Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6347 of 2013 ====================================================== Shiv Kumar Singh, S/O Late Radha Krishna Singh, resident of village- Harpur Belwa, P.S- Mahua, District- Vaishali. .... .... Petitioner Versus 1. The State of Bihar through the Principal Secretary, Home (Prison Department Bihar, Patna. 2. The Joint Secretary-Cum- Director Administration, Bihar, Patna. 3. The Inspector General of Prison, Bihar, Patna. 4. The Deputy Inspector General Prison, Bihar, Patna. 5. The Jail Superintendent of Idial Central Jail, Patna, Bihar, Patna. 6. The Director Administration Idial Central Jail. 7. The Superintendent Sub Jail, Hilsa, Nalana. 8. The Jail Superintendent of Sub Jail, Barh, Patna. 9. The Superintendent of Divisional Jail, Jehanabad. 10. The Superintendent Sub Jail Daudnagar. .... .... Respondents ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 16-04-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- “1(A) (B) i) ii) iii)
Facts
A writ in the nature of Certiorari or any other appropriate writ, order/s direction quashing the in Memo no. 4912 dated Notice contained 1.11.2012 issued under the signature of Joint Secretary-cum-Director, Administration asking the petitioner to file his show cause as to why major punishment may not awarded to him differing petitioner. A writ in the nature of Mandamus or any other appropriate writ, order/s direction commanding the Respondents for the following:- To treat the notice contained in Annexure 10 to the petition is without jurisdiction. To hold that the notice contained in Anenxure-“10” is non-est in the eye of law. To hold that the notice contained in Annexure-“10” is contrary to the order of the Hon’ble High Court passed in CWJC No. 4704/2012.” 3. Learned counsel for the petitioner in this writ application has submitted that the impugned show-cause notice is Patna High Court CWJC No.6347 of 2013 (2) dt.16-04-2013 2/8 in complete defiance of the direction given by this Court in the order dated 5.4.2012 in CWJC No. 4704 of 2012. Explaining this aspect, he has submitted that when this Court has held that the order directing fresh enquiry dated 31.7.2009 against the petitioner was itself unsustainable, the respondents had no liberty to proceed against the petitioner. In this regard, reliance has also been placed
Legal Reasoning
by him on a judgment of this Court in the case of Suresh Prasad Vs. State of Bihar & Ors. reported in {2008(3)PLJR 531}. 4. Learned counsel for the State, on the other hand, has submitted that this writ application against the show-cause notice is not maintainable. He has further submitted that when this Court on an earlier occasion had quashed the impugned order of punishment and the appellate order along with the second enquiry report the respondents definitely had a right to consider the first enquiry report and also differ with it as was held in the case of Punjab National Bank & Ors. Vs. Kunj Behari Misra reported in {(1998) 7 SCC 84}. He has, accordingly, submitted that such show-cause notice in fact cannot be interfered as no final order has been passed against the petitioner as yet. 5. In the considered opinion of this Court, the submission of the learned counsel for the State must be accepted. The petitioner was subjected to a departmental proceeding and the Patna High Court CWJC No.6347 of 2013 (2) dt.16-04-2013 3/8 enquiry officer in his enquiry report dated 26.2.2005 had given the following findings:- ^^7&vuq'kalk%& fnukad 16-1-05 dks LFky fujh{k.k esa eSaus ik;k fd ;g canh iyk;u flQZ ykijokgh ij ugha] fdUrq dkjk Hkou dh =qfV rFkk dkjk fu;e dh =qfV ds dkj.k gqvk gSA tSls dkjk ifjlj dh pgkjnhokjh ugha gksuk] eqykdkrh f[kM+dh ugha gksuk] dkjk xksnke dk ckgj gksuk] eqykdkrh dk lkeku nsus gsrq xsV esa mij 8** ;k 10** dk Nsn ugha gksuk] dkjk dh ryklh ugha djuk] eqykdkrh dk iqtkZ ugha cukuk] mPp d{kiky ds fcuk tkudkjh ds fdlh canh dks xsV esa cqykuk] fcuk l{ke inkf/kdkjh ds Lohd`fr ds canh dks dkjk ls ckgj Hkstuk] eqykdkrh ls iwN rkN rFkk ryklh ugha djuk] eqykdkrh iath dk la/kkj.k fu;fer ugha djuk vkfn =qfV