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2016 DIGILAW 351 (GUJ)

KARIMBHAI DADAMIYA PIRZADA v. STATE OF GUJARAT

2016-02-12

N.V.ANJARIA

body2016
JUDGMENT : N.V. ANJARIA, J. 1. The petitioner has challenged order dated 3rd December, 2014 whereby his certificate to practice as Notary came to be cancelled and he was permanently debarred from practicing as Notary. 2. The petitioner entered the roll of the Bar Council of Gujarat in December, 1984, came to be appointed as Notary by the Government of Gujarat and granted certificate to practice dated 05th July, 2002. A complaint came to be lodged against the petitioner on 24th March, 2014 in which it was alleged that the petitioner notarized a power-of-attorney dated 28th January, 2008 of one Maniben in favour of one Ramdevbhai Sukabhai Modhvadiya, which was a fraudulent document. The complainant stated that said Maniben impersonated his mother who had died on 08th March, 1989 and even succession of entry of hers was certified on 07th July, 2002. A notice dated 3rd May, 2014 came to be thereupon issued to the petitioner by the Deputy Secretary, Legal Department calling for petitioner’s explanation. Petitioner filed written reply dated 12th May, 2014. The competent authority in his inquiry report dated 21st November, 2014 concluded that the petitioner-Notary had committed a serious misconduct under Section 10(d) of the Notaries Act, 1952 which warranted imposition of any of the penalties mentioned in sub-rule (12) of Rule 13 of the Notaries Rules, 1956. The competent authority remitted the matter to the appropriate government, namely, the state government for passing appropriate order. Impugned order resulted, culminating into the present writ petition challenging the same. 3. Contesting the petition, one Mr. D.M. Bhabhor holding the post of Under Secretary, Legal Department, Government of Gujarat, filed affidavit-in-reply on behalf of respondent No.1, inter-alia to submit that the penal order against the petitioner was after providing ample opportunities of being heard to the petitioner. It was stated that the disputed document in the name of Maniben Prabhudas Kanojiya was notarized on 28th January, 2008, whereas said Maniben had expired much prior to the said date, which suggested that the petitioner did not take due care in identifying the person concerned and without verification of identity proof, the notarization was done. It was stated that the disputed document in the name of Maniben Prabhudas Kanojiya was notarized on 28th January, 2008, whereas said Maniben had expired much prior to the said date, which suggested that the petitioner did not take due care in identifying the person concerned and without verification of identity proof, the notarization was done. As to the contention raised in the petition that the decision of imposing penalty on the petitioner was not by the appropriate government as per the Rules, it was submitted in the affidavit-in-reply that the Under Secretary, Legal Department was only communicator of the decision which was taken by the state government and that the Under Secretary played no role in taking final decision against the petitioner. 3.1 Private respondent No.2 also objected to the prayers of the petitioner by filing affidavit-in-reply contending that his mother Maniben was already no more and even succession certificate was issued, but some other old lady was presented before the petitioner and the petitioner without identifying, notarized the document which is a power-of-attorney given in the name of Maniben. It was contended that the lapse on part of the petitioner is too serious to be treated with any leniency, that the fraudulent power-of-attorney resulted into transaction of sale of property and the petitioner played a vital role in attesting the fraudulent document which was used for transfer entry in the revenue records. It was submitted that the entire fraudulent conduct was related to an incident wherein a noted biotech scientist one Rajan Damodar Killakar was attempted to be murdered for grabbing of various properties. 4. Heard learned advocate Mr. Mehul S. Shah with learned advocate Mr. Jay Thakkar for the petitioner, learned Assistant Government Pleader Ms. Jyoti Bhatt for respondent No.1 and learned advocate Mr. Vilas Goswamy for private respondent No.2. 5. Before adverting to deal with the submissions of the parties, it would be useful to consider the relevant statutory provisions. Section 10 of the Notaries Act, 1952, deals with the mode of removal of name from the Register of Notaries maintained as per Section 4 of the Act. Section 10 reads as under:- “10. 5. Before adverting to deal with the submissions of the parties, it would be useful to consider the relevant statutory provisions. Section 10 of the Notaries Act, 1952, deals with the mode of removal of name from the Register of Notaries maintained as per Section 4 of the Act. Section 10 reads as under:- “10. Removal of names from Register – The Government appointing any Notary may, by order, remove from the Register maintained by it under section 4 the name of the Notary if he:- (a) makes a request to that effect; (b) has not paid any prescribed fee required to be paid by him; (c) is in un-discharged insolvent; (d) has been found, upon inquiry in the prescribed manner, to be guilty of such professional or other misconduct as, in the opinion of the Government, renders him unfit to practice as a Notary; (e) is convicted by any court for an offence involving moral turpitude; (f) does not get his certificate of practice renewed.” 