# Rajendra Singh v. The State of U.P. and others

- **Citation:** (2008) 3 ILRA 865
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-02
- **Case number:** Civil Misc. Writ Petition No.14915 of 2008
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-v-the-state-of-u-p-and-others-41249
- **Pages:** 11

## Headnote

U.P. Panchayat Raj Act, 1947-Section 95
(I) (g)-ceasure of Administrative and
financial
power
of
village
pradhansatisfaction of District Magistrate based
on no material or malafide-D.M. required
to consider preliminary enquiry report
and
not
the
final-held-can
not
be
interfered under writ jurisdiction.

Held: Para 22

There is nothing to show that the
satisfaction of the District Magistrate
was vitiated by lack of material or
malafides.
The
challenge
to
the
impugned order on the ground that it
does not give reasons has no substance
as elaborate reasons are not required to
be given by the District Magistrate at
this stage. He is required to consider the
preliminary enquiry report, and not a
final enquiry report with the reply given
by
the
petitioner
or
the
material
collected and produced by both the
enquiry officer and supplied by the
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
866
petitioner. Such an enquiry or recording
of reasons at this stage is wholly
superfluous.
Case law discussed:
Special Appeal. -No.382 of 2008 decided on
13.3.2008, Writ Petition No.4897 of 2008,
2005 (4) AWC 3563; AIR 1971 SC 385 (1993)
1 UPLBEC 414, AIR 1963 SC 786, 2005 (4)
AWC 3563, (1999) 1 UPLBEC 718, (1973) 2
SCC 836, (2002) 1 UPLBEC 582, (2003) 1
UPLBEC 736, (2005) 2 UPLBEC 1216, (1991) 4
SCC 139.

## Text

3 All] Rajendra Singh V. The State of U.P. and others
865
clear that respondent No.3 has worked up
to 1992-93 season, a finding to this effect
has also been recorded that there is a
mistake in the referring order. But it has
been stated that this will not effect the
right
of
respondent-workman.
In
paragraph 8 of the written statement filed
on behalf of petitioner, it has clearly been
mentioned that "respondent No.3 had
never worked even for a single day
beyond the end of crushing season 199394 hence no cause of action arises to the
respondent No.3 on the alleged date
mentioned in the reference order." The
labour Court has misread the statement
mentioned in the written statement. In
spite of the finding recorded that
respondent No.3 workman is changing the
stand from time to time but in spite of the
aforesaid fact, has given an award in his
favour for reinstatement as well as full
back wages. The Apex Court in cases
mentioned above has clearly held that in
such circumstances, the labour Court
cannot grant the relief of reinstatement
because the status of seasonal employee
and temporary employee are different.

15. But as the facts remains,
respondent no.3 has been reinstated and
back-wages from the date of award till
date of reinstatement has been paid as
informed by the counsel for the parties,
therefore, at this stage, after a lapse of
about six or seven years, when the
respondent No.3 is working, it will not be
appropriate to pass an order to set aside
the
award.
But
in
the
facts
and
circumstances of present case award dated
24.4.1998 is modified to the extent that
respondent no.3 will not be entitled for
any back wages from 1994 till the date of
award.

16. The writ petition is disposed of.
No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2008

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No.14915 of 2008

Rajendra Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

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

Counsel for the Respondents:
Sri Ashok Nath Tripathi
Sri P.K. Tyagi
Smt. Archana Tyagi
S.C.

U.P. Panchayat Raj Act, 1947-Section 95
(I) (g)-ceasure of Administrative and
financial
power
of
village
pradhansatisfaction of District Magistrate based
on no material or malafide-D.M. required
to consider preliminary enquiry report
and
not
the
final-held-can
not
be
interfered under writ jurisdiction.

Held: Para 22

There is nothing to show that the
satisfaction of the District Magistrate
was vitiated by lack of material or
malafides.
The
challenge
to
the
impugned order on the ground that it
does not give reasons has no substance
as elaborate reasons are not required to
be given by the District Magistrate at
this stage. He is required to consider the
preliminary enquiry report, and not a
final enquiry report with the reply given
by
the
petitioner
or
the
material
collected and produced by both the
enquiry officer and supplied by the
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
866
petitioner. Such an enquiry or recording
of reasons at this stage is wholly
superfluous.
Case law discussed:
Special Appeal. -No.382 of 2008 decided on
13.3.2008, Writ Petition No.4897 of 2008,
2005 (4) AWC 3563; AIR 1971 SC 385 (1993)
1 UPLBEC 414, AIR 1963 SC 786, 2005 (4)
AWC 3563, (1999) 1 UPLBEC 718, (1973) 2
SCC 836, (2002) 1 UPLBEC 582, (2003) 1
UPLBEC 736, (2005) 2 UPLBEC 1216, (1991) 4
SCC 139.

