1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. Nos. 1814 & 2839 of 2010 Judgment reserved on: 7th July,2010 Date of decision: 24th July, 2010 1. Gurpratap Singh …Petitioner Versus State of HP and another …Respondents Mr. Debender Ghosh, counsel for the petitioner Mr. R.K. Sharma, Senior Additional Advocate for the State 2.Champeshwar Lal Sood …Petitioner Versus State of HP and another …Respondents Mr. R.L. Sood, Senior Advocate, with Mr. Ajay Mohan Goel, counsel for the petitioner. Mr. R.K. Sharma, Senior Additional Advocate for the State Mr. Debender Ghosh, counsel for respondent No. 3. Coram The Hon’ble Mr.Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. ____________________________________________________________ Justice Kurian Joseph, C.J. (Oral) Whether hearing by word of mouth-personal hearing-oral hearing is an essential requirement of natural justice ? 2. Whether a government servant, as of a right, can engage in any private trade or employment ? 3. These are the two questions to be considered in this case. 4. Petitioner, who is a government employee, is aggrieved since the permission granted to him to manage/supervise the affairs of the shop, inherited by him, after the death of his parents, is withdrawn. 2 The petitioner joined government service in the year 1977 in the clerical cadre. Presently, he is working as Superintendent Grade-II in the department of Social Justice and Empowerment, Himachal Pradesh Secretariat at Shimla. He is due to superannuate on 31.12.2012. The father of the petitioner had been doing business in Shimla since 1948 in the name and style of “Friends Tailors” at the tenanted premises. 5. The landlord is the petitioner in CWP No. 2839 of 2010. The father of the petitioner died on 2.2.1998 and according to the petitioner, the tenancy has been inherited by him and his married sisters. Though the landlord could not initially succeed in his attempt for eviction, after the death of the father of the petitioner, another application has been filed for eviction and the same is pending before the Rent Controller, Shimla. While so, the petitioner submitted Annexure P-1 representation seeking permission to manage/run the affairs of the shop, without affecting his official duties as government servant, under Rule 15 of the Central Civil Services (Conduct) Rules, 1964. The government granted permission on 23rd April, 1998 by Annexure P-2. It is seen that the landlord filed a petition before the government on 18.12.2007 (Annexure P-3), bringing to the notice of the government that the permission granted is not in order. Though no reference is made to the petition, it is seen that the government, on 2.4.2008, as per Annexure P-4, directed the petitioner to submit his version. Thereafter, as per Annexure P-5, order dated 12.5.2008, permission granted as per Annexure P-2, was withdrawn. That was challenged by the petitioner before the Tribunal and the application was transferred to this court, when the Tribunal was wound up, and the same was re-numbered as CWP(T) No. 1142 of 2008. The writ petition was disposed of by a Division Bench judgment of this court 3 on the ground that the petitioner had not been issued any show cause notice before withdrawing the permission and hence, it was made clear that it be open to the respondents to proceed with the matter in accordance with law. The text of the judgment reads as follows:- “The petitioner was granted permission to manage/supervise the affairs of the shop on 23.4.1998. The same was withdrawn on 12.5.2008. It is admitted case of the parties that no notice was issued to the petitioner before the issuance of impugned order, dated 12.5.208. The petitioner has suffered civil and evil consequences. Consequently, memorandum dated 12.5.2008 is quashed and set aside. It shall be open to the respondents t proceed with the matter in accordance with law. Petition stands disposed of.” 6. Thereafter the petitioner was issued show cause notice on 5.2.2010 (Annexure P-8). Inter-alia, it was also referred to in the show cause notice that more than eleven years had lapsed and the period would be sufficient for the petitioner’s family to get over the difficulties on account of the death of the parents. It was also observed that the petitioner had since been promoted to the post of Superintendent Grade-II, the government required his undivided attention to his official work. The petitioner submitted his reply as per Annexure P-11. 7. On consideration of the reply, furnished by the petitioner and after referring to the relevant records and on duly considering the submissions, made by the petitioner, the government, as per Annexure P-2, withdrew the permission on 23.4.1998. The relevant portion of the order reads as follows:- “The plea of Sh. Gurpratap Singh that managing or supervising the affairs of his shop by him is not affecting his performance in the official duties is not tenable in view of the provisions given above. It is a matter of principle and not of 4 practical details which is to be taken into consideration while granting such permission. Moreover, this is the singular permission of this type in this establishment which is allowed further, many other such requests may come to permit the official(s) to carry out or manage their family profession/business/trade. Allowing the Government official to carry some trade/business is not only against the existing Rules but is antithetical to the basic concept of the government service certainly impacting the commitment, undivided attention and devotion to government duty. Now, therefore, in view of the above, the permission accorded in favour of Sh. Gurpratap Singh is hereby ordered to be withdrawn.” This order is under challenge in the writ petition. 8. According to the petitioner, the order was passed without affording an opportunity of hearing to him. It is further contended that no adverse remarks had ever been passed against the petitioner on account of his involvement in the business and hence, there is no justification in withdrawing the permission, already granted to him to manage the affairs of the business. Still further, it is submitted that the withdrawal is on extraneous considerations, on the pressure of the landlord, who has an oblique motive of evicting the petitioner from tenanted premises. 