SRI NAGESH V V. THE UNION OF INDIA

WP/9754/2020

AI Insights

The case involves a writ petition filed by multiple petitioners challenging the Official Memorandum dated 18.08.2020 issued by the Karnataka State AIDS Prevention Society, which withdrew their appointments made through a selection process. The petitioners argued that their termination was without notice and violated principles of natural justice. The respondents justified the termination by alleging irregularities in the selection process. The court emphasized the necessity of adhering to principles of natural justice, particularly the right to a hearing before any order that entails civil consequences is passed. The court rejected the 'empty formality' argument and mandated a fair hearing for the petitioners.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 722243 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 29-01-2021
• Assessment Year: misc
• Other Referred Cases: UMANATH PANDEY V. STATE OF UTTAR PRADESH, SAHARA INDIA (FIRM) V. COMMISSIONER OF INCOME TAX, MOHINDER SINGH GILL V. CHIEF ELECTION COMMR., STATE OF PUNJAB V. BANDEEP SINGH
• Laws Referred To: Articles 226 and 227 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SUMANA M; SHARADAMBA; H S SURESH
• Assessee Lawyers: RAJAGOPAL
• Keywords: Civil consequences; Natural Justice; Termination of employment; Writ petition; Selection Process Irregularities

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2021 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.9754/2020 (S – RES) BETWEEN 1. SRI NAGESH V., S/O VEERABHADRAGOWDA, AGED ABOUT 27 YEARS, R/A NO. 72, MARALE MUTT POST, KANAKAPURA TALUK, RAMANAGARA DISTRICT – 562 117. 2. KUM.SUKANYA R., D/O RANGANATHAPPA, AGED ABOUT 31 YEARS, R/A NO 338, I MAIN ROAD, MUNESHWARA EXTENSION, BHARATHI NAGAR, 2ND STAGE, VISHWANEEDAM POST, BENGALURU – 560 091. 3. KUM. MAHESHWARI M., D/O D.MAHADEVAPPA, AGED ABOUT 26 YEARS, R/A NO. 52, 2ND MAIN, 2ND CROSS, 2ND STAGE, POLICE LAYOUT, MYSURU – 570 028. 4. SRI KANTHARAJA R S/O BANAIAH, AGED ABOUT 24 YEARS, R/A AMBEDKAR CIRCLE I CROSS, 2 KANCHIBAGILU, OLD TOWN, BHADRAVATHI, SHIVAMOGGA DISTRICT. 5. KUM. SOUNDARYA T., D/O T.YERISWAMY, AGED ABOUT 26 YEARS, R/A SHEKASHAWLI DARGA, BEHIND TARANATH HOSPITAL, ANANTHPURA ROAD, BELLARY – 584 103. 6. SHASHI KUMAR B.N., S/O NAGARAJ, AGED ABOUT 25 YEARS, R/A HOSAKODHIHALLI, T.K. ROAD, BHADRAVATHI – 577 301, SHIVAMOGGA DISTRICT. 7. SRI SHIVAPUTRA KUNNATAGI S/O. DEVENDRAPPA, AGED ABOUT 32 YEARS, R/A NO. 18, NEAR SAMUDAYA BHAVAN, KUNNATAGI, PAGADODINNI PO, SINDHANUR TALUK, RAICHUR DISTRICT – 584 128. 8. SRI MOHANA T., S/O THIPPESWAMY O, AGED ABOUT 26 YEARS, R/A PARASHURAMPURA POST, CHALLAKERE TALUK, CHITRADURGA DISTRICT - 577 538. 9. SRI. JAGADEESH A.P., S/O A.PUTTAPPA, AGED ABOUT 36 YEARS, R/A NO. 829/2, 3 BALLARI SIDDAMMA PARK, KB LAYOUT, DAVANAGERE. 10. SRI SADASHIVA HAVANAGI S/O RAJASHEKAR H., AGED ABOUT 31 YEARS, R/A AKKAMMA BUILDING, NO.19, VIJAYANAGAR, 4TH CROSS, 1ST MAIN, MARENAHALLI, BENGALURU – 560 040. 11. SRI. ASIFUMAR MUJAWAR S/O. ABDULGAFAR MUJAWAR, R/A NO. 119/5, 1ST FLOOR, S.C. ROAD, OPP. TO CITRINE HOTEL, SHESHADRIPURAM, BENGALURU – 560 020. 12. DR. HANUMANTHARAYAPPA S/O LATE. BOMMALINGAPPA, R/A NO. 01, ‘GAGAGANA NILAYLA’, 2ND MAIN, MALLASANDRA, PIPELINE ROAD, T. DASARAHALLI, BENGALURU – 560 057. 13. KUM.ASHA V., D/O VENKATESH, R/AT NO. 52/21, 22ND MAIN ROAD, BEHIND BTS GARAGE, MARUTHI MANDIRA, BENGALURLU – 560 040. 14. SRI ULLAS RANGAYYA S/O RANGAYYA, AGED ABOUT 36 YEARS, R/O. ‘DHARMA NILAYA’, 4 NO. 381, 17TH CROSS, KIRLOSKAR LAYOUT, HESARAGHATTA MAIN ROAD, NAGASANDRA POST, BENGALURU – 560 073. 15. KUM. JYOTHI CHANDRASHEKAR METAGAR D/O CHANDRASHEKAR METAGAR, AGED ABOUT 32 YEARS, R/AT NO. 101/9, 8TH CROSS, DOMLUR VILLAGE, DOMLUR, BENGALURU – 560 071. 16. KUM. NAMRATHA M W/O. KUMARASWAMY,M. AGED ABOUT 36 YEARS, R/AT NO. 1084, 4TH MAIN, M.C. LAYOUT, VIJAYANAGAR, BENGALURU – 560 040. 17. SRI PAMESH KATTIMANI, S/O. HAMUMANTHAPPA, AGED ABOUT 49 YEARS, R/A ‘DHARMA NILAYA’, NO.381, 17TH CROSS, KIRLOSKAR LAYOUT, HESARAGHATATA MAIN ROAD, NAGASANDRA POST, BENGALURLU – 560 073. ... PETITIONERS (BY SRI RAJAGOPAL M.R., ADVOCATE (VIDEO CONFEREINCNG)) AND 1. THE UNION OF INDIA BY ITS SECRETARY, DEPARTMENT OF MINISTRY AND HEALTH AND FAMILY WELFARE AND NATIONAL AIDS CONTROL ORGANIZATION (NACO), 39TH FLOOR, CHANDRALOK BUILDINGS, 5 NO. 36, JANAPATH, NEW DELHI – 110 001. 