LAJENDER SINGH PATHANIA Vs. STATE OF HIMACHAL PRADESH
HIGH COURT OF HIMACHAL PRADESH
Lajender Singh Pathania
STATE OF HIMACHAL PRADESH
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TARLOK SINGH CHAUHAN,J. -
(1.)It is really shocking to see the manner in which the instant petition has been filed and how thereafter the Tribunal proceeded to stay the impugned show cause notice.
(2.)It is by now settled that ordinarily a writ petition or even an original application filed against mere show cause notice would not be maintainable.
(3.)Reference in this regard can conveniently be made to the judgment of Hon'ble Supreme Court in Special Director and another Versus Mohd. Ghulam Ghouse and another, (2004) 3 SCC 440, wherein in paragraphs 5 and 6, it was held as under :-
"5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.
6. In the instant case, the High Court has not indicated any reason while giving interim protection. Though, while passing interim orders, it is not necessary to elaborately deal with the merits, it is certainly desirable and proper for the High Court to indicate the reasons which have weighed with it in granting such an extraordinary relief in the form of an interim protection. This, admittedly, has not been done in the case at hand."
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