# Brij Mohan v. State of U.P. & Ors

- **Citation:** (2025) 8 ILRA 197
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-25
- **Case number:** Writ C No. 905 of 2025
- **Bench:** Rajan Roy, Alok Mathur, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-mohan-v-state-of-u-p-ors-53652
- **Pages:** 25

## Headnote

actions under the U.P. Panchayat Raj Act,1947
and Rules,1997, including the cessation of his
financial and administrative powers pending the
removal inquiry-He claimed for his right to
receive the preliminary inquiry report and to
object to the complaint's validity.

Headnotes
A. Civil law- Constitution of India-Article
226-Allahabad High Court Rules, -Chapter
V Rule 6(Reference to Larger Bench)-
Precedent(Stare Decisis)-The judgment
reaffirms the parameters within which a
smaller Bench can refer the correctness of
a
larger
Bench's
decision
for
reconsideration.

B. U.P. Panchayat Raj Act,1947-S.95(1)(g)
read with U.P. Panchayat Raj (Removal of
Pradhan,
Up-Pradhan,
and
Members
Enquiry Rules, 1997)- The court declined
to reconsider Full bench decision in
Vivekanand Yadav (2011) Case which held
that a Gram Pradhan is not entitled to
raise
any
objection
regarding
the
complaint in terms of Rule 3 of the 1997
Rules-The Bench found that the rulings in
Vivkekanand's case and Hafiz Ataullah
Ansari Case regarding the extent of
natural justice appear to be in conflict
with
the
principles
laid
down
in
subsequent
decision
of
the
Hon'ble
Supreme court, Particularly Natwar Singh
Case and T. Takano-The matter referred to
larger Bench.

Held
The court held that the Full Bench in
Vivekanand Yadav Case had already dealt with
the issue in a reasoned manner, in line with
judicial discipline and precedent, a reference to
reconsider a larger Bench's decision cannot be
made merely on a "veiled doubt" or casuallyThe Bench reiterated that cessation of an
elected official's powers results in serious
consequences and irreparable loss, warranting a
high degree of adherence to natural justice
principles- The Three Judge Bench partially
accepted and partially declined the reference,
ultimately submitting one key legal question to
the Hon'ble Chief Justice for the constitution of
a larger Bench.(Para 19 to 52) (E-6)

Case law Cited
Central Board Of Dawoodi Bohra Community Vs
St. of Mah.(2005) 2 SCC 673,Mineral Area
Development Authority & Anr. Vs Steel
Authority of India & Anr(2024) 10 SCC 1,Rana
Pratap Singh Vs St. of U.P. (1996) ALJ 301,
Pritam Kaur Vs Surjit Singh AIR (1984) P&H
113,Natraj Chhabigirh Sigra Vs St.of U.P.
(1996) All 375, Ambika Prasad Mishra Vs St.
of U.P., Ravi Yashwant Bhoir Vs The Collector,
Distt Raigad & Ors (2012) 2 SCC 407,Deepak
Anand Patil Vs The St. of Mah. & Ors(2023)
LiveLaw (SC) 30,T. Takano Vs SEBI(2022) 8
SCC 162,Vivekanand Yadav (supra) Hafiz
Attaullah Ansari Vs St. of U.P. & Anr. (2011)3
ALJ 412,Tarlochan Dev Sharma Vs St. of Punj.
AIR (2010) SC 3450, Sharad kailash Mittal Vs
St. of M.P., Sahara India (Firm) Vs CIT (2008)
14 SCC 151, Smt. Sonia Vs St. of U.P. (2013)5
ADJ 559,Natwar Singh Vs ED (2010)13 SCC
255-referred to.
List of Acts
U.P. Panchayat Raj Act,1947-S.95(1)(g), U.P.
Panchayat Raj (Removal of Pradhan, UpPradhan, and Members Enquiry Rules, 1997.

List of Keywords
U.P. Panchayat Raj Act,1947-S.95(1)(g), U.P.
Panchayat Raj (Removal of Pradhan, UpPradhan,
and
Members
Enquiry
Rules,
1997,Reference to a Larger Bench, Stare
Decisis/Binding
Precedent,
Principles
of
Natural justice, Per Incuriam, Quasi-Judicial,
Judicial Discipline, Civil Consequences, Show
Cause
Notice,
Vivekanand
Yadav,
Hafiz
Ataullah Ansari.

Case Arising From
CIVIL JURISDICTION: WRIT-C No. - 905 of
2025
From
the
Judgment
and
Order
dated
25.08.2025 of the High Court of Judicature
at Allahabad.
8 All. Brij Mohan Vs. State of U.P. & Ors.
199
Brij Mohan Vs. State of U.P. Thru.Prin.
Secy.Panchayati Raj Lko & 2 Ors.

