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Himachal Pradesh High Court · body

2009 DIGILAW 1037 (HP)

SUMIT SOOD v. STATE OF HIMACHAL PRADESH

2009-11-11

R.B.MISRA, RAJIV SHARMA

body2009
JUDGMENT 1. The respondents have issued Annexure A-5 dated 3.6.2007 to the petitioner. He has been permitted to file reply to the same. He has filed the reply vide Annexure A-6. The petitioner assailed the memorandum dated 3.6.2007 before the learned Himachal Pradesh Administrative Tribunal. We are of the considered view that the present petition was pre-mature and the respondents should have been granted opportunity to take decision after considering the reply filed by the petitioner to the memorandum dated 3.6.2007. 2. Their Lordships of the Hon’ble Supreme Court in Chanan Singh versus Registrar, Cooperative Societies, Punjab and others, (1976) 3 SCC 361 have held the petition to be premature filed against the issuance of show cause notice. Their Lordships have held as under: “4. The first point raised in objection by the second respondent is that the writ petition is premature since no action has been taken finally against the appellant, the disciplinary proceedings are still pending and the explanation of the appellant is under consideration. It is only in the event of the appellant being punished that any grievance can arise for him to be agitated in the proper forum. 5. Other obstacles in the way of granting the appellant relief were also urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case premature. No punitive action has yet been taken. It is difficult to state, apart from speculation, what the outcome of the proceedings will be. In case the appellant is punished, it is certainly open to him either to file an appeal as provided in the relevant rules or to take other action that he may be advised to resort to. It is not for us at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised or whether an appeal to the competent authority under the rules is the proper remedy, although these are issues which merit serious consideration. 6. We are satisfied that, enough unto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the view we take that there is no present grievance of punitive action which can be ventilated in court. 6. We are satisfied that, enough unto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the view we take that there is no present grievance of punitive action which can be ventilated in court. After all, even the question of jurisdiction to reopen what is claimed to be a closed enquiry will, and must, be considered by the Managing Director. On this score, we dismiss the appeal but, in the circumstances, without costs.” 3. The Apex Court in State of Uttar Pradesh versus Brahm Datt Sharma and another, (1987) 2 SCC 179 has held that writ petition against a show cause notice is not maintainable. Their Lordships have held as under: “9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision -in the matter could be taken. Interference by the Court before that would be premature. The High Court in our opinion ought not to have interfered with the show cause notice.” 4. In a similar case i.e. Executive Engineer, Bihar State Housing Board versus Ramesh Kumar Singh and others, (1996) 1 SCC 327, where the petitioner instead of showing cause had straightway filed the writ petition in the High Court, their Lordships of the Hon’ble Supreme Court have held as under: “9. We heard counsel. It is common ground that Quarter No. M/11 (Old) Adityapur, near Jamshedpur, belongs to Board. According to the Board and the 4th respondent the hire-purchase transaction is still in force, and the ownership of the building has not been finally transferred to the 4th respondent. We heard counsel. It is common ground that Quarter No. M/11 (Old) Adityapur, near Jamshedpur, belongs to Board. According to the Board and the 4th respondent the hire-purchase transaction is still in force, and the ownership of the building has not been finally transferred to the 4th respondent. The 1st respondent would say that the 4th respondent is the owner having purchased the building from the Board. The basic or fundamental fact is thus in dispute. the 3rd respondent is the competent authority notified by the State Government under the Bihar State Housing Board Act, 1982 to initiate summary proceedings for eviction against the sub-letting, unauthorised occupation by any person, of the premises, etc., belonging to the Board. Annexure Ext. P-4 notice, is the one so issued by the 3rd respondent. The appellant and the 4th respondent complained about the forcible or unauthorized occupation by the first respondent of the premises belonging to the Board. The 3rd respondent was competent to initiate the proceedings under the Act if the building still belongs to the Board and the ownership has not vested in the 4th respondent. It may be, that this basic fact is denied by the 1st respondent when he states that the 4th respondent is the owner having purchased the building from the Board and that he is a tenant under the 4th respondent. The basic facts, on the basis of which the jurisdiction of 3rd respondent to initiate/continue the proceedings, require investigation and adjudication. If, as pleaded by appellant and the 4th respondent, the Board is the owner and the 4th respondent is the hirer, it cannot admit of any doubt that the 3rd respondent has jurisdiction to initiate the proceedings as per Annexure Ext. P-4. If that basic fact is denied by the 1st respondent, that may require investigation of disputed facts and adjudication by the competent authority – the 3rd respondent. Without showing cause against Annexure Ext. P-4, notice, the 1st respondent straightway filed the Writ petition in the High Court and assailed Annexure Ext. P-4 and the eviction proceedings. The averments in this regard, contained in paragraph 13 (H) of the Special Leave Petition, are not denied in the detailed counter affidavit filed by the 1st respondent in this Court. 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. The averments in this regard, contained in paragraph 13 (H) of the Special Leave Petition, are not denied in the detailed counter affidavit filed by the 1st respondent in this Court. 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 facie 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 face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Article 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 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 Article 226 of the Constitution of India.” 5. Similarly, their Lordships of the Hon’ble Supreme Court in Bhaiji versus Sub-Divisional Officer, Thandla and others, (2003) 1 SCC 692 have held the petition to be premature filed merely against the issuance of show cause notice. Their Lordships have held as under: “15. The petition filed by the writ petitioner before the High Court was entirely misconceived and, in a way, premature, The show cause notice issued by the sub-divisional officer cannot be said to be without jurisdiction. The appellant should have participated in the enquiry after showing cause. Instead he chose to rush post haste to the High Court. The High Court rightly turned down the writ petition.” 6. The appellant should have participated in the enquiry after showing cause. Instead he chose to rush post haste to the High Court. The High Court rightly turned down the writ petition.” 6. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the present petition is not maintainable merely against the issuance of memorandum dated 3.6.2007. The petitioner cannot presume that the decision shall be taken by the respondent-State without taking into consideration the reply furnished by him. 7. Accordingly, there is no merit in the petition and the same is dismissed. No costs.