Madhya Pradesh High Court
Rani Durgawati Swa Sahayata Samooh ... vs The State Of Madhya Pradesh on 7 August, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 W.P. No.11599/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7th OF AUGUST, 2024
WRIT PETITION No. 11599 of 2023
RANI DURGAWATI SWA SAHAYATA SAMOOH ANTPURA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vishal Pateriya- Advocate for petitioner.
Shri Anubhav Jain- Government Advocate for respondent/State.
Shri Kaustubh Tiwari- Advocate for respondent No. 5.
ORDER
This petition under Article 226 of the Constitution of India has
been filed seeking the following relief(s):-
"(i) That this is the writ of mandamus, the
petitioner prayed before this Hon'ble Court may
kindly be pleased to set aside the impugned order
dated 20.04.2023 passed by the Collector and also
set aside the order dated 30.101.2022 passed by
the Chief Executive Officer.
(ii) Any other relief which this Hon'ble Court
deems just and proper in the facts and
circumstances of the case may also kindly be
granted to the petitioner."
2. It is submitted by counsel for petitioner that the petitioner made
an application to the respondents for award of contract for supply of
Mid-day Meal. Earlier, the Mid-day Meal was being supplied by the
respondent No.5 but after the application was filed by the petitioner, it
was inquired by the SDO and it was found that the Mid-day Meal,
which is being supplied by the respondent No.5 is not upto the mark
and, therefore, the contract for supply of Mid-day Meal to Government
Middle School, Chhipri was withdrawn from respondent No.5 and was
allotted to the petitioner by order dated 04.02.2022. The petitioner made
a complaint on 15.06.2022 that certain articles required for preparation
of Mid-day Meal like Gas Cylinder, Gas Stove, Utensils etc. have been
stolen. Later on, a complaint was made, which was enquired into and as
per the enquiry report, it was found that the petitioner had not supplied
Mid-day Meal from 16.06.2022 to 19.07.2022. The ingredients of the
Mid-day Meal were not as per the specifications and the quality of the
Mid-day Meal was also not good. The petitioner was supplying the Mid-
day Meal in two schools, which were situated at a distance of 4 KM.
Accordingly by order dated 30.11.2022 the contract of the petitioner to
supply Mid-day Meal was withdrawn and it was given to the respondent
No.5.
3. Being aggrieved by the said order the petitioner preferred an
appeal before Additional Collector, Tikamgarh, who by order dated
17.01.2023 passed an interim order but by impugned order dated
30.04.2023 has dismissed the appeal.
4. Challenging the orders passed by SDO (Revenue), Janpad
Panchayat, Jatara, District Tikamgarh as well as Additional Collector,
Tikamgarh, it is submitted by counsel for petitioner that as per the
guidelines issued by the State of Madhya Pradesh for supply of Mid-day
Meal, the decision can be taken by the CEO, Jila Panchayat, whereas;
the order under challenge was passed by CEO, Janpad Panchayat. It is
further submitted that the petitioner should have been granted at least a
one month's notice before termination of contract.
5. Heard the learned counsel for petitioner.
6. It appears that the petitioner made an application for grant of
contract and by withdrawing the contract from respondent No.5, the
contract of supply of Mid-day Meal was given to petitioner by order
dated 04.02.2022.
7. The counsel for petitioner could not point out the legality of the
procedure, which was adopted by respondents for allotment of contract
of Mid-day Meal to the petitioner, therefore it is clear that petitioner was
back door entrant for acquiring contract of Mid-day Meal.
8. Be that whatever it may be.
9. There are allegations that the petitioner did not supply the Mid-
day Meal from 16.06.2022 to 19.07.2022. Except by submitting that
theft had taken place in the Kitchen of the petitioner nothing has been
suggested to dislodge the aforesaid fact.