ik;k x;k gSA mijksDr tkWp iM+rky] vkjksi i=] lk{;] O;ku] dkjk dh reke =qfV;ksa ,oa vfHkys[kksa ds voyksdu ls ;g Li"V gksrk gS fd mi dkjk ck<+ esa fcYdqy vfu;fer <ax ls dk;Z fd;k x;k gS] ftldh iwjh ftEesckjh dkjk iz'kklu dh gSA xsV okMZj Jh f'kodqekj flag uEcj&2 us dkjk iz'kklu dh funs'k ;k vkns'k ds vuqlkj gh dk;Z fd;k gSA og vius Lrj ls dksbZ euekuh dk;Z ugha fd;k gSA vr% xsV okMZj Jh f'kodqekj flag dks bl vkjksi ls eqDr djus dh vuq'kalk dh tkrh gS rFkk d{kiky Jh dfiynso izlkn us dkjk gLrd fu;e 172 rFkk 173 dk ?kksj mYya?ku fd;k gS] vr% bl vkjksi ds fy, mUgsa c`gr n.M nus dh vuq'kalk dh tkrh gSA bl canh iyk;u ds ekeys esa tkWp ;g lapkyu inkf/kdkjh] v/kh{kd] vkn'kZ dsUnzh; dkjk osmj] iVuk ds i=kad 5795 fnukad& 16-11-2004 ds }kjk eq>s crk;k x;k gSA KkrO; gks] fd bu nksuksa ds fo:) esa ck<+ Fkkuk dk.M la[;k& 89@2000 U;k;ky; esa yfEcr gSA vr% U;k;ky; ds fu.kZ; dk bUrtkj djuk mfpr izrhr gksrk gSA vr% lwpukFkZ ,oa vko';d dkjZokbZ gsrq izsf"krA* 6. The disciplinary authority on the earlier occasion had taken a decision to hold a fresh enquiry and pursuant thereto, another enquiry report was submitted on 21.1.2010. In fact, on the basis of such enquiry report, an order of punishment was also passed on 7.7.2010 which was made subject matter of the writ application CWJC No. 4704 of 2012. This Court by an order dated 5.4.2012 had held that the order directing fresh enquiry against the petitioner dated 31.7.2009 as also the enquiry report dated 21.1.2010 and the order of punishment based on them dated Patna High Court CWJC No.6347 of 2013 (2) dt.16-04-2013 4/8 7.7.2010 as also the appellate order dated 14.10.2011 were bad and unsustainable. 7. This Court, however, did not put a full stop as with regard to further action which could have barred the government to proceed against the petitioner on the basis of pending memo of charge and first enquiry report. It has to be noted that neither the memo of charge nor the first enquiry report was quashed by this Court. Thus, if the disciplinary authority having before it the memo of charge as also the first enquiry report had issued the impugned show-cause notice on 1.11.2012 by giving the reasons for differing with some of the findings of the enquiry report, that cannot be held to be without jurisdiction specially when such a recourse was itself held to be permissible by this Court in that very order dated 5.4.2012 in C.W.J.C. No. 4704 of 2012, wherein it was held as follows:- . "The order directing fresh enquiry dated 31.7.2009 does not mention any infirmity in the earlier proceeding warranting fresh enquiry. If that were so, the disciplinary authority could easily have differed with the report of exoneration and proceeded on a difference of opinion. The impugned orders dated 31.7.2009, the enquiry report dated 21.1.2010 and the order of punishment dated 7.7.2010 are therefore set aside. The appellate order dated 14.10.2011 automatically collapses." 8. To that extent this Court also does not find any error in the wordings of impugned show cause notice which reads as follows:- Patna High Court CWJC No.6347 of 2013 (2) dt.16-04-2013 5/8 “fcgkj ljdkj dkjk fujh{k.kky; x`g ¼dkjk½ foHkkx Kkikad& dkjk@fu0dks0 ¼[k½&04@09 4912@fnukad 1-11-12 izsf"kr] Jh f'ko dqekj flag] d{kiky midkjk] nkmnuxjA fo"k;%& f}rh; dkj.k i`PNkA fnukad& 18-03-2000 dks midkjk] ck<+ ds eq[; xsV ls vkB cafn;ksa ds iyk;u ds ekeys esa vkids fo:) nqckjk lapkfyr foHkkxh; dk;Zokgh ds vk/kkj ij ikfjr n.M ,oa vihyh; vkns'k dks ekuuh; mPp U;k;ky; }kjk lh0MCyw0ts0lh0 la0& 4704@2012 esa ikfjr vkns'k }kjk fujLr dj fn;k x;k gSA ekuuh; mPp U;k;ky; ds mDr vkns'k dh izfr ds lkFk vkids }kjk lefiZr vH;kosnu ij iz/kku lfpo] x`g foHkkx] fcgkj] iVuk ds vkns'k Kkikad& 3667 fnukad& 16-08-2012 }kjk iwoZ esa ikfjr n.Mkns'k ,oa vihyh; vkns'k dks fujLr dj fn;k x;k gS ,oa vkns'k ikfjr fd;k x;k gS fd dkjk egkfujh{kd] fcgkj bl ekeys esa vkids fo:) v/kh{kd] midkjk] fgylk }kjk lefiZr igyh ckj pyk;h xbZ foHkkxh; dk;Zokgh ds tk¡p izfrosnu ds vk/kkj ij fu;ekuqlkj vkns'k ikfjr djsaxsA 2- v/kh{kd] midkjk] fgylk }kjk lefiZr tk¡p izfrosnu esa vkids fo:) xfBr vkjksi izekf.kr ugha