C.L Soni, J.:— Following are the prayers made in the present petition filed under Article 226 of the Constitution of India:

“24. On the premise mentioned as above, the petitioner prays that:—

(A) This Hon'ble Court will be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus or prohibition to quash and set aside the impugned show cause notice dated 03.10.2015 issued by the respondent No. 2 - Annexure F;

(B) This Hon'ble Court will be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus or prohibition, declaring the impugned show cause notice dated 03.10.2015 - Annexure-F, as void ab initio and consequently the same may be ordered to be quashed and set aside;

(C) That this Hon'ble Court will be pleased to restrain the respondent no. 2 from continuing with further proceedings to the show cause notice dated 03.10.2015 - Annexure-F, till and pending hearing and final disposal of this petition;

(D) This Hon'ble Court will be pleased to restrain the respondent no. 2 from passing any order on the basis of the impugned show cause notice dated 03.10.2015 - Annexure-F, in any manner, adverse to the petitioner, till and pending hearing and final disposal of this petition.

(E) This Hon'ble Court will be pleased to restrain the respondents, their agents and servants or superiors from prohibiting the petitioner from contesting the ensuing election of the members of the managing committee of the Mehsana District Cooperative Milk Producers Union Limited or any other cooperative society through out the State, in any manner, on the basis and/or premise of the impugned show cause notice dated 03.10.2015 Annexure-F issued by the respondent No. 2, in any manner, till and pending hearing and final disposal of this petition.

(F) Be pleased to pass such other and further orders as may be deemed fit and proper.

2. The case of the petitioner, in brief, is that the respondent No. 2 had issued show cause notice dated 12.1.2015 under section 76B(1) and (2) of the Gujarat Cooperative Societies Act, 1961 (“the Act”) for removal of the petitioner as Chairman of the Mehsana District Cooperative Milk Producers' Union Ltd. (“the Union”) and for disqualification to hold, any office or contest any election in any society for a period of three years. Based on such combined notice, order for removal of the petitioner and for disqualification of the petitioner for three years was passed against the petitioner which was confirmed in the revision application preferred by the petitioner. Such orders were challenged before this Court by preferring Special Civil Application No. 9618 of 2015 and this Court has partly allowed the petition and quashed and set aside the order of disqualification while not disturbing the order for removal of the petitioner as Chairman of the Union. It is the further case of the petitioner that since this Court has interfered with the order of disqualification, respondent No. 2 has issued fresh show cause notice under section 76B(2) of the Act for taking action which is ex-facie without jurisdiction and authority of law and such notice is issued just on account of political rivalry to prevent the petitioner from contesting ensuing election of the Union.

3. Learned Senior Advocate Mr. Naik appearing with learned advocate Mr. Champaneri for the petitioner submitted that this court while quashing the order of disqualification in the earlier petition did not reserve any liberty to the respondent no. 2 to initiate fresh proceedings for disqualification of the petitioner under section 76B(2) of the Act. Mr. Naik submitted that when the order of disqualification was passed with the order of removal of the petitioner, it was based on the show cause notice issued under section 76B(2) of the Act, and this court since found that the action of disqualification taken against the petitioner was not according to law, order of disqualification was quashed and therefore, there is no question of initiation of fresh proceedings on the same allegations and on the same grounds by fresh notice. Mr. Naik submitted that the issue on the legality or otherwise of the order for disqualification under section 76B(2) of the Act was concluded by this Court and, therefore, on the principles of constructive res-judicata and issue estoppal, it is not open to respondent no. 2 to issue fresh show cause notice for the similar action of disqualification which was not approved by this Court. Mr. Naik submitted that since there is no jurisdiction or authority with respondent No. 2 to issue second show cause notice for the very action for which the proceedings were already concluded pursuant to the first show cause notice, this court may issue writ of prohibition in exercise of powers under Article 226 of the Constitution of India permanently restraining respondent No. 2 to proceed with the impugned show cause notice and not to take further action based on the impugned show cause notice.

