National Green Tribunal
Shanti Textile Industry vs Rajasthan Pollution Control Board on 21 December, 2021
Item Nos. 06 to18
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Appeal No. 06/2021(CZ)
(I.A. No.18/2021)
Vinod Industries Appellant(s)
Versus
Rajasthan State Pollution Control Board Respondent(s)
AND
Appeal No.07/2021 (CZ)
(I.A. No.28/2021)
Jyoti Fabrics Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.08/2021 (CZ)
(I.A. No.26/2021)
Usha process
Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.09/2021 (CZ)
(I.A. No.27/2021)
Shrikant Processors Pvt. Ltd. Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
1
AND
Appeal No.10/2021 (CZ)
(I.A. No.25/2021)
Shanti Textile Industry Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.11/2021 (CZ)
(I.A. No.22/2021)
Pooja Fab Tex Pvt. Ltd. Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.12/2021 (CZ)
(I.A. No.23/2021)
Jai Jagdamba Process Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.13/2021 (CZ)
(I.A. No.24/2021)
Khawaja Dyeing Company Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
2
Appeal No.14/2021 (CZ)
(I.A. No.29/2021)
Sangam Process Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.15/2021 (CZ)
(I.A. No.33/2021)
Ganesh Textile Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.16/2021 (CZ)
(I.A. No.34/2021)
Chippa Yakub Ibrahim Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.17/2021 (CZ)
(I.A. No.30/2021)
Saurabh Bleaching Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
3
Appeal No.18/2021 (CZ)
(I.A. No.31/2021)
Vijay Anand Textile Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
AND
Appeal No.19/2021 (CZ)
(I.A. No.32/2021)
Blue Chip Fabrics Pvt. Ltd. Appellant(s)
Versus
Rajasthan State Pollution Control Board & Anr. Respondent(s)
Date of hearing: 15.12.2021
Date of Uploading : 21.12.2021
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Appellant (s): Mr. Shikhar Garg, Adv.
For Respondent(s) : Mr. Rohit Sharma, Adv.
Mr. Arvind Soni, Adv.
ORDER
1. All these appeals arise out of the order dated 24.03.2021 passed by Rajasthan State Pollution Control Board under Section 33 (A) Water (Prevention and Control of Pollution) Act, 1974 and Section 31 (A) of Air (Prevention and Control of Pollution) Act, 1981, whereby the State Pollution Control Board has directed the appellants to deposit Environmental Compensation amounting to Rupees Ten Lakhs each.
2. The issues raised in these appeals are two differences in two inspections carried out by Rajasthan State Pollution Control Board on the industries of 4 appellants for checking the parameter of the waste water. As argued in the first inspection, deviation from the normal value were found in the level of pH and total suspended solids, whereas, as per the second inspection deviation was found only in the pH level of the waste water. It is further argued that a Show Cause Notice was issued on 06th March, 2020, whereby the appellants were provided an opportunity to explain the deviation of parameter in the waste water discharge. After the submission of the clarification, it is alleged that no final order was passed and the State Pollution Control Board without hearing or without giving an opportunity of hearing imposed an Environmental Compensation to the tune of Rupees Ten Lakhs on the each industries. During the course of the arguments, the learned counsel for the appellant has shown the comparative chart of different analysis, where the samples were taken on 11th January, 2021, while the analysis was done on 29th January, 2021 and in some of the cases the samples were taken on 12th January, 2021 while the samples were analyzed on 02 February, 2021. It is alleged and argued that there is a delay in analysis from 17 days to 20 days in all the cases. In some of the cases, there is difference of TSS level, while in some of the cases, there is a report with regard to the pH level. During the course of the argument, it is argued that the guide book of waste water published by Central Pollution Control Board provides that standard practice to the test of the level of pH in discharge water is to be tested instantaneously and, on the site, or immediately after sampling within a period of 0.25 hr.
3. Since, common question of law and fact has been raised in all these appeals thus heard the learned counsel for the parties and perused the records. The Appeals are decided by the common order. Challenge in these appeals are the order dated 24.03.2021 passed by Rajasthan State Pollution Control Board which is reproduced as follows :-
"Directions for depositing of Environmental Compensation under Section 33 A of the Water (Prevention and Control of Pollution) Act, 1974 and Section 31(A) of the Air (Prevention and Control of Pollution) Act, 1981 in compliance of orders of the Honourable Supreme Court in Writ Petition Civil number 375 /2012, Paryavaran Suraksha Samiti and Another Vs 5 Union of India and others, the Honourable National Green Tribunal in Original Application number 606/ 2018 - Compliance of Municipal Solid Waste Management Rules, 2016 and honourable NGT in O.A. 32/2014, Kisan Paryavaran Sanrakshan Samiti vs State of Rajasthan.
1. Whereas Section 24 of the Water (Prevention and Control of Pollution) Act 1974 (hereinafter called as the Water Act provides that no person can cause or permit any poisonous, noxious or polluting matter, determined in accordance with such standards as may be laid down by the State Board to enter into any stream or well or sewer or on land.
2. And whereas Section 25/26 of the Water Act provides that no person shall without the previous consent of the state board established or take any steps to establish, any industry, corporation or process or any treatment and disposal system or any extension or addition thereto which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land or bring into use any new or altered outlet for the discharge or Savage or trade effluent or begin to make any new discharge of sewage or trade affluent.
3. And whereas Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter called as the Air Act) provides that no person shall without previous consent of the state board, establish or operate any industrial plant in an air pollution control area, which is likely to cause air pollution in environment and discharge or cause or permitted to be discharged the emission of any air pollutant in excess to the standards laid down by the state board
4. And whereas you are operating the industry/establishment/entity (hereinafter referred to as the industry) ....................... which is engaged in operating and industrial plant/operation/ process at E-33, MRIA, Pali. During the process the industry discharges water and/or air pollutants.
5. And whereas during inspection of the industry carried out between 07.01.2020 to 10.01.2020 by officials of the Board sample was collected from outlet of primary treatment plant.6
6. And whereas analysis report of sample revealed that one or more parameters is/are exceeding the prescribed norms as under:
Observed value of pH- 3.32, TSS-161(Separately shown in other Appeals).
7. And whereas the above observations indicate that the industry has failed to comply with the provisions of Air Act and Water Act and various directions of the honourable courts and honourable National Green Tribunal and/or by making discharge of effluent/emissions has caused grave damage to the environment which can be categorised as significantly huge with Grave consequences on the environment, public health and flora and fauna.
8. and whereas The Honourable Supreme Court in Writ Petition Civil number 375/2012 Paryavaran Suraksha Samiti and Another vs. Union of India and others and the honourable NGT in Original Application number 606/2018 compliance of Municipal Solid Waste Management Rules 2016 and in several other cases has directed the board to impose environmental compensation on all the individuals/Industries/mines/ Institution/entities, etc who are causing damage to the environment on the principle of „POLLUTER PAYS‟.
9. And whereas Hon‟ble NGT has issued the directions to impose Environmental Compensation on the non complying polluting industries and has directed the Board to implement the same for restoration of environmental damages caused to the environment.
10. And whereas in the matter of O.A. No. 32/2014 Kisan Paryavaraqn Sangharsh Samiti vs. State of Rajasthan & Others, Hon‟ble NGT has „inter alia‟ passed following directions by order dated 18.12.2019:
"We direct the SPCB shall impose environmental compensation of Rs. 10 lakh each against all the units which are found to be non-compliant of environmental standards"7
11. And whereas a show cause notice for intended directions for depositing of Environmental Compensation of Rs. 10 lakh in compliance of Hon‟ble NGT order dated 18.12.2019 was issued vide this office letter dated 06.03.2020 for the non- compliance mentioned at Sr. No. 6 hereinabove.
12. And whereas Hon‟ble NGT in O.A. No. 32/2014 has „inter alia‟ passed following directions vide order dated 07.12.2020:
"The PCB has still not taken action against the polluting industries as per directions in order dated 18.12.2019..."
"I.A. No. 89/2020 has been filed for modification of order dated 18.12.2019 by the Rajasthan Textile Hand Processing Association with regard to environmental compensation of Rs. 10 lacs against the non-complaint units on the ground that the compensation is exorbitant".
"The applications are untenable in view of the said order having attained finally, after dismissal of review applications and will stand rejected"
"The State PCB must comply with directions in order dated 18.12.2019 against concerned polluting units falling which coercive measures will have to be taken against Member Secretary and Chairman of the PCB"
13. And whereas the industry was again inspected by the Board officials between 11.01.2021 to 18.01.2021 to know latest status of compliance. Sample was also collected from outlet of Primary Treatment Plant.
14. And whereas analysis report of sample recalls that one or more parameters is/are exceeding the prescribed norms as under:
Observed value of pH-5.91(Separately shown in other Appeals)
15. And whereas it is evident from above that the industry has failed to comply with the prescribed norms despite show cause notice dated 06.03.2020 and status of non-compliance remains unchanged so far.
16. And whereas the industry is liable to pay damage i.e Environmental Compensation on the basis of "Polluter Pays 8 Principle" as directed by the Hon‟ble Supreme Court and Hon‟ble NGT in various orders.
17. And whereas the State Board in performance of its duties under the Acts, is competent to issue any directions under section 33 A of the Water Act and Section 31 A of the Air Act in writing to any person, officer or authority and such person, officer or authority shall be bound to comply with such directions.
18. And whereas the State Board has decided to levy Environmental Compensation amount of Rs. 10,000/- against the Industry as directed by the Hon‟ble NGT.
In view of the above, the State Board in exercise of the powers conferred upon it under section 33A of the Water Act and 31 A of the Air Act and for performance of functions under the Acts and in compliance of Hon‟ble NGT directions dated 18.12.20219 and 07.12.2020 passed in OA No. 32/2014 Kisan Paryavaran Sangarsh Samiti vs. State of Rajasthan and Ors., hereby directs the industry to deposit the amount of Rs. 10,00,000/- as EC on the basis of "Polluter Pays Principle" in regional office of the RSPCB at Pali by 30.04.2021. The EC may be deposited through a demand draft in favour of the Member Secretary, Rajasthan State Pollution Control Board, Jaipur.
Please be informed that in case of failure to deposit the EC the industry will be liable for following actions; i. Consent to establish and /or consent to operate shall be refused/revoked without any further notice.
ii. Legal action including fling of EA before the Hon‟ble NGT may be initiated against the industry and its owners/occupiers iii. Any application for grant/renewal of consent to establish or consent to operate shall not be entertained by the Board.
iv. After 60 days the industry shall be liable to pay additional amount @ 1.5 % of the Environmental Compensation amount per month till deposition of the Environmental Compensation.
Compensation amount per month till deposition of the EC. It may be further, be noted that failure to comply with these directions is a criminal offense, punishable with imprisonment for a term which shall not be less than one year and six months but which may 9 extend to six years and with fine under Section 41 (2) of the Water and Section 39 of the Air act and the industry shall be closed immediately without any prior notice.
This bears approval of the competent authority." (We have taken words of one matter and similar letter/order has been issued to other Appellant with the parameter of analysis report shown separately. Since, the matter of opportunity of hearing was taken in this appeal, we need not to repeat the order of other appeals).
4. It is argued by the learned counsel for the appellant that the aforesaid notice was issued to the Appellant without following the principles of natural justice or the usual practice undertaken by RSPCB before taking action under the Air and Water Acts. It is stated that no show cause notice was issued to the Appellant seeking an explanation before imposing an environmental compensation for decreased level of pH in the waste water discharged by the Appellant industry. The order was passed without providing an hearing to the Appellant which is against the doctrine of audi alteram partem and that the Appellant is an industry that is situated in Rajasthan and discharges its waste water, after treatment into a central effluent treatment plant i.e., Respondent No. 2 which in turn treats the said waste water discharge along with other discharges in the said area before the treated water is discharged into the natural water bodies.
5. Facts as narrated by the appellant are that on 07.01.2020, the State Board for Prevention and Control of Water Pollution, through its Regional Officer, Rajasthan issued a Notice of Inspection under Rule 30(2) of Rajasthan Water (Prevention and Control of Pollution) Rules, 1975 which was carried out on the same day. Along with the notice of inspection a notice of intention to have sample analyzed was also issued to the Appellant. On 20.01.2020, the board analyst on behalf of the RSPCB (Central Laboratory) issued the final report on the sample of waste-water collected from the Appellant industry.