10. It appears that a complaint was made by the petitioner with regard
to theft of some articles from the Kitchen but that by itself cannot be a
ground not to supply the Mid-day Meal. The first report with regard to
theft was made by the petitioner to SHO, Police Station, Lidhora,
District Tikamgarh on 19.07.2022 and second complaint is dated
23.07.2022. In these complaints, it was mentioned that the Gas
Cylinder was stolen on 18.07.2022 and again on 22.07.2022, articles
kept in kitchen were stolen. Therefore, according to the petitioner the
theft took place in the night of 16.07.2022 and 22.07.2022, whereas; the
allegations are that the petitioner did not supply the Mid-day Meal from
16.06.2022 to 19.07.2022 i.e. much before the alleged theft took place.
Although, the petitioner has filed copy of the Punchnama dated
15.06.2022 prepared by Principle of Government Higher Secondary
School, Chhipari, District Tikamgarh, according to which certain
articles were stolen from the Kitchen in the night of 15.06.2022 but no
written complaint to the police in that regard was ever made by the
petitioner, therefore in absence of any police complaint with regard to
theft in the night of 15.06.2022 the Punchnama prepared by Principal,
Government Higher Secondary School, Chhipri cannot be accepted.
11. Under these circumstances, the reasons assigned by the petitioner
for non-supply of Mid-day Meal from 16.06.2022 till 19.07.2022 cannot
be accepted. Therefore, it is held that the report submitted by the
authorities with regard to non supply of Mid-day Meal by the petitioner
from 16.06.2022 to 19.07.2022 is found to be correct. Furthermore,
there are specific allegations that the Mid-day Meal supplied by the
petitioner was not in accordance with the specification and sub-standard
Mid-day Meal was being supplied. It is necessarily disputed question of
fact which cannot be enquired into by this Court in exercise power
under Article 226 of the Constitution of India.
12. So far as the contention that order dated 30.11.2022 was passed
by CEO, Janpad Panchayat, Jatara, District Tikamgarh, whereas; as per
guidelines, the contract can been terminated by CEO, Jila Panchayat is
concerned, the same is misconceived.
13. It is clear from order dated 30.11.2022 issued by CEO, Janpad
Panchayat, Jatara that the same was based on the recommendations
made by CEO, Jila Panchayat, Tikamgarh. Therefore, order dated
30.11.2022 was not adjudicatory in nature but is was merely a
communication of the decision taken by CEO, Jila Panchayat,
Tikamgarh.
14. Even, if the petitioner was not granted an opportunity of hearing,
still this Court cannot quash the proceedings merely on the ground of
non-compliance of principles of natural justice.
15. The petitioner is required to point out the prejudice as held by the
Supreme Court in the case of Nirma Industries Limited and another
Vs. Securities and Exchange Board of India reported in (2013) 8 SCC
20 has held as under:
"30. In B. Karunakar, having defined the meaning of
"civil consequences", this Court reiterated the
principle that the Court/Tribunal should not
mechanically set aside the order of punishment on
the ground that the report was not furnished to the
employee. It is only if the Court or Tribunal finds
that the furnishing of the report would have made a
difference to the result in the case that it should set
aside the order of punishment. In other words, the
Court reiterated that the person challenging the order
on the basis that it is causing civil consequences
would have to prove the prejudice that has been
caused by the non-grant of opportunity of hearing. In
the present case, we must hasten to add that, in the
letter dated 4-5-2006, the appellants have not made a
request for being granted an opportunity of personal
hearing. Therefore, the ground with regard to the
breach of rules of natural justice clearly seems to be
an afterthought."
16. The Supreme Court in the case of Chairman, State Bank of
India and another Vs. M.J. James reported in (2022) 2 SCC 301 has
held as under:-
"31. In State of U.P. v. Sudhir Kumar Singh referring
to the aforesaid cases and several other decisions of
this Court, the law was crystallised as under : (SCC
para 42)
"42. An analysis of the aforesaid judgments thus
reveals:
42.1. Natural justice is a flexible tool in the
hands of the judiciary to reach out in fit cases to
remedy injustice. The breach of the audi alteram
partem rule cannot by itself, without more, lead
to the conclusion that prejudice is thereby
caused.
42.2. Where procedural and/or substantive
provisions of law embody the principles of
natural justice, their infraction per se does not
lead to invalidity of the orders passed. Here
again, prejudice must be caused to the litigant,
except in the case of a mandatory provision of
law which is conceived not only in individual
interest, but also in public interest.
