Smt. Soniya vs State Of U.P. And 2 Ors.
2013 Latest Caselaw 2701 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
CJ's Court
 
Reserved
 

 
Special Appeal No.699 of 2013
 
Smt. Soniya 
 
Vs.
 
State of U.P. & Ors.
 
-----------
 

 
Hon'ble Shiva Kirti Singh, Chief Justice
 
Hon'ble Dilip Gupta, J.

The appellant, who was elected as Pradhan of Village Pali Mukimpur, Tehsil Atrauli, District Aligarh in 2010, had filed Writ Petition No.9932 of 2013 for quashing the order dated 6th February, 2013 that was passed by the District Magistrate, Aligarh exercising powers under the first proviso to Section 95(1)(g) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the 'Act') to cease the financial and administrative powers of the Pradhan with a further direction that the said powers shall be performed by a Committee of three members. The learned Judge did not accept the plea of the petitioner for quashing the said order but, in view of the fact that an Enquiry Officer had been appointed to hold the enquiry against the petitioner, disposed of the writ petition by the judgment and order dated 22nd February, 2013 with a direction to the District Magistrate to take a final decision in the matter. This Special Appeal has been filed for setting aside the aforesaid judgment and order dated 22nd February, 2013 passed by the learned Judge and for quashing the order dated 6th February, 2013 passed by the District Magistrate, Aligarh.

Learned Standing Counsel appearing for the respondents raised a preliminary objection that the Special Appeal filed under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as the 'High Court Rules') is not maintainable for the reason that it has been filed against a judgment rendered in exercise of writ jurisdiction under Article 226 of the Constitution in respect of an order of a Tribunal made in exercise of jurisdiction under the State Act with respect to a matter enumerated in the State List in the Seventh Schedule to the Constitution.

Learned counsel for the appellant, however, submitted that the order passed by the District Magistrate under the first proviso to Section 95(1)(g) of the Act cannot be said to be an order of a Tribunal and, therefore, the Special Appeal would be maintainable.

Chapter VIII, Rule 5 of the High Court Rules, while providing that an appeal shall lie to the Court from a judgment and order of one Judge, provides for certain exceptions and one of them is that it will not lie when the order is made by one Judge in exercise of jurisdiction conferred by Article 226 of the Constitution in respect of any order of a Tribunal made or purported to be made in the exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution.

The issue, therefore, that arises for consideration in the Special Appeal is whether the District Magistrate functions as a Tribunal while exercising powers under the first proviso to Section 95(1)(g) of the Act and whether the said Act is with respect to any of the matters enumerated in the State List in the Seventh Schedule to the Constitution.

Entry No.5 of the State List in the Seventh Schedule to the Constitution relates to "local government, i.e. to say the constitution and powers of municipal corporations, improvement trusts, the district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration". The preamble to the Act mentions that the Act has been enacted since it was expedient to establish and develop the local self-government in the rural areas of Uttar Pradesh and to make better provisions for the village administration and development. The legislative field is, therefore, clearly referable to entry no.5 of the State List in the Seventh Schedule to the Constitution.

It now remains to be seen whether the District Magistrate functions as a Tribunal while exercising powers under the first proviso to Section 95(1)(g) of the Act.

Division Benches of this Court have time and again considered what authorities or bodies would be considered to be 'Tribunal' for the purpose of determining whether a Special Appeal would be maintainable under Chapter VIII, Rule 5 of the High Court Rules.

In Pratappur Sugar and Industries Ltd. Vs. Deputy Labour Commissioner, Gorakhpur & Anr. reported in 2000 (4) AWC 2834, the Court examined whether the Deputy Labour Commissioner would function as a 'Tribunal' while exercising powers under Clause (LL) of the Standing Orders governing the conditions of employment of Workmen in Vaccum Pan Sugar Factories because if the Deputy Labour Commissioner functions as a Tribunal, then the Special Appeal filed against the order of a learned Judge in a writ petition filed under Article 226 of the Constitution to assail the order of the Deputy Commissioner would not be maintainable. The Division Bench, after noticing that "Tribunal" has not been defined in High Court Rules, observed that while using the expression "judgment, order or award of a Tribunal or Court" in Rule 5 of Chapter VIII of the High Court Rules, the framers had in their mind the words used in Article 136 of the Constitution which provides that the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any case or matter passed or made by any Court or Tribunal. It, therefore, considered it appropriate to consider the various decisions of the Supreme Court wherein the test to determine whether an authority or body is a 'Tribunal' under Article 136 of Constitution was considered and after referring to the decisions of the Supreme Court in Durga Shankar Mehta Vs. Raghuraj Singh, AIR 1950 SC 188, Hari Nagar Sugar Mills Vs. Shyam Sunder, AIR 1961 SC 1669, Engineering Mazdoor Sabha Vs. Cycles Ltd., AIR 1963 SC 874 and Associated Cement Companies Vs. P.N. Sharma & Anr., AIR 1965 SC 1595, observed :-

