R. Venkata Siva v. Cotton Corporation of India Ltd.
2023-02-01
TARLADA RAJASEKHAR RAO
body2023
DigiLaw.ai
ORDER : 1. This Writ Petition is filed under Article 226 of the Constitution of India for the following relief:- "To issue a Writ of Mandamus or any other appropriate Writ, Order or Orders, Direction or Directions to declare the proceedings of the 2nd respondent in show cause notice No.CCI/HRD/Appt-JCP/2016, dated 13.12.2016 proposing to terminate the service of the petitioner and recover the entire salary paid to him as illegal, arbitrary and violative of Article 16 of the Constitution of India and to issue a consequential direction to the respondents to continue the petitioner in service with all benefits without resorting to any action basing on the alleged Vigilance report regarding the past experience of the petitioner and pass such other order." 2. The facts of the case are like this: The 1st respondent has issued a notification, inviting applications for recruitment to the post of Junior Cotton Purchaser (Marketing), the petitioner herein, having all the requisite qualifications, has applied for the post of Junior Cotton Purchaser, passed the written examination as well as interview and he was selected and appointed as Junior Cotton Purchaser and as per the appointment order that one should be in probation for a period of one year from the date of his appointment/joining, which may be extended at the discretion of the Appointing Authority at any time. The General Terms and Conditions of the advertisement are that one should furnish proof of experience certificate to secure employment in pursuance of advertisement and the appointment is subject to verification of genuineness of experience certificate. On preliminary enquiry, it was found that the petitioner’s experience certificate is in-genuine, therefore the Cotton Corporation has issued show cause notice, calling for explanation and the said show cause notice is impugned in the present Writ Petition, on the ground that the impugned show cause notice was issued after conducting enquiry and before conducting enquiry, he has not issued any show cause notice or has not followed due procedure of law. 3. The petitioner has relied on the judgment of the Hon’ble Apex Court in the case of State of Odisha and another v. Satish Kumar Ishwardas Gajbhiye and others, 2021 SCC Online SC 1238, on the aspect of legality of the preliminary enquiry, which amounts to pre-judge the issues by the authorities.
3. The petitioner has relied on the judgment of the Hon’ble Apex Court in the case of State of Odisha and another v. Satish Kumar Ishwardas Gajbhiye and others, 2021 SCC Online SC 1238, on the aspect of legality of the preliminary enquiry, which amounts to pre-judge the issues by the authorities. He also relied on another judgment of this Court in the case of Boddu Rathaiah v. State of Andhra Pradesh, rep. by its Principal, 2022 SCC Online AP 2632, for the proposition that the termination of service would amount to stigmatic termination. 4. In similar and identical case, the Cotton Corporation of India issued show cause notices, calling upon the incumbents to show cause as to why their services should not be terminated, while alleging that they got into employment by adopting fraudulent method has secured employment by furnishing fake proof of experience certificate and on receiving explanation from the incumbents, the Cotton Corporation of India issued orders, terminating the services. 5. Assailing the validity and legal sustainability of the said orders of termination, they have invoked the extraordinary jurisdiction of the Court under Article 226 of the Constitution of India in W.P.No.27339 of 2016. A learned Single Judge of the composite High Court has allowed the Writ Petitions by setting aside the orders of termination, on the grounds that the orders of termination attach stigma on the writ petitioners, by any stretch of imagination, the said orders cannot be construed nor can be regarded as termination simpliciter and directed to hold a regular enquiry as per the Conduct, Discipline and Appeal Rules of Cotton Corporation of India Limited, observing that it is obligatory and incumbent on the part of the authorities to hold regular enquiry before inflicting the punishment. 6. The said orders passed by the learned Single Judge in W.P.No.27339 of 2016 are under challenge in Writ Appeal No.912 of 2017 preferred under Clause 15 of the Letters Patent. It is the contention of writ appellant-corporation that in the absence of declaration of the probation of the writ petitioners, the question of holding regular enquiry does not arise and the finding of the learned Single Judge contra cannot sustain and is liable to be set aside.
