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1990 DIGILAW 990 (ALL)

Azad Kumar Ors. v. Sdo

1990-11-11

VIRENDRA KUMAR

body1990
JUDGMENT Virendra Kumar, J. - This application for review of my judgment dated 28890 is moved by the State of Uttar Pradesh and other Opposite Parties on the ground that the pertinent Notification No. 5681B/XXXIII233772 published in U.P. Gazette Part1 dated 30th October, 1976 could not be placed before the Court earlier so long as the writ petition was pending before the Court. It was, therefore, not taken into consideration nor given effect to by the Court in the judgment. Under that notification the State Government has delegated its power of suspension of Pradhan of Gram Sabha under Clause (gg) of Subsection (1) of Section 95 of U.P. Panchayat Raj Act, 1947 (for short 'the Act'), to the SubDivisional Officers concerned, subject to the conditions and restrictions by virtue of the authority vested in it by Section 96A of the Act. A copy of that notification is annexed with the application for review. As the said Notification was not at all brought to the notice of the Court earlier on 28890 when the case was heard and is being placed before the Court now, review of the Court's order dated 28890 is, according to the Opposite Parties, necessitates. 2. This case is of suspension of Pradhan of Gaon Sabha Ismailpur Ambapara, District Unnao under Clause (gg) of SubSection (1) of Section 95 of the Act, by order dated 2890 passed by the SubDivisional Officer concerned. These provisions as well as the second proviso given below the Clause (h) of the same subsection were considered in the absence of the aforementioned notification which was not at all referred to nor brought to the notice of the Court earlier. In the absence of the notification, this Court held in its judgment under review that the suspension order passed by the SubDivisional Officer concerned was not in accordance with the provisions of SubSection (gg) of Section 95(1) as it did not fulfil the requirement of the aforesaid proviso for existence of prima facie satisfaction of the State Government about the grounds on which the action of suspension was proposed. It has been held in the judgment: ''Neither there is anything on the record nor it has been asserted before me that the condition of 'prima facie satisfaction of the State Government' was fulfilled, with the result that the order of suspension dated 2890 against the petitioner from the office of Gaon Pradhan cannot be held to be a legal order. The order cannot be sustained as a valid order. 3. The order cannot be sustained as a valid order. 3. The relevant provisions of law referred to and relied upon for suspending a Gram Pradhan as well as the said notification are reproduced below: Section 95(1) The State Government may (g) remove a member of Gaon Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, an office bearer of a Gaon Sabha or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he (i) absents himself without sufficient cause from more than three consecutive meetings or sittings, (ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude, (iii) has abused his position as such or has persistently failed to perform the duties imposed by the Act or rules made thereunder or his continuance as such is not desirable in public interest, or (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or (v) suffers from any of the disqualifications mentioned in clauses (a) to (m) of Section 5A, (gg) suspend a Pradhan or UpPradhan or a member of Gaon Panchayat or Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch or a Nyaya Panchayat against whom proceedings under clause (g) are pending or contemplated or against whom prosecution for an offence, which in the opinion of the State Government involves moral turpitude, is pending; Provided that an order of suspension under this clause shall not affect the right, if any, of the Pradhan or the UpPradhan, as the case may be, to take part in the proceedings of a meeting convened under Section 14 and to vote at such meeting, (h) remove a person, if, having been elected as Pradhan, he does not possess the qualifications specified in Section 5B: 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. Notification No. 5681 B/XXXIII223772 published in U.P. Gazette, Part I, dated October 30, 1976. In exercise of the powers under Section 95A of the U.P. Pandhayat Raj Act, 1947 (U.P. Act No. 26 of 1947) read with Section 21 of the U.P. General Clauses Act, 1904 (U.P. Act. No. 1 of 1904) and in supersession of Government notification No. 1617B/XXXIII23772 dated August 12, 1974, the Governor is pleased to delegate the powers of the State Government under clause (gg) of subsection (1) of Section 95 of the said Act to the SubDivisional Officer having jurisdiction subject to the condition that any order passed by the SubDivisional Officer in exercise of the said power, either before or after the date of this notification, shall be revisable by the Commissioner of the Division and also by the State Government. 4. Section 95(1) clause (gg) of the Act gives the power of suspension of Pradhan of a Gaon Sabha to the State Government: Section 96A where under the State Government can delegate its powers under Panchayat Raj Act, runs as under: 96A. Delegation of powers by State Government The State Government may delegate all or any of its power under this Act to any officer or authority subordinate to it subject to such conditions and restrictions as it may deem fit to impose. 