Appearances for Parties
Advs. for Petitioner:
Satish Kumar Sharma, Anurag Shukla, Apoorva
Tewari
Adv. for Respondent:
C.S.C.,

## Text

_Characters 0–39,831 of 84,475. This is a partial read: ask again with offset=39831 for what follows._

8 All. Brij Mohan Vs. State of U.P. & Ors.
197
disproportionate, it was observed by the
Supreme Court in P.C. Kakkar (supra):

14. A bank officer is required to
exercise higher standards of honesty and
integrity. He deals with the money of the
depositors and the customers. Every
officer/employee of the bank is required to
take all possible steps to protect the
interests of the bank and to discharge his
duties with utmost integrity, honesty,
devotion and diligence and to do nothing
which is unbecoming of a bank officer.
Good
conduct
and
discipline
are
inseparable from the functioning of every
officer/employee of the bank. As was
observed by this Court in Disciplinary
Authority-cum-Regional
Manager
v.
Nikunja Bihari Patnaik [(1996) 9 SCC 69 :
1996 SCC (L&S) 1194] it is no defence
available to say that there was no loss or
profit
resulted
in
case,
when
the
officer/employee acted without authority.
The very discipline of an organization more
particularly a bank is dependent upon each
of its officers and officers acting and
operating within their allotted sphere.
Acting beyond one's authority is by itself a
breach of discipline and is a misconduct.
The charges against the employee were not
casual in nature and were serious. These
aspects do not appear to have been kept in
view by the High Court.

40. As already noticed by us, the basic
facts that have been established and
believed
by
the
respondents
on
a
reasonable view of the evidence are that
without the signature or authority of Mobin
Khan, a sum of Rs.12,000/- was transferred
at the behest and management of the
petitioner into the account of Kapil Kumar.
Later, this sum of money was withdrawn
and paid to the petitioner. The way the
evidence appears, where the complainant
and Kapil Kumar were both examined as
management witnesses, the respondents in
accepting both the above noted facts to be
proved, is a reasonable view of the
evidence. Now, on this kind of evidence
and the conclusion of guilt reached by the
respondents, the penalty awarded to the
petitioner, who is a bank officer, cannot be
regarded by any standards to be shockingly
disproportionate. Financial irregularity in
the bank establishment is a taboo and once
established, the authority is consistent that
dismissal from service is a punishment that
is just and condign.

41. In the entirety of circumstances,
we are not inclined to interfere with the
orders impugned.

42. This writ petition fails and is
dismissed.

43. There shall be no order as to costs.

44. Let the original records produced
by the Bank be returned to Mr. N.K.
Pandey, learned Counsel for their onward
and safe transmission to the respondents.
----------
(2025) 8 ILRA 197
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.08.2025

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE ALOK MATHUR, J.
THE HON'BLE SAURABH LAVANIA, J.

Writ C No. 905 of 2025

Brij Mohan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
198 INDIAN LAW REPORTS ALLAHABAD SERIES
Satish Kumar Sharma, Anurag Shukla,
Apoorva Tewari

Counsel for the Respondents:
C.S.C.

Issue for Consideration
The petitioner a Gram Pradhan challenged
actions under the U.P. Panchayat Raj Act,1947
and Rules,1997, including the cessation of his
financial and administrative powers pending the
removal inquiry-He claimed for his right to
receive the preliminary inquiry report and to
object to the complaint's validity.

Headnotes
A. Civil law- Constitution of India-Article
226-Allahabad High Court Rules, -Chapter
V Rule 6(Reference to Larger Bench)-
Precedent(Stare Decisis)-The judgment
reaffirms the parameters within which a
smaller Bench can refer the correctness of
a
larger
Bench's
decision
for
reconsideration.

B. U.P. Panchayat Raj Act,1947-S.95(1)(g)
read with U.P. Panchayat Raj (Removal of
Pradhan,
Up-Pradhan,
and
Members
Enquiry Rules, 1997)- The court declined
to reconsider Full bench decision in
Vivekanand Yadav (2011) Case which held
that a Gram Pradhan is not entitled to
raise
any
objection
regarding
the
complaint in terms of Rule 3 of the 1997
Rules-The Bench found that the rulings in
Vivkekanand's case and Hafiz Ataullah
Ansari Case regarding the extent of
natural justice appear to be in conflict
with
the
principles
laid
down
in
subsequent
decision
of
the
Hon'ble
Supreme court, Particularly Natwar Singh
Case and T. Takano-The matter referred to
larger Bench.

Held
The court held that the Full Bench in
Vivekanand Yadav Case had already dealt with
the issue in a reasoned manner, in line with
judicial discipline and precedent, a reference to
reconsider a larger Bench's decision cannot be
made merely on a "veiled doubt" or casuallyThe Bench reiterated that cessation of an
elected official's powers results in serious
consequences and irreparable loss, warranting a
high degree of adherence to natural justice
principles- The Three Judge Bench partially
accepted and partially declined the reference,
ultimately submitting one key legal question to
the Hon'ble Chief Justice for the constitution of
a larger Bench.(Para 19 to 52) (E-6)