6. On 06.03.2020, a show cause notice was issued by RSPCB to the Appellant based on the final report issued by the Central Laboratory. As per the analysis in the report it was found that more than one parameters in the waste-water as collected, were above or below the normal value, i.e. the value of pH was found to be 3.32 and the Total suspended solids (TSS) was 616. Further the show cause notice stated that an environmental compensation of Rs. 10,00,000/- 10 (Rupees Ten Lacs Only) was to be imposed on the Appellant in the event the objection/clarification to the present notice was found unsatisfactory and to that effect, the Appellant was informed to make a representation before the Head Office of the RSPCB on 13.03.2020 submitting their objections/clarifications and it is contended that the appellant industries alongwith the other industries sought an expert opinion from one private agency in Gujarat which has submitted the report that according to the standard practice the level of pH in discharged water is to be tested instantaneously and on the site, or immediately after sampling within a specified period as per Guide Manual Water and Waste-Water Analysis issued by the Central Pollution Control Board and that before issuing environmental compensation no show-cause notice was issued to the appellants.
7. Proceedings in this matter arise out of D.B. Civil Writ Petition No. 9503/2012 on the file of the Rajasthan High Court at Jodhpur which has been transferred to this Tribunal for adjudication. The issue involves remedial action against discharge of untreated trade effluents by textile industries at Pali, in violation of environmental norms and orders of the High Court dated 09.03.2004 in D.B. Civil Writ Petition No. 759/2002, Mahavir Nagar Vikas Samiti Pali vs. State of Rajasthan & Ors. and order dated 11.04.2008 in S.B. Civil Writ Petition No. 5436/2007, Shree Raja Ram Mills vs. State of Rajasthan & Ors., directing shifting of the industries to the allocated industrial area set up by the Rajasthan State Industrial Development and Investment Corporation (RIICO) and also directing that no industry will discharge polluted water in the river Bandi.
8. Case of the applicant - Samiti is that dyeing and printing industries of Pali town are discharging effluents in Bandi river which is a tributary of Luni river, leading to water pollution which is a source of drinking water of the livestock as well as the inhabitants of the nearby villages. There is water scarcity in the area. Nehra Dam was set up as an irrigation project. The effluent has severely damaged the environment in the area. A study found that Common Effluent Treatment Plants (CETPs) do not have adequate capacity to treat the effluents. 11 The number of factories is continuously increasing, without corresponding increase in the capacity to treat effluents. The State PCB initiated prosecution of Pali Water Pollution Control Treatment and Research Foundation, Mandia Road, Pali (CETP management), in terms of office order dated 01.06.2012 for violation of provisions of the Water (Prevention and Control of Pollution) Act, 1974 (The Water Act, 1974). There are many industrial units in non-conforming areas, in violation of environmental laws which need to be closed and shifted. The non-compliant industries need to be closed to give effect to the environmental norms in view of law laid down in Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647. There is need to prevent environmental degradation and to invoke the "Polluter Pays" principle. The State, under the Public Trust Doctrine, must take remedial action for protection of the environment and to give effect to right of citizens to clean environment.
9. This Tribunal, vide order dated 05.03.2014, sought response of the opposite parties and directed that the industries operating without requisite consents under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 be closed and steps be taken to prevent pollution. The matter has thereafter been considered on several occasions in the last six years. For the purpose of this order, we may only refer to some of the significant orders.
10. Vide order dated 03.10.2016, the Tribunal directed joint inspection by the Central Pollution Control Board (CPCB) and the State PCB to ascertain the ground situation.
11. Accordingly, an inspection report was filed on 26.10.2016 with regard to the status of six CETPs and 578 textile and dyeing industries. Vide order dated 26.05.2017, the Tribunal considered the report and since the CETP were not adequately treating the effluents, the Tribunal directed restricted working of the industries under a roaster, to be prepared, and constituted a Monitoring Committee comprising of CPCB, State PCB, Member of faculty of IIT, Jodhpur and Dr. Brij Gopal, Environmental Specialist at Jaipur to further 12 assess the functioning of the CETPs. It was also directed that only industries having standalone ETPs be connected to the CETPs.
12. In compliance of the above, the Monitoring Committee submitted its report dated 15.04.2018 recommending as follows:
"1. In view of the grave situation of the water quality of the river and Nehda reservoir, ground water quality and land pollution, and in the overall interest of the health of the people of Pali, we recommend that no treated or untreated industrial effluent should be allowed to be discharged in river or on adjacent land in any form. Further, considering not only the feasibility but also the economic viability and the environmental sustainability of CETP, even on a small to moderate scale, we recommend that:
a) The industries should be required to recover water and reuse it from the tertiary treated effluent instead of discharging into the river.
b) CETP-VI should adopt multi stage Reverse Osmosis System (RO Plant), of adequate capacity for recovery of water and its reutilization by the member units of CETP, followed by RO reject management system such as Multi Effect Evaporator, and residual salt management.
c) The CETP management should also prevent the river and land from any damage from the RO reject generated from CETP.
d) CETP-II, III and IV should also be upgraded to incorporate a tertiary treatment system together with the multi stage Reverse Osmosis System (RO Plant) of adequate capacity for reuse and reutilization of treated water along with the reject management system such as Multi Effect Evaporator, and residual salt management.
e) The individual industries should periodically monitor the quality of effluent discharged from the primary treatment facilities for smooth and efficient operation of CETPs, and should comply with the consent conditions."
13. The Tribunal, vide order dated 28.05.2018., directed remedial action by the industries/CETPs as per above recommendations, to be verified by the Collector, Pali and the Divisional Commissioner, Jodhpur. 13
14. The matter was thereafter reviewed on 21.12.2018 and since the deficiencies had continued, it was considered necessary to require an updated report of the status of compliance and further action required comprising of three-member expert Committee comprising of Dr. A.P. Singh, Professor and Dean, BITS Pilani, Dr. A.B. Akolkar, Former Member Secretary, CPCB and Dr. A.B. Gupta, Professor, NIIT, Jaipur. The Committee visited the site and examined the compliance status with reference to the earlier action plan dated 15.04.2018. The issues noted in the report are:
"3. Issues of concern:
i. River Bandi is polluted due to discharge of industrial effluents and sewage disposal of Pali town.
ii. Polluted water flowing in River Bandi is a constant threat for health of villagers and to the agriculture. iii. Installed CETPs not achieving zero liquid discharge (ZLD) and effluents still being discharged into River Bandi. iv. Industries discharging effluents to CETPs without having primary effluent treatment plants (PETPs)."
15. The Committee submitted its report on 15.01.2019. It was found that river Bandi was polluted by flow of coloured effluents in the Nehra Dam. There was deposit of green coloured sludge. Water quality was beyond norms. CETPs were deficient. There was loss to the farmers on account of damage to the soil. Ground water sources were depleted. Recommendations in the earlier report dated 15.04.2018 remained by and large uncomplied. The concluding observations and action plan in the said report are as follows:
"10. Concluding observations and Action Plan, (2019):
The present Team of Scientists has referred the available Inspection Reports placed on record of Hon'ble Tribunal on issues relating to pollution issues caused by textile units in Pali. The Team has also examined water quality data that is, of river Bandi at Nehda Dam, ground water report of CGWB and performance report of CETPs.
After assessing overall environmental status of the area and the nature of industries in existence (Textile) and remedial measures 14 taken to control industrial pollution by installing CETPs, the Committee considered to place the following suggestions which may be considered as an upgraded version of already existing action plan suggested by earlier Committees. The key observations with Action Points are given below:
10.1 The River Bandi and its Rejuvenation:
i. The River Bandi is not having its natural flow but, it is only carrying industrial waste water as well as domestic sewage.
ii. Water quality is "not-fit" for any use.
iii. The River water has been deteriorated to the worst quality. t has been reported that upstream location of river at Hemawas reservoir indicate pH 8.22, BOD 1.13 mg/1, COD 28 mg/land TDS 470 mg/l against the downstream location of river at Nehda Dam with pH 7.9 to 8.61, BOD 9.9 to 44 mg/1, COD 94 to 313 mg/1 and dissolved solids 4008 to 6624 mg/l.
The Action Plan:
i. The river may be dredged so to remove industrial and sewage sludge deposited.
ii. River may be canalised (earthen canal) at
appropriate locations.
iii. Not allowing industrial (even treated) and sewage
disposal into River Bandi. To monitor this, CCTVs be installed at strategic locations and monitored by District Collector and Regional Office of RSPCB. iv. Tertiary treated industrial and sewage effluent after its utilisation and if surplus, may go into river but not exceeding value of BOD; 3mg/1, TDS/FDS; not more than 2100 mg/l and fecal coliform; less than 230 MPN/100ml.
v. To prohibit unauthorised/illegal discharges of industrial effluent through tankers and particularly from adjoining States should be monitored at inter- State borders and within the State also at various check-posts. Further, vigilance squad should also be deployed to check such incidences of discharging effluents in the River through tankers.
vi. RSPCB must monitor regularly river water quality 15 and quantity at critical locations including NH bye- pass bridge location (with inflow and outflow) to apply mass balance of selected stretches so that illegal disposal of industrial wastewater into river can be monitored.
10.2 The Ground Water:
i. Industries are using ground water supplied by tankers through private parties.
ii. There is no regulation on supply of such ground water by private parties to the industries.
iii. Granting permission by CGWB to industries and those being done by private parties through tankers is not clear on permissions and many applications are pending with CGWB.
The Action Plan:
i. Through Industrial Association and State
Government, some of the village wells having
relatively less TDS, may be fitted with RO and
Fluoride, Arsenic and other contaminant removal system and provide potable/usable water to villagers and farmers for their use. This plan may be proposed and executed within six months.
ii. To conserve ground water, in Pali town, dual piping system be enforced and waste water of kitchen and bath, be used for flushing of toilets. This can be planned and executed within residential (This may cover hotels, new residential one year.
societies/complexes, and other Institutions).
10.3 Sewage Treatment and its utilisation:
i. The treated sewage (at secondary level) of 7.5 MLD plant is presently disposed into River Bandi.
ii. M/S Pali Zila Dugdh Utpadak Sahakari Sangh Ltd. is sending its effluent to this STP for treatment, iii. The STP of 15 MLD located in the same premises 1S u construction and targeted for completion before March, 2019.
iv. The 7.5 MLLD plant is not receiving full sewage due to incomplete sewer line works and connections.16
The Action Plan:
i. The existing plant of 7.5 MLD should be provided with tertiary system to remove fecal coliforms to meet the standards.
ii. Treated effluent be further refined and entire effluent from this plant be utilised by industries as process water and thereby prohibiting use of ground water being supplied by tankers.
iii. Steps may be initiated at this stage to use 15 MLD treated sewage for industries.
iv. In no case, effluents from both the plants to go into river. If it is required to be discharged as surplus then it should meet standards of BOD; less than 3.0 mg/1 and FC; less than 230 MPB/100 ml.
10.4 Industrial Pollution Control:
i. None of the CETPs is meeting the standards
ii. No standards are given for CETP-2 and sending its
effluent to CETP-6.
iii. CETP-2 has poor maintenance.
iv. No standards prescribed to CETP-3 and sending
effluent to CETP-6.
v. CETP-4 has also not been given standards for
disposal to CETP- 6. But, as per consent, effluent is consented for disposal of effluents to river.
vi. CETP-6 is disposing non-compliant quality of treated effluent to river. Facilities to recover water and supplying to the industries is not complied.
The Action Plan:
i. CETP Association, RSPCB and RIICO, should review that why not receive all waste water of CETP 2, 3 and 4 directly at CETP-6 for treatment and dispense with the functioning of CETP 2,3 and 4 which for practical purpose not serving any purpose. Response to this action points may be provided in 4 weeks. If, CETP 2, 3 and 4 are to be operated, then they should be provided with outlet norms which will become inlet norms of CETP-6. Consent granted to CETPs, be accordingly modified and consent may be granted within 4 weeks.
ii. There should be regular inspection and maintenance 17 schedule of closed pipeline carrying effluent to CETPs.
iii. RIICO and industrial Association should clean all the storm water drains and no choking should be seen.
iv. In industrial area of Pali, no waste should be burnt.
v. RIICO with Industrial association, should work out for use of solar panel to energize the boilers and minimize use of wood or coal as fuel.
vi. All the member industries be insisted to make pH correction particularly of units generating effluent less than 50 KLD.
