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2018 DIGILAW 819 (ALL)

BABITA v. STATE OF U. P.

2018-04-05

AJIT KUMAR

body2018
JUDGMENT : Hon'ble Ajit Kumar,J. Heard Sri Ankit Shukla, Advocate holding brief of Sri Anoop Trivedi, learned counsel for the petitioner, Sri S.K.Srivastava, learned counsel for respondent no. 4 and learned Standing Counsel. 2. This writ petition is being decided on short question of non compliance of principles of natural justice by 3rd respondent while passing the order dated 18th January, 2007, which is in the teeth of the direction of this Court dated 12.7.2006 passed in writ petition no. 36086 of 2006, which reads as under: "Heard learned counsel for the petitioner and learned Standing Counsel for the respondents. The complaint of the petitioner is with regard to the selection of Respondent No. 6, which the petitioner alleges, is contrary to the guidelines framed inn this regard as the Respondent No. 6 has a higher income than the petitioner. Let the aforesaid complaint of the petitioner be examined by the Respondent No. 2 who shall proceed to pass an appropriate order in accordance with Rules as expeditiously as possible preferably within a period of 6 weeks from the date of presentation of a certified copy of this order before him after putting the Respondent No. 6 to notice. With the aforesaid directions, the writ petition is disposed of." 3. The facts of the case are that, petitioner was initially appointed as Anganbari Karyakartri vide order dated 23.6.2006. While she was working, some complaint was made at the instance of respondent no. 4 that income certificate that she had filed at the time of selection, was forged one. Since, no action was being taken on the complaint, respondent no. 4 filed writ petition no. 36086 of 2006, which was disposed of with aforesaid direction. 4. The impugned order dated 18.1.2007 was passed in compliance of the order of this Court dated 12th July, 2006, however from the perusal of the order it is evident that compliance has not been made in letter and spirit of the order dated 12th July, 2006. It is admitted to the parties that at the time of order dated 12th July, 2006 passed in writ petition no. 36086 of 2006, the petitioner was working as Anganbari Karyakartri. Under the Circumstances, while any order was to be passed, the petitioner herein who was respondent no. It is admitted to the parties that at the time of order dated 12th July, 2006 passed in writ petition no. 36086 of 2006, the petitioner was working as Anganbari Karyakartri. Under the Circumstances, while any order was to be passed, the petitioner herein who was respondent no. 6 in that writ petition in the first instance ought to have been given proper opportunity of hearing and secondly reasoned order should have passed so as to discern from it as to whether there was consideration of facts, law, rules or regulations framed for that purpose. 5. Any order or administrative action if results in adverse consequences and prejudicial to the interest of the person against whom it is passed, it must conform to principles of natural justice. In the case of Canara Bank v. V.K. Awasthy (2005)6 SCC 321 , the Apex Court has observed that natural justice is the administration of justice in a common-sense liberal way. These rules are in fact aimed at protecting from arbitrary procedure that an administrative authority may adopt while passing an order. In a sense, non compliance of it makes the decision making process inherently erroneous inviting judicial review. Para 8, 9, and 10 of the case (supra) reads as under: "8. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. 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 water-tight 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 from 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 litigants. defence. 10. Natural justice relieves legal justice from 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 litigants. defence. 10. The adherence to principles of natural justice as recognized by all civilized 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 appraise the party determinatively 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. 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 Coke of natural justice requires to ``vocate interrogate and adjudicate''. In the celebrated case of Cooper v. Wandsworth Board of Works, (1963) 143 ER 414, the principle was thus stated: "Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam'' says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should 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." 6. "Adam'' says God, "where art thou has thou not eaten of the tree whereof I commanded thee that though should 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." 6. Concurring with the view with other Hon'ble members of the bench in the case of Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and Others, (1993) 4 SCC 727 , K. Ramaswamy, J. observed that "proceedings must be just, fair and reasonable and negation thereof offends Articles 14 and 21. The principles of natural justice are integral part of Article 14." 7. In D.K. Yadav v. J.M.A. Industries Ltd. (1993) 3 SCC 259 , vide para 11 and 12, it has been held that: "11. 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 effecting the civil rights 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 a 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 enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi-judicial enquiry and not to administrative enquiry. It must logically apply to both. 12. 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. 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. 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." 8. The Court concluded that the power to terminate the service of employee/workmen in accordance with law, just, fair and reasonable procedure is essential inbuilt of natural justice. Article 14 strikes at an arbitrary action. 9. Whenever, an administrative exercise of power takes away some or any right of a party enjoying the same under lawful authority, such administrative action must always accord good and valid reasons for its justification, otherwise all such exercise is liable to be rendered as arbitrary. Whatever is unreasonable and arbitrary is hit by Article 14 of the Constitution of India as held in Maneka Gandhi v. Union of India, 1978 AIR 597. 'Equality before law' is while to treat all equally placed alike, 'equal protection of law' means equally placed will be guaranteed protection with same parameters in terms of safeguard to their rights in a given situation. The Courts while directing for consideration of a complaint of a third party, take full care that the person against whom complaint is made shall not only be given proper hearing but the authority while passing the order shall record cogent and convincing findings to uphold the complaint against him, and this is quite lacking in the present case and renders the action of the authority arbitrary. 10. Mullan in Fairness: The Natural Justice: natural justice co exists with, or reflected, on wider principles of fairness in decision making and that all judicial and administrative decision make and making had also to act fairly. 11. 10. Mullan in Fairness: The Natural Justice: natural justice co exists with, or reflected, on wider principles of fairness in decision making and that all judicial and administrative decision make and making had also to act fairly. 11. Here is a case where a complaint was required to be examined and findings of fact qua points raised in complaint was sine qua non and so concerned authority was under obligation to discuss the same and record findings, failing which the authority committed manifest error of law and facts and on this count alone the order impugned herein this petition is liable to go. The impugned order suffers from manifest and patent error of law. 12. In view of above, writ petition succeeds and is allowed. The order dated 18th January, 2007 (Annexure No. 12 to the writ petition) is quashed. The third respondent is directed to take a fresh decision in the matter after giving proper notice to both the parties and after giving them reasonable opportunity of hearing in the light of the observations made hereinabove. It is made clear that this time 3rd respondent shall pass a reasoned and speaking order as expeditiously as possible within period of three months from the date of production of certified copy of this order.