Case law Cited
Central Board Of Dawoodi Bohra Community Vs
St. of Mah.(2005) 2 SCC 673,Mineral Area
Development Authority & Anr. Vs Steel
Authority of India & Anr(2024) 10 SCC 1,Rana
Pratap Singh Vs St. of U.P. (1996) ALJ 301,
Pritam Kaur Vs Surjit Singh AIR (1984) P&H
113,Natraj Chhabigirh Sigra Vs St.of U.P.
(1996) All 375, Ambika Prasad Mishra Vs St.
of U.P., Ravi Yashwant Bhoir Vs The Collector,
Distt Raigad & Ors (2012) 2 SCC 407,Deepak
Anand Patil Vs The St. of Mah. & Ors(2023)
LiveLaw (SC) 30,T. Takano Vs SEBI(2022) 8
SCC 162,Vivekanand Yadav (supra) Hafiz
Attaullah Ansari Vs St. of U.P. & Anr. (2011)3
ALJ 412,Tarlochan Dev Sharma Vs St. of Punj.
AIR (2010) SC 3450, Sharad kailash Mittal Vs
St. of M.P., Sahara India (Firm) Vs CIT (2008)
14 SCC 151, Smt. Sonia Vs St. of U.P. (2013)5
ADJ 559,Natwar Singh Vs ED (2010)13 SCC
255-referred to.
List of Acts
U.P. Panchayat Raj Act,1947-S.95(1)(g), U.P.
Panchayat Raj (Removal of Pradhan, UpPradhan, and Members Enquiry Rules, 1997.

List of Keywords
U.P. Panchayat Raj Act,1947-S.95(1)(g), U.P.
Panchayat Raj (Removal of Pradhan, UpPradhan,
and
Members
Enquiry
Rules,
1997,Reference to a Larger Bench, Stare
Decisis/Binding
Precedent,
Principles
of
Natural justice, Per Incuriam, Quasi-Judicial,
Judicial Discipline, Civil Consequences, Show
Cause
Notice,
Vivekanand
Yadav,
Hafiz
Ataullah Ansari.

Case Arising From
CIVIL JURISDICTION: WRIT-C No. - 905 of
2025
From
the
Judgment
and
Order
dated
25.08.2025 of the High Court of Judicature
at Allahabad.
8 All. Brij Mohan Vs. State of U.P. & Ors.
199
Brij Mohan Vs. State of U.P. Thru.Prin.
Secy.Panchayati Raj Lko & 2 Ors.

Appearances for Parties
Advs. for Petitioner:
Satish Kumar Sharma, Anurag Shukla, Apoorva
Tewari
Adv. for Respondent:
C.S.C.,

(Delivered by Hon'ble Rajan Roy, J.)

(1) Heard Sri Apoorva Tewari, learned
Amicus, Sri Anurag Shukla, learned
counsel for the petitioner and Sri Manish
Mishra,
learned
Standing
Counsel
appearing for the State of U.P.

(2) A learned Single Judge of this
Court vide his order dated 18.02.2025
passed in Writ-C no.905 of 2025 requested
Hon'ble the Chief Justice of this Court to
constitute a larger Bench to reconsider the
judgment in the case of 'Vivekanand
Yadav vs. State of U.P. & Anr.' reported
in 2011 (29) LCD 221 in so far as it held
that there was no necessity of supplying the
preliminary inquiry report to the Gram
Pradhan under Section 95(1)(g) of the U.P.
Panchayat Raj Act, 1947 read with UP
Panchayat Raj (Removal of Pradhan, UpPradhan, and Members) Enquiry Rules,
1997 (in short 'the Rules, 1997').

(3) Chapter V Rule 6 of the Allahabad
High Court Rules, 1952 framed under
Article 225 of the Constitution of India
contains provisions for reference. It reads
as under:-

"6. Reference to a larger Bench:-
The Chief Justice may constitute a Bench of
two or more Judges to decide a case or any
question of law formulated by a Bench
hearing a case. In the latter event the
decision of such Bench on the question so
formulated shall be returned to the Bench
hearing the case and that Bench shall
follow that decision on such question and
dispose of the case after deciding the
remaining
questions,
if
any,
arising
therein."

(4) Chapter V Rule 2, proviso (b)
of the Rules, 1952 reads as under:-

"a Judge may, if he thinks fit,
refer a case which may be heard by a
Judge sitting alone or any question of law
arising therein for decision to a larger
Bench."

(5) Vide our order dated 25.03.2025,
we had observed that the legal position
which permits learned Single Judge to refer
correctness of judgment of a larger Bench
for consideration, is not in doubt in view of
'Central Board of Dawoodi Bohra
Community
versus
State
of
Maharashtra' reported in (2005) 2 SCC
673 but we wanted to know the grounds on
which this could be done. We had
appointed Sri Aporva Tewari, Advocate as
Amicus Curiae to assist us on this issue as
also other issues involved.

(6) We may in this context refer to a
recent decision of Hon'ble the Supreme
Court
rendered
in
'Mineral
Area
Development Authority & Anr. vs. Steel
Authority of India & Anr.' reported in
(2024) 10 SCC 1 which was a case where a
Division Bench of Hon'ble the Supreme
Court doubted the correctness of a seven
judge Bench and in that context, it was
observed by the seven Judge Bench in
Mineral Area Development Authority
(supra) - 'No doubt, at the Highest Court,
one cannot really be bogged down by the
Bench strength nor does the doctrine of
stare decisive would apply strictly to this
Court when a judgment of a larger Bench is
200 INDIAN LAW REPORTS ALLAHABAD SERIES
questioned by a Bench of similar or smaller
strength. But for that, there must be present
a flagrant violation of law, a patent error or
a blatantly erroneous approach in the
matter so as to enable a Bench of a similar
or smaller strength to doubt the correctness
or otherwise of the decision of a larger
Bench. There could also be a situation
where a judgment is per incuriam or the
doctrine of sub silentio would apply'.

