ORDER : The petitioner is aggrieved with the orders dated 16/3/2018 passed by the CEO and Competent Authority, District Panchayat, Khargone (respondent No.2) u/S.40 of the M.P. Panchayati Raj Evam Gram Swaraj Adhiniyam, 1993 removing the petitioner from the post of Sarpanch. Petitioner is also aggrieved with the appellate order dated 7/12/2018 passed by the Commissioner. 2. The facts in nut shell are that the petitioner was elected as Sarpanch, Gram Panchayat, Khoi in the year 2015. A show cause notice dated 18/10/2017 was issued to the petitioner by the respondent No.2 u/S.40 of the Act on the allegation that one Smt. Champabai on the basis of the fabricated document by concealing her caste and misleading the Sarpanch and Secretary of the Panchayat had obtained the caste certificate in respect of Scheduled Tribe. The petitioner had filed the reply dated 31/10/2017 stating that by misleading, Champabai had got the caste certificate prepared which was illegal, therefore, the certificate was cancelled. Petitioner had further clarified that her signatures were taken on the basis of incorrect document. Thereafter the respondent No.2 had got the enquiry done and recorded the statement of witnesses and had passed the order dated 16/3/2018 removing the petitioner from the post of Sarpanch. Against this order, appeal preferred by the petitioner has been dismissed by the Commissioner by order dated 7/12/2018. 3. Learned counsel for petitioner submits that the respondent No.2 had not conducted the enquiry as required by Sec.40 of the Act. He submits that the order has been passed on the basis of the enquiry report dated 15/12/2017 Annexure P/8 submitted by the CEO, Janpad Panchayat who was not competent to conduct the enquiry. He further submits that the petitioner had not issued the caste certificate and that it is at the most a case of negligence, hence does not fall within the purview of misconduct u/S.40 of the Act. 4. Learned counsel for respondents supporting the impugned order has submitted that the enquiry has been conducted by the respondent No.2 and that the petitioner had committed misconduct, therefore, she has been removed from the post of Sarpanch. 5. Having heard the learned counsel for parties and on perusal of the record, it is noticed that the only allegation against the petitioner was that she had forwarded the application of one Smt. Champabai for issuing the caste certificate. 5. Having heard the learned counsel for parties and on perusal of the record, it is noticed that the only allegation against the petitioner was that she had forwarded the application of one Smt. Champabai for issuing the caste certificate. The caste certificate by following the due procedure was to be issued by the SDO. The record reflects that the SDO had issued the caste certificate Annexure P/2 dated 12/7/2017 treating Champabai to be a Scheduled Tribe. As soon as the fact that Champabai was a Scheduled Caste came to the notice, SDO had cancelled the caste certificate. In the reply dated 31/10/2017, to the show cause notice, petitioner had clarified that on the basis of the incorrect documents her signatures on the application for caste certificate were taken by Champabai. 6. A perusal of the impugned order dated 16/3/2018 reveals that the petitioner’s plea in this regard has not been duly considered. The respondent No.2 proceeded on the incorrect premises that the caste certificate of Champabai was issued by the petitioner whereas the caste certificate was issued by the SDO. 7. The Commissioner who had passed the impugned appellate order, committed the same error by proceeding on the premises that the caste certificate was issued by the petitioner without even looking at the record. Respondents before this court have failed to produce any material to support such a conclusion that the caste certificate was issued by the petitioner. 8. The record further reveals that the respondent No.2 had passed the impugned order dated 16/3/2018 in a mechanical manner. He had quoted the statements of the witnesses in the order and straightway recorded the finding that the petitioner had concealed the basis on which caste certificate was issued. Section 40 of the Act provides 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. 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, father-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law :] [Provided further 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 lime 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 subsection (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 [x x x] under this Act.” 9. The petitioner has been removed for committing misconduct u/S.40 of the Act. The explanation to Sec.40(1) defines Misconduct and the case of the petitioner can at the most fall under clause (b) but for that “gross negligence” is required to be proved. 10. Supreme Court in the matter of T.A.Kathiru Kunju Vs. Jacob Mathai and another (2017) 5 SCC 755 drawing a distinction between negligence and gross negligence has held that:- “11. The Constitution Bench, in the matter of P, an Advocate, In re has ruled that mere negligence or error of judgment on the part of an advocate would not amount to professional misconduct. Jacob Mathai and another (2017) 5 SCC 755 drawing a distinction between negligence and gross negligence has held that:- “11. The Constitution Bench, in the matter of P, an Advocate, In re has ruled that mere negligence or error of judgment on the part of an advocate would not amount to professional misconduct. It has been further held therein that error of judgment cannot be completely eliminated in all human affairs and mere negligence may not necessarily show that the advocate who is guilty of it can be charged with misconduct. The Constitution Bench, as is 9 demonstrable, has drawn a distinction between “negligence” and the “gross negligence”. We think it appropriate to reproduce the said passage. It is as follows: (AIR p. 1316, para 7) “7. …… But different considerations arise where the negligence of the Advocate is gross. It may be that before condemning an Advocate for misconduct, courts are inclined to examine the question as to whether