HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.No.21978 of 2008 Date : 27-7-2011 Between : K.Suraj Singh .. Petitioner And The Collector and District Magistrate, Kadapa, Kadapa District and others .. Respondents Counsel for petitioner : Dr.A.Raghu Kumar Counsel for respondent Nos.1 & 2: Government Pleader for Social Welfare Counsel for respondent No.3 : Sri B.Devanand, Standing Counsel The Court made the following: ORDER: This Writ Petition is filed for a mandamus to set-aside proceedings R.Dis.C5/257/M/1999, dated 25-12-2007 of respondent No.1 and G.O.Ms.No.187, Social Welfare (CV.1) Department, dated 26-9-2008 issued by respondent No.2. In the view this court proposes to take, it is not necessary to refer to the facts in detail. It will suffice to note that the petitioner obtained a community certificate showing him as belonging to S.C. (Mala) and secured employment in the Bharat Sanchar Nigam Limited (BSNL). An enquiry was initiated against the petitioner under the provisions of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (for short "the Act") and the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community, Nativity and Date of Birth Certificates Rules, 1997 (for short “the Rules”), made thereunder. The case was referred to the District Level Scrutiny Committee (for short “the Committee”) under Rule 8 of the Rules. After holding the enquiry, the Committee has submitted its report, on the basis of which respondent No.1 has issued proceedings in R.Dis.C5/257/M/1999 dated 25-12-2007, holding that the petitioner is not entitled to use the caste of his mother and has accordingly cancelled the community certificate held by him. The appeal filed by the petitioner before respondent No.2 having been rejected vide G.O.Ms.No.187, dated 26-9- 2008, he filed the present Writ Petition questioning these two orders. At the hearing Dr.A.Raghu Kumar, learned counsel for the petitioner, submitted that the order of respondent No.1, as confirmed in appeal by respondent No.2, suffers from patent violation of principles of natural justice and also the procedure prescribed by Section 5 of the Act. He has submitted that neither a copy of the Committee’s report was furnished to the petitioner nor he was given any notice by respondent No.1 to explain his case before the impugned order was passed. The learned Government Pleader for Social Welfare who produced the relevant record, while fairly conceding that no notice was given to the petitioner by respondent No.1 before passing the impugned order, however submitted that in the face of the clear admissions made by the petitioner in his statement recorded by the Committee, there was no necessity of issuing a notice by respondent No.1. The learned Government Pleader further submitted that it would be a useless formality if a notice is given to the petitioner before passing the impugned order. Section 5 of the Act empowers the District Collector to cancel the false community certificate obtained by any person not belonging to any of the Scheduled Castes, Scheduled Tribes and Backward Classes, either by exercising suo motu power or on a written complaint made by any person. This provision, however, expressly postulates giving an opportunity of making a representation, to the person concerned. Rule 8 of the Rules framed under the Act provided for constitution of a Scrutiny Committee at the District level for every District and lays down the procedure for the Committee to hold an enquiry and submit a report to the District Collector. While it is not in dispute that the Committee has given the petitioner an opportunity of participating in the enquiry, on receipt of the report, respondent No.1-District Collector has not given him any notice. In my opinion, the respondents cannot whittle-down the statutory mandate, which requires an opportunity of making a representation to be afforded to the person concerned, against whom the action for cancellation of the community certificate is contemplated. Even under Rule 9(7) of the Rules, on receipt of the Committee’s report the District Collector shall decide whether the certificate holder is genuine or fraudulent. The phrase “decide” connotes a decision making process by the District Collector and not the unilateral conclusion on the basis of the Committee’s report. The decision making process necessarily includes a notice to the person who is likely to be affected and an opportunity of being heard. It would be in the realm of hypothesis as to what sort of defence would have been putforth by the petitioner, had a notice been given by respondent No.1 to him, in the face of the mandatory procedure prescribed by the statute. Dehors the statutory mandate, the requirement of hearing, as an integral part of principle of natural justice, is laid down in a plethora of judgments by the English and Indian Courts. The recent judgment of the Supreme Court in Radhy Shyam Vs. State of Uttar Pradesh[1] has elucidated the case law on this aspect. This Court can do no better than reproducing the relevant portion (paras 40 to 48) of the judgment: “40. Before adverting to the precedents in which Section 5A has been interpreted by this Court, it will be useful to notice development of the law relating to the rule of hearing. In the celebrated case of Cooper v. Wandsworth Board of Works - (1863) 14 CB (NS) 180: 143 ER 414 - the principle was stated thus: (ER p.420) “... even God himself did not pass (a) sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God), "where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?” Therein the District Board had brought down the house of the Plaintiff's (Cooper), because he had failed to comply with the Metropolis Local Management Act. The Act required the plaintiff to notify the Board seven days before starting to build the house. Cooper argued that even though the Board had the legal authority to tear his house down, no person should be deprived of their property without notice. In spite of no express words in the statute the Court recognized the right of hearing before the plaintiff's house built without permission was demolished in the exercise of statutory powers. Byles, J stated: “ ... although there are not positive words in a statute requiring that the party shall be heard, yet the justice of the common law (shall) supply the omission of the legislature”. 