Kerala High Court
Raneesh T.S vs The District Police Chief on 23 March, 2023
Author: S. Manikumar
Bench: S.Manikumar, Murali Purushothaman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
WP(C) NO. 25920 OF 2017
PETITIONER/S:
RANEESH T.S
AGED 33 YEARS
S/O TILAKAN, AGED 33 YEARS, SUB INSPECTOR OF
POLICE,AROOR POLICE STATION, ALAPPUZHA
DISTRICT,RESIDING AT ILLICKAL, K.S MANGALAM
PO,VAIKOM, KOTTAYAM.
BY ADV SRI.B.MOHANLAL
RESPONDENT/S:
1 THE DISTRICT POLICE CHIEF
ALAPPUZHA PO, ALAPPUZHA.688001.
2 THE KERALA STATE HUMAN RIGHTS COMMISSION
REPRESENTED BY ITS REGISTRAR, P.M.G
JUNCTION,THIRUVANANTHAPURAM.695033.
3 THE DEPUTY SUPERINTENDENT OF POLICE
KUTHIYATHODE, KUTHIYATHODE PO,CHERTHALA,
ALAPPUZHA.688524.
4 THE CIRCLE INSPECTOR OF POLICE
KUTHIYATHODE, KUTHIYATHODE PO,CHERTHALA,
ALAPPUZHA.688524.
5 SMT. SUMA R
VAZHAVILAKATH VEEDU, DHANUVACHAPURAM
PO,NEYYATTINKARA, THIRUVANANTHAPURAM.695503.
6 SRI. ANEESH LAL J.T
CIRCLE INSPECTOR OF POLICE, KERALA STATEHUMANN
RIGHTS COMMISSION, P.M.G
JUNCTION,THIRUVANANTHAPURAM.695033.
BY ADVS.
S.SUBHASH CHAND
WP(C) No.25920/2017 -:2:-
OTHER PRESENT:
SRI. K. P. HARISH, SR. G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.25920/2017 -:3:-
JUDGMENT
S. Manikumar, C. J.
Smt. Suma R., the 5th respondent herein, made a complaint to the Kerala State Human Rights Commission, alleging that the writ petitioner, along with other Police officials, forcefully entered her house at 03:00 a.m. on 27.11.2016, and tortured the complainant as well as her brother, besides, handcuffing her sister's son and manhandled him, taking him into Police custody.
2. Upon entertaining the complaint, Kerala State Human Rights Commission appointed an Enquiry Officer, to enquire into the matter in detail, and submit a report. He examined 18 witnesses, and after analysis of the documents, submitted a report.
3. Based on the said report, Kerala State Human Rights Commission in HRMP No. 12168/2016 dated 7.6.2017, has passed the following order:-
"As per the Complaint the Counter Petitioner along with other Police officials forcefully entered the Petitioner's House at 3 a.m. on 27/11/2016 and tortured the Petitioner and her brother WP(C) No.25920/2017 -:4:- besides handcuffing her Sister's Son and manhandled him taking him into police custody.
With regard to the complaint, the Enquiry Officer of the Commission has enquired in detail and has submitted the report. Statements of 18 Witnesses were recorded and examined relevant documents and it has been found true the Complaint matter as confirmed in the report. As further found true and correct the following facts as well. The Petitioner is a widow belonging to Scheduled Caste Community. On 27/11/2016 at 3 a.m. the Counter Petitioner who is the Sub Inspector of Police, Aroor Police Station along with 5 other known Police officials forcefully entered the Petitioner's house at Kottamam. Parassala took custody of Sri. Jomon Joseph, son of her Sister and tortured. They came in a Private Car without any identity and Police uniform and done the act in a Gunda style. This was in the jurisdiction of Parassala Police Station and have not informed the Parassala Police Station before committing the torture, insult and injury. As truly reported, Parents of Sri. Jomon are residing within the jurisdiction of Aroor Police Station but for the last one year they are residing at Kottamam House which is within the jurisdiction of Parassala Police Station. During the stay at Kottamam only these torture was occurred. As revealed from the statement of Smt.Neethu Krishna, Medical Officer of Thuravoor Government Hospital and relevant Medical documents as well as statements of witnesses it has been found true and correct that WP(C) No.25920/2017 -:5:- Sub Inspector Sri.Raneesh and other Police officials have brutally attacked and fractured his hand noted while examining the X-Ray of the hand.
