Sudhir Agarwal, J. - (1.) THE writ petition is directed against the order dated 19th August, 2011 passed by District Magistrate Auraiya seizing administrative and financial powers of the petitioner who was elected as Gram Pradhan of Gram Panchayat Jamauli, Development Area Bhgyanagar, District Auraiya in purported exercise of power under Section 95(3)(g) of U.P. Panchayat Raj Act, 1947.
(2.) IT is contended that District Magistrate before passing the order impugned in the writ petition did not issue any show cause notice to the petitioner and has not followed the principles of natural justice. Reliance is placed on a Full Bench decision in Hafiz Ataullah Ansari Vs. State of U.P. & Ors. : 2011 (2) UPLBEC 889 and in paras 104 and 105 of the judgment the Court observed: 104. The cessation of exercise of financial and administrative power is a step in finalization of removal proceedings but this does not mean that principles of natural justice would not apply. Depending on the circumstances, the order in a step to finalization of a proceedings may also attract principles of natural justice. The principles of natural justice apply at interim stage too; it depends on the consequences. 105. Section 142(2A) of the Income Tax Act, 1961 (the Income Tax Act) empowers an assessing officer to order a special audit under specified conditions. The order of special audit is a step in the assessment proceeding. A question arose whether the assesses should be heard before passing the order or not. Yet the Supreme Court in Rajesh Kumar Vs. Dy C.I.T.:, : 2007 (2) SCC 181 (The Rajesh Kumar case) held that opportunity should be given. Discussing the issue further the Court in paras 123 to 128 said: 123. The reason to deprive the heads of the local bodies from exercising financial and administrative function is that they used to delay the proceeding and abuse the powers during the inquiry. This may be correct. The facts in the present case may not negate the general trend as stated in the aforesaid object and reason. 124. Considering the object and reason, there is no justification to involve the heads of the local bodies at every step of collection of material or in the preliminary enquiry. The principles of natural justice or the yardstick of fairness would be met if the explanation of the effected head of the local body or his point of view or version is considered before recording the satisfaction or finding of prima facie guilt before issuing notice and passing order for ceasing financial and administrative powers. 125. Affording opportunity to submit explanation of the head or considering it, is not to be as detailed as in the regular inquiry or to the extent of permitting cross -examination of any witness, who might be examined in the preliminary enquiry. It is in the sense of getting his point of view or version to the charges before being so satisfied. But what is the point in affording the opportunity if the explanation is not considered. It has to be considered too: there has to be application of mind. 126. In our opinion, getting explanation or point of view or version of a head of a local body regarding charges and considering them before issuing show cause notice under relevant provisos, not only strikes at the arbitrary exercise of power but brings about fairness in the procedure; in the circumstances, it is also sufficient compliance of the principles of natural justice. 127. However, it will depend from case to case, whether the opportunity to submit explanation or point of view or version has been given in a particular case or not: this will depend on the facts of each case. We would like to explain it, with reference to the facts of this case. 128. In the present case, there is only one charge. The SDM had asked the president to submit his explanation to it. In this case, the requirement of getting explanation of the petitioner has been met. The impugned notice/ order cannot be invalidated on this ground. However, we wish to clarify that we have not examined the question the petitioner's explanation was considered or not.
(3.) THE Court found that a show cause notice issued by Sub Divisional Officer who conducted further enquiry in the matter and reply submitted by the petitioner to him is considered by District Magistrate. That would satisfy the requirement of principles of natural justice and the notice/order seizing financial and administrative powers cannot be invalidated in such a case merely on the ground of violation of principles of natural justice.;