2018 (2) TMI 2154 - HC - Indian Laws

Preliminary challenge to a show cause notice is not maintainable before reply; recipient must respond for merits determination.

Writ challenge to a show cause notice prior to the recipient replying is premature; courts should not quash or interfere with issuance-stage notices ... Show cause notice - interference with show cause notice - principles of natural justice - jurisdiction to issue show cause - preliminary or tentative nature of administrative action - arbitrariness in shortlisting - HELD THAT:- There is no allegation that the notice has been issued without jurisdiction or that the Authority competent to issue notice could not have issued such a notice. In fact, the notice has been issued in terms of the liberty granted by this Court in its order passed on 10.11.2014 in Rakesh Gurjar and others vs. State of M.P. and others [2014 (11) TMI 1303 - MADHYA PRADESH HIGH COURT] This Court has set aside the candidature of 34 candidates including the petitioners were found to have indulged in use of unfair means as the order of cancellation of the result passed on 26.05.2014 was not preceded by any show cause notice. It is well settled that any adverse order could be passed only after complying with the principles of natural justice. Therefore, this Court directed the Board to issue show cause notice. Such show cause notice now issued, has to be read in continuation of the earlier order of cancellation of candidature passed on 26.05.2014 that the petitioners have used different pens for answering the multiple choice questions. It is for the petitioners to submit reply as they may consider appropriate to enable the competent Authority to take a decision but we do not find that the petitioners can be permitted to challenge the show cause notice in writ petition without submitting the reply. The fact that action has been taken only against 34 candidates shows that the Board is not acting arbitrarily but must be on positive evidence against such candidates. Therefore, we do not find that there is any arbitrariness in shortlisting of 34 candidates. Another argument of the learned counsel for the petitioners that the department has already held the petitioners guilty of use of unfair means is again not tenable. Para-3 of the show cause notice has to be read in its entirety, which is to the effect that as per the facts on record the petitioners are guilty of use of unfair means; therefore, examination result can be cancelled. Therefore, the decision that the petitioners have been found guilty of use of unfair means is a tentative decision, which may result into cancellation of result. Thus, it is not a decision to cancel the candidature but only to elucidate response from the petitioners to enable the competent Authority to take a final decision as to whether admission of the petitioners is liable to be cancelled or not. We do not find any merit in the present writ petition and consequently, the same is dismissed. Issues: Whether a writ petition challenging the legality of a show cause notice may be entertained before the recipient has replied to the notice, and whether the show cause notice issued in continuation of the Court's prior order is liable to be quashed as arbitrary or preclusive of a fair hearing.Analysis: The legal framework applied includes the settled principle that courts should ordinarily refrain from quashing or interfering with show cause notices at the stage of their issuance and should require the recipient to respond unless the notice is issued without jurisdiction or is palpably without authority. Authorities establish that entertaining writ petitions against show cause notices can retard investigative or disciplinary processes and that issues as to the legal basis of the notice and jurisdictional defects can be raised before and adjudicated by the authority issuing the notice after hearing the recipient. The impugned notice was issued pursuant to the liberty granted by this Court to the examining authority to conduct an independent enquiry and to afford an opportunity of hearing; it records a tentative view based on material received and invites explanation prior to any final adverse order. The shortlisting of a limited number of candidates on the basis of positive evidence does not, by itself, demonstrate arbitrariness.Conclusion: The writ petition challenging the show cause notice without first submitting a reply is not maintainable; the petition is dismissed and the petitioners must respond to the show cause notice to enable the competent authority to consider and decide the matter on merits.