Court No. - 36
Case :- WRIT - A No. - 939 of 2021
Petitioner :- Gurwinder Singh
Respondent :- State Of U.P.And 5 Others
Counsel for Petitioner :- Anil Kumar Yadav,Shri Ashok Khare, Sr. Advocate
Counsel for Respondent :- C.S.C.,Sher Bahadur Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Ashok Khare, learned Senior Advocate assisted by Shri Anil Kumar Yadav, learned counsel for the petitioners, Shri Saurabh Srivastava, learned Chief Standing Counsel and Shri Sher Bahadur Singh, learned counsel for the respondent no.5.
The present writ petition is preferred inter-alia with following relief:-
(i) a writ, order or direction in the nature of certiorari quashing the proceedings of Gram Panchayat dated 28.08.2020 (Annexure 7 to the writ petition) as also the communication of Block Development Officer-Amariya, District Pilibhit dated 28.08.2020 (Annexure 8 to the writ petition).
(ii) a writ, order or direction in the nature of certiorari quashing the G.O. dated 25.08.2020 (Annexure 4 to the writ petition) in so far as it directs termination of service of the petitioner.
(iii) a writ, order or direction of a suitable nature commanding the respondent not to interfere in the working of the petitioner as Additional Programme Officer under the respondent in District Pilibhit and to pay the petitioner his regular monthly emolument, regularly, every month.
The matter was taken up on 04.02.2021 and this Court has passed following order:-
"Written instruction supplied by learned Standing Counsel is taken on record.
A copy of the written instruction has been served upon the counsel appearing for the petitioner.
The challenge to the order of cancellation of engagement of the petitioner as Gram Rojgar Sewak is based on the assertion that he has not been provided opportunity of hearing at any point of time during the enquiry conducted by a committee under the Chairmanship of Chief Development Officer, Pilibhit.
The assertion in paragraph No.15 of the writ petition is placed before the Court to state that the allegations in the enquiry report and the order of cancellation are unfounded, in as much as, sanction was accorded for engagement of labours from other Gram Panchayat in a meeting of the Gram Panchayat Chatiya Niaz Ahmad on 08.05.2020. The minutes of the meeting dated 08.05.2020 has been appended as Annexure No.'11' to the writ petition.
Learned Standing Counsel prays for and is granted ten days time to seek instruction and file counter affidavit replying to the contentions of the petitioner that he allocated work to the job card holders of another Gram Panchayat on the sanction of the competent authority/officer.
Put up this matter as fresh on 18.02.2021."
In response thereof, detailed counter affidavit has been filed on behalf of respondent nos.1 to 4.
The petitioner was appointed as Gram Ruzgar Sewak in Gram Panchayat under the Development Block Amariya, District Pilibhit. With regard to certain allegations pertaining to Development Block Amariya and the labour supplied to 15 Gramya Panchayat of the said Development Block, a four members committee has been constituted, which has submitted its report on 18.08.2020 holding the work executed as contrary to the norms of MANREGA. By communication dated 25.08.2020, the Additional Chief Secretary of the Department has recommended for termination of petitioner alongwith others and asked the District Programme Co-ordinator/District Magistrate, Pilibhit to proceed in accordance with law. Thereafter the resolution has been taken by the Gram Panchayat to dispense with the services of the petitioner and as such, the petitioner is before this Court with aforesaid prayer.
The main plank of argument advanced by Shri Ashok Khare, learned Senior Advocate is that the disengagement of petitioner as Gram Rojgar Sewak is unsustainable as the same has been passed ex-parte, without affording any opportunity of hearing. On the basis of pleadings set up in paragraph 21 to 24 of the writ petition, he submits that while responding to the aforesaid paragraphs, no specific denial has been made in categorical terms and as such the entire action of the respondent is per-se bad, hit by principles of natural justice and liable to be set aside.
Per Contra, learned Chief Standing Counsel has reiterated the version of the counter affidavit and submits that the order impugned is passed strictly in accordance with law.
The Court has the occasion to peruse the record. In paragraph 15 of the writ petition, it is asserted that the allegations levelled against the petitioner are wholly unfounded and sanction stood accorded for engagement of labour from other Gram Panchayat, in a meeting of the Gram Panchayat Chathiya Niaz Ahmad dated 08.05.2020. The minutes of the meeting dated 08.05.2020 has also been brought on record as annexure 11 to the writ petition. The arguments advanced by Shri Khare, learned Senior Advocate has substances as while conducting the enquiry under the chairmanship of Chief Development Officer, Pilibhit, at no point of time the petitioner's view point has been incorporated and based on the said enquiry, the Additional Chief Secretary has recommended for termination of services of petitioner and others and finally the impugned resolution as well as consequential order have been passed. During the entire process neither any objection has been called for nor the petitioner was heard and as such, the same is unsustainable being hit by principles of natural justice.
Hon'ble the Supreme Court in the case of Union Of India Vs. Mohd. Ramzan Khan (1991) 1 SCC 588, at page 596 has quoted "Prof. Wade has pointed out:
"The concept of natural justice has existed for many centuries and it has crystallized into two rules: that no man should be judge in his own cause; and that no man should suffer without first being given a fair hearing....They (the courts) have been developing and extending the principles of natural justice so as to build up a kind of code of fair administrative procedure, to be obeyed by authorities of all kinds. They have done this once again, by assuming that Parliament always intends powers to be exercised fairly"
Justice Krishna Iyer in Mohinder Singh Gill Vs. The Chief Election Commissioner AIR 1978 SC 851 has traced the root of natural justice in Kautiyla's Arthasastra. He opined as under: "the rule of law has had the stamp of natural justice which makes it social justice.
Hon'ble the Supreme Court in A.K. Kraipak Vs. Union of India (1969) 2 SCC 262 held an unjust decision in an administrative enquiry may have more fair reaching effect that a decision in quasi judicial enquiry. The purpose of the rules of natural justice is to prevent miscarriage of justice. The Court has referred the classic case of State of Orissa Vs. Dr. Binapani Dei AIR 1967 SC 1269; Supreme Court in Binapani Case (Supra) observed that if "there is power, duty to act judicially is implicit in the exercise of such power".
In Swadeshi Cotton Mills Vs. Union of India AIR 1981 SC 818, Justice R.S. Sarkaria held as under:
"Rules of natural justice are not embodied rules. Being means to an end and not an end in themselves, it is not possible to make an exhaustive catalogue of such rules. But there are two fundamental maxims of natural justice vis. (i) audi alteram partem, and (ii) nemo judex in re sua. The audi alterm partem rule has many facets, two of them being (a) notice of the case to be met; and (b) opportunity to explain. This rule cannot be sacrificed at the alter of administrative convenience or celerity. The general principles as distinguished from an absolute rule of uniform application seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre- decisional stage. Conversely if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full view or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing, shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative process or frustrate the need for utmost promptitude. In short, this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."
Recently Hon'ble the Supreme Court in the case of Automotive Tyre Manufacturers Association Vs. Designated Authority (2011) 2 SCC 258 held about the natural justice in following terms:
"It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi judicial. It is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application."
The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi- judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, I am of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi- judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.
In view of the above, the order impugned dated 28.08.2020, based on report dated 18.08.2020, being in violation of principles of nature justice cannot sustain in the eyes of law. The same is accordingly set aside. The Communication dated 25.08.2020 so far as it relates to the petitioner is also set aside. The matter is relegated to the respondent/competent authority to pass appropriate order afresh, expeditiously, but certainly after providing ample opportunity of hearing to the petitioner.
With these observations, the Writ Petition is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 30.7.2021
A. Pandey