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2022 DIGILAW 820 (GUJ)

Ramsinh Meghrajji Jadeja v. Gujarat State Police Housing Corporation Ltd.

2022-06-29

ARAVIND KUMAR, NISHA M.THAKORE

body2022
JUDGMENT : Aravind Kumar, J. 1. These three Special Civil Applications, though listed for admission, by consent of the learned counsel appearing for the parties, they have been taken up for final disposal at this stage itself since they lie in a narrow compass. 2. The facts in these three petitions/applications are common and identical and as such they are taken up together and disposed of by this common judgment. 3. The facts shorn off unnecessary details can be crystallized as under : 4. Petitioner is the proprietor of a construction company and carries on the business as Class-‘AA’ Government Contractor and Engineer and was awarded construction of SRP Group-I Cat B-104 (P+13) units at Lalbaug City Police Lane, Vadodara, for construction of police staff quarters including electrification, pursuant to which work orders came to be issued on 8.3.2019, 13.5.2019 and 18.5.2019 respectively. Pursuant to the same, petitioner is said to have mobilized men and materials, and has contended that due to the act of force majeure, namely the act of God, as well as on account of certain works which were to be executed by the respondents, having not been performed, resulted in the progress for commencement of the work, which ultimately has resulted in notices being issued to the petitioner and concluded by blacklisting the petitioner by the impugned order dated 21/22.3.2022 in all these petitions. Hence, petitioner is before this Court. 5. We have heard Mr.Paras K.Sukhwani, learned counsel appearing for the petitioner and Mr.Prithu Parimal, learned counsel appearing for the respondents nos.1 and 2. Perused the records. 6. It is the prime contention of Mr.Sukhwani, learned counsel appearing for the petitioner, that impugned order has been passed without issuing notice and as such it is in violation of principles of natural justice. Hence, on this sole ground itself the impugned order is liable to be quashed. 7. Learned counsel appearing for the respondent would support the impugned order and would contend that there is no infirmity in the said order, and for justification of the same, he would rely upon the notice dated 20.12.2021 issued to the petitioner, which has been referred to in the impugned order, to contend that said notice would satisfy the requirement of the petitioner having been notified, or in other words, the principles of natural justice having been adhered to by the respondent. As such, he relies upon the judgment of the Hon’ble Apex Court in the case of Gorkha Security Services vs. Government (NCT of Delhi) and others, reported in (2014) 9 SCC 105 , in support of his submissions and seeks for dismissal of the petitions. 8. The principle of natural justice protects a citizen from arbitrary administrative actions whenever his/her right to person or property is jeopardized. One of the objectives of giving a hearing in application of principles of natural justice is to see that any illegal action or decision does not take place. Any wrong order may adversely affect a person and it is essentially for this reason that a reasonable opportunity requires to be granted before passing an administrative order. The principles of audi alteram partem is the basic concept of the principles of natural justice. However, if the legislature specifically authorizes an administrative action without hearing, then except in cases of recognized exception, such action would be violative of principles of fair hearing and it has to be read into Articles 14 and 21 of the Constitution of India. The Hon’ble Apex Court, in the case of State of U.P. vs. Vijay Kumar Tripathi, reported in 1995 Supp. (1) SCC 552, has held that though the rules permit award of censure entry without notice and hearing, yet the principles of natural justice should be read into such rules and no censure entry can be awarded without any notice and hearing. The principles of audi alteram partem is sine qua non of every civilized society. Corollary deduced from this rule is qui aliquid statuerit parte inaudita altera, aequum licet dixerit, haud aequum facerit (he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right). 9. As has been frequently observed, the benefit of audi alteram partem principle was even extended to Adam and Eve, even by God before they were punished for disobeying His command. This signifies that even if the authority already knows everything and the person has nothing more to tell, even then this rule of natural justice is attracted, unless application of this rule would be a mere empty formality. This signifies that even if the authority already knows everything and the person has nothing more to tell, even then this rule of natural justice is attracted, unless application of this rule would be a mere empty formality. The exception to this rule is the applicability of doctrine of useless formality theory which has been reiterated by the Hon’ble Apex Court in the case of Aligarh Muslim University and others vs. Mansoor Ali Khan, reported in AIR 2000 SC 2783 , vide paragraphs 28, 32 and 34 as under : “28. On the above facts, the absence of a notice to show cause does not make any difference for the employee has already been told that if his further overstay is for continuing in the job in Libya, it is bound to be refused. 32. Another important aspect of the matter is that no new reason has been projected in the Writ petition of Mr. Khan for his seeking further extension earlier while in Libya. The only reason stated is that he had obtained further extension in job. It is not a case where there is a plea in the Court that there were different grounds or reasons which he could have put in his explanation, if called for, such as ill health etc. Indeed, if the reasons could have been somewhat different, - as may perhaps be disclosed or proved in subsequent writ petition - such as his own failing health, one can understand. But so far as leave for purposes of job continuance in Libya, is concerned, he has been fully put on advance notice that no further extension will be given. It must be held that no prejudice has been caused even though no notice is given under Rule 5(8)(i). 34. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr. Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason, that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L.Kapoor's case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L.Kapoor's case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr. Mansoor Ali Khan under Point 5.” 