UTTAR PRADESH PANCHAYAT RA]J (REMOVAL O F PRADHANS, UP-PRADHANS AND1 MEMBERS) ENQUIRY RULES, 1997 In exercise of the powers conferred by Section 110 read with clause (g) of sub-section (1) of Section 95 of the United Provinces Panchayat Raj Act, 1947, the Governor is pleased to make the following rules :
CONTENTS
1. Short title and COMMENCEMENE. .« ¢ v v v v v o v o v oo o v n s oo e oo 568
2. DEfINItONS. « o v o o o v v v et v st i 568
3. Procedure relating to complaints. . .. ..o v et i e 569
4. Preliminary enquiry. . . . . ... I 572 T I A 575
6. Procedure for the enquiry. . . .« oo v vvvvvave s e 576
7. Report of the Enquiry Officer. . . ... .. vvvovvn.n 581 < 582
1. Short title and commencement.—(1) These rules may be called the Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997.
(2) They shall come into force from the date of their publication in the Gazette.
2. Definitions.—In these rules, unless the context otherwise requires,—
(a) “Act’ means the United Provinces Panchayat Raj Act, 1947;
(b) ‘Pradhan’ and ‘Up-Pradhan’ sh;fil respectively mean the Pradhan and the Up-Pradhan of the Gram Panchayat;
?[(c) ‘Engquiry Officer’ means the District Panchayat Raj Officer or any other district level officer, to be nominated by the District Magistrate.];
(d) ‘Section’ means a section of the Act.
NOTES Enquiry Officer—Definition of.—Rule 2(c) defines “Enquiry Officer”. It means the DPRO or any other district level officer to be nominated by the Distri ct Magistrate. The following contingencies may be there :
(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,
(i) A complaint can be made directly to the enquiry officer defined under Section 2(c), who may submit a report without the District Magistrate for it or,
1. Vide Noti. No. 37 /XXXIII-97-250-96, dt. 29.5.1997.
2. Subs. by Noti. No. 2263 /XXXIII-1-2001-565-2000, dt. 5.10.2001 (w-e.f. 5.10.2001).
(568) iy UTTAR PRADESH PANCHAYAT A (RetOVAL.... MEMBERS) ENQUIRY RULES, 1997 569
(i) A complaint can be made enquiry officer, who asking for it or, to the District Magistrate with a copy to the may submit 5 report without the District Magistrate In all the aforesaid altern reliminary report is there. The questi nder Rule 5 to cease the power under ;anchayat Raj Act. According to,— Proviso to Section 95(1)(g) of the U.P.
(b) the respondents all five reports can b In Court’s opinion answer lies s reports can be so relied.
¢ relied upon.
omewhere in between anq only the first four
3. Procedure relating to complaints against I’radhan. or Up-Pradhan may send his complaint to the State Govern- ment or any officer empowered in this behalf by the State Government.
(2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant’s own affidavit in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary together with all documents in his possession or power pertaining to the accusation.
(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings and affidavits, respectively.
(4) Not less than three copies of complaint as well as each of its annexures shall be submitted by the complainant.
(5) A complaint, which does comply with any of the foregoing provisions of these rules, shall not be entertained.
(6) 1t shall not be necessary to follow the procedure laid down in the Oregoing provisions of this rule if a complaint against a Pradhan or Up- Pradhan is made by a public servant.
SYNOPSIS ) i ft. fesesasesscersrancnne 570 L Complaint to be accompanied by affidavit. ... ... b 2 PrOCedUIe Under, . . . v o v o v o e e e - 3' I’mce‘-‘h‘“’e—Non—compliamce Of o e e o 4 E“quhy Officer—Not nominated. . « « « « oo oo s s s v e s e s oo e Vivekanand Yada v. State of U.P. through Principal Secretary (Panchayat Raj) Gover nment & U.P. Lucknow and others, 2010 (111) RD 6997.
570 UTTAR PRADESH PANCHAYAT RAJ (HEMOW\L--"--MEMBEHS) ENQUIRY RULES, 1997 R3
5. ROPOTt under, .« . v v s s vee e s L TN T S S S 572
6. Con\pl.\inl—Cmnplinnco of sub-rules (1) to (4) 572
1. Complaint to be accompanied by affidavit.—Sub-clause (2) of Rule 3 provides that the complaint should be accompanied by the complainant’s own affidavit in support thereof and also alfidavits thereof of all persons from whom he claims to have received information of facts relating to accusation.
