Natural Justice; Dr. K.S. Dubey Vs. State [Madhya Pradesh High Court, 25-11-2016]

Juvenile Justice (Care & Protection of Children) Act, 2000 – Section 29 (4) – Petitioner was appointed as Chairperson, Child Welfare Committee, Bhopal – Whether the principles of natural justice were required to be followed before terminating the appointment of the petitioner – Held, whether impugned order is outcome of a quasi judicial act or an administrative act in both the situations, principles of natural justice and fair play in action were the requirement of law. In other words, the impugned order could have been passed only after following the principles of natural justice and fair play in action. Fairness is an integral part of good administration.

HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR

Present: Justice Sujoy Paul

(25/11/2016)

Writ Petition No.600/2016

Dr. K.S. Dubey Vs. State of M.P. & others

Shri Mahendra Pateriya, learned counsel for the petitioner. Shri Pushpendra Yadav, learned Govt. Advocate for the respondents/State.

O R D E R

This petition, filed under Article 226 of the Constitution, takes exception to the order dated 28.12.2015 (Annexure-P/8), whereby the respondents have cancelled the appointment of the petitioner as Chairperson of Child Welfare Committee, Bhopal.

2. The admitted facts between the parties are that the petitioner was appointed as Chairperson, Child Welfare Committee, Bhopal constituted under the

# Juvenile Justice (Care & Protection of Children) Act, 2000

(hereinafter call ed as ‘the Act’). The petitioner was appointed by Gazette Notification published on 21.02.2014 (Annexure-P/1). The counsel for the petitioner assailed the order dated 28.12.2015 (Annexure-P/8) by contending that the appointment of the petitioner is cancelled on the grounds viz. (i) the working style of the petitioner was improper and was not in consonance with the requirement of the Act; (ii) in the local newspapers, periodically news were published disclosure of the identity of children and misbehavour with them; (iii) on 07.10.2015, in a local newspaper, it is published that the petitioner has misbehaved with the lady for which an FIR is registered against him under Section 354 IPC; (iv) the petitioner is not competent to discharge the functions of the Committee; (v) the complaints are received against the petitioner; (vi) he did not permit the family members of the children to meet them, (vii) permitted one child to be adopted by somebody despite the fact that his parents were alive; (viii) he did not prepare the child care plan; (ix) petitioner’s behaviour was insensitive; (x) Divisional Commissioner and Collector have conducted the inquiry and found that petitioner is not working in the best interest of children.

3. Shri Pateriaya, learned counsel for the petitioner contends that the Act of 2000 prescribes the method by which any Member of the Committee may be terminated. In the present case, the petitioner’s appointment was cancelled without following the principles of natural justice ad without permitting him to participate in the inquiry. The so-called inquiry conducted by the respondents was conducted behind the back of the petitioner and hence said inquiry report cannot be a reason to terminate the appointment of the petitioner. Apart from this, it is argued that petitioner was falsely implicated in the criminal case and police after investigation, has already submitted a ‘khatma‘ report before the Court of competent jurisdiction. In addition, it is submitted that in the inquiry report also, no serious allegations are found proved against other persons. In nutshell, the contention of the petitioner is that the decision making process which ended with issuance of impugned order is not in consonance with Section 29(4) of Act of 2000.

4. Per contra, Shri Pushpendra Yadav, learned Government Advocate supported the order. It is submitted that Section 29(4) of the Act nowhere prescribes that in the inquiry the Member of the Committee is required to be given an opportunity. Section 29(4) of the Act only prescribes that appointment of any member may be terminated after holding inquiry by the Government. It is submitted that the inquiry was conducted and fault of the petitioner was established. Thus, no fault can be found in such decision making process. By taking this Court to the return, it is submitted that there were various news items published against the petitioner in the news papers. A series of complaints were received against the petitioner. Thus, two inquiry reports dated 08.10.2015 (Annexure- R/1) and 07.10.2015 (Annexure-R/3) were submitted wherein petitioner was found guilty.

5. Shri Pushpendra Yadav, learned Government Advocate for the State also supported the impugned order on the basis of reasons assigned in the said order. Lastly, it is urged that even if opportunity would have been provided to him, the end result would have been the same and; therefore, non-affording an opportunity to the petitioner has not caused any prejudice to him. Looking to the seriousness of the allegations levelled against the petitioner, petitioner himself should have resigned from the sensitive post of Chairperson.

