IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 W.A.No. 378 of 2009 ------------------------------- AGAINST THE JUDGEMENT IN WPC.27386/2008 Dated 14/01/2009 .................... APPELLANT// 4TH RESPONDENT: --------------------- T.SUDHEER, S/O.LATE SUBRAMANIAN, THAIKOOTTATHIL HOUSE, PULLIPPARAMBA, CHELAMBRA.P.O MALAPPURAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S)//PETITIONER AND RESPONDENTS 1 TO 3: ------------------------- 1. M.V.SUSHEELA, W/O.LATE BALAKRISHNAN, 50 YEARS, R/AT THAIKOOTTATHIL HOUSE, PULLIPPARAMBA, CHELAMBRA.P.O., MALAPPURAM DISTRICT. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE ASST. EDUCATIONAL OFFICER, PARAPPANANGADI. 4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. R1 BY SENIOR ADVOCATE SMT. SUMATHY DANDAPANI, & ADV. SRI.MILLU DANDAPANI R2 TO R4 BY ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD & GOVT. PLEADER SRI. T.B. HOOD THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON 09/09/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR, V. GIRI & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.378 of 2009 ------------------------------ Dated this, the 9th day of September, 2009 JUDGMENT Balakrishnan Nair, J. The point that arises for decision in this case, is the applicability of the principle 'he who decides must hear/he who hears must decide' to Governmental decisions. This Writ Appeal was referred to the Full Bench by the Division Bench entertaining the doubt, whether the decision of the Division Bench of this Court in K.P.Subair Haji v. Secretary to Government, 2007 (4) K.H.C. 62, lays down the correct position, in the light of the decision of the Apex Court in A.Sanjeevi v. State of Madras, AIR 1970 SC 1102, which was quoted with approval in Samsher Singh v. State of Punjab, AIR 1974 SC 2192. 2. Before considering the above legal question, we will presently refer to the skeletal facts of the case. The subject W.A. No.378 of 2009 - 2 - matter of the case is concerning the right to manage an Aided Upper Primary School. The appellant was the fourth respondent in the Writ Petition filed by the first respondent herein. The Writ Petition was filed, challenging Ext.P8 order of the Government dated 30.8.2008 in favour of the appellant. S.V.A.U.P.School, Chelambra was owned and managed by one Mr.Appukutty. He died in 1987. He had two children, namely, Mr.Balakrishnan and Mr.Subramanian. Both of them are no more. The first respondent is the widow of Balakrishnan and the appellant is the son of Subramanian. According to the first respondent, the abovesaid Appukutty executed Ext.P1 gift deed dated 11.8.1952 in favour of his wife, Manikutty and their two children, Subramanian and Balakrishnan, transferring some of his properties. On 24.3.1983 Subramanian and Balakrishnan partitioned those properties as per Ext.P2 deed. As per the partition deed, items 1 to 6 were allotted to Subramanian and items 7 and 8 were alloted to Balakrishnan. The school building situate in item 8 of the Schedule to Ext.P2 deed. After Ext.P2, Appukutty submitted a proposal before the Assistant Educational W.A. No.378 of 2009 - 3 - Officer (for short, “A.E.O.”), for transfer of the management of the school in favour of Mr.Balakrishnan. The A.E.O., Parappanangadi, as per Ext.P3 proceedings dated 20.9.1986, approved the transfer of management of the school from Appukutty to Mr.Balakrishnan without change of ownership or title, exercising his power under Rule 3 of Chapter V of the Kerala Education Rules (for short, “the K.E.R.”). Mr.Balakrishnan continued to be the Manager of the School till his death on 9.6.2006. After his death, the first respondent applied for change of management. The Director of Public Instruction, as per Ext.P6 order dated 24.12.2007 held that change of management in favour of the first respondent could be granted subject to her getting exemption from Rule 8(1) of Chapter III of the K.E.R. as, at the relevant time, she being a teacher of the school, without getting such exemption, cannot function as Manager of the School. The said order Ext.P6, was challenged by the appellant before the Government. The Government, by Ext.P8 order dated 30.8.2008, set aside the order of the Director of Public Instruction and authorised the W.A. No.378 of 2009 - 4 - A.E.O. to approve the appellant as Manager of the School, without change of ownership or title of the school. The direction in Ext.P8 was to be in force till the dispute between the parties was settled by the competent civil court. 