M. K. Mukherjee, C.J. - (1.) BY an order dated January 25, 1992, the Sub- Divisional Magistrate, Lalganj, District Azamgarh (hereinafter referred to as the Magistrate') suspended the appellant herein from the office of the Pradhan of Chandewra Gaon Sabha on the allegation that he had misappropriated a sum of Rs. 36,119,75, which was entrusted to him for Jawahar Rojgar Yojana (Yojana, for short). Aggrieved thereby, he filed a writ petition, which was summarily dismissed by a learned Judge of this Court Hence this Special Appeal at his instance.
(2.) IN assailing the order of suspension, Mr V. C. Misra, the learned counsel appearing for the appellant, first contended that the U P. Panchayat Raj Act, 1947 ('Act, for short), by which the functioning of the appellant as the Pradhan was governed, did not cast any duty upon him to deal with the funds of the Yojana, and, therefore, the Magistrate had no power to suspend him for the alleged misappropriation of the funds thereof. He next contended that even if it was assumed that the allegation of misappropriation was true, the appellant could at best be; prosecuted under the INdian Penal Code, but no disciplinary action under the Act could be taken against him. The third submission of Mr Misra was that as the impugned order of suspension did not record any satisfaction of the Magistrate that the grounds, on which action was proposed under section 95 (1) (g) of the Act, existed, it was void ab initio in view of the second proviso to section 95 (1) (gg) of the Act. He next submitted that the contents of the impugned order clearly disclosed a dosed mind of the Magistrate and, therefore, any inquiry pursuant thereto would be an empty formality.. He lastly submitted that before passing the impugned order of suspension, the appellant should have been given a notice to show cause against the same. All the above contentions of Mr. Misra were seriously contested try the learned Standing Counsel. To appreciate the contentions [raised by Mr. Misra, it will be necessary at this stage to set out section 95 of the Act, so far as it is relevant for our purposes :- "95. Inspection-(1) The State Government may - (a)........ ........ (b) ................. (c) ........ ......... (d) ................. (e) ........ ........ (f) ........ ......... (g) remove a member of Nyaya Panchyat or a joint Committee or Bhumi Prabandhak Samiti, an office-bearer of a Gaon Sabha or a panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he - (i) .......... (ii) .......... (iii) has abused his position as such or has persistently failed to perform the duties imposed by the Act or rules made thereunder or his continuance as such is not desirable in public interest, or (iv) .......... (v) .......... (gg) suspend a Pradhan or Up Pradhan or a member of Gaon Panchayat or Joint Committee or Bhumi Prabandhak Samiti or a panch, sarpanch or sahavak sarpanch of a Nyaya Panchayat against whom proceedings under clause (h) are contemplated or against whom prosecution for an offence, which in the opinion of the State Government involves moral turpitude, is pending : Provided that :- (i) no action shall be taken under clause (f) clause (g) or clause (h) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed : (ii) no action shall be taken under clause (gg) on the ground that proceedings under clause (h) are pending or contemplated unless the State Government is prima facie satisfied that the grounds on which action is proposed under that clause exist." To bring home his first contention, Mr. Misra argued, relying upon clause (g) (iii) above, that persistent failure on the part of the appellant to perform his duties imposed by the Act or the rules made thereunder might entitle a Magistrate to take steps for his removal and, for that matter, his suspension, but then, alleged dealing with the funds of the Yojana being no part of his duties under the Act, for breach thereof recourse to section 95 could not be had for removal or suspension of the appellant.
(3.) A plain reading of clause (g) (iii) shows that in any of the fact situations envisaged therein, namely, (i) abusing the position as pradhan, (ii) presistent failure to perfrom the duties imposed by the Act or the rules made there under and (iii) his continuance as Pradhan being undsirable in public interest, proceeding for removal can be initiated. As the allegation shows, the appellant as the Pradhan of the Gaon Sabha was entrusted with the money of the Yojana, and if the allegation is true he has, by misappropriating the money, abused his position qua pradhan. The case, therefore, squarely falls under the first part of sub clause (iii) of clause (g) of section 95 (1) of the Act. The first contention of Mr. Misra, therefore, fails. Coming to the second contention of Mr. Misra, we find from clause (gg) above that a Pradhan, against whom proceedings under clause (g) are pending or contemplated or against whom prosecution for an offence, which, in the opinion of the State Government involves moral turpitude, is pending, may be suspended. Therefore, even if no prosecution is launched against a pradhan, he can still be suspended, provided a proceeding under clause (g) is pending or contemplated against him. It cannot be said, therefore, that merely because no prosecution has been launched against the appellant under the Indian Penal Code, he cannot be proceeded against under section 95 of the Act. This contention of Mr. Misra, therefore, also fails.;