@JUDGMENTTAG-ORDER
S.P. Khare, J.@mdashThis is a petition under Article 226 of the Constitution of India challenging the order dated 26-4-1996 (Annexure P-5) of
the Sub-Divisional Officer, Betul (the Prescribed Authority) by which the petitioner has been removed from the office of Surpanch of Shahpur
Gram Panchayat u/s 40 of the M.P. Panchayat Raj Adhiniyam, 1993 (hereinafter to be referred to as the Act). He has also assailed the appellate
order dated 18-3-1997 passed by the Additional Collector and the revisional order dated 24-11-1997 passed by the Commissioner by which the
impugned order of the S.D.O. has been upheld.
2. The petitioner was Surpanch of Gram Panchayat, Shahpur. He was directly elected to this office in the year 1994. A show cause notice was
issued to him by respondent No. 4 the Sub-Divisional Officer, Betul on 30-10-1995 in which fifteen charges were levelled against him. That is
Annexure P-1. He submitted his reply to the show-cause notice on 10-11-1995 giving his explanation on each charge. He also requested for time
to produce some more documents and adduce oral evidence. That reply is Annexure P-2. He submitted another application on the same date for
permitting him to examine witnesses in support of his defence. On 13-11-1995 he submitted another application to give him hearing on his
application for production of witnesses. No witness was examined by the S.D.O. in support of the charges nor the petitioner was permitted to
examine any witness. By the impugned order dated 26-4-1996 (Annexure P-5) the petitioner was removed from the office of the Surpanch. This
order shows that the reply to the show-cause notice was considered in light of the report of the preliminary inquiry submitted by the B.D.O. A
copy of this report or any document was not supplied to the petitioner. No witness was examined in his presence by the S.D.O.. No document
was produced or exhibited. There was no question of any cross-examination of these witnesses by the petitioner as none was produced. The
petitioner was also not given any opportunity to produce his witnesses.
3. The substance of the accusations against the petitioner was that he gave pattas of several pieces of land for construction of houses to persons
who were not eligible. That was the subject of charges No. 8 to 15. The other charges were that the petitioner was negligent in not taking proper
interest in the watering of plants in a garden, he got the road constructed by entrusting the work to the Tribal Welfare Department and not to Rural
Engineering Department, he did not arrange proper supply of water from the tube-well, he did not get the drains cleaned and he did not give
proper notice to the villagers for the meeting of the Gram Sabha which was held on 20-8-1995. It is clear from the nature of the charges against
the petitioner that these could be established by documentary and oral evidence. None of the seven persons who were given pattas was examined
by the S.D.O. during the enquiry. It was the case of the petitioner that many of these persons were shown as landless in the list supplied by the
Tehsildar. The impugned order of the S.D.O. does not show that he considered this aspect. Similarly the question of proper maintenance of the
garden and water supply could be examined if the witnesses had come forward either to prove or disprove those charges.
4. The petitioner''s case is that the inquiry envisaged u/s 40 of the Act should have been held in his presence. It was necessary to examine
witnesses in his presence so that he could cross-examine them to test their veracity. A report of the preliminary inquiry should also have been
supplied to the petitioner and the documents on which reliance was placed should have been shown to him. Further, the petitioner should have
been given an opportunity to adduce his own evidence. No reliance could be placed on the inquiry which was held behind the back of the
petitioner. Show-cause notice given to the petitioner was an idle formality when he was not given any opportunity to rebut material collected in the
preliminary inquiry or to adduce his own evidence to disprove the charges levelled against him. These grievances were ventilated by the petitioner
before appellate and the revisional authorities but they did not consider them. They also relied upon the report of the preliminary inquiry and treated
it as evidence. The petitioner has also challenged the election of the respondent No. 5 as Surpanch.
5. The respondents No. 1 to 4 in their return have stated that it was not necessary to hold the enquiry in the presence of the petitioner nor it was
necessary to give an opportunity to the petitioner for cross-examining the witnesses. Similarly, it was further unnecessary to provide him a copy of
the report of the preliminary enquiry. It is also stated that the petitioner has no right to adduce any oral evidence. The requirement of law is to give
a show-cause notice to the petitioner and that was done. After considering the reply to the show-cause notice, it was found that the charges against
the petitioner are proved and he was removed from the office of the Surpanch. The concurrent findings of the three authorities cannot be assailed
by this petition. Notice was served on respondent No. 5 but he did not appear. He did not file any return.
