INDU BHUSHAN Vs. GOVT OF J&K

JUDGEMENT

(1.) THIS writ petition is directed against the impugned order dated 31 -12 -83 passed by respondent No. 1 whereby the appeal of respondent No. 3 against the promotion order of the petitioner was accepted and the petitioners promotion was set aside. It appears that respondent No. 2 had promoted the petitioner as Khalaf -warzi Inspector in the pay scale of 600 -925. Against this order of promotion, respondent No. 3 had filed an appeal on the ground that he was Senior Assistant in the Municipality Jammu and the petitioner was Junior to him and the order passed by respondent No 2 was in violation of the principles of the natural justice and the rules This appeal was accepted vide the impugned order and the promotion of the petitioner was set aside. Aggrieved by this order the petitioner has filed this writ petition on the ground that the impugned order was passed at his back and is against the principles of natural justice It is stated in the writ petition that the impugned order was passed without any enquiry and no notice was given to the petitioner and an opportunity to be heard was denied to him and it is further stated that no appeal could lay against the order passed by respondent No, 2 to the Govt. because respondent No 2 is a corporate body. Many other grounds are also urged in the petition. Respondent No. 1 has not filed its counter Its right to do so was closed on 4 -7 -1984, Respondent No. 3 was set exparte and respondent No. 2 has filed his objection supported by an affidavit of the Executive Officer, Jammu, Municipality In the objections of the Municipality contention of the petitioner is substantially admitted It is stated that Municipal Council Jammu had invited applications for the posts of Khalaf Warzi Inspectors vide advertisement notice issued on 23 -1 -1981 and the petitioners eligibility for the said post is also admitted. As regards appeal of respondent No. 3 before the government, respondent No. 2 was not in a position to state anything. There is no rebuttal on behalf of the Government to the averments made in the writ petition, Therefore, I am left with no choice except to presume the averments of the petitioner in respect of appeal having been decided at his back without hearing him and without notice to him, as true and correct, I also presume that the Government had no power to hear the appeal against respondent No. 2 because there is no reply in respect of this averments on behalf of respondent No. 1.

(2.) THIS writ petition deserves to be allowed on a short point. Respondent No, 3 is appeal whether it was competent or not was against the petitioners promotion and any decision given by the Govt. was to affect none else except the petitioner. Therefore it was essential for respondent No. 1 to issue a notice to the petitioner and hear him before any order affecting his rights was passed. Respondent No. 1 was discharging quasi -judicial functions and it was obligatory on him to afford an opportunity of being heard to the petitioner while disposing of the appeal. The impugned order of the Govt. has visited the petitioner with penal consequences. Therefore, such an order could not have been passed at his back as that would be flagrant violation of the principles of natural justice. Rules of natural justice are required to be observed even in administrative orders when the administrative orders are likely to affect valuable rights of the citizens. Denial of right of being heard will be violative of Art, 14 of the constitution of India and would negate the principles of natural justice which requires that decisions must be arrived at after hearing the parties and nobody should be condemened unheard. The rule of natural justice sets minimum standards of fairness in adjudication by bodies which in many cases bear no resemblance to courts. It would be unfair if right of being heard is denied to a citizen against whom an adverse order is passed by the administrative tribunals, Each tribunal whether administrative or judicial has to follow the rule of natural justice and decisions proposed to be given, affecting anybodys rights should be made only after notice is given to the affected person, Without issuing notice to affected person administrative tribunal cannot decide against a person whose rights are being adjudicated upon by it, Prior notice to an affected person is to be given necessarily even by administative tribunals, Natural justice genrally requires that persons likely to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position :

(3.) FAILURE to give prior notice to the petitioner would tantamount to denial of an opportunity to be heard, Rule of audi -alteram partem is adopted by our system and since the citizens are governed by constitutional guarantees, therefore, right of hearing cannot be denied to any person who is sought to be penalized, In the present case, as already observed, the impugned order was passed without giving notice to the petitioner and without hearing him and the decision was taken at his back by respondent No. 1 As such the impugned order cannot be sustained and is to be struck down, Whether the petitioners promotion was made in accordance with the rules or not is of no consequence in the present writ petition, The fact remains that fee was promoted by a competent authority and by getting promotion some valuable rights had vested in him as regards pay add grade, That vested right cannot be taken away from the petitioner at his back in violation of principles of natural justice, Therefore, the impugned order is held to be in flagrant violation of principles of natural justice,