Madhya Pradesh High Court
Vikram Singh vs The State Of Madhya Pradesh on 20 December, 2018
Author: Vandana Kasrekar
Bench: Vandana Kasrekar
1 (W.P. No.22978/2018)
HIGH COURT OF MADHYA PRADESH : BENCH AT
INDORE
S. B.: Hon'ble Ms. Justice Vandana Kasrekar
W.P. No.22978/2018
Vikram Singh
Vs.
State of M.P. & Ors.
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Shri Vivek Sharan, learned counsel for the petitioner.
Shri Pushyamitra Bhargava,Dy. AG for the
respondent/State.
Shri Amit Raj, learned counsel for the intervener.
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ORDER
(Passed on this 20th day of December, 2018) Per Ms. Vandana Kasrekar, J.
The petitioner has filed the present petition challenging the order darted 13/09/2018, passed by the respondent No.2, whereby, the appeal preferred by the petitioner has been dismissed and the impugned order passed by the respondent No.4 dated 7/10/2017 has been confirmed.
2. One Sampatbai, resident of Girvar submitted complaint in Jan Sunvai wherein it was stated that the complainant is filing applications for taking the benefit of Indira Awas Yojna from last five years, but the benefit of the scheme has not been extended to her, but has extended to one Lakhansingh inspite of the fact that Lakhansingh is having a constructed house.
3. The S.D.O. Revenue, Shajapur vide order dated 24/12/2016 directed the C.E.O. Of the Janpad Panchayat, Shajapur to investigate the matter and submit the enquiry report. The C.E.O. Submitted the enquiry report to the S.D.O., 2 (W.P. No.22978/2018) wherein it was contended that the enquiry was conducted by Assistant Development Officer of Janpad Panchayat and it was found that the petitioner being Sarpanch had extended the benefit to the respondent no.6 against the rules and in the report it was recommended to initiate the proceeding against the petitioner under Section 40 of the Panchayat Raj Adhiniyam ( in short ... "the Adhiniyam") and at the same time it was also recommended to recover the amount of Rs.70,000/- from respondent no.6.
4. The S.D.O., thereafter, issued the show cause notice to the petitioner wherein, it was contended that the petitioner has selected the beneficiaries as per the list, but he extended the undue benefit to the respondent no.6. In the said show cause notice, the petitioner was directed to submit the reply on the point that why not the petitioner be debarred from contesting election for further six years. The petitioner has filed reply to the said show cause notice.
5. However, the respondent No.3 had found the reply of the petitioner vague and, without appreciating the merits of the case, passed the impugned order dated 7/10/2017.
6. The respondent No.3 had taken the cognizance of the aforesaid matter and the case was registered before the respondent No.3. The said respondent vide order dated 3/10/2017 found that the petitioner has misused the power of Sarpanch and his act was not in accordance with the rules of the Adhiniyam, 1999. The respondent no.3 removed the petitioner from the post of Sarpanch and debarred him from contesting election for further six years and at the same time directed the C.E.O. Janpad Panchayat to recover the due 3 (W.P. No.22978/2018) amount from the petitioner. Being aggrieved by the order dated 7/10/2017, the petitioner preferred the appeal before the respondent No.2 wherein the respondent No.2 by order dated 21/11/2017 stayed the impugned order dated 7/10/2017.
7. The petitioner preferred an appeal before the respondent no.2. Initially, the order impugned was stayed by the respondent no.2. As the petitioner was removed from the post of Sarpanch, therefore, one Sunil Kumar Mehroliya was appointed as Officiating Sarpanch. When the order dated 7/10/2017 was stayed by the respondent no.2, Sunil Kumar Mehroliya filed the petition before this Hon'ble Court, wherein Sunil Kumar Mehroliya contended that the C.E.O. had passed the order under Section 40 of the M.P. Panchayat Raj and Gram Swaraj Adhiniyam, 1993, therefore, the appeal would lie before the Divisional Commissioner, who is higher authority than the C.E.O. The writ petition filed by Sunil Kumar Mehroliya was disposed of by this Court vide order dated 18/12/2017 in W.P. No.20455/2017 by directing the Collector to decide the objection raised by the petitioner about the maintainability of appeal within 30 days and directed to maintain status quo till the objection was decided. Accordingly, the petitioner as well as the contesting party appeared before the Collector and the Collector forwarded the case of the petitioner before the respondent No.2.
