Mohammad Ishaq Malik vs State of J&K and Ors.

Admit. With the consensus of learned counsel for the parties, this petition is taken up for final adjudication.

It appears that petitioner came to be engaged as RehbareTaleem in terms of annexureD and the petitioner accordingly joined the services as

such in terms of annexureE. But later on cancellation order came to be issued regarding the appointment of petitioner in terms of annexureF. The

relevant portion of annexureF reads as under;

. 5.Whereas the selection Committee recommended the name of S.No.2 Shri Mohd. Ishaq Malik for selection as RehbereTaleem Guide as a high

meritorious candidate in the panel;

Whereas vide this Office No:DDCP/RT 703/7043/55 dated 31.3.2003 the said Shri Mohd. Ishaq Malik was selected as R.T. Guide for Boys

Primary School, Munand Gufan Education Zone, Imamsaheb;

Whereas, the zonal Education Officer, Imamsahib received a complaint that the candidates selected as R.T. Guide is having fake certificate of

M.A;

Whereas, the Zonal Education Officer, Imamsahib vide his NO:ZEO/IM/413 dated 5.5.2003 submitted the original/Photostat of M.A. Marks

card under S.No:00688 Roll No.1026 to Deputy Controller of Examinations Unviersity of Kashmir for necessary verification;

Whereas the Deputy Controller of Examinations of Kashmir University vide his No.F/Exam/MA/KU/03 dated 12.05.2003 in formed that the

marks certificate bearing S.No:00688 of M.A. (Mathematics) under Roll No: 1026 of batch 1988 securing 672 marks out of 1200 does not exist

in his records and is fake; and

Whereas the Chief Education Officer, Pulwama vide his No:CEO/PUL/242425 Dated 28.05.2003 submitted Photostat copy of ZEO

Imamsahib's letter No:ZEO/IM/03/458 dated;20.5.2003 and recommended for cancellation of selection order issued in favour of Sh. Mohd lshaq

Malik.

Now therefore, keeping the above facts in view the selection order of Sh. Mohd.Ishaq Malik S/O Mohd. Ramzan Malik R/O Munandgufan issued

vide this office NO:DDCP/RT/03/704355 dated 31.3.2003 is hereby cancelled with immediate effect.

The order contained in annexureF appears to have been passed on the basis of communication received from Deputy Controller of Examination,

University of Kashmir and without affording opportunity of being heard to the petitioner in order to arrive at just conclusion. It is profitable to

reproduce the communication issued by Deputy Controller of Examination, University of Kashmir herein;

Ref: Your letter No. ZEO/IM/413 dated 05.05.03 regarding verification of M.A. (Mathematics) marks certificate of one Mohd. Ishaq Malik, Sir,

In this connection this is to inform you that the Photostat copy of the marks certificate bearing S.No:00688 of M.A.(Mathematics) under Roll

No:1026 of batch 1988 produced by a candidate namely Mohd.Ishaq Malik securing 672 marks out of 1200 does not exist in our records and is

FAKE. However, the original Marks card of the candidate has not been received by this office which may please be provided for further

verification.

Mr. Qayoom heatedly argued that the said order is not only violative of principles of natural justice but has deprived the petitioner of his right to

livelihood and thereby has been deprived of the Fundamental Rights.

Mr. Ganaie argued that the petitioner has committed fraud and has obtained appointment while submitting fake marks card. Thus the petitioner

has not come with clean hands and cannot claim equitable relief.

While going through this communication, the report is not final but the concerned officer has been asked to submit the original marks card but

instead of sending the original marks card, it appears that appointment of the petitioner came to be cancelled in terms of annexureF without hearing

the petitioner.

While going through the impugned order, it appears that it is violative of principles of natural justice and has been passed at the back of the

petitioner. The moot point for consideration is, whether in the given circum stances, the petitioner was to be given an opportunity of being heard

before passing of the order contained in annexureF?

This court is of the considered view that while keeping in view the communication made by Deputy Controller Examinations, University of

Kashmir, impugned order contained in annexureF should not have been passed without submitting the original marks card to the University and

without hearing the petitioner. The order is not only depriving the petitioner from appointment but in fact cast a stigma and not only it is a stigma but

in fact has deprived the petitioner of his livelihood.