10.5 Environmental Compensation:
i. Team could not get authentic official records on damages to agriculture, loss of ground water quality and health The Action Plan:
i. State Department of Agriculture and Health may provide information on status of agricultural loss, ground water conditions and health due to pollution by textile units. ii. Environment compensation and relief to villagers and farmer may be considered and at the same time, detecting factors of natural desertification effects. State Government may provide information within 2 months.
11. Surveillance and Monitoring:
The Team suggests that there is need to have a regular surveillance mechanism to monitor the compliance of Action Plan as well as ground level checking. For this purpose, a District Level Task Force under the chairmanship of District Collector with representatives of State Pollution Control Boards, RIICO, Transport Department and Police and also be represented by District Legal Services Authority. The task force may meet and review the progress of implementation of Action Plan on weekly basis and also carryout random checks. It would also be appropriate to have a Monitoring Committee under chairmanship of Divisional Commissioner (Jodhpur) to monitor progress of implementation of Action Plan for Pali as well as Jodhpur industries including CETPS as has already been directed by the Hon'ble Tribunal."18
16. The Tribunal considered the matter vide order dated 31.01.2019. In view of serious violation of environmental norms, in violation of earlier orders, the Tribunal required the CETP operator to pay compensation of Rs.1 Crore and the State to pay compensation of Rs.20 crore on polluter pays principle for restoration of the environment and also directed remedial action to control pollution and to provide relief to the victims, as follows:
"I. The concerned authorities in the state should implement the upgraded/revised Action Plan suggested by the Committee.
II. The Secretary, Department of Agriculture, Government of Rajasthan shall get an assessment done on loss of agriculture to the farmers/villagers, on the damages caused to agriculture land by use of contaminated water of river Bandi as well as to the wells in nearby area and submit a report within one month, suggesting compensation to the farmers (one time ex-gratia).
III. The Secretary, Department of Health of the State shall file a report on status of health of villagers in the area due to use of contaminated water within one month and also report on health check-up camps organized. He will also report on action taken on any previous work/reports on such incidences.
IV. The Secretary for Water Resources of the State Government and Central/State ground water agencies will file, through its Secretary, report on status of ground water reserves, and quality in the catchment of Bandi. The report should clearly highlight status of ground water contamination in context of industrial and sewage discharge in the open. Report should also be filed in context of providing potable water to the affected villagers, including setting up of water purification/treatment plants through Polluters. Action taken report to this effect should be filed within one month.
V. The Secretary of the State Environment Department should file a report on actions taken on the report of National Productivity 19 Council prepared in the year 2010 relating to "Study of Health and Environment impact due to pollution from textile units in Pali". This report was prepared at the instance of Department of Environment, Government of Rajasthan. The status report should be filed within one month.
VI. We direct the State Transport Department to keep vigil at different check-posts within the districts of Pali to control and prohibit discharge of unauthorized effluents through tankers into river Bandi or at any other locations. This action should also include prohibiting entry of any unauthorized tankers from the neighbouring districts. The daily report to this effect should be e-mailed to the office of the Collector (Pali) and to the Regional Office of State PCB.
VII. We direct Central Ground Water Board (CGWB) to file status of ground water scenario in Pali district indicating; (a) pendency of applications for grant of permissions received from industries (b) ground water level and its quality in the Pali district.
VIII. We direct Rajasthan Pollution Control Board to grant consents under the Water Act to the industries and disseminate the status on its website. No industries should be allowed to operate without having valid consent. The action should also be taken so that the member units to the CETP should have at least, pH correction before letting out the effluent in a closed conduit reaching to CETP. We further direct RSPCB to resolve the issue relating to granting of consent to CETP (Unit No.6) stipulating zero liquid discharge with reference to river Bandi and ensuring that the treated effluent is supplied to the Member Units. RSPCB should ensure that no industrial and sewage effluent is discharged into the river (even treated) and instead, it should be utilized by the industries. The Board should take coercive action against the defaulting industries including imposing environment compensation as well as launching prosecution. A report to this effect, shall be filed before 1st of March, 2019. In case of failure, the Tribunal will take coercive action against the Board.
IX. RSPCB should monitor the compliance and file reports to the 20 tribunal. First such report should be filed before 01.03.2019.
X. Further, the new STP of 15 MLD which is reported to have been under constructions, should also be equipped so that treated effluents are supplied to the industries.
XI. We direct CETP operator to set up system for proper treatment and recovery of water for supply to the Member Units and minimizing use of ground water to almost zero level, within two months.
XII. We direct the Commissioner, Pali Nagar Nigam to set up the required system to meet the standards for 7.5 MLD sewage treatment plant and not to discharge treated effluents into river Bandi.
XIII. The Divisional Commissioner (Jodhpur), will have a plan prepared for dredging of river Bandi and also canalising it at an appropriate locations within one month. While issuing such directions natural conditions and ecology should be protected.
XIV. We further direct RSPCB and RIICO and the Industrial Association of Pali to use the treated effluents for industrial purpose. Any further requirement of finished water, may be undertaken at the cost of industries. This action should be completed within one month.
XV. We direct the Chief Secretary of the State of Rajasthan to deposit Rupees twenty Crores as an interim amount, within one month, towards environment compensation to CPCB, which may be recovered from the polluters. Chief Secretary will also ensure that the aforesaid Reports called for on Health, Agriculture and Ground Water are filed by the concerned Secretaries, within time.
XVI. We impose environment compensation of Rupees One Crore on CETP operators for discharging effluents into river Bandi and not setting up system for reuse of treated water for supplying to the industries to be deposited with CPCB, within one month.
XVII. We direct Collector, Pali to review the status of compliance of 21 directions of the Tribunal weekly and the same be reviewed by the Divisional Commissioner, (Jodhpur) in one month."
17. By further order dated 18.10.2019, the Tribunal directed verification of status of compliance by the CETPs and the industries, in comparison to the earlier status, by an expert (Prof. AP Singh from BITS Pilani). The report 27.11.2019 was considered on 18.12.2019. It was found that the functioning of the CETPs was still not satisfactory. The industrial effluents from the units connected to the CETPs were not being treated and were being discharged in open fields or in the river. Relevant extracts from the order dated 18.12.2019 are as follows:
"6. The Court Commissioner had made following observations on the functioning of the Common Effluent Treatment Plants (CETPs) at Pali, Rajasthan:
" CETP - 1:
It is non-operative.
CETP-2:
This CETP is meant for receiving effluents from 282 textile units of Mandia road industrial area, Pali. At the time of inspection on 11th November, 2019 following observations were noted: The permitted operated capacity of CETP-2 has been prescribed as maximum up to 5.4 MLD by the State Pollution Control Board against its designed capacity of 8.4 MLD). It is surprising how the plant is running underflow at the time of inspection, especially when 282 textile units are to be served from Mandia road industrial area, Pali.
Though the provision of an electromagnetic meter has been provided after the equalization tank (in transfer line to flash mixer section), it was initially non-functional and was installed recently just few days before the inspection visit of Commissioner. It is to be noted that the flowmeter is required to be installed at the inlet point of conveyance influent system (before Conduit Termination Pit) rather than providing it after the equalization tank (in transfer line to flash mixer section). Also, flow and effluent quality data are not being monitored through SCADA system at CETP-2 which is the violation of condition no. 16 stipulated in CTO order no. 2017- 2018/PLG/1025 dated 19/06/2017.
There is no recording of effluent flow at the outlet of CETP-2. No flow meter exists at the outlet which is violation of condition no. 7 stipulated in CTO order no. 2017- 2018/PLG/1025 dated 19/06/2017. It is very essential that the flow at the outlet of CETP-2 be measured accurately with proper flowmeter to ensure that the same flow is being discharged into the inlet of 22 CETP-6 especially when both CETPs are located far away and not in the same premise.
Scrapper of oil & grease trap was nonfunctional. CETP-2 is non-complying with respect to input parameter quality parameters such as pH (=11.1), total suspended solids (848 mg/L). Similarly, as per RSPCB test results of samples, lead concentration was found 1.08 mg/L at the outlet of CETP- 2 which is also non-complying.
Log book of operation, electric meter/water meters‟/chemicals consumption etc. are not maintained properly. From the examinations of the produced log book, it has been inferred that artificial data have been created with instant entry in the log book. Consumptions of chemicals and utilities are not recorded.
CETP-2 is non-compliance with respect to conditions numbers 16, 17, and 18 stipulated in the CTO order no. 2017- 2018/PLG/1025 dated 19/06/2017.
Records of generation and disposed sludge are not being maintained in the prescribed format for the last six months. Condition of secondary treatment units was clearly revealing that biological treatment is very poor and failed. Neither run hour meters are provided nor any log book is maintained for operation of influent/effluent handling pumps installed with different units of CETP. In absence of same, regulated operation of CETP may not be ascertained.
Records related with routine engineering maintenance are not being maintained.
Though CETP-2 is physically present, it is essentially being used as a pumping station to receive the wastewater from industries and pump the same to CETP-6 without any effective treatment.
Due to above deficiencies and observations made, it is inferred that CETP-2 is noncomplying with respect to various conditions stipulated in the CTO.
CETP- 3:
The consent granted for this CETP is valid till 31st March,2022 for install capacity of 9.080 million litres per day (MLD). Though the plant has been planned to cater to the needs of 62 units located in RIICO industrial area and Mahavir Udyog Nagar, it is not in operation for the last six (6) months.
CETP-4:
This plant is presently operational without any formal CTO letter because consent to operate under Water Act, 1974 was valid upto 30th September, 2018 and the CETP IV still needs to get consent to operate.
This CETP has an installed capacity of 12.0 MLD to cater to the needs of 215 industries located in Punayata industrial area.
The treated effluent from this plant goes to CETP-6 for further treatment.23
No correlation could be established between effluent discharged from CETP-4 into CETP-6 and influent received at CETP-6 from CETP-4 due to lack of appropriate flowmeters at proper location though there exists a flowmeter at the outlet of CETP-4. It is very essential that the flow coming from the outlet of CETP-4 be measured accurately at the inlet of CETP6 with proper flowmeter to ensure that the same flow is being discharged into the inlet of CETP-6 especially when flexible pipes are being used and both CETPs are located far away and not in the same premise. There is no proper layout of piping systems/signage at the plant which ascertain whether these pipes are coming from a particular treatment unit (e.g. CETP-2, CETP-4 etc.) or coming directly from industrial units.
Aeration system in equalization tanks has not been found effective at the time of inspection.
Sludge drain facility has not been provided in equalization tanks. In the absence of metering arrangements at appropriate location in inlet of Conduit Termination Pit of CETP-4, actual quantum of influent could not be assessed /recorded accurately. Thus, it is difficult to ensure whether plant is running within the prescribed flow capacity as given in the CTO or not.
Log book of operation, electric meter/ water meters‟/chemicals consumption etc. are not maintained properly. From the examinations of the produced log book, it has been inferred that artificial data have been created with instant entry in the log book. Analysis of treated water quality is clear indicator of poor O & M of CETP.
Records of generation and disposed sludge are not being maintained in the prescribed format for the last six months.
Filter Press has not been provided for dewatering of sludge.
The Programmable Logic Controller (PLC) based chemical dosing facilities have not been provided. During inspection related operations are being performed manually by unskilled labour in an unscientific manner. In the absence of any surveillance and automated system, usage of appropriate chemicals with optimum dose for treatment cannot be ascertained.
Condition of secondary treatment units was clearly revealing that biological treatment is very poor and failed.
Record of Total Suspended Solids (inlet and outlet) and sludge drains etc. are not being maintained for primary clari-flocculator.
Controlling parameters like dissolved Oxygen (D.O.) & Mixed Liquor Suspended Solids etc. are not monitored in the aeration tank.
Record of sludge drains was not being maintained for secondary clarifier. In the absence of such monitoring efficiency of clarification at secondary (biological sludge) treatment could not be established.24
Performance of centrifuge was poor. Sludge (in Slurry form) was being filled in tractor trolley.
Neither run hour meters are provided nor any log book is maintained for operation of influent/effluent handling pumps installed with different units of CETP.
Bulk quantity of sludge was stored in shaded storage area. Sludge is also stored in open space as shades provided for storage of sludge are not of sufficient capacity.
General house keeping all around sludge storage area was very poor. Even the yard site and other area were becoming greenish due to spillage of sludge. The dried sludge was becoming air born with movement of vehicles. Records of sludge generation and disposal are not being maintained in prescribed FORM-3 in HWMR2016.
