Ashok Bhushan, J.@mdashHeard Shri C.B. Yadav, learned Senior Advocate assisted by Shri Amrendra Singh for the petitioner, Shri A.K. Sinha, learned Standing Counsel has appeared for the State respondents and Shri K.R. Sirohi, assisted by Shri Shyam Sunder Mishra for respondent no.4.
2. By this petition, petitioner has prayed for quashing the order dated 26/5/2010, by which order the petitioner who was Adyaksha, Zila Panchayat, Fatehpur has been removed by the State Government exercising the power under proviso to Section 29, of the Uttar Pradesh (Kshettra Panchayats and Zila Panchayats) Adhiniyam, 1961 (hereinafter called the "Act 1961").
3. Brief facts necessary for deciding the writ petition are: The petitioner was elected as Adyaksha, Zila Panchayat, Fatehpur on 07/1/2006. A complaint dated 30/11/2006, signed by one Jag Nayak Singh and 6 others supported by an affidavit of Jag Nayak Singh, Member of Zila Panchayat, Fatehpur was submitted to the State Government making serious allegations of financial and other irregularities against the petitioner. In the complaint it was alleged that 350 pumping sets were purchased by making payment of Rs. 74, 55,000/ to the suppliers. Complainants alleged that not even 25% pumping sets were distributed to the beneficiaries. Allegation is that lacs of Rupees were embezelled which were paid for the purpose of distribution of pumping set to the members of Scheduled Caste and there were other serious complaints against the petitioner.
4. The State Government issued certain direction to the District Magistrate for holding preliminary enquiry on 11/12/2006. A letter dated 03/3/2008, is said to have been written by the District Magistrate, Fatehpur to the State Government that serious financial irregularities have been committed which requires a thorough enquiry. The District Magistrate, again on 29/1/2009, wrote to the State Government that huge amount of money has been embezzeled by showing fictitious distribution of pumping sets in favour of Scheduled Caste persons living below the poverty line. The District Magistrate submitted a preliminary enquiry report on 17/6/2009, in which primafacie finding was recorded that Adyaksha of the Zila Panchayat, Fatehpur was found to be guilty for several financial irregularities mentioned in the complaint.
5. On the basis of the preliminary enquiry report dated 17/6/2009, the State Government passed an order dated 16/7/2009, seizing financial and administrative powers of the petitioner and appointed a 3 member committee to perform the functions of Adyaksha. The State Government decided to hold a final enquiry through Commissioner, Allahabad Division Allahabad. The order passed by the State Government seizing financial and administrative powers of the petitioner was challenged by the petitioner in this Court by filing Writ Petition No. 40990/2009, in which writ petition the stay application filed by the petitioner was rejected on 11/8/2009. A chargesheet dated 19/11/2009, was issued by the Inquiry Officer, Commissioner Allahabad Division Allahabad to the petitioner enumerating 13 charges and the petitioner was asked to submit her reply within 7 days. The petitioner was also asked to submit documentary and oral evidence in support of her defence. The petitioner submitted her reply to the said chargesheet in December, 2009, praying that she be exonerated of all the charges. Certain documents were also asked to be made available to the petitioner in her reply. The petitioner appeared on 24/12/2009, before the Inquiry Officer for personal hearing on which date she requested that she may be shown the original documents so as enable her to submit the supplementary reply.
6. On 24/12/2009, the Commissioner fixed 02/1/2010, for inspection of the documents and for submission of her supplementary reply within a week. Petitioner appeared on 02/1/2010, and inspected the documents and she was given time till 08/1/2010 to submit her supplementary reply.
7. On 02/1/2010, petitioner by a written application asked for copy of the resolution dated 04/2/2006, and a copy of the office report, and the order on the original file regarding purchase of pumping sets. On 04/1/2010, itself the husband of the petitioner received the documents asked for in writing on 02/1/2010. Thereafter, supplementary reply was also submitted by the petitioner on 08/1/2010.
8. The Inquiry Officer submitted inquiry report on 02/2/2010, to the State Government. The State Government, after receiving the inquiry report sent the copy of the inquiry report to the petitioner vide letter dated 09/4/2010, and asked for reply from the petitioner within 15 days, which letter was received by the petitioner on 26/4/2010. The petitioner submitted a representation on 11/5/2010, which was received by the State Government on 14/5/2010. The State Government passed an order on 26/5/2010, removing the petitioner from the office of Adyakshay exercising power under proviso to Section 29 of the Act, 1961.
