Allahabad High Court
Anil Kumar Rana vs State Of U.P. Through Prin. Secy. Home ... on 28 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1266
Bench: Pankaj Kumar Jaiswal, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In Chamber A.F.R. Case :- SPECIAL APPEAL No. - 140 of 2020 Appellant :- Anil Kumar Rana Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Others Counsel for Appellant :- Raj Vikram Singh Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Saurabh Lavania,J.
(As per Saurabh Lavania,J. ) When the matter was taken up through Video Conferencing Sri Raj Vikram Singh, learned counsel for the petitioner and Sri Manish Mathur, learned counsel for the State-respondent appeared.
Under appeal is the judgment and order dated 27.02.2020 passed in Writ Petition No.2936 (S/S) of 2020 (Anil Kumar Rana v. State of U.P. & Ors.).
Brief facts of the case are to the effect that the petitioner/appellant filed the Writ Petition No.2936 (S/S) of 2020, for the following main reliefs:-
"(i) This Hon'ble Court may graciously be pleased to issue a writ of mandamus to direct the opposite parties to provide the enquiry report of the de-nova enquiry to the petitioner.
(ii) This Hon'ble Court may graciously be pleased to issue a writ of mandamus to direct the opposite parties to provide the status of the de-nova enquiry to the petitioner."
It is stated that the appellant was duly selected on 17.08.1997 on the post of constable in the police department of Uttar Pradesh under reserved category i.e. Schedule Tribes. After rendering 11 years regular service in the department, a preliminary enquiry was initiated against the petitioner in regard to the Caste Certificate No.9320, which was issued on 01.02.1994 by the Tehsildar Shahbad-District-Hardoi, and thereafter departmental/disciplinary proceedings were carried out against the appellant under the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules 1991 (in short "Rules of 1991") and the appellant was dismissed from service vide order dated 26.06.2007.
Being aggrieved by the order of dismissal dated 26.06.2007, the appellant preferred the departmental appeal under the Rules of 1991, that too was dismissed by the Appellate Authority vide order dated 30.04.2008.
Challenging the order of dismissal dated 26.06.2007 as also the order of Appellate Authority dated 30.04.2008, the appellant preferred the Writ Petition No. 4262 (S/S) of 2008 (Anil Kumar Rana vs. State of U.P. & Ors.) and the same was decided on 28.07.2008 by this Court. Vide order dated 28.07.2008, the appellant was directed to approach the U.P. State Services Tribunal (in short "Tribunal"). Thereafter, the appellant approach the Tribunal by filing Claim Petition 2306 of 2010 (Anil Kumar Rana vs. State of U.P. & Ors.). The Claim Petition was filed against the order of dismissal dated 26.06.2007 and order of Appellate Authority dated 30.04.2008 and the same was dismissed vide judgment and order dated 24.08.2011 by the Tribunal. The Claim Petition was dismissed being highly time barred.
Thereafter, the petitioner approached this Court by means of Writ Petition No.1788 (S/B) of 2010 (Anil Kumar Rana vs. State of U.P. & Ors.) and the same was dismissed vide order dated 10.12.2015.
Needless to say that this Court also dismissed the Review Petition No.563 of 2015 filed by the appellant with regard to judgment and order dated 10.12.2015 passed in Writ Petition No.1788 (S/B) of 2011 vide order dated 19.05.2016.
Being aggrieved, the appellant approached the Hon'ble Apex Court by preferring the Special Leave Petition, which was also dismissed.
It is also stated that after dismissal of Special Leave Petition, the appellant preferred an application dated 13.06.2018 for de-novo enquiry and on the said application, the de-novo/disciplinary enquiry was initiated by the opposite party no.2, in which the opposite party no.3, Inspector Police Station-Shahabad, District Hardoi, was appointed as enquiry officer. In the de-nono enquiry, the enquiry officer sent a letter dated 27.08.2018 to Tehsildar Shahabad, District-Hardoi for the purposes of verification of Caste Certificate No.9320 of the appellant. In response to the letter dated 27.08.2018, Tehsildar Shahabad, District-Hardoi vide his letter dated 31.10.2018 informed that the Caste Certificate No.9320 is not original but another Case Certificate No.7629 is the original and was issued by the Tehsildar-Shahabad, District-Hardoi.
