Research › Search › Judgment

Rajasthan High Court · body

2023 DIGILAW 698 (RAJ)

Kamal Pathak v. State of Rajasthan

2023-03-20

GANESH RAM MEENA

body2023
JUDGMENT 1. The instant writ petition has been filed by the petitioner against the show-cause notice dated 02.12.2020 issued under Section 39 of the Rajasthan Municipalities Act, 2009 (In short 'the Act of 2009') whereby the petitioner has been asked to submit his explanation in regard to allegations mentioned in the notice. This Court vide order dated 16.12.2020, stayed the operation of notice dated 02.12.2020. 2. The respondent-State preferred a D.B. Civil Special Appeal (Writ) No.778/2021, challenging the interim order dated 16.12.2020, passed by this Court. The said appeal was decided by the Division Bench vide order dated 22.10.2021, with the request to the learned Single Judge to decide the writ petition finally within two weeks from the date of decision. More than one and a half year has passed after the decision of the Division Bench. Today, the petitioner, present in person, seeks adjournment on the ground that his counsel is on strike. The ground mentioned by the petitioner for seeking adjournment is not acceptable, in view of the law laid down by the Hon'ble Apex Court in case of "Ex-Capt. Harish Uppal versus Union of India and Anr. (Writ Petition (Civil) No. 132/1998) decided on 17.12.2002. 3. The petitioner submits that the show-cause notice dated 02.12.2020 under Section 39 of the Act of 2009 has been issued to him on false and flimsy ground. In the petition, he has also stated that the explanation to the allegations made against him in the notice under challenge. 4. Per contra, learned Additional Advocate General submits that the writ petition against show-cause notice is not maintainable. The petitioner has assailed this show-cause notice under Section 39 of the Act of 2009, whereby he has been asked to submit explanation. In the said notice, the said allegation of the petitioner has also been specified. In the reply to the writ petition, the respondent submits that the petitioner himself has submitted the application with request to provide proper opportunity of hearing and inspection of the record, so that he can defend his case effectively. The said application was submitted by him on 10.12.2020. In response to the application of the petitioner, the Office of Director of Local Bodies vide letter dated 15.12.2020, invited the petitioner on 18.12.2020 for seeking the required documents and personal hearing. 5. The Hon'ble Apex Court in case of "Union of India and Anr. Vs. The said application was submitted by him on 10.12.2020. In response to the application of the petitioner, the Office of Director of Local Bodies vide letter dated 15.12.2020, invited the petitioner on 18.12.2020 for seeking the required documents and personal hearing. 5. The Hon'ble Apex Court in case of "Union of India and Anr. Vs. Kunisetty Satyanarayana" AIR 2007 Supreme Court 906 has clearly held that mare show-cause notice and chargesheet does not infringe the writ petition of anyone and therefore, any writ petition against the show-cause notice and charge-sheet is premature. In case of challenge to show-cause notice and charge-sheet, can only be entertained in a case, the same is found to be wholly with jurisdiction. The relevant part of the said judgement in case of Union of India and Anr. Vs. Kunisetty Satyanarayana (Supra) is quoted 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 showcause 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. 14. 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 chargesheet 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 16. 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 16. 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." 6. The petitioner has also submitted his explanation in the writ petition in regard to the allegation levelled against him in the show-cause notice. The petitioner has ample opportunities to submit the explanation before the competent authority in response to the show-cause notice issued to him. 7. In view of the discussion made above and the law laid down by the Hon'ble Apex Court, no case for interference is made out. 8. Accordingly, the instant writ petition is dismissed. All the pending applications also stand dismissed.