Delhi High Court
University Of Delhi And Others vs Harpal Singh Sangwan on 7 October, 2010
Author: Dipak Misra
Bench: Chief Justice, Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on :13th September, 2010
% Judgment Pronounced on : 7th October, 2010
+ LPA No.535/2008
University of Delhi and others .... Appellants
Through: Mr.M.J.S. Rupal, Advocate
versus
Harpal Singh Sangwan ....Respondent
Through: Mr.K. Venkatraman, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
In this intra-Court appeal, the appellant-University (hereafter referred to as
„the appellant‟) has called in question the legal acceptability of the order dated 15 th
July, 2008 passed by the learned Single Judge in WP(C) No.6512/2007.
2. The facts which have been uncurtained are that the respondent-writ
petitioner (hereinafter referred to as „the respondent‟) was a student of M.A.
(Russian) in the Department of Slavonic and Finno Ugrain Studies in the appellant
University in 2005-07. He appeared in the final year examination in the said
course and at that stage he also appeared in the entrance examination for the Post
Graduate course in "Hindi Journalism" for the academic session 2007-08. His
result of the MA (Russian) final year examination was declared on 2nd August,
2007. As set forth, the result of the entrance examination for Post Graduate course
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in Hindi Journalism was published in the first week of August, 2007 and the name
of the respondent was initially displayed in the list of successful candidates but the
same was substituted by another list which did not reflect his name. At this stage,
the respondent received a communication dated 30th July, 2007 whereby the
University, in exercise of powers vested under Ordinance XV-B, directed that the
respondent be not admitted in any course in the University of Delhi for a period of
next five years. Because of the said notification, he was denied the admission to
Post Graduate Course in Hindi Journalism. Being dissatisfied with the said
communication and action of the University, the respondent invoked the
jurisdiction of this Court under Article 226 of the Constitution of India for issue of
a writ of certiorari for quashment of the said notification dated 30th July, 2007
issued by the University and further to command the University to extend the
benefit of admission in any course and further to consider his candidature for the
Post Graduate Course in Hindi Journalism.
3. During the pendency of the writ petition, the University issued a notification
on 26th November, 2007 stating that the competent authority had decided to grant
post-decisional hearing to the respondent and accordingly constituted a committee
consisting of Prof. V.K. Bhasin, Department of Zoology, as the Chairperson and
Dr.M. Rahman, Acting Proctor as the Member to look into the complaints against
the respondent. The committee was required to submit a report to the Vice-
Chancellor within ten days from the date of issue of the notification. The
Chairperson of the enquiry committee issued a notice dated 26/28-11-2007 giving
an opportunity to the respondent to appear before the committee for hearing on 3 rd
December, 2007 with regard to his grievance relating to the imposition of
LPA 535/2008 Page 2 of 24
punishment under Ordinance XV-B along with the relevant records. He was also
afforded an opportunity to present his case before the committee by filing a written
statement. The respondent, in pursuance of the said notice, appeared before the
committee and the committee put to the respondent four complaints which had
formed the basis of the action taken against him. Thereafter, the committee, as
asked for by the respondent, supplied the documents and the respondent filed his
reply. After the enquiry was over, the Vice-Chancellor, on the basis of the enquiry
report, arrived at the conclusion that the response of the respondent was
unsatisfactory and unacceptable and there was no justification to alter the decision.
The said order was passed by the Vice-Chancellor on 8/9-5-2008. The said order
passed by the Vice-Chancellor along with the representation of the respondent
were made available before the learned Single Judge by filing affidavit.
4. It was contended before the learned Single Judge that the earlier notification
/ communication dated 30th July, 2007 is patently illegal as the principles of natural
justice were not followed and further the order was an unreasoned one; that taking
recourse to post-decisional hearing was not an adequate substitute; that the whole
exercise of post-decisional hearing was an eye wash and was also to cover up the
laches in the initial order; that the University has failed to establish any of the
allegations levelled against the writ petitioner for taking action under Ordinance
XV-B which deals with maintenance of discipline among the students of the
University; that the enquiry made by the enquiry committee in the course of post-
decisional hearing was totally in violation of the norms inasmuch as the respondent
was not informed about the charges levelled against him; and that the order passed
LPA 535/2008 Page 3 of 24
by the Vice-Chancellor placing reliance on the enquiry report was absolutely
vulnerable.
5. The learned Single Judge first dwelled upon the issue whether a post-
decisional hearing could be an adequate substitute to save the impugned action of
the appellants from the vice of arbitrariness. He referred to the decision in
Swadeshi Cotton Mills v. UOI (1981) 1 SCC 664, K.I. Shephard & Ors. v. UOI &
Ors. (1988) 1 SCR 188 : AIR 1988 SC 686, H.L. Trehan and others v. Bharat
Petroleum Corporation Ltd. (1989) 1 SCC 764 and Shekhar Ghosh v. U.O.I. &
ors. (2007) 1 SCC 331. After placing reliance on the said authorities, the learned
Single Judge came to hold that post-decisional hearing cannot be a substitute for a
pre-decisional hearing; that where a pre-decisional hearing is not excluded by the
statute only in cases of exceptional urgency, where it is not possible to give a pre-
decisional hearing on account of the emergent situation the pre-decisional hearing
may be dispensed with provided a full review or appeal on merits against the
decision is available. The learned Single Judge has further held that the principle
that minimum compliance of the rules of natural justice should be observed as far
as possible.
