Ujwala Pimple vs The Maharashtra Fisheries Development Corporation Limited

S.A. Bobde, J.—Rule, returnable forthwith. Heard by consent of the parties.

The respondents have terminated the service of the petitioner under the provisions of the Maharashtra Fisheries Development Corporation (MFDC) Service Regulations by offering one month''s pay in lieu of notice. The only ground for termination of services of the petitioner is that the petitioner was appointed by the order dated 22/2/2010 in pursuance of an advertisement dated 29/9/2009 and that she had already crossed the age of 33 years which was the age limit imposed in the advertisement.

The learned Counsel for the petitioner submitted that the termination is bad since there are no rules prescribing the maximum age limit for appointment and that in the advertisement the respondents arbitrarily imposed the age limit of 33 years. There is no merit in this argument because it is open to an employee to impose an age limit in the advertisement even if there is no age limit prescribed in the Regulations. In any case the petitioner, at any point of time, did not questioned the advertisement on the contrary acted on the advertisement. The next contention of the petitioner is that the order of termination of his services is contrary to the principles of natural justice as no show cause notice has been issued.

Shri Madkholkar, learned Counsel for respondents, relied on the judgment of the Supreme Court in Aligarh Muslim University and Others Vs. Mansoor Ali Khan, where the Supreme Court has made the following observations

As pointed recently in M.C. Mehta Vs. Union of India (UOI) and Others, there can be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India. For example where no prejudice is caused to the person concerned, interference under Article 226 is not necessary. Similarly, if the quashing of the order which is in breach of natural justice is likely to result in revival of another order which is in itself illegal as in Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, it is not necessary to quash the order merely because of violation of principles of natural justice.

In M.C. Mehta Vs. Union of India (UOI) and Others, it was pointed out that at one time, it was held in Ridge v. Baldwin 1964 AC 40 : (1963) 2 ALL ER 66 (HL) that breach of principles of natural justice was in itself treated as prejudice and that no other "de facto" prejudice needed to be proved. But, since then the rigour of the rule has been relaxed not only in England but also in our country. In S.L. Kapoor Vs. Jagmohan and Others, Chinnappa Reddy, J. followed Ridge v. Baldwin 1964 AC 40: (1963) 2 ALL ER 66 (HL) and set aside the order of supersession of the New Delhi Metropolitan Committee rejecting the argument that there was no prejudice though notice was not given. The proceedings were quashed on the ground of violation of principles of natural justice. But even in that case certain exceptions were laid down to which we shall presently refer.

Chinnappa Reddy, J. in S.L. Kapoor Vs. Jagmohan and Others, laid down two exceptions (at SCC p.395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of Course, this being an exception, great care must be taken in applying this exception.

The principle that in addition to breach of natural justice, prejudice must also be proved has been developed in several cases. In K.L. Tripathi Vs. State Bank of India and Others, Sabyasachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade''s Administrative Law (5th Edn.,pp.472-75), as follows: (SCC p.58, para 31)

"[I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. .... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth."

Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala and others Vs. S.K. Sharma, . In that case, the principle of "prejudice" has been further elaborated. The same principle has been reiterated again in Rajendra Singh Vs. State of Madhya Pradesh and others, .

The "useless formality" theory, it must be noted, is an exception. Apart from the class of cases of "admitted or indisputable facts leading only to one conclusion" referred to above, there has been considerable debate on the application of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta Vs. Union of India (UOI) and Others, referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case.

It will be sufficient, for the purpose of the case of Mr. Mansoor Ali Khan to show that his case will fall within the exceptions stated by Chinnapa Reddy, J. in S.L. Kapoor Vs. Jagmohan and Others, , namely, that on the admitted or indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr Mansoor Ali Khan though notice has not been issued."

Having regard to the above observations, we are of the view that since it is an admitted fact that the petitioner reached the age of 42 years when she applied for the post and was appointed. The present case is a case where the admitted and indisputable facts lead only to one conclusion of termination and therefore, the issuance of show cause notice was a useless formality.

It was next argued by the learned Counsel for the petitioner that the respondents have appointed the others who have crossed the age limit of 33 years. Shri Madkholkar submits those two appointments were made erroneously and in any case those two persons have retired. In any case it is not possible to grant relief to the petitioner on the ground that the petitioner has observed some other illegalities, stated to have been committed by the respondents. This Court will not direct the respondents in the exercise of its writ jurisdiction to repeat an illegality assuming that it exists. There is no merit in the petition. The writ petition is therefore, dismissed. Rule is discharged. No order as to costs.