Gauhati High Court
Thanglet Vaiphei vs Union Of India (Uoi) And Ors. on 8 June, 2007
Equivalent citations: 2008(1)GLT560
Author: T. Nandakumar Singh
Bench: T. Nandakumar Singh
JUDGMENT T. Nandakumar Singh, J.
1. Heard Mr. Kh. Tarunkumar Singh, learned Counsel appearing for the petitioner as well as Mr. N. Ibotombi Singh, learned C.G.S.C. appearing for the respondents.
2. The material facts in brief are that the petitioner is a member of the Scheduled Tribe (for short ST) community of the State of Manipur. The petitioner appeared before the recruitment test for appointment as Nursing Assistant, Army Medical Corps conducted by the authorities of the 17th Battalion, Assam Rifles, Kangla, Imphal. The Selection Committee after various tests, selected the petitioner and found fit for appointment as Nursing Assistant, Army Medical Corps. It is also stated that at the time of recruitment tests, the petitioner was subjected to Medical Examination. Under an order/Selection slip dated 22.11.2000 the petitioner was directed to report on 3.3.2001. A copy of the said order/Selection slip is available at Annexure A/1 to the present writ petition. In the said selection slip/order it is clearly mentioned that the petitioner is fit for appointment as Nursing Assistant.
3. In pursuance of the said selection slip/ order the petitioner joined service as Nursing Assistant on 3.3.2001 at the Office of the B.R.O. Rangapahar and from there he was sent for training on 10.3.2001 at A.M.C. Centre & Training School, Lucknow. It is stated that he continued the training to the full satisfaction of his superior officers i.e. Lt. Col. But surprisingly without giving any reason and also without giving any opportunity of being heard to the petitioner, the Lt. Col. OICE & D Sec for Officiating CO. issued a movement order dated 2.6.2001 whereunder the petitioner and two others were directed to proceed to their home due to invalidment. It would be apt to produce the said movement order hereunder:
MOVEMENT ORDER The undermentioned recruits are directed to proceed to their home due to invalidment out of Army Service.
Ser Army No. Home address ROAMC
Rank & letter Date
& No. Name
(a) 1541198411 Vill
Bazirpur
15411984 NE/ P.O.Hapur 2001
MB Rect GI
dt 25 May The. Hapur
Yopendra Kumar Dist. Ghaziabad
2001 (UP.)
(b). 15412454 Rect GI Vill 2001
15112454 NEMB Pirchudala
Subash Chand P.O. Panchudala
25 May The Kotputali
2001 Sharma Dist. Jaipur (Raj.)
(c) Thanglet Vill. Haokip Veng
Vaiphei Imphal
15412620X P.O. Imphal
Rect NA.
Lamphel
The Imphal East
Dist. Imphal East
Manipur.
2. They will leave this unit on 02 Jun 2001 (AN) and will be SOS SORS wef 03 Jun 2001 (FN).
They have been issued with necessary single journey rly. wt under TR 200A for their journey from this loc to their destination.
They will ensure strict security measures enrout.
Their all educational certificates, Domicile Cert, Character Cert have been returned to them and receipt thereof has been obtained from them.
(A.J. Nandapurkar) Lt. Col.
OICE & D Sec For Off CO.
4. By the said movement order dated 2.6.2001, the petitioner had been removed from the service and being aggrieved by the said movement order dated 2.6.2001 the petitioner filed the present writ petition.
5. The main grounds for assailing the impugned movement order are that:
(i) The impugned movement order dated 2.6.2001 was issued in clear violation of the principles of the Audialteram Partem which mandate that no one should be condemned unheard,
(ii) Non mentioning of reasons for invalidating the petitioner from service as the Nursing Assistant in the impugned movement order dated 2.6.2001 shall invalidate the impugned movement order,
(iii) Validity of the impugned movement order dated 2.6.2001 shall be determined with reference to the language used in the impugned movement order itself and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.
