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2023 DIGILAW 225 (MP)

Manish Yadav v. State Of Madhya Pradesh

2023-02-03

MANINDER S.BHATTI

body2023
ORDER : Maninder S. Bhatti, J. This order shall also govern the disposal of W.P. No.1990/2020. 2. For the sake of convenience the facts of W. P. No.2148/2020 are being taken note of. 3. It is stated in the petition that the petitioner was Sarpanch of the Gram Panchayat, Bhajipani, District Chhindwara. The respondent no.8, committed certain irregularities causing hindrance to the work of gram panchayat. Thereafter, the complaint was also made against the respondent no.8 regarding theft of stone. Therefore, while keeping grudge respondent no.8 made false complaint against the present petitioner. The same ensued in issuance of a show cause notice dated 30-10-2019 (Annexure-P/5) to the petitioner. The said notice was duly replied by the petitioner vide his reply dated 11-11-2019. On 21-11-2019, the petitioner received another show cause notice which was also replied by the petitioner vide his reply dated 06-12-2019. Vide impugned order dated 11-1-2020 without extending any opportunity of hearing, an order under Section 92 was passed against the petitioner by which, on allegation of defalcation of an amount of Rs..5,54,258/-, recovery against the petitioner was ordered and another order dated 13-1-2020 (Annexure-P/8) was passed by which, the petitioner in purported exercise of powers conferred under Section 40 of the M.P. Panchayatraj Evam Gram Swaraj Adhiniyam, 1993 was removed. 4. Thus, assailing these orders dated 11-1-2020 (Anneuxre-P/7) as well as 13-1-2020 (Annexure-P/8), this petition is filed. 5. Learned counsel for the petitioner contends that in the present case, without conducting an inquiry in terms of Section 89 of the Adhiniyam of 1993 directly an order under Section 92 has been passed. It is also contended by the counsel that no inquiry was conducted prior to the passing of order under Section 92 or an under Section 40 of the Adhiniyam of 1993. It is contended by the counsel that the show cause notice dated 21-11-2019 reflects that so far as the removal is concerned, the petitioner was not called upon to revert back and the petitioner was flabbergasted to receive the impugned order dated 13-1-2020 by which, the petitioner has been removed from the post of Sarpanch under Section 40 of the Ahiniyam of 1993. The counsel contends that the order under Section 40 of the Ahiniyam of 1993 having civil consequences could not have been passed without affording opportunity of hearing and without a fulfledged inquiry allowing participation of the petitioner therein. The counsel contends that the order under Section 40 of the Ahiniyam of 1993 having civil consequences could not have been passed without affording opportunity of hearing and without a fulfledged inquiry allowing participation of the petitioner therein. The petitioner being an elected candidate could not have been subjected to the arbitrary action on the strength of the order dated 13-1-2020. 6. It is also contended by the learned counsel for the petitioner that the order of recovery under Section 92 is also grossly misconceived inasmuch as, the same could not have been passed without ensuring procedure laid down under Section 89 of the Ahiniyam of 1993. 7. Learned counsel for the petitioner has placed reliance on the ordered and another order dated 13-1-2020 (Annexure-P/8) was passed by which, the petitioner in purported exercise of powers conferred under Section 40 of the M.P. Panchayatraj Evam Gram Swaraj Adhiniyam, 1993 was removed. decision of this Court in the case of Radheshyam Kochak s/o Jagannath Kochak vs. State of M.P., WP No.7672/2015 which has been relied upon by this Court in the case of Kadam Singh vs. CEO & ors, 2019(1) M.P.L.J. 420 and which has been relied upon by this Court in the cases of Smt. Raina Bai vs. State of M.P., WP No.10060/2019, Narendra and anr. vs. State of M.P. and anr., WP No.10063/2019, Smt. Bullu Baiga vs. State of M.P and ors., W.P. No.23783/2019 and in the case of Trilok Singh Yadav and anr. vs. State of M.P. , WP No.10158/2019 in connected petition. 8. Learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Manita Jaiwar vs State of M.P. and ors., 2009 (3) M.P.L.J. 370 and submitted that the order under Section 40 could not have been passed without conducting a regular inquiry and without permitting the parties to adduce evidence. Thus, submits that impugned order deserves to be quashed. 9. Per contra, learned counsel for the respondent/State has supported the impugned order. It is contended by the counsel for the respondent that the order impugned requires no interference inasmuch as, the petitioner being Sarpanch had failed to perform his duties in accordance with law. Thus, submits that impugned order deserves to be quashed. 9. Per contra, learned counsel for the respondent/State has supported the impugned order. It is contended by the counsel for the respondent that the order impugned requires no interference inasmuch as, the petitioner being Sarpanch had failed to perform his duties in accordance with law. The petitioner was found guilty of embezzlement of the public exchequer and it is not only the petitioner but the Secretary as well as the Sub-Engineer who were also guilty and accordingly, the order under Section 92 have also been passed against them as well. It is contended by the counsel that show cause notice reflects that petitioner herein was guilty of financial irregularities and accordingly, the order under Section 92 has been rightly passed. It is also contended by the counsel that vide Annexure-P/6, a composite notice under Section 40 as well as Section 92 of the Adhiniyam of 1993 was issued to the petitioner and accordingly, after considering the petitioner's reply, the order under Section 40 of the Adhiniyam of 1993 was passed and, therefore, no interference is required. 