(7) We may also refer to a Full Bench
decision of this Court in the case of 'Rana
Pratap Singh vs. State of U.P.' reported in
(1996) ALJ 301, a Full Bench decision of
Punjab and Haryana High Court in the case
of 'Pritam Kaur vs. Surjit Singh' reported
in AIR (1984) P&H 113 and another Full
Bench decision of this Court in the case of
'Natraj Chhabigirh Sigra vs. State of
U.P.' reported in AIR (1996) All 375.

(8) Para no.12 of decision in Pritam
Kaur (supra) reads as under:-

"12. From the above, it would
follow as a settled principle that the law
specifically laid down by the Full Bench is
binding upon the High Court within which
it is rendered and any and every veiled
doubt with regard thereto does not justify
the reconsideration thereof by a larger
Bench and thus put the law in a ferment
afresh. The ratios of the Full Benches are
and should be rested on surer foundations
and are not to be blown away by every side
wind. It is only within the narrowest field
that a judgment of a larger Bench can be
questioned for re-consideration., One of the
obvious
reasons
is,
where
it
is
unequivocally manifest that its ratio has
been impliedly overruled or whittled down
by a subsequent judgment of the superior
Court or a larger Bench of the same Court.
Secondly, where it can be held with
certainty that a co-equal Bench has laid the
law directly contrary to the same. And,
thirdly, where it can be conclusively said
that the judgemnt of the larger Bench was
rendered per incuriamby altogether failing
to take notice of a clear-cut statutory
provision or an earlier binding precedent.
It is normally within these constricted
parameters that a similar Bench may
suggest a reconsideration of the earlier
view and not otherwise. However, it is best
in these matters to be neither dogmatic nor
exhaustive, yet the aforesaid categories are
admittedly the well-accepted ones in which
an otherwise binding precedent may be
suggested for reconsideration."

(9) A Full Bench decision of this
Court in the case of Natraj Chhabigrih
(supra) had the occasion to consider this
issue as also the Full Bench decision in
Pritam Kaur (supra) and it held as under
:-

"38. In substance Rana Pratap
Singh's case (1995 All CJ 200) (supra)
adopts reasoning and the parameters as
laid down in the case of Pritam Kaur
(AIR 1984 Punj & Har 113), which is
quoted in paragraph 15 of the judgment.
The parameters, as laid down, are as
following:

(a) On every veilded doubt with
regard to the law laid down by a Full
Bench does not justify reconsideration by a
larger Bench;

(b) Where it is unequivocally
manifest that the ratio of Full Bench has
been impliedly or directly overruled by the
superior Court or larger Bench of the same
Court, reference could be made;

(c) Where co-equal Bench has
laid down law directly contrary to each
other, reference could be made;
8 All. Brij Mohan Vs. State of U.P. & Ors.
201

(d) The judgment of a larger
Bench is rendered, by failing to take note of
a clear-cut statutory provision or earlier
binding judicial precedent, reference could
be made."

(10) It further held that parameters laid
down in Pritam Kaur (supra) were not
not exhaustive but illustrative as was
evident from the observations made in
Pritam Kaur (supra) itself. It observed
that the said decision lays down principles
as a guidance to learned Judges in making
reference with special references to the law
laid down by the Full Benches. It is more
as a guidance and caution in exercising
such power. Of course, it has not approved
reference by a learned Single Judge to a
larger Bench based merely on his veiled
doubt of a settled law. Thus, as understood
by the Full Bench in Natraj Chhabigrih
(supra) the ratio of the judgment in Pritam
Kaur (supra) was that on any veiled
doubts reference cannot be made but it
could be based on few illustrated and other
grounds which could be culled out in the
facts and circumstances of each case
confining within judicial discipline. In this
context, it referred to the words of Black
Stone: para no.40

It is an established rule to abide by
former precedents when the same points
come again into litigation, as well to keep the
scale of justice even and steady and not likely
to waver with every Judge's new opinion, as
also because the law in that case being
solemnly declared and determined, what
before was uncertain is now become a
permanent rule, which it is not in the breath
of any subsequent Judge to alter or vary
according to his private sentiments.

(11) It also took note of the decision of
Hon'ble the Supreme Court reported in
(1980) 3 SCC 719 'Ambika Prasad
Mishra vs. State of U.P.' that every new
discovery or argumentative novelty cannot
undo or compel reconsideration of a
judicial precedent.

(12) Thus, sum and substance of the
above discussion is that Learned Single
Judge cannot refer a decision rendered by a
larger Bench for reconsideration merely on
a veiled doubt or casually. There have to be
strong grounds for such reference some of
which have been referred in the decisions
cited above such as conflict with another
judgment of co-equal strength; overruling
of such Full Bench decision impliedly or
directly by the superior court or larger
Bench of the same court; the judgment of
the larger bench has been rendered in
ignorance of a clear cut statutory provision
or earlier judicial binding precedent.

(13) A Full Bench is bound by
decision of Co-ordinate Bench unless it
disagrees with it in which case it can refer
it for consideration by a larger Bench. The
grounds for reference would be similar to
what has been discussed hereinabove with
reference to Full Bench decisions of this
Court and the Punjab & Haryana High
Court and Hon'ble the Supreme Court. The
observations contained in the judgments
discussed above and the law elucidated
therein also act as a guiding principle for a
full Bench to refer correctness of another
Full Bench or for that matter a Bench of coequal strength to refer an earlier decision of
equal strength.