"12. The test applied by the Supreme Court in determining whether any body or authority has the status of a Tribunal for the purpose of Article 136(1) of the Constitution can safely be applied while interpreting Chapter VIII, Rule 5 of the Rules of the Court. Therefore, what is to be seen is whether the judgment or order which was subject matter of challenge in the writ petition filed under Article 226 or 227 of the Constitution had been given by a body or authority which had been constituted by the State and had been clothed with the State's inherent judicial power to deal with disputes between the parties and to determine them on merits fairly and objectively.

13. Applying the test laid down by the Supreme Court, it will be clear that the standing orders have been made by means of a notification issued by the State Government in exercise of power conferred by Section 3(b) of the U.P. Industrial Disputes Act. Therefore, it is the State which has conferred the authority upon the Additional/Deputy Labour Commissioner to determine the age of a workman in Vaccum Pan Sugar Factory. The Additional/Deputy Labour Commissioner records findings after giving notice to both the parties and giving them opportunity to lead oral and documentary evidence. Although, strict rule of evidence is not applicable in such determination, still the matter is decided fairly and objectively on the basis of evidence adduced by the parties. The decision taken has to be consistent with the principles of natural justice and general principles of law. Sub-clause 6 of clause (LL) lays down that the order passed by the Deputy Labour Commissioner regarding the age of the concerned workman shall be final and shall not be questioned by any party before any Court and thus a finality is attached to the decision. The proceedings before the Deputy Labour Commissioner have, therefore, "trapping of Court". All these factors lead to irresistible conclusion that Deputy Labour Commissioner while deciding a dispute under clause (LL) of the standing orders functions as a Tribunal."

(emphasis supplied)

This decision was followed by the Division Bench in Commissioner, Meerut & Ors. Vs. Jaswant Sugar Mills Ltd. & Ors. reported in 2003 (1) AWC 44 and it was held that the Commissioner, while exercising powers under Rule 285-I of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 for setting aside the sale, functions as a Tribunal since the decision that is taken by the Commissioner has to be consistent with the principles of natural justice and general principles of law.

In P.G.T. Components (P.) Ltd. NOIDA & Ors. Vs. Assistant Provident Fund Commissioner & Anr. reported in 2003 (1) AWC 508, the Division Bench held that the Provident Fund Commissioner, while discharging the duties under the provisions of Employees' Provident Fund and Miscellaneous Provisions Act, 1952, acts as a Tribunal.

In Jai Prakash Agarwal Vs. Prescribed Authority (Sub-Divisional Magistrate), Sadar, District Deoria & Ors. reported in (1999) 1 UPLBEC 697 Division Bench of this Court held that the Prescribed Authority, while exercising powers under Section 25(1) of the Societies Registration Act, 1860, functions as a Tribunal and, therefore, the Special Appeal would not be maintainable against the order passed in a writ petition filed to assail the said order of the Prescribed Authority. The relevant observations are :-

"12. Now if the aforesaid test is applied to the Prescribed Authority under Section 25 of the Act, there remains no doubt that it is a tribunal. Under Section 25 Prescribed Authority decides important dispute of election and continuance in office of an office-bearer, which is essentially a dispute of civil nature. The order passed by the Prescribed Authority though has not been said to be final in specific words but sub-section (2) of Section 25 of the Act specifically provides that where by an order made under sub-section (1), an election is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office-bearers of a society has not been held within the time specified in the Rules of that society, he may call meeting of the general body of such society for electing such office bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officers authorised by him in this behalf, and the provisions in the Rules, of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications. Thus, the provisions contained in sub-section (2) of Section 25 of the Act provide that if the election is set aside by the Prescribed Authority a fresh election is required to be held by the Registrar. This is sufficient indication that the order is final. The Prescribed Authority is also required to hear and decide in summary manner any doubt or dispute in respect of the election. Thus, the order has to be passed after hearing parties and giving them opportunity to adduce evidence. From the provisions contained in proviso, it is clear that he decides the dispute in exercise of inherent judicial powers of the State vested in him by the notification."

The same view was taken by another Division Bench of this Court in Mohd. Talib Khan Vs. State of U.P. & Ors. reported in (2008) 1 UPLBEC 538.