6. After so holding, the learned Single Judge referred to two complaints made
against the writ petitioner in the year 2005 and the other two which were made in
the year 2007. He took note of Ordinance XV-B to arrive at the conclusion that the
same does not exclude the compliance of the principles of natural justice and
further it does not lay down any condition with regard to the time period within
which action could have been taken by the Vice-Chancellor against the writ
petitioner and, hence, there was no urgency to issue the impugned notification.
LPA 535/2008 Page 4 of 24
The learned Single Judge further held that in exercise of power under Ordinance
XV-B, the Vice-Chancellor, at any time of the academic session, can pass an order
and there was no necessity that it should be passed before the student takes
admission in any other course in the University. It was further opined by the
learned Single Judge that the impugned notification was issued to block the move
of the respondent to take the admission in the Post Graduate Certificate Course in
Hindi Journalism for the academic session 2007-08 and, therefore, post-decisional
hearing stated to have been granted to him was not a legally sustainable substitute.
It is worth noting that the plea of the University that the post-decisional hearing
sub-served the cause of justice was not accepted. The decisions in Narender
Singh v. University of Delhi 70(1997) DLT 509, Ajit Kumar Nag v. General
Manager (PJ), Indian Oil Corporation Ltd., (Haldia) and others (2005) 7 SCC
764, Satyavir Singh v. Union of India (1985) 4 SCC 252 and M.C. Mehta v.
Union of India (1997) 6 SCC 237 were distinguished on facts.
7. After dealing with the aforesaid facet, the learned Single Judge adverted to
the complaint made and came to hold that the complainants who had made the
complaints against him were not called upon to give their statements before the
enquiry committee. The security staff, who were allegedly prevented by the
respondent from performing their duties or threatened by him, were not called.
The complaint made by Mr.Ravinder Kumar, P.S. in the office of the Director,
South Delhi Campus, on 17th April, 2007 was not addressed to by the committee
and hence, could not have been treated to have been proved. Thereafter, the
learned Single Judge addressed himself with regard to the complaint made against
the respondent by Prof.S.K.Vij on 1st May, 2007 who had alleged that on 20th
LPA 535/2008 Page 5 of 24
April, 2007 when a meeting of the Departmental Council was being held, the
respondent barged into the meeting to make certain demands /claims and he was
requested to wait for some time as the meeting was in progress. Later, he was
invited to make his representation. At that stage, he behaved in a manner
unbecoming of a student. As found by the learned Single Judge, the enquiry
committee in its report records that during the course of the enquiry, the
respondent / writ petitioner had admitted that he entered into the room of Dr.S.K.
Vij, Head of the Department, without his permission when the Head of the
Department was presiding over a meeting of the committee and from the same, the
enquiry committee concluded that the respondent failed to maintain proper
discipline as he had forcibly entered into the room of the HOD when a statutory
meeting was going on and misbehaved with the HOD. The learned Single Judge
repelled the stand of the University that the complaints made against the
respondent were proved. The entire enquiry was an eye-wash and if such a course
of action is allowed, the University would victimize any student or ex-student by
collecting such complaints and proceeding against him to debar him from studying
in the University. Thereafter, as is perceptible, the learned Single Judge dealt with
the order dated 8/9-5-2008 and came to hold that the Vice-Chancellor did not apply
his mind to the enquiry report but accepted the same mechanically. He has not
indicated on what basis and on what material he had come to arrive at the
conclusion that the allegations were proved. It is worth noting that the writ
petitioner had also made the Vice-Chancellor a party - respondent No.2 in his
personal capacity and pleaded that he had taken certain issues which annoyed the
Vice-Chancellor. As the Vice-Chancellor had not chosen to file affidavit, the
LPA 535/2008 Page 6 of 24
learned Single Judge thought it appropriate not to dwell upon the same and kept it
open allowing liberty to the writ petitioner to raise the same at any subsequent
stage.
8. After deliberating on the aforesaid issue, the learned Single Judge opined
that the impugned notification / communication dated 30 th July, 2007 and all
proceedings subsequent thereto including the order dated 8/9-5-2008 whereby the
Vice-Chancellor had decided not to recall or review the aforesaid notification /
communication deserved to be quashed and, accordingly, quashed the same. After
quashing the same, he directed the appellant-University to consider the entrance
test result of the respondent for the examination 2007-08 for the current academic
year (as he had already qualified in the said entrance test) and to hold an interview
for admission to Hindi Journalism P.G. Certificate Course for the academic year
2008-09. Eventually, the writ petition was allowed with imposition of costs of
Rs.30,000/-.
