# Usha Devi (Smt.) v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 932
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-02
- **Case number:** Civil Misc. Writ Petition No. 900 of 2014
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/usha-devi-smt-v-state-of-u-p-ors-43041
- **Pages:** 7

## Headnote

C.S.C., Anil Tiwari, Sri V.P. Yadav, Sri R.P.
Yadav

U.P.
Panchayat
Raj
1947-Section
95(i)(g)-Cessation
of
financial
and
administrative power of village Pradhan
on basis of report by District Saving
Officer-not a District level authority as
envisaged under Rule 2(c) of Rule 1997in view of Full Bench decision-such
report can not be used as material for
exercising power under section 95(1)(g)
of Act-order impugned quashed-petition
allowed.

Held: Para-16
The documents on record show that the
only order passed by District Magistrate
was addressed
to Chief Development
Officer to take appropriate action on the
complaint. The letter dated 29.6.2013
issued by District Panchayat Raj Officer
clearly says that District Magistrate vide
order dated 18.6.2013
has appointed
District Saving Officer, Jaunpur as Enquiry
Officer to conduct preliminary enquiry but
no enquiry report has been submitted by
District Saving Officer. This fact is not
disputed by respondents. It is thus evident
that Assistant Director (Saving) was never
an officer, appointed by District Magistrate,
to conduct enquiry in the matter. He has
submitted report, either after receiving
some instruction from District Saving
Officer or from any other officer, orally. The
report therefore, submitted by Assistant
Director (Saving), is illegal and without
jurisdiction. It would not qualify to be a
relevant document on which an order under
Rule 3(5) read with Proviso to Section
95(1)(g), for cessation of administrative
and financial powers of Gram Pradhan,
could have been passed, in view of law laid
down by Full Bench in Vivekanand Yadav
(supra).

Case Law discussed:
2010(10) ADJ 1 (FB)

## Text

932 INDIAN LAW REPORTS ALLAHABAD SERIES

9. It is well settled proposition of
law that at the admission stage, while
dealing with subject matter, the Court
should not single out the petitioner in case
other bunch of Writ Petitions is pending
with regard to adjudication of the same
controversy, that too, without recording a
finding on merit in terms of relief claimed
by the litigant. It is always appropriate for
the Court to proceed in terms of reliefs
and pleadings on record, and if, prima
facie, case is made out, and the facts and
circumstances
require,
then
the
respondent(s) may be called upon to file
their counter affidavit containing parawise
reply to the writ petition so that the
controversy involved may be adjudicated
on merits after providing opportunity of
hearing to the parties.

10. In this regard, we may aptly
reproduce the observations of the Hon'ble
Apex Court in the case of Vishnu Traders vs.
State of Haryana and Ors. Reported in 1995
Supp (1) SCC 461 wherein it was observed:

"In the matters of interlocutory
orders, principle of binding precedents
cannot be said to apply. However, the
need for consistency of approach and
uniformity in the exercise of judicial
discretion respecting similar causes and
the desirability to eliminate occasions for
grievances of discriminatory treatment
requires that all similar matters should
receive similar treatment except where
factual differences require a different
treatment so that there is assurance of
consistency, uniformity, predictability and
certainty of judicial approach."

11. Admittedly, a bunch of Writ
Petitions is pending wherein validity of
Clause-3 of the impugned Government
Order dated 24th July, 2012 has been
challenged. In the instant case also, the
petitioners-appellants
have
challenged
validity of Clause-3 of the Government
Order. In any case, dismissal of Writ
Petition at this stage, without adjudicating
the controversy involved, and without
recording a finding in terms of reliefs
claimed, seem to be unjustified.