It is further stated that with regard to the de-novo/disciplinary enquiry, the appellant moved an application under Right to Information Act, 2005 through an Advocate and in absence of any reply to the same, the appellant preferred the Claim Petition no.1819 of 2019 (Anil Kumar Rana vs. State of U.P. & Ors. ) before the Tribunal seeking direction to official respondents to provide the status of de-novo enquiry and the copy of the enquiry report, as apppears from order of Tribunal dated 24.01.2020. The Tribunal dismissed the Claim Petition vide order dated 24.01.2020 being not maintainable.
In the aforesaid factual background the appellant approached this Court by means of Writ Petition No.2936 (S/S) of 2020 for the reliefs quoted above. The relevant paras of the Writ Petition are quoted below for ready reference:-
"25. That there after on 14.06.2018 the petitioner sent an application for de-novo enquiry in the light of the judgment of the Hon'ble Apex Court in "Union of India and others vs. P.Thayagarajan" dated 24, November 1998. This is pertinent to mention herein the said judgment of Hon'ble Apex Court reiterated that if any fact or legal point has been left then the de-novo enquiry may be initiated.
26. That on the application the opposite party no.2 initiated the de-novo enquiry and the opposite party no.3 was appointed the enquiry officer.
27. That after commencement of the enquiry the petitioner was called various times for the inquiry and the petitioner co-operated in the enquiry so that he always appeared before enquiry officer.
28. That the caste certificate which was disputed and in question was verified by the enquiry officer opposite party no.3 and reply thereof the opposite party no.4 written a letter to the opposite party no. whereby the opposite party no. (Tehsildar Shahabad Hardoi rectified and told the caste certificate no.6320 of the petitioner is fake.)".
29. That on the application the opposite party no.2 initiated the de-novo enquiry and the Inspector Police Station, Shahabad, District Hardoi was appointed the enquiry officer.
30. That on 27.08.2018 the enquiry officer sent a letter ot verify the caste certificate no.9320 of the petitioner from the Tehsildar Shahabad, Hardoi.
31. That the Tehsildar Shahabad, District Hardoi vide his letter No.595/Ra. Li.-Jati Satyapan/18 dated 31.10.2018 informed to the enquiry officer that the caste certificate 9320 of the appellant is not original but his another caste certificate no.7629 is the original and issued by the Tehsil Shahabad. The true copy of the letter No.595/Ra. Li.-Jati Satyapan/18 dated 31.10.2018 of the Tehsildar Shahabad, District Hardoi, is being annexed here as Anneuxre No.2 to this Writ Petition.
32. That the petitioner was never sent any letter of enquiry nor he was provided the number of the letter of the opposite parties pertaining to the de-novo enquiry and he was not told the final decision taken by the opposite parties on the enquiry report of the enquiry officer."
The Writ Court on 14.02.2020, after taking into consideration the facts and the relevant documents available on record granted time to learned counsel for the appellant to bring on record any document to show that the de-novo enquiry was conducted against the appellant. The relevant observation made in the order dated 14.02.2020, on reproduction, reads as under:-
"From a perusal of the material on record, it appears that there is no document indicating initiation of any de novo inquiry after dismissal of special leave petition by Hon'ble the Supreme Court. In the aforesaid factors it does not appear that any de novo inquiry was conducted although learned counsel for petitioner has drawn attention to a letter dated 31st October, 2018, which however does not indicate the same.
Learned counsel for petitioner seeks some time in order to bring on record any document such as as a charge sheet indicating de novo disciplinary inquiry having been held."
The Writ Court after taking into consideration the arguments advanced by the learned counsel for the petitioner-appellant made following observations in the order dated 12.02.2020:-
"Today, learned counsel for the petitioner could not bring on record any documents indicating the fact as to whether the de novo inquiry has been initiated in the issue of the petitioner.
As per learned counsel for the petitioner, since no document any kind whatsoever including the charge-sheet have been served upon the petitioner after initiating the de novo proceedings, therefore, he is unable to bring on record such documents.
If the petitioner was unable to bring on record such documents in terms of order dated 04.02.2020, he could have pointed out the Court with the request that he could not bring on record those documents so that the precious time of the Court could be saved. Further, he has not filed any affidavit indicating therein that the documents, as per the order of this Court dated 04.02.2020, may not be brought on record as those documents are not available with him.
