Virender Singh v. The Delhi State Cooperative Bank Ltd.

12. The learned counsel for the petitioner submits that the learned Appellate Court has erred in passing the Impugned Order inasmuch as the application of the respondent under Order VII Rule 11 of the Code had been dismissed by the learned Trial Court vide its order dated 30.09.2020. The said order remained unchallenged by the respondent. The scope of the appeal before the learned Appellate Court was CM(M) No.70 /2021 Page 6 therefore confined only to the ad interim injunction granted by the learned Trail Court in a separate order passed on an application filed by the petitioner under Order XXXIX Rule 1 and 2 of the Code. Placing reliance on the judgment of the Supreme Court in Jawahar Bharti Education Trust & Ors. v. S.Y. Mairappa & Anr., [JT 1988 (1) SC 67], the learned counsel for the petitioner submits that the Supreme Court has deprecated such practice and held that the question of maintainability of the suit should be left to be adjudicated by the learned Trial Court on its own merit.

13. He submits that the reliance placed by the respondent on Order XLI Rule 33 of the Code in support of the Impugned Order, is also illfounded inasmuch as the said provision cannot be used to abrogate the other provisions in the Code with regard to the filing of the appeals, cross objections, etc. He submits that the order passed by the learned Trial Court dismissing the application under Order VII Rule 11 of the Code, not having been challenged by the respondent, the respondent cannot invoke provision of Order XLI Rule 33 of the Code in support of the Impugned Order. In this regard, he places reliance on the judgment of the Patna High Court in Bir Singh v. Budhu Ram & Ors., AIR 1950 Pat 346.

14. The learned counsel for the petitioner submits that even otherwise, the appeal being against an ad interim order of injunction, the provision of Order XLI Rule 33 of the Code would not apply.

15. On merit of the order, he submits that the learned Appellate Court has erred in not appreciating that there is no complete bar on a suit challenging the Show Cause Notice or Inquiry Proceedings. Once CM(M) No.70 /2021 Page 7 it is established that there is no complete bar on the said suit, the suit itself cannot be held to be not maintainable.

16. On the other hand, the learned counsel for the respondent submits that though there was no challenge of the respondent to the order passed dismissing the application under Oder VII Rule 11 of the Code, the learned Appellate Court by its order dated 04.11.2020 had listed the appeal for arguments on the maintainability of the suit. The petitioner had also filed his written submissions on maintainability of the suit before the learned Appellate Court and therefore, the learned Appellate Court was competent to adjudicate on the said issue. Merely because the finding of the learned Appellate Court has gone against the petitioner, the petitioner cannot be heard in challenge to the same.

17. The learned counsel for the respondent submits that the learned Appellate Court is empowered to consider the issue of the maintainability of the suit in terms of Section 107 read with Order XLI Rule 33 of the Code. He further submits that, even otherwise, the present petition would not be maintainable inasmuch as the order dismissing the suit is appealable and therefore, the proper remedy available to the petitioner is in form of an appeal.

18. On merit, the learned counsel for the respondent submits that the learned Appellate Court had rightly concluded that the issuance of Show Cause Notice and/or charge sheet per se does not give rise to any cause of action as it does not amount to adverse order which affects the rights of any party. In support, he places reliance on the following judgments: CM(M) No.70 /2021 Page 8  Paruchuru Thirumala Satyanarayanacharyulu & Anr. v. Vannava Ramalingam & Ors., 1951 SCC OnLine Mad 17;  Syed Wajidullah Hussaini (Died per LR’s 2 to 7) & Ors. v. Yousuf Begum (Died Per Lrs. R-2 and R-3) & Ors., 2017 SCC OnLine Hyd 650;  Chandrama Tewari v. Union of India, 1988 AIR (SC) 117;  Secretary, Min. of Defence v. Prabhash Chandra Mirdha,

 A M Seenuvasan v. The Chief Executive Officer, Tamilnadu Khadi Board, [Judgment dated: 17.05.2017, of the Madras High Court in WA(MD) No.534 of 2017]

19. I have considered the submissions made by the learned counsels for the parties.

20. As is evident from the narration of facts, the respondent had filed an application under Order VII Rule 11 of the Code challenging the maintainability of the suit contending that there was a bar against the same under the Delhi Cooperative Societies Act, 2003. The said application was dismissed by the learned Trial Court vide its order dated 30.09.2020. There is no challenge made to the said order and therefore, the order gained finality. In fact, the learned Appellate Court in its order dated 14.10.2020 records the submission of the learned counsel for the respondent that he would not be leading any arguments against the order passed under Order VII Rule 11 of the Code and will confine his arguments only against the order restraining the respondent from further inquiry. It is correct that in the order dated CM(M) No.70 /2021 Page 9 04.11.2020 the learned Appellate Court had directed listing of the appeal for arguments on the maintainability of the suit itself, however, the same was clearly beyond the scope of the appeal.

21. In Jawahar Bharti Education Trust (supra) the Supreme Court, faced with the similar situation, had passed the following order:

CM(M) No.70 /2021 Page 10

22. Even otherwise, a perusal of the judgments sought to be relied upon by the respondent against the maintainability of the suit, do not support the proposition that a suit challenging the Show Cause Notice or an inquiry is not maintainable under any circumstances or would always be liable to be dismissed as being premature. There is no complete bar on the maintainability of the suit, though, the scope of interference in such a suit by the Court in a disciplinary inquiry or Show Cause Notice is highly limited.

23. In Secretary, Min. of Defence (supra), the Supreme Court had summarized the law to the effect that charge sheet cannot ‘generally’ be a subject matter of challenge. The Supreme Court further observed that a charge sheet can be challenged even on account of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, albeit, the scope of interference of the Court on this ground is highly limited.

24. In Union of India & Anr. v. Kunisetty Satyanarayana, (2006) 12 SCC 28, again the Supreme Court, while emphasising that a mere Show Cause Notice or charge sheet does not infringe the right of an employee, held that in some very rare and exceptional cases, a charge sheet or Show Cause Notice may also be quashed by the High Court.

25. The above judgments clearly show a distinction between the maintainability of a suit challenging the Show Cause Notice as against the scope of interference by the Court in such a suit. While the suit may be maintainable, the scope of interference by the Court is highly limited. It would be for the petitioner to satisfy the learned Trial Court and the learned Appellate Court as to whether the case of the CM(M) No.70 /2021 Page 11 petitioner falls within the ambit of such limited scope of interference. However, the suit could not have been said to be not maintainable by the learned Appellate Court when it was exercising its jurisdiction only against the ad interim order of injunction granted by the learned Trial Court during the pendency of the application under Order XXXIX Rule 1 and 2 of the Code filed by the petitioner.

26. The Impugned Order having been passed by the learned Appellate Court in excess of its jurisdiction, the remedy of the petitioner, therefore, cannot be relegated to a remedy of appeal.

27. In view of the above, the Impugned Order is set aside and the matter is remanded back to the learned Appellate Court by reviving the appeal pending before it, to be adjudicated on merit. The parties shall appear before the learned Appellate Court on 19.04.2021.

28. The petition is allowed. There shall be no order as to costs.

NAVIN CHAWLA, J APRIL 06, 2021/Arya/G/P