5. The said Notification now placed before the Court clearly shows the power of suspension conferred on the State Government under Clause (gg) of Section 95(1) has been delegated on the SubDivisional Officer having jurisdict on under Section 96A of the Act which authorised such delegation, read with Section 21 of the U.P. General Clauses Act. The validity of the notification on being challenged was upheld in the case of Matloob Ahmad v. SubDivisional Officer, Bijnor and others 1986 U.P. Local Bodies & Educational Cases 901 by a Division Bench of this Court. In the case of Birendra Pal Singh v. Additional District Magistrate (AIR 1972 Allahabad 392) delegation of its power of suspension under Section 96A by the State Government was held permissible under law by another Division Bench of this Court. In the case of Birendra Pal Singh v. Additional District Magistrate (AIR 1972 Allahabad 392) delegation of its power of suspension under Section 96A by the State Government was held permissible under law by another Division Bench of this Court. In the case of Udai Bhan Singh v. SubDivisional Officer 1976 AIR 202 a different Division Bench of this Court has held that delegation of power of suspension under Section 95(1)(gg) could very well be made by the State Government by virtue of Section 96A of the Act and the concerned SubDivisional Officer was, therefore, empowered to pass the order of suspension. 6. Further, this Court has held in the cases of Matloob Ahmad and Birendra Pal Singh (supra) that the delegation of power of suspension by the State Government to the SubDivisional Officer having jurisdiction could be with conditions and restrictions laid down by the State Government. So conferring the power of revision on the Commissioner and the State Government against the order of suspension passed by the SubDivisional Officer concerned by the same notification (delegating the power of suspension) issued by the State Government in exercise of its power under Section 96A is valid and legal. 7. The second proviso given below Clause (h) (above) undoubtedly refers to the provisions of suspension contained under Clause (gg) hence the fact that it has been given below clause (h) does not make any material difference. It may be an instance of ill drafting of the legislation. What is contained and provided in the said proviso has no reference to nor applies to the removal of Pradhan which is provided under Clause (h) of Section 95(1) of the Act but refers only to suspension of Pradhan which is envisaged in Clause (gg) of Section 95(1). 8. The said second proviso clarifies the provisions of Clause (gg) and requires that the State Government is to be prima facie satisfied that the grounds on which the action is proposed under that clause, exists. This prima facie satisfaction of the existence of the grounds on which the action of suspension is proposed under clause (gg) is an objective satisfaction which is to be reached on the basis of the facts and circumstances of the case in which the suspension is proposed. This prima facie satisfaction of the existence of the grounds on which the action of suspension is proposed under clause (gg) is an objective satisfaction which is to be reached on the basis of the facts and circumstances of the case in which the suspension is proposed. There having been made a valid delegation of the power of the State Government on the SubDivisional Officer having jurisdiction to pass suspension order under clause (gg), the prima facie satisfaction has necessarily to be made by the SubDivisional Officer having jurisdiction. An interpretation different from or contrary to this, will be untenable. It does not stand to reason that suspension, on the one hand, is to be ordered by the SubDivisional Officer concerned under the delegated powers conferred under the said notification on any of the objective grounds mentioned under clause (g) of Section 95(1) of the Act (apart from prosecution for an offence) and on the other hand, the 'prima facie satisfaction' on the same facts and circumstances which have led to the passing of the suspension order by the SubDivisional Officer is to be arrived at by the State Government itself. Further, if the 'prima facie satisfaction' as to the grounds of suspension continued to be that of the State Government only and not of the SubDivisional Officer concerned passing the order of suspension, despite the issue of the said notification, then reserving the power of revision against the order of the SubDivisional Officer, in the hands of the State Government would hardly carry any meaning or sense. If the prima facie satisfaction is to be arrived at by the State Government itself initially before the order of suspension is passed under Clause (gg), there would remain nothing for the State Government to revise (in the matter of grounds of suspension) in exercise of its powers of revision under the notification. In other words the power of revision will then become illusory. In this view of the matter also what seems to be reasonable, is that the prima facie satisfaction under the proviso (ii) is to be that of the SubDivisional Officer concerned whether there exists ground under clause (g) of Section 95 (1) of the Act. This is to be done before the suspension is ordered by him subject to the revision of such order by the Commissioner or the State Government. This is to be done before the suspension is ordered by him subject to the revision of such order by the Commissioner or the State Government. 