Examination of past data revealed that disposal of sludge is almost equal to daily generation and, if a large quantity of hazardous sludge is stored in yard and lying in open lagoon over the years, it clearly indicates that sludge is not being disposed at same rate as it is being generated. It is clear indication of violation of Rule 8 of the HWMR 2016, if large quantity of sludge is continuously being stored in the yard since long.
Referring to quantity of sludge stored in yard and on basis of details of sludge disposal it was concluded that final disposal of sludge, to SLF or for Co-processing, is not being done as per provisions of Rule 8 of the Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016.
Accumulated (Stored) sludge in the yard may become a cause of severe environmental degradation & water pollution in that vicinity.
Online treated effluent quality monitoring analyzers were not in operation.
Though CETP-4 is physically present, it is essentially being used as a pumping station to receive the wastewater from industries and pump the same to CETP-6 without any effective treatment.
CETP-4 is non-complying with respect to water quality parameters. The samples taken from inlet and outlet of CETP-4 were tested by Rajasthan State Pollution Control Board, Head Office, Central laboratory, Jaipur.
This plant is „non-complying‟ with respect to:
Not meeting the standards (condition given in the consent attached as Annexure R-8, page 2966-2971 of earlier report submitted on 16th January 2019). In fact, at present this CETP is operating without valid consent of State Board as the consent granted was expired on 30.09.2018.
Not utilizing effluent with high rate transpiration system (HRTS) as specified under condition 8 of the consent.25
Upgradation of CETP for ZLD and tertiary system (condition 20 and 21 of the consent).
In addition, CETP-4 is not complying with the condition no. 9, 10, 11, 16, 22, 24 & 25 of the consent.
CETP-5:
This plant is yet to be completed.
CETP-6:
Consent to operate to this Plant under Section 25/26 of Water Act, 1974 and under Section 21 of Air Act, 1981 was granted on 27.02.2019 and is valid up to 31.01.2023 with the condition of zero liquid discharge with scientific arrangement for disposal of RO rejects to achieve the status of Zero Liquid Discharge (ZLD).
The work for installation of Zero Liquid Discharge facility is yet to be started.
This CETP is meant to treat the waste water being received from CETP 2, 3 (non-functional at the time of inspection on 10.11.2019) and 4 with a total installed capacity of 12.0 MLD.
The CETP-6 is based upon physico-chemical, secondary biological treatment technology followed by Tertiary treatment facility. Tertiary treatment facility is comprised of Pressure Sand Filters and Activated carbon columns only. (At the time of surprise inspection on 21.11.2019, Pressure Sand Filters and Activated carbon columns were non-operational).
As per consent granted to CETP-6; no waste water is to be disposed and it should be based on ZLD. However, it has been found that effluent wastewater from CETP-6 is being discharged and getting stored in a pool of temporary arrangement of earthen walls constructed on the bed of river Bandi itself. Neither run hour meters are provided nor any log book is maintained for operation of influent/effluent handling pumps installed with different units of CETP.
The electromagnetic meter provision has been made after the equalization tank (in transfer line to flash mixer section), which is not appropriate location for capturing inflow of the plant. It should be installed at the inlet point of conveyance influent system (before Conduit Termination Pit or receiving inlet sump). Also, it is not being monitored through SCADA system at CETP-6. No correlation could be established between effluent coming from CETP-2, CETP-3 & CETP-4 into CETP-6 due to lack of appropriate flowmeters at proper location. It is very essential that the flow coming from the outlets of CETP-2, CETP-3 & CETP-4 be measured accurately at the inlet of CETP-6 with proper flowmeter to ensure that the same flow is being discharged into the inlet of CETP-6 especially when flexible pipes are being used and both CETPs are located far away and not in the same premise. There is no proper layout of piping systems/signage at the plant, which can ascertain whether these pipes are coming from a particular treatment unit (e.g. CETP-2, CETP-4 etc.) or coming directly from the industrial units.
26 Online effluent quality monitoring system is not being operated and maintained. Also, for exact metering of discharge water, outlet meter is to be installed into the discharge line of ACF & PSF section.
The Programmable Logic Controller (PLC) based chemical dosing facilities have not been provided. During inspection, related operations are being performed manually by unskilled labor in an unscientific manner.
Record of Total Suspended Solids (inlet and outlet) and sludge drains etc. are not being maintained for primary clari-flocculator. In the absence of such monitoring efficiency of clarification of primary (chemical sludge) effective treatment could not be ascertained.
As per technical design of this CETP, clarified water tank has not been provided before SBR.
Designed/Original PLC based operation of SBR is not in use. Different operations of SBR section are controlled manually. Records of regular back washing of tertiary treatment units as well as replacement of sand filter media and activated carbon columns is not being maintained.
Record of replacement of filter media is not available with CETP operator. It was reported that the media was replaced long back. Further, the result of treated effluent is clear indicator of poor efficiency of ACF & MGF.
Sludge generation from CETP-6 unit is about 700 MT/month. Examination of the past data revealed that disposal of sludge is almost equal to daily generation. However, about 6750 MT sludge has been found stored at common sludge yard of CETPs at time of inspection, which is a clear indication that generation and disposal data provided in the record is not authentic. It was told that even more than 10000 MT of sludge have been stored in similar manner for a very long time, which is violation of provisions of Haz. Waste (M, H & TBM) Rules 2016. The Management of CETPs does not has any action-plan for the lifting & disposal of the stored sludge in prescribed time frame under H & OW (M &TM) Rules, 2016.
Records of generation and disposed sludge are not being maintained in prescribed format.
Filter Press has not been provided for dewatering of sludge. Bulk quantity of sludge was stored in shaded storage area. Sludge is also stored in open space as shades provided for storage of sludge are not of sufficient capacity.
General house keeping all around sludge storage area was very poor. Even the yard site and other areas were becoming greenish due to spillage of sludge. The dried sludge was becoming air born with movement of vehicles.
27 Accumulated (Stored) sludge in the yard would become a cause of severe environmental degradation & water pollution in that vicinity. As per R.O., Pali, CETP authorities are not maintaining and sharing complete record of effluent treated, chemicals consumed, energy consumption, records of sludge disposal and disposal etc. They do not share such data on monthly basis which is violation of point no. 10 & 16 stipulated in the CTO order dated 27/02/2019.
The quality of treated effluent is not within the prescribed standards limit. For example, concentration of Chloride is 2560 mg/L and Fluoride is 3.78 mg/L which are noncomplying to the standards.
Observations made by the RSPCB in last few months reveal that quality of treated effluent from CETP-6 is not complying with respect to other parameters as well.
Also, online treated effluent quality monitoring analyzers were not in operation. o The working different treatment units at CETP-6 has been found poor. Also, Routine maintenance of the plant is very poor. Records related with routine engineering maintenance are not being maintained properly.
A lot of noise pollution occurs if D.G. sets are functioning. Intense noise was observed from compressor house. Acoustic enclosure for control noise level has not been provided."
7. The Court Commissioner also made a surprise visit to CETP-6 on 21.11.2019 and has observed as follows:
"Just after arrival at the plant, all incoming pipes coming to the inlet sump were running full of flow. However, just within 5 minutes, inlet flow from one of the pipes was stopped and flow was reduced in other pipes. It is felt that it was done intentionally to reduce the inflow. The flow meter reading was observed as 420 m3/hr. Surprisingly there was no variation observed in the flow meter during this time. Probably it is because it is placed at the wrong location to capture inlet flow or flowmeter might not be working accurately or it might have been calibrated to show a particular fixed range of flow only. It may be recalled that flowmeter was recording similar range of flow of (about 427 m3/hr) during the inspection on 10.11.2019 when there was low inlet flow observed as compared to that during the surprise visit on 21.11.2019. The difference in water level in inlet sump can be seen on both inspection dates.
One additional flexible pipe line discharging raw influent into inlet sump has also been observed during the surprise visit which was not there during a visit on 10-11t h November 2019. On enquiry, it was told that it is laid down from Punayata Industrial Area to inlet sump of CETP-6 to carry the industrial wastewater influent directly to CETP-6 without pretreatment in CETP-4, which is violation of the order of Hon‟ble NGT Dated 26/05/2017. Samples were taken at inlet, just after secondary clarifier (ACF & PSF units) and at the outlet of CETP-6. Few critical parameters 28 were tested in the Laboratory by the Commissioner. The results were quite alarming as shown in Table 1. The analysis report of treated wastewater of CETP collected at the final outlet of CETP- 6 indicates that six important parameters out of eight, which were tested, are exceeded much beyond the prescribed limit of design parameters. These are COD with observed value of 940 mg/L against the prescribed limit of 250 mg/L; Chloride value of 3757 mg/L against the prescribed limit of 1000 mg/L; Total Suspended solids (TSS) value of 155 mg/L against the prescribed limit of 100 mg/L; Oil and grease value of 30 mg/L against the prescribed limit of 10 mg/L. BOD3 (at 27 0C) value of 320 mg/L against the prescribed BOD limit of 20 mg/L; The values of other parameters were found to be pH = 8.0 (within limit); Total Dissolved Solids = 11140 mg/L, Total Hardness = 280 mg/L. The detailed analysis report is given in Table 1.
Immediately, observations were made at the outlet to get effluent flow data. It was further surprising to note that the flow meter reading of outflow which was observed as 124 m3/hr reduced to 111 m3/hr which was further reduced to 92 m3/hr within 3-4 minutes. The colour of effluent at the outlet was also changed very dramatically from dark green to pale yellow within 3-4 minutes. At the time of surprise inspection, the sudden change in outlet flow and its colour from dark green to pale yellow within 3 to 4 minutes shows that-
o The outlet treated effluent flow was possibly diverted and some clear water of same TDS might be introduced.
o The flow was possibly reduced by sludge decanting from secondary clarifier to reduce the surface over flow rate. o Chances of introduction of any bleaching agent (Like sodium hypochlorite etc.) in the outlet pipe at the time of inspection may not be ruled out.
o As stated earlier, the sludge generation is out of limit so probably, a part of the sludge might be recirculated to raw water or equalization tank or somewhere in the process of flow through pipes, which might be one of the reason of high COD at the outlet.
o The BOD is also too high at the inlet of CETP6, hence reduction is not as per the stipulated limits. The main cause of BOD might be that some waste water stream be fed directly to the pipe/stream coming from primary CETPs (CETP-4 or CETP-
2).
o As the treated water has high COD in the test samples taken during the surprise visit as shown in Table 1, it shows that the chemical treatment is ineffective. Probably only pH correction might have been done at the site using some acid. The parameter reduction is only due to settling of the sludge in the clarifiers etc. PSF/ACF are initially nonoperative at the time of sudden inspection and were operated partially after some time, it was not clear whether they were in line or NOT. There is no pressure gauge/flow monitoring device available in PSF/ACF, which is essential in order to keep regular watch of working conditions of tertiary treatment units (basically it is only primary unit of tertiary treatment). Also at the time of sudden 29 inspection, effluent at the outlet was having typical smell which was disappeared within 3-4 minutes at the time of inspection itself probably due to reduction in flow as stated earlier. Above observations clearly shows that CETP-6 is „noncomplying‟ with respect to:
o Not meeting the effluent standards and several other conditions given in the consent.
o As per the technical data of CETP-6 provided at Annexure R- 10 (page 2973-2977 of earlier report submitted to Hon. NGT on 16.01.2019). It is inferred that though this CETP-6 is designed based on raw water characteristics with BOD 700-1000 mg/L;
COD 3000-3500 mg/L, Oil and grease 100 mg/L, the actual average values of these parameters at the inlet sump during the surprise visit has been found as 2360 mg/L (BOD); 4351 mg/L (COD); 460 mg/L (Oil & Grease) respectively (Table 1). These values are much higher than the designed values of parameters which clearly shows that the flow coming from CETP-2 and CETP-4 to inlet sump of CETP-6 is not complying the standards. Not only CETP-2 & CETP-4 are noncompliance with respect to their effluent (outlet) meeting requirement standards but also CETP-6 does not meet its input design parameters. CETP-3 was also found nonfunctional at the time of inspection.
o Similarly, CETP-6 does not meet its effluent design parameters standards as explained under item no. (iv) mentioned above (Table 1). It clearly indicates that the all CETPs are not complying with the standards."
8. The Court Commissioner has also made observations on the status of River Bandi (Jodhpur by-pass) from a site located at NH-62 Jodhpur By-pass Bridge (upstream location of the river in Pali town) where ditches/pools in the river bed were seen.
