SUB-DIVISIONAL OFFICER, SADAR, FAIZABAD versus SHAMBHOO NARAIN SINGH

SUB·DIVISIONAL OFFICER, SADAR, FAIZABAD

SHAMBHOO NARAIN SINGH

March 31, 1969

[S. M. SIKRI, R. S. BACHAWAT AND K. S. HEGDE, JJ.]

U.P. Panchayat Raj Act 1947, s. 95(i)(g)-Pradhan of Gaon Sabha-Suspension, pending enquiry, power-Up~pradhan to officiate as Pradhan during suspension--IJ can be ordered-Pradhan·~ relationship lvith Gov-ernmena.

The respondent was elected as Pradhan of Goan Sabha in Uttar Pradesh. The appellant-government by an order suspended the respon-dent, and pending enquiry, directed the respondent to give charge to the up..pradhan. The respondent filed writ petition ·in the High Court chlJ. lengin11 the order. The High Court dismissed the petition but in appeal, the High Court quashed the order holding that s. 95(i) (g) of the U.P. Panchayat Raj Act. 1947 did not empower the Government lo p ... the impuped order. In appeal by special leave, this Court affirmin1 the decision of the appellate bench of the High Court,

HELD : Where an Act confers jurisdiction it impliedly also arants the power of doing all such acts, or employing such means as are eaential. ly necenary to its execution. But before implying the existence of such power the court must be satislied that the existence of that power is abso-lutely essentfal for the discharge of the power conferred and not merely that it is convenient to have such power. The power to place Wider suspension an officer is not absolutely essential for the proper exercise of the power conferred under s. 95 (i) (g). It cannot be said that the power in question cannot be properly exercised without the, power to su!Pend pending enquiry. The mere possibility of interference with the course of en-quiry or of further misuse of powers are not sufficient to enlarge the scope of statutory power. If it is otherwise, the mere power to punish an offender woulct have been held sufficient to arrest and detain him pend· ing enquiry and trial There would have been no ne<d to confer specific power to arrest and detain persons charged with offences before their conviction. Further no provision either in the Act or in the rules framed thereunder has been shown under which the Government could have directed the up-Pradhan to officiate as Pradhan during the suspension of the respondent. If the order could not have been made, as it could not be made, then the question arises as tQ who could discharge the functions or Pra~han when he is placed under suspension pending enquif'y of the charges levelled against him. Absence of provision providing for such contingency is !l clear indication of the absence of the power contended for. (154 F-155 DJ

Babu Nandan v. Sub Divisional Officer Sclempur, A.LR. 1966 All, 1958, approved.

Pradhan cannot be considered as servant of Government. HC is an elected representative. There is no contractual relationship between him and the Government much less the relationship of master and servant (154 A-BJ

Management of Hotel Imperial, New Delhi v. Hotel Workers' Union, [1960] I S.C.R. 476; T. Caiee v. U. !ormanik Siem, [19611 1 S.C.R. 750; R. P,, KGpur v. Union of India [1964] 5 S.C.R. 431 and Ba/want Rai Rati-lal Paul v. State of Maharashtra, [1968] 2 S.C.R. 577, held inapplicable.

The Goan Sabha is the creature of statute. Its powers and dutiea as well as the powers and duties of its officers arc all regulated by the Act. Hence no question of any inherent power arises for consideration..

Smt. Wra Devi cl Ors. v. Diltrlct Boord, Shahjalumpur, [1952) S.C.R. 1122, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appe11l No. 721 of 1966. .

Appeal by special leave from the judgment and order dated

December 9, 1964 of the Allahabad High Court, Lucknow Bench in Special Appeal No. 93 of 1963.

C. B. Agarwala 3111d O. P. Rana, Cor the appellant.

S. C. Agarwal, R: K. Garg, D. P. Singh and S. Chakravarty,

for the respondent.

The Judgment of the Court was delivered by

Hedge J. Io this appeal by special leave, the scope of a. 95 ( 1 )(g) of the U.P. Panchayat Raj Act, 1947 (to be hereinafter nierrcd to as the Act) arises for decision.

The facts material for the purpose of deciding this appeal are these : The respondent was the elected Pradhan of the Gaoo Sabha of Asapur District Faizabad. The Sub-Divisional Officer, Sadar, Faizabad placed him under suspension as per his Jrder of September 18, 1963. The order in question reads as follows:

"Sri Shambhoo Narain Singh, Pradhan of Gram Sabha and Chairman Land Management Committee of village Asapur is placed under suspensiqn with effect from the immediate date. lie is further directed to hand over the charge to the Up-Pradhan of Gram Sabha, Asapur. The Up-Pradhan will function as Pradhan till further orders. The charge sheet against Sri Shambhoo Narain Singh will follow. Sd/- S. M. Abbas, P.C.S.

Sub-Divisional Officer, Sadar, Faizabad.tt

The validity of this order is being challenged in these pro-ceedings. It is the common case of both the parties that the suspension ordered thereunder is merely suspension pending enquiry and is not punishment imposed under s. 95(1)(g). '!'he question for decision is whether the appellant had the competence . to place the respondent under suspension pending enquiry into the charges levelled against the respondent. The impugned order was challenged before single judge of the Allahabad

High Court by meil\llS of petition under Art. 226 of the Consti· tuuon. The leamed single judge dismissed that petition but in appeal the appellate bench upheld the contention of the respon· dent and quashed the same holding that s. 95(1) (g) did not empower the appellant to pass the impugned order. It is the correctness of that conclusion that is in issue in this appeal .

