- (1.) S.Rafat Alam, Vikram Nath-This is intra court appeal, under the rules of the court arising from the judgment of the Hon'ble single Judge of this Court dated 7.4.2008 dismissing the petitioner-appellant's Civil Misc. Writ Petition No. 17785 of 2008 for quashing the order of the District Magistrate, Kushinagar dated 30.3.2008 whereby the financial and administrative power of the appellant has been suspended under the proviso to Section 95 (1) (g) of the U. P. Panchayat Raj Act, 1947 (for short the Act).
(2.) WE have heard learned counsel for the appellant and Sri O. N. Rai, learned standing counsel for the State-respondents and also perused the record. It appears that a proceeding under Section 95 (1) (g) of the Act is initiated against the petitioner-appellant. It further appears that the District Magistrate being satisfied with the report of the preliminary enquiry showing prima facie involvement of the petitioner-appellant in the alleged financial and other irregularities, withdrew the financial and administrative power of the appellant in exercise of the power conferred under the first proviso to Section 95 (1) (g) of the Act. The aggrieved appellant preferred the aforesaid writ petition, which has been dismissed by the Hon'ble single Judge of this Court, mainly on the ground that at this stage the defence of the petitioner-appellant and sufficiency or insufficiency of the evidence in support of the allegations cannot be looked into as the formal enquiry is yet to be concluded and the order to suspend the financial and administrative power is as an interim measure pending formal enquiry. Learned counsel for the petitioner, however, contended that the appellant was not given sufficient opportunity to submit effective reply to the charges nor the copy of the enquiry report was provided, hence the impugned order withdrawing the financial, administrative power deserves to be set aside.
(3.) IN our view, there is no substance in the submission. The order impugned in the writ petition is passed under first proviso of Section 95 (1) (g) of the Act, which empowers the State Government to withdraw financial and administrative powers and function of Pradhan or Up. Pradhan, who is prima facie found to have committed financial and other irregularities until he is exonerated of the charges in the final enquiry and till then such power shall be exercised by a Committee consisting of three members of Gram Panchayat. For ready reference Section 95 (1) (g) of the Act is extracted hereinafter : "Section 95 (1)-The State Government may- (a) (b) (c) (d) (e) (f) (g) Remove a Pradhan, Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he- (i) Absents himself without sufficient cause for more than three consecutive meetings or sittings, (ii) Refuses 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 the Act or Rules made thereunder or his continuance as such is not desirable in public interest, or 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 Backwards 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 disqualifications 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." Thus, where a proceeding for removal of a Pradhan or Up-Pradhan or a Member of a Gram Panchayat is undertaken and the matter is being enquired under Section 95 (1) (g) of the Act, the State Government, if satisfied that the Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities, can cease the financial and administrative powers and functions, till he is exonerated of the charges in the final enquiry in the manner prescribed.;