2. Procedure under.—It is scen thal under Rule 3(1) of the Rules, any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the District Magistrate which shall be In the manner provided in sub-rule (2) of Rule 3. Under sub-rule (5) of Rule 3, a complaint which does not comply with any of the provisions of sub-rules (1) to (4) of Rule 3 shall not be entertained, Under Rule 4 of the Rules, the District Magistrate, on the receipt of a complaint Or report referred to in Rule 3, or otherwise, order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matier. Under Rule 5 of the Rules, where the District Magistrate is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise, then an enquiry should be held against a Pradhan or Up-Pradhan or Member, he shall forthwith constitute a Three Member Committee District Magistrate while passing the order under Section 95( 1)(@) of the Act.?
3. Procedure—Non-compliance of.—The issue was examined by the Division Bench of the Court in Smt. Kesari Devi v. State of U.P. and others,? and it was also observed :
“115. Learned counsel for the petitioner invited the attention of the Court to another feature of the case and submitted that once the basic procedure of preliminary inquiry falls through as being invalid, the consequential action taken by the State Government by holding a regular inquiry and passing the impugned order has also necessarily to be treated to be invalid.
‘There can be no dispute with the settled legal proposition that if an order is bad in its inception, it cannot be made good by efflux of time or by subsequent improvement. In Upen Chandra Gogoi v. State of Assam and others,* the Apex Court held that the Writ Court should not validate an action which was not lawful at inception.
If the basic order falls being illegal, invalid or void, the consequential order cannot be given effect to as it automatically becomes inoperative.” In Badrinath v. State of Tamil Nadu and others,5 the Court held as under :
“This flows from the general principle applicable to “consequential orders”. Once the basis of a proceeding is gone, may be, at a later point of Anjana Devi (Smt.) v. State of U.P. and others, 2009 (107) RD 693.
Narendra Kumar v. State of U.P. and others, 2013 (119) RD 252, 2005 (4) AWC 3563 : 2005 (61) ALR 7 (Sum). ’
(1998) 3 SCC 381.
(2000) 8 SCC 395. G 0 N e ad UTTAR PRADESH PANCHAYAT R, (REMOVAL.... MEMBERS) ENQUIRY RULES, 1997 571 time by order of a Superior ayg mean-time like the recommend:fJ B action taken thereon would fa]] {, ty, any intermediate action taken in the fon of the State and by the UPSC and the . 0 the groyng, "[.‘he principle of consequentia] orders i quasi-judicial proceedings is which {s applicable to judicial and (& - qually applicaple (, administrative orders.” In view of the above, law can be N Summaris conducted against any such office-bearer apply;:l(; t:tircta“aszquiry is to be erence to the the affidavit has to be made in accordance thereof. As per Rule 5 of th Rules, unless the State Government is of the opinion, that the com, la;lt h: L997 processed strictly in accordance with Rule 3, and the preliminary ixf)qu_"ry haz bz:
conducted by the designated authority in accordance with the procedure prescribed under the Rules and strict compliance has been observed, it shall be impermissible for the State Government to proceed any further for regular inquiry. (Emphasis supplied) The Full Bench of the Court in Vivekanand Yadav v. State of U.P. and another,! also observed that action under the proviso to Section 95(1)(g) of the Act can be taken by the District Magistrate only on the basis of a report of the “Enquiry Officer” defined under Rule 2(c) or on the basis of the preliminary enquiry conducted by the District Magistrate himself and that the final enquiry under Rule 5 of the Rules can be ordered only on the basis of the aforesaid preliminary enquiry reports.
In the instant case, the final enquiry has been directed on the basis offfithe report submitted by the Committee appointed by the Block Develupme.nt 8er:::
and not on the basis of the preliminary enquiry conduct§d by thefng:axrlym feer defined under Rule 2(c) of the Rules or the District Magistrate. T te meméld 2 cannot, in such circumstances, be hel d on the basis of the2r6p0r B ) the Committee appointed by the Block Deve lopment OFfic:zr. -
4. Enquiry Officer—Not nominated.—The Pre(ljm:
R"‘:l}; 20 of the Rules Conducted by an Enquiry Officer contemplated unde t level ny other distric Namely ejther the District Panchayat Raj Off icer or al ] jct Magistrate, as fficer to be nomin ated by the Distr ict Magistrate. The Di;tr;iccer e noliced herejnabove , had mot nom inated the Emlu‘%n’,l‘hf: District Magistr ate Members of the Committee were “district level officers”. ry only on the +ould form hys prima facie satisfaction fo r holding a flgaflir?:c;]‘::
nder Bule 2(0) Officer de!
asis of d by the Enquiry of the he report submitted by —ZLRues® 2010 (111) RD 699 (FB). 2013 (119) RD 252- Wrendra Kumar v, State of ULP. and o1 20 11 o) gy 52 arendra Kuumar v. State of UL.P. and others:
2 572 UTTAR PRADESH PANCHAYAT RAJ (REMOVAL.....MEMBERS) ENQUIRY RULES, 1957 4
5. Report under.—A report by an enquiry officer defined under fiufe 4, is also a report by a person and the manner is prescribed under the fijes irrespective of the fact that he was so asked by thé' District Magistrete or fiof, In the Court's opinion, it is also a preliminary report within the rreaning of the proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act.
