Himachal Pradesh High Court
Honorary Head Constable No. 578 vs Unknown on 12 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 12th DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE STAYEN VAIDYA
CIVIL WRIT PETITION OA NO. 5994 OF 2020
Between:
SHYAM LAL SON OF (LATE)
SH. PRABHU RAM R/O VILLAGE
SIHAN PO GAGAL TEHSIL BALH
DISTRICT MANDI H.P. PRESENTLY
HONORARY HEAD CONSTABLE NO. 578,
MANDI, DISTRICT MANDI, H.P.
........PETITIONER
(BY SH. ABHISHEK LAKHANPAL, ADVOCATE)
AND
1. STATE OF H.P. THROUGH SECRETARY HOME SHIMLA.
2. DIRECTOR GENERAL OF POLICE SHIMLA, H.P.
3. SUPERINTENDANT OF POLICE MANDI, H.P.
4. ADDITIONAL SUPERINTENDENT OF POLICE MANDI, H.P.
..........RESPONDENTS
(BY SH. ASHOK SHARMA, ADVOCATE GENERAL, WITH
SH. VINOD THAKUR, MR. HIMANSHU MISRA,
MR. SHIV PAL MANHANS, ADDITIONAL ADVOCATE
GENERALS, MR. J.S. GULERIA AND MR. BHUPINDER
THAKUR, DEPUTY ADVOCATE GENERALS,
FOR RESPONDENTS/STATE)
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This petition coming on for orders this day, Hon'ble Mr. Justice Tarlok
Singh Chauhan, delivered the following:
.
ORDER
The instant petition has been filed for grant of following
substantive relief:
"That the impugned order No.23257 dated 29.9.2018
passed by respondent No.3 through Additional S.P.
Mandi, H.P. which is annexed as Annexure A1
whereby the memorandum of the charges/charge
sheet has been issued against the applicant may
kindly be quashed and setaside declaring the same
as illegal, arbitrary, discriminatory and violative of
mandatory provisions of law and enquiry
procedure."
2. The facts need not be discussed in detail lest it causes
prejudise to the case of either of the parties. More particularly, the case of
the petitioner. The long and short of the matter is that the case FIR No.
393 of 2006, dated 17.09.2006 came to be registered against the petitioner
under Sections 409, 420, 467, 468, 120B IPC and Section 13(2) of
Prevention of Corruption Act at Police Station Sadar, District Mandi,
H.P. pursuant to preliminary inquiry conducted by Sh. Sant Ram,
Deputy Superintendent of Police on the basis of internal report. As per
the inquiry report, it was found that an amount of Rs.8,18,691/ has
been misappropriated by way of preparing inflated and fake bills of
claimants. The Enquiry Officer concluded that ASI Ludar Chand, Office
Accountant, Quarter Masters and Police Personnel who received the
.
amount through APRs have misappropriated these amounts.
3. On 29th September, 2018 the Additional Superintendent of
Police, Mandi issued the memo of charge/charge sheet and following
charges have been levelled against the petitioner:
"You remained Assistant to Assistant Accountant in of
IRB Pandoh and in the year 20040506 you have
misused your official position and in connivance with
the other accomplices you have prepared false TA Bills,
APR employees list and cutting over bills. In report u/s
173 Cr.P.C. you have prepared false APR of employees
and verified the money and embezzled a sum of
Rs.477319 in the year 2004, 94372/ in the year 2005,
247000/ in the year 2006 Rs. 2,47,000/ in the year
2006 total amounting to Rs.8,18,691/. In this regard a
FIR no. FIR no.393/2006 dated 17.9.2006 PS SADAR
under section 409, 420, 467, 468, 120B IPC and section
13(2) PC Act has been registered against you. You have
misused your official position and committed
MISCONDUCT."
4. The petitioner has sought quashing of charge sheet mainly
on the ground that the same is result of malafide and has been issued
belatedly after delay of about 12 years.
5. We have heard the learned Advocate General and have gone
through the material placed on record.
.
6. The scope of judicial review to challenge the initiation of
disciplinary proceedings is well settled, we may recaptulate some of the
precedents.
7. Union of India and another vs. Kunisetty
Satyanarayana in (2006) 12 SCC 28, the Hon'ble Supreme Court has
observed as under:
r "It is well settled by a series of decisions of this
Court that ordinarily not writ lies against a charge
sheet or showcause notice vide Executive Engineer,
Bihar State Housing Board v. Ramesh Kumar Singh,
Special Director v. Mohd. Ghulam Ghouse, Ulagappa
v. Divisional Commr., Mysore, State of U.P. v. Brahm
Datt Sharma, etc.
The reason why ordinarily a writ petition should not
be entertained against a mere showcause notice or
chargesheet is that at that stage the writ petition may
be held to be premature. A mere chargesheet 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 showcause 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 showcause notice or
chargesheet 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.
Writ jurisdiction is discretionary jurisdiction and
hence such discretion under Article 226 should not
ordinarily be exercised by quashing a showcause
notice or chargesheet.
