N. L. Ganguly, J. - (1.) THE aforesaid three petitioners by way of separate writ petitions under Article 226 of the Constitution of India have challenged the orders of the Sub-Divisional Officer concerned passed against each of them under section 95 (1) (g) and 95 (1) (gg) of the Panchayat Raj Act (the Act, in brief,) respectively, suspending all of them from functioning as the Pradhan of the Gaon Sabha concerned. In the first two petitions the order is of removal under section 95 (1) (g) and the last one is one of passing of order under section 95 (1) (gg) of the Act. Sri S. A. Jilani for Nafis Khan, Sri H. S. M. Tripathi for the petitioner in the Second petition Niyaz Ahmad. Sri Amar Nath Tripathi, for the petitioner Bhola Nath Yadav in the third petition, have appeared for their respective petitioner. Since the petitioners are all Pradhans of the Gaon Sabha concerned and the other facts and arguments on behalf of the petitioners are almost the same, all the aforesaid three writ petitions have been heard at the same time and is now being disposed by this common judgment, discussing the first petition of Nafis Khan as the leading case.
(2.) NAFIS Khan is an elected Pradhan. Certain complaints and reports were levelled against him before the S.D.O. concerned. Show cause notice was issued listing the charges made against him. The petitioner replied to the same. The allegation briefly against the petitioner was that he misused the amount entrusted to him for the Jawahar Rojgar Yojna and had entered fictitious entries about the expenditure regarding the said scheme. The S D O. had received report from the Assistant Engineer about the said allegations against the petitioner. The second allegation against the petitioner is of preparing of incorrect and fictitious muster roll for the payment of wages to various labourers and workmen. It was also charged that the petitioner had shown payment of wages in respect of certain persons twice and had made wrong entry in the record. The Tehsildar concerned had submitted the said report after investigation. The voluntary service rendered by the villagers in the scheme had allegedly been shown to have been done by the workmen which were falsely shown to have been paid therefor. The S.D.O. after issuing show cause notice on the said allegation and after giving due opportunity to reply the same to which the petitioner duly replied, and considering the reply and the facts and reports against the petitioner, and being satisfied that the petitioner had prima facie misused his office and abused his position, removed the petitioner by his order dated 26-2-1992 under section 95 (1) (g) of the Act., The petitioner has admittedly without approaching the learned Commissioner of the division concerned by filing a revision against the impugned order has approached this Court under Article 226 of the Constitution. The petitioner contends that the S.DO. concerned has erred in law in not issuing a second show cause notice before passing the removal order under section 95 (1) (g) of the Act. He replies on decision in Jangali Singh v. S.D.O. Bhogaon, district Mainpuri, 1977 AER Summary of Cases No. 79 at page no. 74, in which the Division Bench of this court was pleased to allow the petition on the ground that the petitioner was not given a second show cause notice before his removal. The petitioner also pointed out that the original Act had not contemplated the revision or appeal under the Act and that the provisions of section 95 of the Act is to be enforced by the State Government as is clear from the language of the section itself. This argument that the powers for delegation of right for appeal or revision cannot be provided by any other authority than the legislature specifically. The learned counsel for the petitioner further submitted that the notification published in the U. P. Gazette vide Panchayati Raj Vibhag Notification 1171-B-XXXII-2 - 16-G-66 dated the 30th October, 1967, published in the U. P. Gazette (Part I), dated November, 11, 1957, page 4100, delegated powers under section 95 (1) (g) of the Act to the Sub-Divisional Officers and the orders of removal was made subject to the revision and appeal before the Commissioner of the Division. The learned counsel for the petitioner Sri S. A. Jilani argued the case at length and cited number of cases which I shall consider at a later stage.
(3.) ADMITTEDLY, the petitioner had not filed any revision against the impugned order of the S.DO. before the Commissioner, as stated aforesaid. Learned standing counsel submitted that since the petitioner has not filed any revision and thus has not availed the alternative remedy before coming to this Court, the present writ petition is not maintainable on this ground alone. In Matloob Ahmad v. Sub Divisional Officer, Najibabad, Bijnor. 1987 ALR (Summary of Castes No. 76) at page 54=1986 AWC 1175, the Division Bench of this Court was pleased to dismiss the writ petition on the ground of non-filing of the revision before the Divisional Commissioner and thus without exhausting the alternative remedy the petition was not maintainable.;