8. The respondent, thereafter, had issued notification dated 3/07/2018 for fresh election in the Gram Panchayat in question and the election was held in the Gram Panchayat on 3/08/2018. The petitioner also filed an application for stay of the election and counting before the respondent no.2. The 4 (W.P. No.22978/2018) respondent no.2 vide order dated 2/08/2018 directed to maintain status quo in pursuance to the election notification issued in the Gram Panchayat. The respondent no.2, thereafter, vide order dated 13/09/2018 has dismissed the appeal preferred by the petitioner. Being aggrieved by this order, the petitioner has filed the present petition.
9. Learned counsel for the petitioner submit that the orders impugned are illegal, arbitrary and contrary to the law. He submits that the order dated 13/09/2018 has been passed by the respondent no.2 without giving any opportunity of hearing to the petitioner. He further submits that the so-called fact finding enquiry was conducted behind the back of the petitioner. He has not given any opportunity of hearing before the Enquiry Officer. He further submits that the respondent no.2 while passing the impugned order dated 13/09/2018 has failed to consider that the respondent no.6 resides separately from his sons and he is entitled to get the benefit of Indira Awas Yojana and he has also deposited the amount of Rs.70,000/-. He further relied on the judgment passed by the Division Bench of this Court in the case of Manita Jaiwar(Smt.) Vs. State of M.P. & Ors. reported in I.L.R. [2009] M.P. 3067 as well as judgment passed by this Court in the case of Mango Bai Vs. State of M.P. & Ors. reported in [2003(2) M.P.L.J.112] and Raja Raj Singh Vs. State of M.P. & Ors. reported in [2001 (4) M.P.L.J. 364].
10. The respondents No.1 to 5 had filed their reply. In the said reply, the respondents has raised a preliminary objection about the maintainability of the petition. As per the provisions of Article 243 (O) (b) no election to any Panchayat can be 5 (W.P. No.22978/2018) questioned except by an election petition thus, as the petitioner has challenged the order of the counting of the election. Therefore, the petition is not maintainable. Due to the complaints were made before the CM Helpline, the show cause notices were also issued for recovery of Rs.95,995/- pertaining to some construction activity and Rs.3,38,646/- for the solar lights. So far as solar lights are concerned, the expenditure report has been submitted by the Panchayat Inspector which clearly demonstrate that the expenses have also been done against the Rules. The show cause notice has also been issued by the Chief Executive Officer, Zilla Panchayat.
11. The appeal preferred by the petitioner was dismissed vide order dated 13/09/2018 and order dated 7/10/2017 passed by the respondent no.4 has been confirmed by the said order. The respondents further submit that the order dated 20/09/2018 has been passed in compliance to the order passed by this Court in W.P. No.18227/2018(Shankarlal Chouhan Vs. State or M.P. & Others], wherein the Hon'ble Court has directed to conclude the process of election as expeditiously as possible.
12. The petitioner was the Sarpanch of Gram Panchayat, Girwar, Janpad Panchayat Shajapur, the petitioner had been removed under Section 40 of the M.P. Panchayat Raj Adhiniyam. The allegation against the petitioner is that he had extended the benefit of Indira Awas Yojna to the non-eligible person, the complaint was even made on the CM Helpline. The benefit was extended to one Lakhansingh, who has already got constructed the Pakka House. A show cause 6 (W.P. No.22978/2018) notice was issued to the petitioner to which he had filed the reply and after considering the entire material including the enquiry report, the respondent no.4 did not find the reply to the show cause notice satisfactory and, therefore, the order of removal under Section 40 was passed against the petitioner as well as for the recovery of Rs.70,000/-. The order passed by the respondent no.4 is a reasoned order. The name of Lakhan Singh was included in the list of beneficiaries of Indira Awas Yojna of the year 2015-2016 whereas, he is having a Pukka House since 7-8 years back and, therefore, his name could not have been arrayed in the waiting list. The petitioner had preferred an appeal before the Collector whereas the appeal had to be preferred before the Commissioner and even the Commissioner, after hearing the appeal had dismissed the same by the speaking order dated 13/09/2018 .
