# Smt. Soniya v. State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 936
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-24
- **Case number:** Special Appeal No. 699 of 2013
- **Bench:** Shiva Kirti Singh, Chief . Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-soniya-v-state-of-u-p-and-ors-42651
- **Pages:** 9

## Headnote

High Court Rules 1952-Chapter VIII Rule
5- special Appeal-against judgment of
Single
Judge-arises
out
from
order
passed by District Magistrate under
section 95(1)(g) of U.P. Panchayat Raj
Act-whether maintainable?-held-'NO' as
the power exercised by the District
Magistrate fulfill essential requirement
of Tribunal-in view of full Bench decision
of
Sheet
Gupta
case-appeal
not
maintainable.

Held: Para-24
In view of the legal provisions in the Act
and the Rules noted and discussed
above, it has to be held that the District
Magistrate
while
exercising
powers
under
the
first
proviso
to
Section
95(1)(g) of the Act is an authority
constituted by the State and clothed
with the inherent judicial power of the
State to deal with disputes between the
parties and to determine them on merits
fairly and objectively. In other words, in
such a capacity he satisfies the essential
requirements of a 'Tribunal'.

Case Law discussed:
2000(4) AWC 2834; AIR 1950 SC 188; AIR
1961 SC 1669; AIR 1963 SC 874; AIR 1965 SC
1595; 2003(1) AWC 44; 2003(1) AWC 508;
(1999) 1 UPLBEC 697; (2008) 1 UPLBEC 538;
2011(1) ALJ 694; 2011 (5) ESC 761 (SC)
(1994) 6 SCC 241; 2010 (1) CRC 285.

## Text

936 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
against an award of the SLAO but is in
the nature of original proceedings wherein
the claimant is in a position of the
plaintiff who is supposed to establish that
the price offered for his acquired land is
inadequate
by
producing
material
evidence before the reference court.

11. In the light of the above
decision, the reference court acts as court
of original jurisdiction and does not
exercises appellate powers while deciding
references under Section 18 of the Land
Acquisition Act. Therefore, it is denuded
of any power to remand the matter.

12. In view of the above, the order
of remand made by the reference court is
patently without jurisdiction and is
unsustainable in law for both the reasons
indicated above. The impugned judgment,
order and award of the reference court
20.3.1989 passed in LAR No. 165 of 1985
is set aside and the appeal is allowed.
---------
APPELLATE JURISDICTION
CIVIL- SIDE
DATED:ALLAHABAD 24.05.2013

BEFORE
THE HON'BLE SHIVA KIRTI SINGH, CHIEF
JUSTICE.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No. 699 of 2013

Smt. Soniya

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

Counsel for the Petitioner:
Sri Pankaj Srivastava

Counsel for the Respondents:
C.S.C.
High Court Rules 1952-Chapter VIII Rule
5- special Appeal-against judgment of
Single
Judge-arises
out
from
order
passed by District Magistrate under
section 95(1)(g) of U.P. Panchayat Raj
Act-whether maintainable?-held-'NO' as
the power exercised by the District
Magistrate fulfill essential requirement
of Tribunal-in view of full Bench decision
of
Sheet
Gupta
case-appeal
not
maintainable.

Held: Para-24
In view of the legal provisions in the Act
and the Rules noted and discussed
above, it has to be held that the District
Magistrate
while
exercising
powers
under
the
first
proviso
to
Section
95(1)(g) of the Act is an authority
constituted by the State and clothed
with the inherent judicial power of the
State to deal with disputes between the
parties and to determine them on merits
fairly and objectively. In other words, in
such a capacity he satisfies the essential
requirements of a 'Tribunal'.

Case Law discussed:
2000(4) AWC 2834; AIR 1950 SC 188; AIR
1961 SC 1669; AIR 1963 SC 874; AIR 1965 SC
1595; 2003(1) AWC 44; 2003(1) AWC 508;
(1999) 1 UPLBEC 697; (2008) 1 UPLBEC 538;
2011(1) ALJ 694; 2011 (5) ESC 761 (SC)
(1994) 6 SCC 241; 2010 (1) CRC 285.

(Delivered by Hon'ble Shiva Kirti Singh, C.J.)

