UMA SHANKER SHUKLA Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned Counsel for the parties. Learned Counsel for the Petitioner submits that the petitioner who was appointed on the post of Constable in the year 1965, proceeded on leave in the year 1989 on account of his illness. As soon as he recuperated from his illness in the year 1993, he submitted his joining, but the opposite parties did not allow him his joining and as as such, he preferred a representation as well as registered notice requiring the opposite parties to communicate the order, if any, passed on his representation. Neither the representation was decided nor reply to the registered notice was issued. Being aggrieved, the instant writ petition has been filed claiming the following reliefs:- (I) issue a writ, order or direction in the nature of mandamus or any other suitable writ, order or direction, the opposite parties may kindly be commanded to sanction the medical and earned leave of the petitioner for the period 18.5.89 to 17.2.1991 and from 18.5.1992 to 6.1.1993 and be further directed to pay half salary of the petitioner from 14.4.1991 to 14.10.1991, treating the petitioner on duty with effect from 7.1.1993 and pay the entire salary to the petitioner. (ii) issue a writ, order or direction in the nature of certiorari, the entire proceedings and other order etc. absolutely unwarranted and if it has been passed if any the same may kindly be quashed after summoning the original. (iii) .... (iv) .... Notice were issued. In response to the notice, a counter-affidavit has been filed by the State annexing therewith a copy of the order of removal from service of the petitioner dated 31.10.1992. Thereafter, the petitioner moved an application for amendment, which was allowed and the amendments were incorporated in the writ petition, but till date, no counter-affidavit to the amended portion of the counter-affidavit has been filed. Counsel for the petitioner submits that the petitioner assails the order of removal inter alia on the ground that no opportunity of hearing was afforded prior to passing of the removal order insofar as neither any enquiry was conducted nor disciplinary proceedings were initiated against him, but abruptly the order of removal has been passed. 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. which reads as under:- (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. In view of above, the writ petition is allowed and the order dated 31.10.1992 is quashed. However, it will be open for the opposite parties to proceed in accordance with law, if they so desire.