Madhya Pradesh High Court
Premchand vs The State Of Madhya Pradesh on 6 February, 2017
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Writ Petition Nos.5387/2016, 5388/2016
and 5389/2016
06/02/2017
Shri Mahendra Kumar Sharma, learned counsel for the
petitioner.
Shri Prasanna Bhatnagar, learned counsel for the
respondent / State.
Shri M. S. Dwivedi, learned counsel for the respondent
No.2.
Regard being had to the similitude in the controversy
involved in the present cases, the writ petitions were
analogously heard and by a common order, they are being
disposed of by this Court. Facts of Writ Petition No.5387/2016
are narrated hereunder.
The petitioner before this Court, who is a Daily Wager,
has filed present petition being aggrieved by order dated
24/07/2016 by which his services have been discontinued.
The undisputed facts of the case reveal that the petitioner
was appointed as a Lifeguard on 26/05/1994 and has served
with the respondent No.2 - Municipal Council, Neemuch for
almost 25 years. To the petitioner's misfortune, an accident took
place on 24/07/2016 between 03:00 to 04:00 PM and one boy
who was also swimming in pool did not came out of the pool
and unfortunately expired.
The petitioner's grievance is that without issuing any show
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cause notice and without hearing the petitioner, a stigmatic
termination order has been passed. Not only the petitioner, two
other Lifeguards have also been terminated.
The petitioner's contention is that he is a Daily Wager and
he does not enjoy the protection of service rules like other
employee however, in all fairness, a show cause notice should
have been issued before passing a stigmatic order and his
contention is that on account of the stigmatic order, he will not
get any job as Lifeguard in future anywhere.
A reply has filed by the respondent and the stand of the
respondent is that the petitioner alongwith two other person was
working as a Lifeguard and an unfortunate accident took place
resulting in death of a boy and in those circumstances, they
have discontinued the services of the petitioner.
The respondents have not disputed the fact that the
petitioner was working for last 25 years and there was no
complaint of any kind against the petitioner. However, learned
counsel for the respondent has argued before this Court that a
Daily Wager is not entitled for any relief as his services are not
protected by any Rules / statutory provisions.
Heard learned counsel for the parties and perused the
record.
The undisputed facts of the case are that the petitioner
was working for last 25 years and there is no complaint of any
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kindly against him. It is true that an unfortunate incident took
place on 24/07/2016 and in a mechanical manner, services of
the petitioner alongwith two other person have been terminated.
The most important question, which is required to be
looked into by this Court is whether the principles of natural
justice and fair play were required to be followed in the case of
petitioner or not.
This Court has carefully gone through the termination
order and the same reads as under:-
dk;kZy; uxjikfydk ifj"kn] uhep ftyk uhep ¼e- iz-½
dzekad&584@lk-iz-@jktLo@2016 uhep] fnukad 24-07-2016
vkns'k
fnukad 24-07-2016 dks fudk; LokfeRo ds rj.k iq"dj esa 15 o"khZ;
ckyd dh Mwcdj vkdfLed e`R;q gks xbZA fudk; }kjk rj.k iq"dj ij
rSjkd izf'k{kd] ykbZQ xkMZ ,oa vU; deZpkjh inLFk fd;s x;s gS A izFke
n`"V;k inLFk deZpkfj;ksa dh ykijokgh ds dkj.k nq?kZVuk ?kfVr gksuk
n`f"Vxr gksrk gS A
vr% rj.k iq"dj ij inLFk fuEukuqfdr deZpkfj;ksa dks rRdky
izHkko ls lsok ls i`Fkd fd;k tkrk gS%&
1- Jh Hkkjrflag Hkkj}kt ykbZQ xkMZ
2- Jh izsepan Xokyk ykbZQ xkMZ
3- Jh jktsUnz vghj ykbZQ xkMZ
vkns'k dk ikyu lqfuf'pr djsa A
eq[; uxjikfydk vf/kdkjh
uxjikfydk ifj"kn] uhep
i`-dzekad& 586@lk-iz-@jktLo@2016 uhep] fnukad 24-07-2016
izfrfyfi%&
1- dysDVj ftyk uhep
2- vuqfoHkkxh; vf/kdkjh jktLo uhep
3- v/;{k uxjikfydk ifj"kn uhep
dh vkSj lwpukFkZ A
4- lgk;d ;a=h tyiznk; uxjikfydk ifj"kn~ uhep
5- jktLo vf/kdkjh uxjikfydk ifj"kn~ uhep
6- dk;kZy; v/kh{kd uxjikfydk ifj"kn~ uhep
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7- LFkkiuk 'kk[kk uxjikfydk ifj"kn~ uhep
8- Jh jktsUnz vghj uxjikfydk ifj"kn~ uhep
dh vkSj lwpukFkZ ,oa ikyukFkZ A
eq[; uxjikfydk vf/kdkjh
uxjikfydk ifj"kn] uhep
The termination order reveals that on account of
carelessness of the petitioner, an accident has taken place,
meaning thereby, the order is certainly stigmatic in nature.