1. The appellant, who was elected as
Pradhan of Village Pali Mukimpur, Tehsil
Atrauli, District Aligarh in 2010, had filed
Writ Petition No.9932 of 2013 for
quashing the order dated 6th February,
2013 that was passed by the District
Magistrate, Aligarh exercising powers
under the first proviso to Section 95(1)(g)
of the U.P. Panchayat Raj Act, 1947
(hereinafter referred to as the 'Act') to
cease the financial and administrative
powers of the Pradhan with a further
direction that the said powers shall be
performed by a Committee of three
members. The learned Judge did not
2 All] Smt. Soniya Vs. State of U.P. and Ors.
937
accept the plea of the petitioner for quashing
the said order but, in view of the fact that an
Enquiry Officer had been appointed to hold
the enquiry against the petitioner, disposed of
the writ petition by the judgment and order
dated 22nd February, 2013 with a direction
to the District Magistrate to take a final
decision in the matter. This Special Appeal
has been filed for setting aside the aforesaid
judgment and order dated 22nd February,
2013 passed by the learned Judge and for
quashing the order dated 6th February, 2013
passed by the District Magistrate, Aligarh.

2. Learned Standing Counsel appearing
for the respondents raised a preliminary
objection that the Special Appeal filed under
Chapter VIII, Rule 5 of the Allahabad High
Court Rules, 1952 (hereinafter referred to as
the 'High Court Rules') is not maintainable
for the reason that it has been filed against a
judgment rendered in exercise of writ
jurisdiction under Article 226 of the
Constitution in respect of an order of a
Tribunal made in exercise of jurisdiction
under the State Act with respect to a matter
enumerated in the State List in the Seventh
Schedule to the Constitution.

3. Learned counsel for the appellant,
however, submitted that the order passed
by the District Magistrate under the first
proviso to Section 95(1)(g) of the Act
cannot be said to be an order of a Tribunal
and, therefore, the Special Appeal would
be maintainable.

4. Chapter VIII, Rule 5 of the High
Court Rules, while providing that an
appeal shall lie to the Court from a
judgment and order of one Judge,
provides for certain exceptions and one of
them is that it will not lie when the order
is made by one Judge in exercise of
jurisdiction conferred by Article 226 of
the Constitution in respect of any order of
a Tribunal made or purported to be made
in the exercise of jurisdiction under any
Uttar Pradesh Act or under any Central
Act with respect to any of the matters
enumerated in the State List or the
Concurrent List in the Seventh Schedule
to the Constitution.

5. The issue, therefore, that arises
for consideration in the Special Appeal is
whether the District Magistrate functions
as a Tribunal while exercising powers
under the first proviso to Section 95(1)(g)
of the Act and whether the said Act is
with respect to any of the matters
enumerated in the State List in the
Seventh Schedule to the Constitution.

6. Entry No.5 of the State List in the
Seventh Schedule to the Constitution relates
to "local government, i.e. to say the
constitution and powers of municipal
corporations, improvement trusts, the district
boards, mining settlement authorities and
other local authorities for the purpose of local
self-government or village administration".
The preamble to the Act mentions that the
Act has been enacted since it was expedient
to establish and develop the local selfgovernment in the rural areas of Uttar
Pradesh and to make better provisions for the
village administration and development. The
legislative field is, therefore, clearly referable
to entry no.5 of the State List in the Seventh
Schedule to the Constitution.

7. It now remains to be seen whether
the District Magistrate functions as a
Tribunal while exercising powers under
the first proviso to Section 95(1)(g) of the
Act.

8. Division Benches of this Court
have time and again considered what
938 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
authorities or bodies would be considered
to be 'Tribunal' for the purpose of
determining whether a Special Appeal
would be maintainable under Chapter
VIII, Rule 5 of the High Court Rules.

9. In Pratappur Sugar and
Industries Ltd. Vs. Deputy Labour
Commissioner, Gorakhpur & Anr.
reported in 2000 (4) AWC 2834, the
Court examined whether the Deputy
Labour Commissioner would function as
a 'Tribunal' while exercising powers under
Clause (LL) of the Standing Orders
governing the conditions of employment
of Workmen in Vaccum Pan Sugar
Factories because if the Deputy Labour
Commissioner functions as a Tribunal,
then the Special Appeal filed against the
order of a learned Judge in a writ petition
filed under Article 226 of the Constitution
to assail the order of the Deputy
Commissioner would not be maintainable.
The Division Bench, after noticing that
"Tribunal" has not been defined in High
Court Rules, observed that while using
the expression "judgment, order or award
of a Tribunal or Court" in Rule 5 of
Chapter VIII of the High Court Rules, the
framers had in their mind the words used
in Article 136 of the Constitution which
provides that the Supreme Court may, in
its discretion, grant special leave to appeal
from
any
judgment,
decree,
determination, sentence or order in any
case or matter passed or made by any
Court
or
Tribunal.
It,
therefore,
considered it appropriate to consider the
various decisions of the Supreme Court
wherein the test to determine whether an
authority or body is a 'Tribunal' under
Article
136
of
Constitution
was
considered and after referring to the
decisions of the Supreme Court in Durga
Shankar Mehta Vs. Raghuraj Singh,
AIR 1950 SC 188, Hari Nagar Sugar
Mills Vs. Shyam Sunder, AIR 1961 SC
1669, Engineering Mazdoor Sabha Vs.
Cycles Ltd., AIR 1963 SC 874 and
Associated Cement Companies Vs. P.N.
Sharma & Anr., AIR 1965 SC 1595,
observed :-

