V.P. Singh & Others vs Union Of India & Others
1999 Latest Caselaw 1015 Del

ORDER

A.K. Sikri, J.

1. This petition raises short but interesting question of law. Petitioners were selected as Associate N.C.C. Officers and were doing the course at Officers Training School, Kamptee, Nagpur, Maharashtra. In the midst of session, the petitioners got movement orders in the form of "return to their unit" and were not allowed to complete the course. The reason was their acts of indiscipline in the Mess. The question to be determined is as to whether Principles of Natural Justice before taking the action were attracted? If so, to what extent and whether the respondents have violated the Principles of Natural Justice thereby rendering the impugned action illegal?

2. The facts which encompass the controversy are brief and largely undisputed. Let these be recapitulated first.

3. Petitioners are School Teachers, teaching in different Government runs schools in different parts of country. Respondent No. 2 is the Director General, Directorate of N.C.C. Government of India. It is governed by National Cadet Corpus Act, 1948. This Act, was enacted to provide for the Constitution of a National Cadet Corps (hereinafter to be called as "N.C.C." for short). Section- 3 provides for the Constitution of N.C.C. and stipulates that there shall be raised and maintained in the manner hereinafter provided a Corps to be designated the N.C.C. Section- 6 provides for Enrollment of students as cadets Section- 9 which is relevant for the present case provides for Appointment of Officers and reads as under:

"Section 9. Appointment of Officers. - The Central Government may provide for the appointment of officers in or for any unit of the Corps either from amongst members of the staff of any University or school or otherwise and may prescribe the duties, powers and functions of such officers."

4. Section- 13 empowers Central Government to make Rules to carry out the objects of this Act. Rules have been framed under this Section by the Central Government which are called National Cadet Corps Rules, 1948 (hereinafter to be called as "Rules" for short). Part-IV of these Rules deal with appointment of officers.

5. A person desirous of being appointed as an officer can submit an application as per procedure prescribed under Rule-17. Once this application is forwarded after proper verification under Rules-18, on being satisfied that the concerned person fulfills the eligibility condition/qualification for appointment as per Rule-16, the applicant is to appear before Selection Board. Selection and appointment of N.C.C. Officer in a State is done by the Board. If Selection Board recommends the applicant for appointment as an officer in the N.C.C., the applicant is required to sign a declaration in Form-III. The President of the Selection Board on being satisfied that applicant understands the questions put to him and consents to the conditions of service, shall sign a certificate to that effect on the said Form. Thereafter the State Government directs the applicant to proceed to an Army unit for undergoing training for periods of time specified in Part-VIII of these rules. On completion of the training, applicant is to report on and his application together with the report is sent to the Ministry of defense, Government of India. If the Government of India is satisfied that applicant is suitable and qualified for the appointment as an Officer in the N.C.C., it will commission him as an Officer in the N.C.C.

6. The petitioner's were recommended by Selection Board and, accordingly, State Government had directed these petitioners to undergo the training which was for a period of three months which began on 30th November, 1998 and this training was scheduled to be over by 27th February, 1999. However, on 5th February, 1999 at Mess-B an ugly incident took place. According to the petitioners on 5th February, 1999 at Mess-B while the dinner was being served to the N.C.C. Officers, the Mess Havildar Shri Etale in a drunken state started quarreling to the N.C.C. Officers and stopped the waiters to serve food. Court of inquiry was set up which was headed by Major K.S. Mohan as Presiding Officer supported by Captain Pradeep and Subedar Rathore as Members. After the inquiry was over on 12.2.99 three petitioners were declared "Return To The Unit" (for short "RTU"). On 13.2.99 other two petitioners were also given the same orders. This writ petition has been filed against the orders dated 12.2.99 and 13.2.99 on the ground that these orders are arbitrary, unconstitutional, discriminatory being violative of Articles 14 and 16(1) of the Constitution of India and as well as Principles of Natural Justice. It is contended that petitioners were not given any opportunity to defend charges at any stage either in the Court of Inquiry or even after the orders of RTU.