41. Perhaps the best known statement on the right to be heard has come from Lord Loreburn, L.C. in Board of Education v. Rice - 1911 AC 179 (HL), where he observed: (AC p.182) “Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of various kinds. ... In such cases ... they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. ... They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial in their view”. 42. In Ridge v. Baldwin - 1964 AC 40 - Lord Reid emphasized on the universality of the right to a fair hearing whether it concerns the property or tenure of an office or membership of an institution. In O'Reilly v. Mackman - 1983 2 AC 237 - Lord Diplock said that the right of a man to be given a fair opportunity of hearing, what is alleged against him and of presenting his own case is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that failure to observe the same should render null and void any decision reached in breach of this requirement. 43. In Lloyd v. Mcmahon - 1987 AC 625 - Lord Bridge said: (AC pp.702 H-703 B) “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. 44. In the United States, principles of natural justice usually find support from the due process clause of the Constitution. The extent of due process protection required is determined by a number of factors; first the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural requirement would entail. 45. The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three-Judge bench in Sayeedur Rehman v. State of Bihar - (1973) 3 SCC 333 - in the following words: (SCC p.338, para 11) “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 Singh Gill v. Chief Election Commissioner - (1978) 1 SCC 405 - Krishna Iyer J. speaking for himself, Beg, C.J. and Bhagwati,J. highlighted the importance of rule of hearing in the following words: (SCC pp 432-34, paras 43 & 48) “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, recognized from earliest times and not a mystic testament of Judge-made law. Indeed, from the legendary days of Adam - and of Kautilya's Arthasastra - the 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. .... 48. Once we understand the soul of the rule as fair play in action - and it is so - we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible, pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop, nor a bee in one's bonnet. Its essence is good conscience in a given situation: nothing more - but nothing less. The ‘exceptions’ to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law, without, of course, making law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation”. 47. In Maneka Gandhi v. Union of India - (1978) 1 SCC 248 – Bhagwati, J. speaking for himself and Untwalia and Fazal Ali JJ. observed: (SCC p.291, para 14) “14. ...The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law ‘lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation’. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralyzing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalized hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. 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. (Emphasis supplied) 48. In Swadeshi Cotton Mills v. Union of India - (1981) 1 SCC 664 - the majority of the three-Judge Bench held that rule of audi alteram partem must be complied with even when the Government exercises power under Section 18-AA of the Industries (Development and Regulation) Act, 1951 which empowers the Central Government to authorize taking over of the management of industrial undertaking. Sarkaria,J. speaking for himself and Desai,J. referred to the development of law relating to applicability of the rule of audi alteram partem to administrative actions, noticed the judgments in Ridge v. Baldwin (supra), A.K. Kraipak v. Union of India - (1969) 2 SCC 262 - Mohinder Singh Gill v. Union of India (supra), Maneka Gandhi v. Union of India (supra) and State of Orissa v. Dr. Bina Pani Dei – (1967) 2 SCR 625=AIR 1967 SC 1269 - and quashed the order passed by the Central Government for taking over the management of the industrial undertaking of the appellant on the ground that opportunity of hearing has not been given to the owner of the undertaking and remanded the matter for fresh consideration and compliance with the rule of audi alteram partem”. On the undisputed facts of the case, the conclusion is inescapable that respondent No.1 failed to follow the procedure envisaged under Section 5 of the Act and Rule 9(7) of the Rules. On this short ground, the impugned orders of respondent Nos.1 and 2 are quashed. Respondent No.1 is directed to issue a notice to the petitioner and after considering the explanation if any submitted by the latter, he shall pass a speaking order within a period of one month from the date of receipt of this order. The Writ Petition is allowed to the extent indicated above. As a sequel, interim order dated 30-9-2008 is vacated and WPMP No.28626/2008 and WVMP Nos.3183/2009 & 2713/2011 are disposed of as infructuous. ________________________ Justice C.V. Nagarjuna Reddy Date : 27-7-2011 Note: LR copies to be marked. (BO) AM [1]) (2011) 5 SCC 553