9911796707
TMI Blog2020 (5) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... 138(4) of the Act, can be delegated by them to the District Magistrate under Section 146 of the Act? Whether the provisions of the Panchayati Raj Act can be applied for taking action against a Village Pradhan for alleged irregularities on his part in the execution of MGNREGA works? HELD THAT:- The validity of the notification dated 09.06.2017, delegating powers under Section 138 of the Act to the District Magistrate, is upheld. Since the requirement of the first proviso to Section 138(4) would apply in the case of suspension also, the Village Pradhans, whom the District Magistrates seek to place under suspension, must be given a show cause notice furnishing details as to why such action is proposed to be taken. The Village Pradhan should also be given a reasonable opportunity of submitting a representation thereto, a reasoned order should be passed by the District Magistrate thereafter, and only then may action, if need be, be taken by the District Magistrate to place the concerned Gram Pradhan under suspension. Petition disposed off. - Writ Petition (PIL) No. 22 of 2020, Writ Petition (M/S) No. 731 of 2018, Writ Petition (M/S) No. 1018 of 2018, Writ Petition (M/S) No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the orders placing them under suspension. Both these Writ Petitions were finally disposed of quashing the orders of suspension on the ground that, in terms of the proviso to Section 138(4) of the Act, the petitioners were not given an opportunity of being heard before placing them under suspension. It was, however, left open to the State Government to take action against the petitioners in accordance with Section 138 of the Uttarakhand Panchayati Raj Act, 2016 (for short the Act ), and in compliance with principles of natural justice. 4. Writ Petition (M/S) No. 731 of 2018 was filed by these two Village Pradhans questioning the validity of the notification dated 09.06.2017 whereby the State Government had delegated its powers, under Section 138 of the Act, to the District Magistrates in the exercise of the powers conferred on it by Section 146 read with Section 185 of the Act. The petitioners contend that since the power, conferred under Section 138 of the Act and its provisos, is in the nature of a quasi-judicial power, the State Government is not empowered to delegate such powers to the District Magistrate. 5. During the pendency of Writ Petition (M/S) No. 731 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that Section 146 of the Act confers very wide powers of delegation; there is no embargo therein for delegation of quasi-judicial powers also; accepting the submission, urged on behalf of the petitioners, would require the State Government to deal with around 70452 elected members of Panchayati Raj Institutions in the State; there are in all 7079 Gram Panchayats, 95 Kshetra Panchayats and 30 Zila Panchayats in the State of Uttarakhand; and a restricted meaning being given to Section 146 of the Act, to exclude delegation of quasi-judicial powers, would render it impossible for the Secretary to the Government to exercise the power to place elected members, of several thousands of Panchayati Raj Institutions, under suspension. Learned Chief Standing Counsel would rely on Shamim v. State of Uttar Pradesh [(2018) 6 ADJ 1]; Udai Bhan Singh v. Sub-Divisional Officer [(1976) 2 ALR 202]; Matloob Ahmad v. Sub-Divisional Officer, Najibabad, Bijnor another [(1986) AWC 1175]; Deo Sharan Misra v. Commissioner, Lucknow Division, Lucknow others [(1986) AWC 279]; Smt. Shahjahan Baigam v. District Magistrate, Udham Singh Nagar others [(2018) 1 UC 185]; and Roop Chand v. State of Punjab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act or caused loss or damage to the fund or property of Panchayats, and if such misconduct, contravention or causing of loss or damage is rendered due to conduct of work as unauthorised by a woman representative, her husband or family members or relatives, such woman shall be ineligible as member, Pradhan Up-pradhan, Pramukh, Up-pramukh, Chairman, Vice-chairman; and, in such a case, they may be suspended upto the departmental final enquiry and their work and duties may be handed over to a committee of three elected members of the concerned Panchayat. In addition, disciplinary action may also be taken against the departmental employees/ officer, if found guilty in the enquiry. Section 138(1) confers power on the State Government to remove a Gram Pradhan and others from office, as also to place them under suspension pending departmental enquiry, if the conditions stipulated therein are attracted. 