In the present case the respondents have passed the
impugned order of termination, without granting any opportunity
of hearing to the petitioner of whatsoever kind. In India there is
no statute which prescribes the minimum procedure which
administrative agencies or quasi judicial bodies must follow
while taking decisions which affect the rights of the individuals.
Nonetheless, they are bound by the principles of natural justice.
The principles of natural justice signify the basic minimum fair
procedure which must be followed while exercising decision
making powers. Natural justice forms the very backbone of a
civilized society.
The wheels regarding the application of principles of
natural justice to administrative and quasi-judicial proceedings
started turning from 1963 when the House of Lords in the
United Kingdom delivered the landmark and oft-quoted
judgment of Ridge v. Baldwin [1963] UKHL 2. An order for
dismissal of a Constable was quashed because he was not
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provided any opportunity to defend his actions. Presently, in our
country, the principles of natural justice are applicable in totality
to administrative and quasi-judicial proceedings. This is
consistent and in line with the rapidly increasing role, functions
and jurisdiction of such bodies in a welfare state like ours.
The below-mentioned passages by the Hon'ble Supreme
Court in the case of Uma Nath Pandey v. State of U.P.
reported in AIR 2009 SC 2375 exhaustively explain natural
justice and deserve to be quoted in full in the context of the
current dispute:
"6. Natural justice is another name for commonsense justice.
Rules of natural justice are not codified canons. But they are
principles ingrained into the conscience of man. Natural justice is
the administration of justice in a commonsense liberal way. Justice
is based substantially on natural ideals and human values. The
administration of justice is to be freed from the narrow and
restricted considerations which are usually associated with a
formulated law involving linguistic technicalities and grammatical
niceties. It is the substance of justice which has to determine its
form.
7. The expressions "natural justice" and "legal justice" do not
present a water-tight classification. It is the substance of justice
which is to be secured by both, and whenever legal justice fails to
achieve this solemn purpose, natural justice is called in aid of legal
justice. Natural justice relieves legal justice from unnecessary
technicality, grammatical pedantry or logical prevarication. It
supplies the omissions of a formulated law. As Lord Buckmaster
said, no form or procedure should ever be permitted to exclude
the presentation of a litigants' defence.
8. The adherence to principles of natural justice as recognized by
all civilized States is of supreme importance when a quasi-judicial
body embarks on determining disputes between the parties, or
any administrative action involving civil consequences is in issue.
These principles are well settled. The first and foremost principle
is what is commonly known as audi alteram partem rule. It says
that no one should be condemned unheard. Notice is the first limb
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of this principle. It must be precise and unambiguous. It should
appraise the party determinatively 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 the kind
and such reasonable opportunity, the order passed becomes
wholly vitiated. Thus, it is but essential that a party should be put
on notice of the case before any adverse order is passed against
him. This is one of the most important principles of natural justice.
It is after all an approved rule of fair play.....
10. Principles of natural justice are those rules which have been
laid down by the Courts as being the minimum protection of the
rights of the individual against the arbitrary procedure that may be
adopted by a judicial, quasi-judicial and administrative authority
while making an order affecting those rights. These rules are
intended to prevent such authority from doing injustice.
