ORDER : 1. Petitioner is an elected Member of Jila Panchayat Kabirdham. Respondent No.4 submitted an application under Section 40 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short 'the Adhiniyam 1993') pleading therein that number of criminal cases are registered against the petitioner including FIR for the offence defined under Section 153A of the Indian Penal Code, which relates to promoting enmity between different groups on grounds of religion race, etc. and doing acts prejudicial to maintenance of harmony between different religions, racial, languages etc. and cause adverse effect in the society. On account of acts and registration of criminal cases, petitioner has committed misconduct in discharge of his duties and therefore, his continuance in the office is undesirable in the public interest. After receipt of show-cause notice, petitioner initially submitted preliminary objection with regard to maintainability of proceeding under Section 40 of the Adhiniyam, 1993, which came to be dismissed, and thereafter petitioner submitted reply to application submitted under Section 40 of the Adhiniyam, 1993. Immediately after submission of reply to notice under Section 40 of the Adhiniyam, respondent No.3 fixed the case for final arguments, which made the petitioner to file this writ petition seeking following relief:- “10.1. To call for the records of the case for the kind perusal of this Hon'ble Court. 10.2. To issue an appropriate writ or order and declare that the order dated 28.06.23 contained in Annexure P-1 is illegal, bad in law, suffers from vice of malice and is in clear contravention of provisions contained under the Act of 1993. 10.3. To issue an appropriate writ or order and quash the order dated 28.06.23 contained in Annexure P-1. 10.4. Any other relief deemed fit in the facts and circumstances of the case may also be granted.” 2. Learned Senior Counsel for petitioner submitted that proceeding initiated against petitioner is under Section 40 of the Adhiniyam 1993, for removing him from the post of Member of Jila Panchayat. Proviso to sub-section (1) of Section 40 of the Adhiniyam 1993, provides that no person shall be removed unless he has been given an opportunity to show-cause as to why he should not be removed from his office. Proviso to sub-section (1) of Section 40 of the Adhiniyam 1993, provides that no person shall be removed unless he has been given an opportunity to show-cause as to why he should not be removed from his office. Petitioner in his reply denied the contents of application filed under Section 40 of the Adhiniyam 1993, and therefore, the Prescribed Authority i.e. respondent No.3, is under an obligation to conduct enquiry as envisaged under Section 40 (1). However, respondent No.3 straight-away fixed the case for final arguments without fixing it for recording of evidence, which is in contravention of provisions of Section 40. Allegation levelled in the application submitted by respondent No.4 that on account of registration of criminal cases under the provisions of the Indian Penal Code the harmony and spirit of common brotherhood will be affected, is specifically denied by petitioner in his reply and therefore, it has become incumbent upon respondent No.4-complainant to prove the pleadings / allegations made in the application submitted by him. Non-recording of evidence amounts to denial of fair opportunity to petitioner which may result into serious prejudice to him, he will not be able to defend the allegations in proper manner. Removal of office bearer of Panchayat under Section 40 on the allegation of misconduct is injurious and stigmatic, therefore, any such action can be taken only after following the procedure prescribed under Section 40 i.e. conducting enquiry etc. In support of his submissions, he placed reliance on the decision in cases of Kailash Kumar Parmanand Dangi vs. State of M.P. & Ors., reported in 1999 (2) MPHT 722 and Khem Chand vs. Union of India, reported in AIR 1958 SC 300 . It is also contention that in none of the criminal cases petitioner is convicted. Cases against petitioner are registered only because of the political vendetta. 3. Learned Advocate General for the State vehemently opposed the submissions of learned Senior Counsel for petitioner and submitted that as many as eight criminal cases are registered against petitioner, details of which are specifically mentioned in the application under Section 40 of the Adhiniyam, 1993. Fact of registration of criminal cases is not disputed by petitioner in his reply in specific terms and therefore, there is no requirement of fixing the case for recording of evidence or conducting enquiry. Fact of registration of criminal cases is not disputed by petitioner in his reply in specific terms and therefore, there is no requirement of fixing the case for recording of evidence or conducting enquiry. Provision under Section 40 of the Adhiniyam 1993, talks of opportunity to show-cause to an office bearer to explain as to why he/she should not be removed from his/her office. Complying with the aforementioned provision, the Prescribed Authority issued show-cause notice to the petitioner, he submitted preliminary objection, upon dismissal of preliminary objection, petitioner submitted reply to application under Section 40 of the Adhiniyam 1993, and only thereafter the Prescribed Authority fixed the case for final arguments. The procedure adopted by the Prescribed Authority cannot be said to be arbitrary or contrary to any provision of the Adhiniyam 1993. He further submitted that provision of Section 40 provides for such enquiry as the Prescribed Authority may deem fit, which means a discretion is granted to the Prescribed Authority as to what would be the nature of enquiry in the facts of each case and therefore, also fixing case for final hearing after receipt of reply of petitioner, in no manner, can be said to be in contravention of any of the provisions of the Adhiniyam 1993. 4. Learned counsel for respondent No.3 adopted arguments advanced by learned Advocate General for the State and added that registration of offence under Sections 295, 153 of IPC and submission of charge sheet can be a ground for initiating proceeding under Section 40 of the Adhiniyam 1993. As the petitioner was given show-cause notice seeking reply to which petitioner has already submitted, the requirement under Section 40 (1) stands fulfilled. 