10. Keeping the aforesaid authoritative principles in mind, when the facts on hand are examined, it would clearly emerge from the records that to substantiate the order of blacklisting respondent has relied upon the notice dated 20.12.2021. No doubt, petitioner was required to produce the said notice, however, has not placed the same on record for reasons best known. Be that as it may. The learned counsel appearing for the respondent has made available a copy of the said notice during the course of his submissions and perusal of the same would indicate that under the said notice petitioner has been notified of steps being taken by the respondent including the one indicated in clause 57 of the Tender Notification, in the event of petitioner’s failure to comply with the demand made thereunder. It is this notice which has been heavily relied upon by the learned counsel appearing for the respondent to buttress his argument that it would meet the requirement of principles of natural justice. The said argument, howsoever attractive might be, cannot be accepted for the reason that notice dated 20.12.2021 does not indicate or specify as to which of the punitive actions prescribed under clause 57 of the Tender Notification it had proposed to take against the petitioner. Even according to the respondents, the punitive actions prescribed under clause 57 of the Tender Notification include recovery of money or forfeiture of earnest money/security deposit or blacklisting. If the respondent intended to take or proposed to take action against petitioner pursuant to said clause, it would have been open for the said respondent to take such action by specifying the same. It was incumbent upon the respondent to specify in the notice as to what action it proposes to take. In fact, the judgment relied upon by the learned counsel appearing for the respondent, namely Gorkha Security Services referred to herein (supra), itself is a complete answer whereunder Hon’ble Apex Court held to the following effect : “In the present case…….if so required. In fact, the judgment relied upon by the learned counsel appearing for the respondent, namely Gorkha Security Services referred to herein (supra), itself is a complete answer whereunder Hon’ble Apex Court held to the following effect : “In the present case…….if so required. It is thus apparent that this sub-clause provides for various actions which can be taken and penalties which can be imposed by the Department. In such a situation which action the Department proposes to take, need to be specifically stated in the show cause notice. It becomes all the more important when the action of black listing and/or forfeiture of earnest money/security deposit is to be taken, as the clause stipulates that such an action can be taken, if so warranted. The words “if so warranted”…...to this effect.” (Emphasis supplied by us) 11. The above principles laid down by the Hon’ble Apex Court would leave no manner of doubt to hold that in the event of the clause in the tender would provide for more than one action to be taken, then in such an event if the authority intends to take action it would necessarily be incumbent upon the authority to specify in the said show-cause notice itself as to which action it proposes to take, by specifying the same in the show-cause notice. If the contents of the show-cause notice are vague or it contain an omnibus statement/averment and the noticee is kept in dark of the proposed action, it cannot be gainsaid by such authority to contend that notifying the notice would meet the requirement of audi alteram partem. 12. The Hon’ble Apex Court, in the case of Rajesh Kumar vs. CIT, reported in (2007) 2 SCC 181 , has held that in any event when civil consequences ensue, there is hardly any distinction between an administrative order and a quasi-judicial order, and principles of natural justice are attracted in both the situations. 13. In the matter of M/s. Ashoka Smokeless Coal Ind. 13. In the matter of M/s. Ashoka Smokeless Coal Ind. P. Ltd. and others vs. Union of India and others, reported in (2007) 2 SCC 640 , the Hon’ble Apex Court has held that some rights which are likely to be affected by any act of the administration, including a legitimate expectation, if attracted to the facts of a case would necessarily be held as in violation of principles of natural justice if such action was not preceded by personal hearing or issuance of show-cause notice. 14. Thus, from the aforesaid analysis of case-laws, two principles would emerge namely (i) Nemo in propria causa judex, esse debet - no one should be made a judge in his own cause or the rule against bias and (ii) Audi alteram partem - hear the other party or the rule of fair hearing, or the rule, no one should be condemned unheard. 15. In the facts obtained in the present case, the respondent authority which has passed the impugned order has relied upon the notice dated 20.12.2021 to contend that it meets the requirement of the principles of natural justice. 16. As noticed herein above, the said notice only indicates of action being taken as provided under clause 57 of the Tender Notification. The Tender Notification providing for more than one action and as to what action respondent proposed to take against petitioner has not been specified in the show-cause notice or notice dated 20.12.2021. 17. In that view of the matter, it cannot be held that the alleged show-cause notice dated 20.12.2021 would meet the requirement of principles of natural justice having been adhered to in the instant case. 18. For the myriad reasons aforestated, we propose to pass the following ORDER : (i) The Special Civil Applications are hereby allowed. (ii) The orders dated 22-23/12/2021 (Annexures-E and F respectively) are hereby quashed. The notice dated 20.12.2021 is ordered to be treated as showcause notice by the respondent and the petitioner would be at liberty to respond to such show-cause notice. It is made clear that the petitioner would submit his reply to the said show-cause notice within a period of 15 days from the date of receipt of copy of this order and failure to reply within the said period would not give any right to the petitioner to seek for further time. It is made clear that the petitioner would submit his reply to the said show-cause notice within a period of 15 days from the date of receipt of copy of this order and failure to reply within the said period would not give any right to the petitioner to seek for further time. The respondent would be at liberty to proceed to adjudicate the said show-cause notice in accordance with law and pass appropriate and suitable orders without being influenced by its earlier order. (iii) It is also made clear that with regard to the merits of the case, except the order of blacklisting, we have not expressed any opinion and contentions of both parties are kept open. (iv) No order as to costs. 19. Pending applications, if any, stand consigned to records.