HON'BLE SRI JUSTICE J SREENIVAS RAO
WRIT PETITION No.11405 of 2012
ORDER:
The petitioner filed this writ petition for the following relief:
"to issue an order or direction more particularly one in the nature of Writ of Certiorari:
(a) Call for the records relating to and connected with the impugned orders vide proceedings bearing No.F21(2)/05-07/SSH/AP/1174 Dt.23/24.02.2012 and quash or set aside the same holding it as arbitrary, illegal and violative of Articles 14 and violative of principles of natural Justice and
(b) direct the respondents to grant the permission to run the short stay home and release the grant in aid for successfully running the short stay home upto 27.02.2012 at Jagitial Karimnagar with all consequential benefits,
(c) further direct the respondents to grant permission to the petitioner to shift the SSH at Godavarikhani and on such granting permission to shift further direct to release the grants..."
1. Heard Sri K.S.V. Subba Rao, learned counsel for the petitioner, Sri V.T. Kalyan learned counsel appearing on behalf of respondent Nos.1 to 3, Smt B.V.Aparna Lakshmi learned counsel appearing for respondent No.4.
2. Brief facts of the case are:
2.1. The petitioner submits that the petitioner Society is registered under the Societies Registration Act, 2001 vide registration No.2875 of 1997. The aims and objects of the Society are as follows: 2
1. To fund and run educational and rural Development, Cultural, Medical, Social Forest and all or any of the Technological subjects in Andhra Pradesh State.
2. To aid any such institution that run with similar aims.
3. To acts as Trust Board to accept endowment to request donations etc., and other transfers of property made to the Society and administer them in accordance with the terms agreed to.
4. To raise necessary funds to maintain educational institutions under its management and administer the same.
5. To acquire and dispose of the properties for the benefit of the Society.
6. To print and publish journals or magazines with Articles contributing to growth of knowledge human understanding and culture.
2.2 Respondent No.1 had been undertaking various welfare measures for development of women and children across the country. The Central Social Welfare Board (for short 'CSWB') was formed on 12.08.1953 in order to reach out to all uncovered areas of the country so that each scheme initiated by respondent No.1 on women and child development are effectively implemented and a new corporate philosophy was adopted and participations with NGO mooted for effective implementation of the scheme. The petitioner further submits that CSWB is fully funded by respondent No.1 Department. CSWB 3 had granted permission to implement the scheme of 'Short Stay Home' in Jagtial town for the year 2008-09. She further submits that the petitioner Society had taken the premises bearing No.6-2-96 Hanumanwada, Old Dharmapuri Road, Jagtial, Karimnagar on rent and running the 'Short Stay Home'. CSWB sanctioned a budget of Rs.50,000/- for the year 2008-09 and respondent No.1 sanctioned an amount of Rs.6,00,000/- under the head of recurring expenditure to the petitioner Society for the year 2009-10 vide sanction order dated 31.03.2010 and for the year 2010-11 vide orders dated 01.11.2010. 2.3. She also stated that the petitioner Society has submitted letters on 26.01.2011, 01.03.2011, 10.03.2011, 28.04.2011, 09.05.2011, 19.05.2011 and 30.05.2011 to the respondents seeking permission to shift the 'Short Stay Home' to Godavarikhani and respondent No.1 neither granted permission nor rejected the request of the petitioner for shifting. She further stated that respondent No.4 visited and inspected the premises at H.No.6-2-96 Hanumanwada, Old Dharampuri Road, Jagtial, Karimnagar on 19.02.2010 and after being satisfied with the facilities at 'Short Stay Home' respondent No.4 had recommended it for further continuation of the scheme. She further stated that CSWB granted Rs.7,09,740/- as grant in aid to the 4 petitioner Society for the year 2009-10 vide orders dated 31.03.2010, similarly an amount of Rs.7,56,393/- for the year 2010-11. The petitioner further submits that the owner of the house had forcibly evicted the petitioner Society from House bearing No.6-2-96 and the petitioner has taken new premises bearing No.6-2-37/1 opposite Berayya Gudi, Hanumanwada, Jagtial, Karimnagar and shifted the 'Short Stay Home' to the said premises. Accordingly, informed the respondent No.3 vide letters dated 15.06.2011, 08.08.2011 and again on 28.10.2011. The petitioner further submits that on 14.07.2011 respondent No.2 had issued a show cause notice stating that the petitioner Society is not running 'Short Stay Home' and why the grant should not be discontinued and suspended the grant in favour of petitioner Society with immediate effect. Petitioner submitted explanations on 21.07.2011, 30.08.2011 and 05.08.2011 denying the allegations leveled in the show cause notice, but respondents without considering the explanations submitted by the petitioner passed the impugned order vide proceedings bearing No.F.21(2)/05/ 07/SSH/AP/1174 dated 23/24.02.2012. Hence, the writ petition.