6. The respondents filed affidavit-in-op-position. In the affidavit-in-opposition it is stated, inter alia, that the Recruiting MO in a recruiting office has to carry out medical examinations of a large number of candidates for recruitment in the Army. Army H.Q. vide their letter No. 76063/DGMS-5A dated 6th July, 1999 had laid down the polity for mandatory second medical examinations of the candidates after their recruitment and arrival at the respective training centres. Accordingly, the petitioner was subjected to second medical examination by Maj. V.K. Bhatti, Recruiting MO of AMC Centre and School, Lucknow on 17th March, 2001 and the petitioner was found to be suffering from "healed Pilonidal Sinus". Petitioner was also on reference by the Recruiting MO of the AMC Centre and School, Lucknow examined by Senior Advisor (Surgery) to ascertain his fit-ness. Colonel G.S.Misra, Senior Advisor (surgery) of Command Hospital (CC) Lucknow examined him on 21st March, 2001 and diagnosed him as a case of "Pilonidal Sinus with Pilonidal Cyst".
7. On the basis of the opinion of the Senior Advisor (Surgery), the petitioner was recommended to be invalidated out of service in the medical category by a duly constituted Medical Board. The recommendations/proceedings were approved by the competent authority i.e. Head quarters Central Command (Medical Branch) on 21 May, 2001 and thereafter the petitioner was sent to home on 2nd June, 2001 due to invalidment out of service by the impugned movement order.
8. It appears from the affidavit-in-opposition filed by the respondents that the reasons for invalidment of the petitioner out of the service which are not at all mentioned in the impugned movement order dated 2.6.2001 are supplemented/mentioned by way of filing the affidavit-in-opposition. It is also the clear fact that no opportunity was given to the petitioner before issuing the impugned movement order dated 2.6.2001 for invalidating the petitioner out of service and directing him to proceed to the home.
9. The learned Counsel appearing for the petitioner submits that non-mentioning of reasons for invalidating the petitioner out of ser-vice in the impugned movement order which will invalidate the impugned order itself can-not be supplemented by way of filing affidavit-in-opposition before the Court. In support of his contention, the learned Counsel has placed reliance on the decision of the Apex Court (CB) in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors. , and decision of this Court (Division Bench) in Laisram Tomba Singh v. State of Manipur and Ors. reported in (1984) 2 GLR 225. The Apex Court in Mohinder Singh Gill (supra) held that validity of an order is to be judged by the reasons so mentioned and can not be supplemented by fresh reasons in the shape of affidavit of otherwise. Otherwise, an order bad in the beginning may, by the time it come so court on account of a challenge, get validated by additional grounds later brought out Para-8 of the AIR in Mohinder Singh Gill (supra) reads as follows:
The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and can-not be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J, in Gordhandas Bhanji AIR 1952 SCI 6 (at p. 18):
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older. A Caveat.
10. The fact of the case in Laisram Tomba Singh (supra) is that the petitioner who was working as Constable was dismissed from service. Thereafter, the petitioner preferred an appeal to the Inspector General of Police, Manipur who by an order dated 18.11.1976 dismissed it. Against the said order the petitioner made several representations to the Government of Manipur and the Government of Manipur refused to interfere with the order of dismissal. Thereafter the petitioner made a representation to the Governor of Manipur, and the Governor of Manipur after taking into account all relevant records as well as the attendant circumstances passed an order for reinstatement of the petitioner to his post as Constable with immediate effect. But subsequently by an order of the Governor of Manipur dated 1.6.79 the earlier order of the Governor of Manipur dated 19.4.79 for reinstating the petitioner to service was cancelled without giving any reason. The said order of the Governor of Manipur dated 1.6.79 reads as follows:
Orders by the Governor : Manipur Imphal, the 1st June, 1979.
No. 1/4/76-H(2): The Governor of Manipur is pleased to order that his order of even No. dated 19.4.1979 under which Shri L. Tomba Singh Exconstable No. 2292 had been reinstated, is hereby cancelled.
