SUMERCHAND JAIN v. STATE — 1999 DIGILAW 260 (GUJ)

S. K. KESHOTE, J. ( 1 ) THE petitioner, an elected President of Modasa Nagar palika, Modasa, Dist Sabarkantha, by this Special Civil Application under Art. 226 of the Constitution challenges the notice issued by the respondent No. 2 bearing No. 673/a/99 dated 26th March, 1999, Annexure "a" to this petition, under which the petitioner was called upon to show cause as to why he should not be declared disqualified under the provisions of Secs. 11 and 38 of the gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act, 1963") (1) 4 to hold the office of the Councillor of the Municipality. Prayer is made for quashing and setting aside of this notice. ( 2 ) THE facts of the case, in brief, are that the petitioner was convicted for the offence punishable under the Prevention of Food Adulteration Act, 1955 by the J. M. F. C. , Modasa in Criminal Case No. 2632 of 1988 decided on 28th january, 1999. He was sentenced to two years rigorous imprisonment and a fine of Rs. 5,000/ -. In case of default in payment of fine, he has ordered to undergo imprisonment of one month. Against this judgment of J. M. F. C. , modasa, the petitioner preferred Criminal Appeal No. 8 of 1997 in the Court of Assistant Judge, Himmatnagar. The appeal has been admitted on 10th february, 1999 and the petitioner was ordered to be enlarged on bail pending the decision of the appeal. In Para 11 of the Special Civil Application, if we go by the facts averred therein, the year of the criminal case appears to be 1988 and not 1998 as what the petitioner has stated in other paragraphs. The petitioner has not replied this show-cause notice and straightaway has rushed to this Court challenging the same. ( 3 ) CHALLENGE to this show-cause notice is made by the learned Counsel for the petitioner on the grounds namely, that it is a politically-motivated action on the part of the respondents. It is next contended that the notice vitiates on account of legal and factual mala fides. Earlier the petitioner was with the ruling party in the State of Gujarat, i. e. , B. J. P. but thereafter on account of some difference of opinion, the petitioner was suspended from the said party but he is continued to be the President, Modasa Nagar Palika. Earlier the petitioner was with the ruling party in the State of Gujarat, i. e. , B. J. P. but thereafter on account of some difference of opinion, the petitioner was suspended from the said party but he is continued to be the President, Modasa Nagar Palika. Being annoyed of that the persons in power have got the aforesaid notice issued to the petitioner, which could not have been issued on simple appreciation of facts. Otherwise also, this notice could not have been issued under Sec. 11 and Sec. 38 of the Gujarat Municipalities Act, 1963 (hereinafter referred to as "the Act, 1963" ). It is contended that the conviction of the petitioner has not attained the finality. The appeal is admitted and unless the conviction attains the finality, the question of declaring the petitioner to be disqualified to hold the office of the Councillor of the Municipality does not arise. Mr. Tripathi urges, it is a matter of common knowledge that a person cannot be said to have been convicted unless the proceedings have resulted ultimately in conviction. It is contended further that appeal is continuity of the proceedings and it cannot be said that a person is convicted where the appeal is preferred against the order of the trial Court or subsequent Court and subsequent proceedings have not finally ended. Lastly, it is contended that the appellant has been falsely involved in the criminal cases. It is submitted that the chilly powder was taken from one packet which was packed and bearing Agmark and it was mentioned on the said label - lot No. 42, label No. D/7066717, date of packing 19-3-1989, weight 10 kgs. , place of packing Gotaj, Manufacturer : Jay Khodiyar Industries. It also bears signature of the supervising officer. In this factual matrix, the learned Counsel for the petitioner, contended that the authority-respondent No. 2 should have restrained itself from issuing such show-cause notice to the petitioner. ( 4 ) I have given my thoughful consideration to the submissions made by the learned Counsel for the petitioner. ( 5 ) IN this case, the petitioner has not produced on the record of this Special civil Application the judgment of the trial Court as well as the order of the admission of the Criminal Appeal in the Sessions Court and the order under which the petitioner has been enlarged on bail pending the appeal. ( 5 ) IN this case, the petitioner has not produced on the record of this Special civil Application the judgment of the trial Court as well as the order of the admission of the Criminal Appeal in the Sessions Court and the order under which the petitioner has been enlarged on bail pending the appeal. However, it is not the case of the petitioner in this Special Civil Application as well as the contention of his learned Counsel that the order of conviction of the petitioner for the offence punishable under the Prevention of Food Adulteration act, 1955 has been stayed by the appellate Court. The appellate Court in the criminal Appeal has suspended the sentence given to the petitioner by the learned trial Court for the offence. ( 6 ) LEARNED Counsel for the petitioner has failed to show any provision from the Act, 1963 to satisfy the Court that the conviction is an ultimate conviction, that is decided by the last Court to which the petitioner has approached by further appeal etc. Not only this, learned Counsel for the petitioner has also failed to cite any authority of this Court or of the Apex court wherein the view has been taken that conviction means ultimate conviction by the highest Court in the hierarchy where the petitioner has preferred the appeal against his conviction order. ( 7 ) TO appreciate the contentions raised and to decide this matter, I consider it to be appropriate to briefly have glance on the relevant provisions of the act, 1963. ( 8 ) SECTION 11 of the Act, 1963 provides that no person may be a Councillor who has whether before, or after commencement of this Act, when convicted by a Court in India of offence under the Untouchability (Offences) Act, 1955 or under the Bombay Prohibition Act, 1949 or of any other offence and sentenced to imprisonment for not less than six months. ( 9 ) SECTION 37 of the Act, 1963 empowers the State Government to remove from office any Councillor of a Municipality, on its own motion or on receipt of recommendation of the Municipality in that behalf supported by a majority of the total members of the then Councillors of the Municipality and any president or Vice-President of a Municipality, if after giving the Councillor, president or as the case may be, Vice-President an opportunity of being heard and giving due notice in that behalf to the Municipality and after making such inquiry as it deems necessary, it is of the opinion that the Councillor, President or as the case may be, Vice-President has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under the Act, 1963. ( 10 ) SECTION 38 of the Act lays down disabilities from continuing as a councillor. During the term for which he has been elected or nominated become subject to any disqualification specified in Sec. 11, he shall subject to the provisions of sub-sec. (2) be disabled from continuing as a Councillor and his office shall be vacated. Sub-section (2) provides that in every case, the authority competent to decide whether the vacancy has arisen shall be the collector. The Collector may give his decision either on an application made to him by any person or on his own motion after giving the Councillor a reasonable opportunity of being heard. Sub-section (4) of this provision provides that any person aggrieved by the decision of the Collector may, within the period of 15 days from the date of such decision, appeal to the State Government and the orders passed by the State Government in such appeal shall be final. ( 11 ) THE notice which is impugned in this Special Civil Application has been given to the petitioner by the respondent No. 2 to show cause as to why he should not be removed from the office of the Councillor of Modasa nagar Palika as he has incurred disability to continue to hold that office under sec. 11 read with Sec. 38 of the Act, 1963. The relevant part of that show- cause notice, (as translated in English) reads as under :"that you are elected as member of Nagar Palika under the provisions of the Act, 1963. 11 read with Sec. 38 of the Act, 1963. The relevant part of that show- cause notice, (as translated in English) reads as under :"that you are elected as member of Nagar Palika under the provisions of the Act, 1963. That on proof of adulteration of chillies, Judicial Magistrate first Class by judgment dated 28-1-1998 in Criminal Case No. 2632 of 1988 has convicted you for imprisonment for two years and fine of Rs. 5,000/- and in case of default in payment of fine, for further one month imprisonment. Thus, you are covered under general disqualification under Sec. 11 of the Act, 1963. Under Sec. 11 read with Sec. 38 of the Act, 1963, if any person is convicted by a Court and sentenced to imprisonment for a period exceeding six months then he is not entitled to continue as member of the Nagar Palika. Thus, you have rendered yourself disqualified under Sec. 11 (1) (a) (i) (b) of the act, 1963. As it is necessary to hear you for disqualifying you, you are hereby given this notice to show cause as to why you should not be removed from the membership. " ( 12 ) LEARNED Counsel for the petitioner does not dispute that the power vests with the respondent No. 2 under Sec. 37 of the Act, 1963 to remove from the office any Councillor of the Municipality on its own motion. However, before passing any order of removal of any person from the office of Councillor of the Municipality, the Councillor concerned, as provided under Sec. 37 of the Act, 1963, has to be given a notice and an opportunity of hearing. ( 13 ) REMOVAL of Councillor from his office is permissible where he has been guilty of misconduct in discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties under the Act, 1963. Conviction of the petitioner for adulteration of chillies may certainly be a disgraceful conduct of his and further under Sec. 11 of the Act aforesaid he became disqualified for becoming the Councillor. ( 14 ) SECTION 38 of the Act, 1963 provides that where Councillor during the term for which he has been elected becomes subject to any disqualification specified under Sec. 11 be disabled from