Chattisgarh High Court
Damodar Bhandari vs State Of Chhattisgarh on 13 July, 2023
Author: P. Sam Koshy
Bench: P. Sam Koshy
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 3986 of 2023
Smt. Nilendri Thakur W/o Shri Lokendra Thakur, Aged About 36 Years
Post Peon, Last Posting Was At Govt. Girls H.S. School Bastar, Block
Bastar, R/o Guchchaguda, Kudalgaon, Kachnar, District Bastar,
Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of School
Education, Ministry, Mahanadi Bhawan, Atal Nagar, New Raipur,
District : Raipur, Chhattisgarh
2. Director, Directorate Of Public Instructions, Department Of School
Education, 1st Floor, Third Block, Indrawati Bhawan, Hod Building,
New Raipur, District : Raipur, Chhattisgarh
3. The Commissioner Bastar Division, Jagdalpur, District Bastar,
Chhattisgarh.
4. The Collector Jagdalpur, District Bastar, Chhattisgarh.
5. Joint Director, Public Education, School Education Department, Bastar
Division, Jagdalpur, District Bastar, Chhattisgarh.
6. District Education Officer, Department Of School Education,
Jagdalpour, District Bastar, Chhattisgarh.
---- Respondent
WPS No. 3458 of 2023
Jagdish Kumar Baghel S/o Shri Sonadhar Baghel Aged About 44 Years
Posting Was At Govt. High School Gadhiya, Block Lohandiguda, R/o
Sadakpara, Village Chaper Bhanpuri, District : Bastar(Jagdalpur),
Chhattisgarh
—- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of School
Education, Ministry, Mahanadi Bhavan, Atal Nagar, New Raipur,
District : Raipur, Chhattisgarh
2. Director Directorate Of Public Instructions, Department Of School
Education, 1st Floor, Third Block, Indrawati Bhawan, Hod Building,
New Raipur, District : Raipur, Chhattisgarh
3. The Commissioner Bastar Division Jagdalpur,, District :
Bastar(Jagdalpur), Chhattisgarh
4. The Collector Jagdalpur, District : Bastar(Jagdalpur), Chhattisgarh
5. Joint Director Public Education, School Education Department, Bastar
2
Division, Jagdalpur, District : Bastar(Jagdalpur), Chhattisgarh
6. District Education Officer Department Of School Education, Jagdalpur,
District : Bastar(Jagdalpur), Chhattisgarh
—- Respondent
WPS No. 4116 of 2023
Damodar Bhandari S/o. Shri Budru Bhandari, Aged About 38 Years
Post – Peon, Last Posting Was At Government H.S. School Madpal,
Block Jagdalpur, R/o. Patarpara, Village Madpal, Tahsil Jagdalpur,
District Bastar Chhattisgarh.
—- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of School
Education, Ministry, Mahanadi Bhavan, Atal Nagar, New Raipur,
District Raipur, Chhattisgarh.
2. Director, Directorate Of Public Instructions, Department Of School
Education, 1st Floor, Third Block, Indrawati Bhawan, Hod Building,
New Raipur, District Raipur Chhattisgarh.
3. The Commissioner Bastar Division, Jagdalpur, District Bastar
Chhattisgarh.
4. The Collector Jagdalpur, District Bastar, Chhattisgarh.
5. Joint Director, Public Education, School Education Department, Bastar
Division, Jagdalpur, District Bastar Chhattisgarh.
6. District Education Officer, Department Of School Education, Jagdalpur,
District Bastar Chhattisgarh.
—- Respondent
WPS No. 4157 of 2023
Damru Ram Yadav S/o Shri Dalsay Yadav Aged About 40 Years Post-
Peon, Last Posting Was At Govt. H.S. School Belputi, Block
Bakawand, R/o Village Ichhapur, Retawand, District- Bastar,
Chhattisgarh.
—- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of School
Education, Ministry, Mahanadi Bhavan, Atal Nagar, New Raipur,
District- Raipur, Chhattisgarh.
2. Director Directorate Of Public Instructions, Department Of School
Education, 1st Floor, Third Block, Indrawati Bhawan, Hod Building,
New Raipur, District- Raipur, Chhattisgarh.
3. The Commissioner Bastar Division Jagdalpur, District- Bastar,
Chhattisgarh.
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4. The Collector Jagdalpur, District- Bastar, Chhattisgarh.
5. Joint Director Public Education, School Education Department, Bastar
Division, Jagdalpur, District- Bastar, Chhattisgarh.
