Rishipal vs State Of U.P. And 2 Others
2018 Latest Caselaw 3801 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED ON 26.9.2018
 
DELIVERED ON 19.11.2018
 

 
Court No. - 56
 

 
Case :- WRIT - C No. - 27886 of 2018
 

 
Petitioner :- Rishipal
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Alok Krishan Tripathi,Pradeep Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Salil Kumar Rai,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel representing respondent Nos. 1 and 2.

2. An elected Gram Pradhan convicted of an offence under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as, 'N.D.P.S. Act, 1985') and sentenced to imprisonment for five years, has filed the present writ petition challenging an order passed by the District Magistrate, Bareilly, i.e., the respondent No. 2 removing him from the post of Gram Pradhan. The challenge is on the ground that the impugned order has been passed without issuing any show cause notice and without affording any opportunity of hearing to the petitioner.

3. The facts of the case are that the petitioner was elected as Pradhan of Gram Panchayat, Keni Shivnagar, Vikaskhand-Majhgava, District-Bareilly (hereinafter referred to as, 'Gram Panchayat') in the elections held in November/December, 2015. After his election as Gram Pradhan, petitioner was convicted under Section 18(c)(b) of the N.D.P.S Act, 1985 and sentenced to an imprisonment for five years by order dated 6.3.2018 passed by the Special Court, Patiala, District-Punjab. Respondent No. 2, exercising his powers under Section 95(1)(g)(v) of Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as, 'Act, 1947') passed an order dated 3.8.2018 removing the petitioner from the post of Gram Pradhan and declared a vacancy on the post of Pradhan in the Gram Panchayat and also consequently directed that elections for the post of Gram Pradhan be held. The said order has been passed on the ground that, under Section 5-A of Act, 1947 the petitioner stood disqualified to remain a Gram Pradhan. It has been stated in the writ petition that against the judgement and order dated 6.3.2018 passed by the Special Court, the petitioner has filed Appeal No. CRA (S) 1163/2018 (Diary No. 1955852), which is pending before Punjab & Haryana High Court. It has not been stated in the writ petition, but during the course of argument, the learned counsel for the petitioner informed the Court that in the aforesaid Appeal No. CRA (S) 1163/2018 (Diary No. 1955852), petitioner has been released on bail by the Punjab & Haryana High Court. It has been further stated in the writ petition that the order dated 3.8.2018 was passed by respondent No. 2 without issuing any show cause notice to the petitioner and without affording him any opportunity to plead his case and also without holding any inquiry as prescribed in Uttar Pradesh Panchayat Raj (Removal of Pradhans, Up-Pradhans and Members) Enquiry Rules, 1997 (hereinafter referred to as 'Rules, 1997'). The order dated 3.8.2018 has been challenged in the present writ petition.

4. Learned counsel for the petitioner has argued that in view of II Proviso to Section 95(1)(g) of the Act, 1947, no action could have been taken against the petitioner without affording him a reasonable opportunity to show cause against the proposed action and without holding an inquiry as contemplated in Rules, 1997. It was argued that the requirement of issuing a show cause notice as provided in II-Proviso to Section 95 (1) (g) is a condition precedent for exercise of powers by the concerned District Magistrate under Section 95(1)(g) of the Act, 1947 and as the impugned order dated 3.8.2018 was passed without issuing any show cause notice to the petitioner, the same is null and void and, therefore, liable to be set aside. In support of his argument, the learned counsel for the petitioner has relied upon the judgements of this Court in Mahak Singh Vs. State of U.P. & Others, AIR 1999 (All) 274 and Shamim Vs. State of U.P. through Secretary and 5 Others, AIR 2018 (All) 196.

5. I have considered the submission of learned counsel for the petitioner.

6. Before considering the arguments of the counsel for the petitioner, it would be proper to refer to the relevant provisions relating to the powers of the District Magistrate to remove a Gram Pradhan from his post.