(14) We have gone through the
reference order passed by learned Single
Judge dated 18.02.2025. Learned Single
Judge after going through the Full Bench
decision in Vivekanand Yadav (supra)
and the provisions of the U.P. Panchayat
202 INDIAN LAW REPORTS ALLAHABAD SERIES
Raj Act, 1947 read with the UP Panchayat
Raj (Removal of Pradhan, Up-Pradhan, and
Members) Enquiry Rules, 1997 framed
therein, has doubted the conclusions
recorded by it, firstly, that there is no
necessity to provide a copy of the
preliminary inquiry report before ceasing
the financial and administrative powers of a
Gram Pradhan at the time of initiation of
regular inquiry and secondly that there was
no right of the Pradhan to object whether
the complaint is in accordance with Rule 3
of the Rules, 1997.

(15) In this context, learned Single
Judge observed that there was no argument
advanced before the Full Bench with regard
to furnishing of the preliminary inquiry
report, therefore, the observation of the Full
Bench in Vivekanand Yadav (supra) on
this issue appears to be "obiter". With
respect, we have gone through the Full
Bench decision in Vivekanand Yadav
(supra) conjointly with the Full Bench
decision
in
Hafiz
Attaullah
Ansari
(supra) and we find that an issue was
framed as to the extent of application of
principles of natural justice and the same
has been considered by the Full Bench in
the light of provisions of Act, the Rules and
the object sought to be achieved by the
same, reasons have been given in support
of the conclusions arrived at, therefore, it
cannot be said that the observations are an
obiter.
We
cannot
approve
of
this
observation by learned Single Judge.

(16) However, we find that thereafter
the learned Single Judge has referred to
another Full Bench decision in the case
'Shamim versus State of U.P. and others'
reported in AIR 2018 Allahabad 196, a
Five Judges decision in 'Paras Jain
Versus State of U.P. and others' reported
in AIR 2016 ALLAHABAD 59, a decision
of Hon'ble the Supreme Court in 'Ravi
Yashwant Bhoir vs The Collector,
District Raigad & Ors' reported in (2012)
2 SCC 407 as also a Supreme Court
decision in the case of 'Deepak Anand
Patil versus The State of Maharashtra &
others' 2023 LiveLaw (SC) 30 and the
decision of Hon'ble the Supreme Court in
the case of 'T. Takano v Securities and
Exchange Board of India' reported in
(2022) 8 SCC 162, based on which, learned
Single Judge has formed a prima facie
opinion that although preliminary inquiry
report, in itself, if used for forming an
opinion as to whether further action is to be
taken or not, does not require supply of the
same to the person against whom the same
is held, however, when the said preliminary
inquiry report is proposed to be used
against that person for any adverse action
against him, it is essentially to be supplied.

(17) He has further observed that it
also emerges as an upshot of the decisions
referred above that the powers exercised by
the District Magistrate are quasi-judicial
and the ceasing of financial powers is an
order replete with serious consequences
and has a direct impact on the ability of
Pradhan
to
effectively
discharge
the
function of the elected office. He has then
referred the matter relying upon the
decision of Hon'ble the Supreme Court in
the case of Central Board of Dawoodi
Bohra Community (supra).

(18) We now proceed to consider the
issues involved.

(19) We may, first of all, refer to a
reference
made
in
the
order
dated
18.02.2025 passed by the learned Single
Judge requesting reconsideration of the
opinion expressed by the Full Bench in
Vivekanand Yadav's case (supra) that the
8 All. Brij Mohan Vs. State of U.P. & Ors.
203
gram pradhan is not entitled to raise any
objection regarding the complaint or report
in terms of Rule 3 of the Rules, 1997. With
utmost respect, the reasoning given therein
cannot be the basis for any such reference
in view of the law already discussed
hereinabove. The judgment of the Full
Bench in Vivekanand Yadav (supra)
deals with this issue with due and proper
application of mind and gives reasons in
support thereof. Therefore, it was not open
for the learned Single Judge to refer this
issue merely because in his opinion another
view was possible. The opinion expressed
by a larger bench has to be followed by
benches of lesser strength unless or until
any of the grounds mentioned in the earlier
discussion are available or there are
analogous grounds of a very strong and
fundamental nature requiring a reference.
We, therefore, do not deem it necessary to
consider the said request as, in our opinion
the Full Bench in Vivekanand Yadav
(supra) has dealt with the same in a
reasoned manner

(20) As regards the other issue, there
are rules known as 'UP Panchayat Raj
(Removal of Pradhan, Up-Pradhan, and
Members) Enquiry Rules, 1997' which
have been made under Section 110 read
with clause (g) of sub-Section (1) of
Section 95 of the U.P. Panchayat Raj Act,
1947 which lay down the procedure for
holding the inquiry as referred in the
proviso to Section 95(1)(g). On a reading
of the said Rules, it is evident that it speaks
of a preliminary inquiry under Rule (4)
based on which a decision is taken under
Rule 5 as to whether a final inquiry
envisaged under Rule 6 thereof and the
proviso to Section 95(1)(g) is to be
conducted for the purposes of removal of
Gram Pradhan or not. Once a decision is
taken in terms of the aforesaid that a final
inquiry is required to be conducted then, if
necessary, a decision is to be taken as to
whether
financial
and
administrative
powers are required to be seized or not.
Such cessation is not automatic but
depending upon facts of a case. Rule 6 lays
down the detailed procedure for holding
final inquiry but we are not concerned with
it in this case.

