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Swami Prasad Pradhan Vs. Hargovind Sahai Mathur and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3661 of 1967
Judge
Reported inAIR1970All251
ActsUttar Pradesh Panchayat Raj Act, 1947 - Sections 95(1) and 96A; Indian Penal Code (IPC) - Sections 21 and 28; Constitution of India - Article 141
AppellantSwami Prasad Pradhan
RespondentHargovind Sahai Mathur and ors.
Appellant AdvocateN.K. Saxena, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
constitution - order of suspension - sections 95 and 96 of u.p. panchayat raj act, 1947 - power to suspend pradhan of gaon sabha lies with sub-divisional officer - where order of suspension was passed by collector, it will be invalid though sub-divisional officer is convinced of decision of collector - pradhan is an elected representative and not a government servant - order of suspension not to be passed ending enquiry. - - in the counter-affidavit filed by the sub-divisional officer, however, it has been brought out that the allegations made against the petitioner were initially enquired into by the tahsildar and found to be correct, that the sub-divisional officer looked into the report of the tahsildar and, being satisfied that the petitioner had committed irregularities in..........faizabad, spl. appeal no. 93 of 1963, d/-9-12-1964 (all), confirmed the judgment, holding that the power to suspend the pradhan conferred by section 95 (1) (a) of the act is to suspend by way of punishment after proper enquiry and not during the pendency, of the enquiry (sub-divisional officer, salempur v. babu nandan gir special appeal no. 109 of 1965, d/-7-4-1965 (all) unreported).however, in baburam tripathi v. sub-divisional officer, 1966 all lj 740, another division beach held that a perusal of section 95 (1) (g) (ii) leaves no doubt that the order of suspension can be passed by the sub-divisional officer as soon as he is prima facie satisfied that the office bearer of a gaon sabha is accused of an offence involving moral turpitude. it is the difference of opinion between babu ram.....
Judgment:

Lokur, J.

1. This petition under Article 226 of the Constitution is referred to a Full Bench at the instance of Kirty, J. on the ground that there is a conflict in decisions of Division Benches of this Court and the legal position is anomalous.

2. The petitioner Swami Prasad was elected Pradhan of the Bilrai Gaon Sabha in 1960 but was placed under suspension by an order of the Sub-Divisional Officer, Mahoba dated 17th October, 1967. The petitioner Swami Prasad has challenged the order of suspension as invalid on several grounds. The order of suspension reads as follows:

'Under Collector's order dated 29-9-67 Sri Swami Prasad, Pradhan Gaon Sabha Bilrai is placed under suspension with immediate effect. Tahsildar Mahoba will please get his charge transferred to Uppradhan in consultation with B. D. O. Kabrai He has been suspended for giving leases illegally to the persons. Charge-sheet will be followed later on.'

There is no doubt that the petitioner Swami Prasad has been suspended pending a departmental enquiry on the ground that he had given leases illegally to some persons.

3. It was contended on behalf of the petitioner, in the first place, that the order has been made at the behest of the Collector and the Sub-Divisional Officer has not applied his mind to the facts of the case and hence the order is inoperative. In the counter-affidavit filed by the Sub-Divisional Officer, however, it has been brought out that the allegations made against the petitioner were initially enquired into by the Tahsildar and found to be correct, that the Sub-Divisional Officer looked into the report of the Tahsildar and, being satisfied that the petitioner had committed irregularities in granting leases to several persons, made a report to the Collector and thereupon the petitioner was suspended in public interest. A plain reading of the order of suspension passed by the Sub-Divisional Officer shows that it was under the Collector's orders that the petitioner was placed under suspension and not as a result of the judgment of the Sub-Divisional Officer himself. It may be that the Sub-Divisional Officer was convinced that the petitioner had committed irregularities in granting leases but the decision to suspend the petitioner was of the Collector and not of the Sub-Divisional Officer. This is clear from the 'order itself.

4. The order of suspension is attributed to the power conferred by Section 95 (1) (g) of the U. P, Panchayat Raj Act, 1947. It is the State Government which has the power under this section to suspend or remove, inter alia, an officer of a Gaon Sabha, but Section 96-A of the Act enables the State Government to delegate all or any of its powers under the Act to any subordinate officer or authority. In pursuance of this provision the power under Section 95 (1) (g) has been delegated to the Sub-Divisional Officer, but not to the Collector. It follows that the Collector has no authority to exercise the power under that section and any orders passed by him under that section are unauthorised. The order in question, though recorded by the Sub-Divisional Officer, is referable to the order of the Collector and the Sub-Divisional Officer has not himself taken the decision to suspend the petitioner. On this ground alone the order ought to be declared as invalid and the petition disposed of accordingly. However, this reference to the Full Bench has been made on a legal question which, in fairness, ought also to be considered and we proceed to do so.

