Himachal Pradesh High Court
Smt. Shankari Devi vs State Of H.P. & Ors on 8 May, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 2074 of 2008 .
Date of decision: 8.5.2015.
Smt. Shankari Devi ...... Petitioner
Vs.
State of H.P. & ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes 1 For the petitioner : Mr. Dalip K. Sharma, Advocate.
For the respondents : Mr. Virender Kumar Verma, Ms. Meenakshi Sharma and Mr. Rupinder Singh, Additional Advocate Generals.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner is aggrieved by the order dated 26.9.2008 whereby her services came to be terminated and has filed the present writ petition claiming therein the following substantive reliefs:
(a) That a writ of certiorari may be issued for quashing and setting aside the impugned order dated 26.9.2008 whereby the services of the petitioner has been terminated without any notice/reasons/show cause, in the interest of justice and fair play.
(b) That writ of mandamus may be issued directing the respondent to allow the petitioner to perform her duties Govt. Primary School, Kuftoo, Tehsil Kandaghat, District Solan, H.P.
2. The facts lie in narrow campus. The petitioner applied for the post of Part Time Water Carrier and on 19.5.2000 was appointed in Govt. Primary School, Kuftoo. She joined her services on 22.5.2000. However, her services came to be terminated on Whether the reporters of the local papers may be allowed to see the Judgment?yes ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...2...
26.9.2008. The precise grievance of the petitioner is that before terminating her services, no notice/reasons/show cause notice was .
issued to her and she is not even aware as to why and on what basis her services came to be terminated.
3. The respondents in their reply have stated that as per the information received from the Block Primary Education Officer, Kandaghat, the petitioner's date of birth in the family register was entered as 1940 and, therefore, she had attained the age of superannuation even prior to her appointment and when this fact came to the notice of the department, the petitioner was retired from service on 26.9.2008.
4. When the matter came up for consideration on 27.10.2008, it passed the following orders:
"CWP No. 2074 of 2008Heard Mr. Dalip Kumar Sharma, learned counsel for the petitioner . Issue notice. Notice on behalf of respondents No. 1 to 5 is being accepted by learned Advocate General. Necessary instructions have to be obtained by learned Advocate General by 3.11.2008 to apprise this Court whether notice before termination in terms of the conditions of appointment letter was given to the petitioner or not. Liberty is also given to file short reply by the learned Advocate General."
5. In compliance to the above directions, respondents filed affidavit, the copy whereof is though not available on the record but however, learned counsel for the petitioner has made available a copy thereof which shall now form part and parcel of the records of this case. Para-2 of the reply affidavit reads thus:
"That in this regard it is submitted that as per the information received from the Block Elementary Education Officer, Kandaghat, i.e. respondent No.4, the petitioner Smt. Shankari Devi was ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...3...
working as part time water carrier in Govt. Primary School, Kuftoo, as per entry of the family register of Gram Panchayat, Podhana, her date of birth is entered 1940, therefore, she was retired on .
26.09.2008 on superannuation. This fact is also clear from Annexure P/7, wherein word retired in Hindi is also written. So there was no need to issue notice to her."
6. The moot question which arises for consideration is as to whether the services of the petitioner could have been terminated/ retired from service in the manner aforesaid? Has not the impugned order visited her with civil and evil consequences? Was not the petitioner required to be afforded atleast a reasonable opportunity of being heard before the impugned order could have been passed?
7. The natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens.
Rules of natural Justice are 'basic Values' which a man has cherished throughout the ages. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. The underline object of rules of natural justice is to ensure fundamental liabilities and rights of citizens. They thus served public interest. The golden rule which stand firmly established is the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice.
8. Treaties on the subject is the judgment of the Hon'ble Supreme Court in P.D. Dinakran (1) vs. Judges Inquiry Committee ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...4...
and others (2011) 8 SCC 380, wherein the Hon'ble Supreme Court held as under:
.
"32. The traditional English Law recognised the following two principles of natural justice:
"(a) "Nemo debet esse judex in propria causa: No man shall be a judge in his own cause, or no man can act as both at the one and the same time - a party or a suitor and also as a judge, or the deciding authority must be impartial and without bias; and
(b) Audi alteram partem: Hear the other side, or both the sides must be heard, or no man should be condemned unheard, or that there must be fairness on r the part of the deciding authority."
However, over the years, the Courts through out the world have discovered new facets of the rules of natural justice and applied them to judicial, quasi- judicial and even administrative actions/decisions. At the same time, the Courts have repeatedly emphasized that the rules of natural justice are flexible and their application depends upon the facts of a given case and the statutory provisions, if any, applicable, nature of the right which may be affected and the consequences which may follow due to violation of the rules of natural justice.
33. In Russel v. Duke of Norfolk (1949) 1 All ER 109, (CA), Tucker, L.J. observed: (All ER p.118 D-E) "There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."
34. In Byrne v. Kinematograph Renters Society Limited (1958) 2 All ER 579, Lord Harman made the following observations: (WLR p. 784) "What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made;
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secondly, that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more."