9. This writ petition has been filed by the petitioner challenging the order dated 26/5/2010.
10. Shri C.B. Yadav, learned Senior Advocate appearing for the petitioner challenging the order dated 26/5/2010, contended that the petitioner has not been given due opportunity by the State Government before passing the impugned order which vitiates the order dated 26/5/2010. It is submitted that the inquiry against the petitioner both preliminary and final has not been conducted in accordance with The Uttar Pradesh Kshettra Panchayats and Zila Panchayats (Removal of Pramukhs, UpPramukhs Adhyakshas and UpAdhyakshas) Enquiry Rules, 1997, (hereinafter called the "Rules, 1997").
11. It is submitted that both the complaints against the petitioner was submitted by the members of Zila Panchayat on 30/11/2006, on which a preliminary inquiry report was submitted on 17/6/2009, which enquiry report could not have been relied by the State Government for taking any action against the petitioner under the Rules, 1997.
12. Relying on Rule 4 sub rule (2) of the 1997 Rules, it is submitted that the preliminary inquiry report was to be submitted to the State Government within fortnight by the Inquiry Officer of his having been so appointed. It is submitted that the Inquiry report having been submitted on 17/6/2009, i.e. much beyond the time prescribed under Rule 4 (2) of the 1997 Rules, such inquiry report could not have been formed any basis for taking any action against the petitioner and all the subsequent proceedings are vitiated. It is further submitted that Rule 3 (2) of the Rules, 1997 provides that every complaint referred to in subrule (1) shall be accompanied by the complainants own affidavit in support thereof and also affidavit of all persons from whom the complainant have received information of fact relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation, but no affidavit having been filed by the person from whom the complaint is alleged to have been received information, the provisions of Rule 3 (2) vitiates the entire proceedings. It is further submitted that neither any date nor time was fixed for the final inquiry and the procedure prescribed under Rule 6, has not been followed by the Inquiry Officer which vitiates the entire proceedings. It is submitted that the provisions of Rules, 1997 i.e. Rule 3 is mandatory and noncompliance of Rule 3, renders the entire subsequent proceedings invalid and without jurisdiction.
13. Reliance has been placed on a Division Bench judgment of this Court reported in 2005 (3) ESC (All) 2209, Smt. Kesari Devi Vs. State of U.P. & Ors. It is further submitted that the charges were not proved against the petitioner and the allegations were also levelled against Upper Mukhya Adhikari and other officials of Zila Panchayat who were not punished in the inquiry and after suspension for certain period they were all reinstated.
14. Shri A.K. Sinha, learned Standing Counsel appearing for the State, refuting the submission of the learned counsel for the petitioner contended that the inquiry, both preliminary and final has been conducted in accordance with the Rules, 1997. Petitioner was given full opportunity by the final Inquiry Officer. Petitioner had also submitted her reply and supplementary reply which were duly considered. Petitioner did not request the Inquiry Officer that she shall produce any oral evidence or documentary evidence in support of her defence and now she cannot be heard in saying that she was not given opportunity. It is submitted that requirement of submission of preliminary inquiry report under Rule 4(2) of the Rules, 1997, within two weeks is only directory and the mere fact that the report is submitted after two weeks does not vitiate the entire proceedings. It is submitted that serious charges of nondistribution of 318 pumping sets out of total 350 has been found proved. Out of 13 charges, 9 charges have been found proved against the Adyakshaya and after giving full opportunity the petitioner has been removed from her office. The documents asked for by the petitioner were duly supplied to her which was inspected by the petitioner on 02/1/2010 and 04/1/2010 and thereafter supplementary reply was submitted by the date fixed i.e. 08/1/2010. Large number of irregularities were committed by the petitioner in distribution of pumping sets. The petitioner issued certificate of Scheduled Caste to several beneficiaries whereas she was not entitled to issue caste certificate. Charges were proved for nondistribution of pumping set to 318 beneficiaries whose names were approved leading to inference that by producing fictitious documents the Government money was embezzled.
15. Shri K.R. Sirohi, learned counsel appearing for the respondent no.4 submitted that the petitioner appeared before the Inquiry Officer on 24/12/2009, for personal hearing. The petitioner also inspected the documents on 02/1/2010 and 04/1/2010, and submitted her supplementary reply. The rules of natural justice were fully complied with and all the documents demanded by the petitioner were supplied and there is violation of any procedural requirement.