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Shri D.K.S. Rathore,
learned counsel for the petitioner and
learned Standing Counsel. Shri Ashok
Nath Tripathi has filed an impleadment
application on behalf of Shri Yashveer
Singh, the complainant.

2. With the consent of the parties the
matter was finally heard and is being
decided at the admission stage.

3. The petitioner is the elected
Pradhan of Gram Panchayat Dharupur,
Development
Block-Noorpur,
Distt.
Bijnor. Shri Yashveer Singh, Shri Mahesh
Kumar and Shri Nripendra Kumar, the
residents of Gram Panchayat Dharupur
made
a
complaint
to
the
District
Magistrate alleging misuse of office and
irregularities in carrying out development
works. The District Magistrate appointed
the Soil Conservation Officer-respondent
No.3 as enquiry officer to conduct
preliminary enquiry under Section 95 (I)
(g) of the U.P. Panchayat Raj Act, 1947
on the allegations made against the
petitioner. The enquiry officer submitted a
preliminary enquiry report on 2.11.2007
on which a show cause notice was issued
to the petitioner on 1.1.2008 alleging. (1)
the construction work in pond was made
without making the inlet and slope; (2)
one of the four rooms constructed in the
school campus was incomplete. This
room was required to be constructed in a
manner that it should be earthquake proof.
It has been constructed with one wall on
the support of the neighbouring room,
which does not make it earthquake proof.
The building material used in the
construction is not of high quality; (3)
Only 209 out of 226 students have
received the scholarships. There was no
proof of distribution of scholarship to
remaining 17 students. The disbursement
for which documents were not made
available
raised
doubts
over
its
disbursement; (4) m the mid-day meal
scheme Smt. Rajeshwari Devi wife of
Shri Mahendra Singh was paid from
October 2005 to March 2006, whereas the
vouchers were issued for seven months
causing misappropriation of Rs.1392/-;
(5) in muster roll No.15 the payments to
the labourers at Sl.No.1 to 16 for the
period 14th to 29th August, 2007 were
shown
fraudulently,
thereby
causing
misappropriation of Rs.13,760/-; and (7)
the technical evaluation shows that there
was
misappropriation/misuse
of
Rs.15869/-.

4. The petitioner gave his reply to
the show cause notice on January 1st,
2008 alleging that the construction of
pond could not be completed due to rainy
season. The works were carried out under
the supervision of Junior Engineer and
that the inlet, outlet and slope are under
construction. The fourth room in the
school campus is separate, and is in
different direction from the other three
rooms and that the constructions were
completed under the supervision of Junior
Engineer, Vikas Khand, Noorpur. The
earthquake proof room is in open towards
east and is separate from other rooms. The
3 All] Rajendra Singh V. The State of U.P. and others
867
scholarship for 17 students could not be
distributed as the caste wise details were
not provided by the Head Master. The
amount of Rs.5100/- at the rate of
Rs.300/- per students was deposited in the
account on 23.8.2007 and the receipt was
made available to the enquiry officer. The
pay for the 7th month was paid to Smt.
Rajeshwari Devi and the receipt and
voucher are enclosed. The labourers at
Sl.Nos.10, 11, 12 and 13 were paid ten
days' wages on muster roll No.15 and the
labourers at SI.No.14, 15 and 16 were
actually paid for eight days. By mistake
they were shown to be present for 10 days
With regard to SI.No.16 the receipt of
payment was enclosed. With regard to
technical evaluation it was stated in reply
that 111 mtrs. road from the house of
Naththu to Balram was repaired and that
the other works of the road from Sachin
Book Depot to 'Pacca' road and others
were carried out. The measurements were
interchanged. The completion certificate
was enclosed.

5.

The
District
Magistrate
considered the reply. He was not satisfied
with the explanation. He has ceased the
financial and administrative powers of the
petitioner under the proviso to Section 95
(l) (g) of the U .P. Panchayat Raj Act,
1947, pending formal enquiry and has
directed appointment of three member
committee by his order dated 1.3.2008,
giving rise to this writ petition.

