Madhya Pradesh High Court
Jitendra Singh vs The State Of Madhya Pradesh on 19 February, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 19th OF FEBRUARY, 2024
WRIT PETITION No. 5039 of 2020
BETWEEN:-
JITENDRA SINGH S/O SHRI MAYACHAND, AGED
ABOUT 28 YEARS, OCCUPATION: SERVICE
VILLAGE BHOPADA, TEHSIL KASRAWAD
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANURAJ SINGH - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
1. COLLECTOR KHARGONE (MADHYA
PRADESH)
ADDL. DISTRICT PROJECT OFFICER/ CHIEF
2. EXECUTIVE OFFICER JILA PANCHAYAT
KHARGONE (MADHYA PRADESH)
JANPAD PANCHAYAT KASRAWAD THROUGH
ITS CHIEF EXECUTIVE OFFICER TEH.
3.
KASRAWAD DIST. KHARGONE... (MADHYA
PRADESH)
.....RESPONDENTS
( BY MS. BHAGYASHREE SUGANDHI - PANEL LAWYER)
This petition coming on for admission this day, the court passed
the following:
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 21-02-2024
14:05:54
2
ORDER
1. The petitioner before this Court has filed the present petition
being aggrieved by the order dated 28.04.2018 (Annexure P/1) passed
by the Chief Executive Officer, Janpad Panchayat, Kasravad, district
Khargone, by which his services have been put to an end. He has also
challenged the order dated 05.02.2019 passed by the Chief Executive
Officer, Jila Panchayat, District Khargone whereby his appeal has been
dismissed and also the order dated 23.10.2019 passed by the
Commissioner, Indore Division, Indore, whereby his Second Appeal
has been dismissed.
2. The contention of the petitioner is that he was appointed by order
dated 03.02.2012 on the post of Gram Rojgar Sahayak. By the
impugned order his services have been terminated without issuing any
show cause notice to him and without granting him opportunity of any
hearing.
3. This Court has issued notices and a detailed reply has been filed
by the respondents. The return which is supported by an affidavit
reflects that the petitioner was not heard at any point of time and it does
not refer to any show cause notice having been issued to him. It has
been stated by learned counsel for the respondent that there were
several complaints against the petitioner and his work was found to be
very unsatisfactory and despite repeated reminders there was no
improvement in the same and hence services of the petitioner have been
terminated.
4. In the considered opinion of this Court, if there was a complaint
or there was some other allegation against the petitioner, respondents
ought to have given at least a proper show cause notice to the petitioner.
The petitioner's case reflects that principles of natural justice and fair
play have been violated.
5. In similar circumstances, in Writ Petition No.6197/2017 (S)
Mahesh S/o Nanakram Birla V/s. State of M.P. and Another a
similar order of termination of Gram Rojgar Sahayak was set aside. It
was held as under :-
"The below-mentioned passages by the Hon'ble Supreme Court
in the case of Uma Nath Pandey v. State of U.P. reported in AIR 2009
SC 2375 exhaustively explain natural justice and deserve to be quoted
in full in the context of the current dispute:
"6. Natural justice is another name for commonsense
justice. Rules of natural justice are not codified
canons. But they are principles ingrained into the
conscience of man. Natural justice is the
administration of justice in a commonsense liberal
way. Justice is based substantially on natural ideals
and human values. The administration of justice is to
be freed from the narrow and restricted
considerations which are usually associated with a
formulated law involving linguistic technicalities and
grammatical niceties. It is the substance of justice
which has to determine its form.
7. The expressions "natural justice" and "legal
justice" do not present a water-tight classification. It
is the substance of justice which is to be secured by
both, and whenever legal justice fails to achieve this
solemn purpose, natural justice is called in aid of
legal justice. Natural justice relieves legal justice
from unnecessary technicality, grammatical pedantry
or logical prevarication. It supplies the omissions of a
formulated law. As Lord Buckmaster said, no form or
procedure should ever be permitted to exclude the
presentation of a litigants' defence.