5.1 The Central Government has framed the Notaries Rules, 1956, in exercise of powers conferred under Section 15 of the Act. Rule 13 of the Rules contemplates the provisions in respect of inquiry into the allegations of professional or other misconduct of a Notary. Rule 13 dealing with the inquiry procedure is conveniently extracted herein-below:- “13. Inquiry into the allegations of professional or other misconduct of a notary:- (1) An inquiry into the misconduct of a notary may be initiated either suo motu by the appropriate government or on a complaint received in Form XIII. (2) Every such complaint shall contain the following particulars, namely:- (a) the acts and omissions which, if proved, would render the person complained against unfit to be a notary; (b) the oral or documentary evidence relied upon in support of the allegations made in the complaint. (2) Every such complaint shall contain the following particulars, namely:- (a) the acts and omissions which, if proved, would render the person complained against unfit to be a notary; (b) the oral or documentary evidence relied upon in support of the allegations made in the complaint. (3) The appropriate government, shall return a complaint which is not in the proper form or which does not contain the aforesaid particulars to the complainant for representation after compliance with such objections and within such time as the appropriate government may specify: Provided that if the subject matter in a complaint is, in the opinion of the said government substantially the same as or covered by, any previous complaint and if there is no additional ground, the said government shall file the said complaint without any further action and inform the complainant accordingly. (4) Within sixty days ordinarily of the receipt of complaint, the appropriate government shall send a copy thereof to the notary at his address as entered in the Register of Notaries. (4A) Where an inquiry is initiated, suo motu by the appropriate government, the appropriate government shall send to the notary a statement specifying the charge or charges against him, together with particulars of the oral or documentary evidence relied upon in support of such charge or charges. (5) A notary against whom an inquiry has been initiated may, within fourteen days of the service on him of a copy of the complaint under sub-rule (4) or of the statement of the charges under sub-rule (4A), as the case may be, or within such time as may be extended by the appropriate government, forward to that government a written statement in his defence verified in the same manner as a pleading in a civil court. (6) If on a perusal of the written statement, if any, of the notary concerned and other relevant documents and papers, the appropriate government considers that there is a prima facie case against such notary, the appropriate government shall cause an inquiry to be made in the matter by the competent authority. If the appropriate government is of the opinion that there is no prima facie case against the notary concerned, the complaint or charge shall be filed and the complainant and the notary concerned shall be informed accordingly. If the appropriate government is of the opinion that there is no prima facie case against the notary concerned, the complaint or charge shall be filed and the complainant and the notary concerned shall be informed accordingly. (7) Every notice issued to a notary under this rule shall be sent to him by registered post. If any such notice is returned un-served with an endorsement indicating that the addressee has refused to accept the notice or the notice is not returned un-served within a period of thirty days from the date of its dispatch, the notice shall be deemed to have been duly served upon the notary. (8) It shall be the duty of the appropriate government to place before the competent authority all facts brought to its knowledge which are relevant for the purpose of an inquiry by the competent authority. (9) A notary who is proceeded against shall have right to defend himself before the competent authority either in person or through a legal practitioner or any other notary. (10) Except as otherwise provided in these rules, the competent authority shall have the power to regulate his procedure relating to the inquiry in such manner as he considers necessary and during the course of inquiry, may examine witnesses and receive any other oral or documentary evidence. (11) The competent authority shall submit his report to the government entrusting him with the inquiry. (12)(a) The appropriate government shall consider the report of the competent authority, and if in its opinion a further inquiry is necessary may cause such further inquiry to be made and a further report submitted by the competent authority. (b) If, after considering the report of the competent authority, the appropriate government is of the opinion that action should be taken against the notary the appropriate government may make an order:- (i) cancelling the certificate of practice and perpetually debarring the notary from practice; (ii) suspending him from practice for a specified period; (iii) letting him off with a warning, according to the nature and gravity of the misconduct of the notary proved. (13) Notification of removal- The removal of the name of any notary from the register of notaries from practice, as the case may be, shall be notified in Official Gazette and shall also be communicated in writing to the notary concerned.” 