University Of Delhi And Others vs Harpal Singh Sangwan
2010 Latest Caselaw 4727 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Judgment Reserved on :13th September, 2010
%                                  Judgment Pronounced on : 7th October, 2010

+                                LPA No.535/2008

University of Delhi and others                          .... Appellants
                                 Through: Mr.M.J.S. Rupal, Advocate

                                        versus

Harpal Singh Sangwan                                    ....Respondent

Through: Mr.K. Venkatraman, Advocate

CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN

1. Whether reporters of the local papers be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

DIPAK MISRA, CJ

In this intra-Court appeal, the appellant-University (hereafter referred to as

„the appellant‟) has called in question the legal acceptability of the order dated 15 th

July, 2008 passed by the learned Single Judge in WP(C) No.6512/2007.

2. The facts which have been uncurtained are that the respondent-writ

petitioner (hereinafter referred to as „the respondent‟) was a student of M.A.

(Russian) in the Department of Slavonic and Finno Ugrain Studies in the appellant

University in 2005-07. He appeared in the final year examination in the said

course and at that stage he also appeared in the entrance examination for the Post

Graduate course in "Hindi Journalism" for the academic session 2007-08. His

result of the MA (Russian) final year examination was declared on 2nd August,

2007. As set forth, the result of the entrance examination for Post Graduate course

in Hindi Journalism was published in the first week of August, 2007 and the name

of the respondent was initially displayed in the list of successful candidates but the

same was substituted by another list which did not reflect his name. At this stage,

the respondent received a communication dated 30th July, 2007 whereby the

University, in exercise of powers vested under Ordinance XV-B, directed that the

respondent be not admitted in any course in the University of Delhi for a period of

next five years. Because of the said notification, he was denied the admission to

Post Graduate Course in Hindi Journalism. Being dissatisfied with the said

communication and action of the University, the respondent invoked the

jurisdiction of this Court under Article 226 of the Constitution of India for issue of

a writ of certiorari for quashment of the said notification dated 30th July, 2007

issued by the University and further to command the University to extend the

benefit of admission in any course and further to consider his candidature for the

Post Graduate Course in Hindi Journalism.

3. During the pendency of the writ petition, the University issued a notification

on 26th November, 2007 stating that the competent authority had decided to grant

post-decisional hearing to the respondent and accordingly constituted a committee

consisting of Prof. V.K. Bhasin, Department of Zoology, as the Chairperson and

Dr.M. Rahman, Acting Proctor as the Member to look into the complaints against

the respondent. The committee was required to submit a report to the Vice-

Chancellor within ten days from the date of issue of the notification. The

Chairperson of the enquiry committee issued a notice dated 26/28-11-2007 giving

an opportunity to the respondent to appear before the committee for hearing on 3 rd

December, 2007 with regard to his grievance relating to the imposition of

punishment under Ordinance XV-B along with the relevant records. He was also

afforded an opportunity to present his case before the committee by filing a written

statement. The respondent, in pursuance of the said notice, appeared before the

committee and the committee put to the respondent four complaints which had

formed the basis of the action taken against him. Thereafter, the committee, as

asked for by the respondent, supplied the documents and the respondent filed his

reply. After the enquiry was over, the Vice-Chancellor, on the basis of the enquiry

report, arrived at the conclusion that the response of the respondent was

unsatisfactory and unacceptable and there was no justification to alter the decision.

The said order was passed by the Vice-Chancellor on 8/9-5-2008. The said order

passed by the Vice-Chancellor along with the representation of the respondent

were made available before the learned Single Judge by filing affidavit.

4. It was contended before the learned Single Judge that the earlier notification

/ communication dated 30th July, 2007 is patently illegal as the principles of natural

justice were not followed and further the order was an unreasoned one; that taking

recourse to post-decisional hearing was not an adequate substitute; that the whole

exercise of post-decisional hearing was an eye wash and was also to cover up the

laches in the initial order; that the University has failed to establish any of the

allegations levelled against the writ petitioner for taking action under Ordinance

XV-B which deals with maintenance of discipline among the students of the

University; that the enquiry made by the enquiry committee in the course of post-

decisional hearing was totally in violation of the norms inasmuch as the respondent

was not informed about the charges levelled against him; and that the order passed

by the Vice-Chancellor placing reliance on the enquiry report was absolutely

vulnerable.

