Allahabad High Court
Sushil Kumar Saini vs The State Of U.P. on 1 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 2632
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 30 Case :- SERVICE SINGLE No. - 2261 of 1993 Petitioner :- Sushil Kumar Saini Respondent :- The State Of U.P. Counsel for Petitioner :- Vipin Behari Lal Yadav,Atul Singh Parmar,Diwakar Singh,K. Bajpai,R.K. Yadav,Sanjai Kumar Awasthi Counsel for Respondent :- C S C,Gaurav Mehrotra Hon'ble Saurabh Lavania,J.
C.M. Application No. 84558 of 2017 [Application for Recall].
Heard on the application for recall of the orders dated 14.03.2016, 11.05.2016 and 21.07.2017.
Finding reasons to be bonafide in the accompanying affidavit filed in support of the application in question, it is allowed.
The orders dated 14.03.2016, 11.05.20016 and 21.07.2017, are hereby recalled.
The writ petition is restored to its original number.
Order Date :- 1.8.2019 Arun/-
A.F.R. Court No. - 30 Case :- SERVICE SINGLE No. - 2261 of 1993 Petitioner :- Sushil Kumar Saini Respondent :- The State Of U.P. Counsel for Petitioner :- Vipin Behari Lal Yadav,Atul Singh Parmar,Diwakar Singh,K. Bajpai,R.K. Yadav,Sanjai Kumar Awasthi Counsel for Respondent :- C S C,Gaurav Mehrotra Hon'ble Saurabh Lavania,J.
Heard learned counsel for the petitioner and the learned counsel for the respondent.
Under challenge is the order of termination dated 18.03.1993, passed by the opposite party No. 2 (Annexure No. 2 to the writ petition).
Facts, in brief, of the present case are that vide order dated 10.08.1992 (Annexure No. 1 to the writ petition), the original petitioner Late Sushil Kumar Saini was appointed on the post of Process Server in the pay-scale of Rs. 750-940 under U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 (in short "Rules of 1974"). Subsequently, he was appointed on the post of Mali vide order No. 3 dated 12.01.1993 passed by the opposite party No. 2. Thereafter, the service of the original petitioner Late Sushil Kumar Saini was terminated vide order dated 18.03.1993.
Aggrieved by the order of termination dated 18.03.1993, Late Sushil Kumar Saini filed the present writ petition.
This Court on 31.03.1993 passed the following order:-
"Heard Sri P.N. Bajpai, the learned counsel for the petitioner. Perused the writ petition and annexures thereto.
Notice on behalf of the opposite parties has been taken by the learned Chief Standing Counsel who may file counter affidavit within six weeks and the petitioner may file rejoinder affidavit within one week thereafter.
List thereafter for hearing finally.
The petitioner has been appointed on August 19, 1992 on account of the death of his father vide Annexure-7 to the writ petition. His services were terminated on the ground of negligence and lack of sincerity vide annexure-2 to the writ petition.
In view of the averments made in the writ petition and the annexures thereto, it is hereby directed that the impugned order dated March 18, 1993, annexure-2 to the writ petition shall remain stayed till the decision in the writ petition.
The District Judge, Hardoi is however, free to call for the explanation of the petitioner for the alleged negligence and lack of sincerity and may proceed in accordance with law."
Pursuant to the interim order dated 31.03.1993, Late Sushil Kumar Saini was allowed to continue in service, as informed by the counsel for the petitioner and moreover, on the basis of the averments made in the counter affidavit, this fact has not been disputed by the side opposite.
During the pendency of the writ petition, Sushil Kumar Saini (original petitioner) expired on 30.06.2014 and thereafter, the substitution application filed by the legal heirs was allowed by this Court on 17.04.2015 and pursuant to the order on application for substitution, the name of the legal heirs were substituted on 17.04.2015.
It appears from the contents of the writ petition that the order of termination has been challenged on the ground(s) to the effect that the same is in violation to the provisions of Article 311(2) of the Constitution of India as well as in violation of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 (in short "Rules of 1930"). It has also been stated in the writ petition that the order of termination is in violation of the principles of natural justice and has been passed without providing reasonable opportunity of hearing.
In response to the writ petition, the opposite party No. 2 filed the detailed counter affidavit wherein, it has been admitted that the petitioner was appointed under the Rules of 1974 and the order of termination was passed after due hearing of the petitioner. In the counter affidavit, it has not been stated that prior to passing of the order of termination, any disciplinary proceeding was carried out against Late Sushil Kumar Saini (original petitioner).
Learned counsel for the petitioners, assailing the order dated 18.03.1993, submitted that the service of Late Sushil Kumar Saini (original petitioner) was terminated, without holding regular enquiry as provided under the Rules of 1930 and without giving any opportunity of hearing.