The District Magistrate exercises the powers of the State Government tirider Section 95(1)(g) as well as under the Enquiry Rules as the powers are delegated to him. He also appoints the enquiry officer. He is higher than all encquiry officers, He can himself conduct a preliminary enquiry. It would be anomalous that on 4 preliminary report of a subordinate officer, a final enquiry and cessation of power can be ordered but the District Magistrate who appoints him, cannot conduct z preliminary enquiry.
In the Court's opinion, action under proviso to Section 95(1)(g) can also be taken on the preliminary report of the District Magistrate as well as on a report of a person defined as enquiry officer under Rule 2(c) of the Enquiry Rules. Only these reports would be covered in the word ‘otherwise’ of Rule 5. Any other report would be a report under Rule 3(b) of the Enquiry Rules or can be considered by the District Magistrate under his suo motu power to order a preliminary enquiry but final enquiry with cessation of power cannot be ordered on its basis.!
6. Complaint—Compliance of sub-rules (1) to (4).—Rule 3(5) of the Enquiry Rules provides that the complaint, which does not comply with any of the preceding sub-rules of Rule 3 should not be entertained. However, even if the complaint is not to be enterlained, yet the District Magistrate can always refer the matter for the preliminary enquiry, if he considers that it should be so enquired, he can act suo motu.2 .
4. Preliminary enquiry—3[(1) The State Government may;, on the receipt of a complaint or report referred to in Rule 3, or otherwise order the Enquiry Officer 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 Enquiry Officer shall conduct the preliminary enquiry as expedi- tiously as possible and submit his report to the State Government within thirty days of his having been so ordered.]
SYNOPSIS - Enquiry under—Nature of.
- Enquiry—Purposeof. ... .......... . . ...
- Otherwise—Interpretation of.
. Constitution of—Committee A W N R
1. Vivekanand Yadav v, State of ULP. through Principal Secretary, of U.P,, Lucknow and others, 2010 (111) RD 699.
2. Vivekanand Yadav'v. State of WP through Principal Secretary, of U.P,, Lucknow and others, 2010 (111) RD 699.
Subs. by Noti. No. 2263/XXXIII-1-2001-565--2006, dt. 5.10.2001 (we.f, §.10.2001).
(Panchayat Raj) Government (Panchayat Raj) Government ) UTTAR PRADESH PANCHAYAT fa, (REMOVAL.... MEMBERS) ENQUIRY RULES, 1867 573 . Enquiry under—y, ate ll,f U.P. and others,! for;t;:e;f"‘me Full Bench in Vivekanand Yadav v.
st () What is the meaning of Question Nos. 3 and 4 to the following effect :
4(11 of the Enquiry Ru;::,r 4 otherwise' in sub-rule (1) of Rule 4 [Rule
(i) Can a Pradhan object 1, a co conformity with Rule 3 of themEr:.l:l nl;,u on the ground that it is not in The above issues came {go be answy 1ulry Rules, extracted hereunder :
.
"55. Rule 3 of the Ep, e qui complaint” and provides how a cony pll’\;:is n:zyt{)tle {5
(i) By a private person, that has t to comply other conditi by an affidavit anq to 3(4)]. ons of sub-rules (1) to T d I paragraphs 55 1 63 which are
(i) By a public servant and in that case by a private person do not apply.
can order a preliminary enquiry on the com laint o , The word complaint or report refers t P T report or otherwise. o the complaint by a Pprivate person or to the report k7 a public servant under Rule 3. The report of flp;e public servant need not conform to the restrictions of a complaint by a private person. The question is, ‘what does the word ‘otherwise’ in Rule 4 means?’
