Gujarat High Court
Virendrakumar Ganatra vs Deputy Superintendent (O & M) & on 6 April, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/4021/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4021 of 2016
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VIRENDRAKUMAR GANATRA....Petitioner(s)
Versus
DEPUTY SUPERINTENDENT (O & M) & 1....Respondent(s)
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Appearance:
MR NIKHIL S KARIEL, ADVOCATE for the Petitioner(s) No. 1
NANAVATI & CO., ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/04/2016
ORAL ORDER
By this writ-application under Article 226 of the Constitution of India, the petitioner, who is serving as the Deputy Superintendent of Establishment, Paschim Gujarat Vij Company Limited, Jamnagar, has prayed for the following reliefs :
"(a) Your Lordships may be pleased to admit and allow this petition;
(b) Your Lordships may be pleased to issue appropriate writ, order or direction for quashing and setting aside the charge-sheet No.KC/IB/D/A-VJG/2015/829 dated 31.07.2015 (Annexure-A);
(c) Your Lordships may be pleased to stay further proceedings of charge-sheet issued to the present petitioner vide No.KC/IB/D/A-VJG/2015/829 dated 31.07.2015 (Annexure-A);
(d) Your Lordships may be pleased to grant such other Page 1 of 4 HC-NIC Page 1 of 4 Created On Thu Apr 07 02:49:02 IST 2016 C/SCA/4021/2016 ORDER and further relief/s as deemed just and proper by this Hon'ble Court in the interest of justice;"
It appears that a departmental charge-sheet has been issued dated 31st July 2015, substantially on the ground that the petitioner had remained absent from duties for a period of almost five months and eighteen days without prior approval of the competent authority.
This writ-application has been filed on the premise that the charge-sheet could not have been issued because leave was sanctioned by the authority for the period during which the petitioner remained absent.
I inquired with Mr.Kariel about his defence statement and the averments made in the defence statement in this regard.
The defence statement is not clear so far as sanctioning of the leave is concerned. However, it is always open for the petitioner even to establish in the course of the inquiry by oral as well as documentary evidence that in fact leave was sanctioned and the case is not one of willful absenteeism. It is difficult for me to entertain this writ-application, more particularly, in light of the decision of the Supreme Court in the case of Secretary, Ministry of Defence and others v. Prabhash Chandra Mirdha, (2012)11 SCC 565, wherein the Supreme Court observed as under :
"Ordinarily a writ application does not lie against a 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 right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-Page 2 of 4
HC-NIC Page 2 of 4 Created On Thu Apr 07 02:49:02 IST 2016 C/SCA/4021/2016 ORDER sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906).
In State of Orissa & Anr. v. Sangram Keshari Misra & Anr., (2010) 13 SCC 311, this Court held that normally a charge-sheet is not quashed prior to the conclusion of the enquiry on the ground that the facts stated in the charge are erroneous for the reason that correctness or truth of the charge is the function of the disciplinary authority. (See also: Union of India & Ors. v. Upendra Singh, (1994) 3 SCC 357).
Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
Thus, the position of law is clear. Ordinarily, a writ- application would not lie against a charge or show-cause notice for the reason that it would not give rise to any cause of Page 3 of 4 HC-NIC Page 3 of 4 Created On Thu Apr 07 02:49:02 IST 2016 C/SCA/4021/2016 ORDER action. A charge-sheet can be challenged only on the ground that the issuing authority was not competent to do so in that regard. That does not seems to be the case of the petitioner.
Any observations at this stage on merits would cause prejudice and, therefore, I clarify that I am not entertaining this writ-application only on the ground that the inquiry is going on. In the course of the inquiry, it will be open for the petitioner to adduce relevant materials in support of his case. I further clarify that I have not expressed any opinion on merits so far as the charge is concerned. I expect the authority concerned to proceed with the inquiry expeditiously and dispose it of in accordance with law within a period of six months.
Although I have said six months as an outer period, but all endeavour should be made to see that it is completed as early as possible because the petitioner is to attend superannuation within eleven months from today. I expect the petitioner to extend full cooperation in the inquiry.
With the above, this writ-application is disposed of.
(J.B.PARDIWALA, J.) MOIN Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Apr 07 02:49:02 IST 2016