ORDER 1. The petitioner calls in question the legality of order dated 26.11.2007, 7.1.2008 and 5.3.2008 in this petition filed under Article 226/227 of the Constitution of India. By order dated 26.11.2007 the Sub- Divisional Officer (Revenue) Manpur, District Umaria in exercise of the power under section 40 of M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 disqualified the petitioner for holding any post under Gram Panchayat for next six years. The said order has been upheld by the appellate and revisional authority respectively by their orders dated 7.1.2008 and 5.3.2008. The challenge put-forth by the petitioner is on the anvil that, the order of disqualification has been passed by the prescribed authority without adhering to the norms of principles of natural justice. 2. The facts briefly are that the petitioner was elected for the post of Sarpanch for the Gram Panchayat, Mahroi in the year 2004. There were certain complaints lodged against the petitioner in respect of the construction of WBN Road, in respect of certain purchases made by the petitioner and certain repairs undertaken and the favour extended to her on and sister under Kapildhara Yojna. The said complaints lodged against the petitioner led to a fact finding enquiry conducted by the Deputy Director, Panchayat and Social Justice District Umaria and Chief Executive Officer, Janpad Panchayat, Manpur District Umaria (M.P.), wherein charge of misuse of fund in respect of construction of WBN Road found substantiated. Thereafter the proceedings were initiated against the petitioner before prescribed authority. In the said proceeding evidence were led by both parties, i.e., by the complainant as well as by the petitioner. During the proceedings, petitioner filed an application before the prescribed authority for summoning the officials who have conducted the fact-finding enquiry for cross-examination. The said application was allowed by order dated 31.8.2007. However, on 14.9.2007 when the matter was posted for cross-examination of the officers who were summoned by order dated 31. 7 .2007 the prescribed authority recorded a finding that since the concerning officers are not available, therefore, the right of the petitioner to cross-examine was closed and the matter was posted for argument. Thereafter the impugned order dated 26.11.2007 was passed whereby the petitioner was disqualified for a period of six years to hold any post under the Panchayat. 7 .2007 the prescribed authority recorded a finding that since the concerning officers are not available, therefore, the right of the petitioner to cross-examine was closed and the matter was posted for argument. Thereafter the impugned order dated 26.11.2007 was passed whereby the petitioner was disqualified for a period of six years to hold any post under the Panchayat. The appeal preferred by the petitioner was dismissed by the appellate authority by order dated 7.1.2008 and the revision against the said order was also negatived by revisional authority vide its order dated 5.3.2008. Aggrieved whereof the petitioner has approached this Court in the present petition. 3. The challenge put-forth by the petitioner to the order is on the ground that the same has been passed without affording a reasonable opportunity of hearing. It is contended by the learned counsel for the petitioner that even the opportunity to cross-examine the prosecution witnesses who prepared the report on the basis of which the prescribed authority has arrived at a conclusion that disqualification, was not extended to the petitioner. To substantiate the aforesaid submissions, the learned counsel for the petitioner has taken this Court through the proceedings before prescribed authority. It is contended that the provisions contained under section 40 of the Act of 1993 contemplates an opportunity of hearing before any order is passed under the said provision. It is urged that, though the prescribed authority has extensively relied upon the report of the fact finding enquiry, however, the petitioner was deprived to cross-examine the officers who recorded the said finding and the concerning authority though aware of this fact went on to arrive at an adverse conclusion on the basis of said document. This action, it is contended, of the prescribed authority has resulted in deprivation of proper opportunity of hearing. The petitioner in support of his contention relied on a judgment rendered by this Court in the cases of Kailashchandra Jain v. State of M.P. and others [ 2003(1) MPWN 136 = 2003(3) MPLJ 260 ], Rajendra Singh Raghuwanshi v. State of M.P. and others [2005(1) Vidhi Bhasvar 237= 2004(3) MPHT 373 ], and Smt. Babita Lilhare v. Shri Surendra Rana and others [2004(II) MPWN 91= 2004(5) MPHT 79 ]. It is on the anvil of these submissions the petitioner seeks quashment of order of removal and disqualification and the subsequent order passed in revision. 4. It is on the anvil of these submissions the petitioner seeks quashment of order of removal and disqualification and the subsequent order passed in revision. 