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Ved Singh Pradhan Vs. Assistant Sub-divisional Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal 656 and 657 of 1964
Judge
Reported inAIR1965All370
ActsConstitution of India - Article 226; Uttar Pradesh Panchayat Raj Act, 1947 - Sections 95(1)
AppellantVed Singh Pradhan
RespondentAssistant Sub-divisional Officer and ors.
Advocates:A. Banerji, Adv.
DispositionAppeal dismissed
Excerpt:
.....till further order from court - period for disqualification is five years - the court has no power to change the period of disqualification. - - 7. if the contentions advanced on the appellant's behalf were accepted it would mean his getting advantage of an interim order passed in a proceeding started by him without any success. if the interim order bad not been passed he could not claim that he was eligible for election, it is not within the power of this court to give such an advantage to a person......that the appellant had not been given an opportunity to cross-examine witnesses and to examine defence witnesses. there is no provision in the act laying down the procedure to be followed for removing a pradhan under section 95(1)(g); therefore, it cannot be said that a regular enquiry had to be made by the state government and that the order of removal passed without such an enquiry being held was invalid. no provision of the act was infringed by what was done or not done, by the assistant sub-divisional officer. the principle of natural justice imposed only this obligation upon him that he had to give the appellant an opportunity to explain the charge; it did not go further and compel him to hold aregular trial by examining witnesses to prove the charge and allowing the appellant.....
Judgment:

1. The appellant was a Pradhan of a Gaon Sabha. He was removed by an Assistant Sub-Divisional Other, exercising the State Government's powers under Section 95 (1) (g) (iii) of the U. P. Panchayat Raj Act. A charge was framed against mm to the effect that he had taken bribes from people of the village and had Illegally constructed a chabutra in front of his house and he was called upon to explain it. He offered his explanation which was found unsatisfactory by the Assistante Sub-Divisional Officer. He did not urge that an enquiry be marie in his presence, that witnesses called to prove the charge be allowed to be cross-examined and that he be allowed an opportunity to produce witnesses in defence. No enquiry was held by the Sub-Divisional Officer; he simply considered the explanation and on finding it unsatisfactory passed the order removing him. The appellant filed a petition for certiorari for the quashing of this order of removal. The petition has been dismissed by our brother Broome and this special appeal is filed from his order.

2. While the writ petition was pending in this Court it issued the following interim order :

'Issue notice. Let an ad interim order issue staying operation of the order made by respondent No. 1 dated 26-5-59.'

Under Section 95 (2) a person removed under Sub-section (iii) of Clause (g) of Sub-section (1) of Section 95 shall not be entitled to be re-elected or re-appointed to any office under the Act for a period of 5 years. The order of removal was passed on 26-5-1959, and, therefore, the appellant was not entitled to be re-elected or re-appointed to the office of Pradhan prior to 26-5-1964. In the election held prior to this date to fill the vacancy caused by his removal he again offered himself for election and was elected. An election petition was filed against his election on the ground of the disqualification mentioned above. His defence was that the disqualification did not operate because of the ad interim order passed by this Court during the pendency of the petition for the quashing of the removal order, suspending its operation. The election tribunal did not accept the defence, held that the appellant was disqualified and set aside his election. From this order of the tribunal he tiled another petition which also has been refused by our brother Broome. Special Appeal No. 656 of 1964 is tiled from the second order of our learned brother.

3. Coming to the instant special appeal we find that the order of removal has been challenged on the sole ground that the appellant had not been given an opportunity to cross-examine witnesses and to examine defence witnesses. There is no provision in the Act laying down the procedure to be followed for removing a Pradhan under Section 95(1)(g); therefore, it cannot be said that a regular enquiry had to be made by the State Government and that the order of removal passed without such an enquiry being held was invalid. No provision of the Act was infringed by what was done or not done, by the Assistant Sub-Divisional Officer. The principle of natural justice imposed only this obligation upon him that he had to give the appellant an opportunity to explain the charge; it did not go further and compel him to hold aregular trial by examining witnesses to prove the charge and allowing the appellant to cross-examine them and to produce defence witnesses. All that the Assistant Sub-Divisional Officer was required to do under the principles of natural Justice was togive to the appellant an opportunity to explain the charges framed against him and he fully discharged this obligation. He was not required to act as a tribunal discharging quasi-judicial functions as in the case of Slate of Mysore v. Shivabasappa, AIR 1963 SC 375.

4. The appellant himself did not ask for any opportunity to cross-examine the witnesses against him and to produce witnesses in defence; it is not open to him to contend now that he was not given this opportunity. When the Assistant Sub-Divisional Officer was not bound by any law to examine witnesses in his presence and to give him an opportunity to cross-examine them and to produce defence witnesses the initiative lay upon him, if he wanted to cross-examine the witnesses against him and to produce witnesses in defence, to ask for this opportunity. When he did not ask for it he is not justified in arguing that the order of removal was vitiated. No other point was urged in support of the petition for the quashing of the removal order and this special appeal is dismissed summarily.

5. Coming to the other appeal concerning the order passed by the Election Tribunal setting aside the appellant's election, we find that it was rightly set aside because the appellant was unconditionally disqualified and remained disqualified notwithstanding the ad interim order of stay of operation. What was stayed was only operation of the order of removal; the order itself was not deemed not to exist. The ad interim order was prospective; what was further required to be done, or what could further be done, was not to be done. Only what remained to be done was stayed, not the effect of what had already come into existence. The removal was the immediate effect of the order and nothing was required to be done to bring it about. As soon as the order was passed the appellant stood removed and as soon as he was removed he became disqualified. The disqualification was simultaneous with the removal; it was the automatic con-sequence of the removal. His being subject to the disqualification was the effect of law and it was not open to this Court without infringing the law to say that he would not remain subject to the disqualification during the pendency of the writ petition.

Actually this Court did not order that he would not remain subject to the disqualification. Consequently he could not contend that by virtue of the stay of the operation of the order the disqualifies-tion which was automatic also remained suspended. The disqualification was for a fixed period of five years and had to remain in force for an the five years and could not remain in force for a day longer or for a day less. This also shows that it was not possible for any authority, even this Court, either to curtail me period of disqualification or to suspend it. What was really stayed by this Court was execution of the order of removal, the order of removal remained intact but any act to be done on account or the order of removal was prohibited from being done. The disqualification was not an act to be done at all; it was, as we said above, an automatic legal effect of the order. Therefore, the appellant remained subject to the disqualification in spite of the interim order and could not offer himself for election.

6. Our learned brother said that when the writ petition was dismissed and the interim order was discharged it meant that there was no interim under at all and that consequently the disqualification was never suspended. We respectfully do not agree with this view of our learned brother. The vacation of the interim order on the dismissal of the petition for writ could not nave retrospective effect and it could not be said that the interim order was deemed not to have been passed at all. If the effect of the order had been to suspend the disqualification we would have been obliged to hold that the appellant was eligible for re-election.

7. If the contentions advanced on the appellant's behalf were accepted it would mean his getting advantage of an interim order passed in a proceeding started by him without any success. The writ petition filed by the appellant was dismissed. We fall to understand how he can take advantage of an interim order passed during the writ petition by contending that he should be deemed to have been validly elected. If the interim order Bad not been passed he could not claim that he was eligible for election, it is not within the power of this Court to give such an advantage to a person.

8. For these reasons we hold that the writ petition was rightly dismissed by our learned brother and dismiss this special appeal summarily.


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