8. The adherence to principles of natural justice as
recognized by all civilized States is of supreme
importance when a quasi-judicial body embarks on
determining disputes between the parties, or any
administrative action involving civil consequences is
in issue. These principles are well settled. The first
and foremost principle is what is commonly known as
audi alteram partem rule. It says that no one should
be condemned unheard. Notice is the first limb of this
principle. It must be precise and unambiguous. It
should appraise the party determinatively the case he
has to meet. Time given for the purpose should be
adequate so as to enable him to make his
representation. In the absence of a notice of the kind
and such reasonable opportunity, the order passed
becomes wholly vitiated. Thus, it is but essential that
a party should be put on notice of the case before any
adverse order is passed against him. This is one of the
most important principles of natural justice. It is after
all an approved rule of fair play.....
10. Principles of natural justice are those rules which
have been laid down by the Courts as being the
minimum protection of the rights of the individual
against the arbitrary procedure that may be adopted
by a judicial, quasi-judicial and administrative
authority while making an order affecting those
rights. These rules are intended to prevent such
authority from doing injustice.
12. Lord Wright referred to the leading cases on the
subject. The most important of them is the Board of
Education v. Rice (1911 AC 179:80 LJKB 796),
where Lord Loreburn, L.C. observed as follows:
"Comparatively recent statutes have extended, if they
have originated, the practice of imposing upon
departments or offices of State the duty of deciding or
determining questions of various kinds. It will, I
suppose usually be of an administrative kind, but
sometimes, it will involve matter of law as well as
matter of fact, or even depend upon matter of law
alone. In such cases, the Board of Education will
have to ascertain the law and also to ascertain the
facts. I need not and that in doing either they must act
in good faith and fairly listen to both sides for that is
a duty lying upon everyone who decides anything.
But I do not think they are bound to treat such a
question as though it were a trial....The Board is in
the nature of the arbitral tribunal, and a Court of law
has no jurisdiction to hear appeals from the
determination either upon law or upon fact. But if the
Court is satisfied either that the Board have not acted
judicially in the way I have described, or have not
determined the question which they are required by
the Act to determine, then there is a remedy by
mandamus and certiorari".
13. Lord Wright also emphasized from the same
decision the observation of the Lord Chancellor that
the Board can obtain information in any way they
think best, always giving a fair opportunity to those
who are parties to the controversy for correcting or
contradicting any relevant statement prejudicial to
their view". To the same effect are the observations of
Earl of Selbourne, LO in Spackman v. Plumstead
District Board of Works (1985 (10) AC 229:54 LJMC
81), where the learned and noble Lord Chancellor
observed as follows:
"No doubt, in the absence of special provisions as to
how the person who is to decide is to proceed, law
will imply no more than that the substantial
requirements of justice shall not be violated. He is not
a judge in the proper sense of the word; but he must
give the parties an opportunity of being heard before
him and stating their case and their view. He must
give notice when he will proceed with the matter and
he must act honestly and impartially and not under
the dictation of some other person or persons to
whom the authority is not given by law. There must
be no malversation of any kind. There would be no
decision within the meaning of the statute if there
were anything of that sort done contrary to the
essence of justice".
14. Lord Selbourne also added that the essence of
justice consisted in requiring that all parties should
have an opportunity of submitting to the person by
whose decision they are to be bound, such
considerations as in their judgment ought to be
brought before him. All these cases lay down the very
important rule of natural justice contained in the oft-
quoted phrase 'justice should not only be done, but
should be seen to be done'.
15. 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.
16. Natural justice has been variously defined by
different Judges. A few instances will suffice. In
Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord
Cranworth defined it as 'universal justice'. In James
Dunber Smith v. Her Majesty the Queen (1877-78(3)
App.Case 614, 623 JC) Sir Robort P. Collier,
speaking for the judicial committee of Privy council,
used the phrase 'the requirements of substantial
justice', while in Arthur John Specman v. Plumstead
District Board of Works (1884-85(10) App.Case 229,
240), Earl of Selbourne, S.C. preferred the phrase 'the
substantial requirement of justice'. In Vionet v.
