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2006 DIGILAW 370 (DEL)

RAVI KUMAR K v. UOI

2006-02-27

H.R.MALHOTRA, MUKUL MUDGAL

body2006
MUKUL MUDGAL, J. ( 1 ) RULE D. B. With the consent of counsel for the parties the writ petition is taken up for final hearing. ( 2 ) ON 19th March, 1996 the petitioner was enrolled in the Indian force as an Airman and was promoted to the rank of LAC and thereafter to the rank of a Corporal. On 3rd April, 2004 the petitioner was called by the Unit authorities stating that there was some complaint against him but he was not supplied any copy of the said complaint. On 25th May, 2004 a show cause notice was issued against the petitioner by the respondents. On 21st June, 2004 the petitioner submitted a reply to the said show cause notice. On 10th August, 2004 an order of dismissal was passed by the respondents against the petitioner. On 25th August, 2004 the petitioner preferred a representation to the concerned authority, seeking copies of the relevant documents for the purpose of filing an appeal to the Chief of Air Staff. On 6th September, 2004 the petitioner preferred a statutory petitioner/appeal to the Chief of Air staff but no decision was taken on the said petition/appeal. On 26th April, 2005 the petitioner preferred a civil writ petition No. 7167/2005 in this court which was disposed of directing the Chief of Air Staff to decide the petitioner s statutory petition within one month. On 8th June, 2005 the petitioner s statutory petition was disposed of by the Chief of the Air Staff. ( 3 ) THE petitioner s sole grievance is that the order dated 10th august, 2004 which was appealed against to the Chief of Air Staff was passed by the Chief of Air Staff himself while he was serving as AOC-in-C. The petitioner s grievance is that the hearing of the appeal by the Chief of Air staff in whatever capacity is contrary to law. The fact of the hearing of the appeal by the Chief of Air Staff, Air Chief Marshal, S. P. Tyagi is not denied. However it is contended by the respondent that this was done as the Chief of Air staff applied his mind afresh on being advised by a different set of staff officers. ( 4 ) (A) The Hon ble Supreme Court in Canara Bank Vs. V. K. Awasthy reported as (2005) 6 SCC 321 , has laid down the following position of law:"8. ( 4 ) (A) The Hon ble Supreme Court in Canara Bank Vs. V. K. Awasthy reported as (2005) 6 SCC 321 , has laid down the following position of law:"8. Natural justice is another name for common-sense justice. Rules of natural justice are no codified canons. But they are principles ingrained into the conscience of man. Natural 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. 9. The expressions "natural justice" and "legal justice" do not present a watertight 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 form 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 litigant s defence. 10. The adherence to principles of natural justice as recognised by all civilised 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 apprise the party determinatively of 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. The concept has gained significance and shades with time. 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. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "magna carta". The classic exposition of Sir Edward Code of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works the principle was thus stated: (ER p. 420) "[e]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. adam (says God), where art thou" Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat"" since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond. 11. 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. What is meant by the term "principles of natural justice" is not easy to determine. Lord Summer (then Hamilton, L. J.) in R. v. Local Govt. Board (KB at p. 199) described the phrase as sadly lacking in precision. In General wright observed that it was not desirable to attempt "to force it into any procrustean bed" and mentioned that one essential requirement was that the tribunal should be impartial and have no personal interest in the controversy, and further that it should give " a full and fair opportunity" to every party of being heard. 16. 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 judicial and administrative process. 16. 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 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 it, "no man shall be a judge in his own cause". Coke used the form "aliquis non debet esse judex in propria cause, uia non potest esse 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 suuitor 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 contiental 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 altera, aequum licet dixerit, haud aequum fecerit" 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 case) or in other words, it is now expressed, "justice should not only be done but should manifestly be seen to be done. " (underlining supplied) 4 (b) This court in Swashrayi Mahila Seva Sangh Vs. UOI reported as 2005 III AD (Delhi) 323, laid down the following position of law:- "in Syed Yakoob Vs. K. S. Radhkrishnan, AIR 1964 SC 477 it was held that when a question is decided without giving opportunity of hearing to a party affected, a writ of certiorari can be granted. Similarly in Harbans Lal Vs. Jagmohan Saran, (1985) 4 SCC 333 it was held that certiorari shall issue if there is any breach of principles of natural justice. K. S. Radhkrishnan, AIR 1964 SC 477 it was held that when a question is decided without giving opportunity of hearing to a party affected, a writ of certiorari can be granted. Similarly in Harbans Lal Vs. Jagmohan Saran, (1985) 4 SCC 333 it was held that certiorari shall issue if there is any breach of principles of natural justice. " ( 5 ) WHILE we have no doubt that the appeal has been disposed of fairly as noted in the order of this court dated 28th September, 2005, nevertheless in view of the above position of law laid down by the Supreme Court and this court, justice must not only be done but must be seen to be done. ( 6 ) ACCORDINGLY we are of the view that the impugned order dated 10th August, 2004 cannot survive as it is in violation of one of the principles of natural justice, "nemo debet esse judex in propria sua causa" i. e no one should be a judge in his own cause. The impugned order is accordingly set aside. The respondent is directed to send the appeal preferred by the petitioner to the Central Government. In the peculiar circumstances of the case, we direct the Central Government to dispose of the appeal filed by the petitioner. The appeal of the petitioner shall be disposed of by the Central Government by a reasoned order not later than 31st July, 2006. If the petitioner is aggrieved by the disposal of the appeal it will be open to him to challenge the said order in appropriate proceedings. The writ petition is accordingly disposed of. .