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Madhya Pradesh High Court

Shankarlal Mushre vs The State Of Madhya Pradesh on 13 June, 2016

                             WP-5963-2011
             (SHANKARLAL MUSHRE Vs THE STATE OF MADHYA PRADESH)


13-06-2016

Shri Devesh Khatri, counsel for the petitioner.
Shri Pushpendra Yadav, GA for the respondent/State.
With the consent finally heard.
Order passed and annexed on a separate sheet.


                              ORDER

(Passed on 13.06.2016.) Per : Sujoy Paul J.

The challenge in this petition filed under Article 226 of the Constitution is made to the order dated 17.3.2011 whereby petitioners promotion order dated 22.12.2006 was cancelled by the respondents.

2. The admitted facts between the parties are that petitioners were working as helper with the respondent/department. They were promoted by order dated 22.02.2006 to the post of driver. The said order of promotion was cancelled unilaterally by order dated 17.3.2011. Petitioners were not given any opportunity of hearing before cancelling their promotion order.

3. Shri Khatri contends that the said order is bad in law because petitioners continued for about 05 years which shows that the posts were very much available. During pendency of this case also, pursuant to the interim order, petitioners are working as drivers. The impugned order is against the principle of natural justice.

4. Shri Pushpendra Yadav, GA relied on various paragraphs of the return and on GAD circular (Annexure P/1) . It is urged that the GAD has taken a decision on 07.1.2013 to establish all the permanent and temporary posts of driver w.e.f 1.4.2003. It is submitted that after said date, no post of driver was available and, therefore, question of petitioners promotion did not arise.

5. I have heard the parties at length and perused the circular dated 7.1.2003. However, para-3 of the said circular shows that whenever posts of driver is required, a resolution is required to be sent by giving necessary information to the GAD. Thus, it is clear that the scope for promotion on the posts of driver was kept open.

6. The impugned order entails civil consequences. This adverse order is passed without affording opportunity of hearing as per principle of natural justice. The necessity to observe the principles of natural justice is repeatedly emphasized by the Supreme Court. The Apex Court in (1990) 2 SCC 746 (Neelima Misra Vs. Harinder Kaur Paintala and others) has held that any order which entails civil consequences should be passed only after following the principles of natural justice. The following quotes will establish the importance of following the principles of natural justice:-

2. “Principles of natural justice are to some minds burdensome but this price - a small price indeed-has to be paid if we desire a society governed by the rule of law.” “........even God himself did not pass [a] sentence upon Adam before he was called upon to make his defence. Adam (says God), where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?....” In Lloyd v. McMahon17 (AC pp.702 H-703 B), it was held as under:-

“My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.” The Apex Court in Radhy Shyam v. State of U.P., reported in (2011) 5 SCC 55, held as under:- “45. The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three- Judges Bench in Sayeedur Rehman v. State of Bihar ((1973) 3 SCC 333) in the following words: “ 11...... This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.”

46. In Mohinder Singh Gill v. Chief Election Commr.

((1978) 1 SCC 405), Krishna Iyer, J. speaking for himself, Beg, C.J. And Bhagwati, J. highlighted the importance of the rule of hearing in the following words:

“43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy Government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adamand of Kautilyas Arthashastrathe rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.

3. 47. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.”

7. The impugned order is admittedly passed without following the principles of natural justice. Thus, the said order dated 17.3.2011 is set aside. The respondents are given liberty to follow the principle of natural justice if they intend to cancel the promotion of the petitioners.

8. With the said liberty, this petition is disposed of.

(SUJOY PAUL) JUDGE