13. The order under Section 40 of the Adhiniyam has been passed as per the terms of the Adhiniyam and does not required any interference by this Court.
14. One Shankarlal Chouhan had earlier filed an application before this Court for intervention.
15. Learned counsel for the intervener submits that he has filed a reply stating that he has participated in the fresh election conducted by the respondents. Therefore, he is necessary party in the said writ petition.
16. Heard learned counsel for the parties and perused the record.
17. In the present case, when petitioner was working on the post of Sarpanch, a complaint was made by one Sampatbai, resident of Girvar in Jan Sunvai stating that she has not been 7 (W.P. No.22978/2018) extended the benefit of Indira Awas Yojna from last 5 years and the same was extended to one Lakhan Singh inspite of the fact that Lakhansingh is having the constructed house. The S.D.O., Revenue vide order dated 24/12/2016 directed the C.E.O. Of the Janpad Panchayat, Shajapur to investigate the matter and submit the enquiry report. The C.E.O submitted the enquiry report to the S.D.O. wherein it was contended that the enquiry was conducted by Assistant Development Officer of Janpad Panchayat and it was found that the petitioner being Sarpanch had extended the benefit to the respondent no.6 against the rules and also recommended him for taking action against the petitioner under Section 40 of the Panchayat Raj Adhiniyam. Accordingly, the show cause notice was issued to the petitioner and he was directed to submit the reply. The petitioner has submitted his reply on the said show cause notice. However, the said reply was not found satisfactory by the authorities. Therefore, issued an order dated 7/10/2017 under section 40 thereby removing the petitioner from the post of Sarpanch. Against the said order, the petitioner has preferred an appeal before the respondent no.2. The respondent no.2 vide order dated 13/09/2018 dismissed the said appeal. Being aggrieved by the said order, the petitioner has preferred the present petition.
18. Learned counsel for the petitioner argues that before passing the order under Section 40 of the Adhiniyam, no enquiry was initiated by the respondents. He has not given any opportunity of hearing or permitted to participate in the enquiry. The witnesses were not examined in his presence and he had not given any opportunity for cross-examining the 8 (W.P. No.22978/2018) witnesses.
19. As per the judgment passed by the Division Bench of this Court in the case of Manita Jaiwar(supra), the Division Bench of this Court in para - 5 and 6 has held as under :-
5. After hearing the learned counsel for the parties, it is clear that in the instant case fair procedure has not been adopted. Proceedings under section 40 of the Adhiniyam of 1993 was initiated by issuance of show cause notice dated 16-5-2006 by the SDO. No doubt about it that earlier a complaint was filed on 27-3-2006 in which the enquiry was conducted by the CEO but that was not bipartite and regular enquiry. Statements of certain witnesses were recorded, which have formed the basis of removal of the petitioner from the post of Sarpanch. Admittedly opportunity of cross-examination was not afforded to the petitioner on the witnesses who were examined by the CEO, Janpad Panchayat, Balaghat while conducting the enquiry into the complaint dated 27-3-2006. In the proceedings under section 40 of the Adhiniyam, 1993 none of the witnesses whose statements were recorded by the Enquiry Officer, were examined.
Opportunity of cross-examination was also not afforded to the petitioner. Even complainant was not examined. Opportunity to adduce the evidence was also not afforded to the petitioner.
