Gujarat High Court
Jayvantsinh Natubha Vaghela vs Paschim Gujarat Vij Company Limited & on 3 August, 2016
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.Y. Kogje
C/SCA/12997/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12997 of 2016
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JAYVANTSINH NATUBHA VAGHELA....Petitioner
Versus
PASCHIM GUJARAT VIJ COMPANY LIMITED & 1....Respondents
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Appearance:
MR SALIL M THAKORE, ADVOCATE for the Petitioner
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 03/08/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT)
1. Leave to amend the cause title and implead the person against whom the allegations have been made as one of the respondent and Paschim Gujarat Vij Company Limited through the Managing Director.
2. The petitioner has taken out this petition essentially challenging the Show Cause Notice dated 26.07.2016, calling upon the petitioner to account for conduct during the contract from 2013 to 2015 dubbing it to be a fraud perpetrating upon the respondent Company in executing the contract and also calling upon the petitioner to credit the amount which said to have been losses suffered by the respondent on account of fraud alleged in the notice.
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3. Learned senior counsel for the petitioner invited Court's attention to the averments made in paragraph nos.6, 7 and 8 and submitted that on account of inter personal rivalry and grudges against the colleague, the person incumbent in the office of the Chief Engineer or who has resumed charge of the Chief Engineer, respondent no.3, is wrecking vengeance upon the present petitioner and other contractors and the Show Cause Notice clearly indicate that there is pre-determination of mind for inflicting appropriate punishment upon the petitioner for no fault on their part.
4. The counsel for the petitioner also invited Court's attention to the wordings and phraseology employed in the Show Cause Notice with special emphasis upon the following wordings and phraseology, which read as under;
"You Shri Jayvantsinh Natubha Vaghela is hereby informed that you have committed serious irregularities and indulged huge financial fraud in work carried out under the name of your firm Shri J.N. Vaghela.
...
Considering the serious offence carried out from your firm/agency, you are hereby Show Caused that why your firm/agency should not be stopped dealing/black listed/banned for doing Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Aug 06 02:52:00 IST 2016 C/SCA/12997/2016 ORDER any business including any new Line work/maintenance work or other related work with PGVCL.
....
You should note that non-compliance of this Show Cause Notice, it will be automatically presumed and considered from PGVCL that you are agreed with the serving of the notice and subsequently the action will be proposed from the PGVCL committee.
You are also informed through this notice that you should credit all amount indulged in the fraud which is already shown under the FIR lodged against you.
List of work order issued to you is attached to this notice for which the work is still not final or not started yet from you. You are also been informed through this notice that you must stop/hold up working further with immediate effect.
....."
Based upon this phraseology employed, argument was advanced that this clearly reveals the pre- determination on the part of the concerned to take action and the Show Cause Notice is nothing, but merely an empty formality. When the Show Cause Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Aug 06 02:52:00 IST 2016 C/SCA/12997/2016 ORDER Notices are viewed to be an empty formality on account of the phraseology employed thereunder, the Courts have promptly stayed them on account of clear breach of natural justice and in support thereunder, the counsel for the petitioner cited following decisions;
(i) In case of Oryx Fisheries Private Limited Vs. Union of India And Others, reported in (2010) 13 Supreme Court Cases 427.
(ii) In case of Siemens Ltd. Vs. State of Maharashtra And Others, reported in (2006) 12 Supreme Court Cases 33 with special emphasis upon paragraph no.9.
(iii) In case of Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant And Others, reported in (2001) 1 Supreme Court Cases 182 with special emphasis upon paragraph nos.23 and 24.
5. We are mindful of the fact that by way of this petition what is essentially challenged is the Show Cause Notice and ordinarily the Court in the given facts may not interfere at the stage of Show Cause Notice only, but when the phraseology employed in the Show Cause Notice is examined in light of the observations of the Supreme Court in cases cited hereinabove, then we have to accept the submission on behalf of the petitioner and prima facie hold that there exists substance in what has been submitted on Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Aug 06 02:52:00 IST 2016 C/SCA/12997/2016 ORDER behalf of the petitioner that the Show Cause Notice is straightway calling upon the petitioner to deposit the amount or credit the amount, which is said to have been losses suffered by the respondent Company without there being any further probe or without being informed about the version of the petitioner qua the allegations. Moreover, the averments made in the petition on oath indicating that the concerned respondent no.3 after coming into charge of the position of Chief Engineer, Zonal Division, Bhavnagar, saw to it that the contract given in the time i.e. from the year 2013 to 2015 and which were supervised by Shri Yadav, the colleague who was an instrumentality in filing adverse report against him, are subjected to coercive steps. The First Information Reports were filed for the period of the work carried out in the year 2013 to 2015 and when the completion and satisfactory certificates were issued and the final bills were paid.
6. Against the backdrop of the aforesaid facts, we are of the view that there appears a case for issuance of notice calling upon the respondents to answer the allegations made in this petition and in the meantime the Show Cause Notice, which prima facie appears to be containing conclusion against the petitioner without giving an opportunity of being heard, also needs to be stayed.
7. Accordingly, let there be a Notice returnable on Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Aug 06 02:52:00 IST 2016 C/SCA/12997/2016 ORDER 29.08.2016. In the meantime and till the returnable date, the Show Cause Notice dated 26.07.2016 is stayed.
8. The staying of the Show Cause Notice and observations made hereinabove are prima facie based upon the averments made on oath in this petition and they may not have any bearing whatsoever upon the criminal proceedings in the nature of First Information Report filed against the petitioner in any manner, nor are these observations be construed as Court's opinion upon the petitioner's conduct so as to affect the investigation in any manner. In other words, the Court is of the view that these observations are prima facie and they shall have no bearing whatsoever upon the pendency of the First Information Report and its investigation, if any, thereupon.
9. This order is passed ex parte, therefore, it is open to the otherside to approach the Court even before the returnable date for vacation and/or modification of this order.
Direct service permitted.
(S.R.BRAHMBHATT, J.) (A.Y. KOGJE, J.) Pankaj Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Aug 06 02:52:00 IST 2016