Allahabad High Court
Amit Kumar Sharma vs State Of U.P. Thru. Prin.Secy. Deptt. Of ... on 14 October, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:63562-DB
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
SPECIAL APPEAL No. - 340 of 2023
Amit Kumar Sharma
.....Appellant(s)
Versus
State Of U.P. Thru. Prin.Secy. Deptt. Of Medical Education Civil Secrt. Lko. And Others
.....Respondent(s)
Counsel for Appellant(s)
:
Ripu Daman Shahi
Counsel for Respondent(s)
:
C.S.C., Shubham Tripathi
Judgment Reserved on 16.09.2025 Judgment Delivered on 14.10.2025
Chief Justice's Court
HON'BLE ARUN BHANSALI, CHIEF JUSTICE
HON'BLE JASPREET SINGH, J.
(Per : Jaspreet Singh, J)
1. The appellant was the writ petitioner who had filed Writ-A No.14869 of 2019 (Amit Kumar Sharma Vs. State of U.P. and others) wherein he had challenged the impugned order dated 27.09.2018 whereby the respondent authorities had rejected his representation seeking joining service dated 05.10.2017 and as a consequence, his services were dispensed with. The writ court by means of judgment and order dated 10.05.2023 dismissed the writ petition on the premise that the writ petitioner had not completed his probation period and had left the service without sanction of leave and wanting to re-join the service after a gap of five years was not justified. Being aggrieved, the appellant has preferred the instant intra court appeal assailing the judgment and order dated 10.05.2023.
2. It is the case of the appellant that he was not provided with an opportunity of hearing and even though the appellant was a temporary employee on probation yet his services could not be dispensed with without holding an appropriate inquiry.
3. It was also pointed out that the order dated 27.09.2018 is stigmatic in nature and the same cannot be sustained as it was not open for the respondent to have dispensed the service of the appellant by a stigmatic order and without holding a regular inquiry and this aspect of the matter has not been appropriately considered by the learned Single Judge who dismissed the writ petition.
4. Learned counsel for the appellant has relied upon the decision of the Apex Court in Purshotam Lal Dhingra Vs. Union of India, AIR 1958 Supreme Court page 36 and Chandra Prakash Shahi Vs. State of U.P. and others, (2000) 2 UPLBEC 1661.
5. Shri Subham Tripathi, learned counsel appearing for the respondents has opposed the aforesaid submission and has submitted that the appellant had qualified as a Staff Nurse and he joined on 04.02.2011. He was placed in the Orthopedic Section of the King Georges Medical University ( in short K.G.M.U) and was on probation for a period of two years. The appellant remained absent from duty with effect from 13.11.2012 and did not move any application seeking leave nor he conveyed the reason for his absence. The University attempted to reach out to the appellant but the appellant could not be contacted.
6. A departmental inquiry was sought to be instituted, however, since the appellant did not respond nor he participated, hence the domestic inquiry was also abandoned.
7. After five years, the appellant moved a representation before the respondent University which was considered and rejected by the University by means of order dated 27.09.2018 which was based on facts admitted to the appellant to the effect that the appellant without notice and information remained absent without sanctioned leave for about five years and practically abandoning his service.
8. The fact that the appellant remained absent and absconded for more than five years without information was not disputed hence, if any domestic inquiry was to be held, it would have been a futile exercise. Accordingly, no rights of the appellant were affected hence, the order of the writ court does not require any interference and the instant appeal also deserves to be dismissed.
9. The Court has heard the submissions of the learned counsel for the parties and also perused the material on record.
10. The facts between the parties are not in dispute. It is not disputed that the appellant had qualified as a Staff Nurse and he was issued an appointment letter on 25.01.2011. In furtherance thereof, the appellant joined the department on 04.02.2011. It is also not disputed that the appellant was on probation for a period of two years and it is also not disputed that the appellant remained absconding and absent from duty without information and without any sanctioned leave with the effect from 13.11.2012.
11. From the record, it reveals that the department head found that the appellant was not working or turning up for his duties, hence this matter was reported to the higher authority and in furtherance thereof a charge-sheet was also issued but since the appellant did not participate or respond, hence the same was dropped and was not taken to its logical conclusion.
12. It is also not disputed that only on 05.10.2017, the appellant approached the Registrar of K.G.M.U seeking indulgence to join the service. In his said letter he offered to join and he merely indicated that the appellant had been posted as a Staff Nurse in the Orthopedic Section but due to certain personal difficulties he was absent from the department from 13.11.2012 and his absence may be condoned and he may be permitted to join the service. This representation dated 05.10.2017 was rejected by the respondent vide order impugned dated 27.09.2018.