This Court is unable to comprehend as to why the de novo proceedings have been initiated in the issue of the petitioner when the issue has finally been decided upto the level of Hon'ble Supreme Court.
Learned counsel for the petitioner has drawn attention of this Court towards Annexure No.2 to the writ petition, which is a letter dated 31.10.2018 preferred by the Tehsildar, Tehsil-Shahabad, District-Hardoi addressing to the Inspector Incharge, Kotwali-Shahabad referring the letter dated 27.08.2018 of Inspector Incharge of Kotwali, Shahabad apprising him that the Caste Certificate of the petitioner was issued from his office.
The contention of learned counsel for the petitioner is that if this Court summons the letter dated 27.08.2018 of Inspector Incharge, Kotwali-Shahabad, the fact would be clarified that in the issue of the petitioner the de novo inquiry has been initiated and the Inspector Incharge, Kotwali-Shahabad was the Inquiry Officer.
As per learned counsel for the petitioner, the petitioner was serving on the post of Constable, whose Appointing Authority is Superintendent of Police, therefore, only the Superintendent of Police can initiate de novo proceedings, if any, and appoint any officer as Inquiry Officer.
In view of the aforesaid submissions, learned counsel for the petitioner has submitted that on perusal of the letter dated 27.08.2018 of Inspector Incharge, Kotwali-Shahabad would be clarifed that de novo proceedings in the issue of the petitioner has been initiated.
After considering the aforesaid submission of learned counsel for the petitioner, this Court has observed that all the aforesaid contentions do not satisfy the Court regarding query being made in the order dated 04.02.2020 and has cautioned the learned counsel for the petitioner that if after summoning the said letter it is not disclose that any de novo proceedings have been initiated in issue of the petitioner, the writ petition would be dismissed with heavy cost, even then, he has pressed his request for summoning the document."
On 19.02.2020, the learned Writ Court passed the following order:-
"Heard learned counsel for the petitioner and Dr. Udaiveer, learned Additional Chief Standing Counsel.
On the basis of instruction received from Superintendent of Police, Hardoi, learned Additional Chief Standing counsel submits that no de novo enquiry has been initiated against the petitioner.
Learned counsel for the petitioner refuted the said statement and submitted that if there is no de novo enquiry, then personal affidavit of Superintendent of Police, Hardoi should be filed. It is further submitted by learned counsel for the petitioner that letter dated 27.8.2018 issued by respondent no.3-Enquiry Officer/Inspector, Police Station Shahabad, District Hardoi, has not been placed before this Court.
Learned Additional Chief Standing counsel prays for and is granted a week's time to file personal affidavit of Superintendent of Police, District Hardoi stating all these things therein.
List this case again in the next cause list."
After the aforesaid, the personal affidavit was filed by Sri Amit Kumar, Superintendent of Police, District Hardoi. In the said affidavit it has been specifically stated that Superintendent of Police is the competent/appointing/disciplinary authority and by the authority concerned i.e. Superintendent of Police, District-Hardoi, no direction was ever given for holding the de-novo/disciplinary enuqiry against the appellant.
In regard to the application/representation dated 13.06.2018 moved by the appellant after dismissal of Special Leave Petition by the Apex Court, it is stated that in routine manner the same was forwarded to S.H.O. Shahabad on 21.06.2018 and in turn the S.H.O., Hardoi forwarded the same to the Sub-Inspector Civil Police, P.S.-Shahabad and thereafter Sub-Inspector sent a letter to the Tehsildar-Shahabad and in response to the same, Tehsildar-Shahabad replied vide letter dated 31.10.2018 Shahabad affirming its earlier report sent in respect of Caste Certificate. The relevant paras of the personal affidavit of Superintendent of Police, District- Hardoi, Sri Amit Kumar reads as under:-
"13. That after the aforesaid legal recourse being exhausted by the petitioner (except the claim petition no. 1819 of 2019) he made a misconceived representation / application dated 13.06.2018 address to the Superintendent of Police, District Hardoi for de-nova enquiry and the marked to the Circle Officer same was (Police) Shahabad in routine manner and the Circle Officer, in turn, forwarded to the said application to S.H.O. Shahabad on 21.06.2018.
