ORDER
Fakhruddin, J.
1. By this writ petition filed under Articles 226/227 of the Constitution of India, petitioner is challenging the order dated 18-1-2002 passed by respondent No. 2 whereby it has been directed to stay the order passed against respondent Nos. 4 and 5 from the post of Sarpanch, Lalpur Gram Panchayat till decisions of appeal preferred by respondent Nos. 4 and 5.
2. Briefly stated facts are that respondent No. 4 was an elected Sarpanch, Lalpur and on a complaint made by the present petitioner who is Up-Sarpanch of the said Gram Panchayat and others, respondent No. 3, the Sub-Divisional Officer, Lormi, Distt. Bilaspur started an enquiry against respondent Nos. 4 and 5 and in exercise of its powers vested under Section 40 of M.P. Panchayat Raj Adhiniyam, 1993 removed respondent Nos. 4 and 5 by passing an ex parte order dated 28-12-2001 (Annexure P-1). Against this order, respondent No. 4 preferred appeal and the Collector while admitting the appeal has rejected the application for staying the impugned order vide his order dated 2-1-2002 (Annexure P-2). Being aggrieved by the order dated 2-1-2002 passed by the Collector (Annexure P-2), respondent Nos. 4 and 5 filed revision and the Commissioner/respondent No. 2 by ex parte order dated 18-1-2002 (Annexure P-4) set aside the order passed by the Collector and stayed the effect and operation of the impugned order passed by the Appellate Authority (Annexure P- 2) and that of the Sub-Divisional Officer (Annexure P-1).
3. The present petitioner has filed this petition against the order dated 18-1-2002 (Annexure P-4) passed by the Commissioner claiming the following reliefs:--
'7.1. That this Hon'ble Court may kindly be pleased to call for the entire records of the case leading to the passing of the impugned order (Annexure P-4) dated 18-1-2002.
7.2. That this Hon'ble Court may kindly be pleased to issue a writ of certiorari quashing order (Annexure P-4) passed by the Commissioner, Bilaspur and declare the same as inoperative.
7.3. Issue any other writ, direction or order in favour of the petitioner which may be found appropriate under the facts and circumstances of the case.'
4. This Court vide order dated 30-1-2001 directed issuance of notice and granted interim stay on 6-2-2002. Respondent Nos. 4 and 5 have filed reply thereto. Application (I.A. No. 84/2002) for vacating interim stay has been filed. Hearing on I.A. No. 84/2002 as well as the petition will take time; therefore, with the consent of the parties, the matter has been heard finally on different dates.
5. The matter regarding removal of Sarpanch/member or any officebearer of the Gram Panch is provided in Section 40 of the M.P. Panchayat Raj Adhiniyam, 1993. The same is relevant here and quoted below:--
'Section 40. Removal of Office bearers of Panchayat.-- (1) TheState 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 thepublic:
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, sister-in-law, son-in-law or daughter-in-law :
Provided that the final order in the inquiry shall as far as possible be passed within 90 days from the date of issue of show-cause notice to the concerned office bearer.
(2) A person who has been removed under Sub-section (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 under this Act.'
6. On complaint made by the petitioner, enquiry was made by C.E.O., Janpad Panchayat, Lormi. On the basis of this report, show-cause notices wereissued to the respondent Nos. 4 and 5. It is not disputed that in the show-cause notice, which is said to be received by respondents on 26-12-2001, the date of appearance was given to them as 28-12-2001. According to the order Annexure P-1 passed by the Sub-Divisional Officer, respondent Nos. 3 and 4 did not appear on 28-12-2001 and that day itself the Sub-Divisional Officer, herein respondent No. 3, proceeded ex parte and passed the order (Annexure P-1). Consequent to the said order, respondent Nos. 4 and 5 not only stand removed from their office, but they shall also stand disqualified for a period of six years as contemplated under Sub-section (2) of Section 40 of the Act, 1993. In this connection, it is apt to reproduce the relevant Paragraphs 2 and 3 of the order (Annexure P-1) passed by Sub-Divisional Officer, respondent No. 3 herein, which reads as under :--
^^2 izkIr f'kdk;r tkap eq[; dk;Zikyu vf/kdkjh]tuin iapk;r] yksjeh }kjk djk;h x;h A muls izkIr izfrosnu ds vk/kkj ij ljiap ,oalfpo dks dkj.k crkvks uksfVl tkjh fd;k x;k A ljiap ,oa lfpo dkj.k crkvks uksfVlizkIr djus ds ckn Hkh U;k;ky; esa vuqifLFkr jgs A vr,o muds fo:) Loi{kh;dk;Zokgh tkjh j[kus dk vkns'k fn;k x;k A