ik;s x;s gSa fdUrq lapkyu inkf/kdkjh ds earC; ls bl vk/kkj ij vlgefr O;Dr dh tkrh gS fd vkius foHkkxh; ifji= dk mYya?ku dj dkjk xsV esa eqykdkrh gsrq vkB cafn;ksa dks ys fy;k] dkjk xsV dk ckgjh rkyk [kqyk jgrs gq, eqydkrh gsrq cafn;ksa dks dkjk xsV esa ys fy;k rFkk canh iyk;u dh fLFkfr esa dksbZ fujks/kkRed dkjZokbZ ugha dh] tks vkids fo:) vkjksiksa dks izekf.kr ekus tkus dk i;kZIr vk/kkj gSA 3- tk¡p izfrosnu esa mYys[k fd;k x;k gS fd ck<+ Fkkuk dk.M la0& 89@2000 U;k;ky; esa yafcr gSA vr% U;k;ky; ds fu.kZ; dk bUrtkj djuk mfpr izrhr gksrk gSA bl laca/k esa bl vk/kkj ij vlgefr O;Dr dh tk ldrh gS fd foHkkxh; dk;Zokgh ,oa U;kf;d dk;Zokgha nksuksa vyx&vyx dkjZokbZ gS rFkk bl vk/kkj ij foHkkxh; dk;Zokgh dks yafcr j[kuk mfpr ugha gSA 4- lapkyu inkf/kdkjh ls izkIr tk¡p izfrosnu dh Nk;k izfr layXu djrs gq, vkils f}rh; dkj.k i`PNk dh tkrh gS fd D;ksa ugha mDr vlgefr ds foUnqvksa ds vkyksd esa vkids fo:) o`gr n.M ikfjr fd;k tk;A 5- vuq'kklfud izkf/kdkj dk funs'k gS fd vki bl f}rh; dkj.k i`PNk dk mÙkj 15 fnuksa ds vUnj lefiZr djsa vU;Fkk le>kk tk,xk fd vkidks bl laca/k esa dqN ugha dguk gS rFkk mlds i'pkr fu;ekuqlkj vkids fo:) foHkkxh; dk;Zokgh dk fuLrkj dj fn;k tk,xkA vuqyXud%& ;FkksDrA g0@& vLi"V la;qDr lfpo&lg&funs'kd ¼iz0½ fcgkj] iVukA” 9. Once this Court would therefore find that the impugned show cause notice is not without jurisdiction, there Patna High Court CWJC No.6347 of 2013 (2) dt.16-04-2013 6/8 would be no reason for it to interfere at this stage, inasmuch as, by a show-cause notice, no right of a party is determined or affected. This aspect of the matter has been considered at length by the Apex Court in the case of Union of India & Anr. v. Kunisetty Satyanarayana reported in {(2006) 12 SCC 28 , wherein it was held as follows: 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 v. Ramesh Kumar Singh, Special Director v. Mohd. Ghulam Ghouse, Ulagappa v. Divisional Commr., Mysore, State of U.P. v. Brahm Datt Sharma, etc.
Decision
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 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. that 15. 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. 10. The reliance placed on the judgment of this Court in the case of Suresh Prasad (supra) will also have no application in the case of the present case inasmuch as in that case, the delinquent petitioner Suresh Prasad was exonerated on two Patna High Court CWJC No.6347 of 2013 (2) dt.16-04-2013 7/8 occasions by an enquiry report dated 18.03.1998 and another report dated 19.08.2003 whereafter a third enquiry was sought to be initiated and concluded, which was deprecated by holding that a de novo enquiry was not permissible. In the present case, there is no question of de novo enquiry rather the same enquiry, in which enquiry officer had exonerated the petitioner, the disciplinary authority has deferred with the findings of the enquiry officer and has issued the impugned show cause notice. 11. The submission that the impugned show-cause notice gives no reason for differing with the enquiry report is also factually incorrect because the underlined portion of paragraph nos. 2 and 3 of the impugned show cause notice does disclose such reason. This Court however would not go into sufficiency of such reason as that can only be examined by the disciplinary authority in the light of explanation furnished by the petitioner 12. From reading of the aforesaid impugned show- cause notice, it would be clear that reasons have been given and therefore whether such reasons are germane or based on extraneous material can never be made subject matter of a writ application, inasmuch as, the petitioner has an opportunity to make his view known by filing reply to the second show-cause notice. That is how the Apex Court in the case of Kunisetty Patna High Court CWJC No.6347 of 2013 (2) dt.16-04-2013 8/8 Satyanarayana (supra) had laid down that a writ application normally will not lie against a show-cause notice. 13. In view of the above, this Court does not find any merit in this writ application and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) Rishi/Sujit