Madhya Pradesh High Court
Pramod Kumar Barua vs The State Of Madhya Pradesh on 14 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:18645
1 WA-343-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 14th OF AUGUST, 2025
WRIT APPEAL No. 343 of 2019
PRAMOD KUMAR BARUA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Sankalp Sharma, Advocate for the appellant.
Shri Naval Kishor Gupta, Government Advocate for respondent Nos. 1
to 3/State.
Shri Vivek Khedkar, Senior Advocate with Shri Shashank Indapurkar,
Advocate for respondent No.4.
Shri Harish Dixit, Senior Advocate with Shri Parth Dixit, Advocate for
the Intervener.
ORDER
Per: Justice Gurpal Singh Ahluwalia
This writ appeal, under Section 2 (1) of the M.P. Uchcha Nyayalay
(Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed against the
order dated 16-11-2018 passed by learned Single Judge in W.P. No.
697/2009, as well as, order dated 7/2/2019 passed by learned Single Judge in
R.P. No.1811/2018, by which it has been held that non-extension of
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opportunity of hearing has not caused any prejudice to the
petitioner/appellant and by applying the principle of useless formality it is
held that withdrawal of order of regularisation is not bad.
2. It is the case of appellant that he in the year 1998 was appointed as
Revenue Sub Inspector and his services were absorbed by resolution passed
by Nagar Panchayat against a clear and vacant post. By oral order dated 1-
10-1998, he was removed from service and his salary was also stopped. The
action of respondents was challenged by appellant before the Labour Court
by raising industrial dispute and by order dated 4-6-2001, the Labour Court
directed for his reinstatement, as well as, for payment of dues to the tune of
Rs.1,90,000/- for a period of 2 years of service. The order of Labour Court
was challenged by the department by filing W.P. No. 42/2002, however
lateron the said petition was withdrawn. As a result the order of Labour
Court attained finality. On 8-6-2001, Chief Municipal Officer, Nagar
Panchayat, Phoop, District Bhind directed for reinstatement of appellant on
the post of Revenue Sub Inspector. By resolution dated 27-2-2004, it was
decided by the Nagar Panchayat to regularise the services of appellant on the
post of Revenue Sub Inspector and accordingly by order dated 8-7-2004, the
services of appellant were regularised. However, by the impugned order
dated 4-2-2009, the order of regularisation of services of appellant was
cancelled and it was directed that Urban Administration and Development
Department be informed about compliance of the said order by 25/2/2009.
3. Challenging the said order, appellant preferred W.P. No. 697/2009.
The said writ petition was dismissed by Coordinate Bench of this Court by
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order dated 16-11-2018. Being aggrieved by the said order, the petitioner
preferred a writ appeal which was registered as W.A. No. 1662/2018.
However, by order dated 30-11-2018, appellant was permitted to withdraw
the appeal with liberty to file a review petition. Accordingly Review Petition
No. 1811/2018 was filed which has been dismissed by learned Single Judge
by order dated 7-2-2019.
4. It is contended by counsel for appellant that one of the basic
arguments before the writ Court was that before cancelling the order of
regularisation, no opportunity of hearing was given to the appellant, whereas
it was the case of respondents that appointment of appellant was not in
accordance with law and no vacant post was available for the post of
Revenue Sub Inspector, therefore, even if no opportunity of hearing was
given to the appellant still by applying the principle of useless formality no
prejudice was caused to the appellant. It is submitted that the petition filed by
the appellant was dismissed after applying the principle of useless formality
and it was held that petitioner had enjoyed a long stint without any legal
sanction and his illegal regularisation was contrary to the mandate of law. It
is submitted by counsel for appellant that appellant had specifically claimed
that he was appointed in accordance with law. It is further submitted that the
writ Court by order dated 23-8-2018 had directed the respondents to produce
the record to show as to whether any advertisement was issued in compliance
of Rule 11 of Madhya Pradesh Municipal Employees (Recruitment and
Conditions of Service Rules), 1968 (for short “the Rules of 1968”) or not or
any list of advertisement so issued in which the advertisement was published
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and it was directed that complete record be produced and the concerned
Chief Municipal Officer was directed to remain present along with the
original record on 24/8/2018. On 24-8-2018 a specific statement was made
by Chief Municipal Officer, Municipal Council, Phoop that the record is in
possession of the Deputy Director of the Urban Administration and
Development Department, Gwalior and accordingly, some time was sought
to produce the record, but later on the record was never produced. It is
submitted that, therefore, under these circumstances an adverse inference
should have been drawn against the respondents. It is further submitted that
as per Rule 11 of 1968 Rules, the Chief Municipal Officer or the District
Selection Committee has to notify the vacancies to the local Employment
Exchange in the form and manner prescribed under the Employment
Exchange (Compulsory Notification of Vacancies) Act, 1959 and shall
advertise the vacancies in the local newspapers announcing the number of
the candidates to be recruited and shall invite applications on the prescribed
form within such time as may be specified in the notice. On receipt of the
applications the Chief Municipal Officer or the District Selection
Committee, as the case may be, shall scrutinize the applications with the list
of candidates received from the Employment Exchange, interview such of
the candidates as prima facie suitable and arrange the names of the
candidates who are more suitable for appointment in the order of preference.
