1 - Bhanupratap S/o Shri Teras Ram Mire Aged About 47 Years R/o C v. 1 - State Of Chhattisgarh Through The Secretary, Department Of Energy, Govt. Of Chhattisgarh
Case Details
1 VISHAKHA BEOHAR Digitally signed by VISHAKHA BEOHAR NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 974 of 2025 1 - Bhanupratap S/o Shri Teras Ram Mire Aged About 47 Years R/o C- 106, Housing Board Colony, Raipur Naka Near Hemchand University, District- Durg, C.G. ... Petitioner versus 1 - State Of Chhattisgarh Through The Secretary, Department Of Energy, Govt. Of Chhattisgarh, Mahanadi Bhawan, Atal Nagar, Nava Raipur, Chhattisgarh 2 - Chhattisgarh State Renewable Energy Development Agency (Creda) Through Its Chief Executive Officer, Head Quarter- Near Urja Udyan, V I P Road (Airport Road) Raipur, Dist. Raipur, Chhattisgarh 3 - Santosh Kumar Executive Engineer, Administration And Quality Control Cell- Creda, Head Office At V I P Road, Near Urja Park, Raipur, Chhattisgarh ... Respondents (Cause-title taken from the Case Information System) ----------------------------------------------------------------------------------------------- For Petitioner :- Mr. Sharad Mishra, Advocate For State :- Mr. Vivek Sharma, Addl. A.G. ----------------------------------------------------------------------------------------------- SB- Hon'ble Shri Justice Amitendra Kishore Prasad Order On Board 11.03.2025 2 1. The petitioner is aggrieved by the impugned notice dated 16.01.2025 by which notice for suspension as well as contemplation of departmental enquiry was issued by the Officers who is junior to the petitioner. As such, the petitioner has
Legal Reasoning
challenged the said order and the proceedings by way of this petition. 2. The petitioner has filed the petition seeking following reliefs:- “(i) That, this Hon'ble Court may kindly be pleased to allow the present writ petition and call for the entire records pertaining to the case of the Petitioners from the Respondent No. 2. (ii) That, this Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction to the Respondents more particularly to the Respondent No. 2 and 3 for quashing of impugned proceedings initiated vide Letter bearing No. 14698 dated 17-12-2024 as well as letter bearing No. 16528 dated 16-01-2025 which is without any authority of law and being initiated malafidely in biased manner with pre- determined mind without following the due procedure prescribed under the law. (iii) That, this Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction to the Respondents more particularly to the Respondent No. 2 and 3 thereby directing them to refrain from taking any coercive action against the Petitioner pursuant to the aforesaid impugned letters/Notices which are under
Decision
challenge in the writ petition. 3 (iv) That, this Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction to the Respondents more particularly to the Respondent No. 1 for constituting a committee of the responsible officers of the Department who are not the employees of CREDA for conducting independent & transparent inquiry into the allegations levelled in the impugned letters/notices in accordance with law. (v) That, this Hon'ble Court may kindly be pleased to grant any other writ/writs order/orders, relief/reliefs in favor of the petitioners, which the Hon'ble Court deemed fit & just in the facts and circumstances of the case, including awarding of the cost of the petition.” 3. Brief facts of the case are that the petitioner is a permanent employee of Chhattisgarh State Renewable Energy Development Agency (CREDA) which is a separate statutory body comes under the Department of Energy, Government of Chhattisgarh. and the the petitioner was recruited under Respondent No. 2 and his service is governed by CREDA Recruitment Service Rules and Appeal Regulations, 2004 (hereinafter referred to as 'CREDA Service Rules'). The respondent No. 2 had convened a meeting of DPC (Departmental Promotion Committee) dated 16.07.2024 for the promotion of Petitioner and other employees who are eligible and entitled for grant of benefit of promotion from their respective posts to the promotional posts as per the statutory rules based on merit-cum-seniority as per service rules of CREDA. Though, the 4 present petitioner has completed the qualifying years of service to get promoted to the higher post, but the Respondent No. 2 has not released the report/minutes of the meeting of the said DPC nor any order of promotion has been issued in favor of eligible candidates by the respondent no. 2 despite there being notification issued by GAD (General Administration Department) Govt. of Chhattisgarh dated 15.01.2021 directing that the minutes of the meeting of DPC has to be released within 7 days of holding the meeting and further promotion order shall have to be issued within maximum 20 days after the issuance of minutes of the meeting of the DPC. Being aggrieved by the said inaction, the Petitioner along with another employees submitted representation to the concerned authority and pursuant to the said representation, the Office of Respondent No. 1 vide letter dated 26.09.2024 directed Respondent No. 2 to decide & settle the grievance of Petitioners at the earliest as per applicable statutory rules. Thereafter, the Petitioner along with another employees have filed writ petition bearing WPS NO. 5855/2024 and then MCC No. 955/2024 wherein it was directed that to redress the grievance of the Petitioner by deciding the representation filed by him. 4. Thereafter, the Respondent No. 2 informed the Petitioner that report of DPC held on 16.07.2024 could not be released as there is some discrepancies and the said DPC was not conducted as per the applicable rules. The Respondent No. 3 acting on the 5 instructions of Respondent No. 2 has issued another letter / order dated 08-11-2024 to the