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2014 DIGILAW 91 (HP)

Krishni Devi v. Sunita Devi

2014-01-11

RAJIV SHARMA

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Judgment : Per Rajiv Sharma, Judge This petition is directed against the order dated 19.6.2010 passed by the Bench constituted by Gram Panchayat, Mahal, Tehsil Bhoranj, Hamirpur, H.P., further confirmed by learned Judicial Magistrate 1st Class, Hamirpur, vide order dated 8.2.2013 in Appeal No.2/2012. 2. “Key facts” necessary for the adjudication of this petition are that respondents No. 1 to 15 filed a complaint against the petitioner before the Pradhan of Gram Panchayat Mahal. According to the averments contained in the complaint, the petitioner misbehaved with the members of the Mahila Mandal. The complaint was filed by fifteen members of the Mahila Mandal. Meeting of the Gram Panchayat, Mahal, was convened on 26.5.2010 and a Bench was constituted consisting of Surjit Singh (Chairman), Des Raj (ward member), Radha Devi and Bimla Devi. Summons were issued to the petitioner and one Sanjeev Kumar. On 4.6.2010, petitioner and Sanjeev Kumar were present before the Bench. Members of the Mahila Mandal namely, Sumna Devi, Suman Devi, Trishla Devi, Veena Devi, Ati Devi, Sunita Devi and Beasa Devi deposed before the Bench that that their complaint be treated as joint statement on their behalf. Petitioner refused to give any statement. She deposed that decision in her case was only to be taken by the Pradhan of the Gram Panchayat and the Bench had no authority to decide her case. The petitioner was directed to produce her witnesses on 19.6.2010. The petitioner did not produce any witness in her defence on 19.6.2010 and the Bench recorded the findings that the petitioner was a quarrelsome lady and she had misbehaved with the members of Mahila Mandal. The Bench imposed a fine of Rs.500/- upon the petitioner for using abusive language. She was further imposed a fine of Rs.1.25 for disobedience of order of the Bench. It was made clear that in case the petitioner did not deposit the fine amount till 4.7.2010, the fine amount would enhance to Rs.1 each, total Rs.2/- per day. 3 Petitioner feeling aggrieved by the order of the Gram Panchayat, Mahal, dated 19.6.2010, preferred an appeal under Section 67 of the H.P. Panchayati Raj Act, 1994 before the Sub Divisional Officer (Civil), Bhoranj, District Hamirpur, who vide order dated 15.7.2011 dismissed the same for want of jurisdiction with liberty reserved to file an appeal before the appropriate Court. 3 Petitioner feeling aggrieved by the order of the Gram Panchayat, Mahal, dated 19.6.2010, preferred an appeal under Section 67 of the H.P. Panchayati Raj Act, 1994 before the Sub Divisional Officer (Civil), Bhoranj, District Hamirpur, who vide order dated 15.7.2011 dismissed the same for want of jurisdiction with liberty reserved to file an appeal before the appropriate Court. Thereafter, the petitioner filed an appeal before the learned Chief Judicial Magistrate, Hamirpur, who assigned the same to the court of learned Judicial Magistrate, 1st Class, Court No.1, Hamirpur. Learned Judicial Magistrate, 1st Class, dismissed the appeal on 8.2.2013. Hence, the present petition. 4 Mr. Neeraj Sharma, learned Advocate, has vehemently argued that there is violation of principles of natural justice by the Bench. He then contended that the petitioner has not been given ample opportunity to rebut the case of the complainants. 5 Mr. Satyen Vaidya, learned Advocate, and Mr. Parmod Thakur, learned Additional Advocate General have supported the impugned orders. 6 I have heard learned counsel for the parties and have gone through the pleadings and records carefully. 7 Surprisingly, the petitioner has not arrayed even the Gram Panchayat, Mahal, as party. The Gram Panchayat, Mahal, was necessary party since the impugned order dated 19.6.2010 has been passed by the Bench constituted by Gram Panchayat, Mahal. The petitioner has arrayed only members of the Bench, i.e. Surjeet Singh, Des Raj, Radha Devi and Bimla Devi in their individual capacity. The petition is liable to be dismissed on this score alone, however, the Court has thought it proper to decide the present lis on merits. 8 What emerges from the facts enumerated hereinabove is that the petitioner misbehaved with respondents No. 1 to 15. They filed a complaint before the Gram Panchayat, Mahal, on 26.5.2010. The summons were issued to the petitioner and one Sanjeev Kumar strictly as per law. The petitioner put her signatures in the proceedings held on 4.6.2010 along with Sanjeev Kumar. Out of fifteen members of the Mahila Mandal, seven members had attended the proceedings. Seven members of the Mahila Mandal deposed that their complaint be treated as their joint statement. Petitioner for the reasons best known to her refused to give any statement. Rather she stated that the decision would be taken by the Pradhan only. According to her, the Bench could not take the decision. Seven members of the Mahila Mandal deposed that their complaint be treated as their joint statement. Petitioner for the reasons best known to her refused to give any statement. Rather she stated that the decision would be taken by the Pradhan only. According to her, the Bench could not take the decision. The parties were directed to produce their respective witnesses on 19.6.2010. On 19.6.2010, respondents No. 1 to 15 stated that their complaint be treated as their joint statement. The petitioner though has been given ample opportunity to produce the witnesses in her defence, but she failed to do so. Rather, she refused to sign the proceedings on 19.6.2010. 