Delhi High Court
Dr Bharat Kumar Singh vs The Union Of India Through Its ... on 26 February, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 26th February, 2018
+ W.P.(C) 1205/2018 & CM Nos.5029-30/2018
DR BHARAT KUMAR SINGH ..... Petitioner
Through: Mr.Rajiv Bansal, Sr. Adv. with
Mr.Rudreshwar Singh,
Mr.Saurabh Jain, MR.Sumeet
Kr. Singh & Mr.Abhimanyu
Kapoor, Advs.
versus
THE UNION OF INDIA THROUGH ITS SECRETARY,
DEPARTMENT OF AYUSH, GOVERNMENT OF INDIA,
NEW DELHI & ORS .... Respondents
Through: Mr.Dev P. Bhardwaj, CGSC
with Mr.Satya Prakash Singh,
Advs. for UOI.
Mr.Kundan K. Mishra &
Mr.Ajay Kumar, Adv. for R-3.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The petitioner, who was elected as a Member of the Central
Council of Homeopathy pursuant to the results of the elections of the
Council declared on 17.08.2017, has filed the present petition under
Article 226 of the Constitution of India seeking a writ of certiorari for
quashing of order dated 15.01.2018 vide which the respondent No.1
has based on an inquiry, declared the election to the Council, as a
result whereof the petitioner and three other persons stood elected as
members of the Council, as void and it has further been ordered that, a
fresh election be conducted in the State of Bihar as per the provisions
of Homeopathy Central Council Act, 1973 and Homeopathy Central
Council (Election) Rules, 1975.
2. In support of his challenge to the impugned order dated
15.01.2018, Mr.Bansal, learned senior counsel for the petitioner has
raised various contentions including the plea that the impugned order
has been passed without giving any notice to any of the elected
persons. On this issue, this Court had granted an opportunity to the
learned counsel for the respondent to obtain instructions. Today,
Mr.Bhardwaj submits that he is unable to dispute the fact that before
passing the impugned order, no notice had been given to any of the
elected Members and on the other hand, the impugned order was
passed by relying on the complaints and representations received from
the aggrieved parties.
3. In view of the aforesaid undisputed position, it is apparent that
the impugned order was passed not only in the breach of principles of
natural justice, but also in violation of the Rule 28 of the Homeopathic
Central Council Elections Rule, 1975 which while laying down the
procedure for dealing with election disputes, also provides for an
opportunity of hearing to all the parties. At this stage, it is deemed
appropriate to refer Rule 28 of the Homeopathy Central Council
(Election) Rules, 1975 which reads as under:-
"28. Procedure for dealing with election
disputes
(1) The Central Government, after receipt of
dispute under sub-section (2) of section 4 of the
Act regarding any election, shall appoint an
Inquiry officer not below the rank of Under
Secretary to the Government of India to inquire
into that dispute.
(2) The Inquiry officer within one week of his
appointment shall send notice of hearing to the
parties to the dispute asking them to submit
statements in writing, if any, on the dispute within
reasonable time as may be specified by him and
shall also fix the date of hearing.
(3) After the expiry of the time specified for
submission of statements, the Inquiry officer shall
hear the dispute on such date and at such time
and place as has been specified irrespective of
whether written statement have been received or
not and shall give reasonable opportunity to the
parties to hear.
(4) All parties to the dispute shall have the right
to appear before the Inquiry officer, only in
person.
(5) Non-appearance of the parties to the dispute
shall not be a ground for postponement of hearing
on the date already fixed and the hearing shall
proceed ex-parte until circumstances of non-
appearance are beyond the control of the parties.
(6) During any stage of inquiry, the Inquiry officer
shall have the right to examine such other
documents and persons as deemed necessary by
him for conduct of inquiry.
(7) After hearing all the concerned parties, the
Inquiry officer shall prepare an inquiry report
within a period of sixty days of his appointment
and submit it to the Central Government for its
consideration and decision.
(8) The Central government shall endeavor to
take a decision on the Inquiry report as submitted
by the Inquiry officer and communicate its
decision on a dispute within thirty days of receipt
of the Inquiry report."
4. The necessity to grant an opportunity of hearing was, thus,
mandatory not only as per the statutory rules, but in my opinion, even
otherwise where the very election of the petitioner was being set aside,
it was incumbent upon the respondents to follow the principles of
natural justice. In this connection, reliance may also be placed on the
decision of the Supreme Court in Nisha Devi v. State of H.P. reported
as (2014) 16 SCC 392 .
"5. Trite though it is, we may yet again reiterate that
the principle of audi alteram partem admits of no
exception, and demands to be adhered to in all
circumstances. In other words, before arriving at
any decision which has serious implications and
consequences to any person, such person must be
heard in his defence. We find that the High Court
did not notice the violation and infraction of this
salutary principle of law. Accordingly, on this short
ground, the impugned judgments and orders require
to be set aside, and are so done. The matter is
remanded back to the Divisional Commissioner for
taking a fresh decision after giving due notice to the
appellant and affording her an opportunity of being
heard. The Divisional Magistrate, Kullu, shall
complete the proceedings expeditiously, and not
later than six months from the date on which a copy
of this order is served on him."
5. Accordingly, the impugned order dated 15.01.2018 passed by
respondent no.1 is set aside. It is made clear that since the order is
being set aside only on the grounds of violation of Rule 28 of the
Homeopathic Central Council Election Rules, 1975 as also the
violation of principles of natural justice, the respondents will be free to
take action as per law. In case, the petitioner is aggrieved by any
further action of the respondents, he will be at liberty to challenge the
same on all grounds including the grounds taken in the present
petition.
6. The writ petition is disposed of with the aforesaid directions.
The pending application also stands disposed of.
DASTI.
REKHA PALLI, J
FEBRUARY 26, 2018/gm
