Awadhesh Narain Singh vs State Of U.P. And Others
2013 Latest Caselaw 7456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									     AFR
 
									Reserved
 
								     Court No. 21
 
	Civil Misc. Writ Petition No. 30893 of 2007
 
Awadhesh Narain Singh.		 ....		....	...   Petitioner.
 
					Versus
 
State of U.P. and others. 		....		.....	...  Respondents.
 
					-------
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Pradeep Kumar Singh Baghel, J.

1. By means of this writ petition the petitioner has challenged the notice dated 28th May, 2007 issued by the respondent no. 2 i.e. Joint Registrar, Co-operative Societies, Azamgarh Mandal, Azamgarh, under Section 68 of the Uttar Pradesh Co-operative Societies Act, 1965, whereby the petitioner has been called upon to submit his reply in connection with recovery of Rs.24.98 lakhs.

2. The essential facts are that the District Co-operative Bank Limited, Ballia (for short, the "Bank") is a Central Society registered under the Uttar Pradesh Co-operative Societies Act, 1965 (for short, the "Act"). The petitioner at the relevant point of time was posted as Branch Manager of Rampur Branch of the Bank, where he was posted from 22nd February, 1989 to 15th November, 1994 and thereafter again from 29th August, 1998 to 05th March, 2002.

3. It is stated that the petitioner was subjected to disciplinary proceedings in terms of the U.P. Co-operative Societies Employees Service Regulation, 1975 (for short, the "Regulations") in connection with the charges of financial irregularities, embezzlement and misappropriation of fund. On 11th June, 2002 he was placed under suspension. The Administrative Committee of the Bank vide its order dated 25th September, 2004 took a resolution to reinstate the petitioner provisionally. Thereafter, after conclusion of disciplinary proceedings, the Administrative Committee lay a resolution dated 11th February, 2005 and reinstated the petitioner by imposing following punishments:

(i) Except subsistence allowance, the petitioner will not be entitled for any salary during the suspension period;

(ii) His one annual increment is withheld permanently; and

(iii) It would be open to the bank to recover the pecuniary loss, if any, caused by him in terms of Section 68 of the Act.

A copy of the decision of the Administrative Committee under the seal and signature of Secretary/ General Manager of the Bank has been brought on record as annexure-3 to the writ petition.

4. The petitioner accepted the aforesaid punishments and he was reinstated in service. On 31st January, 2007 he retired on attaining the age of superannuation.

5. Grievance of the petitioner is that after his retirement, a proceeding purported to be under Section 68 of the Act was initiated against him appointing the District Assistant Registrar, Co-operative Societies, U.P., Mau, the respondent no. 3, as Enquiry Officer. In the enquiry, it was found that the petitioner allegedly caused a loss of Rs.24.98 lakhs to the Bank when he was posted as Branch Manager of Rampur Branch of the Bank. On the basis of the enquiry report, a notice dated 28th May, 2007 was issued to him under Section 68 of the Act calling upon him to submit his reply thereto on 19th July, 2007. The petitioner, without submitting his reply, has preferred this writ petition challenging the said notice dated 28th May, 2007.

6. Counter affidavit has been filed on behalf of the contesting respondent no. 4 i.e. bank wherein the stand taken is that on 07th March, 2002 a show cause notice was issued to the petitioner with regard to various illegalities committed by him while he was posted at Rampur Branch, Ballia. A copy of the notice has been brought on record along with the counter affidavit. It is also stated that the petitioner has accepted the resolution dated 11th February, 2005, whereby he was reinstated in service subject to certain conditions/ punishments mentioned in the said resolution. As the petitioner has accepted the said conditions, now he cannot turn around and challenge the proceeding under Section 68 of the Act, which has been initiated as per the resolution/order dated 11th February, 2005. It is further submitted that the plea raised by the petitioner with regard to proviso to Section 68 of the Act, which puts time limit for commencing enquiry, is not applicable, as the said proceeding was initiated within time and the petitioner had accepted it when he was reinstated in 2005. It is further stated that the petitioner in the year 1994 had not disbursed the loan to the farmers and the entire fund has been embezzled by him. The District Assistant Registrar, after inspection of the records, had already found in February, 2002 about the petitioner's financial misdemeanour. Thus, in 2002 itself proceedings were initiated in pursuance of the inspection/enquiry made by the District Assistant Registrar, Co-operative Societies, Ballia.