57. The counsel for the petitioner submitted that :
-— The word otherwise should take the same colour as the words accompanying it, namely complaint or report under Rule 3:
— A complaint not satisfying Rule 3(1) to (4) cannot be entertained under the sub-rule (5) of Rule 3 [Rule 3(5)};
— A Pradhan has a right to object to a complaint that does not comply with Rule 3(1) to 3(4). 250
58. Words and Phrases permanent ed ition volume 30-A page (2 explains :
: s... one of the ‘otherwise means but for or under other circumstances usual meanings of otherwise is contrar ily.
i mean, The Black's Law Dictionary explains it t o the or in other w ays.
or a fact finding financial or oth er “In a different manner; in another W% eliminary ) Rule 4 is a Pr 59. The enquiry under I ie whether any iry enquiry, It has to consider primd fa;ls pradhan or not The final enquiry Irregularities have been committed bY ;
n to give any there is 1o :easo the Is yet to be done. ConSidermgd m;g?&fi?e" in Rule 4 as Sugees o] ‘0 Testricted meaning to the W’I?}rl pig e C iti . counsel for the Peuuonegristrate has powe dopted; the District M, 1L 2000 £194% 1 o s 14 UTTAR PRADESH PANCHAYAT RAJ (REMOVAL - MEMBERS) ENQUIRY RULES, 1997 [M enquity even it there is no complaint or report or In other words he hag power to act suo motit.
60. Rule 3(5) of the Enquiry Rules provides that ll}t‘, (:mlnplnl}:]l, lw]“,.h does not comply with any ol the preceding sub-rules of Rule 3 should not be entertained. However, even i the complaint Is nol to be entertained yet the District Magistrate can always refer the matter for the preliminary enquity i he consider that it should be so enquired; he can act has suo motu,
61. The counsel for the petitioner clted rulings laking the view that a Pradhan has a right to object o the format of the complaint. With due respect, the Court do not agree with the same.
62. 1f the District Magistrate can order for the preliminary enquiry even in a case, where a complaint could not be entertained, then what is the purpose of permitting a Pradhan to object regarding its non-conformity with Rules 3(1) to 3(4). To Court it appears to be futile exercise. It is for the District Magistrate to consider whether he should entertain the complaint or not.
63. In Court's opinion :
() The word ‘otherwise’ in Rule 4 means that the District Magistrate has Suo motu powers to order a preliminary enquiry;
(i) In an appropriate case, the District Magistrate may order a preliminary enquiry even if there is,
(a) No complaint or report; or
(b) A defective complaint, not in accordance with Rules FS[I) to 3(4).
(iii) A Pradhan has a right to object that a complaint is not in accordance with Rule 3(1) to 3(4) of the Enquiry Rules."
A careful perusal of paragraphs 59, 60, 62 and 63 of the judgment would manifest that the Full Bench was conscious of the fact that considering the object of Rules 3 and 4, there was no reason to give any restricted meaning to the word ‘otherwise’ in Rule 4 and that even if the complaint is not entertainable, in view of a statutory prohibition, yet the District Magistrate could always refer the matter for the preliminary enquiry, if he considers that it should be so enquired; he can act suo motu. Once the Full Bench refused to give restrictive meaning to the word ‘otherwise’ in Rule 4 the justification for doing so is implicit in the said observation itself, as stated hereunder : :
It is well settled that if a literal interpretation of a statute is leading to absurdity, a purposive construction is advancing the cause of justice, then the latter is to be preferred over the former. Reference may be made to S. Sundaram Pillai etc. v. VR, Pattabiraman etc.! A literal interpretation of Rule 3(5) and that (t:g ?al:(l: 4(1) v'vould mean that the District Magistrate stands denuded of the power not sup?frx&?gce Inrespect of a complaint of a private person against a Pradhan, view that the ally an affidavit, even though the District Magistrate may be of the a preliminary eneg‘;uons In the complaint are of such a nature, that it warrants the District M cilu 1y. On the other, if recourse is taken to purposive construction, agistrate can direct for a preliminary enquiry on a complaint of a
1. 1985(1) SCC 591, - . | g UTTARPRADESH PANCHAYAT Ry (EMOVAL.... MEMBERS) ENQUIRY RULES, 1997 575 ate pers U supported 1y , N jvate person ol pI d by an ; ) (L‘ (:t' such a nature that it calls fo. davy, provided he is satisfied that the case wwes flexibility to the Districy M:\:l:)(r.e“"“lliuy enquiry. The purposive construction L“ sfied that the case s such (i \ vl(:\lluln direeq for preliminary enquiry, if he is ;1;(‘1. This dm:l ::()]‘I“:L;“\\(lhm Rule G(S)I) N Wit an affidavit is to be enqutltrlecti ivate complainant is st gatory for the reason tha Mun.\(t‘ ! are gatory so that (l\? Llllt(‘i,‘fiilu.‘j of the allegationg Is v|1<;1|';Lflllmlmmm R el {o reckless :‘ L\L-;\n‘)l_ls ;"‘}lmul any m‘.cuuntal)lllly él gy €19¢ It may give rise cannot 8 & MALEr of right 1o ey s complai, milarly, a priyage complainant enquired into. But this would ne( be Plaint not Supporte direct for a preliminary enquiry op District M . a complajng agistrate to Je is of the view that there jg Justification for (“r'(‘:ztlsljppurtcd by an affidavit, i 2. Enquiry—Purpose of.—Rule . neap enquiry With a view to find oyt in the matter.