2. THE ADDITIONAL SECRETARY DEPARTMENT OF MINISTRY AND HEALTH AND FAMILY WELFARE AND NATIONAL AIDS CONTROL ORGANIZATION (NACO), 39TH FLOOR, CHANDRALOK BUILDING, NO. 36, JANAPATH, NEW DELHI – 110 001. 3. THE HUMAN RESOURCES CONSULTANT DEPARTMENT OF MINISTRY AND HEALTH AND FAMILY WELFARE AND NATIONAL AIDS CONTROL ORGANIZATION (NACO), 39TH FLOOR, CHANDRALOK BUILDING, NO.36, JANAPATH, NEW DELHI – 110 001. 4. THE STATE OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICE, VIKASA SOUDHA, BENGALURU – 560 001. 5. THE PROJECT DIRECTOR, KARNATAKA STATE AIDS PREVENETION SOCIETY, AROGYA SOUDHA, 4TH FLOOR, MAGADI ROAD, BENGALURU. 6. THE HEAD OF THE DEPARTMENT DEPARTMENT OF MICROBIOLOGY, VICTORIA HOSPITAL CAMPUS, BENGALURU MEDICAL COLLEGE AND RESEARCH INSTITUTE, KR ROAD, FORT, BENGALURU – 560 002. 6 7. THE IN-CHARGE OF SRL AND VIRAL LEAD LAB, DEPARTMENT OF MICROBIOLOGY, VIMS BELLARI – 584 103. 8. THE HEAD OF DEPARTMENT DEPARTMENT OF MICROBIOLOGY, SIMS, SAGAR ROAD, SHIVAMOGGA – 577 201. 9. THE IN-CHARGE OF SRL AND VIRAL LEAD, DEPARTMENT OF MICROBIOLOGY, JSS HOSPITAL, MYSURU – 570 004. 10. THE D.A.P.C.U. OFFICER DISTRICT T.B.OFFICE, OPP. POST OFFICE, KEB OFFICE, BENGALURU ROAD, CHIKKABALLAPUR – 562 101. 11. THE D.A.P.C.U. OFFICER CHIGATERI GENERAL HOSPITAL, ROOM NO. 202, DAVANAGERE – 577 001. ... RESPONDENTS (BY SMT. SUMANA BALIGA M., ADVOCATE FOR C/R5, R8, R11 (VIDEO CONFERENCING) SMT. SHARADAMBA A.R., AGA FOR R11 (PHYSICAL HEARING) SRI H.S. SURESH, ADVOCATE FOR R1 TO R3, R6, R7, R9 AND R10 ARE SERVED AND UNREPRESENTED THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED OFFICIAL MEMORANDUM DTD.18.8.2020 PASSED BY THE R-5 THE KARNATAKA SATE AIDS PREVENTION SOCIETY AS PER ANNEXURE-P 7 THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioners in this writ petition have called in question the Official Memorandum dated 18.08.2020, passed by the fifth respondent – Karnataka State Aids Prevention Society (hereinafter referred to as ‘the Society’ for short). 2. Heard Sri Rajagopal M.R., learned counsel for petitioners, Sri M.S.Sumana Baliga M., learned counsel for fifth, eighth and eleventh respondents, Sri H.S.Suresh, learned counsel for first to third, sixth, seventh, ninth and tenth respondents, Smt. Sharadamba A.R., learned Additional Government Advocate for eleventh respondent and perused the material on record. 3. Brief facts of the case leading to the filing of the writ petition are as follows:- The Society issued a notification calling for applications from eligible candidates to be appointed through walk in interview on 30.12.2019, for the following posts: 8 “i. Joint Director (Target and intervention); ii. Deputy Director (Integrated Counseling & Testing Center; iii. Deputy Director (Target and Intervention); iv. Assistant Director (Voluntary Blood Donation); v. Assistant Director (Target and Intervention); vi. Monitoring & Evaluation Officer; vii. Assistant Director (Materials Management).” Pursuant to the notification, the petitioners herein finding themselves eligible for consideration for the posts that was advertised, participated in the walk in interview on 21.01.2020. 4. Pursuant to the interview and verification of the credentials of the petitioners, final select list of the candidates was notified on 03.02.2020, in various posts in terms of the notification dated 30.12.2019. Pursuant to the final select list, the candidates were directed to appear before the competent authority with their original testimonials and certificates on 06.02.2020. After verification of all the credentials of the petitioners i.e., testimonials and other documents, appointment 9 orders were issued to the petitioners between 16.04.2020 and 27.05.2020, to the aforementioned posts. 5. The petitioners pursuant to the appointment orders reported to duties and started functioning in their respective posts for which they were appointed to. On 20.04.2020, an agreement was entered into between the petitioners and the fifth respondent – Society. It also transpires that the appointment of the petitioners were approved by the Execution Committee of the fifth respondent – Society, which comprised of an Officer of the Union of India. After about 4 months of functioning of the petitioners in the posts they were appointed to, an order was passed on 18.08.2020, withdrawing the selections made and cancelling the appointments made pursuant to the selection process mentioned hereinabove. 