6. District Education Officer Department Of School Education, Jagdalpur,
District- Bastar, Chhattisgarh.
—- Respondent
WPS No. 4175 of 2023
Virendra Baghel S/o Late Shri Raju Baghel Aged About 35 Years Post-
Peon, Last Posting Was At Govt. High School Madpal, Block
Jagdalpur, R/o Bailabazar, Danteshwari Ward, Jagdalpur, District :
Bastar(Jagdalpur), Chhattisgarh
—- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary, Department Of School
Education, Ministry, Mahanadi Bhavan, Atal Nagar, New Raipur,
District : Raipur, Chhattisgarh
2. Director Directorate Of Public Instructions, Department Of School
Education, 1st Floor, Third Block, Indrawati Bhawan, H O D Building,
New Raipur, District : Raipur, Chhattisgarh
3. The Commissioner Bastar Division Jagdalpur, District :
Bastar(Jagdalpur), Chhattisgarh
4. The Collector Jagdalpur, District : Bastar(Jagdalpur), Chhattisgarh
5. Joint Director Public Education, School Education Department, Bastar
Division, Jagdalpur, District : Bastar(Jagdalpur), Chhattisgarh
6. District Education Officer Department Of School Education, Jagdalpur,
District : Bastar(Jagdalpur), Chhattisgarh
—- Respondent
For Petitioners : Mr. Alok Kumar Dewangan, Advocate
: Mr. Pushpendra Singh Baghel,
Advocate
Mr. Dhaneshwar Yadav, Advocate
For State : Mr. Sandeep Dubey, Dy. A.G.
Mr. Ravi Bhagat, Dy. G.A.
Ms. Ruchi Nagar, Dy. G.A.Hon’ble Shri Justice P. Sam Koshy
Order On Board
413/07/2023
1. The challenge in all these bunch writ petitions is to the order Annexure
P/1 dated 03.03.2023. Vide the impugned order the respondent No.6
has terminated the services of the petitioners with immediate effect.
The termination of service has been on the alleged ground of their
appointment being illegal and the same has been wrongly granted by
the then incharge District Education Officer namely Mr. Rajendra Jha.
2. Learned counsel for the petitioners submits that it is a case where the
petitioners were appointed between the year 2017-18 and immediately
on receiving the order of appointment, they had given their joining. The
petitioners joined the services. Since then they have been
uninterruptedly working till the impugned order Annexure P/1 was
passed on 03.03.2023. It was the further contention of the petitioners
that prior to the issuance of the impugned order Annexure P/1, no
show cause notice whatsoever was ever issued, neither was there any
sort of any inquiry much less even a preliminary enquiry were not
conducted by taking the petitioners into confidence. The counsel for
the petitioners submits that the impugned order is per se bad in law
and is in total contravention to the basic principles of natural justice.
3. Learned counsel for the respondents on the other hand submits that
the entire exercise for removal of the petitioners took place upon a PIL
that was filed before the High Court as WP (PIL) No. 118 of 2020
(Chhattisgarh Anusuchit Jati Janjaati Adhikari/karamchari Sangh
(Ajjaks Union) v. State of Chhattisgarh and others), which was
primarily against the afore-referred incharge District Education Officer
Mr. Rajendra Jha and for his illegalities, irregularities and
embezzlement that he has committed in the course of his discharge of
duties as incharge District Education Officer.
4. It is the further contention of the State counsel that upon the directions
given by the Division Bench in the aforesaid Public Interest Litigation,
the authorities concerned on the administrative side found that there
were lot many recruitments carried out flouting the recruitment rules by
the said officer. That in the course the petitioners also were found to
5
have got benefited by getting appointment during the said period. It
was the further contention of the State counsel that since it was
apparently evident that they were not entitled and eligible for the
appointment and that the recruitment rules were not followed at the
time of appointment, the appointment order so issued would be a
nullity in the eye of law. Therefore even if an opportunity of hearing
would had been granted to the petitioners, it would had been only an
empty formality that there was nothing in defense that the petitioners
could have brought to justify their illegal appointment, therefore non-
granting of an opportunity of hearing in such circumstances should not
be considered as a denial of an opportunity of hearing.