7. Section 5-A of the Act, 1947 states that a person shall be disqualified for being chosen as, and for being, a Gram Pradhan or member of a Gram Panchayat, if any of the circumstance mentioned in the aforesaid provision exists. Clause (k) of Section 5-A of the Act, 1947 includes conviction of an offence under the N.D.P.S. Act, 1985 as one of the circumstance which disqualifies a person from being chosen as or for being a Gram Pradhan. Section 6-A of the Act, 1947 provides that if any question arises as to whether a person has become subject to any disqualification mentioned in Section 5-A of the Act, 1947, the question shall be referred to the Prescribed Authority for his decision and the decision of the prescribed authority shall, subject to the result of any appeal as may be prescribed, be final. Section 5-A(k) and Section 6-A of the Act, 1947 are reproduced below :-

"[5-A. Disqualification of membership. - A personal shall be disqualified for being chosen as, and for being, [the Pradhan or] a member of a Gram Panchayat, if he -

(k) has been convicted of an offence under the Narcotic Drugs and Psychotrapic Substances Act, 1985;

Provided that the period of disqualification under Clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) shall be five years from such date as may be prescribed:

Provided further that the disqualification under Clause (e) shall cease upon payment of arrears or delivery of the record of property, as the case may be;

Provided also that a disqualification under any of the clauses referred to in the first proviso may in the manner prescribed, be removed by the State Government.

6-A. Decision on question as to disqualifications - If any question arises as to whether a person has become subject to any disqualification mentioned in Section 5-A or in sub-section (1) of Section 6, the question shall be referred to the prescribed authority for his decision and his decision shall, subject to the result of any appeal as may be prescribed, be final."

Section 95(1)(g) of the Act, 1947 provides that the State Government may remove a Pradhan in the circumstances mentioned in Sub-Clauses (i) to (v) of Section 95(1)(g) of the Act, 1947. Clause (v) of Section 95(1)(g) of the Act, 1947 includes the situation where any person suffers from any disqualification mentioned in Clauses (a) to (m) of Section 5-A. However, the II Proviso of Section 95(1)(g) of the Act, 1947 provides that no action shall be taken under Clause (g) without giving the concerned Gram Pradhan a reasonable opportunity of showing cause against the action proposed. Section 95(1)(g) of the Act, 1947 is reproduced below :-

"95. Inspection - (1) The State Government may-

(g) [remove a Pradhan, Up-Pradhan or member of a Gram Panchayat] [* * *] or a Joint Committee or Bhumi Prabandhak Samiti, or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he-

(i) absents himself without sufficient cause for more than three consecutive meetings or sittings.

(ii) refuses to act or becomes incapable of acting for any reason whatsoever or if he is accused of or charged for an offence involving moral turpitude.

( iii) has abused his position as such or has persistently failed to perform the duties imposed by this Act or rules made thereunder or his continuance as such is not desirable in public interest, or

[iii-a) has taken the benefit of reservation under sub-section (2) of Section 11-A or sub-section (5) or Section 12, as the case may be, on the basis of a false declaration subscribed by him stating that he is a member of Scheduled Castes, the Scheduled Tribes or the backward classes, as the case may be.]

(iv) being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat takes active part in politics, or

(v) suffers from any of the disqualifications mentioned in Clauses (a) to (m) of Section 5-A;

[Provided that where, in an enquiry held by such person and in such manner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found to have committed financial and other irregularities such Pradhan or Up-Pradhan shall cease to exercise and perform the financial and administrative powers and functions, which shall, until he is exonerated of the charges in the final enquiry, be exercised and performed by a Committee consisting of three members of Gram Panchayat appointed by the State Government.]

[(gg) [* * *];

[(h) [* * *];

[Provided that -

(i)- No action shall be taken under Clause (f), Clause (g) 5 [* * *] except after giving to the body or person concerned a reasonable opportunity of showing cause against the action proposed];

(ii) [* * *]"

(Emphasis added)

It may be noted that the power conferred on the State Government under Section 95 of the Act, 1947 has been delegated to the concerned District Magistrates by appropriate notification issued under Section 96-A of the Act, 1947.

