Devi Prasad Singh, J.
1. Heard the learned Counsel for the petitioner Sri Haridwar Singh and learned standing Counsel and perused the record.
2. The petitioner, who was elected as Gram Pradhan of Gram Panchayat, Alipur Vikas Khand Aliganj, district Etah, has approached this Court under Article 226 of the Constitution of India feeling aggrieved against the order of removal from the office of Pradhan, dated 12.11.2008, passed by the District Magistrate, Etah under Section 95(1)(g) of U.P. Panchayati Raj Act, 1947.
3. Submission of petitioner's Counsel is that the impugned order has been passed in violation of principles of natural, justice. The petitioner was never associated with the inquiry at any stage and instead, after receipt of inquiry report, the District Magistrate has passed the impugned order. According to petitioner's Counsel on 16.10.2007, the Assistant Engineer made a spot inspection with regard to verification of construction work and thereafter he submitted report dated 22.10.2007, levelling mainly three allegations against the petitioner contained in Annexure-1 to the writ petition. The Assistant Engineer recorded a finding that entire grant in possession of the petitioner, was not invested in the construction work and the funds were alleged to have been embezzled. On the basis of the said report the District Magistrate, Etah, served a notice dated 8.11.2007 to the petitioner requiring the petitioner to show cause. In response to which, the petitioner requested that he should be supplied copies of the complaints. However, the District Magistrate, Etah observed that no reply was submitted by the petitioner. He appointed an Executive Engineer Jal Nigam to conduct a regular inquiry with regard to allegations against the petitioner. A three-men committee was also appointed to look after the works of the Pradhan. The Executive Engineer submitted his report dated 17.10.2008. Submission of petitioner's Counsel is that the inquiry report of the Executive Engineer does not indict the petitioner rather, it exonerates the petitioner from the charges. However, by the impugned order, the petitioner has been removed from the Office of the Pradhan. Petitioner's Counsel submitted that before passing the impugned order, the District Magistrate concerned has not served any notice to the petitioner. The submission is that in case the District Magistrate before passing the Impugned order, had given opportunity of hearing to the petitioner, he would have invited attention to the material illegality evident from the inquiry report submitted by the inquiry officer. The submission is that the impugned order has been passed in utter violation of principles of natural justice.
4. Rule 3 of the U.P. Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (in short as the 'Rules') provides the procedure for filing of complaint against the Pradhan or Up-Pradhan. Rule 4 of the Rules, provides that there shall be preliminary inquiry and the Enquiry Officer shall conduct the preliminary inquiry and submit his report to the State Government within thirty days. The procedure for regular inquiry has been provided under Rule 6 of the Rules. For convenience, Rule 6 of the Rules is reproduced as under:
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 imputations 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 a list of documents by which, and list of witnesses by whom, the articles of charge are proposed to be sustained.
(3) The Enquiry Officer shall deliver or cause to be delivered to the person against whom he is to hold the enquiry, a copy of the articles of charge, the statement of 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 in person 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 of charges 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 findings on each charge after taking such evidence as he may think fit.
(5) If the person who has not 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 days, 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 ;
(c) give a notice within ten days of the order or within such further time not exceeding ten days as the Enquiry Officer may allow, for the discovery or production of any documents that are relevant to the enquiry and are in the possession of the State Government but not mentioned in the list referred to in Sub-rule (2).
(7) The person against whom the enquiry is being held may take the assistance of any other person to present the case on his behalf, and the Enquiry Officer may appoint any person as a Presenting Officer to assist him in conducting the enquiry:
Provided that a legal practitioner shall not be engaged or appointed under this sub-rule.
(8) If the person applies orally or In writing for the supply of copies of the statements of witnesses mentioned in the list referred to in Sub-rule (2), the Enquiry Officer shall furnish him within such copies as early as possible, and in any case, not later than three days before the commencement of the examination of the witnesses by whom any of the articles of charge is proposed to be proved.
(9) The Enquiry Officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition:
Provided that the Enquiry Officer may, for reasons to be recorded in writing refuse to requisition such of the documents as are, in his opinion, not relevant to the case.
(10) On receipt of the requisition referred to In Sub-rule (9), every authority having the custody or possession of the requisitioned documents shall produce the same before the Enquiry Officer:
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the Enquiry Officer accordingly and the Enquiry Officer shall, on being so informed, communicate the information to the person against whom the enquiry is being held and withdraw the requisition made by him for the production or discovery of documents.
