Karam Singh vs Haryana Urban Development Authority and Others

Rameshwar Singh Malik, J.—The present writ petition is directed against the order dated 23.2.2011 (Annexure P-1) passed by the respondent authorities, whereby services of the petitioner were terminated, on the basis of serious allegation but without conducting any departmental enquiry. Factual matrix is hardly in dispute. Petitioner was initially appointed as Assistant Barman w.e.f. 1.9.1994. He continued as such till he was promoted as Barman w.e.f. 20.5.1998, as per the claim set up by the petitioner. As per the stand taken by the respondent authorities, petitioner was simply directed to look after the duties of the Barman vide order dated 28.9.1999. It is not in dispute that after 28.9.1999, petitioner was working as Barman till the date of passing of the impugned termination order dated 23.2.2011 (Annexure P-1).

Learned counsel for the petitioner submits that although the petitioner has satisfactory service record to his credit for about 24 long years, yet not even departmental enquiry was conducted against him, though, he was sought to be removed from service on the basis of serious allegations. He further submits that show-cause notice dated 3.2.2011 (Annexure P-2) was duly replied by the petitioner vide his self-contained reply dated 15.2.2011 (Annexure P-3). In spite of the fact that petitioner was sought to be removed from service on the basis of serious allegations, no regular departmental enquiry was ordered, despite his reply to the show cause notice. The reply filed by the petitioner to the show-cause notice was not even considered by the competent authority, while passing the impugned termination order (Annexure P-1). He concluded by submitting that since the respondent authorities have glaringly violated the basic principles of natural justice, the impugned termination order was not sustainable. He prays for setting aside the impugned termination order, by allowing the present writ petition.

Per contra, learned counsel for the respondents No. 2 to 4 submits that in the circumstances of the case, there was no requirement of conducting regular departmental enquiry against the petitioner, before passing the impugned termination order. Since the petitioner was not a government employee, protection under Article 311 of the Constitution of India was also not available to the petitioner. He also submits that since over all conduct of the petitioner was found unbecoming and his integrity was also not found above board, his services were rightly terminated by passing the order (Annexure P-1). He prays for dismissal of the writ petition.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the peculiar facts and circumstances of the present case noticed hereinabove, the impugned termination order (Annexure P-1) is in glaring violation of the basic principles of natural justice and the same cannot be sustained. The present writ petition deserves to be allowed for the following more than one reasons.

It is a matter of record and not in dispute that the impugned order would entail civil consequences against the petitioner. Serious allegations were levelled against the petitioner in the show-cause notice (Annexure P-2). Although, the petitioner replied to each and every allegation, while submitting his self-contained reply to the show-cause notice vide Annexure P-3 dated 15.2.2011, yet the competent authority, before passing the impugned termination order, has not even said that the reply submitted by the petitioner to the show-cause notice was not found satisfactory.

A combined reading of the show-cause notice, reply thereto and the impugned termination order passed by the respondent authorities, would show that the respondent authorities had already decided to terminate the services of the petitioner and issuance of show-cause notice was only a formality. It is so said, because self-contained reply submitted by the petitioner to the show-cause notice was not at all taken into consideration, while passing the impugned termination order. Having said that, this Court feels no hesitation to conclude that the impugned termination order cannot be sustained.

Since the respondent authorities were intending to terminate the services of the petitioner levelling serious allegations against him, they were under legal obligation to conduct a departmental enquiry against the petitioner, so as to ensure meticulous compliance of the basic principles of natural justice. However, it was not done for the reasons best known to the respondents.

In the present case, golden rule of audi alteram partem has been glaringly violated by the respondent authorities, while passing the impugned termination order (Annexure P-1). Petitioner had a long service for about 24 years to his credit. When a pointed question was put to the learned counsel for the respondents, as to whether any enquiry was ever conducted at an earlier point of time against the petitioner or not, he had no answer and rightly so, because it was a matter of record.