11. Section 138(2) provides that, notwithstanding anything in any other enactment, where a member, Pradhan, Up Pradhan, Pramukh, Up Pramukh, Chairman and Vice-Chairman, specified in clause (c) of sub-section (1) of Section 29, is removed from membership under this Section he sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion are placed under suspension, such persons are required to be afforded an opportunity of making a representation. 14. As it relates to suspension pending departmental enquiry, and not for removal of the Gram Pradhan and others from office, the enquiry, referred to in Section 138(4), need not be elaborate unlike a departmental enquiry held to remove the Gram Pradhan and others from office. Since the first proviso requires an opportunity of making a representation to be given to the person adversely affected, the authority, competent to place them under suspension, is required to issue a notice to them indicating that the conditions stipulated in clauses (a) and (b) of Section 138(4) are attracted, and the person concerned, to whom the notice is issued, should be asked to show cause why he should not be placed under suspension. On receipt of such a notice, it is open to the said person to submit his representation. It is only after considering such a representation, should the competent authority take a decision whether or not to place the said person under suspension. If he decides to place him under suspension, then an order of suspension should be passed and communicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. In the case of Tribunals, it is the State's inherent judicial power which has been transferred and, by virtue of the said power, it is the State's inherent judicial function which they discharge. (Madras Bar Association [(2010) 11 SCC 1]; and Durga Shankar Mehta [1955 (1) SCR 267]). Among the powers of the State includes the power to decide such controversies. This is one of the attributes of the State, and is aptly called the judicial power of the State. Broadly speaking, certain special matters go before Tribunals, and the residue goes before the ordinary Courts of Civil Judicature. (Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhunjhunwala [(1962) 2 SCR 339]; and Madras Bar Association [(2010) 11 SCC 1]). The power exercised by the State Government, to place a Village Pradhan andothers under suspension, is a quasi-judicial power, and the Government, while exercising such a power, acts as a Tribunal. II. CAN THE JUDICIAL POWER CONFERRED ON THE STATE GOVERNMENT, UNDER SECTION 138 (4) OF THE ACT, BE DELEGATED BY IT TO THE DISTRICT MAGISTRATE? 18. The notification, whereby the State Government delegated its powers, under the Panchayati Raj Act to various of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or the delegator. Delegation often involves the granting of discretionary authority to another, but such authority is purely derivative. The ultimate power always remains in the delegator and is never renounced. (Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd v. The Asstt. Commissioner of Sales Tax and others [(1974) 4 SCC 98]; and Sidhartha Sarawgi [(2014) 16 SCC 248]). 20. Delegatus Non Potest Delegare means that a delegate has no power to delegate. The said maxim indicates a rule of construction of a statute or other instrument conferring an authority. Ordinarily, a discretion conferred by a statute on any authority is intended to be exercised by that authority, and by no other. But the intention may be negatived by any contrary indication in the language, scope or object of the Statute. (The Barium Chemicals Limited and Anr. v. The Company Law Board and others [AIR 1967 SC 295]; and Sidhartha Sarawgi [(2014) 16 SCC 248]). This maxim is sometimes invoked as if it embodied some general principle that made it legally impossible for statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiring the power to be exercised by the precise person or body stated in the statute. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. (Administrative Law -by H.W.R. Wade C.F. Forsyth - Seventh Edition). Bereft of the empowering statute authorizing delegation of statutory power, the repository of that statutory power should exercise that power himself. That cannot be delegated. He may, for such purpose, issue a commission, even to a subordinate in the official hierarchy, to supervise, or/and authorize further action to be taken, but this can be only under his control and orders. Delegation, in such cases, is impermissible. (Sundaram BNP Paribas Home Finance Ltd. v. State of Kerala [Cases III (2009) BC 360]). The general objections to delegation apply with special force to judicial functions, particularly if they affect personal liberty or are disciplinary. (Administrative Law -by H.W.R. Wade C.F. Forsyth - Seventh Edition). 