5. According to the State counsel, the aforesaid facts as regards the
status of the petitioners being an admitted factual position, there was
no requirement for the petitioners to be afforded an opportunity of
hearing or a show cause notice to be issued before the order of
termination of service was passed. It was the further contention of the
State counsel that it would only be an empty formality, when even if an
opportunity of hearing is provided to the petitioners, it would stand
conclusively proved that their appointment was not in accordance to
the Rules. Therefore, they were not entitled for appointment and the
appointment order thus was per se illegal. In the said circumstances
principles of natural justice would not be required to be applied in the
given factual situation. According to the State counsel, it is a case
where the petitioners were per se ineligible and dis-entitled for
appointment. According to the respondents, the order of appointment
thus becomes a nullity in the eye of law and for recalling of an order
which is otherwise a nullity, the principles of natural justice need not be
adhered to. It is a case of simple rectification of an error and in the
given circumstances, it cannot be said that the impugned order has
been passed in violation to the principles of natural justice.
6. Learned State Counsel in support of her contentions relied upon the
judgments in the case of “Union of India and another v. Raghuwar
Pal Singh” (2018) 15 SCC 463, “Dharampal Satyapal Limited v.
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Deputy Commissioner of Central Excise, Gauhati and others”
(2015) 8 SCC 519, “Punjab National Bank and others v. Manjeet
Singh and another” (2006) 8 SCC 647, “Mohd. Sartaj and another
v. State of U.P. and others” (2006) 2 SCC 315, “Kendriya Vidyalaya
Sangathan and others v. Ajay Kumar Das and others” (2002) 4
SCC 503, “Aligarh Muslim University and others v. Mansoor Ali
Khan” (2000) 7 SCC 529.
7. Countering the argument of the State counsel, it was the contention of
the learned counsel for the petitioners that it is yet to be decided by
way of an opportunity of hearing which ought to have been given to the
petitioners by the respondents as to whether the order of appointment
was a nullity or not? The authorities concerned ought to have granted
atleast an opportunity of explanation where the petitioners would have
got a chance to explain as to how they have got the appointment.
Whether the appointment has been in accordance with Rules and
whether they were entitled for appointment or not in the given
circumstances that prevailed at the time of passing of the order of
appointment.
8. The counsel for the petitioners further submits that it is otherwise also
required that before passing of an order, particularly an order which
has an adverse civil consequences that an opportunity of hearing in
compliance of the principles of natural justice to have been adhered to.
The impugned order therefore deserves to be interfered with. Learned
counsel for the petitioners relied upon the judgments passed in the
case of “Dr. Shruti Khare v. State of Chhattisgarh and others“
2022 SCC OnLine CG 108 and “Jai Ram Yadav v. State of U.P. and
others” 2020 SCC OnLine Allahabad 1362.
9. As regards the judgments cited by the learned counsel for the State so
far as the case of Raghuvar Pal Singh (supra) that was a decision
rendered by the Hon’ble Supreme Court where the order under
challenge was one which was issued by an incompetent officer. The
view of the Hon’ble Supreme Court was that since it was issued by an
incompetent authority, it is a nullity in the eyes of law. As regards the
7
judgment in the case of Dharampal Satyapal Limited (supra), the
said judgment again is one where the issue involved before the
Hon’ble Supreme Court was the obtaining of an employment by
playing fraud, It was the finding of the Hon’ble Supreme Court that
when admittedly the appointment has been obtained by fraud, under
the circumstances the principles of natural justice cannot be applied in
a straight jacket formula. So far as the judgment of the Hon’ble
Supreme Court in the case of Punjab National Bank (supra) that was
again a case where the parties agitating had got an opportunity of
participating in the proceedings before the Industrial Tribunal, where
the award was passed and thus for the implementation of the said
award if directions have been issued non-granting of an opportunity of
hearing cannot be said to be a violation of the principles of natural
justice. So also in the case of Mohd. Sartaj and another (supra), the
said judgment has been passed in an entirely different contextual
background, where the concerned employee did not have the
minimum qualification required and the admitted factual matrix of the
said case would show that the so called employees had acquired the
qualification much subsequent to the proceedings have been initiated
against them and in the circumstances an opportunity of hearing in the
said was not fatal as has been held by the Hon’ble Supreme Court. In
the case of Kendriya Vidyalaya Sangathan and others (supra) also,
it was a case where the challenge was to the termination order as also
of the person who has been appointed subsequently in place of a
terminated employee. The contention was that the order of termination
was not issued to the employee concerned and the same being
without principles of natural justice. That was again a case where the
termination order was issued by an incompetent authority who has
already been terminated from service. Therefore the entire order
passed by a terminated employee was accepted to be a nullity. As
regards the decision in the case of Mansoor Ali Khan (supra), that
was a case where the employee concerned for the lapses on his part
was already given a warning and was also granted a last opportunity,
which again was violated by him. In the given factual backdrop the
8
Hon’ble Supreme Court said that non-granting of an opportunity of
hearing before passing of the order of termination from service would
not amount to violation of the said principles.
