# Lochan Prasad v. Executive Engineer Public Works Department and another

- **Citation:** (2004) 1 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-29
- **Case number:** Civil misc. Writ Petition No. 27788 of 2003
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lochan-prasad-v-executive-engineer-public-works-department-and-another-40250
- **Pages:** 5

## Headnote

U.P. Panchayat Raj Act 1997, See 95 (1) (g)-
U.P. Panchayat Raj (Removal of Pradhan,
Uppradhan and members Enquiry) Rules
1997 the two enquries under first
Provision and Second proviso of the Actdistinction between explained

Held- Para 9

The first proviso introduced in the year
1994
clearly
makes
a
distinction
between the two enquiries conducted
under the first proviso and the second
proviso and if this interpretation is not
followed, both the proviso cannot be
reconciled, as held by the Division Bench
http:\\allahabadhighcourt.nic.in
1 All] Lochan Prasad V. Executive Engineer Public Works Department and another
143
in the case of Moti Lal verses District
Magistrate,
Lalitpur
and
another,
reported in 2003 (94) R.D. 327. The first
proviso is only for the purposes of
arriving at the conclusion "prima facie"
as to whether it is necessary to exercise
the
power
contemplated
under
the
second proviso or not, whereas the
second proviso contemplated regular
enquiry before the order of removal is
passed against the Pradhan. The powers
of
first
proviso
is
like
emergency
provision, which will be subject to any
order that may be passed after enquiry
in accordance with second proviso, read
with 1997 Rule. By exercise of power
under the first proviso, none of the rights
of Pradhan affected as the suspension of
financial and administrative power is
only temporary in nature which will
always be subject to final orders after an
enquiry in accordance with the Scheme
of second proviso, read with 1997 Rules.
Case leaves discussed:
2003(94)RD312
1999(1)LBESR918(Alld)
2003(94)RD327

## Text

http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
142

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11. Applying the principles laid
down in the case of Banglore Water
Supply and Sewerage Board (supra)
and considering the ratio laid down in
General Manager Telecom Versus S.
Sriniwashan Rao and others 1998 (78)
FLR page 143 and Executive engineer
CPWD,
Indore
Versus
Madhukar
Purshottam Kotharkan (supra) the
finding of the Labour Court that P.W.D. is
not industry is quashed. In so far as the
findings of the Labour Court that
termination of services of the petitioner is
not retrenchment as he had himself not
come to work is not liable to be disturbed
under Article 226 of the Constitution of
India. The petitioner was engaged on
daily wage and was not appointed against
any post, he has no right to be regularized
in service as he failed to prove before the
Labour Court that he was appointed
against a sanctioned post in substantive
vacancy. Engagement for 240 days from
time to time on daily wage would not
attract the provision of Section 6-N of the
U.P. Industrial dispute Act unless it could
be established that he had continuously
worked for 240 days in previous year
counting backward from the date of
termination of service and even in that
eventuality he would have only been
entitled to retrenchment compensation
with interest.

12. For the reasons stated above, the
writ petition is allowed in part. The
finding of the Labour Court that Public
works Department is not an industry is
quashed. Other findings particularly that
termination of the petitioner does not fall
within the ambit of the definition of
"Retrenchment" is upheld. No order as to
cost.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2003.

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil misc. Writ Petition No. 27788 of 2003

Smt. Krishna Devi

...Petitioner
Versus
District
Magistrate,
Ghaziabad
and
others

 ...Respondents

Counsel for the Petitioner:
Sri D.K.S. Rathor

Counsel for the Respondents:
Sri Vishnu Sahai
Sri B. Dayal
S.C.

