State of Kerala and Another vs B. Mohanan

Arijit Pasayat, C.J.—Only question raised in this Writ Appeal filed by the State u/s 5 of the Kerala High Court Act, 1958 (in short ''the Act'') is whether learned Single Judge is correct in his view that before dismissal an opportunity of being heard was required to be granted to the affected employee.

Background facts essentially are as follows: Respondent (hereinafter referred to as ''employee'') was working as L.D. Clerk in the Office of Chief Engineer I.D.R.B. He was convicted by Judicial First Class Magistrate IV (Mobile), Trivandrum and sentenced to simple imprisonment for three months and to pay a fine of Rs. 1,01,000 for an offence u/s 138 of Negotiable Instruments Act, 1898 (in short ''N.I. Act''). On receipt of copy of judgment in connected case, i.e., CCC 9 of 1990, Chief Engineer considered the question of further retention of Respondent in the light of his conduct which led to his conviction. It was found that his retention was undesirable. Therefore, order was issued dismissing him from service. Dismissal was challenged in O.P. 19524 of 1997 on grounds that execution of sentence has been suspended in Crl. M.P. 365 of 1997 in Crl. A. 378 of 1997 and no opportunity was granted before order of dismissal was passed. Stand of employer was that in view of order of conviction, further retention of Respondent in service was undesirable in public interest. Learned Single Judge observed that since no show cause notice was issued in order to enable Respondent-employee to put forth his objections and explanations, order of dismissal is bad. Direction was accordingly given to reinstate employee within one week from the date of receipt of judgment.

According to learned Counsel for State, termination was automatic in view of conduct of Respondent and his retention would be against public interest. Reliance is placed on decisions of apex Court in Union of India v. Ramesh Kumar AIR 1997 S.C. 3531 and Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, to contend that grant of opportunity was not necessary. It was further stated that Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (in short ''Rules'') did not provide for grant of opportunity. Learned Counsel for Respondent-employee submitted that termination is not automatic and, therefore, grant of opportunity was imperative and such opportunity having not been given, learned Single Judge was justified in his view.

Foundation of the order of dismissal on conviction of employee is Rule 18. Same reads as follows:

Special Procedure in certain cases-Notwithstanding anything contained in Rules 15, 16 and 17.

(i) where a penalty is imposed on a government servant on the ground of conduct which had led to his conviction on a criminal charge; or

(ii) where the Disciplinary Authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure, prescribed in the said rules; or

(iii) where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow such procedure;

the Disciplinary Authority or the Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon as he deems fit:

Provided that before passing such orders under Clauses (i) and (ii) the Commission shall be consulted in cases where such consultation is necessary under the rules.

It is stated that disciplinary authority or Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon "as he deems fit". Stand of Appellants is that dismissal was deemed proper considering conviction in criminal case. It is true that there is no specific requirement in Rule 18 for grant of an opportunity. But, that per se would not rule out application of principles of natural justice.

Natural justice is Anr. name for commonsense justice. Rules of natural justice are not codified cannons. 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 expression ''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.

The adherence to principle of natural justice as recognised by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties. 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 against the person in absentia 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 fairplay.

The 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 or quasi-judicial authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.

What is meant by the term ''principles of natural justice'' is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Govt. Board, Ex parte Arlidue (1914) 1 K.B. 160 199 : 83 L.J.K.B. 86 described the phrase as sadly lacking in precision. In General Council of Medical Education and Registration of United Kingdom v. Sanckman 1943 A.C. 627 : (1948)2 All. E.R. 337. Lord Wright observed that it was not desirable to attempt ''to force it into any procusteam bed'' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give a full and fair opportunity to every party of being heard.

Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911) A.C. 179 : 80 L.J.K.B. 796, where Lord Loreburn, L.C. observed as:

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 question 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 certiorari.

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 view.

To the same effect are the observations of the Earl of Solbourne, L.C. in Spackman v. Plumstead District Board of Works (1885) 10 A.C. 229 : 54 L.J.M.C. 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 not 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 justice.

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''.

The concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice axe 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 framework 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. The expression ''civil consequences'' encompasses in fraction 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 the Privy Council, used the phrase: "the requirements of substantial justice", while in Arthur John Speckman v. The Plumstead District Board of Works (1884 85) 10 App. Case 229, 240, Earl of Salbourne, S.C. preferred the phrase "the substantial requirements of justice". In Voinet v. Barrett (1885) 55 L.J.R.D. 39, 41 Lord Esher, M.R. 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 Q.B.D. 712, 716 Lord Fasher, M.R. instead of using the definition given earlier by him in Voinet v. Barrett (supra) chose to define natural justice as "fundamental justice". In Ridge v. Baldwin (1963) 1 W.B. 569, 578 Harman, L.J., in the Court of Appeal, countered natural justice with "fair play in action" a phrase favoured by Bhagawati, J. in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, : AIR 1978 S.C. 597 at 625, 626. In re R.M [An infaot] (1967) 2 B 617, 530 Lord Parker, C.J. preferred to describe natural justice as a "duty to act fairly". In Fairmount Investments Ltd. v. Secretary to State for the Environment (1976) W.L.R. 1255, Lord Russell of Willowman somewhat picturesquely described natural justice as "a fair crack of the whip", while Geoffrey Lane, L.J., in Regina v. Secretary of State for Home Affairs Ex parte Hosenball (1977) 1 W.L.R. 766, 784 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 face 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 cause 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 cause, 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 and that is the rule with which we are concerned in this appeal 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: Boswell''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''.

Decisions in Union of India and others Vs. Ramesh Kum, and Deputy Director of Collegiate Education (Administration), Madras Vs. S. Nagoor Meera, which have been referred to by us in W.A. 2104 of 1997 disposed of on 27th October 1999 dealt with cases of automatic termination of service, in view of provisions specifically provided in concerned rules. It is fairly conceded by learned Counsel for State that dismissal from service is not automatic. But it is submitted that when authorities have been given power to pass such orders as deemed fit, there was no question of granting an opportunity. When any statute provides and confers power on an authority to pass orders "as it deems fit", the inevitable result is that power is to be exercised in terms of the statute. The order is required to be one which would give effect to a right conferred elsewhere in the statute. The words "as he deems fit" or "as deemed fit" do not bestow a power to make any order on consideration dehors the statute which the authorities consider best according to their notions of justice, see: Raja Ram Mahadev Paranjype and Others Vs. Aba Maruti Mali and Others, and R.V. Boteler (1864) 33 L.M.C. 101. No discretion is granted to act beyond the statute, see: Dr. Akshaibar Lal and Others Vs. The Vice-chancellor, Banaras Hindu University and Others, . Discretion is to be exercised according to the rules of reason and justice, not according to private opinion, according to law and not humour; it is not to be arbitrary, vague and fanciful, but legal and regular, per Lord Halsbury in Sharpe v. Wakefield 1886 90 All E.R. 651 (H.L.). Within certain limits, the individual who exercises discretion is quite free but if he ventures outside those frontiers his power ends, if he takes into consideration matters "fantastic and foreign to subject-matter, if he decides the matter according to the will and private affections" then he is regarded as having failed to exercise discretion all. per Robson in "justice and administrative Law" (3rd edition). Also see Babu Singh and Others Vs. State of U.P.,

That being position, we find no infirmity in the judgment of learned Single Judge. It goes without saying that appropriate authority can pass such order as deemed proper under relevant statutory provisions taking into account conviction recorded by learned Magistrate.