13. From the perusal of the said order dated 27.09.2018 it would indicate that the facts which are undisputed were noticed and recorded and thereafter finding that there was no justifiable cause for the appellant to have remained absent which indicated his negligence and his disinclination to work, hence his representation was rejected.
14. In the aforesaid backdrop, the contention of the learned counsel for the appellant is that even though the appellant may not have completed his probation yet he was entitled for an opportunity of hearing and only after a regular inquiry was held, could any decision relating to termination of his service could be taken. Hence, the order suffers from the vice of being arbitrary, against the law relating to termination of service and also against the principles of natural justice.
15. Noticing the aforesaid submission and also taking into consideration the decision cited by the learned counsel for the appellant in Purshotam Lal Dhingra (supra) and Chandra Prakash Shahi (supra), it is true that even a temporary employee or employee on probation is entitled to an opportunity of hearing. However, the distinction is that any person whose services are found wanting the employer has the right of discontinuing his service by the end of the probation period.
16. The emphasis laid by the learned counsel for the appellant that the order had used the words that the appellant was negligent and was not inclined to work was stigmatic in nature and the services of the appellant could not be dispensed with without affording an opportunity of hearing especially when the order terminating the service was stigmatic.
17. In this regard, it will be relevant to notice the observations of the Apex Court in State of Punjab Vs. Sukhwinder Singh (2005) 5 SCC 569 wherein after considering the several decisions, the Apex Court in para 20 and 21 has held as under:- 20. In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was a habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of the Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16-3-1990 was, in fact, based upon misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh v. State of Punjab [(1983) 2 SCC 217 : 1983 SCC (L&S) 303 : AIR 1983 SC 494] the period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules. 21. For the reasons discussed above, we are of the opinion that the view taken by the High Court and also by the lower courts is wholly erroneous in law and must be set aside. The appeal is accordingly allowed and the judgment and decree passed by the High Court and also by the learned Sub-Judge and learned Additional District Judge are set aside. The suit filed by the plaintiff-respondent is dismissed.
18. In a later decision of the Apex Court, in State of Punjab and others Vs. Jaswant Singh (2023) 9 SCC 150 in paragraphs 4, 6, and 10 of the said report, noticed the facts and contentions of the employee thereafter it noticed earlier decisions of the Apex Court on the aforesaid point and in paragraphs 13, 15, 17, 18, 19 and 21, it laid down as under:- "13. Having heard the learned counsel for the parties and looking to the nature of the order passed against the respondent as quoted above, it is apparent that the respondent was discharged from service under Rule 12.21 of PPR as the appellants were of the opinion that the probationer constable was not likely to become an efficient police officer. In the said context, to appreciate the issue in detail, reference to Rule 12.21 of PPR is relevant and the same is reproduced hereinbelow: ?12.21. A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against an order of discharge under this rule.? ***** 15. The observations as made by the Full Bench of the High Court in Sher Singh case [Sher Singh v. State of Haryana, 1994 SCC OnLine P&H 166] have been approved by this Court in Sukhwinder Singh [State of Punjab v. Sukhwinder Singh, (2005) 5 SCC 569 : 2005 SCC (L&S) 705] wherein it was observed that this Court is in agreement with the view taken by the Full Bench of the High Court. In the said case, this Court relied upon the judgment of Punjab Police v. Dwarka Das [Punjab Police v. Dwarka Das, (1979) 3 SCC 789 : 1979 SCC (L&S) 348] , in which also Rule 12.21 and Rule 12.21(3) of PPR were dealt with, and it was held that the Superintendent of Police has the power to discharge the probationer within the period of probation. ***** 17. Similarly, this Court in Ravindra Kumar Misra v. U.P. State Handloom Corpn. Ltd. [Ravindra Kumar Misra v. U.P. State Handloom Corpn. Ltd., 1987 Supp SCC 739 : 1988 SCC (L&S) 361] , while dealing with the case of termination of a temporary employee, made a distinction between simpliciter termination and punitive termination applying the test of motive and foundation. This Court clarified the said distinction and observed as under : (SCC p. 746, para 6) ?6. As we have already observed, though the provisions of Article 311(2) of the Constitution do not apply, the Service Rules which are almost on a par make the decisions of this Court relevant in disposing of the present appeal. In several authoritative pronouncements of this Court, the concept of ?motive? and ?foundation? has been brought in for finding out the effect of the order of termination. If the delinquency of the officer in temporary service is taken as the operating motive in terminating the service, the order is not considered as punitive while if the order of termination is founded upon