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2009 DIGILAW 654 (HP)

SUNITA v. STATE OF H. P.

2009-07-22

DEEPAK GUPTA, SURINDER SINGH

body2009
JUDGMENT Per Deepak Gupta, J. (Oral):-Shri R.S. Chandel, learned counsel for the petitioner, states that he does not want to place on record any other document and the matter may be heard on the documents already on record. 2. By means of this petition, the petitioner has challenged the order dated 22nd November, 2007 passed by the Deputy Commissioner, Shimla, which order has been confirmed by the Divisional Commissioner, Shimla on 28th March, 2008. 3. Briefly stated, the facts of the case are that the petitioner here-in was selected and appointed as Anganwari Helper in Kamanh Anganwari Centre, Tehsil Theog, Distt. Shimla. Her appointment was challenged by the respondent No.4 here-in. The Deputy Commissioner, Shimla without issuing ay notice to the present petitioner and without giving her any hearing in the matter called for the report of the BDO Theog and placing reliance on the said report came to the conclusion that the family of the petitioner had separated only on 3rd July, 2005 and therefore, held that the petitioner was not eligible for appointment. The order of the Deputy Commissioner is totally in violation of principle of natural justice. This order also reflects total non-application of mind. Nowhere has the Deputy Commissioner come to the conclusion that the income of the joint family also is more than Rs.12,000/- per annum. In any event, no order affecting the rights of the petitioner could have been passed without giving her a reasonable opportunity of being heard. 4. We are constrained to observe that the Divisional Commissioner in a very routine and cursory manner upheld these orders. She has specifically noted the argument of the appellant (the present petitioner) that no opportunity was given to her while setting aside her appointment. Despite this argument having been noted the said argument has neither been decided and the matter has been heard on merits itself. 5. One of the verybasic premises of our jurisprudence is that no man should be condemned unheard. A right of hearing is one of the intrinsic principles which runs through our jurisprudence. It is one of the basic tenets of our judicial system. We expect that officers of the level of Deputy Commissioner and Divisional Commissioner who regularly discharge judicial and quasi judicial functions must be aware of this basic principle of law. 6. A right of hearing is one of the intrinsic principles which runs through our jurisprudence. It is one of the basic tenets of our judicial system. We expect that officers of the level of Deputy Commissioner and Divisional Commissioner who regularly discharge judicial and quasi judicial functions must be aware of this basic principle of law. 6. The principle of audi alteram partem, i.e. a person affected by a decision has a right to be heard is by now, too well an established legal principle to brook any challenge. The person against whom an action is taken must have a fair chance of presenting his side of the case before the concerned authority and persuading it that the grounds on which action is proposed to be taken against him are either non existence or do not justify the action. This principle of natural justice has by now been extended even to quasi judicial and administrative decision in a large number of cases. It is the first principle of civilized jurisprudence that a person against whom any action is sought to be taken or whose rights or interests are being affected should be given a reasonable opportunity to defend himself. This principle has been totally ignored in the present case. 7. The order of the Deputy Commissioner being totally against the principle of natural justice is, therefore, illegal and liable to be set-aside. Even the Divisional Commissioner should not have gone into the merits of the case and should have remanded the matter to the Deputy Commissioner to hear the matter afresh after giving opportunity of hearing to the petitioner. In a case where the authority bound to give a hearing does not give a hearing the appellate authority by giving a hearing cannot rectify this defect. This defect goes to the very root of the case making the order totally illegal. Such illegality cannot be corrected in appeal. The scope of appeal is limited to hearing the matter on the basis of the material before the trial Court. The evidence has to be led and proved before the trial Court and therefore, the proper course for the appellate authority is only to remand the case. 8. Such illegality cannot be corrected in appeal. The scope of appeal is limited to hearing the matter on the basis of the material before the trial Court. The evidence has to be led and proved before the trial Court and therefore, the proper course for the appellate authority is only to remand the case. 8. We accordingly set-aside the orders of both the authorities below and remand the matter to the Deputy Commissioner, Shimla, who shall after hearing both the side pass a reasoned order, totally uninfluenced by the earlier orders. This order shall be passed strictly on the merits of the case. We may make it clear that we have not expressed any opinion on the merits of this case. 9. Parties are directed to appear before the Deputy Commissioner, Shimla, on 3rd August, 2009. In case, for any reason, the Deputy Commissioner is not available on the said date, his Superintendent shall fix the next date on or before 15th August, 2009. The matter shall be heard and decided latest by 31st August, 2009. 10. Copies of this order be sent to the Chief Secretary to the Government of Himachal Pradesh as well as the Principal Secretary (Personnel) to the Government of Himachal Pradesh, who shall place the orders of this Court on the personal files of the two officers and the same shall be taken into consideration while recording their Annual Confidential Reports. 11. The petition is disposed of in the aforesaid terms. No order as to costs.