U.P. Panchayat Raj Act 1997, See 95 (1) (g)-
U.P. Panchayat Raj (Removal of Pradhan,
Uppradhan and members Enquiry) Rules
1997 the two enquries under first
Provision and Second proviso of the Actdistinction between explained

Held- Para 9

The first proviso introduced in the year
1994
clearly
makes
a
distinction
between the two enquiries conducted
under the first proviso and the second
proviso and if this interpretation is not
followed, both the proviso cannot be
reconciled, as held by the Division Bench
http:\\allahabadhighcourt.nic.in
1 All] Lochan Prasad V. Executive Engineer Public Works Department and another
143
in the case of Moti Lal verses District
Magistrate,
Lalitpur
and
another,
reported in 2003 (94) R.D. 327. The first
proviso is only for the purposes of
arriving at the conclusion "prima facie"
as to whether it is necessary to exercise
the
power
contemplated
under
the
second proviso or not, whereas the
second proviso contemplated regular
enquiry before the order of removal is
passed against the Pradhan. The powers
of
first
proviso
is
like
emergency
provision, which will be subject to any
order that may be passed after enquiry
in accordance with second proviso, read
with 1997 Rule. By exercise of power
under the first proviso, none of the rights
of Pradhan affected as the suspension of
financial and administrative power is
only temporary in nature which will
always be subject to final orders after an
enquiry in accordance with the Scheme
of second proviso, read with 1997 Rules.
Case leaves discussed:
2003(94)RD312
1999(1)LBESR918(Alld)
2003(94)RD327

(Delivered by Hon'ble Anjani Kumar, J.)

1. The petitioner, who is Gram
Pradhan of concerned Gram Panchyat has
challenged the order passed by the
District Magistrate, Ghaziabad, dated 19th
June, 2003, Annexure-6 to the writ
petition, whereby the District Magistrate
restrained the petitioner from exercising
financial and administrative powers and
appointment of a Committee of three
members of the Gram Panchayat in
exercise of powers under the proviso of
Section 95 (1) (g) of U.P. Panchayat Raj
Act, 1947, reproduced below, which shall
here-in-after referred to as first proviso.

"[Provided that where, in an enquiry
held by such person and in such manner
as may be prescribed, a Pradhan or Uppradhan is prima facie found to have
committed
financial
and
other
irregularities such Pradhan or Up-Pradhan
shall cease to exercise and perform the
financial and administrative powers and
functions, which shall, until he is
exonerated of the charges in the final
enquiry, be exercised and performed by a
committee consisting of three members of
Gram Panchayat appointed by the State
Government]"
2. Heard learned counsel appearing
on behalf of the parties.

The facts leading to the filing of
present
writ
petition
are
that
the
petitioner, who was elected as Pradhan of
concerned Gram Panchayat in July, 2000,
was issued a show cause notice dated 24th
April, 2002 by the District Magistrate,
Ghaziabad under Section 95 (1) (g) of
U.P. Panchayat Raj Act, 1947, as
amended in the year 1994, whereby the
petitioner was asked to show cause as to
why the petitioner be not restrained from
exercising financial and administrative
power and a committee be not appointed
as contemplated under the aforesaid
provision. The petitioner submitted reply
to the aforesaid show cause notice, as
alleged by the petitioner. Thereupon the
District Magistrate has passed an order
dated 19th June, 2003, Annexure-'6' to the
writ petition, restraining the petitioner
from
exercising
financial
and
administrative power as Pradhan of Gram
Panchyat concerned. The petitioner has
challenged the order dated 19th June, 2003
passed
by
the
District
Magistrate,
Ghaziabad before this Court by means of
writ petition no. 27788 of 2003. This
Court vide its order dated 4th July, 2003
passed the following interim order, which
reads thus:
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
144
"Learned Standing Counsel may file
a counter affidavit within one month.
Learned counsel for the caveator may also
file counter affidavit in the same period.
Rejoinder Affidavit may be filed within
two weeks thereafter. List thereafter, in
the meantime, operation of the impugned
order dated 19.6.2003 will remain stayed
till further orders.
Sd/-
S. Harkauli,
4.7.2003."
3. Learned counsel appearing on
behalf of the petitioner stated that in spite
of the order being served on the
Respondent, the Block Development
Officer issued a direction directing the
petitioner that she will not make any
payment and she will make payment only
after the work is verified through the
Executive Engineer, Rural Engineering
service