5.2 In the present case, the penal order against the petitioner came to be passed under sub-clause (d) of Section 10 on the ground that the petitioner was guilty of misconduct. For imposing penalty, Rule 13(12)(b)(i) of the Rule is put into play. 6. The first submission of learned advocate for the petitioner was that the impugned order is bad in law insofar as it imposes the penalty of permanently debarring the petitioner from practicing as a Notary, could be accepted at the outset. In support of this, decision of the Allahabad High Court in Shri Kashi Prasad Saksena vs. State of U.P. AIR 1967 All. 173 was relied on in which the Allahabad High Court interpreted Rule 13(12)(b) of the Notaries Rules, 1956 vis-a-vis the provision of Section 10 of the Act and held Rule 13(12)(b) as invalid insofar as it provides for the punishment of permanently debarring a Notary from practice, on the ground that the said Rule travels beyond the scope of Section 10 of the Act which does not empower to impose such penalty of permanent debarment. 6.1 The High Court stated as under:- “……. It would appear that the Central Government could frame a rule either under the general power conferred upon it by the opening words of sub-section (2) or by any of the clauses mentioned in that provision. It is well settled that a rule cannot militate against a provision contained in the statute under which the rules have been framed. Section 10 or any other section of the /Act did not confer on the State Government any bigger power than to remove the name of a Notary from the register maintained under S.4 of the Act. Therefore even the general powers conferred by sub-section (2) of S. 15 of the Act cannot give the Central Government the jurisdiction to frame a rule which travels much beyond the scope of S. 10 of the Act. Therefore even the general powers conferred by sub-section (2) of S. 15 of the Act cannot give the Central Government the jurisdiction to frame a rule which travels much beyond the scope of S. 10 of the Act. In other words when S. 10 of the Act does not give the appropriate Government the power of perpetually debarring a person from practicing as a Notary and confines that power to at most removing the name from the Register of Notaries, the power to perpetually debar cannot be conferred by the rules.” (Para 20) 6.1.1 It reasoned further:- “If a person’s name is removed from the Register of Notaries, there is no bar to his applying again. But once he is perpetually debarred, he can never apply again. Under S. 10 or any other provision of the Act, the Government has not power to inflict the extreme punishment of debarring perpetually. In our opinion, therefore, R 13(12) (b), so far as it authorizes the appropriate Government, to permanently debar a Notary from practice, is beyond the rule making power of the Central Government and for that reason invalid. The order of the State Government therefore so far as it perpetually debars the petitioner-appellant from practicing the profession of a Notary is without jurisdiction and liable to be quashed.” (Para 20) “We would also like to point out that Rule 13 is headed as “inquiry into the allegation of professional and other misconduct of a Notary.” Consequently that rule has been framed not under the general powers contained in sub-section (2) of S. 15 of the Act, but under Cl. (g) of S. 15 (2) of the Act. That clause permits the Central Government to frame a rule providing “the manner in which inquiries into allegations of professional or other misconduct of notaries may be made”. The power to perpetually debar is not comprehended in the expression “the manner in which enquiries……of notaries may be made.” 6.1.2 The Court ruled that power to perpetually debar was not comprehended the main statutory provision, therefore by virtue of Rule, the said penalty could not be prescribed and imposed. The power to perpetually debar is not comprehended in the expression “the manner in which enquiries……of notaries may be made.” 6.1.2 The Court ruled that power to perpetually debar was not comprehended the main statutory provision, therefore by virtue of Rule, the said penalty could not be prescribed and imposed. “The rule permitting an order of debarring a person perpetually would therefore be beyond the scope of S. 15(2) (g) of the Act and for that reason also void.” (Para 21) 6.2 The law laid down by the Allahabad High Court in striking down the Rule as above is a correct enunciation. This Court endorses to what is held by the Allahabad High Court. The Rule in so far as it provides for permanent debarment cannot stand in discordance with the main provision. Therefore, the impugned order when penalises the petitioner-Notary with permanent debarment from practice, cannot sustain. 6.3 It was submitted in the second place by learned advocate for the petitioner that the appropriate government, that is, the state government ought to have given a notice to the petitioner before imposing penalty. As the petitioner had no opportunity to represent his case about the penalty, the final order stood vitiated in law. 6.4 In furtherance, it was submitted that the penalty has to be commensurate to the gravity of the misconduct. Elaborating and developing this contention, it was submitted that it could hardly be said that the petitioner had committed a ‘misconduct’, much less a professional misconduct. Section 10(d) of the Act, submitted learned counsel further, speaks of professional or other misconduct. It was submitted that while deciding the penalty, the nature and degree of the misconduct alleged and proved is a relevant consideration. According to learned advocate for the petitioner, had a notice for the proposed penalty been given, the petitioner could have represented his case to convince that even if the allegations were held to be proved for the sake of acceptance without admission, it did not warrant a particular punishment. 