The main legal point established is that show cause notices under Section 92 must not contain stigma or allegations, should afford reasonable opportunity to the defaulting person, and must adhere to the due process of law.

Sheel Nagu, J.

1. Both these writ appeals involving common questions of law and based on more or less similar foundational facts have been heard together and are decided by this common order.

1.1 At the very outset it is pertinent to mention that the only difference between the two appeals is that in W.A. No. 359/16 the basic impugned show cause notice before the writ court had not been responded to by way of reply while in W.A. No. 294/2016 the petitioner appellant has filed reply to impugned show cause notice. Moreso WA. No. 359/2016 is by a former Sarpanch of Gram Panchayat whereas WA. No. 294/2016 is by a former Secretary of Gram Panchayat.

2. Learned Single Judge has dismissed the challenge to the show cause notice issued u/S. 92 (1) (4) of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (for brevity Adhiniyam of 1993) calling upon the appellants to show cause as to why the appellants be not sent to civil jail for indulging in embezzlement of funds arising out of the fact that work of only Rs. 50,000/- has been certified by the Sub- Engineer, Janpad Panchayat, Dabra as against the sanctioned amount of Rs. 4,40, 800/- thereby leaving an amount of Rs. 3,90, 800/- unaccounted and thus recoverable. The show cause notices further hold the petitioners to have misused government funds and indulged in serious financial irregularities.

2.1 The writ court while declining interference on merits held the petitions to be pre-mature since no final order was passed by the competent authority under any of the clauses u/S. 92 of Adhiniyam of 1993.

3. Appellants Submissions:

Learned counsel for the appellant primarily contends that the show cause notices are unlawful due to following grounds;

1. The terminology used in the show cause notices demonstrates premeditated mind of the competent authority;

2. The competent authority is not empowered u/S. 92 to make up it’s minds of sending the defaulter to civil jail unless ‘reasonable opportunity’ contemplated by Section 92 (4) is afforded.

3. The impugned show cause notices are vitiated for being stigmatic in nature since appellants are held to have misused the government funds and being involved in embezzlement and serious financial irregularities without first considering the explanation of the appellants.

The above said grounds had though been raised in the writ petitions although in generic terms but not considered by the writ court and therefore it would be appropriate to deal with the same herein as these grounds go to the root of the matter and involve the correct interpretation of Section 92.

3.1 The learned counsel has relied upon decision of single bench in the case of Sewak v. State of M.P. reported in 2016 (2) MPLJ 271 and another decision of single bench of this court dated 11.8.2014 in W.P. No. 7575/2013.

4. Respondent’s Submissions:

Per-contra learned counsel for the State defending the order impugned herein passed by the wit court relies upon decision of the Apex Court in the case of Union of India and Anr. v. Kunisettty Satyanarayana reported in (2006) 12 SCC 28 to contend that petitions in question were pre-mature as having been filed against show cause notices where final decision was yet to be taken by competent authority and therefore the said show cause notice were not amenable to the judicial review under Article 226 of the Constitution of India.

5. Findings:

Sec. 92 of Adhiniyam of 1993 is reproduced below for convenience and ready reference;

92. Power to recover records articles and money.- “(1) Where the prescribed authority is of the opinion that any person has un-authorisedly in his custody any record or article or money belonging to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), he may, by a written order, require that the record of article or money be delivered or paid forthwith to the Panchayat (or Gram Nirman Samiti and Gram Vikas Samiti) (or committee of Gram Sabha), in the presence of such officer as may be appointed