16. We have considered the submissions of the learned counsel for the parties and have perused the record.
17. The order which is challenged in the writ petition is an order passed under Section 29 of the Act, 1961 which is to the following effect.
"29. Removal of Adhyaksha or UpAdhyaksha.(1) If in the opinion of the State Government the Adhyaksha or UpAdhyaksha while acting in place of Adhyaksha wilfully omits or refuses to perform his duties or functions under this Act or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties, [or because physically or mentally incapacitated for performing his duties] the State Government, after giving the Adhyaksha or UpAdhyaksha, as the case may be, a reasonable opportunity for explanation may by order remove him from office [and such order shall be final and not open to be questioned in a Court of law]:
[Provided that where in an enquiry held by such person and in such manner as may be prescribed, an Adhyaksha or Upadhyaksha is prima facie found to have committed financial and other irregularities such Adhyaksha or Upadhyaksha shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a committee consisting of three elected members of the Zila Panchayat appointed in this behalf by the State Government.]"
18. Preliminary enquiry was conducted and a report dated 17/6/2009, was submitted by the District Magistrate finding the charges prima facie proved. Chargesheet was submitted on 19/11/2009 containing 13 charges. Inquiry report dated 02/2/2010, was submitted after considering the reply and supplementary reply of the petitioner. The inquiry report dated 02/2/2010, finds 9 charges proved against the petitioner on the basis of materials on the record. The State Government has also recorded a finding in the impugned order that following 9 charges have been found proved. The charges which have been found proved against the petitioner are as follows:
19. This Court in exercise of writ jurisdiction shall not reappraise the materials on record nor enter into the findings recorded by the Inquiry Officer on 02/2/2010. The scope of interference by this Court in the impugned order which is based on finding of proved charges is very limited. The Court can interfere in the order and findings only when the findings are perverse or based on no material.
20. The submission of Shri C.B. Yadav, learned counsel for the petitioner that charges were not proved against the petitioner cannot be accepted. His further submission is that the charges were found to be proved against other officials of Nagar Panchayat including Atirikt Mukhya Nagar Adhikari and the Engineers has no relevance, insofar as the proved charges against the petitioner is concerned. The mere fact that certain other officials including the Atirikt Mukhya Nagar Adhikari and Assistant Engineers and Junior Engineers of the Zila Panchayat were also responsible for irregularities in no manner mitigate the charges found proved against the petitioner. It is on the record that disciplinary proceedings were also initiated against the said officials, during which proceeding they were initially suspended, but suspension was withdrawn reinstating them with stipulation that enquiry against them shall continue. It is not on the record as to what happened in the enquiry against them. However, it is not necessary for us in this writ petition to dwell upon the allegations which were made against such other officials or the proceedings which were taken against them.
21. Shri C.B. Yadav, learned counsel for the petitioner submitted that there having been violation of procedure required under the Rules, 1997 the entire proceedings is vitiated. It has been submitted that although the provisions of Rule 3,4 and 6 of the Rules, 1997, having been violated insofar as inquiry against the petitioner is concerned, the submission of the counsel for the petitioner in this regard is that there has been violation of Rules 3(2) and 4(2) of the Rules, 1997.
Rules 3 and 4 of the Rules, 1997, is quoted below:
"3.Procedure relating to complaints.(1) Any person making a complaint against a Pramukh, UpPramukh, Adhyaksha or Upadhyaksha may send his complaint to the Secretary to the State Government in the Panchayati Raj Department, Vidhan Bhawan, Lucknow.
(2)Every complaint referred to in subrule (1) shall be accompanied by the complainant''s own affidavit in support thereof and also affidavit of all persons from whom he claims to have received information of fact 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 affidavit respectively.
(4)Not less than three copies of the complaint as well as of each of its Annexures shall be submitted by the complainant.
(5)A complaint which does not comply with any of the foregoing provisions shall not be entertained.
4. Preliminary enquiry.(1) The State Government may, on the receipt of a complaint referred to in Rule 3 or otherwise appoint an officer not below the rank of an Additional District Magistrate in the case of a Pramukh or UpPramukh 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 formal enquiry in the matter.
(2). The Officer appointed under subrule (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."