The details of such an enquiry has not been referred to in the G.D. of the Police Station which itself shows the seriousness of the crime committed by the Counter Petitioner. The acts of the Counter Petitioner such as torturing and insulting the Petitioner who was just preventing the Counter Petitioner while taking custody of an innocent person Sri. Jomon, who is not at all an Accused in any case and the arrest was without Police Uniform and misuse of official position amounts to violations of Human Rights. As per SC/ST Act Petitioner is entitled to legal protection of her life and property. The acts of the Counter Petitioner has affected seriously the reputation to Sri.Jomon, his parents and sister to be married.
Therefore, following suggestions are given to the Alleppey District Police Chief:
1. To order for registering the case and to enquire under SC/ST Prevention of Atrocities Act 1989 Section 3(1) read with Section 3 (2) and Section 4 against illegally arresting and taking into custody of Jomon by forcefully entering in to the Kottamam House of the Petitioner and torturing.
2. To order departmental disciplinary proceedings against Sri. Raneesh and five other police officials for committing these WP(C) No.25920/2017 -:6:- illegal acts as they are coming in a private car without wearing Police Uniform.
3. Injured victim Sri.Jomon should approach District Legal Service Authority or state legal service authority for compensation under Section 357(A) Cr.P.C.
4. Since the authority to award compensation lies upon the court which is to adjudicate, the same is left to the court.
5. District Police chief should submit a report to the commission about relevant steps taken within one month on receipt of this order."
4. Being aggrieved, respondent therein has filed the instant writ petition for the following reliefs:
"i. To call for the records leading to Exts.P1 and P2 from the 2nd respondent and issue a writ of certiorari or other appropriate writ, order or direction, quashing Ext.P1 Enquiry Report and Ext.P2 Order in HRMP NO:12168/2016 dated 07/06/2017 of the 2nd Respondent as illegal and without jurisdiction;
ii. To issue a writ of mandamus or other appropriate writ, order or direction commanding respondents 1 to 4 to desist from initiating proceedings and disciplinary action against the petitioner pursuant to the directions of the 2nd Respondent in Ext.P2 Order;WP(C) No.25920/2017 -:7:-
iii. To declare that the 2nd Respondent has absolutely no jurisdiction under Section 18 of the Protection of Human Rights Act 1993 to pass Ext.P2 Order against the Petitioner;
iv. To declare that Ext.P1 Enquiry Report and Ext.P2 Order in HRMP NO:12168/2016 dated 07/06/2017 of the 2nd Respondent is illegal and without jurisdiction."
5. Earlier, when service was not completed by speed post, we directed notice to the 5th respondent through affixture, at her residence through the District Court, Thiruvananthapuram. Accordingly, it was done, and as per the Registry's note, service is completed.
6. Thereafter, we directed the Registry to verify as to whether any Vakalath has been filed on behalf of respondents 5 and 6. Registry was further directed to show the name of the learned counsel, if any Vakalath is filed, and if not, directed to show the name of respondents 5 and 6 in the cause-list. Thus, though the names of respondents 5 and 6 are shown in the cause-list, there is no appearance, either in person or through counsel.
7. Impugned order of the Kerala State Human Rights Commission, dated 7.6.2017, is challenged on the grounds, inter alia, WP(C) No.25920/2017 -:8:- that Ext. P1 Enquiry Report and Ext. P2 order of the Commission straight away directing the District Police Chief, Alappuzha; the Deputy Superintendent of Police, Cherthala, Alappuzha district; and the Circle Inspector of Police, Kuthiyathode, Cherthala, Alappuzha, respondents 1, 3 and 4 respectively, to initiate proceedings against the petitioner, by exceeding its jurisdiction under Section 18 of the Protection of Human Rights Act, 1993, is illegal, arbitrary, mala fide and arbitrary exercise of jurisdiction, not vested in it by law.