5. The learned Single Judge first dwelled upon the issue whether a post-

decisional hearing could be an adequate substitute to save the impugned action of

the appellants from the vice of arbitrariness. He referred to the decision in

Swadeshi Cotton Mills v. UOI (1981) 1 SCC 664, K.I. Shephard & Ors. v. UOI &

Ors. (1988) 1 SCR 188 : AIR 1988 SC 686, H.L. Trehan and others v. Bharat

Petroleum Corporation Ltd. (1989) 1 SCC 764 and Shekhar Ghosh v. U.O.I. &

ors. (2007) 1 SCC 331. After placing reliance on the said authorities, the learned

Single Judge came to hold that post-decisional hearing cannot be a substitute for a

pre-decisional hearing; that where a pre-decisional hearing is not excluded by the

statute only in cases of exceptional urgency, where it is not possible to give a pre-

decisional hearing on account of the emergent situation the pre-decisional hearing

may be dispensed with provided a full review or appeal on merits against the

decision is available. The learned Single Judge has further held that the principle

that minimum compliance of the rules of natural justice should be observed as far

as possible.

6. After so holding, the learned Single Judge referred to two complaints made

against the writ petitioner in the year 2005 and the other two which were made in

the year 2007. He took note of Ordinance XV-B to arrive at the conclusion that the

same does not exclude the compliance of the principles of natural justice and

further it does not lay down any condition with regard to the time period within

which action could have been taken by the Vice-Chancellor against the writ

petitioner and, hence, there was no urgency to issue the impugned notification.

The learned Single Judge further held that in exercise of power under Ordinance

XV-B, the Vice-Chancellor, at any time of the academic session, can pass an order

and there was no necessity that it should be passed before the student takes

admission in any other course in the University. It was further opined by the

learned Single Judge that the impugned notification was issued to block the move

of the respondent to take the admission in the Post Graduate Certificate Course in

Hindi Journalism for the academic session 2007-08 and, therefore, post-decisional

hearing stated to have been granted to him was not a legally sustainable substitute.

It is worth noting that the plea of the University that the post-decisional hearing

sub-served the cause of justice was not accepted. The decisions in Narender

Singh v. University of Delhi 70(1997) DLT 509, Ajit Kumar Nag v. General

Manager (PJ), Indian Oil Corporation Ltd., (Haldia) and others (2005) 7 SCC

764, Satyavir Singh v. Union of India (1985) 4 SCC 252 and M.C. Mehta v.

Union of India (1997) 6 SCC 237 were distinguished on facts.

7. After dealing with the aforesaid facet, the learned Single Judge adverted to

the complaint made and came to hold that the complainants who had made the

complaints against him were not called upon to give their statements before the

enquiry committee. The security staff, who were allegedly prevented by the

respondent from performing their duties or threatened by him, were not called.

The complaint made by Mr.Ravinder Kumar, P.S. in the office of the Director,

South Delhi Campus, on 17th April, 2007 was not addressed to by the committee

and hence, could not have been treated to have been proved. Thereafter, the

learned Single Judge addressed himself with regard to the complaint made against

the respondent by Prof.S.K.Vij on 1st May, 2007 who had alleged that on 20th

April, 2007 when a meeting of the Departmental Council was being held, the

respondent barged into the meeting to make certain demands /claims and he was

requested to wait for some time as the meeting was in progress. Later, he was

invited to make his representation. At that stage, he behaved in a manner

unbecoming of a student. As found by the learned Single Judge, the enquiry

committee in its report records that during the course of the enquiry, the

respondent / writ petitioner had admitted that he entered into the room of Dr.S.K.

Vij, Head of the Department, without his permission when the Head of the

Department was presiding over a meeting of the committee and from the same, the

enquiry committee concluded that the respondent failed to maintain proper

discipline as he had forcibly entered into the room of the HOD when a statutory

meeting was going on and misbehaved with the HOD. The learned Single Judge

repelled the stand of the University that the complaints made against the

respondent were proved. The entire enquiry was an eye-wash and if such a course

of action is allowed, the University would victimize any student or ex-student by

collecting such complaints and proceeding against him to debar him from studying

in the University. Thereafter, as is perceptible, the learned Single Judge dealt with

the order dated 8/9-5-2008 and came to hold that the Vice-Chancellor did not apply

his mind to the enquiry report but accepted the same mechanically. He has not

indicated on what basis and on what material he had come to arrive at the

conclusion that the allegations were proved. It is worth noting that the writ

petitioner had also made the Vice-Chancellor a party - respondent No.2 in his

personal capacity and pleaded that he had taken certain issues which annoyed the

Vice-Chancellor. As the Vice-Chancellor had not chosen to file affidavit, the

learned Single Judge thought it appropriate not to dwell upon the same and kept it

open allowing liberty to the writ petitioner to raise the same at any subsequent

stage.