4. Learned counsel appearing on
behalf of the petitioner takes note of the
provision of Section 95 (1) (g) for the
purposes
of
adjudication
of
the
controversy, which reads thus:

"95.
Inspection---
(1)
The
State
Government May---

(g) remove a Pradhan, Up-pradhan or
member of a Gram Panchayat, or a joint
committee or Bhumi Prabandhak Samiti,
or
a
Panch,
Sahayak
Sarpanch
or
Sarpanch of a Nyaya Panchayat if he----

(i) absents himself without sufficient
cause from more than there consecutive
meetings of sittings,
(ii) refused to act or becomes incapable
of acting for any reason whatsoever or if
he is accused or charged for an offence
involving moral turpitude,
(iii) has abused his position as such or
has persistently failed to perform the
duties imposed by the Actor rules made
there under or his continuance as such is
not desirable in public interest, or
(iii-a) has taken the benefit or reservation
under sub-section (2) of Section 11-A or
sub-section (5) of Section 12, as the case
may be, on the basis or a false declaration
subscribed by him stating that he is a
member of the Schedule Castes, the
Scheduled tribes or the Backward Classes,
as the case may be;]
(iv) being a Sahayak Sarpanch or a
Sarpanch of the Nyaya Panchyat takes
active part in politics, or
(v) suffers
from
any
of
the
disqualifications mentioned in clauses (a)
to (m) of Section 5-A:

5. Learned counsel for the petitioner
submitted that is would be clear from the
history of the aforesaid provision that the
proviso, which is now termed as first
proviso, has been introduced in the year
1994, whereas the second proviso was
already on the Statute book. The proviso
introduced in the year 1994, which is
referred to as "first proviso", reads thus:-

[Provided that where, in an enquiry
held by such person and in such manner
as may be prescribed, a Pradhan or UpPradhan is prima facie found to have
committed
financial
and
other
irregularities such Pradhan or Up-Pradhan
shall cease to exercise and perform the
financial and administrative power and
function,
which
shall,
until
he
is
exonerated of the charges in the final
enquiry, be exercised and performed by a
committee consisting of three members of
Gram Panchyat appointed by the State
Government.]"
http:\\allahabadhighcourt.nic.in
1 All] Smt. Krishna Devi V. District Magistrate, Ghaziabad and others
145
6. Learned counsel for the petitioner
has submitted that in view of the
provision
of
U.P.
Panchayat
Raj
(Removal of Pradhans, Up-Pradhans and
Members) Enquiry Rules, 1997, the
petitioner is entitled for an opportunity in
accordance with 1997 Rules, referred to
above , before passing of the impugned
order and further since the enquiry relied
upon by the District Magistrate in passing
the impugned order, whereby the Gram
Pradhan
has
been
restrained
from
exercising
her
financial
and
administrative powers has not been
conducted
in
accordance
with
the
provisions of Rules 1997, therefore the
order impugned deserves to be quashed,
as the same is contrary to the proviso of
Section 95 (1) (g) of the Act, which shall
be referred to as "second proviso".

The Second proviso is reproduced below:-

"Provided that-----

(i) no action shall be taken under clause
(f), clause (g) except after giving to be
body of person concerned a reasonable
opportunity of showing cause against the
action proposed.
(ii) ********"

7. Learned counsel for the opposite
side have relied upon a Division Bench
decision, reported in 2003 (94) R.D., 312
Smt. Rajbiri Devi Versus State of U.P.
and Others, read with 1997 Rules and
submitted that from the nature of the
power as contemplated under the first
proviso clearly demonstrate that the said
power is only by way of interlocutory
measure pending enquiry in the guilt of
the Pradhan in proceedings of removal of
Pradhan. The aforesaid controversy has
been dealt with in the case of Smt.
Sandhya
Gupta
Versus
District
Magistrate & others, reported in
1999(1) L.B.E.S.R., 918 (All).