8. A reading of II-Proviso to Section 95(1)(g) of the Act, 1947 shows that the same is couched in a mandatory language. Therefore, the requirements of a show cause notice and an opportunity of hearing are mandatory before any order removing a Gram Pradhan from his post of Pradhan is passed by the District Magistrate under Section 95(1)(g) of the Act, 1947. At the same time, a joint reading of Section 5-A(k) and Section 95(1)(g)(v) of the Act, 1947 shows that conviction of a Gram Pradhan for an offence under N.D.P.S. Act, 1985 is the only factor relevant before passing an order of removal under Section 95(1)(g)(v) read with Section 5-A(k) of the Act, 1947.

9. The issue in the present case is, whether the order dated 3.8.2018 passed by the District Magistrate is liable to be set aside merely because, before passing the impugned order, no show cause notice was given to the petitioner and he was not given any opportunity to represent against the proposed action. The decision of the said issue depends on the answer to the question whether non-compliance of a procedural provision, contained in the relevant statute, couched in a mandatory language and incorporating a rule of natural justice, in this case the II-Proviso to Section 95(1)(g) of the Act, 1947, can by itself be a sufficient reason to set aside the order of the decision maker, in the present case the District Magistrate.

10. The II Proviso to Section 95(1)(g) of the Act, 1947 incorporates the audi alteram partem aspect of the rules of natural justice , i.e., no person should be condemned without giving a reasonable opportunity of hearing.

11. As stated by The Hon Michael J Beloff QC and Rupert Beloff in Chapter 11.1.1: Natural Justice and Fairness: the Audi Alteram Partem Rule (Judicial Review, edited by Helen Fenwick), the purposes underlying the rules of natural justice are threefold. It is conducive to arrival at the correct answer. It recognises the inherent interests and dignity of the individual affected. It enhances confidence in the decision reached. But, whatever may be the rationale behind the rules of natural justice, it is basically a rule of procedure and like any rule of procedure, the rules of natural justice have to be interpreted and applied keeping in mind the realities of life and administration. It is to be remembered that procedural provisions are handmaid of justice and rules of natural justice were evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. (Managing Director, ECIL, Hyderabad Vs. B. Karunakar and Others, (1993) 4 SCC 727 [paragraph No. 30(v)])

12. It was observed by the Supreme Court in Ajit Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation Limited, Haldia and Others, (2005) 7 SCC 764 (paragraph No. 44) that, "rules of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straight-jacket. ...They cannot be allowed to run wild. The approach of the Court in dealing with cases involving violation of rules of natural justice should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential."

13. The approach of the courts towards any complaint regarding non-compliance of the rules of natural justice have been continuously changing over a period of time and the strict standards which the courts traditionally applied while considering cases relating to non-compliance of the rules of natural justice have been lately relaxed. The right of a person that a notice be issued to him before any adverse action is taken against him, is one such facet of the rules of natural justice where the courts have relaxed the strict standards applied earlier. The right of an individual to show cause before any action is taken against him is a primary rule of justice and any violation of the said rule, except in cases where state and public interest were involved or where it was not reasonably practicable to hold an inquiry, had been disapproved by our courts and the slightest departure from the rule had been discouraged. But, as would be evident from the subsequent discussion, our courts have, lately, started admitting exceptions to the rule and have been upholding the orders of the authority, passed without complying with the said rule. One such exception admitted by our courts is the ''useless formality' theory, i.e., the order passed or action taken by the authority shall not be set aside on ground of non-compliance of any rule of natural justice if compliance of the said rule would have been a mere formality and would have not changed the ultimate conclusion reached by the decision maker. The recent trend of the courts in complaints regarding non-compliance of rules of natural justice is to inquire whether the observance of the rule, whose non-compliance had been complained of, was necessary for reaching a just decision in the case.

