1 THE HIGH COURT OF MADHYA PRADESH WP 8963 of 2019 (S) Sunil Kumar Sharma and Anr. Vs. The State of MP & Ors. Gwalior, Dated :01/05/2019 Shri RP Singh, counsel for the petitioners. Shri RK Soni, Government Advocate for the respondents/ State.
This petition under [SECTION] of the [ACT] has been filed seeking the following reliefs:-
7.1. That, impugned order Annexure P-2 dated 02.02.2019 as well as Annexure P-4 dated 12.04.2019 passed by respondent no.5- & 3 may kindly be set- aside.
7.2. That, respondent further may kindly be directed to permit the petitioner to reside in the his allotted government accommodation.
7.3. That, any other relief doing justice into the matter including cost of petition Advocate fee etc. may kindly be awarded to the petitioner. It is submitted by the counsel for the petitioners that the petitioner No.1 is working as Assistant Teacher, whereas the petitioner No.2 is working as Head-pump Technician. By order dated 01/04/2018 (Annexure P1), the petitioner was allotted House No.NG-2, whereas by order dated 08-01-2008 (Anexure P1), the petitioner was allotted House No.NG-09. By order dated 02-
02-2019 (Annexure P2). The allotment made in favour of the petitioners was cancelled on the ground that they were not eligible to hold the houses which were allotted to them and secondly, they had not deposited the rent as well as water tax. Accordingly, they were directed to deposit the rent and water tax within a period of 15 days as well as to vacate Government accommodation, failing which an action under [ACT] shall be taken.
It is submitted by the counsel for the petitioners that the order dated 02/02/2019 (Annexure P2) has been passed in the light of the circular dated 11/09/2014 which, in fact, is meant for Bhopal City. Further, it is submitted that a notice under [SECTION] of [ACT] has been issued directing the petitioners to vacate the premises by 29th April 2019, otherwise they shall be evicted by use of force. It is submitted by the counsel for the petitioners that the petitioners were entitled for a show cause notice, which has not been made. It is further submitted that a Coordinate Bench of this Court by order dated 04/02/2015 passed in [CASE NUMBER] has stayed the eviction and the case of the petitioners is also covered by interim order dated 04/02/2015.
So far as interim order passed in another case is concerned, a specific question was put to the counsel for the petitioners that as to whether the said order can be said to be precedent or not, then he fairly conceded that the interim order passed in another case cannot be applied as precedent. It is submitted by the counsel for the petitioners that the allotment of the petitioners has been cancelled on the basis of circular dated 11/09/2014, which is meant for Bhopal City, whereas the said circular has no application for Datia City. Accordingly, the counsel for the petitioners was asked to point out the circular which is applicable to Datia City, however, the counsel for the petitioners fails to point out any circular and even no such circular has been filed along with the writ petition and in the considered opinion of this Court that the petitioners in this petition under [SECTION] of the [ACT] have to establish their right. The petitioners have failed to point out as to which circular is applicable to Datia City and he has failed to point out as to how the petitioners are eligible to hold the houses which were allotted to them by orders dated 0/04/2008 and 08/01/2008.
It is next contended by the counsel for the petitioners that a show cause notice has been issued by Estate Officer (SDO),Datia on 12/04/2019 (Annexure P/4) thereby directing the petitioners to vacate the premises, otherwise the same would be got vacated by use of force. It is further submitted by the counsel for the petitioners that the said notice cannot be said to be a notice as provided under [SECTION] of [ACT] but it is, in fact a final order, therefore, it is bad. It is further submitted that no opportunity of hearing was given to the petitioners to show their entitlement to hold the houses which were allotted to them.
Heard the learned counsel for the petitioners. The principle of natural justice has undergone a change and mere violation of principle of natural justice may not be sufficient to quash the proceedings until and unless the petitioners succeed in pointing out that they were seriously prejudiced by non-affording of the opportunity. This Court repeatedly asked the learned counsel for the petitioners to show as to how the petitioners are entitled to hold the Government accommodation, which were allotted to them, however, the counsel for the petitioners could not answer the query raised by the Court.
It is well established principle of law that violation of Natural Justice, by itself would not be sufficient to quash an order, unless and until, the person is prejudiced by denial of opportunity.
The Supreme Court in the case of [PRECEDENT] has held as under :
"40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violation of principles of natural justice, the courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that the order passed is always null and void. The validity of the order has to be decided on the touchstone of "prejudice". The ultimate test is always the same viz. the test of prejudice or the test of fair hearing.
