WP.3152/2015 1 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR JUSTICE SUJOY PAUL. [PRECEDENT] & Ors. Shri [ENTITY], Advocate for the petitioner. Shri [ENTITY], Govt. Advocate for the respondents / State. ORDER
( 19 / 08 / 2015 ) This petition filed under [SECTION] of the [ACT] is directed against the order dated 09.05.2015 (Annexure P/4) whereby the contract and work order issued in favour of the petitioner dated 17.10.2014 (Annexure P/3) is cancelled.
2. Shri [ENTITY], learned counsel for the petitioner, contends that the petitioner submitted his bid pursuant to advertisement dated 01.08.2014 (Annexure P/1) for providing certain facilities. He was later on called to execute the agreement on 13.10.2014. Thereafter work order was issued on 17.10.2014. The petitioner performed the work diligently but impugned order came as bolt from blue whereby order dated 17.10.2014 is cancelled. It is challenged on the ground that before passing such adverse order, no opportunity of hearing was given. Sufficient reasons are not given. It is not disclosed as to which condition of the contract has been violated by the petitioner. Shri [ENTITY] further contended that petitioner earned his livelihood from the said work and therefore, in the manner they have taken away the work, it hits [SECTION] and [SECTION] of the [ACT].
3. Prayer is opposed by Shri [ENTITY]. He relied on various paragraphs of the return. It is submitted that despite verbal warnings, petitioner has not rectified the mistake and has not installed the required equipments. In page number 3 and 4 of the return it is submitted that as per NIT and list (Annexure R/1 and R/2) the petitioner was required to act in a particular manner but has not done the same. In para 5.3, it is submitted that petitioner is negligent and dishonest and has not fulfilled the requirement of contract. It is stated that "from the bare perusal of Annexure R/1 to Annexure R/3 it is clearly evident that petitioner is required to install the machinery and equipments as per Schedule-G but he has installed one computer which is also not fulfilling the configuration as required ".
4. No other point is pressed by learned counsel for the parties.
5. I have heard learned counsel for the parties and perused the record.
6. Annexure "F" is schedule of hiring computers. It does not reflect that petitioner has committed any error in any manner. Document dated 13.10.2014 filed with return only shows that petitioner was required to remain present with relevant documents. This order is passed even before passing of the work order dated 17.10.2014. Thus, this document is of no relevance. Next document is 17.10.2014, filed with the return, which is already filed by the petitioner as Annexure P/3. None of these documents support the averments of para 5.3 of the return. There is no material on record to show that petitioner was ever warned by the respondents. No shortcomings of any nature is ever communicated to him, no show cause notice was given to him. He was not afforded with any opportunity as per principle of natural justice.
7. I wonder as to how serious allegations of negligence and dishonesty are made in para 5.3 of the return. There is absolutely no material to support the same. This is unfortunate that State has filed such return making serious allegations against the petitioner without any foundation. I totally disapprove and deprecate this practice wherein such returns are filed without their being any foundation / material. Needless to mention that the respondents must file their return with clean hands, with clean mind, clean heart and clean objective. In the present case, the return is filed in irresponsible manner which cannot be appreciated. Impugned order of cancellation could not have been passed without following the principle of natural justice.
8. The Apex Court in [PRECEDENT] has held that any order which entails civil consequences should be passed only after following the principles of natural justice. The following quotes will establish the importance of following the principles of natural justice:-
"Principles of natural justice are to some minds burdensome but this price - a small price indeed-has to be paid if we desire a society governed by the rule of law."
" even God himself did not pass [a] sentence upon [ENTITY] before he was called upon to make his defence. [ENTITY] (says God), where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat? "
In [PRECEDENT], it was held as under:-
"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."
The Apex Court in [PRECEDENT], held as under:-
"45. The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three- Judges Bench in Sayeedur Rehman v. State of Bihar 1973) 3 SCC 333) in the following words:
"11 This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties."
46. In Mohinder [ENTITY] Gill v. Chief Election Commr. 1978) 1 SCC 405), [ENTITY], J. speaking for himself, [ENTITY], C.J. And [ENTITY], J. highlighted the importance of the rule of hearing in the following words:
"43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes it, applies when people are affected by acts of authority. It is the hone of healthy Government, recognised from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of [ENTITY] of [ENTITY] rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the roots of natural justice and its foliage are noble and not new-fangled. Today its application must be sustained by current legislation, case law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.
47. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."
9. Apart from this, the impugned order reads as under :-
mijksDr fo"k;kafdr lanfHkZr vuqca/k ,oa dk;Z vkns'k ds dze esa ys[k gS fd vkids }kjk vuqca/k dh 'krksZ vuq:i dk;Z ugha djus ds dkj.k vkidk vuqca/k rRdky izHkko ls fujLr fd;k tkrk gSA A plain reading of aforesaid shows that respondents have not taken pains to show as to which condition of contract has been violated by the petitioner. This order does not contain any valid reason whatsoever. The Apex Court in [PRECEDENT], emphasized the need of assigning reason and has held as under:-
"(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts.
This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber- stamp reasons" is not to be equated with a valid decision- making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny.
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "due process".
10. As analyzed above, the impugned order runs contrary to the principle of natural justice. The "due process" is not followed because reasons are not assigned. Resultantly, the order dated 09.05.2014 is set aside. Petition is allowed with all consequential benefits. In the manner return is filed, I deem it proper to impose cost on the respondents. Respondents shall pay Rs. 10,000/- ( Rs. Ten Thousand only) as cost to the petitioner within 30 days. It will be open for the State to recover the cost from the erring official.
([ENTITY]) sarathe Judge