6. Shri D.K.S. Rathroe, learned
counsel for the petitioner states that the
complainant-caveator has no locus standi
to oppose the writ petition. He may not be
impleaded in the writ petition. He has
relied upon Division Bench judgment in
Guru Prasad Yadav Vs. The State of
U.P. & Ors., Special Appeal. -No.382 of
2008 decided on 13.3.2008 in which it
was held that the complainant has no right
to be heard in the proceedings before the
Court. He would further submit that once
the District Magistrate has issued show
cause notice and has received the reply, it
was incumbent upon him to consider that
reply before suspending financial and
administrative powers of the Pradhan.
Shri D.K.S. Rathore further submits that
in similar circumstances this Court has
passed interim orders on 28.1.2008 in
Naresh Kumar Vs. State of U.P. &
Ors., Writ Petition No.4897 of 2008.

7. In Guru Prasad Yadav (Supra) the
Division Bench while {setting aside the
order in writ petition held that the
complainant would not have the standing
to file writ petition challenging the orders
by which the enquiry was dropped. Shri
Guru Prasad Yadav, the petitioner was
member of three member committee. It
was held that a beneficiary of the order
cannot be ordinarily heard as he did not
have any lis with the delinquent Pradhan.
The Division Bench has relied upon
judgment in Kesari Devi Vs. State of
U.P. & Ors., 2005 (4) AWC 3563; Adi
Pherozshah Gandhi Vs. H.M. Seervai,
Advocate General of Maharashtra,
AIR 1971 SC 385 and Suresh Singh Vs.
Commissioner, Moradabad Division,
Moradabad, (1993) 1 UPLBEC 414 and
then held as follows:-

"We may further clarify that the right
of the petitioner-appellant to continue as
one of the Members of three members
committee
pending
regular
enquiry
against the Pradhan is not a vested right
nor he has a legal right to continue. Since
he was the complainant, he ought not to
have been allowed to be a member of the
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
868
committee to look after the work of
Pradhan.
Thus in view of the above, Sri
Parashu Ram, complainant and the
alleged member of the Three Member
Committee can neither be heard in these
proceedings before the Court nor he can
be a member of any committee."

8. Shri Yashveer Singh seeking
impleadment was a complainant along
with Shri Somesh Kumar and Shri
Nripendra Kumar. They are residents of
the same Gram Panchayat. They are not
beneficiaries of the order. A resident of
the village has been given rights under
Rule 3 of the U.P. Panchayat Raj
(Removal of Pradhan, Up-Pradhan and
Members) Enquiry Rules, 1997 to make a
complaint against the sitting Pradhan. The
complaint should be accompanied by an
affidavit. There should be sufficient
material disclosed by the complainant, in
his affidavit to satisfy the District
Magistrate to initiate a preliminary
enquiry against the sitting Pradhan. The
complainant does not have a right to
participate in the enquiry as prosecutor.
He, however, may be heard by the
enquiry officer in the formal enquiry
under Rule 5 of the U.P. Panchayat Raj
(Removal of Pradhans, Up-Pradhans and
Members) Enquiry Rules, 1997 (in short
the Rules of 1997). In Udit Narain Singh
Malpaharia Vs. Addl. Member, Board
of Revenue, Bihar & Anr. AIR 1963 SC
786 a Constitution Bench of Supreme
Court held in para 10 that there may be
parties who may be described as proper
parties, that is parties whose presence is
not necessary for making an effective
order, but whose presence may facilitate
the settling of all the questions that may
be involved in the controversy. It was
then held:-
"The question of making such a
person as a party to a writ proceeding
depends upon the judicial discretion of
the High Court in the circumstances of
each case. Either one of the parties to the
proceeding may apply for the impleading
of such a party or such a party may suo
motu approach the court for being
impleaded therein."