continuing as Councillor and his office shall become vacant. ( 14 ) SECTION 38 of the Act, 1963 provides that where Councillor during the term for which he has been elected becomes subject to any disqualification specified under Sec. 11 be disabled from continuing as Councillor and his office shall become vacant. ( 15 ) IN the submission of the learned Counsel for the petitioner that this notice given to the petitioner under Sec. 11 read with Sec. 38 of the Act, 1963 is not maintainable and is wholly misconceived. The petitioner is an elected councillor of the Municipality and on his incurring disqualification specified in Sec. 11 read with Sec. 38 of the Act, 1963 he stands disabled from continuing to be the Councillor and his office shall become vacant. However, this disability of the petitioner from continuing to be the Councillor and his office shall become vacant is subject to provisions of sub-sec. (2) of Sec. 38 of the Act, 1963. Sub-section (2) of Sec: 38 of the Act, 1963 as already quoted earlier, empowers the Collector to decide whether the vacancy has arisen or not. The Collector to give his decision under this clause either on application given to him by any person or of his own motion after giving the Councillor, a reasonable opportunity of being heard. If we read sub-sec. (2) of Sec. 38 of the Act, 1963 in the context of its purpose and object for which it is enacted, under this provision, the Collector has to decide whether the office of the Councillor has become vacant or not. Thus, unless the Collector under sub-sec. (2) of sec. 38 of the Act, 1963 decided that the petitioner has incurred disability and as a consequence thereof, his office has become vacant, the office shall not be taken to be vacant. That is one aspect of the matter. ( 16 ) IT is imperative that before passing any order either under sub-sec. (2) of Sec. 38 or Sec. 37 of the Act, 1963, the Councillor concerned has to be given a notice and opportunity of hearing. As a result of the order under sub-sec. (2) of Sec. 38 of the Act, 1963, whereunder the seat of the petitioner is declared vacant, the necessary consequence thereof is of his removal from the office. So this impugned notice is notice which clearly falls under sub- sec. As a result of the order under sub-sec. (2) of Sec. 38 of the Act, 1963, whereunder the seat of the petitioner is declared vacant, the necessary consequence thereof is of his removal from the office. So this impugned notice is notice which clearly falls under sub- sec. (2) of Sec. 38 of the Act, 1963 and if we go by the substance of the matter otherwise also on this technical ground, no relief can be granted to the petitioner by this Court under the extraordinary equitable jurisdiction. In fact, after the conviction of the petitioner for the offence, i. e. , economic as well as the offence against the Society, being elected member of the office of the Councillor and in view of the provisions of Sec. 11 read with Sec. 38 of the Act, 1963, he should have voluntarily withdrawn himself from the office of the Councillor of the Municipality. The petitioner is an elected member of the Municipality and he owes a duty to the voters as well as to his Nation to act in a manner and fashion and to exhibit an example of law-abiding citizen. In case the elected persons are not abiding the provisions of law then what can be expected from the ordinary citizen of the country ? The petitioner after his conviction for such a serious offence, i. e. , economic offence as well as the offence against the Society, he should not have sticked (sic.) to his office as Councillor of the Municipality. He has taken all these proceedings with the object and purpose to continue to hold the office: The provisions of Sec. 38 of the Act, 1963 is in a mandatory form which says that where the elected councillor become subject to any disqualification specified under Sec. 11, he shall be disabled from continuing as a Councillor. So there is a legal fiction and moment the Councillor has become subject to disqualification as specified under Sec. 11 of the Act, 1963, he shall be disabled from continuing to be the Councillor. Though this provision says that the Collector has to take decision under sub-sec. So there is a legal fiction and moment the Councillor has become subject to disqualification as specified under Sec. 11 of the Act, 1963, he shall be disabled from continuing to be the Councillor. Though this provision says that the Collector has to take decision under sub-sec. (2) regarding the seat of the petitioner whether it has become vacant or not, the petitioner being an elected member, looking to the offence for which he is convicted and punished, and it is a clear case of incurring disability to continue as Councillor, he should have voluntarily withdrawn himself from this office so long as he has not been acquitted by the higher court. Only in case where the conviction of the petitioner is stayed by the competent criminal Court, there may be some justification in his continuing in office but not otherwise. ( 17 ) THE conjoint reading of Secs. 11 and 38 of the Act, 1963 makes it clear that in a case where a Councillor is convicted by a Court of law of any offence and sentenced to imprisonment for not less than six months be disabled from continuing to be the Councillor and his office shall