8. After deliberating on the aforesaid issue, the learned Single Judge opined

that the impugned notification / communication dated 30 th July, 2007 and all

proceedings subsequent thereto including the order dated 8/9-5-2008 whereby the

Vice-Chancellor had decided not to recall or review the aforesaid notification /

communication deserved to be quashed and, accordingly, quashed the same. After

quashing the same, he directed the appellant-University to consider the entrance

test result of the respondent for the examination 2007-08 for the current academic

year (as he had already qualified in the said entrance test) and to hold an interview

for admission to Hindi Journalism P.G. Certificate Course for the academic year

2008-09. Eventually, the writ petition was allowed with imposition of costs of

Rs.30,000/-.

9. We have heard Mr. Rupal, learned counsel for the appellants, and Mr. K.

Venkataraman, learned counsel for the respondent.

10. Questioning the correctness of the order passed by the learned Single Judge,

it is contended by Mr. Rupal that the learned Single Judge has fallen into error by

coming to hold that the doctrine of post- decisional hearing could not have been

invoked in the case at hand. It is urged by him that the view expressed by the

learned Single Judge that pre-decisional hearing was imperative in the case at hand

inasmuch as post-decisional hearing only results in giving the stamp of approval to

the decision taken earlier and does not serve any fruitful purpose is incorrect. It is

contended by him that the learned Single Judge has fallaciously opined that the

power had been conferred on the Vice-Chancellor to take action at any point of

time and, hence, there was no hurry to issue the impugned notification without

appreciating the factual matrix in the proper perspective. It is canvassed by Mr.

Rupal that the learned Single Judge has completely misguided himself by

expressing the view that the enquiry was a mere eye wash and nothing had been

proven against the respondent despite ample material brought on record.

11. Mr. K. Venkatraman, learned counsel appearing for the respondent,

submitted that the conclusion arrived at by the learned Single Judge that in the case

at hand post-decisional hearing did not sub-serve the cause of justice cannot be

flawed inasmuch as the University authorities were bent upon to stick to their

decision rendered earlier. That apart, submits the learned counsel for the

respondent, there was no warrant or justification not to take recourse to the

principles of natural justice as some delay would not have brought in a situation

beyond control but on the contrary would have ensued in an appropriate decision in

law. The learned counsel submitted that the analysis of the evidence and the

materials brought on record by the learned Single Judge is absolutely faultless and

does not warrant any interference in the intra court appeal which is basically an

appeal of rectification.

12. It is not in dispute that the notification dated 30.7.2007 was issued without

affording an opportunity of hearing. It is also not in dispute that the University

issued a notification on 26.11.2007 which reflects the decision of the competent

authority of the University that it had decided to grant post-decisional hearing to

the petitioner and had accordingly constituted a committee. The learned Single

Judge has referred to the complaints made against the respondent and thereafter

proceeded to deal with the submission whether in the case of the present nature the

post-decisional hearing can be an adequate substitute. He has referred to Clauses

3(a) and 4 of Ordinance XV-B and relied on the decisions which we have referred

to hereinbefore. Before we advert to the nature of the complaint made against the

respondent, the power conferred on the Vice-Chancellor and the obtaining

scenario, we think it apposite to refer to certain citations relating to the basic

concept inhered in post-decisional hearing.

13. In K.I. Shephard (supra), the Apex Court was considering the exclusion of

employees of certain banks under the amalgamation scheme framed under Section

45 of Banking Regulation Act (10 of 1949) without affording an opportunity of

hearing. The question that arose in the said case was whether non-compliance of

the principles of natural justice vitiated the decision and whether post-decisional

hearing would sub-serve the cause of justice. Their Lordships, after referring to

the authorities in Perre Brothers v. Citrus Organisation Committee, (1975) 10

SASR 555, Re K (H) (an infant), (1967) 1 All ER 226, State of Orissa v. Dr.