1s0 to clause (g) of sub-section quiry Officer, other th, €r sub-rule (2) of Ryle 4, to hold the enquirya.Ié q.uiry under Rule
4. Constitution of—Co.
that where the State Govern:
referred to in sub-rule (2) of against a Pradhan or Up-Pr:
mmittee.—Rule 5 of the Rules, 1997 then provides ment is of the opinion, on the basis of the report Rule 4 or otherwise that an enquiry should be held adhan or Member under the proviso to clause (g) of Sub-section (1) of Section 95 of the Act it shall forthwith constitute a committee nvisaged by Proviso to clause (g) of sub-section (1) of Section 95 of the Act and Y an order ask an Enquiry Officer, other than the Enquiry officer nominated under suh-ryyle (2) of Rule 4, to hold the enquiry.*
5. Where the State Government is of the opinion, on the b(?sis of the Teport referred to in sub-rule (2) of Rule 4 or otherwise that an enquiry slpuld ¢ held against o Pradhan or Up-Pradhan or Member under the proviso to
1. Sahab Singh v. State of U.P. through Secretary, Panchayat Raj UL.P. Government, Lucknow and others 2018 (139) RD 59 S 4 . : cknozw and others, 2, Rflj Kumar Singh v. State of UL.P. through Secretary, Panchayat Raj, ULP,, Lucknozw and other:
2014 (122) RD7 i nment foekanang Yadnlv v. State of ULP. through Prin cipal Secretary, ( Panchayat Raj) Governme 4 ‘;};U.P., Lucknow and others, 2010 (111) RD 699.
s ahida (Spt.) v, State of U.P. and others, 2017 (137)RD 28. e.f, 5:10.2001). ubs, by Noti, No. 2263/XXXIII'1'2001'565'2000/ dt. 5.10.2001 (w-e:
576 UTTAR PRADESH PANCHAYAT RAJ (REMOVAL.... MEMBERS) ENOUIRY AULES, 1777 clause (g) of sub-section (1) of Section 95 it shall for'lhwi!h constitute , committee envisaged by proviso to clause (g) of sub-section (1) of Section, 95, of the Act and by an order ask an Enquiry Officer, other than the I:ruw,,./ Officer nominated under sub-rule (2) of Rule 4, to hold the enquiry.|
6. Procedure for the enquiry.—(1) The substance of the imputations, and a copy of the complaint referred to in Rule 3, if any, shall be forwarded to the Enquiry Officer by the State Government.
(2) The Enquiry Officer shall draw up,—
(a) the substance of the imp{ltafions into definite and distinct articles of charge; and -
(b) a statement of the imputations in support of each article of charge, which shall contain a statement of all relevant facts and z list of documents by which, and list of witnesses by whom, the articles zre proposed to be sustained.
(3) The Enquiry Officer shall deliver or cause to be delivered o the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of the imputations and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require that person by a notice in writing, to submit within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person, and to appear before him on such day and at such time as may be specified.
(4) On receipt of the written statement of defence, the Enquiry Officer shall enquire into such of that articles as are not admitted and where all the articles of charge have been admitted in the written statement of defence, the Enquiry Officer shall record his findirigs on each charge after taking such evidence as he may think fit.
(5) If the person who has admitted any of the articles of charge in his written statement of defence, appears before the Enquiry Officer, he shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the Enquiry Officer shall record the plea, sign the record and obtain the signature of that person thereon, and return a finding of guilt in respect of those charges.
