - Testing before upholding any
action - It is not the ultimate result which
is of vital importance but procedure that
has been adopted in achieving the end
result is of equal importance - The
procedural aspect of the matter acquires
more significance while testing an ultimate
action on a testing anvil of Article 14 of
the Constitution in order to uphold such an
action. (Para 18)
240 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition allowed. (E-1)

List of cases cited :-

## Text

2 All. Uma Shankar Beriya Vs. State of U.P. & Ors.
239
 towards litigation. The impugned award
was made on 31.10.2000 and this petition
was admitted to hearing on 14.02.2002,
when the operation of the said award was
ordered to remain stayed till further orders.
The
impugned
award
has
remained
inoperative ever-since. A perusal of the
counter affidavit filed on behalf of the
workman, dated 28.08.2002 shows that he
was aged 39 years in the February of the
year 2002. Reckoning the workman's age
by the passage of time, he would be aged
about 57 years. The workman has been out
of employment since January, 1999, which
reckons his period of disassociation with
the work to which he has been ordered to
be reinstated as 21 years. At this distance
of time and the workman's age, it would
not be feasible to order the Employers to
reinstate him as a seasonal hand in their
establishment. But, the termination of the
workman's engagement being found to be
unlawful and improper, ends of justice
would be met by ordering the petitionerEmployers to pay the workman a lump
sum of Rs.5 lakhs within two months of
the date of this judgment. Any delayed
payment of this money in lump sum, in
lieu of reinstatement, will carry interest at
Bank Rate from the expiry of two months
of this judgment, till realization in
accordance with law.

36. The writ petition is partly
allowed and the impugned award of the
Labour Court stands modified accordingly.
There shall be no order as to costs.
----------
(2020)02ILR A239

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 7159 of 2019

Uma Shankar Beriya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan, Sri Udayan Nandan, Sri
Rakesh Kumar Mishra

Counsel for the Respondents:
C.S.C., Sri Pramod Kumar Singh, Sri
Rakesh Pande

A. Civil Law-Uttar Pradesh Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members) Enquiry Rules, 1997 - Rule 4 and 5
- Validity of second time Preliminary Enquiry -
There is no provision of law whereunder District
Magistrate is authorized to exercise discretion to hold
enquiry for the second time in the face of fact that
earlier preliminary enquiry report was pending
consideration - Also there is no any provision
whereby the District Magistrate has been authorized
to appoint a committee to conduct enquiry - Second
enquiry report, therefore, not being as contemplated
under the enquiry rules but got ordered by the
District Magistrate without any sanction/ request
from the State, the order was void, and so the
report would also be void and non est and deserves
rejection. (Para 23 and 27)

B. Interpretation of Statute - When
something is required under the Act or Rules
framed therein to be done in a particular
manner, then such thing should be done in that
very manner only. (Para 15)

C. Constitution of India - Article 14 -
Procedure - Testing before upholding any
action - It is not the ultimate result which
is of vital importance but procedure that
has been adopted in achieving the end
result is of equal importance - The
procedural aspect of the matter acquires
more significance while testing an ultimate
action on a testing anvil of Article 14 of
the Constitution in order to uphold such an
action. (Para 18)
240 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition allowed. (E-1)

List of cases cited :-

1. State of Kerala v. Kerala Rare Earth and
Minerals Ltd. (2016) 6 SCC 323

2. CIT v. Anjum M.H. Ghoswala (2002) 1 SCC
633

3. State of Andhra Pradesh v. Visvanadula
Chetti Babu (2010) 15 SCC 103

4. Dipak Babaria v. State of Gujarat (2014) 3
SCC 502

5. NGEF Ltd. v. Chandra Developers Pvt. Ltd. &
Others (2005) 8 SCC 219

(Delivered by Hon'ble Ramesh Sinha, J.)

1. Heard Sri Shashi Nandan, learned
Senior Advocate assisted by Sri Udayan
Nandan, learned counsel for the petitioner,
Sri M.C. Chaturvedi, learned Additional
Advocate General for the State and Sri
Rakesh Pandey, learned Senior Advocate
holding brief of Sri Pramod Kumar Singh,
learned counsel for the intervener.