(Miss) Binapani Dei, AIR 1967 SC 1269, A.K. Kraipak v. Union of India, AIR

1970 SC 150 and Chandra Bhavan Boarding and Lodging, Bangalore v. State of

Mysore, AIR 1970 SC 2042, came to hold as follows:

"13. Natural justice has various facets and acting fairly is one of them. RBI which monitored the three amalgamations was required to act fairly in the facts of the case. The situation necessitated a participatory enquiry in regard to the excluded employees. Since the decision to exclude them from service under the transferee banks is grounded upon a set of facts the correctness whereof they deny, if an opportunity to know the allegations and to have their say had been afforded, they could have no grievance on this score. The action deprives them of their livelihood and brings adverse civil

consequences and could obviously not be taken on the ipse dixit of RBI officers without verification of facts. It is quite possible that a manoeuvering officer of the banking company adversely disposed of towards a particular employee of such bank could make a report against such employee and have him excluded from further service under the transferee bank. The possibility of exclusion on the basis of some mistake such as to identity cannot also be ruled out. There is all the more apprehension of this type as the process has to be completed quickly and very often the records of a large number of employees have to be scrutinised. We are of the view that rules of natural justice apply to administrative action and in the instant cases the decision to exclude a section of the employees without complying with requirement of natural justice was bad."

After so holding, their Lordships repelled the submission as regards the time

period during which the operation was required to be conducted. In this regard, the

Apex Court opined thus:

"15. Fair play is a part of the public policy and is a guarantee for justice to citizens. In our system of Rule of Law every social agency conferred with power is required to act fairly so that social action would be just and there would be furtherance of the well-being of citizens. The rules of natural justice have developed with the growth of civilisation and the content thereof is often considered as a proper measure of the level of civilisation and Rule of Law prevailing in the community. Man within the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. We do not think in the facts of the case there is any justification to hold that rules of natural justice have been ousted by necessary implication on account of the time frame. On the other hand we are of the view that the time limited by statute provides scope for an opportunity to be extended to the intended excluded employees before the scheme is finalised so that a hearing commensurate to the situation is afforded before a section of the employees is thrown out of employment."

After so stating, their Lordships proceeded to hold thus:

"16. We may now point out that the learned single Judge of the Kerala High Court had proposed a post- amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post- decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose."

We have referred to the aforesaid decision in extenso as the learned Single

Judge has placed heavy reliance on the same. The various factors that weighed

with the Apex Court are to be taken note of. They are deprivation of livelihood of

employees, possibility of a manoeuvring officer of the banking company adversely

disposed of towards a particular employee to exclude an employee, some mistake

as regards the identity of an employee, the non-exclusion of the principles of

natural justice by the time frame postulated under the scheme and the lack of

justification to throw them out of employment and then give them an opportunity

of representation when the requirement is that they should have the opportunity as

a condition precedent before action is taken. At a later stage, when we analyze the

factual matrix of the case at hand, we would address ourselves whether the said

decision would be applicable or not.

14. In Swadeshi Cotton Mills (supra), the issue that emerged for consideration

was whether prior hearing was necessary to be given to the persons affected before

an order under Section 18-AA of Industries (Development and Regulation) Act,

1951 was passed. The majority, after scanning the anatomy of Section 18-AA

while analyzing the said question, held as follows:

"42. "The necessity for speed", writes Paul Jackson : "may justify immediate action, it will, however, normally allow for a hearing at a later stage." The possibility of such a hearing - and the adequacy of any later remedy should the initial action prove to have been unjustified- are considerations to be borne in mind when deciding whether the need for urgent action excludes a right to rely on natural justice. Moreover, however, the need to act swiftly may modify or limit what natural justice requires, it must not be thought "that because rough, swift or imperfect justice only is available that there ought to be no justice": Pratt v. Wanganui Education Board.

43. Prof. de Smith, the renowned author of JUDICIAL REVIEW (3rd Edn.) has at page 170, expressed his views on this aspect of the subject, thus: "Can the absence of a hearing before a decision is made be adequately compensated for by a hearing ex post facto? A prior hearing may be better than a subsequent hearing, but a subsequent hearing is better than no hearing at all; and in some cases the courts have held that statutory provision for an administrative appeal or even full judicial review on the merits are sufficient to negative the existence of any implied duty to hear before the original decision is made. The approach may be acceptable where the original decision does not cause serious detriment to the person affected, or where there is also a paramount need for prompt action, or where it is impracticable to afford antecedent hearings."

