Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of order: 1 September, 2023
+ W.P.(C) 11609/2023
MANISH KUMAR ..... Petitioner
Through: Mr. Vivek Sharma, Advocate
(Through VC)
versus
OFFICE OF PRINCIPAL DISTRICT AND SESSIONS JUDGE,
HQS AND ANR. ..... Respondents
Through: Ms. Laavanya Kaushik, Mrs.
Taniya Ahlawat, Mr. Nitesh Kumar
Singh, Ms. Aliza Alam and Mr.
Mohnish Sehrawat, Advocates for
Mrs. Avnish Ahlawat, SC
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The instant petition under Article 226 of the Constitution of India
has been filed on behalf of the petitioner seeking the following reliefs:
“(a) To pass an order thereby quashing the Show Cause
Notice dated 01.08.2023 issued by the Office of the
Respondent No. 02;
(b) To pass an order or direction to Respondents to transfer
the petitioner to a lighter seat in any Branch at
Karkardooma Courts to his mental/psychological condition;
(c) To pass any other Order or further orders this Hon’ble
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By:GAURAV SHARMA
Signing Date:20.09.2023
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Court deems fit on the basis of the above-mentioned facts
and circumstances of the case.”
2. The factual matrix is recapitulated herein below:
a) The petitioner was employed in the office of respondent no. 1 as a
stenographer in the year of 2009. From June 2014 onwards, the
petitioner has been suffering from psychological disorders such as
insomnia, headache, depression, etc.
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b) The petitioner vide letter dated 04 July 2023 sent an application
along his medical records sent to respondent no.1, Principal
Districts and Session Judge, HQs, Tis Hazari Court seeking transfer
to a position with relatively lesser work load than the present post
of the petitioner.
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c) On 10 July 2023, the petitioner sent another letter to respondent
no. 2, Principal Districts and Session Judge, HQs Karkardooma
Courts intimating regarding his medical condition.
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d) The petitioner vide an email dated 11 July 2023, informed the
respondent no. 2 about his medical leave due to mental health
issues.
e) The Administrator office of respondent no.2 replied to the letter
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dated 4 July 2023 on 13 July 2023 stating that petitioner’s
request was forwarded to the office of respondent no. 2,
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f) The petitioner in continuation of letter dated 10 July 2023 made
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another request vide letter dated 24 July 2023 for granting relief
regarding transfer to a position with relatively less work than the
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present post of the petitioner.
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g) The respondent no. 2 issued a Show-Cause Notice dated 01
August 2023 to the petitioner for taking leave with no prior
approval or intimation to the office.
h) Aggrieved by the said show-cause notice, the petitioner has filed
the instant petition.
3. Learned counsel appearing on behalf of the petitioner submitted
that the mental condition of the petitioner deteriorated to an extent where
his medications failed to prevent his seizures from occurring in varied
patterns leading to extreme and sudden mood swings, and heightened
delusions.
4. It is further submitted that despite the treatment received under the
consultation of several qualified psychiatrists, the psychological condition
of the petitioner continued to deteriorate and he was diagnosed with
Bipolar Disorder, Anxiety Disorder, and Depression eventually leading to
aggravated suicidal tendencies.
5. It is contended that it was only when the petitioner’s mental health
worsened, he intimated about his medical condition to respondent and
requested for a transfer to a post which has relatively less work than the
present post of the petitioner in the Karkardooma Courts.
6. It is further contended that the actions of the respondents taken
against the petitioner is violative of the petitioner’s right to life and
livelihood under Article 21 of the Constitution of India by not considering
his medical condition.
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7. It is submitted that the Show Cause Notice issued by the
respondent no. 2 is violative of Section 47 of the Persons with Disabilities
(Equal Opportunities Protection of Rights and Full Participation) Act,
1995.
8. It is further contended that as per the said proviso, no establishment
shall dispense with or reduce the rank of a person who acquired disability
during his service. Therefore, the petitioner is entitled for transfer to a job
with less intensive work due to his mental disability.
9. It is contended that the stressful working environment for the
petitioner is resulting in further degradation of his psychological
condition and posing a risk to his health and life.
10. In view of the foregoing submissions, the counsel for the petitioner
prayed that the petition may be allowed, and the reliefs as claimed by the
petitioner may be granted by this Court.
11. Per Contra , the learned counsel appearing on behalf of the
respondents vehemently opposed the present writ petition submitting to
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the effect that the impugned show cause notice dated 1 August, 2023 has
been issued by the competent authority on and does not suffer from any
illegality as the same has been issued in compliance with the statutory
rules and principles of natural justice.
12. It is further submitted that the said show cause notice has been
issued to the petitioner on the ground that the petitioner has not been
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attending the Court on regular basis w.e.f. 3 July 2023, onwards and is
on leave without any intimation or submitting leave application in that
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regard .
