Madhya Pradesh High Court
Pramod Kumar Barua vs The State Of Madhya Pradesh on 7 February, 2019
Equivalent citations: AIRONLINE 2019 MP 120
RP.1811.2018. 1
HIGH COURT OF MADHYA PRADESH : BENCH GWALIOR.
SB:HON'BLE SHRI JUSTICE ANAND PATHAK .J.
Review Petition No.1811 of 2018.
Pramod Kumar Barua
Vs.
State of M.P and Others.
Petitioner by Shri Sankalp Sharma, Advocate.
Respondents No.1 to 3/State by Shri Yogesh Chaturvedi learned
Govt.Advocate.
Respondent No.4 by Shri Vivek Khedkar Advocate.
Intervener by Shri Pawan Kumar Dwivedi Advocate.
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ORDER
(Delivered on 7th February, 2019).
1. Present review petition has been preferred at the instance of Writ Petitioner of W.P. No.697 of 2009 being crestfallen by the order dated 16.11.2018 passed by this court whereby, the petition preferred by the petitioner has been dismissed. It appears that the review petitioner took exception of the said order by way of filing Writ Appeal No.1662 of 2018 wherein, vide order dated 30.11.2018, the matter was dismissed as withdrawn with liberty to file review petition. Therefore, this review petition has been preferred.
2. At the outset, learned counsel for the petitioner prays for taking into consideration the grounds raised in the writ appeal also i.e. non compliance of Section 330 of Madhya Pradesh Municipalities Act, 1961 (herein after would be referred as "the Act of 1961") which according to the petitioner has not been adhered to by the respondents and thus, caused illegality.
3. It is the submission of counsel for the petitioner that Section 330 of the Act of 1961 contemplates Control of State Government in which proviso provides for opportunity of hearing if the legality or propriety of proceedings of any meeting or council or committee is called for examination or verified or reversed, then opportunity of hearing is to be given and according to him in the instant case, no such opportunity RP.1811.2018. 2 of hearing has been given. Therefore, whole proceedings have been vitiated on the anvil of non compliance of provisions contained in Section 330 of the Act of 1961.
4. Section 330 of the Act appears to be the ford maker for petitioner in the instant case. On this sole ground, petitioner takes exception to the impugned order passed by this court as well as the impugned order which was under challenge in the writ petition.
5. In support of his submission, learned counsel for the petitioner placed reliance on the judgment of the Apex Court in the case of Sirsi Municipality Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855, Basudeo Tiwary Vs. Sido Kanhu University and Ors., (1998) 8 SCC 194 and Prakash Ratan Sinha Vs. State of Bihar, (2009) 14 SCC 690 to submit that an inquiry ought to have been conducted as principles of natural justice are being violated in this case.
6. Learned counsel for the respondent/State opposed the prayer made by the petitioner and tried to match the vehemence with same vigor. It is submitted by learned counsel for the respondents that this court has already taken care of the position regarding opportunity of hearing, while relying upon the judgment rendered by the Apex Court in the case of Dharampal Satyapal Limited Vs. Dy. Commissioner of Central Excise, Gauhati and Others (2015) 8 SCC 519.
7. Besides that, learned counsel for the respondent/State referred Ashok Kumar Sonkar Vs. Union of India and Others (2007) 4 SCC 54 and submits that principles of natural justice may not be applicable in the given case unless prejudice is shown. The application of the said principles is not necessary where it would be a futile exercise. Here in the present case, according to him, grant of opportunity of hearing would have been a futile exercise because, the result would have been the same. Even otherwise, no material prejudice has been caused by impugned order dated 4.2.2009 (Annexure P/1) of the writ petition because, irregular appointment of the petitioner has been cancelled and he has been relegated back to his original post on which, he was RP.1811.2018. 3 appointed as daily wager. Such exercise does not require opportunity of hearing and even if any opportunity would have been afforded, result would have been the same.