• To repeat, the respondent is an elected Pradhan. His fi&hts -and duties are regulated by the Act. He is not government servant though he has to be deemed as public servant within the meaning of s. 21 of the Indian Penal Code ijll view of s. 28 of the Act. He is not subordinate of the Sub-Divisional Offi.cer or even of the Gowmment. It is true that the Act has conferred· on the State Government certain powers of control ~ supervision over the Gaon Sabhas and its office-bearers. These powers are enumerated ins. 95. Under s. 95(1) (g), power is conferred on the Government to suspend or remove member of Goan Panchayat or joiiut committee (or Bhumi Prabandhak Samiti) an office-bearer of Gaon Sllbha or Panch, Sahayak Sarpanch or p Sarpanch of Nyaya Panchayat if the conditions mentioned therein are satisfied. But that power is admittedly power to punish. No specific power to suspend Pradhan pending enquiry :\lltO the .charges levelled against rum has been conferred on the State Government, This much is conceded. In view of s. 96A the· power conferred on the Government under s. 9 5 can be delegated to any officer or authority subordinate to it subject to such coD,ditions and restrictions as the Governmqnt may deem fit to impose. The State Government's power under s. 95 ( 1 )(g) has been delegated to Sub-Divisional Officers. Therefore if the State Government is held to have power to suspen4. an office· bearer of Gaon Sabha pending e,nquiry into the i:harges levelled against him that power must be held to have been delegated to the Sub-Divisional Officers. Therefore the essential question is whether the State Government has power to make the impugned order. faint attempt was made/ to ~w that the relationship between the ~tate Government and the Pradhans is that Of master and servants and that being so the State GoveIPllllent has com-G petence to require Pradhans not to discharge their.· functions as Pradhans during the pendency of an enquiry into the charges made against tbem. It was urged that if the court is plea.Sed to hold that the relationship between the State Government and the Pradhans. is that of master and the servants then the appellant could call into aid the rule laid down by this Court in Manage. I ment of Hotel Imperial, New Delhi v. Hotel Workers' Union;(') T. Cafee v. U. Jormanfk Siem;(') R. P. Kapur v. Union o1 (1) (19601) I S.C.R. 47ff. . (2) [1961) I S,C.R. ''°· Lil SupCI/69-11 / /

Lil SupCI/69-11

'India('); and Balwam Rai Ratilal Patel v. Stale of Ma/uuash-tra('). This is wholly untenable contention. Pradhan cannot be considered as servant of the Government. He is an elected representative. There is no contractual relationship between him and the Government much less the relationship of master and servant. As mentioned earlier his rights and duties are those laid down in the Act. Therefore the rule laid down in the above cited decisions is wholly inapplicable to the facts of this case. In this case there is no question of suspending servant from performing the duties of his office even though the contract of service is subsisting. In the case of master and his servant it is well established right of the master to give directions to his servant relating to his duties. That power includes within itself the right to direct the servant to refrain from performing his duties but that docs :not absolve the liability of the master to pay the remuneration contracted to be paid to the servant unless other-wise provided in the contract, even during the period the servant is required not to perform his duties.

The Goan Sabha is the creature of statute. Its powers and duties as well as the powers and duties of its officers are all regulated by the Act. Hence no question of any inherent power arises for consideration-see Sm. Hira Devi and Ors. v. District Board, Shahjahanpur(').

The only other contention advanced is that power claimed should be held to be an essential power for the proper discharge of the conferred power. It was urged that without such power, char~es framed against any office-bearer cannot be properly i.nqwred into as he may utilise his office to interfere with the course of enquiry and the possibility of bis continuing to misuse his office during the pendency of the enquiry cannot be ruled out.

It is well recognised that where an Act confers jurisdiction, it impliedly also grants the power of doiing all such acts, or employing such means as are essentially necessary to its execu-tion. But before implying the existence of such power the court must be satisfied that the existence that pow~r is absolutely essential for the discharge of the power conferred and not merely that it is convenient to have such power. We are not satiified that the power to place under suspeDSion an officer is absolutely essential for the proper exercise of the power conferred under s. 95 (1 )(g). It cannot be said that the power in question cannot be properly exercised without the power to suspend pending enquiry. The mere possibility of interference with the course Of enquiry or of funher misuse of powers are not ~ufficient to enlarge the scope of statutory power. If it is otherwise the mere power to punish (t)[t9641 S S.C.R. 431. (2) 119681 2 S.C.R. S.C.R. sn.

(2) 119681 2 S.C.R. S.C.R. sn. (l) [t9S21 &.C.R. 1122.

an offender would have been held sufficient to arrest and detain him pending enquiry and trial. There would have been no need to ·conter specific power to arrest and detain persons charged with offeDCea before their conviction.

The unsustaiinability of the contention of the appellant would become obvious on an examination of the various provisions of the Act. Under the impugned order, the appellant had directed the up-Pradhan to officiate as Pradhan during the suspension of the respondent. Our attention has not been invited to any pro-vision either in the Act or in the rules framed thereunder under which the appellant could have made such an order. If he could not have made that order, as in our cp);nion he could not have, then the question arises as to who ·could discharge the functions of Pradhan when he is placed under suspension pending enquiry of the charges levelled against 'him. Absence of provision pro-viding for such contingency is clear indication of the absence of the power contended for.

For the reasons mentioned above, we agree with the appellate bench of the High Court that the impugned order was made with-.out the authority of law. That is also the view taken by the Allahabad High Court in Babu Nandan v. Sub Divisional Officer SalemP,ur('). We accordingly dismiss this appeal with costs.

Appeal dismissed.