5. The legal question raised before us is whether Section 95 (1) (g) permits the appropriate authority to place the Pradhan of a Gaon Sabha under suspension pending a departmental enquiry against him as has been done in the present case. Section 95 (1) (g) reads as follows:--

'95. Inspection-- (1) The State Government may-. ... ... ... ... ... ... ... ... ... ...(g) suspend or remove a member of a Gaon Panchayat or joint committee or Bhumi Prabandak 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 net or become incapable of acting for any reason whatsoever or if he is accused of or charged for an offence,

(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 5-A; ...............'

6. The order of reference has drawn attention to the decision of Pathak J. in Babu Nandan Gir v. Sub-Divisional Officer, Salempur, 1965 All LJ 663 = (AIR 1966 All 158) in which an order placing the pradhan under suspension pending enquiry was held to be without legal authority. There was a Special Appeal against the judgment of the Single Judge and a Division Bench, relying upon an unreported decision of another Division Bench in Shambhu Narain Singh v. Sub-Divisional Officer, Sadar Faizabad, Spl. Appeal No. 93 of 1963, D/-9-12-1964 (All), confirmed the judgment, holding that the power to suspend the Pradhan conferred by Section 95 (1) (a) of the Act is to suspend by way of punishment after proper enquiry and not during the pendency, of the enquiry (Sub-Divisional Officer, Salempur v. Babu Nandan Gir Special Appeal No. 109 of 1965, D/-7-4-1965 (All) unreported).

However, in Baburam Tripathi v. Sub-Divisional Officer, 1966 All LJ 740, another Division Beach held that a perusal of Section 95 (1) (g) (ii) leaves no doubt that the order of suspension can be passed by the Sub-Divisional Officer as soon as he is prima facie satisfied that the office bearer of a Gaon Sabha is accused of an offence involving moral turpitude. It is the difference of opinion between Babu Ram Tripathi's case, 1966 All LJ 740 and the Sub-Divisional Officer, Salempur's case, Spl. Appeal No. 109 of 1965. D/-7-4-1965 (All) (Supra) which has led to this reference to the Full Bench.

7. It may be mentioned at the outset that there does not appear to be any conflict of views between Pathak, J. in 1965 All LJ 663 = (AIR 1966 All 158) and the Division Bench which decided Babu Ram Tripathi's case, 1966 All LJ 740. In Babu Ram Tripathi's case, 1966 All LJ 740 the order of suspension was referable to Clause (ii) of Section 95 (1) (g) and it was held that if the requirements of that Clause are fulfilled, the power to suspend pending enquiry exists. Pathak, J. held that same opinion when he observed:--

'From an examination of the provisions of Clause(g) it appears that the power to suspend or to remove was intended to be exercised by the State Government as a punitive measure only except for the specific case in Sub-clause (ii) where a person was accused of or charged for an offence involving moral turpitude. In a case falling under the exception in which action is taken upon the mere accusation or charging of the person for an offence, the action could not obviously be of a punitive nature. There, it is possible to say that the power to suspend may be exercised pending enquiry into the accusation or the charge. For the remaining provision of Section 95 (1) (g) there is nothing to suggest that the power to suspend can be employed also pending enquiry.'

8. In dismissing the appeal against the Judgment of Pathak, J., however, the Division Bench made a general observation that the power under Section 95 (1) (g) is to suspend by way of punishment after proper enquiry and not during the pendency of enquiry, thereby excluding the possibility of suspension pending enquiry even in cases answering to the requirements of Clause(ii) of that section. This decision followed the view expressed by the Division Bench in Spl. App. No, 93 of 1963, D/- 9-12-1964 (All) (Supra) wherein it was held:--

'We have no doubt that the respondent had no power to suspend the appellant during the pendency of the enquiry into the charge against him. He could suspend him only by way of punishment as provided in Section 95 (1) (g). The Act contains no provision authorizing suspension pending enquiry into a charge.'

9. The argument that the power to punish under Section 95 (1) (g) for a charge framed necessarily includes the power to suspend during the enquiry was negatived on the reasoning that it was not possible to say that suspension during the enquiry into a charge was intimately connected with the infliction of a punishment under Section 95 (1) (g), that the section would become meaningless or be rendered infructuous without such power and that in order to effectuate the punishment it must be preceded by suspension during the enquiry. It may incidentally be mentioned here that the order of suspension in that case did not specify the ground on which it was passed.

10. Thus, the conflict between Babu Ram Tripathi's case, 1966 All LJ 740 on one side and the cases of Spl. App. No. 93 of 1963, D/- 9-12-1964 (All) and Spl. App. No. 109 of 1965, D/- 7-4-1965 (All) on the other is merely regarding the availability of the power to suspend under circumstances falling within Section 95 (1) (g) (ii).