22. Relying on Rule 3(2) of the 1997 Rules, it is submitted that complaint filed against the petitioner has to be accompanied by the affidavit of the complainant, and affidavits of all persons from whom the information is said to be received, hence there is a violation of Rule 3(2) of the Rules, 1997. Copy of the complaint has been filed as Annexure 1 to the Supplementary affidavit which indicates that the complaint was signed by complainant Jag Nayak Singh and 6 others members and was supported by an affidavit of Jag Nayak Singh son of Shri R.M. Singh, Member, Zila Panchayat, Fatehpur. Thus, there has been compliance of requirement of filing of an affidavit of the complainant as contemplated by Rule 3 (2). A perusal of the complaint indicates that complaint does not refer to any specific person from whom the said information is said to be received. When the complaint does not contain receiving of any information from any particular person, requirement of filing of an affidavit by such person cannot be said to be a requirement under Rule 3(2). Thus, it cannot be said that Rule 3(2) has not been complied with.
23. Now comes the submission of Shri C.B. Yadav, learned Senior Counsel for the petitioner with regard to the preliminary inquiry report having not been submitted within a fort night there is violation of Rule 4(2) of the 1997 Rules, hence all subsequent proceedings including the final inquiry is vitiated. A perusal of Rule 4(2) of the Rules, 1997, indicates that the officer appointed as a preliminary Inquiry Officer by the Sate Government, is required to conduct the preliminary inquiry as expeditiously as possible and submit his report to the State Government within fort night of his having been so appointed.
24. The question is as to what is the consequence, if the report is not submitted within fort night by the appointed Inquiry Officer. The submission of Shri C.B. Yadav, learned counsel for the petitioner is that Rule 4 (2) being mandatory, noncompliance of the same shall vitiate the entire proceeding.
25. Rule 4(2) of Rules, 1997, is in 2 parts,
First part mandates conduct of preliminary inquiry by an Officer, and the Second part is submission of his report within fort night. There can be no dispute that conducting a preliminary inquiry by the officer appointed is mandatory and without conducting a preliminary inquiry and submitting a report, no further action can be taken in accordance with the Rules, 1997. The issue is as to whether the requirement of submitting a report within a fort night is mandatory and whether noncompliance of the said provision shall vitiate the entire proceeding. The question as to whether a provision in a statute is mandatory or directory has been considered time and again by the Apex Court and other Courts. It is well settled that where a statute imposes a public duty and require the manner in which and the time within which the duty shall be performed, injustice or inconvenience resulting from a rigid adherence to the statutory prescription may be a relevant factor in holding such prescription only directory.
26. The Apex Court in AIR 1952 SC 181, Dattatraya Moreshwar Vs. The State of Bombay & Ors., has laid down following:
"It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. "
27. In AIR, 1994, SC, 1818, T.V. Usman Vs. Food Inspector, Tellicherry Municipality, Tellicherry, the question came up for consideration as to whether the requirement of submission of report by a public analyst within a period of 45 days of the receipt of the samples is mandatory or directory. Following as laid down by the Apex Court in paragraphs 14 and 15 which is quoted below:
"14.In Rule 7(3) no doubt the expression "shall" is used but it must be borne in mind that the Rule deals with stages prior to launching the prosecution and it is also clear that by the date of receipt of the report of the Public Analyst the case is not yet instituted in the court and it is only on the basis of this report of the Public Analyst that the concerned authority has to take a decision whether to institute a prosecution or not. There is no time limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the Rules. He must in all cases try to comply with the time limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and on that basis to hold that even prosecution can not be launched. May be, in a given case, if there is inordinate delay, the court may not attach any value to the report but merely because the time limit is prescribed, it can not be said that even a slight delay would render the report void or inadmissible in law. In this context it mast be noted that Rule 7(3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, Subsection (2) of Section 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis inspite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it mast be shown that the delay has led to the denial of right conferred under Section 13(2) and that depends on the facts of each case and violation of the time limit given in Subrule 3 of Rule 7 by itself can not be a ground for the prosecution case being thrown out.
15. In this context it is useful to refer to the judgment of this Court in Dalchand v. Municipal Corporation, Bhopal and Anr. wherein the question was whether Rule 9(j) of Prevention of Food Adulteration Rules under which report of the public analyst has to be supplied within ten days, is mandatory or directory and it was held as under:
"There are no ready tests or invariable formulas to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequences of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design the provision must be held to be directory, so that proof of prejudice in addition to noncompliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot be statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period."
28. Again in (2003) 2 SCC 111, Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors., the Apex Court laid down following in paragraph 42 and 43 which is quoted below:
"42.We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the Statutory authorities within such specified time is expressly provided, it must be held to be imperative.