42.3. No prejudice is caused to the person
complaining of the breach of natural justice
where such person does not dispute the case
against him or it. This can happen by reason of
estoppel, acquiescence, waiver and by way of
non-challenge or non-denial or admission of
facts, in cases in which the Court finds on
facts that no real prejudice can therefore be said
to have been caused to the person complaining
of the breach of natural justice.
42.4. In cases where facts can be stated to be
admitted or indisputable, and only one
conclusion is possible, the Court does not pass
futile orders of setting aside or remand when
there is, in fact, no prejudice caused. This
conclusion must be drawn by the Court on an
appraisal of the facts of a case, and not by the
authority who denies natural justice to a person.
42.5. The "prejudice" exception must be more
than a mere apprehension or even a reasonable
suspicion of a litigant. It should exist as a matter
of fact, or be based upon a definite inference of
likelihood of prejudice flowing from the non-
observance of natural justice."
17. The Supreme Court in the case of Dharampal Satyapal Limited
Vs. Deputy Commissioner of Central Excise, Gauhati and others
reported in (2015) 8 SCC 519 has held as under:-
"20. Natural justice is an expression of English
Common Law. Natural justice is not a single
theory--it is a family of views. In one sense
administering justice itself is treated as natural virtue
and, therefore, a part of natural justice. It is also
called "naturalist" approach to the phrase "natural
justice" and is related to "moral naturalism". Moral
naturalism captures the essence of commonsense
morality--that good and evil, right and wrong, are
the real features of the natural world that human
reason can comprehend. In this sense, it may
comprehend virtue ethics and virtue jurisprudence in
relation to justice as all these are attributes of natural
justice. We are not addressing ourselves with this
connotation of natural justice here.
21. In Common Law, the concept and doctrine of
natural justice, particularly which is made applicable
in the decision-making by judicial and quasi-judicial
bodies, has assumed a different connotation. It is
developed with this fundamental in mind that those
whose duty is to decide, must act judicially. They
must deal with the question referred both without
bias and they must give (sic an opportunity) to each
of the parties to adequately present the case made. It
is perceived that the practice of aforesaid attributes in
mind only would lead to doing justice. Since these
attributes are treated as natural or fundamental, it is
known as "natural justice". The principles of natural
justice developed over a period of time and which is
still in vogue and valid even today are : (i) rule
against bias i.e. nemo debet esse judex in propria sua
causa; and (ii) opportunity of being heard to the
party concerned i.e. audi alteram partem. These are
known as principles of natural justice. To these
principles a third principle is added, which is of
recent origin. It is the duty to give reasons in support
of decision, namely, passing of a "reasoned order".
* * * *
38. But that is not the end of the matter. While the
law on the principle of audi alteram partem has
progressed in the manner mentioned above, at the
same time, the courts have also repeatedly remarked
that the principles of natural justice are very flexible
principles. They cannot be applied in any straitjacket
formula. It all depends upon the kind of functions
performed and to the extent to which a person is
likely to be affected. For this reason, certain
exceptions to the aforesaid principles have been
invoked under certain circumstances. For example,
the courts have held that it would be sufficient to
allow a person to make a representation and oral
hearing may not be necessary in all cases, though in
some matters, depending upon the nature of the case,
not only full-fledged oral hearing but even cross-
examination of witnesses is treated as a necessary
concomitant of the principles of natural justice.
Likewise, in service matters relating to major
punishment by way of disciplinary action, the
requirement is very strict and full-fledged
opportunity is envisaged under the statutory rules as
well. On the other hand, in those cases where there is
an admission of charge, even when no such formal
inquiry is held, the punishment based on such
admission is upheld. It is for this reason, in certain
circumstances, even post-decisional hearing is held
to be permissible. Further, the courts have held that
under certain circumstances principles of natural
justice may even be excluded by reason of diverse
factors like time, place, the apprehended danger and
so on.