4. Learned Addl. Advocate General Mr. P.K Jani appearing with the learned A.G.P Mr. Ashar for the respondents submitted that this Court when quashed the order of disqualification in the first round of litigation, did not decide the legality or otherwise of the order of disqualification on merits. Mr. Jani submitted that the order of disqualification was interfered with by this court only on the ground that before passing the order of disqualification, procedure contemplated under the law was not followed. Mr. Jani submitted that when nothing was decided on merits as regards passing of the order of disqualification under section 76B(2) of the Act, it is always open to respondent No. 2 to initiate fresh proceedings for proposed action of disqualification in accordance with law and to follow the procedure of law, impugned show cause notice is issued. Mr. Jani submitted that there is no question of applying the principles of res-judicata or issue of estoppal against the fresh show cause notice as this court had neither declared the earlier order of disqualification as passed without authority of law or on the merits of such order. Mr. Jani submitted that even in absence of liberty reserved, if it is otherwise open under the law to take fresh proceedings to comply with the procedure contemplated under the law, it cannot be said that the respondent no. 2 is estopped or prevented from issuing fresh show cause notice.

5. Having heard the learned advocates for the parties, it appears that when this court decided the challenge made in Special Civil Application No. 9618 of 2015 against the order of removal and disqualification passed under section 76B(1) and (2) of the Act, this Court, on analyzing the provisions of section 76B(2) of the Act in so far as the order of disqualification passed against the petitioner was concerned, found that before making such order, respondent No. 2 was not justified in issuing combined notice for proposed action of removal and of disqualification. In fact, from the perusal of the order passed in the said matter, it appears that specific contention was raised that in the notice issued, except mentioning section 76B(2) of the Act, the petitioner was not called upon to show cause as to why the action of disqualification should not be taken against the petitioner and, therefore, there was no reply given by the petitioner on merits against the proposed action of disqualification.

6. Having regard to the above such and other contentions raised on behalf of the petitioner, this court held in paragraph 26 to 31 of the judgment dated 29th September, 2015 in the said petition, as under:

“26. Thus, what emerges from the provisions of Section 76B of the Act, as interpreted in above-said two decisions, is that there has to be an order of removal of an officer at the first instance and following such order of removal, a decision is to be taken by a separate order for his disqualification. It is only by such reading of provisions of Section 76B, a harmonious meaning could be assigned to the words by order and so removed used therein. For taking such decision by separate order under sub-section (2), element of proportionality has got to be entered in the mind of the Registrar as the Registrar is to decide whether disqualification of officer removed should be restricted to his own society or additionally for any other society and also for period of such disqualification. The words, from the date of the order and such officer shall stand disqualified accordingly, used in sub-section (2) would suggest that disqualification is to commence after separate order is made under sub-section (2) and in proportion to the decision taken for such disqualification. There is one more reason why initiation of action under sub-section (2) for disqualification is required by separate notice and separate order. The notice to be issued for disqualification cannot be a mere formality. When the order of removal is passed under sub-section (1), officer on receipt of the order of removal and the notice proposing disqualification will have an opportunity to represent before the concerned authority either not to pass order of disqualification in the nature of charge considered to be proved against him or for taking lenient view of the matter. Either way, removed officer would have fair opportunities to represent his case against the proposed action of disqualification only after he is made aware about the grounds of his removal and therefore, the legislature appears to have intended to make separate provision for disqualification in sub-section (2) requiring to make separate order. Therefore, if separate order is to be made only after the order of removal is passed, there is no question of issuing any notice proposing disqualification with notice for removal. The Court, therefore, finds that action taken for disqualification of the petitioner runs counter to the provisions of sub-section(2) of Section 76B of the Act.