43. In Sutherland, Statutory Construction, 3rd edition, Vol.3 at p.102 the law is stated as follows :
"....unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the Officer."
At p.107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. At p.111 it is stated as follows :
"As a corollary of the rule outlined above, the fact that no consequences of noncompliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive."
29. It is also to be noted that Rule 4(2) of the 1997 Rules, does not provide a consequence for noncompliance. It has also been laid down by the Apex Court in several decisions that when statute does not provide for consequence of noncompliance, the same is generally treated to a directory requirement.
30. The Apex Court had occasion to consider the provisions of Order VIII Rule 1 and the proviso thereto as mended by Act No. 22 of 2005 in 2005 (4) SCC, 480, Kailash Vs. Nankhu & Ors. Following was laid down in paragraphs 30, 35 and 36 which is quoted below:
"30.It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words shall not be later than ninety days" but the consequences flowing from nonextension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language mandatory character, the same is not without exceptions. The courts when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.
35.Two decisions, having a direct bearing on the issue arising for decision before us, have been brought to our notice, one each by the learned counsel for either party. The learned senior counsel for the appellant submitted that in Topline Shoes Ltd. v. Corporation Bank, (2002) 6 SCC 33, pari materia provision contained in Section 13 of the Consumer Protection Act, 1986 came up for the consideration of the Court. The provision requires the opposite party to a complaint to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. The Court took into consideration the Statement of Objects and Reasons and the legislative intent behind providing a time frame to file reply and held : (i) that the provision as framed was not mandatory in nature as no penal consequences are prescribed if the extended time exceeds 15 days and; (ii) that the provision was directory in nature and could not be interpreted to mean that in no event whatsoever the reply of the respondent could be taken on record beyond the period of 45 days.
36. The Court further held that the provision is more by way of procedure to achieve the object of speedy disposal of such disputes. The strong terms in which the provision is couched are an expression of ''desirability'' but do not create any kind of substantive right in favour of the complainant by reason of delay so as to debar the respondent from placing his version in defence in any circumstances whatsoever."
31. A perusal of Rule 4 (2) clearly indicates that there is no consequence provided for non submission of the report within fortnight. The provision of providing fortnight time for submission of report is with an intent and object that the complaint received against an elected office bearer be immediately inquired and attended thereto. This benefit has been provided to protect the public injury and is a duty entrusted to a public official, if it is held that non submission of the report within 15 days shall vitiate the subsequent proceeding, the entire purpose and object shall be frustrated since the only thing required to be done by a public official is to conduct the preliminary inquiry and not to submit a report within fortnight howsoever serious allegation has been made against the elected office bearers. The requirement of submitting report within fortnight is a procedural requirement to speed up the process of preliminary inquiry when a preliminary inquiry is directed by the State Government.
32. In view of the foregoing discussions the submission of Shri C.B. Yadav, learned counsel for the petitioner that nonsubmission of the report within fortnight vitiates the entire proceeding cannot be accepted.
33. Shri C.B. Yadav, learned learned Senior Advocate appearing for the petitioner has placed reliance upon the Division Bench judgement of this Court in Smt. Kesari Devi (supra). He contends that the Division Bench has already laid down the provision of Rule 3 of the 1997, Rules are mandatory. In the aforesaid case, reliance was placed on paragraph 130 and 170 (xxx). Paragraphs 130 and 170 (xxx) are quoted below:
"130. In view of the above, law can be summarised that an inquiry is to be conducted against any such office bearer applying strict adherence to the statutory provisions and principles of natural justice. The provisions of Rule 3 of the 1997 Rules are mandatory in nature. Noncompliance of any of the subrules thereof would render the proceedings illegal. The complaint should be filed in the manner prescribed by the 1997 Rules, verification of the complaint as well as of the affidavit has to be made in accordance thereof. As per Rule 5 of the 1997 Rules unless the State Government is of the opinion, that the complaint has been processed strictly in accordance with Rule 3, and the preliminary inquiry has been 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. The charges should be specific, definite and give details of the incident which formed the basis of charges. No inquiry can be sustained on vague charges. Inquiry has to be conducted fairly, objectively and not subjectively. The parties have to lead oral as well as the documentary evidence and there must be fair opportunity to examine, crossexamine and reexamine the witnesses. The authority must record reasons for arriving at the finding of fact in the context of the statute defining and dealing with the misconduct after giving an opportunity of explanation to the Adhyaksha sought to be removed after furnishing him the copy of the inquiry report. The punishment under the Statute is singular and severe. Removal is accompanied by a complete disqualification prescribing debarment from contesting elections in future for three years. Applying the tests laid down by the Apex Court, strict adherence to every provision is mandatory and failure to do so would make the action liable to be struck down.
