Deepak Kumar vs State Of Himachal Pradesh And Others

Tarlok Singh Chauhan, J

The instant petition has been filed for grant of the following substantive reliefs:

“a. That the impugned show cause notice dated 16.12.2018 i.e. Annexure A-7 being illegal and bad in law be quashed and set aside.

b. That the respondents may be directed to permit the applicant to continue as constable being recruited under SC Home Guard category.”

The moot question is whether a writ petition would be maintainable against the mere issuance of Show Cause Notice.

The issue in question is no longer res integra and has in fact been repeatedly answered by the Hon'ble Supreme Court and in turn those judgments have been followed by this Court.

It is more than settled that ordinarily a writ petition does not lie against the charge-sheet or show cause notice for the reason that it does not give rise to any cause of action. 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 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.

Reference in this regard can conveniently be made to the following judgments of the Hon'ble Supreme Court:

1.State of Uttar Pradesh v. Shri Brahm Datt Sharma & Anr. AIR 1987 SC 943.

Executive Engineer Bihar State Housing Board vs. Ramesh Kumar Singh and others 1996 (1) SCC 327

3.Ulagappa vs. Divisional Commissioner, Mysore, AIR 2000 SC 3603(1)

4.Special Director and another vs. Mohd. Ghulam Ghouse and another , AIR 2004 SC 1467

5.Union of India & Anr. vs. Kunisetty Satyanarayana AIR 2007 SC 906

Secretary, Ministry of Defence and Anr. vs. Prabhash Chandra Mirdha (2012) 11 SC 565

7.Chairman, Life Insurance Corporation of India and others vs. A. Masilamani (2013) 6 SCC 530.

The instant issue has otherwise been considered by one of us (Justice Tarlok Singh Chauhan, J.) in a Division Bench, in CWPOA No. 4264 of 2020, titled as Lajender Singh Pathania vs. State of H.P. & Ors. Decided on 14.07.2020, wherein the Court observed as under:

“1. It is really shocking to see the manner in which the instant petition has been filed and how thereafter the Tribunal proceeded to stay the impugned show cause notice.

It is by now settled that ordinarily a writ petition or even an original application filed against mere show cause notice would not be maintainable.

Reference in this regard can conveniently be made to the judgment of Hon’ble Supreme Court in Special Director and another Versus Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440, wherein in paragraphs 5 and 6, it was held as under:-

“5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.

In the instant case, the High Court has not indicated any reason while giving interim protection. Though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection. This, admittedly, has not been done in the case at hand.”

Earlier to that, the Hon’ble Supreme Court in Union of India and others Versus Jain Shudh Vanaspati Ltd. and another, (1996) 10 SCC 520, observed as under:-

“10. It is relevant to bear in mind that the issuance of the show-cause notice under Section 124 contemplates that the respondents’ response shall be considered and only thereafter will the matter be decided. The respondents shall therefore have full opportunity to satisfy the authorities that there was no importation of banned goods which makes them liable to confiscation.

We are also of the view that the High Court in an event, ought not to have allowed the writ petition without reserving liberty to the appellants to proceed against the respondents under Section 130 which, as the High Court looked at it, was the appropriate course of action.”

Discussion on the subject would be incomplete in case reference is not made to the decision of the Hon’ble Supreme Court in Union of India and another Versus Kunisetty Satyanarayana, (2006) 12 SCC 28, wherein it was observed 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. The relevant observations as contained in paras 14 to 16 are reproduced herein-below:-

“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 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. 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.

Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or chargesheet.

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.”

The petitioner has every right to file his reply to the show cause notice, which in turn, is required to be considered by the employer in accordance with law. The Tribunal or for that matter even the Court cannot substitute the views of the employer and evaluate the relative merits of the case.”

The principles deducible from the aforesaid decision:

i) Ordinarily writ does not lie against show cause notice/charge memo;

ii) entertaining writ petition against show cause notice/charge memo is dehors the limits of judicial review/exceeds the power of judicial review at the threshold;

iii) issuance of show cause notice/charge memo, does not adversely affect/infringe the rights of the employee; does not amount to an adverse order;

iv) normally a charge sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous as determination of correctness or truth of the charge is the function of the disciplinary authority. It would be premature to deal with the issues; in only from rare and exceptional cases,

v) if it is found to be wholly without jurisdiction or for some other reason, if it is wholly illegal, court can exercise of judicial review at the stage of show cause notice/charge memo;

vi) discretion under article 226 should not ordinarily be exercised to quash charge sheet/show cause notice.

Adverting to the facts of the present petition, it is noticed that the case of the petitioner does not fall in any of the exceptions as observed by the Hon'ble Supreme Court in its various pronouncements some of which have already been noticed above.

Accordingly, we find the instant petition to be not maintainable and the same is accordingly dismissed, leaving the parties to bear their own costs.

Pending application, if any, also stands disposed of.