Madhya Pradesh High Court
Bhaiyalal Yadav vs The State Of Madhya Pradesh on 16 January, 2017
WP-17678-2015
(SMT. LALITA DEVI TRIPATHI Vs THE STATE OF MADHYA PRADESH)
16-01-2017
W.P. No.17678/2015
Smt Lalita Devi Tripathi
Vs.
The State of M.P and others
With
W.P. No.17687/2015
Dharampal Yadav
Vs.
The State of M.P and others
With
W.P. No.17689/2015
Ugrasen Namdeo
Vs.
The State of M.P and others
With
W.P. No.17786/2015
Brijkishore Prajapati
Vs.
The State of M.P and others
With
W.P. No.17840/2015
Narendra Singh Sengar
Vs.
The State of M.P and others
With
W.P. No.17910/2015
Ku. Pooja Bhalia
Vs.
The State of M.P and others
With
W.P. No.18122/2015
Ravi Kumar Tiwari
Vs.
The State of M.P and others
With
W.P. No.18156/2015
Bhagwandeen Basore
Vs.
The State of M.P and others
With
W.P. No.18344/2015
Alok Singh
Vs.
The State of M.P and others
With
W.P. No.18390/2015
Umesh Kumar Mishra
Vs.
The State of M.P and others
With
W.P. No.18392/2015
Pradeep Kumar Jaishwal
Vs.
The State of M.P and others
With
W.P. No.18534/2015
Hari Pratap Singh
Vs.
The State of M.P and others
With
W.P. No.18535/2015
Rakesh Kumar Mishra
Vs.
The State of M.P and others
With
W.P. No.18777/2015
Ram Kumar Rajak
Vs.
The State of M.P and others
With
W.P. No.18787/2015
Mohanlal Goutam
Vs.
The State of M.P and others
With
W.P. No.18907/2015
Dayaram Yadav
Vs.
The State of M.P and others
With
W.P. No.19015/2015
Ajay Choudhary
Vs.
The State of M.P and others
With
W.P. No.19019/2015
Pushpendra Kumar Sen
Vs.
The State of M.P and others
With
W.P. No.19053/2015
Smt Sangeeta Pandey
Vs.
The State of M.P and others
With
W.P. No.19191/2015
Ku. Roopa Patel
Vs.
The State of M.P and others
With
W.P. No.19232/2015
Pradeep Kumar Saket
Vs.
The State of M.P and others
With
W.P. No.19499/2015
Sandeep Kumar Mishra
Vs.
The State of M.P and others
With
W.P. No.19670/2015
Shrikant Dwivedi
Vs.
The State of M.P and others
With
W.P. No.19677/2015
Smt Ramdulari
Vs.
The State of M.P and others
With
W.P. No.19827/2015
Neeraj Singh Chouhan
Vs.
The State of M.P and others
With
W.P. No.19896/2015
Gaurav Dubey
Vs.
The State of M.P and others
With
W.P. No.20772/2015
Gokul Prasad Yadav
Vs.
The State of M.P and others
With
W.P. No.906/2016
Ravendra Kumar Baiga
Vs.
The State of M.P and others
With
W.P. No.1447/2016
Smt Meena Kewat
Vs.
The State of M.P and others
With
W.P. No.1506/2016
Bhaiyalal Yadav
Vs.
The State of M.P and others
With
W.P. No.4623/2016
Vrijbhan Prajapati
Vs.
The State of M.P and others
With
W.P. No.14372/2016
Pool Kumar Yadav
Vs.
The State of M.P and others
For Petitioners : Shri Jai Shukla, Shri Ajay Pal Singh,
Shri Mahendra Pateriya, Shri Ashok Kumar Jain, Shri
D.K.Tripathi, Shri Prashant Singh, Shri V.D.S.Chauhan,
Shri Surendra Kumar Mishra, Shri Pushpendra Kumar
Verma, Shri Sanjay Kumar Singh, Shri Rajendra Prasad
Gupta, Shri Yadvendra Dwivedi, Shri Satya Prakash Mishra
and Shri Bhanu Pratap Yadav counsel for the petitioners in
respective writ petitions.
For Respondents : Shri Pushpendra Yadav, GA.