(6) If the person fails to appear within the specified time or refuses or omits to plead, the Enquiry Officer shall take the evidence, and if there is a complaint, require him to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding fifteen davs, after recording an order that the said person may, for the purpose of preparing his defence,—
(a) Inspect within five days of the order or within such further time not exceeding five days as the Enquiry Officer may allow, the documents specified in the list referred to in sub-rule (2);
(b) submit a list of witnesses to be examined on his behalf;
AUATFIEADL R RANG) Ay na AIAD O MOVNL . O ENOUIY 1008, 1007 b W BV natee Wiy, ton (| ' ! her ikl RO e arder o within such fur I 0L evegg n\ll\)‘. Loy oy M e ulry Officer may allow, for the dircovery o Moduetiog iy i e onguiey ayg HOcuments that are relovant 1o ] ‘llmm,ml” nob mentiong | | YO the St ¢ wovernment, but byl (2), ey |y Dolng ot may take the UGN D behalf, and 1 linquiry enonting Offleoy 1 anlst him n 0 The person anadnsg Whom he o fstanee OF any Other oy, | ‘\\\‘(;um may appoint any wdueting e enquivy, I '
Provided that a log, al Practitioney ule thix sl Shall nog 1y Npaped o APpoInted ape ey 8 1 the person applios orally oy gy, Wrlting, ) the statements of witnesgey Mentione| I the fig the Eaquiry Officer aha ) faenish iy WIh suely coples ay Carly as possibe ) and fnany case, not later than [hree “",\'“ before the l"illlllll'lk't'xm'nl of the evamination of the Wilhessey by whom my of (he articles of charge iy { ftn: the BUpply of Coples of referred (g in Sb-pgle (2), proposed to be prove, ) The Enquiry Offieey production of documenty, mwhose custody or the production of () ruisition, shall, on voee forward (e Possession (e ¢ documenty | IpLof (he notice fSame op coples (hereof tot documenty are ke Y such date ag gy for the Lll,-;cnvvry or he authorjy PL with o requisition for Wy be specified jn such Provided that the inquiry Officey may, for reasong (o be writing, refuse 1o requisition sucl of the recorded in documents gy are, relevant o the case, , in his opinion, not 10) On recej h.nmy, the custo Produce (he PLof the requisition referred (o in sub-rle dy or possession of (e requisitioned same before (he
(9), every authority Enquiry Officer, documents shall
Provided that if the uisitione documenty j 2 production of all or leregy oy seeurily of (he and (e linquiry Officer Matioy 0 the person isition ) Ony authority having the custody or pussession of the s salisfied for reasons (o be recorded in writing that any of such documents would be against the public *State, it shall inform the Enquiry ()Hu:or accordingly shall, on being so informed, communicate ”!Ul ul\[ur- against whom (he enquiry is h.omy, held ?ll;l fvxt \.\url.:w made hy him for the production or discovery of documents, by \\’I(li]:] r e date fixed for shall ]. e articles of charge ity .L'U“""”“ld’ by the S one, ang may be Whopy, the the fequ the enquiry, the oral and «locul'm'nlfily lt‘\vnt::‘u\\:- are proposed shall be produced l‘"-“- \:’l i |m Enquiry Officer by or on behalf nfll \.L g.n|'1 ’}“ ‘.‘ '\‘in‘i;
cross-examined by or on behalf uf { ‘L\l::\::ul R l?): t];e nquipy o SNy s being held, The wilnesses may be re- LX; s by e heliry O icer or the complainant, as the case may be, on any pe 'w matler, without the leave Of (o [ o CCN Cross-examined, but not on any new matter, \o I',nquiry Officor, T T — — Y 578 UTTAR PRADESH PANCHAYAT RAJ (REMOVAL.... MEMBERS) ENQUIRY RULES, 1597 -
(12) The Enquiry Officer may allow production of evidence not includeq in the list given to the person against whom the enquiry is t?emg held, or may itself call for new evidence or recall and re-examine any w1tn'ess and in such case the said person shall be entitled to have if he demand§ it, a copy of the list of further evidence proposed to be produced and an adj.ournment of the enquiry for three clear days before the production of suc}} E\{lden;e, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The Enquiry Officer shall give the said person an opportunity of inspecting such documents before they are taken on the record. The Enquiry Officer may also allow the said person to produce new evidence, if he is of the opinion that the production of such evidence is necessary in the interest of justice.
Note.—New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. '
(13) When the evidence for proving the articles of charge against the person against whom the enquiry is being held, is closed, the said person shall be required to state his defence orally or in writing as he may prefer. If the defence is made orally it shall be recorded, and the said person shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the complainant, if any.
(14) The evidence on behalf of the person against whom the enquiry is being held shall than be produced. The said person may examine himself in his own behalf if he so prefers. The witnesses produced by the said person shall then be examined and shall be liable to cross-examination, re-examination and examination by the Enquiry Officer according to the provisions applicable to the witnesses for proving the articles of charge.
(15) The Enquiry Officer may, after the person against whom the enquiry is being held closes his case, and shall, if the said person has not examined himself, generally question him on the circumstances appearing in the evidence against him.
(16) The Enquiry Officer may, after the completion of the production of evidence, hear the complainant, if any and the person against whom the enquiry is being held, or permit them, or him, as the case may be, to file written briefs of their respective cases.
(17) If the person to whom a copy of the articles of charge has been delivered does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Enquiry Officer or otherwise fails or refuses to comply with the provisions of this rule, the Enquiry Officer may hold the enquiry ex parte.