3. Respondent No.4 filed counter on behalf of respondent Nos.2 and 3 contending that the petitioner Society entered into a Rental Agreement for location of 'Short Stay Home' at H.No.7-7-77, Ashok 5 Nagar, Jagtial, Karimnagar District for a period from 01.01.2006 to 31.01.2007. The petitioner Society has submitted another Rental Agreement for the period from 17.09.2009 to 16.07.2010 for location of 'Short Stay Home' at H.No.6-2-96, Hanumanwada, Jagtial, Karimnagar District. The Short Stay Home sanctioned by respondent No.2 was shifted to new place without obtaining permission from the respondent No.2 as per the terms and conditions of the sanctioned order. On 08.02.2010 respondent No.2 issued letter vide Proc.No.21(2)5/2007/ SSH/AP/2467 directing the petitioner to submit the clarification. 3.1 Respondent No.4 further submits that the petitioner submitted representation to respondent No.2 for shifting the 'Short Stay Home' from Karimnagar District of Telangana region to Nandigama town of Krishna District. Respondent No.2 vide proceedings No.21(2)/5/07/SSH/AP/1485, dated 03.09.2010 has refused to give his approval for shifting the location of 'Short Stay Home' from one District to another District as the same comes under the purview of Ministry of Welfare and Child Development, Government of India. Respondent No.4 also not recommend for shifting of 'Short Stay Home' from Karimnagar District to Krishna District as already there are three 'Short Stay Homes' existing in Krishna District. 6 3.2 Respondent No.4 further stated that their officials inspected the petitioner's institution on 30.12.2010 to verify whether the petitioner's institution has carried out the suggestions given by the respondent No.4 for improving its performance. During inspection the 'Short Stay Home' was not found in the sanctioned location and the officials who inspected the premises recommended to discontinue the programme. Pursuant to the said inspection report of the Field Officer of respondent No.4, the respondent No.2 issued a show cause notice on 14.07.2011 directing the petitioner to submit an explanation and also suspended the grant vide proceedings F.No.21(2)/5/07/SSH/AP/ 3341, dated 14.07.2011. He further submits that respondent No.2 passed the impugned order dated 23/24.02.2012 stating that the petitioner is not entitled to seek any grant on the ground that petitioner violated terms and conditions of the sanctioned order.
4. The petitioner Society filed reply affidavit, denying the averments made by respondent No.4 in the counter affidavit, specifically contending that the respondent No.2 issued show cause notice on 14.07.2011 without furnishing the copy of a report submitted by the officials of the respondent No.4 and the petitioner submitted detailed explanation on 21.07.2011 denying the allegations made in the show 7 cause notice dated 14.07.2011 and the respondent No.2 without considering the explanation passed the impugned order dated 23/24.02.2012.
5. Learned counsel Sri K.S.V. Subba Rao vehemently contended that respondent No.2 issued show cause notice on 14.07.2011 alleging that the petitioner Society is not running 'Short Stay Home' at Jagtial particularly from 2010 onwards though the petitioner Society is running the 'Short Stay Home' and the respondents have sanctioned the amounts to the petitioner Society. The respondent No.2 issued show cause notice basing on the inspection report dated 30.12.2010, while issuing the show cause notice itself, respondent No.2 has taken a decision suspending the grant with immediate effect to the petitioner Society and the same is contrary to the law.
