ORDER
N.K. Mody, J.
1. Being aggrieved by order dated 11-3-2002 passed by respondent No. 2 whereby the petitioner has been removed from the post of member of Krishi Upaj Mandi Samiti, Indore and the order dated 26-6-2002 passed by respondent No. 1 whereby the appeal filed by the petitioner has been dismissed, the present petition has been filed.
2. Brief facts of the case are that the petitioner is an elected member of M.P. Krishi Upaj Mandi Samiti, Indore who is respondent No. 4 herein. On 1-3-2001, respondent No. 2 issued a show-cause notice to the petitioner wherein it was alleged that there were complaints of illegal recovery from the check-posts of Fruit and Vegetable Market against the petitioner. It was alleged that in the preliminary enquiry, complaints were found true and the petitioner is found guilty. It was further alleged that the act of the petitioner is amounting to encroachment upon the provisions of Section 27 of M.P. Krishi Upaj Mandi Adhiniyam, 1972. The petitioner was asked to submit his reply why action be not taken against the petitioner under Section 55 of the Act.
3. Vide reply dated 20-3-2001, a detailed reply was given by the petitioner. In the said reply it was submitted that the petitioner has not encroached upon the provisions of Section 27 of the Act. It was submitted in the reply that under clause (xii) of sub-section (2) of Section 17 of the Act, it is the duty of the Market committee to levy and recover all moneys related to fees and other charges due, which the Market Committee is authorized to receive. It was alleged by the petitioner that an authentic complaint was given by the petitioner on 22-6-90 to the Secretary of respondent No. 4 wherein specific complaints were made regarding the loss which have been caused by the employees of respondent No. 4. It was further alleged that it goes to show that illegal recoveries which are being made by the employees of respondent No. 4, is in connivance with the Secretary of respondent No. 4. The petitioner also gave a detailed complaint about the losses which have been caused by the employees who are posted on check-posts, to Deputy Director Krishi Upaj Mandi Samiti, Indore. It is also alleged that on 27-9-2000, in the presence of Vice President of respondent No. 4, the vehicle bearing No. MP 04-7316 and MP09-1673 was inspected and it was found that without payment of Mandi Fee, the goods are being carried out through the concerned vehicles. It was further alleged that on the check-posts, Shri Rajesh Shivcharan Yadav, Shri Mahendra Singh Bhadoria, Shri Kamlesh Sharma, Shri Sudhir Yadav, Shri Amarsingh Bout, Shri Mahesh Ranwe and Shri Ramesh Shukla etc. were on duty. In the reply, it was also alleged that the persons who were in those two vehicles informed that they were allowed to go by the employees of respondent No. 4 after taking the money. It was alleged that a fine of Rs. 580/- and Rs. 690/- was recovered from these two vehicles and the receipts were issued. It was prayed that notice issued against the petitioner be quashed.
4. Vide order dated 11-3-2002, the respondent No. 2 passed an order whereby the petitioner was removed from the post of member of the Marketing Committee under Section 55 of the Act. This order was challenged by the petitioner by way of filing an appeal which was dismissed by respondent No. 1 vide order dated 26-6-2002.
5. Learned Counsel for the petitioner submits that no opportunity of hearing was given to the petitioner. It is also submitted that the documents which were relied upon against the petitioner, copies whereof were not supplied to the petitioner in spite of demand. It is also submitted that the statement on which the reliance was placed were neither supplied to the petitioner nor they were examined in the presence of the petitioner. Apart from this, no opportunity of cross-examination was given to the petitioner. It is further submitted that preliminary enquiry report which was held prior to issuance of notice (Annexure P-l), copy whereof was not supplied to the petitioner.
6. Learned Counsel for the petitioner submits that in the impugned order passed by respondent No. 2 and the order passed in appeal by respondent No. 1, it is specifically mentioned that opportunity was given to the petitioner to cross-examine the witnesses but there is nothing on record which goes to show that the petitioner was ever given the opportunity of cross- examination.
7. In this regard, learned Counsel for the petitioner placed reliance on a decision rendered in the case of Bansmani v. State of M.P. and Ors., reported in 1980 JLJ 60, wherein a Division Bench of this Court has observed as under:-
‘a person who holds office as a member or as President has a right to continue in the office until the expiry of the term. The order of removal which is passed under Section 116 affects this valuable right and the finding of misconduct on which such an order is based casts a stigma on the public life of the person. It was further observed that the power of removal is quasi-judicial in nature. While taking action under Section 116 of the Panchayats Act, the State Government should not only disclose the charges but also the entire material on which the charges are based to the person concerned so as to afford him real opportunity to show cause against the charges. Further, the State Government should give reasons in support of the order removing the person from the office so as to indicate why the explanation submitted is not acceptable.’