12. Lord Wright referred to the leading cases on the subject. The
most important of them is the Board of Education v. Rice (1911 AC
179:80 LJKB 796), where Lord Loreburn, L.C. observed as
follows:
"Comparatively recent statutes have extended, if they have
originated, the practice of imposing upon departments or offices of
State the duty of deciding or determining questions of various
kinds. It will, I suppose usually be of an administrative kind, but
sometimes, it will involve matter of law as well as matter of fact, or
even depend upon matter of law alone. In such cases, the Board
of Education will have to ascertain the law and also to ascertain
the facts. I need not and that in doing either they must act in good
faith and fairly listen to both sides for that is a duty lying upon
everyone who decides anything. But I do not think they are bound
to treat such a question as though it were a trial....The Board is in
the nature of the arbitral tribunal, and a Court of law has no
jurisdiction to hear appeals from the determination either upon law
or upon fact. But if the Court is satisfied either that the Board have
not acted judicially in the way I have described, or have not
determined the question which they are required by the Act to
determine, then there is a remedy by mandamus and certiorari".
13. Lord Wright also emphasized from the same decision the
observation of the Lord Chancellor that the Board can obtain
information in any way they think best, always giving a fair
opportunity to those who are parties to the controversy for
correcting or contradicting any relevant statement prejudicial to
their view". To the same effect are the observations of Earl of
Selbourne, LO in Spackman v. Plumstead District Board of Works
(1985 (10) AC 229:54 LJMC 81), where the learned and noble
Lord Chancellor observed as follows:
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"No doubt, in the absence of special provisions as to how the
person who is to decide is to proceed, law will imply no more than
that the substantial requirements of justice shall not be violated.
He is not a judge in the proper sense of the word; but he must
give the parties an opportunity of being heard before him and
stating their case and their view. He must give notice when he will
proceed with the matter and he must act honestly and impartially
and not under the dictation of some other person or persons to
whom the authority is not given by law. There must be no
malversation of any kind. There would be no decision within the
meaning of the statute if there were anything of that sort done
contrary to the essence of justice".
14. Lord Selbourne also added that the essence of justice
consisted in requiring that all parties should have an opportunity of
submitting to the person by whose decision they are to be bound,
such considerations as in their judgment ought to be brought
before him. All these cases lay down the very important rule of
natural justice contained in the oft-quoted phrase 'justice should
not only be done, but should be seen to be done'.
15. Concept of natural justice has undergone a great deal of
change in recent years. Rules of natural justice are not rules
embodied always expressly in a statute or in rules framed
thereunder. They may be implied from the nature of the duty to be
performed under a statute. What particular rule of natural justice
should be implied and what its context should be in a given case
must depend to a great extent on the fact and circumstances of
that case, the frame-work of the statute under which the enquiry is
held. The old distinction between a judicial act and an
administrative act has withered away. Even an administrative
order which involves civil consequences must be consistent with
the rules of natural justice. Expression 'civil consequences'
encompasses infraction of not merely property or personal rights
but of civil liberties, material deprivations, and non-pecuniary
damages. In its wide umbrella comes everything that affects a
citizen in his civil life.
16. Natural justice has been variously defined by different Judges.
A few instances will suffice. In Drew v. Drew and Lebura (1855(2)
Macg. 1.8, Lord Cranworth defined it as 'universal justice'. In
James Dunber Smith v. Her Majesty the Queen (1877-78(3)
App.Case 614, 623 JC) Sir Robort P. Collier, speaking for the
judicial committee of Privy council, used the phrase 'the
requirements of substantial justice', while in Arthur John Specman
v. Plumstead District Board of Works (1884-85(10) App.Case 229,
240), Earl of Selbourne, S.C. preferred the phrase 'the substantial
requirement of justice'. In Vionet v. Barrett (1885(55) LJRD 39,
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41), Lord Esher, MR defined natural justice as 'the natural sense
of what is right and wrong'. While, however, deciding Hookings v.
Smethwick Local Board of Health (1890 (24) QBD 712), Lord
Fasher, M.R. instead of using the definition given earlier by him in
Vionet's case (supra) chose to define natural justice as
'fundamental justice'. In Ridge v. Baldwin (1963(1) WB 569, 578),
Harman LJ, in the Court of Appeal countered natural justice with
'fair-play in action' a phrase favoured by Bhagawati, J. in Maneka
Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An
Infant) (1967 (2) B 617, 530), Lord Parker, CJ, preferred to
describe natural justice as 'a duty to act fairly'. In Fairmount
Investments Ltd. v. Secretary to State for Environment (1976 WLR
1255) Lord Russell of Willowan somewhat picturesquely described
natural justice as 'a fair crack of the whip' while Geoffrey Lane, LJ.