3 mijks foospuk ls eSa blfu'd'kZ ij igqaprk gwa fd vkjksih ljiap Jherh ikoZrh ckbZ ,oa Jh 'It cannot be disputed that opportunity to show cause must be real opportunity. The person proceeded against must not only be told the allegations of misconduct, but he must also be informed of the material which is sought to be used against him in support of the charges so that he may offer his explanation in respect of that material. 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. Having regard to these consequences, we are of opinion that the power of removal is quasi-judicial in nature. In Bhagat Ram v. State of Punjab, AIR 1972 SC 1571, a provision in the Punjab Municipal Act relating to the removal of members was considered by the Supreme Court. It was held in that case that the order contemplated by the provision removing a member was quasi-judicial in nature and that it was not only desirable but also essential that the authority passing the order should give reasons. It was further pointed out that all the material should be disclosed to the person concerned so that he may give an effective answer not only to the averments contained in the show-cause notice, but also to the principles laid down in Bhagat Ram v. State of Punjab (supra).' 14. In view of the above decision, learned Counsel for respondent Nos. 4 and 5 submits that the Sub-Divisional Officer ought not to have passed an order on the very same day and there is a provision which in fact requires an opportunity and the order passed by respondent No. 3 is illegal and contrary to law. 15. Learned Counsel for respondent Nos. 4 and 5 further submits that the order passed by the respondent No. 3 is illegal and contrary to law as opportunity of hearing is not given to them. Reliance has been placed in this connection on a decision of the High Court of M.P. in case of Nirmal Singh Saha v. State of M.P., reported in 1999(2) MPWN SN 201, wherein it has been held that the order of removal from the post of Sarpanch without hearing is not sustainable. Further reliance has been placed in the case of Kailash Kumar Dangi v. State of M.P. and Ors., reported in 2000(1) M.P.H.T. 143, wherein it has been held that 'inquiry provided in Section 40 of the M.P. Panchayat Raj Adhiniyam, 1993 for removal of an office bearer has to be an inquiry to be held in conformity with the principles of natural justice'. It is pertinent to note that the High Court of Madhya Pradesh while interpreting the provisions regarding Primary Co-operative Stores Ltd., Satna v. State of M.P. and Ors., reported in 1985 RN 269, held as under :-- 'The question in the case was the opportunity afforded would be the 'reasonable opportunity' within the meaning of the terms under Section 53 (2) of M.P. Co-operative Societies Act, 1960 These two words are said to be incorporating principles of natural justice. Principles of natural justice are not contained in any straight-jacket formula and have been interpreted differently in the context of different facts and circumstances. It however appears to be clear that whenever an action involving civil consequences is required to be taken against a person, he must be given a reasonable opportunity of showing cause against the action. This opportunity may include informing him of the material which is to be used against him. Unless the opportunity as aforesaid has been given, it will be difficult to hold that the person affected by the order had a reasonable opportunity of showing cause against the proposed action.' 16. It is manifestly clear that the Sub-Divisional Officer issued notice for appearance on 28-12-2001 and the show-cause notice was said to be received on 26-12-2001 and when they appeared on 28-12-2001, they came to know that on the same day, respondent No. 3 proceeded ex parte and order has been passed. Such an order on that day itself could not be passed mechanically in hot haste. The prudence requires that full time upto 5 p.m. be given and if the hearing is not completed by 5 p.m. then it may be taken up on the next day. It is to be in accordance with the provisions and to that effect, the Division Bench of High Court of M.P. expressed the consistent view that such orders are quasi-judicial orders. While considering the case of removal of an office bearer, the Supreme Court in Bhagat Ram v. State of Punjab (supra), which is similar to the present case, held that the order contemplated by the provision removing a member was quasi-judicial in nature and that was notonly desirable, but also essential that the authority passing the order should give reasons. It was further pointed out that all the material should be disclosed to the person concerned so that he may give an effective answer not only to the averments contained in the show-cause notice, but also to the materials on the basis of which show-cause notice was issued. In view of the position of law declared by Hon'ble the Supreme Court in the case of Bhagatram v. State of Punjab (supra), the said principles have been held applicable by the Division Bench of M.P. High Court in case of Bandsman Prasad Veerbhadra Shukla v. State of M.P. (supra) under Section 116 of M.P. Panchayats Act, 1962. 17. Shri Gautam Bhaduri, Counsel for the State has also equally submitted that it is just and proper that the order passed by Sub-Divisional Officer herein respondent No. 3 is set aside, as the same is not sustainable in accordance with law. 18. Counsel for the petitioner/complainant, in view of the facts and circumstances and the legal position which have emerged, fairly submitted that the implications arising out of Section 40 is such that requirement of hearing is contemplated and the proceedings are quasi-judicial in nature, as such he has prayed that the order of Sub-Divisional Officer may be set aside. 