Chattisgarh High Court

Navneet Kumar Swarnkar vs State Of Chhattisgarh on 29 November, 2022

                                     -1-




                                                                         NAFR

              HIGH COURT of CHHATTISGARH, BILASPUR

                   Order Reserved on 24.11.2022
                  Order Delivered on 29.11.2022


                        WPS No. 7823 of 2022
   Navneet Kumar Swarnkar S/o Late Shri T. P. Swarnkar Aged About
   42 Years R/o H. No. 528/31 Steel City Road, Gayatri Nagar, Awanti
   Vihar, District : Raipur, Chhattisgarh
                                                                ---- Petitioner
                                  Versus
1. State Of Chhattisgarh Through Its Secretary, Women And Child
   Development Department, Mantralaya, Mahanadi Bhawan, Nava
   Raipur, District : Raipur, Chhattisgarh
2. Director Women And Child Development Department, Mantralaya,
   Mahanadi Bhawan, Nava Raipur, District : Raipur, Chhattisgarh
3. Commissioner Raipur Division, District : Raipur, Chhattisgarh
4. Collector District- Raipur Chhattisgarh.
5. District Programme Officer Women And Child Development, District :
   Raipur, Chhattisgarh
                                                           ---- Respondents

For Petitioner : Shri Mateen Siddiqui, Advocate For State : Shri Sandeep Dubey, Dy.A.G.

S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Order

1. The petitioner has filed this writ petition with following reliefs:

"10.1. That, the Hon'ble Court may kindly be

pleased to set-aside/quash the impugned order

dated 19.10.2022 (Annexure P-1) issued by

respondents District Programme Officer,

Women & Child Development Department,

Raipur

10.2. That, the Hon'ble Court may kindly be

pleased to set-aside/quash the impugned show

cause notice dated 03.11.2022 (Annexure P-2)

issued by respondents District Programme

Officer, Woman & Child Development

Department, Raipur.

10.3 That, the Hon'ble Court may kindly be

pleased to direct respondents to allow the

petitioner to perform his duties on the post of

District Child Protection Officer,Raipur.

10.4. That, any other relief (s)/direction

(s)/order (s) which the Hon'ble Court deems fit

& proper, may kindly be pleased to granted in

favour of petitioner."

2. Learned counsel for the petitioner submits that petitioner is employed

as District Child Project Officer on contract basis and working since

2015. There was no complaint against the petitioner. Surprisingly, the

petitioner was issued with an order dated 19.10.2022 (Annexure P-

1) wherein it is mentioned that services of the petitioner was not

found satisfactory and therefore his service will come to an end on

31.10.2022. Petitioner submitted representation against order dated

19.10.2022 on 31.10.2022 stating that the ACRs of the petitioner for

last 3 years is of A-Class and further that prior to issuance of order

dated 19.10.2022 (Annexure P-1), no notice was given to him, no

opportunity of hearing was afforded to him and, therefore, order is in

violation of principles of natural justice, respondents are required to

review the order Annexure P-1. Subsequently, a show cause notice

was issued to the petitioner on 3.11.2022 which is under challenge in

this writ petition. He contended that show cause notice is only an

effort made by respondent to give post-decisional hearing,

respondent -authority had made up their mind to remove the

petitioner from service. As show cause notice is issued with pre-

determined mind for removing the petitioner from service, petitioner

has filed this writ petition. In support of his contention, he places

reliance upon judgment of Hon'ble Supreme Court in the cases of

V.C. Banaras Hindu University and Ors. Vs. Shrikant (2006) 11

SCC 42, Siemens Ltd. Vs. State of Maharashtra & Ors. (2006)

12 SCC 33 and Shekhar Ghosh Vs. Union of India and Ors.

(2007) 1 SCC 331.