9. Channelization work was going on to separate out effluent of industrial wastewater with natural river flow. From the By-pass Bridge, ponding of industrial treated effluents were observed in large area.
10. It has been found that effluent wastewater from CETP-6 is being discharged and getting stored in the pools (4 Nos.) of temporary arrangement of earthen walls (Dhora) construction on the bed of river Bandi itself. As this storage facility is spread in the area of about 107650 m2 without any lining, the possibilities of leakage and seepage of stored effluent from earthen pool into the river cannot be denied, in addition to its seepage into the groundwater. This is vulnerable to contamination of fresh water resources especially when it accumulates highly contaminated treated effluent as can be observed in sampling test results conducted by RSPCB on 11.11.2019.
11. Interestingly, the concentration of some of the parameters of the sample taken from the Cess Pool (located at back side of plot no. 18, PIA Pali) is of similar order of magnitude as was measured by the commissioner for a sample taken at the final outlet of CETP-6 (within the premise) on 21.11.2019 during his surprise visit. 30
12. The following concluding observations were made with respect to performance of the CETPs:
" None of the CETPs is meeting the standards. These plants are „non-complying‟ with respect to designed influent and effluent characteristics as described in section 6.0.
a. Not meeting the standards with respect to some parameters such as BOD, COD, Oil & Grease, Chloride etc. b. The consent granted to CETP-2 for Collection, Generation, Reception, Storage of Chemical Sludge (Cat-34.3) @ 10 TPD was valid up to 31/07/2019.
c. CETP-4 is presently operational without any formal CTO letter because consent to operate under Water Act, 1974 was issued vide letter dated 26.11.2015 and the same was valid up to 30.09.2018. Agency has applied for renewal of consent to operate vide online application dated 30.06.2018. Agency has applied for renewal of consent to operate vide online application dated 30.06.2018.
d. Plantation in the CETP premises was not found adequate.
e. Untreated wastewater discharged from RIICO drain has been contaminating Bandi river. RSPCB should ensure that no industrial and sewage effluent is discharged into the river (even treated) and instead, it should be utilized by the industries as directed by the Hon‟ble Tribunal vide its order dated 31.01.2019.
f. Six out of total eight parameters tested by the Commissioner during his surprise visit on 21.11.2019, have alarming values, much beyond the permissible one, in the effluent of CETP-6 at the outlet. Trade effluent after treatment by the CETPs do not meet the prescribed standards as was noticed during the surprise visit on 21st November 2019.
g. In fact, all the CETP units have been found as prolonged noncompliance of consent conditions. These plants are „non- complying‟ with respect to designed influent and effluent characteristics, and Operation and Maintenance issues, such as chemical‟s consumption, energy usage, handling, disposal and management of sludge, acoustic for D.G. sets etc. as described in Section 6.
h. The electromagnetic meter provision has been made after the equalization tank (in transfer line to flash mixer section), which is not appropriate location for capturing inflow of the plant. It has to be installed at the inlet point of conveyance influent system (before Conduit Termination Pit or receiving inlet sump).
i. The present tertiary treatment available at CETP-6 and provision of PSF & ACF at the plant is eyewash.
j. SCADA online monitoring system in any of the CETPs are non- functional.31
k. As per the earlier CTO issued dated 23.03.2015, CETP trust, Pali was asked to install Reverse Osmosis (R.O.) Plant of adequate capacity supported with scientific arrangement for disposal of RO rejects to achieve the status of ZLD within 10 months to ensure compliance of E.C. conditions and consent conditions, which was not fulfilled and the earlier time frame given for installing ZLD system was expired in January 2016. The deadline to achieve the status of ZLD has been extended in the revised CTO upto 31.08.2020.
l. As per consent granted to CETP-6; no waste water is to be disposed and it should be based on ZLD. However, it has been found that effluent wastewater from CETP-6 is being discharged and getting stored in a pool of temporary arrangement of earthen walls (Dhora) constructed on the bed of river Bandi itself. The accumulated effluent received from the outlet of CETP-6 at Cess Pool (Dhora) is highly contaminated and has noncompliant quality as discussed in Table 2. The temporary and non- engineered structure of such kind would be vulnerable to both groundwater contamination and river Bandi due to seepage of stored effluent.
m. The Programmable Logic Controller (PLC) based chemical dosing facilities have not been provided at any of the CETPs. During inspection related operations are being performed manually by unskilled labor in an unscientific manner. In the absence of any surveillance and automated system, usage of appropriate chemicals with optimum dose for treatment cannot be ascertained.
n. Neither run hour meters are provided nor are any log book is maintained for operation of influent/effluent handling pumps installed with different units of CETP.
o. Accumulated (Stored) sludge in the yard has become a cause of severe environmental degradation & water pollution in the vicinity.
p. General house keeping all around sludge storage area was very poor. Even the yard site and other area were becoming greenish due to spillage of sludge. The dried sludge was becoming air born with movement of vehicles.
q. Examination of past data revealed that disposal of sludge is almost equal to daily generation and, if a large quantity of hazardous sludge is stored in yard and lying in open lagoon over the years, it clearly indicates that sludge is not being disposed at same rate as it is being generated. Sludge generation from CETP-6 unit is about 700 MT/month. Examination of the past data revealed that disposal of sludge is almost equal to daily generation. However, about 6750 MT sludge has been found stored at common sludge yard of CETPs at time of inspection, which is a clear indication that generation and disposal data provided in the record is not authentic. The Management of CETPs does not has any action-plan for the lifting & disposal of the stored sludge in prescribed time frame under H & OW (M &TM) Rules, 2016.
r. There is no pressure gauge/flow monitoring device available 32 in PSF/ACF, which is essential in order to keep regular watch of working conditions of tertiary treatment units.
s. There is no proper layout of piping systems/signage at the plant, indicating details of inflows/outflows carrying out by the piping system. It is not clear whether some of these pipes are coming from a particular treatment unit (e.g. CETP-2, CETP4 etc.) or coming directly from the industrial areas."
The Tribunal directed the CETP to pay further compensation of Rs. 10 crores for the damage to the environment to the CPCB. The State PCB was directed to impose compensation of Rs. 10 lac each against the non-compliant units.
18. The matter was taken up by the Principal Bench of this Tribunal on 07.12.2020 and it was observed as follows:-
"13. In compliance of order dated 18.12.2019, an additional affidavit filed by the Additional Chief Secretary (ACS), Industries, on 31.01.2020, stating that interaction session was held with the local entrepreneurs and office bearers of the CETP foundation on 02.01.2020. A visit to the CETPs was undertaken on 03.01.2020. The deficiencies were found in CETPs 1,2, 3, 4 and 6. Further meetings were held on 10.01.2020, 13.01.2020 and 21.01.2020. The CETP operator was directed to prepare a time bound action plan to remedy the deficiencies pointed out by the Court Commissioner, appointed by this Tribunal vide order dated 18.10.2019. The affidavit mentions the proposal to remedy the deficiencies in functioning of the CETPs in terms of suggestions of the Court Commissioner. Further mention is made to the action plans submitted by the Municipal Council, Pali, the District Industries Centre, Pali and the RIICO Limited, Pali.
14. The State PCB has filed its affidavit on 31.01.2020 in respect of compliance status by the industrial units. According to the affidavit, out of 569 industries, there were deficiencies in 95 33 for which show cause notices were given. Out of the industries having ETPs, two were closed. Nine were found closed. Further report of compliance with regard to environmental compensation and inspection of the remaining units will be given later.
However, no further report has been filed even though 10 months have passed since filing of the above affidavit nor learned Counsel appearing for the PCB is aware of current factual position.
15. Affidavit filed by the Divisional Commissioner on 01.02.2020 purports to give the status of interaction with the concerned departments. The affidavit filed by the Collector on 01.02.2020 also mentions the dates of meetings held with the concerned departments.
16. The Respondent No. 5 (CETP Operator) has filed its affidavit on 14.02.2020 giving the action plan which was filed before the ACS, Industries. The synopsis of the work done mentions the disposal of sludge, SCADA online monitoring systems in the CETPs, SCADA for member units, electromagnetic flow meter, achievement of operational standards, appointment of technical advisor, implementation of ZLD at CETP unit 6, plantation in CETP. Status/Compliance report has also been filed with regard to the implementation of suggestions of the Court Commissioner dated 18.12.2019.
17. From the above resume of proceedings, it is patent that four independent fact-finding reports (dated 26.10.2016, 15.4.2018, 15.1.2019 and 27.11.2019) have shown continuous and rampant violation of industrial norms by the industries in discharging untreated effluents in water bodies or on land. This has resulted in contamination of water, damage to the soil and adverse impact on 34 environment and public health. There is no authentic and updated status of compliance available. The affidavit of the ACS Industries merely mentions proposal for remedial action.
Same is the position of the affidavit of the CETP operator. The PCB has still not taken action against the polluting industries as per directions in order dated 18.12.2019. Review applications of the CETP Operator and the Industries Association, being Review applications 3 and 6 of 2020 were dismissed on 19.2.2020. Still, compensation of Rs.10 crore has not been deposited as per order dated 18.12.2019. IA 89/2020 has been filed for modification of order dated 18.10.2019 by the Rajasthan Textile Hand Processing Association with regard to environment compensation of Rs. 10 lacs against the non- compliant units on the ground that the compensation is exorbitant. IA 95/2020 has been filed by the CETP operator for review of direction to deposit Rs. 10 crores as compensation with the CPCB in terms of order dated 18.12.2019 on the ground of financial difficulties. The applications are untenable in view of the said order having attained finality, after dismissal of review applications and will stand rejected. The order dated 18.12.2019 is based on expert verification reports about the deficiencies in the functioning of the CETPs and violation of environmental norms by discharge of untreated effluents in the water bodies and in the soil. The amount required to be deposited in terms of order dated 18.12.2019 be now deposited within one month, failing which the Tribunal will have no option except to take coercive measures under section 25 of the NGT Act read with section 51 CPC, which may include civil imprisonment of the office bearers of the management of the CETP. The CETP will be at liberty to recover 50% of the compensation to be paid from its members proportionate to the 35 load, if found viable. The recovery will be as per law, only from member units who exceeded the prescribed load. It is, however, made clear that the Tribunal is not concerned with the inter-se dispute of CETP and its members. CETP will, in any case, be liable to pay compensation, already determined irrespective of whether it recovers the amount from its members or not. The State PCB must comply with directions in the order dated 18.12.2019 against concerned polluting units failing which coercive measures will have to be taken against the Member Secretary and Chairman of the PCB. The Chief Secretary, Rajasthan may look into their failure so far as inaction being result of collusion is not ruled out, in absence of any explanation during today's hearing. For default in payment by the erring units in question, State PCB and the District Magistrate, Pali must ensure disconnection of the electricity and water supply of the erring units. The compliance report may be filed by the CPCB, State PCB and the District Magistrate, Pali before the next date.
Likewise, the Chief Secretary, Rajasthan must also comply with the direction in the order dated 18.12.2019 to deposit Rs. 20 crores with the CPCB within one month, failing which the Tribunal may have to take coercive measures. The State will be at liberty to recover the amount from the erring officers/units. The amount recovered is to be spent for restoration of the environment as per restoration plan to be prepared in terms of this order.
18. We are also of the view that though the problem of water pollution by the textile and other industries in the area has been in issue first before the High Court and then before this Tribunal, 36 for the last more than 15 years, the first order relied upon in the proceedings is the order of the High Court dated 9.3.2004 and non-compliance has continued, as already noted. There is thus need for stringent approach and continuous monitoring of directions already issued by this Tribunal at the ground level.
While the Tribunal has determined interim environmental compensation on ad hoc basis, the final compensation needs to be assessed as per laid down parameters.
19. Having regard to the factual position noted above, we direct constitution of a Monitoring Committee to be headed by Justice Prakash Chandra Tatia, (former Chief Justice of Jharkhand High Court), presently stationed at Jodhpur, who is also heading another Committee for monitoring compliance of pollution norms at Jodhpur, in terms of recent order of this Tribunal dated 23.11.2020 in OA 329/2015, Gram Panchayat ARABA vs. State of Rajasthan & Ors. The Committee will also have as its members a. Nominee of CPCB b. Nominee of State PCB c. District Magistrate, Pali d. Dr. Ajit Pratap Singh, Prof. BITS Pilani, District Jhunjhunu, Rajasthan
20. The State PCB will be the nodal agency for coordination and compliance. The District Magistrate may facilitate the functioning of the Committee by providing logistics and such other facilities as may be necessary. The Chairman of the Committee will be entitled to remuneration/honorarium to be determined in consultation with the Chief Secretary, Rajasthan.