14.. That in very routine manner the Shahabad also deputed the application to the Sub Inspector, Civil Police, namely Sri Om Pal Singh working in P.S. Shahabad and the said Sub Inspector sent a letter to Tehsildar, Tehsil- Shahabad and the Tehsildar replied vide ts letter dated 31.10.2018 to S.H.O. Shahabad affirming its earlier report sent in respect of caste certificate. The copy of the letter dated 27.08.2018 issued to Tehsildar Shahabad, Hardoi by Sub-Inspector Om Pal Singh and reply thereof by Tehsildar dated 31.10.2018 annexed are herewith as Annexure No. P.A.-1 and P.A.-2.
15. That deponent reaffirms and states that no order direction was ever for initiating/ conducting the de-nova enquiry in the natter of the petitioner by the deponent or the then Superintendent of Police, District Hardoi in furtherance to application of petitioner dated 13.06.2018.
16. That there is no question to initiate or conduct any fresh enquiry in the matter particularity when the matter went to the level of the Hon'ble Apex Court. However, the application being received in routine manner in the office of deponent are forwarded to the concerned Circle Officer and in the present matter also the C.O. Shahabad Circle sent the application dated 13.06.2018 to S.H.O. Shahabad and the correspondence have been made in between the P.S. Shahabad Tehsil and Authorities.
17. That the deponent humbly submits that in the matter of petitioner the direction for de- nova enquiry was never given by the deponent or by the predecessor after receiving the application on 13.06.2018. None else except the Superintendent of Police can direct for enquiry or de-nova enquiry being the Appointing Authority and as such no direction at the level of appointing authority was ever given for de- nova enquiry. The correspondence between the P.S. Shahabad and Tehsildar has been made and the same cannot be said to be de-nova enquiry. However, it so happened in very routine manner and the petitioner cannot alleged the same to be de-nova enquiry nor can get any benefit."
Thereafter, the writ petition was fixed on 27.02.2020 and on that date when the case was called out, no one appeared for the appellant.
The learned Writ Court, after considering the previous orders as also the personal affidavit of the Superintendent of Police, District-Hardoi-Sri Amit Kumar, dismissed the writ petition with costs of Rs.5,000/- vide judgment and order dated 27.02.2020.
Needless to say that in the order dated 12.02.2020, the learned Writ Court specifically observed as under:-
"After considering the aforesaid submission of learned counsel for the petitioner, this Court has observed that all the aforesaid contentions do not satisfy the Court regarding query being made in the order dated 04.02.2020 and has cautioned the learned counsel for the petitioner that if after summoning the said letter it is not disclose that any de novo proceedings have been initiated in issue of the petitioner, the writ petition would be dismissed with heavy cost, even then, he has pressed his request for summoning the document."
Further, in the judgment under appeal dated 27.02.2020, the learned Writ Court has specifically stated that "since the learned counsel for the appellant has not appeared in this case today nor any request for adjournment has been made, therefore, the matter is being decided finally on the basis of material available on record."
In the aforesaid factual background the present appeal has been filed assailing the judgment and order dated 27.02.2020.
Sri Raj Vikram Singh, learned counsel for the appellant while assailing the judgment and order dated 27.02.2020, under appeal, broadly argued that:-
(i) The observation of the learned Writ Court with regard to the issuance of fresh charge-sheet for the purposes of holding the de-novo enquiry is unsustainable in view of the judgment of this Court dated 14.09.2016 in Writ-A No.41169 of 2003 of (Shamsher Bahadur vs. Board of Directors, Farrukhabad Gramin Bank).
(ii) The copy of the supplementary affidavit was not provided to the appellant and even no opportunity of filing its response was given to the appellant. In absence of reply to the personal affidavit, the Writ Court considered the averments made therein and dismissed the writ petition.
(iii) The judgment, under appeal, dated 27.02.2020 is an ex-parte judgment as on the said date the learned counsel for the appellant could not appear before the learned Writ Court. The learned Writ Court failed to appreciate the pleadings and documents on record pertaining to initiation of de-novo enquiry.
