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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