Ghauhan v. Parganadhikari, Saidpar, District, Ghazipur
1990-11-09
B.L.YADAV
body1990
DigiLaw.ai
JUDGMENT B.L. Yadav, J. - By the present petition under Article 226 of the Constitution of India the petitioner, who is a Pradhan and has been suspended pending enquiry by the impugned order dated 12-10-1990 (Annexure-5 to the petition) has prayed for a writ of certiorari quashing the impugned order. 2. The petitioner was elected as Pradhan, Later on some allegations were made against him to the effect that he has given some incorrect statement in the capacity of Pradhan about the death of one Kamta Singh of Village Bijahri that he was dead. This statement was given in the court of Consolidation Officer and an enquiry appears to have been held and it was found that Kamta Singh was alive. On that matter an opinion was sought from the D. G. C. (Revenue) who expressed his opinion on 12-10-1989 that the action of the Pradhan amounts to misconduct and action can be taken against him under Section 95(l)(gg) of the Panchayat Raj Act, 1947 (for short the Act). The next allegation against the petitioner was that he has misappropriated the fund received by him in connection with the Jawahar Rozgar Yojna by committing irregularities. After the complaints were received an enquiry was held by the Block Development Officer, who by his letter dated 24-4-1990 held that the Pradhan, the petitioner was not co-operating in the enquiry and was not submitting the relevant papers and an enquiry in that connection was pending. The other enquiry was about the misappropriation of Government money in connection with the Jawahar Rozgar Yojna. If was directed that an FIR be lodged against the Pradhan and documents may also be obtained from him and by the impugned order the petitioner has been suspended. 3. Sri H. S. N. Tripathi, learned counsel for the petitioner urged that under Section 95(1 )(gg) of the Act, no prima facie satisfaction of the Sub-Divisional Officer has been recorded nor opportunity of hearing was given before passing the impugned order as required by proviso to Section 95(l)(h) of the Act. Reliance was placed on Khajan Singh v. Sub-Divisional Officer, Aligarh, 1978 AWC 1 ; Jangali Singh v. Sub-Divisional Officer, 1977 AWC 497 and Kulbhushan Chopra v. The Punjab National Bank, 1979 Service Law Reports 436. 4. Sri M.D. Singh, Advocate, has filed a caveat and he has also been heard. 5.
Reliance was placed on Khajan Singh v. Sub-Divisional Officer, Aligarh, 1978 AWC 1 ; Jangali Singh v. Sub-Divisional Officer, 1977 AWC 497 and Kulbhushan Chopra v. The Punjab National Bank, 1979 Service Law Reports 436. 4. Sri M.D. Singh, Advocate, has filed a caveat and he has also been heard. 5. As regards the first submission that the petitioner cannot be suspended under Section 95(1 )(gg) of the Act unless opportunity of hearing was given to him in view of the first proviso added to Section 95(1 )(h) of the Act ex-abaundanti cattail the second proviso added to Section 95(l)(gg) are set out below : "Provided that: (i) No action shall be taken under clause (f), clause (g) or clause (h) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed. (ii) no action shall be taken under clause (gg) on the ground that proceedings under clause (g) are pending or contemplated unless the State Government is prima facie satisfied that the grounds on which action is proposed under that clause exist." 6. The aforesaid second proviso postulates that action can be taken under clause (f) or clause (g) or clause (h). Clause (f) indicates suspension, supersession or dissolution of the Gaon Sabha or Gaon Panchayat and not the Pradhan. Hence that clause would not apply. Similarly clause i.g) is in respect of removal of a member of the Gaon Panchayat or a Joint Committee or Bhumi Prabandhak Samiti. for the present case it was an order of suspension of a Pradhan and not removal. It is only before the removal that opportunity of hearing was required. Similarly under clause (h) the provision was in respect of removal of a person being elected as Pradhan provided he does not possess qualification specified under Section 5-B of the Act. In the present case it was processing for suspension and not the proceeding for removal when the opportunity of hearing may be given. Clauses (f) and (g) of sub-section (1) of Section 95 are exclusive to clause (gg). Clause (gg) is pertinent and not clauses (f) or (g). 7. As regards the next submission that the proceedings which were initiated and the Sub-Divisional Officer was directed to hold an enquiry by lodging an F. I. R. could not be said tome proceeding either contemplated or pending.
Clause (gg) is pertinent and not clauses (f) or (g). 7. As regards the next submission that the proceedings which were initiated and the Sub-Divisional Officer was directed to hold an enquiry by lodging an F. I. R. could not be said tome proceeding either contemplated or pending. In that connection reliance was placed on Kulbhushan Chopra v. The Punjab National Bank, 1979 Service Law Reports 436 (supra). In the present case in respect of misappropriation of Government fund a complaint has been received and enquiry was directed to be held by the Sub-Divisional Officer, who was proceeding in the matter. But he complained that Pradhan was not co-operating and he is not furnishing the documents required. In that connection FIR was directed to be lodged against him The expression `contemplation means continued attention of the mind to a particular subject, consideration of an act with the intention of doing it. In the present case the Sub-Divisional Officer was directed to hold an enquiry by lodging an FIR, hence proceedings were certainly contemplated Kulbhushan Chopra v. Punjab National Bank (supra) was a case decided on the facts of that particular case, it was further urged by the satisfaction of the Sub-Divisional Officer was not recorded, suffice it to say that a perusal of the impugned order indicates that a finding has been recorded by the Sub-Divisional Officer that he is fully satisfied that there are allegations of misappropriation of Government fund besides other allegations of misconduct. In teat connection an FIR was directed to be lodged against him and the proceedings for removal was to be initiated against him. In the meanwhile in the Pradhan was directed to be suspended. 8. Khajan Singh v. Sub-Divisional Officer, Aligarh (supra), was a case where it was held that in respect of suspension of Pradhan under Section 95(1) (gg) of the Act, the Sub-Divisional Officer before passing an order of suspension, must take care to record a finding that he was prima Jade satisfied that the ground of which he was proposing to held enquiry under clause (g) exists. In the present case that condition has been satisfied and prima facie satisfaction has been recorded. 9. Jangali Singh v. The Sub-Divisional Officer (supra) was a case in respect of removal of Pradhan in view of the provisions of Section 95(.l)(g) of the Act against the action proposed.
In the present case that condition has been satisfied and prima facie satisfaction has been recorded. 9. Jangali Singh v. The Sub-Divisional Officer (supra) was a case in respect of removal of Pradhan in view of the provisions of Section 95(.l)(g) of the Act against the action proposed. In the present case, it was not a ease of action proposed. It is after the completion of enquiry that it is to be decided whether the Pradhan has to be removed or not. Consequently under Section 95(l)(g) the provisos is in respect of second opportunity and not the initial opportunity. Initial opportunity has to be given during the course of proceedings and the second opportunity has to be given immediately before actually imposing punishment. Consequently that case is also not relevant. 10. In the result the petition fails and it is dismissed. It is, however, made clear that the enquiry which is pending against the petitioner would be completed within a period of six weeks from the date a certificate copy of this order is furnished before the relevant authority.