"12. The test applied by the Supreme
Court in determining whether any body or
authority has the status of a Tribunal for
the purpose of Article 136(1) of the
Constitution can safely be applied while
interpreting Chapter VIII, Rule 5 of the
Rules of the Court. Therefore, what is to
be seen is whether the judgment or
order which was subject matter of
challenge in the writ petition filed
under Article 226 or 227 of the
Constitution had been given by a body
or
authority
which
had
been
constituted by the State and had been
clothed with the
State's
inherent
judicial power to deal with disputes
between the parties and to determine
them on merits fairly and objectively.

13. Applying the test laid down by
the Supreme Court, it will be clear that
the standing orders have been made by
means of a notification issued by the State
Government
in
exercise
of
power
conferred by Section 3(b) of the U.P.
Industrial Disputes Act. Therefore, it is
the State which has conferred the
authority upon the Additional/Deputy
Labour Commissioner to determine the
age of a workman in Vaccum Pan Sugar
Factory. The Additional/Deputy Labour
Commissioner records findings after
giving notice to both the parties and
giving them opportunity to lead oral and
documentary evidence. Although, strict
rule of evidence is not applicable in such
determination, still the matter is decided
2 All] Smt. Soniya Vs. State of U.P. and Ors.
939
fairly and objectively on the basis of
evidence adduced by the parties. The
decision taken has to be consistent with
the principles of natural justice and
general principles of law. Sub-clause 6
of clause (LL) lays down that the order
passed
by
the
Deputy
Labour
Commissioner regarding the age of the
concerned workman shall be final and
shall not be questioned by any party
before any Court and thus a finality is
attached
to
the
decision.
The
proceedings before the Deputy Labour
Commissioner have, therefore, "trapping
of Court". All these factors lead to
irresistible conclusion that Deputy Labour
Commissioner while deciding a dispute
under clause (LL) of the standing orders
functions as a Tribunal."

(emphasis supplied)

10. This decision was followed by
the Division Bench in Commissioner,
Meerut & Ors. Vs. Jaswant Sugar Mills
Ltd. & Ors. reported in 2003 (1) AWC
44 and it was held that the Commissioner,
while exercising powers under Rule 285-I
of the U.P. Zamindari Abolition and Land
Reforms Rules, 1952 for setting aside the
sale, functions as a Tribunal since the
decision
that
is
taken
by
the
Commissioner has to be consistent with
the principles of natural justice and
general principles of law. .

11. In P.G.T. Components (P.) Ltd.
NOIDA & Ors. Vs. Assistant Provident
Fund Commissioner & Anr. reported in
2003 (1) AWC 508, the Division Bench held
that the Provident Fund Commissioner,
while discharging the duties under the
provisions of Employees' Provident Fund
and Miscellaneous Provisions Act, 1952, acts
as a Tribunal.

12. In Jai Prakash Agarwal Vs.
Prescribed Authority (Sub-Divisional
Magistrate), Sadar, District Deoria &
Ors. reported in (1999) 1 UPLBEC 697
Division Bench of this Court held that the
Prescribed Authority, while exercising
powers under Section 25(1) of the
Societies
Registration
Act,
1860,
functions as a Tribunal and, therefore, the
Special Appeal would not be maintainable
against the order passed in a writ petition
filed to assail the said order of the
Prescribed
Authority.
The
relevant
observations are :-

