13. Lastly it has been contended by the learned counsel for the
petitioner that the petitioner has been responsibly distributing ration to
all the rationees in the Shamti-A area since 1998, with no complaints
against him till date. The counsel submits that the order impugned,
issued by respondent no. 4, and the report issued by respondent no. 3 are
both vague and false and, thus, prays the same be quashed.
ARGUMENTS ON BEHALF OF THE RESPONDENTS
14. Per contra, learned counsel appearing on behalf of the respondents submits
that none of the petitioners' legal, constitutional, or statutory rights have been
infringed upon by the respondents.
15. The learned counsel for the respondents further submits that vide
communication no. DCD/PA- Genl-112/2018/2165 dated 10-12-2018 issued by the
office of Dy. Commissioner/ District Development Commissioner, Doda , the then
Assistant Director, Food Civil Supplies & Consumer Affairs, Doda directed the
enquiry to be initiated into the complaint filed by Sh. Jagdish Raj Rana regarding
the carriage charges drawn by the petitioner.
16. Further it is submitted that the enquiry report was submitted on 29.07.2019
by respondent no.3. The findings of the said enquiry report revealed that the
carriage charges incurred by the dealer from the Food Store Assar to Chill near
crane site, including the charges, amounted to Rs. 134/- per Qtl. However
according to the certificate issued by the executing agencies, the distance from the
Food Store to the FPS centre was 2km, with an additional 20 km covered by the
ponies and submits that petitioner has been receiving Rs. 364 per Qtl from 2016-
2017 and Rs. 531/- per Qtl from 2017 onwards for transporting food grains from
the food store , Assar to the sanctioned FPS at Shamti-A. Thus it has been urged
that a total of Rs. 6,61,053/- has been drawn by the petitioner whereas the actual
cost incurred was Rs. 2,22,748 upto Chill as the petitioner used to distribute the
ration at Chill. Therefore according to the respondents difference of Rs. 4,38,305/-
has been calculated which needs to be recovered from the petitioner.
17. It is also the case of the respondents that the actual distribution of the ration
has been made by the petitioner against the rules and norms governing the field,
thus a penalty to the tune of Rs. 4,38,305/- has been imposed on the petitioner for
the recovery of excess charges, as the ration was directed to be distributed at
Shamti-A instead of Chill.
LEGAL ANALYSIS
18. Heard learned counsel for the parties and perused the record.
19. In view of the above and after considering the arguments put forth by the
learned counsel for both the parties, the instant petition is taken up for final
disposal at this stage and this Court is of the view that the outcome of the instant
petition rests on the determination of the following issues:-
Issue no.1 - Does the failure to associate an employee in the enquiry process,
where the outcome of such enquiry has the potential to affect their livelihood,
violate the principles of natural justice more particularly their right of fair
hearing?
Issue no.2- Whether enquiry proceedings can be conducted without issuing a
notice to the person against whom the enquiry has been initiated, thereby
violating the principles of natural justice, and the right to be heard, under the
applicable legal framework, and relevant procedural safeguards?
20. As far as issue no.1 is concerned the principles of natural justice are founded
on two core elements: audi alteram parterm (the right to be heard) and nemo judex
in causa sua (the rule against bias). When an enquiry is conducted without
involving the employee, especially in situations where the result could lead to the
termination or other severe consequences, it breaches the audi alteram partem
principle. This principle mandates that an individual must be given a reasonable
opportunity to present their case, answer the charges against them, and defend
themselves before any adverse action.
21. Additionally, the failure to involve the employee in the enquiry process could
lead to an arbitrary decision, thus infringing upon their right to a fair hearing. It is
well-established in jurisprudence that any action affecting an employee's
livelihood must be preceded by a fair, transparent and unbiased process, where the
person is not only notified against the allegations leveled against him but is also
afforded an opportunity to participate in their defense. If an employee is denied a
fair opportunity to participate in the enquiry, the potential for unjust outcomes
increases, which could irreparably harm their future prospects, thus the failure to
associate an employee in the enquiry process underscores the centrality of natural
justice, since the right to a fair hearing is not just a procedural formality but a
fundamental safeguard against arbitrary and unjust actions.