11. In the present case, it should be noted that the order of suspension was made on the ground that the petitioner granted leases illegally to some persons. This ground would not fall within the scope of Clause(ii) of Section 95 (1) (g) and the decision in Babu Ram Tripathi's case, 1966 All LJ 740 would not, therefore, be applicable to the facts of this case. It is contended that the charge-sheet framed subsequently on the 21st November, 1967, did contain some accusation involving moral turpitude and therefore, the case can be referred to Clause(ii) of Section 95 (1) (g). In determining the validity or otherwise of the order of suspension, the Court has to look to the order of suspension itself and not to the accusations made in the charge-sheet prepared subsequently. On the face of the order of suspension, it is not referable to Clause(ii) but to Clause(iii) of Section 95 (1) (g) and it is not and cannot be contended that even in the, case coming under Clause(iii) a Pradhan can be suspended pending enquiry. On this ground also the order of suspension deserves to be declared invalid.

12. However, to proceed further with the conflict of decisions of the two division Benches of this High Court, it has been brought to our notice that the decision of the Division Bencn in Spl. App. No. 93 of 1963, D/- 9-12-1964 (All) was taken up in appeal to the Supreme Court in Civil Appeal No. 721 of 1966, Sub-Divisional Officer, Sadar Faizabad v. Shambhu Narain Singh, decided on 31st March, 1969 = (AIR 1970 SC 140) and was upheld by the Supreme Court. It was argued that the Supreme Court having held that the power to suspend under Section 95 (1) (g) was a power to punish and that there was no specific power to suspend a Pradhan pending enquiry into charges, the law is well settled now and the decision of the Division Bench in Babu Ram Tripathi's case, 1966 All LJ 740 is no more good law.

13. The aforesaid judgment of the Supreme Court has been noticed subsequently in two cases in this High Court--one before a Division Bench and the other before a Single Judge. But before adverting to these two cases, it would be relevant to analyse the views of the Supreme Court. The Supreme Court has held that the Pradhan holds an elected office and his rights and duties are regulated by the Act. Though a public servant within the meaning of Section 21 of the Indian Penal Code by virtue of Section 28 of the Act, he is not a subordinate of the Sub-Divisional Officer or even of the State Government. The Act has conferred upon the State Government and its delegates, under Section 95, certain powers of control and supervision over the Gaon Sabha and its office bearers.

Referring to the power of suspension and removal envisaged by Section 95 (1) (g) the Supreme Court observed:--

'But that power is admittedly a power to punish. No specific power to suspend a Pradhan pending enquiry into the charges levelled against him has been conferred on the State Government. This much is conceded.'

It was argued before the Supreme Court that the relationship between the State Government and the Pradhan was that of master and servant and the State Government was, therefore, competent to preclude the Pradhan from discharging functions under the Act during the pendency of the enquiry into the charges levelled against him, but the argument was repelled and it was held that the Pradhan was an elected representative and cannot be considered as a servant of the Government and also that there was no contractual relationship between him and the Government much less the relationship of master and servant. (This was the view of Pathak, J. also). It was also held that the Gaon Sabha being the creature of statute, no question of inherent powers arose as the powers and duties of Gaon Sabha as well as the powers and duties of its officers were all regulated by the Act. The further contention that the power to suspend by way of punishment must be construed as implying the power to suspend pending enquiry on the well recognised canon of interpretation of statutes that while a statute confers a jurisdiction it impliedly also grants the power of doing ail such acts or employing such means as are essentially necessary to its execution was not accepted on the ground that the Dower to place under suspension an officer of the Gaon Sabha is absolutely not essential for the proper exercise of the power conferred under Section 95 (1) (g).

14. The Supreme Court decision has been referred to in Civil Miscellaneous Writ No. 1140 of 1969, Bhagwat Prasad v. Sub-Divisional Officer Baberu decided on 23rd April, 1969 (All). In this case a Division Bench consisting of Broome and G. C. Mathur, JJ. following the decision in Babu Ram Tripathi's case, 1966 All LJ 740 held that suspension pending enquiry in cases falling under Clause(ii) of Section 95 (1) (g) would be in order and distinguished the decision of the Supreme Court on the ground that the case before the Supreme Court appeared to relate to Clause (i) of Suction 95 (1) (g) and not to Clause(ii). With respect, we are unable to agree with the distinction made. As observed above and as stated by the Division Bench in their judgment in Spl. Appeal No. 93 of 1963, D/-9-12-1964 (All) arising out of Shambu Narain Singh's case, it was not stated in the order of suspension on what ground the order was passed and hence it is not correct to hold that the Supreme Court which was dealing with Shambhu Narain Singh's case, Spl. Appeal No. 93 of 1963, D/- 9-12-1964 (All), was concerned with Clause(i) of Section 95 (1) (g). The Supreme Court, in fact, has made no distinction between the various Clauses of that section and their decision relates to Section 95 (1) (g) as a whole and not to any of its specific Clauses.