"12. Now if the aforesaid test is
applied to the Prescribed Authority under
Section 25 of the Act, there remains no
doubt that it is a tribunal. Under Section
25 Prescribed Authority decides important
dispute of election and continuance in
office of an office-bearer, which is
essentially a dispute of civil nature. The
order passed by the Prescribed Authority
though has not been said to be final in
specific words but sub-section (2) of
Section 25 of the Act specifically
provides that where by an order made
under sub-section (1), an election is set
aside or an office-bearer is held no longer
entitled to continue in office or where the
Registrar is satisfied that any election of
office-bearers of a society has not been
held within the time specified in the Rules
of that society, he may call meeting of the
general body of such society for electing
such office bearer or office-bearers, and
such meeting shall be presided over and
be conducted by the Registrar or by any
officers authorised by him in this behalf,
and the provisions in the Rules, of the
society relating to meetings and elections
shall apply to such meeting and election
with necessary modifications. Thus, the
provisions contained in sub-section (2) of
940 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Section 25 of the Act provide that if the
election is set aside by the Prescribed
Authority a fresh election is required to be
held by the Registrar. This is sufficient
indication that the order is final. The
Prescribed Authority is also required to
hear and decide in summary manner any
doubt or dispute in respect of the election.
Thus, the order has to be passed after
hearing
parties
and
giving
them
opportunity to adduce evidence. From the
provisions contained in proviso, it is clear
that he decides the dispute in exercise of
inherent judicial powers of the State
vested in him by the notification."

13. The same view was taken by
another Division Bench of this Court in
Mohd. Talib Khan Vs. State of U.P. &
Ors. reported in (2008) 1 UPLBEC 538.

14. It is clear from the aforesaid
decisions that the test applied for
determining
whether
any
body
or
authority has the status of a Tribunal is to
see whether such body or authority has
been constituted by the State and has been
clothed with the inherent judicial power
of the State to deal with disputes between
the parties and to determine them on
merits fairly and objectively. It is this test
that has to be applied to find out whether
the District Magistrate functions as a
'Tribunal' while exercising powers under
the first proviso to Section 95(1)(g) of the
Act.

15. It will, therefore, be useful to
reproduce the relevant provisions of
section 95 of the Act which are as
follows:-

"95. (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 is prima
facie found to have committed financial
and other irregularities such 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 All] Smt. Soniya Vs. State of U.P. and Ors.
941

................................

(2) ................................

(3) No order made by the State
Government under this section shall be
called in question in any Court "

16. The State Government has
delegated the powers to be exercised by it
under Section 95(1)(g) of the Act to the
District Magistrate by the Notification
dated 30th April, 1997.

17. There is a detailed procedure
prescribed under Rules 3, 4 and 5 of the
Uttar Pradesh Panchayat Raj (Removal of
Pradhan, Up-Pradhans and Members)
Enquiry Rules, 1997 (hereinafter referred
to as the 'Rules') regarding the making of
a complaint against a Pradhan and the
preliminary enquiry and the same are as
follows:-

"3. Procedure relating to complaints.-
(1) Any person making a complaint
against a Pradhan or Up-Pradhan may
send
his
complaint
to
the
State
Government or any officer empowered in
this behalf by the State Government.

(2) Every complaint referred to in
sub-rule (1) shall be accompanied by the
complainant's own affidavits in support
thereof and also affidavits of all persons
from whom he claims to have received
information of facts relating to the
accusation, verified before a notary,
together with all documents in his
possession or power pertaining to the
accusation.

(3) Every complaint and affidavit
under this rule as well as any schedule or
annexure thereto shall be verified in the
manner laid down in the Code of Civil
Procedure, 1908, for the verification of
pleadings and affidavits, respectively.

(4) Not less than three copies of
complaint as well as each of its annexures
shall be submitted by the complainant.

(5) A complaint which does not
comply with any of the foregoing
provisions of this rules shall not be
entertained.

(6) It shall not be necessary to follow
the procedure laid down in the foregoing
provisions of this rule, if a complaint
against a Pradhan or Up-Pradhan is made
by a public servant.

4. Preliminary Enquiry. - (1) The
State Government, on the receipt of a
complaint or report referred to in Rule 3,
or otherwise order the Enquiry Officer to
conduct a preliminary enquiry with a view
to finding out if there is a prima facie case
for a formal enquiry in the matter.

(2)
The
Enquiry
Officer
shall
conduct the preliminary enquiry as
expeditiously as possible and submit his
report to the State Government within
thirty days of his having been so ordered.