9 This Court has held in the cases of (1) Angan Lal v. SubDivisional Magistrate Kasganj District Etah, 1987 UPLBEC 270, and (2) Salig Ram Misra v. The Collector, Deoria, 1985 UPLBEC 513 that the prima facie satisfaction as to whether ground for suspension under clause (g) of Section 95(1) exists, (as required under the said proviso) was to be that of the SubDivisional Officer who passed the order of suspension. Again on the point as to who is to be prima facie satisfied under the second proviso as to the existence of the ground of suspension, under clause (g) of Section 95(1) another Division Bench of this Court has held in the case of Ajay Kumar Singh v. SubDivisional Officer, Manjhanpur and others, 1985 ALJ 849 that such satisfaction was to be of the concerned SubDivisional Officer and on his being so satisfied the requirement of the said proviso stood fulfilled. It is a fact that none of these earlier decided cases were brought to my notice during the course of arguments on the writ petition itself. 10. Suspension pending enquiry envisaged under Section 95(1)(gg) is not penal. The rules of constructions and interpretations laid down in the 'Statutory ConstructionsInterpretation of Laws' by CRAWFORD provide for literal construction of penal provisions but not for such narrow interpretation of such phrases like 'prima facie satisfaction' of the State Government as to defeat the sense and purpose of the Statute. 11. In the instant case the impugned order of suspension dated 2890 against the petitioner was passed by the SubDivisional Officer concerned. It was passed under the clause (gg) of Section 95(1) of the Act on the grounds covered and permitted under clause (g) of the same subsection. The grounds of suspension being commission of financial irregularities and abuse of position by the petitioner as Pradhan within the provision of subclause (iii) of Section 95(1)(g). The impugned order of suspension clearly lays down that the inquiry has been ordered against him inasmuch as the Enquiry Officer has been appointed for drawing proceedings against the petitioner in respect of certain grounds envisaged under Clause (g) of Section 95(1) on which the suspension has been ordered. The impugned order of suspension clearly lays down that the inquiry has been ordered against him inasmuch as the Enquiry Officer has been appointed for drawing proceedings against the petitioner in respect of certain grounds envisaged under Clause (g) of Section 95(1) on which the suspension has been ordered. It is, thus, obvious that the proceedings against the petitioner under clause (gg) of Section 95(1) were pending or contemplated when the order of suspension was passed on 2890 by the SubDivisional Officer. Prosecution of the petitioner for an offence is not at all a ground for suspension in this case. The impugned order clearly shows that prima facie satisfaction as to the grounds of suspension has been made by the SubDivisional Officer having jurisdiction and keeping in view the notification he was to have such satisfaction before passing the suspension order. The said notification (now placed before the Court) fully empowered the SubDivisional Officer to exercise the delegated power of suspension under Clause (gg) of Section 95(1) of the Act and exercise of the power is in accordance with the aforesaid second proviso. It is, therefore, held that the SubDivisional Officer has passed valid and legal order of suspension in question. 12. Further, on the basis of the aforesaid notification, the learned counsel for the opposite parties submitted that the writ petition is liable to be dismissed on the ground that the petitioner has not availed of the alternative remedy of filing revision before the Commissioner/State Government as contained therein. This point again was not raised by the learned counsel for the opposite parties when the arguments were heard in the writ petition on 28890. It appears that the learned counsel for the opposite parties was then not aware of the conferring of such power by the notification. As already mentioned in paragraph 7 above, this Court has held in the case of Matloob Ahmad (supra) that the proper remedy against the order of suspension passed by the SubDivisional Officer was of filing a revision petition before the Commissioner/State Government. The petitioner has admittedly not availed of that remedy. The petition was, therefore, liable to be dismissed also on the ground of alternative remedy. 13. In the result, review application is allowed. The petitioner has admittedly not availed of that remedy. The petition was, therefore, liable to be dismissed also on the ground of alternative remedy. 13. In the result, review application is allowed. The order dated 28890 allowing the writ petition, quashing the impugned order of suspension and issuing the mandamus to let the petitioner continue as Pradhan of Gaon Sabha, is set aside and the writ petition is dismissed.