SUNEET KUMAR,J. - (1.) A Division Bench of this Court in ( Shamim vs. State of U.P . through Secretary1) finding itself unable to accept the law laid down by the co-ordinate Bench in Smt. Sonia Versus State of U.P.2, referred for "authoritative pronouncement by a larger Bench", the following questions for determination:- "(i) As to whether the District Magistrate at the point of time when he proceeds to cease the administrative and financial authority of the Pradhan, he acts as a Tribunal or acts as an administrative authority. (ii) The view as expressed in the case of Smt. Sonia (supra) that under the scheme of things provided for under the U.P. Panchayat Raj Act, 1947, the District Magistrate exercising delegated authority of State Government acts as Tribunal is a correct view or District Magistrate exercises administrative authority, while exercising authority under Section 95(1)(g) of U.P. Panchayat Raj Act, 1947." Since the decision rendered by the Division Bench in Sonia has been doubted, the reference comes before this Bench of three Judges.
(2.) The issue which falls for determination turns upon the provision of Section 95 of U.P. Panchayat Raj Act, 19473. Clause (g) of sub-section (1) of Section 95 deals with removal of Pradhan of a Gram Panchayat and is in the following terms:- 95. Inspection - (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 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 11-A or sub-section (5) or Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of 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 (vi) suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5-A: Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan is prima facie found to have committed financial and other irregularities such 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 - (i) 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; (ii)..... (2) A person under sub-clause (iii) and (iv) of clause (g) of sub-section (1) of this section shall not be entitled to be re-elected or re-appointed to any office under this Act for a period of five years or such lesser period as the State Government may order in any case. (3) No order made by the State Government under this section shall be called in question in any Court. (4) Where any [Gram Panchayat]4, Joint Committee or Bhumi Prabandhak Samiti is [dissolved]5 the State Government may appoint such person or persons to exercise and perform the powers and duties thereof as it may deem fit. Section 95 of the Panchayat Raj Act is in Chapter VII. It is titled as 'External Control'. Section 95 is titled 'Inspection'. Section 95(1) (g) of the Panchayat Raj Act provides for removal of a Pradhan.
(3.) The main enactment is Section 95(1)(g), it provides for removal and not cessation of financial and administrative power, which is provided in its proviso. Two provisos qualify the main provision namely removal proceedings and not each other. These two proviso operate in different fields: (i). proviso to Section 95(1) provides reasonable opportunity in the removal proceedings ; (ii). proviso to Section 95(1) (g) provides cessation of financial and administrative powers during removal proceeding. ;