7. Counter-affidavit has been filed by the respondents in which it is stated that the orders of RTU were passed after charges against them were considered by a duly constituted Court of Inquiry which recorded the statements of all those who were involved in the incident in the Mess. These charges are dealt with in accordance with Rule 39(1)(b) of the NCC Rules. It is further stated that petitioners had made representation to DG NCC against the impugned orders and DG had passed orders dated 8.3.99 permitting all the petitioners to attend next PRCN Course, provided their Group Commanders and Principals certify that the Officer Cadets are recommended to undergo the course, have displayed requisite officer like qualities and maintained good discipline. During the course of the arguments, record of Court of Inquiry was also produced. The record of Court of Inquiry reveals that statements of various witnesses have been recorded. After the statement of each witness Court of Inquiry put questions to such witnesses and answer to these questions are also recorded. After recording these statements which run into 77 pages, the Court of Inquiry gave its findings (at pages 80 to 89) and its opinion which is at pages 90-91. It would be appropriate to reproduce the opinion of the Court of Inquiry which is given in the following words :

OPINION OF THE COURT

"The Court is of the opinion that :-

(a) The incident that took place in the 'B' Cadet Mess on 05 Feb., 99 between 2020-h to 2245-h was the result of 'crowd' like behavior of PRCNJD Course Ser 130. The following were Ring Leaders :-

(i) O/c V.P. Singh

(ii) O/c Kamaljeet Singh

(iii) O/c Paramjit Singh

(iv) O/c J.S. Rathore

(v) O/c Chandersekhar

(b) O/c V.P. Singh is to be blamed for instigating the course, (on 05 Feb., 99 and two earlier occasions) preventing the course Senior and the NCOs from performing their duties, levelling false allegations against Havildar Yetle for being absent from his place of duty as course QM and for trying to influence the court.

(c) O/c Kamaljeet Singh is to be blamed for instigating the course, preventing the course senior and the NCOs from performing their duties.

(d) O/c Paramjeet Singh is to be blamed for preventing the course senior from performing his duties, for instigating the course, telling lies and being indifferent and non-cooperative with the court.

(e) O/c. J.S. Rathore is to be blamed for instigating the course, preventing the course senior from performing his duties, levelling false allegations against the Mess Hav. and for harassing the Mess Hav.

(f) O/c. Chander Sekhar is to be blamed for being the main instigator, preventing course senior from performing his duties and not permitting Hav. Sohan Singh from interacting with the course senior and for abusing O/c V.P. Singh the course QM.

(g) Exemplary disciplinary action be considered against above blamed O/cs to set an example and be considered for withdrawal from the course as they are likely to be 'long term problems for NCC'.

Presiding Officer

IC 38547M Maj K.S. Mohan

Members

IC 50859P Capt P.S. Babarkar

JC 205684 Sub V.S. Rathore.

8. On the said opinion Dy. Commandant and CI gave his recommendations agreeing with the opinion of the Court and recommending exemplary disciplinary action in the form of the withdrawal of the petitioners from attending the course. Based on the said recommendation Commandant while agreeing with the opinion of the Court directed withdrawal of the petitioners from the course. It is in these circumstances orders were passed against the petitioners.

9. At this stage, it would be appropriate to refer to Part-X of the Rules which deals with 'DISCIPLINE'. Rule-38 in this Chapter stipulates the acts which may constitute offences. It is not disputed that the so called acts committed by the petitioners would fall under Rule-38. Rule-39 deals with 'Disposal of offences' and as the respondents have sought to cover the present case under Rule-39(1)(b), the same is reproduced below :

Rule-39 Disposal of Offences-(1) A charge made against an officer or an applicant for appointment as an officer for any offence specified in Rule 38 shall after investigating by the Officer Commanding an Armed Forces unit to which the offender is attached for training or by the Officer Commanding the unit to which the offender belongs or by the Headmaster of the school which is providing the unit or part thereof of the Junior Division to which the offender belongs, be dealt with by him in one or other of the following ways, that is to say, he may :-

(a).....

(b) dispose of the case summarily.

10. On the basis of the aforesaid provisions, it is contended by Mr. Jayant Bhushan, counsel for the respondents that it was within the powers of the respondents to dispose of the case summarily. However, before passing the impugned orders, the Court of Inquiry was duly constituted. This Inquiry recorded the statements of those who were involved in the incident at Mess. Based on the opinion of the Court of Inquiry and the recommendations of the superior officers accepting the opinion, orders of RTU were passed. Therefore, impugned orders were passed after complying with the requirements as per Rule-39(i)(b) of the Rules. According to Mr. Jayant Bhushan since these Rules authorise the respondents to dispose of the case summarily, it was not necessary to hold detailed inquiry or to issue any show cause notice to the petitioners. It is further submitted that the action of the respondents is fair and proper and not arbitrary inasmuch as Court of Inquiry has come to a definite finding on the basis of which impugned orders are passed.