Per contra, Sri Manish Mishra, learned Standing Counsel appearing for State, supporting the judgment, under appeal, dated 27.02.2020 submitted that pleading with regard to holding of de-novo enquiry against the appellant are not sufficient nor any document has been placed before the learned Writ Court by the appellant to prove the fact that the de-novo enquiry was ordered by the competent authority i.e. Superintendent of Police, District Hardoi.
Learned State Counsel further submitted that after taking into consideration the pleadings and documents on record, the Writ Court vide order dated 04.02.2020 granted time to learned counsel for the appellant to bring on record any document by which it can be proved that de-novo enquiry was ordered against the appellant and thereafter this Court passed the order dated 12.02.2020 as also the 19.02.2020. In compliance of order passed by this Court dated 19.02.2020, the Superintendent of Police, Hardoi filed his personal affidavit, wherein it has been specifically stated that no order by the competent authority i.e. Superintendent of Police, Hardoi was ever passed for holding the de-novo enquiry against the appellant.
It is also stated that after dismissal of Special Leave Petition, the appellant moved an application dated 13.06.2018 for holding the de-novo enquiry and the same was proceeded in routine manner and in relation to the same, the Tehsildar vide his reply dated 21.06.2018 affirmed its earlier report sent in respect of Caste Certificate.
In response to the arguments advanced by the learned counsel for the appellant that the copy of the personal affidavit was not provided to the appellant nor any opportunity was given by the Writ Court to file its response as also the judgment under appeal, is an ex-parte judgment and in view of the same the judgment and order dated 27.02 2020 is liable to be set aside and the matter may be remanded back to the learned Writ Court for decision afresh, the learned counsel for the State, Sri Manish Mishra, submitted that the arguments advanced by the learned counsel for the appellant, are liable to be rejected keeping in view the principles of "Useless Formality" theory. Elaborating his arguments, he further submitted that before the Writ Court, the appellant failed to prove the fact related to holding of de-novo enquiry against him and even the appellant has not placed any document or affidavit before this Court to controvert the averments made in the personal affidavit sworn by Sri Amit Kumar, Superintendent of Police, District Hardoi and to prove that the de-novo enquiry was ordered or conducted in the matter of appellant and as such no fruitful purpose would be served in interfering in the judgment and order dated 27.02.2020 on the basis of the arguments raised by the learned counsel for the appellant broadly based on violation of principles of natural justice.
It is further submitted by Sri Manish Mishra, learned counsel for the State-respondent that the observations of the Writ Court in regard to issuance of charge sheet made in the judgment and order dated 27.02.2020 have only been made to ascertain the fact that whether in the matter of appellant the de-novo enquiry was ordered or conducted, which in fact was neither initiated nor conducted, and accordingly, on this aspect, the judgment, under appeal, is not liable to be interfered with.
In addition to above, it is submitted that the appeal is liable to be dismissed with heavy costs taking into consideration the entirety of the case as also the observation made by the Writ Court in the order dated 12.02.2020.
Heard learned counsel for the parties and perused the record.
The following issues are required to be considered in the instant appeal.
(i) Weather in the instant case for holding the de-novo enquiry the competent authority i.e. Superintendent of Police, District Hardoi passed any order or not.
(ii) Whether the judgment, under appeal, is liable to be interfered with on the grounds related to principles of natural justice or not.
With regard to issue no.(i), we have considered the averments made in the memo of writ petition, quoted hereinbefore, as also documents annexed therewith and the contents of the uncontroverted personal affidavit filed by the Superintendent of Police District Hardoi.
In para 25 to 32 of the Writ Petition certain facts have been narrated with regard to initiation of holding of de-novo enquiry. In support of averments made in para 25 to 32, the petitioner-appellant has not placed on record the order of initiation of de-novo enquiry against him by the competent authority i.e. Superintendent of Police, District Hardoi. In absence of any order of the competent authority i.e. Superintendent of Police, District Hardoi for holding the de-novo enquiry in the matter of appellant, it can not be held that the de-novo enquiry was initiated in the matter of appellant. In this view, we are of the view that the averments made in para 25 to 32 of the writ petition, are misconceived.