Learned counsel for the petitioners further submitted that the impugned order of termination simpliciter is unsustainable keeping in view the settled legal proposition that the appointment under the Rules 1974 are regular/permanent appointment and a person appointed under the Rules of 1974, being regular/permanent employee, can not be removed without holding the proper regular enquiry under the Rules.
In this regard, the learned counsel for the petitioners placed reliance on the judgment passed in the case of Sanjai Kumar v. Dy. Director General (NCE), Directorate, U.P., Lucknow; [(2002) 3 UPLBEC 2748], wherein the Division Bench of this Court has held that a person appointed under the Rules of 1974 cannot be disengaged/terminated by the order of termination simpliciter without holding proper enquiry.
On the basis of the abovementioned judgment of this Court passed in the case of Sanjai Kumar (supra), learned counsel for the petitioners submitted that the service of a regular/permanent employee cannot be terminated in violation of principles of natural justice and without providing the proper opportunity of hearing as well as in violation of the Rules on the subject and the order of termination would be unsustainable and liable to be interfered by this Court, if the same is in violation of the principles of natural justice as well as in contravention of the Disciplinary Rules.
In view of the above, the prayer is to cause interference in the order impugned dated 18.03.1993 (annexure No. 2 to the writ petition).
Per contra, learned counsel for the respondents, on the basis of the averments made in the counter affidavit, submitted that the deceased petitioner was appointed on the post of Process Service vide order dated 10.08.1992 on the compassionate ground under the Rules of 1974 and thereafter, he was appointed on the post of Mali vide order dated 12.01.1993 and he worked only for few months and his services were terminated vide order dated 18.03.1993 on the ground that he was negligent and not sincere towards his work and duties. Learned counsel for the respondents further submitted that the order of termination is sustainable keeping in view the short span of service as well as the allegations made therein. Learned counsel for the respondent further submitted that in the facts of the case, the regular enquiry was not required. The prayer is to dismiss the writ petition.
Considered the submissions of the learned counsel for the parties and gone through the record carefully.
It appears from the record including the orders dated 10.08.1992 and 12.01.1993 that Late Sushil Kumar Saini was appointed under the Rules of 1974 on the post of Process Server and thereafter, on the post of Mali and his services were terminated vide order dated 18.03.1993 in violation of the principles of natural justice as well as without following the procedure prescribed under the Rules of 1930.
In the counter affidavit filed on behalf of contesting opposite parties, there is no mention of the fact that the regular enquiry was conducted or proper opportunity of hearing was provided to Late Sushil Kumar Saini prior to passing of the order impugned dated 18.03.1993.
It is settled principle of law, as held by the Division Bench of this Court in the case of Ravi Karan Singh v. State of U.P. and others; 1999 (2) AWC 976, that the appointment made under the Rules of 1974 would be a regular appointment and in the judgment relied upon by the counsel for the petitioner in the case of Sanjai Kumar (supra), the Division Bench of this Court has held that the service of an appointee under the Rules of 1974 can not be terminated by the order of termination simpliciter. Relevant portion of judgment passed by this Court in the case of Sanjai Kumar (supra) is quoted below for ready reference:-
"It is not in dispute that before passing the termination order, no show cause notice was served on the petitioner nor the petitioner was given any opportunity to explain his misconduct, if any, irregularity and unauthorised absence. It is true that if the appointment is confirmed, there cannot be simplicitor termination. On the allegation against the petitioner which has been noted by learned Single Judge in his Judgment, it was open for the respondents to have held an enquiry against the petitioner. The learned Single Judge for his decision has placed reliance on a Division Bench Judgment of this Court in 1999 (2) AWC 976, Ravi Karan Singh v. State of U.P. and Ors.. The Division Bench in the aforesaid case has held that an appointment under the Dying in Harness Rules has to be treated as permanent appointment otherwise if such appointment is treated to be a temporary appointment, then it will be followed that soon after appointment, the services can be permanent and this will nullify the very purpose of Dying in Harness Rules.
We are of the opinion that the judgment of learned Single Judge which is based on Division Bench decision in Ravi Karan Singh's case needs no interference in this appeal. However, it will be open to the appellants, if so advised, to proceed in accordance with law. The petitioner respondent No. 1 shall be reinstated in service forthwith and shall be entitled to pay including all consequential benefits as already directed by the learned Single Judge."
It is settled principle of law that a regular employee cannot be ousted from service without holding proper enquiry or without giving a reasonable opportunity of hearing.
It is settled principle that even administrative order which involve civil consequences must be passed after following the principle of natural justice and providing opportunity of hearing and the orders which have been passed against settled principle and are unsustainable. The basic idea of observing principles of natural justice is to secure justice or to put in another way to prevent miscarriage of justice.
Further any order either passed by court/tribunal or authority, which leads to civil consequences must be passed after giving an opportunity of hearing and the procedure adopted must be just, fair, reasonable, unarbitrary and impartial.
