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1977 DIGILAW 333 (ALL)

Jangali Singh v. Sub-Divisional Officer

1977-07-07

K.N.SINGH, P.N.HARKAULI

body1977
JUDGMENT : K.N. Singh, J. The Appellant was holding the office of Pradhan of Gaon Sabha Merapur Sajapur district Mainpuri. The Sub-Divisional Officer by his order dated 6th August, 1975, removed the Appellant Jangali Singh from the office of Pradhan on the finding that the Pradhan had misused his office and his continuance as such was not desirable in public interest. Jangali Singh thereupon tiled a writ petition in this Court under Article 226 of the Constitution challenging the validity of the order of the Sub-Divisional Officer. The writ petition was dismissed by a learned single Judge of this Court on February 20, 1976. Hence this appeal. 2. Briefly, the facts are that certain complaints were made against the Appellant to the Sub-Divisional Officer regarding allotment of Gaon Sabha land. The Sub-Divisional Officer after obtaining a preliminary report from the Tehsildar issued a charge-sheet to the Appellant dated 7-12-1974 containing five charges. In the charge-sheet, it was stated that the Appellant was unfit to hold the office of Pradhan on account of charges and he was called upon to show cause as to why he should not be removed from the office. The Appellant submitted his explanation and denied the charges. The Sub-Divisional Officer held enquiry, examined witnesses and the Appellant was given opportunity to cross-examine the witnesses as well as to produce witnesses. After the conclusion of the enquiry the Sub-Divisional Officer by his order dated 6th August, 1975, removed the Appellant from the office of Pradhan. 3. Learned Counsel for the Appellant urged that the impugned order of the Sub-Divisional Officer is void inasmuch as the Appellant was not given any reasonable opportunity of showing cause against the action proposed, as contemplated by the proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, inasmuch as the Appellant was not given a second opportunity of showing cause against the finding recorded by the Sub-Divisional Officer as well as against the action proposed. Sri S.C. Budhwar, learned Standing Counsel, contended that the Appellant was not entitled to any second opportunity and he was given a reasonable opportunity of showing came as required by the Act. Sri S.C. Budhwar, learned Standing Counsel, contended that the Appellant was not entitled to any second opportunity and he was given a reasonable opportunity of showing came as required by the Act. This question was raised by the Appellant before the learned Single Judge who repelled the contention on the ground that a reasonable opportunity of showing cause against the action proposed did not contemplate giving of a second opportunity of showing cause after the charges are proved against a Pradhan. 4. In order to determine this question, it is necessary to refer to Section 95 of the U.P. Panchayat Raj Act. Section 95 confers power on the Slate Government to remove a Pradhan from his office on the grounds mentioned in Clause (g). The proviso to Clause (g) however, lays down: (i) No action shall be taken under Clause (g)...except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed. The proviso thus lays down that no action against a Pradhan can be taken under Clause (g) unless he is given an opportunity of showing cause against the action proposed. The expression “reasonable opportunity of showing cause against the action proposed” requires that the Pradhan be given an opportunity to deny the charges and to lead evidence in support of his case and also to cross-examine the witnesses, if any, examined in support of the charges. After the charges are found to be established the Pradhan is entitled to contend that the charges are not proved and that the findings are not correct and that the charges even if proved do not require the punishment proposed to be meted out to him. This is the concept of reasonable opportunity of showing cause against the action proposed. 5. In AIR 1948 121 (Privy Council) the scope and the requirement of the expression “has been given a reasonable opportunity of showing cause against the action proposed to be taken” as occurring in Section 240(3) of the Government of India Act, 1935, was considered in detail. The Privy Council held that no action is proposed within the meaning of the sub-section until a definite conclusion is reached on the charges and the actual punishment to follow is provisionally determined, prior to that stage the charges are unproved and the suggested punishments are merely hypothetical. The Privy Council held that no action is proposed within the meaning of the sub-section until a definite conclusion is reached on the charges and the actual punishment to follow is provisionally determined, prior to that stage the charges are unproved and the suggested punishments are merely hypothetical. The Privy Council opined that the reasonable opportunity required that the civil servant must be given an opportunity to show cause against the action proposed, namely, at the stage after the findings are recorded by the authorities concerned and the punishment is proposed. The Privy Council emphasised that the concept of reasonable opportunity of showing cause against the action proposed requires that a civil servant should be given an opportunity of showing cause at two different stages, one during the enquiry and the other at the stage when the findings are recorded and provisional punishment is proposed. If any of these two opportunities are not given the reasonable opportunity of showing cause against the action proposed could not be fulfilled. 