2. The petitioner before this Court is
an elected Pramukh of Kshetra Panchayat,
Haseran,
district
Kannauj.
While
discharging his duties as such, as many as
eight members, namely, Sri Pushpendra
Singh @ Firu Singh, Sri Yogendra Singh,
Sri Firu Singh, Smt. Santosh, Smt. Soni,
Sri Ranjit, Sri Ram Vilas and Sri Suresh
Chandra
of
the
Kshetra
Panchayat
concerned made same complaint to the
Additional
Chief
Secretary
of
the
Panchyati Raj Department, U.P. Lucknow
on 2nd February, 2018 supported by their
individual affidavits regarding financial
irregularities and favoritism and nepotism
in acceptance of a tender for the
development work. Considering the said
complaint,
the
Special
Secretary,
Government of U.P. Lucknow exercising
power so vested in the State Government
under the Uttar Pradesh Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members)
Enquiry
Rules,
1997
(hereinafter referred to as rules), directed
for preliminary enquiry by the State
Government under Rule 4 of the said rules
vide order dated 7th March, 2018. The
District Magistrate, consequently, issued a
direction on 17th March, 2018 appointing
Additional District Magistrate (Finance
and Revenue), Kannauj to hold enquiry
and submit report within seven days so
that report may be submitted to the State
Government within 15 days as per Rules.
The
Additional
District
Magistrate
(Finance and Revenue) Kannauj proceeded
to hold preliminary enquiry and fixed 28th
March, 2018 directing Block Development
Officer to inform all the persons concerned
who had made complaint to appear before
him at 4:00 pm. Notices were separately
issued also by the Additional District
Magistrate to all the 8 complainants to
appear before him at 4:00 pm in his office.
There is document available on record
dated 28th March, 2018, in which Sub
Divisional Magistrate has intimated the
Additional District Magistrate about due
service of notice upon the complainant in
the matter. As per schedule, enquiry
officer held his enquiry on 28th March,
2018 and the complainants did appear and
filed their statements.

3. From the perusal of the original
records, it also transpires that on the date
fixed before Additional District Magistrate
as many as 16 members besides the
complainant had also appeared and made
their respective statements as well as filed
notary affidavits in writing. It is after
holding meeting as per schedule, the
Additional District Magistrate concluded
2 All. Uma Shankar Beriya Vs. State of U.P. & Ors.
241
preliminary enquiry and submitted a report
to the District Magistrate on 7th April,
2018 recording findings to the effect that from
the perusal of the documents and enquiry
conducted and the scrutiny of complaints made
by Pushpendra Singh and other complainants,
he did not find any substantial evidence in
support of complaints nor, the complainants
were able to produce any substantial evidence
in support of their complaints.

4. The operative portion of the report
dated 7.4.2018 which is in devnagari script is
reproduced hereunder:

"mijksDr lEiw.kZ tkap ,oa vfHkys[kh;
lk{;ksa ls Li"V gksrk gS fd Jh iq"isUnz flag vkfn {ks=
iapk;r lnL; vkfn }kjk dh x;h f'kdk;rh izkFkZuk
i= esa yxk;s x;s vkjksiksa ds lEcU/k esa
f'kdk;rdrkZx.k dksbZ ,sls Bksl lk{;@ rF; miyC/k
ugh djk ik;s ftlls f'kdk;r dk cy feyrk gks A
tkap vk[;k mijksDruqlkj lsok esa izsf"kr gS A"

5. It also transpires from the record that
some complaint was made by Yogendra
Singh and Pushpendra Singh and members of
Kshetra Panchayat separately on 2nd April,
2018 in which they requested the District
Magistrate that there was undue influence
exercised by the petitioner upon the members
of the Kshetra Panchayat and, therefore,
affidavits were submitted in terrarum by the
members and so the fresh enquiry should be
conducted by joint team consisting of Rural
Development Authority and Public Works
Department to verify the facts.