10. The Hon’ble Supreme Court in the case of “Prakash Ratan Sinha v.
State of Bihar and others” (2009) 14 SCC 690 on an issue dealing
with the doctrine of ‘Equality and Fair Play’ and also the principles of
natural justice has in paragraph Nos. 9 and 13 held as under:
“9. The respondent is an instrumentality of the State,
and therefore, all its administrative decisions would
be subject to the doctrine of equality and fair play, as
incorporated in Articles 14 and 21 of the Constitution
of India. If any of its actions or administrative
decisions result in civil consequences, the actions or
decisions could be judicially reviewed or tested on
the anvil of principles of natural justice. This
principle of law has been laid down by this Court in
catena of cases.
13. The law in this regard has been settled by several
decisions of this Court. The principle that emerge
from the decisions of this Court is that, if there is a
power to decide and decide detrimentally to the
prejudice of a person, duty to act judicially is implicit
in exercise of such a power and that the rule of
natural justice operates in areas not covered by any
law validly made.”
11. A similar view has also been taken by the Hon’ble Supreme Court in
the case “Canara Bank and others v. Debasis Das and others “
(2003) 4 SCC 557, wherein the Hon’ble Supreme Court in paragraph
No. 19 has held as under:
“19. Concept of natural justice has undergone a
great deal of change in recent years. Rules of
natural justice are not rules embodied always
expressly in a statute or in rules framed thereunder.
They may be implied from the nature of the duty to
be performed under a statute. What particular rule
of natural justice should be implied and what its
context should be in a given case must depend to a
great extent on the fact and circumstances of that
case, the frame-work of the statute under which the
enquiry is held. The old distinction between a
judicial act and an administrative act has withered
away. Even an administrative order which involves
civil consequences must be consistent with the
rules of natural justice. Expression ‘civil
consequences’ encompasses infraction of not
merely property or personal rights but of civil
liberties, material deprivations, and non-pecuniary
damages. In its wide umbrella comes everything
9that affects a citizen in his civil life.”
12. Reiterating the same principles the Hon’ble Supreme Court again
dealing with the same issue in the case of “Rajasthan State Road
Transport Corporation and another v. Bal Mukund Bairwa (2)”
(2009) 4 SCC 299 in paragraph Nos. 35 and 47 has held as under:
“35. Any order passed in violation of the
principles of natural justice save and except
certain contingencies of cases, would be a nullity.
In A.R. Antulay (supra), this Court held:
“55. ……..No prejudice need be proved for
enforcing the fundamental rights. Violation
of a fundamental right itself renders the
impugned action void. So also the violation
of the principles of natural justice renders
the act a nullity.”
47. The purpose of principles of natural justice is
prevention of miscarriage of justice and hence the
observance thereof is the pragmatic requirement
of fair play in action. {See Sawai Singh vs. State
of Rajasthan [(1986) 3 SCC 454], Narinder Mohan
Arya vs. United India Insurance Co. Ltd. & ors.
[(2006) 4 SCC 713]}”
13. Further, again the Hon’ble Supreme Court in the case of “Radhe
Shyam (Dead) Through LRs. and others v. State of Uttar Pradesh
and others” (2011) 5 SCC 553 in paragraph No. 40 discussing with
the Rule of an opportunity of hearing has held as under:
“24. Before adverting to the precedents in which
Section 5A has been interpreted by this Court, it will
be useful to notice development of the law relating
to the rule of hearing. In the celebrated case of
Cooper v. Wandsworth Board of Works (1863) 143
ER 414, the principle was stated thus:
“Even God did not pass a sentence upon
Adam, before he was called upon to make his
defence. “Adam” says God, “where art thou?
hast thou not eaten of the tree whereof I
commanded thee that thou shouldest not
eat”.
Therein the District Board had brought down the
house of the plaintiff’s (Cooper), because he had
failed to comply with The Metropolis Local
Management Act. The Act required the plaintiff to
notify the board seven days before starting to build
the house. Cooper argued that even though the
board had the legal authority to tear his house
down, no person should be deprived of their
property without notice. In spite of no express
10
words in the statute the court recognized the right
of hearing before the plaintiff’s house built without
permission was demolished in the exercise of
statutory powers. Byles J stated:
`…..although there are not positive words in a
statute requiring that the party shall be
heard, yet the justice of the common law
shall supply the omission of the legislature’.”
