JAWALA PRASAD Vs. PARGANA ADHIKARI

JUDGEMENT

(1.) In this petition notice has been accepted by the learned standing Counsel for both the Respondents and in view of the short question involved on which, basis the petition may be decided finally, it is not necessary to call for a counter-affidavit. Both the learned Counsel have agreed that petition may be decided finally at this stage.

(2.) Facts giving rise to this petition are that Petitioner is an elected Pradhan of Gaon Sabha Phulawaria, Block Bhatpura, Tahsil Nawabganj, district. Bareilly. On certain complaints proceedings under Section 95(1) (g) of the U P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act) were initiated against Petitioner. He was served with a chargesheet on 21-12-1991 which is Annexure-1 to the Writ Petition. Petitioner filed reply and contested the proceedings. However, Respondent No. 2 by his order dated 23-1-1993 removed Petitioner from office of Pradhan. True copy of the order is Annexure 3 to the Writ Petition. From the aforesaid order Petitioner preferred an appeal before Collector, Bareilly which too has been dismissed by order dated 31-3-1993 passed by Respondent No. 1, Aggrieved from the aforesaid orders, Petitioner has approached this Court under Article 226 of the Constitution,

(3.) Learned Counsel for Petitioner has challenged the order of removal dated 23-1-1993 on the ground that the order is violative of principles of natural justice and has been passed without affording ah opportunity of hearing to the Petitioner as required under the First proviso to Section 95(1) of the Act which provides that no action shall be taken under Clauses (f), (g) or (h) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed. Learned Counsel for Petitioner has submitted that the aforesaid proviso has been considered by a Division Bench of this Hon'ble Court and it has been held that the aforesaid phrase used in the Proviso (i) means that the person concerned should be given two opportunities; the first opportunity is by which chargesheet is served and Petitioner is called upon to submit his replies and thereafter the enquiry is held and the second, opportunity should be given when the Authority applies its mind to the material on record and the charges and records finding for taking the proposed action. Learned Counsel for Petitioner has placed reliance for the aforesaid submission in a case of Jangali Singh v. Sub-Divisional Officer, 1977 AWC 497. Learned Counsel has submitted that from the impugned order passed by Respondent No. 1 it is clear that he did not give any such opportunity to Petitioner after the enquiry report dated 29-5-1992 was submitted by the Enquiry Officer/Tahsildar, Nawabganj and Respondent No. 1 straightway passed the order. of removal against Petitioner. Learned Counsel has submitted that the impugned order has been passed in violation of the principles of natural justice and the statutory provision and thus the order is void and cannot be sustained. The question was raised and argued in appeal before the Respondent No. 2 but as he has failed to consider this aspect of the case and has committed a manifest illegality, the impugned orders are liable to be quashed.