Bombay High Court
Ujwala W vs The Maharashtra Fisheries ... on 19 October, 2010
Bench: S.A. Bobde, Mridula Bhatkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
Writ Petition No.4814/2010
Ujwala Wd/o Uday Pimple,
aged about 41 Yrs., Occu. Service,
R/o 309, Sant Tukdoji Complex,
Belekar Layout, Nagpur - 400 027. ..Petitioner
..V/s..
1. The Maharashtra Fisheries Development
Corporation Limited,
a Govt. of Maharashtra Undertaking,
through its Managing Director,
R/o 3rd Floor, N.K.M. International House,
178, Backbay Reclamation,
B.M. Chinnai Road, Mumbai.
2. The Divisional Manager,
Maharashtra Fisheries Development
Corporation Ltd., Nagpur Division,
Adhyapak Bhavan, Ganeshpeth,
Nagpur - 440 018. ..Respondents
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Shri S.S. Godbole, Adv. for petitioner.
Shri P.C. Madkholkar, Adv. for respondents.
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CORAM :- S.A. BOBDE & MRS. MRIDULA BHATKAR, JJ.
DATED :- 19th OCTOBER, 2010.
ORAL JUDGMENT (per S.A. Bobde, J.)
1. Rule, returnable forthwith. Heard by consent of the parties.
2. The respondents have terminated the service of the petitioner
under the provisions of the Maharashtra Fisheries Development
Corporation (MFDC) Service Regulations by offering one month's pay
in lieu of notice. The only ground for termination of services of the
petitioner is that the petitioner was appointed by the order dated
22/2/2010 in pursuance of an advertisement dated 29/9/2009 and
that she had already crossed the age of 33 years which was the age
limit imposed in the advertisement.
3. The learned counsel for the petitioner submitted that the
termination is bad since there are no rules prescribing the maximum
age limit for appointment and that in the advertisement the
respondents arbitrarily imposed the age limit of 33 years. There is no
merit in this argument because it is open to an employee to impose
an age limit in the advertisement even if there is no age limit
prescribed in the Regulations. In any case the petitioner, at any
point of time, did not questioned the advertisement on the contrary
acted on the advertisement. The next contention of the petitioner is
that the order of termination of his services is contrary to the
principles of natural justice as no show cause notice has been issued.
4. Shri Madkholkar, learned counsel for respondents, relied
on the judgment of the Supreme Court in Aligarh Muslim University
and others V/s. Mansoor Ali Khan reported in (2000) 7 Supreme Court
Cases 529 where the Supreme Court has made the following
observations -
"21. As pointed recently in M.C. Mehta v. Union of
India1 there can be certain situations in which an order
passed in violation of natural justice need not be set aside
under Article 226 of the Constitution of India. For example
where no prejudice is caused to the person concerned,
interference under Article 226 is not necessary. Similarly, if
the quashing of the order which is in breach of natural
justice is likely to result in revival of another order which is
in itself illegal as in Gadde Venkateswara Rao v. Govt. of
A. P.2 it is not necessary to quash the order merely because
of violation of principles of natural justice.
22. In M.C. Mehta1 it was pointed out that at one time,
it was held in Ridge v. Baldwin3 that breach of principles of
natural justice was in itself treated as prejudice and that no
other "de facto" prejudice needed to be proved. But, since
then the rigour of the rule has been relaxed not only in
England but also in our country. In S.L. Kapoor v. Jagmohan4
Chinnappa Reddy, J. followed Ridge v. Baldwin3 and set aside
the order of supersession of the New Delhi Metropolitan
Committee rejecting the argument that there was no
prejudice though notice was not given. The proceedings
were quashed on the ground of violation of principles of
natural justice. But even in that case certain exceptions
were laid down to which we shall presently refer.
23. Chinnappa Reddy, J. in S.L. Kapoor case4 laid
down two exceptions (at SCC p.395) namely, if upon
admitted or indisputable facts only one conclusion was
possible, then in such a case, the principle that breach of
1 (1999) 6 SCC 237; 2 AIR 1966 SC 828 : (1966) 2 SCR 172;
4 (1980) 4 SCC 379. 3 1964 AC 40 : (1963) 2 ALL ER 66 (HL);
natural justice was in itself prejudice, would not apply. In
other words if no other conclusion was possible on admitted
or indisputable facts, it is not necessary to quash the order
which was passed in violation of natural justice. Of Course,
this being an exception, great care must be taken in
applying this exception.
24. The principle that in addition to breach of natural
justice, prejudice must also be proved has been developed
in several cases. In K.L. Tripathi v. State Bank of India5
Sabyasachi Mukharji, J. (as he then was) also laid down the
principle that not mere violation of natural justice but de
facto prejudice (other than non-issue of notice) had to be
proved.
It was observed, quoting Wade's Administrative
Law (5th Edn.,pp.472-75), as follows : (SCC p.58, para 31)
"[I]t is not possible to lay down rigid rules as to when
the principles of natural justice are to apply, nor as to their
scope and extent. .... There must also 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."
Since then, this Court has consistently applied the principle
of prejudice in several cases. The above ruling and various
other rulings taking the same view have been exhaustively
referred to in State Bank of Patiala v. S.K. Sharma6. In that
case, the principle of "prejudice" has been further
elaborated. The same principle has been reiterated again in
5. (1984) 1 SCC 43 : 1984 SCC (L&S) 62; 6 (1996) 3 SCC 364 : 1996 SCC
(L&S) 717.
Rajendra Singh v. State of M.P.7
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. Mehta1 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.
26. It will be sufficient, for the purpose of the case of
Mr. Mansoor Ali Khan to show that his case will fall within the
exceptions stated by Chinnapa Reddy, J. in S.L. Kapoor v.
Jagmohan4, namely, that on the admitted or indisputable
facts, only one view is possible. In that event no prejudice
can be said to have been caused to Mr Mansoor Ali Khan
though notice has not been issued."
7 (1996) 5 SCC 460; 1 (1999) 6 SCC 237; 4 (1980) 4 SCC 379.
Having regard to the above observations, we are of the view
that since it is an admitted fact that the petitioner reached the age of
42 years when she applied for the post and was appointed. The
present case is a case where the admitted and indisputable facts lead
only to one conclusion of termination and therefore, the issuance of
show cause notice was a useless formality.
5. It was next argued by the learned counsel for the
petitioner that the respondents have appointed the others who have
crossed the age limit of 33 years. Shri Madkholkar submits those two
appointments were made erroneously and in any case those two
persons have retired. In any case it is not possible to grant relief to
the petitioner on the ground that the petitioner has observed some
other illegalities, stated to have been committed by the respondents.
This Court will not direct the respondents in the exercise of its writ
jurisdiction to repeat an illegality assuming that it exists. There is no
merit in the petition. The writ petition is therefore, dismissed. Rule is
discharged. No order as to costs.
JUDGE JUDGE
Tambaskar.