6.5 It was next submitted that the petitioner acted with bona fide belief since the old lady had come with her photograph affixed on the document and that she was identified by the accompanying person one Mr. Kamleshbhai Bhadrecha. 6.5 It was next submitted that the petitioner acted with bona fide belief since the old lady had come with her photograph affixed on the document and that she was identified by the accompanying person one Mr. Kamleshbhai Bhadrecha. He submitted that the petitioner neither reaped any benefit, nor practiced anything corrupt, nor acted with such an intention; sympathizing with 80 years old lady who had come for power-of-attorney and was identified with photograph affixed, he did the notarization, which did not amount to any misconduct, submitted learned advocate for the petitioner. It was further submitted that the conduct on part of the petitioner was at the best one of negligence or lack of care, but did not amount to misconduct stricto sensu. According to learned advocate, element of mens rea akin to the criminal proceedings is necessary for inflicting punishment of cancellation of Notary’s licence. He submitted that the conduct was not a grave to be treated as moral turpitude to justify the punishment. It was therefore submitted that when no notice was issued before imposing penalty, the petitioner was deprived of the opportunity to defend his case by presenting aforesaid aspect for penalty. 6.6 All the aforesaid submissions were urged independently and also to buttress the contention that for the said very reasons the appropriate government was required to apply its mind on the aspect of the penalty to be imposed, therefore also, a notice prior to actual imposition of penalty was an indispensable requirement. It was submitted that in that way also the petitioner was deprived of opportunity to defend and he had no occasion to present his case on the aspect of penalty, it cause serious prejudice to him and the entire decision stood vitiated. 6.7 Objecting to the submission of the petitioner on the aforesaid count, learned Assistant Government Pleader was emphatic that issuance of notice before imposition of penalty was not necessary as the Rules nowhere provide for such notice. It was submitted that the petitioner had an opportunity to defend so as to answer the charges against him in course of the inquiry, and when the Rules did not contemplate giving of second show-cause notice at the stage of penalty, the submission cannot hold good. It was submitted that the petitioner had an opportunity to defend so as to answer the charges against him in course of the inquiry, and when the Rules did not contemplate giving of second show-cause notice at the stage of penalty, the submission cannot hold good. According to learned AGP, therefore such requirement could not be treated as part of natural justice and non giving of notice as to the proposed penalty could not amount to breach of natural justice. 6.8 The total procedure under Rule 13 of the Rules in respect of inquiry which may be conducted against Notary may be dissected and summarised. It would provide a settings to search answer to the question whether notice as to proposed penalty is necessary. (i) Inquiry against a Notary may be initiated in two ways. Either suo motu by the appropriate government. The term “appropriate government” is defined in section 2(a). In relation to a Notary appointed by the Central Government, the Central government and in relation to a Notary appointed by any State Government, the State Government. The second way in which inquiry against Notary for misconduct may be started is on a complaint received in Form XIII. (ii) In the case where inquiry is commenced on the basis of a complaint, such complaint has to contain particulars mentioned in sub-rule (3) of Rule 13. The form of the Complaint is prescribed. Under sub-section (3), the appropriate government shall return a complaint, not in the proper form or which does not contain the requisite particulars. In case of successive complaint, if the last complaint, is found to be containing the same allegations and no additional ground, the government shall file such complaint without any further action. (iii) The appropriate government is required to send copy of the complaint to the Notary concerned within sixty days from the date of complaint. (iv) Where the suo motu inquiry initiated, the Notary shall be furnished with a statement specifying the charge or charges together with the particulars of evidence relied upon. The Notary has a right to file a written reply to the statement of charges. (v) If the appropriate government is of the view that a prima facie case is made out against the Notary, it may thereafter cause an inquiry through the competent authority. The Notary has a right to file a written reply to the statement of charges. (v) If the appropriate government is of the view that a prima facie case is made out against the Notary, it may thereafter cause an inquiry through the competent authority. Where the appropriate government is of the opinion that no prima facie case is made out, the complaint will be filed. (vi) The government shall place before the competent authority holding the inquiry, all the relevant facts to the knowledge of the authority. A Notary who is proceeded against is given a right to defend before the competent authority either in person or through a legal practitioner or through any other Notary. The competent authority has power to regulate procedure of the inquiry to be conducted by it. (vii) As per sub-rule (11) of Rule 13, the