It will be permissible to have consolidated remuneration for the task to be executed in O.A. No. 329/2015 (supra), in the present 37 matter as well as in O.A. No. 34(THC)/2014, Digvijay Singh vs. State of Rajasthan & Ors. wherein a separate order is being passed today. This will be payable out of the consent funds of the State PCB.
21. It will be open to the Committee to conduct proceedings by video conference, if so required. The Committee will be at liberty to associate any other independent Expert or Institution. The Committee may take stock of compliance of environmental norms with reference to status found in the earlier studies and the status which may be found on the ground now particularly with reference to orders dated 31.01.2019 and 18.12.2019 and other associated issues. The Committee may interact with all concerned stakeholders, including the villagers through their panchayats and give its recommendations for future course of action, including the final quantum of compensation to be recovered on "Polluter Pays" principles and plan for restoration.
The Committee may hold its first meeting within one month and, after taking stock of the situation, may update the action plan within one month thereafter which may propose to remedy the ground situation within six months. The Committee may give its first action taken report as on 31.03.2021 before the next date by e- mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF. While furnishing the report to this Tribunal, a copy thereof may be furnished to the Chief Secretary, the Additional Chief Secretary, Industries, Rajasthan and other stakeholders, who are required to take remedial steps.
22. Any party aggrieved by the report can put forward its submissions to this Tribunal before the next date. The concerned authorities will be at liberty to carry out the recommendations of 38 the Committee, if and to the extent there is no objection to such recommendations. It will no longer be necessary for the MoEF&CC and CGWA to appear in these proceedings till further orders.
List for further consideration on 20.04.2021.
A copy of this order be forwarded to Chief Secretary and Additional Secretary, Industries, Rajasthan, Justice Prakash Chandra Tatia, (former Chief Justice of Jharkhand High Court), now at Jodhpur, the CPCB, the State PCB, the District Magistrate, Pali and Dr. Ajit Pratap Singh, Prof. BITS Pilani, District Jhunjhunu, Rajasthan, MoEF&CC and CGWA by e- mail for compliance."
19. The registry has reported that the matter has been listed on 05.01.2022 before the Principal Bench for hearing.
20. Respondent no. 1 i.e. Rajasthan State Pollution Control Board has submitted the reply which is as follows :-
1. The appellant industries have concealed material facts from this Hon‟b1e Tribunal. It is pertinent to mention here that the issue pertaining to water pollution from the textile industries of Pali and Common Effluent Treatment Plant, Pali is already pending before the Principal Bench in Original Application No. 32/ 20 14 titled as Kishan Paryavaran Sangarsh Samiti Vs State of Rajasthan & Others.
2. The Principal Bench of this Hon‟ble Tribunal has passed order dated 18.12.2019 in OA No. 32/2014 which is reproduced herein below:-
"Para 13........(ii). The State Pollution Control Board shall inspect all the 559 industrial units by 31st January, 2020.
Chairman, State Pollution Control Board (SPCB) has submitted that the SPCB has 39 already inspected 38 units of which 22 units were found to be non-compliant and the environmental compensation of approximately Rs. 5 lakhs in total has been imposed on those units We direct that SPCB shall impose environmental compensation of Rs. 10 lakh each against all the units which are found to be non-
compliant of environmental standards....."
The internet downloaded copy of the Hon‟b1e Tribunal order dated 18.12.2019 is annexed.
3. In compliance of the directions passed by the Hon'ble Tribunal the waste water sampling of the appellant unit was conducted during inspection between 07.01.2020 to 10.01.2020, wherein the analysis result were not found within the permissible limits.
4. The Principal Bench at New Delhi passed further order dated 07.12.2020 in OA No. 32/2014 , which is reproduced herein below:-
"17. From the above resume of proceedings, it is patent that four independent fact - finding reports(dated 26.10.2016, 15.4.2018, 15.1.2019 and 27.11.2019) have shown continuous and rampant violation of industrial norms by the industries in discharging untreated effluents in water bodies or on land. This has resulted in contamination of water, damage to the soil and adverse impact on environment and public health. There is no authentic and updated status of compliance available. The affidavit of the ACS Industries merely mentions proposal for remedial action. Same is the position of the affidavit of the CETP operator. The PCB has still not taken action against the polluting industries as per directions in order dated 18.12.2019. Review applications of the CETP Operator and the Industries Association, being Review applications 3 and 6 of 2020 were dismissed on 19.2.2020. Still, compensation of Rs . 10 crore has not been deposited as per order dated 18.12.2019. IA 89/2020 has been filed for modification of order dated 18.10.2019 by the Rajasthan Textile Hand Processing Association with regard 40 to environment compensation of Rs. 10 lacs against the noncompliant units on the ground that the compensation is exorbitant. IA 95/2020 has been filed by the CETP operator for review of direction to deposit Rs. 10 crores as compensation with the CPCB in terms of order dated 18.12.2019 on the ground of financial difficulties. The applications are untenable in view of the said order having attained finality, after dismissal of re vie w applications and will stand rejected. The order dated 18.12.2019 is based on expert verification reports about the deficiencies in the functioning of the CETPs and violation of environmental norms by discharge of untreated effluents in the water bodies and in the soil. The amount required to be deposited in terms of order dated 18.12.2019 be now deposited within one month, failing which the Tribunal will have no option except t o take coercive measures under section 25 of the NGT Act read with section 51 CPC, which may include civil imprisonment of the office bearers of the management of the CETP. The CETP will be at liberty to recover 50% of the compensation to be paid from its members proportionate to the load, if found viable. The recovery will is, however, made clear that the Tribunal is not concerned with the inter-se dispute of CETP and its members. CETP will, in any case, be liable to pay compensation, already determined irrespective of whether it recovers the amount from its members or not. The State PCB must comply with directions in the order dated 18.12.2019 against concerned polluting units failing which coercive measures will have to be taken against the Member Secretary and Chairman of the PCB. The Chief Secretary, Rajasthan may look into their failure so far as inaction being result of collusion is not ruled out, in absence of any explanation during today's hearing. For default in payment by the erring units in question, State PCB and the District Magistrate, Pali must ensure disconnection of the electricity and water supply of the erring units. The compliance report may be filed by the CPCB, State PCB and the District Magistrate, Pali before the next date.41
Likewise , the Chief Secretary, Rajasthan
must also comply with the direction in the order
dated 18.12.2019 to deposit Rs. 20 crores with
the CPCB· within one month, failing which the
Tribunal may have to take coercive measures. The State will be at liberty to recover the amount from the erring officers/units."
The internet downloaded copy of the Hon'ble Tribunal order dated 07.12.2020 is annexed.
3. In compliance of the Hon'ble Tribunal order dated 07.12.2020 the waste water sampling of the appellant unit was again done during inspection dated 11.01.2021 to 18.01.2021,wherein some of the parameters were found exceeding the permissible limit.
4. On the basis of observations made after both the inspection and waste water analysis reports and in compliance of the Hon'ble Principal Bench orders dated 18.12.2019 and 07.12.2020, the answering, respondent imposed environment compensation of Rs. 10 Lakh."
21. It has further been submitted that the answering respondent has conducting the resampling the waste water in January, 2021 to ensure compliance of the Tribunal‟s order dated 07.12.2020 and as per the analysis report of the sample collected during the January, 2021 the appellant unit was again found non- complied and meeting the prescribed standard. It is further argued that the measurement by litmus paper and site indicates range value of pH approximate value which is also mentioned in the site inspection report. The test carried out by at Central Laboratory of the answering respondent is authentic and should be accepted in case of any discrepancy therefore the grounds taken by the appellants are not tenable. Respondent no. 1 has further argued that the environment compensation was imposed on the basis of analysis results of the samples collected during the inspection where the observed value was found violating the environmental parameter and the amount of compensation has been imposed in compliance of the direction issued by the Principal Bench of this Tribunal vide order dated 18.12.2019 passed in Original Application No. 42 32/2014. Respondent no. 2 has also filed the reply and argued that the respondent trust is only a proforma respondent in the present appeal and have not a contesting respondent. The role of the respondent trust is only limited to the extent to providing its member units, which includes the present appellants facilities for disposal of waste water sludge and treatment of their trade unit effluents. Further all the communications in the present case at hand, taken place between the appellant and the Rajasthan State Pollution Control Board to which the respondent trust was not privy to.
22. Respondent no. 2 has further argued the penalty in the present case at hand was imposed by the respondent no 1 Rajasthan State Pollution Control Board on the basis of inspection which was carried out by then and further on the basis of lab report which was given after testing the samples which were collected during the collection.
23. Learned counsel for the appellant has argued that the opportunity of hearing after taking the sample and show-cause notice was not issued or the appellant were not given the opportunity of hearing and relied on Bhagwan & Ors. Vs. Ram Chand & Ors. [1965] 3 SCR 218 which states as follows :-
"When a legislative enactment confers jurisdiction and power on any authority or body to deal with the rights of citizens, it often becomes necessary to enquire whether the said authority or body is required to act judicially or quasi-judicially in deciding questions entrusted to it by the statute. It sometimes also becomes necessary to consider whether such an authority or body is a tribunal or not. It is well-known that even administrative bodies or authorities which are authorised to deal with matters within their jurisdiction in an administrative manner, are required to reach their decisions fairly and objectively; but in reaching their decisions, they would be justified in taking into account considerations of policy. Even so, administrative bodies may, in acting fairly and objectively, follow 43 the principles of natural justice; but that does not make the administrative bodies tribunals and does not impose on them an obligation to follow the principles of natural justice. On the other hand, authorities or bodies which are given jurisdiction by statutory provisions to deal with the rights of citizens, may be required by the relevant statute to act judicially in dealing with matters entrusted to them. An obligation to act judicially may, in some cases, be inferred from the scheme of the relevant statute and its material provisions. In such a case, it is easy to hold that the authority or body must act in accordance with the principles of natural justice before exercising its jurisdiction and its powers; but it is not necessary that the obligation to follow the principles of natural justice must be expressly imposed on such an authority or body. If it appears that the authority or body had been given power to determine questions affecting the rights of citizens, the very nature of the power would inevitably impose the limitation that the power should be exercised in conformity with the principles of natural justice. Whether or not such an authority or body is a tribunal, would depend upon the nature of the power conferred on the authority or body, the nature of the rights of citizens, the decision of which falls within the jurisdiction of the said authority or body, and other relevant circumstances."
24. He has further relied on Laxmi Suiting and Ors. Vs. State of Rajasthan in OA No. 49/2014 :-
"40. Rule 34 of the Water Rules in contradistinction to Section 33A of the Water Act, is a procedural provision to aid the substantive law contained in Section 33A. While Section 33A grants power to a Board to give directions, inter alia, in relation to closure, prohibition, 44 regulation or the like, the said rule lays down the manner in which the said power is to be exercised.
41.A plain reading of the said rule makes it clear that its aim and object is, primarily, to bestow upon the "the person, officer or the authority to whom such direction is given" under Section 33A, the advantages of the principles of natural justice, which are also an essential concomitant under general jurisprudence as well as the law of equity, the absence of which would vitiate any proceeding, unless specifically excluded from their application.
42. While Rule 34(2) supra specifically lays down that the direction sought to be made must contain the nature of action and the time taken to carry out the same against the person, Rule 34(3) supra is custodian of the maxim audi alteram partem, a component of the principles of natural justice. This sub-rule gives to the person to whom such direction is sought to be issued, an opportunity of being heard, as well as that of filing objection, if any, which are to be considered by the Board under subrule 5 of Rule 34, within 45 days of the receipt of such objections. The same rule under sub-rule 6 of Rule 34 makes an exception to this rule of audi alteram partem, however, only when substantiated by reasons, for which this maxim could not be put in application.
43. While on the one hand, sub-rule (3) contemplates a direction of the Board directly to the person against whom the direction is sought to be issued, on the other, sub-rule (4) envisages issuance of a direction through an authority, to the said person. However, in both the cases, the substantive requirement of law to adhere to the principles of natural justice is specifically provided for, i.e. irrespective of the fact whether the 45 person is being issued a direction directly by the Board or through an authority, he shall be given time to file objections, as well as an opportunity of being heard, in consonance with the principles of natural justice, unless the case demands otherwise in which case, the Board shall be duty-bound to give reasons, in writing, for the same."
