Tarun Agarwala - (1.) -Heard Sri K. Sahi, the learned counsel for the petitioner and Sri G. K. Singh, the learned counsel for the petitioner in the connected writ petition and Sri Ghanshyamji Dwivedi, the learned standing counsel for the respondents.
(2.) THE short question which arises for consideration in the present writ petition is whether the authority is required to give a show cause notice and an opportunity of hearing to the elected Pradhan before ceasing the financial and administrative powers under the proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act, 1947. THEre is a divergence of opinion through various judgments of this Court. THE Court, in the case of Smt. Sandhya Gupta v. District Magistrate, Auriaya and others, 1999 (90) RD 246, has held that an opportunity is required to be given to the Pradhan under the proviso to Section 95 (1) (g) of the Act before ceasing the financial and administrative powers. Similar view has been given in Chandrajit Raj Bhar v. District Magistrate, Pilibhit and others, 2002 (93) RD 139 : 2002 (1) AWC 674 ; Malti Devi v. State of U. P. and others, 2008 (1) UPLBEC 920 : 2008 (2) AWC 1837, Mohd. Ahsan v. State of U. P. and others, 2008 (7) ADJ 483 and Smt. Prabha Dixit v. State of U. P. and others, 2008 (7) ADJ 171. On the other hand, the Court has held in the case of Radha Krishna Sharma v. State of U. P. and others, 1996 AWC 1601, that no opportunity is required to be given to the Pradhan before ceasing the financial and administrative powers and that full opportunity would be given under the second proviso when a formal inquiry is being made against the Pradhan for his removal. Similar view has been held by the Court in the cases of Smt. Radhili Devi v. District Magistrate, Padrauna and others, 1997 (1) AWC 251, Moti Lal v. District Magistrate, Lalitpur and others, 2003 (1) UPLBEC 736 : 2003 (5) AWC 3849 ; Chandra Pal Singh v. State of U. P. and others, 2008 (3) ADJ 687 : 2008 (2) AWC 1923 ; Sangeeta Devi v. State of U. P. and others, 2008 (6) ADJ 517 : 2008 (3) AWC 3149 ; Bitana v. Collector, Sitapur and others, 2004 (2) AWC 1023 and Satish Chandra Tripathi v. State of U. P. and others, 2004 (1) AWC 399. Under the U. P. Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961, similar provision exists for the removal of the Adhyaksha. A Division Bench in the case of Smt. Chinta Yadav v. State of U. P. and others, 2008 (4) ADJ 349, has held that an opportunity is required to be given to the Adhyaksha not only during the course of the preliminary enquiry but even before ceasing the financial and administrative powers. On the other hand, there are two decisions of a Divisional Bench of the Court under the said Act, holding that no opportunity is required to be given, namely, in the case of State of U. P. and others v. Smt. Meera Sankhwar and others, 2004 (3) UPLBEC 2179 : 2004 (4) AWC 3162 and Mukesh Rajput v. State of U. P. and others, 2003 (4) ESC 1943 : 2003 (4) AWC 3289.
(3.) THE provisions of Section 95 (1) (g) of the U. P. Panchayat Raj Act and Section 29 of the U. P. Kshettra and Zila Panchayat Adhiniyam are analogous. For facility, the said provisions are quoted hereinbelow :- "29. (1) If in the opinion of the State Government the Adhyaksha or the Upadhyaksha while acting in place of Adhyaksha wilfully omits or refuses to perform his duties or function under this Act or abuses the powers vested in him or is found to be guilty of misconduct in the discharge of his duties, [or because physically or mentally incapacitated for performing his duties] the State Government, after giving the Adhyaksha or Upadhyaksha, as the case may be, a reasonable opportunity for explanation may by order remove him from office (and such order shall be final and not open to be questioned in a court of law] : [Provided that where in an enquiry held by such person and in such manner as may be prescribed, an Adhyaksha or Upadhyaksha is prima facie found to have committed financial and other irregularities such Adhyaksha or Upadhyaksha shall cease to exercise and perform the financial and administrative powers and functions which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a committee consisting of three elected members of the Zila Panchayat appointed in this behalf by the State Government]. (2) [ ] (3) An Adhyaksha or Upadhyaksha, removed from his office under this Section, shall not be eligible for election as Adhyaksha or Upadhyaksha for a period of three years from the date of his removal." Section 95 (1) (g) and the proviso thereto reads as under : "95 (1) (g). Remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee of Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he- (i) absents himself without sufficient cause from more than three consecutive meetings of sittings, (ii) refused to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude. (iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable in public interest, or (iii-a) has taken the benefit of reservation under sub-section (2) of Section 11A or sub-section (5) of Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of the scheduled castes, the scheduled tribes or the backward classes, as the case may be, (iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or (v) suffers from any of the disqualification mentioned in Clauses (a) to (m) of Section 5A : [Provided that where in an enquiry held by such person and in such manner as may be prescribed a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities, such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry be exercised and performed by a committee consisting of three members of Gram Panchayat appointed by the State Government] : Provided that- (in) no action shall be taken under Clause (f), Clause (g) except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed;" From a perusal of the aforesaid, it is clear that the provisions are analogous. Consequently, in order to reconcile the position on the issue in question and to set the matter at rest, this Court is of the opinion, that the matter is required to be adjudicated and decided by a larger Bench. There are judgments for and against given by single Judge of this Court as well as by a Division Bench. Since there is a conflict in the decisions of the Court and in view of the provisions of Chapter-V, Rule 6 of the Rules of the Court, this Court directs the Registry to place these papers before the Hon'ble the Chief Justice for constitution of a larger Bench to decide the issue, namely, whether the authority is required to give a show cause notice and an opportunity of hearing to the Pradhan while passing an order ceasing the financial and administrative powers of the Pradhan under the proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act.;