It is clear from the aforesaid decisions that the test applied for determining whether any body or authority has the status of a Tribunal is to see whether such body or authority has been constituted by the State and has been clothed with the inherent judicial power of the State to deal with disputes between the parties and to determine them on merits fairly and objectively. It is this test that has to be applied to find out whether the District Magistrate functions as a 'Tribunal' while exercising powers under the first proviso to Section 95(1)(g) of the Act.

It will, therefore, be useful to reproduce the relevant provisions of section 95 of the Act which are as follows:-

"95. (1). The State Government may-

(g). remove a Pradhan. Up-Pradhan or member of a Gram Panchayat or a Joint Committee or Bhumi Prabhandhak 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

(iii-a) has taken the benefit of reservation under sub-section (2) of Section 11-A 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 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.

................................

(2) ................................

(3) No order made by the State Government under this section shall be called in question in any Court "

The State Government has delegated the powers to be exercised by it under Section 95(1)(g) of the Act to the District Magistrate by the Notification dated 30th April, 1997.

There is a detailed procedure prescribed under Rules 3, 4 and 5 of the Uttar Pradesh Panchayat Raj (Removal of Pradhan, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as the 'Rules') regarding the making of a complaint against a Pradhan and the preliminary enquiry and the same are as follows:-

"3. Procedure relating to complaints.- (1) Any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the State Government or any officer empowered in this behalf by the State Government.

(2) Every complaint referred to in sub-rule (1) shall be accompanied by the complainant's own affidavits in support thereof and also affidavits of all persons from whom he claims to have received information of facts relating to the accusation, verified before a notary, together with all documents in his possession or power pertaining to the accusation.

(3) Every complaint and affidavit under this rule as well as any schedule or annexure thereto shall be verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings and affidavits, respectively.

(4) Not less than three copies of complaint as well as each of its annexures shall be submitted by the complainant.

(5) A complaint which does not comply with any of the foregoing provisions of this rules shall not be entertained.

(6) It shall not be necessary to follow the procedure laid down in the foregoing provisions of this rule, if a complaint against a Pradhan or Up-Pradhan is made by a public servant.

4. Preliminary Enquiry. - (1) The State Government, on the receipt of a complaint or report referred to in Rule 3, or otherwise order the Enquiry Officer to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter.

(2) The Enquiry Officer shall conduct the preliminary enquiry as expeditiously as possible and submit his report to the State Government within thirty days of his having been so ordered.

5. Enquiry Officer.- Where the State Government is of the opinion, on the basis of the report referred to in sub-rule (2) of Rule 4 or otherwise, that an enquiry should be held against a Pradhan or Up-Pradhan or Member under the proviso to clause (g) of sub-section (1) of Section 95, it shall forthwith constitute a committee envisaged by proviso to clause (g) of sub-section (1) of Section 95, of the Act and by an Order ask an Enquiry Officer, other than the Enquiry Officer nominated under sub-rule (2) of Rule 4, to hold the enquiry."

It needs to be noted that the State Government by the notification dated 30th April, 1997 has also delegated the powers to be exercised by it under the Rules to the District Magistrate.

A Full Bench of this Court in Vivekanand Yadav Vs. State of U.P. & Anr. 2011 (1) ALJ 694 examined at length the provisions of Section 95(1)(g) of the Act and the Rules and observed that the District Magistrate could form his prima facie satisfaction for holding a formal enquiry and cease the financial and administrative powers of the Pradhan only on the preliminary enquiry report submitted by the Enquiry Officer defined under Rule 2(c) of the Rules or on the basis of the preliminary enquiry conducted by the District Magistrate himself. It also observed that before ceasing the financial and administrative powers of the Gram Pradhan, it is not only necessary to seek the explanation or point of view or version of the Gram Pradhan to the charges but it has also to be considered by the District Magistrate before being prima facie satisfied about the financial or other irregularities of the Gram Pradhan. The Full Bench further held that the order passed by the District Magistrate should indicate that the District Magistrate has applied his mind to the aforesaid requirement.

It, therefore, transpires that it is the State Government which has been conferred powers under Section 95(1)(g) of the Act and the Rules to take action against the Gram Pradhan but in terms of Section 96-A of the Act, the State Government has delegated the powers to be exercised by it under the first proviso to Section 95(1)(g) of the Act or under the Rules to the District Magistrate by the notification dated 30th April, 1997.