10. Learned counsel for the respondent no.8 submits that the present petition filed by the petitioner is misconceived inasmuch as, an inquiry was conducted and the Authority while appreciating the inquiry report and also the reply of the petitioner to the show cause notice has rightly passed an order which does not require any interference. It is also contended by the respondent that the present petitioner has been found guilty of embezzlement of amount and therefore, after due opportunity of hearing and adherence to the principle of natural justice, the impugned orders have been passed which requires no interference. 11. Learned counsel for the respondent no.8 further submits that the present petition is liable to be dismissed inasmuch as, there exist an alternative remedy of appeal under Section 91 and without availing the said remedy, the petitioner has directly approached this Court. 12. Learned counsel for the respondent no.8 thus, has placed reliance on the decision of this Court in the case of Roshanlal vs. State of M.P., 2013 SCC online MP 7696, and in the case of Kundan vs. State of M.P., 2021(4) M.P.L.J. 151 submitted that when a notice is issued and a detailed inquiry is conducted there is substantial compliance of principle of natural justice, therefore, no interference is warranted. 13. 13. Learned counsel for the respondent no.8 has also placed reliance on the decision of Bombay High Court in the case of Sony Sales Corporation vs. State of Maharashtra and another, 2021 SCC Online Bom 8082, and it is contended that the interference in writ jurisdiction is exceptional and also is not permitted in routine manner. Thus, submits that the petition deserves to be dismissed. 14. Heard rival submissions and perused the record. 15. To deal with the rival contentions, it is first apposite to refer to the certain statutory provisions which are contained in M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993. 16. Sections 89 and 92 of Adhiniyam of 1993 are reproduced herein:- 89. Liability of Panch etc. for loss, misappropriation.(1) Every Panch, member, officebearer, officer or servant of Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) shall be personally liable for loss, waste or misapplication of any money or other property of the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) to which he has been a party or which has been caused by him by misconduct or gross neglect of his duties. The amount required for reimbursing such loss, waste, or misapplication shall be recovered by the prescribed authority. Provided that no recovery shall be made under this section unless the person concerned has been given a reasonable opportunity of being heard. (2) If the person concerned fails to pay the amount, such amount shall be recovered as arrears of land revenue and credited to the funds of the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) concerned. 92. Power to recover records articles and money. (1) Where the prescribed authority is of the opinion that any person has un-authorisedly in his custody any record or article or money belonging to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), he may, by a written order, require that the record of article or money be delivered or paid forthwith to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), in the presence of such officer as may be appointed by the prescribed authority in this behalf. (2) If any person fails or refuses to deliver the record or article or pay the money as directed under subsection (1) the prescribed authority may cause him to be apprehended any may send him with a warrant in such form as may be prescribed, to be confined in a Civil Jail for a period not longer than thirty days. (3) The prescribed authority may- (a) for recovering any such money direct that such money be recovered as an arrear of land revenue; and (b) for recovering any such record or articles issue a search warrant and exercise all such powers with respect thereto as may lawfully be exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure, 1973 (No.2 of 1974). (4) No action under sub-section (1) or (2) or (3) shall be taken unless a reasonable opportunity has been given to the person concerned to show cause why such action should not be taken against him. (4-A) The case pertaining to recovery of any record or article or money initiated by the prescribed authority shall be disposed of within six months from the date of initiation. (5) A person against whom an action is taken under this section shall be disqualified to be member of any Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha) for a period of (six) years commencing from the initiation of such action. 17. It is being noticed often that the Authorities are under misconception or misconstruing the statutory provisions are issuing notices under Sections 89 and 92 of the Adhiniyam of 1993. 