24. Even a statutory power to delegate functions, expressed in wide general terms, will not necessarily extend to every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant provisions. The Constitution recognises a hierarchy of Courts, and to their adjudication are normally entrusted all disputes between citizens and citizens, as well as between the citizens and the State. These courts can be described as ordinary courts of civil judicature. The powers which these courts exercise are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions. (P.N. Sharma [AIR 1965 SC 1595]; State of Tamil Nadu v. G.N. Venkataswamy [AIR 1995 SC 21]; and Madras Bar Assn. [(2010) 11 SCC 1]). 27. The respective legislatures are competent to confer special powers on Courts, and to create special jurisdictions acting under those powers in respect to their divided fields of legislation. The legislative power to make laws, relating to administration of justice and constitution and organisation of all courts, is of the widest amplitude. The words are sufficient to confer upon the Legislature the right to regulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r impliedly taken away by the provisions of other laws. (State of Bombay v. Narothamdas Jethabhai [AIR 1951 SC 69]; and Jamshed N. Guzdar v. State of Maharashtra and others [(2005) 2 SCC 591]). As soon as legislative power is exercised, the causes that arise with respect to those subjects would then only be heard in the jurisdictions created by those statutes, and not in the Courts of general jurisdiction entrusted with the normal administration of justice and, in the language of Section 9 of the Code of Civil Procedure, jurisdiction of the general courts will then become barred by those statutes. (P.N. Sharma [AIR 1965 SC 1595]). 30. Part IX, which relates to the Panchayats, was inserted in the Constitution by the Constitution 73rd Amendment Act, 1992. Article 243-C (1), in Part-IX, enables the State Legislature, by law, to make provisions with respect to the composition of Panchayats. Article 243-C(3)(a) enables the State Legislature, by law, to provide for the representation of the Chairpersons of the Panchayats at the village level. Article 243-F relates to disqualifications for membership and, under clause (1) thereof, a person shall be disqualified for being chosen as, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. It is a cardinal rule that words, conferring the right of legislation, should be interpreted literally and the powers conferred should be given the widest scope. (Diamond Sugar Mills Ltd. v. State of Uttar Pradesh [(1961) 3 SCR 242]; and New Manek Chowk Spinning and Weaving Mills Co. Ltd. and Ors. v. Municipal Corporation of the City of Ahmedabad and Ors. [AIR 1967 SC 180]). On a conjoint reading of Articles 246 with Entry 5 of List II, it is evident that very wide powers have been given to the State Legislature to make laws for Panchayat Raj Institutions, and it is in exercise of such powers that the Uttarakhand State Legislature made the Act, including Sections 138, 146 and 185 thereof. (d) PRESUMPTION REGARDING CONSTITUTIONALITY OF STATUS : 34. In this context it is necessary to note that the constitutional validity of the aforesaid provisions of the Act have not been subjected to challenge in any of the writ petitions listed before us. We are required, therefore, only to interpret the aforesaid provisions, for there is a presumption in favour of the constitutionality of a statute. (Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat [(2008) 5 SCC 33]; K.B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p within the bounds of the power actually delegated, which may be narrower than that possessed by the delegating authority. (Administrative Law -by H.W.R. Wade C.F. Forsyth-Seventh Edition). As noted hereinabove, Section 146 enables the State Government to delegate, all or any of its powers under the Act , to any officer or authority subordinate to it subject to such conditions and restrictions as it deems fit to impose. The words all or any of its powers under the Act , used in Section 146 of the Act, confer power on the State Government to delegate its powers under Section 138 also, to any officer subordinate to it, which would include the District Magistrate. Section 146 enables the State Government to delegate its powers conditionally or unconditionally. By the impugned notification dated 09.06.2017 the State Government has unconditionally delegated its powers, under Section 138 of the Act, to the District Magistrate. 