8. It is submitted that Ext. P1 investigation report submitted by the 6th respondent, circle Inspector of Police, and Ext. P2 impugned order of the Human Rights Commission have been passed, without giving an opportunity of being heard the petitioner in the enquiry, and to adduce evidence on the defense of the petitioner. This is strictly in violation of the basic principle audi alterm partem. Copy of Ext.P1 report was not served by the 6th respondent on the petitioner, to ascertain the veracity of the documents, allegations and its findings.
9. It is further submitted that going by Ext. P2 order, the Commission directed respondents 1, 3 and 4 to register a crime, WP(C) No.25920/2017 -:9:- departmental action, and other proceedings against the petitioner and other Civil Police Officers. As per Section 18 of the Protection of Human Rights Act, 1993, the Commission has vested jurisdiction only to recommend the concerned Government or authority to make payment of compensation and to initiate prosecution. Commission exceeded its jurisdiction beyond the scope of its powers and directed respondents 1, 3 and 4 to initiate proceedings. Ext. P2 order as against the petitioner, is not sustainable under law. There are other grounds of challenge as well.
10. We have heard Mr. B. Mohan Lal, learned counsel for the petitioner, and perused the material on record.
11. Protection of Human Rights Act, 1993 is an Act to provide for the Constitution of a National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for better protection of human rights and for matter connected therewith or incidental thereto.
12. Section 2(d) of the Act, 1993 defines "human rights" to mean the rights relating to life, liberty, equality and dignity of the individual WP(C) No.25920/2017 -:10:- guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.
13. Section 2(m) of the Act, 1993 defines 'public servant', and it states that "public servant" shall have the meaning assigned to it in Section 21 of the Indian Penal Code.
14. Chapter III of the Act, 1993 deals with functions and powers of the Commission. Section 12 under Chapter III speaks about functions of the Commission and it reads as under:
"The Commission shall perform all or any of the following functions, namely:-
(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf 1 [or on a direction or order of any court], into complaint of--
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) intervene in any proceeding involving any allegation of violation of human rights pending before a court with the approval of such court;
(c) visit, notwithstanding anything contained in any other law for the time being in force, any jail or other institution under the control of the State Government, where persons are detained or lodged for purposes of treatment, reformation or protection, for the study of the living conditions of the inmates thereof and make recommendations thereon to the Government;] WP(C) No.25920/2017 -:11:-
(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation;
(e) review the factors, including acts of terrorism, that inhibit the enjoyment of human rights and recommend appropriate remedial measures;
(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation;
(g) undertake and promote research in the field of human rights;
(h) spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of these rights through publications, the media, seminars and other available means;
(i) encourage the efforts of non-governmental organisations and institutions working in the field of human rights;
(j) such other functions as it may consider necessary for the promotion of human rights."
15. Section 13 of the Act speaks about powers relating to inquiries and it reads thus:
"13. Powers relating to inquiries.- (1) The Commission shall, while inquiring into complaints under this Act, have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), and in particular in respect of the following matters, namely:--
xxxxxxxxxxxxxxxxxx (3) The Commission or any other officer, not below the rank of a Gazetted Officer, specially authorised in this WP(C) No.25920/2017 -:12:- behalf by the Commission may enter any building or place where the Commission has reason to believe that any document relating to the subject matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom subject to the provisions of section 100 of the Code of Criminal Procedure, 1973, in so far as it may be applicable.
xxxxxxxxxxxxx (5) Every proceeding before the Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860), and the Commission shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
16. Section 14 of the Act speaks about investigation and sub-
section (5) therein states that, the Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted to it under sub-section (4) and for this purpose, the Commission may make such inquiry (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.
17. Section 16 of the Act speaks about persons likely to be prejudicially affected to be heard and it reads as under:
"16. Persons likely to be prejudicially affected to be heard.- If, at any stage of the inquiry, the Commission--WP(C) No.25920/2017 -:13:-
(a) considers it necessary to inquire into the conduct of any person; or
(b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence:
Provided that nothing in this section shall apply where the credit of a witness is being impeached."
18. Section 17 of the Act, 1993 speaks about inquiry into the complaints and it reads as under:
"The Commission while inquiring into the complaints of violations of human rights may--
(i) call for information or report from the Central Government or any State Government or any other authority or organisation subordinate thereto within such time as may be specified by it:
Provided that--
(a) if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire into the complaint on its own;
(b) if, on receipt of information or report, the Commission is satisfied either that no further inquiry is required or that the required action has been initiated or taken by the concerned Government or authority, it may not proceed with the complaint and inform the complainant accordingly;
(ii) without prejudice to anything contained in clause (i), if it considers necessary, having regard to the nature of the complaint, initiate an inquiry."