6. This Court in Kailash Kumar Parmanand Dangi v. State of M.P, 1999 (2), MPLJ 722 has held that in such matters the enquiry held behind the back of Sarpanch, cannot be relied upon. The following discussion has been made by this Court:
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14. In the present case there was not total violation of the principles of natural justice as a show cause notice was given and the reply of the petitioner obtained. But keeping in view the facts of the case certain facets of natural justice as stated above were not complied with resulting in prejudice to the petitioner. He was not permitted to adduce his own evidence to rebut the material collected against him. The charges were such which could be proved or disproved by evidence in the inquiry. One of the main charges was the distribution of pattas to those who were not landless and a conclusion on this point could be reached after recording evidence and after seeing the list supplied by the Tehsildar or the B.D.O The prescribed authority in the impugned 9 (W.P. No.22978/2018) order has not dealt with this aspect. Similarly the charges regarding negligence in the maintenance of garden, supply of water, drainage and information regarding the meeting of the Gram Sabha could be decided on the basis of evidence and not merely relying upon a preliminary inquiry report. The basic fault in the impugned order is that an inquiry held by the B.D.O, behind the back of the petitioner has been held to be a valid 'inquiry' under section 40 of the Act and he has been packed up on the basis of that inquiry without even supplying a copy of the same to the petitioner, and without affording him an opportunity to lead his own evidence even when he repeatedly asked for the same. This was denial of fair hearing resulting in serious prejudice to the petitioner. The action of removal and disqualification has to be struck down as there has been a failure of justice. The guilty must be punished but the finding of guilt has to be arrived after fair hearing which was denied in this case. In Ballabhdas v. State of M.P, 1998 (2) JLJ 303, it has been observed by this Court that a full-
fledged enquiry is provided under section 40 of the Act. It contemplates 'due enquiry'. As observed in Delhi Transport Corporation v. DTC Mazdoor Congress, 1991 Supp (1) SCC 600 : AIR 1991 SC 101 right to fair treatment is an essential inbuilt of natural justice which is an integral part of the guarantee of equality assured by Article 14 of the Constitution of India. The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution.
In Rajendra Singh Raghuvanshi v. State of M.P, 2004 (4) MPLJ 6, this Court has laid down that copy of the enquiry report has to be furnished. In Mango Bai v. State of M.P, 2003 (2) MPLJ 112, this Court has laid down thus:--
9. Principles of natural justice are required to be observed before ordering removal of Sarpanch under section 40 of Act in Kailash v. State of M.P, 1999 (2) MPLJ 722 : 1999 (2) JLJ 280 esteemed brother S.P Khare, J. considered the question and held that removal of Sarpanch under section 40 is a serious matter when he is removed and further disqualified for six years to be elected under the Act. It is not sufficient to give a mere lip-service to the requirement of law. It is true that it is not specifically provided in section 40 that principles of natural justice should be 'followed while holding' an 10 (W.P. No.22978/2018) enquiry but it is implicit in this provision that the office-bearer who is sought to be removed will be Page: 374given a fair hearing. This Court held that the words "after such inquiry as it may deem fit to make" in the main part of section 40(1) of the Act would mean an inquiry which is held in the presence of the office-bearer and not behind bis back. He should be allowed to inspect the documents which are to be relied upon against him and he should have the right to adduce his own evidence. These are the important facets of an inquiry to be held in conformity with the principles of natural justice. It is not the subjective choice of the prescribed authority to get an inquiry held of any kind. It does not envisage a secret enquiry or a preliminary enquiry alone. That is made only for collection of evidence and at that stage there is no participation of the person against whom the action is sought to be taken. The words "as it may deem fit" have to be construed objectively and would mean an inquiry depending upon the facts and circumstances of each case. Some of the facts of the inquiry may be excluded if the facts are not very much in dispute or there are other circumstances to dispense with them. But the office bearer has a right of fair hearing. "You must hear the person who is going to suffer". That is a duty which lies upon every one who decides anything. There is, however, some flexibility depending upon the subject-matter. Similar is the law laid down by this court in Raja Rai Singh v. State of M.P, 2001 (4) MPLJ 364 : 2000 (2) JLJ 242.
