1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL NO. 399 OF 2008 Nagorao Supaji Tale .vs. The Divisional Commissioner, Amravati Division, Amravati & others. ________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Court's or Judge's orders. Registrars orders. Mr. A. Parchure, Advocate for appellant, Mr. N.W. Sambre, G.P. For respondent nos. 1, 2 & 4, Mr. S.S. Wankhede, Advocate for respondent no.5. CORAM: D.K. DESHMUKH & PRASANNA B. VARALE, JJ. DATED: DECEMBER 17, 2008. Admit. 2. Heard finally by consent of the parties. 3. By this appeal, the appellant challenges the order passed by the learned Single Judge dated 4.12.2008 in Writ Petition No. 4083/08. That petition was also filed by the petitioner challenging the order passed by the Additional Commissioner, Amravati Division, Amravati dated 15.4.2008 as also the order passed by the respondent no.4 State Government dated 30.8.2008. By the order dated 15.4.2008 the petitioner who was elected member of Village Panchayat, Dongaon was removed from office because of a complaint made by the members of the Village Panchayat under the provisions of Section 39 of the Bombay Village Panchayats Act, 1958. 4. The relevant and admitted facts are that a complaint was filed on 2.7.2007 by 13 members of Village Panchayat, Dongaon against the petitioner. 2 It appears that an enquiry was conducted into that complaint by the Extension Officer of Panchayat Samiti, Mehkar on 13.7.2007. The Extension Officer prepared a report dated 26.7.2007 pursuant to the enquiry held by him. He submitted that report to the Chief Executive Officer of the Zilla Parishad, Buldana on 13.8.2007. The Chief Executive Officer sought permission from the Commissioner, Amravati Division, Amravati to conduct enquiry under Section 39 against the petitioner. That permission was granted by the Commissioner by order dated 8.11.2007. On 30.11.2007 a show-cause notice was issued by the Chief Executive Officer to the petitioner asking petitioner to show-cause why he should not be removed from office because of the aforesaid complaint. A reply was filed by the petitioner to show-cause notice on 17.12.2007. The petitioner was asked to remain present before the Chief Executive Officer on 15.1.2008. The petitioner sought time and it appears that the time was not granted and on 28.1.2008 report was submitted by the Chief Executive Officer to the Commissioner, Amravati Division, Amravati. The Commissioner, Amravati Division, Amravati issued notice to the petitioner and thereafter the Commissioner made an order for removal of the petitioner from the office of Member. That order was challenged before the State Government but that challenge also failed. Therefore, both the orders were challenged before the learned Single Judge. 5. The learned Single Judge has dismissed that petition by order dated 4.12.2008. 6. The principal grievance of the petitioner before us is that it was the case of the petitioner that in making the order of his removal, the procedure laid down by Section 39 has not been followed. It was submitted that under sub-section (1) of Section 39 it is the Chief Executive Officer who has to hold enquiry into the allegations made against a Member of the Village Panchayat 3 after issuing notice to the Panchayat and the members concerned and it is thereafter that a show-cause notice can be issued and an opportunity of being heard can be given to the person concerned. It is submitted that in the present case enquiry was held not by the Chief Executive Officer but by the Extension Officer and on the basis of his report show-cause notice was given to the petitioner and thereafter report was submitted by the Chief Executive Officer. 7. The learned Counsel appearing for the respondents, on the other hand, submitted that enquiry was held by the Chief Executive Officer in the sense that he perused the reply filed by the petitioner. He also went through the documents which were made available to him by the Secretary of the Panchayat and then submitted the report. In the submission of the learned Counsel, the procedure thus followed by the Chief Executive Officer was as per the provisions of Section 39 of the Act. 8. Now for the purpose of deciding whether the procedure followed by the Chief Executive Officer was in accordance with the provisions of Section 39, we have first to see the provisions of Section 39 of the Bombay Village Panchayat Act, 1958, which read as under :- “S.39(1) The Commissioner may-- (i)remove from office any member or any Sarpanch or UpaSarpanch who has been guilty of misconduct in the discharge of his duties, or of any disgraceful conduct, or of neglect of or incapacity to perform his duty, or is persistently remiss in the discharge thereof. A Sarpanch or an Upa-Sarpanch so removed may at the discretion of the Commissioner also be removed from the panchayat; or 4 (ii) remove from office the member, Sarpanch or, as the case may be, Upa-Sarpanch, if not less than twenty per cent, of the total number of voters in the village who have paid all dues of the panchayat