14. In Chintapalli Agency Talluk Arrack SALFS Cooperative Society Ltd. and Others Vs. Secretary (Food and Agriculture) Government of Andhra Pradesh and Others, (1977) 4 SCC 337, (paragraph No. 21) the Supreme Court held that, "minimal requirement of the rules of natural justice that the party whose rights are going to be affected and against whom some allegations are made and some prejudicial orders are claimed should have a written notice of the proceedings from the authority disclosing the grounds of complaint or other objection cannot be dispensed with ...by relying upon the principle of absence of prejudice or imputation of certain knowledge to the party against whom action is sought for.'

15. But a lot of water has flowed over the dam since the judgement of the Supreme Court in Chintapalli (Supra).

16. In S.L. Kapoor Vs. Jagmohan and Others, (1980) 4 SCC 379, the Supreme Court while following the law laid down in Chintapalli (Supra) also registered a caveat that, where on the admitted or indisputable facts only one conclusion was possible and under the law only one penalty was permissible, the Court will not issue its writ to compel the observance of natural justice as the Courts do not issue futile-writs. The aforesaid observations of the Supreme Court in S.L. Kapoor (Supra) were based on the observations of Lord Reid and Lord Guest in Malloch Vs. Aberdeen Corporation, (1971) 2 All ER 1278 (HL). The observations of Lord Reid and Lord Guest in Malloch (Supra) are reproduced below :-

"It was argued that to have afforded a hearing to the appellant before dismissing him would have been a useless formality because whatever he might have said could have made no difference. If that could be clearly demonstrated it might be a good answer."

(Emphasis added)

Lord Guest agreed with the above statement and stated :

"A great many arguments might have been put forward but if none of them had any chance of success then I can see no good reason why the respondents should have given the appellant a hearing, nor can I see that he was prejudiced in any way."

(Emphasis added)

It would also be relevant to reproduce the observations of Supreme Court incorporated in S.L. Kapoor (Supra).

"17. 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.

17. The approach of the courts subsequently shifted from formal to functional as suggested by the Supreme Court in Ajit Kumar Nag (Supra). In Managing Director (Supra), the Supreme Court observed that application of the principles of natural justice depends on the facts and circumstances of the particular case and on a complaint that a particular rule of natural justice had been violated, the courts would first decide whether the observance of that rule was necessary for a just decision of the case. The relevant observations of the Supreme Court are reproduced below:-

"20. ...What particular rules of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.

(Emphasis added)

18. However, the issue regarding the effect of non-compliance of a statutory procedural provision couched in a mandatory language and incorporating a rule of natural justice still remained unresolved. Whether such non-compliance of the rules of natural justice would ipso-facto be a cause to set aside the order passed by the authority remained a debatable question even after the judgements of the Supreme Court in Managing Director (Supra) and S.L. Kapoor (Supra).

19. Subsequently, the Supreme Court in State Bank of Patiala and Others Vs. S.K. Sharma, (1996) 3 SCC 364, while summarising the law relating to compliance of the rules of natural justice held that violation of procedural provisions, which were of fundamental character, would itself be a proof of prejudice and the court shall not insist on proof of prejudice in cases involving such violation and shall remedy the prejudice caused to the aggrieved person. In its aforesaid judgement, the Supreme Court, while holding that complaint of violation of procedural provision should be examined from the point of view of prejudice, created an exception for cases falling under 'no notice', 'no opportunity' and 'no hearing' categories. However, in its aforesaid judgement, the Supreme Court also observed that in situations where interest of State or public interest called for curtailing the rule of audi alteram partem, the courts may arrive at appropriate decision after balancing the state/public interest with the requirement of natural justice. The relevant observations of the Supreme Court contained in paragraph No. 33 of the judgement are reproduced below :-

"33. We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice', 'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice, including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity inspite of the delinquent officer/employee asking for it. The prejudice is self- evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision.

