Sushil Kumar Sharma vs State of J & K

Arun Kumar Goel, J.—Petitioner is working in the State Education Department since 12.8.1987. It appears that in the year 1994 be

obtained his Master's Degree in the subject of Zoology from Jammu University. Photostat copy of the certificate issued by the University in that

behalf is placed on the record as AnnexureA. According to it, the date of declaration/issue of result is 9.8.1994.

RespondentState issued Government Order No. 407Edu. of 2000 dated 10.5.2000, when petitioner was promoted as Lecturer. As per

AnnexureA attached with the said Government order name of the petitioner in the list of promoted Lecturers figures at Serial No. 60. Even

otherwise admitted case of the petitioner as set up in the writ petition is that after having passed his M.Sc. in the year 1994, his case was

processed in the same year for promotion as Lecturer. It may be appropriate to mention here that this order was followed by a corrigendum dated

30.6.2000, copy whereof is AnnexureD with the writ petition. Pursuant to this corrigendum, petitioner was shown at serial No. 4A instead of 60

as originally shown in AnnexureA to Government Order dated 10.5.2000 (supra). Thus after the issuance of corrigendum as aforesaid petitioner

joined his duties and according to him, till date he was regularly performing his duties in H.S.S. Budhal. According to him, without any rhyme or

reason as well as without hearing him, another Government Order No. 1269 Edu. of 2000 dated 4.12.2000 came to be issued by the State

Government. Amongst other things, it is mentioned that petitioner was promoted as +2 Lecturer in Zoology vide Government Order No. 407Edu.

of 2000 dated 10.5.2000 w.e.f. 10.12.1992 on the basis of his placement in the seniority list of Post Graduate Masters/Teachers (Zoology) issued

vide Government Order No. 634Edu. of 1996 dated 20.4.1996. This assignment of seniority to the petitioner in the seniority list was on the basis

of the fact that his having passed Post Graduation in Zoology discipline on 9.8.1984.

Since it was reported by the Director, School Education, vide his letter dated 21.11.2000 that the petitioner has actually passed his P.G. on

9.8.1994, as such Government came to the conclusion that petitioner was not eligible for promotion on 10.12.1992 nor he came within the zone of

consideration for promotion on that date. In this background Government Order No. 407Edu. of 2000 dated 10.5.2000 so far it relates to

petitioner, stood cancelled.

This could not have been done, according to learned Counsel for the petitioner, because it affects the civil rights of his client, who has been

condemned unheard to his disadvantage without affording him a reasonable opportunity of being heard, therefore, the writ petition deserves to be

allowed according to Shri Siddiqi. Least that could be done and in fact was required of the respondents was to have issued a showcause notice

and then proceeded further in the matter, this having not been done the impugned order AnnexureE dated 4.12.2000 is not sustainable in the eyes

of law, as per Shri Siddiqi.

Respondents were put to notice, which was accepted by Shri D.S. Chohan, Advocate. No objections have been filed by him, still he has

forcefully objected to the entertainment of the writ petition, according to him, petitioner is not entitled to any relief whatsoever in the writ petition, in

view of the admitted facts. He submitted that accepting what the petitioner says is correct, still no relief can be allowed to him solely on the ground

that he did his P.G. as per AnnexureA, result whereof was declared by the Jammu University on 9.8.1994. As such there was no question of

petitioner being eligible for being promoted w.e.f. 1992 as has been ordered by the Government order dated 10.5.2000 (supra).

Shri H.A. Siddiqi, learned Counsel appearing for the petitioner, by referring to a decision of this Court in Abdul Samad Bhat v. State of J&K

and others, 1986 KLJ 271, urged that since the impugned order AnnexureE affects the rights of the petitioner resulting in civil consequences, as

such unless an opportunity of hearing was afforded to his client, the said order cannot be sustained.

In this case petitioner was aggrieved by the decision of the Director, Health Services, who had accepted the representation and directed his

(petitioner's revision). In these circumstances the impugned order was set aside by the High Court, in the above referred case.

Supreme Court of India in its recent decision in the case of Managing Director, ECIL Hyderabad etc. etc. v. B. Karunakar etc. etc., 1994(1)

SCT 319 (SC) : AIR 1994 Supreme Court 1074 , while considering the effect of nonsupply of copy of the enquiry report to delinquent observed

that reinstatement with backwages should not be mechanically ordered. What is relevant for the purpose of present case is extracted hereinbelow :

When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the

non furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment

awarded to him. Hence to direct reinstatement of the employee with backwages in all cases is to reduce the rules of justice to mechanical ritual.

The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to

vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice

has been caused to the employee or not on account of the denial to him of the report has to be considered on the facts and circumstances of each

case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to

permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to

stretching the concept of justice to illogical and exasperating limits. It amounts to an ""unnatural expansion of natural justice"", which in itself is

antithetical to justice.

