Chandan Dubey vs District And Sessions Judge
2021 Latest Caselaw 2138 MP

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           THE HIGH COURT OF MADHYA PRADESH

                        WP No.9791/2021
         (Chandan Dubey vs. District & Sessions Judge, Sagar)

JABALPUR DATED : 07.06.2021

         Shri K.C. Ghildiyal, learned counsel for the petitioner.
         Heard on the question of admission and interim relief.
         By this writ petition, petitioner has challenged the charge-sheet
dated 24.10.2019, the inquiry report dated 22.01.2021 and the show cause
notice dated 16.02.2021.
2.       The petitioner who is Assistant Grade-III was served with an
impugned charge-sheet dated 24.10.2019. The petitioner had filed the
reply and thereafter the regular departmental inquiry had taken place and
the Inquiry Officer has submitted the report dated 22.01.2021 finding that
the charge No.1 was fully proved, however, the charge No.2 was not
proved. The petitioner thereafter has been served with a show cause
notice dated 16.02.2021 alongwith the inquiry report as to why he should
not be punished on the basis of the charge which has been found proved.
3.       Submission of learned counsel for the petitioner is that no
misconduct is made out against the petitioner, therefore, the inquiry
report cannot be sustained. Further submission is that there is no bar of
interference by this Court as the petitioner apprehends that order of
punishment will be passed. In support of his submission, he has placed
reliance upon the judgment of Supreme Court in the matter of Adi Saiva
Sivachariyargal Nala Sangam and others vs. Government of Tamil
Nadu and another reported in 2016 (2) SCC 725. Placing reliance upon
the judgment of the Supreme Court in the matter of Chief of Army Staff
and others vs. Major Dharam Pal Kukrety reported in 1985 (2) SCC
412, he has submitted that the petition against the show cause notice is
maintainable and, in support of his submission that there is no misconduct
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he has placed reliance upon the judgment of the Supreme Court in the
matter of A.L. Kalra vs. Project and Equipment Corporation of India
Ltd. reported in 1984 (3) SCC 316.
4.       Having heard the learned counsel for the petitioner and on the
perusal of the record, it is noticed that on the basis of the impugned
charge-sheet, the petitioner has participated in the departmental enquiry
without raising any objection and now the inquiry officer has submitted
the report finding one of the charge to be proved, therefore, the impugned
show cause notice dated 16.02.2021 has been issued to give an
opportunity of hearing to the petitioner before imposing any punishment.
The petitioner has an opportunity to file response to the show cause
notice and raise all legally permissible plea in the reply. The issues which
the petitioner is raising in this petition can also be raised in the reply
before the competent authority. So far as the judgment of the Supreme
Court in the matter of Adi Saiva Sivachariyargal Nala Sangam and
others(supra) is concerned, that was relating to invoking of ecclesiastical
jurisdiction, hence the said judgment does not furnish any ground to
entertain the present writ petition. So far as the judgment in the matter of
Chief of Army Staff(supra) is concerned, the view taken therein is that if
the show cause notice against proposed termination of service by the
authority was without jurisdiction, it is open to challenge; but, if the
authority concerned had the power in law to issue notice, it would not be
open to the employee to approach the Court under Article 226 of the
Constitution at the stage of notice and in such a case, writ petition can be
said to be premature.     In the present case, the jurisdiction and the
authority who had issued the impugned show cause notice dated
16.02.2021

has not been questioned, therefore, no ground for interference is made out. So far as the submission of counsel for the petitioner placing reliance upon the judgment of the Supreme Court in matter of A.L. Kalra (supra) is concerned, such issue can always be raised by the petitioner in reply to the show cause notice. In these circumstances, we are of the

opinion that no case for entertaining the writ petition at this stage is made out which is accordingly dismissed, however with liberty to the petitioner to file reply to the show cause notice if not already filed.

5. The petition is accordingly dismissed. No costs.

                                    (PRAKASH SHRIVASTAVA)                             (VIRENDER SINGH)
                                          JUDGE                                            JUDGE


YS

Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2021.06.09 13:19:33 +05'30'