5. Enquiry Officer.- Where the
State Government is of the opinion, on the
basis of the report referred to in sub-rule
(2) of Rule 4 or otherwise, that an enquiry
should be held against a Pradhan or UpPradhan or Member under the proviso to
clause (g) of sub-section (1) of Section
95,
it shall forthwith
constitute a
committee envisaged by proviso to clause
(g) of sub-section (1) of Section 95, of the
Act and by an Order ask an Enquiry
Officer, other than the Enquiry Officer
942 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
nominated under sub-rule (2) of Rule 4, to
hold the enquiry."

18. It needs to be noted that the State
Government by the notification dated
30th April, 1997 has also delegated the
powers to be exercised by it under the
Rules to the District Magistrate.

19. A Full Bench of this Court in
Vivekanand Yadav Vs. State of U.P. &
Anr. 2011 (1) ALJ 694 examined at
length the provisions of Section 95(1)(g)
of the Act and the Rules and observed that
the District Magistrate could form his
prima facie satisfaction for holding a
formal enquiry and cease the financial and
administrative powers of the Pradhan only
on
the
preliminary
enquiry
report
submitted by the Enquiry Officer defined
under Rule 2(c) of the Rules or on the
basis
of
the
preliminary
enquiry
conducted by the District Magistrate
himself. It also observed that before
ceasing the financial and administrative
powers of the Gram Pradhan, it is not
only necessary to seek the explanation or
point of view or version of the Gram
Pradhan to the charges but it has also to
be considered by the District Magistrate
before being prima facie satisfied about
the financial or other irregularities of the
Gram Pradhan. The Full Bench further
held that the order passed by the District
Magistrate should indicate that the
District Magistrate has applied his mind
to the aforesaid requirement.

20. It, therefore, transpires that it is
the State Government which has been
conferred powers under Section 95(1)(g)
of the Act and the Rules to take action
against the Gram Pradhan but in terms of
Section 96-A of the Act, the State
Government has delegated the powers to
be exercised by it under the first proviso
to Section 95(1)(g) of the Act or under the
Rules to the District Magistrate by the
notification dated 30th April, 1997.

21. Under Rule 3(1) of the Rules,
any person making a complaint against a
Pradhan or Up-Pradhan may send his
complaint to the District Magistrate which
shall be in the manner provided in subrules (2),(3) and (4) of Rule 3. Under subrule (2), the complaint should be
accompanied by the affidavit of the
complainant and also affidavit of all
persons from whom he claims to have
received information together with all
documents in his possession pertaining to
the accusation. The complaint and the
affidavit as well as any schedule or
annexure has to be verified in accordance
with the procedure prescribed under the
Code of Civil Procedure, 1908 for
verification of pleadings and affidavits
and under sub-rule (5) of Rule 3, a
complaint which does not comply with
any of the provisions of sub-rules (1) to
(4) of Rule 3 shall not be entertained.
Under Rule 4 of the Rules, the District
Magistrate, on the receipt of a complaint
or otherwise, may order the Enquiry
Officer who should be the District
Panchayat Raj Officer or any other
'district level officer' to be nominated by
him to conduct a preliminary enquiry with
a view to finding out if there is a prima
facie case for a formal enquiry in the
matter
but
before
forming
such
satisfaction, he has necessarily to obtain
the point of view or version of the Gram
Pradhan to the charges and also to
consider them on merits. Though a
detailed procedure for holding the formal
enquiry has been provided for under
Rules 6 and 7 of the Rules but even at the
stage of the preliminary enquiry, the
2 All] Smt. Soniya Vs. State of U.P. and Ors.
943
District Magistrate is required to take the
decision fairly and objectively and the
decision
so
taken
by
the
District
Magistrate cannot be called in question in
any Court in view of the provisions of
sub-section (3) of Section 95(1) of the
Act. Thus, the contention of learned
counsel for the appellant that the Rules
only provide for the procedure for holding
the preliminary enquiry and not with
respect to the order to be passed by the
District Magistrate cannot be accepted.