9. We have heard Mr. Rupal, learned counsel for the appellants, and Mr. K.
Venkataraman, learned counsel for the respondent.
10. Questioning the correctness of the order passed by the learned Single Judge,
it is contended by Mr. Rupal that the learned Single Judge has fallen into error by
coming to hold that the doctrine of post- decisional hearing could not have been
invoked in the case at hand. It is urged by him that the view expressed by the
learned Single Judge that pre-decisional hearing was imperative in the case at hand
inasmuch as post-decisional hearing only results in giving the stamp of approval to
the decision taken earlier and does not serve any fruitful purpose is incorrect. It is
contended by him that the learned Single Judge has fallaciously opined that the
LPA 535/2008 Page 7 of 24
power had been conferred on the Vice-Chancellor to take action at any point of
time and, hence, there was no hurry to issue the impugned notification without
appreciating the factual matrix in the proper perspective. It is canvassed by Mr.
Rupal that the learned Single Judge has completely misguided himself by
expressing the view that the enquiry was a mere eye wash and nothing had been
proven against the respondent despite ample material brought on record.
11. Mr. K. Venkatraman, learned counsel appearing for the respondent,
submitted that the conclusion arrived at by the learned Single Judge that in the case
at hand post-decisional hearing did not sub-serve the cause of justice cannot be
flawed inasmuch as the University authorities were bent upon to stick to their
decision rendered earlier. That apart, submits the learned counsel for the
respondent, there was no warrant or justification not to take recourse to the
principles of natural justice as some delay would not have brought in a situation
beyond control but on the contrary would have ensued in an appropriate decision in
law. The learned counsel submitted that the analysis of the evidence and the
materials brought on record by the learned Single Judge is absolutely faultless and
does not warrant any interference in the intra court appeal which is basically an
appeal of rectification.
12. It is not in dispute that the notification dated 30.7.2007 was issued without
affording an opportunity of hearing. It is also not in dispute that the University
issued a notification on 26.11.2007 which reflects the decision of the competent
authority of the University that it had decided to grant post-decisional hearing to
the petitioner and had accordingly constituted a committee. The learned Single
Judge has referred to the complaints made against the respondent and thereafter
LPA 535/2008 Page 8 of 24
proceeded to deal with the submission whether in the case of the present nature the
post-decisional hearing can be an adequate substitute. He has referred to Clauses
3(a) and 4 of Ordinance XV-B and relied on the decisions which we have referred
to hereinbefore. Before we advert to the nature of the complaint made against the
respondent, the power conferred on the Vice-Chancellor and the obtaining
scenario, we think it apposite to refer to certain citations relating to the basic
concept inhered in post-decisional hearing.
13. In K.I. Shephard (supra), the Apex Court was considering the exclusion of
employees of certain banks under the amalgamation scheme framed under Section
45 of Banking Regulation Act (10 of 1949) without affording an opportunity of
hearing. The question that arose in the said case was whether non-compliance of
the principles of natural justice vitiated the decision and whether post-decisional
hearing would sub-serve the cause of justice. Their Lordships, after referring to
the authorities in Perre Brothers v. Citrus Organisation Committee, (1975) 10
SASR 555, Re K (H) (an infant), (1967) 1 All ER 226, State of Orissa v. Dr.
(Miss) Binapani Dei, AIR 1967 SC 1269, A.K. Kraipak v. Union of India, AIR
1970 SC 150 and Chandra Bhavan Boarding and Lodging, Bangalore v. State of
Mysore, AIR 1970 SC 2042, came to hold as follows:
"13. Natural justice has various facets and acting fairly
is one of them. RBI which monitored the three
amalgamations was required to act fairly in the facts of
the case. The situation necessitated a participatory
enquiry in regard to the excluded employees. Since the
decision to exclude them from service under the
transferee banks is grounded upon a set of facts the
correctness whereof they deny, if an opportunity to know
the allegations and to have their say had been afforded,
they could have no grievance on this score. The action
deprives them of their livelihood and brings adverse civil
LPA 535/2008 Page 9 of 24
consequences and could obviously not be taken on the
ipse dixit of RBI officers without verification of facts. It
is quite possible that a manoeuvering officer of the
banking company adversely disposed of towards a
particular employee of such bank could make a report
against such employee and have him excluded from
further service under the transferee bank. The possibility
of exclusion on the basis of some mistake such as to
identity cannot also be ruled out. There is all the more
apprehension of this type as the process has to be
completed quickly and very often the records of a large
number of employees have to be scrutinised. We are of
the view that rules of natural justice apply to
administrative action and in the instant cases the decision
to exclude a section of the employees without complying
with requirement of natural justice was bad."
