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1994 Supreme(All) 275
High Court Of Allahabad
R.A. Sharma, J.
Raj Pal Singh – Appellant
Versus
Commissioner, Meerut Division, Meernt – Respondent
Civil Misc. Writ Petition No. 10920 of 1994
Decided On : Mar 22,1994
D.P. Singh
The power of suspension of a Pradhan under section 95 is vested in the State Government and it is the State Government which has a right to remove or suspend a Pradhan.
Headnote:
PANCHAYAT RAJ - Suspension of Pradhan - Power of Government to suspend - Delegation of power to Sub Divisional Officer - Effect of withdrawal of delegation - Order of suspension passed by Sub Divisional Officer - Whether lapses after withdrawal of delegation - Order of Commissioner dismissing revision - Whether bad - Order of Government staying all orders of suspension passed against Gram Pradhans - Whether valid.
Fact of the Case:
Petitioner, a Pradhan of Gaon Sabha, was suspended by the Sub Divisional Officer under section 95 (1) (gg) of the U. P. Panchayat Raj Act, 1947. He filed a revision which was dismissed by the Commissioner. The petitioner challenged these orders by filing a writ petition. During the pendency of the writ petition, the State Government withdrew the earlier notification delegating its power to the Sub Divisional Officer and the Commissioner.
Finding of the Court:
The court held that the order of suspension passed by the Sub Divisional Officer was in the eye of law, the order of the State Government and it will not lapse after the withdrawal of the delegation of power. The court further held that the order of the Commissioner dismissing the revision was not bad merely because the notification delegating the power was withdrawn subsequently.
Issues: 1. Whether the order of suspension passed by the Sub Divisional Officer lapses after the withdrawal of the delegation of power? 2. Whether the order of the Commissioner dismissing the revision is bad? 3. Whether the order of the Government staying all orders of suspension passed against Gram Pradhans is valid?
Ratio Decidendi: 1. The power of suspension of a Pradhan under section 95 is vested in the State Government and it is the State Government which has a right to remove or suspend a Pradhan. 2. By delegating its power under section 95 of the Act to the Sub Divisional Officer, the Government has not denuded itself of its power to suspend or remove a Pradhan under the above provision. 3. The order passed by the Sub Divisional Officer suspending the petitioner is in the eye of law, the order of the State Government, it will not lapse after the order dated 13-12-1993, whereby the Government has rescinded its earlier notification dated 14th October,, 1976, whereby it delegated its powers to Sub Divisional Officer. 4. The orders passed by the Sub Divisional Officer, suspending the petitioner, and the Commissioner, dismissing the revision, cannot be said to be bad merely because the notification dated 14-10-1976 passed under section 96 -A of the Act delegating the power to the Sub Divisional Officer and conferring the revisional power on the Commissioner has been withdrawn subsequently. 5. An omnibus order staying all the orders of suspension passed against the Grain Pradhan all over the State is arbitrary and cannot be passed by the Government because it indicates non-application of mind to individual cases.
Final Decision: The court disposed of the writ petition with the following order: "Government of Uttar Pradesh, should conclude the proceedings under section 95 (1) (g) of the Act against the petitioner within a period of two months from the date of presentation of certified copy of this order before it. In case these proceedings are not concluded within the time mentioned above, the petitioner will be reinstated forthwith, immediately after expiry of two months from the date of presentation of certified copy of this order before the Government. It will be open to the petitioner to send certified copy of this order, to the Government, by registered post."
R.A. Sharma
1. PETITIONER, who claims to be a Pradhan of Gaon Sabha, was suspended by the Sub Divisional Officer on 13-10-1992 (under section 95 (1) (gg) of the U. P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act). Against this order he filed a revision which was dismissed by the Commissioner by order dated 2-11- 1993, It is against these two orders that this writ petition has been filed by the petitioner. PETITIONER has also filed a supplementary affidavit along with which he has filed an order of the State Government dated 13th December 1993, whereby earlier notification dated 14th October, 1976, which was passed under section 96-A of the said Act, has been withdrawn/cancelled.
2. I have heard learned counsel for the petitioner and learned Standing Counsel. As both Che parties have agreed that this writ petition may be disposed of without calling for counter affidavit, because no factual controversy is involved, it is being decided at admission stage.
The power of removal as well as of suspension of a Pradhan under section 95 is vested in the Stabs Government and it is the State Government which has a right to remove or suspend a Pradhan. In exercise of power under section 96-A of the Act the Government vide notification dated 14- 10-1976 has delegated its power under section 95 (1) (g) (removal of Pradhan) and 95 (1) (gg) (suspension of Pradhan pending enquiry) to the Sub Divisional Officer. By the same notification provision for revision was made against the order of Sub Divisional Officer before the Commissioner. In view of the delegation of power by the above notification, the Sub Divisional Officer has suspended the petitioner, and the Commissioner has dismissed the revision of the petitioner.
3. BY delegating its power under section 95 of the Act to the Sub Divisional Officer, the Government] has not denuded itself of its power to suspend or remove a Pradhan under the above provision. The Sub Divisional Officer, while acting under section 93 (1) (g) or (gg) of the Act, exercises the power of the State Government and orders passed by him are, in law, the orders passed by the State Government itself. Supreme Court in Roop Chand v. State of Punjab, AIR 1963 SC 1503, while dealing with effect of delegation of power by the State Government to an officer subordinate to it, laid down as under :-
"The question then arises, when the Government delegates its power, for example, to entertain and decide an appeal under section 21 (4), to an officer and the officer pursuant to such delegation hears the appeal and makes an order, is the order an order of the officer or of the Government ? We thing it must be the order of the Government. The order is made under a statutory power. It is the statute which creates that power. The power can, therefore, be exercised only in terms of the statute and not otherwise. In this case the power is created by section 21 (4). That section gives a power to the Government. It would follow that an order made in exercise of that power will be the order of the Government for no one else has the right under the statute to exercise the power. No doubt the Act enables the Government to delegate its powers but such a power when delegated remains the power of the Government, for the Government can only delegate the power given to it by the statute and cannot create an independent power in the officer. When the delegate exercises the power, he does so for the Government. It is of interest to observe here that Wills J. said in Huth v. Clarke, (1890) 25 QBD 391 that "the word delegate means little more than an agent." An agent of course exercises no power of his own but only the powers of his principal. Therefore, an order passed by an officer on delegation to him under section 41 (1) of the power of the Government under section 21 (4), is for the purpose of the Act, an order of the Government."
As the order passed by the Sub Divisional Officer suspending the petitioner is in the eye of law, t