competent authority submits report to the government. Under sub-rule (12), the report is to be considered by the appropriate government. The appropriate government may cause the further inquiry and the further report, if in its opinion, such course is necessary in the facts of the case. If after considering report, the appropriate government forms an opinion of taking action against the Notary; order punishing the Notary may follow. (viii) Under sub-clause (b) of Rule 12, penalties prescribed are (i) canceling certificate of practice and perpetually debarring the Notary from practice, (ii) suspending him from practice for a specified period, (iii) letting him off with a warning, according to the nature and gravity of the misconduct proved. (ix) In case of removal of name of Notary from the Register of Notaries, a notification shall be published in the official gazette and shall be communicated to the Notary concerned. 6.9 From the aforesaid scheme, it is clear that under Rule 13, inquiry into allegations of the professions or other misconduct by Notary is contemplated in two stages. Firstly, the matter would be examined by the appropriate government and in a fit case, further inquiry would be undertaken by the competent authority upon the competent authority being so required by the appropriate government. In other words, there are two distinct authorities which would be involved in investigating into the charges against a Notary. Right to defend arises for the Notary at both the stages as per the Rules. In other words, there are two distinct authorities which would be involved in investigating into the charges against a Notary. Right to defend arises for the Notary at both the stages as per the Rules. Section 10 of the Act and Rule 13 of the Rules would call for a conjoint reading. 7. The stretch of principles of natural justice, the situation for its applicability and reading a right to be heard into a provision, even-though the provision is silent for such observance may be comprehended with reference to certain apex decisions. 7.1 In S.L. Kapoor vs. Jagmohan, (1980) 4 SCC 379 the Supreme Court dealt with the aspect of extent of natural justice and the rule of audi alteram partem, observing that it is not always a necessary inference that if opportunity is expressly provided in one provision and not so provided in another, the opportunity is to be considered as excluded from that another provision. It was observed that it may be a weighty consideration to be taken into account, but the weightier consideration is whether the action has entailed civil consequences. The Apex Court was considering whether notice to member of Municipal Committee concerned, was necessary before the lieutenant governor exercised powers under Section 238(1) of Punjab Municipal Act superseding the New Delhi Municipal Committee before expiry of the term. The Supreme Court read into the provision of Section 238(1) the requirement of reading the natural justice. It was held that the fact that with regard to question of disqualification of an individual member, Section 16 of the Act expressly provided for an opportunity to the member concerned, whereas Section 28(1) did not provide for such an opportunity, would not lead to a necessary inference that action under Section 238 did not require observation of rule of natural justice. The Apex Court made the following observations:- “The requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. This does not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. This does not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met.” (Para 16) 7.2 In Sahara India (Firm), Lucknow vs. Commissioner of Income Tax, Central-I and Anr. (2008) 14 SCC 151 , the Supreme Court with reference to the provisions of Section 142(2-A) of the Income Tax Act underlined the well settled principle that any order entailing civil consequences would require observance of pre-decisional hearing. Even though the said provisions did not provide for observance of natural justice, the Supreme Court held that the natural justice has to be read into the provision. It was stated that since the exercise of power under Section 142 (2-A) of the Income Tax Act, 1961 leads to serious civil consequences and, therefore, even in the absence of express provision for affording an opportunity of pre-decisional hearing to an assessee and in the absence of any express provision in Section 142 (2A) barring the giving of reasonable opportunity to an assessee, the requirement of observance of principles of natural justice is to be read into the said provision. The Court observed that Rules of "natural justice" are not embodied rules. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State. The principle implies a duty to act fairly. It is observed that these rules can operate only in areas not covered by any law validly made. 7.3 An elaborate assistance is available from the Apex Court decision in Gorkha Security Services vs. Government (NCT of Delhi) (2014) 9 SCC 105 . The appellant in that case was an awardee of contract, who came to be subjected to penal action pursuant to show cause notice and came to be blacklisted. The Apex Court dealt with question of law pertaining to the form and content of show cause notice that was required to be served for deciding whether the noticee was to be blacklisted or not. The Apex Court dealt with question of law pertaining to the form and content of show cause notice that was required to be served for deciding whether the noticee was to be blacklisted or not. Highlighting that the act of blacklisting entails one of the severe form of civil consequences, the