11. On the other hand Mr. V.K. Shali counsel for the petitioners argued that the impugned orders are punitive in nature and visit the petitioners on the civil and/or evil consequences. Therefore, it was necessary for the respondents, before taking any action, to issue show cause notice to enable the petitioners to reply to the same in consonance with the Principles of Natural Justice. It is further submitted that Court of Inquiry has been held at the back of the petitioners without giving any opportunity to the petitioners and, therefore, the petitioners are condemned unheard. Reliance is placed on the judgment of Supreme Court in the case of Maneka Gandhi Vs. Union of India .

12. I have considered the respective submissions of both the parties.

13. In Mahon Vs. Air New Zealand (1984) 3 All ER 201 Lord Diplock classified the following three grounds on which administrative action is subject to judicial review : (i) Illegality, (ii) Irrationality and (iii) Procedural impropriety. He also explained the meaning of the aforesaid terminology and it would be appropriate to quote his own words :

"Illegality", according to him, "implies that the decision maker must understand the law correctly that regulates his decision making powers and must give effect to it. Whether he has this power or not is par excellence and justifiable question to be decided in the event of dispute by the Judges by whom the judicial power of the State is exercisable."

By irrationality, he says, "I mean what can by now be succinctly referred to as "Wednesbury's unreasonableness" [See, Associated Provincial Picture House Ltd. Vs. Wedensbury Corporation (1948) 1 K.B. 223]. It applies to a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Irrationality "by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial reviews".

As regards procedural impropriety, he prefers "procedural impropriety rather than "procedural fairness" towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that expressly laid down in the legislative instrument by which such failure does not involve any denial of natural justice."

14. Non-observance of Principles of Natural Justice would come under the ground "procedural impropriety". It is well known that the Principles of Natural Justice encompass two Principles, namely: (1) That no man shall be judge in his own cause. (This is derived from the Latin maxim, namely, 'Nemo debet essa judex propria sua causa:) (2) That no man shall be condemned unheard. (This is also derived from a Latin maxim, namely 'Audi alterm Partem).

15. By recent decisions third principle is also introduced i.e. (3) That the concerned authority shall pass speaking order giving reasons in support of its order.

16. In the present case we are concerned with the second Principle of Natural Justice.

17. The case of Ridge Vs. Baldwin (1964) A.C. 40 decided by House of Lords is recorded as a landmark in the annals of the jurisprudence of natural justice relating to the Principle of 'Audi alteram Partem' which set at rest the doubts which had previously arisen so to the efficacy of the rule, particularly in the wake of privy council decision in Nakkuda Ali Vs. V. Jayaratne (1951) AC 66. In India also the aforesaid decision has been quoted with approval by Supreme Court in number of cases. In the case of State of Punjab Vs. K.R. Erry the Supreme Court made following pertinent observations.

"The law on the point is not in doubt. Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the Principles of natural justice audi alteram partem applies. With the proliferation of administrative decisions in the welfare State it is now further recognised by courts both in England and in this country, especially after the decision of House of Lords in 1964 AC 40 that where a body or authority is characteristically administrative, the Principles of Natural justice is also liable to be invoked if the decision of that body or authority affects individual rights or interests and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard.

An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defense and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to this prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed, it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercised of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence".

In S.N. Mukherjee Vs. Union of India 1991(1) SLJ 1 Supreme Court ruled that except in cases where the requirement and observance of Principles of Natural Justice have been dispensed with expressly or impliedly by statute, the Principles of Natural Justice should invariably be followed wherefrom the order is going to visit the concerned person with civil and/evil consequences.

18. In S.L. Kapoor Vs. Jagmohan and Ors., Supreme Court went on to make the following observations:

"That the admitted or undisputed facts would have led to the same conclusion whether Principles of Natural Justice are observed or not is absolutely no ground for its exclusion. A separate showing of prejudice caused is not necessary. The non-observance of natural justice is in itself a prejudice caused. But the finding that principles of natural justice have not been observed does not mean that a writ will necessarily issue. The Court may not issue its writ to compel the observance of natural justice not because it is not necessary to observe natural justice but because courts do not issue futile writs. Hence merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed. Justice must not only be done but also seen to be done."

