Full Judgment Text
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PETITIONER:
SUB-DIVISIONAL OFFICER, SADAR, FAIZABAD
Vs.
RESPONDENT:
SHAMBHOO NARAIN SINGH
DATE OF JUDGMENT:
31/03/1969
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
SIKRI, S.M.
BACHAWAT, R.S.
CITATION:
1970 AIR 140 1970 SCR (1) 151
1969 SCC (1) 825
ACT:
U.P. Panchayat Rai Act 1947, s. 95 (1) (g) -Pradhan of Gaon
Sabha Suspension, pending enquiry, power-Up-pradhan to
officiate as Pradhan during suspension-If can be ordered-
Pradhan’s relationship with Government.
HEADNOTE:
The respondent was elected as Pradhan of a Goan Sabha in
Uttar Pradesh. The appellant-government by an order
suspended the respondent, and pending enquiry, directed the
respondent to give charge to the up-pradhan. The respondent
filed a writ petition in the High Court challenging the
order. The High Court dismissed the petition but in appeal,
the High Court quashed the order holding that s. 95(1)(g) of
the U.P. Panehayat Raj Act, 1947 did not empower the
Government to pass the impugned order. In appeal by special
leave, this Court affirming the decision of the appellate
bench of the High Court,
HELD : Where an Act confers a jurisdiction it impliedly also
grants the power of doing all such acts, or employing such
means as are essentially necessary to its execution. But
before implying the existence of such a power the court must
be satisfied that the existence of that power is absolutely
essential for the discharge of the power conferred and not
merely that it is convenient to have such a power. The
power to place under suspension an officer is not 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 further misuse
of powers are not sufficient to enlarge the scope of a
statutory power. If it is otherwise, the mere power to
punish an offender would have been held sufficient to arrest
and detain him pending enquiry and trial. There would have
been no need 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
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during the Suspension of the respondent. If the order could
not have been made, is it could not be made, then the
question arises as to_who could discharge the functions or
Pradhan when he is placed under suspension pending enquiry
of the charges levelled against him. Absence of a provision
providing for such a contingency is a clear indication of
the absence of the power contended for. [154 F-155 D]
Babu Nandan v. Sub Divisional Officer Salempur A.I.R 1966
All 1958, approved.
A Pradhan cannot be considered is a servant of Government.
He is an elected representative. There is no contractual
relationship between him and the Government much less the
relationship of master and servant [154 A-B]
Management of Hotel Imperial, New Delhi v. Hotel Workers’
Union, [1960] 1 S.C.R. 476; T. Cajee v. U. Jormanik Siem,
[1961] 1 S.C.R. 750; R. P. Kapur v. Union of India [1964] 5
S.C.R. 431 and Balwant Rai Ratilal Patel v. State of
Maharashtra, [1968] 2 S.C.R. 577, held inapplicable.
152
The Goan Sabha is the creature of a 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.
Smt. Hira Devi & Ors. v. District Board, Shahjahanpur,
[1952] S.C.R. 1122, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal 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 and O. P. Rana, for 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. In this appeal by special leave, the scope of s. 95
(1) (g) of the U.P. Panchavat Rai Act, 1947 (to be
hereinafter referred 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
Gaon Sabha of Asapur District Faizabad. The Sub-Divisional
Officer, Sadar, Faizabad placed him under suspension as per
his order 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 suspension
with effect from the immediate date. He 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."