6. No other point is pressed by the learned counsel for the parties.

7. I have heard learned counsel for the parties at length and perused the record.

8. In view of the stand taken by the parties, the core is is : whether the principles of natural justice were required to be followed before terminating the appointment of the petitioner. As noticed, the stand of the respondents is that the respondents are only required to hold an inquiry and Section 29(4) nowhere prescribes that the petitioner should have been permitted to participate in it. This aspect requires serious consideration. It is profitable to trace legal position in this regard.

9. In

# Ridge v. Baldwin, 1964 AC 40

it was held that the duty to act judicially may rise from the very nature of the function performed by the authority. The ration of Ridge (supra) was approved by the Constiution Bench of the Supreme Court in the celebrated case of

# Maneka Gandhi v. Union of India, (1978) 1 SCC 248

A Division Bench of this Court in

# Sukhlal Sen v. Collector, District Satna and others, 1969 MPLJ 516

opined that the nature of duty to determine whether license has committed any breach of terms or conditions of his licence and whether for that reason the licence should be cancelled, imposes upon the authority the duty to act judicially and to comply with the principles of natural justice. In Sukhlal (supra) Justice G.P. Singh speaking for the Bench held as under:-

‘5……… Ridge vs. Baldwin establishes that judicial character of a duty may be inferred from the nature of the duty itself and there need not be any express language used by the Legislature requiring the body on which the duty is imposed to act judicially; duty to act judicially will be implicit in the duty to determine what the rights of any individual should be.’

8…….. Cancellation of a licence is a serious matter as it deprives, the licencee of his right to carry on business. In our opinion, the nature of the duty to determine whether the licensee has committed any breach of terms or conditions of his licence and whether for the reasons the licence should be cancelled, imposes upon the authority the duty to act judicially. It necessarily follows that the authority must follow the requirements of natural justice and must give an opportunity to the licensee to meet the allegations of breaches of terms and conditions of the licence reported against him before cancelling the licence. As in the instant case, this opportunity was not given to the petitioner, it has to be held that the cancellation of his licence was invalid or void.’

10. It is also apt to mention that the dividing line between an administrative power and a quasi judicial power was held to be thin and was treated to be gradually obliterated by various judgments of the Supreme Court. In

# A.K. Kraipak v. Union of India, AIR 1970 SC 150

the Apex Court opined as under:-

‘13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuring from the exercise of that power and the manner in which the power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedure which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.’€ (Emphasis Supplied)

11. In the same judgment, the Court observed-

‘the horizon of natural justice is constantly expanding’€ and ‘€œif the purpose of rules of natural justice is to prevent miscarriage of justice, one fail to see why those rules should be made inapplicable to administrative enquiries’.

In

# Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405

the Apex Court opined as under in paras 53 and 55:-

‘……..To-day, in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas it is only for improving the quality of government by injecting fair play into its wheels…..Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity……….’€

12. In

# Swadeshi Cotton Mills v. Union of India, (1981) 1 SCC 664

the Apex Court opined as under:-

‘44……this rule of fair play ‘€œmust not be jettisoned save in very exceptional circumstances where compulsive necessity so demands’€. The Court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications.’€

13. The constitution Bench in Maneka Gandhi (supra) has emphasized that natural justice is a great ‘€œhumanising principle’€ which intended to invest law with fairness and to secure justice. The soul of natural justice is ‘€œfair play in action’€. On the basis of this, it can be said that there is no distinction between a quasi judicial and an administrative function for the purpose of applicability of the principles of natural justice. The aim of both administrative enquiry and quasi judicial enquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure the justice, or, to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi judicial enquiry and not to administrative enquiry. It must logically apply to both. Bhagwati, J. in Maneka Gandhi (supra) opined as under:- ‘€

œ12…… The law must, therefore, now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable.’€

14. In Mohinder Singh Gill (supra), the Apex Court opined as under:-

‘€œ44. The dichotomy between administrative and quasi-judicial functions vis-a-vis the doctrine of natural justice is presumably obsolescent.’€

15. In

# S.L. Kapoor vs. Jagmohan, (1980) 4 SCC 379

the Apex Court opined as under:-

‘€œ7. The old distinction between a judicial act and an administrative act has withered away and we have been liberated from the psittacine incantation of ‘€œadministrative action……’€