become vacant. When he becomes disabled from continuing to be a Councillor of the municipality necessary action has to be taken by the competent authority to remove him from the office as well as to declare his seat to be vacant. These two contingencies are clearly covered under Sec. 37 and Sec. 38 (2) of the act, 1963. As both these two actions are serious actions and pertaining to removal of the petitioner from the office of the Councillor of Municipality as well as of declaration of his seat to be vacant, the authority has to follow the principles of natural justice, i. e. , to give a notice and opportunity of hearing before passing the order adverse to the petitioner, and precisely what it is done in the present case by this notice. From the scheme of the Act, 1963, i. e. , re : removal and declaration of the seat to be vacant of a Councillor on his being incurred disability under Sec. 11 read with Sec. 38 of the Act aforesaid, the competent authority has powers and jurisdiction to initiate the proceedings of declaring his seat to be vacant and consequence of declaration of the seat vacant is removal of the Councillor from his elected office. It cannot be said in the facts of this case that the respondent No. 2 has lacked total jurisdiction to give such a notice to the petitioner. He has the power and jurisdiction to give such a notice and this writ petition which has been filed against the show- cause notice is not maintainable. It is no more res Integra that a writ petition against the show-cause notice is not maintainable, except in a case where the authority which has given the notice has totally lacked jurisdiction to issue such notice to the party concerned. The reason is obvious. The petitioner has sufficient opportunity to make his reply to the show-cause notice, and after considering the same the authority concerned shall pass the appropriate order. In this case, the order which the Collector will pass ultimately of declaring the seat of the petitioner to be vacant is appealable and it is clearly borne out from sub-sec. (4) of Sec. 38 of the Act, 1963, which provides that any person aggrieved by the decision of the Collector under sub-sec. (2) of Sec. 38 of the Act aforesaid may within a period of fifteen days from the date of such decision may appeal to the State Government and the order passed by the State Government in such appeals shall be final. ( 18 ) THE matter can be looked into and examined from different angle. In a case which falls under Sec. 11 of the Act, 1963, that is the Councillor of the Municipality incurred any of the disabilities as provided therein to continue as a Councillor then certainly he cannot continue to act as a Councillor. In this case, there cannot be any dispute that this disability has been incurred by the petitioner. To provide sufficient check and opportunity of hearing to the petitioner, Sec. 38 provides that this disability shall be subject to the provisions of sub-sec. (2 ). Under sub-sec. In this case, there cannot be any dispute that this disability has been incurred by the petitioner. To provide sufficient check and opportunity of hearing to the petitioner, Sec. 38 provides that this disability shall be subject to the provisions of sub-sec. (2 ). Under sub-sec. (2) which has already been referred in the earlier part of the judgment, the Collector has to decide for the vacancy which has occurred due to disability of a Councillor to continue as a Councillor. A Conjoint reading of these two provisions, Secs. 11 and 38 of the Act, 1963, leaves no doubt that after incurring of disability, the Councillor cannot continue as a Councillor and for which even the order of his removal may not be necessary. It is by virtue of legal fiction he shall be deemed to have been discontinued as a Councillor, moment he incurred any of the disabilities as provided under Sec. 11 of the Act, 1963 but his seat has to be declared vacant so that in his place other Councillor may be elected. So long as the Collector has not decided and declared his seat to be vacant, his disabiliy remains to be suspended or non-effected. The declaration of the seat of the Councillor to be vacant has to be made after following the procedure laid down under sub-sec. (2) of Sec. 38 of the Act, 1963, i. e. , after giving notice and opportunity of hearing, which precisely has been done in this present case. The word removal from the office of the Councillor in the notice may be superficial. However, the object behind this notice has to be seen. The substance of the matter has to be considered and the intention of the legislature has to be taken care of, certainly on this technical approach of the learned Counsel for the petitioner where otherwise the Collector has to give notice to declare the seat of the petitioner to be vacant, this notice cannot be quashed and set aside. The declaration of the seat of the petitioner to be vacant is ultimately and in fact is the removal of the petitioner from the office of the Councillor. So, even if it is taken that such a case is not covered under Sec. 37 of the Act, 1963 still the petitioner cannot be permitted to continue after incurring the disqualification and this exercise as provided under sub-sec. So, even if it is taken that such a case is not covered under Sec. 37 of the Act, 1963 still the petitioner cannot