KASHI NATH YADAV Vs. SUB DIVISIONAL OFFICER MOHAMMADABAD

JUDGEMENT

(1.) APPELLANT was elected as Pradhan of village Aswar, Tahsil Mohammadabad, District Ghazipur in 1988. He was suspended on 6-1-1992 by the Sub-Divisional Officer, Mohammadabad. Ghazipur (hereinafter referred to as the S.D.O.) under section 95 (1) (gg) of the U. P. Panchayat Raj Act (hereinafter referred to as the Act). A charge sheet dated 7-2-1992 under 95 (1) (g) of the Act was served on him and he was called upon to show cause as to why he should not be removed from the office of the Pradhan, The S.D.O., after considering the material on record and the representation of the appellant, filed, in reply to the charge sheet, by a reasoned order dated 16-2-1992 held that the appellant was not guilty of the charges levelled against him and reinstated him accordingly. The respondent No. 4, who is up-Pradhan of the same village, submitted an application dated 25-3-1992 before the SDO for cancelling the aforesaid order dated 16-2-1992. The grievance of the respondent No. 4 was that the order dated 16-2-1992 was passed by Sri Baitullah Ansari, who was S.D.O., Ghazipur and, on the basis of the order of the District Magistrate, Ghazipur dated 4-2-1992, was acting as S.D.O., Mohammadabad and as such, was not competent to pass the above order under the Act. The S.D.O. after considering the respective oases of both the parties and the rulings cited by them, vide order dated 8-4-1992 held that Sri Baitullah Ansari was fully competent to pass the above order dated 16-2-1992. With that finding the representation of respondent No. 4 was rejected. Respondent No 4 again made a representation against the same order dated 16-2-1992 before the SDO, who vide order dated 18-4-1992 suspended the appellant. The appellant filed representation against the above order dated 18-4-1992 The SDO after considering the material on record, vide order dated 21-4-1992, recalled the order of suspension dared 18-4-1992 and reinstated the appellant. Against the above order dated 21-4-1992, respondent No. 4 appears to have made some representation before the District Magistrate, Ghazipur, who on 24-4-1992 suspended the aforesaid order dated 21-4-1992 for fifteen days. The District Magistrate subsequently vide order dated 26-5-1992 restored the order of the S.D.O. dated 21-4 1992, with the result the appellant was reinstated. The District Magistrate was again approached for action against the appellant, but he, vide bis order dated 8-7-1992 declared that there is no necessity for any farther inquiry. Subsequently the S.D.O. by order dated 24-10-1992 again suspended the appellant under section 95 (1) (gg) of the Act on the ground that the order dated 7-2-1992 (serving the charge sheet on the appellant) and the orders dated 16-2-1992 (of reinstatement), 18-4-1992 (of suspension of the appellant) and 21 4-1992 (cancelling the order of suspension) were not passed by a competent authority and as such, are without jurisdiction. Against the above orders the appellant filed writ petition before this Court, which has been dismissed by a learned Single Judge on 10-2-1993 on the pound that the order of suspension' is an administrative order and there is no bar against reviewing the same Hence this special appeal by the appellant.

(2.) LEARNED counsel for the appellant has made two submissions in support of the appeal, namely, (1) the S.D.O. has no power to review his earlier orders and the impugned order dated 24-10-1992 is as such, without Jurisdiction; and (II) the impugned order has been passed .without giving any opportunity of being heard to the appellant. LEARNED counsel for the respondent No. 4 has on the other hand submitted that the .earlier orders were not passed by the competent authority and as such, the S.D.O. was justified to suspend the appellant again and In his support, reliance has been placed on the decision of Full Bench of this Court in Kashi Nath Singh v. District Magistrate, 1970 RD 471.

(3.) IN fact the S.D.O. in his earlier order dated 8-4-1992 while rejecting the claim of the respondent No. 4, has expressly held that Sri Baitullab Ansari was, in view of the order' of the District Magistrate dated 4-2-1992, folly competent to work as S.D.O, Mohammadabad and to pass the order dated 16-2-1992, whereby the proceedings under section 95 of the Act against the appellant were dropped and he was reinstated Respondent No. 4, even after the order dated 8-4-1992, kept on challenging the order dated 16-2-1992 before the S.D.O. and the District Magistrate. But both the S.D.O. and the District Magistrate rejected the claim of the said respondent by their orders dated 21-4-1992 and 26-5-1992. When approached again, the District Magistrate vide his order dated 8-7-1992 held that there is no necessity for any farther INquiry against the appellant. The S.D.O. however, vide his order dated 24-10-1992 declared all the above orders as without jurisdiction and suspended the appellant again This order of the S.D.O. Is absolutely without jurisdiction for atleast four reasons, namely, (i) Sri Baitullah Ansari, as held above, was fully competent to pass the order dated 16-2-1992, holding the appellant as not guilty of the charges levelled against him under section 93 (1) (g) of the Act, (ii) as the Act does not confer the power of review on the S.D.O, he has no power to review the orders passed under section 95 (1) (g) of the Act. The order dated 16-2-1992, holding the appellant as not guilty of the charges levelled against him, was an order under section 95 (1) (g) of the Act. The power under section 95 (1) (g) of the Act is a quasi judicial in nature and order passed thereunder cannot be reviewed unless the Act has conferred such a power, (iii) the Impugned order was passed without giving any opportunity of being beard to the appellant, who was a person directly affected by that order. INasmuch as the earlier orders, which have been reviewed, were in his favour, and (iv) when the District Magistrate has himself, vide his order dated 8-7-1992, directed the closure of all INquiry against the appellant and the S.D.O. himself has passed a reasoned order on 8-4-1992, holding that Sri Baitullah Ansari was competent to pass order under section 95, It was not open to the S.D.O. to take action again against the appellant on the same charges by setting aside all the earlier orders Such an act on the part of the S.D.O was highly improper, apart from being illegal The position would have been different, if any new material had come to the notice of the S.D.O. on the basis of which he could have initiated fresh proceedings against the appellant by Issuing a fresh charge sheet But that was not the case. The S.D.O. acted arbitrarily and without any authority of law when he set aside all the earlier orders without even notice to the appellant. Such and action was absolutely unwarranted under the law and cannot be sustained.