12. In view of the above discussion,
the
appeal
deserves
to
be
allowed.
Accordingly, it is allowed. Impugned
Judgment and order dated 25th July, 2014
passed in Writ Petition No. 3743 (S/S) of
2014 is set aside. The Writ Petition is
restored to its original number and shall be
listed before the appropriate Bench in the
third week of September, 2014 along with
other similar bunch of Writ Petitions.
Officer-on-Special
Duty
(Classification)
shall find out and inform the Joint Registrar
(Listing) of this Bench with regard to all
pending identical matters so that the petitions
may be listed and decided simultaneously on
merits. Learned Chief Standing Counsel of
this Bench shall also provide list of all such
identical cases to the Joint Registrar
(Listing). In the meantime, learned counsel
for the respondents shall file counter affidavit
to the present Writ Petition No.3743 (S/S) of
2014 as well as other Writ Petitions.

13. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.08.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 900 of 2014

Usha Devi (Smt.) .Petitioner
Versus
State of U.P. & Ors. ...Respondents
2 All]. Usha Devi (Smt.) Vs. State of U.P. & Ors.
933
Counsel for the Petitioner:
Sri Alok Kumar Yadav, Sri Niraj Tiwari

Counsel for the Respondents:
C.S.C., Anil Tiwari, Sri V.P. Yadav, Sri R.P.
Yadav

U.P.
Panchayat
Raj
1947-Section
95(i)(g)-Cessation
of
financial
and
administrative power of village Pradhan
on basis of report by District Saving
Officer-not a District level authority as
envisaged under Rule 2(c) of Rule 1997in view of Full Bench decision-such
report can not be used as material for
exercising power under section 95(1)(g)
of Act-order impugned quashed-petition
allowed.

Held: Para-16
The documents on record show that the
only order passed by District Magistrate
was addressed
to Chief Development
Officer to take appropriate action on the
complaint. The letter dated 29.6.2013
issued by District Panchayat Raj Officer
clearly says that District Magistrate vide
order dated 18.6.2013
has appointed
District Saving Officer, Jaunpur as Enquiry
Officer to conduct preliminary enquiry but
no enquiry report has been submitted by
District Saving Officer. This fact is not
disputed by respondents. It is thus evident
that Assistant Director (Saving) was never
an officer, appointed by District Magistrate,
to conduct enquiry in the matter. He has
submitted report, either after receiving
some instruction from District Saving
Officer or from any other officer, orally. The
report therefore, submitted by Assistant
Director (Saving), is illegal and without
jurisdiction. It would not qualify to be a
relevant document on which an order under
Rule 3(5) read with Proviso to Section
95(1)(g), for cessation of administrative
and financial powers of Gram Pradhan,
could have been passed, in view of law laid
down by Full Bench in Vivekanand Yadav
(supra).

Case Law discussed:
2010(10) ADJ 1 (FB)
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Alok Kumar Yadav,
learned counsel for the petitioner Sri
V.P.Yadav, learned counsel for the
respondents and perused the record.

2. The writ petition is directed
against order dated 19.12.2013 (Annexure
9 to the writ petition) passed by District
Magistrate,
Jaunpur
under
Section
95(1)(g) of U.P. Panchayat Raj Act, 1947
(hereinafter referred to as "Act, 1947")
restraining petitioner from exercising
financial and administrative powers in the
capacity
of
Pradhan,
Gram
Sabha
Tazuddinpur, Block Mariyahoon and
appointing Enquiry Officer to conduct
final inquiry under the rules on the basis
of a fact finding report submitted by
Assistant Director, (Savings), Jaunpur and
Junior
Engineer,
Rural
Engineering
Services, Mariyahoon in a joint inquiry.

3. The facts giving rise to the
present dispute are as under:

4. The petitioner was elected Gram
Pradhan of Gram Sabha Tazuddinpur,
Tehsil Mariyahoon, District Jaunpur in
the election held in 2010. One Manoj
Kumar, Son of Raj Bahadur Yadav, on
account of animosity, made a complaint
dated 06.5.2013, which was allegedly
signed by some other villagers also. On
the said complaint, District Magistrate,
Jaunpur passed an order directing Chief
Development Officer, Jaunpur to take
"immediate necessary action". District
Panchayat Raj Officer, Jaunpur issued a
letter dated 29.6.2013 addressed to
District Savings Officer informing that on
the complaint made by Sri Manoj Kumar
with
a
notarial
affidavit,
District
Magistrate, vide order dated 18.6.2013
934 INDIAN LAW REPORTS ALLAHABAD SERIES
has appointed him (District Savings
Officer) as Enquiry Officer and therefore,
he should submit report within a fortnight.

