Ashok Kumar vs State Of U.P. Civil Sectt. Lucknow ...
2013 Latest Caselaw 6147 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 6970 of 2012
 

 
Petitioner :- Ashok Kumar
 
Respondent :- State Of U.P. Civil Sectt. Lucknow Thru The Home Secy.& Anr.
 
Counsel for Petitioner :- Ashish C. Asthana
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri A.C. Asthana, learned counsel for the petitioner, Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel and perused the record.

Facts, in brief , of the present case are that in the year 2005 a selection process has been initiated by the official respondents for appointment on the post of Assistant Operator in U.P. Police Radio Headquarter , Mahanagar, Lucknow .

In pursuance of said facts , petitioner as well as other persons submitted their candidature, appeared in the written examination, called for physical examination to be held on 4.1.2006 and appeared in the interview ,thereafter selected/appointed by order dated 16.10.2006 on the post of trainee operator and submitted his joining.

As some irregularities have been found in the selection process, the same has been cancelled by Government Order dated 30.9.2007, accordingly in terms of the letter dated 30.9.2007 issued by the competent authority / Inspector General ( Establishment) dated 30.9.2007 the services of petitioner as well as other selected candidates were terminated by order dated 1.10.2007.

Aggrieved by the said facts , some of the incumbents, who were selected on the post of Assistant/Trainee Operator and started working and discharging their duties , filed a Writ Petition No. 45645 of 2007 challenging the order by which their services were terminated . However, the petitioner did not challenge the order by which his service has been terminated .

The said writ petition No. 45645 of 2007 allowed by judgment and order dated 8.12.2008. Aggrieved by the said order , official respondents filed Special Leave Petition before Hon'ble the Apex Court in which an order has been passed on 25.5.2009 .Keeping in view the said order, official respondents issued an order 31.5.2009, a copy of which has been annexed as annexure no. CA-1 to the counter affidavit giving provisional appointment to the petitioner on the post in question which was received by him on 6.6.2009. In spite of the said facts , petitioner did not join his duties on the post in question as per terms of the order dated 31.5.2009.

In view of the said factual back ground , the impugned order dated 24.7.2012 has been passed by opposite party no.2/ State Radio Officer U.P. Police Radio Headquarters, Mahangar, Lucknow thereby cancelling the order dated 31.5.2009 by which petitioner has been given appointment on the post of Assistant/ Trainee Operator by order dated 31.5.2009. Aggrieved by the said facts, present writ petition has been filed .

Learned counsel for the petitioner while challenging the impugned order submits that no opportunity whatsoever has been given to the petitioner prior to passing of the impugned order, so the same is in contravention of natural justice, liable to be set aside.

Sri Abhinav Narain Trivedi, learned Additional Chief Standing Counsel on the basis of averments made in the counter affidavit, submits that keeping in view the order passed by Hon'ble the Apex Court in the present case, an order dated 31.5.2009 has been issued by the competent authority thereby giving provisional appointment to the persons as well as the petitioner, who are selected/ appointed on the post of Assistant Operator, subsequently their services were terminated subject to decision taken by Hon'ble Apex Court . The said order has been received by the petitioner but not disputed in spite of the facts that he did not chose to join on the post in question but want to work and discharge his duties in other establishment ( Reliance Group),so keeping in view the said facts, the order dated 24.7.2012 has been passed by opposite party no.2 as such there is no illegality or infirmity in the impugned order under challenge in the present writ petition, thus same is liable to be dismissed.

I have heard learned counsel for the petitioner and gone through the record.

So, the arguments advanced by learned counsel for the petitioner that no opportunity of hearing has been given to the petitioner prior to passing of the impugned order , so the action on the part of opposite party no.2 is in violation of principles of natural justice accordingly the order in question liable to be set aside.

It is also, well-settled that the said principle cannot be put in any straight jacket formula. It may not be in a given case applied unless a prejudice is shown. It is not necessary where it would be a futile exercise. However, a court of law does not insist on compliance of useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. As mentioned in the in Wade Administrative Law, (5th Ed.PP.472-475) as follows: ( para 31)

"....it is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as their scope and extent ....There must have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with and so forth".

Hon'ble Apex Court in the case of S.L. Kapoor Vs. Jagmohan and others, 1980 (4) SCC 379, held as under:-

"Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary."

In Aligarh Muslim University and Others Vs. Mansoor Ali Khan [(2000) 7 SCC 529], the law is stated in the following terms :

"25. The useless formality theory, it must be noted, is an exception. Apart from the class of cases of admitted or indisputable facts leading only to one conclusion referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.

In Karnataka State Road Transport Corporation and another Vs. S.G. Kotturappa and another, [(2005) 3 SCC 409], this Court held :

"The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given"

Hon'ble the Supreme Court in the case of Punjab National Bank and others Vs. Manjeet Singh and another, 2006 (8) SCC 647, this Court opined :

"The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principle of natural justice."

In P.D. Agarwal Vs. State Bank of India and others[(2006) 8 SCC 776], Hon'ble Apex Court observed as under:-

"The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change."

It was further observed :

"Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) 4 SCC 379], whereupon Mr. Rao placed strong reliance to contend that non- observance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala & Ors. Vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. Vs. Neeraj Awasthi & Ors, JT 2006 (1) SC 19. See also Mohd. Sartaj Vs. State of U.P. (2006) 1 SCALE 265.]"

Keeping in view the above said facts as well as the facts of the present case , after passing the order dated 25.5.2009 by Hon'ble the Apex Court , an order dated 31.5.2009 has been passed by competent authority/ opposite party no.2 for giving provisional appointment on the post of Assistant Operator subject to outcome of the decision in Special Leave Petition pending before Hon'ble the Apex Court. The said order has been served on the petitioner on 6.6.2009 but he did not join on the post of Assistant Operator, chooses to work in different establishment ( Area Officer in Reliance Group) , so keeping in view the said fact, an impugned order dated 24.7.2012 has been passed by opposite party no.2 .

Accordingly, the arguments advanced by learned counsel for the petitioner that no opportunity has been given to the petitioner prior to passing of impugned order has got no force as the reason on which the impugned order dated 24.7.2012 has been passed is based on admitted fact on record, not disputed by the petitioner and there being nothing to contrary to take a different view on the basis of which impugned order has been passed , so providing an opportunity of hearing to the petitioner in the instant matter on admitted fact, is empty formality, so the plea of violation of natural justice as argued by learned counsel for the petitioner does not require any deliberation, hence the relief as claimed by the petitioner cannot be granted .

For the foregoing reason, the writ petition lacks merit and is dismissed accordingly.

Order Date :- 30.9.2013

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