M/S Sunrise Computers And Management Consultancy Private Limited vs State Of Gujarat

J.B.Pardiwala, J

1 By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:

“(a) quash and set aside the impugned show cause notice dated 20.01.2021 issued by Respondent No.3 to the petitioner;

(b) pending adjudication and final disposal of the present petition, stay the implementation, execution and operation of impugned show cause notice

dated 20.01.2021 issued by Respondent No.3;

(c) pending adjudication and final disposal of the present petition, restrain the respondents from taking any coercive action against the petitioner.

(d) award costs of the petition and orders thereon; and

(e) grant such further and other reliefs, as this Hon’ble Court may deem fit and proper in the nature and circumstances of the case.â€​

2 A Coordinate Bench of this Court passed the following order dated 20th February 2021:

“Heard Mr. Mihir Thakore, learned Senior Advocate assisted by Ms.Natasha Sutaria, learned advocate for the petitioner. Ms. Sutaria, learned

advocate for the petitioner shall give advance copy of the petition to learned AGP. Present petition is directed against the show cause notice dated

20.01.2021 issued by the respondent authority. Mr. Thakore, learned Senior Advocate states that reply has already been filed by the petitioner to the

show cause notice. Mr. Thakore has taken to this Court to various contentions including contention that the show cause notice is predetermined action

on the part of the concerned respondent. As it is show cause notice, it is expected that before taking any action opportunity to file proper reply

including additional reply, if any and hearing shall have to be given by the respondent authority. In such circumstances, matter is adjourned to

08.03.2021. Liberty to the petitioner to mention the matter for preponing the hearing of the matter, if necessary.â€​

3 We have heard Ms. Natasha Sutaria, the learned counsel appearing for the writ applicant, Mr. Rishi Malik, the learned counsel appearing for the

respondent No.3 and Mr. Adityasinh Jadeja, the learned A.G.P. appearing for the respondents Nos.1, 2 and 4 respectively.

4 The subject matter of challenge in the present writ application is to the legality and validity of the show cause notice dated 20th January 2021 issued

by the respondent No.3 herein calling upon the writ applicant to show cause on the following three issues:

“1. Why GIL should not invoke your EMD submitted, for the issue related to Director, Social defense under clause no. F(Penalty)-No.7, Clause H.

Termination, of the order dated 23/10/2019, issued to you, for the Empanelment of Agencies for providing “IT Technical Manpower & Data entry

Operatorâ€​ - [Tender No.P&A 2019-20/01] for various Govt. Department/Offices/Boards/Corporations etc.

Why GIL should not terminate your contract as per the Clause H. Termination, mentioned in the order dated 23/10/2019

Why GIL should not initiate the process of blacklisting your company.â€​

5 When this writ application was heard the last on 3rd August 2021, we brought to the notice of Ms. Sutaria, the learned counsel that ordinarily, the

High Court would not interfere at the stage of show cause unless the show cause notice could be said to be per se without jurisdiction. In other words,

the authority, who has issued the show cause notice, has no power or jurisdiction to issue. The case put up by Ms. Sutaria, the learned counsel

appearing for the writ applicant is that although the impugned show cause notice may not be termed as one without jurisdiction, yet it could be said that

the same has been issued with a pre-determined mind. In other words, the learned counsel would submit that from the tenor of the show cause notice,

it could be said that the same has been issued with preconceived notion.

6 This writ application has been opposed by Mr. Rishi Malik, the learned counsel appearing for the respondent No.3. Mr. Malik pointed out that the

writ applicant has already filed a detailed reply to the impugned show cause notice and such reply will be looked into in accordance with law and an

appropriate decision shall be taken and communicated to the writ applicant.

7 We are of the view that since the challenge in the present writ application is to a show cause notice, we should not entertain the same. As the writ

applicant has already filed its reply and if it intends to file a further reply, then it may do so within one week from today and the respondent No.3 shall

take an appropriate decision in accordance with law. We also clarify that before taking any final decision, the authority concerned shall give an

opportunity of personal hearing to the writ applicant. Ultimately, if any adverse order is passed against the writ applicant, then it shall be open for the

writ applicant to come back to this High Court challenging such final order.

8 We clarify that we have otherwise not expressed any opinion on the merits of the case. It is now for the respondent No.3 to take an appropriate

decision in accordance with law after giving an opportunity of hearing to the writ applicant.

9 With the aforesaid, this writ application stands disposed of.