ORDER
(Delivered on 16.01.2017) Per : Sujoy Paul J.
These batch of petitions were analogously heard on the joint request of learned counsel for the parties. The facts are taken from W.P.No.17678/2015. Learned counsel for the parties contended that in all connected matters, similar question of facts and law are involved.
2. The challenge in these petitions is made to the order dated 5.10.2015 whereby the appointment order of the petitioner was cancelled. The petitioner was appointed by order dated 19.8.2013 (Annexure P/4). Thereafter, a show- cause notice dated 16.6.2015 (Annexure P/7) was issued. The petitioner filed her reply. Thereafter by impugned order, petitioner's appointment order dated 19.8.2013 was cancelled.
3. Criticizing the said order, learned counsel for the petitioners contended that the earlier order dated 19.8.13 was issued in accordance with law. There was no misrepresentation of fact by the petitioners. In the show-cause notice Annexure P/7, no reasons are assigned as to why the said order was found to be illegal or unjustifiable. The show-cause notice cannot be said to be in consonance with the principles of natural justice. It is submitted that the impugned order is passed without assigning any reason about reply of petitioners and, therefore, the said order is bad in law.
4. Prayer is opposed by Shri Pushpendra Yadav, GA for the respondents/State. He submits that there is no flaw in the decision making process adopted by the respondents. The petitioners were put to notice and their reply were obtained. This shows that principles of natural justice were followed by the respondents. Since there were serious irregularities in appointing/ regularizing the petitioners, the petitioners appointment orders were rightly cancelled.
5. No other point is pressed by learned counsel for the parties.
6. I have heard learned counsel for the parties at length and perused the record.
7. Before dealing with the rival contentions, it is apposite to reproduce the averments of the show- cause notice dated 16.6.2015 (Annexure P/7). It reads as under :-
^^dkj.k crkvksa lwpuk i=A rRdkyhu izHkkjh lgk;d vk;qDr] Jh ,y-vkj- ehuk }kjk 'kklu fu;eksa ds foijhr vkidksa dysDVj nj ij dk;Z djusa gsrq vLFkkbZ vuqefr nh xbZ Fkh] bl voS/kkfud dk;Z djusa dh vuqefr nsusa ds vkns'k dks foHkkx }kjk fujLr djuas dk fopkj fd;k tk jgk gSA vr% bl dkj.k crkvksa lwpuk i= ds ek/;e ls vkidks voxr djk;k tkrk gS fd vki dkj.k crk;sa fd%& 1- D;k foKkiu tkjh fd;k x;k Fkk ;k fd jkstxkj dk;kZy; ls uke ek¡xs x, FksA 2- D;k dk;Z djusa dh vuqefr nsus ds iwoZ vkosnu i= lgk;d vk;qDr] dk;kZy; esa fn;k x;k Fkk fd ugha \ ;fn gkW rks vkosnu nsusa dk vk/kkj D;k Fkk \ 3- D;k vkidk dksbZ lk{kkRdkj ;k fyf[kr ijh{kk yh xbZ Fkh \ ;fn gkW rks mDr vfHkys[kksa dh izekf.kr Nk;kizfr Hkh toko ds lkFk tek djsa ,oa dk;Z djusa ckor~ tkjh vuqefr dh Nk;kizfr Hkh toko ds lkFk tek djsaA mijksDr dkj.k crkvksa lwpuk i= dk toko i= izkfIr ds ,d lIrkg ds Hkhrj dk;kZy; esa tek djsa] vU;Fkk ,d i{kh; dk;Zokgh dh tkosxhA lgk;d vk;qDr vkfnoklh fodkl lh/kh ¼e-iz-½^^
8. A plain reading of the show-cause notice shows that no allegations are mentioned against the petitioners. The entire burden was shifted on the shoulders of the petitioners to show correctness of process of issuance of appointment/ regularization order.
9. In the opinion of this court, the very purpose of issuance of show-cause notice is to ensure that the other side comes to know about the specific allegations levelled against her/ him. Thus, in the show-cause notice, the nature of irregularity/ illegality, must be disclosed with accuracy and precision. In the case of Canara Bank Vs. Debasis Das, (2003) 4 SCC 557, it was held as under:
â15.