(18) Whenever the Enquiry Officer after having heard anfi rgco;dgd .the whole or any part of the evidence in‘an enquiry, ceases to exercise jurisdiction therein and is succeeded by another Enquiry Officer, the Enquiry Officer so succeeding may act on the evidence so recorded by his predecessor or partly recorded by himself.
579 LES, 1997 R.6] UTTAR PRADESH PANGHAYAT RAJ (REMOVAL ... EMBERS) ENGURY i + is of the opin ion that ady been
Provided that if the succeedin i ffice g Enquiry Offic I any of the witnesses V\Yhose evidence has alre further examination of recorded is necessary in the interest of justice he my recall, examine, Cross” examine and re-examine any such witness as hereinbefore provided.
SYNOPSIS 1 Appropriate safeguards. .. ... ..., 579 2 Procedureunder. . ... LouL L 579 8. Conduct of proceedings. . ..., ... 0 580 4 Final enquiry—Requirementof. . ......... ... ... ... . ... 581
1. Appropriate safeguards.—A Legislature has given a by the authorities. The plain reading of the Rules indicates that the ppropriate safeguards to check the arbitrary use of power specific provision has been given in Rule 6 for mquiry.1
2. Procedure under.—The procedure provided in Rules 6 to 8 is for the final enquiry and not for the preliminary enquiry. A report by an enquiry officer defined under Rule 2(c) is also a report by a person prescribed. It is not necessary for the enquiry officer to conduct the preliminary inquiry only on the direction given by the District Magistrate. His job is to submit a report, so that the District Magistrate may take a decision :
(@) Whether there is a prima facie case against the Pradhan or not;
(b) Whether the final enquiry should be held after ceasing his power.
It is not necessary for District Magistrate to specifically ask the enquiry officer to conduct a preliminary enquiry. There seems to be no point in asking the enquiry officer to conduct a preliminary enquiry again even if he submitted a report after the enquiry. It would be a futile exercise unless the District Magistrate with the report of the enquiry officer.
A report by an enquiry officer defined under Rule 2(c) is also a report by a person and the manner is prescribed under the Rules irrespective of the fact that he was so asked by the District Magistrate or not. In Court's opinion it is also a preliminary report within the meaning of the proviso to Section 95(1)(g) of the Panchayat Raj Act. The District Magistrate exercises the powers of the State " Government under Section 95(1)(g) as well as under the enquiry rules as the powers are delegated to him. He also appoints the enquiry officer. He is higher than all enquiry officers. He can himself conduct a preliminary enquiry. It would be anomalous that on a preliminary report of a subordinate officer, a final enquiry and cessation of power can be ordered but the District Magistrate who appoints him cannot conduct a preliminary enquiry.
In Court's opinion, action under proviso to Section 95(1)(g) can also be taken on the preliminary report of the District Magistrate as well as on a report of a person defined as enquiry officer under Rule 2(2) qf the enquiry rules. Only these reports would be covered in the word “otherwise” of Rule 5. Any other report would be a report under Rule 3(6) of the enquiry rules or can be considered F)y the District Magistrate under his suo motu power to order a preliminary enquiry but final enquiry with cessation of power cannot be ordered on its basis.
i hiers, 2009 (108) RD 5. L dri Begum v. State of U.P. and others, 2 %;Zk;;nsfi Yadav v. State of U.P. and others, 2011 (1) AWC 488 (B).
580 ...... MEMBERS) ENQUIRY RULES, 1997 1Rg "ate procedure has been preseribed 1 Ruleg R ¢s clearly indicate thaf the Enquiry Officer shall dr; ; ule of y D) y sha aw (he SUbS a0 of tli'zilnr:mllflllons into definlte and distinet, articles of charge and that o m““""ll:n(i "Putations in su port ach article of charge all ¢ ;
which shall PI of each arlicle of ch wrge, shall also b ¢ drawn up, ) contain statement of all relevant facts and (he list of do ist of Witnesses mder Rule 6 of (he sty cuments apg ¢ which are all required to be Indicated and supplieq { Pradhan. The ro 3 Ay required (o py 1%11:;3?6 thereafter as provided under Rule 6 of the Ruleg Is
3. Conduct aragraphs 74, 94 and 96 of . Is as follows :
Pinion there can be a proceeding for removal of a ng his financial and administrative powers.
94. The procedure and not for the prelimin under Rule 2(c) is also "74. In Court's o Pradhan without ceas;
provided in Rules 6 to 8 is ary inquiry. A report by an e a report by a person prescrib to conduct the preliminary direction given by the District Magistrate. His job is t that the District Magistrate ma Jacie case against the Pradhan for the final enquiry nquiry officer defined ed. It.is not necessary inquiry only on the 0 submit a report, so y take a decision. Whether there is prima or not and, whether the final inquiry should be held after ceasing his powers.