5. However, an enquiry report
thereafter was submitted by Assistant
Director (Savings) Jaunpur. Most of the
work, he found, was performed but in
respect
to
construction,
he
found
following shortcomings:

^^1- dk;Z dh Lohd`fr ugha ikbZ x;hA

2- dk;Z dk LVhesV cuok;k x;k fdUrq mldh
Lohd`fr ugha ikbZ x;hA

3- dk;Z djkdj Hkqxrku fd;k x;k ftldh
rduhdh tkap ugha djk;kA^^

English Translation by the Court

"1. No approval for the work was
found

2. The estimate of the work was
prepared but approval therefor was not
found to be there.

3. Having the work done payment
was made but no technical examination
was conducted."

6. He (Assistant Director Saving,
Jaunpur) also appended following note in
the report:

^^uksV%& voj vfHk;Urk xzkeh.k vfHk;a=.k
foHkkx efM;kgq tkSuiqj }kjk miyC/k djk;h xbZ
tkap vk[;k ds dkye 6 ,0a 7 ij O;; /kujkf'k dS'k
cqd ds vuqlkj fHkUu ikbZ xbZ gSA**

English Translation by the Court

"Amounts of expenses as in columns
6 and 7 of the inquiry report made
available by the Junior Engineer, Rural
Engineering
Department,
Mariyahu,
Jaunpur were found to be different when
compared with the Cash Book."

7. The District Magistrate, thereafter
issued a show cause notice dated
30/31.10.2013 (Annexure 6 to the writ
petition). The petitioner was required to
submit reply as to why further action
under Section 95(1)(g) of Act, 1947 be
not taken against him since petitioner is
found guilty of misappropriation of funds
of Rs.7,97,744/-. The petitioner filed
reply dated 27.11.2013 denying all the
allegations
but
thereafter
District
Magistrate has passed the impugned order
ceasing
financial
and
administrative
power of petitioner during regular final
enquiry under Section 95(1)(g) of Act,
1947.

8. Counsel for the petitioner
contended that no fact finding enquiry or
preliminary enquiry has been conducted
by inquiry officer appointed by District
Magistrate and therefore, the very report,
on which District Magistrate has passed
impugned order, has been submitted by a
person, who was not authorized to do so,
hence the entire proceedings are illegal
and void ab initio. It is submitted that in
view of Full Bench judgment of this
Court in Vivekanand Yadav Vs. State of
U.P. & Anr., 2010 (10) ADJ 1 (FB),
District Magistrate can rely upon report of
a person, who is an "Enquiry Officer", as
defined under Rule 2(c) of U.P. Panchayat
Raj (Removal of Pradhans, Up-Pradhans
and Members) Enquiry Rules, 1997
(hereinafter referred to as "Rules, 1997")
and also if preliminary enquiry has been
conducted by District Magistrate himself
and not otherwise.

9. The matter has been contested by
respondents. A counter affidavit has been
filed on behalf of respondents 1 and 2,
which has been sworn by Sri A.K.Singh,
District Panchayat Raj Officer, Jaunpur.
2 All]. Usha Devi (Smt.) Vs. State of U.P. & Ors.
935
He has stated therein that after receiving
complaint, District Magistrate, vide order
dated 30.08.2013, nominated Assistant
Director
(Savings),
Jaunpur,
Junior
Engineer Rural Engineering Services and
Station House Officer, Madiyahoon to
conduct a preliminary enquiry. They
submitted
report
showing
petitioner,
prima
facie
guilty,
of
misappropriation/embezzlement of a sum
of Rs.7,97,744/- whereupon a show cause
notice was given to petitioner and after
considering his reply, impugned order
dated 19.12.2013 has been passed, which
is absolutely valid and in accordance with
law and warrants no interference. Copy of
enquiry report submitted by Assistant
Director (Savings), Jaunpur has also been
placed on record as Annexure C.A.1 to
the aforesaid counter affidavit.

