BIHARILAL TIKARAM Vs. GOVERNMENT OF M P

JUDGEMENT

(1.) THIS is a petition under Article 226/227 of the. Constitution of India for issuance of the writ of certiorari or any other writ, direction or order which may be suitable in the circumstances of the case for quashing the order passed against the petitioner by Director, Mandi, Madhya Pradesh, on 13 -10 -1981 (Annexure -III). The facts of the case are that the petitioner was duly elected as a Member of the Krishi Upaj Mandi Samiti, Joura, District Morena (hereinafter referred to as the Samiti) and he was also elected as President of the Samiti as per provisions of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 (hereinafter referred to as the Adhiniyam). The petitioner took over the charge of the post in September 1979. While he was working so, he was given a show -cause notice on 18 -9 -1981 under section 55(1) of the Adhiniyam and certain charges were levelled against him. The petitioner has alleged that charges framed against him were baseless, but he filed a detailed parawise reply to the same. The non -petitioner without giving the opportunity of hearing dismissed the petitioner from the post of Chairman and also from the membership of the Samiti and asked him to hand over the charge. Further, the order which is Annexure III proposes a penalty of debarring him for six years from the. date of the order from getting re -elected or renominated as a member of the market Committee. The Annexure III mentions that action is taken under section 55(1) of the Adhiniyam, but in fact, it is taken under section 55(2). Much was made of the wrong mention of the section by Shri S. K. Dubey, learned counsel for the petitioner, but, we are of the opinion that mere wrong mention of the section will not vitiate the inquiry.

(2.) OTHER point submitted by the learned counsel for the petitioner was that no inquiry was made and no opportunity to cross -examine was given and no opportunity to lead evidence in defence was given so also no personal hearing was given, but in our opinion, these submissions have no force and they arc to be rejected. The learned counsel for the petitioner referred us to the following rulings in support of his submission. H -e referred to Mohinder Singh v. Chief Election Commissioner : AIR 1978 SC 851 and relied on the following passage. When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. : AIR 1952 SC 16, Rel. on." The above passage has no application to the present case at all. The order under challenge is based on grounds and it mentions what facts are considered before passing the .order and in deciding the matter, we are not taking into consideration any fresh reasons or grounds in the shape of affidavit or otherwise to support the order. We are considering the validity of the order on its merits. Then, the learned counsel for the petitioner has referred to us to Maneka Gandhi v. Union of India : AIR 1978 SC 597 and submitted that in the case of the petitioner, principles of natural justice and procedure established by law is not followed. He relied on the following passage in support of his submission:

(3.) PER Bhagwati J. (jointly with Untwalia and Murtaza Fazal Ali JJ.); rest of the Judges concurring; There are certain well recognised exceptions to the audi alteram partem rule established by judicial decisions and they are summarised by S. A. de Smith in Judicial Review of Administrative Action, 2nd Edn. at pages 168 to 179. If we analyse these exceptions a little closely, it will be apparent that they do not in any way militate against the principle which requires fair play in administrative action. The word 'exception' is really a misnomer because in these exclusionary cases, the audi alteram partem rule is held inapplicable not by way of an exception to 'fair play in action', but because nothing unfair can be inferred by not affording an opportunity to present or meet a case. The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd' stultifying, self -defeating or plainly contrary to the common sense of the situation, since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experimental test, be excluded, if importing the right to be heard has the ' effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. -It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances." The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. That is why Tuckler L. J. emphasised in Russel v. Duke of Norfolk, (1949) 1 AlER 109 that "whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case." What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full -fledged hearing or it may be a hearing which is very brief and minimal; it may be a hearing prior to the decision or it may even be post decisional remedial hearing. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which may arise. This circumstantial flexibility of the audi alteram partem rule was emphasised by Lord Reid in Wiseman v. Sorneman, 1971 AC 297 when he said that he would be "sorry to see this fundamental general principle degenerate into a series of hard and fast rules" and Lord Hailsham L.. C, also observed in Pearl Berg v. Varty, (1971) 1 WLR 728 that the Courts "have taken an increasingly sophisticated view of what is required in individual cases." It would not, therefore, be right to conclude that the audi alteram partem rule is excluded merely because the power to impound a pass -port might be frustrated, if prior notice and hearing were to be given to the person concerned before impounding his passport. The Passport Authority may proceed to impound the passport without giving any prior opportunity to the person concerned to be heard, but as soon as the order impounding the passport is made, an opportunity of hearing, remedial in aim, should be given to him so that he may present his case and controvert that of the Passport "Authority and point out why his passport should not be impounded and the order impounding it recalled. This should not only be possible but also quite appropriate, because the reasons for impounding the passport are. required to be supplied by the Passport Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plea for setting aside the action impounding his passport. A fair opportunity of being heard following immediately upon the order impounding the passport would satisfy the mandate of natural justice and a provision requiring giving of such opportunity to the person concerned can and should be read by implication in the Passports Act, 1967. If such a provision were held to be incorporated in the Passports Act, 1967, by necessary implication as we hold it must be, the procedure prescribed by the Act for impounding a , passport would be right,, fair and must and it would not suffer from the ' vice of arbitrariness or unreasonableness. We must therefore, hold that the procedure 'established' by the Passports Act, 1967 for impounding a passport is in conformity 'with the requirement of Article 21 and does not fall foul of that article." But, in our opinion, the submission cannot be accepted as the provisions under section 55 of the Adhiniyam give specific procedure and that section is as under: - Removal of member, Chirman and Vice -Chairman of Market Committee. (I) The State Government may on its motion or on a resolution passed by a majority of two -third of the members constituting the market committee for the time being remove any member of the market committee for misconduct or neglect of or incapacity to perform his duty and on such removal he shall not be re -elected or renominated as a member of the market committee for a period of six years from the date of such removal; Provided that no order of such removal shall be passed unless such member has been given a reasonable opportunity of showing cause why such order should not be passed.