DHARMENDRA PRATAP SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the parties. Brief facts of the petitioner's case are that the petitioner has been working as Platoon Commander since 2004. In the month of June, 2008, the alleged overwriting in Muster Roll was found for which explanation has been offered from the petitioner, to which the petitioner tendered his reply denying the allegations levelled against him and thereafter, without holding any enquiry or affording opportunity of hearing, the impugned termination order has been passed by the opposite party No.3. Learned counsel for the petitioner submits that the impugned order has been passed in an illegal, arbitrary and mala fide manner. The respondents did not consider the reply so tendered by the petitioner. They did not prepare any charge sheet. In absence of any specific rule governing the termination of the petitioner in the U. P. Home Guards Adhiniyam, 1963, passing of the impugned order,without observance of Rules of natural justice is arbitrary, illegal and violative of the Constitution of India. The petitioner did not make any cutting over-writing or entry in the Muster roll. The Muster Roll was not in the custody of the petitioner and as a matter of fact, it was paid Platoon Commander/B.O. who was responsible for maintenance of the Muster Roll. The petitioner did not make any gain nor did he have any occasion to receive any benefit by making alleged over-writing in the Muster Roll. Learned counsel for the petitioner vehemently argued that although there are no specific rules governing the discharge or termination of the petitioner, the petitioner is entitled to the principles of natural justice. In the present case,the respondents have not given proper opportunity of hearing to the petitioner, to which learned Standing Counsel also did not dispute. 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. Besides, natural justice is an inseparable ingredient of fairness and reasonableness. It is even said that the principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. The Hon'ble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259 the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon'ble Apex Court concluded as under: - "The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive." In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66, it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons. At this juncture it would be relevant to produce relevant portion of paragraph 34 of the judgment rendered in State Bank of Patiala and others v. S.K.Sharma, JT 1996(3) S.C. Though this decision was given in a service matter but the Hon'ble Apex Court has dealt with the principles of natural justice and the result if it is not followed:- (1)Where the enquiry is not governed by any rules/regulations/ statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e. between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice, in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No.5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.) (2)While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. Keeping in mind the aforesaid legal position, I am of the opinion that the writ deserves to be allowed. Accordingly, the writ petition is allowed and the impugned termination order dated 18.9.2008 is hereby quashed.