Karnataka High Court
Ramesh Babu B.K. vs Director (A &Hr) on 2 April, 2014
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.13237/2014 (S-DIS)
BETWEEN:
RAMESH BABU B.K.,
S/O KUMBANNA, AGE: 40 YEARS,
WORKING AS ASSISTANT ENGINEER
(ELECTRICAL-TECHNICAL)
OFFICE OF O & M SUB-DIVISION
MESCOM, SAGAR- 577 401
R/AT NEAR SHARADAMBHA TEMPLE
RAILWAY STATION ROAD,
SAGAR-577401.
... PETITIONER
(BY SRI MAHESH R. UPPIN, ADV.)
AND:
1. DIRECTOR (A & HR)
KPTCL, KAVERI BHAVAN
BANGALORE-560 009.
2. SUPERINTENDENT ENGINEER (ELECTRICAL)
MANGALORE ELECTRICITY
SUPPLY CO. LTD., (MESCOM)
O & M CIRCLE, BALARAJA ROAD,
NEAR RAILWAY STATION,
SHIMOGA-577 401.
3. GENERAL MANAGER (HR)
MESCOM, PARIDIGAM PLAZA,
A.B. SHETTY CIRCLE,
MANGALORE-575 001.
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4. EXECUTIVE ENGINEER (ELECTRICAL)
O & M DIVISION
MESCOM, JOG ROAD,
OPPOSITE TO KSRTC BUS STAND,
SAGAR,
SHIMOGA DISTRICT-577 401.
... RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
SHOW CAUSE NOTICE DATED 23.1.2014 ISSUED BY THE 2ND
RESPONDENT VIDE ANNEXURE-C OR IN THE ALTERNATIVE
DIRECT THE 2ND RESPONDENT TO FURNISH THE REPORT OF
THE 4TH RESPONDENT DATED 6.1.2014 VIDE ANNEXURE-C
BEFORE PASSING ANY ORDERS PURSUANT TO ANNEXURE-C.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Seeking quashing of a show cause notice issued by the respondent No.2 vide Annexure-C, this writ petition was filed. Alternatively, a mandamus has been sought against the respondent No.2, to furnish copy of the report of respondent No.4, dated 06.01.2014, referred to in Annexure-C, before passing any orders in pursuance of Annexure-C.
2. Sri Mahesh R. Uppin, learned advocate, contended that, respondent No.4 without any authority has 3 submitted a report against the petitioner and copy thereof was not furnished to the petitioner. He submitted that the impugned proceedings being at the instance of respondent No.4 is mala fide. He further submitted that at the instance of respondent No.4, disciplinary proceedings against the petitioner has been initiated, since, a complaint made by the petitioner against the respondent No.4 is pending before the Karnataka SC/ST Commission. He further submitted that on account of issuance of Annexure-C, the petitioner's promotion has been delayed and hence, interference is called for.
3. Certain allegations have been sought to be leveled by the petitioner against the incumbent, holding the office of the respondent No.4, who has not been impleaded as co-nominee. On account of non-impleading as co-nominee, the allegations cannot be considered, in view of the ratio of the decision in the case of STATE OF PUNJAB AND OTHERS Vs. CHAMAN LAL GOYAL, reported in (1995) 2 SCC 570. Be that as it may.
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4. Annexure-C is a show cause notice. It makes reference to a report dated 06.01.2014. It is not the case of the petitioner that the said show cause notice was issued wholly without jurisdiction and is otherwise illegal. It is also not the case of the petitioner that Annexure-C has been issued without any application of mind and that the Competent Authority has made up its mind and issued Annexure-C only by way of formality. By the said notice, the petitioner was required to show cause as to why action in accordance with the Rules should not be taken.
5. In response to Annexure-C, petitioner has submitted his reply on 06.02.2014 vide Annexure-D and has sought dropping of all further proceedings. Ordinarily, no writ petition can be entertained at this stage i.e., against the show cause notice as at Annexure-C, in view of the well settled position of law, in catena of decisions of the Apex Court.
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6. In STATE OF UTTAR PRADESH Vs. BRAHM DATT SHARMA AND ANOTHER, (1987) 2 SCC 179, it has been held as follows:
"9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a government servant under a statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court in our opinion ought not have interfered with the show cause notice."
7. In SPECIAL DIRECTOR AND ANOTHER Vs. MOHD. GHULAM GHOUSE AND ANOTHER, (2004) 3 SCC 440, it has been held as follows:
"5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High 6 Court is satisfied that the show-cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show- cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court......."
8. The ratio of the decisions, noticed supra, has been reiterated in UNION OF INDIA AND ANOTHER Vs. KUNISETTY SATYANARAYANA, (2006) 12 SCC 28, wherein at has been 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 vs. Ramesh Kumar Singh, (1996) 1 SCC 327, Special Director vs. Mohd. Ghulam Ghouse, AIR 2004 SC 1467, Ulagappa vs. Divisional Commissioner, Mysore, 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma, AIR 1987 SC 943 etc.
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 7 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. 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."
9. In SECRETARY, MIN. OF DEFENCE AND OTHERS Vs. PRABHASH CHANDRA MIRDHA, (2012) 11 SCC 565, it has been held as follows:
"13. 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."
10. Since, the petitioner has submitted the reply vide Annexure-D, to the show cause notice as at 8 Annexure-C, there is an obligation on the part of the concerned authority to consider the same and take further action, if any, in accordance with law. If disciplinary action is taken and any reliance is placed on the report dated 06.01.2014 referred to in Annexure-C i.e., on behalf of the disciplinary authority, it is open to the petitioner to call upon the disciplinary authority to make available a copy of the said report and despite such a request, if copy is not furnished, it would amount to violation of principles of natural justice.
11. In view of the above, the writ petition as against the show cause notice being not maintainable and as there is a need for the competent authority to consider Annexure-D, before taking further action, I do not find justification to entertain this writ petition.
Consequently, the petition is rejected subject to the observations made supra.
Sd/-
JUDGE sac*