Central Administrative Tribunal - Chandigarh
Devender Singh vs D/O Post on 6 October, 2017
Author: P. Gopinath
Bench: P. Gopinath
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
(CIRCUIT BENCH AT SHIMLA)
...
OA No. 063/00116/2016 Date of decision- 06.10.2017
...
CORAM: HON'BLE MR. SANJEEV KAUSHIK, MEMBER (J)
HON'BLE MRS. P. GOPINATH, MEMBER (A)
...
Devender Singh S/o Sh. Khajan Singh
R/o VPO Baldayan Via Mashobra,
District Shimla,
HP.
...APPLICANT
BY ADVOCATE : Mr. M.L. Sharma.
VERSUS
1. Union of India,
Through the Secretary,
Department of Posts,
Ministry of Communication & IT, Dak Bhawan,
Parliament Street,
New Delhi-110001.
2. The Chief Post Master General,
Himachal Pradesh Circle,
Kasumpti, Shimla-171009.
3. Superintendent of Post Offices,
Solan Postal Division,
Solan, H.P.
4. Inspector,
Post Office Parwanoo Sub Division,
District Solan, H.P.
...RESPONDENTS
BY ADVOCATE: Mr. Anshul Bansal.
OA No. 063/00116/2016
2
ORDER
...
SANJEEV KAUSHIK, MEMBER(J):-
The applicant seeks correctness of order 01.07.2016 (Annexure A-4) and order dated 01.08.2016 (Annexure A-5).
2. The facts are not in dispute. The respondents issued advertisement for filling up the post of Gramin Dak Sewak Mail Carrier in Parwanoo Postal Sub Division, District Solan, HP, in the month of March 2015. The applicant being fully eligible in terms of notice applied for the said post. On the basis of over all merit, he was offered appointment vide office order dated 09.03.2016 but he had already joined his duty on 29.06.2015. Subsequent to that the applicant was served with notice dated 10.06.2016 whereby he was intimated that due to some irregularity in his appointment, his appointment to the post of GDS MC has been cancelled by invoking the provision of 4(3) of the GDS (Conduct & Engagement) Rules, 2011. He was further directed to appear before respondent no. 3 on 21.06.2016 at 11.00 AM.
3. It is the case of the applicant that he was present in the office of respondent no. 3 as directed, but unfortunately he was on leave and personal hearing to him was not granted. Instead of allowing the applicant to appear before concerned authority on some other day, the respondents vide order dated 01.07.2016 (Annexure A-4) had terminated his services w.e.f. the date of expiry of one month i.e. from 31.07.2016. This order was followed by another order dated 01.08.2016 (Annexure A-5). Hence the present O.A.
4. The applicant has taken solitary ground for invalidation of impugned order that the same has been passed in violation of OA No. 063/00116/2016 3 principles of natural justice as he has neither been given opportunity to file reply to show cause notice nor afforded any opportunity of hearing before passing of order of termination which has civil consequences, therefore, impugned orders be quashed and set aside.
5. Learned counsel for the applicant argued on similar lines and prayed that impugned orders being violative of well established of principles of natural justice, be quashed.
6. The respondents have filed written statement wherein they did not dispute the factual accuracy. They submitted that since present engagement process of selection has been made by ignoring the prescribed conditions and adding no prescribed conditions to give benefit to the applicant, which is a glaring example of nepotism and favoritism, therefore, the authorities had considered to dispense with the service of the applicant by invoking Rule 4(3) of GDS (Conduct & Engagement) Rule 2011. They have also submitted that on the date fixed for personal hearing, the applicant was not there, therefore, the competent authority had passed the impugned order terminating his service.
7. In support of above, Mr. Bansal, learned counsel for the respondents has reiterated what has been stated in the written statement.
8. We have given our thoughtful consideration to the entire matter and have perused the pleadings as available on record.