14. The aforesaid decisions of the Hon’ble Supreme Court was further
relied by this Court in the case of “Jagdish Prasad Pandey v. State
of Chhattisgarh” in WPS No. 2265 of 2009 decided on 13.09.2018,
wherein again an order of promotion, which was canceled without
opportunity of hearing was set-aside by this Court only on the ground
of the same being in violation of principles of natural justice. The said
decision was relying upon the aforesaid pronouncements of the
Hon’ble Supreme Court referred to in the preceding paragraphs. The
Hon’ble Supreme Court in one of the very recent decisions decided on
12.05.2023 in the case of “Aureliano Fernandes v. State of Goa and
others” Civil Appeal No. 2482 of 2014 in paragraph No. 37 to 44 has
held as under:
“37. How deeply have Courts internalised and
incorporated the principles of natural justice into the
Constitution can be perceived from the seven Judge
Bench decision in the case of Maneka Gandhi v. Union
of India44. In this case, where a challenge was laid to
the order of impounding the passport of the appellant,
which was silent on the reasons for such an action and
the respondent-State had declined to furnish the
reason therefor, it was held that life and liberty of a
person cannot be restricted by any procedure that is
established by law, but only by procedure that is just,
fair and reasonable. Quoting the audi alteram partem
rule and equating it with “fair play in action”, Justice
P.N. Bhagwati (as he then was) had authored the
judgment for the majority and had observed that:
“14. ……The audi alteram partem rule is not
cast in a rigid mould and judicial decisions
establish that it may suffer situational
modifications. The core of it must, however,
remain, namely, that the person affected must
have a reasonable opportunity of being heard
and the hearing must be a genuine hearing and
not an empty public relations exercise. That is
why Tucker, L.J., emphasised in Russel v. Duke
of Norfolk45 that “whatever standard of natural
justice is adopted, one essential is that the
person concerned should have a reasonable
opportunity of presenting his case”. What
11opportunity may be regarded as reasonable
would necessarily depend on the practical
necessities of the situation. It may be a
sophisticated full-fledged hearing or it may be a
hearing which is very brief and minimal: it may
be a hearing prior to the decision or it may even
be a post-decisional remedial hearing. The audi
alteram partem rule is sufficiently flexible to
permit modifications and variations to suit the
exigencies of myriad kinds of situations which
may arise……….”
38. In the captioned case, citing the judgment of a
Constitution Bench of this Court in Rustom Cavasjee
Cooper v. Union of India46, wherein it was held that
fundamental rights are not a water tight compartment,
the Court observed as under:–
“The principle of reasonableness, which legally
as well as philosophically, is an essential
element of equality or non-arbitrariness
pervades Article 14 like a brooding
omnipresence and the procedure contemplated
by Article 21 must answer the test of
reasonableness in order to be in conformity
with Article 14″
39. The emphasis was on the Court’s attempt to
expand the reach and ambit of the fundamental rights
guaranteed in the Constitution rather than attenuate
their meaning and content by a process of judicial
construction. Relying on the minority judgment
rendered by Justice Fazal Ali in the case of A.K.
Gopalan v. State of Madras47, this Court went on to
hold in Maneka Gandhi‘s case (supra) that the
procedure required to be prescribed under Article 21
must include four essentials namely, notice,
opportunity to be heard, impartial tribunal and ordinary
course of procedure. It was observed that even on
principle, having regard to the impact of Article 14 on
Article 21, the concept of reasonableness must be
projected in the procedure contemplated by Article 21.
40. In Delhi Transport Corporation v. D.T.C. Mazdoor
Congress48, a five-Judge Bench of this Court
highlighted how essential it is to afford a reasonable
opportunity to an employee to put forth his case in a
domestic inquiry and the requirement of an employer
to comply with the principles of natural justice and fair
play, in the following words:
“202. ……It is now well settled that the ‘audi
alteram partem’ rule which in essence, enforces
the equality clause in Article 14 of the
Constitution is applicable not only to quasi-
judicial orders but to administrative orders
affecting prejudicially the party-in-question
unless the application of the rule has been
expressly excluded by the Act or Regulation or
Rule which is not the case here. Rules of
natural justice do not supplant but supplement
the Rules and Regulations. Moreover, the Rule
12of Law which permeates our Constitution
demands that it has to be observed both
substantially and procedurally……. Rule of law
posits that the power is to be exercised in a
manner which is just, fair and reasonable and
not in an unreasonable, capricious or arbitrary
manner leaving room for discrimination……
[emphasis added]
xxx xxx xxx
316. Thus it could be held that Article 14 read
with Article 16(1) accords right to an equality or
an equal treatment consistent with the
principles of natural justice. Any law made or
action taken by the employer, corporate
statutory or instrumentality under Article 12
must act fairly, justly and reasonably. Right to
fair treatment is an essential inbuilt of natural
justice. Exercise of unbridled and uncanalised
discretionary power impinges upon the right of
the citizen; vesting of discretion is no wrong
provided it is exercised purposively judiciously
and without prejudice. Wider the discretion, the
greater the chances of abuse. Absolute
discretion is destructive of freedom than of
man’s other inventions. Absolute discretion
marks the beginning of the end of the liberty.