(21) The provision for cessation of
financial and administrative powers of
Gram Pradhan is an interim measure where,
in an inquiry, a Pradhan is prima facie
found to have committed financial and
other irregularities. This provision is
contained in the proviso to Section
95(1)(g). The proviso by itself does not
speak of any opportunity of hearing
required to be given to the Gram Pradhan
before such cessation of powers, however,
by judicial pronouncements right from the
decision in Vivekanand Yadav (supra)
and 'Hafiz Attaullah Ansari vs. State of
U.P. & Anr.' reported in 2011 (3) ALJ 412
as also Five Judges' decision in Paras Jain
(supra), it has been held that principle of
natural justice has to be read into the said
proviso and a show cause notice is
necessarily to be given to the Gram
Pradhan before seizing his financial and
administrative powers. It is also the law
that in every case where an inquiry is
instituted in terms of Section 95(1)(g) and
the rules made in relation thereunder for
removal of Gram Pradhan, cessation of
financial and administrative powers is not
necessary.

(22) We may in this context refer to
the decision of Full Bench in Vivekanand
Yadav (supra), correctness of which is an
issue in these proceedings. It is question
nos.(v) to (vii) which were considered by
204 INDIAN LAW REPORTS ALLAHABAD SERIES
the Full Bench in Vivekanand Yadav
(supra) which are as under:-

"(v) In case the answer to the first
point is in the negative then, whether a
pradhan is entitled to be associated in the
preliminary enquiry on the ground that
principles of natural justice are applicable
to it;

(vi) In case a pradhan is entitled
to be associated or given opportunity then
what is the extent of his rights;

(vii) Whether a pradhan is
entitled to an opportunity before the order
ceasing the financial and administrative
powers is passed against him under the
proviso to section 95(1)(g)."

(23) These questions were answered
by the Full Bench in Paragraph nos.64 to
72 and para no.107(c) which read as
under:-

"5th
to
7th
POINT:
PRELIMINARY
ENQUIRY--
NOT
ENTITLED TO PARTICIAPTE

64. In the Hafiz case, one of the
question
was
regarding
providing
opportunity before ceasing financial and
administrative power of a president during
his
removal
proceeding
under
the
Municipalities Act. Though the words of the
Municipalities Act are different but the
same reasoning applies here.

65.
The
Municipalities
Act
contemplates cessation of power on notices
being issued, fulfilling the conditions under
proviso
to
section
42(2)
of
the
Municipalities Act. Apart from other
conditions, one of the conditions is that the
State Government should have reason to
believe that the allegation against the
president are not groundless and he is
prima facie guilty of the charges. In Hafiz
case, we have held that the belief of the
State Government or satisfaction has to
based on the material. The basic question
involved there was:

Should the President be involved
while collecting the material;

Is the president entitled to any
opportunity before ceasing his financial
and administrative powers.

66. The aforesaid questions are
also involved in these cases as well. It is for
this reason that these questions, in
connection
of
pradhan
of
a
gram
panchayat, were also considered in the
Hafiz case. It is held there that:

'It is not necessary to involve a
head of a local body in the process of
collecting material or in the preliminary
inquiry. However, it is necessary to ask and
consider his explanation, or point of view
or version regarding charges before
issuing notice under the relevant provisos
under the different enactments'. {see 6th
and 7th POINT:

 PRESIDENT'S EXPLANATION
SHOULD BE SEEN (paragraph 132)}.

 67. In these cases, there was an
additional argument for opportunity being
given namely applicability of proviso to
section 95(1) to the proviso to section
95(1)(g). However, we have negated it,
while deciding the first point.

68. In view of our decision and
reasons detailed in the Hafiz case, a
pradhan
is
neither
entitled
to
be
associated in the preliminary enquiry nor
is he entitled to get the copy of the
preliminary enquiry report--his only right
is to have his explanation or point of view
or version to the charges considered
before the order for ceasing his financial
and administrative power is passed.

69. In the cases, cited before us
from the petitioners' side (see below)4, it
was held that association of the head of the
local body in the preliminary inquiry was
8 All. Brij Mohan Vs. State of U.P. & Ors.
205
necessary. With due respect, we do not
agree with them.

70. In the other set of cases, cited
from the respondents side (see below)5,
contrary
view
was
taken
that
no
opportunity--even asking explanation or
point of view to the charges--was necessary
before ceasing financial and administrative
powers. With due respect, they require
modification.

71. It is not only necessary that
the explanation or point of view or the
version of the affected pradhan should be
obtained but should also be considered
before being prima facie satisfied of his
being guilty of financial and other
irregularities and ceasing his powers. Of
course the consideration of the explanation
does not have to be a detailed one. There
should be indication that mind has been
applied. This has also been explained in the
Hafiz case. Nevertheless, we would like to
clarify it.