9. Solitary issue which has been raised in the present O.A is violation of principles of natural justice.
10. Before answering the poser, we would like to trace the legal authorities on this issue. In early 60's and 70's, the Superior Courts had treated violation of the rules of natural justice as sufficient OA No. 063/00116/2016 4 for invalidating administrative and quasi-judicial actions and orders without requiring the petitioner to plead and prove that his cause had been prejudiced on account of such violation. The theory of empty/useless formality was discarded on the premise that violation of the rules of natural justice is itself a prejudice. This trend has decisively changed in the recent years and, as of now, it is settled law that violation of the rules of natural justice is not sufficient to invalidate the quasi-judicial and administrative orders unless the applicant/petitioner pleads and prima facie shows that his cause has been prejudiced. We are citing few authoritative pronouncements on this issue.
11. In Keshav Mills Co Ltd. v. Union of India, (1973) 1 SCC 380, the Hon'ble Apex Court extracted with approval the observations of Lord Reid in Ridge v. Baldwin, (1963) 2 W.L.R. 935 and said:
"8. ... ... We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of natural justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of natural justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably. Where administrative officers are concerned, the duty is not so much to act judicially as to act fairly. See, for instance, the observations of Lord Parker in In re H.K. (an infant), (1967) 2 QB 617. It only means that such measure of natural justice should be applied as was described by Lord Reid in Ridge v. Baldwin case (supra) as "insusceptible of exact definition but what a reasonable man would regard as a fair procedure in particular circumstances". However, even the application of the concept of fair-play requires real flexibility. Everything will depend on the actual facts and circumstances of a case. As Tucker, L.J., observed in Russell v. Duke of Norfolk, [1949] 1 All ER 109:
OA No. 063/00116/2016 5 "The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with and so forth."
12. In the case of M.C.Mehta v. Union of India 1996 SCC Page 60), the lordships of the Hon'ble Apex Court in para no 12 framed the questions and after dealing the arguments have given their findings in Para 21 of the judgment. The relevant Para reads as under:-
"12. On the above submissions, the following points arise for consideration:
(1) Whether this court, in exercise of powers under Article 32 (or the High Courts, generally, under Article 226), is bound to declare an order of Government passed in breach of principles of natural justice as void or whether the court can refuse to grant relief on the ground that the facts of the case do not justify exercise of discretion to interfere or because de facto prejudice has not been shown?
(2) Whether the court is not bound under Article 32 (or High Courts under Article 226) to quash an order of Government on ground of breach of natural justice of such an action will result in the restoration of an earlier order of Government which was also passed in breach of natural justice or which was otherwise illegal?
..........
18. We would next refer to another case, where, though there was no breach of principles of natural justice, this court held that interference was not necessary, if the result of interference would be the restoration of another order which was not legal. In Mohammad Swalleh and others v. Third Additional District Judge, Meerut, and another 1988 (1) SCC 40, which arose under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972, the prescribed authority dismissed an application filed by the landlord and this was held clearly to be contrary to the very purpose of section 43(2)(rr) of the Act. The District Court entertained an appeal by the landlord and allowed the landlord's appeal without noticing that such an appeal was not maintainable. The tenant filed a writ petition in the High Court contending that the appeal of the landlord before the District Court was not maintainable. This was a correct plea. But the High Court refused to interfere. On further appeal by the tenant, this court accepted that though no appeal lay to the District Court, the refusal by the High Court to set aside the order of the District Judge was OA No. 063/00116/2016 6 correct as that would have restored the order of the prescribed authority, which was illegal.
19. Learned senior counsel for Bharat Petroleum contended that once natural justice was violated, the court was bound to strike down the orders and there was no discretion to refuse relief and no other prejudice need be proved.
20. It is true that in Ridge v. Baldwin [1964] A.C. 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this court in several cases, but we might point out that this court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J., in S. L. Kapoor v. Jagmohan 1980 (4) SCC
379. After stating (page 395) that 'principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed' and that 'non-observance of natural justice is itself prejudice to a man and proof of prejudice independently of proof of denial of natural justice is unnecessary', Chinnappa Reddy, J., also laid down an important qualification (page 395) as follows :
"As we said earlier, where on the admitted or indisputable facts, only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because courts do not issue futile writs."
21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the court need not issue a writ merely because there is violation of principles of natural justice."
13. In Graphite India ltd. And Another v. Durgapur Project Ltd. And others [1999) 7 SCC 645], it has been held that the principles of natural justice can be waived.