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35. In Union of India v. P.K. Roy AIR 1968 SC 850, Ramaswami, J. observed: (AIR p.858, para 11) " 11. ....The extent and application of the doctrine of natural justice cannot be imprisoned within the strait- jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances r disclosed in the particular case."
36. In Suresh Koshy George v. University of Kerala AIR 1969 SC 198, K.S. Hegde, J. observed: (AIR p.201, para 7) "7. .......The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions."
37. A.K. Kraipak v. Union of India (1969) 2 SCC 262 represents an important milestone in the field of administrative law. The question which came up for consideration by the Constitution Bench was whether Naqishbund who was a candidate seeking selection for appointment to the All India Forest Service was disqualified from being a member of the selection board. One of the issues considered by the Court was whether the rules of natural justice were applicable to purely administrative action. After noticing some precedents on the subject, the Court held: (SCC pp. 268-69, para 13) " 13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...6...
exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like .
ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a r quasi- judicial power."
38. The Court then considered whether the rules of natural justice were applicable to a case involving selection for appointment to a particular service. The learned Attorney General argued that the rules of natural justice were not applicable to the process of selection. The Constitution Bench referred to the judgments of the Queen's Bench in re H.K. (An infant) (1967) 2 QB 617 and of this Court in State of Orissa v. Dr.(Miss) Binapani Dei (1967) 2 SCR 625 and observed: (A.K. Kraipak case, SCC pp. 272-73, para 20) "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 law 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 namely: (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) . Ver y 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 ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...7...
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 enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. University of Kerala the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution r of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
(emphasis supplied)
39. In Maneka Gandhi v. Union of India (supra), a larger Bench of seven Judges considered whether passport of the petitioner could be impounded without giving her notice and opportunity of hearing. Bhagwati, J, speaking for himself and for Untwalia and Fazal Ali, JJ, gave a new dimension to the rule of audi alteram partem and declared that an action taken in violation of that rule is arbitrary and violative of Articles 14 and 21 of the Constitution. The learned Judge referred to Ridge v. Baldwin (1964) AC 40, State of Orissa v. Dr.(Miss) Binapani Dei (supra), In re H.K.(An Infant) (supra) and A.K. Kraipak v. Union of India (supra) and observed: (Maneka Gandhi case, SCC pp. 291-92, para 14) "14. ....The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law "lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation". Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...8...
that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed .
to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances". The audi alteram partem rule is not cast in a rigid mould r 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. .....A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967 by necessary implication, as we hold it must be, the procedure prescribed by the Act for impounding a passport would be right, fair and just and it would not suffer from the vice of arbitrariness or unreasonableness. We must, therefore, hold that the procedure "established" by the Passports Act, 1967 for impounding a passport is in conformity with the requirement of Article 21 and does not fall foul of that article."
40. In Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545, the Constitution Bench dealt with the question whether pavement and slum dwellers could be evicted without being heard. After adverting to various precedents on the subject, Chandrachud, C.J. observed: (SCC pp. 577-78, para 40) "40. Just as a mala fide act has no existence in the eye of law, even so, unreasonableness vitiates law and procedure alike. It is therefore essential that the procedure prescribed by law for depriving a person of his fundamental right, in this case the right to life, must conform to the norms of justice and fairplay. Procedure, which is unjust or unfair in the ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...9...
circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the law which prescribes that procedure and consequently, the action taken under it. Any action taken by a public authority .
which is invested with statutory powers has, therefore, to be tested by the application of two standards: the action must be within the scope of the authority conferred by law and secondly, it must be reasonable.
If any action, within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable. The substance of the law cannot be divorced from the procedure which it prescribes for, how reasonable the law is, depends upon how fair is the procedure prescribed by it. Sir Raymond Evershed says that, "from the point of view of the ordinary citizen, it is the procedure that will most strongly weigh with him. He will tend to form his r judgment of the excellence or otherwise of the legal system from his personal knowledge and experience in seeing the legal machine at work". Therefore, 'He that takes the procedural sword shall perish with the sword.' "
9. In view of the aforesaid exposition of law, the impugned action/order of the respondents cannot be sustained as the same is not only violative of principles of natural justice but also fair play. The least which was expected from the respondents was to serve a show cause notice upon the petitioner calling for her explanation and it was only after hearing the petitioner that her services could have been terminated that too if so warranted. Therefore, this Court has no option but to quash and set-aside the order dated 26.9.2008.
10. Accordingly, the writ petition is allowed and the order dated 26.9.2008 whereby the petitioner was ordered to be retired is quashed and set-aside. The petitioner shall be deemed to continue in service on the basis of her date of birth as reflected in the medical certificate of fitness (Annexure P-6) or till such time when the respondents hold an inquiry and establish the date of birth of the petitioner to be at variance to what is reflected in Annexure P-6. Since ::: Downloaded on - 15/04/2017 18:08:34 :::HCHP ...10...
the petitioner's services have been illegally retired, she shall be entitled to all consequential benefits including arrears which shall be .
paid to her within a period of eight weeks, failing which, the respondents shall also be liable to pay interest on this amount at the rate of 9% per annum.
11. The writ petition is disposed of in the aforesaid terms, so also the pending application(s), if any.
May 8, 2015. ( Tarlok Singh Chauhan ),
(GR)
r Judge
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