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2002 DIGILAW 899 (AP)

M. F. v. Vijayakumar VS Project Officer

2002-07-22

L.NARASIMHA REDDY

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L. NARASIMHA REDDY, J. ( 1 ) THE petitioner was appointed as an untrained teacher by the Integrated Tribal Development Agency, through orders dated 26-11-1986. He joined duty on 9-12-1986. He claimed to be a candidate belonging to Agency Mala Community, which is recognized as Schedule Tribe (ST ). His appointment was against the vacancy reserved for st . The services of the petitioner were terminated by the 1st respondent through order dated 30-11-1992 on the ground that the Additional District Magistrate and Joint Collector, East Godavari (hereinafter referred to as the Joint Collector ) cancelled his Caste Certificate and thereby he is not entitled to continue in the employment. The petitioner challenged he same in this writ petition. In the counter affidavit filed by the respondent, it is stated that the petitioner was appointed against a vacancy reserved for st and since it was found after enquiry by the Joint Collector that the petitioner does not belong to st and since that order became final, the respondents are left with no alternative except to terminate the services of the petitioner. ( 2 ) SRI K. G. Krishna Murthy, learned counsel for the petitioner, submits that the impugned order is violative of principles of natural justice and is contrary to the procedure laid down in the A. P. Education Act and the Rules made thereunder. It is also his contention that the CCA Rules applies to the Institution concerned and either way the termination ought not to have been ordered without issuing notice and conducting an enquiry. Sri G. Jayaprakash Babu, learned Government Pleader, submits that inasmuch as the impugned order is passed not by way of punishment, but is a consequence of the result of an enquiry, it was not necessary for the respondents to issue any notice or conduct an enquiry. ( 3 ) IT is not in dispute that the petitioner has been appointed against a vacancy reserved for sts . The impugned order has been passed in view and on the basis of the order passed by the Joint Collector dated 31-10-1992, through which it was held that the petitioner does not belong to st . The said order is not challenged so far. As long as that order stands, the social status of the petitioner stands certified to the effect that he does not belong to st . The said order is not challenged so far. As long as that order stands, the social status of the petitioner stands certified to the effect that he does not belong to st . Admittedly, the petitioner was appointed against a vacancy reserved for ST candidate. Once that is so, he is not entitled to continue in a vacancy that was meant for st . ( 4 ) IT is no doubt true that the impugned order was passed without issuing any notice or without conducting an enquiry. However, it needs to be noticed that the question of issuance of any notice or conducting enquiry would arise if only the termination of the petitioner from the service was by way of punishment. The respondents did not make any imputation against the petitioner alleging any misconduct. Once they have received an authenticated communication from a competent authority that the petitioner does not belong to st , they are left with no option except to pass the order. ( 5 ) THE necessity to issue a notice or to conduct an enquiry would arise if only a decision is to be arrived at or a finding is to be recorded. As long as the declaration by a competent authority as to the social status of the petitioner remained, there is hardly any thing that the respondents could have done to rescue the situation, even if there existed the best possible explanation from the petitioner. The respondents could not have undertaken an enquiry into that aspect, inasmuch as it was beyond their competence and jurisdiction. ( 6 ) AS in the case of any principle of law, the application of principles of natural justice cannot be divorce from the attendant facts and circumstances. Principles of natural justice is not an absolute Rule to be pressed into service even where no second view is possible; or where, the person complaining of their infraction has not suffered any prejudice. The invocation of principles of natural justice and insistence on following the same has been to ensure that the person affected by the decision is enabled to put forward his contention before the concerned authority takes a decision or adjudicates the matter. To put it in other words, the person concerned is supposed to suffer prejudice if the decision touching upon his rights is taken without hearing him. To put it in other words, the person concerned is supposed to suffer prejudice if the decision touching upon his rights is taken without hearing him. However, if from the facts of the case, it is evident that the person does not or did not suffer any prejudice on account of non-issuance of notice, the resultant decision cannot be set at naught on the ground of non-observance of principles of natural justice. When the principles of natural justice are supposed to serve a definite purpose, viz. , to avoid prejudice to the person and where such purpose does not exist, invocation of the same is considered as academic or superfluous. ( 7 ) CHIEF Justice Hidayathullah has maintained the perfect balance of asserting the importance of the principles of natural justice and also restricting their use on the touchstone of real prejudice. In JANKINATH SARANGI vs. STATE OF ORISSA, he observed:there is no doubt that if the principles of natura00l justice are violated and there is a gross case this Court would interfere by striking down the order of dismissal; but thee are cases and cases. We have to look to what actual prejudice has been caused to a person by the supposed denial to him of a particular right. "pronouncement of English Courts are to the same effect:in RUSSEL vs. DUKE OF NORFOLK, the House of Lord observed as under: The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth. "in Lloyd vs. Mcmohan, the House of Lords, through Lord Bridge, restated the law on the subject in the following terms:the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. " ( 8 ) THIS approach was adopted with approval by the Supreme Court in K. L. TRIPATHI vs. STATE BANK OF INDIA, wherein Sabyasachi Mukharji, J. , (as he then was), after referring to English and Indian authorities, observed as under:--THERE must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth. " ( 9 ) TO the same effect are the recent judgments in MANAGING DIRECTOR, ECIL vs. B. KARUNAKAR and STATE BANK OF PATIALA vs. S. K. SHARMA. Reverting to the facts of this case, it is evident that the petitioner did not dispute the fact that the Caste Certificate issued to him, on the basis of which he was employed was cancelled by the competent authority. The order of cancellation of the Caste Certificate of the petitioner constituted the sole basis for the impugned order. The petitioner did not dispute its existence, nor did he controvert the veracity of the same. The observation of the Hon ble Supreme Court in K. L. TRIPATHI (4 supra) is nearer to the situation, when it said:the party who does not want to controvert the veracity of the evidence from or testimony gathered behind his back cannot expect to succeed in any subsequent demand that there was no opportunity of cross examination specially when it was not asked for and there was no dispute about the veracity of the statements. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases. Where there is no dispute as to the facts, or the weight to be attached on disputed facts but only an explanation of the acts, absence of opportunity to cross-examination does not create any prejudice in such cases. " ( 10 ) THEREFORE, the contention of the petitioner that the impugned order is violative of the principles of natural justice cannot be accepted. The learned counsel for the petitioner relied upon a judgment of the Division of this Court in WP. No. 10580/99 dated 2-2-2001, wherein a show cause notice issued to an employee requiring him to establish genuineness of the eligibility certificate with a threat of dismissal in default, was held not permissible in law. In the case before the Division Bench, the petitioner was required to establish the genuineness with the threat of dismissal. Inasmuch as there was an element of imputation of misconduct against the petitioner therein, this Court took the view that any punitive action can be taken only after conducting enquiry. In the present case, there is no imputation against the petitioner from the respondents. They have simply acted on the basis of the proceedings of the Joint Collector. ( 11 ) AS long as the social status of the petitioner as a st was cancelled, the respondents were left with no alternative or option. Therefore, the ratio of the said decision does not apply to the facts of the case. ( 12 ) ACCORDINGLY, the writ petition is dismissed. It is, however, made clear that if the petitioner is successful in getting the proceedings issued by the Joint Collector dated 31-10-1992 set aside, in accordance with law, he shall be entitled to be restored his position. There shall be no order as to costs.