be permitted to continue after incurring the disqualification and this exercise as provided under sub-sec. (2) of Sec. 38 of the Act, 1963 has to be expeditiously undertaken and finally decided. ( 19 ) NOW I may advert to the other contention raised by the learned Counsel for the petitioner that the conviction means final conviction by the highest Court, it is suffice to say that it is wholly misplaced. Section 11 of the Act, 1963 does not speak of sentence or punishment to be awarded. The conviction of the petitioner does not cease to be operative merely because the appellate Court on his appeal suspended the sentence. Section 389 of the Code of Criminal procedure, 1973 empowers the appellate Court to order that pending appeal the execution of the sentence or order appealed against be suspended and also, if the appellant is in confinement, he may be released on bail, or on his own bond. This section, it may be noted speaks of suspending the execution of sentence or the order though it does not expressly speak of suspension of conviction. In the case of Ram Narang v. Ramesh Narang, reported in JT 1995 (1) SC 515, the Apex Court has observed :"15. Under the provisions of the Code to which we have already referred there are two stages in a criminal trial before a Sessions Court, the stage upto the recording of a conviction and the stage post-conviction upto the imposition of sentence. A judgment becomes, complete after both these stages are covered. Under Sec. 374 (2) of the Code any person convicted on a trial held by a Sessions judge or an Additional Sessions Judge may appeal to the High Court. Section 384 provides for summary dismissal of appeal if the Appellate Court does not find sufficient ground to entertain the appeal. If, however, the appeal is not summarily dismissed, the Court must cause notice to issue as to the time and place at which such appeal will be heard. Section 389 (1) empowers the Appellate court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provisions is the execution of the sentence or the execution of the order. Section 389 (1) empowers the Appellate court to order that the execution of the sentence or order appealed against be suspended pending the appeal. What can be suspended under this provisions is the execution of the sentence or the execution of the order. Does "order" in sec. 389 (1) mean order of conviction or an order similar to the one under Secs. 357 or 360 of the Code ? Obviously the order referred to in Sec. 389 (1) must be an order capable of execution. An order of conviction by itself is not capable of execution under the Code. It is the order of sentence or an order awarding compensation or imposing fine or release on probation which are capable of execution and which, if not suspended, would be required to be executed by the authorities. Since the order of conviction does not on the mere filing of an appeal disappear it is difficult to accept the submission that Sec. 267 of the Companies Act must be read to apply only to a "final" order of conviction. Such an interpretation may defeat the very object and purpose for which it came to be enacted. It is, therefore, fallacious to contend that on the admission of the appeal by the Delhi High Court the order of conviction had ceased to exist. If that be so, why seek a stay or suspension of the order ? 19. That takes us to the question whether the scope of Sec. 389 (1) of the code extends to conferring power on the appellate Court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Sec. 267 of the Companies act, we see no reason why we should give a narrow meaning to Sec. 389 (1) of the Code to debar the Court from granting an order to that effect in a fit case. The appeal under Sec. 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. The appeal under Sec. 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Sec. 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Sec. 389 (1) of the Code not to extend it to an order of conviction. Although that issue in the instant case recedes in the background because High Courts can exercise inherent jurisdiction under Sec. 482 of the Code if the power was not to be found in sec. 389 (1) of the Code. We are, therefore, of the opinion that the Division bench of the High Court of Bombay is not right in holding that the Delhi High court could not have exercised jurisdiction under Sec. 482 of the Code if it was confronted with a situation of there being no other provision in the Code for staying the operation of the order of conviction. In a fit. case, if the High court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted persons does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Sec. 