Ramdas Kirar vs State of Madhya Pradesh and Others

Sujoy Paul, J.—The petitioner has challenged the termination order dated 29.11.2012 (Annexure-P-1) on following counts:--

(i) In the show-cause notice, Annexure-P-2, certain allegations were made, against which petitioner submitted his reply but by the impugned order petitioner''s services are terminated for many other reasons, which were not subject-matter of the show-cause notice.

(ii) The impugned order entails civil consequences, casts stigma and, therefore, could not have been issued without following the due process of law.

Per Contra, Shri Newaskar supported the impugned order and by placing reliance on different clauses of contract, submits that petitioner has no indefeasible right to continue and his services can be terminated.

I have heard the learned counsel for the parties and perused the record.

The Apex Court in the case of Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, held that principles of natural justice and Article 14 of the Constitution of India has a role to play even in cases of contractual appointments. Thus, the fairness which is an integral part of good administration has to be ensured. Arbitrariness is one of the main facet on which interference can be made by a writ Court while exercising powers under Article 226 of the Constitution. A minute scrutiny of show-cause notice dated 8.11.2012 in juxta position to Annexure-P-1 shows that petitioner''s services have been terminated on various allegations and findings which were not subject-matter of the show-cause notice. The petitioner has not been afforded any opportunity with regard to various incidents which have even taken place after issuance of show-cause notice.

This is settled in law that a person cannot be punished for an allegation which was not subject-matter of the charge. This view was taken by the Supreme Court way back in Laxmi Devi Sugar Mills Vs. Nand Kishore Singh, . This view is consistently taken by the Apex Court. In M.V. Bijlani Vs. Union of India (UOI) and Others, also the Apex Court has taken the same view.

On perusal of Annexure-P-1, it cannot be doubted that it casts stigma and the order is punitive in nature. Thus, before passing such an order, respondents were under an obligation to follow the principles of natural justice. The Apex Court in Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, has held that any order which entails civil consequences should be passed only after following the principles of natural justice. The following quotes will establish the importance of following the principles of natural justice:--

Principles of natural justice are to some minds burdensome but this price - a small price indeed-has to be paid if we desire a society governed by the rule of law.

........even God himself did not pass (a) sentence upon Adam before he was called upon to make his defence. Adam (says God), where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst not eat?....

In Lloyd v. McMahon 17 AC pp. 702 H-703 B : 1987 AC 625, it was held as under:--

My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the Courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.

The Apex Court in Sri Radhy Shyam (Dead) through L.Rs. and Others Vs. State of U.P. and Others, held as under:--

The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three-Judges 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 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. highlighted the importance of the rule of hearing in the following words:--

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 colours 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, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adamand of Kautilyas Arthashastrathe 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.

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 mould 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.

Considering the aforesaid, in my opinion, the respondents have grossly failed to follow the principles of natural justice, which is part and parcel of rule of law flowing from Article 14 of the Constitution. Accordingly, Annexure-P-1 is liable to be interfered with and I do so. Accordingly, Annexure P-1 is set aside. However, liberty is reserved to the respondents to proceed against the petitioner in accordance with law. Petition is allowed to the extent indicated above and without expressing any opinion on the merits of the case. No costs.