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Judgment
A.K. Ganguly, J.—In this writ petition initially a challenge was thrown to a show cause notice dated 30th August, 1991 issued by the Chairman-cum-Managing Director of the Bihar State Food and Civil Supplies Corporation Limited (hereinafter referred to as the said Corporation). The said show cause notice was issued persuant to a direction given by this Court by an order dated 14th May, 1991 in C.W.J.C. No. 6713 of 1990.
The facts relating to the issuance of the said show cause notice and the order passed in C.W.J.C. No. 6713 of 1990 are enumerated here-in-below:
The Petitioner''s case is that they were promoted/absorbed as Assistant Godown Manager vide notification bearing No. 12595 dated 5th October, 1989. The Petitioners were initially appointed as Lower Division Clerks in the year 1974-75 in the said Corporation. Thereafter in 1981 with the merger of the cadres of Upper Division Clerks and Lower Division Clerks, the Petitioners became Upper Division Clerks with effect from 1st May, 1980.
Promotion to the posts of Assistant Godown Manager is made normally on the basis of the seniority of the clerks. The case of the Petitioners is that there are altogether 606 sanctioned posts of Assistant Godown Managers in the said Corporation. As the said posts were lying vacant, a proposal for promotion of clerks to the posts of Assistant Godown Manager was placed before the Board of Directors of the the said Corporation on or before 20th September, 1989 and the Board of Directors vide Resolution No. 88.9 dated 20th September, 1989 authorised the Chairman-cum-Managing Director to take the necessary decision in the matter. Thereafter a departmental screening committee was constituted for screening the candidates and making recommendations in favour of the screened candidates for promotion as Assistant Godown Managers. The Petitioners'' case is that the said departmental promotion committee considered the cases of all the clerks for promotion and made its recommendations in favour of 115 clerks. As such those 115 clerks including the Petitioners were promoted to the posts of Assistant Godown Manager.
The grievances of the Petitioners are that the aforesaid orders of promotion are erroneously shown as one of absorption and despite their promotion to the post of Assistant Godown Manager, they were not allowed to function on the said posts because of the appointment of a new Managing Director. It is also alleged that some other clerks have also made representation to the authorities concerned for promotion to the posts of Assistant Godown Manager as those clerks had a feeling that their cases of promotion were not properly considered.
Thereafter, it is contended by the Petitioners that the new Managing Director Mr. A.K. Basu enquired into the matter and confirmed the promotion order by his letter No. 15381 dated 23rd December, 1989. The Petitioners have further alleged that ever since their promotion to the posts of Assistant Godown Manager, all the Petitioners have been drawing their salary in respect of the said posts and are continuing as such and a report to that effect was also sent to the State Government vide letter dated 11th January, 1990 by the Managing Director of the said Corporation. All of a sudden by an order dated 18th September, 1990 the orders of promotion/absorption of the Petitioners as Assistant Godown Manager was cancelled with immediate effect. It is common ground that there was no prior hearing of the case of the Petitioners for cancellation of the orders of promotion which was passed by an order dated 18th September, 1990. The said order dated 18th September, 1990 had been challenged before this Court in C.W.J.C. No. 6713 of 1990.
A Division Bench of this Court by its judgment dated 14th May, 1991 set aside the impugned order dated 18th September, 1990 holding, inter alia, that the said order is fit to be quashed only on the ground of violation of principles of natural justice. After quashing the said order, however, the learned Judges of the Division Bench directed the Chairman-cum-Managing Director of the said Corporation to give an opportunity of hearing to the Petitioners and to give a finding whether the Petitioners were validly appointed. The relevant portion of the said order is set out below:
By now, the principle has been well settled by this Court as also the Supreme Court that, once an (order is going to be passed adversely affecting the right, advantage or some benefit which the person has acquired in the service, he is entitled to show cause before such order could be unilaterally, passed and it would be always in the interest of equity and fair play that such persons whose service is going to be affected adversely and confronted with the grounds of illegality or irregularity and only after due inquiry the action is taken either by cancelling the order or terminating their services and this Court has held that the person affected must be heard before his interest is going to be adversely affected. In a recent decision in the case of Shrawan Kumar Jha and others Vs. State of Bihar and others, the Supreme Court struck down the impugned order of termination on that ground alone and it was held that no order to the detriment of the person concerned could be passed without complying with the rules of natural justice.