25. He has further placed the reliance on Board of High School Education & Intermediate Education, U.P., Allahabad v. Ghansyam Das Gupta & Ors. [1962] Supp 3 SCR 36:
"....Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively."
26. Natural Justice is a complex question. Natural justice is at least as old as the first man created on earth - the biblical „Adam‟. J.R. Lucas in his book „On Justice‟ states (at page 86):
46
"Hence, when we are judging deeds, and may find that a man did wrong, there is a requirement of logic that we should allow the putative agent to correct misinterpretations or disavow the intention imputed to him or otherwise disown the action. God needed to ask Adam „Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?‟ Because it was essential that Adam should not be blamed or punished unless he had done exactly that deed. If the serpent had planted the evidence, or if he had beguiled Adam into eating it under the misapprehension that it came from another, non- forbidden tree, then Adam had not sinned and should not have been expelled from Eden. Only if the accused admits the charge, or, faced with the accusation, cannot explain his behaviour convincingly in any other way, are we logically entitled to conclude that he did indeed do it."
27. In some of the early judgments of this Court, the non-observance of natural justice was said to be prejudice in itself to the person affected, and proof of prejudice, independent of proof of denial of natural justice, was held to be unnecessary. The only exception to this rule is where, on "admitted or indisputable" facts only one conclusion is possible, and under the law only one penalty is permissible. In such cases, a Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice, but because Courts do not issue writs which are "futile" - see S.L. Kapoor v. Jagmohan and Ors. (1980) 4 SCC 379 at paragraph 24. In P.D. Agrawal v. State Bank of India and Ors. (2006) 8 SCC 776, however, the Court observed that this statement of the law has undergone a "sea change", as follows:
"39.Decision of this Court in S.L. Kapoor v. Jagmohan[(1980) 4 SCC 379] whereupon MrRao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in State Bank of Patiala v. S.K.Sharma [(1996) 3 SCC 364] and Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audialterampartem, a clear 47 distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula."
28. Equally, the prejudice that is caused, apart from natural justice itself being denied, cannot be said to be present in a case in which there are admitted facts. Thus, in K.L. Tripathi v. State Bank of India and Ors. (1984) 1 SCC 43, the Court held:
"29. We are of the opinion that Mr.Garg is right that the rules of natural justice as we have set out hereinbefore implied an opportunity to the delinquent officer to give evidence in respect of the charges or to deny the charges against him. Secondly, he submitted that even if the rules had no statutory force and even if the party had bound himself by the contract, as he had accepted the Staff Rule, there cannot be any contract with a Statutory Corporation which is violative of the principles of natural justice in matters of domestic enquiry involving termination of service of an employee. We are in agreement with the basic submission of Mr.Garg in this respect, but we find that the relevant rules which we have set out hereinbefore have been complied with even if the rules are read that requirements of natural justice were implied in the said rules or even if such basic principles of natural justice were implied, there has been no violation of the principles of natural justice in respect of the order passed in this case. In respect of an order involving adverse or penal consequences against an officer or an employee of Statutory Corporations like the State Bank of India, there must be an investigation into the charges consistent with the requirements of the situation in accordance with the principles of natural justice as far as these were applicable to a particular situation. So whether a particular principle of natural justice has been violated or not has to be judged in the background of the nature of charges, the nature of the investigation conducted in the background of any statutory or relevant rules governing such enquiries. Here the infraction of the natural justice complained of was that he was not given an opportunity to rebut the materials gathered in his absence. As has been observed in On Justice by J.R. Lucas, the principles of natural justice basically, if we may say so, emanate from the actual phrase "audialterampartem" which was 48 first formulated by St. Augustine (De DuabusAnimabus, XIV, 22 J.P. Migne, PL. 42, 110).
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32. The basic concept is fair play in action administrative, judicial or quasi-judicial. The concept of fair play in action must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified, is, in dispute, right of cross-examination must inevitably form part of fair play in action but where there is no lis regarding the facts but certain explanation of the circumstances there is no requirement of cross-examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order, by absence of any formal opportunity of cross-examination per se does not invalidate or vitiate the decision arrived at fairly. This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement.
33. The party who does not want to controvert the veracity of the evidence from record or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross-examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases." (emphasis supplied)
29. Likewise, in State of U.P. v. NeerajAwasthi and Ors. (2006) 1 SCC 667, this Court held that where, on undisputed facts, a retrenchment would be valid in law, the principles of natural justice would not be attracted, unless there is some stigma or punitive measure which would be attached, which would then cause prejudice, as follows:
"47. If the employees are workmen within the purview of the U.P. Industrial Disputes Act, they are protected thereunder. Rules 42 and 43 of the U.P. Industrial Disputes Rules provide that before effecting any retrenchment in terms of the provisions of Section 6-N of the U.P. Industrial Disputes Act, the employees concerned would be entitled to a notice of one month or in lieu thereof pay for one month and 15 days' 49 wages for each completed year of service by way of compensation. If such a retrenchment is effected under the Industrial Disputes Act, the question of complying with the principles of natural justice would not arise. The principle of natural justice would be attracted only when the services of some persons are terminated by way of a punitive measure or thereby a stigma is attached.
48. In VivekaNandSethi v. Chairman, J&K Bank Ltd. [(2005) 5 SCC 337] it was held: (SCC p. 345, para 22) "22. The principle of natural justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be an empty formality. Even the principle of estoppel will apply. [See GurjeewanGarewal (Dr.) v. Dr. Sumitra Dash [(2004) 5 SCC 263].] The principles of natural justice are required to be complied with having regard to the fact situation obtaining therein. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case."
49. The High Court, therefore, must be held to have erred in law in holding that the principles of natural justice were required to be complied with."
30. In the five-Judge Bench decision in Managing Director, ECIL and Ors. v. B. Karnakumar and Ors. (1993) 4 SCC 727, this Court, after discussing the constitutional requirement of a report being furnished under Article 311(2), held thus:
"30. Hence the incidental questions raised above may be answered as follows:
xxxxxxxxx [v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the 50 principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.
31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisionalauthority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment." (emphasis supplied)
31. B. Karunakar (supra) was followed by the Court in Haryana Financial Corporation and Anr. v. Kailash Chandra Ahuja (2008) 9 SCC 31, as follows:
"21. From the ratio laid down in B. Karunakar [(1993) 4 SCC 727] it is explicitly clear that the doctrine of natural justice requires supply of a copy of the inquiry officer's report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear 51 that nonsupply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside." (emphasis in original)
32. What is important to note is that it is the Court or Tribunal which must determine whether or not prejudice has been caused, and not the authority on an ex parte appraisal of the facts. This has been well explained in a later judgment, namely Dharampal Satyapal Ltd. v. Dy. Comm. Of Central Excise, Gauhati and Ors. (2015) 8 SCC 519, in which, after setting out a number of judgments, the Court concluded:
"38. But that is not the end of the matter. While the law on the principle of audi alterampartem has progressed in the manner mentioned above, at the same time, the courts have also repeatedly remarked that the principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post- decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.52
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason--perhaps because the evidence against the individual is thought to be utterly compelling--it is felt that a fair hearing "would make no difference"--meaning that a hearing would not change the ultimate conclusion reached by the decisionmaker--then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578], who said that: (WLR p. 1595) "... A breach of procedure ... cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."
Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582] that: (WLR p. 593) "... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing." In such situations, fair procedures appear to serve no purpose since the "right" result can be secured without according such treatment to the individual.
40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non- grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.
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42. So far so good. However, an important question posed by MrSorabjee is as to whether it is open to the authority, which has to take a decision, to dispense with the requirement of the principles of natural justice on the ground that affording such an opportunity will not make any difference? To put it otherwise, can the administrative authority dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated? Answer has to be in the negative. It is not permissible for the authority to jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose. The opportunity of hearing will serve the purpose or not has to be considered at a later stage and such things cannot be presumed by the authority.
This was so held by the English Court way back in the year 1943 in General Medical Council v. Spackman [1943 AC 627]. This Court also spoke in the same language in Board of High School and Intermediate Education v. ChitraSrivastava [(1970) 1 SCC 121], as is apparent from the following words: (SCC p. 123, para 7) "7. The learned counsel for the appellant, Mr C.B. Agarwala, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show-cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show-cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show-cause notice before inflicting a penalty does not depend on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed."
43. In view of the aforesaid enunciation of law, MrSorabjee may also be right in his submission that it was not open for the authority to dispense with the requirement of principles of natural justice on the presumption that no prejudice is going to be caused to the appellant since the judgment in R.C. Tobacco [(2005) 7 SCC 725] had closed all the windows for the appellant.
44. At the same time, it cannot be denied that as far as courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any 54 prejudice is caused to the person against whom the action is taken. This was so clarified in ECIL itself in the following words: (SCC p. 758, para
31) "31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment."
45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco [(2005) 7 SCC 725]."
(emphasis supplied)
33. In State Bank of Patiala and Ors. v. S.K. Sharma (1996) 3 SCC 364, a Division Bench of the Court distinguished between "adequate opportunity" and "no opportunity at all", and held that the "prejudice" exception operates more especially in the latter case. This judgment also speaks of procedural and substantive provisions of law which embody the principles of natural justice 55 which, when infracted, must lead to prejudice being caused to the litigant in order to afford him relief, as follows:
"32. Now, coming back to the illustration given by us in the preceding para, would setting aside the punishment and the entire enquiry on the ground of aforesaid violation of sub-clause (iii) be in the interests of justice or would it be its negation? In our respectful opinion, it would be the latter. Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counterproductive exercise.
33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):
(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.
(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.
(3) In the case of violation of a procedural provision, the position is this:
procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be 56 made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
(4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
(b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar [(1993) 4 SCC 727].
The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
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(5) Where the enquiry is not governed by any rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice -- or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action -- the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audialterampartem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it „void‟ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audialterampartem). (b) But in the latter case, the effect of violation (of a facet of the rule of audialterampartem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.] (6) While applying the rule of audialterampartem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audialterampartem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."
34. In M.C. Mehta v. Union of India and Ors. (1999) 6 SCC 237, the expression "admitted and indisputable facts" laid down in Jagmohan (supra), as also the interesting divergence of legal opinion on whether it is necessary to show "slight proof" or "real likelihood" of prejudice, or the fact that it is an "open and shut case", were all discussed in great detail as follows: 58
"16. Courts are not infrequently faced with a dilemma between breach of the rules of natural justice and the Court's discretion to refuse relief even though the rules of natural justice have been breached, on the ground that no real prejudice is caused to the affected party.
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22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of "real substance" or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. [(1971) 1 WLR 1578] (per Lord Reid and Lord Wilberforce), Glynn v. Keele University [(1971) 1 WLR 487], Cinnamond v. British Airports Authority [(1980) 1 WLR 582] and other cases where such a view has been held. The latest addition to this view is R. v. Ealing Magistrates' court, ex p Fannaran [(1996) 8 Admn LR 351, 358] (Admn LR at p. 358) (see de Smith, Suppl. p. 89) (1998) where Straughton, L.J. held that there must be "demonstrable beyond doubt" that the result would have been different. Lord Woolf in Lloyd v. McMahon [(1987) 2 WLR 821, 862] (WLR at p. 862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant [1959 NZLR 1014] however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is "real likelihood -- not certainty -- of prejudice". On the other hand, Garner Administrative Law (8th Edn., 1996, pp. 271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. Baldwin [1964 AC 40], Megarry, J. in John v. Rees [(1969) 2 WLR 1294] stating that there are always "open and shut cases" and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner, J. has said that the "useless formality theory" is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that "convenience and justice are often not on speaking terms". More recently Lord Bingham has deprecated the "useless formality" theory n R. v. Chief Constable of the Thames Valley Police 59 Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article "Should Public Law Remedies be Discretionary?" 1991 PL, p. 64.) A detailed and emphatic criticism of the "useless formality theory" has been made much earlier in "Natural Justice, Substance or Shadow" by Prof. D.H. Clark of Canada (see 1975 PL, pp. 27-63) contending that Malloch [(1971) 1 WLR 1578] and Glynn [(1971) 1 WLR 487] were wrongly decided. Foulkes (Administrative Law, 8th Edn., 1996, p. 323), Craig (Administrative Law, 3rd Edn., p. 596) and others say that the court cannot prejudge what is to be decided by the decision-making authority de Smith (5th Edn., 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5th Edn., 1994, pp. 526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can prove a "real likelihood" of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their "discretion", refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364], Rajendra Singh v. State of M.P. [(1996) 5 SCC 460] that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.