6. It appears that District Magistrate,
instead of forwarding report dated 7th April,
2018, proceeded to issue a fresh direction on
16.4.2018 to get the enquiry held afresh by a
team consisting of three officials each of
Public
Works
Department,
P.M.G.S.Y,
Kannauj and, Finance and Accounts Officer of
Secondary Educational Department, Kannauj.
However, on the same day the District
Magistrate passed another order on 16th April,
2018 directing constitution of four member
committee and this time it included an
additional
member
of
(District
Rural
Development
Authority
(DRDA)
and
Executive Engineer of P.M.G.S.Y, Kannauj.
This four member Committee proceeded to
hold enqiry and submitted a report on 6th July,
2018. The Additional District Magistrate
taking into account the report of the four
member committee further proceeded to
prepare another report in the name of
preliminary enquiry and submitted this report
on 16th August, 2018 and it is this report that
was forwarded by the District Magistrate to the
Special
Secretary
U.P. Panchayati
Raj
Department, Lucknow.

7. The operative portion of the
finding of preliminary enquiry report is
also reproduced hereunder:

"vr% iwjs izdj.k ds voyksdu esa ik;k
x;k gS fd Jh iq"isUnz o Qh: flag dks NksMdj vU;
Jherh lksuh] Jherh lUrks"k] Jh ;ksxsUnz dqekj] Jh
jathr] Jh jkefoykl] rFkk Jh lqjs'kpUnz {ks= iapk;r
lnL;ksa@ f'kdk;rdrkZvks }kjk izLrqr 'kiFk i=ksa ds
[k.Mu djrs gq, ;g dgk x;k gS fd muds }kjk
vkj0Mh0 cukokus rFkk dk;Z fnyokus ds cgkus muls
dksjs LVkEi ij gLrk{kj Jh iq"isUnz flag {ks= iapk;r
lnL; }kjk djk;s x;s gSa] rFkk mDr 'kiFk i=ksa dks
Cykd izeq[k Jh meka'kadj csfj;k dks gVkus ds fy,
mi;ksx fd;k x;k gS] ftldk mUgksaus izkFkZuk i=]
'kiFk i= rFkk cu;ku vafdr djkdj [k.Mu fd;k
x;k gS A ;g Hkh dgk x;k gS fd Jh mek'kadj csfj;k
}kjk x;s dk;Z lUrks"ktud gS A xfBr Vhe }kjk
tkap ds lEcU/k esa Hkh {ks= iapk;r lnL;ksa o fuekZ.k
lfefr ds v/;{k }kjk c;kuksa esa dgk gS fd mDr
pkjks dk;kZsa ds uewuk fdlds lkeus fy;s x;s rFkk
fdl iz;ksx'kkyk ls tkap djk;h x;h gS A iwoZ esa
mDr dk;ksZ ds uewus ysdj pkjksa fuekZ.k dk;Z esa iz;qDr
b.VjykWfdax bZaVksa dk DokfyVh dUVaksyj iz;ksx'kkyk
eSuiqjh }kjk tkap djkdj gh Hkqxrku fn;k x;k gS A
mDr pkjksa ekxskZa dh tkap xzke fodkl foHkkx ds
dk;skZa gsrq xfBr Vh0,0lh0 ds }kjk Hkh tkap dh tk
pqdh gS A tcfd tkap Vhe }kjk viuh vk[;k esa
242 INDIAN LAW REPORTS ALLAHABAD SERIES
mDr dk;ksZa esa iz;qDr fuekZ.k lkexzh v/kskekud ik;h
x;h gS A

tkap vk[;k egksn; dh lsok esa mfpr
dk;Zokgh gsrq izsf"kr gS A"

8. The State Government issued a show
cause notice on 23rd October, 2018 to the
petitioner to submit his reply/explanation
within 15 days, failing which appropriate
action shall be taken taking recourse to the
powers under the Act of 1961. The petitioner
before submitting the reply demanded certain
papers/documents which were not legible and
were part of the compilation consisting of 213
pages, vide letter dated 3rd December, 2018
and made reminder on 29.12.2018, however, it
is submitted that those letters of the petitioner
remained unanswered and ultimately vide
order dated 8th February, 2019 passed by
respondent no. 1, final enquiry has been
directed as per 1997 Enquiry Rules, but at the
same time taking recourse to the proviso , the
financial and administrative powers of the
petitioner have also been seized. Hence this
petition.

