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2018 DIGILAW 546 (JK)

Krishan Kumar v. JAKFED

2018-07-21

SANJAY KUMAR GUPTA, TASHI RABSTAN

body2018
JUDGMENT : TASHI RABSTAN, J. 1. This Letters Patent Appeal is directed against order dated 14.05.2015 passed by the learned writ Court in SWP No. 1717/2015 titled “Krishan Kumar V. JAKEFD and others”, whereby the writ Court has passed the following order:- “In any case, the petition at present is premature, as it is only against a show cause notice. Let the enquiry proceedings be completed. The petitioner shall have the liberty to challenge the final order, in case he feels aggrieved. Disposed of accordingly along with connected MP.” 2. Learned Writ Court Order dated 14.05.2018 has been challenged, inter alia, on the grounds that judgment dated 25.02.2015 passed by the learned writ Court in OWP No.40/2004, has attained the finality in law as neither writ petitioner nor the respondents “side filed any LPA against the same, that order impugned dated 11.05.2015, which was subject matter of challenge before the writ Court, was issued by respondent No.2 after waiting for more than seventy five days, which is not understandable as to why they kept on waiting for so long when judgment dated 25.02.2015 was time constrained; that orders impugned, subject matter of challenge before the learned writ Court, passed by respondent No.2 are arbitrary, capricious, with total non-application of mind, for extraneous reasons and with mala fide intentions, to mentally harass and frustrate the writ petitioner-appellant; that ordering inquiry after lapse of the prescribed period is only in violation of the court order and it also clearly divulges the pre-determined mindset of respondents to somehow terminate his services instead of implementing the orders issued by the Registrar Cooperative Societies dated 09.02.2002 and order issued by the J&K Special Tribunal dated 08.09.2003; that learned writ court has erroneously ignored an important aspect of the matter inasmuch as in terms of the mandate of order dated 25.02.2015, it was obligatory upon respondents to have implemented the order of the appellate authority dated 09.02.2002 upheld by revisional authority vide its order dated 08.09.2003 if they did not choose to initiate and complete fresh enquiry against the writ petitioner-appellant within a period of 90 days from the date of passing of the order by this Court; that learned Writ Court has erroneously dismissed the writ petition without according any consideration to the averments and grounds taken by the writ petitioner-appellant. 3. 3. The facts in brief as projected in the writ petition are that writ petitioner-appellant, employee of JAKFED, was appointed by respondent No.2 on consolidated basis in the year 1988, however, after rendering more than seven years of service, he was ought to have been treated as regular employee of the said organization. It is contended that pursuant to Transfer Order No.Adm/JAK/92-93/939-44 dated 04.05.1993, writ petitioner-appellant was to join his new place of posting at Udhampur, but due to his ill health he could not do so. In this regard, after submission of relevant medical record, suspension order was revoked and writ petitioner-appellant was re-instated vide order dated 19.08.1993. Writ petitioner-appellant received a show-cause notice dated 18.10.1994 but was allowed to resume his duties. He received his termination order dated 20.03.1993 on the pretext of absence from duty w.e.f. 17.03.1995 to 20.03.1995 whereas the writ petitioner-appellant claims that he was never absent from duty. Registrar, Cooperative Societies, J&K, Jammu, vide order dated 09.02.2002 set-aside the termination order of writ petitioner-appellant. Respondents aggrieved of order dated 09.02.2002 filed a revision petition before the J&K Special Tribunal, which was vide order dated 08.09.2003 dismissed. J&K Special Tribunal’s order was challenged before this Court in writ petition (OWP No.40/2004). This Court vide order dated 25.02.2015 did not interfere with the order of the learned Tribunal. However, this Court directed that if writ petitioners in the writ petition choose to initiate inquiry against respondent No.3, the same shall be undertaken and completed within a period of three months from the date of passing of order. Notwithstanding the passing of order dated 25.02.2015 by this Court and elapsing of period of three months i.e. on 25.05.2015, the respondents instead of re-instating the writ petitioner, have issued show cause notice vide No.40/2004/493-98 dated 11.05.2015 whereby he has been asked to explain his position within a period of two days failing which administrative action permissible under law shall follow. The reply submitted by writ petitioner was rejected by respondent No.1 vide order dated 27.05.2015 and Sr. Manager Accounts was appointed as Enquiry Officer to hold inquiry into the matter against the writ petitioner-appellant. 