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45. Keeping in view the aforesaid principles in mind, even when we find that there is an infraction of principles of natural justice, we have to address a further question as to whether any purpose would be served in remitting the case to the authority to make fresh demand of amount recoverable, only after issuing notice to show cause to the appellant. In the facts of the present case, we find that such an exercise would be totally futile having regard to the law laid down by this Court in R.C. Tobacco."
The Supreme Court in the case of [PRECEDENT] has held as under :
"26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be effected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise.
28. A court of law does not insist on compliance with useless formality. It will not issue any such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Furthermore in this case, the selection of the appellant was illegal. He was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard.
29. In [PRECEDENT] the law is stated in the following terms: (SCC p. 540, para 25) "25. The 'useless formality' theory, it must be noted, is an exception. Apart from the class of cases of 'admitted or indisputable facts leading only to one conclusion' referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in [ENTITY] referred to above. This Court surveyed the views expressed in various judgments in England by Lord [ENTITY], Lord [ENTITY], Lord [ENTITY], Lord [ENTITY], [ENTITY], J. and [ENTITY], L.J. etc. in various cases and also views expressed by leading writers like Profs. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
30. In [PRECEDENT] this Court held:
(SCC p. 420, para 24) "The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. What is needed for the employer in a case of this nature is to apply the objective criteria for arriving at the subjective satisfaction. If the criteria required for arriving at an objective satisfaction stands fulfilled, the principles of natural justice may not have to be complied with, in view of the fact that the same stood complied with before imposing punishments upon the respondents on each occasion and, thus, the respondents, therefore, could not have improved their stand even if a further opportunity was given."
31. In [PRECEDENT] this Court opined: (SCC pp. 653-54, para 17) "The principles of natural justice were also not required to be complied with as the same would have been an empty formality. The court will not insist on compliance with the principles of natural justice in view of the binding nature of the award. Their application would be limited to a situation where the factual position or legal implication arising thereunder is disputed and not where it is not in dispute or cannot be disputed. If only one conclusion is possible, a writ would not issue only because there was a violation of the principles of natural justice."
32. In [PRECEDENT] this Court observed: (SCC p. 791, para 30) "30. The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change."
It was further observed: (SCC pp. 793-94, para 39) "39. Decision of this Court in [PRECEDENT] whereupon Mr [ENTITY] placed strong reliance to contend that non-observance of the principles of natural justice itself causes prejudice or the same should not be read 'as it causes difficulty of prejudice', cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, have undergone a sea change. In view of the decisions of this Court in [PRECEDENT] [PRECEDENT] the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straitjacket formula. (See [PRECEDENT] and [PRECEDENT]. See also [PRECEDENT]"
The principles of equity in a case of this nature, in our opinion, will have no role to play. Sympathy, as is well known, should not be misplaced.
33. In [PRECEDENT] a Division Bench of this Court, wherein one of us was a member, noticing some decisions, observed: (SCC pp. 654-55, paras 44-45) "44. While construing a statute, 'sympathy' has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the [ACT] Bench of this Court only by way of sympathy to the workmen concerned.
45. In [PRECEDENT] this Court rejected a similar contention upon noticing the following judgments: (SCC pp. 131-32, paras 68-70) '68. In a case of this nature this Court should not even exercise its jurisdiction under [SECTION] of the [ACT] on misplaced sympathy.
69. In [PRECEDENT] it is stated: (SCC p. 144, paras 36-37) "36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in [SECTION] of the [ACT], this Court ordinarily would not pass an order which would be in contravention of a statutory provision.
37. As early as in 1911, [ENTITY], L.J. in [PRECEDENT] observed: (All ER p. 123 E) 'We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles.' "
70. Yet again, recently in [PRECEDENT] this Court rejected a similar plea for regularisation of services stating: (SCC pp. 377-78, para 7) "We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment." ' "
34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity.
35. We have noticed hereinbefore that in making appointment of the appellant, the provisions of [SECTION] and [SECTION] of the [ACT] and statutory rules were not complied with. The appointment, therefore, was illegal and in that view of the matter, it would be wholly improper for us to invoke our equity jurisdiction."
Accordingly, this Court is of the considered opinion that as the petitioners have failed to satisfy this Court that by not affording an opportunity of hearing their interest has been seriously prejudiced, therefore, the action of the respondents cannot be quashed on the ground that no notice under [SECTION] of the [ACT] was issued for the simple reason that the said notice has been issued in the light of the fact that allotment of houses in favour of the petitioners has already been cancelled. No case is made out warranting interference.
This petition fails and is hereby dismissed.
([ENTITY]) Judge [ENTITY] 2019.05.02 [SECTION]:15:24 +05'30'