5.1. He submits that respondent No.2 even before calling for the explanation from the petitioner Society, came to a conclusion and taken a decision suspending the grant to the petitioner Society and the issuance of the show cause notice dated 14.07.2011 is empty formality. He further submits that the petitioner submitted explanation to the show cause notice on 21.07.2011 denying the allegations made therein and also submitted another 8 representation/explanation on 23.07.2011 after obtaining the copy of the report under RTI Act. Respondent No.2 without considering the explanations, without conducting any enquiry and without perusing the audit reports, passed the impugned order on 23/24.02.2012, without giving any reasons and the same is contrary to the settled principles of law. In support of his contention he relied upon the Judgment reported in AIR 1989 SC 568 between H.L. Trehan And Ors. Etc vs Union Of India And Ors. Etc on 22 November, 19881.
6. Sri V.T.Kalyan, learned counsel representing respondent Nos.1, 2 and 3 submits that Field Officer of respondent No.4 inspected the premises on 30.12.2010 to verify whether the petitioner has carried out the suggestions of respondent No.4, but during the inspection the 'Short Stay Home' was not found in the sanctioned location and the inspected officials recommended to discontinue the programme. Respondent No.2 has rightly issued the show cause notice directing the petitioner to submit explanation and also suspended the grant vide proceedings No.21(2)/5/07/SSH/AP/ 3341 dated 14.07.2011. Respondent No.2 after following due procedure as contemplated under law passed the impugned order on 23/24.02.2012. 1 AIR 1989 SC 568 9 6.1 He further contended that in the representation dated 05.04.2009 the petitioner herself admitted that the respondents have not granted permission to shift the 'Short Stay Home' from H.No.7-7-77, Ashok Nagar, Jagtial to the premises bearing H.No.6-2-96, Hanumanwada, Old Dharmapuri Road, Jagtial town. He also submits that respondent No.2 after taking into consideration the report submitted by the respondent No.4 and after considering the explanation submitted by the petitioner has rightly passed the impugned order and the same is in accordance with law. Learned counsel appearing on behalf of respondent No.4 also reiterated the very same contention.
7. Having considered the rival submissions made by the respective parties and a perusal of the material available on record reveals that the respondent authorities granted permission in favour of petitioner Society to implement the scheme of Short Stay Home in Jagtial, Karimnagar District and the respondents have sanctioned amounts for the years 2008-09, 2009-10 and 2010-11. Respondent No.2 issued the show cause notice basing on the report submitted by the officials of the respondent No.4 on 14.07.2011 on the ground that the petitioner Society is not running 'Short Stay Home' at the sanctioned location and sought explanation from the petitioner and also suspended the grant in favour of the petitioner Society. 10 7.1 It also reveals from the record that the petitioner Society submitted explanations on 21.07.2011 and 23.07.2011 but the respondent No.2 without considering the explanation submitted to the said show cause notice passed the impugned order dated 23/24.02.2012 which reads as follows:
"I am directed to invite your attention to the subject cited above and to state that SSH run by your organization was visited by the field officer on 30.12.2010 and on the basis of the observations made in the inspection report, show Cause Notice was issued, the explanation was submitted by the voluntary organization and State Board was asked to forward their comments.
In the meantime another visit was conducted on 02.11.2011 which clearly had ascertained the non- existence of Short Stay Home. Neighbourhood inquiry also conducted and confirmed the fact that he SSH was not functioning.
In view of the position explained above, a decision is taken to discontinue the grant w.e.f 30.12.2010 i.e., date of first inspection."
7.2 Learned counsel for the petitioner contended that respondent No.2 issued show cause notice on 14.07.2011 basing on the report submitted by the officials of the respondent No.4 dated 30.12.2010 and in the very same show cause notice respondent No.2 has taken 11 a decision suspending the grant with immediate effect. Respondent No.2 has already come to a conclusion basing on the report and the issuance of show cause notice is empty formality. Though the petitioner submitted detailed explanation on 21.07.2011 and 23.07.2011 to the show cause notice dated 14.07.2011, the same were not considered by respondent No.2 and passed the impugned order dated 23/24.02.2012. Learned counsel for the petitioner relied upon the judgment reported in H.L. Trehan And Ors. Etc vs Union Of India And Ors.