On this short ground alone, we quash the impugned order contained in Annexure-3 and direct the Chairman-cum-Managing Director of the Corporation to give an opportunity of hearing to the Petitioners and thereafter record a finding as to whether the Petitioners were validly appointed.
These writ applications are accordingly allowed but there will be no order as to cost.
(emphasis added).
It is persuant to the aforesaid direction of this Court that the impugned show cause notice (Annexure-7) has been issued.
During the pendency of this proceeding, a final order dated 11th December, 1992 has been passed purporting to cancel the promotion/absorption of all 115 clerks to the posts of Assistant Godown Manager. The purported final order dated 11th December, 1992 has been allowed to be challenged by the writ Petitioners in this proceeding by filing an amendment petition and in pursuance thereof an amendment petition has been filed and the same order also forms the subject matter of challenge in this proceeding. In the said final order it has been stated that the show cause reply was received only from a few persons, namely, from 18 persons and the authorities after final consideration found that the absorption/promotion of 115 clerks was made illegally and irregularly and the office Order bearing No. 12595 dated 5th October, 1989 issued by the Corporation for the absorption of 115 Senior Clerks to the posts of Assistant Godown Manager stands cancelled.
The Respondent Corporation has supported its case by filing a counter affidavit both to the writ petition as also the amendment petition and there it has sought to allege that it has passed the orders in accordance with the direction given by the High Court after giving an opportunity to the Petitioners by issuing the said show cause notice and as such there is nothing illegal in the final order of cancellation. Various other contentions have been raised by the Respondents in the counter affidavit justifying on merits the order which has been passed cancelling the order of promotion/absorption of those 115 clerks.
This Court, I am afraid, will not go into the consideration of the merits of the case as sought to be canvassed by the parties. In other words, the Court will not adjudicate on merits whether the Respondent Corporation was right in cancelling the order of absorption/promotion of the Petitioners nor will the Court go into the justification or otherwise of passing such orders of cancellation. The reasons behind or the grounds for passing the aforesaid order of cancellation pertain to the domain of managerial function of the said Corporation and this Court will not go into those questions and substitute its own decision for the one taken by the said Corporation. The Court''s concern is confined only to an ex-amination of the decision making process. Therefore, the Court is to see whether the Respondent authorities have given an effective opportunity of hearing to the Petitioners before passing the impugned order of cancellation. In its judgment dated 14th May, 1991 the learned Judges of the Division Bench very clearly stated that since by the impugned order, the services of the Petitioners will be prejudicially affected, the same can be passed only after due enquiry and the persons concerned must be heard before their interest is affected. In support of the said reasons given by the said Division Bench of this Court reliance was placed on the decision of the Supreme Court in the case of Shrawan Kumar Jha and others Vs. State of Bihar and others,
Therefore, opportunity of hearing I which was directed to be given under the orders of the Division Bench was an opportunity of hearing to be given prior to the issuance of the final order of cancellation. In the instant case, the impugned notice of show cause which is disclosed as Anexure-7 to the writ petition, un-mistakenly shows that the authorities have completely pre-judged the entire issue and made up their mind and even they held inquiry in absence of the Petitioners and came to a positive finding to the effect that there was no justification for promotion of 115 clerks including the Petitioners. Detailed findings have been recorded in the show cause notice. Any person or any reasonable body of persons who are properly instructed in the law and acting bona fide in the matter will inevitably come to the conclusion that the authorities concerned have committed themselves to a pre-determined opinion in favour of cancelling the absorption/promotion of the Petitioners and the opportunities which they are giving to the Petitioners pursuant to the orders of this Court is merely a facade and a farce. As such the said show cause notice does not and cannot inspire any confidence in the mind of the Petitioners and everything seems to be in a state of ''fait accompli''. The so called opportunity of giving a reply to the said show cause notice to the Petitioners is merely a ritual and is a ceremony. In fact by issuing the said show cause notice, the authorities concerned have put the cart before the horse. Under the directions given in C.W.J.C. No. 6713 of 1990 the authorities were directed to give the Petitioners an opportunity of showing cause before any action is taken but in the instant case the perusal of the said show cause would show un-mistakably that a decision has already been taken before an opportunity is given to the Petitioners to show cause against the said decision.