By order & in the name of Governor Sd/- S. Vaiphei Under Secretary to the Govt. of Manipur
11. When the writ petition challenging the said order of the Governor of Manipur dated 1.6.79 was filed before this Court, the State respondents filed the affidavit-in-opposition mentioning the reasons for justifying the said order of the Governor of Manipur dated 1.6.79, but this Court did not accept the reasons mentioned in the affidavit-in-opposition. Para-8 of the GLR in Laisram Tomba Singh v. State of Manipur and Ors. (supra) reads as follows:
The respondents sought to justify the order by giving reasons in the affidavit in Paragraphs 11 and 12 of the counter affidavit which we have already referred to earlier. In our opinion, giving reasons in the affidavit cannot cure the illegality of the impugned order. The Supreme Court in Mohinder Singh (supra) quoted with approval the observation of Bose J. in Gordhandas Bhanji , which reads as follows:
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Krishna Iyer, J. proceeded further with observations as:
Orders are not like old wine becoming better as they grow older.
The above authorities of the Supreme Court are sufficient to reinforce our finding that the impugned order is invalid being without any reason. The first question, therefore, has to be answered against the respondents and we hold the impugned order to be invalid.
12. The learned Counsel appearing for the petitioner in order to substantiate the case of the petitioner that non-mentioning the reasons in the impugned movement order for invalidating the petitioner out of service would in-validate the impugned movement order has also referred to the decision of the Apex Court in Cyril Lasrado (dead) by LRS. and Ors. v. Juliana Maria Lasrado and Anr. The Apex Court in a clear term had laid down the ratio in the Cyril Lasrado (dead) by LRS and others (supra) that "Failure to give reasons amounts to denial of justice". Para-12 of SCC in Cyril Lasrado (dead) by LRS and others (supra) reads as follows:
Para-12. Even in respect of administrative orders Lord Denning, M.R. in Breen V. Amalgamated Engg. Union observed: (All ER p. 1154h) "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed : Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
13. The Division Bench of this Court in Anchar Ali and Ors. v. State of Assam and Ors. held that giving of reasons in the order is a part of natural justice. In that case on an approach made on behalf of the petitioners to the Conservator of Forests to allot some plots of land in any forest reserve within the Cachar district as the petitioners were poor cultivators and had no means of maintenance, the land in question i.e. some plots of land in the forest reserve had been allotted to the petitioners. But subsequently by an order dated 13.7.79 without giving any reason cancelled the allotment of the said land to the petitioners. On being challenged the validity or otherwise of the said order dated 13.7.79 by filing the writ petition, this Court held that:
Para-13. We may next refer to Hari Nagar Sugar Mills v. Shyam Sunder , which is also a decision by a Constitution Bench. In that case, the director of the Company had refused to register some share in the name of transferees. This decision was set aside by the Deputy Secretary to the Govt. of India who directed the Company to register the transfer but no reason was given. The following observation of Shah, J. as he then was, who delivered the judgment on behalf of four Hon'ble Judges in Para 23 is pertinent:
If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to jurisdiction of this Court underArticle 136 of the Constitution, we fail to see how the power of this Court can be effectively exercised if reasons are not given by the Central Government in support of its order.
Another Constitution Bench referred to Harinagar in Govindrao v. State of M.P. and agreed with it. Therein the petitioners as descendants of the Ruling Chief applied under the concerned statute for grant of money or pension as maintenance for themselves. These applications were rejected but no reasons were given in the order. The court ob-served that the power vested in the Government must have obviously been exercised in a quasi-judicial manner. The petitioners were not only entitled to know the reasons but must have been also heard, as the matter must be dealt with in a quasi-judicial manner. But as the order of the Government did not fulfil "the elementary requirements of a quasi-judicial process", the same was set aside.
