# Shri Jamil Ahmad v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 1145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-26
- **Case number:** Civil Misc. Writ Petition No.40376 of 2013
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-jamil-ahmad-v-state-of-u-p-and-ors-42582
- **Pages:** 3

## Headnote

U.P. Panchayat Raj Act 1947-Section
95(i)(g)- Removal of village Pradhan-on
conviction in criminal case-against show
cause notice-plea about pendency of
criminal appeal taken-removal orderchallenged-held-even on involvement in
moral turpitude can be disqualificationpetitioner having been convicted-rightly
removed.

Held: Para-6
Section 95 (1)(g)(ii) provides that the
State
Government
may
remove
a
Pradhan, if he is accused of or charged
for an offence involving moral turpitude.
In the instant case, the petitioner has
been convicted of an offence involving
moral turpitude, and consequently, the
District
Magistrate
was
justified
in
removing the petitioner from the post of
Pradhan under the said provision.

Case Law discussed:
2008 AWC(2)1921

## Text

2 All] Shri Jamil Ahmad Vs. State of U.P. and Ors.

1145
not owe, he being also equally responsible to
the public and public fund holding an office
of trust, is bound to return/refund it.

20. In P.K. Chinnaswamy Vs.
Government of Tamilnadu and others
AIR 1978 SC 78, the Apex Court said that
every public officer is a trustee and in respect
of the office he holds and the salary and other
benefits which he draws, he is obliged to
render appropriate service to the State.
Conversely, it would also be true that a
Government official would be entitled to
payment of only that amount, which he is
entitled towards salary etc. under the relevant
provisions, applicable to him, in the context
of his status, position, rank , etc. If he has
received or paid even by mistake, certain
amount to which he was not entitled, it
would amount to excess drawl of money
unauthorisedly from public exchequer to
which every Government official is a trustee
and,
therefore,
whether
mistaken
or
otherwise, no one is entitled to retain such
unauthorised money belonging to public
exchequer but, is under a legal and ethical
obligation to return/refund the same, so that,
it may be utilized for the purpose, it is made
and decided by the competent authorities in
budgetary allocation.

21. Every single penny constituting
consolidated fund of India/State comes from
hard earned money of tax payers and others.
It has to be utilized strictly in the manner in
which the competent authority i.e., the
legislature has resolved and decided. No
amount of public exchequer can be allowed
to be squandered as a matter of charity or
otherwise to be retained by a Government
servant who is not entitled to obtain such
money but by another Government Servant
has been allowed to withdraw from public
exchequer, may be, by his mistake or may be
collusive mistake or otherwise.

22. This Court also tried to find out as
to from which budgetary allocation excess
money was paid to the employee and to which
it can be adjusted. Since the allocated money
is already identified and beyond that nothing
could have been paid by anybody, no
authority can be allowed to retain any amount
which he has received unauthorisedly or on
account of mistake of administration. It shall
also amount to financial indiscipline and
misuse of public fund. In the context of above
decisions, we are clearly of the view that
various
authorities
cited
by
the
representationists concerned would not help
them to claim that excess amount paid should
not be recovered from them.

23. In view of above and the
authorities of Apex Court, as discussed
above, the judgments cited at the Bar by
petitioner in support of his contention, in
my view, would not help him and I am
bound by the authorities of Apex Court
which have come up in the recent past and
have considered most of the judgments
cited at Bar by petitioner.

24. In view of above, I do not find
any reason to interfere. The writ petition
lacks merit. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.40376 of 2013

Shri Jamil Ahmad

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri S.K. Dwivedi
1146 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Counsel for the Respondents:
C.S.C.

U.P. Panchayat Raj Act 1947-Section
95(i)(g)- Removal of village Pradhan-on
conviction in criminal case-against show
cause notice-plea about pendency of
criminal appeal taken-removal orderchallenged-held-even on involvement in
moral turpitude can be disqualificationpetitioner having been convicted-rightly
removed.

Held: Para-6
Section 95 (1)(g)(ii) provides that the
State
Government
may
remove
a
Pradhan, if he is accused of or charged
for an offence involving moral turpitude.
In the instant case, the petitioner has
been convicted of an offence involving
moral turpitude, and consequently, the
District
Magistrate
was
justified
in
removing the petitioner from the post of
Pradhan under the said provision.

