C.K. Prasad, J.
1. Appellant, the writ petitioner being aggrieved by order dated 20-2-1998 passed by a learned Single Judge of this Court in Writ Petition No. 4049/95 under Article 226 of the Constitution of India, has preferred this appeal under Clause X of Letters Patent of the Court. By the said order, learned Single Judge has dismissed his writ petition.
2. Appellant was a Sarpanch of Gram Panchayat Moha Putka and by show-cause notice dated 19-4-1995 (Annexure P/4 of the Writ Petition) he was asked to show cause as to why he be not removed from the office of the Sarpanch of the Gram Panchayat. Later on, by order dated 17-7-1995, in exercise of the powers conferred under Section 39(1 )(b) of the M.P. Panchayat Raj Act, 1993, he was put under suspension with immediate effect. Appellant challenged the same and prayed for quashing of the aforesaid orders by filing a writ petition which as stated earlier, has been dismissed by the learned Single Judge. It is relevant here to state that while issuing the show-cause notice under Section 40(1) of the M.P. Panchayat Raj Act, 1993 (hereinafter referred to as an Act), instances have been enumerated about the misconduct committed by the appellant in the discharge of his duties and in the said order itself, appellant was asked to submit his cause by 8-5-1995.
3. It was contended by the appellant before the learned Single Judge that the show cause notice and the charge sheet as contemplated under Section 40 of the Act being composite, same does not fulfil the requirement of Section 39(1 )(b) of the Act which inter alia provides for service of notice along with the charge sheet. Learned Single Judge negatived the aforesaid submission of the appellant and held as follows :-
'So far as the phrase as relied on by the learned counsel for the petitioner is concerned, it is obvious and it is not necessary that both the documents must be separate. What is essential is that there must be a charge sheet which can satisfy that there is a case for removal of the person from the office.'
4. Another point urged before the learned Single Judge for invalidation of the order of suspension was that order having not been confirmed by the State Government, within 90 days from the date of passing of the order by the prescribed authority, as required under Section 39(2) of the Act, the same shall be deemed to have been vacated. Learned Single Judge did not decide this question on merit; as according to him, the appellant has not pleaded materials in this regard but gave liberty to the appellant to challenge the order of suspension on this ground or any other grounds consequent upon the approval of the order of suspension by the State Government.
5. Shri Agrawal, appearing on behalf of the appellant reiterates his submission which was made before the learned Single Judge. He submits that condition precedent for exercise of power of suspension of office bearer of Panchayat by the Prescribed Authority under Section 39 of the Act is that the office bearer has been served with a notice along with a charge sheet to show cause for his removal from the office. It is the stand of the learned counsel that although the appellant was served with a charge sheet and he was asked to show cause as to why he be not removed from the office of the Sarpanch, but both the show cause notice and the misconduct committed by the appellant are contained in one document which does not fulfil the requirement of Section 39(l)(b) of the Act. According to the learned counsel, show cause notice should be along with the charge sheet.
6. Alternatively, it is contended by Shri Agrawal that there being a direct conflict between the two Single Bench decisions of this Court in the case of Ratan Singh Yadav v. State of M.P., (W.P. No. 4176/97 disposed of on 2-11-1997) and Karan Singh Dave v. State of M.P. and ors., (W.P. No. 4937/96 disposed of on 2-4-1997) the learned Single Judge ought to have referred the matter for decision by a Division Bench.
7. In order to appreciate the submission of the learned counsel, it is apt to reproduce relevant portions of Sections 39 and 40 of the Act, which reads as under :-
'39 Suspension of office bearer of Panchayat : (1) The prescribed authority may suspend from office any office bearer -
xxx xxx xxx(b) who has been served with a notice along with a charge sheet to show cause under this Act, for his removal from the office.