18. Now if both the aforesaid Sections are placed at juxtaposition, it would reveal that the Section 89 pertains to eventuality where loss, waste or misapplication of any money or other property of the Panchayat is caused by an Office Bearer or Officer or Servant etc. The Section 89 provides that the such loss, waste or misapplication of any money or other property is caused by such Office Bearer etc, by misconduct or gross neglect of his duties. Section 89 further stipulates that the amount required for reimbursing such loss, waste or misapplication of any money or other property shall be recovered by the prescribed Authority after extending opportunity of hearing to the person concerned. Section 89 further stipulates that the amount required for reimbursing such loss, waste or misapplication of any money or other property shall be recovered by the prescribed Authority after extending opportunity of hearing to the person concerned. Sub Section 2 of Section 89 provides that if the person concerned fails to pay the amount such amount shall be recovered as arrears of land revenue and credited to the funds of the Panchayat. Therefore, Section 89 deals with the eventuality of the loss, waste or misapplication of any money or other property of the Panchayat at the instance of an Office Bearer or Officer or Servant etc. 19. If Section 92 is now compared with Section 89, Section 92 stipulates that if the prescribed Authority is of the opinion that any person has un-authorisedly in his custody any record or article or money belonging to the Panchayat, he may, by a written order, require that the record or article or money be delivered or paid forthwith to the Panchayat. 20. Thereafter, Sub Section 2 of Section 92 provides that if the person fails or refuses to deliver the record or article or pay the money, the prescribed Authority may cause him to be apprehended and may send him a warrant to be confined in a Civil Jail for a period not longer than thirty days. 21. The Sub Section (3) of Section 92 provides that for recovery of money, the procedure which is followed for recovery of arrears of land revenue shall be followed and for recovery of any record or articles, the powers which are vested in a Magistrate under the provisions of Chapter VII of Cr.P.C. shall be available to the prescribed Authority. 22. Thus, a comparison of Sections 89 and 92 reflect that Section 89, deals with the eventuality which pertains to loss, waste or misapplication of any money or any property of the Panchayat by any Office Bearer, Member or Servant of Panchayat and the same Section 89 provides that the said liability has direct nexus with misconduct or gross neglect of duties. Accordingly, the proviso contained in Section 89(1) provides that no recovery shall be made under this Section unless the person concerned has been given a reasonable opportunity of being heard. Accordingly, the proviso contained in Section 89(1) provides that no recovery shall be made under this Section unless the person concerned has been given a reasonable opportunity of being heard. Thus, Section 89 itself is the complete statutory provision, which empowers the prescribed Authority to recover the amount towards the loss, waste, misapplication of any money or other property of the Panchayat as arrears of land revenue. 23. On the contrary, Section 92 provides that when any person has unauthorisedly in his custody any record or article or money belonging to the Panchayat. Meaning thereby, Section 89 is only confined to the Panch, Member, Office Bearer, Officer or Servant of the Panchayat whereas Section 92 stipulates that if anyone has unauthorised custody of any record or article or money belonging to the Panchayat, he shall be called upon to deliver the said property or pay the said money to the Panchayat and if, the said person fails to deliver these article or record or pay the money then, the person concerned maybe apprehended and be confined in a Civil Jail in terms of provisions of Sub Section 2 of Section 92. Therefore, Section 92(1) itself does not contain any provision of issuance of notice. The issuance of notice under Section 92 was cautiously not made a condition precedent by the legislature inasmuch as, that by way of Section 92, the person concerned is called upon to deliver back, the record or article or money belonging to the Panchayat. Once such person delivers the said record or article or money to the Panchayat, the further actions which are stipulated in Sub Sections 2, 3, 4 and 5 of Section 92 are need not to be taken recourse to. As soon as, the article or money or record are delivered by such person, there will not be any occasion to proceed further in terms of Sub Sections 2, 3, 4 and 5 of Section 92. Thus, so far as Section 92 is concerned, the same does not stipulate issuance of any show cause notice to the petitioner inasmuch as, Section 92(1) does not provide for any penal action inasmuch as, after delivery of article or money or record and the prescribed Authority for the purposes of Section 92 becomes functus officio if the said article or money or record are delivered back 24. Per contra, Section 89, which is confined to the Panch, Member, Office Bearer, Officer or Servant of the Panchayat deals with their individual misconduct which has resulted into loss, waste, or misapplication of any money or other property of the Panchayat. It is apparent that Section 89 provides for hearing to the aforesaid Office Bearer, Officer or Servant only for the reason that the proceedings under Section 89 can only be initiated on the allegation of misconduct or gross neglect of duties. Therefore, if there are allegations of misconduct which has direct nexus with the performance of duties of the person concerned and has also effect of casting of stigma, the legislature has provided for an opportunity of hearing by issuing a show cause notice to the person concerned. 