Madhya Pradesh High Court
Hari Mohan Sharma vs The State Of M.P. on 2 December, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:21737
1 W.P. No.3446/2011
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 2nd OF DECEMBER, 2024
WRIT PETITION No. 3446 of 2011
HARI MOHAN SHARMA AND OTHERS
Versus
THE STATE OF M.P. AND OTHERS
Appearance:
Shri Ashwini Johari, Advocate for petitioners.
Shri S.S. Kushwaha, Government Advocate for respondents/State.
ORDER
This petition, under Article 226 of the Constitution of India, has been filed seeking the following reliefs:-
(i) That, the order dt. 25-01-2011 (Annexure P/1) may kindly be set aside.
(ii) That, the order dt. 10-05-2011 (Annexure P/2) may kindly be set aside.
(iii) That, the respondents be directed to take back the petitioners in service with all consequential benefits.
(iv) That, the other relief doing justice including cost be awarded.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM
NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 2 W.P. No.3446/2011
2. It is the case of petitioners that under the M.P. Panchayat Samvida Shala Shikshak (Employment and Conditions of Contract) Rules, 2005 (for short "the Rules of 2005"), respondents conducted an elgibility test through VYAPAM for making appointments on the posts of Samvida Shala Shikshak Grade III. Petitioners appeared in the eligibility examination and they were declared qualified. Certain vacancies of Samvida Shala Shikshak Grade III were notified by respondent no.5 and candidates possessing eligibility certificate applied for their appointment. The applications of aspirants were scrutinized by respondent no.5 and merit list was prepared and appointment orders as per vacancies existing in Schools were to be issued. Some dispute arose amongst the members of Janpad Panchayat and, accordingly, selection process was deferred. Manoj Kumar Baghel and others filed W.P. No. 1828/2007 and on 27/09/2007 final order was passed but still respondents sat silent and, ultimately, contempt petition was filed. Thereafter, a notification for counselling was issued and those candidates who got information appeared and submitted their applications and, accordingly, petitioner nos. 1 to 4 were issued orders of appointment. Since petitioner no.5 did not get appointment order, therefore, he approached Collector, who after holding enquiry directed respondent no.5 to issue appointment order and, accordingly, petitioner no.5 was also issued order of appointment. It is the case of petitioners that in execution of appointment order, they have joined services and were discharging duties with full sincerity. A question with the help of a local politician was raised in Legislative Assembly with regard to the recruitment process. Respondent no.5 submitted his reply and claimed that no illegality was committed in the appointment of petitioners. Thereafter, respondent no.4 prepared a report dated 15/11/2010 at the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 3 W.P. No.3446/2011 instance of respondent nos. 2 and 3. No opportunity of hearing was given to petitioners. Report was prepared behind their back alleging certain illegalities in their appointments. On the basis of this ex parte enquiry, show-cause notices were issued by respondent no.5 thereby calling upon the petitioners to submit their response. Petitioners filed their response which has been filed as Annexure P/5. By the impugned order dated 25/1/2011, services of petitioners have been terminated.
3. Challenging the termination of their services, petitioners filed W.P. No. 699/2011. A co-ordinate Bench of this Court, by order dated 31/3/2011, directed the respondents to decide the matter afresh after giving opportunity of hearing to petitioners. Thereafter, petitioners filed their representations and by order dated 10/5/2011 representations made by petitioners against termination of their services have been rejected.
4. Challenging the order passed by Chief Executive Officer, Janpad Panchayat, Lahar, District Bhind, it is submitted by counsel for petitioners that due procedure was adopted by respondents and due information was given to all the eligible candidates, but if they decided not to appear for counselling, then petitioners cannot be made to suffer on account of absence of other eligible candidates.
