Allowed

Nattho Devi v. State of U P and 4 Others

Allahabad HC18 Nov 2019WRIC/34101/2019

Case brief

AI extract

What is this about?

The Single Judge quashed an order imposing surcharge and seizing powers from a Gram Pradhan. Relying on Uday Pratap Singh, the court held the District Magistrate lacked statutory authority as 'Prescribed Authority' without notification. The order was also set aside for being non-speaking and hurried.

What did the court decide?

The impugned order dated 20.9.2019 imposing surcharge and seizing powers is set aside. The District Magistrate is directed to act in accordance with the settled law within three months.

Nattho Devi Vs State of U P and 4 Others — Service and Employment | Allahabad HC (2019)

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Court No. - 6

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Case :- WRIT - C No. - 34101 of 2019

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Petitioner :- Nattho Devi Respondent :- State Of U P And 4 Others Counsel for Petitioner :- Neelam Pandey,Anurag Sharma Counsel for Respondent :- C.S.C.,Raj Kumar Vaishya

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Hon'ble Mrs. Sangeeta Chandra,J.

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Heard learned counsel for the petitioner and learned Standing Counsel for the State and perused the record.

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The petitioner prays for quashing of the order dated 20.9.2019 passed by District Magistrate, Bareilly and for a direction to the Respondents not to interfere in the functioning of the petitioner as Gram Pradhan.

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It has been submitted that in a bunch of writ petitions, the leading case of which was Uday Pratap Singh alias Harikesh Vs. State of U.P. through Secretary Department of Panchyat Raj and another a coordinate Bench of this Court has rendered a judgment on 30th September, 2019 reported in 2019 Law Suit (Allahabad 1749) where after considering the arguments advanced by the StateRespondents and the learned counsel for the writ petitioners therein, this Court has allowed the writ petitions and quashed the orders passed by the District Magistrate imposing surcharge on the writ petitioners by making the following observations:

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On a consideration of the aforesaid conclusions the Court holds: -

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A. The expression "Prescribed Authority" referred to in Section 27(2) of the Act means an authority duly designated for that purpose in accordance with the provisions made in Section 2(q)(ii);

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B. The State has failed to establish that the District Magistrate was duly notified as the Prescribed Authority in accordance with the mandate of Section 2(q)(ii). In the absence of a notification designating the District Magistrate as the competent authority for the purposes of Section 27(2), the orders of surcharge impugned cannot be sustained;

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C. The prescription of a procedure for assessment and recovery of surcharge in Chapter XIII of the Rules and the assignment of a role to the District Magistrate or the District Panchayat Raj Officer thereunder cannot be held to be a compliance of the requirement of Section 27(2);

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D. Rules 256-259 as contained in Chapter XIII of the Rules are only an extension of the requirement placed by Section 27(2) to lay in place a structure to "fix the amount of the surcharge according to the procedure that may be prescribed";

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E. Section 27(2) neither sanctions nor envisages the designation of a Prescribed Authority by way of a rule or other subordinate legislation;

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F. The prima facie findings of wrongdoing arrived at during the course of or in contemplation of an enquiry initiated under Section 95(1)(g) cannot form the foundation for levy or recovery of surcharge.

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The said judgment has been relied upon by this Court and similar orders imposing surcharge has also been set aside in Writ C No. 33330 of 2019 (Kunti Tyagi Vs. State of U.P. and three others) decided on 18.10.2019 and in Writ C No. 33007 of 2019 (Lekhraj Singh Vs. State of U.P. and two others) decided on 17.10.2019.

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The counsel for the petitioner submitted that since the order impugned in this petition has been passed by the District Magistrate under Section 27 (2) of the Panchyat Raj Act, he is entitled to parity being given of the judgment of this Court in Uday Pratap Singh (supra).

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Learned Standing Counsel on the other has submitted that

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from a bare perusal of the order impugned it is evident that the District Magistrate has exercised his power under Section 95 (1) (g) of the Panchyat Raj Act, 1947 as amended and has taken action against the sitting Gram Pradhan, Smt. Natthu Devi, of seizing of financial and administrative powers and appointing a three member committee to look after development work of the Gram Sabha.

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This Court has perused the order dated 11.9.2018. It was passed at the time when inquiry under Section 95 (1) (g) of the Act was in progress against the petitioner. The petitioner had approached this Court against the order dated 11.9.2018 in Writ C No. 33572 of 2018 (Nattho Devi and State of U.P. and three others). The writ petition was dismissed by this Court on 4.10.2018. Whereafter the inquiry was completed against the petitioner but finding no substance in the allegations made against the petitioner, the petitioner was exonerated and put back into office as Gram Pradhan by the District Magistrate on 6.11.2018. The complainant being aggrieved by the order dated 6.11.2018 approached this Court in Writ C No. 38381 of 2018 (Kaushal Kishor and another Vs. State of U.P. and four others) and this Court directed stay of the operation of the order dated 6.11.2018, as an interim measure, while leaving it open to the District Magistrate to reconduct the enquiry with the final enquiry and to pass fresh orders after associating the complainant also with the enquiry proceedings.

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After this order was passed on 5.12.2018 by this Court, the District Magistrate has passed the order dated 20.9.2019

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on the ground of Technical Audit Cell's report finding the petitioner guilty of misappropriation and causing loss to the Gaon Sabha.

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This Court has perused the order dated 29.9.2019. It appears that the order has been passed only on the basis of that Technical Audit Cell's report and the enquiry officer's inquiry report dated 20.6.2019, the District Magistrate refers to an explanation submitted by the petitioner on 24.7.2019 being without any basis and unsatisfactory and then he has come to a conclusion that the petitioner has misappropriated Rs. 7,77,489/- and directed recovery of the same from the petitioner.

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This Court finds from the order impugned that the order is non-speaking as no reason has been given by the District Magistrate after detailed consideration of the reply of the petitioner to the show cause notice issued to her. The order has been passed in a hurried manner. It is set aside.

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The writ petition is allowed to this extent leaving it open for the District Magistrate to take recourse the rules after considering the law settled by this Court in Uday Pratap Singh (supra) also, and pass appropriate orders thereafter within a period of three months.

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Order Date :- 18.11.2019 Manish Tripathi

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(Sangeeta Chandra,J.)

Nattho Devi v. State of U P and 4 Others

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Nattho Devi v. State of U P and 4 Others

Case brief

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