such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression "moral turpitude or delinquency" is not to receive a narrow construction. Wherever conduct proved against an Advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude. A willful and callous disregard for the interests of the client may, in a proper case, be characterised as conduct unbefitting an Advocate. In dealing with matters of professional propriety, we cannot ignore the fact that the profession of law is an honourable profession and it occupies a place of pride in the liberal professions of the country. Any conduct which makes a person unworthy to belong to the noble fraternity of lawyers or makes an Advocate unfit to be entrusted with the responsible task of looking after the interests of the litigant, must be regarded as conduct involving moral turpitude. The Advocates-on-record like the other members of the Bar Advocates are Officers of the Court and the purity of the administration of justice depends as much on the integrity of the Judges as on the honesty of the Bar. The Advocates-on-record like the other members of the Bar Advocates are Officers of the Court and the purity of the administration of justice depends as much on the integrity of the Judges as on the honesty of the Bar. That is why in dealing with the question as to whether an Advocate has rendered himself unfit to belong to the brotherhood at the Bar, the expression "moral turpitude or delinquency" is not to be construed in an unduly narrow and restricted sense. [Emphasis Supplied] 12. On a careful reading of the aforesaid passage, it is quite clear that concept of “gross negligence” cannot be construed in a narrow or a restricted sense. It is because honesty of an Advocate is extremely significant. The conduct of an Advocate has to be worthy so that he can be called as a member of the noble fraternity of lawyers. It is his obligation to look after the interest of the litigant when is entrusted with the responsible task in trust. An Advocate has to bear in mind that the profession of law is a noble one. In this regard, we may fruitfully refer to what has been stated in Sanjiv Datta Dy. Secy. Ministry of Information & Broadcasting, In re:”(SCC p. 634, para 20) “20. The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. They took their profession seriously and practised it with dignity, deference and devotion. If the profession is to survive, the judicial system has to be vitalised. No service will be too small in making the system efficient, effective and credible.” 13. Slightly recently in Dhanraj Singh Choudhary v. National Vishwakarma, it has been observed:-(SCC p. 747, para 23) “23. The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate’s attitude towards and dealings with his client have to be scrupulously honest and fair.” 14. There can be no doubt that nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate. Keeping that primary principle in view, his conduct has to be weighed. There the approach of appreciating the evidence brought on record and the yardstick to be applied, become quite relevant. A three-Judge Bench in P.D Khandekar while dealing with the scope of an appeal preferred under Section 38 of the Act, ruled that in an appeal under Section 38, this Court in a general rule, cannot interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on mere conjectures and surmises. The Court has further laid down that finding in such disciplinary proceedings must be sustained by a higher degree of proof than that required in civil suits, yet falling short of the proof required to sustain a conviction in a criminal prosecution; and there should be convincing preponderance of evidence. We must immediately note with profit that the said principle is absolutely significant. The Court has stressed upon the rule to be applied for acceptance or treating the finding defensible by the Disciplinary Committee of Bar Council. We must immediately note with profit that the said principle is absolutely significant. The Court has stressed upon the rule to be applied for acceptance or treating the finding defensible by the Disciplinary Committee of Bar Council. In this regard it is fruitful to reproduce the following passage from the said authority:-(P.D. Khandekar case, SCC pp.562-63 para 8) “8. There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In re A Vakil, Coutts Trotter, C.J. followed the decision in re and said that: (A Vakil, In re case, SCC Online Mad para 2) ‘2….negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. Munuswami Naidu.’ The decision was followed by the Calcutta High Court in An Advocate, In re, and by the Allahabad High Court in An Advocate of Agra, In re and by this court in P. An Advocate, In re. 11. Considering the nature of allegation made against the petitioner, the conduct of the petitioner can at the most fall under the category of “negligence” but it cannot be covered within the meaning of “gross negligence”. It is worth noting that the competent authority has not even recorded a finding that the conduct of the petitioner falls within the meaning of gross negligence. There is also no finding that the petitioner had willfully or deliberately forwarded the application of Champabai or that while forwarding such an application, the petitioner had the knowledge of true fact that Champabai was Scheduled Caste and not Scheduled Tribe. 12. The petitioner is an elected Sarpanch, therefore, she cannot be removed on flimsy ground and, therefore, the legislature was careful in including only gross negligence within the meaning of misconduct and not including negligence of routine and trivial nature. 13. 12. The petitioner is an elected Sarpanch, therefore, she cannot be removed on flimsy ground and, therefore, the legislature was careful in including only gross negligence within the meaning of misconduct and not including negligence of routine and trivial nature. 13. The aforesaid relevant aspect of the matter have been completely ignored by the competent authority and appellate authority, therefore, the impugned order dated 16/3/2018 and appellate order dated 7/12/2018 cannot be sustained and are hereby set aside. The writ petition is accordingly allowed.