It is submitted that once the appellant had specifically claimed that the
procedure as laid down in Rule 11 of the Rules of 1968 was followed before
appointment of appellant, then the entire burden was on the respondents to
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prove that initial appointment of the appellant was not in accordance with
law. Furthermore, when a specific direction was given by the Court to
produce the record and the Chief Municipal Officer had also made statement
that the record is in the office of Deputy Director, Urban Administration and
Development Department, and then decided not to produce the record, then
adverse inference has to be drawn against the respondent. Thus it is
submitted that non-grant of opportunity of hearing before cancelling the
order of regularisation of appellant has seriously prejudiced the appellant,
therefore the order passed by the learned Single Judge requires interference.
5. Per contra, the appeal is vehemently opposed by counsel for the
respondent. It is submitted that there was no vacant post for regularisation of
appellant and it was further submitted that the appointment of appellant was
not in accordance with law.
6. Heard learned counsel for the parties.
7. The first question for consideration is as to whether principle of
useless formality can be applied to uphold an order passed by the respondent
without extending an opportunity of hearing or not ?
8. Principle of useless formality which suggests that breach of natural
justice can be excused if outcome would have been the same, is not absolute
and is subject to exceptions and judicial interpretation. It is true that principle
of natural justice has undergone various changes and an order cannot be set
aside merely on the ground of violation of principles of natural justice and
the person complaining violation of such order has to justify that he has
suffered prejudice, but where the pleadings of the parties can be adjudicated
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on the basis of record and if the respondents have failed to produce the
record in spite of direction given by the Court then for the purposes of the
writ petition as well as for the purposes of considering as to whether
principle of useless formality can be applied or not, adverse inference can be
drawn against the respondents.
9. Section 114 of the Evidence Act enables the Court to draw adverse
inference if a party does not produce relevant record.
10. The Supreme Court in the case of Union of India v. Ibrahim
Uddin, (2012) 8 SCC 148 has held as under:-
Presumption under Section 114 Illustration (g) of the Evidence
Act
12. Generally, it is the duty of the party to lead the best evidence
in his possession, which could throw light on the issue in
controversy and in case such material evidence is withheld, the
court may draw adverse inference under Section 114 Illustration
(g ) of the Evidence Act notwithstanding, that the onus of proof did
not lie on such party and it was not called upon to produce the said
evidence. [Vide Murugesam Pillai v. Manickavasaka
Pandara [(1916-17) 44 IA 98 : AIR 1917 PC 6]
, Hiralal v. Badkulal [(1953) 1 SCC 400 : AIR 1953 SC 225] , A.
Raghavamma v. A. Chenchamma [AIR 1964 SC 136] , Union of
India v. Mahadeolal Prabhu Dayal [AIR 1965 SC 1755] , Gopal
Krishnaji Ketkar v. Mohd. Haji Latif [AIR 1968 SC 1413]
, BHEL v. State of U.P. [(2003) 6 SCC 528 : 2004 SCC (L&S)
506 : AIR 2003 SC 3024] , Mussauddin Ahmed v. State of
Assam [(2009) 14 SCC 541 : (2010) 1 SCC (Cri) 1445 : AIR 2010
SC 3813] and Khatri Hotels (P) Ltd. v. Union of India [(2011) 9
SCC 126 : (2011) 4 SCC (Civ) 484] .]
13. However, in Bilas Kunwar v. Desraj Ranjit Singh [(1914-15)
42 IA 202 : AIR 1915 PC 96] a view has been expressed that it is
open to a litigant to refrain from producing any document that he
considers irrelevant; if the other litigant is dissatisfied, it is for him
to apply for interrogatories/inspections and production of
documents. If he fails to do so, neither he nor the court at his
suggestion, is entitled to draw any inference as to the contents of
any such documents.
14. In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba
Reddy [(2003) 11 SCC 293 : 2004 SCC (Cri) 155 : AIR 2003 SC
3342] this Court held that all the pros and cons must be examined
before drawing an adverse inference against a party. In that case
the issue had been, as to whether two persons had been travellingSignature Not Verified
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together in the vehicle and presumption had been drawn only on
the basis that the bus tickets of both the persons were not
produced. This Court held that presumption could not have been
drawn if other larger evidence was shown to the contrary . (See
a l s o Mohinder Kaur v. Kusam Anand [(2000) 4 SCC 214]
and Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6
SCC 145 : 2001 SCC (Cri) 1070 : AIR 2001 SC 2328] .)