3. Ext.P4, according to the first respondent, is not a legally valid Will, as nothing concerning the school remained with Appukutty to be bequethed after the execution of Ext.P1 gift deed. According to her, as per Ext.P2 partition deed, the school and the building vested in Balakrishnan. She also had a case that Ext.P4 was a concocted document. Aggrieved by Ext.P8 order passed relying on Ext.P4, the first respondent filed the Writ Petition. 4. The appellant submitted that he claimed Managership, based on Ext.R4(e) Will dated 18.7.1983, executed by late Appukutty. Later, on 14.12.1983, Appukutty executed Ext.R4(f) Will, bequething Managership in favour of the appellant. He further contended that on 27.6.1984, Appukutty W.A. No.378 of 2009 - 5 - executed Ext.P4 registered Will, bequething the Managership of the school in favour of Balakrishnan and after the death of Balakrishnan, in favour of the appellant. So, on the strength of Ext.P4, the appellant claimed Managership. 5. The learned Single Judge, after hearing both sides, found that the parties were heard by Smt.Sujatha, Under Secretary to Government and the order was issued by Sri. James Varghese, Secretary to Government. So, the order was vitiated for violation of the principles of natural justice, inasmuch as the person who decided the case did not hear the parties. The said view was taken by the learned Single Judge, relying on the decision of this Court in Subair Haji v. Secretary to Government (supra). So, Ext.P8 order was quashed and the matter was remitted to the Government, to take a fresh decision, bearing in mind the principles laid down by this Court in Dr.Philippoase Mar Theophilus v. State of Kerala, (1986 KLT SN.57, Case No.73 ≈ 1986 KLJ 1069). The appellant, W.A. No.378 of 2009 - 6 - feeling aggrieved by the said judgment, has preferred this Writ Appeal, contending that, the principle 'he who heard must decide' will not be applicable to institutional decisions like the decision of the Government, as the one contained in Ext.P8. It was also contended that in the absence of any pleadings and proof of prejudice, it was unnecessary to interfere with the decision on the technical contention of violation of natural justice. It was further pointed out that the Government have correctly decided the issue, by making the arrangement for management of the school till the competent civil court takes a decision. It was also contended that the first respondent has already filed O.S.No.308 of 2008 before the Munsiff Court, Parappanangadi, seeking a declaration that she has absolute title and possession over the school and its properties and the right to manage the same. 6. As mentioned earlier, when the matter came up before the Division Bench, it doubted the correctness of the decision of this Court in Subair Haji's case (supra), and W.A. No.378 of 2009 - 7 - referred the Writ Appeal to the Full Bench. 7. We heard Sri.George Poonthottam, learned counsel for the appellant. He reiterated the aforementioned contentions of the appellant and supported Ext.P8 order of the Government. The learned counsel pointed out that in a case of decision of the State Government, the rule that he who heard must decide cannot have any application. Further, in this case, no prejudice has been pleaded or proved. Therefore, there was no necessity to interfere with the order of Government, based on violation of the principles of natural justice. The learned counsel referred to the following decisions. Gullapalli Nageswara Rao v. Andra Pradesh State Road Transport Corporation, AIR 1959 SC 308, Ossein & Gelatine Manufacturers' Association of India v. Modi Alkalies and Chemicals Limited, (1989) 4 SCC 264, A.Sanjivi v. State of Madras, AIR 1970 SC 1102, Samsher Singh v. State of Punjab, AIR 1974 SC 2192, Union of India v. Andrew, 1996 (1) KLT 133, Katherine v. Secretary to Government, 2002 (1) KLT 882, W.A. No.378 of 2009 - 8 - Haryana Financial Corporation v.Kailash Chandra Ahuja, (2008) 9 SCC 31, and State of Kerala v. Krishnakumar T.G., 2009 (3) KHC 137. 8. Smt.Sumathi Dandapani, learned Senior Counsel, who appeared for the first respondent, supported the decision of the learned Single Judge. In support of her submissions, reference was made to the decisions in Gullapalli Nageswara Rao v. Andra Pradesh State Road Transport Corporation, AIR 1959 SC 308, Markose v. Tahsildar, 1995 (2) KLT 112, Thomas Mathew v. Secretary to Government, 1999 (3) KLT 275, Marico Industries Ltd. v. State of Kerala, 2003 (1) KLT 956, Jesudasan.G. v. Joint Registrar of Co - operative Societies (General), Kollam 2009 (2) ILR Kerala 323 and Morgan v. United States, 298 US 468. 