Panna Lal Khandelwal vs State of U.P.and Others

S.H.A. Raza, J.—This writ petition has been filed against the order dated 20592, passed by the District Magistrate, Pratapgarh, removing the petitioner, who at the relevant time was the Chairman of Town Area Committee, Patti, District Pratapgarh on the ground of making irregular appointments, financial irregularities and misappropriation of the Government Fund.

The thrust of the petitioner''s counsel to assail the order passed against him is three fold. Firstly, that the State Government has not given any opportunity to the petitioner to submit his explanation on the charges against him befor confirming the order of removal passed by the District Magistrate. Secondly, that the petitioner was not served with a copy of the order dated 1851992 passed by the State Government confirming the order of removal and 3rdly that the order passed by the District Magistrate suffers from nonapplication of mind inasmuch as it has not indicated any reason for arriving at a conclusion that the petitioner was guilty of making irregular appointments, financial irregularities and misappropriation of the Government Funds. Section 7A of the Town Area Committee Act reads as under :

"7 (A). Removal of a Chairman or a member of a Committee:

The prescribed authority or where an authority has not been prescribed, the District Magistrate, may remove a Chairman or any member of the Committee who, in its or his opinion

(a) has been guilty of gross misconduct or failure in the discharge of his duties, or

(b) has failed to pay for a period of more than one year any as or other dues payable by him to the Committee, or

(c) has become disqualified for being a member under section 6K:

Provided firstly, that before making an order removing the Chairman or the member, as the case may be, he shall be allowed an opportunity to submit his explanation on the charges or charge against him :

Provided, secondly, that no order for removal shall take effect unless it is confirmed by the State Government.

(1A) The State Government may on the recommendation of the prescribed authority referred to in subsection (1) or the

District Magistrate, as the case may be, place under suspension a Chairman or member against whom action has been commenced under subsection (1) and, where the Chairman or the member has been so suspended, he shall not, for so long as the order of suspension is in force, be entitled:

(a) to exercise the powers or perform the duties imposed upon him by or under this Act or any other enactment for the time being in force, and

(b) to take part in any proceedings of the Committee.

(2) A member or Chairman removed under this section shall not be eligible for further election or nomination as a member or Chairman for period of four years from the date of his removal."

A perusal of the first proviso to section 7A of the aforesaid Act indicates that before making an order removing the Chairman or the member, as the case may be, he shall be allowed an opportunity to submit his explanation on the charges or charge against him.

In view of the aforesaid provision, it cannot be said that the aforesaid provision does not contain opportunity of hearing before the District Magistrate. The principle of audialterampartem is inherent in the aforesaid provision. It is in those cases where substantive right of a person is affected and no opportunity to show cause against the proposed action is contemplated, the Rule of audialterampartem can be imported by the Courts. In view of the fact that audialterampartem Rule is imported in the first proviso to that section, it cannot be said that the order suffers from denial of principle of natural justice.

As far as the contention of learned counsel for the petitioner that the State Government before passing the confirmation order must give a second opportunity of hearing before passing a reasoned order is concerned, which is not contemplated under the second proviso to section 7A, the Court cannot import the Rule of audialterampartem into the second proviso which was never intended by the legislature.

Learned counsel for the petitioner to support his contention that the Court, should import the Rule audialterampartem into the second proviso to section 7A of the aforesaid Act, relied on the case of Mahabir Prasad Dwivedi Vs. State of U.P. and others (1992 (2) UPLBEC1074), wherein an Hon''ble Single Judge of this Court indicated as under:

"I may now deal with the submission of learned counsel for the respondents that since the first proviso to section 7A (1) specifically provides for giving opportunity of hearing while the second proviso in silent, hence we should conclude that the legislature never intended that opportunity of hearing must be given before passing the confirmation order. It is true that where in statute one provision requires giving opportunity of hearing while another provision is silent, it is possible to deduce that the legislature never intended to give such opportunity in the latter provision. However this is not an absolute rule. Thus in S.L. Kapoor Vs. Jagmohan AIR 1981 SC 136, it was held by the Supreme Court (in para 10) that although Section 16 of the Punjab Municipal Act expressly provided for an opportunity of hearing whereas Section 238 of the same Act did not expressly provide for any such opportunity, yet an opportunity of hearing must be given before passing the order under section 238, In that case it was held that the order of the Lt. Governor of Delhi under section 238 superseding the New Delhi Municipal Committee without giving opportunity of hearing was vitiated in law."

It is relevant to mention that before coming into force of the 42nd Amendment, second opportunity was contemplated under Article 311 of the Constitution of India, but after the aforesaid amendment it was deleted and it was provided that where it was proposed after an inquiry to impose upon a public servant any such penalty, such penalty might be imposed on the basis of evidence adduced during such an inquiry and it would not be possible to make any representation on the penalty proposed. No one can say that after the deletion of the second opportunity, the proviso to clause 2 of Article 311 would be bad for the reason that it violates the principle of audialterampartem.