13. It is contended that respondent have given an opportunity to the
petitioner by way of issuing show-cause notice an opportunity to the
petitioner to elucidate the reasons for not initiating disciplinary
proceedings against him.
14. It is submitted that the petitioner may file his reply to the said show
cause notice issued by respondent no. 2, which will be accordingly
consideredin adjudication of the issue at hand.
15. Hence, in view of the foregoing submissions, the respondent seeks
that this Court may dismiss the writ petition thereby, upholding the
impugned orders.
16. Heard learned counsels for the parties and perused the material on
record including the pleadings, the various documents including the
impugned show-cause notice and judicial precedents cited.
17. Keeping in view the arguments advanced by the parties, the
following issue has been framed for adjudication by this Court:
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‘ Whether this Court may quash the impugned order dated 1
August 2023 passed by the office of respondent no. 2? ’
18. To consider this issue, it is imperative to reiterate the impugned
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show-cause notice dated 1 August 2023 issued by respondent no. 2 as
follows:
“Whereas, it has been reported by your Presiding Officer that
you have not attended the court on regular basis w.e.f
03.07.2023 to till date and remains on leave without
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intimation, as well as proceed to leave without furnishing any
kind of leave application.
It has been further reported that you takes leave frequently
citing health reason.
You are therefore, asked to show cause as to why disciplinary
action be not initiated against you for your gross misconduct
and absenting from duty without intimation.
You are further directed to submit your written explanation
within three days on receipt of this notice.”
19. Before delving into merits, this Court will examine the principle
governing quashing of show-cause notice under Article 226 of the
Constitution of India.
20. A show-cause notice does not give rise to any cause of action since
there is no such violation of the rights of the party unless the same has
been issued by an authority/person who does not have the jurisdiction.
There is a likelihood that after considering a reply to the show cause
notice issued by a competent authority or holding an inquiry, the authority
may hold that the charges are not proved against the party.
21. Under Article 226 of the Constitution of India, the Court can take
any action against the authority when there is a violation of rights. In the
case of a show-cause notice, there is no such infringement of the right of
the party unless in circumstances where the grievance is caused to the
party, such as a show-cause notice imposing any punishment on the party
or adversely affecting a party.
22. Hence, Writ jurisdiction is a discretionary jurisdiction, and such
discretion under Article 226 should not ordinarily be exercised by
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quashing a show-cause notice. In some very rare and exceptional cases,
the High Court can quash show-cause 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.
23. The Hon’ble Supreme Court in a catena of judgments has ruled that
writ petitions are not entertainable against show-cause notices and only
exceptionally the Courts intervene at the stage of show-cause notice. The
Hon’ble Supreme Court in the judgment of Divisional Forest Officer v.
M. Ramalinga Reddy , (2007) 9 SCC 286 as follows:
“12 . It is also not a case where an order has been passed
without application of mind. It is also not a case where the
appellant had made up its mind and the notice had been issued
only by way of a formality. (See Siemens Ltd. v. State of
Maharashtra [(2006) 12 SCC 33 : (2006) 13 Scale 297] .) The
Tribunal, as noticed hereinbefore, directed the respondent to
show his cause. Ordinarily, no writ petition would be
maintainable at that stage.”
24. The principle governing show-cause notice was enunciated further
by the Supreme Court in the judgment of Ministry of Defence v.
Prabhash Chandra Mirdha , (2012) 11 SCC 565 as follows:
“8. The law does not permit quashing of charge-sheet in a
routine manner. In case the delinquent employee has any
grievance in respect of the charge-sheet he must raise the issue
by filing a representation and wait for the decision of the
disciplinary authority thereon. In case the charge-sheet is
challenged before a court/tribunal on the ground of delay in
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initiation of disciplinary proceedings or delay in concluding the
proceedings, the court/tribunal may quash the charge-sheet
after considering the gravity of the charge and all relevant
factors involved in the case weighing all the facts both for and
against the delinquent employee and must reach the conclusion
which is just and proper in the circumstance. (Vide State of
M.P. v. Bani Singh [1990 Supp SCC 738 : 1991 SCC (L&S) 638
: (1991) 16 ATC 514] , State of Punjab v. Chaman Lal
Goyal [(1995) 2 SCC 570 : 1995 SCC (L&S) 541 : (1995) 29
ATC 546] , Registrar, Coop. Societies v. Sachindra Nath
Pandey [(1995) 3 SCC 134 : 1995 SCC (L&S) 648 : (1995) 29
ATC 538] , Union of India v. Ashok Kacker [1995 Supp (1) SCC
180 : 1995 SCC (L&S) 374 : (1995) 29 ATC 145] , Prohibition
& Excise Deptt. v. L. Srinivasan [(1996) 3 SCC 157 : 1996 SCC
(L&S) 686 : (1996) 33 ATC 745] , State of A.P. v. N.