â¦.........Notice is the first limb in this principle.
It must be
precise and
unambiguous. It
should apprise
the party
determinatively
of the case he
has to meet.
Time given for
the purpose
should be
adequate so as
to enable him to
make his
representation.
In the absence
of a notice of
this kind and
such reasonable
opportunity, the
order passed
becomes wholly
vitiated.........â (Emphasis supplied)
10. Similarly in the case of Rajesh Kumar Vs. CIT, (2007) 2 SCC 181, the Apex Court opined as under:
â55.
Justice, as is well known, is not only to be done but manifestly seem to be done. If the assessee is put to notice, he could show that the nature of accounts is not such which would require appointment of special auditors. He could further show that what the assessing officer considers to be complex is in fact not so. It was also open to him to show that the same would not be in the interest of the Revenue.
56. In this case itself the appellants were not made known as to what led the Deputy Commission er to form an opinion that all relevant factors including the ones mentioned in Section 142(2-A) of the Act are satisfied. If even one of them was not satisfied, no order could be passed. If the attention of the Commission er could be drawn to the fact that the underlined purpose for appointment for appointment of the special auditor is not bona fide he might not have approved the same.â (Emphasis supplied)
11. In the case of Gorkha Security Services Vs. Govt.
(NCT of
Delhi),
(2014) 9
SCC 105,
the Apex
Court laid
down the
law that ;
â21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show-
cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same............â (Emphasis supplied)
12. In view of aforesaid legal position, I find substance in the arguments of learned counsel for the petitioners that the show-cause notice issued by the respondents were not in consonance with the principles of natural justice. The entire burden to prove the validity of regularization order/ appointment order was shifted on the petitioners whereas if department was not satisfied or was of the opinion that such orders were suffering from any infirmity/ illegality, the department should have issued specific show-cause notice by mentioning the nature of irregularity/ illegality in the matter of issuance of appointment/ regularization order. The respondents have not undertaken the said exercise and, therefore, I have no scintilla of doubt that the said show-cause notice is against the principles of natural justice. In the impugned order dated 5.10.2015, the decision was taken on the basis of aforesaid cryptic show-cause notice. In the impugned order, no reasons are assigned as to why defence taken by the petitioners were not found to be trustworthy. The conclusion is drawn by holding that the reply received are not satisfactory. The reasons are held to be the heart beat of conclusions. In absence of reasons, conclusion cannot sustain judicial scrutiny. In M/s Kranti Associates Pvt. Ltd. and another vs. Masood Ahmed Khan and others-(2010) 9 SCC 497, the Supreme Court emphasized the need of assigning reasons in administrative, quasi judicial and judicial proceedings. The relevant portion reads as under:
51. Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts.
h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.
i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi- judicial authority is not candid enough about his/her decision making process then M/S Kranti Asso. Pvt. Ltd. & Anr vs Masood Ahmed Khan & Ors on 8 September, 2010 it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber- stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
13. If the impugned orders are tested on the anvil of principles of natural justice, it will be clear that neither the show-cause notice nor the final order cancelling the appointment/ regularization, are passed by following the principles of natural justice. Apart from this, impugned order of termination shows that it is based on various reasons which were not subject matter of show- cause notice. Hence, petitioners could not get any opportunity to putforth their defence in this regard. This is well settled that principles of natural justice are to be followed even in cases of illegal appointments. {See : Mahendra Kumar Chourasia Vs. State of M.P.-2002(3) MPLJ-112 and Arvind Kumar Vs. State of M.P.-2002(3) MPLJ-224.}
14. At the cost of repetition, in the opinion of this court, the show-cause notices are cryptic in nature and do not contain the reasons, on the strength of which, the respondents intended to cancel the appointment/ regularization order. The final order is also pregnant with the similar infirmity. Resultantly, the impugned orders of cancellation of appointment/ regularization in all these petitions are set aside. Liberty is reserved to the respondents to issue fresh show-cause notice and proceed against the petitioners in accordance with law by taking into account the observations made hereinabove. It is made clear that this court has not expressed any opinion on merits of the case.
15. All the aforesaid petitions are allowed. No cost.
(SUJOY PAUL) JUDGE MKL