In the words of Justice Megarry in Hounslow London Borough Council Vs. Twockenham Garden Developments Ltd ( 1971 Ch.233 ) the principles of natural justice are of wide application and great importance, but they must be confined within proper limits and not allowed to run wild. Undoubtedly the principle of natural justice have come to be recognised as being a part of guarantee contained in Article 14 of the Constitution and the violation of Rules of natural Justice results in arbitrariness which is the same as discrimination. Where discrimination in the result of State action, it is violation of Article 14; therefore, a violation of principles of natural justice by a State action is a violation of Article 14, but the question as to what extent the principles of natural justice may be applied to a particular case, this Court cannot ignore the dictum of Hon''ble Supreme Court in the case of Suresh Koshy George Vs. University of Kerala (AIR 1969 SC198), wherein it was observed at page 322:

"The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the tribunal and the rules under which it functions."

After referring to the aforesaid observations Hon''ble Supreme Court in the case of A.K. Kraipak Vs. Union of India (19701SCR457, AIR 1970 SC150) held at page 469 (of SCR), 157 ( of AIR ) (Hon''ble Hegde, J.) observed as under:

What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."

In the case of Union of India Vs. Col J. N. Sinha and anor (1971 (1) SCR791) at pages 794795) it was observed:

"Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak and ors. Vs. Union of India (AIR 1970 SC150 ) ''the aim of rules of antural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it. "It is true that if statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if, on the other hand, a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice, then the Court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power."

In Swadeshi Cotton Mills Vs. Union of India ( 19812SCR533 ), Hon''ble Chinnappa Reddy, J. in his dissenting judgment summarised the position in law on this point and held as under:

"Where authority functions under a statute and the statute provides for the observance of the principles of natural justice in a particular manner, natural justice will have to be observed in that manner and in no other. No wider right than that provided by statute can be claimed nor can the right be narrowed."

In the case of Union of India Vs. Tulsiram Patel ( AIR1985 SC1416 ) in paragraph 101 Hon''ble Mr. Justice Madon for himself and on behalf of Y.V. Chandrachud; Tulzapurkar and Pathak, JJ. (Majority view) indicated as under:

"Not only, therefore, can the principles of natural justice be modified but in exceptional cases they can even be excluded."

In the present case, we find that the first proviso to section7A of the said Act provides for the observance of the principles of natural justice but the second proviso does not. If the first proviso would have also not provided an opportunity to show cause against the order of removal, this Court could easily import the principles of natural justice into the said provision, but as the first proviso provided an opportunity, this Court cannot import such right into the second proviso, as the statute is silent about the principles of natural justice. We are of the view that the requirements of natural justice has been provided by the procedure prescribed in the first proviso to section 7A, hence, another opportunity was not necessary to be given to the petitioner by the State Government, before confirming the order of removal.

In view of the above, with all respect to the Hon''ble Single Judge we are of the view that on the facts and circumstances of the present case and the frame work of the Statute under which a Chairman of the Town Area can be removed, after giving him an opportunity to show cause, the requirements of principle of natural justice have been met, and for want of a further opportunity to a show cause before the State Government before confirming the order of removal, the impugned order would not be vitiatep.

The second contention of the petitioner that for want of service of the order of confirmation, by the State Government, the order of removal is vatiated we are of the view that it was not at all necessary or required. The petitioner has been served with the order of removal. The order removing him from the Chairmanship of town area was passed by the District Magistrate who is the competent authority under the Statute to pass such an order.

As far as the 3rd contention of the petitioner regarding nonapplication of mind by the District Magistrate before passing the order of removal is concerned, it merite consideration. A perusal of the order would indicate that the District Magistrate in his order has not indicated any reason for passing such an order. Only this much has been indicated in the order that the petitioner was found guilty of making irregular appointments, financial irregularities and misappropriation of the Government Fund and no reason has been indicated for arriving at such a conclusion. In the case of C. B. Gautam Vs. Union of India and others (1993 (1) SCC78) My Lord Justice M.H. Kania, C.J. speaking on behalf of the Bench indicated in paragraph 31 of the report as under:

"The recording of reasons which lead to the passing of the order is basically intended to serve a twofold purpose :

(a) that the "party aggrieved'''' in the proceeding before acquires knowledge of the reasons and, in a proceeding before the High Court or the Supreme Court (since there is no right of appeal or revision), it has an opportunity to demonstrate that the reasons which persuaded the authority to pass an order adverse to his interest were erroneous, irrational or irrelevant, and

(2) that the obligation to record reasons and convey the same to the party concerned operates as a deterrent against possible arbitrary action by the quasiJudicial or the executive authority invested with judicial powers."

As stated above the impugned order has been passed in a most casual and mechanical way without application of mind, giving no reasons for arriving at a conclusion that the petitioner was guilty of making irregular appointments, financial irregularities and misappropriation of Government Funds, we are of the view that the order suffers from malice of arbitrariness and is hit by Article 14 of the Constitution. Hence for that reason only the writ petition deserves to be allowed.

In view of what has been indicated hereinabove the writ petition succeeds and is allowed. A writ in the nature of certiorari, quashing the impugned order dated 20592 (Annexure5 of the writ petition), is issued. However, no order is made as to costs.