District Superintendent of Education and Others vs Managing Committee, Middle School and Another

Hari Lal Agrawal, J.—This appeal under Clause 10 of the Letters Patent of the Patna High Court by the appellants is directed against the Judgment of a learned single Judge of this Court passed in C.W.J.G. No. 1236 of 1976 on 9th of February, 1977.

The Managing Committee of Middle School, Ekauna (respondent No. 1) and its Secretary (respondent No. 2) had filed the above writ application under Articles 226 and 227 of the Constitution of India for quashing an order dated 18th February, 1976 passed by appellant No. 1 (Annexure 1 to the writ application) by which appellant No. 1 had superseded the Managing Committee and instead, appointed an Adhoc Committee, on the ground that the school in question was not an "aided school" within the meaning of Rule 64 of the Bihar Primary and Middle Education Rules, 1961 (briefly the Rules), in-asmuch as the school did not receive any aid out of the District Education Fund.

Although this stand of the writ petitioner, namely, respondent No. 1, was controverted by the appellant No. 1 in the counter-affidavit and it was asserted on his behalf that the school was receiving aid out of the District Education fund regularly, inasmuch as the necessary documents were not produced at the time of hearing of the writ application, the learned single Judge on taking a view that "no reliable document has been produced by the respondents to suggest that Ekauna Middle School receives any aid from the District Education Fund quashed the order contained in Annexure 1 to the writ application.

The appellants have stated in their memorandum of appeal that although the date of hearing according to the show cause notice was fixed on 17.24.1977, the case was actually taken up for hearing on 9th February, 1977 and the prayer made on behalf of the appellants for an opportunity to file the necessary counter-affidavit and produced the necessary evidence in support of their case was refused by the learned Judge. The appellants have now filed an application under Order 41, Rule 27 of the CPC Union of Vehicles Builders 1971 (1) Chancey Division 34 Megarry, J. relying on the decision in Ridge v. Baldwin 1964 Appeal Cases 40 held that while a complete rehearing by original tribunal or by some other body competent to decide an issue might satisfy the requirement of natural justice, a plaintiff where there was right to appeal from an original decision, was entitled to natural justice both before the original tribunal and the appellate tribunal. As it appears from the facts of Ridge v. Baldwin (supra) there the appellant before the House of Lords had gone in appeal against the original order to the Secretary of State and it was contended that thereby he was debarred from taking the point that the rule of natural justice was violated before the original tribunal. Dealing with that question Lord Reid observed as follows:

Finally, there is the question whether by appealing to the Secretary of State the appellant is in some way prevented from now asserting the nullity of the respondents'' decision. A person may be prevented from asserting the truth by estoppel, but it is not seriously argued that, that doctrine applies here. Then it is said that the appellant elected to go to the Secretary of State and thereby waived his right to come to the court. That appears to me to be an attempt to set up what is in effect estoppel where the essential elements for estoppel are not present. There are many cases where two remedies are open to an aggrieved person, but there is no general rule that by going to some other tribunal he puts it out of his power thereafter to assert his rights in court; and there was no express waiver because in appealing to the Secretary of State the appellant reserved his right maintain that the decision was a nullity.

This view of Lord Reid was accepted by the majority of the Lord Justices. In the case, however, Megarry, J. has also noticed a decision of the Supreme Court of Kanada : (1968) 67 D.L.R. 165. In that case a contrary view was taken and it was held that where full opportunity is given before the appellate tribunal, the defect of violation of rule of natural justice at the original stage may be ignored. The decision in Ridge v. Baldwin (supra) was referred to and distinguished on the ground that there was some difference between the facts of the two cases. The question is not free from difficulty. Be that as is may, on the facts and in the circumstances of the present case, we are of the view that the defect of non-observance of the rule of natural justice by not giving opportunity to the petitioner of being heard and showing cause before suspending his licence by the original authority was not cured by the hearing before the appellate authority. We are, therefore, of the view that the orders as contained in annexures ''1'' and ''2'' to this writ application are also to be quashed.

In the result both the writ applications are allowed and the orders as contained In annexure ''1'' to Civil Writ Jurisdiction Case No. 678 of 1977 and as contained in Annexures ''1'' and ''2'' to Civil Writ Jurisdiction Case No. 2564 of 1976 are set aside. It will be open to the authorities to pass such order of suspension or cancellation of the petitioner''s licence as they may deem fit and proper after affording proper opportunity to the petitioner of being heard in the matter and explaining its case before them.

On receipt of the records the Sub-divisional Officer, Araria, will fix a date for hearing the petitioner in the matter, if he still considers that it is necessary to suspend or cancel the licence of the petitioner, for, one more fact has to be taken into account and that fact is that in the Criminal case filed against the petitioner the police has submitted final report. In the circumstances of the case there will be no order as to costs.