ORDER : The petitioner has filed the present writ petition challenging the orders dated 19/03/2019, 09/02/2018 and 26/11/2015 passed by respondents no. 2, 3 and 4 respectively thereby, the petitioner was declared disqualified for contesting the election for a period of six years as well as recovery of Rs.7,19,000/-has been ordered to be made from the petitioner. 2. The petitioner was elected as Sarpanch of Gram Panchayat – Jalgon in the year 2010 and her tenure was upto February 2015. After the tenure of the petitioner, a show-cause notice was issued to the petitioner by respondent no. 4 on 09/09/2015 under sections 40 and 90 of the Madhya Pradesh Panchayat Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to “the Adhiniyam”). The said notice was addressed to the petitioner as well as the Secretary of the Gram Panchayat. In the notice, it has been alleged that during execution of Nirmal Bharat Abhiyan Scheme, several financial irregularities were being committed by the petitioner and the Secretary and therefore, an amount of Rs. 7,19,000/-is recoverable from the petitioner and the Secretary of the Gram Panchayat. The petitioner and the Secretary of the Gram Panchayat submitted a joint reply to the above show-cause notice on 23/09/2015 denying the allegations levelled in the notice. After receiving the reply from the petitioner, no further enquiry has been conducted by the respondents as contemplated under section 40, 89 and 92 of the Adhiniyam and the impugned order/s dated 26/11/2015 has been passed by respondent no. 4. Being aggrieved by this order, the petitioner had preferred an appeal before the Collector, Badwani, but the same was rejected vide order dated 09/02/2018. Against which, the petitioner preferred a revision before the Commissioner, Indore Division, Indore, which has also been rejected, hence the present writ petition before this court has been preferred. 3. Learned counsel for the petitioner has argued that the impugned orders are in violation of principle of natural justice. No enquiry as contemplated under section 89 and 92 of the Adhiniyam has been conducted by the petitioner. There is no adjudication by the respondent/s for holding the petitioner guilty of misconduct. Even the reply submitted by the petitioner has not been considered by the respondent/s. The letter dated 12/12/2014, on the basis of which, the show cause notice has been issued, has not been supplied to the petitioner. There is no adjudication by the respondent/s for holding the petitioner guilty of misconduct. Even the reply submitted by the petitioner has not been considered by the respondent/s. The letter dated 12/12/2014, on the basis of which, the show cause notice has been issued, has not been supplied to the petitioner. He further submits that vide impugned order Annexure-P/3, the petitioner was disqualified for contesting the election, but no opportunity of hearing has been given to the petitioner before passing the impugned order. He further submits that the amount of recovery has been deposited by the petitioner, but the same is refundable to the petitioner because before determination of the amount of recovery, there is no adjudication regarding the fact, whether the petitioner is liable to pay the amount. He submits that at the time, the petitioner deposited the amount, appeal was pending before the Competent Authority, therefore, the amount deposited by the petitioner was under protest subject to decision of the appeal. In light of the aforesaid, impugned orders be set aside and the petitioner be allowed. For the sake of reference, he has relied upon the order/judgment passed by this Court in the case of Narendra Pandey Vs. State of M.P and others reported in 2017 (3) MPLJ 384 , Manita Jaiwar Vs. State of M.P and others reported in 2009 (3) MPHT 70 and Gendalal S/o Bhikaji Vs. State of M.P and others reported in 2006(3) MPLJ 360 . 4. Learned counsel for the respondent/s have filed their reply and in the said reply, the respondents have stated that due to illegality committed by the petitioner, action has been taken against the petitioner under section 92 of the Adhiniyam. It is further stated that the petitioner has deposited the embezzled the funds on 27/12/2018, thus, confirming the fact of financial irregularities. The petitioner has not only committed financial irregularities, but also contributed to the failure of the mission designed to the clean India, thus has committed a serious moral lapse, justifying the action taken against her under sections 40 disqualifying her election for six years. The respondents denied that while passing the impugned orders, reply filed by the petitioner has not been considered, therefore, the impugned action has rightly been taken against the petitioner. 5. The petitioner has filed rejoinder to the reply denying the allegations made in the reply. The respondents denied that while passing the impugned orders, reply filed by the petitioner has not been considered, therefore, the impugned action has rightly been taken against the petitioner. 5. The petitioner has filed rejoinder to the reply denying the allegations made in the reply. They have stated that the amount so deposited by the petitioner was under protest during pendency of the appeal before the competent Authority and therefore, contention of the respondent/s that the petitioner is guilty and therefore, she has deposited the amount, is baseless and denied. 6. Heard learned counsel for the parties and perused the records. 