Supreme Court stated:- “The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/ breaches complained of are not satisfactorily explained. When it comes to black listing, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.” (Para 28) 7.3.1 In the above case, a specific contention was raised that the show cause notice given to the appellant therein did not contain any reference to the proposed action of blacklisting, which contention was not accepted by the High Court, furnishing the following reasons, which were not accepted by the Apex Court:- “It would thus be seen that the contract between the parties specifically empowered the respondents to blacklist the appellant firm. Therefore, when the show cause notice received by the appellant expressly mentioned of such action as may be deemed appropriate by the Competent Authority, the appellant could easily visualize that the action proposed by the Competent Authority could include blacklisting of the appellant firm. Considering the express terms of the contract between the parties, it was not necessary for the respondent to specifically refer to the proposed blacklisting in the show cause notice issued to the appellant. The purpose of show cause notice is primarily to enable the noticee to meet the grounds on which an action is proposed against it and such grounds were fully detailed in the show cause notice issued to the appellant. The purpose of show cause notice is primarily to enable the noticee to meet the grounds on which an action is proposed against it and such grounds were fully detailed in the show cause notice issued to the appellant. In fact, even prior to issue of the show cause notice, the appellant was aware of the issues between the parties through the notice dated 4.8.2012. It would, therefore, be difficult to say that the appellant did not know what case it had to meet while responding to the show-cause notice. In any case, the appellant did respond to the show cause notice without claiming the ambiguity in the said notice and, therefore, it is not open to it to assail the impugned order on the ground that there was no specific reference to the proposed blacklisting of in the said notice.” (Para 12) 7.3.2 The view of the High Court that the purpose of show cause notice was primarily to enable the noticee to meet with the grounds on which the action is proposed against him was only partly approved by the Apex Court. The Apex Court stated that it is equally important to mention as to what are going to be the consequences if the noticee does not satisfactorily meet with the grounds of action. The Court considered as to whether it was sufficient that the power of blacklisting is available under the contract, to put the appellant on his guards and to presume that such action would follow even though not specifically spelt out in the show cause notice. 7.3.3 The Supreme Court stated:- “The Central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of Show Cause Notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to black listing, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.” 7.3.4 The Apex Court categorically propounded the statement of law as under:- “We are of the opinion that in order to fulfil the requirements of principles of natural justice, a show cause notice should meet the following two requirements viz.:- (i) The material/grounds to be stated on which according to the Department necessitates an action; (ii) Particular penalty/action which is proposed to be taken. It is this second requirement which the High Court has failed to omit. We may hasten to add that even if it is not specifically mentioned in the show cause notice but it can be clearly and safely be discerned from the reading thereof, that would be sufficient to meet this requirement.” 8. Reverting to the facts of the present case and the contents of notice given to the petitioner Notary, comparing worthwhile same with the form of notice which was considered by the Supreme Court to lay down the aforesaid proposition of law in Gorkha Security Services (supra), in the notice which came up for consideration before the Supreme Court stated in its final part that ”Therefore, you are directed to show cause within 7 days of the receipt of this notice, as to why the action as mentioned above may not be taken against the firm, beside other actions as deemed fit by the competent authority.”. When the show cause notice dated 03rd May, 2014 issued to the petitioner in the present case is looked at, after referring to the complaint of the complainant, it only stated that the complainant's mother Maniben had died on 08th March, 1989, despite that the petitioner notarised the power of attorney of said Maniben on 28th January, 2008 in favour of one Ramdevbhai, in which the photograph and thumb impression were not of Maniben. The petitioner was called upon to submit his explanation with supporting documents. The petitioner was called upon to submit his explanation with supporting documents. The format and content of said notice could hardly be said to be satisfying the requirements of a legally perceived proper show cause notice. 9. Therefore in the instant notice not only that the charge was not specified in terms of requirement of sub-rule 4(a) of Rule 13 of the Rules, there was not a whisper about the proposed action which may follow at the end of the intended action. 