10. Secret enquiry or preliminary enquiry alone is not enough. Collection of evidence is required and participation of person against whom the action is sought to be taken. Order sheets of the SDO's file indicates that by-parte enquiry was not held at all nor was directed. Panchayat Inspector conducted the ex parte enquiry. Report of which not supplied. Thereafter an incompetent authority, SDM considered the report and recommended the removal and order dated 31-3-1999 mentioned that Prescribed Authority i.e SDO was in agreement with the view of the SDM and has passed the order on 31-3-1999 itself. Whereas it was incumbent upon the SDO to receive the reply and to apply independent mind after holding an enquiry. All these requirements have been flagrantly violated in the instant case. Considering the serious nature of charges levelled against the petitioner she ought to have been given due and proper opportunity.11 (W.P. No.22978/2018)
20. As per the said judgment, the enquiry conducted by the CEO was not bipartite. No opportunity to cross-examine the witnesses were afforded. None of the witnesses including the complainant whose statement were recorded by the Enquiry Officer were examined. The petitioner was also not given any opportunity to cross-examine the witnesses and to adduce the evidence. Thus, no due and proper enquiry was conducted by the SDO which cause serious prejudice to the petitioner.
21. In the present case also, I have gone through the record and from perusal of the record, it reveals that before passing the order under Section 40 of the Adhiniyam, no opportunity was given to the petitioner to cross-examine the witnesses.
22. Further, this Court in the judgment passed in the case of Raja Raj Singh(supra) in Para - 7 has held as under :-
Now to the merits of the case. Before I deal with the factual scenario it is apposite to refer Section 40 of the Act. It reads as under :
"40. Removal of office bearers of Panchayat
- (1) The State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time, remove an office bearer -
(a) If he has been guilty of misconduct in the dischartge of his duties; or
(b) If his continuance in office is undesirable in the interest of the public :
Provided that no person shall be removed unless he has been given an opportunity to show cause why he should not be removed from his office. Explanation - For the purpose of this sub-section "misconduct" shall include -
(a) any action adversely affecting -
(i) the sovereignty, unity and integrity of India; or
(ii) the harmony and the spirit of common
brotherhood amongst all the people of State transcending religious, linguistic, regional, caste or sectional diversities; or
(b) gross negligence in the discharge of the duties under this Act.
(2) A person who has been removed under sub-
section (1) shall forthwith cease to be a member of 12 (W.P. No.22978/2018) any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected under this Act."
On a bare reading of the aforesaid provision it is luminously clear that the prescribed authority is mandated inn law to cause an inquiry. The proviso explains the said authority is required to afford an opportunity to the person affected. In the case of Bansmani (supra) this Court while dealing with section 116 of the Panchayat Act, 1962 (M.P.) expressed thus :
"5. It cannot be disputed that opportunity to show cause must be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the materials which is sought to be used against him in support of charges so that he may offer his explanation in respect of that material. A person who holds office as a member or as President has a right to continue in the office until the expiry of the term. The order of removal which is passed under Section 116 affects this valuable right and the finding of misconduct on which such an order based casts a stigma in the public life of the person. Having regard to these consequences, we are of the opinion that the power of removal is quasi-judicial in nature. In Bhagat Ram v. State of Punjab, AIR 1972 SC 1571, a provision in the Punjab Municipal Act relating to the removal of members was considered by the Supreme Court. It was held in the case that the order contemplated by the provision removing a member was quasi-judicial in nature and that it was a not only desirable but also essential that the authority passing the order should give reasons. It was further pointed out that all the material should be disclosed to the person concerned so that he may give an effective answer not only to the averments contained in the show cause notice but also to the materials on the basis of which the show cause notice was issued. The principles laid down in Bhagat Ram v. State of Punjab (supra) equally apply to the exercise of power under Section 116 of the Panchayat Act. The State Government while taking action under this provision should not only disclose the charges but also the entire material on which the charges are based to the person concerned so as to afford him real opportunity to show cause against the charges. Further, the State Government should give reasons in support of the order removing the person from office so as to indicate why the explanation submitted is not acceptable. It has recently been observed that the 13 (W.P. No.22978/2018) rule requiring reasons to be given is like the principle of audi alteram partem, a basic principle of natural justice Siemens Engg. & Mfg. Co. v. Union of India, AIR 1976 SC 1785. Even in case of administrative orders where rights of parties are affected rules of natural justice have to be followed and it is desirable that the order should contain reasons : Hochtief Germon v. State of Orissa, AIR 1975 SC 2226, Mahabir Jute Mills v. Shibban Lal, AIR 1975 SC 2057 and State of Gujrat v. Ambalal, AIR 1976 SC 2002."
