WP(C)/3812/2022
2022 Latest Caselaw 2066 Gua

                                                                                  Page No. 1/8

GAHC010092362022




                              THE GAUHATI HIGH COURT
 (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
                                    W.P.(C) No. 3812/2022


                        Basabi Kalita Saikia
                        Address -
                        C/O. Lt. Cheniram Kalita
                        Kolakhowa Gaon,
                        Dist. Jorhat, Assam,
                        Pin-785010.

                                                                          .................. Petitioner


                         -Versus-

                       1. The State of Assam
                          Address -
                          Rep. by the Principal Secretary
                          to the Govt. of Assam,
                          Panchayat and Rural Development Deptt.,
                          Dispur, Guwahati-06.
                       2. The Principal Secretary
                          to the Govt. of Assam,
                          Panchayat and Rural Development Deptt.,
                          Dispur, Guwahati-06.
                       3. The Deputy Commissioner,
                          Jorhat, Assam.

                                                                      .................. Respondents

Advocates :

          Petitioner                          : Mr. D. Baruah, Advocate
                                                                                       Page No. 2/8

             Respondent nos. 1 & 2               : Mr. N.D. Sarma, Advocate
             Respondent no. 3                    : Mr. S. Borua,
                                                  Junior Government Advocate, Assam
             Date of Hearing, Judgment & Order   : 10.06.2022




                             BEFORE
              HON'BLE MR. JUSTICE MANISH CHOUDHURY
                                     JUDGMENT & ORDER

The writ petitioner has instituted the present writ petition under Article 226 of the Constitution of India seeking inter alia setting aside of a show cause notice dated 26.05.2022 issued to the petitioner by the respondent no. 2 and also for a direction to the respondent no. 2 not to proceed with any proceeding against the petitioner which, according to the petitioner, is either a second proceeding or a parallel proceeding.

2. The factual matrix involved in the case can be narrated as follows : the petitioner got elected as a Member of the Jorhat Zilla Parishad in the General Panchayat Election held in December, 2018 in terms of the provisions of Section 65 [1][i] of the Assam Panchayat Act, 1994 ['the Assam Panchayat Act', for short]. The petitioner was thereafter, elected as the Vice-President of the Jorhat Zilla Parishad in terms of the provisions contained in Section 70 of the Assam Panchayat Act.

3. The projected case of the petitioner is that when the petitioner was duly discharging her duties as the Vice-President of the Jorhat Zilla Parishad, she was served with a show cause notice dated 02.02.2022 [hereinafter referred to as 'first show cause notice', for easy reference] issued under the hand of the respondent no. 3, alleging misconduct in discharge of duties/neglect or incapacity to perform her duties as such Vice-President of the Zilla Parishad. A number of allegations have been levelled against the petitioner in the first show cause notice. By the first show cause notice, the petitioner was asked to explain as to why the necessary disciplinary action should not be initiated against the petitioner. In response to the first show cause notice issued by the respondent no. 3, the petitioner submitted a reply on Page No. 3/8

17.02.2022 traversing and controverting the allegations made in the first show cause notice dated 02.02.2022. The matter rested at that stage without any further action from the respondent no. 2.

3.1. It is on 26.05.2022, the petitioner has been served with another show cause notice [hereinafter referred to as 'second show cause notice', for easy reference] from the end of the respondent no. 1 with the same set of allegations.

4. I have heard Mr. D. Baruah, learned counsel for the petitioner; Mr. N.D. Sarma, learned counsel for the Panchayat & Rural Development [P&RD] Department representing the respondent nos. 1 & 2; and Mr. S. Borua, learned Junior Government Advocate, Assam for the respondent no. 3.

5. Mr. Baruah, learned counsel for the petitioner has submitted that the first show cause notice dated 02.02.2022 contained with the same set of allegations as the second show cause notice dated 26.05.2022 and the petitioner had already submitted her reply to the first show cause notice dated 02.02.2022 immediately on 17.02.2022. Thus, the second show cause notice served upon the petitioner without arriving at any final decision in connection with the first show cause notice dated 02.02.2022 is arbitrary, illegal and unjust. In response, the learned counsel for the State respondents have advanced the common submission to the effect that the writ jurisdiction under Article 226 of the Constitution of India being discretionary jurisdiction, is not to be exercised to quash a show cause notice.