16. On the basis of the development of law and its interpretation aforesaid shows that the principles of natural justice are implicit in quasi judicial as well as administrative action. The same view was taken by the Supreme Court by following Swadeshi Cotton Mills (supra) in Mangilal (supra), the Apex Court opined as under in Para 10:-

‘€œ10. Even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely affected by the orders that may be passed, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form of procedure should ever be permitted to exclude the presentation of a litigant’s defence or stand. Even in the absence of a provisions in procedural laws, power inheres in every tribunal/Court of a judicial or quasi-judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties. Procedure is mainly grounded on the principles of natural justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principles. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice where substantial rights of parties are considerably affected. The application of natural justice becomes presumptive, unless found excluded by express words of statute or necessary intendment.(See Swadeshi Cotton Mills vs. Union of India.) Its aim is to secure justice or to prevent miscarriage of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validly made. They are a means to an end and not an end in themselves. The principles of natural justice have many facets. Two of them are: notice of the case to be met, and opportunity to explain.’€ (Emphasis Supplied)

17. The legal position stated above makes it clear that whether impugned order is outcome of a quasi judicial act or an administrative act in both the situations, principles of natural justice and fair play in action were the requirement of law. In other words, the impugned order could have been passed only after following the principles of natural justice and fair play in action. Fairness is an integral part of good administration.

18. This is settled in law that principles of natural justice does not supplant the law but supplements the law. Its application may be excluded either expressly or by necessary implication

# Dr. Umrao Singh Chaudhary vs. State of M.P. Another, (1994) 4 SCC 328

In Mohinder Singh Gill (supra), it is held by the Supreme Court that it is not permissible to interpret any statutory instrument so as to exclude natural justice. Unless the language of the instrument leaves no option to the Court. It is further observed that natural justice is so integral to the good government that the onus is on him who urges exclusion to make out why.

19. As per aforesaid analysis, it is clear that the respondents were unable to show that the principles of natural justice were expressly or impliedly excluded in Section 29(4) of the Act. Thus, in my view, the respondents should have followed the principles of natural justice and should have given opportunity of hearing to the petitioner. The petitioner should have been permitted to participate in the inquiry.

20. The appointment can be terminated only when ingredients of Section 29(4) are satisfied. They are:

(i) He has been found guilty of misuse of power vested under this Act;

(ii) he has been convicted of an offence involving moral turpitude, and such conviction has not been reversed or he has not been granted full pardon in respect of such offence;

(iii) He fails to attend the proceedings of the Committee for consecutive three months without any valid reason or he fails to attend less than three-fourth of the sitting in a year.

21. This is settled in law that if Statute requires a thing to be done in a particular manner, it has to be done in the same manner or not at all. In other words, the other methods are forbidden. [See:

# Shri Baru Ram v. Smt. Prasanni and others, AIR 1959 SC 93

# Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and others, (2002) 1 SCC 633

and

# Satyanjay Tripathi and another v. Banarsi Devi, 2011 (2) MPLJ 690

22. The aforesaid factual matrix makes it clear that the respondents have not passed the impugned order by following the principles of natural justice. This is not the case of the respondents that the petitioner has been convicted for any offence involving moral turpitude. Similarly, it is not the allegation against the petitioner that he failed to attend the proceedings of the Committee for three consecutive months. Whether or not he is guilty of misuse of power or any other charge, requires holding of an inquiry where he should be given due opportunity. Since the decision making process for terminating the appointment of the petitioner is polluted, the order dated 28.12.2015 is set aside. However, in the peculiar facts and circumstances of this case and considering the sensitive nature of assignment of the petitioner, it is directed that the respondents shall issue specification notice containing allegations and provide opportunity to the petitioner and then take appropriate decision in consonance with Section 29 (4) of the Act within 45 days from the date of communication of this order. During these 45 days and till a fresh decision is taken, the petitioner shall not be permitted to perform the duties of Chairperson, Child Welfare Committee, Bhopal. Needless to mention that completion of aforesaid exercise within the period of 45 days will depend upon the cooperation of the petitioner in the inquiry.

23. Petition is allowed to the extent indicated hereinabove. No costs.

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