Barrett (1885(55) LJRD 39, 41), Lord Esher, MR
defined natural justice as 'the natural sense of what is
right and wrong'. While, however, deciding Hookings
v. Smethwick Local Board of Health (1890 (24) QBD
712), Lord Fasher, M.R. instead of using the
definition given earlier by him in Vionet's case
(supra) chose to define natural justice as
'fundamental justice'. In Ridge v. Baldwin (1963(1)
WB 569, 578), Harman LJ, in the Court of Appeal
countered natural justice with 'fair-play in action' a
phrase favoured by Bhagawati, J. in Maneka Gandhi
v. Union of India (1978 (2) SCR 621). In re R.N. (An
Infant) (1967 (2) B 617, 530), Lord Parker, CJ,
preferred to describe natural justice as 'a duty to act
fairly'. In Fairmount Investments Ltd. v. Secretary to
State for Environment (1976 WLR 1255) Lord
Russell of Willowan somewhat picturesquely
described natural justice as 'a fair crack of the whip'
while Geoffrey Lane, LJ. In Regina v. Secretary of
State for Home Affairs Ex Parte Hosenball (1977 (1)
WLR 766) preferred the homely phrase 'common
fairness'.
17. How then have the principles of natural justice
been interpreted in the Courts and within what limits
are they to be confined? Over the years by a process
of judicial interpretation two rules have been evolved
as representing the principles of natural justice in
judicial process, including therein quasi-judicial and
administrative process. They constitute the basic
elements of a fair hearing, having their roots in the
innate sense of man for fair-play and justice which is
not the preserve of any particular race or country but
is shared in common by all men. The first rule is
'nemo judex in causa sua' or 'nemo debet esse judex
in propria causa sua' as stated in (1605) 12
Co.Rep.114 that is, 'no man shall be a judge in his
own cause'. Coke used the form 'aliquis non debet
esse judex in propria causa quia non potest esse judex
at pars' (Co.Litt. 1418), that is, 'no man ought to be a
judge in his own case, because he cannot act as Judge
and at the same time be a party'. The form 'nemo
potest esse simul actor et judex', that is, 'no one can
be at once suitor and judge' is also at times used. The
second rule is 'audi alteram partem', that is, 'hear the
other side'. At times and particularly in continental
countries, the form 'audietur at altera pars' is used,
meaning very much the same thing. A corollary has
been deduced from the above two rules and
particularly the audi alteram partem rule, namely 'qui
aliquid statuerit parte inaudita alteram actquam licet
dixerit, haud acquum facerit' that is, 'he who shall
decide anything without the other side having been
heard, although he may have said what is right, will
not have been what is right' (See Bosewell's case
(1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it
is now expressed, 'justice should not only be done but
should manifestly be seen to be done'.
What is known as 'useless formality theory' has
received consideration of this Court in M.C. Mehta v.
Union of India (1999(6) SCC 237). It was observed
as under:
"Before we go into the final aspect of this contention,
we would like to state that case 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: (1971)2 All ER 1278,
HL) (per Lord Reid and Lord Wilberforce), Glynn v.
Keele University: (1971) 2 All ER 89; Cinnamond v.
British Airports Authority: (1980) 2 All ER 368, CA)
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 (1996 (8) Admn. LR 351, 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. McMohan (1987 (1) All ER 1118,
CA) has also not disfavoured refusal of discretion in
certain cases of breach of natural justice. The New
Zealand Court in McCarthy v. Grant (1959 NZLR
1014) 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 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 (1964 AC 40: (1963) 2 All ER 66,
HL), Megarry, J. in John v. Rees (1969 (2) All ER
274) 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 term'. More
recently, Lord Bingham has deprecated the 'useless
formality theory' in R. v. Chief Constable of the
Thames Valley Police Forces, ex p. Cotton (1990
IRLR 344) 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 (supra) and Glynn (supra)
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.526-530) 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 (1996 (3) SCC 364),
Rajendra Singh v. State of M.P. (1996 (5) SCC 460)
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.
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 the case before us,
'admitted and indisputable' facts show that grant of a
writ will be in vain as pointed by Chinnappa Reddy,
J."
6. Natural justice is the essence of fair adjudication, deeply rooted
in tradition and conscience, to be ranked as fundamental. The purpose
of following the principles of natural justice is the prevention of
miscarriage of justice.
7. In light of the aforesaid judgment, present writ petition stands
allowed and the impugned order dated 28.04.2018 (Annexure P/1),
05.02.2019 (Annexure P/2) and 23.10.2019 (Annexure P/3) are hereby
quashed. The petitioner shall be entitled for all consequential benefits.
However, so far as the back wages are concerned, the petitioner shall be
entitled for 50% of the back wages. The amount of back wages be paid
to the petitioner within a period of 90 days from the date of receipt of
certified copy of this order. The respondents shall however be at liberty
to proceed afresh against the petitioner in accordance with law, if so
advised. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
ns