3. Learned counsel for the State would submit that submission of

learned counsel for the petitioner, that show cause notice issued to

the petitioner is post-decisional hearing is not correct. When the

order Annexure P-1 was served upon the petitioner, he submitted

representation/objection. Considering objection/representation

submitted by the petitioner, the authority had reviewed their order and

services of the petitioner was not terminated pursuant to order dated

19.10.2022 and the petitioner is still continuing in service. Show

cause notice was issued on 03.11.2022 providing him opportunity of

hearing on the allegation mentioned therein. The petitioner has not

submitted reply to show cause notice dated 03.11.2022, no order is

passed against petitioner till date and therefore, this petition is

premature. He also submits that as per decision of Hon'ble Supreme

Court, writ petition against show cause notice ordinarily is not

maintainable unless and until show cause notice is challenged on the

ground of jurisdiction of the authority issuing show cause notice or

issued in violation of any statutory rule governing the field of service

of the employee concerned .

4. At this stage, learned counsel for the petitioner submits that though

specific ground has not been raised in writ petition but as per his

instructions, on the date of issuance of show cause notice dated

03.11.2022, District Programme Officer who issued show cause

notice was not posted. In fact, one Smt. Nisha Mishra after her

transfer has already joined as a District Programme Officer, Woman

and Child development, Raipur on 19.10.2022. Copy of posting order

is placed before this Court for perusal.

5. Learned counsel for the State, controverting the submissions of

learned counsel for the petitioner, submits that as per his instructions,

submission of learned counsel for the petitioner that on the date of

issuance of show cause notice, one Smt. Nisha Mishra is posted is

partly correct. He submits that though Smt. Nisha Mishra joined the

post, she was not handed over the financial and administrative

charge. She was handed over charge only on 11.11.2022 pursuant to

order passed by the Collector. Copy of order dated 11.11.2022 is

placed by counsel for respondent along with covering memo. He

further contended that show cause notice was issued to the petitioner

because of his several negligent act in performing his official duty,

details of which are mentioned in the summary forwarded by the

office dated 21.11.2022.

6. I have heard learned counsel for the parties and perused the records

of the Courts below.

7. During the course of argument, learned counsel for the petitioner has

made submission that as on date, petitioner is working on his post as

contract employee. Show cause notice is dated 03.11.2022, writ

petition is filed on 07.11.2022. On the date of filing of writ petition,

petitioner is still continuing in service. In the aforementioned facts

also, petitioner has sought relief for quashment of order dated

19.10.2022. Perusal of order dated 19.10.2022 (Annexure P-1) would

show that the order has to come into force from 31.10.2022.

Petitioner also placed on record copy of representation submitted

before the respondent authority on 31.10.2022 raising ground of

violation of principles of natural justice and requested for review of

the order dated 19.10.2022 and further made request to set aside the

order and permit him to continue with his work. From perusal of

representation as well as Annexure P-1 and Annexure P-2, it is

apparent that though respondents have issued the order dated

19.10.2022, but considering the representation/objection submitted

by the petitioner, they have not given effect to and permitted the

petitioner to continue with his service. It is also appearing from

submission of learned counsel for the petitioner that petitioner is in

service on the date of filing of the petition.

8. Perusal of Annexure P-2, show cause notice under challenge in this

writ petition, would show that respondents have pleaded in detail

about the shortcomings on the part of petitioner and have given an

opportunity to submit reply to show cause notice, further mentioning

that if the reply is not submitted his service will come to an end on

30.11.2022 on the recommendation to be made by District Level

Selection Committee. The show cause notice is not for removal of

petitioner but for seeking reply on different shortcomings in his work

mentioned in the notice. Show cause notice is dated 03.11.2022.

Petitioner filed writ petition on 07.11.2022. Meaning thereby,

petitioner was having sufficient time to submit reply to show cause

notice, but he did not submit reply and chose to file writ petition.

9. In the aforementioned facts of the case submission of learned

counsel for the petitioner that the show cause notice is only an empty

formality and would be post-decisional hearing is not correct. Under

service jurisprudence, even if an employee against whom full-fledged

departmental enquiry is initiated and ended with major punishment in

a challenge before Court, if Court comes to the conclusion that the

punishment awarded to employee is not sustainable on the ground of

non-following of rules or procedure, order is to be set aside and

appropriate procedure to be adopted by the Courts are to remand

back the case for deciding the case afresh after following the

procedure prescribed under the Law from the stage where procedural

mistake had crept, as observed by Hon'ble Supreme Court in the

case of Managing Director, ECIL, Hyderabad etc. etc. Vs. B.