Mr. Tarkeshwar Dayal, learned Counsel appearing for the Respondent Corporation in this matter, placed reliance on several decisions and contended that the show cause notice which has been issued to the Petitioners is legal and valid and cannot be interfered with by this Court. In support of his contention, learned Counsel for the Respondent Corporation relied upon the decision of the Supreme Court In the case of Khem Chand Vs. The Union of India (UOI )and Others, Relying on a passage at page 306 of the said report, learned Counsel for the Respondent Corporation wanted to assert that particulars must be given in the show cause notice in order to ensure that the opportunity given in the show cause notice is an effective one. Reliance was placed by Mr. Dayal on the following observations of the Supreme Court at page 306 of the report:
If the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established, for it is only then that he will be able to put forward his defence.
(emphasis added)
A perusal of the aforesaid observation of the Supreme Court would show that while issuing show cause notice, the authorities concerned will certainly indicate sufficient particulars of the charges against the persons proceeded against. The authorities are also to indicate the evidence on the basis of which and the witnesses by whom such charges are to be sustained but in the name of giving particulars of the charges, the authorities cannot, as they have done in the present show cause notice, reply on concluded findings based upon an inquiry held behind the back of the proceedee. In the instant case, the Respondents have, as would appear from a perusal of the show cause notice, come to a clear finding, even at the stage of issuance of the show cause notice. This, apart from they being contrary to the principles of natural justice, is also not in conformity with the direction given by this Court on 14-5-1991 in C.W.J.C. No. 6713 of 1990.
Mr. Dayal has also referred to two other decisions of Patna High Court, namely, (i) in the case of Smt. Ambika Devi Vs. State of Bihar and Others, In the said decision in the case of Smt. Ambika Devi (supra) Mr. Dayal has relied upon the following observations made by the learned Judge:
Natural Justice generally requires the persons, liable to be directly affected by the proposed administrative acts, decisions or proceedings to be given adequate notice of what is proposed, so that they may be in a position to make representation on their behalf, to appear at the hearing of the enquiry, and effectively to prepare their own case and to answer the case they have to meet.
(emphasis added)
This Court respectfully agrees with the aforesaid enunciation of the principles of natural justice but holds that the principles enunciated there are not applicable to the facts of this case inasmuch as in the case of Smt. Ambika Devi (supra) the learned Judge has said that the notice is to indicate "what is proposed" against the proceedee. The said decision has not laid down, as obviously it cannot, that in the show cause notice concluded findings are to be recited and addressed against the proceedee. Therefore, I am unable to follow the ratio of the decision in the case of Smt. Ambika Devi (supra) in the present case.
Another decision cited by Mr. Dayal was in the case of Jai Naresh Singh and others Vs. The State of Bihar and others, The decisions arrived at in the said cases are not even remotely connected with the problem with which this Court is concerned here. In the case of Jai Naresh Singh (supra) a Division Bench of this Court held that the principles of natural justice need not be complied with when an order of appointment itself is a nullity and violative of Article 16 of the Constitution of India. Here it is no-body''s case that the principles of natural justice are not attracted or that the order of absorption of the Petitioners is a nullity and is violative of Article 16 of the Constitution. As a matter of fact, a Division Bench of this Court by its order dated 14th May, 1991 passed in C.W.J.C. No. 6713 of 1990 has categorically stated that principles of natural justice are applicable to the present situation.
It is also the case of the Respondents that the impugned show cause notice has been issued in compliance with the aforesaid judgment of the Division Bench of this Court. Therefore, to contend that the principles of natural justice do not apply in this case relying on the ratio of the decision of this Court in the case of Jai Naresh Singh (supra) amounts to adopting an inconsistent and contradictory stand by the Respondents. As such this Court is unable to accept the said contention raised by Mr. Dayal.
Mr. Dayal has also raised Anr. contention on fact that out of 115 persons only 12 persons have replied to show cause notice. They having not replied to the said show cause notice, cannot maintain this writ petition as they have accepted the show cause notice.
This Court is also unable to accept the aforesaid contention of Mr. Dayal inasmuch as the said show cause notice has not been issued either in accordance with the principles of natural justice or in accordance with the directions given by this Court. The impugned show cause shows that, the Respondents have failed to comply with the principles of natural justice and thus the said notice is void. If the Petitioners have not answered a void notice, it cannot be said that they have accepted the same and have lost their right to challenge the same before a court of law. In this connection it may be stated that a contempt proceeding was also initiated by the Petitioners challenging the said show cause notice and in disposing of the said contempt proceeding, the following order was passed by a Division Bench of this Court on 16.11.1993.