After so holding, their Lordships repelled the submission as regards the time
period during which the operation was required to be conducted. In this regard, the
Apex Court opined thus:
"15. Fair play is a part of the public policy and is a
guarantee for justice to citizens. In our system of Rule of
Law every social agency conferred with power is
required to act fairly so that social action would be just
and there would be furtherance of the well-being of
citizens. The rules of natural justice have developed with
the growth of civilisation and the content thereof is often
considered as a proper measure of the level of civilisation
and Rule of Law prevailing in the community. Man
within the social frame has struggled for centuries to
bring into the community the concept of fairness and it
has taken scores of years for the rules of natural justice to
conceptually enter into the field of social activities. We
do not think in the facts of the case there is any
justification to hold that rules of natural justice have been
ousted by necessary implication on account of the time
frame. On the other hand we are of the view that the time
limited by statute provides scope for an opportunity to be
extended to the intended excluded employees before the
scheme is finalised so that a hearing commensurate to the
situation is afforded before a section of the employees is
thrown out of employment."
After so stating, their Lordships proceeded to hold thus:
LPA 535/2008 Page 10 of 24
"16. We may now point out that the learned single
Judge of the Kerala High Court had proposed a post-
amalgamation hearing to meet the situation but that has
been vacated by the Division Bench. For the reasons we
have indicated, there is no justification to think of a post-
decisional hearing. On the other hand the normal rule
should apply. It was also contended on behalf of the
respondents that the excluded employees could now
represent and their cases could be examined. We do not
think that would meet the ends of justice. They have
already been thrown out of employment and having been
deprived of livelihood they must be facing serious
difficulties. There is no justification to throw them out of
employment and then give them an opportunity of
representation when the requirement is that they should
have the opportunity referred to above as a condition
precedent to action. It is common experience that once a
decision has been taken, there is a tendency to uphold it
and a representation may not really yield any fruitful
purpose."
We have referred to the aforesaid decision in extenso as the learned Single
Judge has placed heavy reliance on the same. The various factors that weighed
with the Apex Court are to be taken note of. They are deprivation of livelihood of
employees, possibility of a manoeuvring officer of the banking company adversely
disposed of towards a particular employee to exclude an employee, some mistake
as regards the identity of an employee, the non-exclusion of the principles of
natural justice by the time frame postulated under the scheme and the lack of
justification to throw them out of employment and then give them an opportunity
of representation when the requirement is that they should have the opportunity as
a condition precedent before action is taken. At a later stage, when we analyze the
factual matrix of the case at hand, we would address ourselves whether the said
decision would be applicable or not.
14. In Swadeshi Cotton Mills (supra), the issue that emerged for consideration
was whether prior hearing was necessary to be given to the persons affected before
LPA 535/2008 Page 11 of 24
an order under Section 18-AA of Industries (Development and Regulation) Act,
1951 was passed. The majority, after scanning the anatomy of Section 18-AA
while analyzing the said question, held as follows:
"42. "The necessity for speed", writes Paul Jackson :
"may justify immediate action, it will, however, normally
allow for a hearing at a later stage." The possibility of
such a hearing - and the adequacy of any later remedy
should the initial action prove to have been unjustified-
are considerations to be borne in mind when deciding
whether the need for urgent action excludes a right to
rely on natural justice. Moreover, however, the need to
act swiftly may modify or limit what natural justice
requires, it must not be thought "that because rough,
swift or imperfect justice only is available that there
ought to be no justice": Pratt v. Wanganui Education
Board.
43. Prof. de Smith, the renowned author of JUDICIAL
REVIEW (3rd Edn.) has at page 170, expressed his views
on this aspect of the subject, thus: "Can the absence of a
hearing before a decision is made be adequately
compensated for by a hearing ex post facto? A prior
hearing may be better than a subsequent hearing, but a
subsequent hearing is better than no hearing at all; and in
some cases the courts have held that statutory provision
for an administrative appeal or even full judicial review
on the merits are sufficient to negative the existence of
any implied duty to hear before the original decision is
made. The approach may be acceptable where the
original decision does not cause serious detriment to the
person affected, or where there is also a paramount need
for prompt action, or where it is impracticable to afford
antecedent hearings."
44. In short, the general principle - as distinguished
from an absolute rule of uniform application - seems to
be that where a statute does not, in terms, exclude this
rule of prior hearing but contemplates a post-decisional
hearing amounting to a full review of the original order
on merits, then such a statute would be construed as
excluding the audi alteram partem rule at the pre-
decisional stage. Conversely, if the statute conferring the
power is silent with regard to the giving of a pre-
decisional hearing to the person affected and the
LPA 535/2008 Page 12 of 24
administrative decision taken by the authority involves
civil consequences of a grave nature, and no full review
or appeal on merits against that decision is provided,
courts will be extremely reluctant to construe such a
statute as excluding the duty of affording even a minimal
hearing shorn of all its formal trappings and dilatory
features at the pre-decisional stage, unless, viewed
pragmatically, it would paralyse the administrative
progress or frustrate the need for utmost promptitude. In
short, this rule of fairplay "must not be jettisoned save in
very exceptional circumstances where compulsive
necessity so demands". The court must make every
effort to salvage this cardinal rule to the maximum extent
possible, with situational modifications. But, to recall the
words of Bhagwati, J., the core of it must, however,
remain, namely, that the person affected must have
reasonable opportunity of being heard and the hearing
must be a genuine hearing and not an empty public
relations exercise."