12. It is, however, contended on behalf of CORIL that after the impugned circular was issued, an opportunity of hearing was given to the employees with regard to the alterations made in the conditions of their service by the impugned circular. In our opinion, the post-decisional opportunity of hearing does not subserve the rules of natural justice. The authority who embarks upon a post- decisional hearing will naturally proceed with a closed mind and there is hardly any chance of getting a proper consideration of the representation at such a post- decisional opportunity. In this connection, we may refer to a recent decision of this Court in K.I. Shephard v. Union of India [(1987) 4 SCC 431 : 1987 SCC (L&S) 438]. What happened in that case was that the Hindustan Commercial Bank, the Bank of Cochin Ltd. and Lakshmi Commercial Bank, which were private banks, were amalgamated with Punjab National Bank, Canara Bank 12 and State Bank of India respectively in terms of separate schemes drawn under Section 45 of the Banking Regulation Act, 1949. Pursuant to the schemes, certain employees of the first mentioned three banks were excluded from employment and their services were not taken over by the respective transferee banks. Such exclusion was made without giving the employees, whose services were terminated, an opportunity of being heard. Ranganath Misra, J. speaking for the court observed as follows: (SCC pp. 448-49, para 16) "We may now point out that the learned Single Judge for the Kerala High Court had proposed a post-
amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post- decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could not represent and their case could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose."
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13. The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by Article 14 of the Constitution. The High Court, in our opinion, was perfectly justified in quashing the impugned circular.
7.3 In the above judgment of the Hon'ble Apex Court, the appellant corporation therein has issued Circular dated 08.03.1978 altering service conditions of the employees of their corporation without giving any opportunity to the employees/affected parties. After issuance of the impugned Circular the management/appellant given an opportunity of hearing to the employees with regard to the alterations made in the conditions of their services. The Hon'ble Apex Court observed that the post decisional opportunity of hearing does not subserve the rules of natural justice. The principle laid down in the above judgment of the Hon'ble Supreme Court is not applicable to the facts and circumstances of the case on hand on the ground that respondent No.2 issued show cause notice dated 14.07.2011 calling explanation from the petitioner pending enquiry and the respondent No.2 suspended the grant in favour of the petitioner. The suspension 14 of grant in favour of the petitioner pending enquiry is interim nature only and the respondent No.2 has not taken any final decision through the impugned show cause notice. It is also significant to note that the petitioner has not questioned the said show cause notice-cum- suspension order dated 14.07.2011 on the other hand he submitted explanation and also participated in the proceedings and thereafter the respondent No.2 passed the impugned order dated 23/24.02.2012. The petitioner filed the present writ petition questioning the said order and he is not entitled to raise objection on the show cause notice cum suspension order dated 14.07.2011.
7.4 However the records clearly shows that pursuant to the show cause notice dated 14.07.2011 the petitioner submitted explanations on 21.07.2011 and 23.07.2011 respectively and the respondent No.2 without considering the same passed the cryptic order without assigning any reasons.
7.5 The Hon'ble Supreme Court in S.N. Mukherjee vs Union Of India2 held that administrative action must be supported by reasons. In this instant case also respondent No.2 passed the impugned order without considering the explanation submitted by the petitioner and without giving any reasons. The impugned order passed by respondent 2 AIR 1990 (SC) 1984 15 No.2 is clear violation of principles of natural justice.
8. In view of the foregoing reasons, without going into the merits of the case, the impugned order passed by respondent No.2 vide proceedings No.F.21(2)/05/07/SSH/A/1174, dated 23/24.02.2012 is set aside. The respondent No.2 is directed to consider the explanations submitted by the petitioner pursuant to the show cause notice dated 14.07.2011, after giving opportunity to the petitioner and pass appropriate orders, in accordance with law, within a period of two (2) months from date of receipt of the copy this order.
9. Accordingly the writ petition is disposed of. No costs.
As a sequel thereto, miscellaneous applications, if any, pending in this writ petition shall stand closed.
_____________________________ JUSTICE J SREENIVAS RAO 10th March, 2023 PSW 16 71 HON'BLE SRI JUSTICE J. SREENIVAS RAO WRIT PETITION No.11405 of 2012 10th March, 2023 PSW 17