22. Learned counsel for the appellant
placed the decision of the Supreme Court in
Dayaram Vs. Sudhir Batham & Ors.
reported in 2011 (5) ESC 761 (SC) to
support his contention that the District
Magistrate does not function as a Tribunal.
The matter was placed before the Larger
Bench of the Supreme Court as doubts were
raised regarding the correctness of direction
no.13 earlier given by the Supreme Court in
Kumari Madhuri Patil Vs. Additional
Commissioner,
Tribal
Development,
(1994) 6 SCC 241 that when the order
passed by the Scrutiny Committee regarding
the caste certificate was challenged before
the High Court under Article 226 of the
Constitution, then the matter may be
disposed of by a Single Judge and no further
appeal would lie against that order to the
Division Bench and the order would only be
subject to Special Leave Petition before the
Supreme Court under Article 136 of the
Constitution. The Larger Bench of the
Supreme Court held that the direction that no
further appeal would lie against a decision of
a Single Judge of the High Court to the
Division Bench was not valid since it was
well settled that an appeal is a creature of the
Statute and if the Statute or the Letters Patent
of the High Court or Rules provide for an
appeal, then an appeal will lie and the power
cannot be taken away by a judicial order.
This decision makes it clear that the relevant
Rules of the High Court regarding Special
Appeal have to be looked into and, therefore,
does not help the appellant at all.

23. The contention of the learned
counsel for the appellant that the present
Special Appeal would be maintainable as
it does not fall in any of the six categories
under which the Special Appeal will not
lie as indicated in paragraph 15 of the Full
Bench decision of this Court in Sheet
Gupta Vs. State of U.P. reported in 2010
(1) CRC 285, cannot be accepted. The
fifth category mentioned in paragraph 15
of the Full Bench decision is :-

"................... However, such special
appeal will not lie in the following
circumstances:

1. .................;

2. ..................;

3. ..................;

4. ..................;

5. the order made by one Judge in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution of India in respect of any
judgment, order or award by

(i) the tribunal,

(ii) Court or

(iii) statutory arbitrator

made or purported to be made in the
exercise
or
purported
exercise
of
jurisdiction under any Uttar Pradesh Act
or under any Central Act, with respect to
any of the matters enumerated in the State
List or the Concurrent List in the Seventh
Schedule to the Constitution of India;

6. ..................."

24. The Full Bench clearly observed
that under paragraph 5 referred to above,
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the Special Appeal will not lie if the District
Magistrate functions as a Tribunal and the
Act is with respect to a matter enumerated in
the State List in the Seventh Schedule to the
Constitution. In view of the legal provisions
in the Act and the Rules noted and discussed
above, it has to be held that the District
Magistrate while exercising powers under
the first proviso to Section 95(1)(g) of the
Act is an authority constituted by the State
and clothed with the inherent judicial power
of the State to deal with disputes between the
parties and to determine them on merits
fairly and objectively. In other words, in such
a
capacity
he
satisfies
the
essential
requirements of a 'Tribunal'.

25. Such being the position, the District
Magistrate, as in the case of a Deputy Labour
Commissioner while passing the order under
the Standing Orders or the Commissioner of
the Division while exercising powers under
Rule 285-I of the U.P. Zamindari Abolition
and Land Reforms Rules, 1952 or the
Provident Fund Commissioner exercising
powers under the provisions of the
Employees'
Provident
Fund
and
Miscellaneous Provisions Act, 1952, would
function as a 'Tribunal' while exercising
powers under the first proviso to Section
95(1)(g) of the Act.

26. The Special Appeal is, therefore,
not maintainable and is, accordingly,
dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.07.2013

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

Service Single 715 of 2007.
Nagendra Nath Tripathi
 .Petitioner
Versus
State Cane Service Authority & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri Vishal Singh, Sri Amar Bahadur Singh
Sri Jagdish Pratap Pandey

Counsel for the Respondents:
C.S.C., Sri K.S. Pawar

Constitution of India, Art. 226- Principle of
Natural
Justice-dismissal
order
with
recovery of loss of Rs. 1,28,184.31/-
without supplying the copy of documents
and enquiry report-held-dismissal order not
sustainable-quashed-with
liberty
to
proceed further from stage of show cause
notice-with all supported document-utilized
for considering dismissal-take final decision
within 2 month.

Held: Para-19
I am of the considered opinion that by not
providing the said document/material, the
respondents have failed to conform to the
principles of natural justice. Assessment of
quantum of loss allegedly caused by the
petitioner has been done while passing the
impugned order of dismissal and recovery
against the petitioner on the basis of report
submitted
on
12.07.2005
which,
admittedly, was submitted much after
submission
of
inquiry
report
dated
09.08.2004 and issuance of show cause
notice dated 05.10.2004.

Case Law discussed:
1996 UPLBEC 285

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. Heard Sri Vishal Singh, learned
counsel for petitioner and Sri K.S.Pawar,
learned counsel for respondent no.1.

2. Under challenge in the instant
writ petition is an order dated 28.12.2006