After stating the said principles, their Lordships opined thus:
"77. The second reason - which is more or less a facet
of the first - for holding that the mere use of the word
"immediate" in the phrase "immediate action is
necessary", does not necessarily and absolutely exclude
the prior application of the audi alteram partem rule, is
that immediacy or urgency requiring swift action is a
situational fact having a direct nexus with the likelihood
of adverse effect on fall in production. And, such
likelihood and the urgency of action to prevent it, may
vary greatly in degree. The words "likely to affect...
production" used in Section 18-AA(1)(a) are flexible
enough to comprehend a wide spectrum of situations
ranging from the one where the likelihood of the
happening of the apprehended event is imminent to that
where it may be reasonably anticipated to happen
sometime in the near future. Cases of extreme urgency
where action under Section 18-AA(1)(a) to prevent fall in
production and consequent injury to public interest,
brooks absolutely no delay, would be rare. In most cases,
where the urgency is not so extreme, it is practicable to
adjust and strike a balance between the competing claims
of hurry and hearing.
78. The audi alteram partem rule, as already pointed
out, is a very flexible, malleable and adaptable concept of
LPA 535/2008 Page 13 of 24
natural justice. To adjust and harmonise the need for
speed and obligation to act fairly, it can be modified and
the measure of its application cut short in reasonable
proportion to the exigencies of the situation. Thus, in the
ultimate analysis, the question (as to what extent and in
what measure), this rule of fair hearing will apply at the
pre-decisional stage will depend upon the degree of
urgency, if any, evident from the facts and circumstances
of the particular case.
Their Lordships further came to hold as follows:
"94. ...In the facts and circumstances of the instant
case, there has been a non-compliance with such implied
requirement of the audi alteram partem rule of natural
justice at the pre-decisional stage. The impugned order
therefore, could be struck down as invalid on that score
alone. But we refrain from doing so, because the learned
Solicitor-General in all fairness, has both orally and in
his written submissions dated August 28, 1979,
committed himself to the position that under Section 18-
F, the Central Government in exercise of its curial
functions, is bound to give the affected owner of the
undertaking taken over, a "full and effective hearing on
all aspects touching the validity and/or correctness of the
order and/or action/of take-over", within a reasonable
time after the take-over. The learned Solicitor-General
has assured the Court that such a hearing will be afforded
to the appellant-Company if it approaches the Central
Government for cancellation of the impugned order. It is
pointed out that this was the conceded position in the
High Court that the aggrieved owner of the undertaking
had a right to such a hearing."
[Emphasis added]
15. In Liberty Oil Mills & Ors. v. Union of India & Ors., (1984) 3 SCC 465,
the Apex Court was dealing with certain circulars issued by the Deputy Chief
Controller of Imports and Exports directing licensing authorities to keep in
„abeyance‟ for a period of six months from the respective dates of the circulars any
application received from any of the 192 concerns for the grant of import licence
or customs clearance permits and allotment of imported goods through agencies
LPA 535/2008 Page 14 of 24
like the State Trading Corporation of India Ltd., the Minerals and Metals Trading
Corporation of India Ltd. or any other similar agency. Be it noted, the said
circulars were issued as it was discovered that beef tallow had been allowed to be
imported even by „non-actual users‟ under letters of authority given by licensees
who had obtained import licences against the entitlement based on the value of
their exports. The question that arose for consideration was whether the issue of
circular disclosed total non-application of mind and further when the orders of
abeyance were compartmentalized as secret orders, would secrecy militate against
natural justice. A further question was also posed whether an order of such
immensity could be made without due investigation and without giving a
reasonable opportunity to the affected party. Though in the said case, their
Lordships were dealing with the application of the principle of natural justice, yet
they adverted to the concept of pre-decisional hearing and post-decisional hearing
and stated thus:
15. ...Procedural fairness embodying natural justice is
to be implied whenever action is taken affecting the
rights of parties. It may be that the opportunity to be
heard may not be pre-decisional; it may necessarily have
to be post-decisional where the danger to be averted or
the act to be prevented is imminent or where the action to
be taken can brook no delay. If an area is devastated by
flood, one cannot wait to issue show-cause notices for
requisitioning vehicles to evacuate population. If there is
an outbreak of an epidemic, we presume one does not
have to issue show-cause notices to requisition beds in
hospitals, public or private. In such situations, it may be
enough to issue post-decisional notices providing for an
opportunity. It may not even be necessary in some
situations to issue such notices, but it would be sufficient
but obligatory to consider any representation that may be
made by the aggrieved person and that would satisfy the
requirements of procedural fairness and natural justice.