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the appellate Court. But while granting stay of suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it consider it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company. " ( 20 ) REFERENCE may have to another decision of the Apex Court in the case of The Deputy Director of Collegiate Education v. S. Nagoor Meera, reported in JT 1995 (3) SC 32. In Para-9 of this judgment, the Apex Court has thus held :"9. " ( 20 ) REFERENCE may have to another decision of the Apex Court in the case of The Deputy Director of Collegiate Education v. S. Nagoor Meera, reported in JT 1995 (3) SC 32. In Para-9 of this judgment, the Apex Court has thus held :"9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed" of, action under clause (a) of the second proviso to art. 311 (2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Art. 311 (2) once a Government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the Government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz. , to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal Court. It should be remembered that the action under clause (a) of the second proviso to Art. 311 (2) will be taken only where the conduct which has led to his conviction is such that it deserves any of the three major punishments mentioned in Art. 311 (2 ). As held by this Court in Shankardass v. Union of India, 1985 (2) SCR 358 :"clause (a) of the second proviso to Art. 311 (2) of the Constitution confers on the Government the power to dismiss a person from services "on the ground of conduct which has led to his conviction on a criminal charge". But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Art. 311 (2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. " . ( 21 ) THIS contention of the learned Counsel for the petitioner deserves no acceptance. The conviction does not mean final conviction and similarly in case the sentence has been suspended or the accused has been enlarged on bail or on his personal bond, the conviction of him will not cease or it will not come to end. Conviction will continue so long as it is not set aside by the appellate Court and the grant of bail to the accused by suspending the sentence is of no avail to him. The petitioner shall incur the disability as provided under sec. 11 of the Act, 1963, and merely by the order of the appellate Court to suspend his sentence and order to be released on bail will be of no help in this case. ( 22 ) LASTLY, this Special Civil Application has been filed by the petitioner against the show-cause notice. What the Collector has done in this case is to call upon the petitioner to show cause why he should not be removed from the office. This word "removal" may be to certain extent objectionable but as stated earlier, if we go by the substance of the matter, then this case clearly falls under sub-sec. (2) of Sec. 38 of the Act, 1963 and after decision given against the petitioner by the Collector under that provision, consequence thereof is of his removal from the office, for which he already incurred disability to continue thereon. This show-cause notice cannot be said to be issued by the authority without any jurisdiction or authority. (2) of Sec. 38 of the Act, 1963 and after decision given against the petitioner by the Collector under that provision, consequence thereof is of his removal from the office, for which he already incurred disability to continue thereon. This show-cause notice cannot be said to be issued by the authority without any jurisdiction or authority. If the power to issue such a notice is traceable under the Act, 1963, then challenge to the show-cause notice is not maintainable under Art. 226 of the Constitution before this Court. This aspect of the matter has already been dealt with that the show-cause notice given by the Collector to the petitioner is not without any authority or is nullity or totally without jurisdiction. The matter is squarely covered by the decision of the Apex Court in the case of Executive Engineer, Bihar State Housing board v. Ramesh Kumar Singh and Ors. , reported in 1996 (1) SCC 327 . The apex Court in Paras 10 and 11 of the judgment held as under :"10. We are concerned in this case, with the entertainment of the writ petition against a show-cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex fade a "nullity" or totally "without jurisdiction" in the traditional sense of that expression that is to say, that even the commencement or initiation of the proceedings, on the fact of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Art. 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Art. 226 of the Constitution of India. 11. On the facts of this case, we hold that the first respondent was unjustified in invoking the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution of India, without first showing cause against Annexure Ext. P-4 before the third respondent. The appropriate procedure for the first respondent would have been to file his objections and place necessary materials before the third respondent and invite a decision as to whether the proceedings initiated by the third respondent under Sec. 59 of the Bihar State Housing Board Act, 1982, are justified and appropriate. The adjudication in that behalf necessarily involves disputed questions of fact which require investigation. In such a case, proceedings under Art. 226 of the Constitution can hardly be an appropriate remedy. The High Court committed a grave error in entertaining the writ petition and in allowing the same by quashing Annexure Ext. P-4 and also the eviction proceedings No. 6 of 1992, without proper and fair, investigation of the basic facts. We are, therefore, constrained to set aside the judgment of the High Court of Patna in C. W. J. C. No. 82 of 1993 dated 10-2-1993. We hereby do so. The appeal is allowed with costs. " ( 23 ) IN the result, this Special Civil Application fails and the same is dismissed. Application dismissed. .