9. Assailing the order, learned
counsel for the petitioner has raised three
fold arguments:

(a). Once preliminary enquiry
was conducted by the Additional
District Magistrate pursuant to the
order passed by the District Magistrate
in compliance of the direction issued
by the State Government under Rule 4
and enquiry report was submitted on
7.4.2018, it was not open for the
Additional District Magistrate to have
directed for enquiry afresh for the
second time without prior sanction
from the State Government;

(b). The District Magistrate did
not himself hold 2nd preliminary enquiry
and illegally appointed a sub- committee
nor, do the rules contemplate for any such
exercise
of
power
by
the
District
Magistrate; and

(c). The District Magistrate was
not justified in withholding the report
dated 7.4.2018 and further the State
Government was not justified in not
submitting legible copies of the documents
which were required by the petitioner and
upon which much reliance was placed by
the State Government recording prima
facie opinion regarding financial and other
irregularities at the end of the petitioner to
denude him immediately of the financial
and administrative power under Section 16
of the Act, 1961.

10. Before we proceed to consider
the
arguments
advanced
by
learned
counsel for the petitioner we would like to
put the record straight. At the time when
petition was initially argued and we made
a pointed querry to the learned Standing
Counsel as to whether there was any such
preliminary enquiry report dated 7.4.2018
was
already
available
with
District
Magistrate, it was argued by learned
Standing Counsel that no such report was
available nor, any order was passed for
holding enquiry prior to 16.4.2018, the
order that was passed for holding enquiry
by the Additional District Magistrate and
the enquiry report that was submitted by
Additional District Magistrate on 16th
April, 2018, it was in compliance thereof.

11. In order to verify this above
statement made by learned Standing
Counsel we summoned the original
records in sealed cover and yesterday
original records were produced in sealed
cover was opened and was taken into
Court's custody and matter was placed
today for final argument and today the
record has been thoroughly perused by us.
2 All. Uma Shankar Beriya Vs. State of U.P. & Ors.
243

12. In the initial narration of the facts
in this order, we have stated how enquiry
was directed by the State Government
under the order dated 7th March, 2018 and
Additional
District
Magistrate
was
directed by the District Magistrate vide
order dated 17th March, 2018 to submit
report within 7 days and thereafter
Additional District Magistrate proceeded
to issue notice to the complainants and
held meeting with them on 20th March,
2018 and finally submitted a report on 7th
April, 2018. This preliminary enquiry
report dated 7th April, 2018 is very much
available in the original record and,
therefore, statement made by learned
Standing Counsel on the earlier occasion
that no such report was available, turns out
to be false one.

13. Now, Shri M.C. Chaturvedi,
learned Additional Advocate General
while defending the State action, has very
fairly admitted that earlier enquiry report
dated 07.04.2018 is very much available in
record and also that the District Magistrate
vide his order dated 17.03.2018 had
nominated Additional District Magistrate
to
conduct
fact
finding
preliminary
enquiry and he submitted the report.

14. However, he has argued that
since final enquiry has been ordered in the
matter, it should be permitted to be
brought to its logical end and as there are
serious
charges
of
the
financial
irregularities and acceptance of tender
which is vitiated for nepotism and bias, the
Court may not interfere with the order
denuding the petitioner from its financial
and administrative power. He submits that
where public money and its misuse by
abuse of position is in issue, Court would
be reluctant in allowing such person to
retain such power pending final enquiry.

15. Before we proceed to examine
this above argument raised by learned
Additional Advocate General, we are
reminded of a settled legal principle that
when something is required under the Act
or Rules framed therein to be done in a
particular manner, then such thing should
be done in that very manner only. We are
resided of the judgment of the Apex Court
[(2016) 6 SCC 323 State of Kerala v.
Kerala Rare Earth and Minerals Ltd.]
wherein the derptive "Quando Aliquid
Prohibetur Ex Directo, Prohibetur Et Per
Obliquum" was taken into account and the
Court held that it is well settled that if law
requires a particular thing to be done in a
particular manner, then, in order to be
valid the act must be done in the
prescribed manner only. The Court relied
upon another judgment in the case of CIT
v. Anjum M.H. Ghoswala (2002) 1 SCC
633, wherein specially for the bench
Hegde 'J' observed "it is a normal rule of
construction that when a statute vests
certain power in an authority to be
exercised in a particular manner then the
said authority has to exercise it only in the
manner provided therein...".