9. In Smt. Kesari Devi Vs. State of
U.P. & Ors. 2005 (4) AWC 3563 a
Division Bench of the Court hearing a
writ petition filed on behalf of 'Adhyaksh'
(Chairperson)
of
Zila
Panchayat,
Allahabad, did not prefer to hear the
'Upadhyaksh' in opposition to the prayers
made in the writ petition on the ground
that he was not a person aggrieved and
cannot claim to have any vested right in
the office. In para 40 it was observed that
he has merely a chance to officiate in case
the 'Adhyaksh' is removed. However, the
Court while rejecting the impleadment
application observed in para 42 that since
the issues raised in the writ petition have
wide
repercussions
and
since
the
questions are of serious nature the Bench
had heard Shri Shashi Nandan solely for
the assistance of the Court in view of the
provisions of Chapter XXIl, Rule 5A of
the Allahabad High Court Rules, 1952 in
order to secure the ends of justice and in
order to prevent any miscarriage of
justice.

10. Shri Ashok Nath Tripathi
appears for the complainant. He had filed
a caveat and has filed a impleadment
application. As a complainant he may not
be a necessary party in the proceedings,
but has sufficient interest in the matter as
the proceedings were initiated on his
complaint. A member of Gaon Sabha has
a right to make a complaint, if the sitting
3 All] Rajendra Singh V. The State of U.P. and others
869
Pradhan
misuses
his
authority
and
commits acts of misappropriation or
embezzlement. In such a case though an
enquiry is to be made by the District
Magistrate,
the
complainant
being
resident of the same village can provide
sufficient material and the particulars of
the irregularities. A complainant may not
necessary party to such proceedings but
where the proceedings have been initiated
on his complaint, he would be a proper
party to be impleaded at the discretion of
the Court. In a given case the Court may
find
that
the
impleadment
may
unnecessarily complicate the issues or
there is any vested interest or malafides to
be served by the persons seeking
impleadment. In such case the Court may
refuse impleadment. In the present case,
however, I do not find that any malafides
haw been alleged nor there is anything to
show
that
the
persons
seeking
impleadment has any vested interest in the
office of the Pradhan. The objections of
Shri D.K.S. Rathore to the impleadment
are as such rejected. The impleadment
application is allowed. Shri Ashok Nath
Tripathi
appearing
for
the
newly
impleaded respondent was heard in the
matter.

11. Section 95 (1) (g) of the U.P.
Panchayat Raj Act, 1947 provides for
removal
of
Pradhan.
The
State
Government or the delegated authorities
may remove a Pradhan on the ground
given in Section 95 (l) (g) of the Act,
which
includes
absenteeism
without
sufficient cause for more than three
consecutive meeting or sitting: refusal to
act or incapable of acting or if he is
charged with offences involving moral
turpitude; abuse of his position or
persistent failure to perform the duties
imposed by the acts and the rules making
him undesirable to continue in public
interest: or has taken the benefit of
reservation under sub-section (2) of
Section 11A or sub-section (5) of Section
12 on false declaration: or being Sahayak
Sarpanch or Sarpanch of the Nyay
Panchayat takes active part in politics or
suffers
from
any
disqualification
mentioned in Clauses (a) to (m) of
Section 5A. The first proviso to Section
95 (I) (g) of the Act reads:-

"Provided that where in an enquiry
held by such person and in such manner
as may be prescribed, a Pradhan, UpPradhan is prima facie found to have
committed
financial
and
other
irregularities, such Pradhan or UpPradhan shall cease to exercise and
perform the financial and administrative
powers and functions, which shall, until
he is excluded 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."