6. The learned counsel for both the sides were heard. Section 40 (1) of the Act is 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 discharge 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.
The words ""after such enquiry as it may deem fit to make"" in main part of Section 40 (1) and the words ""unless he has been given an opportunity to
show cause why he should not be removed from his office"" in the proviso to Section 40 (1) are of crucial importance. The contention of the
respondents No. 1 to 4 is that the petitioner was given a show-cause notice and reply submitted by him was considered by the prescribed
authority and that is the end of the matter. In this connection it has to be borne in mind that the removal of a Surpanch who is directly elected is a
serious matter and a person who is removed is further disqualified for a period of 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.
7. Removal and disqualification of an office-bearer of a Panchayat u/s 40 of the Act on the ground of misconduct is not less injurious and stigmatic
as the removal of a civil servant under Article 311 of the Constitution of India or a workman under the industrial law. Article 311 also envisages an
''inquiry'' in which the delinquent employee is informed of the charges against him and given a reasonable opportunity of being heard in respect of
those charges. The celebrated rule of audi alteram partem has been incorporated therein. What principles of natural justice should be applied
depends upon the facts and circumstances of each case. Broadly stated a party should have the opportunity of adducing all relevant evidence on
which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining
the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining
them. Union of India (UOI) Vs. T.R. Varma, and Khem Chand Vs. The Union of India (UOI )and Others, .
8. 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 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 inquiry or a
preliminary inquiry 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 facets 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.
9. H.W.R. Wade in his book on Administrative Law, 7th Edition at page 521 has quoted a passage in the speech of Lord Bridge in the House of
Lords in Lloyd v. McMahon (1987) AC. 625 :
My Lords, the socalled rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying
concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the
rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other frame-
work in which it operates. In particular, it is well-established that when a statute has conferred on anybody the power to make decisions affecting
individuals, the Courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to
be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.
10. The principles of natural justice are used to supplement statutory procedures which themselves provide for a hearing or inquiry, with or without
detailed regulation of the procedure. It is not proper to start with a pre-conceived notion that the person against whom the action is proposed is
guilty. Conclusion of guilt can be drawn only after fair hearing.
11. Lord Denning has said in Kanda v. Government of Malaya (1962) A.C. 322 that if the right to be heard is to be a real right which is worth
anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given
and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them.
12. In this case, as already, stated, the inquiry was not held in the presence of the petitioner, he was not supplied a copy of the report of the
preliminary inquiry, he was not shown any document, he was not given any opportunity to adduce his evidence though he asked for it. He was
given only a show-cause notice containing the charges and after his reply he was summarily removed by the impugned order. That was confirmed
in a routine and ritualistic manner by the appellate and revisional authorities by adverting to some report of the preliminary inquiry. It cannot be said
that there was fair hearing. There was prejudice to the petitioner. He was handicapped and prejudiced in defending himself properly and
effectively.
13. In State Bank of Patiala and others Vs. S.K. Sharma, the Supreme Court after exhaustive survey of the earlier precedents has formulated the
test of prejudice, that is, whether the person has received a fair hearing considering all things. Rule (5) formulated in this decision aptly applies to
the present case though it is not a case of a disciplinary action against an employee but against an office bearer of a Panchayat on the ground of his
misconduct involving serious consequences. That rule is as under :--
(5). Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principle of natural
justice-- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action-- the Court or the
Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule.
In other words, a distinction must be made between ""no opportunity"" and no adequate opportunity, i.e., between ""no notice""/""no hearing"" and ""no
fair hearing"". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it ""void"" or a nullity if one chooses to). In such
cases, normally liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi
alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the stand-
point of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent
officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query.
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 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'' u/s 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 u/s 40 of the Act.
It contemplates ''due enquiry''. As observed in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, 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.
15. This petition is allowed. The impugned order dated 26-4-1996 (Annexure P-5) of the Sub-Divisional Officer, Betul (the prescribed authority)
and the appellate and revisional orders confirming that order are set aside. The office of Surpanch of Gram Panchayat, Shahpur will be restored to
the petitioner in place of respondent No. 5 and there will be no disqualification on account of the impugned order. However, the respondent No. 4
will be free to recommence the inquiry in light of the principles of law discussed above.