25. Thus, the reading of the aforesaid provisions under Sections 89 and 92 reflect that both the provisions operate in all together different field and have no connection whatsoever with each other. It is nowhere mentioned in Section 92 that the same comes into force when proceedings under Section 89 have been taken recourse to. Both the provisions are different in view of the sole reason that the Section 89 is confined to Panch, Member, Office Bearer, Officer or Servant of the Panchayat whereas Section 92, is confined to any person and such person need not to be any Office Bearer or Employee or Member or Officer etc of the Panchayat. Now, if the show cause notice which was issued to the petitioner is perused, the same would reveal that against the petitioner, Secretary, Rojgar Sahyak and Sub Engineer the allegations were levelled that there were lapses in performance of the duties which resulted in financial liabilities upon the Panchayat. 26. The, further allegations were that the constructions pertaining to the road were not up to the mark and without any approval, the amount was paid to the concerned contractor. The allegations were also pertaining to the constructions of drainage and roads etc. Therefore, if the entire notice which is contained in Annexure-P/6 is perused, the same nowhere says that the petitioner or any other persons were in possession of any property of the Panchayat like record, article or money on the contrary, the allegations were pertaining to the loss as well as misapplication of the money of the Panchayat. Therefore, if the entire notice which is contained in Annexure-P/6 is perused, the same nowhere says that the petitioner or any other persons were in possession of any property of the Panchayat like record, article or money on the contrary, the allegations were pertaining to the loss as well as misapplication of the money of the Panchayat. The allegations were directly attributed to the misconduct or negligence on the part of the petitioner. Therefore, the notice which is contained in Annexure-P/6 though said to be issued in exercise of powers under Section 92 but, the perusal of the same reflect that the said notice was issued under Section 89 only. Therefore, it was a case of mis quoting of a provision. The Authority instead of Section 92 ought to have mentioned Section 89 in the notice. 27. To deal with the contention of the petitioner that in absence of any proceedings under Section 89, directly, an order under Section 92 cannot be passed. The counsel in support of the said arguments has placed reliance on the decision of this Court in the case of Kadam Singh (supra). 28. This Court in the case of Radheshyam Kochak s/o Jagannath Kochak vs. State of M.P, WP No.7672/2015, held in paragraphs 09 and 10 as under:- 9. From bare perusal of section 89 it is clear that every Panch, member, office-bearer, officer or servant of Panchayat shall be personally liable for the loss, waste or misappropriation of any money or other property of the Panchayat to which he has been a party or which has been caused by him by misconduct or gross neglect of his duties. The said amount is liable to be recovered by the prescribed authority. As per the proviso to this section no recovery shall be made under this section unless the person concerned has been given a reasonable opportunity of being heard. That every Panch, member, office-bearer, officer or servant of Panchayat may be existing or ex or removed who has caused loss to the Panchayat by misconduct or gross neglect of his duties and required for reimbursing such loss, waste or misapplication and same can be recovered even after demitting office by them, as the case may be. The section 89 specifically provides that an adjudication must be done and as per the proviso reasonable opportunity of hearing ought to have been given to those persons. The section 89 specifically provides that an adjudication must be done and as per the proviso reasonable opportunity of hearing ought to have been given to those persons. In the present case there is no such adjudication under section 89 of the Act. 10. After adjudication under section 89, section 92 gives power to prescribed authority to recover the records, articles and money belonging to the Panchayat from the custody of any person. Under sub-section (2) of section 92 if any person fails or refuses to deliver the record or article or pay the money then the prescribed authority may apprehend him with a warrant for sending him to civil jail and under sub-section (3) may recover such money as arrears of land revenue. As such under section 92 powers are given to the prescribed authority for execution of the order passed under section 89. In the present case there is no adjudication under section 89, therefore, there cannot be any execution proceeding or order passed therein under section 92 of the Act. The prescribed authority has straight away on the basis of ex parte enquiry report. 29. The judgment of this Court in the case of Radheshyam Kochak (supra) has also been relied upon in other cases mentioned in paragraph 7 of this order and has observed that the powers have been given to the prescribed Authority under Section 92 to execute the order passed under Section 89 and, therefore, the Court while dealing with the said case observed that as there was no adjudication under Section 89 thus, concluded that there could not have been any execution proceedings or order under Section 92. As, the Section 89 (2) reflects that if any person who has been found guilty of loss, waste, misapplication of any money or other property of the Panchayat and if the person fails to pay the amount the said amount shall be recovered as arrears of land revenue. Therefore, the execution of an order under Section 89 (1) is provided in Section 89(2) of the Adhiniyam itself. 