10. Sri V.P.Yadav, Sri Anil Tiwari
and
Sri
Rajeshwar
Prasad
Yadav,
Advocates, have filed an impleadment
application as well as counter affidavit on
behalf
of
Manoj
Kumar
Yadav,
complainant, and therein have annexed
copy of their complaint dated 06.5.2013.
It is stated that an enquiry was conducted
by Assistant Director (Savings), Jaunpur,
who submitted tentative report dated
03.08.2013 to District Panchayat Raj
Officer, Jaunpur. The report was not
complete as on certain technical aspect,
no opinion was expressed and therefore, a
team was constituted comprising of
Assistant Director (Savings), Jaunpur, and
a Junior Engineer (Rural Engineering
Services), who has technical knowledge.
The
said team
inspected
the
site,
conducted
technical
inspection
and
thereafter submitted another report on
28.7.2013,
on
the
basis
whereof,
impugned order has been passed, which
does not warrant any interference.

11. The only question, up for
consideration, whether on the basis of so
called preliminary report/fact finding
report, submitted by Assistant Director
(Saving), an order for ceasing financial
and administrative powers could have
been passed under Section 95(1)(g) of
Act, 1947.

12. The law laid down by Full
Bench in Vivekanand Yadav (supra) can
be summarised as under:

(I) Section 95(1)(g) contemplates
removal of Pradhan while Proviso to
Section 95(1)(g) talks of enquiry before
ceasing
financial
and
administrative
powers during pendency of a removal
proceeding. If Pradhan is prima facie
found to have committed financial and
other
irregularities,
preliminary/fact
finding enquiry under Section 95(1)(g)
proviso is necessary, which has to be
conducted under Rule 4 of Rules, 1997.

(II) Proviso to Section 95(1) would
apply to Section 95(1)(g) contemplating
removal but not to any other provision
like Proviso to Section 95(1)(g).

(III) The proviso to Section 95(1)
provides for reasonable opportunity in
removal proceedings of a Pradhan under
Section 95(1)(g) but it does not apply to
Proviso to Section 95(1)(g) providing for
preliminary or fact finding enquiry: the
purpose of this enquiry is to find out if
there is any prima facie case against
Pradhan or not.

(IV) Proviso to Section 95(1)(g)
providing cessation of financial and
administrative powers does contemplate a
preliminary enquiry by a person and
procedure is to be prescribed: the Rules
have to be framed for the same. Rules,
1997 thus have been framed because it is
so mandated in the Proviso to Section
936 INDIAN LAW REPORTS ALLAHABAD SERIES
95(1)(g) of Act, 1947 and not because of
95(1)(g) or the Proviso to Section 95(1).

(V) The District Magistrate can order
a preliminary enquiry on the complaint or
report or otherwise. The word 'complaint'
or 'report' refers to the complaint by a
private person or to the report made by a
public servant under Rule 3.

(VI) The District Magistrate has
power to refer a case for preliminary
enquiry even if there is no complaint or
report. In other words, he has power to act
suo moto.

(VII) Even if a complaint made is not
entertainable in view of Rule 3(5) of
Rules, 1997 yet District Magistrate can
always refer the matter for preliminary
enquiry, if he consider that it should be so
enquired; since he can act suo moto.

(VIII) The word "otherwise" in Rule
4 means that District Magistrate has suo
motu powers to order a preliminary
enquiry, and, he may order a preliminary
enquiry even if there is no complaint or
report; or a defective complaint, not in
accordance with Rules 3(1) to 3(4).

(IX) A Pradhan has no right to object
that a complaint is not in accordance with
Rules 3(1) to 3(4) of Rules, 1997 and
hence no inquiry can be ordered.