After hearing counsel for the parties, we dispose of this application since a writ application has been filed against the show cause and the said writ application is pending for hearing before this Court. In this view, this application is dismissed as withdrawn. However, this order of dismissal will not stand in the way of any contention of the Petitioner in the writ application.
Reference in this connection may be made to a significant judgment of Megarry V.C. in the case of Clarke and Ors. v. Chadburn and Ors. reported in (1985) 1 All. E.R. 211. The question which was considered in that case was that when an order is passed or an action is taken in violation of an order of the Court, the resultant action is not merely contumacious but such action also becomes void. While dealing with this question, learned Lord Megarry, V.C. has been pleased to hold that "anything done in disobedience of the order of this Court is not only contumacious but the same is also void". The following observation have been made by His Lordship at page 213-214 of the said report.
If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them. Accordingly, I think that in their essentials the contentions of counsel for the Plaintiffs are right, and the resolution of the NUM changing their rules at their conference held on 11 and 12 July last are void for illegality.
(emphasis added)
Therefore, if the show cause notice is void, as I hold it to be so, the final order passed on such notice cannot but be void. In this connection the observations of the Supreme Court in the case of Baradakanta Mishra Vs. High Court of Orissa and Another, at page 1904 are very apt and set out below:
If the order of the initial authority is void an order of the appellate authority cannot make it valid.
(emphasis added)
Similar observations have been made by Lord Denning, sitting in Privy Council in the case of Macfoy v. United Africa Co. Limited reported in (1961) 3 All E.R. 1169. At page 1172 the relevant observations are as follows:
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.
As such the final order cannot be sustained.
The principles of natural justice embraced in itself a variety of concepts and one of them is that justice must not only be done but it must seem and manifestly appear to be done as well. So in a case of this description, when the Respondents, acting under the order of Court for the purpose of giving an opportunity of hearing to the Petitioners, issued the impugned show cause notice with a completely pre-judged mind it is clear to the Petitioners that justice cannot be expected from the Respondents by filing any reply to the said show cause notice. As such the concept of natural justice will suffer a serious set back if the Court refuses to interfere in this case with the impugned final order as well as the show cause notice. In this connection the observation of Justice Megarry V.C., as His Lordship then was, in the famous case of John v. Rees and Ors. reported in (1970) 1 CD 345 are worthy of being quoted. Succinct observations of His Lordship at page 402 are set out below:
It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the star" "Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases, which, somehow, were not; of un-answerable charges which, in the event, were completely answered; of inexplicable conduct which has fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.
The impugned show cause notice (Annexure-7) therefore, cannot be sustained by this Court. As the impugned show cause notice is bad, the final order passed on the same is equally un-sustainable. In that view of the matter, this writ petition succeeds. The impugned show cause notice (Annexure-7) as well as the final order dated 11th December, 1992 (Annexure-11) are hereby set aside. The Respondents are directed to allow the Petitioners to work on the said post of Assistant Godown Manager in terms of the order dated 5th October, 1989 (Annexure-1).
The Respondents authorities are however, not prevented from examining the said order dated 5th October, 1989 after observing the principles of natural justice both in spirit and reality. In order to do so they will have to issue a show cause notice without recording any finding in the same but by just indicating the allegation if any which may prompt them to cancel the orders of promotion/absorption. Open mind must be kept by the Respondents. Thereafter they must give the Petitioners concerned an opportunity of personal hearing in support of the reply which the Petitioners may have to give in answer to the show cause notice. The authorities concerned must inform the date of hearing to those applicants, who will respond to the said show cause notice and thereafter will pass any order in accordance with law. It is made clear that the said exercise, if at all to be initiated by the Respondent Corporation, must be initiated within a period of one month from the date of receipt/production of a copy of this judgment and completed within four months thereafter as orders of absorption/promotion were issued in 1989 and about six years gone by between. It is further made clear that if the aforesaid exercise of issuance of show cause notice by the Respondents is not initiated within the aforesaid time frame, in that case the Respondents are not permitted to issue any show cause notice purporting to cancel the orders of absorption/promotion issued in favour of the Petitioner by the order dated 5th October, 1989.
There will be no order as to cost.