22. In the present case the record in terms of order dated 03.01.2019 and
24.01.2019 has been produced before this Court and perusal of the same reveals
that one sided enquiry has been conducted against the petitioner who was not at all
associated with the enquiry process and on the contrary the decision has been made
whereby a penalty to the tune of Rs 4,38,305/- has been imposed on the petitioner,
despite the lack of his participation in the enquiry. The respondents could not
justify the order impugned and it is the specific case of the petitioner that he has
not been heard before imposition of the final penalty. The order which has been
produced before this Court has been examined, figuring the stand that the
petitioner has not been heard whereas on the other hand one sided enquiry has been
conducted where the statement of public at large has been taken which is impugned
in the present petition.
23. Therefore, the allegation of the petitioner that he was not associated with the
enquiry is factually correct, which has been initiated at the back of the petitioner,
what to talk of associating the petitioner in the said enquiry , even no show cause
notice was issued to the petitioner while imposing the penalty. Thus the order
impugned, is violative of principle of natural justice and the imposition of penalty
without affording an opportunity of being heard to the petitioner, is violative of
right to livelihood.
24. The Hon'ble Apex Court in catena of judgments has consistently upheld the
principles of natural justice in matters of an employees' discipline, particularly
when an enquiry may lead to adverse consequences. The legal doctrine of natural
justice insures that no person should be condemned unheard, particularly when
such actions impact their livelihood and career.
25. In "A.K. Kraipak and Others v. Union of India and Others" (1969) 2 SCC
262 quoting with approval the judgment In re: H.K. (All Infant), this Court held
that :
"20. The aim of the rules of natural justice is to secure
justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law
validly made. In other words they do not supplant the law of
the land but supplement it. The concept of natural justice has
undergone a great deal of change in recent years. In the past
it was thought that it included just two rules nameny: (1) no
one shall be a judge in his own case (Nemo debet esse judex
propria causa) and (2) no decision shall be given against a
party without affording him a reasonable hearing (audi
alteram partem). Very soon thereafter a third rule was
envisaged and that is that quasi-judicial enquiries must be
held in good faith, without bias and not arbitrarily or
unreasonably. But in the course of years many more
subsidiary rules came to be added to the rules of natural
justice. Till very recently it was the opinion of the courts that
unless the authority concerned was required by the law under
which it functioned to act judicially there was no room for the
application of the rules of natural justice. The validity of that
limitation is now questioned. If the purpose of the rules of
natural justice is to prevent miscarriage of justice one fails to
see why those rules should be made inapplicable to
administrative enquiries. Often times it is not easy to draw the
line that demarcates administrative enquiries from quasi-
judicial enquiries. Enquiries which were considered
administrative at one time are now being considered as quasi-
judicial in character. Arriving at a just decision is the aim of
both quasi- judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative inquiry
may have more far reaching effect than a decision in a quasi-
judicial inquiry.........."
26. In "Delhi Transport Corporation v. D.T.C. Mazdoor Congress and
Others"(1991) Supp(1) SCC 600, a five-Judge Bench of this Court highlighted
how essential it is to afford a reasonable opportunity to an employee to put forth
his case in a domestic inquiry and the requirement of an employer to comply with
the principles of natural justice and fair play, in the following words:
"202. ......It is now well settled that the „audi alteram partem‟
rule which in essence, enforces the equality clause in Article
14 of the Constitution is applicable not only to quasi-judicial
orders but to administrative orders affecting prejudicially the
party-in-question unless the application of the rule has been
expressly excluded by the Act or Regulation or Rule which is
not the case here. Rules of natural justice do not supplant but
supplement the Rules and Regulations. Moreover, the Rule of
Law which permeates our Constitution demands that it has to
be observed both substantially and procedurally..Rule of law
posits that the power is to be exercised in a manner which is
just, fair and reasonable and not in an unreasonable,
capricious or arbitrary manner leaving room for
discrimination......"
27. Thus in light of what has been discussed herein above coupled with the
settled legal position, the issue no. 1 is decided in favour of the petitioner and
against the respondents.
28. With regard to issue no. 2 whether enquiry proceedings can be conducted
without issuing a notice to the person against whom the same has been initiated,
the principles of natural justice are fundamental to ensure fairness in administrative
and quasi- judicial proceedings. The rule of audi alteram partem is one of the
cornerstones of this principle, thus the person involved in the enquiry proceedings,
must be given a proper notice of the proceedings, detailing the nature of the action
or decision, as well as the allegations or evidence that will be considered. This
gives them an opportunity to prepare a defense. Thus failure to follow these
principles, particularly the failure to issue proper notice or providing an
opportunity to be heard, can result in the decision being deemed procedurally
flawed or unjust, which would likely render the proceedings invalid, as it
undermines the fairness of the process and violates the right to a fair hearing.
