Madhya Pradesh High Court
Mata Prasad Sahu vs State Of M.P. And Ors. on 25 April, 2000
Equivalent citations: 2000(3)MPHT408
Author: A.K. Mishra
Bench: A.K. Mishra
ORDER Bhawani Singh, C.J.
1. This batch of 17 Writ Petitions (1) W.P. 1808/98 (Maniram Jatav v. State of M.P. and Ors.); (2) W.P. No. 5785/98 (Ramavtar Sahu v. State of M.P. and Ors.); (3) W.P. No. 5790/98 (Mst. Mushtari Begum v. State of M.P. and Ors.); (4) W.P. No. 5804/98 (Mataprasad Sahu v. State of M.P. and Ors.), (5) W.P. No. 5815/98 (Moreshwar Barasker v. State of M.P. and Ors.); (6) W.P. No. 5838/98 (Shyamraj Chichkhere v. State of M.P. and Ors.); (7) W.P. No. 5949/98 (Ramkishore Kori v. State of M.P. and Ors.); (8) W.P. No. 5951/98 (Rajaram Kori v. State of M.P. and Ors.); (9) W.P. No. 5957/98 (Hari Narayan Sakya v. State of M.P. and Ors.); (10) W.P. No. 5973/98 (Vinod Babu Sharma v. State of M.P. and Ors.); (11) W.P. No. 5976/98 (Ghanshyam Das Ahirwar v. State of M.P. and Ors.); (12) W.P. No. 5989/98 (Sampatlal Kulaste v. State of M.P. and Ors.); (13) W.P. No. 5999/98 (Mansaram v. State of M.P. and Ors.); (14) W.P. No. 6003/98 (Shyam Singh Bhadoriya and Ors. v. State of M.P. and Ors.); (15) W.P. No. 6082/98 (Krishna Kumar Verma v. State of M.P. and Ors.); (16) W.P. No. 619/99 (Smt. Aasha Chandani v. State of M.P. and Ors.); (17) W.P. No. 659/99 (Ghanshyam Vanaskar v. State of M.P. and Ors.) is proposed to be decided by this order since they are common in nature and the question for determination in all of them is the same.
2. Some of the petitioners were appointed against regular pay-scales, while others were appointed on daily wage basis by different orders, as dispensary servants, Class IV post under the State Government. Those who were appointed for 89 days were continued in that capacity for number of years and then regularised. Petitioners in W.P. No. 5804/98 and W.P. No. 5815/98 were also promoted to the post of Compounder (Ayurved) and Compounder (Homoeopathy) respectively. These appointments were questioned and the matter was raised in the State Vidhan Sabha at some stage sequel to which a Committee was appointed to look into the matter. The Committee examined the matter and found that these appointments were illegally made. Consequently, the order dated March 23, 1998 (Annexure P-8) was passed terminating the services of the petitioners.
3. Petitioners challenged the action of the respondents before the M.P. State Administrative Tribunal Bhopal, through different applications which have been dismissed. Accepting the case of the respondents, the Tribunal has come to the conclusion that these were illegal appointments, petitioners were not qualified, therefore, they had no right to continue in service. Consequently, action taken was justified. Petitioners have challenged the decision through these petitions.
4. Shri D.K. Dixit, learned counsel for the petitioners, contended that the decision of the respondents terminating the services of the petitioners is arbitrary and in violation of principles of natural justice. Elaborating the contention, learned counsel submits that the termination order spells out that the action was taken for three reasons, namely, the appointments were bad and so were the regularisation and promotions. How the appointments, regularisation and promotions were bad has remained within the domain of the respondents and at the most, the Committee, which is stated to have been appointed to look into the matter. With a view to bring home the point, reliance is placed on the decisions of the Apex Court reported in AIR 1990 SC 1402 (Ku. Neelima Misra v. Dr. Harinder Kaur Paintal and Ors.); AIR 1991 SC 309 (Shrawan Kumar Jha and Ors. v. State of Bihar and Ors.), AIR 1996 SC 2833 (Ashwani Kumar and Ors. v. State of Bihar and Ors.) and AIR 1998 SC 3261 (Basudeo Tiwary v. Sido Kanhu University and Ors.). Next contention of learned counsel is that finding of the Tribunal that petitioners are not qualified is patently unsustainable. Reference is made to the rules for appointment and it is contended that the petitioners are qualified to hold the posts to which they have been recruited and some of them later promoted.
5. Shri Sanjay Agrawal, learned counsel for the State submitted that the appointments were made by the Divisional Officer, Ayurved in violation of the procedure for recruitment prescribed by the State Government; names were not called from the Employment Exchange nor advertisement issued seeking applications from desirous candidates for the posts in question; the State Government had imposed complete ban for recruitment of daily wage employees on vacant posts existing on 1-1-1988; and those officers who made these appointments have been subjected to disciplinary proceedings. Learned counsel further contended that since these appointments were illegally made, enquiry, as contended by the other side, was not necessary. Reliance has been placed on the decisions reported in AIR 1996 SC 2219 (State of M.P. and Ors. v. Shyama Pardhi etc.), 1994 (2) SCC 631 (S. Ashok Kumar and Ors. v. State of T.N. and Ors.) and 1997(1) SCC 350 (P. Ravindran and Ors. v. Union Territory of Pondicherry and Ors.). Precisely, the contention is that the petitioners were not entitled to hearing before the action was taken since the appointments were illegal and that they had no right to continue in service.