15. In Municipal Corpn., Faridabad v. Siri Niwas [(2004) 8 SCC
195 : 2004 SCC (L&S) 1062] this Court has taken the view that
the law laid down by this Court in Gopal Krishnaji Ketkar [AIR
1968 SC 1413] did not lay down any law, that in all situations the
presumption in terms of Illustration (g ) to Section 114 of the
Evidence Act must be drawn.
16. In Srinivas Ramanuj Das v. Surjanarayan Das [AIR 1967 SC
256] this Court held that mere withholding of documentary
evidence by a party is not enough to draw adverse inference
against him. The other party must ask the party in possession of
such evidence to produce the same, and in case the party in
possession does not produce it, adverse inference may be drawn :
(AIR p. 263, para 28)
“28. … It is true that the defendant-respondent also did not
call upon the plaintiff-appellant to produce the
documents whose existence was admitted by one or the other
witness of the plaintiff and that, therefore, strictly
speaking, no inference adverse to the plaintiff can be drawn
from his non-producing the list of documents. The court may
not be in a position to conclude from such omission that
those documents would have directly established the case for
the respondent. But it can take into consideration in weighing
the evidence or any direct inferences from established facts
that the documents might have favoured the respondent’s
case.”
(emphasis supplied)
17. In Ramrati Kuer v. Dwarika Prasad Singh [AIR 1967 SC
1134] this Court held : (AIR p. 1137, para 9)
“9 . … It is true that Dwarika Prasad Singh said that his father
used to keep accounts. But no attempt was made on behalf of
the appellant to ask the court to order Dwarika Prasad Singh
to produce the accounts. An adverse inference could only
have been drawn against the plaintiff-respondents if the
appellant had asked the court to order them to produce
accounts and they had failed to produce them after admitting
that Basekhi Singh used to keep accounts. But no such prayer
was made to the court, and in the circumstances no adverse
inference could be drawn from the non-production of
accounts.”
(emphasis supplied)
(See also Ravi Yashwant Bhoir v. Collector [(2012) 4 SCC 407 :
AIR 2012 SC 1339] .)
18. In Indira Kaur v. Sheo Lal Kapoor [(1988) 2 SCC 488 : AIR
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the appellant-plaintiff on the ground that the plaintiff was not
ready and willing to perform his part of the contract. The question
arose as to whether the party had the means to pay. The Court
further held that before the adverse inference is drawn against a
particular party, the conduct and diligence of the other party is also
to be examined. Where a person deposed that as he had deposited
the money in the bank and the other party did not even ask as on
what date and in which bank the amount had been deposited and
did not remain diligent enough, the question of drawing adverse
inference against such a person for not producing the passbook,
etc. cannot be drawn.
19. In Mahendra L. Jain v. Indore Development Authority [(2005)
1 SCC 639 : 2005 SCC (L&S) 154] this Court held that mere non-
production of documents would not result in adverse inference. If
a document was called for in the absence of any pleadings , the
same was not relevant. An adverse inference need not necessarily
be drawn only because it would be lawful to do so.
20. In RBI v. S. Mani [(2005) 5 SCC 100 : 2005 SCC (L&S) 609]
this Court dealt with the issue wherein the Industrial Tribunal
directed the employer to produce the attendance register in respect
of the first party workmen. The explanation of the appellant was
that the attendance registers being very old, could not be produced.
The Tribunal, however, in its award noticed the same and drew
an adverse inference against the appellants for non-production of
the attendance register alone. This Court reversed the finding
observing : (SCC p. 113, paras 27-28)
“27. As noticed hereinbefore, in this case also the
respondents did not adduce any evidence whatsoever. Thus,
in the facts and circumstances of the case, the Tribunal erred
in drawing an adverse inference.
Burden of proof
28. The initial burden of proof was on the workmen to show
that they had completed 240 days of service. The Tribunal
did not consider the question from that angle. It held that the
burden of proof was upon the appellant on the premise that
they have failed to prove their plea of abandonment of
service.”
(emphasis supplied)
(See also A. Jayachandra v. Aneel Kaur [(2005) 2 SCC 22 : AIR
2005 SC 534] , R.M. Yellatti v. Executive Engineer [(2006) 1
SCC 106 : 2006 SCC (L&S) 1 : AIR 2006 SC 355] and Pratap
Singh v. State of M.P. [(2005) 13 SCC 624 : (2006) 2 SCC (Cri)
284 : AIR 2006 SC 514] )
21. Order 11 CPC contains certain provisions with the object to
save expense by obtaining information as to material facts and to
obtain admission of any fact which he has to prove on any issue.