* * * *
40. In this behalf, we need to notice one other
exception which has been carved out to the aforesaid
principle by the courts. Even if it is found by the
court that there is a violation of principles of natural
justice, the courts have held that it may not be
necessary to strike down the action and refer the
matter back to the authorities to take fresh decision
after complying with the procedural requirement in
those cases where non-grant of hearing has not
caused any prejudice to the person against whom the
action is taken. Therefore, every violation of a facet
of natural justice may not lead to the conclusion that
the order passed is always null and void. The validity
of the order has to be decided on the touchstone of
"prejudice". The ultimate test is always the same viz.
the test of prejudice or the test of fair hearing.
41. In ECIL, the majority opinion, penned down by
Sawant, J., while summing up the discussion and
answering the various questions posed, had to say as
under qua the prejudice principle : (SCC pp. 756-58,
para 30)
"30. Hence the incidental questions raised above may
be answered as follows:
* * *
(v) The next question to be answered is what is the
effect on the order of punishment when the report of
the enquiry officer is not furnished to the employee
and what relief should be granted to him in such
cases. The answer to this question has to be relative
to the punishment awarded. When the employee is
dismissed or removed from service and the inquiry is
set aside because the report is not furnished to him,
in some cases the non-furnishing of the report may
have prejudiced him gravely while in other cases it
may have made no difference to the ultimate
punishment awarded to him. Hence to direct
reinstatement of the employee with back wages in all
cases is to reduce the rules of justice to a mechanical
ritual. The theory of reasonable opportunity and the
principles of natural justice have been evolved to
uphold the rule of law and to assist the individual to
vindicate his just rights. They are not incantations to
be invoked nor rites to be performed on all and
sundry occasions. Whether in fact, prejudice has
been caused to the employee or not on account of the
denial to him of the report, has to be considered on
the facts and circumstances of each case. Where,
therefore, even after the furnishing of the report, no
different consequence would have followed, it would
be a perversion of justice to permit the employee to
resume duty and to get all the consequential benefits.
It amounts to rewarding the dishonest and the
guilty and thus to stretching the concept of justice to
illogical and exasperating limits. It amounts to an
'unnatural expansion of natural justice' which in
itself is antithetical to justice."
* * * *
44. At the same time, it cannot be denied that as far
as courts are concerned, they are empowered to
consider as to whether any purpose would be served
in remanding the case keeping in mind whether any
prejudice is caused to the person against whom the
action is taken. This was so clarified in ECIL itself in
the following words : (SCC p. 758, para 31)
"31. Hence, in all cases where the enquiry
officer's report is not furnished to the delinquent
employee in the disciplinary proceedings, the
courts and tribunals should cause the copy of the
report to be furnished to the aggrieved employee
if he has not already secured it before coming to
the court/tribunal and given the employee an
opportunity to show how his or her case was
prejudiced because of the non-supply of the
report. If after hearing the parties, the
court/tribunal comes to the conclusion that the
non-supply of the report would have made no
difference to the ultimate findings and the
punishment given, the court/tribunal should not
interfere with the order of punishment. The
court/tribunal should not mechanically set aside
the order of punishment on the ground that the
report was not furnished as is regrettably being
done at present. The courts should avoid
resorting to short cuts. Since it is the
courts/tribunals which will apply their judicial
mind to the question and give their reasons for
setting aside or not setting aside the order of
punishment, (and not any internal appellate or
revisional authority), there would be neither a
breach of the principles of natural justice nor a
denial of the reasonable opportunity. It is only if
the court/tribunal finds that the furnishing of the
report would have made a difference to the
result in the case that it should set aside the
order of punishment."
18. The Supreme Court in the case of Canara Bank and others v.
Debasis Das and others reported in (2003) 4 SCC 557 has held as
under:-
"22. What is known as "useless formality theory"
has received consideration of this Court in M.C.
Mehta v. Union of India. It was observed as under :
(SCC pp. 245-47, paras 22-23)
"22. Before we go into the final aspects of this
contention, we would like to state that cases
relating to breach of natural justice do also
occur where all facts are not admitted or are not
all beyond dispute. In the context of those cases
there is a considerable case-law and literature as
to whether relief can be refused even if the court
thinks that the case of the applicant is not one of
'real substance' or that there is no substantial
possibility of his success or that the result will
not be different, even if natural justice is
followed see Malloch v. Aberdeen Corpn. (per
Lord Reid and Lord Wilberforce), Glynn v.