The conferment of absolute power to dismiss a
permanent employee is antithesis to justness or
fair treatment. The exercise of discretionary
power wide off the mark would breed arbitrary,
unreasonable or unfair actions and would not
be consistent with reason and justice. The
provisions of a statute, regulations or rules that
empower an employer or the management to
dismiss, remove or reduce in rank of an
employee, must be consistent with just,
reasonable and fair procedure. It would, further,
be held that right to public employment which
includes right to continued public employment
till the employee is superannuated as per rules
or compulsorily retired or duly terminated in
accordance with the procedure established by
law is an integral part of right to livelihood
which in turn is an integral facet of right to life
assured by Article 21 of the Constitution. Any
procedure prescribed to deprive such a right to
livelihood or continued employment must be
just, fair and reasonable procedure. In other
words an employee in a public employment also
must not be arbitrarily, unjustly and
unreasonably be deprived of his/her livelihood
which is ensured in continued employment till it
is terminated in accordance with just, fair and
reasonable procedure. Otherwise any law or
rule in violation thereof is void.”
[emphasis added]
41. The significant role played by procedural fairness
13
in the backdrop of internalising the principles of
natural justice into the Constitution cannot be
overstated. This aspect has been highlighted by a
Division Bench of this Court of which one of us, [Hima
Kohli, J], was a member, in Madhyamam Broadcasting
Limited v. Union of India49. Speaking for the Bench,
Chief Justice D.Y. Chandrachud stated:
“53. The judgment of this Court in Maneka
Gandhi (supra) spearheaded two doctrinal
shifts on procedural fairness because of the
constitutionalising of natural justice. Firstly,
procedural fairness was no longer viewed
merely as a means to secure a just outcome but
a requirement that holds an inherent value in
itself. In view of this shift, the Courts are now
precluded from solely assessing procedural
infringements based on whether the procedure
would have prejudiced the outcome of the case.
Instead, the courts would have to decide if the
procedure that was followed infringed upon the
right to a fair and reasonable procedure,
independent of the outcome. In compliance with
this line of thought, the courts have read the
principles of natural justice into an enactment
to save it from being declared unconstitutional
on procedural grounds. Secondly, natural
justice principles breathe reasonableness into
the procedure. Responding to the argument that
the principles of natural justice are not static
but are capable of being moulded to the
circumstances, it was held that the core of
natural justice guarantees a reasonable
procedure which is a constitutional requirement
entrenched in Articles 14, 19 and 21. The facet
of audi alterum partem encompasses the
components of notice, contents of the notice,
reports of inquiry, and materials that are
available for perusal. While situational
modifications are permissible, the rules of
natural justice cannot be modified to suit the
needs of the situation to such an extent that the
core of the principle is abrogated because it is
the core that infuses procedural
reasonableness. The burden is on the applicant
to prove that the procedure that was followed
(or not followed) by the adjudicating authority,
in effect, infringes upon the core of the right to
a fair and reasonable hearing.”
– [emphasis supplied]
42. In A.K. Kraipak v. Union of India50 quoting with
approval the judgment In re: H.K. (All Infant)51, this
Court held that:
“20. The aim of the rules of natural justice is to
secure justice or to put it negatively to prevent
miscarriage of justice. These rules can operate
only in areas not covered by any law validly
made. In other words they do not supplant the
14law of the land but supplement it. The concept
of natural justice has undergone a great deal of
change in recent years. In the past it was
thought that it included just two rules nameny:
(1) no one shall be a judge in his own case
(Nemo debet esse judex propria causa) and (2)
no decision shall be given against a party
without affording him a reasonable hearing
(audi alteram partem). Very soon thereafter a
third rule was envisaged and that is that quasi-
judicial enquiries must be held in good faith,
without bias and not arbitrarily or unreasonably.