9 There is no merit in the contention of Mr. Neeraj Sharma, learned Advocate, that the principles of natural justice have been violated. The procedure adopted by the Gram Panchayat, Mahal, is strictly as per the law. Ample opportunity, as noticed above, has been given to the petitioner to produce witnesses in her defence. However, she failed to do so. The approach of the petitioner was of defiance. She has even not signed the proceedings. There is no perversity or any illegality in the impugned order dated 19.6.2010 passed by the Bench. Learned Judicial Magistrate, 1st Class, has passed a well reasoned and detailed order on 8.2.2013 upholding the order dated 19.6.2010. All the contentions raised by the petitioner have been dealt with by the learned Judicial Magistrate, 1st Class. The plea raised by the petitioner that there is violation of principles of natural justice by the Bench has rightly been turned down by the learned Chief Judicial Magistrate, 1st Class on the ground that she has been granted ample opportunity to rebut the case. Petitioner has been treated in just and fair manner. Section 60 of the H.P. Panchayati Raj Act, 1994 lays down the procedure and empower the Gram Panchayat to ascertain the truth. The Gram Panchayat has to follow the procedure prescribed under the Act. The Code of Civil Procedure, Indian Evidence Act, Criminal Procedure Code and Limitation Act have limited applicability. However, the Court is of the considered view that the fine of Rs.500/- coupled with fine of Rs.1.25 per day and in default of payment of fine, enhancement of Rs.2/- per day imposed upon the petitioner is on higher side. 10. The Code of Civil Procedure, Indian Evidence Act, Criminal Procedure Code and Limitation Act have limited applicability. However, the Court is of the considered view that the fine of Rs.500/- coupled with fine of Rs.1.25 per day and in default of payment of fine, enhancement of Rs.2/- per day imposed upon the petitioner is on higher side. 10. Their Lordships of Hon’ble Supreme Court in Sahara India Real Estate Corporation Limited and ors. vs. Securities and Exchange Board of Indian and another, (2013) 1 SCC 1 have held that what needs to be kept in mind while applying the rules of natural justice is that the same are founded on principles of fairness. Their Lordships have held as under:- “258. What needs to be kept in mind while applying the rules of natural justice is, that the same are founded on principles of fairness. Two cardinal principles of fairness are incorporated in the rules of natural justice. Firstly, the person against whom action is contemplated, is liable to be informed of the basis on which the proposed action is to be taken (i.e., the affected party is required to be put to notice). And secondly, before taking any adverse action, the affected party is liable to be afforded an opportunity to present his defence (i.e., an opportunity to be heard, under the tenent “audi alterm partem”). 259. The rules of natural justice being founded on principles of fairness can be available only to a party which has itself been fair, and therefore, deserves to be treated fairly. 264 Interestingly, to get over the crisis, emerging from the facts discovered by the Investigating Authority, the appellant-companies relied on technicalities of law, by canvassing their claim under the rules of natural justice. What the appellant-companies overlook is, that in actuality numerous opportunities were afforded to them to disclose information available with them, but they choose to shun the liberty. The data available with the appellant-companies was preserved as a closely guarded secret. That position has remained unaltered throughout.” 11 Their Lordships of Hon’ble Supreme Court in Nirma Industries Limited and anr. Vs. Securities and Exchange Board of India (2013) 8 Supreme Court Cases 20 have held that burden to prove prejudice caused by non-grant of opportunity of hearing lies on person challenging order concerned on the ground that it is causing civil consequences. Their Lordships have held as under:- “26. Vs. Securities and Exchange Board of India (2013) 8 Supreme Court Cases 20 have held that burden to prove prejudice caused by non-grant of opportunity of hearing lies on person challenging order concerned on the ground that it is causing civil consequences. Their Lordships have held as under:- “26. In the present case, we are unable to accept the submission of Mr. Shyam Divan that the impugned order passed by SEBI on 30th April, 2007, rejecting the application of the appellants for exemption/withdrawal by SEBI caused any “adverse civil consequences”. Having acquired the shares of the target company to the extent which triggered the Regulation 10 of the Takeover Code, the appellants published in the Financial Express, Mumbai Edition the proposed open offer to acquire upto 20% of the shares of the existing shareholders. The price offered in the Public Announcement, being Rs. 18.60 per share was arrived at as per Regulation 20(4) of the Takeover