6. We have given our consideration to the respective contentions raised by learned counsel for parties. Facts disclose that the petitioners were either appointed against regular pay scales or on daily wage basis. They continued in the same capacity for sometime and thereafter some were regularised, while the petitioners in the two Writ Petitions aforesaid were promoted to the posts of Compounder (Ayurved) and Compounder (Homoeopathy) respectively. The question for determination in these cases is whether the respondents could dispense with the services of the petitioners without affording opportunity of being heard in defence of the action that was intended to be taken against them. We are of the considered opinion that the petitioners were entitled to prior hearing in these cases.
7. The case set up by the respondent is that appointment of the petitioners was against the rules and Government instructions. Petitioners denied this statement. They also denied that they are not qualified for the post of dispensary servants and Compounder (Ayurved) and Compounder (Homoeopathy). With this background, it was desirable that the respondents should have associated the petitioners in the enquiry that was conducted into the whole affair, but the Committee appointed to look into the matter proceeded in its own way. It should have called the petitioners also to represent their cases before recording the finding that these appointments were illegally made.
8. In Ku. Neelima Misra 's case (supra), the Apex Court has said as under (Paras 19, 22 and 23) :
"19. We find it difficult to accept the reasoning underlying the aforesaid view. Before we consider the correctness of the proposition laid down by the High Court, we must, at the expense of some space, analyse the distinctions between quasi-judicial and administrative functions. An administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and to comply with the basic requirements of justice. Where there is no such obligation, the decision is called 'purely administrative', and there is no third category. This is what was meant by Lord Reid in Ridge v. Baldwin, (1963) 2 All ER 66, 75-76 :
'In cases of the kind with which I have been dealing the Board of Works......... was dealing with a single isolated case. It was not deciding like a judge in a law suit, what were the rights of the persons before it. But it was deciding how he should be treated something analogous to a judge's duty in imposing a penalty. So it was easy to say that such a body is performing a quasi-judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character the principles of natural justice. Sometimes the functions of a minister of department may also be of that character and then the rules of natural justice can apply in much the same way .....' "
"22. An administrative order which involves civil consequences must be made consistently with the rule expressed in the Latin Maxim audi alteram partem. It means that the decision maker should afford to any party to a dispute an opportunity to present his case. A large number of authorities are on this point and we will not travel over the field of authorities. What is now not in dispute is that the person concerned must be informed of the case against him and the evidence in support thereof and must be given a fair opportunity to meet the case before an adverse decision is taken. Ridge v. Baldwin (1963 (2) All ER 66) (supra). State of Orissa v. Dr. Binapani Dei, (1967) 2 SCR 625 : (AIR 1967 SC 1269)."
"23. The shift now is to a broader notion of 'fairness' or 'fair procedure' in the administrative action. The administrative officers are concerned the duty is not so much to act judicially as to act fairly (See : Keshav Mills Co. Ltd. v. Union of India, (1973-3 SCR 22 at p. 30 : (AIR 1973 SC 389 at Pp. 393-94) : Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 at p. 434 : (AIR 1978 SC 851 at Pp 871-72; Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664 : (AIR 1981 SC 818) and Management of M.S. Nally Bharat Engineering Co. Ltd. v. The State of Bihar (Civil Appeal No. 1102 of 1990, decided on February 9, 1990). For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a 'lis'. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or prejudicially affects something which would judicially be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept."
9. In Shrawan Kumar Jha's case (supra), the Supreme Court has said that where appointments are to be cancelled on the ground of incompetence of the authority, prior opportunity of hearing should be given. In Para 3, the Court said :
"By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents, has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U.R. Lalit and Mr. A.K. Ganguly, learned Senior Advocates, appearing for the appellants, have controverted these allegations and have dated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the Secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period."
Again, in Basudeo Tiwary's case (supra), the Apex Court said that for arriving at the conclusion that the appointment was contrary to the provisions of the Act etc., holding of enquiry is necessary and the person whose appointment is under enquiry, has to be issued notice and if such a notice is not given, then it is like playing Hamlet without the Prince of Denmark. It is important to quote the exact observations of the Apex Court to appreciate the point :
"12...... If notice is not given to him, then it is like playing Hamlet without the Prince of Denmark, that is, if the employee concerned whose rights are affected is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha 's case (AIR 1991 SC 101). In such an event, we have to hold that in the provision, there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had been made contrary to the Act, Statute, Rule or Regulations etc., and it is only on such a conclusion being drawn, the services of the person could be terminated without further notice. That is how Section 35 (3) in this case will have to be read."
Finally, in Para 13, the Court said :
"13. Admittedly in this case, notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained."
10. Looking to the decisions quoted above, it is absolutely clear that there should be fairness in the action. Process for taking action is to answer requirement of fairness which is an essential attribute of justice. Petitioners have remained in service for a long time. Some of them were promoted to the higher posts also. Therefore, before taking the action, opportunity for hearing should have been extended to them. Decisions cited by the learned counsel for respondents turn on different facts and are not, therefore, applicable to the facts of the case and the principle projected for challenging the impugned action. Question whether appointments are in accordance with Government rules, regulations, instructions and whether the petitioners are qualified are left to be considered by the authority which should hear the petitioners in the matter.
11. Consequently these writ petitions are allowed. Orders of termination of the petitioners are set aside and they are directed to be reinstated. Costs on parties.