30. Therefore, the execution of an order under Section 89 (1) is provided in Section 89(2) of the Adhiniyam itself. 30. So far as, Section 92 (3) is concerned, there are powers to execute an order which is passed under Section 92 not only by initiating a recovery in terms of the same procedure which is adopted to recover arrears of land revenue and in addition, the powers are vested with the prescribed Authority which are exercised by a Magistrate under Chapter VII of Cr.P.C. Thus, in Section 89 as well as Section 92 there are independent provisions of execution of the orders which are passed under both the provisions. 31. Therefore, I am in respectful disagreement with the view expressed by the Single Bench of this Court in the case of Radheshyam Kochak (supra) which has been relied upon in Kadam Singh (supra), Smt. Raina Bai (supra), Smt. Bullu Baiga (supra), Smt. Narendra and anr. (supra) and in the case of Trilok Singh Yadav (supra). 32. Now, if the reply of the petitioner is perused which has also been brought on record, reflects that the petitioner though controverted the allegations which were levelled against the petitioner in the show cause notice but claimed relaxation in amount of recovery 33. The operative para of the reply to the show cause notice by the petitioner is important and which is being reproduced herein:- 34. A perusal of the said reply reflects that the petitioner in the reply sought relaxation from the recovery of amount. The petitioner further prayed that the proceedings against the petitioner be dropped. The said notice was considered by the Authorities and the Authorities while considering the allegations which were levelled against the petitioner and also considering the reply of the petitioner, passed an order of recovery dated 11-1-2020, thus, so far as the order dated 11-1-2020 (Annexure-P/7) is concerned, no interference is required. Therefore, so far as order dated 11-1-2020 is concerned this petition and connected W. P. No.1990/2020 stand dismissed. 35. So far as the order dated 13-1-2020 (Annexure-P/8) is concerned by which, the petitioner has been removed from the post of Sarpanch, it is contrary to the law laid down by this Court in the case of Kailash Kumar Dangi vs. State of M.P., 1999(2) M.P.L.J. 722 . 36. This Court in the case of Kailash Kumar Dangi (supra) held in paragraph no.14 as under:- 14. 36. This Court in the case of Kailash Kumar Dangi (supra) held in paragraph no.14 as under:- 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- 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'. 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, 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. 37. Thereafter, this Court in the case of Mango Bai vs. State of M.P., 2003(2) M.P.L.J. 112 , held as under:- 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. 38. Thereafter, the Division Bench of this Court in the case of the Manita Jaiwar vs. State of M.P., 2009(3) M.P.L.J. 370 , held in paragraph 7 as under:- 7. Considering the aforesaid decisions of this Court, the procedure adopted and on going through the file of the SDO which has been produced, it cannot be said that due and proper enquiry was conducted by the SDO before ordering the removal of the petitioner from the post of Sarpanch including disqualification to contest the election, it carries civil consequences. Considering the aforesaid decisions of this Court, the procedure adopted and on going through the file of the SDO which has been produced, it cannot be said that due and proper enquiry was conducted by the SDO before ordering the removal of the petitioner from the post of Sarpanch including disqualification to contest the election, it carries civil consequences. Consequently, the impugned orders (P-3), (P-4) and (P-5) cannot be permitted to prevail, they are hereby quashed. Case is remitted back to the SDO to deal with the case in the light of the aforesaid discussion made by this Court. The SDO shall examine the witnesses and afford an opportunity to the petitioner to cross-examine the witnesses. Copy of report of Enquiry Officer shall also be supplied to the petitioner, if it is to be utilized. Petitioner shall be given opportunity of adducing the evidence as against the charges levelled against her and thereafter, a reasoned and considered decision has to be rendered by the SDO in accordance with law. Let enquiry be conducted in accordance with law within a period of four months. 39. Therefore, the order of removal of a Sarpanch cannot be passed unless due opportunity of hearing is afforded to the person concerned and the same requires adducing of evidence. In the present case, undisputedly an order under Section 40 has been passed without permitting the petitioner to adduce evidence and the respondents have further failed to establish that after permitting the parties to adduce evidence and also allowing petitioner participation in the alleged inquiry the order has been passed, therefore, in the considered view of this Court, the order dated 13-1-2020 (Annexure-P/8) is unsustainable and accordingly, the same stands quashed. 40. It is undisputed that the petitioner's tenure as Sarpanch is already over but, since the order impugned dated 13-1-2020 (Annexure-P/8) also disqualify the petitioner from contesting any election for a period of six years in future, this order shall not come in the way of respondents, if they decide to proceed against the petitioner afresh in accordance with law while keeping in view the law laid down by this Court in the case of Kailash Dangi (supra) and Mango Bai (supra). 41. In view of the aforesaid, the petition accordingly, stands disposed off.