72. In the first and the third WPs,
the explanations of the affected pradhans
were not only asked but were also
considered. There has been application of
mind. The order in these two WPs cannot
be faulted on the grounds that:

The copy of the preliminary
report was not given to them;

The explanation was not asked
from them;

Their
explanation
was
not
considered.

Some
of
these
points
are
applicable in the other WPs but we have
not examined them; we leave them to be
considered by the bench concerned
.
.

107 (c) A pradhan is neither
entitled to be associated in the preliminary
enquiry nor is entitled to the copy of the
preliminary report. However, before an
order
ceasing
the
financial
and
administrative
power
is
passed,
his
explanation or point of view or the version
to the charges should be obtained and
considered."

(24) From a reading of the above
extract from the judgment in Vivekanand
Yadav (supra), we find that the Full Bench
has relied heavily on a judgment rendered
almost simultaneously in the case of Hafiz
Attaullah Ansari (supra) although it was
a case pertaining to cessation of powers of
president of municipality, therefore, the
observations and ratio contained in the
latter judgment have to be read into the
judgment in Vivekanand Yadav (supra)
so as to have a correct understanding of the
answer to question nos. (v) to (vii) referred
hereinabove.

(25) Relevant paragraphs of Hafiz
Attaullah Ansari (supra) by which
question nos.(vi) and (vii) framed by the
said Full Bench have been answered and
which also contain the answer/ ratio in
respect of question No.(v) to (vii) in
Vivekanand Yadav (supra) are paragraph
nos.86 to 132 and 133(b) which read as
under:

"6th
and
7th
POINT:
PRESIDENT'S
EXPLANATION
SHOULD BE SEEN

Not Necessary to Involve in
Collection of Material/Evidence

86. Section 48 (2-A) inserted by
UP Act No. 6 of 2004 was to effect that
whether a president is prima facie guilty or
not was to be found out by an enquiry. In
fact, it was in the nature of fact finding or
preliminary enquiry. This was similar to
the
provisions
in
the
Rural-Areas
Enactments. However, section 48 (2-A) as
inserted by UP Act No. 6 of 2004 was
206 INDIAN LAW REPORTS ALLAHABAD SERIES
deleted and the present proviso to section
48 (1) has been inserted.

87. Section 48 (2-A) as inserted
by UP Act No. 6 of 2004 and proviso
inserted in its place by UP Act No. 2 of
2005 broadly provide cessation of the
financial and administrative powers of the
president till completion of the final inquiry
for removal of the president under section
48 of the Municipalities Act, but there is
some difference:

 Under sub-section 2-A of section
48 this could be done on his being prima
facie found to be guilty on the basis of an
enquiry (preliminary or fact finding) held
by such person and in such manner as
might have been prescribed;

 However, under the existing
proviso, the State Government should have
reasons to believe that the allegations do
not appear to be groundless and the
president is prima faciguilty.

88. The words, requiring holding
of a preliminary enquiry by such person, in
such a manner as prescribed, are no longer
there. Nonetheless the State Government
can only have reasons to believe not merely
on the basis of any complaint but on the
relevant material. The material has to be
collected. It can be done by adopting any
one of the following methods:

 It could be done by a fact finding
inquiry or preliminary inquiry: such an
inquiry can still be done as it is not
prohibited under the proviso; or

The State Government could
collect the material itself; or

The material could be supplied to
it by someone; or

The State Government could
come into possession of it by any other
means.

89. Nevertheless, irrespective of
how the relevant material comes in the
hands of the State Government, the
question is, in absence of any specific
provision,

Should
the
president
be
associated with its collection;

Should the principles of natural
justice be read into it?

90. The position for removal of
pradhan of a gram panchayat under
section 95(1)(g) is similar to the president
of a municipality except instead of reason
to believe there is provision for the
preliminary enquiry. Both are heads of the
local bodies. In the Vivekanand Yadav
case, we have held that proviso to section
95 (1) providing reasonable opportunity in
removal proceeding is not applicable to
proviso under section 95(1)(g) providing
preliminary enquiry. There is neither any
specific provision for providing opportunity
in the preliminary enquiry, nor before
passing order ceasing the right to exercise
financial and administrative powers. The
only question there, like this case, is,

Whether, the opportunity should
be provided to the pradhan as adverse
order is being passed.

This question is common in the
both cases and is being dealt with in this
decision.

If Exonerated Loss is Irreparable

91.
The
Counsel
for
the
respondents submitted that:

(i) The present proceeding is akin
to,

 Suspension of a Government
employee in the departmental proceeding;
or

Suspension of a licence during
cancellation proceeding; or

 Proceeding to start reassessment
in a taxing statute; and

In the aforesaid instances, the
person effected is not afforded any
opportunity at the stage of issuing notice;
8 All. Brij Mohan Vs. State of U.P. & Ors.
207

(ii) The words reasons to believe
are quite common in taxing statute where
proceeding
for
reassessment
can
be
undertaken if the authority has reason to
believe. In such a situation, the only
requirement is that there should be
material to take such action. There is no
necessity to provide opportunity before
issuing show cause notice.

92. The institutions of Local Self
Government be it for the rural area or for
the urban area have become part of the
Constitution. We have mentioned their
transition under the heading HISTORICAL
BACKGROUND. They are no longer
statutory
but,
after
73rd
and
74th
constitutional amendments, have acquired
the Constitutional status.