6. In Khem Chand v. Union of India AIR 1953 SC 300 the Supreme Court while considering the scope of Article 311(2) prior to the Fifteenth Amendment Act and the extent of opportunity required to be given to a Government Servant interpreted the expression “has been given a reasonable opportunity of showing cause against the action proposed to be taken against him.” The Supreme Court reaffirmed the principles laid down by the Privy Council in I.M. Lall's case and held that reasonable opportunity of showing cause against the action proposed envisages two opportunities, one at the stage of enquiry and the other after the findings are recorded and a provisional punishment is proposed against the Government servant. If either of the two opportunities are not given the requirement of reasonable opportunity of showing cause will not be fulfilled. In State of Assam and Another Vs. Bimal Kumar Pandit, AIR 1963 SC 1612 the Supreme Court again emphasised that the reasonable opportunity of showing cause against the action proposed requires two opportunities to be given to the Government servant. 7. In State of Assam and Another Vs. Bimal Kumar Pandit, AIR 1963 SC 1612 the Supreme Court again emphasised that the reasonable opportunity of showing cause against the action proposed requires two opportunities to be given to the Government servant. 7. In the light of the principles laid down in the aforesaid authorities, we are of the opinion that the concept of reasonable opportunity of showing cause against the action proposed as required by Section 95(1)(g) clearly envisages that a Pradhan must be given two opportunities, one at the stage when the charges are enquired into at the stage of enquiry and the other at the stage when the authorities concerned come to the conclusion as to whether the charges are proved or not and provisionally propose the action against the Pradhan. If any of the two opportunities are not given to the Pradhan the statutory requirement of reasonable opportunity of showing cause against the action proposed will not be fulfilled. The expression “reasonable opportunity of showing cause against the action proposed” was interpreted by the Privy Council and the Supreme Court. Even then the legislature enacted the proviso to Section 95(1)(g) by the Amending Act No. III of 1973, it knew the extent and scope of the opportunity contemplated under the said expression. Since the proviso to Section 95(1)(g) was enacted by the legislature at a time when the extent and scope of reasonable opportunity of showing cause against the action proposed was well established by the Privy Council and Supreme Court, it must be presumed that the legislature deliberately used the said expression which indicates the legislative intent that a Pradhan should be given two opportunities before his removal. 8. We find no justifiable ground to accept Sri Budhwar's contention that in the case of Pradhan the reasonable opportunity of showing cause against the action proposed does not contemplate opportunity at two stages as in the case of Government servants. The learned Single Judge no doubt held that two opportunities are required to be given to a Government servant under Article 311 of the Constitution, but under the proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, a Pradhan was not entitled to those opportunities as he was not a Government servant. We do not find any good ground to accept this view. We do not find any good ground to accept this view. The proviso to Section 95(1)(g) lays down a statutory protection to a Pradhan who is elected by the members of the Gaon Sabha and the legislature intended that he should be given reasonable opportunity of showing cause against the action proposed. As already noted the legislature deliberately enacted the said provision by the Amending Act No. III of 1973 at a time when the extent and scope of the concept of “reasonable opportunity of showing cause against the action proposed” was well determined by the highest judicial authority of the country. In this background there appears to be no good reason to interpret the aforesaid expression in a different manner. A Pradhan is no doubt not a Government servant but this does not affect the interpretation or the statutory requirement of the expression “reasonable opportunity of showing cause against the action proposed.” In the instant case, there is no dispute that the Appellant was not given any opportunity of showing cause after the Sub-Divisional Officer recorded findings on the charges framed against him. Thus the Appellant was not afforded a reasonable opportunity of showing cause against the action proposed. 9. In the result, we allow the appeal and (dismiss) the writ petition, set aside the order of the learned Single Judge and quash the order of the Sub-Divisional Officer dated 6th August, 1975. The Petitioner is entitled to his costs.