(X) A Pradhan is neither entitled to
be associated in preliminary enquiry nor
entitled to get copy of preliminary enquiry
report. His only right is to have his
explanation or point of view or version to
the charges considered before the order
for
ceasing
his
financial
and
administrative power is passed.

(XI) It is not only necessary that
explanation or point of view or version of
affected pradhan should be obtained but
should also be considered before being
prima facie satisfied of his being guilty of
financial and other irregularities and
ceasing his powers. The consideration of
explanation does not have to be a detailed
one but there should be indication that
mind has been applied.

(XII) The proceeding for removal
has to be conducted in accordance with
Rules 6 onwards of Rules, 1997,
irrespective of the fact whether right to
exercise financial and administrative
power was ceased or not. However, where
right
to
exercise
financial
and
administrative power is also to be ceased
then procedure in Rules 3 to 5 has to be
followed, otherwise there is no necessity
to follow them.

(XIII) In other words, preliminary
enquiry may not be necessary if the
proceeding
for
removal
is
to
be
undertaken without ceasing power of
pradhan in respect to administrative and
financial matters.

(XIV) In order to exercise power
under Rule 5, to cease administrative and
financial
powers
of
Pradhan
under
Proviso to Section 95(1)(g) of Act, 1947,
District Magistrate can pass order in the
following contingencies:

(i) A complaint can be made directly
to the District Magistrate who may ask
the enquiry officer as defined 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 District Magistrate asking for
it ; or

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

(iv)
A District
Magistrate
can
himself conduct a preliminary enquiry.

(XV) Any other report can be
considered by District Magistrate under
2 All]. Usha Devi (Smt.) Vs. State of U.P. & Ors.
937
Rule 3(6) of Rules, 1997 for ordering
preliminary enquiry but final enquiry with
cessation of power cannot be ordered on
its basis. In other words, action under
Proviso to Section 95(1) (g) can also be
taken on the preliminary report of District
Magistrate as well as on a report of a
person defined as enquiry officer under
Rule 2(c) of Rules, 1997. Only these
reports would be covered in the word
'otherwise' of Rule 5.

13. Now, in the light of above
exposition of law, it has to be examined,
in the case in hand, whether enquiry
report relied on by District Magistrate,
treating it to be a preliminary enquiry
report, satisfy the requirement of statute
or not.

14. Firstly, I do not find any order
passed by District Magistrate appointing
any District Level Enquiry Officer to
conduct a preliminary enquiry in this
matter. Different orders and dates have
been mentioned, inasmuch as, in District
Panchayat Raj Officer's letters dated
29.6.2013 (Annexure 3 to the writ
petition)
it
is
stated
that
District
Magistrate has appointed District Saving
Officer, Jaunpur as Enquiry Officer. The
relevant part reads as under:

^^ftldh tkpa gsrq ftykf/kdkjh egksn; ds
vkns'k fnukad 18-06-2013 }kjk vkidks tkpa
vf/kdkjh ukfer fd;k x;k gSA^^

English Translation by the Court

"For enquiry whereof, vide District
Magistrate's order dated 18.06.2013, you
have been nominated as Enquiry Officer."

15. In the counter affidavit filed on
behalf of respondents 1 and 2, it has been
stated in para 4 thereof that vide order dated
30.8.2013, District Magistrate nominated
Assistant Director (Savings), Jaunpur;
Junior Engineer, Rural Engineering Service,
and Station House Officer, Mariyahoon to
conduct preliminary enquiry. In the counter
affidavit, filed by complaint Manoj Kumar
Yadav, he has referred to a report dated
3.8.2013 submitted by Assistant Director
(Saving), Jaunpur to District Panchayat Raj
Officer, Jaunpur with reference to his letter
dated 29.6.2013 pursuant whereto the said
report was submitted. Thereafter another
report was submitted by Assistant Director
(Saving) with letter dated 28.9.2013 and
here also it has referred to District
Panchayat
Raj
Officer's
letter
dated
29.6.2013 and none else. There is no
reference of any alleged letter dated
30.8.2013 of District Magistrate nominating
a three members committee to conduct
preliminary enquiry and submit report
consisting of Assistant Director (Saving),
Junior Engineer, Rural Engineering Service
and Station House Officer, Mariyahoon.