7. In the present case, the petitioner was elected as Sarpanch of Gram Panchayat – Jalgon in the year 2010 and her tenure was upto February 2015. After the tenure of the petitioner, a show-cause notice was issued to the petitioner by respondent no. 4 on 09/09/2015. Joint notice was issued to the petitioner as well as the Secretary. The petitioner and the Secretary of the Gram Panchayat submitted a joint reply to the above show-cause notice on 23/09/2015 denying the allegations levelled in the notice. After receiving the reply from the petitioner, no further enquiry has been conducted by the respondents as contemplated under section 40, 89 and 92 of the Adhiniyam and the impugned order/s dated 26/11/2015 has been passed by respondent no. 4, whereby, the petitioner was declared guilty of misconduct and disqualified to be member of any Panchayat for the period of six years and amount of Rs. 7,19,000/-was also directed to be recovered from the petitioner. Against the said order, the petitioner has filed appeal before the Collector. During pendency of the appeal, the petitioner deposited the amount of her share subject to the pendency of the appeal. The appeal was rejected by the Additional Collector on 09/02/2018, against which, the petitioner preferred revision before the Commissioner, which was also dismissed vide order dated 19/03/2019. The respondent/s has also stated in the reply that the petitioner has admitted her guilt and deposited the amount, therefore, no further enquiry was made in the matter. This Court in the case of Gendalal S/o Bhikaji ( supra) has held that even though, the petitioner has deposited the amount, an enquiry should have been taken place against the petitioner. The respondent/s has also stated in the reply that the petitioner has admitted her guilt and deposited the amount, therefore, no further enquiry was made in the matter. This Court in the case of Gendalal S/o Bhikaji ( supra) has held that even though, the petitioner has deposited the amount, an enquiry should have been taken place against the petitioner. Further from perusal of the records, it reveals that the entire enquiry was conducted behind the back of the petitioner and without giving any opportunity to the petitioner to cross-examine the witnesses. 8. In the case of Kailashchandra Jain Vs. State of M.P and others reported in 2003 (3) MPLJ 269 in para 4 of the judgment, it has been held as under :- “4. Shri B.P. Sahu has submitted the preliminary enquiry report. Enquiry was conducted by Shri Sahu in December, 2000. Show-cause notice was issued on 19-2-2001 under Section 40 of the Act. The report which has been submitted by CEO in the instant case after issue of show-cause notice is in favour of the petitioner. Earlier preliminary enquiry was ex parte enquiry though the statement of the petitioner was recorded. Thus, in my opinion, it was not open to act upon the preliminary enquiry report to remove the petitioner. Bi parte enquiry ought to have been conducted by the SDO giving petitioner opportunity of cross-examination of the witnesses. Nothing of that sort has been done. No semblance of enquiry has been held by the SDO. This Court in Kamal Kishore Krishna Gopal Khandelwal v. Janpad Panchayat, Nalkheda and Ors. MANU/MP/0049/2000, has held that enquiry under Section 40 is not an empty formality. There should be compliance of necessary provisions and person should be punished legally. Person has to be given due opportunity of defending himself by conducting the enquiry in the presence of the Sarpanch who is proposed to be removed. The Sarpanch has to be given opportunity of cross-examination of the witnesses, that opportunity has not been given in the case, if the enquiry report submitted was to be acted upon that is in favour of the petitioner. In case SDO was not to agree with it, further enquiry ought to have been held in presence of the petitioner proper enquiry is required subsequent to issue of show-cause notice. In case SDO was not to agree with it, further enquiry ought to have been held in presence of the petitioner proper enquiry is required subsequent to issue of show-cause notice. Thus, the order of removal of the petitioner cannot be sustained.” Thus, as per the said judgment, a Sarpanch has to be given an opportunity to cross-examine the witness and that opportunity has not given to the petitioner. 9. In the case of Manita Jaiwar(Smt.) vs. State of M.P. & others: reported in I.L.R. (2009) MP 3067 in para 19 has held as under:- 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:— 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. The following discussion has been made by this Court:— 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’ under section 40 of the Act and he has been packed upon 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’. 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 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 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. 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 aright 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.” 10. As per this judgment, before removing the Sarpanch from his office, she should be given an opportunity to cross-examine the witness. 11. 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.” 10. As per this judgment, before removing the Sarpanch from his office, she should be given an opportunity to cross-examine the witness. 11. Thus, in view of the aforesaid details discussions and in the peculiar facts and circumstances of the present case, I deem it proper/appropriate to allow this writ petition. Consequently, petition is hereby allowed. Impugned orders dated 19/03/2019, 09/02/2018 and 26/11/2015 passed by respondent nos. 2, 3 and 4 respectively are hereby quashed. With the aforesaid, petition stands disposed of finally. C.C. as per rules.