Recently in the case of Kailash Kumar Dangi v. State of M.P. and Ors., 1999 (2) JLJ 280, this Court also reiterated the principles relating to due inquiry. Emphasis was laid on the concept of real inquiry and not a show of inquiry.
The present factual matrix has to be tested on the anvil of the law laid down in the aforesaid decisions. It is not disputed by the learned counsel for the State that the inquiry was conducted by the three members of the Committee behind the back of the petitioner. Such preliminary inquiry may have the sanction of law and the petitioner cannot claim that the said inquiry should be held in his presence but the real inquiry has to be held by the prescribed authority and in the said inquiry where the petitioner has to be given due/adequate/sufficient opportunity. It is submitted by Mr. Bhatti, on a perusal of the impugned order passed by the prescribed authority, it is perceptible that the persons who made complaints against the petitioner were not examined by the prescribed authority and the petitioner could not have cross-examined them but, unfortunately the statements of the said witnesses have been considered by the Collector and been utilised against the petitioner. On a perusal of the record, it is noticed that this fact is borne out on record and the learned counsel for the State is not in a position to dispute the same. Quite apart from that, it is noticeable that the petitioner's application for supply of documents had not been properly construed by the prescribed authority, as the petitioner was supplied only the inquiry report but not the materials/other documents. An interesting feature which cannot be lost sight of is that the appellate authority has called for these documents by order dated 8-4-99 but it does not appear that the petitioner was supplied the said documents. It has been ruled in the case of Bansmani (supra), the documents which are sought to be utilised against the holder of the office, should be supplied to him so that he can have fair chance to rebut the same. As the factual matrix 14 (W.P. No.22978/2018) indicates the materials collected against the petitioner were not supplied to him and further the petitioner was not granted sufficient opportunity to produce his evidence to rebut the allegations made against him, I am of the considered view, the order passed by the prescribed authority and affirmed by the appellate authority are vulnerable being violative of principles of natural justice as well as being against the basic concept of adjudicating process and accordingly, the said contained in Annexures P-12 and P-18 are hereby quashed. As the orders being quashed on this limited ground a proper inquiry has to be held. To cut short delay, it is directed that the petitioner shall appear before the prescribed authority on 7-01-2000 and the prescribed authority shall supply him the documents within a period of two weeks therefrom and proceed with the enquiry as per law. It is hereby made clear, after receiving the relevant documents, it would be open to the petitioner to file an additional reply, if he so chooses. The prescribed authority shall conclude the proceeding by end of February, 2000.
23. This Court in Para - 4, 8 and 9 of the case of Mango Bai(supra) has held as under :-
4. Petitioner submits that no enquiry was held by the competent authority and outrightly an order of removal has been passed after receipt of the reply. It is the further submission that the enquiry was necessitated in the facts and circumstances of the case as the consequence which falls is disqualification for six years when an incumbent is removed under section 40 of the Act.
8. In the instant case the only question for consideration is whether the enquiry has been properly held before ordering removal of the petitioner under section 40. No doubt about it SDO directed Panchayat Inspector to submit the report, but, the enquiry was not held by the inspector in presence of the petitioner and report submitted by Panchayat Inspector was also not supplied to the petitioner which constituted adverse material which ought to have been supplied to the petitioner. Show-cause notice mentioned that work was not done by the beneficiaries and whether there is total misappropriation of the amount advanced, are questions on which an enquiry ought to have been held. Petitioner ought to have been allowed to adduce the evidence and only after determination of question 15 (W.P. No.22978/2018) about the misappropriation of the money advanced and what role as a matter of fact was played by the petitioner in the capacity of Sarpanch in disbursement of loan by Janpad Panchayat, was also the subject matter of evidence for which the petitioner ought to have been allowed an opportunity to adduce the evidence.