96. A report by an inquiry officer defined under Rule 2(c) is also a report by a person and the manner is prescribed. Under the rules irrespective of the facts that he was so asked by the District Maglstr'z;te m—f not. In Court's opinion it is also a preliminary report wit‘}lfln the meaning of the proviso to Section 96(1)(g) of the Panchayat Raj Act.
The petitioner complainant shall have an opportunity during t}‘xnedzc(;u;:: ;ar:
regular enquiry to lead oral and documentary evidence ashis p:l fmotesits sub-section (11) of Section 6 of the Rules and further will alsoS a;iecnoi o o of hearing as contemplated under sub-section (16) of Rule 6. Su sub-section (16) of Rule 6 reads as follows :
) ment: "(11) On the date fixed for the enquiry, the oril 1?‘;‘2 ;zf;:l . ;’l‘é evidence by which the articles of charge are proposed Sba r on behalf of the the witness shall be examined, by the Enquiry Officer );Ob or on behalf of complainant, if there is one, and may be cross-examinehelg The witnesses the person against whom the Enquiry Officer is being § m:ant 25 the case may be re-examined by the Enquiry Officer or the complai meé but no on may be, on any point on which they have been cross-exam :
any new matter, without the leave of the Enquiry Officer.
e nment of Mukesh Kumar (Pradhan) v. State of U.P. through Secretary, Panchayati Raj, Gover U.P, Lucknow and others, 2014 (122) RD 70. 2. 2010 (111) RD 699 (FB).
e 81 UTTAR PRADESH PANCHAYAT Ry (FENOUABERHENRERS) ENOURY RULES, 1957 :
(16) The Eunc { _—— “Nauly Ofeey 0: (\ildx'm ¢ hear the mmplulnn:‘\‘l\y;f ‘~‘~(11(‘(““ Is hplng held, o Permit 1‘1\01 written brjefy of theiy respective opg, Thus, it s evident fropy, the tk the complainant only has q pyg e o ey 0t extent rules provided for, bt he | Ipate In the regular enquiry to the extent Magistrate 0 challenge the either on th \ order passed by District 4. Final enquiry—Re, nary enquiry or conducted in accordance it} Rules of 1997 and of the Rules of 1997. The Procedure conte officer shall draw the > Serve such articles of in support . of such s instant ¢ after the completion of the productjfin any and the person against whom the M, or him, as the case may be, to file es," 138 1o locys t, € report of prelim;
to cross-examine ed to submit an the statement of the assessment of the evidence
(a) the articles of charge and the s
(b) the defence of the person agai
(c) the assessment of the evidenc
(d) the findings on each article o
Explanation.—If in the opinion of the Enquiry Officer the proceedings of the enquiry establish any article of charge different from the original articles of charge, he may record his findings on such article of charge.
Provided that the findings on such article of charge shall not be recorded unless the person against whom the enquiry has been held has either admitted the facts on which such article of charge is based 1or hfashhad a reasonable i i i inst such articles of charge. opportunity of defending himself agains " ! it h t, the i i rovides that while submitting the report, the nquiry mce;{z :1]12]’17 rc::;::)‘:g ::;;sflf finding wm; regard to certain points keeping in view o the facts and circumstances of a case.
tatement of the imputations;
nst whom the enquiry has been held;
e in respect of each article of charge;
f charge and reasons therefor.
1. RajKi Singhv. State of LLP. through Secretary, Panchayat Raj, U.P,, Lucknow and others, . j Kumar A § 014 (122) RD 7. .
2. 12711511;511 ( S?nt.) v. State of LL.P. and others, 2(2)1049((11202;)1;%155-5
3. Quadri Begum v. State of ULP. and Dflfers, 2 582 (@) the report prepared by him under Rule 7; (B) the written statement of defence, if any, the enquiry has been held;
(©) the oral ang document the enquiry;
(@) Written briefs, if any, filed during the course of the enquiry; and (e) the orders, if any, made by the State Government and the Enquiry Officer in regard to the enquiry.]
NOTES —Rule 8 of the Rules provide that the Inquiry Officer shall conclude the Inquiry within six months from the date of the receipt of the complaint and forward to the State Government the record of enquiry. Since the inquiry is pending for past 20 months, it is expected that it shall be concluded expeditiously within three months from th e date of production of certified copy of the order.?
of the person against Whom ary evidence produced during the course of Enquiry—Conclusion of.
No. 2263/XXX 5-:
01). 01 (w.e.f. 5.10.20 000, dt. 5.10.20 o i -1-2001-565-2 Rai. U.P,, Lucknow hers i. No. 2263/ - omau Danchavat Ral, 1. Subs. by Noti.
%