There can be no tape-measure of the extent of natural
LPA 535/2008 Page 15 of 24
justice. It may and indeed it must vary from statute to
statute, situation to situation and case to case..."
After referring to the decisions rendered in Queen v. Randolph et al., 56
DLR (2d) 283, Commissioner of Police v. Tanos, 98 CLR 383, Lewis v. Heffer,
(1978) 3 All ER 354 (CA) and Furnell v. Whangarei High Schools Board, 1973
AC 660, their Lordships observed thus:
"20. We have referred to these four cases only to
illustrate how ex parte interim orders may be made
pending a final adjudication. We, however, take care to
say that we do not mean to suggest that natural justice is
not attracted when orders of suspension or like orders of
an interim nature are made. Some orders of that nature,
intended to prevent further mischief of one kind, may
themselves be productive of greater mischief of another
kind. An interim order of stay or suspension which has
the effect of preventing a person, however, temporarily,
say, from pursuing his profession or line of business, may
have substantial, serious and even disastrous
consequences to him and may expose him to grave risk
and hazard. Therefore, we say that there must be
observed some modicum of residual, core natural justice,
sufficient to enable the effected person to make an
adequate representation. (These considerations may not,
however, apply to cases of liquor licensing which involve
the grant of a privilege and are not a matter of right : See
Chingleput Bottlers v. Majestic Bottling Company,
(1984) 3 SCC 258). That may be and in some cases, it
can only be after an initial ex parte interim order is
made."
16. In Union of India &Anr. v. Tulsiram Patel, AIR 1985 SC 1416, while
dealing with the issue relating to the railway employees going on a strike and the
dispensation of enquiry by the railways, the Apex Court has expressed thus:
"172. In the context of an all-India strike where a very
large number of railway servants had struck work, the
railway services paralysed, loyal workers and superior
officers assaulted and intimidated, the country held to
ransom, the economy of the country and public interest
LPA 535/2008 Page 16 of 24
and public good prejudicially affected, prompt and
immediate action was called for to bring the situation to
normal. In these circumstances, it cannot be said that an
inquiry was reasonably practicable."
17. In Jayantilal Ratanchand Shah v. Reserve Bank of India & Ors., (1996) 9
SCC 650, the Constitution Bench, while dealing with the constitutional validity of
the High Denomination Bank Notes (Demonetisation) Act, 1978 and the legality of
certain orders passed thereunder, has held thus:
"16. In impugning the order of the Currency Officer of
the Bank it was submitted on behalf of the petitioner that
no opportunity of being heard was given to the Society so
as to enable it to explain the reasons for delay in
submitting the declaration form. Even if we proceed on
the assumption that such an opportunity of personal
hearing was imperative to comply with the rules of
natural justice the petitioner cannot raise any grievance
on that score for the appellate authority gave them such
an opportunity before dismissing their appeal. This apart,
as noticed earlier, the appellate authority has given
detailed reasons for its inability to accept the explanation
of the Society for not filing the declaration in time..."
[Underlining is ours]
18. In Canara Bank & Ors. v. Debasis Das & Ors., (2003) 4 SCC 557, the
Apex Court was dealing with the scope and ambit of Regulations 6(18) and 6(21)
of the Canara Bank Officer Employees‟ (Conduct) Regulations, 1976. In the said
case, their Lordships posed the question whether the principles of natural justice
have been avoided and if so, to what extent and whether any prejudice has been
caused and eventually held as follows:
"19. Concept of natural justice has undergone a great
deal of change in recent years. Rules of natural justice are
not rules embodied always expressly in a statute or in
rules framed thereunder. They may be implied from the
nature of the duty to be performed under a statute. What
LPA 535/2008 Page 17 of 24
particular rule of natural justice should be implied and
what its context should be in a given case must depend to
a great extent on the fact and circumstances of that case,
the frame work of the statute under which the enquiry is
held. The old distinction between a judicial act and an
administrative act has withered away. Even an
administrative order which involves civil consequences
must be consistent with the rules of natural justice.
Expression "civil consequences" encompasses infraction
of not merely property or personal rights but of civil
liberties, material deprivations, and non-pecuniary
damages. In its wide umbrella comes everything that
affects a citizen in his civil life."
Thereafter, their Lordships referred to the decisions in Charan Lal Sahu v.
Union of India, AIR 1990 SC 1480, Managing Director, ECIL v. B. Karunakar,
(1993) 4 SCC 727 and Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310
and came to hold that though in all cases, the post-decisional hearing cannot be a
substitute for pre-decisional hearing, yet it would depend upon facts of the case.