12. In Smt. Sandhya Gupta Vs.
District Magistrate, Auraiya & Ors.,
(1999) 1 UPLBEC 718 this Court held
that the procedure prescribed in Rule 3 to
7 of the Rules of 1997 must be followed
before
removing
a
Pradhan.
This
judgment
essentially
related
to
the
removal and not ceasure or suspension of
the powers of the Pradhan as an interim
measure. The Court had observed in this
case
that
before
striping
of
the
administrative and financial powers of
Pradhan or Up-Pradhan, a show cause
notice must be served on the Pradhan or
Up-Pradhan as the case may be and he
should
be
afforded
a
reasonable
opportunity of showing cause against
action proposed. Any order passed by the
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
870
District Magistrate without calling for the
explanation and without giving reasonable
opportunity of showing cause against the
action proposed would vitiate and would
invite judicial intervention. In this case
initially the Chief Development Officer,
Deoria passed an order suspending the
financial powers of Smt. Sandhya Gupta.
The order was, thereafter, recalled and her
financial powers were restored and an
enquiry proceeded into complaints made
against her. After holding the enquiry the
District Magistrate passed an order
removing her from the office of the
Pradhan. The question of circumstances
and the conditions in which the powers of
interim suspension may be exercised and
whether an opportunity should have been
given to Pradhan or Up-Pradhan before
striping of administrative and financial
powers
was
neither
involved
nor
discussed
in
the
judgment.
While
discussing
the
findings
of
corrupt
practices in para 11 and referring to the
judgment of Union of India Vs. Mohan
Lal Kapoor, (1973) 2 SCC 836, the
learned Judge (Hon'ble Justice O.P. Garg)
agreed that the principles of natural
justice do not all speak in the same voice
and sometimes it is difficult to reconcile.
Nevertheless, a duty has been cast on the
administrative
authorities
exercising
quasi-judicial functions, to record reasons.
In view of the expanding horizon of the
concept of natural justice the requirement
of recording of reasons as a part fair
procedure cannot be dispensed with. Even
though the rules do not specifically
require the recording of the reasons, the
requirement of the principle of natural
justice is that the decision should be based
on the well informed reasons which
should be disclosed in the order itself. The
Court then observed in para 11 that it is
not expected that the District Magistrate
should write the order like a judgment of
the Court, but certainly some reasons,
however, precise they may be have to be
there. The Court then found that in that
case the District Magistrate has passed an
order which was based on no material and
the conclusion arrived at were not
supported
with
any
reason.
While
summing up the case, in para 15,
however, the Court formulated guidelines
for observance of the District Magistrate
so that in future they may be cautioned
enough to deal with the affairs of
Pradhan, Up-Pradhan and members. The
guideline No.8 of these 14 guidelines
provides as follows:-

"The provisions of the aforesaid
proviso relating to stripping of the
administrative and financial power of the
Pradhan, Up Pradhan can be invoked
only after a show cause notice is served
on the Pradhan or Up Pradhan, as the
case may be, and he is afforded a
reasonable opportunity of showing cause
against the action proposed, as is
contemplated in second proviso to clause
(g). Any order passed by the District
Magistrate without calling for the
explanation
and
without
giving
reasonable opportunity of showing cause
against the action proposed would be
vitiated
and
would
invite
judicial
intervention."

13. In Chandrajit Raj Bhar Vs.
District Magistrate, Pilibhit & Ors.,
(2002) 1 UPLBEC 582 it was held that a
conjoint reading of proviso to Section 95
(1) (g) of the Act read with Rule 2 (c), 4
and 5 of the Rules of 1997 leads towards
an inescapable conclusion that the District
Magistrate considering the preliminary
enquiry report submitted by the District
Panchayat Raj . Officer and explanation if
3 All] Rajendra Singh V. The State of U.P. and others
871
any submitted by a Pradhan or UpPradhan is to pass a speaking order either
depriving a Pradhan or Up-Pradhan from
performing
his
financial
and
administrative powers and functions or
refused to pass such order on merits of
each case. Such powers cannot be
exercised in perfunctory manner as it was
shown in the case decided by the Court.

14. In Moti Lal Vs. District
Magistrate, Lalitpur & Anr., (2003) 1
UPLBEC 736 a Division Bench of this
Court had an occasion to consider the
powers of the District Magistrate ceasing
financial and administrative powers of the
sitting Pradhan and constitution of three
member committee. After examining the
provisions of the Act and the Rules of
1997 the Division Bench observed that
these powers can be exercised on a
complaint or report referred to in Rule 3
of Rules 1997 "or otherwise'. The words
"or otherwise" occurring in sub-rule 1 of
Rule 4 are of wide import. Even if no
complaint is filed, the State Government
does not lack the power to direct holding
of preliminary enquiry. Such a report
made by the Sub Divisional Magistrate or
may come to the knowledge of the
District Magistrate personally on coming
to note on some serious lapse on the part
of Pradhan and in such case also
preliminary enquiry may be ordered. The
Court then observed that the Land
Conservation Officer and the Project
Officer, who had conducted the enquiries
were both District Level Officer and thus
it cannot be said that they were not
authorised to hold the enquiry. The Court
then upheld the prima facie satisfaction of
the District Magistrate about the misuse
of the amount in various development
works. The order of the learned single
Judge was upheld and the special appeal
was dismissed.

15. In Rajeshwari Kushwaha Vs.
District Magistrate, Kanpur Nagar &
Ors., (2005) 2 UPLBEC 1216 this Court
held that the report of Deputy Director (P)
appointed
by
the
Divisional
Commissioner was not a district level
officer to hold an enquiry.

