Hemant Gupta, CJ.

The challenge in the present appeal is to an order passed by the learned Single Bench on 11.05.2018 in W.P. No. 4946/2018 (Omkar Mahule v. State of M.P. & others) whereby relying upon a Division Bench judgment of this Court in Santosh Raghuvanshi v. State of M.P., 2013 (11) MPWN 28 and a Single Bench judgment of this Court in Rajesh Barkade v. State of M.P. and others passed on 01.02.2018 in W.P. No.18135/2017, it was held that the inquiry against the respondent No.5 cannot proceed after the expiry of 90 days and even extendable period of 30 days.

2. The facts of the case, in nutshell, are that on the complaint filed by the appellant, the respondent No.5 was removed from the post of Sarpanch vide order dated 22.11.2017 and he was directed to deposit a sum of Rs.66,491/-whereas similar amount was directed to be recovered from the Secretary of the Society. Against the order dated 22.11.2017, the respondent No.5 preferred an appeal before the Commissioner, Jabalpur Division, Jabalpur. The appeal filed by the respondent No.5 was allowed vide order dated 21.02.2018 and the inquiry proceedings were set at naught on account of violation of Sub-section (1)(b) of Section 40 of the M.P. Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short “the Act”), as the inquiry was not completed against the respondent No.5 within 120 days, as an order was passed on 22.11.2017 after 159 days. It is the said order of the Commissioner passed on 21.02.2018, which was challenged unsuccessfully by the petitioner in the writ petition.

3. The provisions of Section 40 of the Act are required to be examined as to whether the period of completion of inquiry is mandatory or directory. It would be apt to quote the Section 40, which reads 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 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 why he should not be removed from his office.

Explanation. -For the purpose of this subsection "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, brother-in-law, sister-in-law, son-in-law or daughter-in-law:

Provided further the final order in the inquiry shall be passed within 90 days from the date of issue of show cause notice to the concerned office-bearer and where the pending case is not decided within 90 days, the prescribed authority shall inform all facts to his next senior officer in writing and request extension of time for disposal of the inquiry but, such extension of time shall not be more than 30 days.

(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.

The proviso to Sub-section (1)(c) was substituted by M.P. Act No.20 of 2005. Prior to 30.08.2005, the following provision was in e