19. In Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321, it was observed that
when an employee fails to show that there has been prejudice due to lack of pre-
decisional hearing and adequate post-decisional hearing has been granted, it cannot
be said that there is violation of the principles of natural justice. Thus, what has
been stated by the Lordships is that in certain circumstances post-decisional
hearing would be adequate.
20. In Ajit Kumar Nag (supra), while dealing with the concept of applicability
of natural justice, the Apex Court has held thus:
" The principles of natural justice are not rigid or
immutable and hence they cannot be imprisoned in a
straitjacket. They must yield to and change with
exigencies of situations. They must be confined within
their limits and cannot be allowed to run wild. While
interpreting legal provisions, a court of law cannot be
unmindful of the hard realities of life. The approach of
LPA 535/2008 Page 18 of 24
the Court in dealing with such cases should be pragmatic
rather than pedantic, realistic rather than doctrinaire,
functional rather than formal and practical rather than
"precedential". In certain circumstances, application of
the principles of natural justice can be modified and even
excluded. Both in England and in India, it is well
established that where a right to a prior notice and an
opportunity to be heard before an order is passed would
obstruct in the taking of prompt action, such a right can
be excluded. It can also be excluded where the nature of
the action to be taken, its object and purpose and the
scheme of the relevant statutory provisions warrant its
exclusion. The maxim audi alteram partem cannot be
invoked if import of such maxim would have the effect
of paralysing the administrative process or where the
need for promptitude or the urgency so demands. The
principles of natural justice have no application when the
authority is of the opinion that it would be inexpedient to
hold an enquiry and it would be against the interest of
security of the Corporation to continue in employment
the offender workman when serious acts were likely to
affect the foundation of the institution."
[Emphasis supplied]
21. In Haryana Financial Corporation & Anr. v. Kailash Chandra Ahuja,
(2008) 9 SCC 31, a two-Judge Bench of the Apex Court after referring to the
decisions in R.S. Dass v. Union of India, 1986 Supp SCC 617 and B. Karunakar
(supra) has ruled thus:
"36. The recent trend, however, is of "prejudice". Even
in those cases where procedural requirements have not
been complied with, the action has not been ipso facto
illegal, unlawful or void unless it is shown that non-
observance had prejudicially affected the applicant."
Thereafter, their Lordships referred to the decision in P.D. Agrawal v. SBI,
(2006) 8 SCC 776 and opined as under:
"42. Recently, in P.D. Agrawal (supra) this Court
restated the principles of natural justice and indicated that
they are flexible and in the recent times, they had
LPA 535/2008 Page 19 of 24
undergone a "sea change". If there is no prejudice to the
employee, an action cannot be set aside merely on the
ground that no hearing was afforded before taking a
decision by the authority."
22. In City Montessori School v. State of Uttar Pradesh & Ors., (2009) 14 SCC
253, the Apex Court has stated thus:
"28. ... It is now a well-settled principle of law that it
cannot be put in a straitjacket formula. The Court despite
opining that the principle of natural justice was required
to be followed may, however, decline grant of a relief,
inter alia, on the premise that the same would lead to a
useless formality or that the person concerned in fact did
not suffer any prejudice..."
23. From the aforesaid pronouncement of law, the principles that are culled out
are that non-compliance of the principles of natural justice vitiates the decision;
that it is a common experience that once a decision has been taken there is a
tendency to uphold it; that unless the statute or a rule excludes the application of
natural justice the same should be adhered to; that a person affected must have
reasonable opportunity of being heard and the hearing must be a genuine hearing;
that the doctrine of audi alteram partem is not founded on a straitjacket formula
and it can be modified in the exigencies of situation; that the doctrine of post-
decisional hearing can be invoked if a danger or a different situation is required to
be avoided; that a higher forum in certain circumstances can afford adequate
opportunity of hearing though in all cases post-decisional hearing cannot be
substituted for pre-decisional hearing; that hard realities of life are to be borne in
mind, it would be depend upon the facts of the case; that the factum of prejudice
has been caused is a factor to be taken note of; and that sometimes the court may
not interfere and direct for a post-decisional hearing.
LPA 535/2008 Page 20 of 24
24. In the case at hand, the respondent is aged about 55 years and has been
making adroit efforts to remain in the college campus. Numerous complaints were
received against him as the factual matrix would show and which has also been
accepted by the learned Single Judge that Professor S.K. Vij. had lodged a
complaint stating that on 20.4.2007 when a meeting of the Departmental Council
was being held, the respondent barged into the meeting room to make certain
demands / claims. The learned Single Judge had taken note of the fact that the
respondent had admitted that he entered into the room of Professor Vij, the Head of
the Department without his permission when he was presiding over a meeting of
the Committee. The learned Single Judge has discarded the enquiry report as no
grievance was made by Professor Vij that the respondent had entered into his room
when the meeting was on inasmuch as the Professor Vij only requested the
respondent to wait for some time as the meeting was in progress. Learned Single
Judge has held that the mere presence of the respondent in the said statutory
meeting could not be regarded as the conclusive proof of the fact that the writ
petitioner had misbehaved with the Professor.