8. Learned counsel for the petitioner
emphasized relying on Smt. Sandhya
Gupta's case (supra) that the scheme of
1997 Rules, read with second proviso
clearly demonstrate that whatever enquiry
is to be conducted against the Pradhan be
it for the purposes of the first proviso or
for the purposes of second proviso is to be
conducted in accordance with the proviso
of 1997 Rules.

9. A bare reading of 1997 Rules
clearly demonstrate that the enquiry
conducted under the 1997 Rules is to be
followed only if the case of the
proceeding is removal of the Pradhan as
contemplated under Section 95 (1) (g) of
the Act. The first proviso introduced in
the year 1994 clearly makes a distinction
between the two enquiries conducted
under the first proviso and the second
proviso and if this interpretation is not
followed, both the proviso cannot be
reconciled, as held by the Division Bench
in the case of Moti Lal verses District
Magistrate,
Lalitpur
and
another,
reported in 2003 (94) R.D. 327. The first
proviso is only for the purposes of
arriving at the conclusion "prima facie" as
to whether it is necessary to exercise the
power contemplated under the second
proviso or not, whereas the second
proviso contemplated regular enquiry
before the order of removal is passed
against the Pradhan. The powers of first
proviso is like emergency provision,
which will be subject to any order that
may be passed after enquiry in accordance
with second proviso, read with 1997 Rule.
By exercise of power under the first
http:\\allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
146
proviso, none of the rights of Pradhan
affected as the suspension of financial and
administrative power is only temporary in
nature which will always be subject to
final orders after an enquiry in accordance
with the Scheme of second proviso, read
with 1997 Rules.

10. In this view of the matter, none
of the argument advanced on behalf of
learned counsel for the petitioner can be
sustained and I am in full agreement with
the judgment of Division Bench, referred
to above.

For the reasons stated above, this
writ petitioner has no force and is
accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2003

BEFORE
THE HON'BLE R.K. AGRAWAL, J.

Civil Misc. Writ Petition No. 6866 of 1995

Suresh Kumar Singh

...Petitioner
Versus
The State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri A.N. Sinha
Sri S.S. Chauhan
Sri K.N. Yadav

Counsel for the Respondents:
Sri Shiv Kumar Singh
Sri B.N. Singh
Sri S.P. Sinha
Sri S.K. Srivastava
Sri Pushpendra Singh
S.C.

U.P. Civil Service (Executive Branch)
Rules 1982, Rule 14 (4) read with
Collection of Amin Service Rules 1974Service Law-Life of Select list-whether
is select list valid only for a period of one
year-held, in absence of any special
provisions-yes

Held- Para 10

So far as the question as to whether the
select list continues to remain valid for a
period after one year is concerned, it
may be mentioned here that , in the
absence of any specific provision, the
select list is treated valid for a period of
one year.
Case Laws Discussed:
CMWP No. 24584 of 1989
CMWP No. 25598 of 1994
CMWP No. 1247 of 1992
1996 (2) UPLBEC 1249
SA No. 229 of 1992

(Delivered by Hon'ble R.K. Agarwal, J.)

1. By means of the present writ
petition filed under Articles 226 of the
Constitution of India, the petitioner,
Suresh Kuamr Singh seeks a writ, order or
direction in the nature of certiorari
quashing the order dated 16.12.1994
passed by the Controller Of Exams, U.P.
Public Service Commission, Allahabad
respondent no. 3 filed as annexure 2 to
the writ petition as also the appointment
of Sri Biodhan, respondent no 4 He
further seeks a writ, order or direction in
the nature of certiorari quashing the
decision taken by the respondent no. 3 to
give
placement
to
Sri
Biodhan,
respondent no.4 above the petitioner in
the select list and to recommend the name
of the petitioner for appointment on the
post of Naib Tahsildar in the select list of
1979
batch
by
creationing
a
supernumerary post. Further a writ, order
or direction in the nature of mandamus is