These abovesaid undisputed facts go to show that possibility cannot be ruled out that allegations levelled against the petitioner might be based on a concocted story so as to prepare a background to terminate his services. If the reply submitted by the petitioner to the show-cause notice was not meant for due consideration by the competent authority, there would have been no necessity even for issuing show-cause notice. In fact, impugned termination order is almost reproduction of the allegations levelled against the petitioner in the show-cause notice (Annexure P-2). In such a situation, it can be safely concluded that the services of the petitioner have been terminated for extraneous considerations and the impugned termination order cannot be sustained, for this reason also.

The view taken by this Court also finds support from the numerous judgments of the Hon''ble Supreme Court. The development of law relating to the applicability of the rule of Audi Alteram Partem to administrative actions, can be traced right from A.K. Kraipak v. Union of India, (1962) 2 SCC 262, Ridge v. Baldwin, 1964 AC 40, Sayeedur Rehman Vs. The State of Bihar and Others, , Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, and Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, .

The law laid down in all these judgments has been consistently followed by the Hon''ble Supreme Court in catena of judgments and the recent judgments are Sri Radhy Shyam (Dead) through L.Rs. and Others Vs. State of U.P. and Others, and Darshan Lal Nagpal (dead) by L.Rs. Vs. Government of NCT of Delhi and Others, . The relevant observations made by the Hon''ble Supreme Court in paras 16 to 19 of the judgment in Darshan Lal Nagpal''s case (supra), which can be gainfully followed in the present case, read as under:--

"The scope of the rule of hearing, i.e., audi alteram partem was highlighted by the three-Judge Bench in Sayeedur Rehman Vs. The State of Bihar and Others, in the following words:

"11. ...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 necessity 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.

In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, Bhagwati, J. speaking for himself and Untwalia and Fazal Ali, JJ. observed:

"14. ...The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law ''lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation''. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that ''natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances''. The audi alteram partem rule is not cast in a rigid could and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."

(emphasis supplied)

In Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , Krishna Iyer, J. speaking for himself, Beg, C.J. and Bhagwati, J. observed as under:

"43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colors and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy Government, recognized from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adam-- and of Kautilya''s Arthashastra-the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new- fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system."

"48. Once we understand the soul of the rule as fair play in action and it is so-we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one''s bonnet. Its essence is good conscience in a given situation: nothing more-but nothing less. The ''exceptions'' to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Textbook excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation."

In Swadeshi Cotton Mills Vs. Union of India (UOI), the majority of the three-Judge Bench held that the rule of audi alteram partem must be complied with even when the Government exercises power under Section 18-AA of the Industries (Development and Regulation) Act, 1951 which empowers the Central Government to authorise taking over of the management of industrial undertaking. Sarkaria, J. speaking for himself and Desai, J. referred to the development of law relating to applicability of the rule of audi alteram partem to administrative actions, noticed the judgments in Ridge v. Baldwin, (1964) AC 40, A.K. Kraipak and Others Vs. Union of India (UOI) and Others, , Mohinder Singh Gill v. Chief Election Commr. (supra), Maneka Gandhi v. Union of India (supra) and State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, and quashed the order passed by the Central Government for taking over the management of the industrial undertaking of the appellant on the ground that opportunity of hearing has not been given to the owner of the undertaking and remanded the matter for fresh consideration and compliance with the rule of audi alteram partem."

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned termination order has been found to be in glaring violation of the basic principles of natural justice, which cannot be sustained and is hereby set aside. Natural consequences would follow. Petitioner is declared entitled for all consequential service benefits. Respondent authorities are directed to do the needful granting all the consequential service benefits to the petitioner within a period of three months from the date of receipt of a certified copy of this order, failing which petitioner shall be entitled for the arrears of salary alongwith interest @ 12% per annum from the date when it became due till the actual date of payment.

Resultantly, with the observations made and directions issued as hereinabove, instant writ petition stands allowed, however, with no order as to costs.