8. Learned counsel for the respondent No.4 also opposed the prayer made by the petitioner and submits that no opportunity of hearing was required to be given to the petitioner. He was enjoying fruits of illegal appointment for many years and therefore, relegated to the exact position to which he belonged. He relied upon judgment of Coordinate Bench of this court in the case of Suresh Kumar Rawat Vs. Board of Secondary Education, M.P 2004 (3) MPLJ 18 to submit that equality is a positive concept and there is no concept like "negative equality". When petitioner's regularization was defective then no show cause notice is required to be given before reversion. Petitioner could not establish that his legal or fundamental rights have been infringed and therefore, impugned order has rightly taken care of the said aspect.
9. Learned counsel for the respondent/intervener also matched the vehemence and submits that Section 330 of the Act comes in Chapter XII of the Act of 1961 which deals in respect of Control and therefore, it is to be seen along with other provisions equally with the power of inspection and supervision and therefore, it appears that opportunity of hearing was not required in the case in hand. He relied upon the judgment of Apex Court in the case of Aligarh Muslim University and Others Vs. Mansoor Ali Khan (2000) 7 SCC 529 and submits that the opportunity of hearing would have been a useless formality, therefore, rightly taken note of by the impugned order. He further relied upon the judgment rendered by this court in Lakhansingh Kaurav Vs. Himmatsingh Kaurav and Others 2000 (3) MPLJ 92 and prays for dismissal of review petition.
10. Heard, learned counsel for the parties and perused the documents appended thereto.
11. Before, adverting to the controversy in hand, it is apposite to remind about the scope of review :
RP.1811.2018. 412. In the case of Kamlesh Verma Vs. Mayawati and Others, (2013) 8 SCC 320, principles relating to review jurisdiction have been laid down.
13. The principles relating to review jurisdiction may be summarized as follows:
"When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" have been interpreted in Chhajju Ram Vs. Neki, (1921-22) 49 IA 144 and approved by this Court in the case of Moran Mar Basselios Catholicos Vs. Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 to mean "a reason sufficient on grounds at least analogous to those specified in the rule".
When the review will not be maintainable:
"(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original
hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The meres possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be RP.1811.2018. 5 an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the review petition.
(ix) Reviews is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
14. It is also held by the Apex Court in the case of State Of West Bengal & Ors. Vs. Kamal Sengupta & Anr., (2008) 8 SCC 612 that mistake or error apparent on the face of the record means that mistake or error which is prima facie visible and does not require any detail examination. Erroneous view of law is not a ground for review and review cannot partake the category of the appeal.
15. On the touchstone of above settled position, present review petition shall be taken care of.
16. Here in the present case, petitioner has mainly relied upon non compliance of Section 330 of the Act whereby, allegedly no opportunity of hearing was provided to the petitioner before passing impugned order dated 4.2.2009 (Annexure P/1) of the writ petition.
17. For ready reference, Section 330 of the Act of 1961 is reproduced below :
"330. Control of State Government.-The State Government may, at any time, for the purpose of satisfying itself, as to the legality or propriety of any order passed by the Chief Municipal Officer or the President in exercise of the powers conferred by this Act, or as to the regularity of the proceedings of any meeting of the Council or any of its Committees held in pursuance of the provisions of this Act call for and examine the record of any case pending before or disposed of by the Chief Municipal Officer, the President the Council or such Committee and may pass such order in reference thereto as it thinks fit:
Provided that no order shall be varied or reserved unless notice has been given to the parties interested to appear and to be heard in support of such order".
18. It is to be noted that the said provision is in fact, comes under Chapter XII of the Act of 1961 and it is in respect of Supervision, Suspension of Execution of Orders and Review etc. In other words, Section 330 of the Act and other related provisions in Chapter XII RP.1811.2018. 6 basically deal with the powers provided by the Act to the State Government to exercise Control and Supervision over the functioning of the Municipal Councils. In that context, it has been referred in Section 330 that if State Government takes exception to the legality, propriety or regularity of any proceeding of any meeting of the council or committee, then opportunity of hearing is to be given to the parties interested. From the discussion made, it is nowhere established by the petitioner that Section 330 applies in respect of case in hand. The service conditions of the employees are taken care of by the M.P. State Municipal Service (Executive) Rules, 1973 which have been framed in exercise of powers given under Section 355 read with Section 86 of the Act of 1961. Therefore, impugned order comes under the scope of Section 330 of the Act is a doubtful proposition and cannot be countenanced for the purpose of taking stand about alleged violation of principles of natural justice.