23. We do not propose to express any opinion on the correctness or otherwise of the "useless formality" theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, "admitted and indisputable" facts show that grant of a writ will be in vain as pointed out by Chinnappa Reddy, J."
35. In Aligarh Muslim University and Ors. v. Mansoor Ali Khan (2000) 7 SCC 529, the aforesaid authorities were relied upon, and the answer given was that there is no 60 absolute rule, and prejudice must be shown depending on the facts of each case, as follows:
"24. The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi v. State Bank of India [(1984) 1 SCC 43] Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows: (SCC p. 58, para 31) "[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth."
Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma [(1996) 3 SCC 364]. In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh v. State of M.P. [(1996) 5 SCC 460]
25. The "useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
36. In Union of India and Ors. v. Alok Kumar (2010) 5 SCC 349, this Court, after eschewing a hyper-technical approach, held that prejudice must not merely be the apprehension of a litigant, but should be a definite inference of the likelihood of prejudice flowing from the refusal to follow natural justice, as follows:
"83. Earlier, in some of the cases, this Court had taken the view that breach of principles of natural justice was in itself a prejudice and no other "de facto" prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where 61 the rule is merely directory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of the non-mandatory rules or violation of natural justice as it is understood in its common parlance. Taking an instance, in a departmental enquiry where the department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some copies of formal documents had not been furnished to the delinquent. In that event the onus is upon the employee to show that non-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof.
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87. In ECIL v. B. Karunakar [(1993) 4 SCC 727] this Court noticed the existing law and said that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are neither incantations to be invoked nor rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or not on account of denial of report to him, has to be considered on the facts and circumstances of each case. The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons.
88. It will be useful to refer to the judgment of this Court in Haryana Financial Corpn. v. Kailash Chandra Ahuja [(2008) 9 SCC 31] at pp. 38-39 where the Court held as under: (SCC para 21) "21. From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a copy of the enquiry officer's report to the delinquent if such enquiry officer is other than the disciplinary authority. It is also clear that non-supply of report of the enquiry officer is in breach of natural justice. But it is equally clear that failure to supply a report of the enquiry officer to the delinquent employee would not ipso facto result in the proceedings being declared null and void and the order of punishment non est and ineffective. It is for the delinquent employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the court on that point, the order of punishment cannot automatically be set aside."
89. The well-established canons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice."
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37. Under the broad rubric of the Court not passing futile orders as the case is based on "admitted" facts, being admitted by reason of estoppel, acquiescence, non- challenge or non-denial, the following judgments of the Court are all illustrations of a breach of the audi alteram partem rule being established on the facts of the case, but with no prejudice caused to the person alleging breach of natural justice, as the case was one on admitted facts:
(i) Punjab and Sind Bank and Ors. v. Sakattar Singh (2001) 1 SCC 214 (see paragraphs 1, 4 and 5);
(ii) Karnataka SRTC and Anr.v. S.G. Kotturappa and Anr. (2005) 3 SCC 409 (see paragraph 24);
(iii) VivekaNandSethi v. Chairman, J&K Bank Ltd. and Ors. (2005) 5 SCC 337 (see paragraphs 21, 22 and 26);
(iv) Mohd. Sartaj and Anr.v. State of U.P. and Ors. (2006) 2 SCC 315 (see paragraph 18);
(v) Punjab National Bank and Ors. v. Manjeet Singh and Anr. (2006) 8 SCC 647 (see paragraphs 17 and 19);
(vi) Ashok Kumar Sonkar v. Union of India and Ors. (2007) 4 SCC 54 (see paragraphs 26 to 32);
(vii) State of Manipur and Ors. v. Y. Token Singh and Ors. (2007) 5 SCC 65 (see paragraphs 21 and 22); (viii) Secretary, A.P. Social Welfare Residential Educational Institutions v. Pindiga Sridhar and Ors. (2007) 13 SCC 352 (see paragraph 7)
(ix) PeethaniSuryanarayana and Anr.v. RepakaVenkataRamana Kishore and Ors. (2009) 11 SCC 308 (see paragraph 18);
(x) Municipal Committee, Hoshiapur v. Punjab State Electricity Board and Ors. (2010) 13 SCC 216 (see paragraphs 31 to 36, and paragraphs 44 and
45);
(xi) Union of India and Anr. v. Raghuwar Pal Singh (2018) 15 SCC 463 (see paragraph 20).
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38. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audialterampartem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused.
This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
(5) The "prejudice" exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice. 64
39. Nothing has been shown by the appellant that any prejudice has been caused by way of the conduct which has been enunciated in the application. The Principal of the Natural Justice are required to be complied with having regard to the fact, situation obtaining therein. It cannot be put in a Strait Jacket Formula and it cannot be applied in a vacuum without difference to the relevant facts and circumstances of the case. It is only the Tribunal finds that the explanation of the appellant or reporting would have made a difference to the result in the case that it should set aside the order in question.
40. While applying the rule of Principals of Natural Justices the Court/Tribunal/Authority must always bear in mind the ultimate and overwriting objective underlying the said rule, to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which would guide them in applying the rule of align situations that arise before them. It is not possible to lay down rigid rules as on when the Principles of Natural Justice are to be applied, nor as to their scope and extent. There must also have been some real prejudice to the complainant, there is no such thing as a merely technical infringement of natural justice. The requirement of natural justice must depend on the facts and circumstances of the case, the nature of the matter, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth.
41. In the present case, nothing has been shown by the appellant /applicant that there is a case of failure of exercise of discretion or excess or abuse of discretionary power vested in the respondents.
42. Learned counsel for the petitioner has submitted that the opportunity of hearing was not provided to the petitioner before passing the order impugned.
43. On the other hand, learned counsel appearing for the respondents had submitted that the opportunity of hearing was provided by the respondents and that the matter was dealt with and proceeded in accordance with the order passed by this Tribunal in the above referred matter.
44. It cannot be doubted that the principles of natural justice cannot be put into a strait-jacket formula and that its application will depend upon the fact situation obtaining therein. It cannot be applied in a vacuum without reference to the 65 relevant facts and circumstances of the case. This is what has been held by the Supreme Court in K.L. Tripathi Vs. State Bank of India &Ors., AIR 1984 SC 273; N.K. Prasada Vs. Government of India &Ors., (2004) 6 SCC 299; State of Punjab Vs. Jagir Singh, (2004) 8 SCC 129; Karnataka SRTC &Anr. Vs. S.G. Kotturappa&Anr., (2005) 3 SCC 409; and in VivekaNandSethi Vs. Chairman, J&K Bank Ltd., (2005) 5 SCC 337.
45. In Chairman, Board of Mining Examination and Chief Inspector of Mines &Anr. Vs. Ramjee, AIR 1977 SC 965 the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference of the administrative realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as a mere artefact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.
46. In Union of India Vs. Tulsiram Patel, AIR 1985 SC 1416 the Hon‟ble Supreme Court held:-
"Though the two rules of natural justice, namely, nemojudex in causasua and audialterampartem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal straitjacket. They are not immutable but flexible."
47. It is equally well settled that the principles of natural justice must not be stretched too far and in this connection reference may be made to the decisions of the Supreme Court in SohanLal Gupta &Ors. Vs. Asha Devi Gupta &Ors., (2003) 7 66 SCC 492; Mardia Chemicals Ltd. Vs. Union of India, AIR 2004 SC 2371 and Canara Bank Vs. Debasis Das, AIR 2003 SC 2041.
48. In HiraNath Mishra &Ors. Vs. The Principal, Rajendra Medical College, Ranchi &Anr. AIR 1973 SC 1260, the Hon‟ble Supreme Court held that principles of natural justice are not inflexible and may differ in different circumstances. Rules of natural justice cannot remain the same applying to all conditions.
49. The Constitution Bench of the Supreme Court in Managing Director ECIL, Hyderabad Vs. B. Karunakar, AIR 1994 SC 1074 made reference to its earlier decisions and observed:-
"In A.K. Kraipak&Ors. Vs. Union of India &Ors., AIR 1970 SC 150, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why, they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasijudicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice." (Emphasis added)".
50. The Hon‟ble Supreme Court in Bihar School Examination Board Vs. Subhas Chandra Sinha&Ors., AIR 1970 SC 1269 while considering the cancellation of the entire examination because of use of mass copy considered the scope of the principles of natural justice in such a matter and observed:-
"It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the 67 matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go........."
51. After referring to the aforesaid decision, the Supreme Court in Chairman J&K State Board of Education Vs. Feyaz Ahmed Malik, AIR 2000 SC 1039, emphasised that the Board is entrusted with the duty of proper conduct of examinations.
52. In BiswaRanjanSahoo&Ors., Vs. Sushanta Kumar Dinda&Ors., AIR 1996 SC 2552, the Hon‟ble Supreme Court had the occasion to examine whether principles of natural justice were required to be followed in a matter where because of large scale malpractice in the selection process, the selection was cancelled and in this context it was observed:-
"Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment."
53. In Union of India &Ors. Vs. O. Chakradhar, AIR 2002 SC 1119, the Hon‟ble Supreme Court considered the question whether it was necessary to issue individual show cause notices to each selected person when the entire selection was cancelled because of widespread and all pervasive irregularities affecting the result of selection and it was observed:-
"The illegality and irregularity are so intermixed with the whole process of the selection that it becomes impossible to sort out right from the wrong or vice versa. The result of such a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered it wholly unacceptable."
54. In the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. &Ors., AIR 1994 SC 853, the Hon‟ble Supreme Court refused to interfere on the ground of breach of principles of natural justice by observing that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. 68
55. It is further to be noted that the Court is to proceed as to whether non-
observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. Even, if in a given case, like the fact of the present case there may be some deviation but it has not resulted in grave injustice or has not prejudiced the cause of the petitioner because the decision taken by the respondent was based on the scientific report. This Court does not function as a Court of appeal on the finding of scientific report submitted by the experts. On examining the facts and circumstances of the present case, it cannot be held that the process adopted or decision made by the respondents is in anyway arbitrary or irrational or in any way in violation of the principles of natural justice. The conclusion is that the petition is devoid of merit and deserves to be dismissed.
56. Learned counsel for the respondent has argued that the matter is still pending before the Principal Bench of this Tribunal and this appeal has been preferred to invalidate the order passed by the Principal Bench of this Tribunal which is not maintainable as per rules.
57. The perusal of facts of the case reveals three situations which are as follows :-
1. The action taken by the respondent i.e. RSPCB in compliance of the order passed by the Principal Bench of this Tribunal in O.A. No. 32/2014, whereby, environmental compensation has been imposed.
2. In the circumstances for violation of the environmental norms and continuance of discharge of untreated water into the water bodies or the open land or violation of norms after date of the order till the continuance of the violation of environmental norms, and
3. The fresh sample which was taken by the respondent for the analysis and after the submission of the report of the analysis, where in case it was found that the analysis shows that the discharge of water is of the quality as laid down by the CPCB.69
58. We are of the view that in situation 1 and 2 the appellant should have preferred an application before the appropriate forum. Since, the matter is pending before the Principal Bench of this Tribunal in O.A. No. 32/2014 and the respondent had acted in compliance of the order or in execution of the order thus in a situation of 1 & 2, this appeal is not maintainable. In situation 3, where State Pollution Control Board has initiated the process of fresh sampling and analysis that can be taken in accordance with law and the State Pollution Control Board has to provide an opportunity of hearing to the respondent in case if it was found in violation of parameter laid down by the CPCB. The perusal of record reveals that fresh sample which has been taken by the RSPCB is still under consideration and that is not under challenge because the action has not been taken on the basis of fresh report.
59. This appeal has been filed against the action which has been initiated, at point no.
1 & 2 thus, on these grounds the appeal is not maintainable and deserved to be dismissed. The Appellants are at liberty to move before appropriate authority for redressal of their grievances according to law in appropriate forum. All the Appeals with I.As are thus dismissed. A copy of the order shall be kept in the relevant records. All Appeals are decided accordingly.
Sheo Kumar Singh, JM Arun Kumar Verma, EM 21st December, 2021 Appeal No. 06/2021 to 19/2021(CZ) PN 70