GOPI NATH Vs. STATE OF U P

JUDGEMENT

(1.) IN these writ petitions the petitioners who are Pra- dhans of Gaon Subhas, had challenged the order of the Prescribed Authority (Sub-Divisional Officer), whereby they have been suspended from the office of Pradhan under Section 95 (1) (gg) of the U. P. Panchayat Raj Act (hereinafter referred to as the Act). As against the order of suspension under the aforesaid provisions a revision lies before Divisional Commissioner the learned counsel for the petitioners have challenged a Government notification of 1976 whereby the Goverment of U. P. has. in exercise of power under section 96-A of the Act, delegated its power under section 95 to the Sub-Divisional Officer subject to the condition that any order passed by him shall be revisable by the Divisional Commissioner and also by the State Government.

(2.) IN this connection the argument of the learned counsel for the petitioners is that the Government, while delegating its power to any officer or authority; can impose any condition of restriction subject to which the delegate can exercise the power but it cannot make the order of delegate revisable by any other authority in as much-as delegate exercises power of State Government and order of the State Government by virtue of sub-Sec. (3)of Section 95 have been prohibited from being questioned by any court- The learned counsel submits that finality of the order of delegate passed under section 95 (1) (gg) of the Act cannot be destroyed by the Government. It is not possible for me to agree with the learned counsel. A Division Bench of this Court in Matloob Ahmad v. Sub-Divisional Officer, 1986 AWC 1175, has upheld the validity of the impugned notification whereby the Government delegated its power to the Sub-Divisional Officer, which have been made revisable by the Commissioner of the Division. Relevant passage fram this judgment of Division Bench is extracted below : "The contentions raised by the counsel for the petitioner that the revisonal forum could not be created by means of notification and that the order passed by the Sub-Divisional Officer is the order passed by the State Government and that the order of the Sub-Divisional Officer should be treated to be final are, therefore without substance. Section 96-A of the Act in our opinion gave power to the State Government to place conditions and restrictions on the exercise of the power of the Sub-Divisional Officer and for that purpose the State Government could provide that the exercise of the powers by the Sub-Divisional Officer shall be subject to the revisional control by the Commissioner and the State Government." Learned counsel for the petitioners have further argued that (i) the Prescribed Authority has to record, in the order, its satisfaction that the grounds on which action is proposed to be taken under clause (g) exists and (ii) before passing the order of suspension Pradhan has to be given reasonable opportunity of being heard-

(3.) A Division Bench of this court in Saligram v. Collector, 1985 ALJ 1267, has declared that in view of difference in the requirements of Clauses (i) and (ii) of the proviso appended to Clause (gg) of Sub-section (1) of section 95, an opportunity of being heard, before passing an order of suspension, pending enquiry under clause (gg) is not required to be given Relevant passage from this judgment is extracted below : "The difference in the requirement of Cls. (i) and (ii) is apparent on the plaint language thereof. Clause (i) contemplates reasonable opportunity of show-cause being given against the action if it is proposed under CI. (g) of CI. (h)- It does not require such an opportunity being given before passing an order or suspension pending enquiry under Cl. (gg)." The order of suspension under clause (gg) is merely by way of interim measure during pendency or contemplated enquiry under Clause (g). Before passing such an order it is not necessary that opportunity of being heard should be given to the Pradhan. If he feels aggrieved against the order he can challenge it before revisional court.