4. Learned counsel for the respondents has contended that in terms of order passed in OWP No.40/2014 fresh inquiry was undertaken. The reply submitted by writ petitioner was rejected by respondent No.1 vide order dated 27.05.2015 and Sr. Manager Accounts was appointed as Enquiry Officer to hold inquiry into the matter against the writ petitioner-appellant. 4. Learned counsel for the respondents has contended that in terms of order passed in OWP No.40/2014 fresh inquiry was undertaken. It is also contended that against the show-cause notice dated 11.05.2015, writ petitioner-appellant filed reply and respondent-JAKFED, while considering the request of the petitioner extended the time for filing reply. Writ petitioner-appellant accordingly submitted his reply on 24.05.2015, however, JAKFED rejected the same and appointed Mr. Sanjiv Sachdev, Sr. Manager, Accounts, JAKFED, as Enquiry Officer. It is further contended that show cause notice as well as rejection of reply filed by writ petitioner and appointment of Inquiry Officer was well within stipulated period provided by this Court vide Order dated 25.02.2015. Hence, there is no violation of the Court order dated 25.02.2015. It is further contended that fresh inquiry could have been completed within the stipulated time, had the writ petitioner-appellant not adopted delaying tactics by seeking further time for replying the show cause notice. It is also contended that inquiry Officer further issued notice to the writ petitioner-appellant and at the same time, JAKFED was in the process of filing of application seeking extension of time for completion of inquiry but during the interregnum, writ petitioner-appellant got the orders dated 11.05.2015 and 27.05.2015 by filing SWP No.1717/2015. 5. Heard learned counsel for the parties and perused the record of learned Writ Court as also the appeal. 6. In the earlier round of litigation, writ petitioner-appellant challenged the termination order on the ground that no show cause notice had been served upon him before issuance of the order of termination. The writ petition bearing OWP No. 40/2004 was allowed vide judgment and order dated 25.02.2015, with a liberty granted to the official respondents to hold a fresh inquiry within a period of three months from the date when said order was passed. It is contention of the learned counsel for the writ petitioner-appellant that official respondents were bound to initiate and complete the enquiry proceedings within three months, which they failed to do so and therefore, any order passed beyond the period of three months was non nest in the eye of law. 7. It is contention of the learned counsel for the writ petitioner-appellant that official respondents were bound to initiate and complete the enquiry proceedings within three months, which they failed to do so and therefore, any order passed beyond the period of three months was non nest in the eye of law. 7. In response to the said writ petition, official respondents have taken a stand that enquiry was initiated well in time but it was due to the delaying tactics adopted by the writ petitioner-appellant that the inquiry could not be concluded within three months. It is also contended that inquiry Officer further issued notice to the writ petitioner-appellant and at the same time, JAKFED was in the process of filing of application seeking extension of time for completion of inquiry but during the interregnum, writ petitioner-appellant got the orders dated 11.05.2015 and 27.05.2015, halted by filing SWP No.1717/2015. 8. Be that as it may, it is a trite and settled position of law that ordinarily writ petition challenging the show cause notice is not maintainable except if notice is issued with pre-meditation. Reference may be made to the judgment of the Supreme Court reported in AIR 2007 SC 906 , the Supreme Court in paragraph 13 of the judgment, has held as under:- “13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467 , Ulagappa and others vs. Divisional Commissioner, Mysore and others 2001(10) SCC 639 , State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.” 9. View thus, we do not find any infirmity and illegality or arbitrariness in the judgment and order passed by learned Single Judge. Accordingly, the present Letters Patent Appeal is dismissed being devoid of any merit. Appellant, if so advised, may submit the objections against the show cause notice and, if any, adverse order is passed, he shall have his remedy against the same in accordance with law.