8. Further reliance was placed on a decision , Tarlochan Dev Sharma v. State of Punjab and Ors., wherein the Hon’ble Supreme Court has held that-
“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 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 of 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. Therefore, a case of availability of a ground squarely falling within Section 22 of the Act must be clearly made out.”
9. Shri Umesh Gajankush, learned Government Advocate placed reliance on a decision reported in 1983 MPLJ 553, Biharilal Tikaram v. Government of Madhya Pradesh, wherein in Division Bench of this Court has held that Section 55 of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1973 does not speak of elaborate enquiry as contemplated under Article 311 of the Constitution of India. It says that reasonable opportunity is to be given to the delinquent officer to show cause why action should not be taken against him. Where show-cause notice is given to a delinquent officer and a reply is taken from him and personal hearing, though not contemplated under Section 55 is given to the delinquent officer, the enquiry can be said to be proper and the action against the delinquent officer under Section 55 can not be said to be bad in law.
10. Learned Counsel for the respondents placed the record of enquiry before this Court and submitted that from perusal of order dated 4-2-2002, it is evident that all the record was available and the Counsel for petitioner was permitted to inspect the record and was also allowed for noting by pencil. Learned Counsel further placed reliance on the order passed on 11-3-2002 whereby 4-3-2002 was the date fixed for cross- examination of all witnesses and it is submitted that on the aforesaid date, all the concerned employees whose statements had to be recorded were present and they were heard. At that time, the petitioner did not ask to allow him to cross-examine the witnesses, therefore, it can not be said that proper opportunity of hearing was not given to the petitioner.
11. From perusal of the record, it is evident that while the notice Annexure P-l was served to the petitioner, the copy of the report of preliminary enquiry was not supplied to the petitioner. The copies of the statement or the complaint which were made against the petitioner were also not supplied to the petitioner.
12. From perusal of the order passed by respondent No. 2, it is evident that it is specifically mentioned that the petitioner was never allowed to cross-examine the witnesses and the date 4-3-2002 was not fixed for this very purpose.
13. In appeal, the respondent No. 1 has mentioned that the petitioner was given an opportunity to cross-examine the witnesses. As stated hereinabove, there is nothing in the order dated 4-2-2002 whereby the case was fixed for 4-3-2002 for recording the statements of witnesses. On the contrary, from perusal of order dated 4-3-2002 it appears that all the alleged witnesses who are employees of the respondents were heard. This procedure is not known to law. It is not disputed that the statements of none of the witnesses were recorded in the presence of the petitioner.
14. In view of the law laid down by the Hon’ble Supreme Court , Tarlochan Dev Sharma v. State of Punjab and Ors. (supra), wherein it is held that one of the requirements of the principles of natural justice, as incorporated in second Proviso to Section 22, is that the reasons for the proposed removal have to be communicated to the person proceeded against. The purpose of such communication is to enable him to furnish an explanation of his conduct or his act or omission which is likely to be construed as an abuse of power. It is clear that the facts constituting gravemen of the charge have to be communicated. It follows as a necessary corollary therefrom that what has not been communicated or not relied on in the show-cause notice as a ground providing reasons for the proposed removal can not be relied upon as furnishing basis for the order of removal. The person proceeded against under Section 22 of the Act has to be made aware of the precise charge which he is required to meet and therefore he must be apprised of the exact content of the abuse of power attributed to him. The authority taking decision must apply its mind also to the explanation furnished by the person proceeded against and this must appear from the order passed under Section 22 of the Act.
15. From perusal of Section 55 of the Act, it is evident that a person who has been removed as member of the Marketing Committee for misconduct or negligence or incapacity to perform his duty, shall also not be re-elected or renominated as a member of the Marketing Committee for a period of six years from the date of such removal.
16. Since the preliminary enquiry report was not furnished to the petitioner and along with the show-cause notice Annexure P-l, the relevant documents were not supplied to the petitioner and the statement on which reliance was placed was also not given and apart from this, neither opportunity of cross-examination was given nor the case was fixed for cross-examining the witnesses, therefore, it can not be said that a reasonable opportunity was given to the petitioner.
17. In the circumstances, where the consequences are grave in nature, it can not be held that proper opportunity of hearing was given to the petitioner.
18. In view of this, the petition stands allowed.
19. The order Annexures P-8 and P-9 dated 11-3-2002 and 26-6-2002 stands quashed. No order as to costs.