19. Counsel for respondent Nos. 4 and 5, so also the petitioner and the State submitted that in view of the special facts and circumstances which have emerged from record, it is manifestly clear that the Sub-Divisional Officer passed the order on 28-12-2001 itself and in view of the decisions of the High Court of Madhya Pradesh rendered in cases of Bansamani Prasad Veerbhadra Shukla v. State of M.P. (supra); Nirmal Singh Sahu v. State of M.P. (supra); Kailash Kumar Dangi v. State of M.P. and Ors. (supra); Primary Co-operative Stores Ltd., Satna v. State of M.P. and Ors. (supra), the order of Sub-Divisional Officer deserves to be set aside, as the opportunity of hearing has not been given. 20. This Court is of the considered opinion that under the facts and circumstances of the present case it is writ large and could not be disputed that opportunity has not at all been afforded by Sub-Divisional Officer and non-compliance of Section 40 of M.P. Panchayat Raj Adhiniyam is there. The authority has acted in most arbitrarily and disregard to the principle of natural justice. Normally this Court would not have interfered in the impugned order of Sub-Divisional Officer, but in view of the facts which have emerged, violation of statute and principle of natural justice are apparent on the face of the record and prayer has also been made by Counsel for the parties including respondent Nos. 4 and 5 that the matter be remitted to the Sub-Divisional Officer, in the opinion of this Court, this Court has jurisdiction to grant relief under Article 226 of the Constitution of India in appropriate case. The existence of alternative remedy is not an absolute bar to the relief. It is one of the circumstances which the Court has to take into consideration while exercising its discretionary power under Article 226. Alternative remedy does nottake away the jurisdiction of the Court to grant relief in exceptional circumstances. Consequently, the order passed by the Commissioner dated 18-1-2002 (Annexure P-4) in favour of respondent Nos. 4 and 5 is set aside, so also the order passed by the Collector (Annexure P-2) and that of Sub-Divisional Officer (Annexure P-1) are set aside. The matter is remitted to the competent authority i.e., the Sub-Divisional Officer to decide in accordance with law as early as possible preferably within 2 months from the dale of their appearance. Counsel for the petitioner so also respondent Nos. 4 and 5 submit that a fixed date may be granted for their appearance before respondent No. 3. Accordingly, the petitioner as also respondent Nos. 4 and 5 are directed to appear before the Sub-Divisional Officer, respondent No. 3 herein on 10th June. The reply to the show-cause notice which has already been issued to respondent Nos. 4 and 5 be filed within 10 days from the date of their appearance. Thereafter the Sub-Divisional Officer shall consider the case of respondent Nos. 4 and 5 in accordance with law and pass orders within 2 months from the date of appearance i.e., 10-6-2002. 21. Counsel for the parties submit that powers have been conferred on the State authorities under the M.P. Panchayats (Appeal and Revision) Rules, 1995 to decide the matters like present, but the manner in which they are exercised as reflected from the orders passed by the Sub-Divisional Officer, Additional Collector and the Commissioner goes to show that proper training is required to be imparted to these authorities to perform such quasi-judicial functions in accordance with law. The order passed by the Sub-Divisional Officer under the provisions of Section 40 of M.P. Panchayat Raj Adhiniyam, 1993, not only lakes away the valuable right of a person holding such office, but casts a stigma on the public life of a person. Therefore, exercise of such power by these authorities in hearing the matters of appeal and revision requires proper understanding of law keeping in mind principle of natural justice. Such training is required because State has local body establishments of Panchayats, Municipal Corporation, Municipal Council and so on and so forth and the disputes like present may often arise and travel to such authorities. Therefore, by imparting such legal education, the authorities can justifiably perform the quasi-judicial functions in accordance with law so that no prejudice would cause to any body in a democratic set up. It must be observed that as the public interest is involved in the matter, the financial constraints should not come in the way in giving such training. 22. In view of what has been stated above, the petition is disposed of with the observations/directions aforesaid. 23. A copy of this order be sent to the Principal Secretary, General Administration Department and Chief Secretary to the State Government. A certified copy of this order be also supplied to all the parties concerned.