code, which is applicable to frequently traded shares. It is undisputable that normally the public offer once made can only be withdrawn in exceptional circumstances as indicated in Regulation 27(1) (b), (c) and (d). In their letter dated 4th May, 2006, the appellants had given detailed reasons giving justification for seeking exemption/withdrawal/price fixation. Not being given the opportunity of oral hearing cannot always be equated to a situation, where no opportunity is given to a party to submit an explanation at all, before an order is passed causing civil consequences to it. 27. Mr. Shyam Divan has been at pains to point out that rules of natural justice require that an opportunity of hearing should have been given to the appellants. We see no reason to read into Regulation 27 - the provision that the party seeking to withdraw from the public offer is required to be given an oral hearing before an order is passed on the request for withdrawal. We also see no merit in the submission that an oral hearing was particularly necessary in the light of the fraud, which has been perpetrated by the promoters of the target company on the innocent shareholders, which will also include the appellants. Such a submission can not be accepted either on facts or in law. We also see no merit in the submission that an oral hearing was particularly necessary in the light of the fraud, which has been perpetrated by the promoters of the target company on the innocent shareholders, which will also include the appellants. Such a submission can not be accepted either on facts or in law. The appellants had made a business decision in deliberately purchasing the shares of the target company to such an extent that it had to, under the law; make the Public Announcement for purchase of other shares at the price of Rs.18.60 per share. 28. In support of his submissions on breach of Rules of Natural Justice, in his written submission, Mr. Shyam Divan has relied on Canara Bank & Ors. Vs. Debasis Das & Ors.[1] In this case, this Court reiterated the well known Rules of Natural Justice. Otherwise the particular case relied upon has no relevance to the present proceedings. In the Canara Bank’s case (supra), this Court was considering the case of an employee subjected to the disciplinary proceedings. Again this Court reiterated the well known principle that natural justice is the administration of justice in a commonsense liberal way. Further that the rules have been enforced by the Courts to ensure that substantial justice is done to the party proceeded against. In the present case, it is a matter of record that all material had been placed by the appellants before the SEBI in its letter dated 4th May, 2006 and the same material was also placed before the Merchant Bankers. Necessary clarifications, as required by the Merchant Bankers, had also been given in the subsequent correspondences, as noticed by us in the earlier part of the judgment. Therefore, it cannot be said that substantial justice has not been done in the case of the appellants. This Court in Canara Bank’s case (supra) reiterated the principle laid down in Managing Director, ECIL, Hyderabad & Ors. Vs. B. Karunakar & Ors.[2] Here again, this Court has reiterated that even an administrative order, which involved civil consequences, must be consistent with the rules of natural justice. The expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In other words, anything which affects the rights of the citizen in ordinary civil life. 29. The expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In other words, anything which affects the rights of the citizen in ordinary civil life. 29. In our opinion, the appellants cannot justifiably claim that any order had been passed by SEBI that would cause adverse civil consequences, as envisaged by this Court in B. Karunakar & Ors. (Supra). The appellants after making a market assessment decided to invoke the pledge on July 22, 2005. Since the shares which came to the appellants were more than 15%, statutorily Regulation 10 was triggered. The rejection of the request made by the appellants for withdrawal from the public offer or exemption under Regulation 27(1)(d) cannot be said to be an order causing adverse civil consequences. The appellants had made and informed business decision which unfortunately for them, instead of generating profits was likely to cause loses. In such circumstances, they wanted to pull out and throw the burden on to the other shareholders. We, therefore, fail to see what prejudice has been caused to the appellants by the order passed by the SEBI rejecting the request of the appellants. 30. In B. Karunakar & Ors. (supra), having defined the meaning of “civil consequences”, this Court reiterated the principle that the Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished to the employee. It is only if the Court or Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment. In other words, the Court reiterated that the person challenging the order on the basis that it is causing civil consequences would have to prove the prejudice that has been caused by the non-grant of opportunity of hearing. In the present case, we must hasten to add that, in the letter dated 4th May, 2006, the appellants have not made a request for being granted an opportunity of personal hearing. Therefore, the ground with regard to the breach of rules of natural justice clearly seems to be an after thought. 