(11) On the date fixed for the enquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced and the witnesses shall be examined, by the Enquiry Officer by or on behalf of the complainant, if there is one, and may be cross-examined by or on behalf of the person against whom the enquiry is being held. The witnesses may be reexamined by the Enquiry Officer or the complainant, as the case may be on any point on which they have been cross-examined, but not on any new matter, without the leave of the Enquiry Officer.
(12) The Enquiry Officer may allow production of evidence not included in the list given to the person against whom the enquiry is being held, or may itself call for new evidence or recall and reexamine any witness and in such case the said person shall be entitled to have if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such evidence 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 then 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 against him In the evidence for the purpose of enabling him to explain any 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 and recorded 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:
Provided that, if the succeeding Enquiry Officer is of the opinion that further examination of any of the witnesses whose evidence has already been recorded Is necessary In the interest of justice he may recall, examine, cross-examine and re-examine any such witness as hereinbefore provided.
5. A plain reading of the Rules indicates that the Legislature has given appropriate safeguards to check the arbitrary use of power by the authorities. The specific provision has been given in Rule 6 (supra) for inquiry. Rule 7 of the Rules provides that while submitting the report the Enquiry Officer shall record specific finding with regard to certain points keeping in view the facts and circumstances of a case. For convenience, Rule 7 of the Rules Is reproduced as under:
7. Report of the Enquiry Officer.- After the conclusion of the enquiry, the Enquiry Officer shall prepare a report which shall contain-
(a) the articles of charge and the statement of the imputations;
(b) the defence of the person against whom the enquiry has been held;
(c) the assessment of the evidence in respect of each article of charge;
(d) the findings on each article of charge and reasons therefor.
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 or has had a reasonable opportunity of defending himself against such article of charge.
6. In the present case, on the basis of the record it appears that neither the inquiry officer, i.e., the Executive Engineer nor the District Magistrate concerned, had complied with the provisions given in the Rules. The provisions contained in the Rules are statutory in nature and while holding a person guilty of misconduct it shall be incumbent upon the authorities to follow the provisions in letter and spirit.
7. The Pradhans who are elected and chosen by the people, should not be treated with undue hardship. In the present case, the false implication cannot be ruled out. The Rules contain detailed procedure with regard to holding of inquiry and for the submission of report by the Inquiry Officer. The principles of natural Justice is the part and parcel of Article 14 of the Constitution. Noncompliance of the Rules renders the inquiry report as well as the removal order illegal. The provisions contained in the Rules are mandatory in nature and should be adhered by the authorities while proceeding with the inquiry. The attention has not been invited towards any material on record by the respondents Counsel which may point out that Rules 5, 6 and 7 of the Rules have been followed in the inquiry proceedings. It is settled proposition of law that in case the authorities want to do anything, then that should be in the manner provided by the Act or Statute (Rules) and not otherwise vide, Nazir Ahmed v. King Emperor : AIR 1936 PC 253; Deep Chand v. State of Rajasthan : AIR 1961 SC 1527; Patna Improvement Trust v. Smt. Lakshmi Devi and Ors. : AIR 1963 SC 1077; State of U.P. v. Singhara Singh and Ors. : AIR 1964 SC 358; Barium Chemicals Ltd. v. Company Law Board : AIR 1967 SC 295 Para 34; Chandra Kishore Jha v. Mahavir Prasad and Ors. : 1999 (8) SCC 266; Delhi Administration v. Gurdip Singh Uban and Ors. : 2000 (7) SCC 296; Dhananjay Reddy v. State of Karnataka AIR 2001 SC 1512; Commissioner of Income Tax, Mumbai v. Anjum M. H. Ghaswala and Ors. : 2002 (1) SCC 633; Prabha Shankar Dubey v. State of M.P. AIR 2004 SC 486 and Ramphal Kundu v. Kamal Sharma : AIR 2004 SC 1657. In the present case, at the face of record, the procedure given in the Rules (supra) have not been followed. The writ petition deserves to be allowed.
8. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 12.11.2008 passed by the District Magistrate, Etah/District Panchayat Raj Officer (Annexure-8 to the writ petition) with consequential benefits. However, liberty is given to the respondents to proceed afresh in accordance with law.