6. This order came to the petitioners as a blot from the blue as there was no notice issued to the petitioners prior to their termination which happened through an Official Memorandum dated 18.08.2020. The petitioners were 10 appointed in terms of selection process initiated by the fifth respondent – Society, albeit by a contract of employment which also contains a clause that the fifth respondent – Society could terminate the petitioners with one month notice or one month salary to be paid in advance. This clause would not mean that the petitioners who were working in the fifth respondent – Society pursuant to a valid selection process, could be terminated without issuance of a notice in the least. 7. Learned counsel for the fifth respondent - Society would seek to justify the Official Memorandum on the score that there were irregularities in the selection made by the Selection Committee pursuant to which the petitioners were appointed. The submission of the learned counsel is that issuance of the notice to these petitioners who were appointed would be an empty formality, as the same order would be passed in an event, this Court would direct issuance of notice and hear the petitioners as there were irregularities in selection process. 11 8. The Official Memorandum dated 18.08.2020, has reference to irregularities alleged to have taken place, one being violation of the communication dated 14.03.2013, issued by the Union of India, which is reiterated in the communication dated 25.06.2020, and would submit that since there were irregularities in selection, no notice need be given to the petitioners who are direct beneficiaries of such irregularities. This submission of the learned counsel for respondent is unacceptable to me, as the theory of empty formality cannot be pressed into service by the learned Counsel appearing for the Society as the petitioners were innocent participants in the selection process pursuant to which they were appointed albeit on contract basis. The same order being passed even after issuance of notice will not obviate the obligation of compliance with principles of natural justice. The order impugned terminating the service of the petitioners without a shadow of doubt entail civil consequences. Therefore, compliance with the said principle was paramount. The Apex Court in the case of 12 UMANATH PANDEY V. STATE OF UTTAR PRADESH reported in (2009) 12 SCC 40 thus: “7. The crucial question that remains to be adjudicated is whether principles of natural justice have been violated; and if so, to what extent any prejudice has been caused. It may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, ‘useless formality theory’ can be pressed into service. 8. Natural justice is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. 9. The expression ‘natural justice’ and ‘legal justice’ do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure 13 should ever be permitted to exclude the presentation of a litigant’s defence. 10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ‘Magna Carta’. The classic exposition of Sir Edward Coke of natural justice requires to ‘vocate’, interrogate and adjudicate’. In the celebrated case of Cooper v. Wandsworth Board of Works the principle was thus stated: “[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. “Adam” (says God), “where art thou? Hast thou not eaten 14 of the tree whereof I commanded thee that thou shouldest not eat?” Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond. 11. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice. 12. What is meant by the term ‘principles of natural justice’ is not easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Loc. Govt. Board described the phrase as sadly lacking in precision. In General Medical Council v. Spackman Lord Wright observed that it was not desirable to attempt ‘to force it into any Procrustean bed’ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give ‘a full and fair opportunity’ to every party of being heard. 13. Lord Wright referred to the leading cases on the subject. The most important of them is Board of Education v. Rice where Lord Loreburn, L.C, observed as follows: “Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or 15 officers of State the duty of deciding or determining questions of various kinds…. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, but that is a duty lying upon everyone who decides anything. But, I do not think they are bound to treat such a question as though it were a trial….. The Board is in the nature of the Arbitral Tribunal, and a court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But, if the court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari.” Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that ‘the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view’. To the same effect are the observations of the Earl of Selborne, L.C in Arthur John Spackman v. Plumstead District Board of Works where the learned and noble Lord Chancellor observed as follows: “…..No doubt in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall 16 not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the mater and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.” Lord Selborne also added that the essence of justice consisted in requiring that al parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase “justice should not only be done, but should be seen to be done’. 14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression ‘civil consequences’ encompasses infraction of not merely 17 property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. 15. Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Leburn Lord Cranworth defined it as ‘universal justice’. In James Dumbar Smith v. R. Sri Robert P. Collier, speaking for the Judicial Committee of the Privy Council, used the phrase ‘the requirements of substantial justice’, while in Arthur John Spackman v. Plunstead District Board of Works, the Earl of Selborne, L.C., preferred the phrase ‘the substantial requirement of justice’. In Voinet v. Barrett, Lord Esher, M.R. defined natural justice as ‘the natural sense of what is right and wrong’. While, however, deciding Hopkins v. Smethwick Local BoardLordFasher, M.R instead of using the definition given earlier by him in Voinet case chose to define natural justice as ‘fundamental justice’. In Ridge v.Baldwin, Harman,L.J., in the Court of Appeal countered natural justice with ‘fair play in action’, a phrase favoured by Bhagwati,J in Maneka Gandhi v. Union of India. H.K. (an infant), in re, Lord Parker, C.J., preferred to describe natural justice as ‘a duty to act fairly’. In Fairmount Investments Ltd. v. Secy. of State for Environment Lord Russell of Killowen somewhat picturesquely described natural justice as ‘a fair crack of the whip’ while Geoffrey Lane.L.J. in R. v. Secy. of State for House Affairs, Ex.ParteHosenball preferred the homely phrase ‘common fairness’ 16. How then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice 18 in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their rots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is ‘nemo judex in causa sua’ or ‘nemo debetesse judex in propria causa sua’ as stated in Earl of Derby’s case, that is, ‘no man shall be a judge in his own cause’. Coke used the form ‘aliquis non debetesse judex in propria causa, quia non potestesse judex at pars’ (Co.Litt 1418), that is ‘no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party’. The form ‘nemo potestesse simul actor et judex’, that is ‘no one can be at once suitor and Judge’ is also at times used. The second rule is ‘audi alteram partem’, that is ‘hear the other side’. At times and particularly in continental countries, the form ‘audietur at altera pars’ is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely ‘qui aliquidstatueritparteinaudita altera, aquum licet dixerit, haudaequumfacerit’, that is, ‘he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right’ (see Boswel’s case) or in other words, as it is now expressed, ‘justice should not only be done but should manifestly be seen to be done’. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left open. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 19 17. What is known as ‘useless formality theory’ has received consideration of this Court in M.C.Mehta v. Union of India. It was observed as under: “22. Before we go into the final aspects of this contention, we would like to state that cases relating to breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of ‘real substance’ or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed. See Malloch v. Aberdeen Corpn. (per Lord Reid and Lord Wilberforce), Glynn v. Keele University, Cinnamond v. British Airports Authority and other cases where such a view has been held. The latest addition to this view is R.v.Ealing Magistrates’ Court, ex p. Fannaran (Admn LR at p.358) (See de Smith. Suppl.p.89) (1998) where Straughton.L.J held that there must be “demonstrable beyond doubt” that the result would have been different, Lord Woolf in Lyoyd v. McMohan (WLR at p.862) has also not disfavoured refusal of discretion in certain cases of breach of natural justice. The New Zealand Court in McCarthy v. Grant however goes halfway when it says that (as in the case of bias), it is sufficient for the applicant to show that there is “real likelihood – not certainty – of prejudice”. On the other hand, Garner Administrative Law (8thEdn., 1996, pp.271-72) says that slight proof that the result would have been different is sufficient. On the other side of the argument, we have apart from Ridge v. 20 Baldwin, Megarry,J. in John v. Rees stating there are always “open and shut cases” and no absolute rule of proof of prejudice can be laid down. Merits are not for the court but for the authority to consider. Ackner,J. has said that the “useless formality theory” is a dangerous one and, however inconvenient, natural justice must be followed. His Lordship observed that “convenience and justice are often not on speaking terms”. More recently Lord Bingham has deprecated the “useless formality” theory in R. v. Chief Constable of the Thames Valley Police, ex p.Cotton by giving six reasons. (See also his article “Should Public Law Remedies be Discretionary?” 1991 PL., p.64). A detailed and emphatic criticism of the “useless formality theory” has been made much earlier in “Natural Justice, Substance or Shadow” by Prof. D.H.Clark of Canada (See 1975 PL., pp.27-63) contending that Malloch and Glynn were wrongly decided. Foulkes (Administrative Law, 8thEdn., 1996. P.323), Craig (Administrative Law, 3rdEdn., p.596) and others say that the court cannot prejudge what is to be decided by the decision making authority, De Smith 9thEdn., 1994, paras 10.031-10.036) says courts have not yet committed themselves to any one view though discretion is always with the court. Wade (Administrative Law, 5thEdn., 1994, pp.526-30) says that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. Thus, in relation to cases other than those relating to admitted or indisputable facts, there is a considerable divergence of opinion whether the applicant can be compelled to prove that the outcome will be in his favour or he has to prove a case of substance 21 or if he can prove a “real likelihood” of success or if he is entitled to relief even if there is some remote chance of success. We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the courts can, in exercise of their “discretion”, refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed. We may also state that there is yet another line of cases as in State Bank of Patiala v. S.K.Sharma, Rajendra Singh v. State of M.P. that even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it cannot be waived. 23. We do not propose to express any opinion on the correctness or otherwise of the “useless formality” theory and leave the matter for decision in an appropriate case, inasmuch as, in the case before us, “admitted and indisputable” facts show that grant of a writ will be in vain as pointed out by ChinnappaReddy,J” (emphasis in original) “11. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.” (emphasis applied) 22 9. The Hon’ble Apex Court while making an amalgam of audi alteram partem and civil consequences was pleased to hold as to why right to hearing is a necessary right where an order passed would entail civil consequences in the case of SAHARA INDIA (FIRM) V. COMMISSIONER OF INCOME TAX reported in (2008) 14 SCC 151 thus: “30. As already noted above, the expression “civil consequences” encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. Anything which affects a citizen in his civil life comes under its wide umbrella. Accordingly, we reject the argumenta and hold that since an order under Section 142(2-A) does not entail civil consequences, the rule audi alteram partem is required to be observed. 