16. In the matter of investigation the
Apex Court in the case of State of
Andhra Pradesh v. Visvanadula Chetti
Babu (2010) 15 SCC 103 has taken the
same view. In this case the question under
consideration was that the authority to
investigate under the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Rules, 1995. Rule 7 of Rules
provided for investigation by a police
officer not below the rank of a Deputy
Superintendent of Police. Vide para 4 the
Apex Court held thus:

"We are, therefore, of the
opinion that in view of the clear mandate
244 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Rules, it was only a specified Deputy
Superintendent of Police who could
investigate an offence under the Act. An
investigation done by any officer below
that rank and not specified as per Rule 7
would not be entitled to investigate any
such offence. In the present matter the
investigation has been made by an officer
of the rank of an Assistant Sub-Inspector
of Police. This was not permissible. We
endorse the judgment of the High Court in
this respect."

17. And again in the case of Dipak
Babaria v. State of Gujarat (2014) 3
SCC 502, vide para 61 has held thus:

"61. It is well settled that where
the statute provides for a thing to be done
in a particular manner, then it has to be
done in that manner and in no other
manner. This proposition of law laid down
in Taylor Vs. Taylor (1875) 1 Ch D
426,431 was first adopted by the Judicial
Committee in Nazir Ahmed Vs. King
Emperor reported in AIR 1936 PC 253
and then followed by a bench of three
Judges of this Court in Rao Shiv Bahadur
Singh Vs. State of Vindhya Pradesh
reported in AIR 1954 SC 322. This
proposition was further explained in
paragraph 8 of State of U.P. Vs. Singhara
Singh by a bench of three Judges reported
in AIR 1964 SC 358 in the following
words:-

"8. The rule adopted in Taylor v.
Taylor is well recognised and is founded
on sound principle. Its result is that if a
statute has conferred a power to do an act
and has laid down the method in which
that power has to be exercised, it
necessarily prohibits the doing of the act
in any other manner than that which has
been prescribed. The principle behind the
rule is that if this were not so, the statutory
provision might as well not have been
enacted...."

This proposition has been later
on reiterated in Chandra Kishore Jha Vs.
Mahavir Prasad reported in 1999 (8) SCC
266, Dhananjaya Reddy Vs. State of
Karnataka reported in 2001 (4) SCC 9 and
Gujarat Urja Vikas Nigam Limited vs.
Essar Power Limited reported in 2008 (4)
SCC 755.

18. Thus, it is not the ultimate result
which is of vital importance but procedure
that has been adopted in achieving the end
result is of equal importance. The
procedural aspect of the matter acquires
more significance while testing an ultimate
action on a testing anvil of Article 14 of
the Constitution in order to uphold such an
action.

19. In so far as the controversy in
question is concerned, the source of power
as has come to be exercised in the present
case is the U.P. Kshettra Panchayats and
Zila Panchayats (Removal of Pramukhs
and
Up-Pramukhs,
Adhyakshas
and
Updhyakshas) Enquiry Rules, 1997, (In
short Enquiry Rules). The procedure
relating to the complaints has been
prescribed for under Rule 3 of the Enquiry
Rules whereas Rule 4 provides for the
preliminary
enquiry
that
the
State
Government may on receiving of the
complaints, so order in order to get finding
to the effect that prima facie case for
formal enquiry is involved in the matter of
complaint. Rule 5 provides for power to
the State Government for holding a formal
enquiry, if in the opinion of the State
Government, it is imperative in view of the
report submitted under Sub-Rule 2 of the
Rule 4 and then Rule 6 lays down the
procedure for the formal enquiry. For the
purpose of the controversy involved in the
2 All. Uma Shankar Beriya Vs. State of U.P. & Ors.
245
present case. Rules 4 and 5 are relevant
and, therefore, are reproduced hereunder
in their entirety:

4. Preliminary Enquiry--(1) The
State Government may, on the receipt of
complaint referred to in Rule 3 or
otherwise appoint an officer not below the
rank of an Additional District Magistrate
in the case of Pramukh or Up-Pramukh
and District Magistrate in the case of an
Adhyaksha or Upadhyaksha to conduct a
preliminary enquiry with a view to finding
out if there is a prima facie case for a
formal enquiry in the matter.