93. Under our Constitution, a
head of local body is entitled to continue
for his entire term unless he is unseated in
an election petition. However, as there is
no provision that he cannot be removed
even if he is guilty of misconduct, a law can
always be enacted to provide his,

Removal
on
his
committing
irregularities; or

Suspension
or
cessation
of
financial and administrative powers during
pendency of removal proceeding

This has been done so far as head
of local bodies of smaller urban areas and
rural areas are concerned. However, in the
bigger
urban
area
(Municipal
Corporation) removal cannot be done by
any inquiry: it can be done only on a
motion of no confidence.

94. A head of a local body is an
elected person; he is not a Government
servant: it would be improper to compare
these proceeding with the departmental
proceeding in service jurisprudence. We
are not alone in saying this but are in
company of the Supreme Court and another
Full Bench of our Court (see below) [ See
SDO Faizabad v. S.N. Singh, (1969) 1 SCC
825 : AIR 1970 SC 140 (paragraph 5);
Swami Prasad v. Hargovind Saha, AIR
1970 Alld 251 (FB) (paragraph 13).] .

95. The office of a local body is
an elected office of a constitutional
democratic institution. He is not merely
head of a society or an organisation. He is
entitled to hold office for the term that he
was elected. It is not only his right but also
that of his constituency or the electoral
college that he represents. The curtailment
of his rights is a serious matter. Here also,
we are in company of the Supreme Court
(see below) [ See Tarlochan Dev Sharma v.
State of Punjab, (2001) 6 SCC 260
(paragraph 7) and Sharad Kailash Mittal v.
State of M.P., 2010 SCC 319 (paragraph
27) : 2010 (86) AIC 246 : 2010 (78) ALR
27 (Sum.), where the observations of the
earlier case were approved.]

96. These proceedings are also
not like reassessment proceedings under
taxing statutes: they are incomparable. The
present proceedings are more serious.
There is also fundamental difference
between service or taxing or other
proceeding cited by the respondents on one
and this proceeding on the other hand:

 In service jurisprudence if an
employee is suspended and later on is
exonerated then he gets his salary and is
reinstated with all consequential benefits;

Normally, whenever a license is
granted, it is renewed from year to year. In
case it is suspended during cancellation
proceeding, then after dropping of the
cancellation proceeding, the license is
renewed. The license holder continues to
enjoy privilege year to year as it is not for
a fixed term;

 In case the license is for the fixed
period then it is not unusual to extend the
208 INDIAN LAW REPORTS ALLAHABAD SERIES
same for the period the licensee could not
work;

In taxing statutes, normally no
final decision is taken by start of the
reassessment proceeding: it is merely
initiation of the proceeding. Whether any
higher tax is to be imposed or not, is to be
decided thereafter in the proceeding.

However, this is not the case
here.

97. A head of a local body is
elected for a limited term. His term comes
to end after five years. If during the
removal proceeding, he is denuded from
exercising financial and administrative
powers then even if he is exonerated in the
enquiry, the time spent during enquiry is
lost: he does not get his period extended.

98. The situation in case of a
head of a local body is much more drastic
than the instances cited by the Counsel for
the
respondent.
There
is
no
such
irreparable loss: the law or principles
applicable there cannot apply to a head of
a local body who is deprived of exercising
financial and administrative powers.

99. The case here, is an example.
The facts of this case are as follows:

The petitioner submitted his reply
to the notice dated 20.11.2007 by the SDM
on 28.11.2007;

He also submitted his reply to the
show cause notice dated 24.10.2008 by the
State Government on 8.11.2008;

Both
replies
were
submitted
without any delay;

There
is
no
interim
order
prohibiting the State from deciding the
proceeding; yet

About two years have elapsed,
since submission of the reply to the State
Government, the proceeding have not been
finalised.

100. Had the Court not stayed
that part of the order ceasing the
petitioner's right to exercise financial and
administrative powers then the petitioner
would have been deprived to exercise it.

101. We would like to point out
that there is no order restraining the State
Government from completing the removal
proceeding. Yet, it has not been finalised.
We had asked the Additional Advocate
General the reason as to why the State
Government had not yet concluded the
proceeding but there was no reply from his
side: his silence was more eloquent than
his submissions.

Natural Justice May Apply at
Interim Stage

102.
There
is
no
specific
provision of affording opportunity before
issuing notice under proviso to section 48
(2) of the Municipalities Act. In the
Vivekanand Yadav case, we have held the
position to be same under proviso to the
relevant sections of the Rural-Areas
Enactments. Nevertheless:

Do the principles of natural
justice apply to the situation as loss is
irreparable;

In case they do apply then, what
is their extent?

103.
The
Counsel
for
the
respondent submitted that:

The show cause notice under
proviso
to
section
48(2)
of
the
Municipalities Act or the proviso to the
relevant sections of the Rural-Areas
Enactments and the cessation of right to
exercise
financial
and
administrative
powers is merely a step in the finalisation
of removal proceeding;

There is no question of affording
any opportunity to a head of a local body at
the stage of issuing notice. Their case
would be seen in the final inquiry, where
the question of their removal is to be
considered and the reasonable opportunity
would be afforded at that time;
8 All. Brij Mohan Vs. State of U.P. & Ors.
209

The principles of natural justice
do not apply at this stage;

104.