Gopi Singh vs The State of U.P. and Others

R.A. Sharma, J.—In these writ petitions the Petitioners who are Pradbans of Gaon Sibhas had challenged the order of the Prescribed Authority Sub-Divisional Officer), whereby they have been suspended from the office of Pradhan u/s 95(1)(gg) of the U.P. Panchayat Raj Act (hereinafter referred to as the Act). As against the order of suspension under the aforesaid provisions a revision lies before Divisional Commissioner the learned Counsel for the Petitioners have challenged a Government notification of 1976 whereby the Government of U.P. has. in exercise of power u/s 96-A of the Act, delegated its power u/s 95 to the Sub-Divisional Officer subject to the condition that any order passed by him shall be revisable by the Divisional Commissioner and also by the State Government.

In this connection the argument of the learned Counsel for the Petitioners is that the Government, while delegating its power to any officer or authority; can impose any condition of restriction subject to which the delegate can exercise the power but it cannot make the order of delegate revisable by any other authority in as much as delegate exercises power of State Government and order of the State Government by virtue of Sub-section (3) of Section 95 have been prohibited from being questioned by any court. The learned Counsel submits that finality of the order of delegate passed u/s 95(1)(gg) of the Act cannot be destroyed by the Government. It is nor possible for me Magee with the learned Counsel. Division Bench of the Court in Matloob Ahmad v. Sub-Divisional Officer 1986 AWC 1175, has upheld the validity of the impugned notification whereby the Government delegated its power to the Sub-Divisional Officer, which have been made revisable by the Commissioner of the Division. Relevant passage from this judgment of Division Bench is extracted below:

The contentions raised by the counsel for the Petitioner that the rivisonal forum could not be created by means of notification and that the order passed by the Sub-Divisional Officer is the order passed by the State Government and the the order of the Sub-Divisional Officer should be treated to be final are, therefore without substance. Section 96-A of the Act in our opinion gave power to the State Government to place conditions and restrictions on the exercise of the power of the Sub-Divisional Officer and for that purpose the State Government could provide that the exercise of the powers by the Sub-Divisional Officer shall be subject to the revisional control by the Commissioner and the State Government.

Learned Counsel for the Petitioners have further argued that (i) the Prescribed Authority has lo record, in the order, its satisfaction that the grounds on which action is proposed to be taken under Clause (g) exists and (ii) before passing the order of suspension Pradtaan has to be given reasonable opportunity of being heard.

Suspension u/s 95(1)(gg) is passed during pendency of the proceedings for removal of the Pradhan under Clause (g) of Sub-section (1) of Section 95. As against such an order of suspension revision lies which in my opinion, as held by the Division Bench also, is efficacious remedy, it is not necessary for me to express any opinion on these questions in as much as it is open to the Petitioner to file a revision before Commissioner of the Division and may take ail such grounds and raised ail such pleas which are permissible under law. But as the learned Counsel for Petitioners argued these points with full vigour, I may only mention that these questions have also been decided by his Court.

This Court in Ratan Singh v. Commissioner 1987 AWC 425, has laid down that it is not the requirement of the law that the order of suspension passed under Clause (gg) should contain a recital about satisfaction relating to the existence of the grounds for taking action under Clause (g). An order of suspension oaring pendency of enquiry of contemplated enquiry need not contain seasons as it is not final order and is only by way of interim arrangement. What is required by law is not recital in the impugned order of suspension that prima facie satisfaction in fact, whether there was actual prima facie satisfaction of the Prescribed Authority or not before passing the impugned order can more appropriately be decided by revisional court where whole record is summoned and both factual and legal controversies are decided.

A Division Bench of this Court in Saligram v. Collector 1985 ALJ 1267, has declared that in view of diligence in the requirements of Clauses (i) and (ii) of the proviso appended to Clause (gg) of Sub-section (1) of Section 95, an opportunity of being heard, before passing an order of suspension, pending enquiry under Clause (jig) is not required to be given. Relevant passage from this judgment is extracted below:

The difference in the requirement of Clause (i) and (ii) is apparent on the plaint language thereof. Clause (i) contemplates reasonable opportunity of show-cause being given against the action if it is proposed under Clause (g) of Clause (h). It does not require such an opportunity being given before passing an order or suspensor pending enquiry under Clause (gg).

The order of suspension under Clause (gg) is merely by way of interim measure during pendency or contemplated enquiry under Clause (g). Before passing such an order it is not necessary that opportunity of being heard should be given to the Pradhan. If he feels aggrieved against the order be can challenge it before revisional court.

Excepting the aforesaid three questions of law no other point has been argued before me. In case Petitioners feel aggrieved against the impugned orders of suspension it is open to them to rile revision, which is efficacious alternation remedy, before the revisional court. They can take all the points which may be permissible under law. In case the Petitioners feel expedient it is open to them also to move an application for interim relief. If such a revision is tiled and an application for interim relief is filed, that application for interim relief shall be decided by the learned Commissioner within two weeks from the date of receipt of the application for interim relief or certified copy of this order which ever is latter. It is also desirable that revision, if any, filed by the Petitioners, may also be decided expeditiously, as far as possible within three months from the date of filing of the revision.

With the aforesaid observations these writ petitions are dismissed on account of alternative remedy.