44. In short, the general principle - as distinguished from an absolute rule of uniform application - seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post-decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre- decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre- decisional hearing to the person affected and the

administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost promptitude. In short, this rule of fairplay "must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands". The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, to recall the words of Bhagwati, J., the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."

After stating the said principles, their Lordships opined thus:

"77. The second reason - which is more or less a facet of the first - for holding that the mere use of the word "immediate" in the phrase "immediate action is necessary", does not necessarily and absolutely exclude the prior application of the audi alteram partem rule, is that immediacy or urgency requiring swift action is a situational fact having a direct nexus with the likelihood of adverse effect on fall in production. And, such likelihood and the urgency of action to prevent it, may vary greatly in degree. The words "likely to affect... production" used in Section 18-AA(1)(a) are flexible enough to comprehend a wide spectrum of situations ranging from the one where the likelihood of the happening of the apprehended event is imminent to that where it may be reasonably anticipated to happen sometime in the near future. Cases of extreme urgency where action under Section 18-AA(1)(a) to prevent fall in production and consequent injury to public interest, brooks absolutely no delay, would be rare. In most cases, where the urgency is not so extreme, it is practicable to adjust and strike a balance between the competing claims of hurry and hearing.

78. The audi alteram partem rule, as already pointed out, is a very flexible, malleable and adaptable concept of

natural justice. To adjust and harmonise the need for speed and obligation to act fairly, it can be modified and the measure of its application cut short in reasonable proportion to the exigencies of the situation. Thus, in the ultimate analysis, the question (as to what extent and in what measure), this rule of fair hearing will apply at the pre-decisional stage will depend upon the degree of urgency, if any, evident from the facts and circumstances of the particular case.

Their Lordships further came to hold as follows:

"94. ...In the facts and circumstances of the instant case, there has been a non-compliance with such implied requirement of the audi alteram partem rule of natural justice at the pre-decisional stage. The impugned order therefore, could be struck down as invalid on that score alone. But we refrain from doing so, because the learned Solicitor-General in all fairness, has both orally and in his written submissions dated August 28, 1979, committed himself to the position that under Section 18- F, the Central Government in exercise of its curial functions, is bound to give the affected owner of the undertaking taken over, a "full and effective hearing on all aspects touching the validity and/or correctness of the order and/or action/of take-over", within a reasonable time after the take-over. The learned Solicitor-General has assured the Court that such a hearing will be afforded to the appellant-Company if it approaches the Central Government for cancellation of the impugned order. It is pointed out that this was the conceded position in the High Court that the aggrieved owner of the undertaking had a right to such a hearing."

[Emphasis added]

15. In Liberty Oil Mills & Ors. v. Union of India & Ors., (1984) 3 SCC 465,

the Apex Court was dealing with certain circulars issued by the Deputy Chief

Controller of Imports and Exports directing licensing authorities to keep in

„abeyance‟ for a period of six months from the respective dates of the circulars any

application received from any of the 192 concerns for the grant of import licence

or customs clearance permits and allotment of imported goods through agencies

like the State Trading Corporation of India Ltd., the Minerals and Metals Trading

Corporation of India Ltd. or any other similar agency. Be it noted, the said

circulars were issued as it was discovered that beef tallow had been allowed to be

imported even by „non-actual users‟ under letters of authority given by licensees

who had obtained import licences against the entitlement based on the value of

their exports. The question that arose for consideration was whether the issue of

circular disclosed total non-application of mind and further when the orders of

abeyance were compartmentalized as secret orders, would secrecy militate against

natural justice. A further question was also posed whether an order of such

immensity could be made without due investigation and without giving a

reasonable opportunity to the affected party. Though in the said case, their

Lordships were dealing with the application of the principle of natural justice, yet

they adverted to the concept of pre-decisional hearing and post-decisional hearing

and stated thus:

15. ...Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties. It may be that the opportunity to be heard may not be pre-decisional; it may necessarily have to be post-decisional where the danger to be averted or the act to be prevented is imminent or where the action to be taken can brook no delay. If an area is devastated by flood, one cannot wait to issue show-cause notices for requisitioning vehicles to evacuate population. If there is an outbreak of an epidemic, we presume one does not have to issue show-cause notices to requisition beds in hospitals, public or private. In such situations, it may be enough to issue post-decisional notices providing for an opportunity. It may not even be necessary in some situations to issue such notices, but it would be sufficient but obligatory to consider any representation that may be made by the aggrieved person and that would satisfy the requirements of procedural fairness and natural justice. There can be no tape-measure of the extent of natural

justice. It may and indeed it must vary from statute to statute, situation to situation and case to case..."

