R.L. Gulati, J.
1. This is a petition under Article 226 of the Constitution.
2. The petitioner was the Pradhan of Gapn Sabha Marsena, district Agra. The Additional Sub-Divisional Magistrate, Etmadpur, the second respondent, by an order dated November 5, 1969, removed the petitioner from the office of the Pradhan. The petitioner appealed to the Additional District Magistrate, Asra, respondent No. 1, but his appeal has also been dismissed. Hence this petition.
3. A charge sheet was served upon the petitioner under Section 95 (g) (in) of the Panchavat Raj Act, which provides that a Pradan may be removed if he has abused this position as such or has persistently failed to perform his duties imposed by the Act or the Rules. There were three charges against him : firstly that he had collected on behalf of the Gaon Sabha a sum of Rs. 500/01, but had deposited a sum of Rs. 500.35. He had thus deposited 34 paise in excess, secondly that he had failed to realise a sum of Rs. 270/- as theka money from a thekedar and thirdly that he had failed to appear before the Tehsildar even though he was summoned to appear more than once.
4. Charge No. 1 on the face of it appears to be frivolous. The petitioner cannot be said to have abused his position as a Pradhan when he deposited a sum of 34 paise in excess, nor can he be accused of failure to perform his duties. It must have been through inadvertence that a small amount of 34 paise was deposited in excess. It is difficult to understand as to how could anyone think of framing a charge against the Pradhan merely because he had deposited in the government treasury an amount in excess of what he had realised. The mistake, if any, is so trivial that no reasonable man would take notice of such a mistake, even if the deposit in excess can be said to be a mistake or a lapse on the part of the Pradhan. It is obvious, therefore, that so far as the first charge Is concerned, it was not a charge in the eye of law.
5. As regards the second charge, the petitioner has stated, and that has not been denied by the opposite parties that he (the petitioner) had served a notice upon the thekedar for the recovery of the theka money and later on made a report to the Tehsildar, who took certain proceedings against the Thekedar. On these admitted facts, it is not possible to hold that the Pradhan was guilty of failure to perform his duty. The petitioner contended before the second respondent in appeal that he had taken adequate steps for the recovery of the theka money. The appellate authority has merely said that the steps taken by the petitioner were not adequate without indicating as to what other steps the petitioner could possibly take. Even in the counter-affidavit filed on behalf of the opposite parties, it has not been stated as to what other steps the petitioner was in the circumstances required to take, which he had not taken. From the material on the record, it is not possible to hold that the petitioner was guilty of the failure to perform his duty.
6. As regards the third charge, the petitioner denies that any notice was served upon him requiring him, to appear before the Tehsildar. But assuming that such a notice had been served upon the petitioner, there was nothing wrong if the petitioner did not appear before the Tehsildar if the petitioner did not want to pursue the complaint made by him. Nothing has been brought to my notice to show that it is one of the duties of the Pradhan of the Gaon Sabha to appear before the Tehsildar whenever called upon to do so.
7. Learned counsel for the respondents has relied upon Clauses (g) and (h) of Rule 47 of the U. P. Panchayat Raj Rules. Under those clauses, a Pradhan of a Gaon Sabha has a duty to file a civil case or launch prosecution on behalf of the Gaon Sabha and to perform such other duties as are required or imposed upon him by the Act or the rules. In the instant case, it is not the complaint against the petitioner that he did not file a civil suit which he was authorised to do, nor did he launch any prosecution. He had sent a report to the Tehsildar, who was an authority competent to take proceedings for the recovery of the money due to the Gaon Sabha. I am not satisfied that there was any duty upon the petitioner in these circumstances to appear before the Tehsildar. In any case, it cannot be held on these facts that the petitioner had been guilty of failure to perform his duty. Moreover Sub-clause (iii) of Clause (g) of Section 2 (Section 95 ?) contemplates that an action for the removal or suspension of the Pradhan can be taken only if the Pradhan concerned persistently refuses to perform his duty, so that one or two lapses on his part will not be enough. There is no charge against the petitioner of persistent failure to perform his duty. Accordingly no action can be taken against him even if there was some negligence on his Part.
8. In the circumstances this petition must succeed and is allowed with costs. The orders of the first respondent dated 5-3-1970 and of the second respondent dated 5-11-1959 are quashed.