15. The other case in which the Supreme Court decision is noticed is Nathu v. Sub-Divisional Officer, Civil Misc. Writ No. 2399 of 1968, D/- 25-4-1969 (All). In this case the order of suspension attracted the requirements of Clause(ii) of Section 95 (1) (g) and was upheld on the strength of Babu Ram Tripathi's case, 1966 All LJ 740. Satish Chandra J., sitting singly, felt bound by the above decision of the Division Bench but he also observed that the statements of the Supreme Court that the power to suspend conferred by Section 95 (1) (g) is admittedly a power to punish and no specific power to suspend a Pradhan pending enquiry into the charges levelled against him has been conferred on the State Government are based on admissions or concessions made by the counsel before the Supreme Court and not on a consideration or interpretation of the provisions of Section 95 (1) (g). He pointed out that the Supreme Court did not also address itself to the decision of the Division Bench in Babu Ram Tripathi's case, 1966 All LJ 740. His conclusion is:

'In the circumstances it is difficult to hold that this decision of the Supreme Court involves the declaration of law on the point whether there is power to suspend pending enquiry.'

16. Satish Chandra, J. relied on a Supreme Court decision in Jagannath Prasad Sharma v. State of Uttar Pradesh, AIR 1961 SC 1245 for the proposition that a judgment of the Supreme Court which proceeds on concession of counsel cannot be deemed to be a declaration of law by the Supreme Court on the point conceded by the counsel and held that the Supreme Court decision under consideration cannot be treated as binding under Article 141 of the Constitution as it was based on admissions and concessions made by the counsel. The following passage in the State of West Bengal v. Corporation of Calcutta, AIR 1967 SC 997 has also been referred to:--

'The decision made on a concession made by the parties even though the principle conceded was accepted by the Privy Council without discussion, cannot be given the same value as one given upon a careful consideration of the pros and cons of the question raised ............ It is not possible to predicate what the Privy Council would have said if that distinction had been placed before it. Be that as it may this decision cannot be taken as finally deciding the question that is raised before us.'

Satish Chandra, J. has posed a subtle question whether a statement of law made by the Supreme Court following upon concessions made by the counsel would be the law declared by the Supreme Court and binding on all Courts within the meaning of Article 141 of the Constitution. We do not, however, propose to enter upon a discussion of this question, for, even if, on the reasoning of Satish Chandra, J. the Supreme Court judgment is not binding on us, in our view, Section 95 (1) (g) does not permit suspension pending enquiry in relation to any of the Clauses thereof. The section deals with the power of suspension or removal simpliciter. There is little doubt that the power of removal can be exercised only after due enquiry; there can, also be no doubt that the power of suspension cannot be exercised except after due enquiry in cases falling under Clauses (i), (iii), (iv) and (v) or even in those falling under the first two parts of Clause(ii), where the person concerned refused to act or, becomes incapable of acting for any reason. It is difficult to construe the section as authorising suspension pending enquiry, only in cases covered by the last part of Clause(ii), viz. where he is accused or charged for an offence involving moral turpitude. The section has to be read as a whole and, when done so, there is no particular reason why suspension pending enquiry is prohibited in respect of all Clauses and two parts of Clause(ii) but permitted in respect of the last part of Clause(ii).

17. It is contended that the words 'if he is accused of or charged for an offence involving moral turpitude' indicate that a mere accusation or a charge is sufficient to enable suspension pending enquiry. A literal construction of this part of Clause(ii) may support this contention, but the setting of the section and its various Clauses is such that the power relatable to the last portion of Clause(ii) should not be inconsistent with or by way of exception to the power relatable to the other Clauses and the first two parts of Clause (ii). If a different treatment was intended in regard to the last part of Clause(ii) the Legislature would not have placed all the five Clauses on the same footing. We are, therefore, unable to single out the last pert of Clause(ii) alone as authorising suspension pending enquiry. That being so, we hold that the power of suspension or removal conferred by Section 95 (1) (g) can be exercised only by way of punishment and not pending enquiry, whatever Clause of the section including the last part of Clause(ii) is attracted for action.

18. The result is that the petition must succeed on the ground that the Sub-Divisional Officer has passed the order of suspension without exercising his own judgment and acting on the Collector's orders and also on the ground that the power of suspension pending enquiry is not contemplated by Section 95 (1) (g) of the Act. Accordingly, the order of suspension of the petitioner dated 17th October, 1967, is declared void and inoperative and is hereby quashed. We make no order as to costs.


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