(2) The order of suspension under sub-section (1) shall be reported to the State Government within a period of ten days and shall be subject to such orders as the State Government may deem fit to pass. If the order of suspension is not confirmed by the State Government within 90 days from the date of receipt of such report it shall be deemed to have vacated.xxx xxx xxx
40. Removal of office bearer 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.xxx xxx xxx'
8. Section 39(1 )(b) of the Act confers the power of suspension only when the office bearer has been served with a notice along with the charge sheet, for his removal from the office. Section 40 of the Act does not prescribe any form but only contemplates of giving opportunity to show cause against removal from office. Section 39 of the Act does not provide for show-cause notice before passing the order of suspension, but condition precedent for passing an order of suspension has been prescribed under Section 39(1) of the Act and one of the conditions is that the office bearer has been served with a notice along with a charge sheet for his removal. To me, it appears to be plain that for placing an office bearer under suspension under Section 39 of the Act, the prescribed authority gets the jurisdiction to pass such order only when an office bearer has been served with a notice along with a charge sheet to show cause against his removal from the office. Section 39 in terms does not provide for giving any show cause notice before passing an order of suspension. However, the prescribed authority gets the power of suspension only when notice of removal has been served.
9. Section 40 of the Act inter alia provides for removal of office bearer in case he is found guilty of misconduct in the discharge of his duties or his continuance in office is undesirable, in the interest of the public. However, before the removal, an office bearer is required to be given an opportunity to show cause against his removal from office. Further, Section 40 of the Act, in term does not indicate as to whether the show cause notice itself will contain the misconduct committed by the office bearer in the discharge of his duties or that which makes his continuance in office undesirable in the interest of the public or the same shall be given in a separate document. According to me, mandate of proviso to Section 40(1) is that an opportunity to show cause is to be given before passing the order of removal from office. In my opinion, no particular form or mode having been prescribed under Section 40 of the Act, it is left to the discretion of the State Government or the prescribed authority, either to indicate the act of misconduct or undesirability of continuance in office in the show cause notice itself or separately. Underlying principle under the proviso to Section 40(1) of the Act is that an office bearer, before he is removed from office must know the misconduct committed by him and is given an opportunity to show cause before his removal. It is providing an opportunity to show cause which is relevant and not its form.
10. In my opinion, word 'along with' in Section 39(l)(b) of the Act cannot be read to mean that notice to show cause for removal and charge sheet have to be separately given. Even at the cost of repetition, I may state that Section 40 of the Act does not prescribe any particular form in which show cause notice is to be given or the misconduct has to be enumerated. I am of the considered opinion that the mode followed for taking action under Section 40 of the Act if held to be valid, it cannot be said to be invalid for action of suspension under Section 39(l)(b) of the Act only on the ground that the charge sheet and notice to show cause are composite. In my opinion what is required under Section 39(l)(b) of the Act is that the office bearer is given a show cause notice for removal and he is served the charge-sheet. Once those twin conditions are fulfilled, the prescribed authority gets the jurisdiction to suspend the office bearer. As stated earlier, in the present case, notice to show cause for removal and charge sheet have been served on the appellant and that fulfil the requirements for exercise of power of suspension under Section 39 of the Act.
11. On the question of purported conflict learned Single Judge, on facts found the decision of Ratan Singh distinguishable and he held as follows :-
'7. Learned counsel for the petitioner placed reliance on a decision of this Court in Ratan Singh Yadav v. State of M.P. and 3 ors. given in Writ Petition No. 4176/97 dated 2-11-1997. That was also a case of suspension under Sections 39 and 40 of the Act. In that case, it has been observed by the learned Judge that to clothe the authority with powers to suspend a person, the authority must see that the person proposed to be suspended has been served with a notice along with charge sheet to show cause for his removal from the office. The charge sheet and the show cause notice, for his removal from office, are required to be served under Section 40 of the Act which would provide a foundation in favour of the competent authority/prescribed authority that during the currency of the notice and the enquiry such person should not continue in office. In that case, as it appears from the decision relied on, Annexure P-2 the show cause notice which was not issued either under Section 39 or Section 40 of the Act and for this the reason as has been given in the judgment is that 'It says that the petitioner should show cause as to why action under Sections 39 and 40 be not taken against him.' On the above facts, the Court observed that 'Section 40 talks of show cause notice as to why he should not be removed from his office, with the charge sheet as contemplated under Section 40 of the Act.'