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 a suspension
pending enquiry land is not a punishment imposed under s. 95
(1) (g). The question for decision is whether the appellant
had the competence to place the respondent under suspension
pending enquiry into the charges levelled against the
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respondent. The impugned order was challenged before a
single judge of the Allahabad
153
High Court by means of a petition under Art. 226 of the
Constitution. The learned single judge dismissed that
petition but in appeal the appellate bench upheld the
contention of the, respondent 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 rights
-and duties are regulated by the Act. He is not a
government servant though he has to be deemed as a public
servant within the meaning of s. 21 of the Indian Penal Code
in view of s. 28 of the Act. He is not a subordinate of the
Sub-Divisional Officer or even of the Government. It is
true that the Act has conferred on the State Government
certain powers of control and supervision over the Gaon
Sabhas and its office-bearers. These powers are enumerated
in s. 95. Under s. 95 (1) (g), power is conferred on the
Government to suspend or remove a member of a Goan Panchayat
or joint committee (or Bhumi Prabandhak Samiti) an office-
bearer of a Gaon Sabha or a Panch, Sahayak Sarpanch or
Sarpanch of a Nyaya Panchayat it the conditions mentioned
therein are satisfied. But that power is admittedly a power
to punish. No specific power to suspend a Pradhan pending
enquiry into the charges levelled against him has been
conferred on the State Government. This much is conceded.
In view of s. 96A the power conferred on the Government
under s. 95 can be delegated to any officer or authority
subordinate to it subject to such conditions and
restrictions as the Government may deem fit to impose. The
State Goverment’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 suspend an office-
bearer of a Gaon Sabha pending enquiry into the charges
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.
A faint attempt was made to show that the relationship
between the State Government and the Pradhans is that of
master and servants and that being so the State Government
has competence to require Pradhans not to discharge their
functions as Pradhans during the pendency of an enquiry into
the charges made against them. It was urged that if the
court is pleased to hold that the relationship between the
State Government and the Pradhans is that of a master and
the servants then the appellant could call into -aid the
rule laid down by this Court in Management of Hotel
Imperial, New Delhi v. Hotel Workers’ Union;(1) T. Cajee
v. U. Jormanik Siem;(2) R. P. Kapur v. Union of
(1) [1960] I S.C.R. 476.
(2) [1961] 1 S.C.R. 750.
L12 SupCI/69-11
154
India(1); and Balwant Rai Ratilal Patel v. State of
Maharashtra(2). This is a wholly untenable contention. A
Pradhan cannot be considered as a 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
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there is no question of suspending a servant from performing
the duties of his office even though the contract of service
is subsisting. In the case of a master and his servant it
is a 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 does ,not absolve the
liability of the master to pay the remuneration contracted
to be paid to the servant unless otherwise provided in the
contract, even during the period the servant is required not
to perform his duties.
The Goan Sabha is the creature of a 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(3).
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 a power, charges framed against any office-bearer
cannot be properly inquired into as he may utilise his
office to interfere with the course of enquiry and the
possibility of his continuing to misuse his office during
the pendency of the enquiry cannot be ruled out.
It is well recognised that where an Act confers a
jurisdiction, it impliedly also grants the power of doing
all such acts, or employing such means as are essentially
necessary to its execution. But before implying the
existence of such a power the court must be satisfied that
the existence that power is absolutely essential for the
discharge of the power conferred and not merely that it is
convenient to have such a power. We are not satisfied that
the power to place under suspension 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 further misuse
of powers are not sufficient to enlarge the scope of -a
statutory power. -If it is otherwise the mere power to
punish
(1) [1964] 5 S.C.R. 431. (2) [1968] 2 S.C.R. 577.
(3) [1952] S.C.R. 1122.
155
an offender would have been held sufficient to arrest and
detain him pending enquiry and trial. There would have been
no need to confer specific power to arrest and detain
persons charged with offences before their conviction.
The unsustainability 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 provision 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 opinion he could not have,
then the question arises as to who could discharge the
functions of a Pradhan when he is placed under suspension
pending enquiry of the charges levelled against him. ,
Absence of a provision providing for such a contingency is a
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
without the authority of law. That is also the view taken
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by the Allahabad High Court in Babu Nandan v. Sub Divisional
Officer Salempur(1). We accordingly dismiss this appeal
with costs.
Y.P. Appeal dismissed.
(1) A.I.R. 1966 All. 158.
156