IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 750/2009 Decided on: 9.10.2009 Himachal Futuristic Communications Limited and another. …petitioners. Versus State of Himachal Pradesh and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Petitioners : Mr. Rahul Mahajan, Advocate. For the Respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. Rajiv Sharma, J (oral). The petitioner-company was allotted land in the year 1993-94. The area measuring 15417 square meters was cancelled and resumed by the Department and rest of the area measuring 8161 square meters was re- allotted on 10.2.1998. The final show cause notice was issued to the petitioner on 17.12.2008. A detailed reply was filed to the same vide Annexure P-14 dated 23.12.2008. The General Manager vide office order dated 21.2.2009 has cancelled the allotment of the plot. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 In sequel to office order dated 21.2.2009, the petitioner-company was de-registered on 13.3.2009. Mr. Rahul Mahajan, Advocate has vehemently argued that the office order dated 21.2.2009 has been issued in violation of the principles of natural justice. Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the office order dated 21.2.2009. I have heard the learned counsel for the parties and have perused the pleadings carefully. The land was allotted to the petitioner for setting up an industrial unit. The final show cause notice, as noticed above, was issued on 17.12.2008. The petitioner-company has filed the detailed reply to the same. The reply filed by the petitioner-company has not been taken into consideration while issuing the office order dated 21.2.2009. Once the notice has been issued and the reply has been called for, the same was required to be taken into consideration after due application of mind. There is violation of the principles of natural justice. Merely, stating that the reply was not found satisfactory will not be sufficient. The points raised in the reply to the show cause notice are required to be dealt with in detail. Their Lordships of the Hon’ble Supreme Court in Dev Dutt versus Union of India and others, 2008 (7) Scale-403 have held that natural justice has an expanding content and is not stagnant. It is open to the Court to develop new principles of natural justice in appropriate cases. Their Lordships have held as under: What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarized in one word: fairness. In other words, what 3 they require is fairness by the authority concerned. Of course, what is fair would depend on the situation and the context. Lord Esher M.R. in Voinet vs. Barrett (1885) 55 L.J. QB 39, 39 observed: "Natural justice is the natural sense of what is right and wrong." In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the 'good' entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case. A large number of decisions of this Court have discussed the principles of natural justice and it is not necessary for us to go into all of them here. However, we may consider a few. Thus, in A. K. Kraipak & Ors. vs. Union of India & Ors. AIR 1970 SC 150, a Constitution Bench of this Court held : "The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice". The aforesaid decision was followed by this Court in K. I. Shephard & Ors. vs. Union of India & Ors. AIR 4 1988 SC 686 (vide paras 12-15). It was held in this decision that even administrative acts have to be in accordance with natural justice if they have civil consequences. It was also held that natural justice has various facets and acting fairly is one of them. In Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant AIR 2001 SC 24, this Court held (vide para 2): The doctrine (natural justice) is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action". In the same decision it was also held following the decision of Tucker, LJ in Russell vs. Duke of Norfolk (1949) 1 All ER 109: "The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with, and so forth". In Union of India etc. vs. Tulsiram Patel etc. AIR 1985 SC 1416 (vide para 97) a Constitution Bench of this Court referred to with approval the following observations of Ormond, L.J. in Norwest Holst Ltd. vs. Secretary of State for Trade (1978) 1, Ch. 201 : "The House of Lords and this court have repeatedly emphasized that the ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case". Thus, it is well settled that the rules of natural justice are flexible. The question to be asked in every case to determine whether the rules of natural justice have been violated is: have the authorities acted fairly? In Swadesh Cotton Mills etc. vs. Union of India etc. AIR 1981 SC 818, this Court following the decision in Mohinder Singh Gill & Anr. vsT he Chief Election 5 Commissioner & Ors. AIR 1978 SC 851 held that the soul of the rule (natural justice) is fair play in action. In our opinion, fair play required that the respondent should have communicated the 'good' entry of 1993-94 to the appellant so that he could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Non-communication of the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice. Originally there were said to be only two principles of natural justice: (1) the rule against bias and (2) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak's case (supra) and K.L. Shephard's case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the 6 principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.” Accordingly, in view of the observations made hereinabove, the writ petition is allowed. The office order dated 21.2.2009 is quashed and set aside and the consequential order dated 13.3.2009 whereby the petitioner-company has been de-registered is also set aside. However, the liberty is reserved to the respondent-State to proceed with the matter afresh in accordance with law after following the principles of natural justice. No costs. 9.10. 2009 (Rajiv Sharma ), J. *awasthi*