27. Assuming that the combined notice was permissible, then also, as submitted by Mr. Shelat, whether there was in fact a notice in the eye of law for proposed action of disqualification. The show cause notice at Annexure-A is titled as Show Cause Notice under Section 76(B)(1)(2) of the Act. However, in the language of the notice at Annexure-A, the petitioner was asked only to show cause why he should not be removed from the office of Chairman, and while asking the petitioner to show cause against the proposed action of removal, sub-section (2) is mentioned with sub-section (1) of Section 76B of the Act. The petitioner is thus not asked to show cause as to why he should not be disqualified after his removal from the office of Chairman. Mr. Jani however submitted that the notice since clearly mentioned as issued under Section 76B(1) and (2), the petitioner was put to show cause for both the proposed actions and the petitioner well understood and took such notice for both the proposed actions and therefore, he has given long reply, including the reply not to take proposed action of disqualification. Mr. Jani submitted that his long reply in two parts, i.e first provisional reply and then final reply, would go to suggest that the reply is given under the legal advice and it is not possible to believe that the petitioner had no notice for proposed action of disqualification. To support his contention, Mr. Jani drew the attention of the Court to a judgment dated 7.3.2011 rendered by this Court in Special Civil Application No. 2053 of 2011 with Special Civil Application No. 2055 of 2011, especially para 6(ii), which reads as under:—

6(ii) The authorities cited at the bar on behalf of the State by learned AGP, would have no applicability, so far as the present case is concerned, as this Court while dealing with the very provision of Section 76B(2) in case of Kantilal Chandulal Shah v. G.J Jose (supra), held that when power of disqualification is to be exercised, then the delinquent has to be especially informed and notice is required to be issued. In the instant case, the Court would have been persuaded to accept the submission of learned AGP, had there been, on facts, a case where the petitioners did exercise their right to reply to the notice qua disqualification also, but reading of the entire reply, it appears that there did not make any averments as to why they should not be disqualified. In other words, assuming for the sake of examining the submission that there was sufficient notice to the petitioners, but petitioners have chosen not to respond to the notice qua the aspect of disqualification as they were not called upon to explain and give cause with regard to the likelihood of the power being exercised under Section 76-B(2) of the Act, and therefore, in my view the exercise of disqualifying the petitioners being per-se illegal and contrary to the provision of law, the same cannot be sustained and therefore it is required to be quashed and set aside and accordingly the orders i.e original order dated 04.01.2011, passed by District Registrar, Co-operative Societies, and the Appellate Order dated 28.02.2011, passed by the Additional Registrar (Appeals) in Revision Appeal No. 8/2011 and 9/2011, is hereby quashed and set aside.

28. The case however on consideration of the provisions of Section 76(B(2) would stand somewhat on different footing. This Court when is taking a view that action could be initiated under subsection (2) only after passing the order of removal, issuance of notice prior thereto for proposed action of disqualification would not be permissible and therefore, sending the reply to the show cause notice could be considered only for proposed action of removal. In the above-referred decision, the Court has not addressed such issue. The Court in the said case has also not positively decided that giving of reply would obviate the requirement of a due notice. Therefore, the observations made therein would lend no support to the contention raised by Mr. Jani. Even if such contention is considered in the context of the reply given by the petitioner, it does not appear from the reply, provisional and final, that the petitioner has replied against the proposed action of disqualification as the petitioner has in clear terms stated in the reply that the action and the order under sub-section (1) and sub-section (2) are different and distinct and action under sub-section (2) could be initiated only after the order of removal is passed. It is stated that the impugned notice suffers from misreading of the provisions of Section 76B of the Act. It is further stated in the final reply that the jurisdiction of the Registrar under sub-section (2) is discretionary and therefore, till the order of removal is passed, no proceedings under sub-section (2) could be initiated. It is specifically contended in para 5 of the reply that unless the contingencies on full-fledged inquiry, as contemplated under sub-section (1) take place, the Registrar has got no jurisdiction to initiate action under sub-section (2). Thus, notice under sub-section (2) is opposed in the reply on the ground of lack of jurisdiction etc. of the Registrar. Such could not be said to be a reply on merits against the proposed action of disqualification. In such view of the matter also, the observations made by this Court in the above-referred decision will not support the contention raised by Mr. Jani. The issuance of notice before taking action under sub-section (2) is with purpose to enable the noticee to make fruitful and effective representation against the action proposed.

