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Allahabad High Court · body

2011 DIGILAW 1991 (ALL)

OMKAR SINGH v. STATE OF U. P.

2011-08-25

VIKRAM NATH

body2011
JUDGMENT Hon’ble Vikram Nath, J.—Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 29.8.2007 passed by the Senior Superintendent of Police Ghaziabad by which his selection on the post of Constable in Civil Police has been cancelled and his name has been strucked of from the police roll on the ground that the petitioner has got his selection on the basis of forged High School certificate. 2. Sri Vijay Gautam, learned counsel for the petitioner submits that before passing the impugned order, no opportunity of hearing was given to the petitioner, therefore, the impugned order is unsustainable and deserves to be quashed, Sri Gautam has further submitted that the High School certificate issued by Gurukul Vishvavidyalaya Brindavan, Mathura bearing Roll No. 9766 is genuine one and if the opportunity was offered to the petitioner before passing the impugned order the same could be brought in the notice of concerned respondents and the result would have been different. Whereas in the submissions of learned standing counsel, the opportunity of hearing was not required as the petitioner has obtained his selection on the basis of forged High School Certificate alleged to have been issued by Gurukul Vishvavidyalaya Brindavan, Mathura which later, on verification was found to be forged. 3. I have heard learned counsel for the petitioner and learned standing counsel and perused the record. 4. From the perusal of the record it transpires that the petitioner appeared in the selection for the post of Constable in pursuance of an Advertisement No. 51 of 2006 from Bulandshahr and was found suitable to be selected. It appears during the verification of school certificate, it revealed that the High School certificate annexed by the petitioner was not genuine and pursuant thereto impugned order has been passed. It is not in dispute that the order impugned was passed on the basis of an ex parte inquiry made by the authorities concerned from Gurukul Vishvavidyalaya Brindavan, Mathura. 5. It appears during the verification of school certificate, it revealed that the High School certificate annexed by the petitioner was not genuine and pursuant thereto impugned order has been passed. It is not in dispute that the order impugned was passed on the basis of an ex parte inquiry made by the authorities concerned from Gurukul Vishvavidyalaya Brindavan, Mathura. 5. The respondents in the counter-affidavit has admitted this fact that the opportunity was not given and it was not necessary also under the facts and circumstances of the present case as the petitioner has procured his appointment by filing forged mark-sheet whereas in the submissions of learned counsel for the petitioner, the certificate issued by the Vishwavidhyalaya is genuine and had the opportunity was offered to the petitioner the same would have been proved before the authorities concerned. 6. It is well settled that an order which involves civil consequences must be just, fair, reasonable, unarbitrary and impartial with the principles of natural justice. The main aim of the principle of natural justice is to secure justice or to put it negatively to prevent miscarriage of the justice. The Apex Court in the case of D.K.Yadav v. J.M.A. Industries Ltd., 1993 SCC 259 has made the following observations. 7. The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person. 8. It is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. 9. In Mohinder Singh Gill v. Chief Election Commissioner the Constitution Bench held that ‘Civil consequences’ covers infraction of not merely property or personal right but of civil liberties, material deprivation and non-pecuniary damages. An order involving civil consequences must be made consistently with the rules of natural justice. 9. In Mohinder Singh Gill v. Chief Election Commissioner the Constitution Bench held that ‘Civil consequences’ covers infraction of not merely property or personal right but of civil liberties, material deprivation and non-pecuniary damages. In its comprehensive connotation every thing that affects a citizen in his civil life inflicts a civil consequence. Black’s Law Distionary, 4th edn., page 1487 defined civil rights are such as belong to every citizen of the State or country.... they include..... rights capable of being enforced or redressed in civil action......... In State of Orissa v. (Miss) Birapani Dei this Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. In State of W.B. V Anwar Ali Sarkar per majority, a seven judge Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India another Bench of seven judges held that the substative and procedural laws and action taken under them will have to pass the test under Article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fudnamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil right or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi judicial inquiry is to arrive at a just decision and if a rule or natural justice is calculated to secure justice or to put in negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable. 10. This decision has been followed in numerous cases thereafter which need not be detailed as this is the established principle of law that even an administrative order which leads to civil consequences must be passed consistently with the rules of natural justice. 11. Here in the present case it is apparent on the face of record that no opportunity was given to the petitioner before passing the impugned order. 12. Regulation 541 (2) of the Police Regulations also provides that before passing an order dispensing with the service of a recruit, he must be supplied with specific complaints and grounds on which it is proposed to discharge him and then he should be called upon to show-cause as to why he should not be discharged. This provision also enjoins duty on the concerned authority to pass an order with respect to the termination or the discharge from service only after giving an opportunity of hearing. 13. In the result, the writ petition succeeds and is allowed. The impugned order dated 29th August, 2007 passed by the Senior Superintendent of Police, Ghaziabad is hereby quashed. 14. The respondent No. 3 is directed to give a show-cause notice to the petitioner and thereafter having reply the appropriate orders be passed in accordance with law. 15. It may be clarified that I have not addressed myself on the merit of the petitioner’s case and quashed the impugned order only on the breach of principle of natural justice. The concerned respondents are free to pass an independent order in accordance with law. —————