38. This issue can be examined from another angle also. As the power conferred on the State Legislature, under Article 246 read with Entry 5 of List II, is extremely wide, it could have, when it made the Act, conferred power on the District Magistrate ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under the Act, to call for and examine the records of any case pending before or disposed of by such officer, and to pass such order in reference thereto as it thought fit. 41. It was contended that an order, which could be interfered with under Section 42, was an order passed under the Act by any officer in his own right and not an order made by the Government itself or by an officer exercising powers of the Government upon delegation under Section 41(1). The question which arose for consideration was the meaning of the words any order passed by any officer under this Act in Section 42, and whether these words included an order passed by an officer in the exercise of the powers delegated to him by the Government under Section 41(1)? 42. It is in this context that the Supreme Court held that Section 42 did not authorise the Government to interfere with an order made by itself; the Government could have itself heard an appeal preferred under Section 21(4) instead of getting it heard by an officer to whom it delegated its power and, if it did so, then it could not, under Section 42, interfere with the order which it, itself, had passed in the appeal; when the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner's control and subject to his revision and to such conditions and limitations, if any, as he shall think fit to prescribe, by any municipal officer whom the Commissioner generally or specially empowered in writing in this behalf; and in each of the said Sections, Sub-Sections and clauses, the word Commissioner shall, to the extent to which any municipal officer is so empowered, be deemed to include such officer. Section 68(2) provided that the Sections, referred to in Sub-Section (1), included Section 105B and, under Sub-Section (1), the Commissioner could, notwithstanding anything contained in any law for the time being in force, by notice, order that that person in occupation of the whole or any part of the premises shall vacate them within one month of the date of the service of the notice. 45. Proceedings for ejection were initiated, under Chapter VI-A of the Municipal Corporation Act, by one of the officers to whom the Commissioner had delegated his powers under Section 68 of the 1888 Act. After the officer passed an order of eviction, an appeal was filed, under Section 105F of the 1888 Act, before the Bombay City Civil Court which held that the deleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Gram Pradhan under suspension pending further proceedings under Clause (g) of Section 95(1). It was contended on behalf of the appellant that the power of suspension, under sub-section (gg), was a quasi-judicial power and, unless there was a specific provision in the Act itself permitting delegation of the specific quasi-judicial power, there could be no delegation of such a power. A Division Bench of the Allahabad High Court held that the decision of the Supreme Court, in Dhondu Narayan Chowdhary [AIR 1965 SC 1486], merely held that judicial power cannot be delegated unless the law expressly or by clear implication permits it; even if the power to suspend, under sub-section (gg), is held to be a quasi-judicial power, the decision of the Supreme Court did not help the appellant; Section 96-A of the Act expressly empowered the State Government to delegate all or any of the powers conferred by the Act upon it; the power to suspend, under sub-section (gg), was one of the powers under the Act, and it was clearly covered by the provisions of Section 96-A; the decision of the Supreme Court did not support the contention that there must be a specific provision in the Act permitting deleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the order for breach of any of the conditions provided in Section 95 of the Act; and the notification did not suffer from the vice of excessive delegation. 51. In Matloob Ahmad [(1986) AWC 1175], the State Government, by its notification, delegated its powers under Section 95(1)(g) of the Act to the Sub-Divisional Officer subject to an order for removal passed by him being appealable to the District Magistrate; the State Government issued another notification modifying the earlier notification, and imposed further conditions on the exercise of the power of removal by the Sub-Divisional Officer; the State Government, by notification and in exercise of its powers under Section 96A of the Act, delegated its powers under Clause (g) of Sub-section (1) of Section 95 of the Act to the Sub-Divisional Officer having jurisdiction, subject to the condition that any order passed by the Sub-Divisional Officer in the exercise of the said power, either before or after the date of the notification, shall be revisable by the Commissioner of the Division, and also by the State Government. The Allahabad High Court held that, in view of the notification issued by the State Government in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion proposed. Section 95(3) provided that no order, made by the State Government, under Section 95, shall be called in question in any Court. 