5. Per contra, petition is vehemently opposed by counsel for respondents.
6. A preliminary objection was raised by counsel for State that order under challenge is an appealable order and without availing alternative remedy, petitioners have approached this Court directly. It is submitted that a question was raised in the Legislative Assembly of Madhya Pradesh Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 4 W.P. No.3446/2011 pertaining to appointment of Samvida Shala Shikshak Grade III. Accordingly, Commissioner, Public Instructions vide letter/notification dated 30/10/2010 and 8/10/2010 wrote a letter to the Chief Executive Officer, Jila Panchayat, Bhind with regard to the alleged irregularities committed in appointments of Samvida Shala Shikshak Grade III. Thereafter, in pursuance to the aforesaid letter, Chief Executive Officer, Jila Panchayat directed SDO Revenue, Lahar, District Bhind to conduct an enquiry. Enquiry Officer submitted his enquiry report on 15/11/2020. It was found that more meritorious candidates were not called for counselling. Therefore, it was held that petitioners have been appointed contrary to the Rules, as well as, by defeating and frustrating the rights of eligible candidates. Accordingly, show-cause notices were issued to petitioners which were duly replied by them. Since appointment of petitioners itself was contrary to law, therefore, in pursuance of clause 4 of the Rules of 2005, their services have been dispensed with. It is further submitted that a co-ordinate Bench of this Court, by order dated 15/3/2011, passed in W.P. No. 699/2011 has given specific finding that appointment of petitioners was dehors the Rules of 2005 and, thus, petitioners cannot be allowed to agitate again and again.
7. Heard, learned counsel for the parties.
8. A co-ordinate Bench of this Court, by order dated 15/3/2011 passed in W.P. No.699/2011 has observed as under:-
''15/03/2011.
Mr. S.K.Sharma, Advocate for the petitioners. Mr. Praveen Newaskar, Deputy Government Advocate for the respondents.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM
NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 5 W.P. No.3446/2011 There are five petitioners in this case. They were appointed by the respondents on different dates as contractual teachers Grade III on the basis of their having passed qualifying examination conducted by the Professional Examination Board for their eligibility for such appointment for the year 2005. Appointment of petitioners No.1, 2 and 3 was done on 22/9/2009, petitioner No.4 was appointed on 2/2/2010 and petitioner No.5 was appointed on 27/1/2010.
Appointment of the petitioners was questioned before the Assembly on an objection to their appointment taken by an MLA pointing out irregularities in their appointment. On such objection against their appointment taken in the Assembly, their appointment was held to be irregular after holding a preliminary enquiry into the matter in which it was found that due procedure for selection and appointment was not followed. Consequently, services of the petitioners as contractual teacher were dispensed with by the respondents vide the impugned order dated 25/1/2011. Aggrieved therefrom, petitioners have filed the present writ petition.
On the last date, the respondents were directed to produce the selection record pertaining to selection and appointment of the petitioners. Selection record has been produced before this Court and has been perused by me. On perusal of the selection record, it is revealed that petitioners No.1,2 and 5 belong to general category males, petitioner No.4 belongs to general category women and petitioner No.3 belongs to SC category. The merit of petitioner No.1 in the select list prepared by Janpad Panchayat, Lahar, District Bhind, pursuant to the examination conducted by the Professional Examination Board in 2005 was at Sr.No.370, of petitioner No.2 at Sr.No.1469, and of petitioner No.5 at Sr.No.1281. The merit of petitioner No.4 belonging to general category women was at Sr.No.267 in the merit list whereas the merit of petitioner No.3 belonging to SC category was at Sr.No.1049. Select list in respect of general category males candidates stopped at 175; in case of general category women candidates the merit list stopped at 148 and SC category list stopped at 53. A further perusal of Annexure P-8 at page 23 of the paper book which are answers to the querries to the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 6 W.P. No.3446/2011 objections raised in the Assembly reveals that individual notices of fifth counselling were not sent to the candidates in the merit list.
Mr.Praveen Newaskar, learned Deputy Government Advocate appearing on behalf of the respondents contends that the petitioners were appointed on the basis of complaint made by them to the Collector which was forwarded to the Chief Executive Officer and according to him their appointment was without following due procedure and sending individual notices to the eligible candidates for fifth counselling.
Mr.S.K.Sharma, learned counsel appearing on behalf of the petitioners contends that individual notices were not required to be sent to the eligible candidates and according to him whosoever was present at the fifth counselling got appointment as contractual teacher.
Prima facie I do not find any merit in the argument of the learned counsel appearing on behalf of the petitioners because it cannot be believed that only five persons who are the petitioners before this Court were present at the fifth counselling and were ordered to be appointed. Even if it is accepted that individual notices were not required to be sent to the concerned eligible candidates, still it cannot be believed that only five persons who are petitioners before this Court were present in the fifth counselling. However, before taking any final view in the matter, the respondents are directed to state on affidavit the procedure followed by them at the fifth counselling so that the matter can be effectively decided once for all. Requisite affidavit in this regard be filed by the respondents within a week's time.