it, the termination is considered to be a punitive action. This is so on account of the fact that it is necessary for every employer to assess the service of the temporary incumbent in order to find out as to whether he should be confirmed in his appointment or his services should be terminated. It may also be necessary to find out whether the officer should be tried for some more time on temporary basis. Since both in regard to a temporary employee or an officiating employee in a higher post such an assessment would be necessary merely because the appropriate authority proceeds to make an assessment and leaves a record of its views the same would not be available to be utilised to make the order of termination following such assessment punitive in character. In a large democracy as ours, administration is bound to be impersonal and in regard to public officers whether in government or public corporations, assessments have got to be in writing for purposes of record. We do not think there is any justification in the contention of the appellant that once such an assessment is recorded, the order of termination made soon thereafter must take the punitive character.? 18. In the same context, this Court in Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences [Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences, (2002) 1 SCC 520 : 2002 SCC (L&S) 170] has reiterated the same principle in the matter of termination of a probationer. It has been observed as thus : (SCC pp. 529-30, para 29) ?29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking, when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.? 19. After considering the various pronouncements on the similar issue, this Court in Sukhwinder Singh [State of Punjab v. Sukhwinder Singh, (2005) 5 SCC 569 : 2005 SCC (L&S) 705] in para 20 observed as thus : (SCC pp. 580-81) ?20. In the present case neither any formal departmental inquiry nor any preliminary fact-finding inquiry had been held and a simple order of discharge had been passed. The High Court has built an edifice on the basis of a statement made in the written statement that the respondent was a habitual absentee during his short period of service and has concluded therefrom that it was his absence from duty that weighed in the mind of the Senior Superintendent of Police as absence from duty is a misconduct. The High Court has further gone on to hold that there is direct nexus between the order of discharge of the respondent from service and his absence from duty and, therefore, the order discharging him from service will be viewed as punitive in nature calling for a regular inquiry under Rule 16.24 of the Rules. We are of the opinion that the High Court has gone completely wrong in drawing the inference that the order of discharge dated 16-3-1990 was, in fact, based upon misconduct and was, therefore, punitive in nature, which should have been preceded by a regular departmental inquiry. There cannot be any doubt that the respondent was on probation having been appointed about eight months back. As observed in Ajit Singh v. State of Punjab [Ajit Singh v. State of Punjab, (1983) 2 SCC 217 : 1983 SCC (L&S) 303] the period of probation gives time and opportunity to the employer to watch the work, ability, efficiency, sincerity and competence of the servant and if he is found not suitable for the post, the master reserves a right to dispense with his service without anything more during or at the end of the prescribed period, which is styled as period of probation. The mere holding of preliminary inquiry where explanation is called from an employee would not make an otherwise innocuous order of discharge or termination of service punitive in nature. Therefore, the High Court was clearly in error in holding that the respondent's absence from duty was the foundation of the order, which necessitated an inquiry as envisaged under Rule 16.24(ix) of the Rules.? ***** 21. In view of the principles as reiterated in various judgments by this Court, if we examine the facts of the case in hand leading to the order of discharge, then it is crystal clear that the respondent-plaintiff was appointed as a constable and joined the duties on 12-11-1989 on probation. During probation, while he was on training, he along with other trainee constables was deputed for law and order duty in Amritsar District on 24-11-1990. The respondent-plaintiff and other recruits were relieved from the said duty and reported back at the Training Centre, except the respondent-plaintiff, who remained on prolonged absence without any intimation to the Training Centre. The SP, Training Centre, vide Memorandum dated 21-2-1991, made a recommendation to SSP that the respondent-plaintiff had not shown any interest in the training and lacks sense of responsibility, further recommending that he is unlikely to prove himself as a good and efficient police officer, hence, he may be discharged under Rule 12.21 of PPR. From perusal of the said Rule, it is apparent that in case a probationary constable is found unlikely to prove an efficient police officer, he may be discharged by the Senior Superintendent of Police at any time within three years from the date of enrolment. The SSP relying upon the recommendation of the supervising officer (SP, Training Centre) formed an opinion that the probationary constable is found unlikely to prove an efficient police officer owing to his demeanour as reported and discussed hereinabove.