6. On perusal of the first show cause notice dated 02.02.2022 and the second show cause notice dated 26.05.2022, it is noticed that though the first show cause notice was issued by the respondent no. 3 on 02.02.2022, there was no reference to any statutory provision under which the respondent no. 3 has been empowered to issue such a show cause notice to a sitting Vice-President and Member of a Zilla Parishad. On perusal of the second show cause notice dated 26.05.2022, it is noticed that the said show cause notice is served substantially with the same set of allegations as like the first show cause notice. But, the second show cause notice dated 26.05.2022 has been shown to be issued under Section 74 Page No. 4/8

[1] of the Assam Panchayat Act. By the second show cause notice, the petitioner has been asked to submit her written statement in defence within 10 [ten] days from the date of receipt of the second show cause notice.

7. It is not in dispute that the petitioner got directly elected as a Member of the Jorhat Zilla Parishad in terms of the provisions contained in Section 65 [1][i] of the Assam Panchayat Act. After her election as a Member of the Zilla Parishad, the petitioner also got elected as the Vice-President of the said Zilla Parishad as per the provisions of Section 70 of the Assam Panchayat Act.

8. Section 74 of the Assam Panchayat Act contains the provision relating to removal of the President and the Vice-President of a Zilla Parishad. As per the sub-section [1] of Section 74 of the Assam Panchayat Act, a President or a Vice-President or a Member of a Zilla Parishad may be removed from office by the State Government for misconduct in the discharge of his/her duties or neglect or incapacity to perform his/her duties or for being persistently remiss in the discharge of or guilty of any disgraceful conduct. Once so removed, a President, a Vice-President or a Member shall not be eligible during the remaining term of office to be elected either as a President, a Vice-President or a Member of such Zilla Parishad. The proviso to sub-section [1] of Section 74 has provided that no such President, Vice- President or Member of a Zilla Parishad shall be removed from the office unless he or she is given reasonable opportunity to furnish explanation to the State Government. As per sub- section [2] of Section 74, a President or a Vice-President removed from his/her office under sub-section [1] may also be removed from the membership of the Zilla Parishad after an opportunity is afforded for hearing him/her.

9. From a combined reading of both the notices, that is, the first show cause notice dated 02.02.2022 issued by the respondent no. 3 and the second show cause notice dated 26.05.2022 issued by the respondent no. 1, it is not discernible from the first show cause notice as to how the jurisdictional Deputy Commissioner has got the authority and jurisdiction to initiate disciplinary action against a sitting Vice-President and a sitting Member of a Zilla Parishad. The first show cause notice is silent about the statutory provision in reference to Page No. 5/8

which the first show cause notice was issued by the jurisdictional Deputy Commissioner on 02.02.2022 asking the petitioner to explain within a period of 7 [seven] working days from the date of receipt of the first show cause notice as to why necessary disciplinary action should not be initiated against the petitioner. The learned Departmental Counsel has also failed to refer to any statutory provision vesting authority and jurisdiction in the jurisdictional Deputy Commissioner to initiate any disciplinary action against a sitting Vice-President and a sitting Member of a Zilla Parishad. It is a settled position of law that no authority can confer jurisdiction or authority or competence upon himself by misconstruing a statutory provision. An authority cannot claim to exercise jurisdiction by construing a statutory provision erroneously. If by erroneously construing a statutory provision, an authority assumes that it has the necessary authority and jurisdiction as a disciplinary authority then it would be a clear case of absence of jurisdiction apparent on the face of the record. Thus, with the inability on the part of the learned Departmental Counsel to refer to any statutory provision vesting the jurisdictional Deputy Commissioner the authority and jurisdiction to take any disciplinary action like removal of a sitting Vice-President and a sitting Member of a Zilla Parishad or to any enabling provision whereby such authority and jurisdiction can be delegated to the jurisdiction can be delegated to the jurisdictional Deputy Commissioner, the first show cause notice issued by the respondent no. 3 is prima-facie suggestive of lack of authority and jurisdiction on the part of the respondent no. 3 to take any disciplinary action like removal under the provision of Assam Panchayat Act. In such situation, the first show cause notice could at best be issued by the jurisdictional Deputy Commissioner for the purpose of any fact finding enquiry. Be that as it may.