List this petition on 29th March, 2011.''
9. Thus, it is clear that co-ordinate Bench of this Court had already given a specific finding that appointment of peitioners was not in accordance with law. In pursuance to the directions given in order dated 15/3/2011 passed in W.P. No. 699/2011, an affidavint was given by Chief Executive Officer, Janpad Panchayat, Lahar, District Bhind, which reads as under:-
Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PMNEUTRAL CITATION NO. 2024:MPHC-GWL:21737 7 W.P. No.3446/2011 ''AFFIDAVIT.
I,
Name : Shiv Prasad
S/o Shri : Kewal Singh
Age : 42 years,
Occupation : CEO Janpad Panchayat, Lahar, distt.
Bhind and appointed OIC in the matter, R/o : Lahar distt. Bhind abovenamed deponent do hereby solemnly affirm and state on oath as under :
1. That, I am appointed as OIC in the matter and well aware with the facts of the case. Presently, I am swearing this affidavit being filed in compliance of the order passed by this Hon. Court on 15.3.2011.
2. That, this Hon. Court vide order dated 15.3.2011 has directed to submit the affidavit which is as under:
(i). That, the 5th counseling for the appointment on the post of Samvida Shala Shikshak Verg 3 was issued on 10.7.2008 and in the aforesaid counseling, the date of counseling was mentioned as
10.7.2008 itself and that was published in the notice board and no individual notice was sent to any of the eligible candidate and since it was not published or circulated in the local daily newspaper therefore, meritorious candidates could not take part in the aforesaid counseling and thus, while issuing notice for 5th counseling, no candidate could be appointed.
(ii). It is pertinent to mention here that as per note sheet of the office of Janpad Panchayat, it reveals that on the basis of complaint made by the petitioners, the then Chief Executive Officer Janpad Panchayat Lahar referred the matter to the Collector distt. Bhind and it was also mentioned in the aforesaid note sheet by the then Chief Executive Officer Janpad Panchayat Lahar that as advised by the Collector Bhind himself, approval of the Collector is not necessary and therefore, appointment order can be issued and the aforesaid note sheet was written on 27.1.2010 by the then Chief Executive Officer Officer Janpad Panchayat Lahar and on the aforesaid date itself, the order of appointment of petitioner no.5 was issued.
iii). Apart from that, with regard to the appointment of other petitioner no.4, notesheet was written on 29.12.2009 and Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 8 W.P. No.3446/2011 appointment order itself was issued by the then Chief Executive Officer Janpad Panchayat Lahar.
(iv). The matter with regard to appointment of other petitioners is concerned, the orders were issued by the then Chief Executive Officer Officer Janpad Panchayat Lahar on 22.2.2010 without holding any counseling and directly, they have been appointed. Apart from that, no individual notice was issued to the petitioner and the same is not available on record. Thus, while submitting inquiry report, SDO has itself written in para 3 of the inquiry report that no procedure was followed with regard to the appointment of the petitioners
3. That, this affidavit is being submitted in compliance of the order of this Hon. Court, and the same may kindly be considered for the purpose of final disposal of this petition may be taken on record.
Sd/-
Deponent.
VERIFICATION.
I, above named deponent do hereby verify the contents of paras 1 to 3 of this affidavit to be true to the best of my personal knowledge and nothing material has been has been concealed therein.