regarding taxes on buildings and lands and water charges, make a complaint that the annual accounts and the report of the expenditure incurred by the panchayat on the development activities are not placed before the Gram Sabha; and the information thereof is not displayed on the notice board as required by sub-section (1) or (1A) of section 8 : Provided that, no such person shall be removed from office unless, in case of clause (i), the Chief Executive Officer or in case of clause (ii), the Deputy Chief Executive Officer as directed by the Chief Executive Officer; under the orders of the Commissioner, holds an inquiry after giving due notice to the panchayat and the person concerned; and the person concerned has been given a reasonable opportunity of being heard and thereafter the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer concerned, through the Chief Executive Officer, submits his report to the Commissioner. The inquiry officer shall submit his report within a period of one month : Provided further that, the Commissioner shall, after giving the person concerned a reasonable opportunity of being heard, take a decision on the report submitted by the Chief Executive Officer or, as the case may be, the Deputy Chief Executive Officer, within a period of one month from the date of receipt thereof. (1-A) Where a person is removed from office of the Sarpanch or 5 Upa-Sarpanch, he shall not be eligible for re-election as Sarpanch or Upa-Sarpanch during the remainder of the term of office of members of the Panchayat.” This is a newly added provision. Perusal of proviso to sub-section (1 of Section 39 shows that the enquiry that is to be made by the Chief Executive Officer is to be held after issuing notice to Panchayat and the member concerned and after completion of that enquiry, a notice is to be given to the person concerned only before preparing report and submitted to the Commissioner. In the present case, it appears that on receipt of the complaint, an enquiry was made by the Extension Officer. On receiving the report from the Extension Officer, show-cause notice was issued by the Chief Executive Officer to the petitioner. Therefore, the show-cause notice that was issued by the Chief Executive Officer was based obviously on the report submitted by the Extension Officer. Perusal of the provisions of Section 39 quoted above shows that the show-cause notice that is to be given to the person concerned is to be based on the enquiry held by the Chief Executive Officer himself and not on enquiry held by anybody else. It is now a settled law that when principles of natural justice are not embodied in a statute and an order is made in breach of the principles of natural justice, proof of prejudice is necessary before setting aside the order which has been made in breach of the principles of natural justice but when principles of natural justice have been incorporated in the statute, compliance with those principles becomes mandatory. The Supreme Court has laid down this law in its judgment in the case of Nawabkhan Abbaskhan .vs. State of Gujarat reported in AIR 1974 SC 1471. 9. In the present case, the provisions of sub-section (1) of Section 39 contemplate two stages, one is the stage of enquiry to be held by the Chief Executive Officer after issuing notice to the Panchayat and the members 6 concerned. On the basis of the material collected during this enquiry by the Chief Executive Officer, the Chief Executive Officer is required to give an opportunity of being heard before making the report to the person concerned only. From the record, it appears that in the present case, the Chief Executive Officer combined both the stages and issued show-cause notice to the petitioner and also issued notice to the Panchayat as the petitioner did not remain present on the date of enquiry, he prepared his report on the basis of the material made available to him. He did not hold an enquiry for collecting the material. The procedure followed by the Chief Executive Officer in submitting the report was, therefore, clearly contrary to the provisions of Section 39 and, therefore, in our opinion, the order that has been made on the basis of such report will be invalid. In our opinion, therefore, the following order would serve the ends of justice :- 10. The Appeal succeeds and is allowed. The order dated 4.12.2008 passed in Writ Petition No. 4083/08 is set aside. The order passed by the Commissioner as also the State Government which are impugned in the petition are also set aside. The proceedings are remitted back to the Chief Executive Officer for being proceeded in accordance with the law. Considering that there are complaints made by a significant number of members of the Village Panchayat against the petitioner, the Chief Executive Officer will proceed to hold the enquiry in accordance with law as expeditiously as possible. In any case, the Chief Executive Officer shall submit his report to Commissioner within a period of one month from today as required by the statute. No order as to costs. JUDGE JUDGE. J.