A seven-Judges' Bench of the Hon'ble Apex Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597) has held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14 of the Constitution. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic, otherwise they would cease to be reasonable. The procedure prescribed must be just fair and reasonable, even though there is no specific provision in a statute or rules, made thereunder, for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done hut manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of the natural justice.
In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 : (AIR 1978 SC 851), the Apex Court reiterated the same view.
In the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259, the Apex Court observed that an order which involves civil consequences, must be just, fair, reasonable, unarbitrary and impartial and meet the principles of natural justice. Same view has been reiterated in the cases of Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321 : (AIR 2005 SC 2090); Bidhannagar (Salt Lake) Welfare Assn. v. Central Valuation Board, (2007) 6 SCC 668 : (AIR 2007 SC 2276); and Devdutt v. Union of India, 2008 (3) ESC 433 (SC) : ((2008) 8 SCC 725 : AIR 2008 SC 2513).
In the case of Erusian Equipment and Chemicals Ltd. v. State of West Bengal and another A.I.R. 1975 SC 266; Raghunath Thakur v. State of Bihar and others A.I.R. 1989 SC 620; and Gronsons Pharmaceuticals (P) Ltd. v. State of Uttar Pradesh and others A.I.R. 2001 SC 3707 and the decisions of the Division Bench of this Court in Smt Rajni Chauhan v. State of U.P and others 2010 (6) AWC 5762 (All.) also it has been held that an order which leads to civil consequences cannot be passed without affording an opportunity of hearing and the same must be passed in conformity of principles of natural justice.
It is also settled that "Natural justice" is an important concept in administrative law. In the words of Megarry J it is "justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical". The principles of natural justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in any code. They are better known than described and easier proclaimed than defined.
Natural justice is another name for common-sense justice. Rules of natural justice are not codified cannone. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
The expressions "natural justice" and "Legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defense.
The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. There principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed. against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". the classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works the principles was thus stated:
"Even God himself did not pass sentence upon Adam before he was called upon to make his defense. 'Adam'(says God), 'where art thou? hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat ?"
Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
It is not possible to define precisely and scientifically the expression "natural justice". Though highly attractive and potential, it is a vague and ambiguous concept and, having been criticised as "sadly lacking in precision, has been consigned more than once to the lumber-room. It is a confused and unwarranted concept and encroaches on the field of ethics. Though eminent judges have at times used the phrase "the principles of natural justice", even now the concept differs widely in countries usually described as civilised.
It is true that the concept of natural justice is not very clear and therefore, it is not possible to define it; yet the principles of natural justice are accepted and enforced. In reply to the aforesaid criticism against natural justice, Lord Reid in the historical decision of Ridge V. Baldwin (1963) 2 All ER 66 (HL) observed:
"In Modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist......"
Further, 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. They are embedded in our constitutional framework and their pristine glory and primacy cannot be allowed to be submerged by exigencies of particular situations or cases. 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 golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more-but nothing less.
As Lord Denning in the case of Kandaa v. Govt. of Malaya, 1962 AC 322 observed that "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. .He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them."
Hon'ble the Apex Court in the case of Bishambhar Nath Kohli v. State of U.P., AIR 1955 SC 65 held that "in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet with the same. The Supreme Court held that the principles of natural justice were violated.
Justice Krishna Iyer in Mohinder Singh Gill v The Chief Election Commissioner: (1978) 1 SCC 405 has traced its root in Kautilya's Arthasastra in following terms, "Indeed, from the legendary days of Adam -- and of Kautilya's Arthasastra -- the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case-law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."
In the case of Bhagwan Shukla, v. Union of India and others 1994 (6) SCC 154 wherein paragraph no.3 (relevant portion)held as under:-
"The appellant has obviously been visited with civil consequence but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There, has, thus been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being hears. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequence should be passed without putting the employee concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.7.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant."
Further, in the case of Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors. JT 2012 (10) SC 476, Hon'ble the Supreme Court in paragraph no.3 held as under:-
"The principles of natural justice embody the right to every person to represent his interest to the court of justice. Pronouncing a judgment which adversely affects the interest of the party to the proceedings who was not given a chance to represent his/its case is unacceptable under the principles of natural justice."
In view of the aforesaid factual background and the settled legal proposition, this Court is of the view that the impugned order of termination dated 18.03.1993, having civil consequences, passed in violation of principles of natural justice and without holding the proper regular enquiry under the Rules of 1930, is unsustainable and liable to be interfered with.
Considering the entirety of the case, impugned order of termination dated 18.03.1993 is hereby quashed. Consequences shall follow, as per applicable Service Rules. It is in view of the fact that the employee Sushil Kumar Saini has already expired on 30.06.2014.
The writ petition is allowed with the aforesaid.
Order Date :- 1.8.2019 Arun/-