Verified on the day of March, 2011 at Gwalior Sd/-
Deponent''
10. Thus, it is clear that no notice of fifth round of counselling was ever issued to the meritorious candidates. Notice was also not published or circulated in local daily newspaper and it was affixed on notice board only. Accordingly, it is clear that meritorious candidates could not take part in the aforesaid counselling. Even otherwise, Chief Executive Officer, Janpad Panchayat Lahar, by impugned order dated 10/5/2011 has also come to a conclusion that 1300 meritorious candidates were not included in the fifth round of counselling and, accordingly, appointment of petitioner no.2 Satya Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 9 W.P. No.3446/2011 Dev Sharma on the post of Samvida Shala Shikshak Grade III ws contrary to the Rules. So far as petitioner no.3 Rameshwar Dayal Dohare is concerned, it was held that 990 meritorious candidates were not informed, as a result they could not participate in the fifth round of counselling. Similarly petitioenr no.1 Harimohan Sharma was given appointment after ignoring the claim of 195 meritorious candidates as they could not participate in the fifth round of counselling on account of lack of information. Similarly, petitioner no.4 Smt.Sudha was given appointment after ignoring the claim of 119 meritorious candidates as they were not given any information. Similarly, petitioner no.5 Pankaj Mishra was granted appointment after ignoring the claim of 1006 meritorious candidates who could not participate in the fifth round of counselling on account of lack of information. Thus, it is clear that thousands of candidates who were meritorious than petitioners and were higher in merit list were not given an opportunity to participate in fifth round of counselling by not issuing a general notice and getting it published in newspaper. Affixing notice on the notice board, by itself, would not be sufficient to hold that general notice was given to all the candidates. It is not expected from each and every candidate to visit the Office of Janpad Panchat on each and every day to find out as to whether any fresh notice of fifth round of counselling has been affixed or not. The respondents could have either got the notice published in newspaper or could have given public notice in more effective manner, but that was not done. As a result, thousands of candidates who were more meritorious than petitioners were denied the right to participate in fifth round of counselling.
11. So far as violation of principles of natural justice is concerned, the same has undergone a drastic change. Mere violation of prinicples of natural Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 10 W.P. No.3446/2011 justice is not sufficient to quash the proceedings unless and until it is pointed out by petitioenrs that on account of non grant of opportunity, they have suffered prejudice.
12. The Supreme Court in case of Nirma Industries Limited and another Vs. Securities and Exchange Board of India reported in (2013) 8 SCC 20 has held as under:
"30. In B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] , having defined the meaning of "civil consequences", this Court reiterated the principle that the Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished to the employee. It is only if the Court or 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. In other words, the Court reiterated that the person challenging the order on the basis that it is causing civil consequences would have to prove the prejudice that has been caused by the non-grant of opportunity of hearing. ...........
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35. Mr Venugopal has further pointed out that apart from the appellants, even the merchant bankers did not make a request for a personal hearing. He submitted that grant of an opportunity for a personal hearing cannot be insisted upon in all circumstances. In support of this submission, he relied on the judgment of this Court in Union of India v. Jesus Sales Corpn. [(1996) 4 SCC 69] The submission cannot be brushed aside in view of the observations made by this Court in the aforesaid judgment, which are as under: (SCC pp. 74-75, para
5) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 11 W.P. No.3446/2011 "5. The High Court has primarily considered the question as to whether denying an opportunity to the appellant to be heard before his prayer to dispense with the deposit of the penalty is rejected, violates and contravenes the principles of natural justice. In that connection, several judgments of this Court have been referred to. It need not be pointed out that under different situations and conditions the requirement of compliance with the principle of natural justice vary.
The courts cannot insist that under all circumstances and under different statutory provisions personal hearings have to be afforded to the persons concerned. If this principle of affording personal hearing is extended whenever statutory authorities are vested with the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications are disposed of by the competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to be quasijudicial authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it cannot be held that before dismissing such appeals or applications in all events the quasi-judicial authorities must hear the appellants or the applicants, as the case may be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasijudicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 12 W.P. No.3446/2011 after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded."
13. The Supreme Court in case of Chairman, State Bank of India and another Vs. M.J. James reported in (2022) 2 SCC 301 has held as under:-
"31. In State of U.P. v. Sudhir Kumar Singh [State of U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 : 2020 SCC OnLine SC 847] referring to the aforesaid cases and several other decisions of this Court, the law was crystallised as under :
(SCC para 42) "42. An analysis of the aforesaid judgments thus reveals:
42.1. 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 audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
42.2. 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.
42.3. 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 13 W.P. No.3446/2011 therefore be said to have been caused to the person complaining of the breach of natural justice. 42.4. 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.
42.5. 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 nonobservance of natural justice."
14. The Supreme Court in case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and others reported in (2015) 8 SCC 519 has held as under:-
"20. Natural justice is an expression of English Common Law. Natural justice is not a single theory--it is a family of views. In one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called "naturalist" approach to the phrase "natural justice" and is related to "moral naturalism". Moral naturalism captures the essence of commonsense morality--that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in relation to justice as all these are attributes of natural justice. We are not addressing ourselves with this connotation of natural justice here.