petitioner whereby the representation filed by the Petitioner was rejected by mentioning that due to some discrepancies in convening the meeting of DPC as it was not held as per the applicable rules the same is not being released and a new DPC will be convened in future. Thereafter, the Petitioners filed a contempt petition bearing Contempt Case No.1417/2024, but the Respondent No. 2 and 3 started pressurizing the Petitioner for withdrawing the Contempt Petition and for that purposes they issued malafide transfer orders dated 06-12-2024 which has been further challenged by way of a writ petition bearing WPS NO. 8208/2024 and the Hon'ble High Court vide its order dated 13-12-2024 has stayed the effect and operation of the transfer order by issuing direction to Respondent No. 2 to decide the appeals in accordance with law. Even after passing the above transfer orders, the Respondent No. 2 & 3 did not held back in pressurizing the Petitioner to take back the contempt petition and even gone to the extent of giving threatening to the Petitioner who is the bona fide employee of CREDA. 5. Against it, the Petitioner submitted a detailed representation before the Respondent No. 1 informing about the aforesaid malafide and arbitrary actions of the Respondent No. 2 via e-mail. Then, the Respondents No. 2 & 3 issued false, fabricated and afterthought show cause notice / letter dated 17-12-2024 to the 6 Petitioner by calling explanation alleging that due to his negligence, CREDA has suffered loss of around 32 crores. Against the said letter/notice, the Petitioner submitted detailed reply enclosing all the relevant documents which shows that out of approximately 550 Agreement, Respondent No. 3 has signed and executed more than 150 agreements as an Executive Engineer on behalf of CREDA in a manner which the Petitioner has executed.Thereafter, the Respondent No. 3 again vide impugned letter dated 16-01-2025 called for explanation from the Petitioner within 3-days stating that the earlier explanation of the Petitioner was not found to be satisfactory and further declaring that if the Petitioner fails to offer any explanation, then he will be suspended from service. The Petitioner submitted detailed reply to the said letter. The aforesaid action on the part of the Respondents No. 2 and 3 is adversely affecting the service career of the Petitioners and is totally in contravention of the statutory rules and also violative of principles of natural justice. Hence this petition. 6. Learned counsel for the petitioner submits that the impugned notice dated 16.01.2025 has been issued by the respondent No.3 to the petitioner for suspension as well as contemplation of Departmental Enquiry. He submits that the show cause notice was passed by the person who is junior to the petitioner, as such, he is not competent to issue such a notice. It was further argued that the respondent authorities are bent to suspend the petitioner and to initiate Departmental Enquiry which is reflected from the 7 impugned notice, as such, the said act of the respondents No.2 & 3 is illegal, bad in law and impugned proceedings initiated vide Letter bearing No. 14698 dated 17-12-2024 as well as letter bearing No. 16528 dated 16-01-2025 be directed to be quashed/set-aside and the present petition be allowed. 7. On the other hand, learned State counsel submits that the petition filed by the petitioner, at present, is premature, baseless and misconceived. It is stated that the proceedings pursuant to the letter dated 17.12.2024 and 16.01.2025 are currently going on and pending and no final decision has been taken by the authorities till date. From bare perusal of the order dated 16.01.2025, it is apparent that it was only an administrative order issued by the answering respondent by which the petitioner was directed to get the necessary amendment done in the rate of contract. The allegation of the petitioner against the respondent No.3 who is junior to the petitioner is factually incorrect. The respondent No.3 is Incharge of the concerned section and has issued the order only after direction and approval of the CEO who is the competent authority. It is stated that the aforesaid fact is apparent from the perusal of order dated 16.01.2025 itself as the said order was passed after approval of the CEO. Even otherwise also, the petitioner has filed this petition only on the basis of apprehension for which the extraordinary jurisdiction under Article 226 of the Constitution of India is not meant for. The petitioner has directly approached before this Court without availing alternate 8 and efficacious remedy while presenting this case before the competent authority. The issuance of show cause notice is in a preliminary stage which is a fact finding process and no final order has been passed for contemplation of departmental enquiry. The petition as framed and filed is devoid or merits and is liable to be dismissed in threshold. 8. I have heard learned counsel for parties, considered their rival submissions made and perused the documents appended with the writ petition. 9. From bare perusal of the impugned notice it seems that in a fact finding report, explanation has been called from the petitioner and there is nothing to show on record that any departmental enquiry was directed to be initiated against the petitioner. Even otherwise also, the respondent No. 3 has issued the said notice on the basis of directions given by the competent authority i.e. CEO and, as such, at this stage, it cannot be said that the impugned notice issued against the petitioner is passed by an incompetent Officer. The petitioner is having every opportunity to challenge the order, if any, passed against him after this fact finding enquiry. Time and again, the Hon’ble Supreme Court as well as this Court clearly held that order of suspension is not a punishment order, whereas it is only to facilitate the proceedings to be unbiased and uninfluenced in order to conduct fair enquiry and is just and reasonable. 