19. In view of the aforesaid position in law, it was inevitable for the respondents to adhere to the Principles of Natural Justice before taking the impugned decision. The question to be considered now is as to whether the procedure followed by the respondents amounts to sufficient compliance of the Principles of Natural Justice. As noticed above, Court of Inquiry was held, it recorded the statements of various witnesses on the basis of which it gave its opinion and acting on the said opinion impugned order was passed by the competitive authority. However, fact remains that petitioners were not associated into the inquiry conducted by Court of Inquiry that is to says witnesses were not recorded in their presence nor have they crossed examined these witnesses. After the Court of Inquiry gave its opinion no show cause notice was given to the petitioners before taking the impugned action. Counsel for the respondents has relied upon Rule-39(1)(b) to contend that it was competent for the concerned authority to dispose of the case summarily and, therefore, summary procedure was followed by the conducting Court of Inquiry and passing the order based on the finding of the said Court of Inquiry. Even when the case is to be disposed of "Summarily" that does not mean that the requirement of even show cause notice before taking action is to be dispensed with Disposing of the case summarily only means that no full-fledged inquiry is required to be conducted. However, still it is the elementary Principles of Natural Justice that the person should be given the show cause notice stating the allegation against him and the proposed action to be taken on that basis so that he is given a chance to state his version and only thereafter the competent authority should pass appropriate order after considering his reply to the show cause notice. For this purpose one can take assistance from the procedure prescribed under CCS [(CCA) Rules, 1965] for imposing major & minor penalties i.e. by comparing the procedure a prescribed under Rule 16 of the CCS [(CCA) Rules, 1965] for imposition of minor penalty proceedings in contradistinction to the procedure prescribed under Rule 14 of the CCS [(CCA) Rules, 1965] for major penalty proceedings. Under Rule 16, for initiating minor penalty proceedings although no full-fledged inquiry is required as contemplated in Rule-16 of the said Rules but procedure for issuing show cause notice with proposed penalty is prescribed which is clearly inconsonance with principles of Natural Justice. Rule-16 also prescribes "summary procedure". Therefore, Rule-39(1)(b) of the NCC Rules,1948 has to be interpreted in a manner where principles of Natural Justice are to be followed in the manner explained above, namely, giving of show cause notice stating allegation against concerned person so that the concerned person is given opportunity to explain his side of the case.

20. Accordingly, I hold that passing of the impugned order without giving show cause notice to the petitioners was not inconsonance with Rule 39(1)(b) of the NCC Rules 1948 as well as Principles of Natural Justice which are to be read in the said Rules.

21. Now we come to the fundamental question, viz., to what relief petitioners are entitled to in the facts and circumstances of the present case? Normally when there is a violation of Principles of Natural Justice, the impugned order should be treated as nullity. However, the Principles of voidness is not applied in every case as a matter of course. The Courts have good deal of discretion in awarding relief in a particular case and pragmatic considerations are to be taken into account while considerating the question of relief rather than acting mechanically. What is to be borne in mind in the present case is that the petitioners were already given the RTU order and their training was snapped in between. Moreover they are still working as teachers and they were selected to be appointed as NCC officers only after the completion of training. After the impugned order, on their representation the competent authority had passed the order allow-

ing them to undergo the said training afresh. Moreover the impugned order was not passed arbitrarily but only after the Court of Inquiry was conducted which examined number of witnesses and gave its opinion on the basis of statement of these witnesses. Then, the respondents are not barred from taking the same action again after observing Natural Justice.

22. In view of aforesaid peculiar facts, it would not be in public interest to set-aside the impugned order which may have the effect of putting back the petitioners in the same position in which they were at the time when their further training was terminated. On the other hand the impugned orders are kept in abeyance. It would be appropriate, if the respondents now serve a show cause notice to the petitioners stating the allegations against them and the proposed action which the respondents intend to take on the basis of said show cause notice and giving petitioners an opportunity to reply to the said show cause notice. Thereafter only the competent authority should take the decision, with open mind after duly consideration the version of the petitioners, as to whether it confirms its earlier order or pass some other order. It would be appropriate for the competent authority to pass speaking order. This whole process be completed within one month from today. Till such an order is passed after giving opportunity to the petitioners in the aforesaid manner, petitioners would not be entitled to complete the remaining training. However, if the petitioners so opt, they can be allowed to join the training afresh, as order to that effect has already been passed by the respondents. With the aforesaid observations, this writ petition is disposed of. There shall be no orders as to costs.