(Emphasis added)

20. But, in Aligarh Muslim University and Others Vs. Mansoor Ali Khan, (2000) 7 SCC 529, the Supreme Court discussed the effect of non-compliance of a statutory provision which required that a prior notice had to be issued to an employee before any action could be taken against him by the authorities. Rule 5(8)(i) of the Leave Rules, 1969 (hereinafter referred to as, 'Rules, 1969) of Aligarh Muslim University dealt with consequences where an employee overstayed his leave. The rules provided that where an employee absented himself from duty without having previously obtained leave or failed to return to his duties on the expiry of leave without having previously obtained further leave, the competent authority would communicate with the employee concerned asking for an explanation and unless the competent authority regarded the explanation satisfactory, the employee concerned shall be deemed to have vacated the post, without notice, from the date of absence without leave. In the case before the Supreme Court, notice was not issued to the concerned employee under Rule 5(8)(i) of the Rules, 1969, and the University argued that the employee was deemed to have vacated his post under the aforesaid Rule even though no notice was issued to him. The Supreme Court, while considering the issue whether, in the circumstances of the case, interference by the courts in favour of the employee was called for, held that absence of notice to the employee had made no difference and no prejudice was caused to the employee even though no notice was issued to him under the Rules, 1969. The Supreme Court, relying on its judgement in S.L. Kapoor (Supra), observed that in the facts of the case, only one conclusion was possible and that if notice had been issued to the employee it would not have made any difference as the explanation offered by the employee would not have been treated as satisfactory explanation under Rule 5(8)(i). In light of its aforesaid findings, the Supreme Court held that no interference by the courts in favour of the employee was required. The relevant observations of the Supreme Court in paragraph Nos. 32 to 35 are reproduced below :-

"32. Let us then take two situations. An employee who is permitted to be abroad for two years on a job seeks extension for 3 years but is granted extension only for 1 year and is also told in advance that no further extension will be given and if he does not join after the 1 year extended period, he will be deemed to have vacated office. Let us assume that he does not join as advised and, in a given case, notice is given calling for his explanation. He replies stating that he had entered into a further commitment for 2 years and wants one more year of extension. The University refuses extension treating the explanation unsatisfactory and under Rule 5 (8)(i) deems that he has vacated his job. No fault can be found in the procedure. Let us take another situation where the officer does not join in identical circumstances but is not given notice under Rule 5 (8)(i). He has no other explanation - from what is revealed in his writ petition filed later - other than his further commitment abroad for 2 more years. In the latter case, it is, in our opinion clear that even if no notice is given, the position would not have been different because that particular explanation would not be treated as satisfactory had already been intimated to him in advance. Therefore, the absence of a notice in the latter situation must be treated as having made no difference. That is precisely the position in the case of Sri Mansoor Ali Khan.

33. Another important aspect of the matter is that no new reason has been projected in the Writ petition of Mr. Khan for his seeking further extension earlier while in Libya. The only reason stated is that he had obtained further extension in a job. It is not a case where there is a plea in the court that there were different grounds or reasons which he could have put in his explanation, if called for, such as ill health etc. Indeed, if the reasons could have been somewhat different, as may perhaps be disclosed or proved in a subsequent writ petition - such as his own failing health, one can understand. But so far as leave for purposes of job continuance in Libya, is concerned, he has been fully put on advance notice that no further extension will be given. It must be held that no prejudice has been caused even though no notice is given under Rule 5(8)(i).

34. We may add a word of caution. Care must be taken, wherever the court is justifying a denial of natural justice, that its decision is not described as a 'preconceived view' or one in substitution of the view of the authority who would have considered the explanation. That is why we have taken pains to examine in depth whether the case fits into the exception.

35. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr. Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason, that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L. Kapoor case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr. Mansoor Ali Khan under Point 5."