In Regina v. Secretary of State for Home Affairs Ex Parte
Hosenball (1977 (1) WLR 766) preferred the homely phrase
'common fairness'.
17. How then have the principles of natural justice been
interpreted in the Courts and within what limits are they to be
confined? Over the years by a process of judicial interpretation
two rules have been evolved as representing the principles of
natural justice in judicial process, including therein quasi-judicial
and administrative process. They constitute the basic elements of
a fair hearing, having their roots in the innate sense of man for
fair-play and justice which is not the preserve of any particular
race or country but is shared in common by all men. The first rule
is 'nemo judex in causa sua' or 'nemo debet esse judex in propria
causa sua' as stated in (1605) 12 Co.Rep.114 that is, 'no man
shall be a judge in his own cause'. Coke used the form 'aliquis non
debet esse judex in propria causa quia non potest esse judex at
pars' (Co.Litt. 1418), that is, 'no man ought to be a judge in his
own case, because he cannot act as Judge and at the same time
be a party'. The form 'nemo potest esse simul actor et judex', that
is, 'no one can be at once suitor and judge' is also at times used.
The second rule is 'audi alteram partem', that is, 'hear the other
side'. At times and particularly in continental countries, the form
'audietur at altera pars' is used, meaning very much the same
thing. A corollary has been deduced from the above two rules and
particularly the audi alteram partem rule, namely 'qui aliquid
statuerit parte inaudita alteram actquam licet dixerit, haud acquum
facerit' that is, 'he who shall decide anything without the other side
having been heard, although he may have said what is right, will
not have been what is right' (See Bosewell's case (1605) 6
Co.Rep. 48-b, 52-a) or in other words, as it is now expressed,
'justice should not only be done but should manifestly be seen to
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be done'.
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:
"Before we go into the final aspect of this contention, we would
like to state that case 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)2 All ER 1278,
HL) (per Lord Reid and Lord Wilberforce), Glynn v. Keele
University: (1971) 2 All ER 89; Cinnamond v. British Airports
Authority: (1980) 2 All ER 368, 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, 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. McMohan (1987
(1) All ER 1118, 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 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, HL), Megarry, J. in John v. Rees (1969 (2) All
ER 274) 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 term'. 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?' 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 (supra)
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and Glynn (supra) 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.526-530) 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.
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 the
case before us, 'admitted and indisputable' facts show that grant
of a writ will be in vain as pointed by Chinnappa Reddy, J.
Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice."
With regard to the disputed nature of the useless formality test as discussed in the M. C. Mehta case (see supra), it is important to note that in the instant petition, the petitioner was terminated by a mechanical order. In such circumstances, this
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Court is of the view that following audi alteram partem will most definitely not be a useless formality.
The principles of natural justice are firmly grounded in Article 14 and Article 21 of the Constitution of India. Article 14 of the Constitution guarantees equality before law and equal protection of law. Through the process of interpretation, procedural safeguards have been read into Article 14 by the Courts. In Delhi Transport Corporation v. DTC Mazdoor Union, AIR 1991 SC 101, the Hon'ble Supreme Court has held that "the audi alteram partem rule, in essence, enforce the equality clause in Art 14 and it is applicable not only to quasi- judicial bodies but also to administrative order adversely affecting the party in question unless the rule has been excluded by the Act or Regulation or Rule." Not giving any hearing results in decisions which are arbitrary in nature. Arbitrariness and equality are antithesis of each other. Similarly under Article 21 of the Constitution, no person can be deprived of his life or liberty except according to the procedure established by law. Audi alteram partem forms a part of the procedural due process under the Indian Constitution. Procedure established by law must be just, fair and reasonable and not oppressive, unreasonable or arbitrary.
In view of the aforesaid, this Court is of the considered opinion that once the order passed the respondents is stigmatic
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in nature, the petitioner will certainly not get any job in future on account of stigmatic order. This Court is of the opinion that in all fairness an opportunity of hearing should have been granted to the petitioner while terminating his services and thereafter, they should have take appropriate action in accordance with law.
Resultantly, impugned order dated 24/07/2016 is quashed and the respondents are directed to permit the petitioner to continue as a Daily Wager, however, the petitioner will not be entitled for back wages.
With the aforesaid, all the writ petition stand allowed. The other connected petitions are also allowed.
Certified Copy as per rules.
(S. C. SHARMA) JUDGE Tej