16. Where the Act and the Rules
provide for sufficient guidelines, it is not
necessary for the Court to summarise
them or to put them in different language,
either point wise or in any other manner,
substituting its opinion in place of the
clear
statutory
provisions.
While
interpreting the provision of statute the
Court may take into account the object
and reasons of the enactment to provide
answer to the silences, if any, without
faulting the text of the statute or to iron
out the creases so that the procedure
prescribed
becomes
meaningful
and
purposive to the object of exercise of
powers. The Courts are not required to
make an adventure to summarise the
provisions of the statute, where they are
clearly and explicitly laid down, with an
anxiety for the executive to follow the
law, on the purported ground that such
summarisation will not leave any scope
for unnecessary litigation. The Courts
under our Constitution interpret the laws
and dispense justice in accordance with
law. The Courts do not legislate, where
there is already a legislation providing for
both substantive and procedural aspects
and with no ambiguities. Many a times, as
in the present case the superfluous
exercise of providing guidelines by
summarising the legal requirement of a
valid order, in the judgment and the
anxiety to curb litigation becomes a fresh
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
872
ground for litigation. In Smt. Sandhya
Gupta (Supra) the Court not only
exceeded its powers in deciding the
matter, which were not before it, but also
laid down guidelines providing for
affording a reasonable opportunity of
showing
cause
against
the
action
proposed in the first proviso of Section 95
(1) (g) of the Court, wrongly comparing it
with the second proviso to Clause (g), and
thereby provided an opportunity of
showing cause to a delinquent Pradhan,
which is not provided under the Act. By
way of laying down guidelines the Court
legislated and thereby provided fresh
rights, which are not provided in the
statute, creating new avenue for litigation.

17. The guidelines provided in Smt.
Sandhya Gupta's case overstepping the
legislative provisions are not only 'obiter',
but are also in ignorance of statutory
provisions and are thus 'per inqurium',
vide State of U.P. Vs. Synthetics &
Chemicals Ltd., (1991) 4 SCC 139 (para
40 and 41 ):-

'Incuria'
literally
means
'carelessness'. In practice per incuriam
appears to mean per ignoratium. English
courts have developed this principle in
relaxation of the rule of stare decisis. The
'quotable in law' is avoided and ignored if
it is rendered, 'in ignoratium of a stature
or other binding authority'. (Young Vs.
Bristol Aeroplace Co. Ltd.). Same has
been accepted, approved and adopted by
this Court while interpreting Article 141
of the Constitution, which embodies the
doctrine of precedents as a matter of
law2. In Jaisri Sahu Vs. Rajdewan Dubey
this Court while pointing out the
procedure to be followed when conflicting
decisions are placed before a bench
extracted a passage from Halsbury's
Laws of England incorporating one of the
exceptions when the decision of an
appellate court is not binding.
Does this principle extend and apply
to a conclusion of law, which was neither
raised nor preceded by any consideration.
In other words can such conclusions be
considered as declaration of law? Here
again the English courts and jurists have
carved out an exception to the rule of
precedents. It has been explained as rule
of sub-silentio. "A decision passes subsilentio, in the technical sense that has
come to be attached to that phrase, when
the particular point of law involved in the
decision is not perceived by the court or
present to its mind." (Salmond on
Jurisprudence 12th Edn., p. 153). In
Lancaster Motor Company (London) Ltd.
Vs. Bremith Ltd. the Court did not feel
bound by earlier decision as it was
rendered 'without any argument, 'without
reference to the crucial words of the rule
and without any citation of the authority'.
It was approved by this Court in
Municipal Corporation of Delhi Vs.
Gurnam Kaur. The bench held that,
'precedents
sub-silentio
and
without
argument are of no moment'. The courts
thus have taken recourse to this principle
for relieving from injustice perpetrated by
unjust precedents. A decision which is not
express and is not founded on reasons nor
it proceeds on consideration of issue
cannot be deemed to be a law declared to
have a binding effect as is contemplated
by
Article
141.
Uniformity
and
consistency arc core of judicial discipline.
But that which escapes in the judgment
without any occasion is not ratio
decidendi. In B. Shama Rao Vs. Union
Territory of Pondicherry it was observed,
'it is trite to say that a decision is binding
not because of tis conclusions but in
regard to its ratio and the principles, laid
3 All] Rajendra Singh V. The State of U.P. and others
873
down
therein'.
Any
declaration
or
conclusion arrived without application of
mind or preceded without any reason
cannot be deemed to be declaration of
law or authority of a general nature
binding as a precedent. Restraint in
dissenting or overruling is for sake of
stability and uniformity but rigidity
beyond reasonable limits is inimical to the
growth of law."