No doubt, in some very rare of exceptional cases the
High Court can quash a chargesheet or showcause
notice if it is found to be wholly without jurisdiction
or for some other reason if it is wholly illegal.
However, ordinarily the High Court should not
interfere in such a matter."
8. In Secretary Ministry of Defence and others vs.
Prabhash Chandra Mirdha (2012) 11 SCC 565, the Hon'ble Supreme
Court held as under:
" Ordinarily a writ application does not lie against a
chargesheet showcause notice for the reason that it
does not give rise to any cause of action. It does not
amount to an adverse order which affects the right of
any party unless the same has been issued by a person
having no jurisdiction/competence to do so. A writ
lies when some right of a party is infringed. In fact,
.
chargesheet does not infringe the right of a party. It
is only when a final order imposing the punishment
or otherwise adversely affecting a party is passed, it
may have a grievance and cause of action. Thus, a
chargesheet or showcause notice in disciplinary
proceedings should not ordinarily be quashed by the
Court. (Vide State of U.P. v. Brahm Datt Sharma,
Bihar State Housing Board v. Ramesh Kumar Singh,
Ulagappa v. Commr. Special Director v. Mohd.
Ghulam Ghouse and Union of India v. Kunisetty
Satyanarayana.)
In State of Orissa v. Sangram Keshari Misra (SCC
pp.31516, para 10) this Court held that normally a
chargesheet is not quashed prior to the conducting of
the enquiry on the ground that the factgs stated in the
charge are erroneous for the reason that to determine
correctness or truth of the charge is the function of the
disciplinary authority. (See also Union of India v.
Upendra Singh.)
Thus, the law on the issue can be summarised to the
effect that the chargesheet cannot generally be a
subjectmatter 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 chargesheet 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.
9. In Chairman, Life Insurance Corporation of India and
Others vs. A. Masilamani (2013) 6 SCC 530, the Hon'ble Supreme
Court observed as:
"The court/tribunal should not generally set aside the
departmental enquiry, and quash the charges on the
ground of delay in initiation of disciplinary
proceedings, as such a power of dehors the limits of
judicial review. In the event that the court/tribunal
exercises such power, it exceeds its power of judicial
review at the very threshold. Therefore, a chargesheet
or showcause notice, issued in the course of
disciplinary proceedings, cannot ordinarily be quashed
by the court. The same principle is applicable in
relation to there being a delay in conclusion of
disciplinary proceedings. The facts and circumstances
of the case in question have to be examined taking into
consideration the gravity/magnitude of charges
involved therein. The essence of the matter is that the
.
court must take into consideration all relevant facts
and to balance and weigh the same, so as to determine
if it is in fact in the interest of clean and honest
administration, that the judicial proceedings are
allowed to be terminated only on the ground of delay in
their conclusion (Vide State of U.P. v. Brahm Datt
Sharma, State of M.P. v. Bani Singh , Union of India
v. Ashok Kacker Prohibition & Excise Deptt v. L.
Srinivasan, State of A.P. v. N Radhakishan, M.V.
Bijlani v. Union of India , Union of India v. Kunisetty
Satyanarayana and Ministry of Defence v. Prabhash
Chandra Mirdha.)
10. The principle deducible from the aforesaid decision:
i) Ordinarily writ does not lie against show
cause notice/charge memo;
ii) entertaining writ petition against show
cause notice/charge memo is dehors the limits
of judicial review/exceeds the power of judicial
review at the threshold;
iii) issuance of show cause notice/charge
memo, does not adversely affect/infringe the
rights of the employee; does not amount to an
adverse order;
iv) normally a charge sheet is not quashed
prior to the conducting of the enquiry on the
ground that the facts stated in the charge are
erroneous as determination of correctness or
truth of the charge is the function of the
.
disciplinary authority. It would be premature
to deal with the issues;
v) in only from rare and exceptional cases,
if it is found to be wholly without jurisdiction or
for some other reason, if it is wholly illegal,
court can exercise of judicial review at the
stage of show cause notice/charge memo;
vi) discretion under article 226 should not
ordinarily be exercised to quash charge
sheet/show cause notice.
11. Similar reiteration of law can be found in the judgment
rendered by this Court in CWPOA No.4264 of 2020 titled as Lajender
Singh Pathania vs. State of Himachal Pradesh and others decided
on 14.07.2020 and CWPOA No. 3156 of 2020 titled as Mohan Lal vs.
State of H.P. & Anr. Decided on 05.08.2021 wherein it has been
categorically held that ordinarily the writ petition or even original
application filed against mere show cause notice would not be
maintainable.
12. Adverting to the facts of the present petition, it is noticed
that the case of the petitioner does not fall in any of the exceptions as
observed by the Hon'ble Supreme Court in its various pronouncements
some of which have already been noticed above. Rather the proposition as
put forth by the petitioner to assail the charge sheet on the ground of
delay has been squarely answered by the Hon'ble Supreme Court in
.
M. Masilamani case (supra).
Having said so we find no merit in this writ petition and the
same is accordingly dismissed. The pending application(s), if any, also
stand disposed of. leaving the parties to bear their own costs.
r to (Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
Judge
August 12, 2021
(himani)