But in the course of years many more
subsidiary rules came to be added to the rules
of natural justice. Till very recently it was the
opinion of the courts that unless the authority
concerned was required by the law under which
it functioned to act judicially there was no room
for the application of the rules of natural justice.
The validity of that limitation is now questioned.
If the purpose of the rules of natural justice is to
prevent miscarriage of justice one fails to see
why those rules should be made inapplicable to
administrative enquiries. Often times it is not
easy to draw the line that demarcates
administrative enquiries from quasi-judicial
enquiries. Enquiries which were considered
administrative at one time are now being
considered as quasi-judicial in character.
Arriving at a just decision is the aim of both
quasi-judicial enquiries as well as
administrative enquiries. An unjust decision in
an administrative inquiry may have more far
reaching effect than a decision in a quasi-
judicial inquiry……….”
– [Emphasis supplied]
I. FAIR ACTION AND IMPARTIALITY IN SERVICE
JURISPRUDENCE:
43. In the context of service law, it is, therefore
mandatory to afford a Government servant or an
employee, a reasonable opportunity of being heard
before an order is passed. In Mangilal v. State of
M.P.52, this Court declared that even if a Statute is
silent and there are no positive words in the Act or the
Rules made thereunder, principles of natural justice
must be observed. This is what the Court has held:
“10….Where the statute is silent about the
observance of the principles of natural justice,
such statutory silence is taken to imply
compliance with the principles of natural justice
where substantial rights of parties are
considerably affected. The application of
natural justice becomes presumptive, unless
found excluded by express words of statute or
necessary intendment. (See Swadeshi Cotton
Mills v. Union of India53) Its aim is to secure
justice or to prevent miscarriage of justice.
15
Principles of natural justice do not supplant the
law, but supplement it. These rules operate only
in areas not covered by any law validly made.
They are a means to an end and not an end in
themselves…..”
44. In Tulsiram Patel’s case (supra), observing that
violation of the rules of natural justice would result in
arbitrariness which would amount to discrimination,
the Constitution Bench made the following
observations:
“95. The principles of natural justice have thus
come to be recognized as being a part of the
guarantee contained in Article 14 because of
the new and dynamic interpretation given by
this Court to the concept of equality which is
the subject-matter of that article. Shortly put,
the syllogism runs thus: violation of a rule of
natural justice results in arbitrariness which is
the same as discrimination; where
discrimination is the result of State action, it is
a violation of Article 14: therefore, a violation of
a principle of natural justice by a State action is
a violation of Article 14. Article 14, however, is
not the sole repository of the principles of
natural justice. What it does is to guarantee that
any law or State action violating them will be
struck down. The principles of natural justice,
however, apply not only to legislation and State
action but also where any tribunal, authority or
body of men, not coming within the definition of
State in Article 12, is charged with the duty of
deciding a matter. In such a case, the principles
of natural justice require that it must decide
such matter fairly and impartially.
96. The rule of natural justice with which we are
concerned in these appeals and writ petitions,
namely, the audi alteram partem rule, in its
fullest amplitude means that a person against
whom an order to his prejudice may be passed
should be informed of the allegations and
charges against him, be given an opportunity of
submitting his explanation thereto, have the
right to know the evidence, both oral or
documentary, by which the matter is proposed
to be decided against him, and to inspect the
documents which are relied upon for the
purpose of being used against him, to have the
witnesses who are to give evidence against him
examined in his presence and have the right to
cross-examine them, and to lead his own
evidence, both oral and documentary, in his
defence. The process of a fair hearing need not,
however, conform to the judicial process in a
Court of law, because judicial adjudication of
causes involves a number of technical rules of
procedure and evidence which are unnecessary
and not required for the purpose of a fair
hearing within the meaning of audi alteram
partem rule in a quasi-judicial or administrative
16inquiry. If we look at clause (2) of Article 311 in
the light of what is stated above, it will be
apparent that that clause is merely an express
statement of the audi alteram partem rule which
is implicitly made part of the guarantee
contained in Article 14 as a result of the
interpretation placed upon that article by recent
decisions of this Court. Clause (2) of Article 311
requires that before a government servant is
dismissed, removed or reduced in rank, an
inquiry must be held in which he is informed of
the charges against him and given a reasonable
opportunity of being heard in respect of those
charges…….”
