Moinuddin vs Nagar Palika Nigam Ratlam & Ors

The petitioner before this Court, who is a daily wager, has filed present petition being aggrieved by order of termination dated 13/01/2017. The

petitioner's contention is that he was working with the respondents for the last 28 years and has been thrown out of the job without conducting any

inquiry. The petitioner's contention is that only a show cause notice was issued and thereafter, the petitioner has categorically denied all the allegations

levelled against him and in spite of his denial, his 28 years' of unblemished service has not been looked into and he has been thrown out of the job.

02- A detailed and exhaustive reply has been filed in the matter and it has been stated that large number of irregularities were committed by the

petitioner and in those circumstances after conducting a fact finding inquiry, the services of the petitioner has been put to an end.

03- This Court has carefully gone through the show cause notice as well as the reply filed by the petitioner. The impugned order passed in the present

case is certainly a stigmatic order. The petitioner came up with a specific plea that in order to save a contractor, who was required for updating the

data, he has been made a scapegoat. It has also been stated that he was purely a daily wager not a professional who knew computer science nor he

was a professional expert in the filed of IT, he was simply a daily wager and the entire burden has been shifted upon the petitioner in respect of

irregularities.

04- This Court after hearing learned counsel for the parties and after taking into account the fact that the petitioner was continuing for 28 years

without any blemish, there was no punishment order, there was no complaint against him, and the order is stigmatic in nature, is of the opinion that

without conducting a proper inquiry and without granting opportunity of hearing to the petitioner, the respondents could not have been passed the

impugned order in the manner and method it has been done.

05- The respondents have certainly violated principles of natural justice and fair play. In India there is no statute which prescribes the minimum

procedure which administrative agencies or quasi judicial bodies must follow while taking decisions which affect the rights of the individuals.

Nonetheless, they are bound by the principles of natural justice. The principles of natural justice signify the basic minimum fair procedure which must

be followed while exercising decision making powers. Natural justice forms the very backbone of a civilized society.

06- The wheels regarding the application of principles of natural justice to administrative and quasi-judicial proceedings started turning from 1963 when

the House of Lords in the United Kingdom delivered the landmark and oft-quoted judgment of Ridge v. Baldwin [1963] UKHL 2. An order for

dismissal of a Constable was quashed because he was not provided any opportunity to defend his actions. Presently, in our country, the principles of

natural justice are applicable in totality to administrative and quasi-judicial proceedings. This is consistent and in line with the rapidly increasing role,

functions and jurisdiction of such bodies in a welfare state like ours.

07- The below-mentioned passages by the Hon’ble Supreme Court in the case of Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375

exhaustively explain natural justice and deserve to be quoted in full in the context of the current dispute:-

“6. Natural justice is another name for 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 water-tight 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 pedantry 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.

The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on

determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The

first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the

first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for

the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity,

the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed

against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play…..

Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual

against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those

rights. These rules are intended to prevent such authority from doing injustice.

Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB

796), where Lord Loreburn, L.C. observed as follows:

“Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of

deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as

well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to

ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone

who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The Board is in the nature of the arbitral

tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either

that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to

determine, then there is a remedy by mandamus and certiorariâ€​.

Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way

they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement

prejudicial to their viewâ€. To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works

(1985 (10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor observed as follows:

“No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial

requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being

heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and

impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of

any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justiceâ€​.

Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person

by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very

important rule of natural justice contained in the oft-quoted phrase ‘justice should not only be done, but should be seen to be done’.

Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly

in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of

natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that

case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered

away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression ‘civil

consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary

damages. In its wide umbrella comes everything that affects a citizen in his civil life.

Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8,

Lord Cranworth defined it as ‘universal justice’. In James Dunber Smith v. Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir

Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase ‘the requirements of substantial justice’, while in Arthur

John Specman v. Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl of Selbourne, S.C. preferred the phrase ‘the

substantial requirement of justice’. In Vionet v. Barrett (1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as ‘the natural sense of

what is right and wrong’. While, however, deciding Hookings v. Smethwick Local Board of Health (1890 (24) QBD 712), Lord Fasher, M.R.

instead of using the definition given earlier by him in Vionet’s case (supra) chose to define natural justice as ‘fundamental justice’. In Ridge

v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with ‘fair-play in action’ a phrase favoured by

Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967 (2) B 617, 530), Lord Parker, CJ, preferred to

describe natural justice as ‘a duty to act fairly’. In Fairmount Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord

Russell of Willowan somewhat picturesquely described natural justice as ‘a fair crack of the whip’ while Geoffrey Lane, LJ. In Regina v.

Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase ‘common fairness’.

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 quasi-

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

justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule 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 a judge in his own

cause’. Coke used the form ‘aliquis non debet esse judex in propria causa quia non potest 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 rule is ‘audi alteram partem’, that

is, ‘hear the other side’. At times 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 particularly the audi alteram partem rule, namely ‘qui aliquid statuerit

parte inaudita alteram actquam licet dixerit, haud acquum facerit’ 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. 48-b, 52-a) or in

other words, as it is now expressed, ‘justice should not only be done but should manifestly be seen to be done’.

What is known as ‘useless formality theory’ has received consideration of this Court in M.C. Mehta v. Union of India (1999(6) SCC 237). It

was observed as under:

“Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all

facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief

can be refused even if the court thinks that the case of the applicant is not one of ‘real substance’ or that there is no substantial possibility of his

success or that the result will not be different, even if natural justice is followed (See Malloch v. Aberdeen Corpn: (1971)2 All ER 1278, HL) (per

Lord Reid and Lord Wilberforce), Glynn v. Keele University: (1971) 2 All ER 89; Cinnamond v. British Airports Authority: (1980) 2 All ER 368, CA)

and other cases where such a view has been held. The latest addition to this view is R v. Ealing Magistrates’ Court, ex p. Fannaran (1996 (8)

Admn. LR 351, 358) (See de Smith, Suppl. P.89 (1998) where Straughton, L.J. held that there must be ‘demonstrable beyond doubt’ that the

result would have been different. Lord Woolf in Lloyd v. McMohan (1987 (1) All ER 1118, CA) has also not disfavoured refusal of discretion in

certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant (1959 NZLR 1014) however goes halfway when it says that

(as in the case of bias), it is sufficient for the applicant to show that there is ‘real likelihood-not certainty- of prejudice’. On the other hand,

Garner Administrative Law (8th Edn. 1996. pp.271-72) says that slight proof that the result would have been different is sufficient. On the other side

of the argument, we have apart from Ridge v. Baldwin (1964 AC 40: (1963) 2 All ER 66, HL), Megarry, J. in John v. Rees (1969 (2) All ER 274)

stating that there are always ‘open and shut cases’ and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but

for the authority to consider. Ackner, J has said that the ‘useless formality theory’ is a dangerous one and, however inconvenient, natural justice

must be followed. His Lordship observed that ‘convenience and justice are often not on speaking term’. More recently, Lord Bingham has

deprecated the ‘useless formality theory’ in R. v. Chief Constable of the Thames Valley Police Forces, ex p. Cotton (1990 IRLR 344) by giving

six reasons (see also his article ‘Should Public Law Remedies be Discretionary?’ 1991 PL. p.64). A detailed and emphatic criticism of the

‘useless formality theory’ has been made much earlier in ‘Natural Justice, Substance or Shadow’ by Prof. D.H. Clark of Canada (see

1975 PL.pp.27-63) contending that Malloch (supra) and Glynn (supra) were wrongly decided. Foulkes (Administrative Law, 8th Edn. 1996, p.323),

Craig (Administrative Law, 3rd Edn. P.596) and others say that the court cannot prejudge what is to be decided by the decision-making authority. De

Smith (5th Edn. 1994, paras 10.031 to 10.036) says courts have not yet committed themselves to any one view though discretion is always with the

court. Wade (Administrative Law, 5th Edn. 1994, pp.526-530) says that while futile writs may not be issued, a distinction has to be made according to

the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of

opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance or if he can

prove a ‘real likelihood’ of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that

even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their

‘discretion’, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet

another line of cases as in State Bank of Patiala v. S.K. Sharma (1996 (3) SCC 364), Rajendra Singh v. State of M.P. (1996 (5) SCC 460) that even

in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and

where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived.

We do not propose to express any opinion on the correctness or otherwise of the ‘useless formality theory’ and leave the matter for decision in

an appropriate case, inasmuch as the case before us, ‘admitted and indisputable’ facts show that grant of a writ will be in vain as pointed by

Chinnappa Reddy, J.â€​

08- Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following

the principles of natural justice is the prevention of miscarriage of justice.

09- Resultantly, impugned order passed by the respondents is hereby set aside. The respondents are directed to reinstate the petitioner forthwith in

service. However, the petitioner shall not be entitled for back wages.

Certified copy as per rules.