4. The respondents on their turn have supported the order of removal disqualification passed by prescribed authority in exercise of power under section 40 of the Act of 1993 on the anvil that the petitioner was afforded ample opportunity to defend herself and there was ample evidence on record to bring home the charges of misconduct levelled against the petitioner which formed the basis for holding the petitioner ineligible to hold the post of Sarpanch and further disqualified her to six years to hold any post under the Panchayat. It is accordingly urged that there is no substance in the challenge put-forth by the petitioner as there is no iota of principles of natural justice. 5. After hearing the respective counsel for the parties the sole issue which crops up for consideration in the present petition is whether the impugned order passed by the prescribed authority was after affording a reasonable opportunity to the petitioner and whether the petitioner was deprived of proper opportunity. 6. Before dwelling upon the issue, pertinent it will be to note the observations made by Supreme Court in the case of A.K. Kraipak and others v. Union of India and others [ AIR 1970 SC 150 ] :- "The aim of the rules of natural justice is to secure justice or to put in negatively to prevent miscarriage of justice..." It was further observed by Their Lordships in paragraph 20 that 'what particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the Tribunal or body of person appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case'. 7. For the present, therefore, pertinent it will be to examine the extent of an opportunity of hearing which a person is entitled for under section 40 of the Act of 1993. Section 40 makes a provision for removal of office bearer of Panchayat. It stipulates: "40. 7. For the present, therefore, pertinent it will be to examine the extent of an opportunity of hearing which a person is entitled for under section 40 of the Act of 1993. Section 40 makes a provision for removal of office bearer of Panchayat. It stipulates: "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; (b) if his continuance in office is undesirable in the interest of 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 (iii) the dignity of women; or (b) gross negligence in the discharge of the duties under this Act (c) the use of position or influence directly or indirectly to secure employment for any relative in the Panchayat or any action for extending any pecuniary benefits to any relative, such as giving out any type of lease, getting any work done through them in the Panchayat by an office bearer of Panchayat. Explanation : For the purpose of this clause the expression 'relative' shall mean father, mother, brother, sister, husband, wife, son, daughter, mother-in-law or daughter-in-law: Provided further that the final order in the inquiry shall be passed within 90 days from the date of issue of show cause notice to the concerned office bearer and where the pending case is not decided within 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the inquiry but such extension of time shall not be more than 30 days. (2) A person who has been removed under sub-section (1) shall forthwith cease to be a member of any other Panchayat of which he is a member, such person shall also be disqualified for a period of six years to be elected." Proviso to clause (b) of sub-section (1) of section 40 contemplates 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 requirement for affording an opportunity of hearing is because, an order of removal entails a disqualification for a period of six years to be elected under the Act of 1993 as is contemplated under sub-section (2) of section 40. Thus, the person against whom an order of removal is passed under section 40 is also burdened with disqualification for a period of six years. These stipulations call for a close observation of the principles of natural justice or in other words an effective opportunity of hearing. Thus, when a person is charged for a misconduct under the aforesaid provisions, it is incumbent upon the prescribed authority to extend the opportunity of hearing to the persons so charged so that he can put an effective defence towards the charge. 8. In the aforesaid context the following observation made by Their Lordships of the Supreme Court in the case of State of U.P v. Harendra Arora and another [ AIR 2001 SC 2319 ], would be of relevance: "13. The matter may be examined from another view point. There may be cases where there are infractions of a statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The Statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with an in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the inquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply to theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing. In the case of Russel v. Duke of Norfolk [( 1949) 1 All.ER 109], it was laid down by the Court of appeal that the principle of natural justice cannot be reduced to any hard and fast formulae and the same cannot be put in a straitjacket as its applicability depends upon the context and the facts and circumstances of each case. 14. Even