The Apex Court has held in case D.K. Yadav v. J. M.A. Industries Ltd., reported in (1993)3 SCC 259 observed as under:

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 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.

The Apex Court has also held in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress reported in AIR 1991 SC 101 as under;

In the year 1990, it is not necessary for me to discuss in detail the authorities which have widened the horizons of Article 14 of the

Constitution. Some of these precedents are directly on the point inasmuch as the validity of similar service rules was considered there. It is enough

if I summarise the position of law as it obtains today. There is need to minimize the scope of the arbitrary use of power in all walks of life. It is

inadvisable to depend on the good sense of the individuals, however highplaced they may be. It is all the more improper and undesirable to expose

the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are

not and do not become wise because they occupy high seats of powers, and good sense, circumspection and fairness does not go with the posts,

however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The

presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the

rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be

covered by the rule of law.

The employment under the public undertaking is a public employement and a public property. It is not only the undertakings but also the society

which has a stake in their proper and efficient working. Both discipline and devotion are necessary for efficiency. To ensure both, the service

conditions of those who work for them must be encouraging, certain and secured, and not vague and whimsical. With capricious service

conditions, both discipline and devotion are endangered, and efficiency is impaired.

The right to life includes right to livelihood. The right to livelihood therefore cannot hang on to the fancies of individuals in authority. The

employment is not a bounty from them nor can its survival be at their mercy. Income is the foundation of many fundamental rights and when work is

the sole source of income, the right to work becomes as much fundamental. Fundamental rights can illafford to be consigned to the limbo of

undefined premises and uncertain applications. That will be a mockery of them.

Both the society and the individual employees, therefore, have an anxious interest in service conditions being welldefined and explicit to the extent

possible. The arbitrary rules, such as the one under discussion, which are also sometimes described as Henry VIII Rules, can have no place in any

service conditions

The right of hearing is required where order is to be passed in order to ascertain actual facts. While keeping in view the above facts, the

petitioner was to be heard and he was required to be asked to produce original marks card.

The Apex court has held in case Canara Bank v. Debasis Das, reported in 2003 SCW1560 as under;

Residual and crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, what extent

any prejudice has been caused. It may be noted as this juncture that in some case it has been observed that where grant of opportunity in terms of

principles of natural justice do not improve the situation, ""useless formality theory"" can be pressed into service. Natural justice is another name of

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.

The expressions ""natural justice"" and ""legal justice"" do not present a watertight 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 pedentry 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.

How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by

a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein

quasijudicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for

fairplay and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rules is 'nemo judex in

causa sua' or 'nemo debet esse judex in propria causa sua' as stated in (1605) 12 Co.Rep.114 that is, 'no man shall be judge in his own cause.'

Coke used the form 'aliquis nondebet esse judex in propria causa quia nonpotest esse judex at pars' (Co.Litt.1418), that is, 'no man ought to be a

judge in his own case, because he cannot act as Judge and at the same time be a party.' The form 'nemo potest esse simul actor et judex,' that, is

'no one can be at once suitor and judge' is also at times used. The second rules is 'audi alteram partem,' that is, hear the other side.' At time and

particularly in continental countries, the form 'audietur at altera pars' is used, meaning very much the same thing. A corollary has been deduced

from the above two rules and particular the audi alteram partem rules, namely, 'qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud

acquum facerif that is, 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have

been what is right' (See Bosewell's case (1605)6 Co.Rep.48b 52a) or in other words, as it is now expressed, 'justice should not only be done but

should manifestly be seen to be done.' Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no

final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the

proceedings are not terminated.

If an order is set aside on this basis it is violative of principles of natural justice, the worse comes that the competent authority has to pass final

order. That does not amount to putting a seal to the case. The proceedings are not terminated but the competent authority while keeping all things

in view has to pass the orders.