25. It is worth noting that the learned Single Judge has held that the post-
decisional hearing is not a substitute for the pre-decisional hearing and in the case
at hand the said doctrine could not have been invoked inasmuch as there was no
urgency as the Vice-Chancellor has the power to pass an order at any time of the
academic session and there was no requirement to pass an order in respect of a
student before he took admission in a course in the University. That apart the
learned Single Judge has opined that there is no exclusion of principles of natural
justice and the theory of futile exercise could not have been taken recourse to. As
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has been stated earlier, after so holding he has proceeded to examine the validity of
the post-decisional hearing which has been afforded to the respondent by the
University.
26. It is apposite to note that the present factual matrix has its own peculiarity.
The writ petitioner, the respondent herein, was 55 years old and has been
remaining in the college campus for few decades and creating a dent in the
academic atmosphere and complaints had been made by the students, the
professors, security guards, staff of the University hostels and sanitary staff. When
so many complaints were made and more so by the Professor-cum-Head of the
Department S.K. Vij who had categorically stated in the complaint that the
respondent had barged into his room while he was holding a meeting as
contemplated under the statute, the conduct of the writ petitioner really showed
indiscipline. This complaint of the professor, the students, the staff when comes to
the notice of the Vice-Chancellor especially keeping in view the proclivity and the
propensity of the respondent to remain in the college campus despite the fact that
he is 55 years of age on the guise of prosecuting studies in one course or other and
regard being had to his past conduct, we are disposed to think the denial of
admission to the Post Graduate Course in Hindi Journalism and to any course for a
period of five years was a matter of an exigency. True it is, power is conferred on
the Vice-Chancellor to take action during the academic session. It is also true that
the provision also requires pre-decisional hearing but, a significant one, when the
factual matrix is appreciated keeping in view the atmosphere of the educational
institution, we are disposed to think non-compliance with the principles of natural
justice by not giving an opportunity to the respondent prior to taking the decision
LPA 535/2008 Page 22 of 24
cannot be faulted. The authorities which have been relied upon by the learned
Single Judge, in our considered opinion, are distinguishable as they relate to
appointments, right of livelihood and such other factors. In the present case, it
pertains to the discipline in an educational institution. Thus, the view expressed by
the learned Single Judge in the obtaining factual matrix that there was no exigency
or no prompt action was required and later on action could have been taken and,
therefore, the pre-decisional hearing was warranted, is not acceptable and we are
unable to concur with the same.
27. As far as the faults which have been found in the post-decisional hearing by
the learned Single Judge, on a perusal of the reasonings ascribed by him and the
material brought on record, we are not in a position, with all humility, to accept the
same. Before the Enquiry Committee, the respondent has admitted that he had
compromised a dispute with one Neeraj Dubey as the same did not concern him.
As far as the complaint made by Professor S.K. Vij is concerned, it is an accepted
fact that the respondent had admitted that he had entered into the room of the Head
of the Department without his permission when the Head of the Department was
presiding over a meeting of the committee. The learned Single Judge has taken
note of the fact that the Professor Vij had requested the respondent to wait for
some time as the meeting was in progress and later on he was invited to make a
representation. The fact remains that while the Professor S.K. Vij, the Head of the
Department was presiding over a meeting, the respondent, an aspirant candidate for
taking admission to a course, barged into his office. The Professor had made a
complaint and the said position to that extent had been admitted by the respondent.
He had also admitted that the Professor requested him to wait for some time.
LPA 535/2008 Page 23 of 24
These aspects are not to be lightly viewed. One can imagine the plight of the
Professor when the respondent aged about 55 years entered into the meeting hall
where a statutory meeting was continuing. It is inconceivable how a student could
enter into the meeting hall knowing fully well that the Professor was busy in a
meeting. Quite apart from that prior permission is required to be sought before one
enters into the room of the Professor and the Head of the Department.
Circumstances had so arisen that the Professor was compelled to make a request to
the respondent to wait for some time. It is needless to emphasize such an act
decisively demolishes discipline. The tolerance by the Professor only reflects the
sense of fear and paints a picture of plight. Not for nothing it has been said that an
educational institution dealing with students has to teach them discipline in poetry
but is required to govern them in terse prose when they become totally
indisciplined. Action is required to be taken to hammer home the message. Thus,
the finding recorded by the learned Single Judge that the charges levelled against
the respondent have not been proven are not correct inasmuch as, we are disposed
to think, on the basis of a singular incident of this nature, the decision not to admit
the respondent in any course for a period of five years is justified.
28. In view of the aforesaid premised reasons, the appeal is allowed. The order
passed by the learned Single Judge is set aside. In the facts and circumstances of
the case, there shall be no order as to costs.
CHIEF JUSTICE
MANMOHAN, J.
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