29. Mr. Jani however submitted that the petitioner availed of full opportunities to resist the action under sub-section (2). However, any notice not specifying the grounds for proposed action is no notice in the eye of law as it would deprive the very valuable right of the noticee to persuade the concerned authority not to take proposed action or to take less drastic action. The noticee could be given an opportunity to effective represent against the proposed action of disqualification only when he is made aware of the grounds with full particulars for which action is proposed in the context of the provisions of Section 76B(1).

30. In the case of Oryx Fisheries Pvt. Ltd. v. Union of India, reported in 2010 (12) JT 35, Honble Supreme Court has observed in para 31 as under:—

31. It is of course true that the show cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing lis clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.

31. In the facts of the case, the Court, therefore, finds that the order disqualifying the petitioner to hold the office or to contest the election in his society and in any other society for the period prescribed in the order is not according to law and therefore, same is required to be quashed and set aside. The petition is therefore, required to be partly allowed.”

7. It is required to note that this Court has not either declared that the order of disqualification passed under section 76B(2) of the Act is without authority of law or that the action of disqualification was not called for in the facts of the case. The Court, therefore, did not examine the merits of the case in so far as the order of disqualification was concerned. In such circumstances, it is always permissible for the concerned authority - respondent No. 2 to take proceedings afresh from the stage of issuing show cause notice. Respondent No. 2 is not prevented from taking such fresh action under section 76B(2) of the Act. Simply because the Court did not reserve liberty to initiate fresh proceedings in accordance with law for the disqualification would not be a ground to urge that the impugned show cause notice is without jurisdiction or barred by the principles of constructive res-judicata or the issue estoppal.

8. In the case of Superintendent (Tech. I) Central Excise, IDD Jabalpur v. Prataprai reported in (1978) 3 SCC 113, the Hon'ble Supreme Court held and observed in paragraph 5 and 7 as under:

5. The only point that was contended before us by Mr. E.C Agrawala appearing in support of the appeal was that the High ‘Court has erred in not properly interpreting the order of the Appellate Collector. According to the learned counsel, a true and plain interpretation. of the order of the Appellate Collector would clearly reveal that he had merely vacated the order of the Assistant Collector because it suffered from a technical infirmity and had not barred the commencement of fresh adjudicatory proceedings. Mr. Naunit Lal appearing for the respondent however submitted that there was no clear direction in the order of the Appellate Collector from which it could be inferred that he had remanded the case, and, therefore, there was no jurisdiction in the Assistant Collector to issue a fresh notice or start adjudicatory proceedings against the respondent. In our opinion, the contention of counsel for-the appellants appears to be sound and must prevail. A perusal of the order of the Appellate Collector extracted above clearly shows two important facts: (1) that the Appellate Collector has not set aside or vacated the order 732 of the Assistant Collector on merits but has vacated it only on a technical infirmity, namely, the violation of the rules of_natural justice and that is why the Appellate Collector has advised used the words “without prejudice” in his order, (2) that the Assistant Collector in his order dated 30 June 1969 had directed confiscation of the watches and imposed a penalty of Rs. 250/- and if the Appellate Collector intended to set aside this order completely and irrevocably then he should have passed a consequential order for refund of the amount of the penalty and release of the property confiscated. The fact that no such order was passed by the Appellate Collector clearly shows that he never intended to bar fresh adjudicatory proceedings provided they were conducted according to the principles of natural justice. It seems to us that whenever an order is struck down as invalid being in violation of the principles of natural justice there is no final decision of the cause and fresh proceedings are left open. AR that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated.