The averments made in para 25 to 32 of the writ petition have been controverted by the Superintendent of Police, District Hardoi in his personal affidavit. In the personal affidavit filed by the Superintendent of Police, District Hardoi, it has been specifically stated that the application of the appellant dated 13.06.2018 was proceeded in routine manner and in relation to the same, Tehsildar-Shahabad, District Hardoi vide his letter dated 31.10.2018 affirmed its earlier report sent in respect of caste certificate and it has also been specifically stated therein that de-novo enquiry was never initiated either by the deponent or by the predecessor of the deponent after receiving the application of the appellant on 13.06.2018. It has also been stated that Superintendent of Police, District Hardoi is the competent authority and in the case of appellant no order was ever passed by the competent authority to hold the de-novo enquiry.
Even before this Court, in the appeal, no affidavit or document has been filed by the petitioner-appellant controverting the averments made in the personal affidavit of the Superintendent of Police, District Hardoi.
In view of the aforesaid, particularly in absence of any document or affidavit controverting the facts/averments made in the personal affidavit filed by the Superintendent of Police, District Hardoi, we are of the view that in the instant case, de-novo enquiry against the appellant was never ordered or initiated by the competent authority i.e. Superintendent of Police, District Hardoi.
Now coming to issue no.(ii). Issue no.(ii), which is to the effect that whether the judgment, under appeal, is liable to be interfered with on the ground of violation of principles of natural justice or not.
In the instant case, the violation of principles of natural justice has been alleged by the learned counsel for the appellant on two aspects i.e. (i) the opportunity was not provided by the Writ Court to file the response to the personal affidavit filed by the Superintendent of Police, District Hardoi, which was relied upon by the Writ Court while passing the judgment dated 27.02.2020 and (ii) the judgment, is an ex-parte judgment as on the date of passing of judgment i.e. 27.02.2020, learned counsel for the appellant could not appear before the Writ Court.
At this juncture, we feel it appropriate to quote relevant paragraphs of the judgment of the Hon'ble Apex Court passed in the case of Aligarh Muslim University & Ors. vs. Mansoor Ali Khan reported in (2000) 7 SCC 529, which are as under:-
"21. As pointed recently in M.C. Mehta v. Union of India [(1999) 6 SCC 237] there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828 : (1966) 2 SCR 172] it is not necessary to quash the order merely because of violation of principles of natural justice.
22. In M.C. Mehta [(1999) 6 SCC 237] it was pointed out that at one time, it was held in Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 (HL)] that breach of principles of natural justice was in itself treated as prejudice and that no other "de facto" prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] Chinnappa Reddy, J. followed Ridge v. Baldwin [1964 AC 40 : (1963) 2 All ER 66 (HL)] and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L. Kapoor case [(1980) 4 SCC 379] laid down two exceptions (at SCC p. 395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31) "[I]t 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."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364 : 1996 SCC (L&S) 717] . In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. [(1996) 5 SCC 460]
25. The "useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta [(1999) 6 SCC 237] referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.
26. It will be sufficient, for the purpose of the case of Mr Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379] , namely, that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr Mansoor Ali Khan though notice has not been issued."
In the judgment passed in the case of M/s Dharampal Satyapal Ltd. vs. Deputy Commissioner of Central Excise, Gauhati & ors, 2015 (8) SCC 519, the Hon'ble Apex Court observed as under:-
"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason--perhaps because the evidence against the individual is thought to be utterly compelling--it is felt that a fair hearing "would make no difference"--meaning that a hearing would not change the ultimate conclusion reached by the decision-maker--then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that: (WLR p. 1595 : All ER p. 1294) "... A breach of procedure ... cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."
Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582 : (1980) 2 All ER 368 (CA)] that: (WLR p. 593 : All ER p. 377) "... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing."
In such situations, fair procedures appear to serve no purpose since the "right" result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing."
Taking into consideration the facts and circumstances of the present case including the reasoning given by us on issue no.(i), as noted above, and the principles of "Useless Formality" theory as also the observations made by the Hon'ble Apex Court, quoted hereinabove, we decide the issue no.2 against the appellant and hold that the judgment and order dated 27.02.2020 is not liable to be interfered with on the ground of violation of principles of natural justice, as alleged by the learned counsel for the appellant.
In view of aforesaid, the Special Appeal is dismissed. No order as to costs.
Order Date :- 28.5.2020 Vinay/-