(Emphasis added)

21. Subsequently, the Supreme Court in Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others, (2015) 8 SCC 519 also held that, 'there was no legal duty to supply a hearing if a hearing would not change the ultimate conclusion reached by the decision-maker.' In Dharampal (Supra), the Supreme Court, while answering the question whether recovery proceedings could be initiated without a show-cause notice under Section 11-A of the Excise Act which was mandatory, held that a show cause notice was required to be issued before passing an order of recovery irrespective of the fact whether Section 11-A of the Excise Act was attracted in the case and it was not open for the authorities to dispense with the requirement of the rules of natural justice on the presumption that no prejudice was to be caused to the aggrieved persons by not issuing a show cause notice. At the same time, the Supreme Court observed, that the courts were empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice was caused to the person against whom the action was taken. In the aforesaid case, the Supreme Court, while holding that there was an infraction of the rules of natural justice refused to interfere on behalf of the assessee and remand back the matter to the concerned authority to take fresh decision after issuing a show cause notice to the assessee as such an exercise, in the facts of that case, would have been futile and no prejudice was caused to the assessee because of no show cause notice having been issued to him. In this regard the relevant observations of the Supreme Court are reproduced below :-

" 11.2. Whether recovery proceedings can be initiated without show-cause notice under Section 11-A of the Excise Act, which is mandatory?

37. Therefore, we are inclined to hold that there was a requirement of issuance of show-cause notice by the Deputy Commissioner before passing the order of recovery, irrespective of the fact whether Section 11-A of the Act is attracted in the instant case or not.

39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straight-jacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason - perhaps because the evidence against the individual is thought to be utterly compelling - it is felt that a fair hearing 'would make no difference' - meaning that a hearing would not change the ultimate conclusion reached by the decision-maker - then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corporation, who said that:

'...A breach of procedure...cannot give (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court dos not act in vain'.

Relying on these comments, Brandon LJ opined in Cinnamond v. British Airports Authority that:

'...no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing'. In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual.

40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of 'prejudice'. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing.

43. In view of the aforesaid enunciation of law, Mr Sorabjee may also be right in his submission that it was not open for the authority to dispense with the requirement of principles of natural justice on the presumption that no prejudice is going to be caused to the appellant since the judgment in R.C. Tobacco [(2005) 7 SCC 725] had closed all the windows for the appellant.

44. At the same time, it cannot be denied that as far as courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken. ....

45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco [(2005) 7 SCC 725].

47. In Escorts Farms Ltd. v. Commr. [(2004) 4 SCC 281] , this Court, while reiterating the position that rules of natural justice are to be followed for doing substantial justice, held that, at the same time, it would be of no use if it amounts to completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. It was so explained in the following terms: (SCC pp. 309-10, para 64)

"64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."

48. Therefore, on the facts of this case, we are of the opinion that non-issuance of notice before sending communication dated 23-6-2003 has not resulted in any prejudice to the appellant and it may not be feasible to direct the respondents to take fresh action after issuing notice as that would be a mere formality."

(Emphasis added)

22. It is apparent from the observations of the Supreme Court in Aligarh Muslim University (Supra) and Dharmpal (Supra), that failure on the part of the authorities to follow the rules of natural justice, including the rule of prior notice, before taking any adverse action against a person would not in itself be a cause to set aside the order of the authority if, on the admitted and undisputed facts, only one view, i.e., the view taken by the decision maker was possible and no prejudice was caused to the person complaining infraction of the rules of natural justice. A reading of the aforesaid judgements also shows that in such cases it would be immaterial that the rule is contained in a statutory provision couched in mandatory language.

23. The present writ petition has been filed complaining that the II-Proviso to Section 95(1)(g) of the Act, 1947, which incorporates a mandatory aspect of the rules of natural justice, i.e., no action shall be taken against a person without giving a prior notice of the allegations against him and without giving him a reasonable opportunity of representing against the proposed action, was not followed by respondent No. 2, i.e., District Magistrate while passing the impugned order dated 3.8.2018.

