Research › Browse › Judgment

Allahabad High Court · body

1987 DIGILAW 205 (ALL)

Non-Gazetted Civil Accounts Brotherhood, Allahabad v. Comptroller and Auditor General of India

1987-02-24

B.D.AGARWAL, R.P.SINGH

body1987
JUDGMENT B.D. Agarwal, J. - Challenge made in this writ petition under Article 226 of the Constitution is against the order made by the Comptroller and Auditor General of India dated August 16, 1986, whereunder the recognition accorded to the Non-Gazetted Civil Accounts Brotherhood and the affiliation given thereto have been withdrawn. Various grounds have been taken in support of the petition, including that there is violation of the principles of natural justice. After hearing counsel on both sides at some length we have not found it necessary to enter into the different other grounds except that of alleged lack of opportunity. The law is settled that while the right to form an association is fundamental under Article 19(1)(c) of the Constitution, recognition of such association is not a fundamental right. The legislature can by law regulate the working of such assoications by imposing conditions and restrictions on their functions. The right guaranteed by Article 19(1)(c) to form associations does not involve a guaranteed right to recognition also (vide Raghubar Dayal Jai Prakash v. Union of India, AIR 1962 SC 263 ; Delhi Police Non-Gazetted Karmchari Sangh v. Union of India, AIR 1987 SC 379 ). 2. The impugned order dated August 16, 1986 (vide Annexure 6 to the petition recites that the withdrawal was being directed in view of the call given by brotherhood for holding demonstration et cetera before the Comptroller and Auditor General and the incidents, which occurred on August 11, 1986, leading to the damage to Government property, destruction of official records and disruption of official work at the instigation of office bearers, thereby affecting the public interest adversely. This in other words proceeds on alleged acts of gross indiscipline and breach of public order. The order, no doubt, is administrative in character, but upon principles of natural justice there would need still be an opportunity accorded to the Brotherhood to put forward their case on the subject. Keeping in view of the accusations made or the apprehension entertained there is force in the submission that prior opportunity or show cause would have been inexpedient and uncalled for. The principles of natural justice are not, however, cast in straitjacket. In application they vary depending on the facts and circumstances of the case. Keeping in view of the accusations made or the apprehension entertained there is force in the submission that prior opportunity or show cause would have been inexpedient and uncalled for. The principles of natural justice are not, however, cast in straitjacket. In application they vary depending on the facts and circumstances of the case. The effort has to be to draw a balance between the need for expedition and the need to give reasonable opportunity to the person affected to meet the accusations against him. Post-decisional remedial hearing has been recognised as reasonably acceptable alternative in a particular situation. In Mohinder Singh Gill v. Chief Election Commr., New Delhi, (1978) 1 SCC 405 at p. 439 : ( AIR 1978 SC 851 at pp. 875-76) it was observed : "In Wiseman v. Borneman, (1967) 3 All. ER 1045 there was a hint of the competitive claims of hurry and hearing. Lord Reid said : `Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give full opportunity to the defendant to see material against him' (emphasis added). We agree that the elaborate and sophisticated methodology of a formalised hearing may be injurious to promptitude so essential in an election under way. Even so, natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. To burke it altogether may not be a stroke of fairness except in very exceptional circumstances. Even in Wiseman here all that was sought to be done was to see if there was a prima facie case to proceed with a tax case where, inevitably, a fuller hearing would be extended at a larger stage of the proceedings, Lord Reid, Lord Morris of Borth-y-Gest and Lord Wilberforce suggested "that there might be exceptional cases where to decide upon it ex parte would be unfair, and it would be the duty of the tribunal to take appropriate steps to eliminate unfairness" (Lord Denning, M.R., In Howard v. Borneman, (1974) 3 WLR 660 summarised the observations of the Law Lords in this form). No doctrinaire approach is desirable but the Court must be anxious to salvage the cardinal rule to the extent permissible in a given case. No doctrinaire approach is desirable but the Court must be anxious to salvage the cardinal rule to the extent permissible in a given case. After all, it is not obligatory that Counsel should be allowed to appear nor is it compulsory that oral evidence should be adduced. Indeed, it is not even imperative that written statements should be called for. Disclosure of the prominent circumstances and asking for an immediate explanation orally or otherwise may, in many cases, be sufficient compliance. It is even conceivable that an urgent meeting with the concerned parties summoned at an hour's notice, or in a crisis, even a telephone call, may suffice. If all that is not possible as in the case of a fleeing person whose passport has to be impounded lest he should evade the course of justice or a dangerous nuisance needs immediate abatement, the action may be taken followed immediately by a hearing for the purpose of sustaining or setting aside the action to the extent feasible." 3. Reference may as well be made to Maneka Gandhi v. Union of India, (19781 1 SCC 248 at p. 291 : ( AIR 1978 SC 597 at pp. 629-30) in this same connection where we find it laid down : "The audi alteram partern rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law `lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case. It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances." The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. That is why Tucker, L.J., emphasised in Russel v. Duke of Norfolk, (1949) 1 All ER 109 that "whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full-fledged hearing or it may be a hearing which is very brief and minimal: it may be a hearing prior to the decision or it may even be a post-decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise. This circumstantial flexibility of the audi alteran partem rule was emphasised by Lord Reid in Wiseman v. Borneman (supra) when he said that he would be "sorry to see this fundamental general principle degenerate into a series of hard and fast rules" and Lord Hailsham, L.C., also observed in Pearlberg v. Varty, (1971) 1 WLR 728 that the Courts "have taken an increasingly sophisticated view of what is required in individual cases." 4. In our opinion the facts and circumstances in the instant case imminently justified a post-decisional remedial opportunity being accorded. 5. In our opinion the facts and circumstances in the instant case imminently justified a post-decisional remedial opportunity being accorded. 5. Learned Senior Standing Counsel (Central Government) states that it will take three weeks for the formal notice to show cause being given. The notice may be given to the Brotherhood within this period incorporating the acts of commission or omission attributed to the Brotherhood. To this the Brotherhood may submit their reply within another three weeks. We hope and trust that the same will receive due consideration of the Comptroller and Auditor General within six weeks thereafter and an appropriate order made thereupon. For such length of time, as the order is not passed; the impugned order dated August 16, 1986 (vide `Annexure 6' to the petition) shall remain operative. 6. The petition is disposed of accordingly.