9. Learned Senior Additional Advocate General submits that the permission granted to the petitioner, as per Annexure P-2, was without taking into consideration all the relevant aspects. The representation, filed by the landlord has not, in any way, influenced the government and the impugned decision taken is not at the request of the landlord. It is also submitted that since the petitioner has to work in the post of Superintendent Grade-II, he cannot be permitted to run the affairs of the shop since his attention and commitment would be divided. The contention of the learned Senior counsel appearing for the landlord, who 5 is the petitioner in CWP No. 2839 of 2010, with a prayer for taking action against the petitioner is that the landlord’s representation was intended only to draw the attention of the government. 10. We shall deal with the first question as to whether opportunity for personal hearing is an essential requirement of principle of natural justice. 11. It is not in dispute that the petitioner was issued a show cause notice. He was given an opportunity to submit his explanation. That is submitted as per Annexure P-11. All the points urged by the petitioner have been adverted to in the impugned order. Hearing the other side, (audi alteram partem), is one of the two main principles of natural justice. That means, hear the other side. No man should be condemned un-heard. Both sides must be heard before passing the order. But, the question is, whether the hearing means always personal hearing or a hearing by word of mouth. If the contesting party is given an opportunity to make a representation and in case the representation is considered, adverting to the submissions made therein, the decision must be held to be valid, even though an opportunity for oral hearing was not granted. 12. In Union of India Vs. Jyoti Prakash Mitter, 1971 (1) SCC 396, the Constitutional Bench of Supreme Court had an occasion to consider this aspect. The Supreme Court considered whether the High Court Judge should be given a hearing by the President of India while taking the decision under Article 217(3) of the Constitution of India. It was held as follows:- “26. x x x x x. 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 6 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 oral representation will not, without more, vitiate the proceeding. 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. The record amply supports the view that the President did not deem it necessary to give an oral hearing. There were no complicated questions to be decided by the President. x x x x x x x x x x. ” 13. In M/s Jain Exports (P) Ltd. and another Vs. Union of India and others (1988) 3 SCC 579, the Supreme Court has taken the view that once the show cause notice is issued and explanation submitted by the parties is considered, natural justice cannot be said to be violated on the ground that opportunity for hearing ought to have been afforded. 14. In Carborundum Universal Ltd. Vs. Central Board of Direct Taxes, New Delhi 1989 Supp (2) SCC 462, the Supreme Court considered the question of waiver of interest under Section 220 (2-A) of the Income Tax Act, 1961. It has been held as follows:- “6. There is no procedural statutory requirement of a hearing for the disposal of an application under Section 220(2-A) of the Act. The legal position is that where a statutory provision does not exclude natural justice the requirement of affording an opportunity of being heard can be assumed, particularly when the 7 proceedings are quasi-judicial. Exclusion, however, can either be by a clear provision or inferred from the scheme, as also the nature of power which is being exercised. We have already noticed that the power of the Board which was invoked was discretionary. It was to be exercised on the basis of the recommendation of the Commissioner and the material provided by the assessee. Personal hearing in every situation is not necessary and there can be compliance of the requirements of natural justice of hearing when a right to represent is given and the decision is made on a consideration thereof. x x x x x x .” 15. In Union of India and another Vs. Jesus Sales Corporation (1996) 4 SCC 69, the Supreme Court went to the extent holding that even while rejecting an application to dispense with the pre- deposit alongwith the appeal under the Imports and Exports (Control) Act, 1947, it was not necessary to afford an opportunity for personal hearing. At para 5 of the judgment, it was held as follows:- “5. x x x x x x x x x x. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded. x x x x x x x x x.” 16. In State of Tamil Nadu Represented by Secretary, Housing Department, Madras Vs. K. Sabanayagam and another (1998) 1 SCC 318, the Apex Court held that while considering the 8 question of exemption from all the provisions of Bonus Act, 1965, it is not obligatory on the part of the appropriate government to afford an opportunity for hearing to the employees and it would be sufficient to consider the materials in rebuttal, furnished by the employees, likely to be affected by the decision. 17. In The State of Maharashtra and another Vs. Lok Shikshan Sansatha and others 1971 (2) SCC 410, it is held by the Supreme Court “When all the relevant circumstances have been taken into account by the District Committee and the Educational Authorities, there is no violation of the principles of natural justice. That was a case where the Supreme Court considered the complaint regarding refusal of grant-in-aid to the schools. 