19.Applying the principle as noticed above, this Court finds that in so far as the order dated 27.09.2018 is concerned, the same only notices the undisputed and admitted facts. The said order is not an order passed in any domestic inquiry rather it is a reply to the representation moved by the appellant himself seeking to join service after being absent without leave for about five years. It is not disputed that there is no reference to any given fact, indicating the cause for such absence of more than five years even in the letter dated 05.10.2017. There is no mention as to why the appellant did not join and serve in the department for five years except for a bald statement that for some personal reason he was unable to continue his service. In this regard, if the averments made in the writ petition and the rejoinder-affidavit filed before the writ court is seen, it would reveal that there is no cause shown except to say that there were certain domestic problems which kept the appellant away for more than five years. There has been no clear explanation nor any material as to what prevented the appellant from joining the service for about five years. It is also not disputed that the appellant did not even complete his probation.
20. It is now well settled that at the end of the probation period confirmation is not automatic. After successful completion of the probation a confirmation order is passed. However, in the instant case admittedly the appellant remained absconding while he was on probation and at the end of the two years probation period, no order for confirmation was passed. Thus, the services of the appellant stood dispensed with at the end of the two years period in absence of any confirmation order.
21. Merely because the word 'negligent' and 'disinclination' have been used for the appellant in the order dated 26.09.2018 does not make it stigmatic as noticed by the Apex Court in Jaswant Singh (supra).
22. In the given set of facts, it would indicate that even though domestic inquiry had been initiated but was abandoned due to non participation of the appellant coupled with the fact that no order was passed in the domestic proceedings. In the given fact situation even if an inquiry was to be held, it would have been a futile exercise as the facts are not disputed and the employer is well within its right to dispense with the service of its employee who had not completed his probation and remained absconding for about five years without any sanctioned leave.
23. Denial of an opportunity of hearing and an order being passed without complying with the principle of natural justice was considered by a Co-ordinate Bench of this Court in Durgawati Singh v. Deputy Registrar, Firms, Societies & Chits Lucknow, 2022 SCC OnLine All 10, wherein one of us (Jaspreet Singh, J.)was a member and after taking note of several decisions of the Apex Court, the Co-ordinate Bench held as under:-
"32. In Dharampal Satyapal Ltd., (supra), the Apex Court after noticing the concept of natural justice and its jurisprudential evolution over the years in light of the previous decisions has noticed as under:?
?20. Natural justice is an expression of English Common Law. Natural justice is not a single theory?it is a family of views. In one sense administering justice itself is treated as natural virtue and, therefore, a part of natural justice. It is also called ?naturalist? approach to the phrase ?natural justice? and is related to ?moral naturalism?. Moral naturalism captures the essence of commonsense morality?that good and evil, right and wrong, are the real features of the natural world that human reason can comprehend. In this sense, it may comprehend virtue ethics and virtue jurisprudence in relation to justice as all these are attributes of natural justice. We are not addressing ourselves with this connotation of natural justice here.
21. In Common Law, the concept and doctrine of natural justice, particularly which is made applicable in the decision-making by judicial and quasi-judicial bodies, has assumed a different connotation. It is developed with this fundamental in mind that those whose duty is to decide, must act judicially. They must deal with the question referred both without bias and they must give (sic an opportunity) to each of the parties to adequately present the case made. It is perceived that the practice of aforesaid attributes in mind only would lead to doing justice. Since these attributes are treated as natural or fundamental, it is known as ?natural justice?. The principles of natural justice developed over a period of time and which is still in vogue and valid even today are:
(i) rule against bias i.e. nemo debet esse judex in propria sua causa; and
(ii) opportunity of being heard to the party concerned i.e. audi alteram partem. These are known as principles of natural justice. To these principles a third principle is added, which is of recent origin. It is the duty to give reasons in support of decision, namely, passing of a ?reasoned order?.
22. Though the aforesaid principles of natural justice are known to have their origin in Common Law, even in India the principle is prevalent from ancient times, which was even invoked in Kautilya's Arthasastra. This Court in Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : AIR 1978 SC 851] explained the Indian origin of these principles in the following words : (SCC pp. 432-33, para 43)
?43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the hone [Ed. : The word ?hone? is usually used as a verb, meaning ?to sharpen?. Rarely, it is also used a noun, as here, meaning ?whetstone?.] of healthy government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed from the legendary days of Adam?and of Kautilya's Arthasastra?the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.?