14. Admittedly, in the present case no notice or opportunity of being heard was available to the petitioner before issuing the impugned movement order dated 2.6.2001. As such, the learned Counsel appearing for the petitioner submits that the impugned movement order is vitiated only on this score. In support of his contention Mr. Tarunkumar learned Counsel appearing for the petitioner has pressed into service of the decision of the Apex Court in Canara Bank and Ors. v. Debasis Das and Ors. . The Apex Court in Canara Bank and Ors. (supra) held that--Notice is the first limb of the principle that no one should be condemned unheard. Para-15 of SCC in Canara Bank and Ors. v. Debasis Das and Ors. (supra) reads as follows:
Paia-15. 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. These principles are well settled. The first and foremost principle is what is commonly known as audialteram 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 be-comes 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 principle was thus stated: (ER p. 420).
(E)ven God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says god), 'where art thou? Hast thou not eaten of the tree whereof, I commanded there that thou shouldest not eat?
Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
15. The learned Counsel Mr. Tarunkumar in order to substantiate the case of the petitioner that the impugned movement order was issued in violation of the principle of natural justice inasmuch as it was issued without affording any opportunity of hearing to him, has referred to the decision of the Apex Court in Jaswant Singh and Ors. v. State of M.P. and Ors. . The fact in that case was that the appellant was appointed as Lower Division Clerk, but his appointment was cancelled by the order of the Collector without affording any opportunity of being heard to him. The Apex Court held that--the impugned cancellation order stands vitiated, inasmuch as, the Collector passed the impugned cancellation order without affording any opportunity of being heard to the appellant.
16. This court in Salam Usha Sinha v. State of Manipur and Ors. reported in (1994) 2 GLR 337 held that--the requirement of opportunity of being heard by the rule of natural justice is a pre-decisional opportunity and not a post decisional opportunity. Any order which is likely to be detrimental to the interest of the petitioner must be passed after a reasonable opportunity of hearing, so that the petitioner had an opportunity to explain its case. The fact in that case is that the District Magistrate, Imphal issued Scheduled Caste Certificate in favour of the petitioner as she belongs to Scheduled Caste "Lois". But the District Magistrate, Imphal issued an order dated 7.11.87 for cancelling the Scheduled Caste Certificate of the petitioner on the ground that after verification it was revealed that the petitioner did not belong to Scheduled Caste "Lois". The State Government by filing counter affidavit stated that the petitioner was given the opportunity of post decisional hearing to defend herself. By rejecting the stand taken by the State Government that there is no violation of principles of natural justice as the petitioner was allowed opportunity to put up her case by way of post decisional hearing held that:
Para 10. The requirement of opportunity of being heard by the rule of natural justice is a pre-decisional opportunity and not a post decisional opportunity. Any order which is likely to be detrimental to the interest of the petitioner must be passed after a reasonable opportunity of hearing, so that the petitioner had an opportunity to explain its case, defend himself and satisfy himself that he has been heard before he is condemned. In this view, giving post decisional opportunity would negate the principle of the rule of natural justice and defeat the purpose for which it is made. It would be an act of putting the cart before the horse.