19. Section 18 speaks about steps during and after inquiry and it reads as under:
WP(C) No.25920/2017 -:14:-"18. Steps during and after inquiry.-- The Commission may take any of the following steps during or upon the completion of an inquiry held under this Act, namely:--
(a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority-
(i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit;
(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his representative;
(e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the WP(C) No.25920/2017 -:15:- recommendations of the Commission."
20. Section 21 of the Act, 1993 coming under Chapter V speaks about constitution of State Human Rights Commissions, wherein sub-
section (5) states that a State Commission may inquire into violation of human rights only in respect of matters relatable to any of the entries enumerated in Lists II and III in the Seventh Schedule to the Constitution of India.
21. Section 36 under Chapter VIII speaks about matters not subject to jurisdiction of the Commission, and it reads thus:
"36. Matters not subject to jurisdiction of the Commission.- (1) The Commission shall not inquire into any matter which is pending before a State Commission or any other Commission duly constituted under any law for the time being in force.
(2) The Commission or the State Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed."
22. In exercise of the powers conferred by Section 10(2) r/w.
Section 29 of the Protection of Human Rights Act, 1993, the Kerala State Human Rights Commission has made the Kerala State Human Rights Commission (Procedure) Regulations. Regulation 2(d) defines WP(C) No.25920/2017 -:16:- "complaint" to mean all petitions and communications received by the Commission from a victim or any other person on his behalf in person or by post or by telegram or by fax or by any other means whatsoever alleging violation of human rights or abetment thereof or negligence in the prevention of such violation by a public servant of all or any of the human rights defined in clause (d) of sub-section (1) of Section 2 read with sub-section (5) of Section 21 of the Act.
23. Regulations 16 and 17 read as under:
"16. Nature of Complaints.- (i) Every complaint should disclose a complete picture of the matter complained of and disclose the name and address of the respondent. The Commission may, if it considers necessary,-
(a) call for further relevant information from the complainant;
(b) direct the complainant to file affidavit/s in support of the complaint;
(c) obtain sworn statements of the complainant; and
(d) take statement of the complainant by issuing Commission for that purpose or by any other means considered necessary;
(ii) No fee shall be chargeable on complaints/ interlocutory applications."
"17. Complaints not ordinarily maintainable.- The Commission may dismiss inlimine complaints of the following nature:
(a) Illegible;WP(C) No.25920/2017 -:17:-
(b) vague, anonymous or pseudonymous;
(c) trivial or frivolous;
(d) barred under sub-sections (1) or (2) of section 36 of the Act.
(e) allegations do not disclose involvement of any public servant;
(f) issue raised relates to civil disputes, service matters, labour or industrial disputes;
(g) allegations do not raise any violation of human rights;
(h) If the matter raised is subjudice before a Court of Tribunal;
(I) the matter is covered by a Judicial verdict/ decision of the National Commission or a State Commission;
(j) Where the complaint is only a copy of the petition addressed to some other authority;
(k) Where the petition is not signed or where the original petition is not sent to the Commission;
(l) Where the matter raised is outside the purview of the Commission or on any other ground."
24. As rightly contended by Mr. B. Mohan Lal, learned counsel for the petitioner, impugned order does not reflect furnishing of a copy of Ext. P1 report of the Enquiry Officer, and apparently, we are of the view that there is a violation of the principles of natural justice.
25. When an adverse report is submitted and forms the basis of an order, administrative or quasi judicial, this Court is of the view that WP(C) No.25920/2017 -:18:- the affected party ought to have given an opportunity to acknowledge the contents of the report.