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38. ? The principles of natural justice are very flexible principles. They cannot be applied in any straitjacket formula. It all depends upon the kind of functions performed and to the extent to which a person is likely to be affected. For this reason, certain exceptions to the aforesaid principles have been invoked under certain circumstances. For example, the courts have held that it would be sufficient to allow a person to make a representation and oral hearing may not be necessary in all cases, though in some matters, depending upon the nature of the case, not only full-fledged oral hearing but even cross-examination of witnesses is treated as a necessary concomitant of the principles of natural justice. Likewise, in service matters relating to major punishment by way of disciplinary action, the requirement is very strict and full-fledged opportunity is envisaged under the statutory rules as well. On the other hand, in those cases where there is an admission of charge, even when no such formal inquiry is held, the punishment based on such admission is upheld. It is for this reason, in certain circumstances, even post-decisional hearing is held to be permissible. Further, the courts have held that under certain circumstances principles of natural justice may even be excluded by reason of diverse factors like time, place, the apprehended danger and so on.
39. ? While emphasising that the principles of natural justice cannot be applied in straitjacket 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 Corpn. [[1971] 1 WLR 1578 : (1971) 2 All ER 1278 (HL)], who said that : (WLR p. 1595 : All ER p. 1294)
?? 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 does not act in vain.?
Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [[1980] 1 WLR 582 : (1980) 2 All ER 368 (CA)] that : (WLR p. 593 : All ER p. 377)
?? 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 the ?right? result can be secured without according such treatment to the individual.
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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. This was so clarified in ECIL [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] itself in the following words : (SCC p. 758, para 31)
?31. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the court/tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the court/tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the court/tribunal should not interfere with the order of punishment. The court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the courts/tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the court/tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.?
33. Lately, the Apex Court in State of U.P. v. Sudhir Kumar, 2020 SCC OnLine SC 847 had the occasion to consider the issue once again and after noticing a large number of authorities and previous decisions, culled out the following principles noted in Para 39, which reads as under:?
?39. An analysis of the aforesaid judgments thus reveals:
(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
(5) The ?prejudice? exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.?
34. Applying the principles as extracted above to the facts of the present case, it would indicate that the appellants herein were not heard nor they participated before the Deputy Registrar at the time of passing of the order dated 07.12.2018. The dispute before the Deputy Registrar as well as before the learned Single Judge was primarily between Udai Bhan Misra and Ajit Kumar Jaiswal, Committee of Management. As held by the learned Single Judge that the order passed by the Deputy Registrar was without considering the relevant documents before it and the matter is to be decided afresh after affording opportunity to the parties concerned."
24. From the above, it would reveal that it is not a mere deprivation of an opportunity of hearing alone which would matter rather a person alleging violation of principles of natural justice is also required to indicate what prejudice has been caused and in the instant case apparently in the admitted fact scenario the appellant could not demonstrate any prejudice, since no material was brought on record to indicate what more could have been placed on record or pleaded by the appellant, if an inquiry would have been held, which could have turned the tables. Hence, the submission of the learned counsel for the appellant does not impress this Court.
25. There is also another way to look at the issue and that is, a writ petition is a purely discretionary and an extraordinary remedy. In order to invoke the same, a person must have a subsisting right and it must be shown that even though there is an infringement of a legal right and the law may be on his side but if equity is against him even then a writ court is justified in refusing to grant the relief or entertain the petition. This principle was recently reiterated by the apex court in Central Council for Research in Ayurvedic Sciences v. Bikartan Das, (2023) 16 SCC 462, wherein it was held :-
"48. Before we close this matter, we would like to observe something important in the aforesaid context:
Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari.
49. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of the Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.
50. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.
26. In the given facts and circumstances, the learned Single Judge has refused to entertain the petition specifically noting that the appellant had not completed his probation admittedly and that was the foundation of the order and this view in itself cannot be said to be perverse; inasmuch as once a view has been taken by the Writ Court which was plausible and merely because another view may be possible, the appellate court is not required to interfere.
27. It will be worthwhile to notice that as far as the settled proposition which has been noticed by the Apex Court in Chandra Prakash Shahi (supra) and Purshotam Lal Dhingra (supra) is concerned, is not disputed but its applicability to the peculiar facts of the present case is doubtful, hence, this Court is not inclined to entertain the appeal to take a different view than the one taken by the learned Single Judge. 28. For the aforesaid reasons, this Court does not find that there is any merit in the appeal which is accordingly dismissed. The judgment and order passed by the learned Single Judge dated 10.05.2023 in Writ-A No.14869 of 2019 is confirmed. There shall be no order as to costs.
(Jaspreet Singh,J.) (Arun Bhansali,CJ.)
October 14, 2025
ank