Under Rule 3(1) of the Rules, any person making a complaint against a Pradhan or Up-Pradhan may send his complaint to the District Magistrate which shall be in the manner provided in sub-rules (2),(3) and (4) of Rule 3. Under sub-rule (2), the complaint should be accompanied by the affidavit of the complainant and also affidavit of all persons from whom he claims to have received information together with all documents in his possession pertaining to the accusation. The complaint and the affidavit as well as any schedule or annexure has to be verified in accordance with the procedure prescribed under the Code of Civil Procedure, 1908 for verification of pleadings and affidavits and under sub-rule (5) of Rule 3, a complaint which does not comply with any of the provisions of sub-rules (1) to (4) of Rule 3 shall not be entertained. Under Rule 4 of the Rules, the District Magistrate, on the receipt of a complaint or otherwise, may order the Enquiry Officer who should be the District Panchayat Raj Officer or any other 'district level officer' to be nominated by him to conduct a preliminary enquiry with a view to finding out if there is a prima facie case for a formal enquiry in the matter but before forming such satisfaction, he has necessarily to obtain the point of view or version of the Gram Pradhan to the charges and also to consider them on merits. Though a detailed procedure for holding the formal enquiry has been provided for under Rules 6 and 7 of the Rules but even at the stage of the preliminary enquiry, the District Magistrate is required to take the decision fairly and objectively and the decision so taken by the District Magistrate cannot be called in question in any Court in view of the provisions of sub-section (3) of Section 95(1) of the Act. Thus, the contention of learned counsel for the appellant that the Rules only provide for the procedure for holding the preliminary enquiry and not with respect to the order to be passed by the District Magistrate cannot be accepted.

Learned counsel for the appellant placed the decision of the Supreme Court in Dayaram Vs. Sudhir Batham & Ors. reported in 2011 (5) ESC 761 (SC) to support his contention that the District Magistrate does not function as a Tribunal. The matter was placed before the Larger Bench of the Supreme Court as doubts were raised regarding the correctness of direction no.13 earlier given by the Supreme Court in Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development, (1994) 6 SCC 241 that when the order passed by the Scrutiny Committee regarding the caste certificate was challenged before the High Court under Article 226 of the Constitution, then the matter may be disposed of by a Single Judge and no further appeal would lie against that order to the Division Bench and the order would only be subject to Special Leave Petition before the Supreme Court under Article 136 of the Constitution. The Larger Bench of the Supreme Court held that the direction that no further appeal would lie against a decision of a Single Judge of the High Court to the Division Bench was not valid since it was well settled that an appeal is a creature of the Statute and if the Statute or the Letters Patent of the High Court or Rules provide for an appeal, then an appeal will lie and the power cannot be taken away by a judicial order. This decision makes it clear that the relevant Rules of the High Court regarding Special Appeal have to be looked into and, therefore, does not help the appellant at all.

The contention of the learned counsel for the appellant that the present Special Appeal would be maintainable as it does not fall in any of the six categories under which the Special Appeal will not lie as indicated in paragraph 15 of the Full Bench decision of this Court in Sheet Gupta Vs. State of U.P. reported in 2010 (1) CRC 285, cannot be accepted. The fifth category mentioned in paragraph 15 of the Full Bench decision is :-

"................... However, such special appeal will not lie in the following circumstances:

1. .................;

2. ..................;

3. ..................;

4. ..................;

5. the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by

(i) the tribunal,

(ii) Court or

(iii) statutory arbitrator

made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;

6. ..................."

The Full Bench clearly observed that under paragraph 5 referred to above, the Special Appeal will not lie if the District Magistrate functions as a Tribunal and the Act is with respect to a matter enumerated in the State List in the Seventh Schedule to the Constitution. In view of the legal provisions in the Act and the Rules noted and discussed above, it has to be held that the District Magistrate while exercising powers under the first proviso to Section 95(1)(g) of the Act is an authority constituted by the State and clothed with the inherent judicial power of the State to deal with disputes between the parties and to determine them on merits fairly and objectively. In other words, in such a capacity he satisfies the essential requirements of a 'Tribunal'.

Such being the position, the District Magistrate, as in the case of a Deputy Labour Commissioner while passing the order under the Standing Orders or the Commissioner of the Division while exercising powers under Rule 285-I of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 or the Provident Fund Commissioner exercising powers under the provisions of the Employees' Provident Fund and Miscellaneous Provisions Act, 1952, would function as a 'Tribunal' while exercising powers under the first proviso to Section 95(1)(g) of the Act.

The Special Appeal is, therefore, not maintainable and is, accordingly, dismissed.

Date:24.05.2013

SK/