170 (xxx). Provisions of Rule 3 of the 1997 Rules are mandatory and noncompliance of any of the clauses have rendered the subsequent proceedings invalid and without jurisdiction."
34. There cannot be any dispute on the proposition laid down in Smt. Kesari Devi''s case (supra) that provision of Rule 1997 are mandatory in nature and are to be complied with.
35. As observed above, the provision of Rule 4(2) that preliminary inquiry is to be conducted, is mandatory. However, the second part of the Rule 4(2) that report is to be submitted within fortnight is only directory.
35. The Division Bench in the Smt. Kesari Devi''s case (supra) had not considered the second part of Rule 4 (2) which requires submission of the inquiry report within a fort night, nor such issue was involved in the said case.
37. The issue which has arisen in this case is as to whether the non submission of the preliminary inquiry report within fortnight is mandatory or not was neither involved in the Smt. Kesari Devi''s case (supra) nor the said issue has been decided, hence no such ratio as contended by the counsel for the petitioner on the issue involved in this case can be read in the said judgment.
38. The submission of the learned counsel for the petitioner that the petitioner was not supplied necessary documents as required by her is now to be considered. A perusal of the chargesheet indicate that the copy of the documents which were relied in the charges were annexed along with the chargesheet and supplied to the petitioner which are mentioned at item no. 1 to 7 in the last page of the chargesheet. It is not the case of the petitioner that documents which were annexed with the chargesheet has not been supplied. The petitioner in her reply to the chargesheet has prayed for showing several documents as mentioned in the reply to the chargesheet Annexure5 to the writ petition. In the counter affidavit filed by the State, it has been mentioned in paragraph 9, that a request was made by the petitioner that she may be permitted to inspect the documents which was done by her on 02/1/2010.
39. On 02/1/2010, petitioner made a written request for supplying the copy of the resolution dated 04/2/2006, and office report on the original file of purchase of pumping set which was also got inspected by the petitioner on 04/1/2010. In paragraph 9 of the counter affidavit the date of the application dated 02/1/2010 has wrongly been mentioned as (20/1/2010). Thus, all the documents which were asked by the petitioner were supplied to her.
40. The present is a case in which no oral evidence was led by either of the parties. Petitioner in her reply to the chargesheet did not mention or prayed to examine any witness, nor there is any material on record to indicate that petitioner at any point of time made any request for leading any oral evidence or submission of any documentary evidence. Petitioner had also appeared before the Inquiry Officer on 24/12/2009 and 02/1/2010. The personal hearing took place on 24/12/2009 and 02/1/2010, and she inspected the documents. Chargesheet having based on the documentary evidence referred to in the chargesheet no other evidence was submitted before the Inquiry Officer by any of the parties. The petitioner having inspected the documents as prayed by her, neither in the reply to the chargesheet nor in the personal hearing on 24/12/2009, petitioner made any request for leading any oral/documentary evidence, except the prayer for showing certain documents which were shown to her. The above facts have been clearly pleaded in paragraph 9 of the counter affidavit to which a rejoinder affidavit has been filed in which there is only vague denial. In paragraph 9 of the rejoinder affidavit, it is admitted that documents were produced for inspection, but the petitioner''s case is that only selected documents were shown and the relevant documents were never produced. Petitioner does not indicate in the reply as to what documents were not shown to her, whereas the respondents case is that all the documents were shown to the petitioner which was inspected by her.
41. In view of the aforesaid, there is no reason to disbelieve the averments of paragraph 9 of the counter affidavit, there has been substantial compliance of the procedure required to be followed by the final Inquiry Officer i.e. Commissioner, Allahabad Division, Alahabad.
42. We do not find any such error in the procedure adopted by the final Inquiry Officer which may warrant interference by the Court. Further more, inquiry report was duly forwarded to the petitioner on 09/4/2010, asking her to submit representation which was submitted and duly considered by the State Government while passing the impugned order. No grounds have been made out to interfere with the impugned order.
43. Writ petition lacks merit and is accordingly dismissed.