18. The first proviso to Section 95
(1) (g) of the Act quoted as above,
authorises the State Government to cease
financial and administrative powers and
functions of Pradhan or Up-Pradhan, if it
is prima facie found to have committed
financial and other irregularities, until he
is exonerated of the charges in the formal
enquiry, to be exercised and performed by
committee consisting of three members of
Gram Panchayat. This power is by way of
emergency
measure
and
may
be
exercised, where the Pradhan or UpPradhan is prima facie found to have
committed
financial
and
other
irregularities. In such case the District
Magistrate exercising powers of the State
Government, is not required to wait by
giving show cause notice, and to record
reasons after receiving the reply of the
Pradhan or Up-Prahdan, to the charges
based on the preliminary enquiry report.
Such opportunity by way of show cause
notice and explanation is neither provided
in the Act nor in the Rules of 1997. The
formal enquiry in which the Pradhan or
Up-Pradhan is to be given an opportunity
to defend himself is to follow, if the State
Government is of the opinion on the basis
of the report under sub-rule (2) of Rule 4,
'or otherwise', that an enquiry should be
held against Pradhan or Up-Pradhan. He
is required to constitute a committee and
by an order ask the enquiry officer other
than the enquiry officer nominated under
sub-rule (2) of Rule 4 of the Rules of
1997,
to
hold
the
enquiry.
The
opportunity of hearing is to be given in
this formal enquiry initiated on the basis
of the preliminary enquiry report. It is not
necessary for the District Magistrate,
exercising delegated power's of the State
Government to provide an opportunity to
the
Pradhan
or
Up-Pradhan
before
recording prima facie findings that he has
committed
financial
or
other
irregularities. This satisfaction is based on
the preliminary enquiry report and not
after considering the reply given by the
Pradhan on such report as no such reply is
contemplated by the Act or the Rules.

19. The powers to cease the
administrative and financial powers is
vested in the competent authority with an
object of restraining the persons from
committing or continue to commit misuse
of the office or financial and other
irregularities
until
the
enquiry
is
concluded. The necessity to give the show
cause notice and considering the reply and
need to give reasons at this stage would
virtually amount to preempting the formal
enquiry, which is to be made on the
opinion of the State Government based on
the report referred to in sub-rule (2) of
Rule 4 or otherwise, in Rule 5 of the
Rules of 1997. The insertion of the need
to give show cause notice by formulating
the charges based on preliminary enquiry
report, and considering the reply will split
the enquiry under Section 95 (1) (g) of the
Act, into two parts in which the first part
would be rendered superfluous. All that
the Court is required in case action is
taken under the first proviso to Section 95
(1) (g) of the Act is challenged, is to find
out if there was sufficient material
collected in the preliminary enquiry by
INDIAN LAW REPORTS ALLAHABAD SERIES [2008
874
the DPRO or any District Level Officer,
to form a prima facie opinion to cease the
financial and administrative powers and
functions of the Pradhan or Up-Pradhan,
till the conclusion of the enquiry. The
reply of the Pradhan or material to be
produced by him, is not necessary to be
considered at this stage of forming a
prima facie opinion on the material
collected in the fact finding (preliminary)
enquiry. Each case will depend upon the
facts and circumstances brought out
before the State Government or the
delegated authority in the preliminary
enquiry. If the charges are not serious and
there is no threat of continuation of such
misuse of powers or financial or other
irregularities,
or
that
the
District
Magistrate
has
acted
arbitrarily,
unreasonably and capriciously or if the
action is tainted with malafides, pleaded
and established on record, the Court may
interfere
and
require
the
District
Magistrate to justify his satisfaction. In
this regard the order must be speaking
order. But to say that the order can only
be issued after issuing show cause notice
and considering the reply and the material
given by the Pradhan, would be reading
something more than what the object and
reasons of the Act and the Rules provide.