9. Sri.T.B.Hood, learned Government Pleader, who appeared for the State, supported the appellant and defended Ext.P8 order. He took us through the Rules of Business of the Government of Kerala and pointed out how the Government take W.A. No.378 of 2009 - 9 - a decision. The rule that “he who heard must decide” cannot be mechanically applied to Governmental decision, it was pointed out. He also submitted that in this case, there was no pleading regarding prejudice caused to the first respondent by reason of the decision of the Government not being taken by the officer who heard the parties. To highlight the distinction between Governmental decision and the decisions of other statutory authorities, the learned Government Pleader relied on the decisions in Carltona Ltd. v. Commissioner of Works and others, 1943 (2) All.E.R. 560 and James Edward Jeffs v. New Zealand Dairy Production and Marketing Board, 1967 AC 551. The learned Government Pleader also referred to various passages from Wade's Administrative Law, 9th Edition. Reliance was also placed on the decision of the Apex Court in Kavitha v. State of Maharashtra, (1981) 3 SCC 558. 10. We considered the rival submissions made at the Bar and the pleadings and the materials on record. First, we will refer to the statutory provisions under which Ext.P8 decision was W.A. No.378 of 2009 - 10 - taken. Chapter III of the Kerala Education Rules deals with management of private schools. Rule 4 thereof deals with approval of appointment of Managers, Rule 5 deals with change of management and Rule 5A deals with change of management involving change of ownership. The aforementioned rules are quoted below for convenient reference. “4. Approval of appointment of Managers.- (1) The Educational Officers shall be competent to approve the appointment of Managers by Educational Agencies and to approve changes in the personnel of the Managers. (2) If the Educational Agencies have schools in more than one Educational District within a Revenue District the appointment of managers and changes in the personnel of the managers may be approved by the Deputy Director (Education) having jurisdiction in the Revenue District if the Educational Agencies have schools in more than one Revenue District, the appointment of managers and changes in the personnel of the Managers may be approved by the Director of Public Instruction. (2A). The approval of appointment of W.A. No.378 of 2009 - 11 - Managers and Changes in the personnel of the Managers under sub-rules (1) and (2) above shall take effect from the date of actual assumption of charge of the management specified in the order of approval issued by the competent authorities concerned. (3) Any person aggrieved by an order of the Educational Officer under sub-rule (1) or of the Deputy Director under sub-rule (2) may within 30 days from the date of receipt of the order prefer an appeal to the Director. (4) Government may, on their own motion or otherwise, revise any order passed by the Director of Public Instruction. 5. Change of management.- (1) All changes in the personnel of the Managers of aided institutions shall be immediately reported to the Educational Officer and approval obtained. (2) Appointment and changes approved by the Educational Officer shall be reported to the Director. Note:- The Rules 4 and 5 do not apply to change of management involving change of ownership. W.A. No.378 of 2009 - 12 - 5A. Change of management involving change of ownership.- (1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred. (2) Any person aggrieved by an order under sub-rule (1) may, within 30 days from the date of receipt of the order, prefer an appeal to the Government. (3) In the case of change of management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member who is a claimant under rule 51A of Chapter XIV A or is eligible for protection belonging to teaching and non-teaching staff of any school of the transferor manager, against the vacancies that may arise in the school.”. (emphasis supplied) Ext.P8 order, impugned in the Writ Petition, was one passed by the Government, in exercise of its power of revision under W.A. No.378 of 2009 - 13 - Rule 4(4) of the K.E.R. In this case, the learned Government Pleader made available to us the files leading to the issuance of Ext.P8. It was disclosed from the files that Smt.Sujatha, Under Secretary to Government, General Education Department, heard the parties and made the following suggestion in the files on 14.5.1988: “In the circumstances, the File may be forwarded to Law Department for advice, whether Sri.Sudheer can be appointed as Manager based on the Will executed by his grandfather dated 14-12-1984” The said note was made at paragraph 22 of the Note File. Sri.K.T.George, Additional Law Secretary, on receiving the File, called for further documents to tender the advice sought by the Administrative Department. On getting further details, the