29. The record produced before the Court reveals that no notice has been issued to
the petitioner before initiating the said enquiry proceedings, the respondents have
also failed to explain what prevented them from issuing a notice to the petitioner
before initiating the enquiry, and even the final penalty has also been imposed
upon the petitioner. Thus it can be inferred from the respondent's action that the
failure to issue notice was an attempt to prevent the petitioner from having an
opportunity to present his case, as a result, the respondents' action clearly violate
the principle of natural justice with an ulterior and biased motive behind their
conduct.
30. The Apex Court has consistently emphasized that any order issued without
providing sufficient notice and an opportunity to the affected party to be heard is
fundamentally defective. This reinforces the necessity of adhering to due process,
as the failure to issue notice or allow a fair hearing violates the principles of natural
justice, making the decision legally invalid. The Hon'ble Apex Court in case titled
D.K Yadav v. J.M.A Industries Ltd. (1993) 3 SCC 259, has held as under:-
"The law must therefore be now taken to be well-settled that procedure
prescribed for depriving a person of livelihood must meet the challenge
of Article 14 and such law would be liable to be tested on the anvil of
Article 14 and the procedure prescribed by a statute or statutory rule or
rules or orders affecting the civil rights or result in civil consequences
would have to answer the requirement of Article 14. So it must be right,
just and fair and not arbitrary, fanciful or oppressive. There can be no
distinction between a quasi-judicial function and an administrative
function for the purpose of principles of natural justice. The aim of both
administrative inquiry as well as the quasi-judicial inquiry is to arrive at
a just decision and if a rule of natural justice is calculated to secure
justice or to put it negatively, to prevent miscarriage of justice, it is
difficult to see why it should be applicable only to quasi-judicial inquiry
and not to administrative inquiry. It must logically apply to both.
Therefore, fair play in action requires that the procedure adopted must
be just, fair and reasonable. The manner of exercise of the power and its
impact on the rights of the person affected would be in conformity with
the principles of natural justice. Article 21 clubs life with liberty, dignity
of person with means of livelihood without which the glorious content of
dignity of person would be reduced to animal existence. When it is
interpreted that the colour and content of procedure established by law
must be in conformity with the minimum fairness and processual justice,
it would relieve legislative callousness despising opportunity of being
heard and fair opportunities of defence. Article 14 has a pervasive
processual potency and versatile quality, equalitarian in its soul and
allergic to discriminatory dictates. Equality is the antithesis of
arbitrariness. It is, thereby, conclusively held by this Court that the
principles of natural justice are part of Article 14 and the procedure
prescribed by law must be just, fair and reasonable."
31. Thus In light of the discussion made herein above coupled with the judgment
passed by the Apex Court referred above, the issue no.2 is also decided in favour
of the petitioner and against the respondents. The respondents were under legal
obligation qua the petitioner to have issued a notice to the petitioner before
initiation of the inquiry proceedings as the petitioner has the right to be heard
which has not happened in the instant case.
CONCLUSION
32.In light of the discussions made hereinabove, coupled with the settled legal
position, the instant petition is allowed and the impugned order No. TSO/
FCS&CA/A/20/1491-92 dated 03.01.2020 issued by respondent no. 4 along
with report No. 662-69/FCS&CA/D/2018-19 dated 24.01.2019 issued by
respondent No. 3 are hereby quashed. However, it is made clear that this will not
come in the way of the respondents to initiate fresh enquiry, strictly in consonance
with law, if the respondents so desire, after associating the petitioner in said
enquiry. Any decision which is likely to be taken on the basis of said enquiry shall
be taken after issuing show cause notice to the petitioner. In case, decision on the
basis of said inquiry goes against the petitioner so taken, he will be at liberty to
avail appropriate remedy available to him under rules.
33. Further, the amount which has been deposited by the petitioner in pursuance
to the interim order dated 08.01.2020, to the tune of Rs. 4,38,305/-, shall be
released in favour of the petitioner along with the interest accrued thereupon.
34. Accordingly, the petition is disposed of along with connected application(s),
if any, in the manner indicated hereinabove.
(Wasim Sadiq Nargal)
Judge
Jammu:
21 .02.2025
Neha-1
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes/No