Therefore, a party has a right to submit interrogatories relating to
the same matter in issue. The expression “matter” means a
question or issue in dispute in the action and not the thing about
which such dispute arises. The object of introducing such
provision is to secure all material documents and to put an end to
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protracted enquiry with respect to document/material in
possession of the other party. In such a fact situation, no adverse
inference can be drawn against a party for non-production of a
document unless notice is served and procedure is followed.
22. Under Rule 14 of Order 11, the court is competent to direct
any party to produce the document asked by the other party which
is in his possession or power and relating to any material in
question in such suit. Rule 15 Order 11 provides for inspection of
documents referred to in the pleadings or affidavits. Rule 18
thereof empowers the court to issue order for inspection. Rule 21
thereof provides for very stringent consequences for non-
compliance with the order of discovery, as in view of the said
provisions in case the party fails to comply with any order to
answer interrogatories or for discovery or inspection of
documents, he shall, if he is a plaintiff, be liable to have his suit
dismissed for want of prosecution and if he is a defendant, to have
his defence, if any, struck out and to be placed in the same
position as if he had not defended, and the party interrogating or
seeking discovery or inspection may apply to the court for an
order to that effect.
23. Thus, in view of the above, the suit may be dismissed for non-
compliance with the aforesaid orders by the plaintiff and the
plaintiff shall also be precluded from bringing a fresh suit on the
same cause of action. Similarly, the defence of the defendant may
be struck off for non-compliance with such orders.
24. Thus, in view of the above, the law on the issue can be
summarised to the effect that the issue of drawing adverse
inference is required to be decided by the court taking into
consideration the pleadings of the parties and by deciding whether
any document/evidence, withheld, has any relevance at all or
omission of its production would directly establish the case of the
other side. The court cannot lose sight of the fact that burden of
proof is on the party which makes a factual averment. The court
has to consider further as to whether the other side could file
interrogatories or apply for inspection and production of the
documents, etc. as is required under Order 11 CPC. Conduct and
diligence of the other party is also of paramount importance.
Presumption of adverse inference for non-production of evidence
is always optional and a relevant factor to be considered in the
background of facts involved in the case. Existence of some other
circumstances may justify non-production of such documents on
some reasonable grounds. In case one party has asked the court to
direct the other side to produce the document and the other side
failed to comply with the court’s order, the court may be justified
in drawing the adverse inference. All the pros and cons must be
examined before the adverse inference is drawn. Such
presumption is permissible, if other larger evidence is shown to the
contrary.
11. It is submitted by counsel for respondents that respondents have
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specifically pleaded that appointment of appellant was contrary to law and,
therefore, non production of record, by itself, would not be sufficient to draw
an adverse inference against the respondent.
12. Considered the submission made by counsel for respondents.
13. If respondents had made pleadings on the basis of record, then
nothing had prevented them from producing it before the Court, specifically
when existence of record was never denied by the respondents. If in spite of
the order passed by this Court, respondents are not ready to produce the
record, then it may give an impression in the mind of the Court that
something is fishy which respondents want to hide.
14. Furthermore, the Supreme Court in the case of State of Karnataka
vs. Uma Devi, reported in (2006) 4 SCC 1 has held that regularization, if any
already made, but not sub-judice, need not be reopened based on the said
judgment, but there should be no further by-passing of the constitutional
requirement and regularizing or making permanent, those not duly appointed
as per the constitutional scheme.
15. Under these circumstances, this Court is of considered opinion
that where respondents were not ready to produce the record in spite of
directions given by this Court, then non grant of opportunity of hearing
cannot be said to be a useless formality . Therefore, the order dated 16-11-
2018 passed by learned Single Judge in W.P. No. 697/2009, as well as, order
dated 7/2/2019 passed by learned Single Judge in R.P. No.1811/2018,
requires interference.
16. It is submitted by counsel for appellant that appellant is still
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working by virtue of interim orders passed by this Court from time to time.
17. Accordingly, writ petition filed by appellant is, hereby, allowed
and order dated 4/2/2009 passed by Under Secretary, State of M.P., Urban
Administration and Development Department, Bhopal in file No. F 4-
171/04/18-3 is, hereby, set aside. Order dated 16-11-2018 passed by learned
Single Judge in W.P. No.697/2009, as well as, order dated 7/2/2019 passed
by learned Single Judge in R.P. No.1811/2018 are hereby set aside.
18. Matter is remanded back to the Urban Administration and
Development Department to issue notice thereby calling upon the petitioner
to show cause as to why his regularization may not be cancelled and shall
also provide the petitioner all the necessary documents on which the
department wants to place reliance. The department of Urban administration
and Development shall decide the matter afresh without getting influenced or
prejudiced by order dated 4/2/2009. Let notice be issued within a period of
two months from today.
19. With aforesaid observations, this appeal is allowed.
(G. S. AHLUWALIA) (ASHISH SHROTI)
JUDGE JUDGE
(and)
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