IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(C).No. 24065 of 2011(G) -------------------------------------- PETITIONER(S): --------------------- T.A.JOSE AND COMPANY, AWD NO.6, METHALA, KODUNGALLUR, REPRESENTED BY ITS MANAGING PARTNER - E.O.LAWRENCE. BY ADV. SRI.K.I.MAYANKUTTY MATHER SRI.R.JAIKRISHNA RESPONDENT(S): ------------------------ 1. THE COMMISSIONER, CIVIL SUPPLIES, THIRUVANANTHAPURAM - 695 001. 2. DISTRICT COLLECTOR, TRICHUR - 680 001. BY GOVERNMENT PLEADER SMT. K.S. SANJEETHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SD WPC NO. 24065/2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE ORDER PASSED BY THE DISTRICT COLLECTOR, TRICHUR. EXT.P2 TRUE COPY OF THE ORDER OF THE IST RESPONDENT. EXT.P3 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT. EXT.P4 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P5 TRUE COPY OF THE ORDER PASSED BY THE IST RESPONDENT. RESPONDANTS'S EXHIBITS NIL TRUE COPY P.A. TO JUDGE SD ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 24065 of 2011 G ``````````````````````````````````````````````````````````` Dated this the 28th day of November, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ What is under challenge is Ext.P1, an order passed by the first respondent, rejecting an appeal filed by the petitioner. 2. Petitioner was appointed as AWD No.6 at Kodungallur. Subsequently, on allegations of irregularities, his appointment was cancelled by the District Collector. Petitioner filed an appeal before the first respondent and by Ext.P2 order, allowing his appeal, the matter was remitted to the District Collector for fresh consideration. Accordingly, the District Collector reconsidered the matter. Thereafter, Ext.P3 order was passed, upholding the cancellation. 3. Aggrieved by this order, petitioner again filed Ext.P4 appeal before the first respondent. Ext.P4 appeal was heard by Mr.Jyothilal, the then Commissioner of Civil Supplies, on 07.03.2011 and 09.03.2011. However, orders W.P.(C) No.24065/2011 : 2 : were not passed by the said officer and Ext.P5 order has been subsequently passed by his successor in office on 16.08.2011. By this order, Ext.P4 appeal has been rejected. In other words, the appeal was heard by one officer and decided by another officer. 4. Although various contentions have been urged in the pleadings, one of the main contentions urged before me was that the officer who passed the order has not heard the petitioner. Though this factual position has been accepted by the respondents, learned Government Pleader sought to justify Ext.P5 order by relying on the Full Bench judgment of this Court in Sudheer T. Vs. M.V.Susheela and Others [2009 (3) KHC 991(FB)]. However, as rightly contended by the learned counsel for the petitioner, the principles laid down by the Full Bench cannot apply when a statutory authority like the first respondent is dealing with an appeal and the principles laid down by the Full Bench can have relevance only when the Government, whose affairs are relied by the W.P.(C) No.24065/2011 : 3 : Rules of Business, discharges its duties. This position is evident from the following findings of the Full Bench judgment:- “So, whatever be the nature of the jurisdiction, whether it be appellate or revisional, conferred on the Government, they must take the decision, as provided under Article 166 of the Constitution of India, read with the relevant Rules of Business. In view of the above position, we overrule the decision of the Division Bench of this Court in K.P.Subair Haji Vs. Secretary to Government, 2007 (4) KHC 62. We are also of opinion that the view in Gullapalli's case (supra) about the principle “he who heard must decide” is no longer good law as far as the same concerns governmental decisions, in view of the declaration of law made by the Constitution Bench in A.Sanjeevi Vs. State of Madras (supra) that a file dealt with by a Secretary of a Department can be called for by the Minister and he may pass any order on it or W.P.(C) No.24065/2011 : 4 : direct the officer to pass order on it in a particular manner. See para 12 of the said decision, wherein it was held “It is always open to a Minister to call for any file in his Ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case”. In other words, principles of natural justice cannot override Article 166 of the Constitution of India and the Rules of Business framed thereunder and this view is fully supported by the interpretation given to them by the Honourable Supreme Court in A.Sanjeevi's case (supra). We are not referring to the other decisions cited by both sides, as they are not directly concerned with Governmental decisions under Article 166 of the Constitution of India read with the relevant Rules of Business of the Government of a State.” 5. In the light of the above, I do not find any merit in the objection raised by the learned Government Pleader. W.P.(C) No.24065/2011 : 5 : 6. Admittedly, Ext.P5 order was passed by a person who has not heard the petitioner on Ext.P4 appeal. Therefore, this order cannot be sustained. Accordingly, Ext.P5 order is set aside and the first respondent is directed to hear the petitioner and pass fresh orders in the appeal. Writ petition is disposed of as above. Sd/- (ANTONY DOMINIC, JUDGE) aks/28/11 // True Copy // P.A. To Judge