10. Unlike the first show cause notice dated 02.02.2022, the situation is not so in respect of the second show cause notice dated 26.05.2022 as the same has been issued by the Principal Secretary to the Government of Assam, Panchayat & Rural Development [P&RD] Department. Under Section 74 [1] of the Assam Panchayat Act and under Section 74 of the Assam Panchayat Act, it is the State Government which has been vested with the authority and jurisdiction to take any disciplinary action like removal of a President, Vice-President or a Member of a Zilla Parishad.

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11. It is a settled position of law that ordinarily no writ lies against a charge-sheet or a show cause notice. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or a charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or a 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 authority and 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. 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 [Ref : Union of India and another vs. Kunisetty Satyanarayana, [2006] 12 SCC 28 ].

12. What is noticeable is that the petitioner has not assailed the authority and jurisdiction on the part of the respondent no. 2, that is, the Principal Secretary to the Government of Assam, Panchayat & Rural Development Department to initiate a disciplinary proceeding and to take any disciplinary action against a sitting Vice-President and a Member of a Zilla Parishad, like the petitioner in the case in hand. There is no denial that a writ petition under Article 226 of the Constitution of India is maintainable and this Court can exercise such jurisdiction in case the writ petition is filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. If the validity of the show cause notice is questionable on the premise that the authority issuing it has no jurisdiction to issue the same, the petitioner could have maintained the writ petition challenging the second show cause notice dated 26.05.2022 on that ground. Such is not the case here. In the absence of any such challenge, this Court cannot be oblivious of the fact that a number of allegations have been brought in against the petitioner in the second show cause notice.

13. By the issuance of the second show cause notice, the noticee i.e. the petitioner has been asked to submit respond to the proposed action. The event of issuance of a show cause Page No. 7/8

notice is a step towards taking a final decision in the matter by the competent authority in the State Government. A tentative view, if any, taken in the process cannot be deemed to be the final view taken in the matter. Whether the allegations brought in by the second show cause notice have any material basis or not is left best to the disciplinary authority as the final view will depend upon the grounds taken and materials received in response to the show cause notice from the noticee i.e. the petitioner and if the noticee i.e. the petitioner is able to show sufficient cause as to why no action contemplated under the impugned second show cause notice should be taken the final view may altogether be different. Thus, this Court does not find any justification to exercise the jurisdiction under Article 226 of the Constitution of India at this stage because it is only against the final decision, not against a tentative view, the power of judicial review is exercisable. For the very same reason, this Court does not want to make any comment or express any opinion on the merits of the second show cause notice.

14. In the light of the above discussion and in the obtaining fact situation, the best course would be to permit the petitioner to submit his reply to the impugned second show cause notice dated 26.05.2022 by traversing and controverting all the allegations brought therein. At this stage, Mr. Baruah, learned counsel for the petitioner has submitted that in view of filling of the present writ petition assailing the second show cause notice dated 26.05.2022, the petitioner has not filed any reply to the second show cause notice dated 26.05.2022 till date. But if given an opportunity, the petitioner will submit a proper and effective reply to the second show cause notice dated 26.05.2022. Having taken note of the said submission of the learned counsel for the petitioner, this Court is of the considered view that the petitioner should be given an opportunity to file a reply to the show cause notice dated 26.05.2022 within a period of 15 [fifteen] days from the date of passing of this order. It is accordingly ordered. It is expected that on receipt of such reply of the second show cause notice the competent authority will carefully consider the reply and pass a reasoned order on the subject within a reasonable period of time, by affording a personal hearing, if sought for by the noticee i.e. the petitioner. If the order so passed is not acceptable by the petitioner, the petitioner will be at liberty to take recourse to appropriate remedy as permitted under the law.

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15. It is further observed that the respondent authorities in the Panchayat & Rural Development [P&RD] Department shall not take any coercive action against the petitioner with regard to discharge of his duties as the President/Vice-President/Member of the Zilla Parishad till the date of receipt of the reply to the show cause notice dated 26.05.2022 within the time period, as has been allowed hereinabove, from the petitioner. The learned Departmental Counsel shall inform the concerned authority in the State Government accordingly.

16. This order disposes of this writ petition. No cost.

JUDGE

Comparing Assistant