33. It was noticed by the Court that in the matter under consideration, the entire material had been collected by the predecessor of the DA. Therefore, the ground with regard to the breach of rules of natural justice clearly seems to be an after thought. 33. It was noticed by the Court that in the matter under consideration, the entire material had been collected by the predecessor of the DA. He had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants. Therefore, it was held that the final order passed by the new DA offends the basic principle of natural justice. In the present case, the appellants did not make a formal request before SEBI for being given an opportunity of personal hearing. Thus, the reliance on the aforesaid case is misplaced.” 12 Their Lordships of Hon’ble Supreme Court in A.S. Motors Private Limited vs. Union of India and ors. (2013) 10 Supreme Court Cases 114 have held that whether violation of principles of natural justice is alleged, courts will see whether affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. “7. It was argued on behalf of the appellant that termination of the contract between the parties was legally bad not only because the principles of natural justice requiring a fair hearing to the appellant were not complied with but also because there was no real basis for the respondent-authority to hold that the appellant had committed any breach of the terms and conditions of the contract warranting its termination. We find no merit in either one of the contentions. The reasons are not far to see. 8. Rules of natural justice, it is by now fairly well settled, are not rigid, immutable or embodied rules that may be capable of being put in straitjacket nor have the same been so evolved as to apply universally to all kind of domestic tribunals and enquiries. What the Courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the Tribunal and the rules and regulations under which it functions. A Court examining a complaint based on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation. To that extent there has been a shift from the earlier thought that even a technical infringement of the rules is sufficient to vitiate the action. Judicial pronouncements on the subject are a legion. We may refer to only some of the decisions on the subject which should in our opinion suffice. 15. Coming to the case at hand we find that the termination of the contract between the parties was preceded by a show-cause notice issued to the appellant and a hearing provided to it by the competent authority. The show-cause notice issued to the appellant on 24th November, 2006 enclosed with it all relevant documents including the complaints received against the appellant from various quarters and a copy of the report submitted by the agency engaged for verifying the allegations against the appellant. The appellant had unsuccessfully challenged the show-cause notice in Writ Petition No.6338 of 2006, before the High Court. The High Court had while refusing to interfere in the matter directed the appellant to submit a reply to the notice. The appellant had accordingly appeared before the authority on 12th January, 2007, submitted its written statement and was heard in support of its case that it had not committed any default. In the reply or at the hearing, the appellant had not alleged any mala fide, bias or prejudice against the officers dealing with the matter or the agency employed by them for collecting and verifying facts. Principles of natural justice thus stood substantially complied with. 16. In the reply or at the hearing, the appellant had not alleged any mala fide, bias or prejudice against the officers dealing with the matter or the agency employed by them for collecting and verifying facts. Principles of natural justice thus stood substantially complied with. 16. The contention that the appellant should have been given an opportunity to cross-examine the persons whose statements had been recorded by the agency in the course of its inquiry and verification was rightly rejected by the High Court keeping in view the nature of the inquiry which was primarily in the realm of contract, aimed at finding out whether the appellant had committed any violation of the contractual stipulations between the parties. Issue of a show-cause notice and disclosure of material on the basis of which action was proposed to be taken against the appellant was in compliance with the requirement of fairness to the appellant who was likely to be affected by the proposed termination. Absence of any allegation of mala fides against those taking action as also the failure of the appellant to disclose any prejudice, all indicated that the procedure was fair and in substantial, if not strict, compliance with the requirements of Audi Alteram Partem. The first limb of the challenge mounted by the appellant, therefore, fails and is hereby rejected.” 13 Accordingly, in view of the observations and discussion made hereinabove, the petition is allowed partly and the impugned order dated 19.6.2010 passed by the Bench, is modified to the extent that the petitioner is directed to pay a fine of Rs.100/- only. The pending application(s), if any, also stands dismissed. No costs.