Gujarat High Court
K.R. Desai, Assistant Judge vs High Court Of Gujarat Through Registrar on 5 September, 1994
Equivalent citations: [1995(70)FLR667], (1994)2GLR1639, (1995)IILLJ972GUJ
JUDGMENT Calla, J.
1. The petitioner is a Judicial Officer holding the post of Assistant Judge, head-quartered at Ahmedabad. He has filed present Special Civil Application challenging the order dated 2-12-1992, and seeking a declaration that the inquiry proceedings which are being held against him are vitiated, and further that, he is entitled to get all the relevant documents and materials as stated in Para 5 of petition. The order dated 2-12-1992 is an order which indicates that the High Court has tentatively agreed with the findings recorded by the Inquiry Officer, and therefore, it has been found to be a fit case to recommend issuance of show cause notice to the delinquent official to show cause as to why the penalty of dismissal from service should not be imposed upon him in view of the charges established against him in this Departmental Inquiry. There is no dispute that the matter is yet pending before the Disciplinary Authority and no final punitive order has been passed against the petitioner, and the disciplinary proceedings have reached the stage of issue of the show cause notice. Mr. Dave, appearing for the respondent while raising the preliminary objection that this Special Civil Application is pre-mature as the matter is yet pending with the Disciplinary Authority, he also made a statement that no document which is not supplied to the petitioner shall be relied upon. However, Mr. Tanna was not satisfied with this statement made by Mr. Dave and submitted that, in the instant case, the grievance which is being raised by the petitioner with regard to the non-supply of the documents goes to the root of the matter, and his entitlement to all these documents is an essential and integral part of the reasonable opportunity in the process of inquiry; and therefore, he should not be asked to wait till the final orders are passed, and this Special Civil Application may be entertained at this very stage.
2. Mr. Tanna placed reliance on AIR 1959 SC 725 reported in case of K. K. Kochunni v. State of Madras. It has been argued by Mr. Tanna that as per this Supreme Court decision the absence of overt act by State does not defeat the right of the aggrieved party to apply for issue of an appropriate writ. He has invited my attention to the observations made by the Supreme Court in para 10 of this judgment, in which it has been held that it is not correct to say that in all cases an application under Art. 32 cannot be maintained until the State has taken or threatened to take an action under the impugned law, which action, if permitted to be taken will infringe the petitioner's fundamental rights. It was a case in which the provisions of the enactment were challenged and the Supreme Court took took the view with regard to the provisions of Madras Marumakkathayam (Removal of Doubts), that, in such a case "the infringement of the fundamental right is complete en instanti the passing of the enactment and, therefore, there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy under Art. 32". The case before me is a service matter in which the final order is yet to be passed in the inquiry and there is no challenge to any rule. In K. K. Kochunni's case (supra) the infringement of fundamental right was complete with the law by itself and hence the passing of the order was only a natural consequence to follow and therefore, the question of absence of overt act was of no significance. In 1991 (2) GLH 364 : (1991 (2) GLR 1035) T. S. Rabari v. Government of Gujarat, the petitioner himself had come with the case that he had reliably learnt that an order terminating his services by way of penalty was passed. As such, this case also is of no avail to the petitioner at this stage. There is no doubt that in appropriate cases an aggrieved person may approach against the threatened injury but that is not the exact objection before me. The objection is that the petition is premature - the inquiry is pending and all the objections which the petitioner has raised in this petition could be raised before the disciplinary.
3. Mr. Tanna also relied upon AIR 1986 SC 2118 (Kashinath Dixit v. Union of India). It is very clear from the facts of this case that the dismissal order had already been passed, and therefore, there could not be any objection. In the case at hand, the petition is premature. Thus, there is no law to the effect that the writ petition filed against inquiry proceedings while the proceedings are pending is not premature. As against it, Mr. Dave has placed reliance on AIR 1976 SC 1821 in case of Chanan Singh v. Registrar, Co-op. Societies, Punjab & Ors. paras 4 and 5 of this Judgment are quoted as under.
"4. The first point raised in objection by the second respondent is that the writ petition is premature since no action has been taken finally against the appellant, the disciplinary proceedings are still pending and the explanation of the appellant is under consideration. it is only in the event of the appellant being punished that any grievance can arise for him to be agitated in the proper forum.
5. Other obstacles in the way of granting the appellant relief were also urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case pre-mature. No punitive action has yet been taken. It is difficult to state, apart from speculation, what the outcome of the proceedings will be. In case the appellant is punished, it is certainly open to him either to file an appeal as provided in the relevant rules or to take other action that he may be advised to resort to. It is not for us, at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised or whether an appeal to the competent authority under the rules is the proper remedy, although these are issues which merit serious consideration."
4. Mr. Tanna has invited my attention to the bundle of grievances raised by him with regard to the non-supply of documents, particularly from the document dated 18-1-1993 annexed with the petition as Annexure 'A', and has submitted that, it will be very clear from the grievances set out in various sub-paras under Para 2 that the petitioner has been denied the copies of those documents to which he is entitled in accordance with law, and therefore, taking of any punitive action based on such an inquiry in violation of the reasonable opportunity would stand vitiated and the petitioner should not be thrown to suffer the agony of the order of dismissal and the further appeal etc. provided departmentally. I have considered the submissions made by Mr. Tanna and I am of the considered opinion that all the objections which the petitioner seeks to raise in this Special Civil Application can be very will agitated in reply to the show-cause notice, which the petitioner has submitted and it may also be open for him to supplement it if any ground has been left out. But it is for the Disciplinary Authority to apply its mind over such objections and pass appropriate orders. This is not the stage when the petitioner's grievances which can be adjudicated by the Disciplinary Authority should be taken for adjudication by this Court under Arts. 226 and 227 of the Constitution of Indian. The Supreme Court has categorically held in Chanan Singh's case (AIR 1976 SC 1821) that the writ petition at the stage of pendency of the inquiry is premature, and in the case at hand so far no punitive order has been passed against the petition. In absence of any punitive order against him when the Disciplinary Authority is yet to apply its mind and to take a decision, the petitioner cannot invoke the jurisdiction at this Court under Arts. 226 and 227 of the Constitution for the purpose of putting any blockade in the process of inquiry, more particularly when all these objections can be raised by the petitioner in response to show-cause notice. In the facts and circumstances of this case, the objection taken by Mr. Dave that the Special Civil Application is premature is sustained and accordingly this Special Civil Application is dismissed. The notice is discharged. No order as to cost.