9.1 Therefore such notice which was the only notice given to the petitioner in the course of the entire inquiry, did not refer to proposed penal action, much less giving opportunity to the petitioner in that regard. The penal action which ultimately entail at the end of the inquiry, of cancellation of licence of the petitioner to act as a Notary was without any opportunity made available to the petitioner to submit an explanation and his defence qua the penalty. The penalty was undoubtedly one which was fraught with extreme civil consequences. It was a stigmatic action. 10. As the natural justice is not an unruly horse, it is also not a dumb ship. They are not the principles to be caged iron-cast. When any action by the authority brings out a civil consequence for the addressee of the action, and the civil consequences necessarily operates to the prejudice of such person, compliance of natural justice is perceived to be of having a brooding omni presence. It is this cardinal principle which answers the question whether a Notary facing a penal action by the appropriate government pursuant to inquiry, would be entitled to have an opportunity to defend on the proposed penalty, therefore a notice in that regard. 10.1 There are additional and outweighing reasons to support that a notice as to penalty becomes necessary as a part of natural justice, available from the scheme of Rule 13 and the total mechanism envisaged thereunder for inquiry and penal action against the Notary. The authority conducting inquiry against Notary and the authority who would pass the order of penalty are different; it is the competent authority who performs the role of inquiring into the allegations of misconduct against Notary and submit report to the appropriate government. The authority conducting inquiry against Notary and the authority who would pass the order of penalty are different; it is the competent authority who performs the role of inquiring into the allegations of misconduct against Notary and submit report to the appropriate government. The Rules does not provide for giving inquiry report of the competent authority in which a Notary may have been adjudicated to be guilty for the charge of misconduct. Such report and its findings would form the basis of the proposed penalty which will be imposed by the appropriate government. The function of imposition of penalty is that of appropriate government. It is a separate exercise by the appropriate government after forming an opinion about the penalty to be imposed. Furthermore, clauses of sub-rule (12) of Rule 13 mentions different kind of penalties, out of which the appropriate government would chose one to be imposed. In this process of imposing penalty by the appropriate government, the application of mind by considering the report of the inquiry given by the competent authority, the formation of opinion as to the appropriate penalty and the aspects of nature and gravity of misconduct alleged and proved against the Notary are the non-dispensable aspects. 10.2 Having regard to the above, a delinquent Notary has to be given opportunity to defend on the proposed penalty. The Notary could legitimately claim a right to defence by pointing out the mitigating circumstances, and the attendant aspects and other relevant considerations to make them weigh with the appropriate government in considering the imposition and/or selection of one of the penalties contemplated. 10.3 In the aforesaid view it is held that even as the Rule 13 of the Notaries Rules, 1956, is silent for giving a notice to the Notary qua the proposed penalty, such requirement has to be read into as part of observance of natural justice without which, the Notary facing action is bound to suffer prejudice. Therefore a notice in respect of the proposed penalty shall have to be treated as an in-built requirement in the scheme of Rule 13 for the purpose of conducting inquiry against Notary in respect of professional or other misconduct leading to passing of penal order against him. 11. For the foregoing discussion, the impugned order is unsustainable in law at least on two aforesaid grounds. 11. For the foregoing discussion, the impugned order is unsustainable in law at least on two aforesaid grounds. Firstly that the penalty of permanent debarment imposed on the petitioner from practicing as a Notary was a penalty impermissible in law to be imposed. The law laid down by the Allahabad High Court in Kashi Prasad Saksena (supra) is a good law and would apply to render the order illegal on that score. Secondly, the impugned order against the petitioner stood vitiated for want of notice to the petitioner as to the proposed penalty thereby depriving the petitioner to defend and make representation on the said aspect resulting into a prejudice in law to him. The impugned order is set aside on the aforesaid considerations. 12. As the impugned order has been set aside on the pure legal grounds as above, it was not necessary to go into the various other submissions raised by learned advocate for the petitioner as to whether the conduct amounted to “professional misconduct” or “misconduct”, as well as other attendant aspects in the submissions on behalf of the petitioner noted in paragraphs 6.4 and 6.5 and elsewhere hereinabove. These aspects are left open for consideration by the respondent authorities. 13. Apropos what is observed in paragraph 12 above, it is kept open to the appropriate government to take out proceedings against the petitioner afresh if the appropriate government is of the view that on facts a case exists for proceeding against the petitioner. However such fresh proceedings as may be decided to be initiated by the appropriate government, the same can only be done by adhering to what is observed and held in the present judgment. 14. Petition is allowed. Rule is made absolute in the aforesaid terms with no order as to costs. Petition allowed.