The Apex Court has also observed in Basadeo Tiwary v. Sido Kanhu University, reported in AIR 1998 SC 3261 as under:

The said provision provides that an appointment could be terminated at any time without notice if the same had been made contrary to the

provisions of the Act, Statutes, Rules or Regulations or in any irregular or unauthorized manner. The condition precedent for exercise of this power

is that an appointment had been made contrary to Act, Rules, Statutes and Regulations or otherwise. In order to arrive at a conclusion that an

appointment is contrary to the provisions of the Act, Statutes, Rules or Regulations etc, a finding has to be recorded and unless such a finding is

recorded, the termination cannot be made, but to arrive at such a conclusion necessarily an enquiry will have to be made as to whether such

appointment was contrary to the provisions of the Act etc. If in a given case such exercise is absent, the condition precedent stands unfulfilled. To

arrive at such a finding necessarily enquiry notice will have to be held and in holding such an enquiry the person whose appointment is under

enquiry will have to be issued to him. If notice is not given to him then it is like playing Hamlet without the prince of Denmark, that is, if the

employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a

conclusion would not be just, fair or reasonable as noticed by this Court in D.T.C. Mazdoor Sabha's case (AIR 1991 SC 101). In such an event,

we have to hold that in the provision there is an implied requirement of hearing for the purpose of arriving at a conclusion that an appointment had

been made contrary to the Act, Statute, Rule or Regulation etc., and it is only on such a conclusion being drawn, the services of the person could

be terminated without further notice. That is how S.35(3) in this case will have to be read.

The Apex Court has also observed in Jaswant Singh v. State of Madhya Pradesh, reported in AIR 2000 SC 3586 as under:

The appellants having been appointed pursuant to the order of the Panchayat and having been continued as LDC since February 1987, no

order under subsection (1) of Section 83 of the Adhiniyam could have been passed by the Collector without affording the opportunity of hearing to

them. Admittedly, the opportunity of hearing has not been given. The impugned order of cancellation, therefore, stands vitiated. We, therefore, set

aside the order of the High Court as well as the order of cancellation passed by the Collector.

The Apex Court has also observed in S.L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136 as under:

In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any different if natural justice

had been observed. The nonobservance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of

natural justice is unnecessary. If ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As

we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the

Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because

Courts do no issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal.

The judgments cited by Mr. Jehangir in support of his arguments reported in SLJ 2001, 513, 2003 SLJ 547, AIR 1988 Patna 26 and AIR

2004 SC 1469 are not applicable because in the said cases the appellants were given due opportunity to defend the case. It is profitable to

reproduce Head Note 'A' of the judgment reported in AIR 1988 Patna 26, Rita Mishra v. Director, Primary Education, Bihar herein;

(A) Constitution of India, Art.226Right to salaryAppointment letter either, forged, fraudulent or illegalAppointee is not entitled to salary. C.W.J.C.

No.5451 of 1984 (Pat), overruled.

While going through the judgment reported in SLJ 2001 page 513 (Ghulam Ahmad Bhat v. Life Insurance Corporation it becomes crystal

clear that before arriving at a conclusion an enquiry was conducted and petitioner has been put to notice.

While going through the judgment reported in SLJ 2003, page 547, (Dr. Harbaksh Singh v. State) it was established that petitioner therein was

party to the fraud and there was no need to provide an opportunity and petitioner was not entitled to any hearing while keeping in view the

principles of natural justice.

Applying the test laid down in the judgment (supra) to the instant case and while keeping in view the communication received from Deputy

Controller Examination, Kashmir University, the notice was required.

In the given circumstances, the writ petition is allowed. Deputy Commissioner, Pulwama is directed to conclude the enquiry within one month

from the date copy of this order is served upon him and pass appropriate orders after hearing the petitioner.

It is made clear that if the Police is conducting the investigation, they shall take the investigation to its logical end. And in case the charge sheet

has been filed before the competent court by the Police, the competent Court is at liberty to pass orders warranted under law. This order shall not

influence or prejudice the mind of the court in any way.

Writ petition along with all connected CMP(s) is disposed of accordingly. Registry is directed to send a copy of this order to Deputy

Commissioner, Pulwama for necessary action.