After referring to the decisions rendered in Queen v. Randolph et al., 56

DLR (2d) 283, Commissioner of Police v. Tanos, 98 CLR 383, Lewis v. Heffer,

(1978) 3 All ER 354 (CA) and Furnell v. Whangarei High Schools Board, 1973

AC 660, their Lordships observed thus:

"20. We have referred to these four cases only to illustrate how ex parte interim orders may be made pending a final adjudication. We, however, take care to say that we do not mean to suggest that natural justice is not attracted when orders of suspension or like orders of an interim nature are made. Some orders of that nature, intended to prevent further mischief of one kind, may themselves be productive of greater mischief of another kind. An interim order of stay or suspension which has the effect of preventing a person, however, temporarily, say, from pursuing his profession or line of business, may have substantial, serious and even disastrous consequences to him and may expose him to grave risk and hazard. Therefore, we say that there must be observed some modicum of residual, core natural justice, sufficient to enable the effected person to make an adequate representation. (These considerations may not, however, apply to cases of liquor licensing which involve the grant of a privilege and are not a matter of right : See Chingleput Bottlers v. Majestic Bottling Company, (1984) 3 SCC 258). That may be and in some cases, it can only be after an initial ex parte interim order is made."

16. In Union of India &Anr. v. Tulsiram Patel, AIR 1985 SC 1416, while

dealing with the issue relating to the railway employees going on a strike and the

dispensation of enquiry by the railways, the Apex Court has expressed thus:

"172. In the context of an all-India strike where a very large number of railway servants had struck work, the railway services paralysed, loyal workers and superior officers assaulted and intimidated, the country held to ransom, the economy of the country and public interest

and public good prejudicially affected, prompt and immediate action was called for to bring the situation to normal. In these circumstances, it cannot be said that an inquiry was reasonably practicable."

17. In Jayantilal Ratanchand Shah v. Reserve Bank of India & Ors., (1996) 9

SCC 650, the Constitution Bench, while dealing with the constitutional validity of

the High Denomination Bank Notes (Demonetisation) Act, 1978 and the legality of

certain orders passed thereunder, has held thus:

"16. In impugning the order of the Currency Officer of the Bank it was submitted on behalf of the petitioner that no opportunity of being heard was given to the Society so as to enable it to explain the reasons for delay in submitting the declaration form. Even if we proceed on the assumption that such an opportunity of personal hearing was imperative to comply with the rules of natural justice the petitioner cannot raise any grievance on that score for the appellate authority gave them such an opportunity before dismissing their appeal. This apart, as noticed earlier, the appellate authority has given detailed reasons for its inability to accept the explanation of the Society for not filing the declaration in time..."

[Underlining is ours]

18. In Canara Bank & Ors. v. Debasis Das & Ors., (2003) 4 SCC 557, the

Apex Court was dealing with the scope and ambit of Regulations 6(18) and 6(21)

of the Canara Bank Officer Employees‟ (Conduct) Regulations, 1976. In the said

case, their Lordships posed the question whether the principles of natural justice

have been avoided and if so, to what extent and whether any prejudice has been

caused and eventually held as follows:

"19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What

particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life."

Thereafter, their Lordships referred to the decisions in Charan Lal Sahu v.

Union of India, AIR 1990 SC 1480, Managing Director, ECIL v. B. Karunakar,

(1993) 4 SCC 727 and Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310

and came to hold that though in all cases, the post-decisional hearing cannot be a

substitute for pre-decisional hearing, yet it would depend upon facts of the case.

19. In Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321, it was observed that

when an employee fails to show that there has been prejudice due to lack of pre-

decisional hearing and adequate post-decisional hearing has been granted, it cannot

be said that there is violation of the principles of natural justice. Thus, what has

been stated by the Lordships is that in certain circumstances post-decisional

hearing would be adequate.

