Hemant Kumar Shrivastava vs State of Madhya Pradesh and others

T.S. Doabia, J.

A resolution passed by the Municipal Council, Mhow, in the district of Bhind has been annulled by the respondent no. 2. This has been done without affording an opportunity to the petitioner. The petitioner submits that this course adopted by the respondent no. 2 is in utter violation of the principles of natural justice. The stand taken by the respondent-State is that principles of natural justice are not attracted to such cases. it is this question which is highlighted by the respondents which requires consideration.

Before doing so the facts in brief be also noticed. These are as under :-

The petitioner was working as a pump-driver. He represented to the Municipal Council. His representation was accepted. He was allowed to work as Moharirr. This change of cadre was brought about in the exercise of powers conferred on the Municipal Council u/s 23(1) of the Madhya Pradesh Municipalities Act. 1961. This was given effect to. Lateron, as noticed above the decision taken by the Municipal Council was annulled by the respondent no. 2 and this decision is being challenged in this petition.

As the law now stands, there cannot be any dispute with the proposition that the petitioner was entitled to an opportunity of hearing and this opportunity should have been given by the respondent no. 2 In a case arising under the Punjab Municipal Act. 1911, a Full Bench of the Punjab & Haryana High Court in case of Hans Raj Sachdeva, Secretary, Municipal Committee v. The State of Punjab and others. 1975 Lab. I.C. 478. laid down that opportunity is required to be given to the affected employee. u/s 41 of the Punjab Municipal Act the State Government can ask the local authorities to bring an end to the relationship of master and servant. There was no provision for affording opportunity of hearing. There were two earlier Division Bench judgments of the Punjab High Court holding that opportunity is not required to be given. These decisions are : Ram Piara Vs. Municipal Committee, Hoshiarpur, , S. Arjan Singh S. Mehar Singh Vs. State of Punjab and Another, , S. Arjan Singh S. Meher Singh v. State of Punjab through its Secretary, Local Bodies Department and another. Both these decisions were overruled by the Full Bench and it was concluded that even if there is no express dealing with grant of hearing the requirement to afford hearing is a must and as the action was taken against the concerned employee without affording opportunity of hearing, the same was quashed.

Again the Punjab & Haryana High Court while interpreting the provisions of Punjab Gram Panchayat Act, 1952. came to the conclusion that where an order is passed by the Deputy Commissioner suspending a resolution of the Panchayat and hearing is not given to the aggrieved party then the action taken by the Deputy Commissioner would be liable to be quashed. This view was expressed in Chaman Lal and Sons Vs. State of Punjab and Others, . In a Still later decision of the Punjab & Haryana High Court, reported as Jathedar Jagdev Singh and Others Vs. The State of Punjab, . Jathedar Jagdev Singh and others V. The State of Punjab, the Division Bench came to the conclusion that an order passed by the State Government suspending the State Agricultural Marketing Board without affording opportunity of hearing would be bad. This action was taken by the State Government under the Punjab Agricultural Produce Markets Act, 1961. There was no provision of grant of opportunity to the members of the Board. The Division Bench look note of the decision given by the Supreme Court in the case of S.L. Kapoor Vs. Jagmohan and Others, . and it was concluded that opportunity of hearing is a must.

Thus, it is well-settled that the rule of audi alteram partem would be attracted in a case when an adverse order entails civil consequences. Even if astatute does not expressly provide a right of hearing, the same is not to be denied. The principles of natural justice are not applicable where these are expressly excluded by the legislature. It was accordingly held by the Division Bench in Jathedar Jagdev Singh''s case (supra) that notwithstanding the fact that the Punjab Act is silent about grant of hearing yet, as the principles of natural justice have not been excluded, the State was bound to afford opportunity of hearing and as this was not done the order proceeding the Court was set aside.

far as this Court is concerned, there is a Division Bench judgment reported as Sanjay Kumar Dixit v. Collector, Jabalpur and others, 1994 (1) Vibha 137, Mr. Justice D. M. Dharmadhikari speaking on behalf of the Bench observed as under :-

The cancellation of that appointment order has resulted in termination of the services of the petitioner from the Panchayat. Such an adverse order could not be validly passed without hearing the petitioner who has been adversely affected by the order. The provisions contained in section 78 of the Act of 1981 do not specifically provide for grant of an opportunity of hearing to the person likely to be affected by any action taken thereunder but such a requirement has to be read in that section by implication being part of principles of natural justice. The petitioner has lost his status and service in the Panchayat by passing of the impugned order. The order passed by the Collector, therefore, cannot be supported even on the provision of section 78 of the Act of 1981. because the petitioner was never given any show cause or hearing before taking the impugned action.

It was accordingly held that the order passed by the Collector could not be sustained.

Reference may again be made to another decision of the Punjab and Haryana High Court, reported as Kanwaljit Kaur and others v. Punjab State and others, (1992) 12 LRS (Pb.) 613. In this case, the Municipal Committee passed a resolution with a view to make some appointments. The appointments were terminated on the basis or the directions given by the State Government. The persons whose appointments were terminated were not afforded hearing by the State Government. The reason given for annulment was that the instructions of the Government with regard to giving employment to riot affected persons were not taken note of. The argument advanced on behalf of the State was that the petitioners were not entitled to any opportunity of hearing. The contention raised by the Stale was negatived and it was held that the principles of fair play did requir that opportunity should have been granted to the petitioners. It was accordingly held that the order by which the termination of services of the petitioners in the above case was brought about could not be sustained.

It would not be out of place to refer to a judgment of the Supreme Court reported as Mohd. Rashid Ahmad Vs. State of U.P. and Another, . The employees working with the Municipal Committee in Uttar Pradesh were to be absorbed in a newly constituted State service. They were not absorbed. This led to termination of the services. The question arose as to whether these employees were entitled to opportunity of hearing or not. The Supreme Court observed in categorical terms that the suggestion that the State Government was absolved of the "duty to hear" the officers and servants of the erstwhile Municipal Boards is a suggestion which cannot be accepted. The Supreme Court look note of the view expressed by Lord Haldane. L. C. in Local Government Board v. Arlidge, 1915 AC 120. and also on two other decisions, namely. Board of Education v. Rice, 1911 AC 179 and Ridge v. Baldwin, 1964 AC 40. wherein the principle of duty to hear'' was formulated. Thus, opportunity to afford hearing is a fundamental concept of the principles of natural justice. This was recognised even in earlier decisions of the Supreme Court reported as A.K. Kraipak and Others Vs. Union of India (UOI) and Others, : and State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, . The same view was reiterated by the Supreme Court in Mazharul Islam Hashmi Vs. State of U.P. and Another, .

Thus the conclusion is inescapable that where rights of a citizen are affected on account of some action taken by the State or its functioneries. then the person who is going to be affected should be afforded an opportunity of hearing. As this was not done in this case, the order, annexure P-1, passed by the respondent no. 2. is liable to be set aside. It is, accordingly, quashed. The respondents would, however, be at liberty to pass fresh orders in accordance with law after affording due oppornity of hearing to the petitioner. Petition stands disposed of.