21. In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision- making by judicial and quasi-judicial bodies, has assumed a different connotation. It is developed with this fundamental in Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 14 W.P. No.3446/2011 mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must give (sic an opportunity) to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as "natural justice". The principles of natural justice developed over a period of time and which is still in vogue and valid even today are: (i) rule against bias i.e. nemo debet esse judex in propria sua causa; and (ii) opportunity of being heard to the party concerned i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is the duty to give reasons in support of decision, namely, passing of a "reasoned order".
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38. But that is not the end of the matter. While the law on the principle of audi alteram partem 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 15 W.P. No.3446/2011 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.
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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 nongrant 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.
41. In ECIL [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 :
(1993) 25 ATC 704] , the majority opinion, penned down by Sawant, J., while summing up the discussion and answering the various questions posed, had to say as under qua the prejudice principle: (SCC pp. 756-58, para 30) "30. Hence the incidental questions raised above may be answered as follows:
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(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 nonfurnishing of the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 16 W.P. No.3446/2011 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 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."
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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 prejudice is caused to the person against whom the action is taken. This was so clarified in ECIL [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 17 W.P. No.3446/2011 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."
15. The Supreme Court in case of Canara Bank and others v. Debasis Das and others reported in (2003) 4 SCC 557 has held as under:-
"22. What is known as "useless formality theory" has received consideration of this Court in M.C. Mehta v. Union of India [(1999) 6 SCC 237] . It was observed as under: (SCC pp. 245-47, paras 22-23) "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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 18 W.P. No.3446/2011 Malloch v. Aberdeen Corpn. [(1971) 2 All ER 1278 :
(1971) 1 WLR 1578 (HL)] (per Lord Reid and Lord Wilberforce), Glynn v. Keele University [(1971) 2 All ER 89 : (1971) 1 WLR 487] , Cinnamond v. British Airports Authority [(1980) 2 All ER 368 : (1980) 1 WLR 582 (CA)] 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] (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) 1 All ER 1118 : 1987 AC 625 :
(1987) 2 WLR 821 (CA)] 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's 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 : (1963) 2 All ER 66 : (1963) 2 WLR 935 (HL)] , Megarry, J. in John v. Rees [(1969) 2 All ER 274 : 1970 Ch 345 : (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' in R. v. Chief Constable of the Thames Valley Police Forces, ex p Cotton [1990 IRLR 344] by giving six reasons. (See also his article 'Should Public Law Remedies be Discretionary?' Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 19 W.P. No.3446/2011 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) 2 All ER 1278 :
(1971) 1 WLR 1578 (HL)] and Glynn [(1971) 2 All ER 89 : (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 decisionmaking 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 :
1996 SCC (L&S) 717] , 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 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 20 W.P. No.3446/2011 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."
23. As was observed by this Court we need not go into "useless formality theory" in detail; in view of the fact that no prejudice has been shown. As is rightly pointed out by learned counsel for the appellants, unless failure of justice is occasioned or that it would not be in public interest to dismiss a petition on the fact situation of a case, this Court may refuse to exercise the said jurisdiction (see Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828] ). It is to be noted that legal formulations cannot be divorced from the fact situation of the case. Personal hearing was granted by the Appellate Authority, though not statutorily prescribed. In a given case post-decisional hearing can obliterate the procedural deficiency of a pre-decisional hearing. (See Charan Lal Sahu v. Union of India [(1990) 1 SCC 613 : AIR 1990 SC 1480] .)"
16. Furthermore, co-ordinate Bench of this Court, vide order dated 15/3/2011, passed in W.P. No. 699/2011 has already given a finding with regard to illegalities committed by the respondents in making appointments. Even the affidavit which was filed in compliance of aforesaid order, makes it clear that no public notice was issued. Furthermore, petitioners were given opportunity to make representation and in that representation they could not point out that any public information was given to all the meritorious candidates. It is not a case of termination of service. It is a case of cancellation of appointment on account of certain illegalities.
17. Under these circumstances, this Court is of the considered opinion that no illegality was committed by Chief Executive Officer, Janpad Panchayat, Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM NEUTRAL CITATION NO. 2024:MPHC-GWL:21737 21 W.P. No.3446/2011 Lahar, District Bhind by cancelling the appointment of petitioners by order dated 25/1/2011, as well as, rejecting their representations vide order dated 10/5/2011.
Accordingly, petition fails and is, hereby, dismissed.
(G.S.Ahluwalia) Judge (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 12/6/2024 5:39:00 PM