19. Even otherwise, even if it is contended that Section 330 includes service conditions of the petitioner as alleged by counsel for the petitioner, even then, said aspect deserves rejection on two grounds, First, this aspect has never been raised by the petitioner in his writ petition in specific terms. Perusal of writ petition nowhere indicates the ground of violation of principles of natural justice in accordance with Section 330 of the Act of 1961.
20. Second, principles of natural justice carry two exceptions as established through common law; first i f upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. In addition to breach of natural justice, de facto breach needs to be proved. In absence of de facto breach, other than non issue of notice, had to be proved. (See : S. L. Kapoor vs Jagmohan & Ors (1980) 6 SCC 379 and K. L. Tripathi vs State Bank Of India And Others (1984) 1 SCC 43).
RP.1811.2018. 721. This court can usefully refer to the observations of Apex Court as made in Aligarh Muslim University (Supra) also, while relying upon earlier judgments in following manner :
"21. As pointed recently in M.C. Mehta Vs. Union of India (1999 (6) SCC 237), there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Gadde Venkateswara Rao vs. Government of Andhra Pradesh [1966 (2) SCR 172 = AIR 1966 SC 828], it is not necessary to quash the order merely because of violation of principles of natural justice.
22. In M.C.Mehta it was pointed out that at one time, it was held in Ridge vs. Baldwin ( 1964 AC 40) that breach of principles of natural justice was in itself treated as prejudice and that no other 'defacto' prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan ( 1980 (4) SCC 379), Chinnappa Reddy, J. followed Ridge vs. Baldwin and set aside the order of supercession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L.Kapoor's case, laid two exceptions (at p.395) namely, " if upon admitted or indisputable facts only one conclusion was possible", then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception.
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 Vs. State Bank of India ( 1984(1) SCC 43), Sabyasachi Mukherji, 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 Administrative Law, (5th Ed.PP.472-475) as follows: ( para
31) "....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ....There must 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 Vs. S.K. Sharma ( 1996(3) SCC 364). In that case, the principle of RP.1811.2018. 8 'prejudice' has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. 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 of 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.
26. It will be sufficient, for the purpose of the case of Mr. Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnappa Reddy, J. in S.C. Kapoor Vs. Jagmohan, namely, that on the admitted or indisputable facts - only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued".
22. The Court has already referred the judgment of Poonam Vs. State of U.P and Others (2016) 2 SCC 779 and Dharampal Satyapal Limited (Supra) in the writ order. Therefore, discussion regarding those cases shall be repetitive in nature, ergo left out.
23. Besides that, it is to be noted that the petitioner was erroneously granted benefit of the post de horing the rules/circular of the State Government and the person who does not hold the post legally, cannot claim violation of principles of natural justice, if any error subsequent to grant of illegal benefit is noticed by the authority and corrected accordingly. It is in fact correction of earlier mistake, which does not create any right in favour of the petitioner nor petitioner can claim it as a vested right. Therefore, on this ground also, case of the petitioner lacks merit and deserves dismissal.
24. Rest of the contentions were already discussed in the order passed by writ court. Any appointment contrary to rules deserves to be set-aside as held by the Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi and Others (2006) 4 SCC 1 and in other cases also repeated the said mandate.
RP.1811.2018. 925. Even otherwise, the judgment relied upon by the petitioner are of no avail because, they move in different factual realm. Those cases mainly discuss useless formality theory and it is true that the theory is an exception and cannot be applied in each and every case except in the conditions referred above as exception. The petitioner did not agitate for vested rights and claiming `negative equality'. Therefore, facts of those cases are distinguishable vis-a-vis present case.
26. In the considered opinion of this court, the review petition preferred by the petitioner lacks merit to recall the order dated 16.11.2018 passed by this court in W.P.No.697 of 2009.
27. Resultantly, this review petition stands dismissed.
R. K. SHARMA
2019.02.08 (Anand Pathak)
14:15:31
+05'30' Judge
Rks.