In 'Administrative Law', 8th Edn., by William Wade and Christopher Forsyth at page 491, it has been stated :
"...At the other end of the spectrum of power, public authorities themselves are now given the benefit of natural justice, as illustrated at the end of this section. Basically the principle is confined by no frontiers.
OA No. 063/00116/2016 7 On the other hand it must be a flexible principle. The judges, anxious as always to preserve some freedom of manoeuvre, emphasise that 'it is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter'. Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. 'In the application of the concept of fair play there must be real flexibility'. There must also have been some real prejudice to the complainant: there is no such thing as a merely technical infringement of natural justice."
14. In Divisional Manager, Plantation Division A and N Islands v. Munnu Barrick , the Supreme Court held that the principles of natural justice cannot be put in straight jacket formula and in a case involving violation of the rules of natural justice, the Court can insist upon proof of prejudice before setting aside the order impugned before it. The Supreme Court further held that the Court may invoke "useless formality theory" and decline to interfere with the order under challenge if the petitioner fails to prove prejudice.
15. We may finally refer to the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529, where this Hon'ble supreme Court with approval quoted the following observations of Sir Willam Wade (Administrative Law, 9th Edn. pp.468-471) "... ... it is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject- matter to be dealt with and so forth."
OA No. 063/00116/2016 8
16. In Karnataka State road Transport Corporation v. S.G. Kotturappa Civil appeal 4868/1999 decided on 3.3.2005, the Hon'ble Supreme Court held as under:
"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given."
17. In Punjab National Bank v. Manjeet singh (Civil appeal 4330/2006 ) decided on 29.9.2006, the Hon'ble Supreme Court opined as under:
"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."
18. The Hon'ble Apex Court in the case of P.D. Agarwal Vs. State Bank of India (2006(8) SCC 776) has held that the principles of natural justice cannot be put in a straight jacket formula and then observed:
"Decision of this Court in S.L.Kapoor v. Jagmohan and Ors., whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes OA No. 063/00116/2016 9 prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala and Ors. v. S.K. Sharma and Rajendra Singh v. State of M.P. , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula."
19. Similar view has already been taken by the Tribunal in the case of Dr. C.S. Gautam & Another Vs. Union of India & Ors. decided on 21.04.2015 (O.A No. 060/00157/2015) on the basis of judicial pronouncements of the Hon'ble Apex Court.
20. The underlying theme of the above pronouncement is that the omnipresence and the omniscience (sic) of the principles of natural justice act as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. The entire law has already been considered by the Hon'ble Supreme Court and it is held that principles of natural justice cannot be put in straight jacket formula as it has to be made applicable in the facts of each case.
21. Conjunctive perusal of pleadings makes it clear that the respondents have cancelled the appointment of applicant on being inquiry where it has been established that there are procedural irregularities in appointment of the applicant. The applicant joined the post of GDC MC on 29.06.2015, whereas he was offered appointment letter on 09.03.2016 i.e. almost after 9 months of his joining. Written statement also indicates that while filling up the post which the OA No. 063/00116/2016 10 applicant is holding, the authority who had initiated the process was not otherwise competent under the rule formulation and there is clear deviation of rule while notifying the vacancy and then offering appointment to the applicant. Based upon the inquiry conducted by the Vigilance Officer O/o Chief Postmaster General, Shimla and glaring irregularities surfaced in engagement process in the inquiry, the Superintendent Post Offices, Solan was directed by the Competent Authority to take action and cancel three recruitments, including the appointment of the applicant as per Rule 4(3) of Gramin Dak Sevaks (Conduct and Engagement) Rules, 2011. This defence as taken by the respondents in defence of impugned order has not been rebutted by the applicant whiling filing rejoinder. In view of the un-rebutted submission made by the respondents while terminating his service, we see no reason to interfere with the impugned order and set aside the same being voilative of principles of natural justice because it will not serve any purpose as the applicant has already failed to give his reasoning against the view taken by the respondents.
22. In view of the above discussion, we find that the present OA is bereft of any merit and the same is accordingly dismissed. No costs.
(P. GOPINATH) (SANJEEV KAUSHIK)
MEMBER (A) MEMBER (J)
Dated: 06.10.2017 .
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OA No. 063/00116/2016