under general law, i.e., the Code of Civil Procedure, there are various provisions, viz., sections 99A and 115 besides Order 21 Rule 90 where merely because there is defect, error or irregularity in the order the same would not be liable to be set aside unless it has prejudicially affected the decision. Likewise, in the Code of Criminal Procedure also section 465 lays down that no finding, sentence or order passed by a competent Court shall be upset merely on account of any error, omission or irregularity unless in the opinion of the Court a failure of justice, has, in fact, been occasioned thereby. We do not find any reason why the principle underlying the aforesaid provisions would not apply in cases of the statutory provisions like Rule 55A of the Rules in relation to disciplinary proceeding. Rule 55A referred to above embodies in it nothing but the principles of reasonable opportunity and natural justice. 15. We do not find any reason why the principle underlying the aforesaid provisions would not apply in cases of the statutory provisions like Rule 55A of the Rules in relation to disciplinary proceeding. Rule 55A referred to above embodies in it nothing but the principles of reasonable opportunity and natural justice. 15. Some decisions in this regard may be referred to. In the case of Ridge v. Baldwin [(1964) AC 40], the House of Lords was considering a case where a Chief Constable was dismissed from service without notice and inquiry by the Watch Committee. The question was raised whether the decision was void or merely voidable. The House of Lords laid down that such a decision given without regard to the principles of natural justice was void. The violation in that case, though a procedural one, was of a fundamental nature as it was a case of total violation of the principles of natural justice." 9. In the case as hand it is observed from the order-sheet dated 31.7.2007 that the petitioner filed an application for summoning the officers who conducted the fact finding enquiry and had prepared the report. The prescribed authority while allowing the said application, summoned the concerning officers and posted the matter for their cross-examination. However, on 14.9.2007 since concerning officers were not available the prescribed authority closed the right of examination in the following terms: ^^14-9-2007 vkosnd dh vksj ls vf/koDrk Jh czts"k f}osnh mifLFkrA mÙkjoknh dh vksj ls vf/koDrk Jh eukst f}osnh mifLFkrA iwoZ is"kh frfFk 7-9-2009 dks rRdkyhu eq[; dk;Zikyu vf/kdkjh dks lwpuk nsdj cqyk, tkus gsrq vknsf"kr fd;k x;k FkkA lwpuk rkjh[k mijkar vuqifLFkr jgs gSa ,oa lk{; gsrq mifLFkr ugha gq, izdj.k dk fujkdj.k le; lhek esa fd;k tkuk gSA ,slh fLFkfr eq[; dk;Zikyu vf/kdkjh ds lk{; gsrq fn;k x;k volj lekIr fd;k tkrk gSA izdj.k rdZ gsrq 21-9-2007A** 10. Subsequent thereafter, the matter was posted for arguments and the prescribed authority passed the impugned order wherein paragraphs 4, 5 and 6 following conclusions were recorded: ^^4- --- vukosfndk }kjk bl la;qDr tk¡p izfrosnu ds laca/k esa tkapdrkZ vf/kdkfj;ksa ls izfrijh{k.k fd, tkus ds laca/k esa ,d vkosnui= izLrqr fd;k x;k fdarq lacaf/kr vf/kdkfj;ksa ds lqyHk u gksus ds dkj.k izfrijh{k.k dh dk;Zokgh ugha dh tk ldhA 5- --- tkap izfrosnu dks [kaMu ugha djk;k x;k gSA tk¡p izfrosnu izfrijh{k.k djkus ds volj lekIr djus ds vkns"k dks pqukSrh ugha nh xbZ gSA --- 6- --- izdj.k esa layXu ewY;kadu fjiksVZ ,oa eq[; dk;Zikyu vf/kdkjh ds tk¡p izfrosnu ls ljiap ds fo:) yxk;k x;k ;g vkjksi izekf.kr gksrk gSA ---** 11. Thus, the prescribed authority though aware of the fact that the officers who prepared the enquiry report did not appear for cross-examination, yet proceeded to hold the petitioner guilty of charges on the basis of same enquiry report. The procedure, therefore, as adhered to by the prescribed authority cannot, in the considered opinion of this Court, by any stretch of imagination be termed as a fair trial. It is not the case that because the concerning officials who have furnished the enquiry report were not cross-examined, the report was not taken into consideration. On the contrary the prescribed authority has heavily relied upon the findings recorded in the enquiry report and in the considered opinion of this Court not affording of an opportunity to cross-examine the officers who prepared the enquiry report has resulted in miscarriage of justice and denial of a reasonable opportunity of hearing. An order of removal/disqualification based on such defective enquiry cannot be given the stamp of approval. 12. Therefore, the order dated 26.112007 is hereby set aside. Consequent thereof, the subsequent orders dated 7.1.2008 and 5.3.2008 passed in appeal and the revision are also set aside. The matter is remitted to the prescribed authority for further enquiry from the stage when the respective officers who had prepared and furnished the enquiry report were called for cross-examination. The prescribed authority will do well to decide the matter within a period of three months from the date of communication of this order. 13. In the result, the petition is allowed to the extent above. No order as to costs.