Karunkar etc. etc. (AIR 1994 SC 1074).

10. Hon'ble Supreme Court in the case of Union of India and Ors. Vs.

Mohd. Ibrahim (2004) 10 SCC 87, State of Punjab and Ors. Vs.

Chander Mohan (2005) 13 SCC 81 and Allahabad Bank & Ors.

Vs. Krishan Narayan Tewari (2017) 2 SCC 308, has taken the

similar view.

11. Respondents after submission of objection/reply to order dated

19.10.2022 have corrected the procedural mistake committed by

them and, therefore, in the opinion of this Court, it cannot be said that

the show cause notice is merely an empty formality and is post-

decisional hearing in the facts of the case. More so when in the case

of at hand, submission made by learned counsel for the petitioner is

that the officer who had issued show cause notice dated 03.11.2022

is no more posted in the place and another officer has already joined

and took over the charge on 11.11.2022. Now, it is the new officer

who has to take administrative decision on show cause notice issued

on 03.11.2022.

12. Judgment relied upon by learned counsel for the petitioner in the

case of Shrikant (supra) is on different facts. In the said case,

University issued several notices to the respondent therein

(employee) which was not replied and the services of employee was

terminated from the back date. Subsequently, Registrar of the

University received a letter dated 31.05.2000 mentioning that due to

peak summer season, air reservation was not available before

19.06.2000 and, therefore, he would report for duty only on

21.6.2000 after returning back from United Kingdom. When the

employee returned back and gave his joining on 21.06.2000, it was

not accepted. The order of termination was challenged before the

High Court and order of termination was set aside. In that facts of the

case considering its earlier decision, Hon'ble Supreme Court

dismissed the appeal. In the aforementioned judgment, Hon'ble

Supreme Court has considered its earlier decision with regard to

compliance of the principle of natural justice.

13. In case of Viveka Nand Sethi Vs. Chairman, J & K Bank Ltd.

(2005) 5 SCC 337, Hon'ble Supreme Court, opined that although

principle of natural justice are required to be complied with, a full

fledged inquiry may not be necessary and held as under:-

"20.......A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view,

amounts to sufficient compliance of the requirements of the principles of natural justice."

14. The another decision relied upon by learned counsel for the

petitioner in case of Siemens Ltd. (supra) will not be applicable to

the facts of the case. In the case at hand, the earlier order of

termination of service of petitioner was issued, which has to come

into force from later date. Petitioner submitted objection raising

ground of principle of natural justice and also for reviewing order.

Objection was considered by respondent authority and they have not

given effect to the earlier order of termination, permitted the petitioner

to continue in service, issued a show cause notice mentioning in

detail the shortcomings towards performance of duty of petitioner. In

the said show cause notice, it is not mentioned that from such and

such date, his services will be terminated but it is only mentioned that

if petitioner fails to submit reply to show cause notice, his services

will be terminated from 30.11.2022 with the recommendation of the

District Selection Committee. In the aforementioned facts, in the

opinion of this Court, it cannot be said that authority who issued show

cause notice is pre-determined to terminate services of the petitioner.

In para-9 of the aforementioned judgment (Siemens Ltd.), Hon'ble

Supreme Court observed that ordinarily writ Court may not exercise

its discretionary jurisdiction in entertaining writ petition questioning

notice to show cause unless the same inter alia appears to have

been without jurisdiction.

15. Hon'ble Supreme Court in the case of Union of India and Anr. Vs.

Kunisetty Satyanarayana (2006) 12 SCC 28, held as under:

"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 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 lies

when some right of any party is infringed. A

mere show-cause notice or charge-sheet does

not infringe the right of any one. 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.