20. The suspension of government
servant and the ceasure of the powers by
an statutory or elected functionary are not
unknown to the law. The suspension of
such powers, however, should be based
on sufficient material on which the power
can be justified in law and may be
judicially reviewed. The exercise of
power may also suffer from arbitrariness
or malafides in a given case. The Court,
however, should not lay down any
guidelines in this regard.

21. The Pradhan of the village holds
an
elected
office.
Apart
from
his
constitutional duties in Schedule XI of the
Constitution of India, and to carry them
out, he or she is provided with large
amount
of
funds
under
various
development
schemes
to
carry
out
development works including digging up
ponds, laying down roads, constructing
culverts, housing schemes for upliftment
of the poor, public distribution scheme,
construction of toilets, the national
employment guarantee scheme, the old
age pension scheme, the rural health
mission, the mid day meal scheme and
scholarship scheme in the, schools,
construction and up gradation of primary
schools and junior high schools, etc. A
Pradhan and Up-Pradhan, together with
the members of the Gram Panchayat are
required to utilise these funds for the
social and economic upliftment of the
village. A Pradhan or Up-Pradhan may in
a given case misuse their powers and the
funds. The State Government through the
District
Magistrate
or
the
Chief
Development Officer and its various
agencies are required to supervise these
schemes. If they find that a Pradhan or
Up-Pradhan is misusing his powers or is
committing financial irregularities, they
are required to step in and stop the misuse
of authority and funds. In such case the
U.P. Panchayat Raj Act, 1947 gives them
sufficient authority under the proviso to
Section 95 (l) (g) to intervene and to
suspend any further misuse of funds. In
such a case the Act does not provide for
taking over the powers but to vest the
powers in a three member committee
appointed from amongst the members of
the Gram Panchayat, until the conclusion
of the formal enquiry. In case of exercise
of such powers, the object of local selfgovernment is not destroyed as the power
3 All] Prem Chand and others V. G.D.A., Ghaziabad and others
875
of development and use of the funds will
still continue to vest in three member
committee of the Gram Panchayat. The
elected members of the Gram Panchayat
will continue to utilise the powers
temporarily until the Pradhan or Up-
Pradhan is exonerated of the charges
found prima facie established against him
or is removed and a new incumbent is
elected in the bye-elections.

22. Coming to the present case I find
that in the preliminary enquiry sufficient
material
was
collected
against
the
petitioner-Pradhan for failing to construct
the pond in accordance with norms; the
deficiency in the construction of an
earthquake proof room of the school;
failure to explain the distribution of
scholarship
to
17
students
and
irregularities in maintaining the muster
rolls under the Employment Guarantee
Scheme. Prima facie satisfaction of the
District Magistrate to suspend the powers
of the Pradhan is based on the material
collected and summarised in the report. A
perusal of the report, does not show that
the District Magistrate acted arbitrary or
unreasonably in exercising his powers to
cease the financial and administrative
powers of the Pradhan and in vesting
them in a three member committee. There
was no need to call for reply of the
petitioner-Pradhan to these charges, at this
stage. In any case, such reply was called
and was considered by the District
Magistrate. There is nothing to show that
the satisfaction of the District Magistrate
was vitiated by lack of material or
malafides. The challenge to the impugned
order on the ground that it does not give
reasons has no substance as elaborate
reasons are not required to be given by the
District Magistrate at this stage. He is
required to consider the preliminary
enquiry report, and not a final enquiry
report with the reply given by the
petitioner or the material collected and
produced by both the enquiry officer and
supplied by the petitioner. Such an
enquiry or recording of reasons at this
stage is wholly superfluous.

23. The reliance placed by Shri
D.K.S. Rathore on the interim order
passed by me in Naresh Kumar's case is
misconceived. While recording reasons
for giving interim order I had found that
as
against
the
expenditure
of
Rs.3,50,000/- on development works, the
District Agricultural Officer, Bijnor has
found the misuse of only Rs.12,264/-,
which is less than 3% of the amount spent
the suspension of the financial and
administrative powers of the Pradhan on
misuse of such small fraction of the total
amount, which may be a mistake either
way was not found to be sufficient to
suspend the powers of the Pradhan during
the pendency of enquiry. The facts of the
present case are entirely different.

24. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2008

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.15799 of 2003

Prem Chand and others ...Petitioners
Versus
Ghaziabad
Development
Authority
Ghaziabad and others ...Respondents

Counsel for the Petitioners:
Sri Pt. D.N. Dubey
Sri R.A. Tripathi