Keele University, Cinnamond v. British Airports
Authority and other cases where such a view has
been held. The latest addition to this view is R.
v. Ealing Magistrates' Court, ex p Fannaran
(Admn LR at p. 358) [see de Smith, Suppl. p. 89
(1998)] where Straughton, L.J. held that there
must be 'demonstrable beyond doubt' that the
result would have been different. Lord Woolf in
Lloyd v. McMahon has also not disfavoured
refusal of discretion in certain cases of breach of
natural justice. The New Zealand Court in
McCarthy v. Grant however goes halfway when
it says that (as in the case of bias), it is sufficient
for the applicant to show that there is 'real
likelihood -- not certainty -- of prejudice'. On
the other hand, Garner's Administrative Law
(8th Edn., 1996, pp. 271-72) says that slight
proof that the result would have been different is
sufficient. On the other side of the argument, we
have apart from Ridge v. Baldwin, Megarry, J.
in John v. Rees stating that there are always
'open and shut cases' and no absolute rule of
proof of prejudice can be laid down. Merits are
not for the court but for the authority to
consider. Ackner, J. has said that the 'useless
formality theory' is a dangerous one and,
however inconvenient, natural justice must be
followed. His Lordship observed that
'convenience and justice are often not on
speaking terms'. More recently, Lord Bingham
has deprecated the 'useless formality theory' in
R. v. Chief Constable of the Thames Valley
Police Forces, ex p Cotton by giving six
reasons. (See also his article 'Should Public Law
Remedies be Discretionary?' 1991 PL, p. 64.) A
detailed and emphatic criticism of the 'useless
formality theory' has been made much earlier in
'Natural Justice, Substance or Shadow' by Prof.
D.H. Clark of Canada (see 1975 PL, pp. 27-63)
contending that Malloch and Glynn were
wrongly decided. Foulkes (Administrative Law,
8th Edn., 1996, p. 323), Craig (Administrative
Law, 3rd Edn., p. 596) and others say that the
court cannot prejudge what is to be decided by
the decision-making authority. de Smith (5th
Edn., 1994, paras 10.031 to 10.036) says courts
have not yet committed themselves to any one
view though discretion is always with the court.
Wade (Administrative Law, 5th Edn., 1994, pp.
526-30) says that while futile writs may not be
issued, a distinction has to be made according to
the nature of the decision. Thus, in relation to
cases other than those relating to admitted or
indisputable facts, there is a considerable
divergence of opinion whether the applicant can
be compelled to prove that the outcome will be
in his favour or he has to prove a case of
substance or if he can prove a 'real likelihood'
of success or if he is entitled to relief even if
there is some remote chance of success. We
may, however, point out that even in cases
where the facts are not all admitted or beyond
dispute, there is a considerable unanimity that
the courts can, in exercise of their 'discretion',
refuse certiorari, prohibition, mandamus or
injunction even though natural justice is not
followed. We may also state that there is yet
another line of cases as in State Bank of Patiala
v. S.K. Sharma, Rajendra Singh v. State of M.P.
that even in relation to statutory provisions
requiring notice, a distinction is to be made
between cases where the provision is intended
for individual benefit and where a provision is
intended to protect public interest. In the former
case, it can be waived while in the case of the
latter, it cannot be waived.
23. We do not propose to express any opinion
on the correctness or otherwise of the 'useless
formality' theory and leave the matter for
decision in an appropriate case, inasmuch as in
the case before us, 'admitted and indisputable'
facts show that grant of a writ will be in vain as
pointed out by Chinnappa Reddy, J."
19. No further arguments were advanced by the counsel for petitioner
to assail the impugned order dated 30.11.2022 passed by CEO, Janpad
Panchayat, Jatara and order dated 20.04.2023 passed by Additional
Collector, District Tikamgarh in Case No.226/Appeal/2022-23.
20. Accordingly, no case is made out warranting interference.
21. The petition fails and is hereby dismissed.
22. Interim order dated 13.06.2023 is hereby vacated.
(G.S. AHLUWALIA)
JUDGE
AL
Date: 2024.08.14 17:39:51 +05'30'