7. In short, therefore, the implication of, he term ‘without, prejudice’ means (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred. It is true that the Appellate Collector does not say in so many words that the case is remanded to the Assistant Collector but the tenor and the spirit of the order clearly shows that what he intended was that fresh proceedings should be started against the respondent after complying with the rules of natural justice. Thus, in our view a true interpretation of the order of the Appellate Collector would be that the order of the Assistant Collector was a nullity having violated the rules of natural justice and having been vacated the parties would be relegated to the position which they occupied before the, order of the Assistant Collector was passed. In this view of the matter the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law.

9. In the case of Union Of India v. Hindalco Industries. reported in (2003) 5 SCC 194, the Hon'ble Supreme Court held and observed in paragraph 12 as under:

“12. There can be no doubt that in matters of taxation, it is inappropriate for the High Court to interfere in exercise of jurisdiction under Article 226 of the Constitution either at the stage of show cause notice or at the stage of assessment, where alternative remedy by way of filing a reply or appeal, as the case may be, is available but these are the limitations imposed by the courts themselves in ‘exercise of their jurisdiction and they are not matters of jurisdictional factors. Had the High Court declined to interfere at the stage of show cause notice, perhaps this court would not have been inclined to entertain the special leave petition; when the High Court did exercise its jurisdiction, entertained the writ petition and decided the issue on merits, we do not think it appropriate to upset the impugned order of the High Court under Article 136 of the Constitution on a technical ground.”

10. Mr. Naik however relied on the decision in the case of Union of India v. Vicco Laboratories reported in (2007) 13 SCC 270 especially para 32 which read as under:

“32. Case of the respondent that the classification of the said products having attained finality pursuant to the decision of this Court, the appellants have no jurisdiction to issue impugned show cause notice on the ground on which it has been issued and it virtually amounts to re-opening of the issue which stands concluded by the decision of this Court, and that therefore it is an abuse of process of law. The High Court after referring to the history of litigation rightly concluded that the matter stood concluded by judgments of this Court and the High Court in respondents' case.”

11. However, above decision shall have no application in the facts of the case as in the said case, the question as regards classification of the products was decided on merits earlier and had attained finality and in that context, the Hon'ble Supreme Court held that the authority had no jurisdiction to issue the show cause notice on the ground on which it had been issued as it amounts to reopening of the issue which stands concluded by the decision of the Court.

12. On the aspect of res-judicata, it is required to note that such principles would have application only when in earlier round of litigation between the same parties, there is a final decision on merits and the decision on the issue shall remain binding to such parties. However, if the action of the authority is found in breach of legal procedure or in breach of the principles of natural justice to be followed, nothing could be said to have been decided on merits concerning the rights of the parties and therefore, it is always open to the concerned authority to initiate fresh action by following legal procedure or the principles of natural justice before taking action under the provisions of concerned Statute. In the present case, since nothing was decided on the merits as regards the order of disqualification, the decisions cited by Mr. Naik in the case of Satyadhyan Ghosal v. Smt. Deorajin Debi, reported in AIR 1960 SC 941, in the case of Gulabehand Chhotalal Parikh v. State of Gujarat reported in AIR 1965 SC 1153, in the case of Daryao v. State of UP reported in AIR 1961 SC 1457 and in the case of Union of India v. Mohd. Ramzankhan reported in (1991) 1 SCC 588 on the question of applying principles of constructive res judicata shall have no application to the facts of the case. In none of the cases, the court was concerned about the question as to whether when the action is held to be bad in law on account of not following legal procedure or the principles of natural justice, fresh action could be initiated or not. What is being done by respondent no. 2 now is to follow the procedure from the initial stage of issuance of the show cause notice for proposed action of disqualification under section 76B(2) of the Act. Such action of issuing fresh show cause notice impugned in the present petition therefore cannot be said tobe either without jurisdiction or without authority of law. In such view of the matter, the petition at the stage of show cause notice cannot be entertained. It is, therefore, rejected.