The main legal point established in the judgment is the mandatory nature of the time limit for passing the final order in the enquiry under section 40(1) of the Panchayat Act, and the consequences of non-compliance leading to the dropping of the proceedings for removal.

1. This petition under Article 226 of the Constitution of the India, has been filed by the petitioner challenging the order Annexure P-5 dated 12-10-2017 passed by respondent No. 3 and also prayed to culminate the proceeding pending in furtherance to the show cause notice Annexure P-1 dated 14-6-2016 issued under section 40(1) of the Panchayat Act because the order finalizing the enquiry within the time so prescribed in the second proviso has not been passed.

2. The undisputed facts of the case are, the petitioner is the elected Sarpanch of the Gram Panchayat, Amanala, Janpad Panchayat, Mandla District Mandla. He was served with a show cause notice Annexure P-1 dated 14-6-2016, as to why he should not be removed in exercise of the power under section 40(1) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred as the “Panchayat Act”). On receiving the said notice, reply Annexure P-2 was filed, but the final order completing the enquiry has not yet passed, however, appropriate directions have been sought to quash the proceedings.

3. It is said, as per proviso to section 40(1) of the Panchayat Act final order ought to be passed within the period of ninety days otherwise the appropriate authority may seek extension in writing from the immediate senior officer, who can grant only thirty days' extension. It is urged, to pass the order from the date of show cause notice, ninety days' time extendable to thirty days total period of 120 days is specified. When the proceedings were not dropped, he submitted an application before the Sub Divisional Officer on 14-9-2016 to close the proceedings. The Sub Divisional Officer vide order dated 17-5-2017 referred the matter to the Chief Executive Officer Jila Panchayat, Mandla in reference to the Letter No. F/5-2/2017/22/Pan.-l/Bhopal dated 3-5-2017 of the Government of Madhya Pradesh, Panchayat and Rural Development Department, Bhopal. The Chief Executive Officer in place of extension of time fixed various dates and vide order dated 12-10-2017 rejected the application of the petitioner, however, this petition has been filed seeking quashment of the said order and to drop the proceeding of section 40(1) of the Panchayat Act.

4. Learned counsel for the petitioner submits that as per section 40(1) of the Panchayat Act and its proviso, after issuance of the show cause notice, final order if not passed within a period of ninety days by the prescribed authority, he is supposed to ask extension reporting the matter to immediate Senior Officer in writing. The said extension of time shall not be more than thirty days. However, from the date of issuance of show cause notice total period of 120 days is prescribed to pass final order, including the extended period. In case the order has not been passed, the proceeding shall be deemed to be closed. In support of the said contention, reliance has been placed on a Division Bench judgment of this Court in the case of Dhanwanti v. State of M.P., reported in 2013 (1) M.P.L.J. 549 : 2013 (2) JLJ 84.

5. On the other hand, learned Government Advocate though opposed the prayer but he is not in a position to dispute that show cause notice was issued on 14-6-2016 and the final order under section 40 has not yet passed. He is also not in a position to dispute the legal position emerged by the judgment of this Court in the case of Dhanwanti (supra). It is his contention that the proviso of section 40(1) of the Panchayat Act is not mandatory but directory, therefore, the proceedings cannot be dropped.

6. After having heard learned counsel for the parties and to advert the arguments as advanced, first of all the provision of section 40 of the Panchayat Act is required to be seen which is reproduced as under:—

40. Removal of office-bearers 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