Tilayee vs State of U.P. and Others

Rajiv Sharma, J.—Heard Mr. K.N. Misra, learned Counsel for the petitioner, Mr. Rakesh Srivastava, learned Standing Counsel and Mr. R.P. Misra, learned Counsel for the opposite party No. 4 and perused the record produced by the learned Standing Counsel.

The grievance of the petitioner is that he has not been afforded opportunity of hearing by the Appellate Authority, i.e. opposite party No. 2. He further submits that initially the case was fixed for 27th March, 2008, but the case was decided ex parte on 28th February, 2008.

While perusing the record, it has come to the light the opposite party No. 4 has preferred an appeal before the opposite party No. 2 on 18th December, 2007 and notices were issued and an appearance has been put in on 6th February, 2008 and thereafter the case was fixed for 27th March, 2008, but on the application moved by the opposite party No. 4 for preponing the hearing of the appeal, without serving a copy of the same on the petitioner, the Appellate Authority preponed the date and the appeal was decided on 28th February, 2008 and as such, the petitioner was not afforded an opportunity of hearing.

The Hon''ble Supreme Court in umpteen cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav Vs. J.M.A. Industries Ltd., the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon''ble Apex Court concluded as under:

The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive.

In National Buildings Construction Corporation Vs. S. Raghunathan and Others, it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.

At this juncture it would be relevant to produce relevant portion of paragraph 34 of the judgment rendered in State Bank of Patiala and others Vs. S.K. Sharma, Though this decision was given in a service matter but the Hon''ble Apex Court has dealt with the principles of natural justice and the result if it is not followed:

(1) Where the enquiry is not governed by any rules/regulations/ statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e. between "no notice"/"no hearing" and "no fair hearing". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e. in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice, in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/ employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)

(2) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

In view of above, the writ petition is allowed and the order dated 28.2.2008 passed by the Appellate Authority is set aside. The Commissioner, Devi Patan Mandan, Gonda is directed to decide the case afresh after hearing the petitioner and other aggrieved parties expeditiously, say, within a maximum period of three moths from the date a certified copy of this order is produced before him.