Hence, in all cases where the inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and

Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the

Court/Tribunal, and give an employee an opportunity to show how his or her case was prejudiced because of nonsupply of the report. If after

hearing the parties, the Court/Tribunal comes to the conclusion that the nonsupply of the report would have made no difference to the ultimate

findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically

set aside the order of punishment on the ground that the report was not furnished. The Courts, should avoid resorting to shortcuts. Since it is the

Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of

punishment (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of

the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the

case that it should set aside the order of punishment. Where after following the above procedure, the Court/Tribunal sets aside the order of

punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed

with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question

whether the employee would be entitled to the backwages and other benefits from the date of his dismissal to the date of his reinstatement if

ultimately ordered should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and

depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to

decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the

benefits, be will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report should be treated as

a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held.

That will also be the correct position in law.

In addition to this purpose of affording a bearing to a person like the petitioner, is to uphold the rule of law. It cannot be put in a straitjacket

formula as to who and in what manner hearing is to be afforded. In Gadde Venkateswara Rao v. Govt. of Andhra Pradesh, AIR 1966 Supreme

Court 828, it was observed as under :

The above case is clear authority for the proposition that it is not always necessary for the court to strike down an order merely because the order

has been passed against the petitioner in breach of natural justice. The court can under Article 32 or Article 226 refuse to exercise its discretion of

striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the

opposite party, in violation of principles of natural justice or is otherwise not in accordance with law.

In M.C. Mehta v. Union of India and others, 1999(1) SCT 561 (SC) : AIR 1999 Supreme Court 2583 , it was held as under :

It is true that in Ridge v. Baldwin, 1964 AC 40, it has been held that breach of principles of natural justice is in itself sufficient to grant relief

and that no further de facto prejudice need be shown. It is also true that the said principles have been followed by this Court in several cases but

we might point out that this court has not laid down any absolute rule. This is clear from the judgment of Chinnappa Reddy, J. in S.L. Kapoor v.

Jagmohan, 1980(4) SCC 379 : AIR 1981 SC 136. After stating (p. 395) (of SCC), (at p. 147 of AIR) that `principles of natural justice know of

no exclusion rule dependent on whether it would have made any difference if natural justice had been observed' and that `nonobservance of natural

justice is itself prejudice to a man and proof of prejudice to a man and proof of prejudice independently of proof of denial of natural justice is

unnecessary'. Chinnappa Reddy, J. also laid own an important qualification (p. 395) (of SCC) (at p. 147) (of AIR) as follows :

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 not issue futile writs.

It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the court need not

issue a writ merely because there is violation of principles of natural justice.

Another test which is relevant and material while examining the effect of nonfollowing of principles of natural justice is whether it advances the

cause of justice or not. In this behalf reference can usefully be made to the decision of the Supreme Court of India in Ashwani Kumar v. State of

Bihar, 1997(1) SCT 573 (SC) : AIR 1996 Supreme Court 2833 , which is to the following effect :

With the aid of principles of natural justice, the courts preserve rule of law keeping arbitrary action by the executive or the legislature within the

confines of law. Courts have to examine in each case the balance of fairness, whether the violation of the principle of audi alteram partem visits with

irremediable civil consequences and its incursion on administration, if action is invalidated. No set rule or standard of unversial application can

possibly be laid down applicable to all sets of cases. Courts exercise their power of judicial review with circumspection to weigh in balance the

fairness of action. Therefore, though the principles of natural justice are omnipervasive in given circumstances their nonapplication may also

advance cause of justice to prevent misuse or abuse of power or of the judicial process.

What follows from the above discussion as well as decisions of the Supreme Court of India referred to hereinabove is whether each and every

infraction of a rule is such wherein the impugned order is to be set aside, answer would be no. Reason being that while examining the nonfollowing

of such principles, court will not lose sight of the fact as to what prejudice has been caused to a litigant like petitioner. In the instant case as also on

the basis of facts set out in the writ petition and documents attached with it, particularly AnnexureA, petitioner admittedly obtained his M.Sc. in

Zoology from Jammu University on 9.4.1994. His case had to be considered for promotion as Lecturer in the subject after this date.

Though there was no necessity, postdecisional hearing was given to the petitioner in court at the time of hearing of this case, fact remains that

he was unable to persuade the Court as to how the petitioner was prejudiced, as claimed by him in the writ petition.

According to Shri Chohan this is a case of grant of promotion to the petitioner on assumption of wrong facts, the moment those were brought

to the notice of the State Government, Government Order AnnexureE dated 4.12.2000 came to be issued. Petitioner could in no case have said

that Government Order dated 10.5.2000 (supra) needs to be upheld even though it was issued by mistake.

In view of the admitted facts as also the decisions of the Supreme Court, reference to 1986 KLJ 271 (supra) on behalf of the petitioner is of

no help to him, as such no benefit can be given to him on the basis of this judgment.

As already observed, if the prayer made by the petitioner is allowed it will amount to putting premium on a mistake which when detected has

been rectified by the respondents.

Shri Chohan, learned Counsel for the respondents further submitted that Government Order dated 10.5.2000 (supra) does not harm in any

manner the petitioner in the face of admitted as well as pleaded facts. According to him, there was no need for issuance of show cause notice

before passing of AnnexureE, otherwise it would result in restricting the order which would be contrary to law and perpetuating the illegality for

ever, which according to him has been rectified by the Government in consonance with law.

No other point is urged.

As a result of the aforesaid discussion, there is no merit in this writ petition, which is accordingly dismissed.

CWP No. 102/2001.

No Orders in view of the orders passed in main writ petition.