6/ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (S) No. 4787of 2008 PETlTl0NER Pushpendra Singh VERSUS RESPONDENTS State of Madhya Pradesh and others Post for pronouncement of order on g .10.20107 Sdl— Pritinker DiWaker Judge ”’4’ She submits that the petitioner did participate in AII india East Zone Inter University Kabaddi Tournament, 1 989 (for short ‘the Tournament’) and to this effect a certificate (Annexure A—8) was issued by the competent authority. She submits that based on this the petitioner was awarded 12 additional marks and he is entitled for the same and when he had performed his duty for about 4 years the respondents could not have terminated him without holding regular departmental enquiry. According to her, as per the service rules the petitioner had completed his probation period and therefore his services cannot be terminated without regular departmental enquiry. During hearing of this case this Court has put a very specific question to counsel for the petitioner about the certificate (Annexure A-8) filed by the petitioner showing his participation as a volunteer in the Tournament, in turn it has been admitted that the petitioner had participated in the said tournament as a volunteer and not as a player. She further submits that the requirement of the respondent is participation in the Tournament and it has nowhere mentioned that the said participation should be as a player. She submits that the petitioner has not suppressed any fact in thisrespect nor has misrepresented, because in the certificate itself it is categorically mentioned that the petitioner had participated in the Tournament as a volunteer. 4. On the other hand supporting the impugned order it has been argued by Shri Vaibhav Goverdhan, counsel for the respondents that in Clause—6 of the appointment order (Annexure A—3) it is categorically mentioned that after appointment/joining the candidate is required to furnish all the original certificates and the same would be verified from the original and if any mistake is found in the same, the services of the said candidate can be terminated even without following the condition No.1 of the appointment order i.e. serving of one month notice by either of the party. He further submits that as per Clause—7 of letter dated 10.06.1993 (Annexure R-1), a candidate would be entitledlfor 12 I additional marks if he has participated in the national level games. According to him, participation in the . national games means participation as a player not as a volunteer. It has been further argued @ ”.4 that whenever any such benefit is to be extended to the players, the same is not to be extended to the volunteer or any other persons accompanying the team or player but the benefit can only be extended to those who have participated in the game as a player. It has further submitted that a detail show cause notice dated 13.5.1998 (Annexure A-5) was issued to the petitioner vide covering memo dated 15.5.1998 (Annexure A-4) but no reply was submitted by him till the date of passing of the impugned order dated 16.7.1998. It has been further argued that the contention of the petitioner about submitting of the reply of the show cause notice vide Annexure A-7 is not correct because the said undated reply has never been received by the authority nor any acknowledgement to this effect has been filed by the petitioner. 5. Heard counsel for the parties and perused the material available on record. 6. From the certificate (Annexure A—8), it is apparent that the petitioner had participated in the Tournament as a volunteer and not as a player. Even it is not the case of the petitioner that he had participated in the said tournament as a player whereas as per the requirement of Annexure R-1, the criteria for awarding the marks, it is clear that the candidate was entitled to have 12 additional marks if he/she had participated in the national level tournament. Though it has not been specifically mentioned in this letter that only players are entitled to have the benefit of 12 additional marks but meaning and purpose of the said document is very clear which says the participation in the national tournament. Under no stretch of imagination, it can be said that the persons who have attended the Tournament as Coach, helper, attendant or volunteer can be granted the benefit which is to be given only to the players. Thus, prima facie it appears that the 12 additional marks were given inadvertently to the petitioner for participating in the national Tournament and before correcting this mistake a show cause notice dated 13.5.1998/1 5.5.1998 (Annexure A- 5 & A-4) was given to the petitioner. Though the petitioner has stated l l ‘ ‘w mwrxw 1 that he has filed the reply to the said show cause notice vide AnneXure A-7 but no such document has been filed by him showing as to on what date the said reply was given and whether the same was received by the respondents or not. Even if this Court considers the reply of the said show cause notice, the petitioner cannot take any advantage of the same because admittedly he had not participated in the Tournament as a player. So far as holding of a reguiar departmentai enquiry is concerned, in the appointment order itself it is mentioned that if any mistake is found in the certificate, after verification, the services of the employee can be terminated even without following the condition No.1 of the appointment order. 7. If the case of the petitioner is considered from the angle that he was not given proper opportunity, this Court has to see as to what else the petitioner could have said before the authority but for the fact that he hadvnot suppressed anything at the time of appointment nor he had ever misrepresented the authority. When the petitioner is admitting the fact that he was merely a volunteer in the tournament, this Court is of the considered view that the petitioner is not entitled for 12 additional marks which was given to him for participating in the national level tournament. Mere giving him further opportunity would not have changed the fate of the case and the same would have been merely a futile exercise. The concept of useless formality theory has been elaborately discussed by the Apex Court in various judgments. Taking support of its earlier decision in the matter of Aligarh Muslim University v. Mansoor Ali Khan (2000) 7 SCC 529, it has been held by the Apex Court in the matter of Ashok Kumar Sonkar v. Union of India and others reported in (2007) 4 SCC 54, as under: 29. In Aligarh Muslim University v. Mansoor Ali Khan (2000) 7 SCC 529 the Iaw is stated in the following terms: “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 the’ory in other cases. The divergent views expressed in regard to this theory have r—_>F’ been elaborately considered by this Court in MC. Mehta referred to above. This Court surveyed the views expressed in various judgments in Engiand by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, De Smith, Wade, D.H. Clark 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 in these issues. In the ultimate analysis, it may depend upon the facts of a particular case.” 33. In Karnataka SRTC v. S.G. Kotturappa (2005) 3 SCC 409 this Court held “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 straightjacket forumula. The principles of natural justice are furthermore 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.” 34. In Punjab National Bank v. Manjeet Singh (2006) 8 SCC 647 this court opined “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 ju‘stice 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 there-under is disputed and not where it is not in dispute or cannot be disputed. if only one conclusidn is possible, a writ would not issue only because there was a violation of the principles of natural justice.” .a6‘ 35. In P.D. Agrawal v. State Bank of india this coutt observed : “30. The principles of natural justice cannot be put in a straightjacket formula. It must be seen in circumstantial flexibility. it has separate facets. It has in recent times also undergone a sea change." It was further bserved: o “39. Decisions of this Court in S.L. Kapoor v. Jagmohan whereupon Mr. Rao 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 is 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 decision of this Court in State Bank of Patiala v. S.K. Sharma (1996) 3 SCC 364 and Rajendra singh v. State'of M.P. (1996) 5 SCC 460 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 alterm partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was more 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 straightjacket forumuia. (See Viveka Nand Sethi v Chairman, J&K Bank Ltd. (2005) 5 SCC 337, and State of UP v. Neeraj Awasthy (2006) 1 SCC 667. See also Mohd. Sartaj v. State of UP (2006) 2 SCC 315. ' 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." 8. in view of the aforesaid factual and legal position, this Court is of the considered view that the petition has absolutely no merit and being so it is liable to be dismissed and it is dismissed as such. // sal— Prttinker DiWaker / Judge .