31. We are also unable to persuade ourselves to agree with the proposition canvassed by learned counsel for the Revenue that since a post-decisional hearing in terms of sub-section (3) of Section 142 is contemplated, the requirement of natural justice is fully met. Apart from the fact that ordinarily a post-decisional hearing is no substitute for pre-decisional hearing, even from the language of the said provision it is plain that the opportunity of being heard is only in respect of the material gathered on the basis of the audit report submitted under sub-section (2-A) and not on the validity of the original order directing the special audit. It is well settled that the principle audi alteram partem can be excluded only when a statute contemplates a post decisional hearing amounting to a full review of the 23 original order on merit, which, as explained above, is not the case here. In terms of the law laid down by the Apex Court in the above extracted judgments, the order entailing serious civil consequences could not have been passed without affording an opportunity of hearing to the petitioners. 10. Learned counsel for the fifth respondent would seek to justify the order passed by the fifth respondent by bringing manifold circumstances for passage of the impugned order in the statement of objections. It is again a settle principle of law that the order that is impugned will have to be sustained or otherwise on the basis of the reason given in the order and not its justification by way of statement of objections. The Apex Court in the case of MOHINDER SINGH GILL V. CHIEF ELECTION COMMR. reported in (1978) 1 SCC 405, has held as follows: “8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must 24 be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. 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. We may here draw attention to the observations of Bose, J. in GordhandasBhanji [Commr. of Police, Bombay v. GordhandasBhanji, AIR 1952 SC 16] : “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” Orders are not like old wine becoming better as they grow older. (emphasis supplied) 25 This principle of law is again iterated by the Apex Court in the case of STATE OF PUNJAB V. BANDEEP SINGH reported in (2016) 1 SCC 724, wherein the Apex Court has held as follows: “4. There can be no gainsaying that every decision of an administrative or executive nature must be a composite and self-sustaining one, in that it should contain all the reasons which prevailed on the official taking the decision to arrive at his conclusion. It is beyond cavil that any authority cannot be permitted to travel beyond the stand adopted and expressed by it in the impugned action. If precedent is required for this proposition it can be found in the celebrated decision titled Mohinder Singh Gill v. Chief Election Commr. [(1978) 1 SCC 405 : (1978) 2 SCR 272] of which the following paragraph deserves extraction: (SCC p. 417, para 8) “8. The second equally relevant matter is that 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. 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. We may here draw 26 attention to the observations of Bose, J. in GordhandasBhanji [Commr. Of Police v. GordhandasBhanji, AIR 1952 SC 16 : 1952 SCR 135] : (AIR p. 18, para 9) ‘9. … public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.’ Orders are not like old wine becoming better as they grow older.” (emphasis supplied) Therefore, the submissions made by the learned Counsel for the fifth respondent – Society does not sound acceptance in view of the law laid down by the Apex Court in the aforesaid cases. The petitioners will have to be heard prior to passing any order entailing civil consequences. In my considered view it would be appropriate to read down the impugned order as show 27 cause notices and the petitioners given liberty to reply to the same and the Society proceeding further in the matter on consideration of the reply given by the petitioners. 11. For the aforestated reasons, the following: ORDER a. The writ petition is allowed. b. The impugned Official Memorandum dated 18.08.2020 passed by the fifth respondent – Society is read down as the show cause notice and the petitioners are entitled to submit their reply to the reading down of the said Official Memorandum, within one month from the date of receipt of a copy of this order and respondents shall consider the same and pass appropriate orders within two months thereafter, in accordance with law. c. The petitioners shall be reinstated into service for compliance with direction (b) supra. Sd/- JUDGE nvj CT:MJ "