20. In Ajit Kumar Nag (supra), while dealing with the concept of applicability

of natural justice, the Apex Court has held thus:

" The principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. The approach of

the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential". In certain circumstances, application of the principles of natural justice can be modified and even excluded. Both in England and in India, it is well established that where a right to a prior notice and an opportunity to be heard before an order is passed would obstruct in the taking of prompt action, such a right can be excluded. It can also be excluded where the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provisions warrant its exclusion. The maxim audi alteram partem cannot be invoked if import of such maxim would have the effect of paralysing the administrative process or where the need for promptitude or the urgency so demands. The principles of natural justice have no application when the authority is of the opinion that it would be inexpedient to hold an enquiry and it would be against the interest of security of the Corporation to continue in employment the offender workman when serious acts were likely to affect the foundation of the institution."

[Emphasis supplied]

21. In Haryana Financial Corporation & Anr. v. Kailash Chandra Ahuja,

(2008) 9 SCC 31, a two-Judge Bench of the Apex Court after referring to the

decisions in R.S. Dass v. Union of India, 1986 Supp SCC 617 and B. Karunakar

(supra) has ruled thus:

"36. The recent trend, however, is of "prejudice". Even in those cases where procedural requirements have not been complied with, the action has not been ipso facto illegal, unlawful or void unless it is shown that non- observance had prejudicially affected the applicant."

Thereafter, their Lordships referred to the decision in P.D. Agrawal v. SBI,

(2006) 8 SCC 776 and opined as under:

"42. Recently, in P.D. Agrawal (supra) this Court restated the principles of natural justice and indicated that they are flexible and in the recent times, they had

undergone a "sea change". If there is no prejudice to the employee, an action cannot be set aside merely on the ground that no hearing was afforded before taking a decision by the authority."

22. In City Montessori School v. State of Uttar Pradesh & Ors., (2009) 14 SCC

253, the Apex Court has stated thus:

"28. ... It is now a well-settled principle of law that it cannot be put in a straitjacket formula. The Court despite opining that the principle of natural justice was required to be followed may, however, decline grant of a relief, inter alia, on the premise that the same would lead to a useless formality or that the person concerned in fact did not suffer any prejudice..."

23. From the aforesaid pronouncement of law, the principles that are culled out

are that non-compliance of the principles of natural justice vitiates the decision;

that it is a common experience that once a decision has been taken there is a

tendency to uphold it; that unless the statute or a rule excludes the application of

natural justice the same should be adhered to; that a person affected must have

reasonable opportunity of being heard and the hearing must be a genuine hearing;

that the doctrine of audi alteram partem is not founded on a straitjacket formula

and it can be modified in the exigencies of situation; that the doctrine of post-

decisional hearing can be invoked if a danger or a different situation is required to

be avoided; that a higher forum in certain circumstances can afford adequate

opportunity of hearing though in all cases post-decisional hearing cannot be

substituted for pre-decisional hearing; that hard realities of life are to be borne in

mind, it would be depend upon the facts of the case; that the factum of prejudice

has been caused is a factor to be taken note of; and that sometimes the court may

not interfere and direct for a post-decisional hearing.

24. In the case at hand, the respondent is aged about 55 years and has been

making adroit efforts to remain in the college campus. Numerous complaints were

received against him as the factual matrix would show and which has also been

accepted by the learned Single Judge that Professor S.K. Vij. had lodged a

complaint stating that on 20.4.2007 when a meeting of the Departmental Council

was being held, the respondent barged into the meeting room to make certain

demands / claims. The learned Single Judge had taken note of the fact that the

respondent had admitted that he entered into the room of Professor Vij, the Head of

the Department without his permission when he was presiding over a meeting of

the Committee. The learned Single Judge has discarded the enquiry report as no

grievance was made by Professor Vij that the respondent had entered into his room

when the meeting was on inasmuch as the Professor Vij only requested the

respondent to wait for some time as the meeting was in progress. Learned Single

Judge has held that the mere presence of the respondent in the said statutory

meeting could not be regarded as the conclusive proof of the fact that the writ

petitioner had misbehaved with the Professor.

25. It is worth noting that the learned Single Judge has held that the post-

decisional hearing is not a substitute for the pre-decisional hearing and in the case

at hand the said doctrine could not have been invoked inasmuch as there was no

urgency as the Vice-Chancellor has the power to pass an order at any time of the

academic session and there was no requirement to pass an order in respect of a

student before he took admission in a course in the University. That apart the

learned Single Judge has opined that there is no exclusion of principles of natural

justice and the theory of futile exercise could not have been taken recourse to. As

has been stated earlier, after so holding he has proceeded to examine the validity of

the post-decisional hearing which has been afforded to the respondent by the

University.

