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2016 DIGILAW 793 (ORI)

Archana Mohanty v. State of Odisha

2016-09-13

B.R.SARANGI, VINEET SARAN

body2016
JUDGMENT : VINEET SARAN, J. Heard Mr. R.K. Rath, learned Senior Counsel for the appellants, Mr. S.K. Das learned counsel for respondents no. 6 to 17, and Mr. A.K. Pandey, learned Standing counsel for School and Mass Education Department. 2. This is a writ appeal, by which the judgment dated 31.08.2012 passed in W.P.(C) No. 4008 of 2011 has been challenged by some of the opposite parties in the writ petition, primarily on the ground that the writ petition has been decided ex-parte, not only without hearing the appellants, but also to the extent that no notice was even issued to the appellants before the writ petition was heard and decided against the appellants. 3. The appellants were arrayed as opposite parties no. 11, 16, 21, 22, 23 and 25 in the writ petition. There is no dispute about the fact that before deciding the writ petition the State-opposite parties no. 1 to 5 in the writ petition alone were noticed and heard. The affected parties, which were arrayed as opposite parties no. 6 to 25, whose appointment was under challenge in the writ petition, were not even issued notice. May be, some of the said opposite parties had themselves put in appearance at some stage in the writ petition, but the present appellants, who were also opposite parties in the writ petition, were neither issued any notice nor were represented through Counsel and served with the copies of the writ petition and, as such, were not given any opportunity before the writ petition was decided against them. 4. Mr. S.K. Das, learned counsel for the respondents no. 6 to 17 has submitted that since the appellants were not prejudiced by the order of the writ Court, hence notice was not required to be issued to them. 5. We are unable to understand as to on what basis such submission has been made, as by the judgment passed by the writ Court, the appointment of the appellants has been done away with and they have been relieved from the service of the School and Mass Education Department. Thus, it cannot be said that the appellants were not affected or prejudiced by the order of the writ Court. In State of Orissa v. Dr. Thus, it cannot be said that the appellants were not affected or prejudiced by the order of the writ Court. In State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 , the apex Court held as follows: “The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” The aforementioned view has been approved by the apex Court in Sirsi Municipality v. Cecelia Kom Francis Tellis, AIE 1973 SC 855. In Menaka Gandhi v. Union of India, AIR 1978 SC 597 , a seven-Judge Bench of Supreme Court held as follows: “Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must always be: Does fairness in action demand that an opportunity to be heard should be given to the person affected?” In Sayeedur Rehman v. State of Bihar, AIR 1973 SC 239 , the Supreme Court held as follows: “This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessary of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. The omission of express requirement of fair hearing in the rules or other sources of power claimed for reconsidering an order is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasi-judicial authorities when deciding controversial points affecting rights of parties.” 6. Therefore, the law is fairly settled that no order be passed against a party which is to be affected by an order or judgment, unless adequate opportunity of hearing is afforded to such party. 7. In the present case, as we have already stated above, the affected parties have not been given opportunity of hearing, the appellants were not even issued notice and, as such, the question of they being heard before the writ Court does not arise. As such, the judgment and order passed by the learned Single Judge is in complete violation of principles of natural justice, which cannot be sustained in the eye of law. 8. Accordingly, the writ appeal stands allowed and the judgment dated 31.08.2012 passed in W.P.(C) No. 2008 of 2011 is quashed. The matter is remanded to the writ Court for fresh decision in accordance with law. 8. Accordingly, the writ appeal stands allowed and the judgment dated 31.08.2012 passed in W.P.(C) No. 2008 of 2011 is quashed. The matter is remanded to the writ Court for fresh decision in accordance with law. Since the matter relates to the appointment made in the year 2006, we would except that the writ Court will decide the writ petition expeditiously, preferably within six months. The writ petition may be listed before the assigned writ Court immediately after three weeks