9. Principles of natural justice are required to be observed before ordering removal of Sarpanch under section 40 of act in Kailash vs. State of M.P., 1999(2) MPLJ 722 = 7999 (2) JLJ 280 esteemed brother S.P. Khare, J. considered the question and held that removal of Sarpanch under section 40 is a serious matter when he is removed and further disqualified for six years to be elected under the Act. It is not sufficient to give a mere lip-
service to the requirement of law. It is true that it is not specifically provided in section 40 that principles of natural justice should be 'followed while holding' an enquiry but it is implicit in this provision that the office- bearer who is sought to be removed will be given a fair hearing. This Court held that the words "after such inquiry as it may deem fit to make" in the main part of section 40(1) of the Act would mean an inquiry which is held hi the presence of the office-bearer and not behind his back. He should be allowed to inspect the documents which are to be relied upon against him and he should have the right to adduce his own evidence. These are the important facets of an inquiry to be held in conformity with the principles of natural justice. It is not the subjective choice of the prescribed authority to get an inquiry held of any kind. It does not envisage a secret enquiry or a preliminary enquiry alone. That is made only for collection of evidence and at that stage there is no participation of the person against whom the action is sought to be taken. The words "as it may deem fit" have to be construed objectively and would mean an inquiry depending upon the facts and circumstances of each case. Some of the facts of the inquiry may be excluded if the facts are not very much in dispute or there are other circumstances to dispense with them. But the office bearer has a right of fair hearing. "You must hear the person who is going to suffer". That is a duty which lies upon every one who decides anything. There is, however, some flexibility depending upon the subject-matter. Similar is the law laid down by this court in Raja Rai Singh vs. State of M.P. and others, 2001(4) MPLJ 364 = 2000(2) JLJ 242.
16 (W.P. No.22978/2018)24. Thus as per all these aforesaid judgments, before passing the order under Section 40 of the Adhiniyam, the enquiry is necessary. However, in the present case, no such enquiry was initiated or made by the respondents.
25. Learned counsel for the respondents also relied on the judgment passed in the case of Arun Yadav Vs. M.P. Rajya Nirvachan Ayog & Anr. reported in [2015 (3) M.P.L.J. 104] and has stated that once the election process had already been commenced and first phase of voting was completed then the Court cannot interfere into the election matter.
26. In the present case, although the petitioner has not challenged the order dated 20/09/2018(Annexure-P/6), passed by the respondents by which the election commission has published an election program for conducting the election. However, at the time of arguments, learned counsel for the petitioner does not press this relief. Therefore, the judgment relied by the learned counsel for the respondents would not be applicable in the present case.
27. A similar judgment passed by the Apex Court in the case of Satish Vs. State Election Commission, Bhopal reported in [2015(3) M.P.L.J. 405]. The said judgment would also not be applicable in the present case.
28. That Section 40 of the M.P. Panchayat Raj Adhiniyam provides for removal of office bearers of Panchayat. According to the said Section, the State Government or the prescribed authority may after such enquiry as it may deem fit to make at any time can remove an office bearer if he has been guilty of misconduct in the discharge of his duties or if his continuance in office is undesirable in the interest of the public and no 17 (W.P. No.22978/2018) person shall be removed unless he has been given an opportunity of hearing. Sub-section (1) of Section 40 of the Adhiniyam provides that a person can be removed after such enquiry. Such enquiry does not mean only issuance of show cause notice to the concerned office bearer, but it requires that a detail enquiry has to be conducted before removing the office bearers that is, he must be given an opportunity to examine and cross-examine the witnesses.
29. In the present case, as already submitted, no such enquiry is conducted by the respondents and, therefore, the order dated 13/09/2018 deserves to quashed.
30. Accordingly, the present writ petition is allowed. The impugned order dated 13/09/2018 is hereby set aside. No order as to costs.
(Ms. Vandana Kasrekar) Judge pn Preetha Nair 2018.12.20 17:00:48 +05'30' 18 (W.P. No.22978/2018)