17. The Apex Court (C.B.) had discussed the principles of natural justice in the case of Bhopal Gas Disaster i.e. Charan Lal Sahu v. Union of India and held that "Audialteram Partem" is highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. The Apex Court further held that--if the statute conferring the power is silent with regard to the giving of a pre decisional hearing to the person affected the administrative decision after post-decisional hearing was good. Para 109 of AIR in Bhopl Gas Disaster i.e. Charan Lal Sahu (supra) reads as follows:
Para 109. The fact that the provisions of the principles of natural justice have to be com-plied with is undisputed. This is well settled by the various decisions of the court. The Indian Constitution mandates that clearly, otherwise the Act and the actions would be violative ofArticle 14 and the actions would be violative of Article 14 of the Constitution and would also be destructive ofArticle 19(1)(g) and negateArticle 21 of the Constitution by denying a procedure which is just, fair and reasonable. See in this connection, the observations of this Court in Maneka Gandhi's case (supra) and Olga Tellis's case (supra). Some of these aspects were noticed in the decision of this Court in Swadeshi Cotton Mills v. Union of India (supra). That was a decision which dealt with the question of taking over of the industries under the Industries (Development and Regulation) Act, 1951. The question that arose was whether it was necessary to observe the rules of natural justice before issuing a notification under Section 18 A(1) of the Act. It was held by the majority of judges that in the facts of that case there had been non-compliance with the implied requirement of the audialteram partem rule of natural justice at the pre-decisional stage. The order in that case could be struck down as invalid on that score but the Court found that in view of the concession that a hearing would be afforded to the company, the case was remitted to the Central Government to give a full, fair and effective hearing. It was held that the phrase 'natural justice' is not capable of static and precise definition. It could not be imprisoned in the straight-jacket of a cast-iron formula. Rules of natural justice are not embodied rules. Hence, it was not possible to make an exhaustive catalogue of such rules. This court reiterated that audialteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the abuse or misuse of power. The rules of natural justice can operate only in areas not covered by any law validly made. 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 or 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 audialteram partem rule at the pre-decisional stage. If the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected the administrative decision after post-decisional hearing was good.
18. In the instant case, there was neither pre-decisional hearing nor Post-decisional hearing, but simply impugned movement order dated 2.6.2001 was issued invalidating the petitioner out of service. In the affidavit-in-opposition filed by the respondents it is not mentioned that the petitioner had an opportunity to defend his case by giving any sort of hearing against the alleged finding in the second medical examinations that the petitioner had suffered from "Pilonidal Sinus with Pilonidal Cyst". It is also clear from the affidavit-in-opposition filed by the respondents that the petitioner was removed from service be-cause he was found suffering from "Pilonidal Sinus with Pilonidal Cyst". The big organization like the Indian Army is not expected to act in violation of the principles of natural justice and principles of procedural fairness while removing the lowest members of the Organization. In the larger interest of the members of the big Organization like Indian Army, it is expected that authorities of the Indian Army shall follow the principles of natural justice while removing the members of the Organization from service. The Apex Court in Yoginath D. Bagde v. State of Maharashtra and Anr. reported in (1999) SCC 739 held that--where the rules are silent regarding providing of opportunity of hearing before taking up actions against the delinquent Officers 'an opportunity of being heard' may have to be read into the rule by which opportunity of being heard should be given to the delinquent Officers before passing any order against him.
19. It must be remembered in this case that the petitioner is not questioning the validity or otherwise of the mandatory second medical examinations of the candidates after their recruitment and arrival at the training centre vide Army H.Q.'s letter No. 76063/DGMS-5 Adated 6th July, 1999, but what is questioning by the writ petitioner is the procedure adopted by the respondents in issuing the impugned movement order and also the validity or otherwise of the impugned movement order because of non-mentioning of the reasons for invalidating the petitioner out of service in the impugned movement order.
20. For the reasons discussed above, it is crystal clear that the impugned movement order was issued in clear violation of the principle of natural justice, i.e. (i) Non-mentioning of reasons for invalidating the petitioner out of service in the impugned movement order dated 2.6.2001 (ii) No notice or opportunity of being heard was available to the petitioner before issuing the impugned movement order dated 2.6.2001 and (iii) the reasons for issuing the impugned movement order dated 2.6.2001 cannot be supplemented by the fresh reasons in the shape of affidavit or otherwise.
21. Having regard to the fact of the case discussed above, and also the decisions of the Apex Court as well as this Court, this Court is of the considered view, that the impugned movement order is liable to be quashed. Accordingly, the impugned movement order is hereby set aside and quashed. The petitioner should be reinstated in service forthwith.
22. However, after the reinstatement of the petitioner in service, it is left to the respondents to take appropriate action by following due process of law. It is also made clear that the petitioner should also be paid the arrear pay and allowances, quantum of which shall be calculated by the respondents, within 2(two) months from the date of receipt of this judgment and order.
The writ petition is allowed and the parties shall bear their own costs.