54. It is in this context that the Full Bench of the Allahabad High Court held that Section 95 conferred power upon the State Government to remove the Pradhan; however, Section 96A of the Panchayat Raj Act empowered the State Government to delegate all or any of its powers under the Panchayat Raj Act to any authority subordinate to it; the power under Section 95(1) (g) had been delegated by the State Government to the District Magistrate vide notification dated 20.04.1997; the words the State Government is of the opinion indicated that the opinion must be formed by the State Government, and it is implicit that the opinion must be an honest opinion based on the preliminary enquiry report; the consequence of the order passed, in exercise of the power under Section 95(1)(g), is serious as it divests the elected representative from exercising power until exonerated in final enquiry; the decision taken by the State Government is in the exercise of the statutory power conferred upon it, and is in the nature of a judicial power; the test i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is legal and valid. In none of the aforesaid judgments has a different view been taken. Viewed from any angle, we are satisfied that the challenge to the validity of the notification dated 09.06.2017 must fail. III. MGNREGA : 57. Mr. Parikshit Saini, learned counsel appearing for the Village Pradhans, would submit that, in terms of the instructions issued under the 2005 Act, complaints, regarding misappropriation of MGNREGA funds, can only be made to the Ombudsman; the said instructions do not confer any right on the District Magistrate to take action, that too under a State enactment; and action sought to be taken by the District Magistrate, against the petitioner for alleged misappropriation of MGNREGA funds, is without jurisdiction. 58. On the other hand Mr. Paresh Tripathi, learned Chief Standing Counsel appearing on behalf of the State Government, would place reliance on the Government of India s circular dated 24.05.2013 whereby the Central Government had directed that action for violation of the MGNREGA scheme, including recovery, termination and holding the Gram Pradhan ineligible to continue in office, can be taken under the State Panchayati Raj Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiary, may, himself or through his authorized representative, make a complaint against a MGNREGA Authority or beneficiary in writing to the Ombudsman or to any MGNREGA authority superior to the authority complained against. Complaints addressed to the Ombudsman, but received by the MGNREGA authority, are required to be forwarded to the Ombudsman. Clause 11 stipulates that the proceedings before the Ombudsman shall be summary in nature. Clause 12 relates to disposal of complaints, and Clause 13 relates to findings by the Ombudsman. Clause 13.6 stipulates that, in any proceeding before the Ombudsman, if the facts reveal a case of illegal gratification, bribery or misappropriation, and the Ombudsman is satisfied that the case is fit for further investigation by an appropriate court of law, the same shall be referred by the Ombudsman to the authority competent to sanction criminal prosecution of the persons involved in the case who shall take action in accordance with the prescribed procedure. 61. The submission of Sri Parikshit Saini, learned counsel for the petitioner, is that, in terms of the aforesaid instructions, complaints must be made only to the Ombudsman who, after an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention. 64. While the submission of Sri M.C. Pant, learned counsel for the petitioner, that, despite issuance of the notification dated 09.06.2017, the State Government would continue to have power, under Section 138(4) of the Act, to place a Gram Pradhan under suspension, has considerable force, it is unnecessary for us to dwell on this aspect any further, as we have, by this order, upheld the validity of the notification dated 09.06.2017 whereby the powers, conferred on the State Government under Section 138, have been delegated to the District Magistrate. Consequently the validity of the action of the District Magistrate, in issuing the show cause notice dated 01.12.2019, is upheld. Since the first proviso to Section 138(4) requires the concerned Village Pradhan to be given an opportunity to make a representation, respondent no. 6 in WPPIL No. 22 of 2020 shall, in case she has not already submitted a representation, do so within two weeks from today. The District Magistrate shall, on receipt of the sixth respondent s representation, pass orders, on whether or not action should be taken against the Village Pradhan pursuant to the show cause notice issued earlier, within two ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