5. I have heard learned counsel for the parties and perused the documents placed on record. 6. Writ petition is filed alleging that the Prescribed Authority (respondent No.3) is not proceeding with the case registered under Section 40 of the Adhiniyam, 1993 in accordance with the procedure prescribed therein. 7. To appreciate submissions of learned counsel for respective parties, I find it appropriate to extract Section 40 of the Adhiniyam, 1993 herein below:- “40. Removal of office-bearers of Panchayat. 7. To appreciate submissions of learned counsel for respective parties, I find it appropriate to extract Section 40 of the Adhiniyam, 1993 herein below:- “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.” 8. Application under Section 40 of the Adhiniyam, 1993 is filed by respondent No.4 seeking removal of petitioner from his office on the ground that total eight criminal cases are registered against the petitioner under various sections of the IPC including Sections 153A & 295. It is pleaded in the application that petitioner is guilty of misconduct because the acts of petitioner will affect “harmony and spirit of common brotherhood amongst all the people of State transcending religious linguistic and regional or sectional diversities. Pleadings made in the application are denied by the petitioner in his reply stating that petitioner is a social worker working for the benefits and interest of residents of District Kabirdham and criminal cases are registered against him due to political rivalry. In view of pleadings/allegations in applications and its denial by petitioner in his reply, submission of learned counsel for respondents that petitioner has admitted the allegation/fact of registration of criminal cases is not sustainable. 9. In view of pleadings/allegations in applications and its denial by petitioner in his reply, submission of learned counsel for respondents that petitioner has admitted the allegation/fact of registration of criminal cases is not sustainable. 9. Under Section 40 of the Adhiniyam, 1993 an office bearer can be removed if he/she has been found guilty of misconduct in discharge of his/her duties or if continuance of such office bearer in the office is undesirable in the interest of public. Misconduct is further explained under Section 40 of the Adhiniyam. If there is allegation of any misconduct to have been committed by any office bearer of Panchayat then the same is required to be proved in accordance with law, more so when there is specific denial of such allegation in reply. 10. Under Section 40, the Prescribed Authority may remove an office bearer after conducting enquiry either to remove on misconduct or continuance of such office bearer is undesirable in the interest of public. Merely registration of a criminal case by police is not a ground provided under Section 40 of the Adhiniyam 1993, for removal of an office bearer. Grounds are also specifically provided in the provision. Prescribed Authority has to record satisfaction that allegations made in application exist and proved by complainant. 11. The word 'enquiry' used in Section 40 of the Adhiniyam, 1993 is with purpose. In common parlance, the word 'enquiry' means the office bearer should be allowed to inspect documents, which are to be relied upon against him, and further he should have right to adduce his own evidence. Further, 'enquiry' means enquiry before the office bearer and not behind his back. The High Court of Madhya Pradesh in case of Kailash Kumar Paramanand Dangi Vs. State of M.P. & ors, reported in 1999 (2) MPLJ 722 , has observed in Para-7 & 9 thus:- “7. Removal and disqualification of an office-bearer of a Panchayat under Section 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. 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 v. T.R. Verma, AIR 1957 SC 882 and Khemchand v. Union of India, AIR 1958 SC 300 . 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 so-called 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 any body, 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 any body 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." 12. In the order sheet dated 1.3.2023 filed along with writ petition, it is mentioned that some report is called from the office of the Collector. It is submission of learned Senior Counsel for the petitioner that report called for by the Prescribed Authority was not supplied to the petitioner. Opportunity to show-cause, as used in Section 40, is not mere empty formality but the opportunity should be real one. It is submission of learned Senior Counsel for the petitioner that report called for by the Prescribed Authority was not supplied to the petitioner. Opportunity to show-cause, as used in Section 40, is not mere empty formality but the opportunity should be real one. It is not only the allegations, which are to be told/informed, but he must also be informed all the materials which are sought to be used against him in support of the allegations/charges against him. Report was called by the Prescribed Authority through letter from the Collector and it is also made part of record. Once any document is made part of record, it can be considered against petitioner for taking decision on the application filed under Section 40 of the Adhiniyam, 1993 and therefore, in view of the scheme of the Adhiniyam, 1993 and provision under Section 40, the Prescribed Authority ought to have supplied copy of report to the petitioner. The principles of natural justice are used to supplement the statutory procedure which provides for a hearing or enquiry with or without detailed regulation or the procedure. It will not be proper to start with a pre-conceived notion that the person against whom the action is proposed is guilty. 