18. In the Administrative Law, (eighth edition) by SIR WILLIAM WADE AND CHRISTOPHER FORSYTH, BSc LLB (Natal) LLB Phd (Cantab) Assistant Director of the Centre for Public Law of the Inner Temple, Barrister Fellow of Robinson College, Cambridge University Lecturer in Law, in Chapter XV, dealing with the Natural Justice-The Right to Fair Hearing, after referring to various English decisions and fact situations under English Law, it has been stated as follows:- “In various situations practicalities may justify dispensing with oral hearings. It has been held that a statutory board, acting in an administrative capacity, may decide for itself whether to deal with applications by oral hearing or merely on written evidence and argument, provided that it does in substance `hear’ them; and that dealing with an appeal on written communications only is not contrary to natural justice. The visitor of a college may similarly deal with an appeal on written submissions only and a student may be rusticated from his college without an oral hearing, if he has been told the nature of the complaints against him and given a fair 9 opportunity to state his case in writing. A licensing authority may give a `hearing’ on paper, provided that the applicant is allowed to reply to any objections known to the authority. An immigrant appealing against a deportation order need not be offered an interview. Some statutory tribunals have power to dispense with oral hearings, but if they do so, they must be careful to give a party a fair opportunity to comment on any adverse statement submitted.” 19. Thus, the law, both in India and England, is that personal hearing is not an essential requirement of natural justice unless otherwise so specified in the Statute concerned or whether complicated questions of fact are involved. In case the affected party had been granted an opportunity to make a representation and in case the authority has passed an order, referring to the submissions made in the representation and adverting to the requirements under law, it cannot be said that there is violation of the principles of natural justice. 20. Now we shall advert to the second question as to whether a government employee, as of a right, can claim that he should be granted the permission to engage in private trade or employment. 21. Rule 15 (1) of the CCS (Conduct) Rules provides as follows:- “15. Private trade or employment (1) Subject to the provisions of sub-rule (2), no Government servant shall, except with the previous sanction of the Government- (a) engage directly or indirectly in any trade or business; or (b) negotiate for, or undertake, any other employment, or (c) hold an elective office, or canvass for a candidate or candidates for an elective office, in any body, whether incorporated or not, or (d) canvass in support of any business of insurance agency, commission agency, etc., owned or managed by any member of his family, or (e) take part except in the discharge of his official duties, in the registration, promotion or management of any Bank or other 10 company registered or required to be registered, under the Companies Act, 1956 (1 of 1956), or any other law for the time being in force, or of any co-operative society for commercial purposes. (f) participate in or associate himself in any manner in the making of – (i) a sponsored media (radio or television) programme; or (ii) a media programme commissioned by Government media but produced by a private agency; or (iii) a privately produced media programme including video magazine; Provided that no previous permission shall be necessary in case where the Government servant participates in a programme produced or commissioned by Government media in his official capacity.” 22. Rule 11 of the Fundamental Rules provides as follows:- “F.R.11. Unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the government which pays him, and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the services required of him are such as would ordinarily be remunerated from general revenues, from a local fund or from the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government.” 23. The underlying principle of these rules is that the government servant is under an obligation to devote his time and energy whole heartedly towards the performance of his duties and the government expects his undivided attention, efforts and commitment to the service. In the impugned order, we find that the government has referred to all the relevant aspects of the matter and no irrelevant consideration has crept in. No government servant, as a matter of right, can claim that he should be granted a concession or a privilege in deviation of the rules to engage in his own private trade or business. As rightly held in the impugned order, the question is more one of principle 11 and on the factual matrix, the government has also stated that in the impugned order the case of the petitioner is the solitary instance of such permission and according to the government, it affects the commitment and devotion of the petitioner to government duty. As referred to in the show cause notice, the petitioner is now working in supervising capacity as Superintendent Grade-II. Still further, the government has also taken note of the situation that the immediate need of tiding over the difficulties on account of the demise of the parents also is not there since the petitioner has been granted the special permission for a period of around eleven years. Thus all the relevant aspects of the matter have been considered and there is no consideration of any irrelevant factor. 24. All that apart, it is also to be seen that this court in the judgment, dated 4.11.2009, passed in CWP(T) No. 1124 of 2008, had granted the liberty to the government to proceed with the matter, with notice to the petitioner. It was not specified therein that an opportunity for personal hearing should be granted. In fact it had been made clear in the judgment that this court set aside the earlier order only on account of want of notice. That opportunity was given. The petitioner represented and the same was duly considered also. There is no case that the submissions of the petitioner had not been considered by the government. The government has, in fact, referred to all the relevant aspects of the matter and has passed a reasoned and reasonable order, adverting to the submissions made by the petitioner in reply to the show cause notice. The government having only sought to enforce the rules in its proper spirit and perspective, we do not find any infirmity in the process. The impugned order has been passed in proper compliance with the procedure under the rules and in proper implementation of rules. 12 Therefore, we do not find any merit in this writ petition, which is accordingly dismissed. 25. In view of the judgment, as above, the reliefs in CWP No. 2839 of 2010, Champeshwar Lal Sood Vs. State of H.P. and others do not survive. Therefore, that writ petition is accordingly disposed of. (Justice Kurian Joseph), Chief Justice July 24, 2010(K) (Justice Kuldip Singh), Judge