26. It is apposite to note that the present factual matrix has its own peculiarity.

The writ petitioner, the respondent herein, was 55 years old and has been

remaining in the college campus for few decades and creating a dent in the

academic atmosphere and complaints had been made by the students, the

professors, security guards, staff of the University hostels and sanitary staff. When

so many complaints were made and more so by the Professor-cum-Head of the

Department S.K. Vij who had categorically stated in the complaint that the

respondent had barged into his room while he was holding a meeting as

contemplated under the statute, the conduct of the writ petitioner really showed

indiscipline. This complaint of the professor, the students, the staff when comes to

the notice of the Vice-Chancellor especially keeping in view the proclivity and the

propensity of the respondent to remain in the college campus despite the fact that

he is 55 years of age on the guise of prosecuting studies in one course or other and

regard being had to his past conduct, we are disposed to think the denial of

admission to the Post Graduate Course in Hindi Journalism and to any course for a

period of five years was a matter of an exigency. True it is, power is conferred on

the Vice-Chancellor to take action during the academic session. It is also true that

the provision also requires pre-decisional hearing but, a significant one, when the

factual matrix is appreciated keeping in view the atmosphere of the educational

institution, we are disposed to think non-compliance with the principles of natural

justice by not giving an opportunity to the respondent prior to taking the decision

cannot be faulted. The authorities which have been relied upon by the learned

Single Judge, in our considered opinion, are distinguishable as they relate to

appointments, right of livelihood and such other factors. In the present case, it

pertains to the discipline in an educational institution. Thus, the view expressed by

the learned Single Judge in the obtaining factual matrix that there was no exigency

or no prompt action was required and later on action could have been taken and,

therefore, the pre-decisional hearing was warranted, is not acceptable and we are

unable to concur with the same.

27. As far as the faults which have been found in the post-decisional hearing by

the learned Single Judge, on a perusal of the reasonings ascribed by him and the

material brought on record, we are not in a position, with all humility, to accept the

same. Before the Enquiry Committee, the respondent has admitted that he had

compromised a dispute with one Neeraj Dubey as the same did not concern him.

As far as the complaint made by Professor S.K. Vij is concerned, it is an accepted

fact that the respondent had admitted that he had entered into the room of the Head

of the Department without his permission when the Head of the Department was

presiding over a meeting of the committee. The learned Single Judge has taken

note of the fact that the Professor Vij had requested the respondent to wait for

some time as the meeting was in progress and later on he was invited to make a

representation. The fact remains that while the Professor S.K. Vij, the Head of the

Department was presiding over a meeting, the respondent, an aspirant candidate for

taking admission to a course, barged into his office. The Professor had made a

complaint and the said position to that extent had been admitted by the respondent.

He had also admitted that the Professor requested him to wait for some time.

These aspects are not to be lightly viewed. One can imagine the plight of the

Professor when the respondent aged about 55 years entered into the meeting hall

where a statutory meeting was continuing. It is inconceivable how a student could

enter into the meeting hall knowing fully well that the Professor was busy in a

meeting. Quite apart from that prior permission is required to be sought before one

enters into the room of the Professor and the Head of the Department.

Circumstances had so arisen that the Professor was compelled to make a request to

the respondent to wait for some time. It is needless to emphasize such an act

decisively demolishes discipline. The tolerance by the Professor only reflects the

sense of fear and paints a picture of plight. Not for nothing it has been said that an

educational institution dealing with students has to teach them discipline in poetry

but is required to govern them in terse prose when they become totally

indisciplined. Action is required to be taken to hammer home the message. Thus,

the finding recorded by the learned Single Judge that the charges levelled against

the respondent have not been proven are not correct inasmuch as, we are disposed

to think, on the basis of a singular incident of this nature, the decision not to admit

the respondent in any course for a period of five years is justified.

28. In view of the aforesaid premised reasons, the appeal is allowed. The order

passed by the learned Single Judge is set aside. In the facts and circumstances of

the case, there shall be no order as to costs.

CHIEF JUSTICE

MANMOHAN, J.

October 7, 2010 Nm/dk