Case Law discussed:
2008 AWC(2)1921

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner was elected as a
Pradhan, but subsequently, was convicted of
an offence and was sent to jail on account of
his conviction. The petitioner was issued a
show cause notice as to why he should not be
removed from the post of the Pradhan. Upon
his reply that he has filed an appeal against
his conviction, the District Magistrate passed
an order under Section 95 (1) (g) of the U.P.
Panchayat Raj, Act, 1947 read with U.P.
Panchayat Raj (Removal of Pradhans, UpPradhans and Members) Enquiry Rules,
1997 removing him from the post of the
Pradhan. The petitioner, being aggrieved by
the said order, has filed the present writ
petition.

Section 5 (1) (g) provides as under:

"(1) The State Government may-

(g). remove a Pradhan. Up-Pradhan
or member of a Gram Panchayat or a Joint
Committee or Bhumi Prabhandhak Samiti
or a Panch, Sahayak Sarpanch or
Sarpanch of a Nyaya Panchayat if he-

(i) absents himself without sufficient
cause for more than three consecutive
meetings or sittings,

(ii) refuses to act or becomes incapable
of acting for any reason whatsoever or if he
is accused of 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 Act or rules made
thereunder or his continuance as such is
not desirable in public interest, or

(iii-a) has taken the benefit of
reservation under sub-section (2) of
Section 11-A or sub-section (5) of Section
12, as the case may be, on the basis of a
false declaration subscribed by him
stating that he is a member of the
Scheduled Castes, the Scheduled Tribes
or the Backward Classes, as the case may
be.

(iv) being a Sahayak Sarpanch or a
Sarpanch of the Nyaya Panchayat takes
active part in politics, or

(v)
suffers
from
any
of
the
disqualifications mentioned in clauses (a)
to (m) of Section 5-A :

Provided that where, in an enquiry held
by such person and in such manner as may be
prescribed, a Pradhan or Up-Pradhan is prima
facie found to have committed financial and
other irregularities, such Pradhan or UpPradhan shall cease to exercise and perform
2 All] M/s R.P.G. Life Science Ltd. & Ors. Vs. Presiding Officer & Ors.

1147
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.

Provided that-

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

3. Section 5A (g) provides as under :

"Section 5 A- Disqualification for
membership-
A
person
shall
be
disqualified for being chosen as, and for
being, (the Pradhan or) a member of a
Gram Panchyat, if he-

(g) has been convicted of an offence
involving moral turpitude;"

4. A perusal of the aforesaid, makes
it clear that a person shall be disqualified
for being chosen and for being the
Pradhan, if he has been convicted of an
offence involving moral turpitude.

5. In the light of the aforesaid
provision, once a person has been
convicted, he incurs a disqualification for
being chosen or for being the Pradhan and
is disqualified from holding an office.

6. Section 95 (1)(g)(ii) provides that
the State Government may remove a
Pradhan, if he is accused of or charged for
an offence involving moral turpitude. In
the instant case, the petitioner has been
convicted of an offence involving moral
turpitude, and consequently, the District
Magistrate was justified in removing the
petitioner from the post of Pradhan under
the said provision.

7. In Radhey Shyam Vs. State of
U.P., 2008 (2) AWC 1921, a Division
Bench of this Court has held that if a
person is convicted of an offence
involving moral turpitude, he would be
removed as the Pradhan under Section 95
(1)(g) of the Act.

8. In the light of the aforesaid, this
Court does not find any reason to interfere
in the impugned order.

9. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.07.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.41394 of 2012

M/s R.P.G. Life Science Ltd. & Ors.

 ...Petitioners
Versus
Presiding Officer & Ors. ...Respondents

Counsel for the Petitioners:
Sri Chandra Bhan Gupta

Counsel for the Respondents:
C.S.C., Sri B. Pant, Sri J. Nagar
Sri Pratik Nagar

Constitution of India, Art. 226- Petition
against Labour Court award-work man
working
as
medical
representative
transferred from Kanpur to Ballia- instead
of joining at transferred place-inspite of
traveling allowance- refused to go at
transferred place-termination-tribunal seta-side on ground of violation of principle of
natural justice-direction for reinstatement