(2) The Officer appointed under
sub-rule (1) shall conduct the preliminary
enquiry as expeditiously as possible and
submit his report to the State Government
within a fortnight of his having been so
appointed.

5. Enquiry Officer- Where the
State Government is of the opinion, on the
basis of the report referred to in sub-rule
(2) of Rule 4 that an enquiry should be
held against a Pramukh or Up-Pramukha
under Section 16 or gainst an Adhyaksha
or Upadhyaksha under Section 29, it shall,
by an order, appoint an officer to hold the
enquiry, who shall not be below the rank
of the District Magistrate in the case of an
enquiry under Section 16, and not below
the rank of a Commissioner in the case of
an enquiry under Section 29.
(Emphasis added)

20. From bare reading of Rule 4, it is
clear that after complaint is received as per
procedure prescribed under Rule 3 or even
suo motu, the State Government can
exercise power for holding preliminary
enquiry into the conduct of Pramukhs or
Up-Pramukhs,
Adhyakshas
or
Upadhyakshas by appointing officer not
below the rank of Additional District
Magistrate
and
District
Magistrate
respectively. Sub-rule 2 provides for such
enquiry officer conducting preliminary
enquiry, to accomplish the task quite
expeditiously and submit report within a
fortnight of his appointment as enquiry
officer.

21. Examining the case in hand in the
light of provisions contained under Rule 4,
we find that after complaints were
received under the signatures of as many
as 8 members, the State Government
through its Secretary, vide order dated
17th March, 2018 directed the District
Magistrate to hold preliminary enquiry.
Vide letter dated 17th March, 2018, the
District
Magistrate
authorized
the
Additional District Magistrate to hold
enquiry and submit the fact finding report
within 7 days, so that report may be
submitted to the State Government within
15 days as per Enquiry Rules.

22. The records produced before us
contain the documents to the effect that
Additional District Magistrate proceeded
to hold preliminary enquiry fixing dated
28th March, 2019 and directed the Sub
Divisional Magistrate to inform all the
complainants to appear before him at 4:00
pm. Sub Divisional Magistrate also
intimated
the
Additional
District
Magistrate on 28th March, 2018 that the
notices got duly served and so also records
disclose that preliminary enquiry as
ordered was held on 28th March, 2018 and
complainants did appear and filed their
statements.
The
Additional
District
Magistrate thereafter submitted report on
7th April, 2018 recording finding to the
effect that from the perusal of the
documents and enquiry conducted no
substantial evidence was found in support
of the complaints.
246 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Thus, as far as procedure for
holding preliminary enquriy as prescribed
for under Rule 4 is concerned, it stood
complied with and to that extent the task
stood accomplished by 7th April, 2018 but
records reveal that the District Magistrate
instead of fowarding the report dated 7th
April, 2018, directed the enquiry to be held
afresh by a team consisting of 3 officials and
then enlarged the team with four members
on same day i.e. 16.4.2018. As far as this
2nd part of the procedure adopted by the
District
Magistrate
vide
order
dated
16.4.2018 is concerned , we do not find any
such provision of law whereunder District
Magistrate
is
authorized
to
exercise
discretion to hold enquiry for the second
time in the face of fact that earlier
preliminary enquiry report was pending
consideration. We do find any provision
whereby the District Magistrate has been
authorized to appoint a committee to
conduct enquiry. The Rule is worded like
this "officer not below the rank of Additional
District Magistrate and officer shall himself
authorized a person to hold enquiry by the
District Magistrate or the Additional District
Magistrate" and so under the said Rule he is
not authorized to sub-delegate the power by
constituting a committee. Rule 4 can not in
any manner be interpreted to hold that it
contemplates the constitution of any such
committee as has come to be formed in the
present case and, therefore, we have no
hesitation in holding that the order dated
16.4.2018 passed by the Additional District
Magistrate appointing committee to hold
enquiry was beyond scope of power vested
with him under Rule 4 of the Enquiry Rules.
The doctrine delegatus non potest delegare
in the case of NGEF Ltd. v. Chandra
Developers Pvt. Ltd. & Others (2005) 8
SCC 219 has come to be discussed by the
Apex Court and vide para 69 the Court has
held thus:

"69. BIFR admittedly had the
power to sell the assets of the Company
but the High Court until a winding-up
order is issued does not have the same.
BIFR in its order dated 02.08.2002 might
have made an observation to the effect that
the Company may approach the High
Court in case it intended to dispose of its
property by private negotiation but the
same would not mean that BIFR could
delegate its power in favour of the High
Court. BIFR being a statutory authority in
absence of any provision empowering it to
delegate its power in favour of any other
authority had no jurisdiction to do so.
'Delegatus non potest delegare' is a wellknown
maxim
which
means
unless
expressly authorized a delegatee cannot
sub-delegate its power. Moreover, the said
observations of BIFR would only mean
that the Company Court could exercise its
power in accordance with law and not
dehors it. If the Company Court had no
jurisdiction to pass the impugned order, it
could not derive any jurisdiction only
because BIFR said so."

24. Coming to the 2nd aspect of the
matter which is relating to Rule 5, we find
that in the impugned order the Secretary
while directing for formal enquriy has
placed reliance only upon the report of
preliminary enquiry dated 6th July, 2018
submitted by the committee and then
consequential report dated 16th August,
2018 forwarded by the District Magistrate
as his report to the Special Secretary U.P
Panchayat Raj Department Lucknow.

25. We see that the records produced
before us clearly reveal that report dated
7th April, 2018 was also available on
record and yet the said report did not find
any consideration in the order of Joint
Secretary dated 18th February, 2019
2 All. Executive Engineer, Electricity Distribution Division, Farrukhabad Vs. Presiding Officer, Kanpur. & Ors.
247
impugned in the present writ petition. All
that is referred to is the report of the
District Magistrate dated 16.8.2018. The
fact
finding
enquiry
report
of
the
committee constituted by the District
Magistrate
under
the
order
dated
16.4.2018 and the contents as have come
up in his re-commendatory report dated
16.8.2018 are the same. The District
Magistrate, it is proved beyond doubt,
virtually did not hold himself any enquiry,
instead, submitted a report of the sub
committee as his report incorporating the
same in his re-commendatory enquiry
report dated 16.8.2018.

26. Rule 5 of the enquiry rules
provide for 'opinion of the Government'.
An opinion would naturally be formed
upon the report submitted under Rule 4. So
when two reports are submitted to the
State Government and one was in
compliance of the initial letter issued by
the State Government as preliminary
enquiry report which was to be submitted
within three weeks, there is no justification
as to why the Secretary would not refer to
that report and would not consider the said
report submitted well within time.

27. As the records reveal, the District
Magistrate proceeded to hold an enquiry
second time on the basis of some
complaint made by certain members, but
such enquiry would not come within the
scope of his authority as prescribed for
under Rule 4. Second enquiry report,
therefore, not being as contemplated under
the enquiry rules but got ordered by the
District Magistrate without any sanction/
request from the State, the order was void,
and so the report would also be void and
non est and deserves rejection. The
procedure which has been laid down under
Rule 4 as we have discussed above in this
judgment it is very clear that Additional
District Magistrate and District Magistrate
are the only officers or the officers of their
rank who can hold enquiry.

28. Under the circumstances, the
report which should have been relied upon
by the Secretary and yet if he has passed
the order for formal enquiry ignoring that
report, earlier submitted by the competent
authority within time as contemplated
under Rule 4, such an opinion formed by
the authority can only be termed to be
biased one. The two reports were available
and there are no justifiable reasons for not
considering the first report while passing
order impugned. Thus the order impugned
directing for formal enquiry, therefore,
deserves to be quashed and is accordingly
hereby quashed.

29. The writ petition succeeds and is
allowed in above terms with cost.
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(2020)02ILR A247

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ C No. 9616 of 1991

Executive
Engineer,
Electricity
Distribution Division, Farrukhabad
 ...Petitioner
Versus
Presiding Officer, Kanpur & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri B. Dayal, Sri A.K. Mehrotra, Sri P.N.
Rai, Sri Sandeep Kumar Srivastava, Ms.
Usha Kiran