9 10. At this juncture, it would be appropriate to consider the judgments relied upon by the respective counsels. 11. Learned counsel for the petitioner has relied upon judgment passed by the Hon’ble Supreme Court in the matter of Whirlpool Corpn. v. Registrar of Trade Marks reported in (1998) 8 SCC 1 wherein the relevant paras 14 & 15 are read as under:- "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has 10 been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case- law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 12. He also places reliance upon judgment passed by the Hon’ble Supreme Court in the matter the matter of V.C., Banaras Hindu University v. Shrikant, reported in (2006) 11 SCC 42 and the relevant paragraphs of the said judgment are read as under:- "28. In any view of the matter in terms of the said notification dated 25-3-1998, no authority has been conferred upon the Vice-Chancellor to take such a decision. Significantly, even in the office orders dated 30/31-7-1997, 24-3- 2000 issued to the respondent, it was clearly stated that the respondent had committed a misconduct by violating the University Rules. By reason of the said notices, the respondent had been asked to show cause as to why action should not be taken against him for his alleged acts of misconduct. The respondent in response to the said notices submitted his reply which might or might not have been accepted, but by reason thereof, the Vice- Chancellor of the University could not have taken a different stand while issuing office memo dated 18-4-2000 so as to say that "he would be deemed to have abandoned his 11 services" w.e.f. 1-3-2000. 38. The Statute and the Ordinance postulate that an order of termination of services could be passed only by the Executive Council and that too in the event two-third of the members were present and voted in support thereof. Therefore, the Vice-Chancellor had no say in the matter. He was merely a member of the Executive Council. He, thus, could not have initiated any proceeding and imposed any punishment on the respondent. 46. As the initial order passed by the Vice- Chancellor was wholly without jurisdiction, the same was a nullity and, thus, the purported approval thereof, by the Executive Council would not cure the defect." 13. Further, reliance has been placed by counsel for the petitioner in the matter of Air Line Pilots' Assn. of India v. DGCA, reported in (2011) 5 SCC 435 wherein it has been held in paras 26, 27 & 28 that :- "26. The contention was raised before the High Court that the Circular dated 29-5-2008 has been issued by the authority having no competence, thus cannot be enforced. It is a settled legal proposition that the authority which has been conferred with the competence under the statute alone can pass the order. No other person, even a superior authority, can interfere with the functioning of the statutory authority. In a democratic set-up like ours, persons occupying key positions 12 are not supposed to mortgage their discretion, volition and decision-making authority and be prepared to give way to carry out commands having no sanctity in law. Thus, if any decision is taken by a statutory authority at the behest or on suggestion of a person who has no statutory role to play, the same would be patently illegal…….. 27. Similar view has been reiterated by this Court in Commr. of Police v. Gordhandas Bhanji (1951 SCC 1088: AIR 1952 SC 1.6] Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia ((2004) 2 SCC 65] and Pancham Chand v. State of H.P. [(2008) 7 SCC 117] observing that an authority vested with the power to act under the statute alone should exercise its discretion following the procedure prescribed therein and interference on the part of any authority upon whom the statute does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. 28. In view of the above, the legal position emerges that the authority who has been vested with the power to exercise its discretion alone can pass the order. Even a senior official cannot provide for any guideline or direction to the authority under the statute to act in a particular manner." 14. Learned State counsel has also relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Union of 13 India & Another vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28, wherein the similar issue has been dealt vide para 14, which reads as under:- “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." 15. Learned State counsel also places reliance in the matter of Siemens Ltd. Vs. State of Maharashtra & Ors. reported in (2006) 12 SCC 33, wherein it has been held as under:- “Although ordinarily a writ court may not exercise its discretionary jurisdiction in 14 entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause.” 16. In the present case, neither any suspension order has been issued nor any departmental enquiry has been contemplated, as such, the writ petition is premature, at this stage. Merely issuance of show cause notice seeking appropriate reply from any employee cannot be equated with the order of suspension or order proposing penalty against the employee. The show cause 15 notice is just to call upon the employee to explain about the allegation made against him. 17. Looking to the overall aspect of the matter as also the aforesaid judgments cited by the respective counsels, this Court do not consider it to be a fit case for warranting interference by invoking extraordinary jurisdiction under Article 226 of the Constitution of India. 18. Accordingly, the present petition sans merit, liable to be and is hereby dismissed. No order as to cost(s). Sd/- (Amitendra Kishore Prasad) Judge Vishakha