26. On the aspect of violation of the principles of natural justice, let us consider the following decisions:
(i) In Automotive Tyre Manufacturers Association v. The Designated Authority and Ors. [(2011) 2 SCC 258], the Hon'ble Supreme Court held as under:
"65. More often than not, it is not easy to draw a line demarcating an administrative decision from a quasi-judicial decision. Nevertheless, the aim of both a quasi-judicial function as well as an administrative function is to arrive at a just decision. In A.K. Kraipak and Ors. v. Union of India and Ors. (1969) 2 SCC 262, this Court had observed that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power, regard must be had to: (i) the nature of the power conferred; (ii) the person or persons on whom it is conferred; (iii) the framework of the law conferring that power; (iv) the consequences ensuing from the exercise of that power and (v) the manner in which that power is expected to be exercised.
77. It is trite that rules of "natural justice" are not embodied rules. The phrase "natural justice"
is also not capable of a precise definition. The underlying principle of natural justice, evolved under the common law, is to check arbitrary exercise of power by the State or its functionaries. therefore, the principle implies a WP(C) No.25920/2017 -:19:- duty to act fairly i.e. fair play in action. In A.K. Kraipak (supra), it was observed that the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application.
81. Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be properly determined. (See: Union of India v. Col. J.N. Sinha and Anr. (1970) 2 SCC 458.)"
(ii) In Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise and Ors. [(2015) WP(C) No.25920/2017 -:20:- 8 SCC 519], the Hon'ble Apex Court 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 different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must given 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 were: (i) rule against bias, i.e. nemo judex in causa sua; and
(ii) opportunity of being heard to the concerned party, 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 duty to give reasons in support of decision, namely, passing of a 'reasoned order'.WP(C) No.25920/2017 -:21:-
22. Though the aforesaid principles of natural justice are known to have their origin in Common Law, even in India the principle is prevalent from ancient times, which was even invoked in Kautilya's 'Arthashastra'. This Court in the case of Mohinder Singh Gill and Anr. v.
The Chief Election Commissioner, New Delhi and Ors. (1978) 1 SCC 405 : AIR 1978 SC 851 explained the Indian origin of these principles in the following words:
"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 bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed from the legendary days of Adam-and of Kautilya's Arthashastra-the 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."
27. It, thus, cannot be denied that principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both WP(C) No.25920/2017 -:22:- instrumental and non-instrumental terms.
28. It is on the aforesaid jurisprudential premise that the fundamental principles of natural justice, including audi alteram partem, have developed. It is for this reason that the courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.
From the aforesaid discussion, it becomes clear that the opportunity to provide hearing before making any decision was considered to be a basic requirement in the Court proceeding. Later on, this principle was applied to other quasi-judicial authorities and other tribunals and ultimately it is now clearly laid down that even in the administrative actions, where the decision of the authority may result in civil consequences, a hearing before taking a decision is necessary. It was, thus, observed in A.K. Kraipak's case (supra) that if the purpose of rules of natural justice is to prevent miscarriage of justice, one fails to see how these rules should not be made available to administrative inquiries. In the case of Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 also the application of principle of natural justice was extended to the administrative action of the State and its authorities. It is, thus, clear that WP(C) No.25920/2017 -:23:- before taking an action, service of notice and giving of hearing to the noticee is required. In Maharashtra State Financial Corporation v. Suvarna Board Mills and Anr. (1994) 5 SCC 566, this aspect was explained in the following manner:
"3. It has been contended before us by the learned Counsel for the Appellant that principles of natural justice were satisfied before taking action Under Section 29, assuming that it was necessary to do so. Let it be seen whether it was so. It is well settled that natural justice cannot be placed in a straight-jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequence would follow if he would not take care of the lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law: All will depend on facts and circumstances of the case."
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 straight-jacket 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 WP(C) No.25920/2017 -:24:- case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as 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 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."
27. In the light of the above discussion and decisions, we are of the view that the petitioner has made out a case for interference, and therefore, the impugned order is liable to be set aside.
28. In fine, order dated 07.06.2017 in HRMP No. 12168 of 2016, is set aside.
Accordingly, writ petition is allowed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
MURALI PURUSHOTHAMAN
JUDGE
Eb ///TRUE COPY/// P. A. TO JUDGE
WP(C) No.25920/2017 -:25:-
APPENDIX OF WP(C) 25920/2017
PETITIONER EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE INVESTIGATION
REPORT SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 7.6.2017 IN HRMP NO.12168/2016 OF THE KERALA STATE HUMAN RIGHTS COMMISSION, THIRUVANANTHAPURAM.