Heard Sri Nripendra Mishra, learned counsel for the petitioner. Notice has been accepted on behalf of the respondent no. 1 and 2 by the office of the Chief Standing Counsel. Respondent no. 3 and 4 are represented by Sri Ghaus Beg.
The petitioner is an institute recognized under The Right of Children to Free and Compulsory Education Act, 2009 and has filed the instant writ petition assailing the order dated 04.09.2019 by which the recognition of the petitioner-institution has been revoked. It is the specific and categoric case of the petitioner that before cancelling the recognition no show cause notice was issued to the petitioner and as such the impugned order has been passed without complying with the provisions contained in Rule 16 of The Right of Children to Free and Compulsory Education Rules, 2016.
This Court considering the submissions of learned counsel for the petitioner had called upon the counsel appearing for the opposite party no. 2 and 3 and summoned the records to ascertain the facts as to whether any show cause notice was issued to the petitioner and if so how was it served.
Today, Sri Ghaus Beg, learned counsel for the respondent no. 3 and 4 has produced the record before the Court and on the perusal of the same it indicates that though the show cause notice is available but there is no mode by which it was served on the petitioner-institution has been mentioned, rather it has been stated that the said show cause notice was sent to the petitioner-institution by special messenger and it has further been stated that the same could not be served as the authorized person of the petitioner-institute refused to accept the same. It has been stated that the Block Education Officer had attempted to serve the show cause notice to the petitioner but the petitioner-institution did not receive the same and, therefore, the same could not be served.
From the contention raised on behalf of the learned counsel for the petitioner as well as in light of the submission made by Sri Ghaus Beg, the fact remains that the service of the show cause notice dated 09.07.2019 which is the foundation for the institution of the proceedings as envisaged under Rule 16 of The Right of Children to Free and Compulsory Education Rules, 2016 is wanting.
The authorities have had a right to institute the necessary proceedings which is preceded by a show cause notice as provided under the aforesaid Rules, 2016. Since the cancellation of the recognition is a serious matter, therefore, it is expedient and required that the same must be served on the institution so effected. In order to ensure that the show cause notice is so affected at least the minimum requirement was that the same should have been addressed to the Institute so concerned at its proper address and send by speed post and by some other recognized mode and not only through the special messenger through Block Education Officer.
In the present case, it is found that there is no material on record nor any indication that the said show cause notice dated 09.07.2019 was sent to the petitioner-institution by means of speed post or any other recognized mode except through physical mode to the Block Education Officer.
Since the petitioner has vehemently denied and states that there has been no service of the show cause notice and the learned counsel for the opposite party no. 3 and 4 could not satisfy the Court regarding service of the show cause notice. accordingly, this Court finds that the order which has been passed dated 04.09.2019 suffers from the vice of being in violation of principle of natural justice, inasmuch as, no opportunity of hearing was afforded to the petitioner to meet the allegations in the show cause notice. Since the cancellation of the recognition has civil consequences, therefore, it is necessary that the petitioner ought to have been put to proper notice and have been afforded an adequate opportunity of hearing before passing the order.
In this regard it will be apposite to note that the opposite party no. 3 is definitely an Authority covered within the meaning of Article 12 of the Constitution of India. Thus all its decisions are required to comply with the doctrine of equality and fair play, as envisaged in Article 14 of the Constitution of India. If any order, decisions or administrative act of such Authority results in civil consequence, then such decision or action can definitely be tested on the touchstone of principles of natural justice and can be judicially reviewed.
The Apex Court in the case of Canara Bank Vs. Debasis Das reported in 2003 (4) SCC 557 has held in para 19 as under:-
"19... Even an administrative order which involves civil consequences must be consistent with the rules of natural justice."
This Court has elaborated the expression "civil consequence" by observing that (Debasis Das case, SCC pg.572, para 19) "encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages".
This Court has further stated, that, "in its wide umbrella comes everything that affects a citizen in his civil life."
and in Para 15 held as under:-
"15. The adherence to principles of natural justice as recognized by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative order, which involves civil consequence must be consistent with the rules of natural justice."
The Supreme Court in the case of Prakash Ratan Sinha Vs. State of Bihar and others reported in 2009 (14) SCC 690 in paras 13 and 14 as under:-
"13. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that, if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and that the rule of natural justice operates in areas not covered by any law validly made.
14. Corollary principles emanating from these cases are as to what particular rule of natural justice should apply to a given case must depend to an extent on the facts and circumstances of that case and that it is only where there is nothing in the statute to actually prohibit, the giving of an opportunity of being heard and on the other hand, the nature of the statutory duty imposed on the decision maker itself implies an obligation to hear before deciding. These cases have also observed, whenever an action of public body results in civil consequences for the person against whom the action is directed, the duty to act fairly can be presumed and in such a case, the administrative authority must give a proper opportunity of hearing to the affected person."
The Supreme Court in Nisha Devi Vs. State of Himachal Pradesh and others reported in 2014 (16) SCC 392 in para 5 held as under:-
"5. Trite though it is, we may yet again reiterate that the principle of audi alteram partem admits of no exception, and demands to be adhered to in all circumstances. In other words, before arriving at any decision which has serious implications and consequences to any person, such person must be heard in his defence. We find that the High Court did not notice the violation and infraction of this salutary principle of law. Accordingly, on this short ground, the impugned Judgments and Orders require to be set aside, and are so done. The matter is remanded back to the Divisional Commissioner for taking a fresh decision after giving due notice to the Appellant and affording her an opportunity of being heard. The Divisional Magistrate, Kullu, shall complete the proceedings expeditiously, and not later than six months from the date on which a copy of this Order is served on him."
At this stage, it has been submitted that instead of staying the order and keeping the matter pending, the parties have consented that ends of justice would be met if the impugned order is set aside and the petitioner is granted an opportunity of hearing.
Considering the aforesaid, this Court is of the opinion that the impugned order dated 04.09.2019 cannot be sustained and is accordingly quashed and set aside. However, liberty is granted to respondent nos. 2 and 3 to issue a fresh show cause notice to the petitioner-institution and hold and inquiry in accordance with Rule 16 of the aforesaid Rules of 2016 after affording an opportunity of hearing to the petitioner and then may pass a fresh order.
With the aforesaid, the writ petition stands allowed. However, it is made clear that the Court has not examined the merits and it has bee decided only on the first question that no opportunity of hearing has been provided to the petitioner. The opposite party nos. 2 and 3 are directed that they shall conclude the inquiry expeditiously say within a period of four weeks from the date of the service of the show cause notice on the petitioner.
With the aforesaid the writ petition stands allowed, however, costs are made easy.
Order Date :- 26.9.2019 Asheesh