Point of Law : writ petition under Article 226 of the Constitution of India is maintainable and this Court can exercise such jurisdiction in case the writ petition is filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged.

JUDGMENT :

The writ petitioner has instituted the present writ petition under Article 226 of the Constitution of India seeking interalia setting aside of a show cause notice dated 26.05.2022 issued to the petitioner by the respondent no. 2 and also for a direction to the respondent no. 2 not to proceed with any proceeding against the petitioner which, according to the petitioner, is either a second proceeding or a parallel proceeding.

2. The factual matrix involved in the case can be narrated as follows : the petitioner got elected as the Member of the Jorhat Zilla Parishad in the General Panchayat Election held in December, 2018 in terms of the provisions of Section 65 [1][i] of the Assam Panchayat Act, 1994 [‘the Assam Panchayat Act’, for short]. The petitioner was thereafter, elected as the President of the Jorhat Zilla Parishad in terms of the provisions contained in Section 70 of the Assam Panchayat Act.

3. The projected case of the petitioner is that when the petitioner was duly discharging his duties as the President of the Jorhat Zilla Parishad, he was served with a show cause notice dated 02.02.2022 [hereinafter referred to as ‘first show cause notice’, for easy reference] issued under the hand of the respondent no. 3, alleging misconduct in discharge of duties/neglect or incapacity to perform his duties as such President of the Zilla Parishad. A number of allegations have been levelled against the petitioner in the first show cause notice. By the first show cause notice, the petitioner was asked to explain as to why the necessary disciplinary action should not be initiated against the petitioner. In response to the first show cause notice issued by the respondent no. 3, the petitioner submitted a reply on 17.02.2022 traversing and controverting the allegations made in the first show cause notice dated 02.02.2022. The matter rested at that stage without any further action from the respondent no. 2.

3.1. It is on 26.05.2022, the petitioner has been served with another show cause notice [hereinafter referred to as ‘second show cause notice’, for easy reference] from the end of the respondent no. 1 with the same set of allegations.

4. I have heard Mr. D. Baruah, learned counsel for the petitioner; Mr. N.D. Sarma, learned counsel for the Panchayat & Rural Development [P&RD] Department representing the respondent nos. 1 & 2; and Mr. S. Borua, learned Junior Government Advocate, Assam for the respondent no. 3.

5. Mr. Baruah, learned counsel for the petitioner has submitted that the first show cause notice dated 02.02.2022 contained with the same set of allegations as the second show cause notice dated 26.05.2022 and the petitioner had already submitted his reply to the first show cause notice dated 02.02.2022 immediately on 17.02.2022. Thus, the second show cause notice served upon the petitioner without arriving at any final decision in connection with the first show cause notice dated 02.02.2022 is arbitrary, illegal and unjust. In response, the learned counsel for the State respondents have advanced the common submission to the effect that the writ jurisdiction under Article 226 of the Constitution of India being discretionary jurisdiction, is not to be exercised to quash a show cause notice.

6. On perusal of the first show cause notice dated 02.02.2022 and the second show cause notice dated 26.05.2022, it is noticed that though the first show cause notice was issued by the respondent no. 3 on 02.02.2022, there was no reference to any statutory provision under which the respondent no. 3 has been empowered to issue such a show cause notice to a sitting President and a sitting Member of a Zilla Parishad. On perusal of the second show cause notice dated 26.05.2022, it is noticed that the second show cause notice is served substantially with the same set of allegations as like the first show cause notice. But, the second show cause notice dated 26.05.2022 has been shown to be issued under Section 74 [1] of the Assam Panchayat Act.