– [emphasis supplied]
45. At the same time, a note of caution was added in
the captioned case and the Court observed that the
rules of natural justice are neither statutory rules nor
are they cast in stone. They are flexible and can be
adapted and modified by statutes, depending on the
exigencies of different situations, the facts and
circumstances of the case and the framework of the
law54.
46. In Swadeshi Cotton Mills v. Union of India55, in his
dissenting judgment, Justice O. Chinnappa Reddy, had
made the following pertinent observations:–
“106. The principles of natural justice have
taken deep root in the judicial conscience of our
people, nurtured by Dr. Bina pani56, A.K.
Kraipak57, Mohinder Singh Gill58, Maneka
Gandhi59. They are now considered so
fundamental as to be “implicit in the concept of
ordered liberty and, therefore, implicit in every
decision-making function, call it judicial, quasi-
judicial or administrative. Where authority
functions under a statute and the statute
provides for the observance of the principles of
natural justice in a particular manner, natural
justice will have to be observed in that manner
and in no other. No wider right than that
provided by statute can be claimed nor can the
right be narrowed. Where the statute is silent
about the observance of the principles of
natural justice, such statutory silence is taken
to imply compliance with the principles of
natural justice. The implication of natural
justice being presumptive it may be excluded
by express words of statute or by necessary
intendment. Where the conflict is between the
public interest and the private interest, the
presumption must necessarily be weak and
may, therefore, be readily displaced……”
– [emphasis supplied]”
15. Given the aforesaid catena of decisions laid down by the Hon’ble
17Supreme Court settling the issue of not following the principles of
natural justice. If the facts of the present case is taken into
consideration, it would apparently be evident that all the petitioners
herein were given an appointment during the period between 2017-18.
The said order of appointment was acted upon and the petitioners
were given their joining. The petitioners have thereafter put in
uninterrupted more than 5-6 years of service. It is also an admitted
factual position as would also be reflected from the reply of the
respondents that prior to the issuance of the impugned order no show
cause notice nor any preliminary enquiry was ever conducted, neither
were the petitioners at any point of time taken into confidence before
the impugned order was passed. It is also an admitted fact that none
of the petitioners herein were party to the proceedings in the WP (PIL)
No. 118 of 2020 and they were also totally ignorant of the proceedings
drawn before the Division Bench.
16. Perusal of the pleadings and also taking into consideration the
directions given by the Division Bench in the aforesaid WP (PIL), there
was no specific direction by the Division Bench so far as initiating
proceedings against the petitioners much less for terminating the
services of the petitioners. The directions all that were in the said PIL
was against the respondent No.7 i.e. Mr. Rajendra Jha. Admittedly, by
virtue of the order of appointment being issued in favour of the
petitioners and the petitioners having acted upon it and given their
joining, a substantive right stood created in favour of the petitioners.
The petitioners started enjoining the fruits of the said substantive right
which stood created in their favour for the last more than 5-6 years.
Abruptly now out of the blue, an order was passed on 03.03.2023
ordering the removal of the petitioners from service with immediate
effect. It is in this context that the judgments of the Hon’ble Supreme
Court referred to in the preceding paragraphs becomes relevant, when
it holds that whenever an order which has an adverse civil
consequences is passed, least that is expected is an opportunity of
hearing to be granted.
18
17. Admittedly, in the instant case no such opportunity has ever been
granted to the petitioners. Another fact, which needs to be considered
is that the respondents in the reply have relied upon a correspondence
made by the Additional Secretary dated 02.03.2023. However the
pleadings of the contents of the said correspondence also would show
that the Additional Secretary also had only directed the respondents to
take appropriate steps for the termination of service of those who have
been illegally appointed. The Additional Secretary at no point of time
directed the respondent No.6 to straight away issue termination orders
without even conducting the preliminary enquiry if required and without
even the issuance of a show cause notice.
18. Under the circumstances, this Court has no hesitation in holding that
the action on the part of the respondents in passing the impugned
order dated 03.03.2023 by the respondent No.6 is in utter violation of
the principles of natural justice. The same is thus unsustainable in the
eye of law and the same deserves to be set-aside/quashed. It is
ordered accordingly. The impugned order passed by the respondent
No.6 dated 03.03.2023 in all the writ petitions stands set-
aside/quashed with consequences to follow. Since the impugned order
is being set-aside on the technical ground of violation of principles of
natural justice, the respondents would be at liberty if they so want to
initiate appropriate proceedings in accordance with law and also
adhering to the principles of natural justice.
19. With the aforesaid observations the present writ petition stands
allowed and disposed of.
Sd/-
(P. Sam Koshy)
Judge
Ved
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