Radhakishan [(1998) 4 SCC 154 : 1998 SCC (L&S) 1044 : AIR
1998 SC 1833] , Food Corporation of India v. V.P.
Bhatia [(1998) 9 SCC 131 : 1998 SCC (L&S) 466] , Supt. of
Police v. T. Natarajan [1999 SCC (L&S) 646] , M.V.
Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S)
919 : AIR 2006 SC 3475] , P.D. Agrawal v. SBI [(2006) 8 SCC
776 : (2007) 1 SCC (L&S) 43] and Govt. of A.P. v. V. Appala
Swamy [(2007) 14 SCC 49 : (2009) 1 SCC (L&S) 440] .)
9. In Forest Deptt. v. Abdur Rasul Chowdhury [(2009) 7 SCC
305 : (2009) 2 SCC (L&S) 327] (SCC p. 310, para 16) this
Court dealt with the issue and observed that delay in
concluding the domestic enquiry is not always fatal. It depends
upon the facts and circumstances of each case. The unexplained
protracted delay on the part of the employer may be one of the
circumstances in not permitting the employer to continue with
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the disciplinary proceedings. At the same time, if the delay is
explained satisfactorily then the proceedings should not (sic) be
permitted to continue.
10. Ordinarily a writ application does not lie against a charge-
sheet or show-cause 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, charge-sheet 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 charge-sheet or show-cause notice
in disciplinary proceedings should not ordinarily be quashed by
the court. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2
SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , Bihar State
Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327]
, Ulagappa v. Commr. [(2001) 10 SCC 639 : AIR 2000 SC 3603
(2)] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC
440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] and Union of
India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2007) 2
SCC (L&S) 304] .)
11. In State of Orissa v. Sangram Keshari Misra [(2010) 13
SCC 311 : (2011) 1 SCC (L&S) 380] (SCC pp. 315-16, para 10)
this Court held that 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 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
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Singh [(1994) 3 SCC 357 : 1994 SCC (L&S) 768 : (1994) 27
ATC 200] .)
12. Thus, the law on the issue can be summarised to the effect
that the charge-sheet cannot generally be a subject-matter 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
charge-sheet 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.”
25. Recently, the Hon’ble Supreme Court reiterated the said principle
in the judgment of CCE v. Krishna Wax (P) Ltd. , (2020) 12 SCC 572
and held as follows:
14. It has been laid down by this Court that the excise law is a
complete code in itself and it would normally not be
appropriate for a writ court to entertain a petition under Article
226 of the Constitution and that the person concerned must first
raise all the objections before the authority who had issued a
show-cause notice and the redressal in terms of the existing
provisions of the law could be taken resort to if an adverse
order was passed against such person. For example in Union of
India v. Guwahati Carbon Ltd. [Union of India v. Guwahati
Carbon Ltd., (2012) 11 SCC 651] , it was concluded; “The
Excise Law is a complete code in order to seek redress in excise
matters and hence may not be appropriate for the writ court to
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entertain a petition under Article 226 of the Constitution”,
while in Malladi Drugs & Pharma Ltd. v. Union of
India [Malladi Drugs & Pharma Ltd. v. Union of India, (2020)
12 SCC 808] , it was observed:
“… The High Court, has, by the impugned judgment
held that the appellant should first raise all the
objections before the Authority who have issued the
show-cause notice and in case any adverse order is
passed against the appellant, then liberty has been
granted to approach the High Court …
… in our view, the High Court was absolutely right in
dismissing the writ petition against a mere show-cause
notice.”
15. It is thus well settled that writ petition should normally not
be entertained against mere issuance of show-cause notice. In
the present case no show-cause notice was even issued when the
High Court had initially entertained the petition and directed
the Department to prima facie consider whether there was
material to proceed with the matter.”
26. It is the case of the petitioner that respondent No.2, Principal
Districts and Session Judge, HQs Karkardooma Courts issued a show
cause notice to explain the reasons why the petitioner has not been
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attending the Court on regular basis w.e.f. 03 July 2023 onwards and is
on leave without any intimation or submitting leave application in that
regard and why the respondent no. 2 shall not initiate disciplinary
proceedings on the said grounds.
27. The petitioner has by filing the present petition has tried to put the
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cart before the horse i.e., the present petition has been filed at a premature
stage. This Court observes that the present petition is based on the
presupposition that respondent no. 2 will take an adverse action against
the petitioner.
28. This Court is of the view that there is no such illegality in the
impugned show cause notice which warrants interference of this Court.
The show-cause notice is issued by the competent authority on the valid
ground that the petitioner has not been attending Court regularly and has
been taking frequent leaves.
29. In view of the discussion in the foregoing paragraphs, I do not find
any merit in the instant petition and therefore, the instant petition is liable
to be dismissed.
30. Accordingly, the instant petition stands dismissed.
31. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
SEPTEMBER 1, 2023
gs/db/av
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By:GAURAV SHARMA
Signing Date:20.09.2023
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