24. I proceed to consider the facts of the case in light of the law stated above. The only relevant factor for exercising powers under Section 95(1)(g)(v) read with Section 5-A(k) of the Act, 1947 is conviction of the concerned Gram Pradhan for an offence under the N.D.P.S. Act, 1985. No other factor is relevant for the aforesaid purpose and no other factor can be considered by the District Magistrate while exercising his powers under Section 95(1)(g)(v) read with Section 5-A(k) of the Act, 1947. The fact that an appeal has been filed against the order of conviction or the fact that the petitioner has been released on bail and the sentence awarded to the petitioner has been suspended in appeal are not relevant while exercising powers under Section 95(1)(g) read with Section 5-A(k) of Act, 1947. The fact that the petitioner has been convicted for an offence under the N.D.P.S. Act, 1985 is admitted by the petitioner. On the admitted and undisputed facts in the present case, no other view can be taken except that the petitioner was liable to be removed by the District Magistrate in exercise of his powers under Section 95(1)(g)(v) of the Act, 1947. Repeated queries made to the counsel for the petitioner as to the defence he could have possibly taken in the case, had he been issued a show cause notice under the II-Proviso to Section 95(1)(g) of the Act, 1947 and the difference it would have made, elicited no response except that the requirements contained in the II-Proviso to Section 95(1)(g) of the Act, 1947 were mandatory. It is evident that, on the admitted facts, only one view is possible and it is that the petitioner had incurred a disqualification under Section Section 5-A(k) of the Act, 1947 and was liable to be removed by the District Magistrate exercising his powers under Section 95(1)(g) of the Act, 1947. No prejudice has been caused to the petitioner due to non-compliance of II-Proviso to Section 95(1)(g) of the Act, 1947. For the aforesaid reasons it would be futile to set aside the impugned order passed by the District Magistrate and remand back the matter to the District Magistrate to pass fresh orders after issuing a show cause notice to the petitioner and after hearing the petitioner. It is not the practice of Courts to let an action succeed or fail on mere technical grounds.

25. At this stage it would be relevant to refer to the judgements of this court referred by the petitioner in support of his arguments. The judgement of this Court in Mahak Singh (Supra) is not applicable in the present case inasmuch as in the aforesaid case, the disqualification of the elected Gram Pradhan stood effaced and it was held by the court that the petitioner, in the said case, had not incurred any disqualification as mentioned in Clauses (a) to (m) of Section 5-A of the Act, 1947. In the present case, it is an admitted fact that the petitioner is convicted of an offence under the N.D.P.S. Act, 1985. The judgement of this Court in Shamim (Supra) also does not help the petitioner inasmuch as the aforesaid judgement merely holds that the power conferred on the District Magistrate under Section 95(1)(g) of the Act, 1947 is quasi judicial in nature and, therefore, before passing any order under Section 95(1)(g) of the Act, 1947 the District Magistrate was required to follow the rules of natural justice. It has been observed earlier that the II-Proviso to Section 95(1)(g) is mandatory. However, the issue in the present case is whether an order passed by the District Magistrate in exercise of his powers under Section 95(1)(g) should be set aside merely because of non-compliance of the II-Proviso to Section 95(1)(g) even though no prejudice was caused to the petitioner because of non-compliance of the said provision and because, on the admitted and undisputed facts, no view other than that the petitioner was liable to be removed as Gram Pradhan under Section 95(1)(g)(v), was possible. I have already answered the question in negative. The issue framed for consideration in the present case was not considered by the courts in Mahak Singh (Supra) and Shamim (Supra) and therefore the said judgements do not help the petitioner.

26. For the aforesaid reasons, it is not a fit case for interference under Article 226 of the Constitution of India.

27. The writ petition is dismissed.

Order Date :- 19.11.2018

Anurag/-