16. The documents on record show
that the only order passed by District
Magistrate
was
addressed
to
Chief
Development Officer to take appropriate
action on the complaint. The letter dated
29.6.2013 issued by District Panchayat Raj
Officer clearly says that District Magistrate
vide order dated 18.6.2013 has appointed
District Saving Officer, Jaunpur as Enquiry
Officer to conduct preliminary enquiry but
no enquiry report has been submitted by
District Saving Officer. This fact is not
disputed by respondents. It is thus evident
that Assistant Director (Saving) was never an
officer, appointed by District Magistrate, to
conduct enquiry in the matter. He has
submitted report, either after receiving some
instruction from District Saving Officer or
from any other officer, orally. The report
938 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, submitted by Assistant Director
(Saving), is illegal and without jurisdiction. It
would not qualify to be a relevant document
on which an order under Rule 3(5) read with
Proviso to Section 95(1)(g), for cessation of
administrative and financial powers of Gram
Pradhan, could have been passed, in view of
law laid down by Full Bench in Vivekanand
Yadav (supra).

17.

Even
otherwise,
Assistant
Director (Saving) is not a District Level
Officer and, therefore, he would not satisfy
definition of "Enquiry Officer" under Rule
2(c) of Rules, 1997. His report therefore,
also cannot treated to be a "preliminary
enquiry report" submitted by a Enquiry
Officer, as defined in Rules 1997. That
being so, such a report cannot constitute a
valid material to pass an order for cessation
of financial and administrative powers
under Section 95(1)(g) Proviso, read with
Rule 3(5) of Rules, 1997.

18. In the result, the writ petition
succeeds and is allowed. The impugned
order dated 19.12.2013 (Annexure 9 to
the writ petition) being wholly illegal and
without jurisdiction, is hereby quashed.

19. The petitioner shall be entitled to
cost, which I quantify to Rs.5,000/-.
--------
APPELATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.08.2014

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE ASHWANI KUMAR SINGH, J.

Criminal Appeal No. 973 of 2006

Nand Kishore @ Seth Pasi ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Sri Amol Kumar, Sri Brij Mohan Sahai
Sri Mukesh Kumar Tewari, Sri Rajendra
Prasad Mishra, Sri Vinod Kumar Mishra

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section 374(2)-
Criminal Appeal-against conviction of life
imprisonment with fine of Rs. 10,000/- u/s
376 IPC-Appeal on ground appellant having
no previous criminal history-confined in jail
since 2004-according to medical opinion
age of victims was between 13 to 14 yearsbut in opinion of Court less than 16 yearsCourt has to strike just balance-period of
incarceration-enough punishment modifiedalready undergon-fine imposed by Trail
Court confirmed-compensation to victim-be
paid without delay-in case of default-have
to go 3 years rigorous imprisonment-appeal
disposed of.

Held: Para-22 & 23
22. However, having regard to the
extenuating circumstances pointed out
by the learned counsel in the instant
case,
especially,
the
fact
that
the
appellant is in jail for complete ten years
as on today, we feel that present period
of incarceration is enough and he should
not be made to further suffer the
consequences of his bestiality.

23. In view of the law, as discussed
above, and in view of the facts and
circumstances of the case, we find that the
ends of justice would successfully meet if
the appellant is awarded punishment
already undergone by him. The fine
imposed by the trial court is upheld. The
appellant shall pay the fine, if the same
has not already been paid, within sixty
days from the date of receipt of record by
the learned trial Court, which, shall, in
turn,
pay
a
sum
of
7000/-,
as
compensation to the victim, without delay.
In the event of default in payment of fine,
the appellant shall have to undergo
rigorous imprisonment for three years.