7. We have heard learned Counsel for the petitioner and learned Standing Counsel.

8. The petitioner has preferred this writ petition against a show cause notice issued under Section 68 of the Act whereunder he has been called upon to submit his reply. No final decision has been taken. It is a trite law that writ petition against a show cause notice is not maintainable. The petitioner may reply the same. From a bare perusal of the report/communication dated 01st March, 2002 it is evident that enquiry was initiated within 12 years as against the alleged financial irregularities. In this regard, the letters/reports have been brought on record as annexures 1, 2, 3 and 4 of the counter affidavit.

9. We find that the petitioner has rushed to this Court challenging the show cause notice on the ground that there was lack of jurisdiction in terms of Section 68 (2) of the Act as more than 12 years have passed. However, in the counter affidavit correct facts have been brought on record that enquiry was initiated in 2002. Therefore, without recording any finding on the issue, we are of the view that the petitioner is at liberty either to reply to the show cause notice or to challenge the said notice under Section 128 of the Act before the Registrar. Under Section 128 of the Act the Registrar has ample power to annul any order passed by any officer against the provisions of the Act. It is well settled law that a writ petition is not maintainable challenging the show cause notice. The Supreme Court in the case of Special Director and another v. Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440, has deprecated the practice of the High Courts in entertaining the writ petitions against the show cause notice, and observed as under:

"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 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. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection granted."

10. The same view was taken by the Supreme Court in the case of Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others, AIR 1996 SC 691. Paragraph-10 of the judgment is as follows:

"10. We are concerned in this case, with the entertainment of the writ petition against a show cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Ext. P-4 notice is ex facie a "nullity" or totally "without jurisdiction" in the traditional sense of that expression--that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him, to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India."

11. Reference may also be made to some other judgments of the Supreme Court in the cases of State of Uttar Pradesh v. Brahm Datt Sharma and another, AIR 1987 SC 943; Union of India and another v. Kunisetty Satyanarayana, (2006) 12 SCC 28; and Siemens Ltd. v. State of Maharashtra and others, (2006) 12 SCC 33.

12. A Division Bench of this Court presided over by one of us (Justice Rakesh Tiwari) in the case of Rameshwar Prasad Singh v. State of U.P. and others, Civil Misc. Writ Petition No. 34002 of 2007, decided on 14th March, 2012, has also taken the same view that a writ petition is not maintainable in the matter arising out of the show cause notice as the petitioner can take all the pleas before the authority, which has issued the notice. The relevant portion of the order reads as under:

"Besides it, the impugned notice has been issued to the petitioner to show cause regarding financial irregularities said to have been committed by him. It is settled by a catena of decisions that Courts normally should not interfere in writ jurisdiction in matters arising out of show cause notices as the petitioner can take all the pleas before the authority which has issued the notice and he has all the grounds available to him which he has taken in the writ petition. The petitioner instead of appearing before the authority concerned and showing the cause there, has misused the process of the Court by preferring the present petition. Therefore, we are not inclined to interfere in the matter at this stage. The petitioner may take all submissions and grounds as taken here before the authority concerned."

13. Having considered the facts and circumstances of the case and for the reasons stated above, we are of the view that the writ petition is premature and it is liable to be dismissed on its merit. Accordingly, it is dismissed. No order as to costs.

Order Date :-13 December, 2013.

SKT/-

Hon'ble Rakesh Tiwari, J.

Hon'ble Pradeep Kumar Singh Baghel, J.

The writ petition is dismissed.

For order, see our order of the date passed on the separate sheets (six pages).

Dt.-13th December, 2013.

SKT/-