Additional Law Secretary, at paragraph 35 of the Note File stated that the Law Department agrees to the suggestion at paragraph 22 of the Note file. Based on the advice of the Law Department, W.A. No.378 of 2009 - 14 - a draft of Ext.P8 was put up. It was approved by the Under Secretary, Smt.Sujatha on 26.8.2008, by Sri.P.C.Jose, Additional Secretary, General Education Department on 28.8.2008 and further approved by Sri.James Varghese, Secretary to Government, General Education Department on 30.8.2008. As a consequence, Ext.P8 order dated 30.8.2008, was issued by the Government. We doubt, if the learned Single Judge has seen the files, whether the impugned order would have been quashed on the ground of violation of principles of natural justice. 12. Hearing the other side, (audi alteram partem), is one of the two main principles of natural justice, the other being the rule against bias. Audi alteram partem means hear the other side or listen to the other side. In other words, it means that no man should be condemned unheard or both sides must be heard before passing any order. If 'A' hears the parties and 'B' takes the decision, then B's decision is one made without hearing the other side. So, essentially when it is said, he who decided did not hear or he who heard did not decide means the W.A. No.378 of 2009 - 15 - decision is rendered without hearing the other side. 13. Hearing need not always be personal hearing or hearing by words of mouth. If a representation is filed by a contesting party and a decision is given adverting to his contentions, the decision must be held to be valid, even though, there was no hearing by words of mouth. In State of Maharashtra v. Lok Shikshan Sanstha (1971) 2 SCC 410, the Apex Court held as follows: “When all the relevant circumstances have been taken into account by the District Committee and the educational authorities, there is no violation of any principle of natural justice merely for the reason that the applicants were not given a hearing by the educational authorities before their applications were rejected.”. In Carborundum Universal Co. v. Central Board of Direct Taxes, 1989 (Supp) 2 SCC 462, it was held that, “Personal hearing, in every situation, is not necessary and there can be W.A. No.378 of 2009 - 16 - compliance of the requirements of natural justice of hearing, when a right to represent is given and a decision is made on a consideration thereof.”. In Jain Exports v. Union of India, (1988) 3 SCC 579, the Apex Court held that once the show cause notice is issued and explanation submitted by the parties is considered, natural justice cannot be said to have been violated on the ground that opportunity for personal hearing was not afforded, as a huge amount was at stake. Again in Union of India v. Jyoti Prakash Mitter, (1971) 1 SCC 396, the Honourable Supreme Court considered whether the High Court Judge should be given a hearing by the President of India, while taking a decision under Article 217 (3) of the Constitution of India and held as follows: “Article 217(3) does not guarantee a right of personal hearing. In a proceeding of a judicial nature, the basic rules of natural justice must be followed. The respondent was on that account entitled to make a representation. But it is not necessarily an incident of the rules of natural justice that personal hearing must be given to a party likely to be affected by the order. Except in proceedings in Courts, a mere denial of opportunity of making an W.A. No.378 of 2009 - 17 - oral representation will not, without more, vitiate the proceedings. A party likely to be affected by a decision is entitled to know the evidence against him, and to have an opportunity of making a representation. He however cannot claim that an order made without affording him an opportunity of a personal hearing is invalid. The President is performing a judicial function when he determines a dispute as to the age of a Judge, but he is not constituted, by the Constitution, a Court. Whether in a given case the President should give a personal hearing is for him to decide. The question is left to the discretion of the President to decide whether an oral hearing should be given to the Judge concerned.”. (emphasis supplied) Going by the above decisions, it cannot be held that an opportunity for personal hearing is always essential to satisfy the requirement of natural justice. But, when complex and difficult questions are involved, the Apex Court held that it is only appropriate that personal hearing is provided to the parties. In Travancore Rayons Ltd. v. Union of India, (1969) 3 SCC 868, it was held as follows: W.A. No.378 of 2009 - 18 - “It is true that the rules do not require that personal hearing shall be given, but, if in appropriate cases where complex and difficult questions requiring familiarity with technical problems are raised, personal hearing is given, it would conduce to better administration and more satisfactory disposal of the grievance of the citizens.”