It is the contention of writ appellant-corporation that in the absence of declaration of the probation of the writ petitioners, the question of holding regular enquiry does not arise and the finding of the learned Single Judge contra cannot sustain and is liable to be set aside. It is also the contention of the learned counsel for the writ appellant that in view of the fraud and misrepresentation resorted to by the writ petitioners even prior to entering into the service and having regard to Clause 14 of the recruitment notification, there is no requirement of holding regular enquiry, since the allegations pertain to the period anterior to the entry into service, regular enquiry need not be conducted. 7. After enunciation of law and facts, the Writ Appeal came to be dismissed with following observation: “A perusal of the orders passed by the learned Single Judge clearly and clinchingly reveal that the learned Single Judge after elaborately and meticulously scanning the entire material available on record and while referring to judgments cited on behalf of the writ petitioners and by recording valid, cogent and convincing reasons, allowed the Writ Petitions with a direction to the writ appellants to conduct regular enquiry and pass appropriate orders afresh. Therefore, the facts and circumstances of the case and the position of law referred to supra drives this Court to arrive at an irresistible conclusion that the action impugned in the writ petitions is not only violative of Articles 14 and 21 of the Constitution of India but also violative of the principles of natural justice and this Court does not find any merit in the Writ Appeals. The service conditions of the employees of the Cotton Corporation of India are governed by the Cotton Corporation of India Limited, Conduct, Discipline and Appeal Rules, 1975. Rule 2 of the said Rules stipulates that rules shall apply to all employees except those in casual employment or paid from contingencies. Rule 23 of the said Rules deals with the penalties and Clause (vi) of Rule 23 of the said Rules relates to termination of service. Rule 25 of the said Rules deals with the procedure for imposing major penalty, wherein an elaborate procedure is prescribed. In the instant case, admittedly, without being proceeded by any regular enquiry, the services of the writ petitioners herein were dispensed with by the appellants herein.” 8.
Rule 25 of the said Rules deals with the procedure for imposing major penalty, wherein an elaborate procedure is prescribed. In the instant case, admittedly, without being proceeded by any regular enquiry, the services of the writ petitioners herein were dispensed with by the appellants herein.” 8. Aggrieved by the order in W.A.No 912 of 2017, the Cotton Corporation has assailed the order before the Hon’ble Apex Court, vide Civil Appeal No.6985-6986 of 2021. The Hon’ble Supreme Court, after hearing the matter, having giving goby to the observation of writ order and writ appeal order, has allowed the same by observing as follows: “We, therefore, allow this appeal, set aside the orders passed by the single judge and the division bench and dismiss Writ Petition No.27339 of 2016. It is however made clear that the appellant shall not be entitled to recover any amount paid by way of salary or emoluments to the respondent while he was in the service of the appellant. With these observations, the appeal is allowed without any order as to costs.” 9. As observed in T Ranjeeth Singh S/O Heeralal Admn vs State Of Telangana, 2017 (3) ALD 476 , 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 v. Ramesh Kumar Singh, (1996) 1 SCC 327 , Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 , Ulagappa v. Divisional Commr., Mysore, (2001) 10 SCC 639 , State of U.P. v. Brahm Datt Sharma, (1987) 2 SCC 179 , etc. 10. 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. 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 petition lies when some right of any party is infringed.
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 petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. 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. 11. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 12. No doubt, in some very rare and exceptional cases, the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. 13. In the judgment relied on by the petitioner herein in Satish Kumar Ishwardas Gajbhiye’s case (supra), it is held that preliminary enquiry reflected in the memorandum of charges, hence, the Hon’ble Apex Court held that the nature of enquiry in such a situation would be in the nature of information gathering exercise, on the basis of which the authorities would decide whether to proceed in the matter or not. In the said case, the preliminary enquiry resulted in the issue of articles of charges, and the phrasing of which clearly revealed formation of opinion of the authorities in finding of guilt. In the present case, no such charge was framed basing upon the preliminary enquiry. Hence, the said judgment is not applicable to the facts of the present case. The other judgment in Boddu Rathaiah’s case (supra) is also not applicable to the facts of the present case and that the termination without conducting enquiry would amount to stigmatic. In the present case, no termination order was passed and only a show cause notice was issued. Hence, the above said judgments are not applicable to the facts of the present case. 14.
In the present case, no termination order was passed and only a show cause notice was issued. Hence, the above said judgments are not applicable to the facts of the present case. 14. Hence for above said discussion, without going into the merits of the case, this Writ Petition is disposed of directing/ permitting the petitioner to submit explanation to the impugned show-cause notice within a period of three weeks from the date of receipt of a copy of this order and on submitting such explanation, the respondent-Cotton Corporation is directed to examine and pass appropriate orders in accordance with law, uninfluenced by any of the observation made in this order. There shall be no order as to costs of the Writ Petition. As a sequel, interlocutory applications pending, if any, in this Writ Petition shall stand closed.