12. In the case of Karan Singh, this Court held as follows :-
'9. Learned State counsel submitted that in the present case the show cause notice and the charge sheet as contemplated under Section 40 of the Act is a composite one and the condition for action under sub-section (1) of Section 39 of the Act has been satisfied as the show cause notice and charge sheet, which was a composite one, was given on 19-4-1995 whereas the order of suspension (Annexure P-6) was passed on 17-7-1995. Learned State counsel relied on a decision of this Court in Karan Singh Gawel v. State of M.P. and ors. given in Writ Petition No. 4937/96 dated 2-4-1997 and he relied on the following passage :-'......The intention behind the provisions is that before an office bearer is suspended he should be informed of the grounds on which the action is contemplated. The show cause notice (Annexure P/6) is a combined notice to show cause accompanied with articles of charges. There has thus been substantial compliance of the provisions of Section 39(1 )(b) of the Adhiniyam.'
After referring to the aforesaid decisions, the learned Single Judge in the impugned judgment held as follows :-
'12. So far as the phrase as relied on by the learned counsel for the petitioner is concerned, it is obvious and it is not necessary that both the documents must necessarily be separate. What is essential is that there must be a charge sheet which can satisfy that there is a case for removal of the person from the office. If it would have been a show cause notice for suspension as well and if the requirement of law would have been for show cause notice for suspension as well then two things could have been emerged and two proceedings would be under different provisions of law and of different nature and having different consequences and also different reply. In that event in one he has to reply only to the material for establishing that it is not a case for placing him under suspension and in the other case the person to reply that it is not a case where the petitioner can be removed from the office but here it is not so. Here it is only the power of the suspension which has no rider except the condition that it must be during the pendency of the proceedings which is made a condition precedent for exercise of power that notice along with charge sheet to show for removal must have preceded the order of suspension.'
13. Shri Agrawal reiterates his contention before us and submits that there is apparent conflict between the decisions of this Court in the case of Ratan Singh (supra) and Karan Singh Gawel (supra). Learned Single Judge has not found any conflict between the aforesaid decisions and having gone through the aforesaid judgments closely, I also do not find any conflict in the ratio of the two Judgments. In the case of Ratan Singh (supra), office bearer was asked to show cause why action under Sections 39 and 40 of the Act be not taken. As held earlier, no show cause notice is required to be given for placing an office bearer under suspension, but a show cause notice of removal with the charge sheet in whatever form is required to be given. Thus, the decision in Ratan Singh was clearly distinguishable and has rightly been held to be so by the learned Single Judge in the impugned order.
14. In my opinion, the case is squarely covered by the principle laid down in Karan Singh's case (supra). In the present case, show cause notice against removal contained articles of charges. This according to the Karan Singh (supra) is substantial compliance of provision of Section 39(l)(b) of the Act. In fact, I go a step further and hold that show cause notice itself containing article of charges satisfies the requirement of Section 39(1 )(b) of the Act and it is not only substantial compliance but full adherence to the aforesaid provision. In my opinion, the expression substantial compliance presupposes some omission, but as held earlier, no form having been prescribed, show cause notice containing the article of charges shall tantamount to compliance of the provision of Section 39(1 )(b) of the Act in word and spirit. Thus the purported conflict between the two decisions of this Court in the case of Ratan Singh and Karan Singh is more imaginary than real. I negative this submission of the learned counsel.
15. Shri Agrawal, lastly submits that in any view of the matter, order of suspension having not been confirmed by the State Government within 90 days from the date of receipt of such report, learned Single Judge ought to have held that the order of suspension shall be deemed to have been vacated. Learned Single Judge did not express any opinion on the said question; as according to him appellant has not pleaded sufficient material in this regard but has given liberty to the appellant to challenge the order of suspension on this ground or any other ground consequent upon approval of the order of suspension by the State Government. Shri Agrawal submits that sufficient materials exist for decision on the aforesaid question and in this connection, he has drawn my attention to the statement made in para 5 of the writ petition in which it has been stated as follows :-
'It is bad because no confirmation of suspension has been yet served to the petitioner.'
In the statement referred to above, it is not the assertion of the appellant that the order of suspension has not been confirmed but his assertion is that the same has not been served on him. Appellant has nowhere stated that the order of suspension has not been confirmed by the State Government and in such a state of pleading the learned Single Judge rightly declined to express any opinion on the said question and gave liberty to the appellant to challenge the order of suspension on this ground or any other ground consequent upon the approval of the order of suspension by the State Government. Thus, I do not find any merit in this submission of the learned counsel.
16. All the submissions made on behalf of the appellant having failed, I do not find any merit in this appeal and it is dismissed accordingly.