. The rules of natural justice, it is well settled, are not embodied rules and they cannot be confined within the straitjacket of a rigid formula. The requirements of natural justice will depend upon the circumstances of the case, nature of the inquiry, the law under which the administrator is functioning, the subject-matter that is being dealt with, etc.. 14. Yet another aspect of the matter, which is very relevant, is the prejudice caused. The earlier view was, violation of natural justice itself was a prejudice and therefore, proof of independent prejudice was uncalled for. Now, the law is that unless prejudice is shown, violation of the principles of W.A. No.378 of 2009 - 19 - natural justice, ipso facto, will not be accepted as a ground for quashing a decision. The rules of natural justice are designed to advance justice and they cannot be allowed to be used as tools of oppression. If a decision is quashed for violation of principles of natural justice, even if the party impugning the order has absolutely no case on admitted and undisputed facts, it may cause irreparable injury and hardship to the opposite party with a cast-iron case. He will be unnecessarily dragged to defend the proceedings at the instance of a person with no case at all, but only for the reason of not providing an opportunity of hearing to him. For the failure of the Administrator, over whose actions the parties have no control, to hear one side, the other side may suffer irreparable injury, if the order is quashed only on the ground of violation of natural justice. So, when a party comes to the Court complaining that the principle, “he who hear must decide” was violated, those words cannot be taken as a “open sesame” for invoking the jurisdiction of this Court and to quash the order concerned. This Court must examine whether the case was one requiring a hearing by words of mouth, for effective W.A. No.378 of 2009 - 20 - consideration of the grounds raised by the parties. The Court should also examine whether any prejudice has been pleaded and any material has been placed in support thereof. 15. Now, the next point to be considered is when the decision impugned is that of the Government, whether the principle – “he who heard must decide”, can be made mechanically applicable. 16. The main decision relied on by the first respondent is the decision of the Apex Court in Gullapalli Nageswara Rao v. Andra Pradesh State Road Transport Corporation,(supra). It was a decision of the Constitution Bench. It was a case, in which, objections regarding nationalisation of road transport were heard by the Secretary and the decision was taken by the Minister for Transport. The order of the State Government was set aside by Subba Rao, J. (as His Lordship then was). The relevant portion of the said judgment reads as follows: W.A. No.378 of 2009 - 21 - “...This divided responsibility is destructive of the concept of judicial hearing. Such a procedure defeats the object of personal hearing. Personal hearing enables the authority to watch the demeanour of the witness and clear-up his doubts during the course of his arguments, and the party appearing to persuade the authority by reasoned argument to accept the point of view. If one person hears and another decides, then personal hearing becomes an empty formality.”. The decision was rendered with the dissent of two of the learned Judges of the Bench of five Judges. The above decision was distinguished by the Apex Court in General Manager, Eastern Railway v. Jawala Prosad Singh, (1970) 1 SCC 103. It was a case where inquiry into the charges against a delinquent employee was conducted by an enquiry committee. After the enquiry started and made some progress, one of the members of the enquiry committee was substituted by another person on the transfer of the former to another place. The punishment imposed on the delinquent was challenged on the ground of violation of the principle, “he who heard must decide”. In the W.A. No.378 of 2009 - 22 - above decision, distinguishing the decision in Gullapalli Nageswara Rao's case (supra), the Apex Court held as follows: “8. The observations of this Court in Gullapalli Nageswara Rao's case (supra) have no bearing on the facts of the present case. There it was held that if a personal hearing is given by the Secretary of a Department and the Minister of the State has to decide