13. The Hon'ble High Court of Madhya Pradesh in case of Raja Raj Singh v. State of M.P. & Ors., reported in 2000 (1) MPHT 490 has observed thus:- “.....It is submitted by Mr. Bhatti, on a perusal of the impugned order passed by the prescribed authority, it is perceptible that the persons who made complaints against the petitioner were not examined by the prescribed authority and the petitioner could not have cross-examined them but, unfortunately the statements of the said witnesses have been considered by the Collector and been utilised against the petitioner. On a perusal of the record, it is noticed that this fact is borne out on record and the learned counsel for the State is not in a position to dispute the same. Quite apart from that, it is noticeable that the petitioner's application for supply of documents had not been properly construed by the prescribed authority, as the petitioner was supplied only the inquiry report but not the materials/other documents. Quite apart from that, it is noticeable that the petitioner's application for supply of documents had not been properly construed by the prescribed authority, as the petitioner was supplied only the inquiry report but not the materials/other documents. An interesting feature which cannot be lost sight of is that the appellate authority has called for these documents by order dated 8-4-99 but it does not appear that the petitioner was supplied the said documents. It has been ruled in the case of Bansmani (supra), the documents which are sought to be utilised against the holder of the office, should be supplied to him so that he can have fair chance to rebut the same. As the factual matrix indicates the materials collected against the petitioner were not supplied to him and further the petitioner was not granted sufficient opportunity to produce his evidence to rebut the allegations made against him, I am of the considered view, the order passed by the prescribed authority and affirmed by the appellate authority are vulnerable being violative of principles of natural justice as well as being against the basic concept of adjudicating process and accordingly, the said contained in Annexures P-12 and P-18 are hereby quashed....” 14. Removal of an office bearer, who is directly elected, is a serious matter. Officer bearer, who is removed, may further declare disqualify for a period of six years to be elected under the Adhiniyam 1993 and therefore it is not sufficient to give a mere lip-service to the requirement of law. Principles of natural justice to be followed while holding an enquiry is implicit in the provisions. 15. Hon'ble Supreme Court in case of Tarlochan Dev Sharma vs. State of Punjab & Ors., reported in (2001) 6 SCC 260 while dealing with removal of President of Council under the Punjab Municipal Act, 1911 has observed thus:- “7. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. In a democracy governed by rule of law, once elected to an office in a democratic institution, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law. That a returned candidate must hold and enjoy the office and discharge the duties related therewith during the term specified by the relevant enactment is a valuable statutory right not only of the returned candidate but also of the constituency or the electoral college which he represents. Removal from such an office is a serious matter. It curtails the statutory term of the holder of the office. A stigma is cast on the holder of the office in view of certain allegations having been held proved rendering him unworthy of holding the office which he held....” 16. Hon'ble Supreme Court in case of State Bank of Patiala & Ors. vs. S.K. Sharma, reported in AIR 1996 SC 1669 after considering its earlier decisions has formulated the test of prejudice, that is, whether the person has received a fair hearing considering all things, and Rule (5) formulated in the aforementioned decision reads 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). 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". In the case at hand, there was not total violation of principles of natural justice because show cause notice was given and reply was filed. But, in the facts of case, nature of allegation in application, its reply, the principle of natural justice, as discussed above, is not followed and case is fixed for final argument without fixing case for recording of evidence. 17. Application under Section 40 of the Adhiniyam, 1993 is filed only on the ground of registration of criminal cases against the petitioner, however, there is no specific pleading that in any of criminal cases, petitioner was convicted by the Court of competent jurisdiction. Registration of criminal case against an office bearer is not mentioned as one of the grounds under Section 40 for removal of an office bearer of panchayat from his office. Ground mentioned under sub-section (1) of Section 40 for removal of an office bearer is 'if he has been guilty of misconduct in the discharge of duties or if his continuance in office is undesirable in the interest of public'. The word 'misconduct' is further explained. The Prescribed Authority even to record a finding that elected office bearer is guilty of misconduct, he has to record the nature of misconduct, as mentioned under explanation, which requires proof and therefore, nature of enquiry as envisaged under Section 40 means recording of evidence also to prove the pleadings/ allegations, giving opportunity to cross-examine and to lead evidence when allegations are denied. 18. So far as removal of an office bearer under Section 40 (1) (b) of the Adhiniyam, 1993 in the interest of public is concerned, in such a situation also it is for the Collector to apply his mind on the allegations proved. 18. So far as removal of an office bearer under Section 40 (1) (b) of the Adhiniyam, 1993 in the interest of public is concerned, in such a situation also it is for the Collector to apply his mind on the allegations proved. In the case at hand, the petitioner has specifically pleaded in reply that he has been falsely implicated in criminal cases due to political enmity. 19. In the above circumstances, in the opinion of this Court, the Prescribed Authority erred in fixing Case No.25/2023 (Virendra Kumar Jangde vs. Vijay Kumar Sharma) for final arguments only on the basis of pleadings in application under Section 40 of the Adhiniyam 1993 and reply, without conducting proper enquiry, which is in contravention of the provisions of Section 40 of the Adhiniyam 1993 and in violation of principles of natural justice. 20. For the foregoing discussion, writ petition is allowed. Order dated 28.6.2023 (Annexure P-1) is hereby set aside. Respondent No.2 is directed to proceed with proceeding under Section 40 of the Adhiniyam 1993 in accordance with the scheme of Section 40 i.e. to conduct enquiry as observed above and thereafter to post the case for final hearing and orders. 21. With the above observation and direction, this writ petition stands disposed of. No order as to costs. 22. Certified copy as per rules.